text:
    A92A0557.
    BOWERS et al. v. ESTEP et al.
    (420 SE2d 336)
   Sognier, Chief Judge.

Richard Bowers and Linda Bowers brought suit against Southern Railway Company, Mr. Bowers’ employer, and his supervisors David Estep and Donald Adams, seeking to recover compensatory and punitive damages for intentional infliction of emotional distress, violation of provisions of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq. (“GEEHC”), and loss of consortium. The trial court granted the defendants’ motion for summary judgment, and the plaintiffs appeal.

Appellant Richard Bowers has been employed by appellee Southern Railway for approximately 30 years, most recently as the assistant manager of service control in Atlanta under the supervision of appellees Estep and Adams. In 1990 Bowers began experiencing severe claustrophobia and depression, which he contends constitutes a “handicap” under the GEEHC. Bowers alleged in the complaint that Estep and Adams knew of his condition and intentionally harassed, threatened, intimidated, and belittled him and maliciously changed conditions of his job, causing him to take a leave of absence (with full pay and benefits) and be admitted to a psychiatric clinic. Bowers also alleged that this conduct constituted a violation of the GEEHC, OCGA § 34-6A-4 (a). Bowers further contended in an amendment to the complaint that appellee railroad’s denial of his bonus in late 1990 after he filed this handicap discrimination claim was a retaliatory act prohibited by OCGA § 34-6A-5. Both appellants also alleged a claim for loss of consortium as a consequence of these acts of appellees.

1. We address initially appellees’ contention below and in this court that the Federal Employers’ Liability Act, 45 USC §§ 51-60 (“FELA”), provides the exclusive remedy for appellants’ claims. Although the trial court discussed the applicability of FELA in general terms, the court effectively pretermitted the exclusivity issue, basing the summary judgment ruling on the merits of the claims as asserted under Georgia law. While this approach was not raised by appellants in their enumerations of error or challenged by appellees by way of cross appeal, the exclusivity issue is a question of the subject matter jurisdiction of the court under FELA. Lewy v. Southern Pacific Transp. Co., 799 F2d 1281, 1286 (9th Cir. 1986). Since a judgment on a matter not within the court’s jurisdiction is void at all times and may not be waived, Champion v. Rakes, 155 Ga. App. 134, 135 (270 SE2d 272) (1980), we must resolve the issue of subject matter jurisdiction.

It is well established that in enacting FELA, Congress superseded state law remedies in the subject area covered by FELA and provided the exclusive remedy for employees of common carriers injured by the negligence of their employers. E.g., South Buffalo R. Co. v. Ahern, 344 U. S. 367, 371 (73 SC 340, 97 LE 395) (1953); New York Central R. Co. v. Winfield, 244 U. S. 147 (37 SC 546, 61 LE 1045) (1917). Appellants having alleged appellees are liable for acts of appellee railroad’s agents occurring in the course of appellant Richard Bowers’ employment with the railroad, a common carrier engaged in interstate commerce, FELA provides the exclusive remedy for appellants’ claims that fall within the terms of the Act. Erie R. Co. v. Winfield, 244 U. S. 170, 172 (37 SC 556, 61 LE 1057) (1917); Louisville & Nashville R. Co. v. Lunsford, 216 Ga. 289 (116 SE2d 232) (1960); see 45 USC § 51. Since a summary judgment rendered by a trial court will be affirmed by this court if right for any reason, we will consider whether the grant of summary judgment to appellees was correct in the context of FELA’s applicability to appellants’ claims.

2. In Atchinson &c. R. Co. v. Buell, 480 U. S. 557, 567-571 (107 SC 1410, 94 LE2d 563) (1987), the Supreme Court expressly declined to decide whether emotional injury is cognizable under FELA. Acknowledging the divergent views among the various states in the areas of negligent and intentional infliction of emotional distress, id. at 568-570, the court did state that “the question whether one can recover for emotional injury may not be susceptible to an all-inclusive ‘yes’ or ‘no’ answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand.” Id. at 570. Absent a definitive ruling from the Supreme Court, circuit courts addressing the issue subsequent to Buell have concluded that cases seeking recovery for emotional distress must be analyzed on an ad hoc basis by gauging the development of the common law as reflected in the law of the forum state and elsewhere. Outten v. National R. Passenger Corp., 928 F2d 74 (3rd Cir. 1991); Elliott v. Norfolk & Western R. Co., 910 F2d 1224 (4th Cir. 1990). Circuit courts addressing the viability of an emotional distress claim since Buell either have ruled that such a claim is not actionable under FELA as a matter of law or have declined to decide the broad issues but have rejected the specific claim presented on the basis that the particular acts alleged did not set forth a claim for emotional distress. See Outten, supra at 77-79 (facts of case did not authorize recovery for negligent infliction of emotional distress); Elliot, supra at 1229-1230 (no claim for negligent infliction of emotional distress where plaintiff could not show unconscionable abuse or outrageous conduct); Netto v. Amtrak, 863 F2d 1210, 1215 (5th Cir. 1989) (declined to decide whether emotional distress claim was cognizable under FELA because plaintiff failed to show unconscionable or outrageous conduct); Moody v. Maine Central R. Co., 823 F2d 693 (1st Cir. 1987) (declined to determine scope of recovery for emotional distress because plaintiff had not shown causal connection); Adkins v. Seaboard System R. Co., 821 F2d 340 (6th Cir. 1987) (claim for intentional infliction of emotional distress with no physical injury is not cognizable under FELA).

Given the holding in Buell and the lack of a definitive ruling from the United States Supreme Court or the Eleventh Circuit, we elect to follow the ad hoc approach employed by the Fifth Circuit in Netto and the First Circuit in Moody: we do not decide "whether a plaintiff may assert a claim under FELA for intentional infliction of emotional distress because even if we allowed such a claim appellant Richard Bowers has failed to assert a claim that would entitle him to relief.

Looking to common law developments for guidance, Urie v. Thompson, 337 U. S. 163, 174 (69 SC 1018, 93 LE 1282) (1949), we recognize that, as the Court noted in Buell, supra at 568-569, most states recognize the tort of intentional infliction of emotional distress, but “they vary in the degree of intent required to establish liability, and the level of physical manifestation of the emotional injury required to support recovery. Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.” (Footnotes omitted.) Id. The description of the tort given in the Restatement (Second) of Torts § 46 has been adopted by many jurisdictions and has been characterized as the general rule prevailing in the United States. Buell, supra at 568 n. 16. The Restatement, supra, provides that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,” id. at 71, and notes that “[t]he cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 72-73 (comment d). See Netto, supra at 1214-1215.

Richard Bowers alleged that appellees Adams and Estep threatened, humiliated, and intimidated him in the course of their inquiries concerning his emotional condition and that they maliciously transferred him to another position. We agree with the trial court that these allegations do not set forth a claim for intentional infliction of emotional distress as a matter of law. Adams and Estep were authorized as appellant’s supervisors to inquire into his condition and to make any necessary adjustments in his work schedule or environment to accommodate his condition. Such actions, even if done in a manner that embarrassed or humiliated appellant, cannot be characterized as the type of shocking and outrageous behavior necessary for a recovery of damages. See Netto, supra at 1214-1215; see also Kornegay v. Mundy, 190 Ga. App. 433-435 (1) (379 SE2d 14) (1989).

We do agree with appellants, however, that because appellees failed to file any depositions, affidavits, or other testimony in support of their motion for summary judgment on this count, the proper ruling would be to enter judgment on the pleadings. Compare OCGA § 9-11-12 (c) with OCGA § 9-11-56 (c); see generally Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 746 (1, 2) (337 SE2d 770) (1985). Accordingly, we vacate the summary judgment ruling on this count of appellants’ complaint and remand with direction that the trial court enter judgment on the pleadings for appellees on the claim for intentional infliction of emotional distress.

3. We next consider the viability of appellant Richard Bowers’ claims asserted under the GEEHC. Unlike his claim for intentional infliction of emotional distress, his discrimination allegations aré based not upon a common law tort but upon violation of a state statute. FELA was enacted not to create new substantive torts, but to protect railway workers from common law torts. Griggs v. Nat. R. Passenger Corp., 900 F2d 74, 75 (6th Cir. 1990). Although the complaint includes the necessary elements of a FELA claim in that it alleges injury by the employer in the scope of employment, the type of injury Richard Bowers asserts—discrimination on the basis of an alleged handicap—is not the type of injury FELA was designed to address. See Smolsky v. Consolidated Rail Corp., 780 FSupp. 283, 286-288 (E.D. Pa. 1991); Pakledinaz v. Consolidated Rail Corp., 737 FSupp. 47, 48 (E.D. Mich. 1990). Accordingly, FELA does not provide the exclusive remedy, and he may pursue his state handicap discrimination action along with a FELA claim. See Phillips v. Smalley Maintenance Svcs., 711 F2d 1524, 1531 (11th Cir. 1983) (held, trial court properly exercised pendent jurisdiction over state law claims asserted in FELA action).

Appellant contends the trial court erred by granting summary judgment to appellees on the handicap discrimination claims on the basis that the handicap he alleged was not included within the statutory definition of handicap. The GEEHC defines “handicap” as “any condition or characteristic that renders a person a handicapped individual [other than addiction to alcohol or a controlled substance],” OCGA § 34-6A-2 (2), and a “handicapped individual” is one “who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, and who has a record of such impairment.” Id. at (3). “Physical or mental impairment” is further defined as “(A) [a]ny physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or (B) [m]ental retardation and specific learning disabilities.” Id. at (7).

Appellant maintains this definition of mental impairment is open-ended and ambiguous so as to require the court’s construction, and that when the rules of construction are applied and expert testimony is adduced the definition can be read to include claustrophobia and depression as mental impairments. We disagree, as we find the statute clearly and unambiguously manifests the General Assembly’s intent to exclude emotional and mental disorders of the type experienced by Richard Bowers from the coverage of the GEEHC. Contrary to his argument, OCGA § 34-6A-2 (7) clearly limits the definition of “mental impairment” to any “physiological disorder or condition or anatomical loss affecting” certain body systems or “[m]ental retardation and specific learning disabilities.”

Decided June 9, 1992

Reconsideration denied June 23, 1992

Richard R. Thomas, for appellants.

Sutherland, Asbill & Brennan, Carey P. Dedeyn, Hall, Bloch, Garland, & Meyer, F. Kennedy Hall, J. Steven Stewart, for appellees.

The American Psychiatric Association characterizes claustrophobia as a simple phobia, which is a form of anxiety disorder, not a physiological disorder or condition. Diagnostic and Statistical Manual of Mental Disorders, § 300.29, pp. 243-245 (3d ed. rev. 1987). Depression is defined as a mood disorder that is not due to any other physical or mental disorder. Id. at 213. Neither disorder can be identified as either mental retardation or a learning disability. See id. at 27-49. Accordingly, we hold that the trial court correctly concluded that appellant Richard Bowers’ condition did not constitute a “handicap” within the meaning of the GEEHC, and thus appellees were entitled to summary judgment on his discrimination and retaliation claims as a matter of law.

4. The trial court did not err by granting summary judgment to appellees on the loss of consortium claim. Such a claim cannot be asserted under FELA, Lunsford, supra, and to the extent the claim is based on the state law claims it is derivative and must fail because of our rulings that appellees are entitled to summary judgment on Richard Bowers’ discrimination claims. See Armstrong Furniture Co. v. Nickle, 110 Ga. App. 686, 688-689 (4) (140 SE2d 72) (1964).

Judgment affirmed in part and vacated and remanded with direction in part.

McMurray, P. J., and Cooper, J., concur.

       Compare 29 CFR § 1613.702 (b) (1978), which defines “physical or mental impairment” as “(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting [the same body systems listed in OCGA § 34-6A-2 (7) (A)]; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A0561.
    McDAY v. CITY OF ATLANTA et al.
    (420 SE2d 75)
   Carley, Presiding Judge.

The undisputed material facts in this wrongful death action are as follows: Appellee-defendants Carl Price and S. C. Cartwright, who are police officers of appellee-defendant City of Atlanta, arrested appellant-plaintiff’s decedent, Robert Wadley, on a charge of murder. The suspected murder weapon, a loaded pistol, was confiscated from Wadley’s residence. Wadley was handcuffed, and brought to a police station for questioning. There, Officer Price placed on the desk in his office two unsealed evidence envelopes. One envelope contained Wadley’s pistol, which had been unloaded, and the other envelope contained the bullets. Meanwhile, Wadley had been taken into an interview room where, after being uncuffed and questioned, he gave a statement admitting the shooting, but claiming self-defense. Wadley was then left unattended and unrestrained while he examined his transcribed statement. Unobserved, he left the interview room and entered Officer Price’s office, which was unlocked and unoccupied. There, he removed the pistol from the evidence envelope on the desk, loaded it with the bullets from the other envelope, and shot himself.

On this evidence, the trial court granted summary judgment in favor of appellees. Appellant appeals, urging that genuine issues of material fact remain as to her right to recover for the death of Wadley.

1. As against appellee-defendant former Police Chief Redding, the complaint alleges a claim of direct liability in that he failed adequately to “train and supervise [Officers] Price and Cartwright. ...” OCGA § 36-33-4.

The operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function. See City of Atlanta v. Fry, 148 Ga. App. 269 (251 SE2d 90) (1978), aff’d 243 Ga. 517 (255 SE2d 48) (1979); Peeples v. City of Atlanta, 189 Ga. App. 888, 890-891 (377 SE2d 889) (1989). “ Tt is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that “where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” ’ ” (Emphasis in original.) Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980). “The record in the present case is utterly devoid of any conduct by [Chief Redding] which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii.” Partain v. Maddox, 131 Ga. App. 778, 785 (206 SE2d 618) (1974). Accordingly, the trial court correctly granted summary judgment in favor of Chief Redding. Merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts. Hennessy v. Webb, supra at 331.

2. There is unrebutted evidence that the decision whether to uncuff a suspect during a custodial interview is within the discretion of the officer. Absent evidence of malice, wilfulness, or corruption, a public officer is afforded immunity from liability to those who may be injured by the exercise of his discretion in the performance of his official duties. Hennessy v. Webb, supra at 330-331. Officers Price and Cartwright failed to anticipate and prevent the suicide of Wadley, but the evidence is undisputed that they had no prior notice of the likelihood of that act. Their mere failure to anticipate an unforeseeable act is not evidence of malice, wilfulness, or corruption such as would vitiate the immunity to which they are entitled. Accordingly, the trial court correctly granted summary judgment in favor of Officers Price and Cartwright.

3. The city is not vicariously liable for the acts attributed to the police officers. “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” OCGA § 36-33-3; Cook v. Mayor &c. of Macon, 54 Ga. 468, 469 (1875).

Likewise, the failure to provide a holding center at the police station would not authorize a recovery based upon the city’s direct liability. “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.” OCGA § 36-33-1 (b). “In erecting and maintaining a city prison [or a police station] a municipal corporation is exercising a purely governmental function, and is, therefore, not liable in damages to a person arrested and imprisoned therein by its police officers, for injuries sustained by him, while so confined, by reason of the improper construction or negligent maintenance of such prison [or station].” Gray v. Mayor &c. of Griffin, 111 Ga. 361 (1) (36 SE 792) (1900). See also Archer v. City of Austell, 68 Ga. App. 493 (1) (23 SE2d 512) (1942). The mere failure to provide a holding cell is not a nuisance, for which a municipality may be liable to one allegedly injured thereby. Compare Winston v. City of Austell, 123 Ga. App. 183, 185 (6) (179 SE2d 665) (1971). “That which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. [Cits.]” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 425 (3b) (249 SE2d 224) (1978). Accordingly, the trial court correctly granted summary judgment to the City.

Decided June 10, 1992

Reconsideration denied June 23, 1992

Katrina L. Breeding, for appellant.

June D. Green, Overtis H. Brantley, Michael V. Coleman, for appellees.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A0608, A92A0609.
    DRUMHELLER et al. v. DRUMHELLER BAG & SUPPLY, INC. McLEAN v. DRUMHELLER BAG & SUPPLY, INC.
    A92A0610.
    (420 SE2d 331)
   McMurray, Presiding Judge.

David V. Drumheller, Michael A. Drumheller, Jr. and Frank McLean (plaintiffs) filed separate petitions for declaratory judgment against Drumheller Bag & Supply, Inc. (“Drumheller Bag”) and DBS Acquisition Company, Inc. (“DBS”), seeking declarations that non-competition covenants (“the covenants”) executed in favor of Drumheller Bag are void and unenforceable. Drumheller Bag and DBS counter-claimed, seeking declarations that the covenants are valid and enforceable. The parties filed opposing motions for summary judgment.

In 1984, David V. Drumheller started Drumheller Bag, “a one-man company” in the business of purchasing and selling bag products. Drumheller Bag later began manufacturing bags and bag products and David V. Drumheller’s father, Michael A. Drumheller, Sr., and brother, Michael A. Drumheller, Jr., joined the business, purchasing Drumheller Bag stock and running “the textile bag division and . . . primarily the sales and . . . every other administrative duty [a] small company, [where] everyone does everything[, required].” Frank McLean, a close friend of the Drumheller family, also purchased Drumheller Bag stock and began working as the company’s primary salesman.

In 1986, Drumheller Bag sold 50 percent of its stock to T. 0. Bancroft, Jr., in exchange for $400,000 and an annual salary of $48,000. Bancroft, “a friend of the [Drumheller] family . . .” and an operator of a “bag business” in Louisiana, did not become involved in the daily operations of the business. These responsibilities continued with the Drumhellers and two other company officials, “Jim Jordan and Jack Grable.”

On January 29, 1988, DBS entered into a stock sales agreement with the stockholders of Drumheller Bag, purchasing all 2,000 shares of outstanding Drumheller Bag stock. DBS paid the stockholders $1,000,000 and agreed to pay certain stockholders, including David V. Drumheller and Michael A. Drumheller, Jr., an amount of the lesser of $350,000 or a sum based on Drumheller Bag’s annual net earnings over a five-year period. David V. Drumheller and Michael A. Drumheller, Jr., were also relieved of substantial personal liability on Drumheller Bag’s corporate debt.

The Drumhellers and McLean executed employment contracts pursuant to the terms of the stock sales agreement, providing for their continued employment with Drumheller Bag for three years. The stock sales agreement also required them to execute documents entitled, “CONFIDENTIALITY AND NON-COMPETITION AGREEMENT.” Plaintiff executed such agreements providing, in pertinent part, as follows:

“Covenant Not To Compete. The Seller . . . agrees that for a period of five (5) years from the date of this Agreement or for a period of eighteen (18) months after termination of Seller’s employment with the Company, whichever is later, the Seller will not, directly or indirectly (whether through any person, firm, company, corporation or other entity, other than the Company, which is located in the geographic area described herein or through any person, firm, company, corporation or other entity, other than the Company, which is located outside the geographic area described herein, but which does business in the described geographic area or solicits business in the described geographic area), do any of the following in the states of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee, South Carolina, Virginia, or West Virginia:

“(a) for his own account, for any person, firm, company, corporation, or other entity, other than the Company, solicit business or cause or assist agents of any person, firm, company, corporation, or other entity to solicit business of a type similar to that solicited by the Company from any person, firm, company, corporation or other entity who was, as of the date of this Agreement, .or within a three (3) year period prior hereto, a customer of the Company, as disclosed by the Company’s books and records, or solicit business from any prospective customer of the Company with whom the Company has had contact as disclosed by the Company’s books and records;

“(b) in any way, whether personally or through agents, other persons, or otherwise, divert or take away or attempt to divert or take away any of such customers or prospective. customers, or otherwise interfere with or attempt to interfere with the Company’s relations with any of such customers, prospective customers or business prospects; . . .

“(d) own, manage, operate, join, contract with, or participate in the ownership, management or control of or be employed by or be connected in any manner with (whether as principal, partner, shareholder, director, officer, employee, agent, consultant or otherwise) any business which is or may be competitive in any manner with the business engaged in by the Company; it being understood that the business engaged in by the Company includes, but is not limited to, the design, manufacture and sale of jute, burlap, polypropelene and paper bags and bag material and the sale and distribution of jute.”

DBS merged into Drumheller Bag after the stock purchase and, for the next three years, plaintiffs continued working in critical management roles at Drumheller Bag. However, their activities were internally monitored by a financial controller brought in by the executive committee of Drumheller Bag’s new parent company, Norfoods.

The employment contracts executed by David V. Drumheller and Michael A. Drumheller, Jr., expired on January 31, 1991, and their employment with Drumheller Bag terminated on February 28, 1991. Frank McLean’s employment contract also expired on January 31, 1991; however, he continued working as a corporate officer until March of 1991. McLean was terminated after it was discovered that he joined with David V. Drumheller and Michael A. Drumheller, Jr., purchasing bag making equipment that could be used in competition with Drumheller Bag.

The trial court denied plaintiffs’ motions for summary judgment and granted Drumheller Bag’s motion for summary judgment, declaring that “the intention of the parties is clear with sufficient words used to arrive at the intention of the parties ...” and that the five-year duration period prescribed by the covenants is reasonable. The trial court characterized the geographical area in the covenants as “overly broad” and narrowed the area to the States of Georgia, Florida, Alabama and Tennessee. The trial court then permanently enjoined plaintiffs “from taking any act in violation of the terms ... of the [covenants].” These appeals followed and plaintiffs first filed their appeals in the Supreme Court of Georgia. However, that Court transferred these appeals to this Court. Held:

1. Plaintiffs contend the covenants are ancillary to the employment contracts and are totally void and unenforceable because of overbroad, vague and indefinite terms regarding the scope of prohibited competitive activities.

“[A] covenant entered into as part of a sale of a business can generally be drafted more broadly than one which is entered into as part of an employment contract.” Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 30 (2) (392 SE2d 717). “The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing. White v. Fletcher/Mayo/Assoc., 251 Ga. 203 (303 SE2d 746) (1983).” Watson v. Waffle House, 253 Ga. 671 (2), 672 (324 SE2d 175). “A different standard is applied in determining the validity of covenants contained in employment contracts and those which are part of a contract to sell a business. When a portion of a covenant not to compete which is a part of a sale of a business interest is found to be unreasonable, the court has tended ... to uphold the remaining portions of the covenant by ‘blue penciling’ or severing the overly broad restrictions. On the other hand, the court has found covenants not to compete which are part of a contract of employment to be nonseverable and has held that overbreadth of one portion of the covenant so taints the entire covenant as to make it unenforceable.” Watson v. Waffle House, 253 Ga. 671 (2), supra. However, “if a contract for the sale of a business and an employment contract are part of the same transaction they may be construed together to supply missing elements and blue penciled to make overbroad terms valid.” Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465).

In the cases sub judice, the evidence shows that Drumheller Bag was a close knit operation, dependent upon plaintiffs’ service and manufacturing skills. The evidence also shows that plaintiffs executed the employment contracts as part of the stock sales agreement; that plaintiffs were represented by an attorney during the sales negotiations and that they were fully aware of the consequences of a stock purchase. Further, there is no evidence that DBS exerted unfair pressure on plaintiffs to sell their stock. On the contrary, the record indicates that Michael A. Drumheller, Sr., played a major role in initiating negotiations for the sale of Drumheller Bag and that David V. Drumheller and Michael A. Drumheller, Jr., joined in their father’s efforts. There is also evidence that Frank McLean agreed to go through with the deal after he was informed that the transaction would be profitable and that his participation was necessary for the sale. Further, it appears that plaintiffs’ attorney approved the covenants before the sale and that plaintiffs had full and fair opportunities to consider the terms of the stock sale agreement before closing. Moreover, it is undisputed that plaintiffs profited from the stock sale and that the sale relieved David V. Drumheller and Michael A. Drumheller, Jr., of personal liability on about $1,000,000 of Drumheller Bag’s corporate debt. These circumstances reveal that the employment contracts were a large part of the mutual consideration of the stock sale agreement and were thus part of the same transaction. Consequently, any overbroad, indefinite or vague restrictions do not invalidate the covenants in their entirety but require blue penciling so as “to make overbroad terms valid.” Lyle v. Memar, 259 Ga. 209, 210, supra.

2. Plaintiffs contend the covenants are unenforceable because they are not supported by consideration. This contention is without merit. “When a person sells a business and covenants not to compete in a certain territory, the buyer pays and the seller receives a part of the total purchase price as consideration for that covenant.” Jenkins v. Jenkins Irrigation, 244 Ga. 95, 99 (3), 100 (259 SE2d 47).

3. The Supreme Court of Georgia endorses the practice of determining reasonableness of a covenant not to compete by analyzing it in terms of time, territory and description of the prohibited activity. Lyle v. Memar, 259 Ga. 209, 210, supra. In the cases sub judice, plaintiffs do not question the trial court’s declaration that the five-year duration periods prescribed in the covenants are reasonable. Nor do they contend that the territorial limits of the covenants as narrowed by the trial court were unnecessary to protect Drumheller Bag’s legitimate business interests. Instead, plaintiffs challenge the breadth and burdensomeness of the activities sought to be restricted, arguing that terms of the covenant unreasonably restrict business activities in any capacity. See Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 (227 SE2d 243).

Where the sale of a business is involved, the purchaser’s interest in what he has acquired cannot be effectively realized unless the seller agrees not to act so as to diminish the value of what has been sold. See Restatement of the Law of Contracts, Second, § 188, Comment (b). It follows that the reasonableness of any covenant not to compete ancillary to the sale of a business must be measured on the basis of whether the restricted activity protects the purchaser’s legitimate business interests, i.e., the value of the business and its good will. Jenkins v. Jenkins Irrigation, 244 Ga. 95, 99 (3) 101, supra. See Farmer v. Airco, 231 Ga. 847, 849 (204 SE2d 580). In the cases sub judice, we agree that certain language of the covenants is overbroad and could be construed as restricting almost any business activity. However, the covenants also contain language narrowly prohibiting plaintiffs from engaging in or actively participating in “the business [of] . . . the design, manufacture and sale of jute, burlap, polypropelene and paper bags and bag material and the sale and distribution of jute.” Further, there is an abundance of evidence showing that these restrictions are necessary and essential for the protection of Drumheller Bag’s legitimate business interests, e.g., Drumheller Bag was engaged in these narrowly defined activities before the stock sale and plaintiffs’ performance of these activities was then critical to Drumheller Bag’s business success. Consequently, since the trial court failed to “blue pencil” the covenants so as to include only those enumerated activities necessary and essential for the protection of Drumheller Bag’s legitimate business interests, the cases must be remanded for such a determination. See Hamrick v. Kelley, 260 Ga. 307 (392 SE2d 518). See also Reed v. Eastern Elec. &c. Co., 194 Ga. App. 650 (391 SE2d 472).

Decided June 8, 1992

Reconsideration denied June 23, 1992

Blackburn, Bright & Edwards, J. Converse Bright, for appellants.

Troutman, Sanders, Lockerman & Ashmore, Daniel S. Rein hardt, Dan R. Gresham, Langdale, Vallotton, Hickman & Chapman, William P. Langdale, Jr., for appellee.

4. Plaintiffs contend the trial court violated provisions of OCGA § 9-11-65, which provides that “[e]very order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. . . .” OCGA § 9-11-65 (d). It is unnecessary to address this enumeration.

“In Clein v. Kaplan, 201 Ga. 396 (40 S. E. 2d, 133), [the Supreme Court] held that the office of a declaratory judgment is to declare rights, not to grant coercive relief.” City of Nashville v. Snow, 204 Ga. 371, 376 (1) 380 (49 SE2d 808). In the cases sub judice, there appears to be no evidence that plaintiffs have breached the agreements. The parties are merely seeking a declaration of their rights and obligations under the covenants. Consequently, the trial court was without authority to grant coercive relief via a permanent injunction.

Judgment reversed and cases remanded.

Sognier, C. J., and Cooper, J., concur.

       Frank McLean was a “very good salesman, Number 1 salesman for the company.” He was later “brought in as director of sales [and] tried unsuccessfully to hire two [sales] people, but neither one of them worked out ... so [the Drumhellers and McLean] felt like, to . . . keep from losing confidence with the customers and all, that it would be better for [McLean] to go back on the road.”

       Bancroft sold 1,000 shares (50 percent), David V. Drumheller sold 270 shares (13.5 percent), McLean sold 130 shares (6.5 percent), Michael A. Drumheller, Sr. sold 100 shares (5 percent), Michael A. Drumheller, Jr. sold 100 shares (5 percent) and three other stockholders sold 400 shares (20 percent).


author: Sognier, Chief Judge.

text:
    A92A0635.
    BROWN v. THE STATE.
    (420 SE2d 35)
   Sognier, Chief Judge.

Hugh K. Brown was tried before a jury in state court and convicted of speeding. He appeals from the denial of his motion for new trial.

Appellant asserts the general grounds, contending specifically that the State did not lay the foundation required for admission of evidence of speed obtained by radar detection devices as set forth in Wiggins v. State, 249 Ga. 302, 304-305 (2) (a) (290 SE2d 427) (1982), and that when the radar evidence is excluded the remaining evidence is insufficient to support the jury’s verdict. Appellant is correct that the State failed to establish all of the foundation elements set forth in Wiggins that remain applicable to state troopers, see Carver v. State, 199 Ga. App. 842 (406 SE2d 236) (1991), as the State did not introduce evidence as to the State Patrol’s licensing and annual certification of its radar devices. See OCGA § 40-14-4. Contrary to the State’s contention, appellant’s failure to interpose a timely objection on this basis at trial does not preclude him from raising this issue on appeal, for this court has held that establishment of the necessary foundation for radar detection device speed evidence is a prerequisite to admissibility even in the absence of an objection. Johnson v. State, 189 Ga. App. 192, 193 (375 SE2d 290) (1988). But see Gray v. State, 156 Ga. App. 117, 118 (1) (274 SE2d 115) (1980).

Nonetheless, the state trooper who issued the citation to appellant also testified that he observed appellant driving in excess of the speed limit before he turned on the radar device, and that in accordance with his usual practice he used the radar device only to confirm what he had already observed. Opinion testimony of an eyewitness may be used to establish speed, its credibility being for the jury to determine, Hixson v. Barrow, 135 Ga. App. 519, 522 (2) (218 SE2d 253) (1975), and such evidence is sufficient to authorize a jury to conclude that the speeding laws have been violated. See Walker v. State, 163 Ga. App. 638-639 (1) (295 SE2d 574) (1982). Consequently, we find the evidence sufficient to authorize appellant’s conviction for speeding under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Gray, supra at 118 (2).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided June 1, 1992

Reconsideration denied June 23, 1992

Hugh K. Brown, pro se.

Nancy N. Bills, Solicitor, Alan S. Clarke, Assistant Solicitor, for appellee.


text:
    A92A0680.
    THE STATE v. ECHOLS.
    (420 SE2d 64)
   Carley, Presiding Judge.

Appellee was indicted for the manufacture of marijuana in violation of OCGA § 16-13-30 (j) (1) and he filed a pre-trial motion to suppress. After conducting a hearing, the trial court granted appellee’s motion and the State appeals.

The relevant facts are as follows: An officer received information from a reliable source that marijuana was being grown on appellee’s property. The officer then drove by appellee’s property and, from the public street, he saw what appeared to him to be a marijuana plant. The officer advised the chief of police. The chief of police then drove by appellee’s property and also saw, from the public street, what he believed to be a marijuana plant. The plant was then seized from appellee’s property without a warrant. The State relied upon the “plain view” doctrine, but the trial court concluded that “[o]nce [the officer] received the [information] that [a marijuana plant] was [on appellee’s property] from a source that [the officer] had found to be reliable before, then at that time he was under a duty to go get a search warrant rather than to get in his car and go by and look over there and try to verify [the information].”

The officer needed no search warrant to drive down a public street in response to a report that marijuana was being grown on appellee’s property. If the marijuana was in plain view from the vantage point of the public road, the officer’s mere act of driving by and looking for the reported contraband would certainly not constitute a “search” such as would require a warrant. “If an article is already in plain view, ... its observation . . . would involve [no] invasion of privacy. [Cits.]” Horton v. California, 496 U. S. 128, 133-134 (II) (110 SC 2301, 110 LE2d 112) (1990).

It is immaterial for Fourth Amendment purposes that the officer was acting upon information supplied to him by an informant and that he did not merely happen to observe the contraband while routinely driving by appellee’s property. See State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). The officer was not relying upon the information to conduct a search of appellee’s property. The officer was merely relying upon the information to conduct a visual survey of appellee’s property from the public street. “ ‘[T]he expectation that . . . evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement.’ [Cits.]” State v. Scott, 159 Ga. App. 869, 870 (2) (285 SE2d 599) (1981). The discovery of the contraband would not violate appellee’s Fourth Amendment rights “even though the officer may have suspected that he would find incriminating evidence when he looked in appellee’s [yard]. [Cit.]” State v. Webb, 193 Ga. App. 2, 5 (2) (386 SE2d 891) (1989).

It follows that the trial court erred in holding that the Fourth Amendment required that a search warrant issue before the officer was authorized to drive down a public street to determine whether contraband was exposed to public view. “ ‘The essential purpose of the Fourth Amendment is to shield the citizen from unwarranted intrusions by the government upon his privacy. [Cits.] “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” [Cits.] Consequently, a police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. [Cits.]’ [Cit.]” State v. Zackery, supra at 319.

After observing the marijuana plant from the public street, the officer was not then required to obtain a search warrant to authorize his actual entry upon appellee’s property and his seizure of that contraband. “ ‘The “plain view” exception to the warrant requirement is based on the theory that the discovery of the particular incriminating evidence is not the result of a search. . . . “Plain view” is perhaps better understood . . . not as an independent “exception” to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer’s “access to an object” may be. The principle is grounded on the recognition that when a police officer has observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership[.] [Cit.] Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a “needless inconvenience”. . . .’ [Cit.]” Mitchell v. State, 181 Ga. App. 470-471 (352 SE2d 647) (1987).

The contraband in the instant case was not discovered pursuant to a search and was validly seized pursuant to the “plain view” exception. It follows that the trial court erred in granting appellee’s motion to suppress.

Judgment reversed.

Pope and Johnson, JJ., concur.

Decided June 9, 1992

Reconsideration denied June 23, 1992

Dupont K. Cheney, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellant.

David G. Hammock, for appellee.


text:
    A92A0754.
    FOSTER v. THE STATE.
    (420 SE2d 78)
    Decided June 10, 1992
    Reconsideration denied June 23, 1992

      Moore & Davidson, W. Keith Davidson, for appellant.

      Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Allison L. Thatcher, Assistant Solicitors, for appellee.
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered on the jury verdict.

The sole enumeration of error relates to the admission of evidence relating to the Horizontal Gaze Nystagmus (HGN) test that was administered to appellant by the arresting officer. A review of the transcript does suggest that the trial court may have erred in allowing into evidence testimony as to appellant’s physical responses to the HGN test that was administered to him, without preliminary proof that the HGN test has gained general acceptance in the scientific community as an accurate and reliable means of ascertaining whether a person is intoxicated. Absent such preliminary proof, the results of a scientific procedure or technique should not be admitted into evidence. See Harper v. State, 249 Ga. 519, 526 (1) (292 SE2d 389) (1982). However, a review of the transcript also clearly demonstrates that, even if the testimony should not have been admitted, the error was harmless. The admissible and probative evidence as to appellant’s intoxication was otherwise overwhelming and the jury’s finding that appellant was driving under the influence could not have been affected by the evidence as to appellant’s physical responses to the HGN test. “[Considering all the evidence presented, the error[, if any,] in admitting [the evidence regarding the HGN test] was harmless.” Wallin v. State, 248 Ga. 29, 32 (5) (279 SE2d 687) (1981).

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Beasley, Judge.

text:
    A92A0285.
    SYKES v. SMOLEK GRADING, INC.
    (420 SE2d 85)
   Beasley, Judge.

Sykes appeals from the grant of summary judgment to Smolek Grading in this tort action for injuries allegedly resulting from a construction accident.

Smolek contracted with the developer of a residential subdivision for the grading of a home site, including the removal of logs and limbs. Pursuant to that agreement, Smolek was required to purchase and maintain workers’ compensation insurance covering all individuals it might hire to assist with the grading. Sykes, a self-employed log hauler, was hired by Smolek to remove logs. The two had worked together on other occasions with the understanding that Smolek would deduct from Sykes’ pay an amount sufficient to cover the cost of workers’ compensation insurance covering Sykes while working with Smolek. On this occasion, Sykes was compensated with the logs, so there was no pay from which to deduct workers’ compensation insurance premiums.

He was in the process of sawing trees into log lengths and loading them on his truck when he was struck in the head by a tree and rendered unconscious. At that time, Smolek was insured under a policy of workers’ compensation insurance covering any employee injured in the normal course of his business. Sykes received workers’ compensation benefits for two months. He then elected to discontinue them and filed the present action in tort.

Summary judgment was granted to Smolek on the basis that the tort claim was barred because appellee’s sole and exclusive remedy was under the Workers’ Compensation Act, OCGA § 34-9-1 et seq.

1. Appellant asserts that the award of summary judgment was erroneous because a factual question remains as to whether the parties “intended” him to be covered by workers’ compensation insurance at the time of the injury.

The parties’ intent is irrelevant to the issue before us. Nor is it of any import whether appellee was obligated by law to provide coverage. The undisputed evidence was that appellee did provide workers’ compensation insurance. OCGA § 34-9-124 (b) provides: “A policy of insurance issued under this chapter shall always first be construed as an agreement to pay compensation; . . . compensation shall be paid to an injured employee ... for a compensable accident as if the employer or the employee or both were subject to this chapter, the policy of compensation insurance constituting a definite contract between all parties concerned.” “[C]overage, once granted, shall be effectual, although in circumstances where it would not otherwise be obligatory for the employer to come under the Act.” Security Ins. Group v. Plank, 133 Ga. App. 815, 816 (1) (212 SE2d 471) (1975).

Whether appellant’s relationship with appellee was that of independent contractor or master-servant is of no consequence. “OCGA § 34-9-1 (3) provides: ‘ “Employer” shall include . . . any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits.’ (Emphasis supplied.)” Capitol Fish Co. v. Tanner, 192 Ga. App. 251, 252 (2) (384 SE2d 394) (1989).

OCGA § 34-9-8 (a) is inapplicable here. Under that provision, the general contractor, in this case the subdivision developer, is in effect deemed the statutory employer of an injured employee of a subcontractor and may thus be liable for workers’ compensation benefits. “A principal, intermediate, or subcontractor shall be liable for [statutory workers’] compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” OCGA § 34-9-8 (a). The present action was brought by appellant against his immediate employer (appellee). There is no issue of liability on the part of the developer which would trigger the provisions of OCGA § 34-9-8. See, in the context of the liability of a statutory employer, Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41) (1981); Landrum v. Cobb County Concrete Prods., 191 Ga. App. 805 (383 SE2d 144) (1989).

“The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee . . . on account of such injury. . . OCGA § 34-9-11. It is well settled that an employer is immune under OCGA 34-9-11 to any action in negligence by an employee who has received workers’ compensation benefits for which he was entitled. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298 (6 SE2d 83) (1939); Freeman v. Ryder Truck Lines, 244 Ga. 80 (2) (259 SE2d 36) (1979).

Appellant sustained an accidental injury while doing the work he was employed to perform. He and appellee’s employees were covered by a policy of workers’ compensation insurance. Appellant was entitled to receive, and was the recipient of, those benefits. His sole and exclusive remedy was under the workers’ compensation laws. He cannot now maintain an action in tort against his immediate employer. OCGA § 34-9-11. Summary judgment was properly awarded.

2. Appellant enumerates as error the basis upon which his workers’ compensation benefits were calculated. This issue falls within the purview of the workers’ compensation board and is not properly before this court.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Decided June 23, 1992.

Paul C. Parker & Associates, William S. Sarandis, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert B. Hocutt, Michael D. Hostetter, for appellee.


author: Johnson, Judge. Carley, Presiding Judge,

text:
    A92A0540.
    WATSON et al. v. McDOWELL & SON, INC.
    (420 SE2d 88)
   Johnson, Judge.

McDowell & Son, Inc., filed a dispossessory action against Albert and Annie Watson. The Watsons answered and filed a counterclaim alleging that McDowell & Son fraudulently obtained title to the premises. The record contains the affidavit of Charlie McDowell, in which he states that he is the true owner of the premises, that McDowell & Son obtained title to the property through fraud and that he rents the premises to the Watsons pursuant to a valid lease agreement. A copy of that lease appears in the record. McDowell & Son served the Watsons with a request for admissions of fact pursuant to OCGA § 9-11-36, to which the Watsons did not timely respond. Thereafter, McDowell & Son moved for summary judgment on the basis of the facts deemed admitted. One of the facts deemed admitted is that no valid lease for the premises exists between the parties. The Watsons filed a motion to withdraw admissions prior to the court’s hearing on the motion for summary judgment. The trial court, however, did not rule on the Watsons’ motion to withdraw admissions. The trial court granted the motion for summary judgment and, in a separate order, issued a writ of possession of the premises to McDowell & Son due to the Watsons’ failure to pay rent into the registry of the court as previously ordered. The Watsons appeal.

1. The Watsons assert that the trial court erred in granting summary judgment to McDowell & Son. We agree and reverse the grant of summary judgment.

The trial court erred in failing to consider the merits of the Watsons’ motion to withdraw admissions prior to granting the motion for summary judgment. “[OCGA § 9-11-36 (b)] and judicial interpretations thereof require the movant in a motion to withdraw admissions (appellant herein) to show that ‘the presentation of the merits of the action will be subserved by the allowance of the motion. ... If the movant successfully makes such a showing, it is up to the respondent (appellee herein) ‘to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.’ [Cits.] . . . Inasmuch as no hearing was held on appellant’s motion to withdraw admissions, no evidence as to whether the merits of the action will be subserved by allowing the withdrawal and whether a withdrawal will prejudice appellee in maintaining his action was presented for the trial court’s consideration. The trial court’s order granting summary judgment to appellee and effectively denying appellant’s motion to withdraw admissions reflects that court’s failure to consider the merits of the motion within the parameters of the two-pronged test of [OCGA § 9-11-36 (b)]. The Supreme Court’s holding in Cielock v. Munn [244 Ga. 810 (262 SE2d 114) (1979)], requires a reversal of this case and a remand to the trial court for the presentation and consideration of evidence pertinent to appellant’s motion to withdraw admissions.” [Cit.] Hanson v. Farmer, 163 Ga. App. 561, 562 (295 SE2d 343) (1982).

Even if the trial court had properly considered the merits of the Watsons’ motion to withdraw admissions, the court still erred in granting summary judgment based on genuine issues of material fact found in the record. “On consideration of summary judgments we and the trial court must look at the entire record.” Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980). The record reveals a genuine issue as to whether a valid lease for the premises existed between the parties. Moreover, the record reveals a genuine issue as to whether McDowell & Son obtained title to the premises through fraud. While we note that we do not have jurisdiction over appeals involving title to land, this case does not present such an issue on appeal. Rather, the issue of title is genuine and material in this case and must be addressed by the trial court. “On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the nonexistence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.” (Punctuation and citations omitted.) Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670) (1991). For the foregoing reasons, the trial court erred in granting summary judgment to McDowell & Son.

2. The Watsons also contend that the trial court erred in issuing a writ of possession to McDowell & Son on the basis that the Watsons failed to comply with a prior order compelling them to pay rent into the registry of the court pending resolution of the dispossessory action. In light of the genuine issues of material fact as to whether McDowell & Son holds valid title to the premises and whether a landlord/tenant relationship exists between the parties, the court’s order requiring the Watsons to pay rent into the registry of the court was premature. Consequently, the issuance of a writ of possession to McDowell & Son based on the Watsons’ refusal to pay rent into the registry of the court was error.

Decided June 23, 1992

Wallace & Moss, Howard P. Wallace, Whatley & Associates, Lynn H. Whatley, for appellants.

Clark & Smith, Emory L. Clark, Hoke Smith III, A. Michael Washington, for appellee.

Judgment reversed.

Pope, J., concurs. Carley, P. J., concurs specially.

Carley, Presiding Judge,

concurring specially.

I concur only in Division 1 of the majority opinion wherein we find that under Cielock v. Munn, 244 Ga. 810 (262 SE2d 114) (1979), and its progeny, that the case must be remanded to the trial court for a hearing and ruling on appellants’ motion to withdraw admissions. I do not believe that, at this time we should consider any other aspect of the case. Accordingly, I believe that the correct judgment line would be “Judgment reversed and case remanded with direction.”


author: Pope, Judge.

text:
    A92A0569.
    ROBINSON v. THE STATE.
    (419 SE2d 926)
    Decided June 23, 1992.

      T. Mark Thedieck, for appellant.
   Pope, Judge.

Defendant was convicted of three counts of child molestation. The victim was his stepdaughter. On appeal he argues the testimony of the victim and the victim’s sister, who was an eyewitness to some of the occurrences between the defendant and victim, was so inconsistent and contradictory that the evidence was insufficient to sustain his conviction. “[Defendant’s] argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury.” Levitt v. State, 201 Ga. App. 63 (1) (410 SE2d 170) (1991). “While the jury can and must weigh and analyze the evidence, an appellate court is restricted to determining whether or not there is sufficient evidence to support the verdict of guilty.” Causey v. State, 154 Ga. App. 76, 77 (267 SE2d 475) (1980). We have reviewed the record and conclude it contains ample evidence from which a rational trier of fact could find defendant guilty of the offenses charged beyond a reasonable doubt.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.


text:
    A92A0669.
    DEPARTMENT OF HUMAN RESOURCES v. MORTON.
    (420 SE2d 89)
   Carley, Presiding Judge.

When appellee Daniel A. Morton was divorced from Ouida Morton, permanent custody of a child born during the marriage was awarded to Ms. Morton and appellee was ordered to pay child support. Thereafter, appellee failed to meet his child support obligations under the divorce decree and Ms. Morton sought and received public assistance from appellant Department of Human Resources (DHR). Pursuant to OCGA § 19-11-19 (g), DHR issued a withhold-and-deliver order to appellee’s employer and obtained some $7,590 in partial satisfaction of appellee’s arrearages in his child support obligations. Appellee then initiated the instant paternity proceeding pursuant to OCGA § 19-7-40 et seq. Ms. Morton was served, but she did not appear at the hearing. After the hearing, the trial court found that appellee was not the father of the child and it further ordered that DHR repay the $7,590 to appellee. DHR moved to set aside the order that it repay appellee. When the trial court denied DHR’s motion, DHR successfully applied to this court for a discretionary appeal.

There is serious doubt whether, in the context of the instant paternity action, the trial court was even authorized to address the issue of appellee’s child support obligations. Appellee’s duty to support was in no way dependent upon any affirmative finding under OCGA § 19-7-49 (a) that he was the father of the child. His duty to support the child had already been established by the pre-existing divorce decree. OCGA § 19-7-49 (b) provides that, “[o]n a finding that the alleged father is not the father of the child, the court shall issue an order declaring this finding.” However, there is no specific statutory authorization for the trial court to make any other ruling upon a finding of non-paternity. OCGA § 19-7-51 does provide that “[t]he decree or order may contain any other provisions concerning the duty to support the child by periodic or lump sum payments, visitation privileges with the child, or any other matter in the best interest of the child” (Emphasis supplied.) Where a duty to support is dependent upon an affirmative finding of paternity under OCGA § 19-7-49 (a), it is clearly in the best interest of the child for the trial court to address the issue of future child support. It seems equally clear, however, that ending a previously established duty to support or ordering a retroactive rescission of previously awarded child support may be in the best interest of the putative father who has proven his non-paternity, but it is hardly in the best interest of the child. Thus, the additional authority to address the issue of child support obligations that is conferred upon the trial court by OCGA § 19-7-51 would seemingly extend only to the case wherein paternity has been initially established pursuant to OCGA § 19-7-49 (a), not to the case wherein paternity has been disproven pursuant to OCGA § 19-7-49 (b).

Decided June 23, 1992.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Marva B. Simpson, for appellee.

Moreover, appellee’s duty to support the child was established pursuant to the pre-existing divorce decree and OCGA § 19-6-26 (a) provides that, so long as appellee remains in or is domiciled in this state, the “exclusive procedure” for modifying his child support obligations “shall be by a proceeding instituted for such purposes in the superior court of the county in which venue is proper.” If OCGA § 19-6-26 (a) constitutes the “exclusive procedure” for modifying appellee’s pre-existing child support obligations, a trial court would not be authorized under OCGA § 19-7-51 to end appellee’s child support obligations and order a retroactive rescission of support previously awarded to the child.

In any event, even if the trial court had any. authority to address the issue of appellee’s child support obligations, it is clear that that authority would not extend to ordering that DHR repay such sums as appellee was previously obligated to pay as child support. DHR was never served and lacks the status of a party to the paternity proceedings initiated by appellee. Accordingly, the trial court had no jurisdiction over DHR and erred in failing to set aside its order that DHR repay appellee. See generally Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989).

Judgment reversed.

Pope and Johnson, JJ., concur.


author: Sognier, Chief Judge

text:
    A92A0697.
    LATIMER v. THE STATE.
    (420 SE2d 91)
   Sognier, Chief Judge

Keith John Latimer was indicted and charged with possession of LSD and marijuana with intent to distribute, OCGA § 16-13-30 (b), possession of a firearm during commission of a felony, OCGA § 16-11-106, reckless conduct, OCGA § 16-5-60, and discharging a firearm near a public highway or street, OCGA § 16-11-103. A jury found him guilty of the drug charges and the charge of reckless conduct and acquitted him on the other two charges. He appeals, contending error in the trial court’s denial of his motion to suppress evidence.

The evidence adduced at the hearing on the motion authorized the trial court to conclude that in the early morning hours of October 12, 1990, Deputy T. D. Daughtery of the Cherokee County Sheriff’s Office responded to a call reporting gunshots being fired, loud music being played, and a chain saw being run at an apartment complex. He was met at the complex by three other deputy sheriffs. Although they heard no shots or chain saw, Daughtery heard music and, tracing its source, he and the other officers knocked on the door of appellant’s apartment. Appellant opened the door and allowed the officers into the apartment. Daughtery observed a chain saw in the living room and found it hot to his touch. Appellant told Daughtery he had been demonstrating to a friend, who was now in the bedroom, how to use the saw. While questioning appellant’s friend Daughtery noticed an empty holster on a bedside table. Appellant’s friend pointed out the .22 caliber pistol under the couch in the living room but denied firing it. The officers found empty .22 caliber casings on the balcony of the apartment. They seized the weapon and casings, arrested appellant and his friend, and placed them in Daughtery’s patrol car.

As appellant and his friend were being placed in the patrol car, Lieutenant Roland Deal and Deputy Gerald McSwain of the Cherokee County Sheriff’s Office arrived at the scene in response to the call. Daughtery had been unable to lock appellant’s apartment without a key, and Deal testified he was there to secure the apartment until it could be locked, and “to . . . survey the damage to the apartment.” McSwain, who was an undercover narcotics investigator at the time, testified that although he lived at the complex and had a key to every apartment because of his maintenance and security contract with the apartment management, he went to the scene upon hearing the call “just as the other officers did” because he felt the officers might be in danger and might need backup. He spoke briefly with Daughtery, heard there might be another weapon in the apartment, and ascended to the apartment in order to investigate.

He encountered Deal standing with his back to the open door of the apartment, and conversed with him briefly. Following this conversation, McSwain looked through the open door of the apartment and observed a hand-rolled cigarette, rolling papers, a set of forceps, and a partially burned hand-rolled cigarette on the coffee table in the living room. He then smelled a “very light odor” of marijuana. At that point, he locked the door and advised Deal that the apartment should be sealed, and left to obtain a search warrant. When the search warrant McSwain obtained was executed, 469 stamps containing LSD and approximately 214 grams of marijuana were found secreted in the refrigerator.

1. Appellant contends Daughtery’s original warrantless search of the apartment was improper. Appellant argues that although Daughtery had probable cause to believe appellant had committed misdemeanors, probable cause alone does not authorize a warrantless search of his dwelling, see Coker v. State, 164 Ga. App. 493, 496 (297 SE2d 68) (1982), and absent exigent circumstances, entry into a private dwelling to conduct a search or effect an arrest is unreasonable unless made pursuant to a warrant. Id. Appellant maintains that since the only charges Daughtery was contemplating lodging against appellant were reckless conduct and discharging a firearm near a public highway or street, and neither misdemeanor had been committed in the officers’ presence, no exigent circumstances were present supporting a warrantless search. However, the officers’ approach to appellant’s apartment and knock on his door did not violate the Fourth Amendment, Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981), and it is uncontroverted that appellant voluntarily allowed the deputies to enter his apartment, making their intrusion into his apartment valid. See Hall v. State, 239 Ga. 832 (1) (238 SE2d 912) (1977). Once inside the apartment, the chain saw was in plain view. “When a police officer makes a ‘valid intrusion’ upon property and seizes contraband in plain view, ‘there is in effect no search at all.’ [Cit.] ‘This holds true whether or not the officer expected or suspected that he would discover the object seized. [Cits.]’ [Cit.]” State v. Zackery, 193 Ga. App. 319, 320 (387 SE2d 606) (1989). Moreover, appellant voluntarily conversed with the officers and pointed out his friend. When the officers approached appellant’s friend, the empty holster was in plain view and the friend then pointed out the location of the missing gun. Since at that point the officers had probable cause to arrest appellant and his friend for committing the crimes they were investigating they also were authorized, incident to the arrest, to retrieve the gun both as evidence and to eliminate the possibility that it could be used against them. See generally Lentile v. State, 136 Ga. App. 611, 613 (222 SE2d 86) (1975). Accordingly, we find no error in the trial court’s denial of appellant’s motion to suppress this evidence. Id.

2. Appellant also maintains the trial court erred by denying his motion to suppress the evidence pertaining to the drug charges resulting from McSwain and Deal’s intrusion into appellant’s apartment after his arrest. Issuance of the search warrant was based on McSwain’s observation of contraband in plain view and consequently depends upon McSwain’s lawful right to have been in the apartment. See State v. Aultman, 160 Ga. App. 550, 551 (287 SE2d 580) (1981). Appellant argues that because he had been arrested and removed to the patrol car and the investigation had been concluded, McSwain was not lawfully on the premises at the time he made the observation. We do not agree.

Decided June 23, 1992.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

Garry T. Moss, District Attorney, A. Gregory Hicks, Assistant District Attorney, for appellee.

It is clear from McSwain’s testimony that he observed contraband in plain view while talking with Deal at the doorway of the apartment. Although it is possible that McSwain may have been standing slightly over the threshold in the entry foyer, according to McSwain’s testimony almost the entire apartment was visible from the doorway, and it is clear that he made no exploratory incursions into the apartment before seeing the contraband on the living room coffee table. Upon viewing the contraband, McSwain properly obtained a warrant to search the entire premises. Under these circumstances, if any slight entry took place, it was reasonable under the totality of the circumstances, given the officers’ presence to protect and secure the apartment. See Talley v. State, 200 Ga. App. 442, 443-444 (3) (b) (408 SE2d 463) (1991).

We do not agree with appellant that inconsistencies in the testimonies of Daughtery, Deal, and McSwain regarding the reasons for their presence at appellant’s apartment indicate that these reasons were pretextual. Rather, we agree with the trial court that such inconsistencies are not unusual given the nature of police work, where little opportunity exists for officers responding to a call “to stop and plan and say, ‘okay, here’s our situation; here’s what we’ll do next.’ There are a lot of brief, short instructions or communications given that are subject to misunderstanding or misconstruing.” The three officers may very well have understood several different reasons for remaining at the apartment.

Moreover, the possible presence of other motives for entering the apartment does not preclude the finding that an entry was objectively reasonable for a valid reason, see Talley, supra, and we have found that if a second entry was made into appellant’s apartment it was lawful because the officers were present to secure appellant’s apartment in his absence. See id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0998.
    PERRY v. THE STATE.
    (419 SE2d 922)
   Birdsong, Presiding Judge.

James William Perry appeals from his judgment of conviction of DUI and habitual violator, the denial of his motion for new trial, and the sentence. He claims that the trial court erred in denying his motion for new trial on three separate grounds. Held:

1. We note that certain assertions of fact are contained in appellate briefs which are not supported by evidence of record. Such assertions will not be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223); accord Robinson v. State, 200 Ga. App. 515 (1) (408 SE2d 820). Additionally, an appellate court in determining the legal propriety of a trial court’s ruling on a motion to suppress can consider all the relevant evidence of record whether found in the trial transcript and record or in the transcript of the suppression motion hearing. See Gregg v. State, 201 Ga. App. 238, 240 (3 b) (411 SE2d 65); Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784).

2. Appellant asserts the trial court erred in admitting the testimony of a law enforcement officer that he observed appellant driving a motor vehicle and in admitting the results of a State-administered breath test, because appellant’s arrest was illegal.

A detective of the county sheriff’s department received and responded to several complaints of loud noises in the vicinity of a field off a local public road. When the detective arrived in the area, he turned off his engine on the public road and heard screaming, hollering and music. The hollering sounded like people fighting and appeared to be coming from the direction of a power line easement area. Trying to locate the spot from whence the noise was emanating, the detective entered private property on a dirt road entering the easement area. Although there is a gate located on the dirt road a short distance from the public roadway, it cannot be closed. The detective drove the police vehicle along the dirt road within the power line easement and continued to turn off his engine to listen for the sounds. Thereafter, while still within the easement area, he heard the sound of an engine being “cranked-up,” of wheels spinning, and the sound of a vehicle coming out of the woods towards the police car — hitting bushes and trees as it moved. The detective then observed the vehicle coming quickly out of the woods and he turned the blue light on in the police vehicle. Appellant who was driving the vehicle “pulled on into the power line and . . . stopped prior to [reaching the police] car.” A passenger jumped from the front passenger seat and ran away. Appellant smelled of a strong odor of alcohol, swayed badly, and leaned against the car for support when talking. He made a voluntary, spontaneous admission that he was “too drunk to drive.” Appellant was arrested for DUI, and a subsequent Intoximeter 3000 printout showed a reading of .24. Appellant apparently was an invitee on the private property and was neither owner nor lessee thereof. The detective did not have either the owner’s or lessee’s permission to enter the private property when he did so.

Appellant’s attorney conceded at the suppression hearing that the motion to suppress goes merely to whether the detective had a legal right to be where he was when the stop was made. The trial court held that the case at bar does not fall within those cases pertaining to “curtilage case law,” and tacitly found as fact that the incident occurred in an open field. After considering the open field issue, the trial court denied the suppression motion.

County police, including the county sheriff, have general police power to investigate and make arrests (OCGA § 36-8-5; see OCGA § 15-16-10 (a) (8); § 17-4-27) as other law enforcement officials (OCGA § 17-4-20 (a)). Hudgins v. State, 188 Ga. App. 798, 799 (1) (374 SE2d 566) (physical precedent only). Thus, a detective employed by the county sheriff’s office may make an arrest, inter alia, without a warrant if a criminal offense is committed in his presence or within his knowledge. OCGA § 17-4-20 (a).

In this instance, the detective had received complaints regarding loud noise from a certain vicinity; proceeding to that vicinity, he observed through his sense of hearing, while on a public road, screaming, hollering (which sounded like people fighting) and music. In determining whether a suspicious situation should be further investigated or an arrest based on probable cause made, an officer may rely upon information acquired through any of his senses. See State v. Greene, 178 Ga. App. 875 (1) (344 SE2d 771); Martin v. United States, 155 F2d 503 (5) (5th Cir.). And since investigation and questioning are necessary elements of crime prevention and detection, the exigencies of the situation as they reasonably appear at the time must dictate the extent of intrusion into any constitutionally protected areas. State v. Roberson, 165 Ga. App. 727, 729 (302 SE2d 591). Here the detective had an articulable suspicion, based on information gained through his sense of hearing while on the public road, that a disorderly disturbance and fighting was occurring in the area into which he entered; thus, he reasonably could conclude at that time that an exigent situation was at hand. Accordingly, whether the area entered in fact was constitutionally protected under the Fourth Amendment, the conduct of the detective in entering onto private land through a gate and driving thereon on a dirt road located along a power line easement to investigate the self-confirmed complaint of loud noise and the suspected fighting was a legitimate intrusion and not unreasonable conduct within the meaning of the Fourth Amendment. See also Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (entering property by same route as would any guest or caller held to be a valid intrusion for legitimate investigative purposes).

Additionally, in Hester v. United States, 265 U. S. 57, 59 (44 SC 445, 68 LE 898), the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their “ ‘persons, houses, papers, and effects’ ” is not extended to the open fields. In Reece v. State, 152 Ga. App. 760 (264 SE2d 258), this court, citing Hester, concluded that evidence obtained from an aerial search of an open field owned by the brother of the defendant was not inadmissible as the product of an illegal search. In Thompson v. State, 154 Ga. App. 704 (1) (269 SE2d 474), citing Hester, we held “[a]ppellant[ ] had no Fourth Amendment protection against the seizure of contraband in the open fields of another.” It has been asserted, however, that the open field doctrine in Hester in effect has been negated by the United States Supreme Court’s subsequent holding in Katz v. United States, 389 U. S. 347 (88 SC 507, 19 LE2d 576). This court declined to accede to this view (see generally Williams v. State, 157 Ga. App. 476, 477 (277 SE2d 923); Giddens v. State, 156 Ga. App. 258, 259 (274 SE2d 595); Patterson v. State, 133 Ga. App. 742, 745 (2) (212 SE2d 858)). Moreover, in Oliver v. United States, 466 U. S. 170, 179 (104 SC 1735, 80 LE2d 214), the United States Supreme Court held: “In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance” (emphasis supplied), and concluded that the historical underpinnings of the open fields’ doctrine demonstrates that the doctrine is consistent in respect to the concept of “ ‘reasonable expectations of privacy’ ” (id. at 180). The court also held: “It is not generally true that fences or ‘No Trespassing’ signs effectively bar the public from viewing open fields in rural areas. . . . For these reasons, the asserted expectation of privacy in open fields is not an expectation that ‘society recognizes as reasonable.’ ” (Emphasis supplied.) Id. at 179. Likewise, ineffective as a bar of the public from viewing or hearing in open fields are gates which cannot be closed and trafficable dirt roadways.

Moreover, not only was appellant in an open field to which, additionally, public access was readily available through a gate which could not be closed, his conduct could be readily heard and observed from within the easement area and he ultimately stopped his car within that area. A Fourth Amendment violation occurs only if a defendant manifests a subjective expectation of privacy in a class of property protected by the Amendment that society accepts as objectively reasonable; that is, “[a]n expectation of privacy does not give rise to Fourth Amendment protection . . . unless society is prepared to accept that expectation as objectively reasonable.” California v. Greenwood, 486 U. S. 35, 39-40 (108 SC 1625, 100 LE2d 30). Not only does an open field fall within that class of property not given Fourth Amendment protection within the meaning of Hester, even under the rationale of Katz, supra, appellant could not claim a legitimate expectation of privacy that his conduct in this open field would be free from observation from the easement area, as those persons granted the easement are likely to be found within that area; and, thus, this is not the type of expectation which the public is willing to recognize as objectively reasonable within the meaning of Oliver v. United States and California v. Greenwood, supra.

But, easement notwithstanding, “an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.” Oliver, supra at 181. Questions as to whether warrantless conduct by the police is lawful under the Fourth Amendment are not strictly determined by common-law property law concepts, but are determined by whether, as here, the police action was reasonable under all the circumstances. United States v. Johnson, 561 F2d 832 (4) (USCA DC).

Appellant’s arrest was based on probable cause that he was driving while intoxicated. The officer both heard and saw the manner in which the vehicle was operated by appellant, and visually observed appellant’s conduct and appearance after he exited the vehicle in the easement area; the offense of DUI was committed in the officer’s presence. We are satisfied, under the attendant circumstances, that the arrest was legal and was not tainted by the reasonable conduct of the police in entering the easement area, and that the authority relied upon by appellant in support of his claim of error is not controlling.

3. Appellant asserts his conviction for habitual violator was contrary to the law and principles of justice. He argues that he was driving only on private property; that it was the legislature’s intent to remove a driver declared to be a habitual violator from the public highways of the state; and that the statute does not pertain to those driving only on private property.

OCGA § 40-5-58 (b) expressly prohibits a declared habitual violator from operating a motor vehicle “in this state,” after receiving the requisite statutory notice. The statute “evinces a clear legislative intent to prohibit a person who has been declared a habitual violator and whose license has been revoked from operating a vehicle anywhere in the [s]tate,” including on a private road or otherwise on private land. Jarrard v. State, 195 Ga. App. 704 (1) (394 SE2d 555); compare Gaines v. State, 260 Ga. 267 (392 SE2d 524) (defendant’s conviction as a habitual violator did not deprive him of equal protection of the law notwithstanding the police officer only saw him driving on a private driveway and not on a public roadway). Thus, as appellant’s conviction was not contrary to law and as the evidence of record is sufficient to meet the “beyond a reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) regarding both offenses of which appellant was convicted, his conviction as a habitual violator also was not contrary to the principles of justice as asserted by appellant.

Decided June 23, 1992.

Harrison & Harrison, Stephen P. Harrison, for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0396.
    MAPP v. THE STATE.
    (420 SE2d 615)
   Birdsong, Presiding Judge.

Police were called to the home of James Edward Mapp and his mother on a report to the effect that Mapp was drunk and disorderly. A scuffle ensued amongst appellant Mapp and the police. According to appellant, the trouble started when a police officer, who was appellant’s former brother-in-law, gratuitously arrived at the scene and began to push appellant around. One officer sustained a broken nose during the scuffle but indicated he thought this was an accident. Appellant was arrested and indicted for felony obstruction and misdemeanor obstruction. At trial he was acquitted of obstruction as to the officer who is his former brother-in-law, but convicted of felony obstruction of the officer whose nose was broken and of obstruction of another officer.

The record shows appellant filed lawsuits in federal court against attorneys who were consecutively appointed to represent him, as well as against the trial judge. The suit against the trial judge was dismissed before trial of the case. The first appeal was remanded for a hearing as to appointment of appellate counsel. Mapp v. State, 199 Ga. App. 47 (403 SE2d 833). Thereupon, appellant’s new counsel filed an extraordinary motion for new trial on grounds of ineffective assistance of trial counsel, which was heard and denied. Held:

1. Appellant complains that his former brother-in-law was allowed to testify before the grand jury, while appellant was not, thus unfairly bringing about an indictment which would not have resulted if appellant could have told his side of the story. OCGA § 45-11-4 provides that elected county officials charged with wrongdoing in performance of their duties “shall have the right to appear before the grand jury to make such sworn statement as he shall desire at the conclusion of the presentation of the state’s evidence.” The constitutionality of OCGA § 45-11-4 has been upheld, on the reasoning that public officials, who are peculiarly subject to complaint as to performance of their duties, may appear before the grand jury in the interest of preventing indictment on frivolous accusations. State v. Deason, 259 Ga. 183 (378 SE2d 120). Appellant says this reasoning should not apply to police officers, because they are not likely to be subject to politically motivated accusations. This argument is beside the point. OCGA § 45-11-4 is not involved in this case because the police officer did not appear before the grand jury in connection with an accusation against himself; rather he appeared before the grand jury as a prosecution witness for the State; the criminal defendant had no right to appear. See Harper v. State, 131 Ga. 771 (63 SE 339); United States v. Blodgett, 35 Ga. 336. We find no merit in this enumeration.

2. Appellant contends the trial court, having granted appellant’s motion for full recordation, erred in failing to have the voir dire and the recharge of the jury recorded.

It is the duty of the judge to direct the recordation of the trial proceedings in felony cases. OCGA § 17-8-5; State v. Hart, 246 Ga. 212 (271 SE2d 133). But where the transcript does not fully disclose what transpired at trial, it is the duty of the complaining party to have the record completed pursuant to OCGA § 5-6-41. Ivory v. State, 199 Ga. App. 283, 284 (405 SE2d 90). It has been held that the voir dire is required to be included in the transcript in death penalty cases, but not in other felony cases; in other felony cases, the appellant must show harmful error in the voir dire proceedings by objection and a ruling thereon. See State v. Graham, 246 Ga. 341, 342 (271 SE2d 627). According to State v. Graham, supra, the failure of the trial court to have the proceedings recorded does not require reversal as a matter of law. As to both the voir dire proceedings and recharge to the jury, we cannot determine that any harm was done by the failure to record those proceedings because appellant has not had the record completed by reconstruction, pursuant to OCGA § 5-6-41. To warrant reversal for the failure to record particular proceedings, “the party asserting error must show it by the record. Kemp v. State, 226 Ga. 506 (175 SE2d 869).” Id. at 343. Appellant has not suggested how he was harmed by the failure to record the voir dire and recharge, and thus has shown no grounds for reversal.

3. It was not reversible error per se that the trial court refused to provide appellant with a transcript of his probation revocation hearing. Harper v. State, 170 Ga. App. 601, 603 (4) (317 SE2d 567). Appellant has the duty to show not only error, but harm. “ ‘ “ ‘When [an appellant] brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.’. . .” ’ Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53).” Stamey v. State, 194 Ga. App. 305, 309 (390 SE2d 409). Appellant having shown no harm occasioned by the trial court’s failure to provide him a transcript of the probation revocation hearing, we will not reverse the conviction.

4. Appellant contends the trial judge erred in refusing to recuse himself, and in failing to refer the matter to an appropriate forum, inasmuch as appellant had sued the judge in connection with this prosecution. OCGA § 15-1-8 sets forth the particular circumstances in which a judge shall be recused. None of these circumstances applies in this case. The grounds for recusal in § 15-1-8 are exclusive and exhaustive, and courts may not add other grounds of disqualification to those stated in the statute. Daniel v. Yow, 226 Ga. 544 (176 SE2d 67); Blakeman v. Harwell, 198 Ga. 165 (31 SE2d 50); Elliott v. Hipp, 134 Ga. 844 (68 SE 736). A direct, certain and immediate pecuniary interest in the outcome of the case will disqualify a judge (Adams v. McGehee, 211 Ga. 498 (86 SE2d 525)), but the judge in this case had no such interest because the lawsuit against him was dismissed prior to the trial of this case and prior to the time appellant’s oral recusal motion was made. Mere bias or prejudice is not ground for disqualification (Clenney v. State, 229 Ga. 561 (192 SE2d 907)); even if a proper motion for recusal had been filed, thus invoking a hearing before another judge (see State v. Fleming, 245 Ga. 700, 701-702 (267 SE2d 207)), appellant has shown no cause for speculation that the judge was so influenced by the filing of a lawsuit, which was likewise filed against the lawyers who had represented appellant and which had already been dismissed, as to have infected the trial with personal bias and prejudice, affecting the outcome of the case and demanding a finding of harmful error. See Hamilton v. State, 239 Ga. 72 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

5. Appellant contends the trial court erred in charging on the defense that the arrest was illegal because appellant had committed no underlying offense to justify an arrest.

Appellant has not complied with Rule 15 (a) (1) of this court, which requires a statement in Part One of appellant’s brief, setting forth “the method by which each enumeration of error was preserved for consideration by this court.” However, the record shows affirmatively that after the charge to the jury the trial court inquired of counsel whether there were any exceptions to the charge, and counsel for appellant responded in the negative. If the trial court asks whether there are any objections to the charge, counsel must either state his objections or reserve his right to object on appeal. Laster v. State, 196 Ga. App. 854, 855 (397 SE2d 191). Appellant did neither in this case; he is therefore precluded from raising the objection on appeal. See Wigley v. Hambrick, 193 Ga. App. 903, 905-906 (389 SE2d 763). In any case, the charge was not required to be given because it was not necessary that the State prove the underlying offense, but merely that the officers were acting in lawful discharge of their duties. Whaley v. State, 175 Ga. App. 493 (333 SE2d 691).

6. Appellant contends the State did not prove any underlying offense which would have justified the arrest. In Whaley, at p. 494, we held: “It is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful. ... In [Whaley] . . . there is no question that appellant was acting knowingly and wilfully when he began struggling with the officers. Moreover, the officers were acting within the meaning of the statute since they were attempting to effectuate a lawful arrest.” What this means is that the State need not prove appellant was engaged in disorderly conduct or was guilty of such offense. What is necessary is that the officers were acting in the lawful discharge of their duties when they attempted to arrest the defendant. Whaley, supra; see, e.g., Johnson v. State, 201 Ga. App. 88, 89 (410 SE2d 189). It was proven that the officers were called to the home of appellant and his mother to investigate and handle a violent disturbance, and the jury could not reasonably conclude police were not acting in the discharge of their lawful duties. We find no merit in this enumeration.

7. Finally, appellant contends in three enumerations that he had ineffective assistance of trial counsel. The State first contends that our previous remand with allowance of an out-of-time appeal did not authorize the trial court to hear any other matter. But, it was held in Ponder v. State, 260 Ga. 840, 841 (400 SE2d 922) that “the grant of an out-of-time appeal constitutes a permission to pursue appropriate post-conviction remedies, including a motion for new trial. ... [A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal.” The procedure followed by counsel in this case was correct.

As to the claim of ineffectiveness of trial counsel, the singular contention of appellant is that trial counsel failed to preserve the error of the trial court’s failure to charge on the requirement that the State prove an underlying offense authorizing the police to arrest appellant. Inasmuch as the State did not have to prove the elements of an underlying offense (see Division 5), and appellant was not entitled to the charge, it cannot be said counsel’s performance was deficient in failing to object to the failure to give it or that appellant was prejudiced by such deficiency. See Brinson v. State, 191 Ga. App. 151 (381 SE2d 292). The trial court’s ruling was not erroneous. See Smith v. State, 256 Ga. 483 (351 SE2d 641).

Decided June 24, 1992.

J. Wayne Moulton, for appellant.

Cheryl F. Custer, District Attorney, for appellee.

8. We find the evidence in the case to be sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes convicted, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.