author: Andrews, Presiding Judge. Eldridge, Judge,

text:
    A01A2377.
    CAMPBELL v. COATS.
    (561 SE2d 195)
   Andrews, Presiding Judge.

Timothy Campbell appeals from the trial court’s order dismissing his personal injury action against Robert Coats. Campbell dismissed his original action against Coats after the expiration of the applicable statute of limitation and then filed a renewal action against Coats pursuant to OCGA § 9-2-61. Coats raised the defense of insufficient service in his answer to the original action and moved for dismissal of the renewal action on the basis that he was not properly served in the original action. The trial court correctly concluded that the original action was void for lack of proper service on Coats and correctly dismissed the renewal action because a void action cannot be renewed pursuant to § 9-2-61. Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994).

1. The evidence was sufficient to support the trial court’s finding that the original action was void because Coats was never properly served.

Campbell filed the original complaint against Coats on October 8, 1997, a few days before the expiration of the applicable statute of limitation. Instead of serving Coats personally with the summons and complaint, service was attempted pursuant to former OCGA § 9-11-4 (d) (7) (now codified as § 9-11-4 (e) (7)) “by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” Id. In order for this form of service to constitute valid service on Coats, it was necessary that the person who received the copies at Coats’s residence actually reside there with Coats. Yelle v. U. S. Suburban Press, 216 Ga. App. 46 (453 SE2d 108) (1995).

The sheriff’s return of service shows that service was made at Robert Coats’s residence by handing a copy of the complaint and summons “into [the] hands of Chris Coats . . . domiciled at the residence of defendant.” In support of the motion to dismiss, Robert Coats and his adult son, Chris Coats, gave affidavits which stated that Chris Coats did not reside with Robert Coats when the deputy sheriff made the attempted service. Rather, Chris Coats and his wife were visiting with Robert Coats at the time. Chris Coats stated that his father was not home at the time the deputy attempted service and that, when his father returned home, he told him the deputy had left the suit for him. The deputy sheriff provided an affidavit stating that he served the suit at Robert Coats’s residence by delivering a copy of the summons and complaint to Chris Coats. He further stated that Chris Coats told him he was Robert Coats’s son and that, when asked if he resided with Robert Coats, he responded, “Yes.” Eight days after giving the affidavit, the deputy testified at a hearing on the motion to dismiss that he could remember serving the papers in the original suit, but he could not recall whom he served or any conversation he had with Chris Coats. The deputy admitted that it was misleading for him to state in the affidavit that Chris Coats told him he resided with Robert Coats. However, he testified further, “[B]ut what I’m saying is if he hadn’t of said yes, then I wouldn’t have served the paper, that he lived at the residence.” In other words, the deputy testified that, although he could not remember the events, based on his usual practice he would not have returned service showing he handed the papers to Chris Coats unless Chris Coats had told him he resided at Robert Coats’s residence.

Thus the trial court was presented with conflicting evidence on the issue of whether proper service was made under OCGA § 9-11-4 (d) (7) on a person residing with Robert Coats. The sheriff’s return of service constituted prima facie proof that Chris Coats resided with Robert Coats, but it was not conclusive and could be traversed by proof that it was untrue. Yelle, 216 Ga. App. at 47. The affidavits of Roberts Coats and Chris Coats provided direct evidence based on personal knowledge that Chris Coats did not reside with Roberts Coats when the attempted service was made. On the other hand, the deputy admitted he had no personal memory of handing the papers to or speaking to Chris Coats. The deputy’s testimony that his usual practice would have been to confirm that Chris Coats resided with Robert Coats before serving papers in reliance on § 9-11-4 (d) (7) was circumstantial evidence, the probative value of which was for the trial court to determine. Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga. App. 699, 701 (215 SE2d 725) (1975).

Coats had the burden of proving improper service, and in order to set aside the return of service showing proper service, the evidence must not only be clear and convincing but the strongest of which the nature of the case will admit. Nucor Corp. v. Meyers, 211 Ga. App. 787, 788 (440 SE2d 531) (1994). Moreover,

[a]bsent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. Whether the evidence is sufficient to overcome facts reflected in a return of service is a question to be resolved by the trial court as the factfinder. Those findings will not be disturbed on appellate review when supported by any evidence.

(Citations omitted.) Franchell v. Clark, 241 Ga. App. 128, 131 (524 SE2d 512) (1999). Applying these standards, the affidavits of Robert Coats and Chris Coats provided sufficient evidence to support the trial court’s conclusion that Chris Coats did not reside with Robert Coats when the attempted service was made and that handing the papers to Chris Coats did not constitute proper service on Robert Coats under OCGA § 9-11-4 (d) (7). The fact that Robert Coats became aware of the suit when he received the papers from his son is no substitute for compliance with the service statute. “[T]here is no authority to dispense with the clear requirements of OCGA § 9-11-4 (d) (7) merely because the defendant may otherwise obtain knowledge of the filing of the action.” Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). The trial court did not abuse its discretion by finding insufficient service of process in the original action and by dismissing the renewal action.

2. There is no basis for Campbell’s contention that Coats’s motion to dismiss filed in the renewal action was untimely because he failed to pursue the insufficient service defense by motion in the original action. Campbell concedes that Coats raised insufficiency of service as a defense in his answer in the original action, but he contends that Coats was also required to move for dismissal on that ground in the original action to preserve this defense in the renewal action. However, by raising insufficiency of service in his answer in the original action, Coats preserved the defense. OCGA § 9-11-12 (b), (h). He did not lose the right to raise this defense in the renewal action and show the original action was void simply because Campbell dismissed the original action before a motion was filed or a ruling was obtained on the defense in the original action.

Judgment affirmed.

Johnson, P. J., Ruffin, Miller, Ellington and Phipps, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I dissent, because the holding of the Supreme Court of Georgia requires that the original action be treated as voidable and not void.

The defendant, Robert Donald Coats, was personally served with the renewal action. While the defendant made an OCGA § 9-11-12 (b) (4) and (5) for failure to serve and insufficient service, the plaintiff voluntarily dismissed the original complaint without prejudice and refiled the complaint as a renewal action to correct such defect as to sufficiency of service. Therefore, the original action was voidable and not void, because the trial court had not ruled on the motion to dismiss at the time of dismissal.

Decided February 26, 2002

Parker & Lundy, William L. Lundy, Jr., Charles E. Morris, Jr., Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

The renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on [grounds] not affecting its merits. Clark v. Newsome, 180 Ga. 97 (178 SE 386) (1935); Cox v. Strickland, 120 Ga. 104 (7) (47 SE 912) (1904); Atlanta K & N R. Co. v. Wilson, 119 Ga. 781 (47 SE 366) (1904), and cases cited therein. The privilege of dismissal and renewal does not apply to cases decided on [the] merits or to void cases, but does allow renewal if the previous action was merely voidable. Patterson v. Douglas Women’s Center, 258 Ga. 803, 804 (3) (374 SE2d 737) (1989). The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [Id.]; Hilton v. Maddox, Bishop, Hayton &c., 125 Ga. App. 423 (1) (188 SE2d 167) (1972). A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.

(Punctuation omitted; emphasis supplied.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994); accord Tate v. Coastal Utilities, 247 Ga. App. 738, 740 (1) (545 SE2d 124) (2001). Neither this nor the original action suffered from any deficiency which rendered it void ab initio.

“Defenses which are raised in the renewal action will be adjudicated only with respect to that which occurred subsequent to refiling.” Hobbs v. Arthur, supra. Thus, the trial court erred as a matter of law in dismissing the renewal action, because it found that the service in the original action was insufficient, which made such action voidable and not void. Id.

Magruder & Sumner, J. Clinton Sumner, Jr., Susan D. Taylor, King & Spalding, Lanny B. Bridgers, Steven J. Estep, for appellee.

       These “includ[e] actions that were filed and not served, [Branch v. Mechanics’ Bank, 50 Ga. 413, 418 (1873);] Acree v. Knab, 180 Ga. App. 174 (348 SE2d 716) (1986) and actions in which the court lacks subject-matter jurisdiction. Keramidas v. Dept. of Human Resources, 147 Ga. App. [820, 821 (250 SE2d 560) (1978)].” (Footnote omitted.) Patterson v. Douglas Women’s Center, supra at 804 (4).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0649.
    BUCKLEY v. THE STATE.
    (561 SE2d 188)
   Johnson, Presiding Judge.

Following a bench trial, William Buckley was convicted of two counts of felony sexual exploitation of children and one count of misdemeanor sexual exploitation of children. In his sole enumeration of error, Buckley contends the trial court erred in denying his motion to suppress evidence. We disagree and affirm Buckley’s convictions.

On appeal from a motion to suppress, this Court views the evidence in a light most favorable to support the trial court’s judgment; the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Viewed in that light, the evidence shows that the United States Customs Service was contacted by the German National Police concerning eight images of child pornography that had been recovered by an undercover agent. The screen name of the person who sent the pornographic images was “KUEQ,” a screen name registered to Buckley, who lived in Columbus, Georgia. The Customs Service contacted the Columbus Police Department and sent them copies of the eight images sent over the Internet by Buckley. The images depicted children as young as four years old engaged in acts of vaginal and oral sex. Based on this information, Columbus police obtained a warrant to search Buckley’s home.

During the search, police showed Buckley the eight pornographic images. Buckley’s mother asked Buckley, “Did you do that?” Buckley responded, ‘Yes, mama.” Buckley then informed police that he had no material saved to discs or printed as hard copies. Instead, all the pornographic material was contained on the hard drive of his computer. Officers seized two computers, magazines, videotapes and some computer discs. It was later discovered that Buckley’s hard drive contained over 40,000 photographs, one-third of which involved children. The files were divided into categories based on whether the photographs depicted boys or girls and listed their ages. Buckley’s hard drive contained images of young children engaged in anal, oral and vaginal sex.

After observing the contents of the computer, police obtained a warrant for Buckley’s arrest. During his statement, Buckley admitted that he sent and received images of child pornography. Buckley claimed he requested images of child pornography so he could trade them for adult pornography.

Buckley challenges the trial court’s denial of his motion to suppress, claiming there was no probable cause for the search warrant because the information was received from other law enforcement officers and because the information was “stale.” Both claims lack merit.

In determining whether an affidavit provides sufficient probable cause for issuance of a search warrant, a magistrate must

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

On appeal, we give substantial deference to the magistrate’s decision to issue the warrant, and we construe the evidence in favor of the court’s decision that probable cause existed.

In the present case, the warrant was issued based on hearsay statements from the German National Police and a United States Customs agent. It is well established that hearsay may serve as the basis for the granting of a search warrant as long as there is a substantial basis for crediting the hearsay. And, when a police officer or a government official is the informant, the reliability of the informant is presumed as a matter of law. Here, the mere averments as to who provided the information were enough to support a presumption of reliability, credibility and accuracy. Therefore, the hearsay statements could serve as the foundation for probable cause.

As for Buckley’s claim that the information was stale, the mere passage of time does not equate with staleness. An officer’s inference that items sought will be at the place to be searched requires no more than a “fair presumption” to be reasonable. The magistrate must merely “view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.” Although three months had passed since the eight pornographic images were received in Germany, the Columbus police had information that Buckley continued to reside at the place to be searched. In addition, the information sought was stored on a computer and not a perishable item. The trial court did not err in denying Buckley’s motion to suppress.

Decided February 26, 2002.

Hagler, Hyles & Adams, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Michele C. Ivey, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Sanders v. State, 247 Ga. App. 170 (543 SE2d 452) (2000).

       (Citation and punctuation omitted.) Jones v. State of Ga., 249 Ga. App. 64, 66-67 (1) (547 SE2d 725) (2001).

        Roberson v. State, 246 Ga. App. 534, 535 (1) (540 SE2d 688) (2000).

       See Devier v. State, 247 Ga. 635, 637 (4) (277 SE2d 729) (1981).

        Williams v. State, 239 Ga. App. 671, 672 (522 SE2d 43) (1999); Tuzman v. State, 145 Ga. App. 761, 766 (2) (A) (244 SE2d 882) (1978).

        Tuzman, supra.

        State v. Towe, 246 Ga. App. 808, 812 (2) (541 SE2d 423) (2000).

       Id.

       (Citations and punctuation omitted.) Id. at 811 (2).


author: Mikell, Judge.

text:
    A01A2086.
    In the Interest of B. W., a child.
    (561 SE2d 199)
   Mikell, Judge.

B. W.’s father appeals the order denying his motion to set aside the juvenile court’s judgment terminating his parental rights. We affirm.

On appeal from an order terminating parental rights, this Court must determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1995). We neither weigh the evidence nor determine the credibility of witnesses; rather, the reviewing court defers to the lower court’s factfinding and affirms unless the appellate standard of review is not met. In the Interest of C. J. V., 236 Ga. App. 770 (513 SE2d 513) (1999).

Construed most favorably to the Georgia Department of Human Resources, the evidence shows that on June 8, 1996, B. W, who was two and a half months old, was taken to an emergency room for treatment of a broken arm. Suspecting abuse, the physicians decided to perform a complete radiographic examination on the baby. Dr. Mark Hudson testified that the test showed multiple rib fractures that were temporally unrelated to the arm injury. He also explained that “[i]t takes a great deal of directed force to fracture the ribs on a child.” A CAT scan revealed “quite a large collection of blood underneath the scalp” that necessitated surgery to relieve the pressure inside the baby’s brain. The infant’s vision was unfocused, leading the physician to suspect an intracranial hemorrhage. Dr. Hudson concluded that the infant’s injuries were consistent with “shaken baby syndrome.”

The hospital notified the Grady County Department of Family & Children Services (the “Department”) as well as the sheriff’s department about the broken arm. B. W.’s mother was summoned for an interview. When asked how the baby’s arm was broken, she claimed that the father had passed out while holding the child after drinking rubbing alcohol mixed with cola. The mother later recanted this statement but offered no further explanation. During the interview, the Department was notified of B. W.’s rib injuries, and the child was taken into protective custody.

The record shows that on March 19, 1997, the father pleaded guilty to one count of cruelty to children for breaking B. W.’s arm. He was sentenced to twenty years, five to serve and fifteen on probation. The child’s mother was tried, convicted, and sentenced to serve 20 years. The record also shows that on July 24, 1997, the father’s parental rights to another child were terminated based on evidence that the child sustained numerous bone fractures while in her parents’ care. That child’s foster care worker testified that the little girl came home from the hospital in a body cast.

1. In considering whether to terminate parental rights, the juvenile court is first required to determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). This determination is made by finding that the child is deprived, that the cause of that deprivation is lack of proper care or control by the parent, and that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A).

In the case sub judice, the father challenges the sufficiency of the evidence to support the court’s determination that the cause of B. W.’s deprivation will likely continue. Specifically, while acknowledging the “serious incident of child abuse,” the father contends that the evidence failed to show that he is presently unfit to parent B. W. This argument is specious. A parent’s past conduct is properly considered in determining whether conditions of deprivation are likely to continue. In the Interest of R. M., 232 Ga. App. 727, 728 (503 SE2d 635) (1998). Although incarceration alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. Stills v. Johnson, 272 Ga. 645, 651-652 (3) (533 SE2d 695) (2000). The father’s plea of guilty to an indictment charging him with “maliciously caus[ing B. W.] . . . cruel and excessive physical pain by breaking [his] left arm” coupled with the evidence recounted in the order terminating the father’s rights to B. W.’s sister constitutes sufficient aggravating circumstances. In the Interest of R. M., supra at 728. It follows that clear and convincing evidence supports the trial court’s findings.

2. The father next contends that the admission into evidence of two medical depositions violated his due process rights because he never received a notice of deposition while incarcerated. The Department asserted that notice had been served upon the father in jail, but the father testified that he never received the notice. Pretermitting whether the admission of this evidence violated OCGA § 9-11-30 (b) (1) , any error was harmless. The father’s counsel argued at the hearing that the depositions should be excluded from evidence because they were merely cumulative of Dr. Hudson’s live testimony. It is axiomatic that the erroneous admission of evidence that is merely cumulative of testimony that has already been presented will not warrant a new trial. Harris v. Tatum, 216 Ga. App. 607, 610-611 (2) (455 SE2d 124) (1995).

3. Finally, the father argues that the court erred in refusing to order the Department of Human Resources to place B. W. with his paternal grandmother, S. W. We disagree.

Where, as here, an order is entered terminating the rights of both parents, OCGA § 15-11-103 (a) (1) requires the court to attempt to place the child with a relative, but only if such placement is in the best interest of the child. In the Interest of L. M. J., 247 Ga. App. 756 (2) (545 SE2d 127) (2001). In the instant case, B. W.’s paternal grandmother, S. W, testified that she knew very little about the child, having seen him only twice. S. W. opined that B. W. did not need to be protected from the father. She also testified that she trusted the father to the point that she might eventually allow him to be alone with B. W. if she were allowed to adopt him. Two foster care caseworkers, Pam Glover and Susan Arnold, testified that placing B. W. with S. W. would not be appropriate. Glover testified that she spoke with S. W. on numerous occasions, and S. W. did not believe that the father had injured the child. Glover expressed concern that the child might be injured while in S. W.’s custody. Arnold testified that B. W. had been hospitalized three or four times before the final incident of abuse and that S. W. was aware of all the hospitalizations and injuries to the child. According to Arnold, S. W. “never once attempted to protect [B. W] by informing the physicians ... of the damage the parents had done.” In addition, Arnold noted that the child was doing very well in foster care. Under these circumstances, we find no abuse of discretion in the trial court’s determination that it was not in B. W.’s best interest to place him with his paternal grandmother. In the Interest of S. K., 248 Ga. App. 122, 129 (3) (545 SE2d 674) (2001).

Decided February 27, 2002.

Paul Fryer, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Williams & Spears, Catherine M. Williams, Robert Culpepper III, for appellee.

Judgment affirmed.

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

       The order also terminated the mother’s rights to B. W., but she does not appeal.


text:
    A01A2212.
    DEKALB COUNTY SCHOOL DISTRICT v. ALLEN.
    (561 SE2d 202)
   Mikell, Judge.

Wendy Allen brought a wrongful death action against DeKalb County School District (“DeKalb County”), its employee, Romeo Henry, and Joey S. Hedgemon after her seven-year-old daughter, Shaniecia Allen (“Shaniecia”), was struck and killed by an automobile driven by Hedgemon. Hedgemon was dismissed from the lawsuit after Allen settled her claims against him. DeKalb County and Henry filed a motion for summary judgment, which was denied. We affirm.

“In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” To prevail at summary judgment under OCGA § 9-11-56 (c), 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 nonmov-ant, warrant judgment as a matter of law.

Viewed most favorably to Allen, the evidence shows that at approximately 6:30 a.m. on December 2, 1998, Allen drove Shaniecia to her bus stop in front of the apartment complex where they lived. Though other residents of the complex were picked up by their school buses inside the complex, Shaniecia’s bus driver had told Allen to have Shaniecia standing at the complex entrance when the bus approached, so that the bus would stay on schedule. Allen normally turned right out of the complex entrance and waited for the school bus near the curb in the westbound acceleration lane, which was adjacent to Hillandale Drive, a two-lane highway. Shaniecia always sat in the back seat on the driver’s side of Allen’s car as they waited for the bus. The bus would stop in the westbound lane on Hillandale Drive near Allen’s car. If the bus stopped at the car door, Shaniecia would exit the car and step onto the bus. If the bus stopped behind the car, Shaniecia would exit the car and walk behind the car in the acceleration lane to board the bus.

On the day that the accident happened, Allen testified that she saw a bus approaching with its yellow lights flashing when she arrived at the front of the complex. The bus was traveling westbound on Hillandale and pulled into the deceleration lane, which was the same lane as the acceleration lane Allen usually waited in, except that it was on the other side of the complex entrance. When the bus stopped, it was partially blocking the complex entrance. By that time, Allen had turned into the acceleration lane and had stopped at the comer of the lane and the complex entrance such that she could see the bus through her rearview mirror.

Allen testified that she never saw the bus’s red lights, only yellow lights, and that she let Shaniecia out of the car once she saw the yellow lights. Allen saw Shaniecia reach the open doors of the bus. Since it was still dark, Allen did not actually see Shaniecia board the bus but assumed that she did so. Allen drove away after she saw the doors open. At that time, she saw the bus flash its high beam lights at her through her rearview mirror, but she thought that the bus driver was simply saying hello.

Allen made a u-tum at the next block and was driving eastbound toward the apartment complex when she saw the bus driving toward her. Allen testified that once she saw the number on the bus, she knew it was not Shaniecia’s bus. She also noticed Shaniecia, who was moving back and forth and waving her arms in the same area where Allen had initially dropped her off. As she approached the complex, Allen saw another car traveling westbound on Hillandale toward her. Allen passed Shaniecia and waited for this car to pass so that she could make a u-tum to pick up Shaniecia. Allen testified that while waiting to turn, “It looked like [Shaniecia] wanted to come toward me and get my attention. She may have thought I was trying to leave her or something.” Allen also stated, “I started to roll my window down. I don’t know if at some point I began to roll the window down so I could say something to her; but I thought that if I say [sic] something, she may think I’m telling her to come out and she would run out, so I didn’t say anything.” Allen did not flash her lights at the oncoming car because she did not think that Shaniecia would run into the street as she had been told to look both ways and not to run into traffic.

The next thing Allen heard was the sound of the car as it hit Shaniecia. Allen exited her car, but returned to check on her son, who was also in the car. She then noticed that the school bus had backed into the entrance to the complex.

The bus driver told the police that he flashed his lights at Allen after he realized the child was not one of his passengers. The bus driver also said that he backed into the entrance of the complex with his flashers on while waiting for the child to get back to her mother. Nelson Brookings, one of the high school students on the bus that morning, stated that when the bus stopped in the deceleration lane of Hillandale Drive on the east side of the apartment complex entrance, a car was already parked in the acceleration lane on the west side of the entrance. A little girl exited the car and began to walk toward the bus, but when she reached the center median of the driveway entrance to the complex, she turned around and walked back to where she had been dropped off. Based on Brookings’ observations, the little girl did not get closer than 20 feet to the bus. Brookings could not recall whether the bus driver opened the door when the girl was walking toward the bus.

Brookings saw Allen drive off, turn around, and drive toward the complex. He stated that as she did so, the bus backed into the east side of the divided driveway of the complex, which would have been the entrance side. When the bus was stopped, no part of it extended into the acceleration or deceleration lane on Hillandale Drive. As the bus waited to turn left onto Hillandale Drive, the little girl ran toward her mother’s car and was struck by an oncoming vehicle.

Hedgemon, the driver of the vehicle that struck Shaniecia, testified that when he first saw the school bus, it was perpendicular to Hillandale Drive with its front facing Hillandale. He recalled that some part of the bus was in the deceleration lane. Though it appeared that the bus was leaving the complex, it was not moving when he first saw it, and none of its lights were activated. Nevertheless, Hedgemon slowed down because he thought that he would probably have to stop. Hedgemon also testified that he would have stopped had he seen flashing lights. Hedgemon first saw Shaniecia when she ran in front of his car before the point of impact. When asked where he was when he struck her, Hedgemon replied, “I would say I was about even with [the bus], as for middle, towards the end of being perpendicular.”

1. In its first enumeration of error, DeKalb County argues that it did not waive its sovereign immunity under OCGA § 33-24-51 by purchasing liability insurance because the accident did not arise out of the “use” of the school bus. We disagree.

In relevant part, OCGA § 33-24-51 provides:

(a) A . . . county [ ] or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county. . . . (b) Whenever a . . . county . . . shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.

There is no dispute that DeKalb County purchased liability insurance to provide coverage for bodily injury or death caused by an accident “resulting from the ownership, maintenance or use” of a covered auto. Thus, the determinative issue here is whether the incident arose from the “use” of the bus.

DeKalb County relies on Brock v. Sumter County School Bd. and Roberts v. Burke County School Dist. in support of its position that the accident did not arise out of the use of the school bus. Both cases, however, are distinguishable from the instant case. In Brock, the children who rode the school bus were instructed to wait for the bus ten to twenty feet from the road and to cross the road only after the school bus arrived. Further, they were to arrive at the bus stop five minutes before the scheduled pickup time. While waiting for the bus, a seven-year-old child suddenly ran into the street and was struck and killed by an oncoming truck. The evidence showed that the child’s mother had also instructed her not to cross the street until the bus arrived. We found that the accident did not involve the use of the bus because the child crossed the street contrary to the orders of the bus driver and her mother. Furthermore, the elidid did not cross the street because of the bus’s arrival. Therefore, we held the county immune from liability.

In Roberts, the decedent was a five-year-old kindergarten student, who walked a half-mile each day to get home after the school bus dropped him off. The parents requested and the school district permitted the irregular drop-off location even though it required the children to walk along a heavily traveled road with no crosswalks and a 55-mph speed limit. The child was walking home with other children when he suddenly ran across the road toward his house and was struck by a van. At the time of the accident, the school bus had traveled approximately two miles from the drop-off location. Our Supreme Court held that the trial court correctly concluded that the accident did not arise out of the use of the bus. Like Brock, the child in Roberts did not run into the street because of the bus driver’s instructions or the presence of the bus.

We express no opinion about whether DeKalb County is liable for this unfortunate accident. However, the analysis that we must apply to determine whether sovereign immunity bars the claim is different from that we would apply to determine liability.

The term “use” of a school bus in a situation such as this, that is, in considering the scope of insurance policy provisions [,] is dependent to a great extent on the circumstances of the case. This is necessarily so because an exact or “bright-line” definition of the term is “elusive, and is not capable of a definition which will leave everyone ‘comfortable.’ ”

In this case, but for the bus’s presence, the child would not have exited her mother’s car and the accident would not have happened. In other words, because of the use of the school bus, the child left the safety of her mother’s car. Regardless of whether the bus in question was the child’s bus, “[t]he bus was still being ‘utilized’ in the plain and ordinary sense of the word.” Therefore, we find that the county is not immune from liability, and the insurance coverage is available to appellees should they prove liability.

2. Next, DeKalb County argues that, as a matter of law, the bus driver did not owe a duty to Shaniecia. We disagree.

We have previously held that the definition of the “use” of the bus does include its loading and unloading of children. Further, “the process of loading a school bus is initiated and controlled directly by the bus driver.” Here, Allen testified that she saw the bus driver open the doors for the child. Brookings averred that he did not know whether the driver opened the doors. In his statement to the police, the bus driver did not address whether he opened the doors for the child. Thus, there remains a genuine issue of fact as to whether the bus driver initiated the loading procedure, assuming the duty of loading.

We have held that the duty of unloading encompasses not only depositing the children outside the bus but assuring that they reach a place of safety, which may include crossing a street. The bus driver stated that he utilized his flashing lights and waited for Shaniecia to return to her mother. Thus, a jury could find that by his conduct, he assumed the duty of unloading. Accordingly, we cannot find that, as a matter of law, the bus driver did not owe a duty to Shaniecia. Should the jury conclude that a duty was owed, whether that duty was breached is also a question for its determination.

3. Lastly, DeKalb County argues that, as a matter of law, Shaniecia assumed the risk of her injuries. We disagree.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that [a plaintiff], without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks.

Further, “[kjnowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.” Moreover, as a child of tender years, Shaniecia can only be said to have assumed the risk if the danger was patent, obvious, and known to her and she was able to appreciate and avoid it.

In this case, there is no evidence that Shaniecia had full actual and subjective knowledge of the danger she faced. Allen testified that Shaniecia had never been on such a busy road. Had the child looked both ways, which is not clear from the record, she still may have run into the street because the bus may have obscured her vision. The evidence regarding the bus’s location is in dispute. Thus, Allen’s general instruction to Shaniecia that she look both ways before crossing the street does not preclude Allen’s recovery.

Decided February 27, 2002

Austin & Sparks, John B. Austin, for appellant.

Thomas, Means, Gillis & Seay, Quinton Seay, Derek M. Wright, for appellee.

We also cannot conclude as a matter of law that Shaniecia voluntarily placed herself in a position of peril. As we discussed in Division 1, but for the presence of the bus, the child would never have left the safety of her mother’s car. A fortiori, there would have been no need for her to cross the street to return to her mother’s car. The question of assumption of the risk is ordinarily reserved for the jury, and summary adjudication is not appropriate except where the evidence is plain, palpable, and undisputed. Accordingly, since DeKalb County has not conclusively established that Shaniecia assumed the risk by plain, palpable, and undisputed evidence, the issue must be determined by a jury.

Judgment affirmed.

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

       Henry, the bus driver, was dismissed in the trial court’s order denying the motion for summary judgment because he was not served.

       (Citation and punctuation omitted.) Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       Id.

       246 Ga. App. 815 (542 SE2d 547) (2000).

       267 Ga. 665 (482 SE2d 283) (1997).

        Brock, supra at 818 (1).

       Id.

       Id.

        Roberts, supra at 668.

       (Citations omitted.) Id. at 667.

       Id.

       See Cawthon v. Waco Fire &c. Ins. Co., 183 Ga. App. 238, 241 (358 SE2d 615) (1987), rev’d on other grounds, 259 Ga. 632 (386 SE2d 32) (1989).

       Id.

        Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 123-124 (329 SE2d 204) (1985).

       (Punctuation and footnotes omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

       (Citation omitted.) Clemmons v. Smith, 246 Ga. App. 643, 644 (1) (540 SE2d 623) (2000).

       See City of Atlanta &c. Recreation Auth. v. Merritt, 172 Ga. App. 470, 471 (1) (323 SE2d 680) (1984).

        Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997).


author: Eldridge, Judge.

text:
    A02A0870.
    STARGELL v. THE STATE.
    (561 SE2d 207)
   Eldridge, Judge.

A Troup County jury convicted Jeffery A. Stargell and his brother, co-defendant Christopher Stargell, of burglary (OCGA § 16-7-1). Following a separate proceeding conducted immediately after the trial in common, the jury convicted the defendant individually of possession of a firearm by a convicted felon (OCGA § 16-11-131). The defendant was sentenced concurrently to twelve years confinement, to serve eight, and the remainder probated. Thereafter, the defendant voluntarily dismissed his motion for new trial; the superior court granted him leave to file an out-of-time appeal; and this appeal followed. Finding no reversible error, we affirm. Held:

1. The defendant contends that the evidence was insufficient to support his conviction for burglary in that the only evidence tying him to the burglary was the uncorroborated testimony of alleged accomplices, Jeremy Marcellious Roland and Mario Williams. “While a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citations and punctuation omitted.) Daniel v. State, 207 Ga. App. 720, 721 (1) (429 SE2d 130) (1993). “The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime . . . may give rise to an inference that he participated in the crime.” (Citations and punctuation omitted.) Moody v. State, 232 Ga. App. 499, 503 (2) (502 SE2d 323) (1998).

Defendant’s denials to the contrary notwithstanding, Roland and Williams testified that they planned and executed the instant burglary with the defendant and his co-defendant brother for the purpose of taking money from the victim’s residence. In addition to this evidence, the victim’s brother who lived next door positively identified the defendant in court as among the perpetrators, describing him as an individual he had seen in the victim’s home before and who on the morning of the burglary had worn blue jeans, a blue Windbreaker, a blue toboggan cap, and plastic gloves. Other evidence of record seized in a search of the defendant’s home after the burglary included clothes found being washed in the residence’s washing machine and a pair of plastic gloves. The clothes were consistent with the testimony of the victim’s brother insofar as he described what the defendant and his accomplices wore at the time of the burglary. Further, a pair of muddy boots was seized during the search, the soles of which matched footprints left in the woods at the crime scene. In testimony given on his own behalf, the defendant admitted that the boots belonged to him. The defendant having been positively identified as a participant in the burglary and circumstantial evidence of his participation therein independent of the testimony given by his accomplices connecting him to the crime otherwise of record, the evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant was guilty of burglary. Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Moody v. State, supra; Daniel v. State, supra.

Decided February 27, 2002.

Peter B. Hoffman, for appellant.

Peter J. Skandalakis, District Attorney, Matthew T. McNally, Assistant District Attorney, for appellee.

2. The defendant also takes issue with the jury instructions given insofar as these suggested a duty to convict. Pertinently, the superior court charged the jury in one instance that it “should convict” the defendant and in another instance that it had a “duty” to convict the defendant if it found no reasonable doubt as to his guilt. Apart from the jury charges complained of, the superior court instructed the jury as to the presumption of innocence, defined “reasonable doubt,” and, when charging the jury as to the form of the verdict, used the pattern jury instruction correctly informing the jurors that they would be “authorized” to find the defendant guilty of burglary in the absence of reasonable doubt as to such offense. While the better practice is to use the pattern jury instruction informing the jury that it would be “authorized” to convict absent reasonable doubt, the instructions of the superior court here suggesting a “duty to convict” in the absence of reasonable doubt do not constitute reversible error. Monroe v. State, 272 Ga. 201, 203 (3) (528 SE2d 504) (2000); Sutton v. State, 262 Ga. 181-182 (2) (415 SE2d 627) (1992). Accordingly, this claim of error is likewise without merit.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” OCGA § 16-7-1 (a).

       Roland and Williams testified as State’s witnesses incident to agreements to plead guilty — Roland to misdemeanor theft by receiving stolen property and Williams to the burglary upon a reduced recommendation on sentence.


text:
    A02A0424.
    AMAECHI v. LIB PROPERTIES, LTD. et al.
    (561 SE2d 137)
   Eldridge, Judge.

On September 13, 2001, plaintiff Elsie Amaechi, pro se, filed a notice of appeal from the August 22, 2001 order of the trial court denying plaintiff’s motion to set aside its order granting summary judgment to Lib Properties, Ltd. and Mark C. Walker. See OCGA § 9-11-60 (d) (2). This appeal comes as a direct appeal from the May 8, 2000 grant of summary judgment instead of as a discretionary appeal from the August 22, 2001 denial of the motion to set aside judgment as indicated in the notice of appeal, although such notice sets out the August 22, 2001 order as the order appealed. Further, the enumeration of error addresses only the grant of summary judgment and not the denial of the motion to set aside. If any attorney failed to properly enumerate the denial of the plaintiff’s motion to set aside a judgment as an error or to cite to the record, then the appeal would be dismissed out of hand for failing to follow the rules of this Court. See Court of Appeals Rule 27 (c) (2); Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000); Brooks v. Fed. Land Bank &c., 193 Ga. App. 591, 592 (2) (388 SE2d 704) (1989) (physical precedent only). However, as a pro se appellant, some indulgence must be given. But no amount of liberality can confer subject matter jurisdiction upon this Court. When a denial of a motion to set aside judgment is appealed, this must be done by timely application for discretionary appeal. OCGA §§ 5-6-35 (a) (8); 9-11-60 (d). Absent the grant of leave to file a discretionary appeal by this Court and the subsequent filing of the timely notice of appeal, this Court does not obtain jurisdiction to consider any issue raised in the motion to set aside a judgment. OCGA § 5-6-35 (b); Bonnell v. Amtex, Inc., 217 Ga. App. 378 (457 SE2d 590) (1995); Brooks v. Fed. Land Bank, supra at 592; Cranman Ins. Agency v. Wilson Marine Sales &c., 147 Ga. App. 590, 591 (249 SE2d 631) (1978), overruled on other grounds, Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).

If the trial court fails to give notice to the party as mandated under OCGA § 15-6-21 (c) of the entry of a final order, the motion to set aside such order should be determined under OCGA § 9-11-60 (g) as a clerical error. See Cambron v. Canal Ins. Co., supra at 148-149 (1). Thus, if the motion is considered by the trial court under OCGA § 9-11-60 (g) instead of under OCGA § 9-11-60 (d), then there exists a right of direct appeal. Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 864 (534 SE2d 547) (2000); Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (1) (451 SE2d 810) (1994); Crawford v. Kroger Co., 183 Ga. App. 836 (1) (360 SE2d 274) (1987). However, where the trial court determines that the proper notice was provided to the party by the trial court and that nonreceipt of the notice was through the negligence of the party in failing to provide the court with a change of address, then the trial court’s determination comes under OCGA § 9-11-60 (d) (2), requiring a discretionary appeal, because the trial court sent the notice to the address the party included in their pleadings, and the party failed to correct such address. Porter v. Tissenbaum, 247 Ga. App. 816, 818 (3) (545 SE2d 372) (2001). Such was the case here, where the trial court determined that it was the plaintiff’s fault that notice was not received. Therefore, this Court never reaches the issue the pro se plaintiff seeks to put before this Court, i.e., whether the trial court erred in granting summary judgment.

When summary judgment has been granted and the trial court fails to give notice to the parties within the term when such order was granted, allowing a timely direct appeal, the party’s sole remedy is to seek to set aside the judgment, because the 30-day time within which to make a direct appeal has expired and the judgment has become final. OCGA § 5-6-34 (a) (1). Any notice of appeal filed after the 30 days fails to give this Court jurisdiction and must be dismissed for want of jurisdiction. Peppers House Restaurant v. Siefferman, 156 Ga. App. 114 (274 SE2d 43) (1980). It is for the trial court to determine from the evidence before it if, in fact, it was the fault of the trial court or of the party as to why no notice of the grant of the summary judgment was not received by the plaintiff, allowing a direct appeal within 30 days of the entry of summary judgment. In this case, the trial court denied the motion to set aside the grant of summary judgment. Absent jurisdiction, this Court cannot now go to the underlying issue of the grant of summary judgment as sought by this pro se plaintiff. Therefore, this Court dismisses this appeal for lack of jurisdiction.

Decided February 8, 2002

Reconsideration denied February 28,2002

Elsie Amaechi, pro se.

Hawkins & Parnell, Christine L. Mast, Kim M. Jackson, Freed & Berman, Gary S. Freed, Aaron B. Chausmer, Kenneth A. Hindman, for appellees.

Appeal dismissed for lack of jurisdiction.

Smith, P. J., and Ellington, J., concur.


author: Andrews, Presiding Judge.

text:
    A00A1778.
    LANE v. THE STATE.
    (561 SE2d 215)
    Decided February 28, 2002.

      Jacqueline J. Herring, for appellant.

      Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.
   Andrews, Presiding Judge.

The decision of the Court of Appeals in this case was reversed by the Supreme Court in Lane v. State, 274 Ga. 751 (559 SE2d 455) (2002). Accordingly, our decision in Lane v. State, 248 Ga. App. 470 (545 SE2d 665) (2001), is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Ruffin and Ellington, JJ, concur.


author: Smith, Presiding Judge.

text:
    A01A2420.
    BRENT v. HIN.
    (561 SE2d 212)
   Smith, Presiding Judge.

Harold Brent appeals from the trial court’s order granting summary judgment to Sourm Hin on the ground that Brent’s claims for loss of consortium and for medical expenses incurred by Brent’s wife were barred by the statute of limitation. Although we conclude that Brent’s loss of consortium claim was governed by a four-year statute of limitation and was not time-barred, we further conclude that any claim for his wife’s medical expenses was barred by the two-year statute of limitation for injuries to the person. In reaching this decision concerning recovery for the medical expenses of Brent’s wife, we are compelled to overrule Brumit v. Mull, 165 Ga. App. 663 (302 SE2d 408) (1983), and Old Dominion Freight Lines v. Martin, 153 Ga. App. 135 (264 SE2d 585) (1980). We therefore affirm in part and reverse in part.

Brent filed this action against Hin on July 24, 2000, for injuries he received in an automobile collision that occurred April 28, 1998. Brent was a passenger in the vehicle being driven by his wife, Mary Brent, when the collision with Hin occurred. By amended answer, Hin raised the defense of the expiration of the statute of limitation and later moved for summary judgment on the ground that the action was barred by the two-year statute of limitation for personal injuries, OCGA § 9-3-33. Brent filed an amendment to his complaint alleging that Mary Brent suffered injuries in the collision and seeking to recover damages for loss of consortium and for Mary Brent’s medical expenses.

In an amended motion for summary judgment, Hin acknowledged that Brent’s newly asserted consortium claim was subject to a four-year statute of limitation and therefore was not subject to summary judgment. He argued, however, that the loss of consortium claim did not include claims for Brent’s wife’s medical bills and moved for partial summary judgment on this claim as well as Brent’s personal injury claim. Summary judgment was granted to Hin with respect to Brent’s consortium claim. The trial court stated that Brent’s “claim for consortium is derivative of his wife’s claim, stemming from her right of recovery which is time barred as a matter of law.” The court further concluded that a claim for loss of consortium does not include medical expenses and granted summary judgment to Hin on this claim as well.

1. Brent argues that the trial court erroneously applied the two-year statute of limitation for personal injuries to his claim for Mary Brent’s medical expenses and that the four-year limitation period for bringing an action for damage to a property right should have been applied.

We do not agree. We considered a similar situation in Branton v. Draper Corp., 185 Ga. App. 820 (366 SE2d 206) (1988). In Branton, the plaintiff-husband sought recovery, among other things, for medical expenses and loss of consortium arising out of injuries incurred by his wife. The trial court concluded that any claims for medical expenses, lost wages, and lost earning capacity were barred by the statute of limitation. Id. at 821. First noting that a consortium claim does not include claims for medical expenses, lost wages, or loss of earning capacity, we stated that a consortium claim “does not extend the period during which damages may be asserted for physical injuries to the person, [tit.],” id. at 821 (1), and we held that the trial court correctly granted summary judgment based on the two-year statute of limitation. Implicit in this holding was the conclusion that medical expenses, lost wages, and loss of earning capacity constituted damages for personal injuries subject to a two-year limitation period.

Here, as in Branton, the medical expenses incurred by Mary Brent arose out of injury to her person. And an injury to the person, for which an action must be brought within two years under OCGA § 9-3-33,

is an injury to the physical body of the person. An injury to one’s health is an injury to the person. The mere fact that one who has received an injury to his person suffers as a result thereof a monetary loss such as expenditures for doctor’s hills . . . does not make the injury any less an injury to the person. The resulting monetary damages are damages resulting from an injury to the person, and not from an injury to a property right.

(Emphasis supplied.) Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754 (1) (181 SE 597) (1935). And “monetary loss or damage resulting from an injury to the person must be recovered within two and not four years.” Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 766 (2) (227 SE2d 397) (1976). Mary Brent’s medical expenses flowed out of her own personal injury claim. Hin was therefore entitled to summary judgment on Brent’s claim for his wife’s medical expenses.

Apparently attempting to circumvent the fact that no action for personal injuries was brought on Mary Brent’s behalf within two years of the collision, and chiefly relying on Brumit, supra, Brent contends that the right to recover Mrs. Brent’s medical expenses constituted a property right belonging to him, subject to a four-year limitation period. In Brumit we held that a husband’s claim for his wife’s medical expenses arising out of a vehicular collision constituted a claim for damage to his own property right and was subject to a four-year limitation period. Id. at 666-667 (4). We expressed a similar view in Old Dominion, supra, which states:

Under the common law and under the statutory law of this State, a husband is bound to support and maintain his wife and fiirnish her the necessities of life (Code § 53-510), and this includes medical and hospital expenses and the expenses of burial. In the event of injury to the wife, the right to recover the expenses incurred for medical, hospital and funeral bills is not in her but in the husband, unless there are special circumstances, as where the wife contracts to be personally bound.

(Citations and punctuation omitted.) Id. at 135-136.

Despite this straightforward language in Brumit and Old Dominion, we do not find these cases to be controlling. We first note that former Ga. Code Ann. § 53-510, the premise underlying the language in Old Dominion, supra, was repealed by Ga. L. 1979, pp. 466, 491-492, § 39. The cases on which Brumit relies for the proposition that a wife’s medical expenses constitute a husband’s property right are either distinguishable from that case or were decided when former Code section 53-510 was in effect. Pinkerton Nat. Detective Agency v. Stevens, 108 Ga. App. 159 (132 SE2d 119) (1963), and Krasner v. O’Dell, 89 Ga. App. 718 (80 SE2d 852) (1954), were decided before the repeal of this statute. Both MARTA v. Tuck, 163 Ga. App. 132 (292 SE2d 878) (1982), and Krasner, supra, held that medical expenses incurred by a minor child constituted damage to a father’s property rights. MARTA, supra at 137-138 (2); Krasner, supra at 718 (2). But these holdings remain supportable under existing statutory law, for under OCGA § 19-7-2, parents are responsible for medical expenses incurred in treatment of their minor children. See Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386, 387 (491 SE2d 843) (1997). It therefore follows that “the right to recover a minor’s medical expenses in a tort action is vested solely in the child’s parents. [Cits.]” Mitchell v. Hamilton, 228 Ga. App. 850, 851 (2) (493 SE2d 41) (1997).

Significantly, even though the right to recover medical expenses incurred by a minor belongs to a parent, we concluded in Mitchell that the expiration of the two-year statute of limitation for personal injury barred the mother’s claims for medical expenses incurred by her daughter. Id. at 851-852. Given the repeal of the former statutory mandate requiring a husband to support and maintain his wife and the axiomatic law that medical expenses constitute damage flowing from personal injury, we therefore cannot extend the logic oí MARTA and Krasner to the facts of this case to conclude that the right to recover a wife’s medical expenses is a property right resting solely in her husband. To the extent that Old Dominion, supra, and Brumit, supra, hold otherwise, they are overruled.

Decided February 28, 2002.

James A. Elkins, Jr., for appellant.

McLaughlin, Hendon, Miller & Croy, James C. McLaughlin, Jr., for appellee.

2. Although we hold that Brent’s claim for Mary Brent’s medical expenses was barred by the two-year statute of limitation for injuries to the person, we conclude that the trial court incorrectly found Brent’s consortium claim to be time-barred. The limitation period for that claim was four years. OCGA § 9-3-33. And the expiration of the two-year statute of limitation for a personal injury claim does not bar a derivative loss of consortium claim. See, e.g., Whitten v. Richards, 240 Ga. App. 719, 722 (2) (523 SE2d 906) (1999); Heis v. Young, 226 Ga. App. 739, 741 (6) (487 SE2d 403) (1997). Because it appears that Mary Brent could have recovered absent the statute of limitation bar, Harold Brent can recover for loss of consortium. See Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 639 (2) (484 SE2d 659) (1997). Compare Henderson v. Hercules, Inc., 253 Ga. 685-686 (324 SE2d 453) (1985) (wife had no derivative claim for loss of consortium because husband’s tort claim barred by Workers’ Compensation Act). Brent’s consortium claim was filed within four years of the date of the collision, and the trial court erred in granting summary judgment to Hin on the ground that it was barred by the statute of limitation.

Judgment affirmed in part and reversed in part.

Blackburn, C. J, Pope, P. J., Andrews, P. J., Johnson, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ, concur.


author: Phipps, Judge.

text:
    A01A2537.
    BESS v. THE STATE.
    (561 SE2d 209)
   Phipps, Judge.

Following denial of his motion for new trial, Donnie Bess appeals his convictions of involuntary manslaughter and driving under the influence of alcohol. The State’s evidence showed that, while intoxicated, Bess caused a fatal collision by grabbing the steering wheel of a car being operated by his girlfriend and causing it to strike another vehicle. Bess challenges the sufficiency of the evidence to support his convictions, the admission of a documentary exhibit, and the effectiveness of his trial lawyer. We affirm because the evidence was sufficient, the document was properly admitted, and Bess has not shown ineffective assistance of counsel.

The evidence showed that Kathelene Davis was driving a Ford Taurus south on Covington Highway, a four-lane road. Her vehicle was in the left southerly lane, and Bess was seated in the front passenger seat. Contemporaneously, Angie Street was driving a Dodge Aspen in front of Davis in the right southerly lane. Prior to trial, both Davis and Bess told police that they had been arguing as a result of Bess’s drinking and that, during the argument, Bess struck Davis on the face and grabbed the steering wheel, causing the car to veer into Street’s car. Street testified that the impact caused her to veer across the centerline of the highway into oncoming northbound traffic. As a result, Street’s car struck a Chevrolet Beretta being driven by Beverly Hinkle in the left northbound lane. Hinkle received fatal injuries.

At trial, Davis recanted her pretrial statement to police and testified that, although Bess struck her while she was driving, he did not grab the steering wheel. Davis gave rather vague testimony suggesting that the accident resulted from Street’s car drifting from the southbound right lane into the left lane and striking Davis’s car. The State’s expert in accident reconstruction testified that although the damage to Davis’s and Street’s cars did not establish which car struck the other, skid marks on the roadway indicated that Davis struck Street’s car. And Street gave unequivocal testimony that she was struck by another vehicle while maintaining her lane.

1. Bess argues that the evidence was insufficient to support his convictions, because the State’s theory of guilt (that Davis’s car struck Street’s as a result of Bess grabbing the steering wheel) is equally consistent with the defense hypothesis of innocence (that Street’s struck Davis’s without Bess having grabbed the steering wheel).

We find no merit in this argument. The jury was fully authorized to reject Davis’s and Bess’s trial testimony and to find, instead, on the basis of the State’s evidence, that the collision occurred in the manner posited by the State.

It is the function of the jury, not the appellate court, to determine the credibility of witnesses and to weigh any conflicts in the evidence. We construe the evidence in a light most favorable to the verdict to determine whether it was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Adjudged by these principles, the evidence in this case was clearly sufficient to support the verdicts.

Moreover, in proving the cause of the collision, the State relied on both direct evidence (Davis’s and Bess’s pretrial statements and Street’s trial testimony) as well as circumstantial evidence (testimony given by the expert in accident reconstruction). Therefore, Bess’s reliance on circumstantial evidence rules is misplaced.

2. Bess contends that the trial court erred in admitting a copy of a letter written on stationery of the Office of Regulatory Services of the Georgia Department of Human Resources (DHR), in which Genella Forrester certified that the individual who drew Bess’s blood following the collision was qualified as a medical technologist.

When a person undergoes a chemical test at the request of a law enforcement officer, only qualified persons may draw the blood. The State may prove the blood drawer’s qualification in various ways, including a certification by the DHR that the person who drew the blood was a medical technologist.

Bess objected to admission of the document claimed to be the DHR certification, on the ground that the State had not laid a proper foundation under the business records exception to the hearsay rule as set forth in OCGA § 24-3-14. As authority, defense counsel relied on Peek v. State. The prosecuting attorney argued that a proper foundation for admission of the document was being laid under OCGA § 24-7-20, which states that the certificate or attestation of a public officer shall authenticate any document or matter pertaining to his office. As authority, the State relied on Bazemore v. State. The trial court agreed with the State’s argument and overruled the defense objection.

In Bazemore, as here, the State submitted a document on stationery of the DHR’s Office of Regulatory Services in which “Reviewing Official” Genella Forrester certified the qualifications of the individual who had drawn the defendant’s blood. This court in Bazemore approved the trial court’s admission of the document. In so doing, the court indicated that a foundation was laid for admission of the document under OCGA § 24-7-20.

Following Bazemore, however, the Supreme Court later concluded in Peek that “the only acceptable methods of proving the qualification of the person who drew a defendant’s blood are the certificate provided for in OCGA § 40-6-392 (e), introduced by means of the busi ness records exception to the hearsay rule ([cit.]), and the testimony of the person who drew the blood.”

Decided February 28, 2002.

Maria Murder-Ashley, for appellant.

But OCGA § 24-7-20 provides a public records exception to the hearsay rule in the same way that OCGA § 24-3-14 provides a business records exception. In concluding that a certification under OCGA § 40-6-392 (e) must be admitted under the business records exception, we do not think that Peek meant to exclude other hearsay exceptions which serve the same function. Under Bazemore, the trial court properly admitted the document at issue under the public records exception.

3. Bess claims that his trial attorney rendered ineffective assistance in failing to do four things: (1) have his mental status evaluated, (2) impeach Davis for bias or motive based on the pendency of her personal injury action against him arising from the collision, (3) remove from the jury "a juror who received a telephone call from jail during the trial, and (4) request a recharge on proximate cause when the jury requested clarification on the distinction between homicide by vehicle and the lesser included offense of homicide by vehicle in the second degree.

Based on testimony given at the hearing on Bess’s motion for new trial and on its knowledge of matters transpiring in these proceedings, the trial court was authorized to find that nothing in Bess’s demeanor or behavior suggested that he was mentally incompetent and that defense counsel made valid strategic decisions in deciding not to impeach Davis for the reason urged by Bess and not to have the juror at issue removed. Although the jury found Bess guilty of homicide by vehicle in the second degree, the trial court did not enter a conviction or sentence him for that offense as it was merged into the involuntary manslaughter conviction. Moreover, the jury’s request for additional instructions on the two grades of homicide by vehicle by no means necessitated a recharge on proximate cause. The trial court was authorized to conclude that Bess did not carry his burden of establishing ineffective assistance of counsel.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, for appellee.

        Anfield v. State, 188 Ga. App. 345, 346 (1) (373 SE2d 51) (1988).

        Wingfield v. State, 226 Ga. App. 448 (1) (486 SE2d 676) (1997).

       OCGA § 40-6-392 (a) (2).

       OCGA § 40-6-392 (e) (1).

       272 Ga. 169 (527 SE2d 552) (2000).

       225 Ga. App. 741, 742 (1) (484 SE2d 673) (1997), vacated on other grounds, 233 Ga. App. 892 (2) (506 SE2d 177) (1998).

       (Emphasis supplied.) Id. at 171.

       Compare Miller v. State, 236 Ga. App. 825, 829 (4) (513 SE2d 27) (1999).

       See generally Head v. Taylor, 273 Ga. 69, 71 (3) (538 SE2d 416) (2000).


author: Ruffin, Judge.

text:
    A01A1987.
    In re ESTATE OF GARMON.
    (561 SE2d 216)
   Ruffin, Judge.

Sara Reese Daniel filed a petition against J. C. Garmon, Jr. (“Garmon”), the executor of J. C. Garmon, Sr.’s will, to force an accounting of the estate’s assets. Daniel, a legatee under the will, alleged that Garmon failed to conduct an accounting of the estate, breached his fiduciary duties to the legatees, and engaged in self-dealing. Daniel requested, among other relief, that the court award her attorney fees under OCGA § 13-6-11. After the trial court entered a consent order resolving all but the dispute over attorney fees, it granted Daniel’s motion for the estate to reimburse the attorney fees she incurred. The court further ordered that Garmon not be reimbursed for the attorney fees he incurred in defending the action. Garmon appeals these rulings, and for reasons that follow, we affirm.

The record shows that the consent order provided for future resolution of the attorney fees issues, which specifically included both Daniel’s claim for fees under OCGA § 13-6-11 and her previously filed motion to enjoin the estate from reimbursing Garmon for his attorney fees. In addressing these two attorney fees issues, the order provided: “If the parties fail to enter into a Consent Order fully settling The Attorneys Fees Claims, the Court will enter an Order setting a date for hearing on the issues raised in The Attorneys Fees Claims, at which time the parties will present evidence and arguments to the Court on said issue.”

Daniel subsequently filed a motion in which she sought reimbursement of her attorney fees and denial of Garmon’s reimbursement of attorney fees from the estate. Daniel argued that she was entitled to an award of fees against Garmon under OCGA § 13-6-11 and, alternatively, reimbursement of her fees from the estate under former OCGA § 53-7-104. In support of her motion, Daniel attached numerous exhibits, including portions of Garmon’s deposition, her attorney’s itemized fee invoices, and the affidavit of her attorney attesting to the reasonableness of those fees. Garmon filed a response to Daniel’s motion, but did not request an evidentiary hearing on the matter. In his response, Garmon stated: “Rather than set forth a lengthy recitation of facts, Respondent will simply present only such rebuttal and explanatory evidence as is necessary to reflect upon the issue of attorney’s fees.” This evidence consisted of Garmon’s affidavit, some exhibits to that affidavit, and the affidavit of his attorney challenging the reasonableness of the fees charged by Daniel’s counsel.

The trial court granted Daniel’s motion, but its order did not include findings of fact and conclusions of law or state the legal basis for its award. Rather, the court merely stated:

That Petitioner’s Motion for Reimbursement of Attorney’s Fees is hereby granted and that she be awarded attorney’s fees from the Estate in the amount of $26,979.55; and Petitioner’s Motion to Deny Respondent Reimbursement of Attorney’s Fees Incurred in Defense of this Litigation is hereby granted.

1. Garmon challenges this order on several grounds. First, Gar-mon asserts that the trial court erred in awarding attorney fees to Daniel because there was insufficient evidence to support the award under both OCGA § 13-6-11 and former OCGA § 53-7-104. It is clear, however, that the trial court did not award the fees under OCGA § 13-6-11. Daniel’s sole claim for fees under that Code section was against Garmon individually. Inasmuch as the court ordered that her fees be reimbursed by the estate, it could not have been granting her claim for fees under OCGA § 13-6-11.

In addressing Daniel’s claim for reimbursement of fees under former OCGA § 53-7-104, we note that Garmon does not argue that the former version of this statute is inapplicable, and we therefore do not address that issue. The Code section provided that “ [i] f the administrator or executor, for any cause, shall decline to litigate any claim, he may assign the claim to a distributee or creditor, who may at his own expense prosecute the same. After the payment of expenses, any proceeds recovered shall be distributed by the administrator or executor.” This Code section allows “an heir who sued out a claim of the estate on assignment of the same to him by the administrator ... to recover his expenses out of the fund brought in.” But it also has a broader purpose. In Estes v. Collum, we observed that,

without specific statutory authority an heir may sue, although the administrator does not assign the claim, or consent to the suit, if the action of the administrator is fraudulent, collusive, and unjustifiable. Why may not such heir — who has done the exact thing provided for in Code § [53-7-104], except that he has been unable to obtain the consent or assignment of the administrator, (which, under Supreme Court decisions, does not preclude his action) — not also realize expenses out of the fund brought in, the ordinary having awarded the same in the exercise of his general jurisdiction over the disposition and distribution of the property of the estate? To hold otherwise would be to destroy the tenor and purpose of the Code section as it has been construed by the Supreme Court.

We likewise reasoned that it is only “equitable that, where one person goes to expense to bring in a fund for a common benefit, it is only fair and right that those who benefit thereby should pay their pro rata part of the expenses of obtaining the fund for distribution.” Thus, in Estes, we affirmed an award of attorney fees from estate assets to an heir who sued the administrator to bring wrongfully taken property back into the estate.

Evidence in this case reflects similar circumstances. The record shows that, as executor, Garmon failed to properly account for certain assets and that he treated other assets of the estate as his own. For example, although Garmon owed a substantial debt to the testator, which he collateralized with a security deed to certain property, he failed to schedule that debt as part of the estate’s assets. In addition, Garmon obtained a $100,000 personal loan, secured it with estate property, and admitted in his deposition that he was several months behind in payments on the loan. On another occasion, Gar-mon secured a $5,090 personal loan with estate property. Garmon also mortgaged property he owned jointly with the estate to obtain a $25,000 personal loan. Apparently, Garmon believed that as long as his personal loans were not in default, the estate should not have been concerned about them.

In the consent order entered by the trial court, the parties agreed that an accountant would audit the estate’s financial records and that Garmon would be required to “reimburse the Estate any funds that were misappropriated from the Estate to his personal account or for any other personal use.” The consent order also required Garmon to separate his personal finances from the estate’s and obtain a “release from creditors of any claim or lien such creditors may have on estate property.” Finally, the consent order required Garmon to pay Daniel a significant sum to compensate for the debt he owed to the estate, but apparently failed to list among the estate’s assets.

Under these circumstances, it is clear that Garmon mismanaged estate assets and that the trial court’s consent order, filed only as a consequence of Daniel’s lawsuit, remedied the mismanagement. Although we do not know whether Garmon will be required to refund other money to the estate for misappropriated funds, he has been required to reimburse Daniel a significant sum due to his failure to disclose a large personal debt he owed to the estate. Furthermore, Garmon’s collateralization of his personal debts with estate assets seriously jeopardized the estate’s ownership of those assets. It is undisputed that Daniel’s suit resulted in a consent order requiring that those assets be removed from the reach of Garmon’s personal creditors and put securely back into the estate where they belonged. Although the collateralized assets had not yet been seized by Gar-mon’s creditors, Daniel’s actions in safeguarding them from such seizure were undoubtedly necessary and provided sufficient grounds to authorize the trial court to order the estate to reimburse her fees.

2. Our opinion in Estes also demonstrates why the trial court was authorized to prohibit the estate from reimbursing Garmon, as executor, for the expenses he incurred in defending the action. OCGA § 53-7-6 (4) permits an executor “[t]o provide competent legal counsel for the estate according to the needs of the estate” and recover those legal expenses from the estate. As stated in Estes, however, “ ‘the purpose of supplying executors with legal advice is for the protection of the estate he represents. The object is not to extricate him from difficulties due to his fault or misconduct.’ ” More recently, we held that an executor “may not bind the estate for attorney fees for the costs of litigation brought on by his own fault or misconduct.” Because the evidence showed that Garmon’s mismanagement of estate assets necessitated Daniel’s suit, he was not entitled to reimbursexnent of his expenses from the estate, and the trial court did not err in prohibiting such a refund.

Decided March 1, 2002.

Talley & Darden, Jeffrey B. Talley, for appellant.

Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Walter Hamberg III, for appellee.

3. Garmon next asserts that the case should be remanded because the trial court failed to issue findings of fact and conclusions of law. We disagree. Garmon has not shown that he ever requested findings of fact and conclusions of law or that he raised this issue before the trial court. Accordingly, that issue is waived.

4. Finally, Garmon asserts that the amount the trial court awarded Daniel for attorney fees is unsupported by the evidence. Garmon argues that “to determine whether there was error in this regard would require findings of fact and conclusions of law by the trial court, as required by OCGA § 9-11-52.” But OCGA § 9-11-52 (c) provides that “[w]hen findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” Garmon has not pointed to any evidence that he moved for findings of fact or conclusions of law after judgment. Thus, Garmon has also waived this ground for appeal.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Though not subject to this appeal, the court also ordered Garmon to reimburse the estate for any attorney fees it previously paid on his behalf.

       Although the consent order provided that these issues would be decided following an evidentiary hearing and the court never conducted such a hearing, Garmon does not claim this as error.

       The editor’s notes preceding former Chapter 7 of Title 53 state that OCGA § 53-7-104 was effective until January 1,1998, at which time a totally revised Chapter 7 became effective. Similarly, OCGA § 53-1-1 (b) of the revised Code states that “[e]xcept as otherwise provided by law, the provisions contained in this chapter and Chapters 2 through 11 of this title shall be effective on January 1,1998; provided, however, that no vested rights of title, year’s support, succession, or inheritance shall be impaired.” As stated above, because Garmon has not raised the issue, we do not address whether former OCGA § 53-7-104 is effective here.

       (Emphasis supplied.) Former OCGA § 53-7-104.

        Estes v. Collum, 91 Ga. App. 186, 192 (1) (a) (85 SE2d 561) (1954).

       Id.

       Id. at 191 (1) (a).

       See id. at 191-192.

       See id. at 192.

       Id. at 192 (1) (a).

        Nesmith v. Pierce, 226 Ga. App. 851, 853 (3) (487 SE2d 687) (1997).

       See id.; see also Ray v. Beneventi, 229 Ga. 209, 213 (3) (190 SE2d 514) (1972) (“If it should be determined that the conduct of the executrix in mismanaging or defrauding the estate brought about the litigation, she will not be entitled to compensation from the estate for attorney’s fees to defend herself against these wrongful acts.”).

       See Cage v. Chase Home Mtg. Corp., 212 Ga. App. 861 (1) (443 SE2d 504) (1994).


text:
    A01A2083.
    ABB RISK MANAGEMENT SERVICE/GEORGIA KAOLIN v. LORD.
    (561 SE2d 225)
   Ruffin, Judge.

In 1984, Fred Lord sustained a work-related injury while working for Georgia Kaolin International (“Georgia Kaolin”) and received total disability benefits. In 1999, Georgia Kaolin sought to suspend Lord’s benefits based on a change of condition. According to the employer, Lord was working for Lord & Lord, a partnership he formed with his daughter. Following a hearing, the administrative law judge found a change of condition and granted Georgia Kaolin’s request. The appellate division affirmed that decision, but on appeal, the superior court reversed. We granted Georgia Kaolin’s application for discretionary appeal, and for reasons that follow, we reverse.

The undisputed evidence, as found by the ALJ, shows that in 1997, while Lord was still receiving disability benefits, he formed Lord & Lord with his daughter. Lord owned fifty-one percent of the partnership, which purchased seven convenience stores. Over the next two years, Lord assisted his daughter, who is legally blind, in operating the business. Although Lord was not paid a salary by Lord & Lord, he daily drove his daughter to work, the bank, and the post office to conduct partnership business. In addition, Lord himself conducted business with suppliers by telephone and applied for a liquor license for one of the stores. Lord signed various tax returns for the partnership, in some instances identifying himself as “manager” of the stores. Likewise, in 1997, Lord filed a lawsuit concerning one of the stores in which he alleged that he “operated” two businesses.

By 1999, Lord & Lord owned only two convenience stores: a Handi Corner in Sandersville and a second store in Thomson. Lord drove his daughter to work at the Handi Comer each day and stayed at the store from two to eight hours. While there, Lord talked on the telephone, walked around the store, talked with customers and employees, carried boxes and trash to the dumpster, brought boxes of merchandise into the store from a storeroom, and occasionally filled the juice machine and helped customers operate the gas pumps. In addition, Lord prepared a bid for a café that was part of the store to provide prisoners’ meals at the local jail. The bid was accepted, and Lord delivered the meals from the café to the jail. On top of these tasks, Lord drove approximately 40 miles from his home to the Thomson store once or twice each week. He also attended meetings for both stores and sat in on interviews, but did not do the actual hiring.

To show a change in Lord’s condition that would authorize a suspension of benefits, Georgia Kaolin was required to establish (1) that Lord had a physical change for the better, (2) that the change enabled him to return to work, and (3) that work was available to decrease or terminate his loss of income. The issue in this appeal concerns the third factor. The appellate division, which adopted the ruling of the ALJ, found that although medical evidence concerning Lord’s condition conflicted with video surveillance tapes showing Lord performing certain tasks, the evidence established that “suitable work is available as [Lord] is working for the business of Lord & Lord.”

Although this finding “must be upheld on appeal to the superior court if it is supported by any evidence,” the superior court applied the common law test for establishing the existence of an employer-employee relationship and concluded that Lord was not an employee of Lord & Lord. The court reasoned that there was no evidence showing that Lord received income from the partnership, that he was subject to the control of the partnership, that the partnership had the right to terminate him, or that his services were of significant value to the partnership. The court concluded that, “[a]t most, the evidence showed that, on a voluntary basis, [Lord] ‘helped out’ at the store.”

We agree with Georgia Kaolin that this ruling was erroneous. The issue in this case is whether there was any evidence supporting the conclusion that Lord had undergone a change in condition because work was available to him as revealed by the tasks he performed for the partnership. In resolving this issue, it is irrelevant whether Lord was subject to the control of, or could have been terminated by, the partnership. Rather, it is more a question of the amount of work he performed and the nature of the tasks. Certainly, the facts found by the appellate division do not show that Lord was a mere passive investor in the convenience stores who frequently visited the stores, but performed virtually no work. Instead, the facts show that he performed daily jobs for the partnership businesses. Because somebody was required to conduct business with suppliers, check on the stores, empty the trash, bring in merchandise, fill the juice machine, and handle the other tasks Lord completed, work must have been available. Certainly, if Lord did not perform these tasks, then the partnership would have been required to pay someone else to do them.

Although the evidence presented could have supported a different finding by the ALJ and the appellate division, on appeal, “ “both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division.’ ” Viewed in this light, there was some evidence to support the finding that Lord was working for Lord & Lord, and the superior court, therefore, erred in disturbing that decision.

Decided March 1, 2002

Wall & Elliott, James M. Elliott, Jr., Christina J. Bevill, for appellant.

Jones, Boykin & Associates, Charles W. Snyder, for appellee.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       See Smith v. Brown Steel &c. Trust Fund, 232 Ga. App. 698, 699 (2) (503 SE2d 592) (1998).

       Although the ALJ and appellate division concluded that there was a change of condition, they also found that Lord still had some physical problems associated with his injury. Accordingly, they awarded Lord continuing medical treatment, but denied him temporary partial disability benefits because it had been more than 350 weeks since the date of the injury. Neither party appealed these rulings.

       (Emphasis omitted.) Id. at 699 (1).

       See Housing Auth., City of Cartersville v. Jackson, 226 Ga. App. 182, 183-184 (2) (486 SE2d 54) (1997).

       See Smith, supra at 699 (2).

       See Cox v. Pic-N-Save B.F.L. Corp., 235 Ga. App. 12-13 (1) (507 SE2d 849) (1998); Smith, supra at 699 (1).

       Cf. Armstrong v. Allstate Ins. Co., 135 Ga. App. 278, 279-280 (2) (217 SE2d 486) (1975) (claimant, who was a mere passive investor in a convenience store, did not undergo a change in condition due to the investment).

        Cox, supra at 13 (1).

       See id.; Smith, supra.


text:
    A01A2354.
    CASEY v. THE STATE.
    (561 SE2d 219)
   Johnson, Presiding Judge.

Calen Casey was convicted of speeding. He appeals, arguing that his conviction should be overturned on the ground that the trial court erroneously admitted the results of a laser speed detection device because there is no evidence that the Georgia State Patrol has a license in compliance with the Federal Communications Commission. Although the state introduced into evidence two FCC radio station licenses for the Georgia State Patrol, Casey argues that these licenses are inadequate because they make no mention of laser speed detection devices. Pretermitting the issues of whether the licenses were adequate and the laser evidence admissible, however, is the fact that even absent the laser evidence, there is other testimony sufficient to support Casey’s speeding conviction.

The Georgia State Trooper who cited Casey for speeding testified that he had been certified in both laser and radar speed detection and that he had been trained to make a visual estimate of a vehicle’s speed before checking the speed with a detection device. He said that on April 22, 2001, he was checking northbound traffic on Interstate 75 in Cherokee County when he saw Casey’s car passing other vehicles. The trooper estimated that Casey’s speed, in miles per hour, was somewhere in the high 80s to low 90s, well in excess of the 65-mph speed limit. He then checked Casey’s speed with his laser device and ticketed him for traveling at a speed of 95 mph.

Decided March 1, 2002.

Abernathy & Ballinger, H. Stephen Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor-General, Nancy D. Carson, Assistant Solicitor-General, for appellee.

Moreover, Casey himself admitted during the trial that he had been speeding. He testified that prior to being stopped he had been traveling at a speed of 85 mph. But he claimed not to know how fast he was going at the time the trooper checked him with the laser device.

“Opinion testimony of an eyewitness may be used to establish speed, its credibility being for the jury to determine, and such evidence is sufficient to authorize a jury to conclude that the speeding laws have been violated.” Here, not only is there the trooper’s eyewitness testimony that Casey was speeding, but there is also Casey’s in-court admission that he was speeding. Consequently, even if we assume, without deciding, that the laser evidence should have been excluded, there was sufficient other evidence to authorize Casey’s conviction.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 40-14-4 provides: “No state, county, municipal, or campus law enforcement agency may use speed detection devices unless the agency possesses a license in compliance with Federal Communications Commission rules. . . .”

       Compare Izer v. State, 236 Ga. App. 282, 284 (511 SE2d 625) (1999) (conviction reversed because erroneously admitted laser speed detection evidence was only evidence supporting speeding conviction).

       (Citations and punctuation omitted.) Nairon v. State, 215 Ga. App. 76, 78-79 (3) (449 SE2d 634) (1994).

       See Jackson v. State, 223 Ga. App. 27, 28-29 (2) (477 SE2d 28) (1996); Nairon, supra.