*1 539 mony puted, upon parents’ regarding appellant’s the return was undis attire physical regarding
as was the evidence
the child’s
condition.
respect
supra,
1,
As
the
discussed in Division
we
enumeration
competent
find that there was sufficient
evidence adduced to author
appellant guilty
charged
a
ize
reasonable trier of fact
find
be
(99
yond
Virginia,
a
v.
reasonable doubt. Jackson
Ralph Kearns, Jr., W. Attorney, Charron, Bernes,
Thomas J. H. District Debra Assis- Attorney, tant District ROAD,
70222. TOBACCO INC. v. CALLAGHAN. Banke, Chief appellant brings interlocutory appeal from an re order
quiring production of statements obtained from certain witnesses investigator employ. an in his The trial court the within the determined that litigation anticipation statements had been obtained in meaning However, OCGA in 9-11-26. reliance this court’s in decision Clarkson Indus. v. 135 (1975), the ruled court that the statements were discoverable without showing obtaining a equivalent of substantial need undue in appellant’s
materials, because of failure to demon impressions, strate that the conclusions, statements contained mental preparer. granted theories of the We application interlocutory appeal apparent in order to resolve an conflict between the Clarkson decision and the decision Warmack Held: (b) (3) clearly type states that of the “only upon showing statements at here issue be a obtained party seeking discovery the the has substantial preparation of his case and he is unable without undue hard- ship equivalent to obtain the substantial of the materials ordering discovery required means. In of such materials when the showing protect against shall court disclosure of an theories mental party concerning attorney representative or other in Ga. Intl. As we stated 731) (1976), (3) (228 statements, documents, is obvious that “it prepa developed by tangible of evidence items and other *2 party only by in care the other are discoverable ration for fully moving must show affirma limited circumstances. tively in the such evidence he that has a substantial wpuld preparation upon an undue and it cause of his case that develop other than extraction evidence means
him to that opposing party. If the trial court is satisfied the files of the from the production, required showing trial court order the has been (or acceptable examination after an in-camera protecting against agreement parties) with a view toward between the impressions, conclusions, or disclosure mental the theories.” of rule, reaffirmed in Warmack This is the correct was supra. Indus., Clarkson is inconsistent Insofar as requiring rule, overruled; court’s order this is and the trial with production it accordingly requested is reversed. Birdsong, McMurray, Carley, J., J.,P. P. reversed. Beasley, Sognier, Pope, J., JJ., Deen, P. Benham, and con- specially. and also curs concurs Presiding Judge, concurring specially. Deen, fully majority opinion, concurring author as the of While with Indus. v. the decision Clarkson 921) (1975) nity opportu especially appropriate it for me to share this is participate At least well commenta its demise. one known absurdity obvious,” [Clarkson] and has “[t]he tor recommended noted has “ relegated to the that the case be ‘derelicts again.” Agnor, Use heard of stream of the law’ and never to be (3rd ed.), p. Discovery 3-4.1, Practice Act under the Civil (1984). clearly statute, The Clarkson court misread long mistake overdue. correction correctly construing Intl. In later in Ga. the statute (1976), this court opportunity first to rec Clarkson and missed its made no reference to tify Mini-Skools, 164 Ga. In Warmack v. the situation. 365) (1982) (also special this concur the author of written rence), tacitly misconstruction, but the Clarkson this court realized nothing clarify issue in determinative the matter. While the requested materials were non-discoverable Warmack was whether they because saturated with mental were exactly Clarkson theories, the issue in not case, court, reflection, the instant the vehicle for this ity opinion’s should have addressed problem presents proper last, then. At the instant case another
purpose, enthusiastically major- and I concur long-standing placing Clark- elimination of the error and son in the river of no return. 1985. Young, Turner, Jr.,
William H. F. Thomas Wayne Ellerbee, Hickman, E. Cameron INSURANCE, 69623. SENTRY A MUTUAL COMPANY
v. ECHOLS et al. Carley, Appellee-insureds instituted the instant action an effort to re- optional personal (PIP) injury protection statutory cover benefits, a *3 penalty, punitive damages appellant-insurer. Appellant from appellees’ including raised several defenses claims, to that of the stat- summary judgment. ute holding limitation, and moved for Without hearing a expressly matter, the trial court denied motion and appellees’ complaint ruled that was not barred the six- Appellant statute of limitation. obtained a certificate of immedi- granted appellant’s application review, ate and this court for interloc- utory appeal. Appellant enumerates as error the failure of the trial court to hearing summary judgment prior ruling hold a on its motion for to thereon. (Code “This court has held that Ann. 81A- 156) ‘requires hearing hearing that a date be set and a conducted summary judgment granted.
before a motion The failure of a on a purpose hearing trial court to do so is error . . . The obvious of a summary judgment provide opportu- motion for is to counsel with an nity persuade provide opportu- the court and to the court with an nity interrogate counsel.’ [Cit.]” Hillis v. First Nat. Bank of Waynesboro, While the above-quoted language grant refers to a rather than a denial of a mo- summary judgment, purpose hearing” tion for the “obvious is not ruling hearing affected the trial court’s ultimate A on the motion. allegations positions parties, serves to illuminate the genuine whether or not the trial court determines that issues of mate- jury necessity rial fact remain Thus, resolution. we find that the