text:
    A00A0954, A00A0955.
    A00A0994.
    PARK PRIDE ATLANTA, INC. v. CITY OF ATLANTA; and vice versa. GREAT AMERICAN INSURANCE COMPANY v. CITY OF ATLANTA et al.
    (541 SE2d 687)
   Pope, Presiding Judge.

On October 9, 1993, Barbara Starr, a Hands On Atlanta volunteer participating in a park beautification project at Adams Park, was killed when a dump truck belonging to the City of Atlanta and being operated by a City employee, Ronnie Glenn, rolled backward crushing her. Her husband, John Starr, was seriously injured in the accident. The City’s Department of Parks, Recreation and Cultural Affairs had furnished the truck and its driver for the project that day. About ten minutes before the incident, Glenn had parked the truck on a hill and left it unattended.

On September 21, 1995, having earlier provided ante litem notice to the City, John Starr, individually and as the executor of the estate of Barbara Starr, filed suit against the City, Glenn, and several employees of the City’s Department of Parks, Recreation and Cultural Affairs. In defending Starr’s wrongful death and personal injury action, the City asserted it was immune to suit because it had been engaged in the performance of a government function, the maintenance and operation of public parks, at the time of the Starr tragedy. Throughout discovery, the City repeatedly denied the existence of any insurance coverage. In April 1997, the City contacted Great American Insurance Company, the insurer for Park Pride Atlanta, Inc., for the first time. Great American responded with a full reservation of rights.

On June 2, 1997, nearly four years after Barbara Starr’s death, the Atlanta City Council passed a resolution authorizing the City attorney to settle the Starr lawsuit for $500,000 and, if necessary, to pursue a claim for indemnification against Park Pride and Great American. The City neither discussed nor sought approval for this settlement from Park Pride notwithstanding the City’s position that Park Pride would ultimately be responsible for the cost of the settlement under an indemnification agreement. Nor did the City obtain the approval of Great American before entering the settlement.

Having resolved the Starr litigation, the City and its truck driver, Glenn, sued Park Pride and Great American on June 23, 1997. The City sought indemnification from Park Pride under a service agreement and sued Great American, Park Pride’s insurer, for breach of contract. The City asserted an additional claim against Park Pride for negligence in the event that Park Pride’s insurance policy with Great American did not provide the coverage desired.

In three interrelated appeals, Park Pride, the City, and Great American appeal the trial court’s rulings on their respective motions for summary judgment. Park Pride appeals the denial of its motion for summary judgment and the grant of summary judgment on the issue of its indemnification of the City. The City asserts that the trial court erred in failing to rule as a matter of law that the claim upon which the City sued Park Pride was covered by the insurance policy. Great American appeals the trial court’s failure to find that no coverage was afforded to the City, that the City otherwise breached conditions precedent to any coverage and so is barred from recovery, and that the City lacked standing to sue Great American.

Case No. A00A0954

In this appeal, Park Pride contends that the trial court erred by granting the City’s motion for summary judgment and in denying its own motion for summary judgment.

1. Park Pride asserts that the City’s attempt to be indemnified for its own negligence violates public policy. It also claims that the language contained in the indemnification agreement is inadequate to require Park Pride to indemnify the City for the City’s own negligence. We agree with the latter contention.

Public policy is reluctant to cast the burden for negligent actions upon those who are not actually at fault. Allstate Ins. Co. v. City of Atlanta, 202 Ga. App. 692, 693 (415 SE2d 308) (1992). Public policy seeks to encourage people to exercise due care in their activities for fear of liability, rather than to act carelessly cloaked with the knowledge that an indemnity contract will relieve such indifference. Id. Unless a contract for indemnification explicitly and expressly states that the negligence of the indemnitee is covered, courts will not interpret such an agreement as a promise to save the indemnitee from his own negligence. Southern R. Co. v. Union Camp Corp., 181 Ga. App. 691, 692 (1) (353 SE2d 519) (1987). Due to public policy concerns, absent explicit language to the contrary, an indemnity agreement cannot be interpreted to hold an indemnitee harmless from its own negligence. Ga. State Tel. Co. v. Scarboro, 148 Ga. App. 390, 391 (2) (251 SE2d 309) (1978). The words of a contract of indemnification, moreover, must be construed strictly against the indemnitee. Id. “[A]nd every presumption is against such intention.” Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226, 230 (144 SE2d 547) (1965). When an indemnity agreement is ambiguous, such ambiguity must be construed against the drafter, here the City. Scarboro Enterprises v. Hirsh, 119 Ga. App. 866, 870 (2) (169 SE2d 182) (1969). In reviewing a contract, “Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language.” Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 801 (2) (165 SE2d 587) (1968).

With those rules of construction in mind, we review the indemnification agreement between Park Pride and the City. Paragraph 4 of the service agreement provided:

Park Pride agrees to protect and hold harmless the City, its officers, agents and employees, from any and all claims, demands, actions, causes of action, suits, damages, loss and expense of any kind whatever kind or nature to any person or to any property for any activity sponsored by or coordinated by Park Pride. Insurance requirements are attached and identified as Exhibit “B.”

Although the sweep of this indemnification wording may initially appear to indemnify the City “against any and all claims,” this language is bereft of any express or explicit statement about coverage for the City’s own negligent acts or omissions done by the City’s own employees. See Southern R. Co., 181 Ga. App. at 691 (1). Because this indemnity contract failed to expressly, plainly, clearly, and unequivocally state that Park Pride would indemnify the City from the City’s own negligence, Park Pride incurred no obligation to indemnify the City for its loss in settling the Starr lawsuit against the City. Id.; compare Gough v. Lessley, 119 Ga. App. 275, 277 (166 SE2d 893) (1969).

Nor does the hold harmless clause in the insurance/bonding agreement authorize a different result. In pertinent part, the insurance agreement provided:

The Contractor [Park Pride] agrees to indemnify and hold harmless the City of Atlanta from any and all losses, expenses, demands and claims against the City of Atlanta sustained or alleged to have been sustained in connection with or to have arisen out of or resulting from the performanee of work by the Contractor [Park Pride] or any SubContractor employed by the Contractor [Park Pride] or any of their officers, agents or employees.

But here, the claims asserted in the Starr litigation did not arise from the performance of work by Park Pride or by anyone employed by Park Pride. No suggestion was even made that Park Pride was in any way responsible for the tragedy or for the use, control, or direction of the City’s vehicle or its driver. On the contrary, the allegations involved only negligent acts and omissions committed by the City, City employees, and City officials. The gravamen of the Starr complaint was that Glenn, an improperly supervised and poorly trained employee of the City, negligently operated a City-owned truck, by failing to turn the wheels and properly secure the brakes and by neglecting to place chocks under the wheels to prevent the truck from rolling downhill. The suit also alleged that the City failed to properly maintain, inspect, and service its dump truck. In these circumstances, Park Pride incurred no obligation to indemnify the City for its own loss in settling the Starr lawsuit lodged against the City. Lester, 118 Ga. App. at 801 (2).

2. Park Pride contends it is entitled to summary judgment on the City’s claim for negligence because the City reviewed and approved the insurance coverage that was procured. Park Pride also argues that the City’s theory of recovery is based on a faulty premise, i.e., if Park Pride’s insurance did not cover the City’s payment to settle the Starr litigation, then Park Pride was negligent in obtaining insurance.

The service agreement required Park Pride to satisfy certain insurance requirements, and Park Pride did so. The undisputed evidence demonstrates that Park Pride procured both commercial general liability and business automobile insurance. The City was named as an additional insured only as to the commercial general liability insurance and not the automobile policy. Subsection D of the insurance/bonding agreement stated:

In the event the Contractor does not own any automobiles in the corporate name, non-owned vehicle coverage shall apply and must be endorsed on either the contractor’s personal automobile policy or the Comprehensive General Liability coverages (c) required under this contract.

Park Pride obtained a $500,000 policy that provided coverage for nonowned and hired vehicles. Because Park Pride did not own any automobiles in its corporate name, it expressly asked the City to allow it to satisfy liability insurance coverage on the basis of proof of individual automobile insurance. A memorandum directed to the City from William C. Gary, Jr., the Acting Director of the Bureau of Parks, dated September 24, 1991, supported this approach and sought approval for Park Pride to obtain only $500,000 in general liability insurance, a $66,600 fidelity bond, and workers’ compensation coverage. As to liability protection, Gary recommended:

Because Park Pride Atlanta neither owns nor leases automobiles, it is proposed that the automobile liability requirement be met by requiring Park Pride Atlanta employees to submit proof of liability insurance coverage on their personal vehicles. If your approval of the preceding is given, Park Pride Atlanta will move quickly to obtain proof of the necessary coverage so that the execution of the contract can resume.

Dennis E. Stover, the manager of the City’s Risk Management Division, responded by letter of October 8, 1991, as follows: “[t]he Risk Management Division has reviewed the insurance coverages submitted by Park Pride Atlanta and found them acceptable.” Because the City approved the insurance coverage obtained by Park Pride, the City cannot now be heard to complain that Park Pride somehow breached a duty to obtain some other coverage. See Hewett v. Carter, 215 Ga. App. 429, 430 (1) (450 SE2d 843) (1994).

3. In light of the above determinations, we need not address Park Pride’s remaining assertions of error.

Case No. A00A0955

In this appeal, the City claims that the trial court erred in refusing to rule as a matter of law that the claim upon which the City sued Park Pride is a claim covered by the insurance policy. The City contends that under the terms of the policy, the indemnification agreement constituted an “insured contract.”

Subpart 6 of the section pertaining to an “insured contract” expressly excluded coverage for “that part of any contract or agreement that: b. pertains to the loan, lease or rental of an ‘auto’ to you or any of your employees, if the ‘auto’ is loaned, leased or rented with a driver.” Thus, this portion did not apply to this situation.

Although conceding that the commercial general liability policy did not apply, the City asserts that the automobile policy provided coverage. Without question, the Starr incident involved a motor vehicle accident and was investigated and prosecuted by police as such. But, as discussed previously, the automobile section did not designate the City as a named insured. Equally defeating to any automobile liability coverage is the fact that under Section II — Liability Coverage, the policy’s definition of “insured” specifically does not include “the owner or anyone else from whom you hire or borrow a covered ‘auto.’ ”

Robert R. Hamby, an independent insurance broker whose agency procured the policy with Great American for Park Pride, testified that it was never the intent of the insurance contracts to provide any coverage to the City for City vehicles or for City employees. Hamby explained that the insurance coverage was not designed to create liability for Park Pride to defend the City for the City’s own actions but was obtained to fulfill Park Pride’s obligation to protect the City from claims for which Park Pride was the alleged wrongdoer. See Batson-Cook Co., 112 Ga. App. at 230. Hamby testified that the coverage was designed to protect the City in the event that Park Pride did something that created liability for the City but not the reverse.

Michael Marklay, a litigation specialist with Great American, explained that Park Pride’s insurance policy with Great American would have provided coverage if a person from Park Pride had caused an accident or became involved in an accident while operating a City vehicle. But here, it is undisputed that it was a City employee, being paid by the City, who was operating the City’s vehicle at the time of the incident. Marklay testified, “I see no way that a City person using a City vehicle could be covered by this policy.” In light of this evidence, it cannot be said that the trial court erred in denying the City’s motion. Mountain Bound v. Alliant FoodSvc., 242 Ga. App. 557 (530 SE2d 272) (2000).

Case No. A00A0994

In this appeal, Great American contends that it was entitled to summary judgment because Park Pride’s policy did not afford any coverage to the City. Great American further asserts that the City is otherwise barred from recovery due to the City’s breach of conditions precedent to any coverage.

Even assuming solely for the sake of argument only that the City had been entitled to insurance coverage for the tort claims asserted in the Starr lawsuit, the City’s blatant failure to provide proper notice to Great American forecloses coverage as a matter of law. Southeastern Express Systems v. Southern Guaranty Ins. Co., 224 Ga. App. 697, 702 (482 SE2d 433) (1997). While “as soon as practicable” affords some leeway in providing notice of a claim or suit or occurrence to an insurer, a lengthy, unjustifiable delay may be found as a matter of law to have been so unreasonable as to foreclose coverage. Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419, 420-421 (2) (385 SE2d 97) (1989).

Decided November 7, 2000.

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Charles B. Waters, Jr., for Park Pride Atlanta, Inc.

Phears & Muldovan, H. Wayne Phears, Wendy A. Jacobs, Kelly M. Fitzgerald, Richard O. Samms, Sarah I. Mills, Kendric E. Smith, for City of Atlanta.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, for Great American Insurance Company.

Notwithstanding the policy’s requirement of prompt notice to Great American about any claim or occurrence, it is undisputed that the City did not notify Great American about the incident until April 9, 1997, nearly three and a half years after it occurred. This delay was unreasonable as a matter of law, especially since the record demonstrates that the City received ante litem notice of Starr’s claims on December 21, 1993. Moreover, the City, as the drafter of the service agreement which included the insurance provisions, was obviously responsible for knowing the contents of its own documents. Given the plain terms of the policy, the fact that the City was not named as an additional insured under the automobile section of the policy, the fact that the City’s delay in notifying Great American was unreasonable as a matter of law, and in light of the uncontroverted testimony of Hamby and Marklay, we find that Great American was entitled to judgment as a matter of law. Caldwell, 192 Ga. App. at 421 (2).

Judgment affirmed in Case No. A00A0955.

Judgments reversed in Case Nos. A00A0954 and A00A0994.

Miller and Mikell, JJ., concur.

       After an investigation by police, Glenn was charged with “failure to set brakes and turn wheels,” and homicide by vehicle.

       Park Pride Atlanta, a nonprofit organization that coordinated volunteers to beautify City parks, was not named as a defendant in the Starr complaint. As a community liaison, Park Pride solicited corporate and civic support for park beautification projects, primarily providing service to the Parks and Recreation Department of the City.

       Exclusion 2g of the commercial general liability policy expressly eliminated coverage for bodily injury arising out of the ownership, maintenance, use, or entrustment of any automobile including operations for loading and unloading.

       According to Hamby, the City self-insured its own fleet and ordinarily relied upon its tort immunity, and if the City opted to obtain coverage in the marketplace, the City would have to ‘bid out” its entire fleet.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A1411.
    KELLOGG v. FOOD SERVICE SUPPLIES, INC.
    (541 SE2d 683)
   Phipps, Judge.

The trial court granted summary judgment to Food Service Supplies, Inc. in its suit against Thomas C. Kellogg for breach of guaranty. Kellogg asserts that the trial court erred because there was a jury question whether adequate consideration supported his guaranty of a preexisting indebtedness. Finding no genuine issue as to any material fact regarding the consideration for Kellogg’s guaranty, we affirm.

In January and March 1998, Food Service contracted to supply restaurant equipment to Gulf Coast Restaurants, Inc. When Gulf Coast became delinquent on the amounts owed to Food Service, the parties negotiated a plan to allow Gulf Coast to pay the amounts owed over an extended period.

As part of the negotiations, on September 15,1998, Kellogg, Gulf Coast’s president and sole shareholder, executed an Unconditional Continuing Guaranty of Gulf Coast’s obligations to Food Service. Food Service’s Credit Manager sent the mutually agreed final payment plan to Kellogg in a letter dated September 18, 1998. After making several payments under the plan, Gulf Coast failed to make any further payments.

On December 8, 1998, Gulf Coast filed for protection under Chapter 11 of the United States Bankruptcy Code. Food Service sent a demand letter to Gulf Coast on December 9, 1998, and a notice of default on January 5, 1999. On January 21, Food Service filed its complaint against Kellogg.

Food Service sought summary judgment based on Kellogg’s failure to make any payments under the guaranty. The trial court granted the motion and, relying on Griffin v. Ga.-Pacific Corp., found that the consideration for the guaranty was Food Service’s forbear-. anee from collection efforts against Gulf Coast.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there is no genuine issue of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law.

Kellogg admits that the purpose of the payment plan was to extend the time for payment by Gulf Coast to Food Service under the contracts instead of Food Service beginning actions for collection. Under South Carolina law, forbearance is sufficient consideration to support a promise to guarantee an existing debt. Kellogg cites no authority for his argument that because he presented evidence that Food Service did not rely on his guaranty when it agreed to the payment plan, the jury should decide whether the guaranty was supported by consideration. The only evidence presented by Kellogg is that Food Service neither requested a personal financial statement from him nor investigated his net worth at the time to determine whether he could satisfy the guaranty.

Decided November 7, 2000.

Long, Aldrich & Norman, Henry F. Sewell, Jr., for appellant.

Altman, Kritzer & Levick, James R. Sacca, for appellee.

A guaranty must be based upon sufficient legal consideration, either a benefit to the principal obligor or the guarantor on the one hand or some detriment to the obligee on the other. Kellogg’s guaranty clearly benefitted Gulf Coast because it allowed Gulf Coast to delay payment to Food Service and avoid immediate collection efforts. Kellogg also benefitted as president and sole shareholder of Gulf Coast. The guaranty was executed three days before the final payment plan was issued, and the payment plan specifically stated that it would be guaranteed by Kellogg. It was not necessary for the payment plan to state that it was entered solely in reliance on Kellogg’s guaranty. Food Service’s agreement to extend Gulf Coast’s payment date and forbearance from immediate collection efforts were sufficient consideration for Kellogg’s guaranty.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       177 Ga. App. 852 (1) (341 SE2d 499) (1986).

       As set forth in note 5, infra, the trial court should have applied South Carolina law to the substantive issue in the case.

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Law’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The guaranty provides that any disputes arising under it shall be determined in accordance with South Carolina law.
      In the absence of contrary public policy, our courts normally will enforce a contractual choice of law provision, [cit.], as the parties by contract may stipulate that the laws of another jurisdiction will govern the transaction. [Cit.] A choice of law provision in a contract does not, however, govern the procedural law applied in the forum state. [Cit.]

        Mills v. Berlex Laboratories, 235 Ga. App. 873, 875, n. 1 (510 SE2d 621) (1999). We therefore apply Georgia law on the standard for summary judgment and South Carolina law on the issue of consideration for the guaranty.

        Thomas v. Croft, 31 S.C.L. 113 (2 Rich. 113) (1845).

        Hope Petty Motors v. Hyatt, 310 S.C. 171 (425 SE2d 786) (1992).

       Id.; see also Graphic Prep v. Graphcom, 206 Ga. App. 689, 691 (3) (426 SE2d 183) (1992) (forbearance from commencement of collection efforts constituted benefit to corporation and its principals who executed guaranty; there being no failure of consideration, summary judgment was properly granted).


text:
    A00A1510.
    ADAMS v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (542 SE2d 130)
   Phipps, Judge.

Mary Gordon Adams sued the Metropolitan Atlanta Rapid Transit Authority (MARTA) and its employee, Richard James, for injuries she sustained as a passenger on a bus driven by James. She appeals the jury verdict in favor of MARTA and James, the judgment entered on the verdict and the denial of her motion for new trial. Adams claims that the trial court erred by refusing to give three jury charges she requested, by improperly charging the jury on the law pertaining to the duty a carrier owes to its passengers and by not admitting certain medical records. We find no error with respect to the trial court’s failure to give the requested charges or with the exclusion of the medical records. We do find that the trial court gave an incomplete instruction about the duty a carrier owes to its passengers, but find that it did not deprive Adams of a fair trial. As a result, we affirm.

On December 13, 1996, Adams boarded a MARTA bus at the North Avenue station. Adams was 76 years old and worked full time. She sat down at the front of the bus, but moved at the next stop because the cold air from the door was bothering her. Adams testified that she told James she was moving to the back of the bus and that as she was attempting to sit down, he “stepped on the accelerator and took off,” the bus jerked and she fell. She went to the doctor two days later. Although none of her treating physicians testified, Adams testified that she sustained a concussion and experienced pain in her lower back as a result of the fall, that she received treatment from a chiropractor for a year and that she was unable to return to work after the fall.

James testified that he never heard Adams tell him that she was changing seats and that, if he had, he would have pulled over if necessary. According to James, the incident occurred when a car darted in front of him and caused him to apply the brakes. When he looked back, he saw that someone was on the floor and pulled over on the side of the road. He went to the back of the bus, saw that Adams had fallen and helped her into a seat. James asked Adams a couple of times if she was okay, and she said that she was, but also said that she was feeling a little dizzy. As she got off the bus at her house, Adams told James that her neck was hurting.

1. During the charge conference, Adams’s counsel asked the judge if she needed to place on the record her objections to his failure to give her Request to Charge Nos. 7, 9,10 and 11. The judge told her that she should, but Adams’s counsel never made a specific objection or stated the grounds for her objection. Pursuant to OCGA § 5-5-24 (a), in civil cases, “no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” An objection that merely lists the charge not given is insufficient to preserve the error for review.

OCGA § 5-5-24 (c), however, provides that we must “consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law,” regardless of whether a proper objection was made. Adams contends that the trial court’s failure to give her Request to Charge Nos. 7, 10 and 11 was harmful as a matter of law.

(a) The trial court gave Adams’s Request to Charge No. 6, charging the jury that a “carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” Adams complains of the trial court’s failure to include the definition of “extraordinary diligence” contained in her Request to Charge Nos. 7 and 11. She contends that the court should have charged that extraordinary diligence due to passengers “is that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances.”

OCGA § 5-5-24 (c) must be strictly construed to prevent emasculation of subsection (a) and applies only in rare instances. “To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.”

The trial court correctly instructed the jury that MARTA was under a duty to exercise extraordinary diligence to protect its passengers. We must decide if, under the facts of this case, the court’s failure to define the term “extraordinary diligence” resulted in such a gross injustice as to raise a question of whether Adams was deprived of a fair trial.

The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory.

Applying this rule, Georgia courts have found no error in failing to define such terms as “reasonable doubt,” “corroboration,” “accident,” “spirituous liquors,” “possession,” and “maliciously.”

Although it would be preferable to define the term “extraordinary diligence,” the term is comprised of words of ordinary understanding and is self-explanatory. Thus, we find no harmful error within the meaning of OCGA § 5-5-24 (c) in the trial court’s failure to define this term.

(b) Adams complains that the trial court incorrectly charged the jury on “presumption” by failing to give her Request to Charge No. 10, that

once it is shown that a passenger was injured, a presumption arises that MARTA was negligent, and the plaintiff is entitled to recover all of the damages which were proximately caused by such negligence. This presumption may be rebutted by showing that MARTA was at all times in the exercise of extraordinary care or by proving any other defense of the defendant.

In 1929, the United States Supreme Court declared unconstitutional a Georgia statute that created a presumption of negligence against a railroad when injuries were caused by operation of the railroad, which presumption could be rebutted only if the railroad proved that it had exercised reasonable care. In response to that decision, the General Assembly of 1929 adopted OCGA § 46-8-292 (formerly Code Ann. § 94-1108), making proof of injury prima facie evidence of the lack of reasonable skill and care on the part of the servants of the railroad company. They also enacted OCGA § 46-7-39 (formerly Code Ann. § 68-710), which applied the same burden-shifting standard to buses for hire. In 1992, Chapter 7 of Title 46 of the Official Code of Georgia Annotated was amended, “so as to repeal the presumption in civil actions that certain common carriers are negligent from the mere showing that injury was inflicted by their vehicles.” As a result, OCGA § 46-7-39 was repealed.

In summary, the legal presumption of negligence against a carrier was codified, found unconstitutional, recodified as a burden-shifting standard and, as to buses for hire, subsequently repealed. The presumption of negligence is therefore no longer valid. As a result, the trial court did not err in failing to give Adams’s Request to Charge No. 10.

2. Adams contends that the trial court improperly instructed the jury that a bus driver is not required to wait until a passenger has reached a seat or to wait until a passenger has had a reasonable time to reach a seat before starting the bus. Adams’s counsel objected to the giving of this charge, arguing that the exercise of extraordinary care may require a bus driver to wait until a passenger is seated in certain circumstances, such as when the passenger is elderly or handicapped.

The trial court’s charge was taken from a statement in Ga. Power Co. v. Watts to the effect that although a railroad is bound not to start the train until a passenger has had a reasonable time to reach her seat, such is not the law with respect to street cars. The law with respect to street cars, as set forth in Watts, is that the plaintiff must show that there was a sudden, violent, unusual and unnecessary jerk of the car. We assume, for the purposes of this case, that these rules of law taken from Watts apply to buses.

Although Adams’s counsel objected to the charge given, she did not request that the court complete the charge by explaining the plaintiff’s burden of proof as set forth in Watts. We must decide if the court’s failure to give a complete statement of the law resulted in such a gross injustice as to raise a question of whether Adams was deprived of a fair trial.

We find that it did not. Adams failed to present evidence sufficient to show that the jerk of the bus was “unnecessary at the particular time and place.” Because she failed to meet her burden of proof, the jury would have been authorized to enter a verdict in favor of MARTA and James even with the complete charge.

3. Adams complains of the trial court’s refusal to admit her Exhibit 5, comprised of medical records related to treatment she received from Grady Memorial Hospital. She claims that the records were relevant to show that her lower back injuries were sustained as the result of her fall on the MARTA bus. In its ruling, the trial court found that the records were a “mishmash,” included information about her diabetes, blood and glucose tolerance and records from an eye clinic and had not been redacted to exclude information not related to her lower back pain.

Adams argues that the records were admissible under OCGA § 24-7-8 because they were certified copies. She confuses authenticity with admissibility.

Where hospital records are properly certified, the effect of such certification is to dispense with preliminary proof of authenticity on the part of the custodian of the records, but not to make admissible any matter contained in the reports which is otherwise subject to objection.

Thus, objection to admission of the medical records on a basis other than authenticity would not be cured by the fact that they were certified.

Adams correctly notes that records containing diagnostic opinions, conclusions and statements of third parties are not admissible if tendered in total, but that relevant portions not subject to such defects may be admissible. Adams, however, tendered all of the medical records as one exhibit and failed to redact or remove those portions that clearly were not relevant to any injuries sustained as a result of her fall or those portions objected to as hearsay. The trial court did not abuse its discretion by rejecting the exhibit in its entirety.

Adams also claims that the documents should have been admitted because MARTA made only a general objection to the exhibit as a whole. In fact, MARTA’s counsel made specific objections to the records before the court ruled the exhibit inadmissible. This argument is without merit.

Judgment affirmed.

Johnson, C. J., and Smith, P. J, concur.

Decided November 7, 2000.

McKinney & Salo, Sonja L. Salo, for appellant.

Amy B. Meyer, Mary L. Davis, for appellees.

        Mays v. Farah U.S.A., 236 Ga. App. 1, 2 (2) (510 SE2d 868) (1999).

       OCGA § 46-9-132.

       OCGA § 51-1-3.

        Moore v. Sinclair, 196 Ga. App. 667, 672 (6) (396 SE2d 557) (1990).

       (Citations and punctuation omitted.) Id.

        Floyd v. State, 58 Ga. App. 867, 871 (1, 2) (200 SE 207) (1938).

       Id. at (2).

        McCallister v. Doe, 181 Ga. App. 602, 603-604 (1) (353 SE2d 89) (1987).

        Kelly v. State, 63 Ga. App. 231, 239 (7) (10 SE2d 417) (1940).

        Slater v. Dodd, 108 Ga. App. 879 (2) (134 SE2d 848) (1964).

        Williams v. State, 129 Ga. App. 103, 106 (5) (198 SE2d 683) (1973).

        Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587) (1985).

        Western & Atlantic R. v. Henderson, 279 U. S. 639 (49 SC 445, 73 LE 884) (1929).

        Tennessee, Ala. &c. R. Co. v. Andrews, 117 Ga. App. 164, 166 (159 SE2d 460) (1968).

       Ga. L. 1992, p. 1179, § 1.

       Id.

       See Darlington Corp. v. Finch, 113 Ga. App. 825, 828 (149 SE2d 861) (1966); see also Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 459 (475 SE2d 188) (1996) (Beasley, C. J., dissenting).

       56 Ga. App. 322, 323 (192 SE 493) (1937).

       Id. at 322.

       Id.

       (Citations and punctuation omitted.) Smith v. State, 141 Ga. App. 720, 722 (8) (234 SE2d 385) (1977).

        Moody v. State, 244 Ga. 247, 249 (4) (260 SE2d 11) (1979).

       See Giles v. Taylor, 166 Ga. App. 563 (1) (305 SE2d 154) (1983) (opinions, statements, evaluations and conclusions in medical records constituted inadmissible hearsay).

        Moore v. Graham, 221 Ga. App. 616, 617 (472 SE2d 152) (1996).


author: Blackburn, Presiding Judge.

text:
    A00A1809.
    PROCK v. THE STATE.
    (541 SE2d 685)
   Blackburn, Presiding Judge.

Robert Ray Prock appeals the portion of the trial court’s order which denied his plea in bar on the charges of sale of marijuana and possession of more than one ounce of marijuana. For the reasons set forth below, we affirm.

“In reviewing a grant or denial of a double jeopardy plea in bar, this Court determines whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” Hill v. State.

On August 18, 1998, Officer Eric Wilson issued a citation to Prock charging him with the sale of an alcoholic beverage to a minor. The citation also contained a summons which required Prock to appear on October 1, 1998, in the Henry County Probate Court. On September 11, 1998, Officer Wilson obtained a final warrant against Prock which charged that on August 18, 1998, Prock sold marijuana and an alcoholic beverage to a minor and also that Prock possessed marijuana on August 27, 1998, when the officer was executing a search warrant. These charges were bound over to superior court. Thereafter Prock failed to appear in Henry County Probate Court on October 1,1998, according to the summons that had been issued, and a nonappearance warrant was issued. Prock was picked up and jailed on the nonappearance warrant on October 18, 1998, and four days later went before Judge Del Buttrill in Henry County Probate Court on the sale of an alcoholic beverage to a minor charge. Prock pled guilty, paid a fine, and received a suspended sentence.

On March 11, 1999, the Henry Superior Court Grand Jury returned an indictment against Prock charging him with three counts: Count 1 charged that Prock furnished an alcoholic beverage to an underage person on August 18, 1998; Count 2 charged that Prock unlawfully sold marijuana on August 27, 1998; and Count 3 charged that Prock unlawfully possessed marijuana on August 27, 1998. Prock filed a plea in bar to the indictment contending that his guilty plea to the charge of selling an alcoholic beverage to a minor constituted a bar to the present prosecution under the double jeopardy statutes of Georgia. The State admitted that it was barred from prosecuting Prock on the sale of an alcoholic beverage to a minor charge. And the trial court granted Prock’s plea regarding that charge but denied the plea on the other charges. The State contends that its prosecution on the remaining charges is not barred.

The Georgia statutes pertaining to double jeopardy offer no protection to Prock in this case. Multiple prosecutions for the same conduct are barred by OCGA § 16-1-7. However, the indictment charges Prock with the sale of an alcoholic beverage to a minor on one day and the possession and sale of marijuana nine days later. These charges arise from wholly unrelated incidents. Therefore, because the present indictment charges crimes which do not arise out of the same conduct, OCGA § 16-1-7 is inapplicable to the present case.

A prosecution is barred by a former prosecution as defined in OCGA § 16-1-8 (b), which provides, in pertinent part:

A prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution . . . [Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution [or] is for a crime with which the accused should have been charged on the former prosecution.

In the present case, the indictment charges two felony violations of the Georgia Controlled Substances Act. See OCGA § 16-13-30 (j). The Probate Court of Henry County did not have jurisdiction over felony charges, OCGA § 40-13-21, and, therefore, the present charges could not have been prosecuted in that court. Thus, OCGA § 16-1-8 (b) does not support a bar to the present charges regarding the alleged violations of the Georgia Controlled Substances Act. See Blackwell v. State (OCGA § 16-1-8 (b) provides no protection when defendant could not have been prosecuted in traffic court for the felony charge presently pending in superior court).

The trial court did not err in denying Prock’s plea in bar.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided November 7, 2000.

Lee Sexton, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

        Hill v. State, 234 Ga. App. 173, 174-175 (1) (507 SE2d 3) (1998).

       Although Prock’s plea in bar filed with the trial court asserts that the pending charges are barred under the double jeopardy clause of the Georgia Constitution, this issue was not supported on appeal and is deemed abandoned. Court of Appeals Rule 27 (c) (2).

        Blackwell v. State, 230 Ga. App. 611, 612-613 (2) (b) (496 SE2d 922) (1998).


author: Mikell, Judge.

text:
    A00A1833.
    GRESHAM v. THE STATE.
    (541 SE2d 679)
   Mikell, Judge.

A jury found James Gresham guilty of one count of entering an automobile with intent to commit theft. On appeal, Gresham argues that the trial court erred by admitting impermissibly suggestive identification evidence. Gresham also challenges the sufficiency of the evidence and the denial of his motion for directed verdict. We affirm.

As recognized in cases such as Shabazz v. State, on appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case.

Viewed in the light most favorable to the verdict, the evidence shows that at approximately 4:00 a.m. on April 9, 1999, Andy Walton heard a car horn from the direction of the home of his neighbors, the Caldwells. He looked out of his window and noticed that the toolbox was open on Mr. Caldwell’s truck. Next, he observed a person exiting the driver’s side of Ms. Caldwell’s car. Walton watched the perpetrator for at least five to eight minutes while his wife called the police. He saw the perpetrator walk between the truck and car a couple of times, then pick up a bicycle and ride away.

Within a minute after the perpetrator left the scene, the police arrived. Though he did not see the perpetrator’s face, Walton described him as an African-American male of medium height and build wearing a light shirt and dark pants. Walton described the bike as a mountain-type bike. One of the officers, Alvin Bearden, left the scene to search for the suspect.

Officer Bearden came face to face with Gresham, who was riding a bicycle toward him. Because Gresham and the bicycle fit Walton’s description, Officer Bearden immediately took Gresham into custody. Officer Bearden returned to the scene with Gresham and the bicycle so that Walton could identify him. At the scene, Walton said Gresham fit the height, build, racial, and clothing description and the bicycle was the same type.

Gresham testified that he did not enter Ms. Caldwell’s car. He explained that he was in the area because he was trying to buy crack cocaine.

1. Gresham contends that the trial court erred in admitting the identification testimony because the showup identification at the time of his arrest was impermissibly suggestive. We disagree.

This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the substantial likelihood of irreparable misidentification. To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty.

“In evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where evidence supports the trial court’s ruling, we will not disturb that ruling.”

Applying these factors, we find that there was not a substantial likelihood of irreparable misidentification. Walton had ample opportunity to observe the suspect. He testified that he observed the perpetrator for five to eight minutes and paid close attention to him while his wife called the police. Gresham fit Walton’s physical description of the perpetrator and was wearing clothes consistent with Walton’s description. Gresham’s bicycle also fit the description of the bicycle that Walton described when he reported the crime. At the scene, Walton was certain of his identification. Having considered the appropriate factors, we find that the identification was properly admitted.

2. In his second and third enumerations of error, Gresham challenges the sufficiency of the evidence and the denial of his motion for a directed verdict. These contentions will be addressed together, as the same standard of review applies.

In relevant part, OCGA § 16-8-18 provides that a person who enters any automobile with the intent to commit a theft or a felony shall be guilty of a felony. Gresham contends that the state did not prove that he was the person who entered the automobile and the only evidence connecting him to the crime was circumstantial. Because all of the state’s evidence was circumstantial, Gresham argues, the state was required to exclude every other reasonable hypothesis except that of his guilt. Gresham is incorrect. Direct evidence of Gresham’s guilt was presented in the form of testimony from Walton. There is no requirement that the direct evidence upon which a criminal conviction is based take the form of a positive identification. A criminal conviction can be based on an eyewitness’ general description of the perpetrator.

Since there is direct and circumstantial evidence of guilt, the circumstantial evidence rule does not control. We note, however, that if all of the evidence in this case were circumstantial, our findings would not change. The question of whether the circumstances in a case are sufficient to exclude every reasonable hypothesis favorable to the accused is primarily a jury question. This Court has explained,

[t]his of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion óf twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.

Decided November 7, 2000.

Wanda G. Johnson, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

The jury did not only have Walton’s testimony to consider in this case. Gresham also testified. It is apparent that the jury concluded that Gresham’s explanation did not present a reasonable hypothesis, which the state would have been required to exclude. As an appellate court, it is not our role to speculate what evidence the jury chose to believe. Accordingly, these enumerations are without merit.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       229 Ga. App. 465 (1) (494 SE2d 257) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Brown v. State, 237 Ga. App. 761, 762 (516 SE2d 810) (1999).

       409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972).

       (Citations and punctuation omitted.) Sabo v. State, 226 Ga. App. 106, 107 (485 SE2d 591) (1997).

        Williams v. State, 241 Ga. App. 670, 671 (527 SE2d 272) (1999).

       The applicable standard of review is that of Jackson v. Virginia, supra, whether any rational trier of fact could have found guilt beyond a reasonable doubt. The same standard of review of the evidence is applicable to the denial of the defendant’s motion for a directed verdict. Miller v. State, 270 Ga. 741 (1) (512 SE2d 272) (1999); Smith v. State, 267 Ga. 502, 503 (3) (480 SE2d 838) (1997).

       OCGA § 16-8-18.

        Price v. State, 180 Ga. App. 215 (348 SE2d 740) (1986) (wherein the only eyewitness could not give a positive identification, but only a general description which was not contested by the defendant).

       See Hatcher v. State, 175 Ga. App. 768 (334 SE2d 709) (1985) (wherein the witness’ identification was based on attributes such as build, coloring, age, and clothing); Price, supra.

        Powell v. State, 130 Ga. App. 588 (203 SE2d 893) (1974). The circumstantial evidence rule provides, “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The trial judge did instruct the jury on this principle of law.

        Walker v. State, 157 Ga. App. 728 (278 SE2d 487) (1981).

         (Punctuation omitted.) Walker, 157 Ga. App. at 730 (1) (citing Smith v. State, 56 Ga. App. 384, 387 (192 SE 647) (1937)).

       Also, the trial court charged the jury on the circumstantial evidence rule.

        Richardson v. State, 168 Ga. App. 312 (308 SE2d 694) (1983).


author: Johnson, Chief Judge.

text:
    A00A2069.
    MARTIN v. THE STATE.
    (541 SE2d 692)
   Johnson, Chief Judge.

Calvin Martin and Abraham Harris were indicted for burglary and robbery. They were tried before a jury, which found them guilty of burglary, but not guilty of robbery. Martin appeals from his burglary conviction, challenging the sufficiency of the evidence and the court’s jury charge. The challenges are without merit, and we therefore affirm the conviction.

At trial, the state presented testimony that Douglas Widener was asleep in his upstairs bedroom when, at about 2:15 in the morning, he heard glass break downstairs. He called the police and then . went downstairs. Widener saw that a small front door window and a larger porch window had been broken. He also saw two men, later identified as Martin and Harris, standing outside on the porch. Martin and Harris were yelling for a man known as “Wild Bill,” who rented a room in Widener’s house. Widener unlocked the door, and Martin and Harris came inside the house. One of them then grabbed Widener around the neck, threatened to cut his throat, and took $340 in cash from Widener’s wallet. They fled from the house, and a short time later a police officer arrived at the scene.

Widener told the officer that the two men had just left and gave the officer a brief description of them. The officer, who had seen Martin and Harris jogging near Widener’s house, left and found the two men a block away from the house. The officer brought Martin and Harris back to Widener’s house, where Widener identified them as the men who had entered the house and taken his money.

A sheriff’s investigator took photographs of the broken windows and also obtained a written statement from Widener about the incident. In the statement, Widener told the investigator, among other things, that one of the men had come through the broken porch window and robbed him.

1. Martin argues that the evidence was insufficient to support his burglary conviction because Widener’s trial testimony that the two men had entered the house through the front door was inconsistent with his pre-trial statement to the investigator that one of the men had come into the house through the broken porch window. While the inconsistency was a matter of witness credibility for the jury to resolve, it was not a flaw fatal to the state’s case.

On appeal from a criminal conviction, the defendant is no longer presumed innocent and the evidence is viewed in the light most favorable to the verdict. An appellate court determines only if a rational trier of fact could find all the essential elements of the crime charged beyond a reasonable doubt; the appellate court does not weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.

While the inconsistency between Widener’s pre-trial statement and his trial testimony provided a basis for Martin to argue to the jury that he should not be found guilty of burglary, it does not mandate the conclusion that, as a matter of law, the state’s evidence was insufficient. Rather, the state presented sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that Martin entered the house by breaking the door and porch windows, and that he did so with the intent to commit a theft inside the house. Because there is enough evidence to support the jury’s finding of all the elements of burglary, Martin’s conviction must be upheld.

2. Martin complains that the court committed reversible error when, in its jury charge on the definition of burglary, it used the word “peijury.” The court charged:

[A] person commits the offense of perjury when without authority that person enters any dwelling or dwelling house of another or into any room or any part of it with the intent to commit a theft. It constitutes the offense of burglary. It is not necessary that it be shown that a break-in occurred or that an actual theft occurred.

It is apparent from this portion of the charge, as well as the rest of the court’s instructions, that the appearance of the word “peijury” in the transcript rather than the word “burglary” was either a mere verbal slip by the judge or a transcription error by the reporter due to the similar sounds of the two words. Assuming that the error was the judge’s and not the reporter’s, such a slip of the tongue is not reversible error if it clearly could not have misled or confused the jury.

Given the trial qourt’s correct use of the word “burglary” throughout the rest of the jury charge, and given that the jurors had the burglary indictment with them in the jury room, we find that the court’s misstatement could not have misled or confused the jury. The misstatement therefore does not amount to reversible error.

3. Martin contends that the court erred by instructing the jury that the defendants were interested in the result of the trial. Contrary to Martin’s contention, the Supreme Court and this court have expressly held that such an instruction is proper. Because Martin and Harris testified, it was appropriate for the trial court to charge that, in determining the defendants’ credibility, the jury could consider their interest, just like any other witness’ interest, in the outcome of the trial.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided November 7, 2000.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

        Smith v. State, 222 Ga. App. 887 (1) (476 SE2d 653) (1996).

        Reese v. State, 241 Ga. App. 350 (1) (526 SE2d 867) (1999).

       Id. at 351 (1); Smith, supra.

       Id.

       See OCGA § 16-7-1 (a); Hayes v. State, 193 Ga. App. 33 (1) (387 SE2d 139) (1989).

       See Hyman v. State, 272 Ga. 492, 495 (3) (531 SE2d 708) (2000).

       Id.

       See Mitchell v. State, 242 Ga. App. 694, 697 (5) (531 SE2d 143) (2000).

        Larry v. State, 266 Ga. 284, 286-287 (3) (466 SE2d 850) (1996); Carver v. State, 203 Ga. App. 197, 204 (3) (416 SE2d 810) (1992) (physical precedent only).

       See Woods v. State, 265 Ga. 685, 687-688 (5) (461 SE2d 535) (1995).


author: Smith, Presiding Judge.

text:
    A00A0933.
    BRYANT v. THE STATE.
    (541 SE2d 80)
   Smith, Presiding Judge.

Johnny Bryant was convicted by a jury of misdemeanor involuntary manslaughter, OCGA § 16-5-3 (b). His motion for new trial as amended was denied, and he appeals. We affirm.

1. Bryant contends the evidence was not sufficient to convict him of involuntary manslaughter. Construed to uphold the verdict, the largely undisputed evidence showed that Bryant, Chief Deputy Sheriff of Randolph County, was on patrol with Officer Tracy Green of the Cuthbert Police Department, when Green noticed a truck but could not see whether it had a license tag. Green, who was driving the patrol car, turned around in an attempt to determine whether this truck indeed had a tag and saw the truck make a sharp left turn “in a reckless manner at a high rate of speed.” Green activated his emergency lights and siren and gave chase. The truck continued speeding and ran through at least three stop signs and one red light. Evidence was also presented that the truck struck the vehicle of another officer and continued to flee, leaving the collision “in full acceleration.”

When Bryant saw this collision, he stated to Green that “we have to stop this guy before he kills somebody.” Bryant later stated to an investigating officer that he “made a conscious decision to stop or slow the vehicle by shooting its tires out.” He stated that he observed no oncoming traffic but also acknowledged that “[o]ur fear was oncoming traffic and what might happen if the chase continued.” He also testified at trial that he feared for the safety of several college students he had seen earlier placing signs along the road. Acting on this decision, Bryant fired his gun outside his window, aiming at the truck’s tires, while Green was driving approximately 90 to 100 mph. He fired six shots from his gun at the truck’s rear tire and reloaded, firing three more shots before his gun “locked down.” He then unsnapped Green’s holster, took Green’s gun, and shot twice more. The second shot shattered the truck’s back window, and the truck left the road and came to a stop. Bryant then approached the truck and discovered that the driver had died from a gunshot wound. At trial, Green acknowledged that the truck driven by the victim did have a tag on it.

Bryant maintains that he raised the affirmative defense of accident, as well as that of justification under OCGA § 16-3-20 (1), (2), and (4), that the State failed to disprove these defenses, and consequently that the evidence was insufficient to convict him. More specifically, he contends he “was engaged in reasonable, lawful conduct, was fulfilling his duties as a government employee . . . and was in the course of making a lawful arrest on a fleeing forcible felon.”

Under OCGA § 16-5-3 (b),

[a] person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

Evidence was presented that Bryant was aiming at the victim’s tires and did not intend to shoot the victim in the head. Furthermore, he apparently believed force was necessary to prevent harm to others, as he observed the victim’s truck strike another police officer’s vehicle. See OCGA § 16-3-21. But the State also presented evidence that he used an unfamiliar weapon to shoot at a moving vehicle, from a moving police car, on a winding road, while engaged in a high speed chase. Under these circumstances, the jury was authorized to find that Bryant committed the lawful act of attempting to stop the truck in an unlawful manner “amount [ing] to such gross negligence and heedless indifference to the rights and safety of the victim that an injury to the victim was reasonably foreseeable.” (Citation and punctuation omitted.) Stewart v. State, 163 Ga. App. 735, 737 (295 SE2d 112) (1982). See also Maloof v. State, 145 Ga. App. 408 (243 SE2d 634) (1978).

2. Bryant contends the trial court erroneously excluded evidence that the chase began in a “high drug area” and that marijuana and a smoking device were found in the victim’s truck. The court found these facts to be irrelevant to the issues on trial. The exclusion of evidence “on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Collins v. State, 235 Ga. App. 852 (2) (510 SE2d 609) (1998). Here, Officer Green began chasing the victim only after the victim began speeding and driving recklessly. Nothing in the record suggests any knowledge, or even suspicion, on the part of Green or Bryant that the victim was using drugs or involved in any drug-related activity. Consequently, the trial court did not abuse its discretion in concluding that the excluded evidence was irrelevant.

We note Bryant’s argument that the State “opened the door” to introduction of the excluded evidence by inquiring of an investigating officer whether the victim had a valid driver’s license on the night he was killed. The prosecutor also asked whether this witness had known people to run from the police when they did not have a driver’s license, and the witness answered in the affirmative. The trial court did not err in continuing to disallow evidence of drug possession by the victim or evidence that the chase began in a high crime area. Following objection by defense counsel and argument outside the jury’s presence, the trial court instructed the jury to disregard the officer’s testimony concerning the victim’s driver’s license. Moreover, even if the prosecutor’s questions concerning the victim’s driver’s license had “opened the door” to the introduction of other evidence of traffic infractions, Bryant has not shown that evidence concerning drug use was relevant to the issues before the jury. We find no error with respect to this contention.

3. Bryant argues that during its charge, the trial court erred by “emphasizing the State’s position that [he] acted in an illegal manner in shooting at the deceased’s vehicle, while failing to state or acknowledge in any way [his] position that no act occurred in an illegal manner.” The trial court defined involuntary manslaughter as defined in OCGA § 16-5-3 (b). The court then charged the jury the following:

The lawful act which is alleged in the indictment is the pursuit of an unidentified vehicle, and the alleged unlawful manner, in the firing of a pistol at the tires of said vehicle in an attempt to stop said vehicle, one of the shots hitting [the victim] in the head and killing him.

We find no merit in Bryant’s contention that this charge constituted error. First, although defense counsel reserved any objections to the charge, Bryant has not pointed “to any specific instruction [he] requested in writing that was not given.” Youhoing v. State, 226 Ga. App. 475, 477 (2) (487 SE2d 86) (1997). But assuming that Bryant preserved his objection for appeal, the language to which he now objects did not offer “a suggestion or scenario or method of guilt,” contrary to his contention. The trial court simply used language similar to that in the indictment to instruct the jury on the application of the crimes alleged against Bryant to OCGA § 16-5-3 (b). The court then instructed the jury on the defenses of justification and accident. Reading the charge as a whole, as we must, see, e.g., Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987), we cannot say that Bryant was in any way prejudiced by the trial court’s instructions.

Decided October 23, 2000

Reconsideration denied November 8,2000

Kenneth W. Musgrove, for appellant.

J. Brown Moseley, District Attorney, Minerva C. Blanchette, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       This case is not one involving the trial court’s refusal to give a charge on lawful act — unlawful manner involuntary manslaughter. We also note that the defendant in this case was a police officer, rather than a private citizen, a fact distinguishing this case from those in which the victim died from a gunshot wound and the defendant claimed self-defense or justification as a defense. In such cases, both the Supreme Court and this court have held that a defendant is not entitled to a charge on lawful act — unlawful manner involuntary manslaughter. See, e.g., Willis v. State, 258 Ga. 477 (1) (371 SE2d 376) (1988); Pullin v. State, 257 Ga. 815, 817 (4) (364 SE2d 848) (1988); Bangs v. State, 198 Ga. App. 404, 405 (2) (401 SE2d 599) (1991).

       The trial court allowed a toxicology report showing that the victim had cocaine in his system at the time of his death.


author: Ruffin, Judge.

text:
    A00A1089.
    FAULKNER et al. v. HOOD et al.
    (539 SE2d 886)
   Ruffin, Judge.

Betty Jean Faulkner, her four siblings, and her mother allege that defendant John Buffington orally agreed to act as their agent to bid at a public auction on land owned by defendant Joseph Fields. According to the plaintiffs, Buffington’s daughter, defendant Beth Buffington Hood, purchased the property and wrongfully refused to convey it to them in accordance with the agreement. The trial court granted the defendants’ motion for summary judgment on the ground that the plaintiffs’ claims were barred by the statute of frauds. We affirm for a different reason — because the alleged agency agreement was too indefinite to be enforceable.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” We review a grant of summary judgment de novo, considering the evidence, and all reasonable conclusions and inferences therefrom, in the light most favorable to the nonmovant. We will, accordingly, affirm a grant of summary judgment if it is right for any reason.

So viewed, the record shows that Fields purchased approximately 63 acres of land from H. L. Butterworth in 1976. In exchange for the land, Fields executed a promissory note in favor of Butterworth, which was to be repaid in monthly installments over 32 years and which was secured by a deed to secure debt on the property. Butterworth died intestate in 1996, leaving a wife and five children — Faulkner, Mary McGonigle, Martha Jones, J. H. Butterworth, and W. L. Butterworth (collectively “the Butterworths”).

At the time of H. L. Butterworth’s death, Fields was delinquent in his payments on the promissory note. The surviving Butterworths wanted to obtain Fields’ property because it adjoined “the old homeplace” where the children grew up and their mother still lived. They consulted attorney Samuel Oliver, who recommended that the estate foreclose on the land, which he said would involve a public auction. The Butterworths agreed, and Oliver sent notice to Fields of the pending foreclosure and advertised the public sale in the local newspaper. According to the Butterworths, Oliver told them not to bid on the property at the sale and not to approach Fields directly to negotiate a solution.

Before the sale, W. L. Butterworth went to discuss the pending foreclosure with Buffington, who, together with his daughter Hood, owned a farm bordering the Fields property. W. L. testified that he told Buffington that the Butterworth family wanted the property back. A few days later, W. L. went to see Buffington again, along with his brother, J. H. According to W. L.,

we talked to [Buffington] about just resuming whatever was owed on [the land], and we would take care with him or whatever it he — he said, well, he wasn’t interested in it no how because there was not enough land. And that’s when we told him we would like for him just to bid for us, and he said he would.

W. L. stated that he hoped Buffington would be able to buy the property by paying only what Fields owed on the note. However, he did not tell Buffington how much to bid and did not set any maximum price. W. L. also stated that Buffington never requested anything in return for bidding on behalf of the family. Finally, W. L. testified that Buffington said he might let his daughter, Hood, do the bidding for him.

J. H. testified that he was not present when his brother asked Buffington to bid on the land for them, but that he understood that Buffington would buy it with his own money and then convey it to the Butterworth family. McGonigle, Jones, and Faulkner testified to the same understanding, apparently based on what W. L. told them. All of the siblings agreed that there was no agreement on how much Buffington would be allowed to bid or on what, if anything, to pay him for his services. The alleged agreement between the Butterworths and Buffington was not in writing.

Hood testified that she learned of the pending foreclosure through her father and decided to purchase the land herself. On the day scheduled for the sale, she went to Oliver’s office, along with Fields, and wrote a check for approximately $44,000 to pay off Fields’ outstanding debt. Accordingly, the public sale did not occur. Later that day, W. L. and J. H. Butterworth met with Oliver, who told them that he had received a check for the amount owed on the property. The following week, at Oliver’s request, W. L. and J. H. signed a document transferring and assigning to Hood the promissory note and deed to secure debt on the property. Although they did not read it, W. L. and J. H. claimed they understood the document to be “a method devised by Defendant Buffington” for acquiring the property so that it could be transferred back to the Butterworths. Fields then executed a warranty deed to the property to Hood, who transferred approximately four acres of the land back to Fields and granted him the right to cut timber on the whole parcel.

Believing that Buffington and/or Hood would transfer the land to them, the Butterworths contacted Buffington multiple times after the sale. Each time, Buffington allegedly told them that “as soon as he got it surveyed and everything, he would turn it back over to us” in exchange for repayment of the $44,000. Eventually, according to the complaint, Buffington told the Butterworths that “anyone has a right to change their mind.”

The Butterworths sued Buffington, Hood, and Fields for fraud and breach of an alleged agency agreement. They alleged that “a contract existed between the Plaintiffs and Defendant Buffington to the effect that Defendant Buffington would take those steps necessary to acquire legal title to the subject property” and then transfer the deed to them, and they claimed that Hood acted as a subagent on behalf of Buffington. The defendants moved for summary judgment on the grounds that (1) the alleged agreement was required by the statute of frauds to be in writing, (2) the agreement was too vague and indefinite to be enforceable, and (3) the Butterworths suffered no damages. The trial court granted the motion on the first ground.

Pretermitting whether the alleged agreement was required to be in writing, we conclude that it was too indefinite. To be enforceable, “an agreement must be expressed plainly and explicitly enough to show what the parties agreed upon, and an agreement expressed in incomplete or incomprehensive terms cannot be enforced.” Assuming, as we must for the purpose of summary judgment, that the testimony of the Butterworths is correct, “[i]t has not been shown, with any reasonable certainty, what the parties were obligating themselves to do.”

First, the parties never agreed upon how much Buffington would pay for the property. In fact, W. L. testified that he did not even discuss the matter with Buffington, except to say that he hoped Buffing-ton would be able to buy the land for the amount of the outstanding debt. The Butterworths argued to the trial court that the absence of an agreement on price was not fatal because “no one was sure what amount of money would be necessary to acquire the property.” While that is true, the Butterworths could have provided their alleged agent with a maximum bid price, or at least a general range of how much they were willing to pay. But there is no evidence that Buffing-ton had any criteria whatsoever for determining how high to bid.

The situation might be different had the parties agreed that Buffington would do whatever was necessary to acquire the land and that the Butterworths would reimburse him no matter how much he had to pay. But the evidence shows that the Butterworths were not willing to purchase the land if, in their estimation, Buffington paid too much for it. When asked during his deposition whether the family would have repaid Buffington had he bid $100,000 to acquire the land, W. L. responded that “we probably would have,” but there was “no deal” on that point. (Emphasis supplied.) Thus, the Butterworths acknowledge that Buffington was not authorized to bid an unlimited amount, but they provide no evidence as to the scope of his alleged agency.

Second, there was no agreement between the Butterworths and Buffington regarding what, if anything, Buffington would receive in return for acting as their agent. W. L. testified that he never discussed this issue with Buffington. And even within the family, there was no consensus. McGonigle testified that she did not know whether Buffington was supposed to receive a fee; Jones stated that she understood that Buffington would not receive a fee; Faulkner said that they planned to give Buffington “a little money for doing this for us, but no amount was ever mentioned”; J. H. Butterworth testified that the family would pay Buffington “whatever he charged to do it for us”; and W. L. Butterworth stated that they “might have paid him if he had asked.” Thus, the key element of what consideration, if any, Buffington was to receive remained undecided. “[I]t is axiomatic that for a contract to be enforceable, the material terms of that contract cannot be left to future negotiation.”

The Butterworths argued to the trial court that the lack of agreement on Buffington’s compensation was unimportant because agents may act gratuitously. The parties could, of course, have elected to enter into an enforceable gratuitous agency relationship. The record shows, however, that they reached no understanding one way or the other as to whether Buffington would be paid. While an agent for hire owes his principal a duty of “diligence, loyalty, and absolute good faith,” a gratuitous agent is liable “only for gross neglect.” Thus, the question of whether Buffington was to be paid was not merely incidental; rather, it determined the extent of his obligations to the Butterworths. The absence of any agreement on this point shows that there was no meeting of the minds on another key element of the alleged contract.

We do not hold that, for an agency relationship to be valid, the principal must always provide detailed directions regarding all of the agent’s transactions. Where such instructions are not explicitly stated, they often may be inferred from established custom or the parties’ course of dealing. But in this case, the Butterworths are alleging that Buffington agreed to act as their special agent for a single, limited purpose — to bid on the Fields property at the foreclosure sale. They do not allege that Buffington represented them as a general agent or in an ongoing capacity. Thus, there is no other evidence in the record from which a trier of fact might infer the scope of Buffington’s authority and fill in the missing elements in the alleged agency contract.

Decided September 28, 2000

Reconsideration denied November 8, 2000.

James N. Butterworth, for appellants.

Stewart, Melvin & Frost, J. Douglas Stewart, for appellees.

As the contract was too indefinite to be enforceable, the trial court did not err in awarding summary judgment to the defendants.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the Butterworths argue that this Court failed to address their fraud claim and that the case should be remanded to the trial court for consideration of that claim. It is plain from the trial court’s written order that the court granted summary judgment in favor of the defendants on all of the Butterworths’ claims, including the tort claim. But on appeal, the Butterworths enumerated as error only the grant of summary judgment as to their contract claim, and their appellate brief addressed only the contract and agency issues. Our Supreme Court has instructed that “[t]he appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors.” Having failed to raise the issue of their tort claim on appeal, the Butterworths are not entitled to have the trial court revisit it now. The motion for reconsideration is therefore denied.

Motion for reconsideration denied.

        Nairon v. Land, 242 Ga. App. 259 (529 SE2d 390) (2000).

       Id.

        Sellers Bros., Inc. v. Imperial Flowers, 232 Ga. App. 687, 689 (3) (503 SE2d 573) (1998).

       Oliver denied making any such statements and said that, to the contrary, he told the family that they should attend the sale and be prepared to bid at least the amount of debt owed by Fields.

       Buffington denied that the Butterworths asked him to buy the Fields property and convey it back to them, and he stated that he “was not in a position to buy anything at that time.” He also said that he did not know that the Butterworths wanted the property for themselves.

       Oliver testified that he understood that the estate was required to accept payment of the debt from Fields or someone acting on his behalf.

       Buffington testified that he merely agreed to tell Hood that the Butterworths wanted the opportunity to purchase the land. According to Buffington, Hood said that she did not have the deeds “straighten[ed],” but she did not say whether she would sell the land back to the Butterworths. Hood denied that Buffington or anyone else ever told her that the Butterworths wanted the land.

       The general rule is that “the authority of an agent to execute a contract or memorandum for the sale of real estate . . . must be evidenced by writing.” Deal v. Dickson, 232 Ga. 885, 886 (1) (209 SE2d 214) (1974); see also Turnipseed v. Jaje, 267 Ga. 320, 322 (477 SE2d 101) (1996). But the Butterworths argue, in essence, that this rule does not apply because the statute of frauds may not be used to perpetrate a fraud, which they claim was the case here. See Chastain v. Smith, 30 Ga. 96, 98 (2) (1860).

        Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (2) (395 SE2d 595) (1990).

        Lemming v. Morgan, 228 Ga. App. 763, 765 (1) (492 SE2d 742) (1997).

        Southeastern Underwriters v. AFLAC, Inc., 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993).

       See Carmichael v. Silvers, 90 Ga. App. 804, 813 (1) (a) (84 SE2d 668) (1954) (payment of compensation not essential to creation of agency).

        Anderson v. Redwal Music Co., 122 Ga. App. 247, 251 (176 SE2d 645) (1970).

       OCGA § 10-6-22.

       See Central of Ga. R. Co. v. Felton, 110 Ga. 597, 600 (1) (36 SE 93) (1900) (in absence of specific instructions, agent may follow general custom or course of dealing).

       See generally Interstate Financial Corp. v. Appel, 134 Ga. App. 407, 412 (1) (215 SE2d 19) (1975) (discussing difference between general agent and special agent).

        Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).


author: Ellington, Judge.

text:
    A99A0601.
    LEE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (541 SE2d 700)
    Decided November 8, 2000.

      Johnson & Ward, Clark H. McGehee, William C. Lanham, for appellant.

      Cooper & Associates, Craig C. Avery, Twanda Turner-Hawkins, for appellee.

      David A. Webster, amicus curiae.
   Ellington, Judge.

Bridget Lee and her daughter received significant injuries in a hit-and-run automobile collision caused by an unknown motorist. Pursuant to her uninsured motorist insurance policies, Lee sought recovery for her own injuries as well as the emotional distress she experienced from witnessing her daughter’s suffering and death. The trial court granted summary judgment to the defendants on Lee’s emotional distress claim. This Court affirmed the trial court’s order. Lee v. State Farm &c. Ins. Co., 238 Ga. App. 767 (517 SE2d 328) (1999).

The Supreme Court granted certiorari and reversed, holding that, under certain circumstances, emotional distress that results from witnessing another’s injury and suffering is compensable. Lee v. State Farm &c. Ins. Co., 272 Ga. 583 (533 SE2d 82) (2000). Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Johnson, C. J., Andrews, P. J., Blackburn, P. J., Ruffin, Barnes and Mikell, JJ., concur.


text:
    A00A1598.
    McNEECE v. THE STATE.
    (541 SE2d 696)
   Ellington, Judge.

Tommy Ladale McNeece stands charged with driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1); driving under the influence of alcohol with an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5); and habitual violator, OCGA § 40-5-58 (c). After a hearing, the trial court denied McNeece’s motion to suppress. Following our grant of his application for interlocutory review, McNeece appeals, contending that his motion to suppress was technically sufficient and that the trial court erred in concluding that the traffic stop which resulted in his arrest was legally permissible. We agree and reverse.

1. McNeece moved to suppress the results of breath, blood, or urine tests, his performance on field sobriety tests, and evidence of his refusal to submit to any test. The trial court found that McNeece’s motion did not state facts showing the search and seizure were illegal and therefore failed to meet the statutory requirements for a motion to suppress. OCGA § 17-5-30 (b) provides a motion to suppress “shall be in writing and state facts showing that the search and seizure were unlawful.” With respect to warrantless searches, the Supreme Court of Georgia noted

many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).

Lavelle v. State, 250 Ga. 224, 227 (3) (297 SE2d 234) (1982). In Lavelle, the Supreme Court held that the trial court erred in dismissing the motion for failure to “state facts” because the defendant’s motion “was sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” Id. In a recent decision, we applied Lavelle and found a motion to suppress sufficient where it contained the following information:

facts showing the date of the search, the general location of the search (i.e., [the defendant’s] vehicle), the items seized in the search, the fact that the search was conducted without a warrant, and the conclusion that the search was unsupported by probable cause or articulable suspicion.

State v. Barnett, 233 Ga. App. 496, 497 (1) (504 SE2d 531) (1998).

McNeece’s motion to suppress contained the information found to be adequate in Barnett. The motion was sufficient to put the State on notice that a warrantless search was involved; that the State would need as a witness at the hearing the officer of the Carroll County Sheriff’s Department who stopped McNeece on Gee’s Lane on October 25, 1998, and conducted the breath tests, field sobriety test, and interrogation; and that the legal issues to be resolved at that hearing included whether the warrantless stop was justified by specific and articulable facts as required by law. The trial court erred in finding that McNeece’s motion failed to meet the requirements of OCGA § 17-5-30 (b). Barnett, 233 Ga. App. at 496-497 (1); see also Hill v. State, 222 Ga. App. 839-840 (2) (476 SE2d 634) (1996); compare Young v. State, 225 Ga. App. 208-209 (1) (483 SE2d 636) (1997) (motion was insufficient because defendant failed to include information obtained at committal hearing).

2.. In addition to finding McNeece’s motion to suppress procedurally deficient, the trial court also denied the motion on the merits, finding the stop was based on specific and articulable facts. McNeece contends the State failed to carry its burden of proving the search was lawful. See OCGA § 17-5-30 (b); State v. Slaughter, 252 Ga. 435, 438 (315 SE2d 865) (1984). To be lawful, an investigative stop of a vehicle must be

based upon specific and articulable facts that, when taken together with the rational inferences arising therefrom, provided the requisite reasonable suspicion to warrant the resulting intrusion. It is established that, in making this determination, we examine whether the detaining officer had a particularized and objective basis for reasonably suspecting that the particular individual stopped was or had been engaged in criminal activity.

(Footnotes omitted.) Thomason v. State, 268 Ga. 298, 301 (2) (a) (486 SE2d 861) (1997). See Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The following facts are undisputed: On October 25, 1998, at about 3:00 a.m., the arresting officer responded to a 911 call of a suspicious vehicle. A resident of Gee’s Lane told the officer a white male got out of a white minivan, possibly a Ford Aerostar, knocked on the door of the residence, then left. The officer left the residence and went looking for any white van "to find out why [the driver] was at the residence, what business he had following the complainant home and just to make sure everything was okay, that there was not going to be a problem later on that night.” The officer pulled over the next white minivan he saw which was three-quarters of a mile away and heading toward, rather than away from, the residence of the caller. There was no evidence that, before stopping the van, the officer verified that it was a Ford Aerostar. There was no evidence that, before stopping the van, the officer observed whether the gender and race of the driver matched the caller’s description. There was no evidence that, before stopping the van, the officer observed any illegal, alarming, or suspicious conduct.

Decided November 8, 2000.

Thomason & Blackmon, Dennis T. Blackmon, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

In Vansant, the Supreme Court of Georgia affirmed the grant of a motion to suppress on similar facts: an officer on alert for a white van allegedly involved in a hit and run stopped a white van about one mile away. 264 Ga. at 321 (2). As in this case, “[t]he officer testified he stopped the white van solely because it was a white van, and admitted that he would have stopped any white van.” Id. We find, as the Supreme Court did in Vansant, that the evidence adduced at the suppression hearing demonstrated that “the detaining officer did not have the requisite particularized basis for suspecting the driver of this particular white van of criminal activity” and that the stop was “an unreasonable governmental intrusion.” Id. Cf. Thomason v. State, 268 Ga. at 299, 301 (2) (a) (lookout was a 13- or 14-year-old Cutlass with distinguishing colors; before stopping vehicle, officers verified that the description matched as to the manufacturer, model, model year, body color, and top color of the car and the driver’s gender and race). The denial of McNeece’s motion to suppress must be reversed.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       See also Buffington v. State, 228 Ga. App. 810, 811-812 (492 SE2d 762) (1997) (although description of vehicle was general, before stopping vehicle, officer observed vehicle committing a traffic violation); State v. Butler, 224 Ga. App. 397, 399 (480 SE2d 387) (1997) (vehicle stopped moments after dispatch matched description as to uncommon model and direction of travel on a specific highway); Brown v. State, 223 Ga. App. 364, 365 (477 SE2d 623) (1996) (before stopping vehicle, officer verified that vehicle make, model, color, and tag number, driver’s physical description, driver’s current location and expected immediate future conduct matched information given by concerned citizen).


author: Eldridge, Judge.

text:
    A00A2303.
    In the Interest of N. Y. et al., children.
    (542 SE2d 137)
   Eldridge, Judge.

The natural father of N. Y. and M. Y. appeals the Whitfield County Juvenile Court’s order extending the temporary legal custody of his children with the Whitfield County Department of Family & Children Services (“DFCS”) under former OCGA § 15-11-41 (o). The standard of review as to cases “involving the termination of parental rights is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. [Cit.]” In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999). Finding no reversible error, we affirm the judgment of the juvenile court. Held:

The termination of parental rights occurs upon the application of a two-step analysis. In the Interest of R. U., 223 Ga. App. 440, 442 (477 SE2d 864) (1996). First, the juvenile court must find clear and convincing evidence that parental misconduct or inability exists under OCGA § 15-11-81 (b). In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (457 SE2d 804) (1994). Second, the court must determine if termination is in the best interests of the children. In the Interest of R. U., supra.

DFCS removed M. Y. and N. Y. from the home in January and March 1999, respectively. N. Y. was then 14 years old; M. Y. was 12. By separate unappealed orders, the juvenile court thereafter adjudicated the children deprived with the consent of the parties. Following a two-day hearing in March 2000, the juvenile court granted DFCS’ motions, extending temporary legal custody of the children with DFCS for a period of one year; granted DFCS’ motion for nonreunification as to the mother; and denied DFCS’ nonreunification motion as to the father. The mother does not appeal from the juvenile court’s order. In a single enumeration of error, the father argues that the juvenile court erred in extending custody of the children with DFCS in that DFCS’ evidence showing his parental unfitness was stale. We disagree.

Viewed in a light most favorable to the juvenile court’s determination, In the Interest of J. M. B., 231 Ga. App. 875, 876 (501 SE2d 259) (1998), the evidence shows that approximately six months before the March 2000 hearing, N. Y., then fifteen, suffered anal intercourse while on the second of two unsupervised visits to her father’s home. Though he subsequently denied knowing what occurred, the father and his new wife, age 18, sat in an adjacent room as N. Y. was sodomized by her boyfriend. On N. Y.’s first unsupervised visit to the home, N. Y. and her boyfriend got engaged with the father’s consent, though he explained that he had given it to avoid alienating her. Eight months before the hearing, the father walked out on psychological testing required by the case plan associated with the court’s initial removal order, delaying its completion. The father thereafter refused to follow through with individual counseling. Dr. David Stevens, a clinical psychologist, testified that on evaluating M. Y. she reported being physically and verbally abused by her father from age six on. M. Y. reported this approximately 11 months before the March 2000 hearing. The father admitted he “whipped [M. Y] with a belt.” Further, a juvenile court intake and probation officer testified that N. Y. had written a suicide note a year before the hearing stating, “she was afraid of her father, that he had threatened to kill her and her mother,” while “screaming and hollering” and using words like “bitch” and “whore.” This evidence of parental misconduct and inability was not outdated. See In the Interest of B. D., supra at 120 (1) (“[I]n a termination case, even evidence that is a year or two old is pertinent. [Cit.]”).

In other testimony, Dr. Stevens testified that he did not favor any attempt to reunify the family until family counseling was complete and that he had “serious concerns about [the father’s] parental judgment.” Dr. Stevens had met with the family only twice at the time of the hearing below. The record of the father’s psychological evaluation, a copy of which was entered in evidence, indicated that the father required individual counseling. In this regard, the juvenile court ordered temporary legal custody of the children extended with DFCS, properly finding that while the father had completed psychological testing, he refused to follow through with individual counseling. The court further found that the “Citizen’s Panel attempted to excuse him from this requirement [individual counseling] so long as [the father] participated in family counseling with the children and so long as the visits were progressing well.” After N. Y. was sodomized, DFCS stopped any further contact between the father and N. Y. In denying M. Y.’s claims of physical abuse, the father testified that M. Y. was a “spoiled child.” In other testimony, the father admitted that his new wife did not work as the mother had, reducing his income. Finally, asked if there were anything he would not do to have the children returned to him, the father testified: “No, I’ve even told [DFCS] that I fully intend on going on through the family counseling because of the divorce and everything that happened. . . .” However, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987).” In the Interest of D. I. W., supra at 646.

Decided November 8, 2000.

Jerry W. Moncus, 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, for appellee.

This evidence authorized the juvenile court to find clear and convincing evidence of parental misconduct or inability and that the children’s deprivation would likely continue or would not be remedied in the absence of an extension of temporary legal custody in DFCS to permit the father to complete individual counseling and to participate in family counseling, as appropriate. In the Interest of D. I. W., supra; In the Interest of B. D., supra. The evidence likewise was sufficient to support a finding that extending DFCS’ temporary legal custody of the children was in their best interests. “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of J. S., 232 Ga. App. 876, 881 (1) (502 SE2d 788) (1998).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The 2000 amendment, effective July 1, 2000, redesignated subsections (b) through (r) of former OCGA § 15-11-41 as subsections (a) through (q) of present OCGA § 15-11-58. Ga. L. 2000, p. 20. Former OCGA § 15-11-41 (o) was redesignated as OCGA § 15-11-58 (n).

       The removal of custody of a child from its parents in favor of DFCS is an action suspending parental rights. Rodgers v. Dept. of Human Resources, 157 Ga. App. 235 (1) (276 SE2d 902) (1981). While such an action does not terminate parental rights in a final sense, id., it necessarily involves the termination of parental rights. It follows that an action extending the removal of a child from its parents and further placing custody in DFCS, as here, also involves the termination of parental rights.

       Parental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that such child’s deprivation is likely to continue or will not be remedied; and 4) that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

        In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994).

       The father testified that he learned his new wife’s age as he married her, the marriage occurring a month after he divorced the mother.

       In any event, the unappealed earlier findings of deprivation as to the children established their status as deprived for purposes of the March 2000 hearing. In the Interest of J. M. B., supra at 878 (1) (a).