text:
    A95A2741.
    JAHANNES v. MITCHELL et al. MITCHELL et al. v. JAHANNES (two cases).
    A95A2742, A95A2743.
    (469 SE2d 255)
   Andrews, Judge.

Jahannes, a professor at Savannah State College (SSC), brought suit against the Board of Regents of the University System of Georgia and against four individual defendants also employed at SSC for actions allegedly taken both within and without the scope of their employment at SSC. In his complaint, Jahannes set forth claims for breach of contract, violation of due process rights, libel, slander, and intentional infliction of emotional distress. These appeals involve only the claims made against two of the individual defendants, Mitchell and Williams.

Jahannes claims that, while Mitchell and Williams were employed at SSC, they made false allegations against him that, as the Dean of the School of Humanities and Social Sciences at SSC, he misused certain funds allocated to SSC. He claims that statements, oral and written, were made by Mitchell and Williams as part of and outside of formal grievance procedures instituted against him at SSC concerning the allegations. He claims the false allegations were also made at a press conference held by an attorney acting on behalf of Mitchell and Williams in violation of SSC faculty regulations prohibiting public statements and publicity concerning the grievance allegations. As a result of the false allegations, Jahannes claims he was removed from his position as Dean and that he suffered damage to his reputation and emotional distress. It is undisputed that Jahannes remained employed as a tenured professor at SSC.

Mitchell and Williams moved for summary judgment as to all counts of the complaint. The trial court granted summary judgment in favor of Mitchell and Williams on the claims for breach of contract, violation of due process, libel and slander, and denied summary judgment on the claim for intentional infliction of emotional distress. In Case No. A95A2741, Jahannes appeals from the partial grant of summary judgment in favor of Mitchell and Williams. The cross-appeal of Mitchell and Williams in Case No. A95A2742, and the interlocutory appeal granted to Mitchell and Williams in Case No. A95A2743, both appeal from the trial court’s partial denial of summary judgment.

Case No. A95A2741

1. Jahannes claims the trial court erred by granting summary judgment in favor of Mitchell and Williams on his claim for breach of contract.

In his complaint, Jahannes alleged he held his position as Dean of the School of Humanities and Social Sciences at SSC pursuant to a contract with the Board of Regents, which governs SSC as a part of the University System of Georgia. He alleged the Board of Regents breached his employment contract when he was removed from the position of Dean without proper cause. The trial court granted summary judgment to Mitchell and Williams on the basis that no allegation of breach of contract had been made against these defendants, and they had no contractual relationship with Jahannes.

In response to the motion for summary judgment, Jahannes alleged a breach of contract claim entirely different from the averments in his complaint. He alleged Mitchell and Williams were not entitled to summary judgment because: (1) faculty regulations at SSC governing the grievance procedures at issue formed a part of Mitchell’s and Williams’ employment contracts at SSC; (2) Mitchell and Williams breached their contracts when they called a press conference to publicize the allegations they made in the grievance in violation of faculty regulations and (3) he was a third party beneficiary of the breached contracts entitled to maintain an action for the breach.

This completely new claim made for the first time in response to the motion for summary judgment does not satisfy even the liberal requirements of the Georgia Civil Practice Act (OCGA § 9-11-1 et seq.) for notice pleading. In the absence of any effort to amend the complaint to fairly state the new claim prior to summary judgment, the defendants were not given reasonable notice of the claim and had no opportunity to frame a responsive pleading to the claim. Allen v. Bergman, 201 Ga. App. 781, 783-784 (412 SE2d 549) (1991); see Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924) (1968). “Accordingly, at the time the motion for summary judgment was granted, there existed no viable [third party beneficiary claim].” Allen, supra at 783. t

Moreover, even if reasonable notice had been given, the record does not support such a claim. “In order for a third party to have standing to enforce a contract under [OCGA § 9-2-20] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976).

The trial court did not err by granting summary judgment in favor of Mitchell and Williams.

2. Jahannes claims the trial court erroneously granted summary judgment in favor of Mitchell and Williams on his due process claim.

In his complaint, Jahannes alleged that his due process rights under the Georgia and United States Constitutions were violated when he was dismissed by the President of SSC from the position of Dean without a hearing prior to the dismissal. Despite conceding in response to the motion for summary judgment that Mitchell and Williams had no contractual authority to remove him as Dean, Jahannes, nevertheless, contended in response to the motion for summary judgment that these defendants violated his due process rights. Once again, he did so on the basis of allegations totally unrelated to the averments in his complaint. He claimed that the press conference called by Mitchell and Williams had the effect of violating his due process rights by wrongfully prosecuting him in the media rather than in the SSC grievance process. He also claimed Mitchell and Williams violated his due process rights by exerting influence on the President of SSC to remove him from the position of Dean.

For the same reasons stated in Division 1, because these additional due process claims bore no relation to the averments in the complaint and were brought in response to summary judgment without any attempt to amend the complaint, no reasonable notice of the claims was provided as required by the Georgia Civil Practice Act. Accordingly, no such claims were viably presented at the time of summary judgment. Allen, supra at 783.

Nevertheless, even if the new claims had been properly pleaded, they do not support Jahannes’ due process claims, especially given the apparent fact that the President of SSC had the right to remove Jahannes from the position of Dean at will. Johnson v. MARTA, 207 Ga. App. 869, 873 (429 SE2d 285) (1993) (no protected due process right in a position terminable at will).

There was no error in the grant of summary judgment on this claim.

3. Lastly, Jahannes argues that summary judgment was erroneously granted because the one-year statute of limitation in OCGA § 9-3-33 should not bar his claims against Mitchell and Williams for libel and slander.

Actions for injuries to reputation, such as those asserted in Jahannes’ libel and slander claims, must be brought within one year of the date of the alleged defamatory acts. OCGA § 9-3-33; Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (269 SE2d 867) (1980). Even though he concedes the written and spoken allegations against him were made more than one year before he filed the complaint alleging libel and slander, Jahannes contends the one-year limitation period was tolled under the provisions of OCGA § 9-3-96. Under OCGA § 9-3-96, “[the applicable] limitation period may be tolled if the defendant committed an act of actual fraud that had the effect of concealing from the plaintiff the existence of the cause of action despite [his] exercise of reasonable diligence.” Hahne v. Wylly, 199 Ga. App. 811, 812 (406 SE2d 94) (1991); Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Jahannes claims, not that he was unaware of the alleged defamatory statements because of fraud or any other reason, but that the limitation period should be tolled during the pendency of the grievance procedure brought against him at SSC. This was not a basis for tolling the one-year limitation period. The trial court properly granted summary judgment in favor of Mitchell and Williams on the libel and slander claims.

Case Nos. A95A2742 and A95A2743

4. Mitchell and Williams appeal from the trial court’s denial of their motion for summary judgment on Jahannes’ claim for intentional infliction of emotional distress.

Decided February 6, 1996

Harris Odell, Jr., Birney 0. Bull, for appellant.

Bouhan, Williams & Levy, Frank W. Seiler, Roy E. Paul, Timothy H. Edwards, for appellees.

It is undisputed that the basis for Jahannes’ claim for emotional distress damages was the alleged defamatory statements made by Mitchell and Williams. Since the undisputed facts show that the claim for intentional infliction of emotional distress was premised on the same alleged libelous and slanderous acts upon which the statute of limitation has run (see Division 3), it necessarily follows that Mitchell and Williams were also entitled to summary judgment in their favor on this claim. Davis, supra at 656-657.

Although this issue was not directly ruled upon in the trial court or raised on appeal in connection with the emotional distress claim, the record shows no dispute as to the facts related to this issue, and the legal conclusion necessarily follows from the rulings of the trial court and this Court in Division 3 regarding the expiration of the applicable limitation period. Since the law applicable to this claim was raised and resolved in Division 3 and no disputed factual issue remains to be addressed by the trial court, judicial economy dictates that we recognize the preclusive effect of the undisputed facts and law on this claim and bring this litigation to a conclusion.

Judgment affirmed in Case No. A95A2741. Judgment reversed in Case Nos. A95A2742 and A95A2743.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A95A1971.
    STUBBS v. THE STATE.
    (469 SE2d 229)
   Smith, Judge.

David Mercer Stubbs was indicted by a Gwinnett County grand jury for aggravated assault, OCGA § 16-5-21 (a) (2), and kidnapping with bodily injury, OCGA § 16-5-40 (b). The jury returned a verdict of “guilty of assault” and “guilty of kidnapping with bodily injury.”

1. On Count 1, aggravated assault, the jury was charged on the lesser offenses of pointing a pistol at another and simple battery. Upon written request from the jury during deliberations, the trial court gave a recharge on aggravated assault and simple battery. The jury returned a verdict on Count 1 of “guilty of simple assault.”

“[S]imple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon.” (Citations and punctuation omitted.) Strickland v. State, 198 Ga. App. 570, 571 (1) (402 SE2d 532) (1991). If the trial court receives a verdict of guilty on a crime that was neither charged nor was a lesser included offense of a crime charged, then the verdict has the legal effect of an acquittal. Cross v. State, 124 Ga. App. 152, 153 (2) (183 SE2d 93) (1971). The State does not contest that the verdict returned was on an uncharged offense and that simple assault was not a lesser included offense; the State has consistently taken the position at trial and on appeal that this verdict was a nullity and operated as an acquittal on Count 1. We agree. The trial court erred in sentencing Stubbs on Count 1, and this portion of the judgment of conviction and sentence must be reversed.

Stubbs further contends the verdict on Count 1 was inconsistent with the verdict on Count 2, because it shows that the jury misinterpreted the facts and the law and justifies the grant of a new trial as to Count 2. This argument relies upon the inconsistent verdict rule abolished by Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), and is without merit. See Smashum v. State, 261 Ga. 248, 249 (2) (403 SE2d 797) (1991).

2. Stubbs asserts the general grounds on appeal of his conviction of kidnapping with bodily injury. Construed to support the verdict, the evidence shows that Stubbs asked his estranged wife to go shopping with him to buy Christmas presents for their children. Instead he took her to an apartment, where he struck her, sat on top of her, and attempted to tie her up with duct tape. She avoided being taped up and managed to talk Stubbs into letting her go. He finally stood up, saying, “[I b]rought you here to kill you, but I can’t go through with it.” He stated that he would take her back to her home, but instead took her to his mother’s house, saying he had to get something. There he told her, “I’ve gone too far with this. You won’t let me get away with this,” and forced her into the car trunk.

As Stubbs drove away, he told his wife, “I’m going to kill you,” and turned up the car radio so that he could not hear her pleas. While he drove around for 30 to 45 minutes, she tried various means to escape from the trunk. Ultimately she succeeded in releasing the trunk mechanism from the inside, waited until she heard traffic behind her, opened the trunk lid, and waved for help. When the trunk lid flew up Stubbs slowed the car, and his wife leaped from the trunk and ran barefoot down the middle of the road towards a car that had stopped. She had reached the car and was asking the occupants for help as Stubbs overtook her, grabbed her by the hair, and began to drag her back towards the car. She managed to get away from him and ran towards another vehicle that had stopped. Stubbs first fled the scene, then returned within a few minutes. He told the crowd that had gathered that his wife was “crazy” and that it was “just a squabble.” A bystander, however, had already called police and prevented Stubbs from leaving by disabling the car. When the police officer arrived, Stubbs volunteered to him that he did not know his wife was in the trunk. He maintained this position at trial and on appeal, contending the entire episode was an elaborate effort by his wife to “get” him in connection with their pending divorce proceedings.

Mrs. Stubbs’s hands were cut in her attempts to free herself from the car trunk. Stubbs contends his wife’s injuries fail to meet the requirement of kidnapping with bodily injury because she inflicted the injuries on herself in her attempts to escape. The statute itself provides, however: “if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death.” (Emphasis supplied.) OCGA § 16-5-40 (b). “A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” OCGA § 16-2-5. When Stubbs kidnapped his estranged wife, attempted to prevent her escape by locking her in the car trunk, and informed her that he was going to kill her, the reasonable and probable consequence was that she would attempt to escape her impending death, even at the cost of some personal injury. Stubbs, therefore, was responsible for the injuries she received in her attempts to escape. There was ample evidence presented from which a rational trier of fact could reasonably find that Stubbs was guilty beyond a reasonable doubt of kidnapping with bodily injury in violation of OCGA § 16-5-40. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Fields v. State, 216 Ga. App. 184, 188 (3) (453 SE2d 794) (1995) (evidence sufficient to support verdict of kidnapping with bodily injury where victim fell and scraped her knees as defendant attempted to prevent her flight).

3. Stubbs contends the trial court erred in overruling his motion for a mistrial after a non-responsive comment by a witness. This witness was told by Stubbs’s wife that Stubbs had a gun. When Stubbs returned to the scene, the witness first ascertained that Stubbs was not armed then obtained Stubbs’s car keys on the pretext of looking at a broken radiator hose and searched the car for a gun. On cross-examination, he was questioned repeatedly about opening the trunk lid on Stubbs’s car. He responded that he was looking on the trunk deck and under the seats for a gun because he was in “fear of my life and everybody else[’s] life there. I’m not saying that he had a gun. All I’m saying was this boy was scared.” The court asked for clarification on the colloquialism “this boy,” confirming that the witness was referring to himself rather than to Stubbs or some other person.

Contrary to Stubbs’s contention, a witness’s statement that he was “scared” or “in fear of my life” is not an impermissible statement of opinion. Such testimony supports an essential element of many crimes, including reckless conduct, see Jackson v. State, 205 Ga. App. 827, 828 (1) (b) (424 SE2d 6) (1992), and robbery by intimidation, OCGA § 16-8-40 (a) (2), as well as such defenses as self-defense, OCGA § 16-3-21, and coercion, OCGA § 16-3-26.

Moreover, the witness had already testified on direct examination that he searched Stubbs’s car to assure himself that Stubbs did not have a gun. On cross-examination, he was amplifying his reasons for opening and searching Stubbs’s car in response to repeated questions by Stubbs’s attorney regarding his actions. “Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court arid its ruling will not be disturbed absent an abuse of discretion. Under these circumstances we find no abuse of discretion. The trial court did not err in denying appellant’s motion for a mistrial.” (Citations and punctuation omitted.) Bohannon v. State, 208 Ga. App. 576, 581 (3) (d) (431 SE2d 149) (1993).

4. Stubbs contends the trial court commented on the evidence in violation of OCGA § 17-8-57 in sustaining an objection to his closing argument by ruling that the argument was unsupported by the evidence. This contention is completely without merit. The trial court, in ruling on such an objection, must determine whether counsel’s argument is “reasonably suggested by the evidence.” Durden v. State, 250 Ga. 325, 329-330 (6) (297 SE2d 237) (1982). “[R]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citations and punctuation omitted.) Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995).

5. The court reporter noted that “a portion of the transcript is missing because person or persons unknown to this reporter entered the court reporter’s office and damaged one of the tapes of the trial and this portion of the trial was deleted from the tape.” Stubbs complains of the preparation of this portion of the transcript from recollection pursuant to OCGA § 5-6-41, contending this procedure effectively deprived him of his right to appeal. This contention is also without merit.

Decided January 25, 1996

Reconsideration denied February 7, 1996

Glyndon C. Pruitt, for appellant.

Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

OCGA § 5-6-41 (f) and (g) set out the procedure for seeking to correct an inaccurate or incomplete transcript, and for providing a transcript from recollection when a transcript of proceedings is unobtainable. These Code sections provide for resolution by the trial court of disputes between the parties as to the content of such transcripts. This procedure is appropriate in felony cases. Zant v. Cook, 259 Ga. 299, 300 (379 SE2d 780) (1989). The State filed a proposed summary of the missing material, and the trial court issued an order pursuant to OCGA § 5-6-41 (f) and (g) certifying the contents of the missing portion of the transcript from recollection. Stubbs did not participate in this process, apparently standing on the contention made in his previously filed motion for new trial that the unavailability of a portion of the transcript required the grant of a new trial.

Stubbs’s reliance on Knowles v. State, 156 Ga. App. 389 (274 SE2d 590) (1980), is misplaced. First, that decision was reversed by the Supreme Court in State v. Knowles, 247 Ga. 218 (274 SE2d 468) (1981), holding that although the trial court, counsel, and court reporter were unable to decipher portions of surveillance tapes played by the State at trial, the record and transcript were sufficiently complete and accurate to afford a full and fair review. Knowles, supra, 247 Ga. at 219. Second, the trial court acknowledged it was unable to decipher the tapes and invited this Court to do so. Knowles, supra, 156 Ga. App. at 390. OCGA § 5-6-41 (g) provides explicitly for those cases in which the parties cannot agree as to the correctness of a transcript from recollection, and Stubbs did not follow that procedure here. The trial court did not err in following the prescribed statutory procedure for supplementation of the trial transcript.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Johnson, J., concur.

       At the trial of this case in 1991, the trial court did not have the benefit of State v. Freeman, 264 Ga. 276 (444 SE2d 80) (1994), reversing Freeman v. State, 210 Ga. App. 183 (435 SE2d 461) (1993). It is now clear that the trial court should refuse to receive a verdict not within the range of its instructions and “should return the jury for further deliberation with direction to return a verdict within the range of the instructions originally given to it.” Freeman, supra, 264 Ga. at 278.

       The charge of aggravated assault was based upon the victim’s observation that Stubbs “had a gun” during this episode. He pointed the gun at his own head, pointed it at the victim’s head, then back at his own head, “waving it around.”


text:
    A95A2863.
    HEMAK et al. v. HOUSTON COUNTY SCHOOL DISTRICT et al.
    (469 SE2d 679)
   Smith, Judge.

Mr. and Mrs. Hemak brought this action against Ocmulgee Disposal, Inc., the Houston County School District, the Houston County Board of Education, and several school district employees for personal injuries incurred by Mrs. Hemak on the premises of Warner Robins Middle School. The Hemaks appeal summary judgment granted on the basis of derivative or official immunity in favor of Beck, the school principal, and Rewis, a teacher who also developed a district-wide safety program. We conclude that Beck and Rewis are immune from individual liability because their duties and acts were discretionary, not ministerial. We therefore affirm.

In December 1991, Mrs. Hemak was leaving a school concert when she fell into a damaged storm drain grate in a roadway. The Hemaks alleged in their complaint that the grate had been damaged at some previous time by Ocmulgee, the private garbage collection contractor for the school. Ocmulgee allegedly dropped a dumpster on the grate, breaking and bending a bar on the grate and creating a gap large enough for Mrs. Hemak’s foot to pass through.

Some time before Mrs. Hemak’s injury, Beck noticed the damaged grate as he was walking on the school grounds. He met personally with an employee of the maintenance department and asked him to report the damaged grate on his radio, which was done in Beck’s presence. A maintenance department supervisor came to the school and inspected the grate as soon as he received the radio call. He determined that the grate could be temporarily repaired but ultimately would require replacement “when one could be ordered and got in stock.” A temporary repair was made the next day, but failed at some later time because the weld did not hold. While it was Beck’s experience that the maintenance department generally did “a pretty good job” in making repairs, the grate was not repaired again or replaced before Mrs. Hemak’s injury, which occurred on December 12, 1991. No witness had an exact recollection of when the damaged grate was first noticed and reported, but Beck believed it was in early or mid-October. He did not know what steps had been taken by the time of Mrs. Hemak’s injury to repair or replace the grate.

While Rewis had used the title of “safety director,” he disputed that title, testifying that his job description was “Safety and Driver Education.” He was a driver education teacher, transportation safety and bus driving teacher, and bus license examiner, who also worked with the district’s workers’ compensation program. He had taken some classes on traffic safety and was required to make inspections of school facilities and school grounds as part of the school district safety program. He testified, however, that the focus of the safety program was employee safety and workers’ compensation. He performed fairly regular inspections of Warner Robins Middle School, including one in November 1991, but he did not notice any damage to this grate.

The Hemaks contend Beck was negligent both in failing to follow up his call to maintenance to ensure that the grate was properly repaired in accordance with his instructions and in failing to ensure that warnings were placed or a temporary repair made. They also contend Rewis was negligent in failing to find the broken grate in his November 1991 safety inspection.

As the trial court correctly noted, this case turns on the principle of derivative or official immunity of government officials and employees. “Sovereign or governmental immunity, which applies to the state and its subdivisions, is intended to protect the public purse. Official immunity, in contrast, is applicable to government officials and employees sued in their individual capacities. While official immunity does not apply to purely ministerial duties required by law, public officials are immune from individual liability for discretionary acts undertaken in the course of their duties and without wilfulness, malice, or corruption. This official immunity is intended to protect public officials in the honest exercise of their judgment, however erroneous or misguided that judgment may be. Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced.” (Citations and punctuation omitted.) Schmidt v. Adams, 211 Ga. App. 156 (438 SE2d 659) (1993).

The scope of this official immunity was clearly established in Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), and Holloway v. Dougherty County School System, 157 Ga. App. 251, 252-253 (277 SE2d 251) (1981). “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). See also Sisson v. Douglas County School Dist., 181 Ga. App. 77, 78-79 (1) (351 SE2d 272) (1986).

The recent decision of Bitterman v. Atkins, 217 Ga. App. 652, 654 (458 SE2d 688) (1995) (physical precedent only), involved facts very similar to those presented here. A student was injured by the collapse of improperly installed lockers in the gym dressing room. His parents sued the school principal, alleging failure to supervise the workmen who installed the lockers. After reviewing the law giving public officials immunity for discretionary acts, this Court observed: “Plaintiffs alleged that the principal’s failure was compounded by the fact that he was aware the lockers had previously been pushed over by students injuring another student. Although the principal was primarily responsible for ordering the new lockers, once they were delivered, . . . the maintenance supervisor was responsible for the installation. The principal’s responsibility was within his discretionary duties, and as such, the doctrine of sovereign immunity acts to shield [him] in the absence of evidence that [he was] wilful, malicious, or corrupt. [Cits.]” Id. at 654-655.

The reasoning in Bitterman is directly applicable here. Inspecting school property for hazards, deciding what constitutes a hazard, selecting appropriate methods for correction, and creating priorities and a schedule for correction, all necessarily involve the exercise of discretion whether on the part of Beck or Rewis. See, e.g., Hennessy, supra (school principal’s failure to correct allegedly unsafe rug and mat in doorway involved exercise of discretionary function). If anything, this case presents a clearer case of the exercise of discretion than Bitterman. Here, a school official exercised his discretion and reported the damaged grate to the appropriate department for repair, the grate was in fact repaired, and the repair failed. The follow-up or review of repairs made by a maintenance department, involving as it does the evaluation of the quality of those repairs, is the essence of a discretionary function.

The Hemaks contend that this Court should adopt a more restrictive definition of “discretionary” taken from the text of the Georgia Tort Claims Act. This assertion is without merit. That Act is inapplicable here, see OCGA § 50-21-22 (5), and the definition by its own terms applies only “as used in this article.” OCGA § 50-21-22. Moreover, it does not appear that the use of that definition would change the result in this case. As noted above, the decisions made by the defendants in this case required the exercise of “policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

The Hemaks also assert that a regulation promulgated by the Houston County School Board created an absolute, non-discretionary, ministerial duty on the part of Beck and Rewis to follow up personally on the repair to ensure it was carried out properly. This regulation is entitled “Safety of Buildings and Grounds” and provides: “A continuous evaluation of each school facility shall exist in ascertaining the ultimate in safety considerations. The building principal and custodial staff shall maintain an on-going safety program in conjunction with the buildings and grounds department in assuring that a reasonable program of facility safety is carried out. . . . Situations which openly invite accidents in the buildings or on the grounds should be eliminated and avoided.”

In Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995), we discussed the effect of school board regulations on the status of school employees’ acts as ministerial or discretionary in nature. A student was injured by a visitor on school property and sued the school principal, contending that the principal had a ministerial duty to prevent loitering, based on the adoption of a Georgia Code section as School Board policy. The relevant Code section, former OCGA § 20-2-1180, provided in part: “Each principal of each public or private school in this state shall have the authority to exercise such control over the buildings and grounds upon which a school is located so as to prohibit any person who does not have a legitimate need or cause to be present thereon from loitering upon such premises.” This Court held that the regulation did not impose a ministerial duty on the school principal and a teacher, that the acts of the teacher and principal required the exercise of discretion, and that they were thus protected by their derivative immunity. Teston, supra at 831.

Appellees contend the regulation here is too general in nature to create a ministerial, non-discretionary duty in Beck or Rewis personally to supervise or make specific repairs, and we agree. The regulation does not explicitly identify or define any conditions which constitute a hazard, nor does it prescribe a procedure or method for dealing with any hazards found. The “evaluation]” or “ascertain[ment]” of a hazardous “situation,” the methods used to “eliminate” or “avoid” it, and the carrying out of a “reasonable” safety program are left to the discretion of the school district employees. In sum, the language of the regulation itself shows that “the exercise of personal deliberation and judgment” will be involved. Joyce, supra at 96.

The Hemaks also attempt to distinguish those cases involving supervision of students from those involving maintenance or repair of school property, asserting in essence that all decisions with regard to repair and maintenance are by definition ministerial. The Georgia courts, however, have never framed the issue of ministerial versus discretionary duties in terms of the subject matter of the duties. The central question is whether the act complained of “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Teston, supra at 830. If a decision calls for the exercise of such judgment, it is discretionary, regardless of whether the subject of the decision is students or school property. In fact, the leading Hennessy case itself involved the maintenance of school property, an allegedly hazardous rug and mat in a school doorway. Hennessy, supra at 329.

Decided January 23, 1996

Reconsideration denied February 7, 1996

O’Neal, Brown & Sizemore, Manley F. Brown, Philip M. Brown, John C. Clark, Robert S. Slocumb, for appellants.

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., Adams & Hemingway, William P. Adams, F. Bradford Wilson, Jr., for appellees.

Because the duties involved in this incident were discretionary, the trial court correctly granted summary judgment to Beck and Rewis on the basis of their official immunity.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       As noted above, a maintenance supervisor testified that a temporary repair was made, although it later failed.

       This is not necessarily true, however, of all regulations promulgated by the school board. For example, the regulation immediately following requires the use of eye safety devices in classes and activities involving specifically enumerated hazardous materials and procedures. It places responsibility for obtaining the devices on the principal and chairperson of the department involved and responsibility for using the devices on the teacher.


author: Blackburn, Judge.

text:
    Motions Docket No. 218.
    SAULS v. THE STATE.
    (468 SE2d 771)
    Order of Court.
   Blackburn, Judge.

At 8:50 a.m., today, February 7, 1996, movant filed his Emergency Motion for Stay of Grand Jury Proceedings pursuant to Georgia Court of Appeals Rule 40 (erroneously cited as Rule 41), seeking to stay the Fulton County Grand Jury Proceedings scheduled to begin today at 9:00 a.m., until such time as the State has provided movant with copies of all witness statements. Movant seeks the witness statements prior to making a sworn statement before the grand jury.

OCGA §§ 17-7-52 and 45-11-4 provide rights to certain public, officials, including police officers, not available to ordinary citizens. The rights the legislature has seen fit to allow public officials against whom an indictment is being sought, are the right to receive a copy of the proposed indictment at least 15 days prior to the presentation to the grand jury, the right to be present with counsel during the testimony of witnesses, and the right to make a sworn statement to the grand jury. OCGA § 45-11-4.

Movant seeks to expand the extraordinary rights which the above statutes provide to include a right to review all witness statements prior to the Grand Jury Proceeding. Movant cites no statute or case authority for the expansion he seeks and no such right is included in the statutes as written.

Decided February 7, 1996.

L. David Wolfe, for appellant.

Henry Newkirk, Assistant District Attorney, for appellee.

Under Georgia law, there is no authority to grant movant’s request. OCGA § 17-16-4 requires the State to provide certain witness statements to a defendant who has been indicted, at least ten days prior to trial but is not applicable to an unindicted individual. Movant will hear everything the grand jury hears in considering his case and will thus have an advantage in preparing his sworn statement which ordinary citizens do not enjoy.

Movant’s Emergency Motion is hereby denied, this seventh day of February 1996, 10:30 a.m.


author: Johnson, Judge.

text:
    A95A2365.
    SOUTH GWINNETT ATHLETIC ASSOCIATION, INC. v. NASH et al.
    (469 SE2d 276)
   Johnson, Judge.

After playing in a little league baseball game on property owned by the South Gwinnett Athletic Association, Inc., eight-year-old Adam Nash stayed on the Association’s property to watch his younger brother play in a t-ball game. Adam climbed onto a cinder block wall, which was part of an unfinished set of new bleachers, to watch his brother’s game. Mark Nash, Adam’s father, was coaching third base in the t-ball game when he saw Adam standing on the wall and signaled for him to get off of it. Adam got off the wall and then walked into nearby woods where he found a three-foot chain. Adam returned to the wall and hooked one end of the chain around a bolt that was sticking out of the top of the wall. Adam then began climbing the side of the wall, using the chain to pull himself upwards. Adam was about halfway up the wall when it collapsed. Adam’s leg was injured in the fall. Adam, by his next friend Mark Nash, and Mark Nash individually, sued the Association for failure to guard or warn against a dangerous condition. The lawsuit was tried before a jury, which returned a verdict in favor of the Association. The Nashes filed a motion for a new trial, challenging the sufficiency of the evidence and the jury charge. The trial court granted the Nashes’ motion. The Association then moved for summary judgment on the ground that it cannot be held liable under Georgia’s Recreational Property Act, OCGA § 51-3-20 et seq. The trial court denied that motion, but granted the Association a certificate of immediate review. This Court granted the Association’s application for interlocutory review.

1. The Association correctly asserts that it is shielded from liability by the Recreational Property Act. The purpose of the Act is to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability. OCGA § 51-3-20; see Maleare v. Peachtree City Church of Christ, 213 Ga. App. 593, 594 (1) (445 SE2d 321) (1994). In order to achieve this purpose, the “Act specifies that ‘an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes’ may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. OCGA §§ 51-3-23; 51-3-25 (1). See also OCGA § 51-3-22.” (Citation and punctuation omitted.) Quick v. Stone Mtn. Memorial Assn., 204 Ga. App. 598 (420 SE2d 36) (1992).

The Association avers that it permitted people to use its property without charge for recreational purposes. Although the Nashes have not challenged these averments, we must review the evidence to determine if the Act applies to the Association. In deciding whether the Act applies, “[t]he important criterion is the purpose for which the public is permitted on the property. If the public is invited to further the business interests of the owner — e.g., for sales of food, merchandise, services, etc. — then the [Act] will not shield the owner from liability even though the public receives some recreation as a side benefit.” Cedeno v. Lockwood, Inc., 250 Ga. 799, 802 (2) (301 SE2d 265) (1983). In the instant case, there is no evidence that the public was invited onto the Association’s property to further the Association’s business interests. Instead, the evidence shows without dispute that the Association is a non-profit organization founded to operate athletic and recreational programs for young people, and that the Association’s property was used for those programs. Thus, there is no question that the property is used for recreational, not business, purposes.

We also agree with the Association’s averment that it did not charge the public to use its property for recreation. “ ‘Charge’ is defined in the Act as ‘the admission price or fee asked in return for invitation or permission to enter or go upon the land.’ OCGA § 51-3-21 (1).” Majeske v. Jekyll Island &c. Auth., 209 Ga. App. 118, 119 (1) (433 SE2d 304) (1993). In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act. See Spivey v. City of Baxley, 210 Ga. App. 772, 774 (437 SE2d 623) (1993); Majeske, supra at 119-120 (1). Moreover, at the time of his accident, Adam Nash was not playing baseball, but was a spectator at his brother’s game. It is uncontroverted that Adam, like any other spectator, was not charged any fee to watch the game because the Association’s ball fields are open to the public to spectate free of charge. Consequently, at the time of his injury, Adam Nash was on the Association’s public recreational property at no charge. See Spivey, supra.

The Nashes’ primary argument is that the Association is not shielded by the Act due to its wilful and malicious failure to warn them that the bleachers, which were under construction, were dangerous because the mortar in the cinder block walls was still wet and not fully dried. We disagree with this argument. At trial, the Nashes presented no evidence that the mortar in the wall from which Adam fell was still wet. Likewise, on appeal, they have made no citation to the record or transcript supporting their allegation that the mortar was wet. Our own review of the entire record and transcript has uncovered no evidence to support such a finding. On the contrary, we find only that the Association introduced testimony that at the time of the accident the mortar should have dried. The Association’s evidence showed that the mortar takes two to three days to dry, and that at the time of Adam Nash’s fall the mortar had been drying for nearly three and one-half days. Thus, the factual premise of the Nashes’ argument is not only unsupported, but is actually contradicted, by the evidence. Nevertheless, even assuming that there is a genuine issue of fact as to whether the mortar was dry, there still is no evidence that the Association acted wilfully or maliciously.

“A wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.” (Citation and punctuation omitted.) Edmondson v. Brooks County Bd. of Ed., 205 Ga. App. 662, 663 (423 SE2d 413) (1992). Here, the first prong of the test is met because the Association knew that its property was being used for recreational purposes. But none of the other three prongs of the test is present in this case.

The condition in question, the unfinished bleachers, did not involve an unreasonable risk of serious injury or death. Building bleachers at a baseball field is a reasonable thing to do and the cement wall standing alone presented no risk or danger. It only became dangerous when Adam Nash began using a chain to climb up it. Moreover, even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the Association had any knowledge that this condition was not apparent to people using the property. On the contrary, Adam, both of his parents, and two other witnesses for the Nashes all testified that it was obvious that the bleachers were unfinished and still under construction. Additionally, when Mark Nash first saw Adam on the wall, he motioned for him to get off of it, and Ms. Nash testified that she knew there was a danger that Adam might fall off the wall. Adam himself admitted that he knew he might fall. The uncontroverted evidence thus shows that the Nashes appreciated the danger of the condition of the unfinished bleachers. See Edmondson, supra at 663-664.

Decided February 7, 1996.

Goodman, McGuffey, Aust & Lindsey, Kathryn A. Cater, for appellant.

As to the fourth part of the test, the commissioner of the Association’s t-ball league testified that he, prior to the game in which Adam’s brother played, warned people about the unfinished bleachers and asked adults to keep children away from it. Three other witnesses verified that the commissioner gave this warning. Although the Nashes and two other witnesses said that they did not hear this warning, they make no claim that the warning was not in fact given. Thus, although these people may not have been in a position to hear the warning, there is no evidence that the warning was not actually given. The Association therefore did not wilfully and maliciously choose not to warn anyone about the condition of the bleachers. Even though its warning may not have been sufficient to reach all people present on the property, such insufficiency amounts at most to negligent, not wilful or malicious, behavior. “A wilful failure imports a conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert or passive omission.” (Citations and punctuation omitted.) Quick, supra at 600. Because there is no evidence that the Association wilfully or maliciously failed to warn or guard against the condition of the unfinished bleachers, the trial court erred in denying the Association’s motion for summary judgment. See Welch v. Douglas County, 199 Ga. App. 269, 270 (2) (404 SE2d 450) (1991); Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867-868 (1) (360 SE2d 286) (1987).

2. Due to our ruling in Division 1, we need not address the Association’s remaining arguments.

Judgment reversed.

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

Crecelius & Crecelius, Bill W. Crecelius, Jr., for appellees.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A2876.
    BRITTON v. THE STATE.
    (469 SE2d 272)
   Andrews, Judge.

After receiving an anonymous telephone tip that Britton had illegal drugs concealed in his automobile, Liberty County police stopped Britton’s truck to investigate the tip, searched the truck pursuant to Britton’s consent, and found the concealed drugs. We granted Brit-ton’s application for an interlocutory appeal from the trial court’s denial of his motion to suppress.

The issue in this appeal is whether the anonymous caller provided the police with information reliable enough to create a reasonable suspicion that Britton was carrying illegal drugs in his automobile. If so, then the stop of Britton’s truck was authorized pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), and the subsequent search, conducted pursuant to Britton’s consent, was not the product of an illegal detention.

Police testified at the suppression hearing that an anonymous telephone caller told them Britton was leaving Midway carrying over two ounces of cocaine in his truck to drive to South Carolina. The police officer who took the call asked the caller for more specific information and how he acquired the information. The caller told the police he had just personally seen what he was describing. The caller further stated that Britton would be driving a new truck he had just purchased and gave a detailed description of the truck. He also described a center console located between the bucket seats in the truck and said that, underneath the beverage holder in the center console, Britton had a hidden compartment where the drugs were located. The caller also told police that Britton was opening up an automobile parts installing store that was going to be a front for selling drugs.

Police testified that information given by the anonymous caller corroborated other information they had previously received about Britton. There was testimony that the police were familiar with Brit-ton prior to the call because the police: (1) knew he had been convicted on drug charges; (2) knew he was involved in a business constantly frequented by people known to be involved in the drug trade; and (3) during the last 12 months had received numerous reports through police sources, phone calls, and persons arrested on drug charges and under investigation for drug activity, that Britton sold drugs and carried drugs in his automobile. Police also testified that they had previously received information that Britton was opening a new business that would operate as a front for selling drugs. Police were also aware prior to the call that Britton had recently bought a new truck.

Immediately after the phone call, police traveled to the Midway area to locations along routes that would logically be taken by a person driving from Midway to South Carolina. They observed Britton driving the truck described by the caller and briefly followed him as he drove to two stores. After Britton left the second store, the police did not attempt to further follow him to see if he was going to South Carolina. Instead, they stopped Britton to investigate the tip and informed him they had reason to believe he was carrying illegal drugs in his truck. Britton immediately denied he had any drugs in his truck and invited the police officers to search the truck. Police searched the truck pursuant to Britton’s consent and found the drugs in a hidden compartment under the beverage holder in the center console as described by the anonymous caller.

Even though the police did not confirm the caller’s prediction that Britton would drive to South Carolina before the investigatory stop was made, the anonymous caller’s tip otherwise exhibited sufficient indicia of reliability to justify the stop. In Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990), the Supreme Court found the anonymous tipster’s ability to predict the future behavior of the defendant was the important factor in establishing the reliability of the tip about the defendant’s illegal drug activity in that case “because it demonstrated inside information — a special familiarity with [defendant’s] affairs.” Id. at 332. Since the general public would not have known that the defendant in that case would leave a particular building in the predicted time frame, get in a described car, and drive toward a certain location, it was reasonable for the police to conclude that an anonymous caller who could predict this behavior had inside information about the defendant’s affairs and was therefore likely to have reliable information about the defendant’s illegal drug activity. Id. at 332.

In the present case, the information provided by the anonymous caller also demonstrated that the caller had inside information about Britton’s affairs which would not have been known to the general public. First, the caller demonstrated some ability to predict the future behavior of Britton in that, immediately after the caller gave the tip to the police, Britton was observed by the police driving the described truck in the Midway area along a route which could have been taken to South Carolina. Second, the caller indicated that he acquired his knowledge about the illegal drugs in the truck by personal observations made just prior to the call. (In Alabama v. White, supra, the Court noted that a negative factor about the reliability of the tip there was that the tipster gave no indication of the basis for the information in the tip.) Third, the police already had information from various sources that Britton was involved in illegal drug activity, that he carried drugs in his automobile, and that he was opening a new business that was going to be a front for illegal drug activity. Although the reliability of these prior reports was not established, they corroborated information provided by the anonymous caller which would not have been known by the general public.

An accurate prediction of future behavior is not the only method by which the reliability of an anonymous tip may be demonstrated. Something which similarly shows that the anonymous tipster has inside information about the defendant’s affairs is also sufficient indicia of reliability. See VonLinsowe v. State, 213 Ga. App. 619, 621 (445 SE2d 371) (1994) (a prediction of future behavior, or something similar, may show that the anonymous tipster has reliable inside information). For example, in State v. Ball, 207 Ga. App. 729, 733 (429 SE2d 258) (1993), we recognized that the key factor establishing the reliability of the anonymous tip was not a prediction of future behavior but the fact that the tip about the defendant’s drug activities was corroborated prior to the investigatory stop by information the police had already acquired about the defendant in a previous drug investigation.

Similarly, in the present case, the reliability of the anonymous tip was established prior to the investigatory stop by: (1) verified aspects of the tip predicting the approximate time and location in which Brit-ton would drive the described truck; (2) the indication that the information in the tip was acquired by the personal observations of the caller just prior to the tip; and (3) the aspects of the tip corroborated by prior information the police had acquired about Britton. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances — the whole picture’ [cit.], that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, supra at 330. Under the totality of the circumstances, the anonymous tip exhibited sufficient indicia of reliability to provide reasonable suspicion for the investigatory stop. Accordingly, the search of Britton’s truck during the stop, conducted pursuant to Britton’s consent, did not violate the Fourth Amendment, and the trial court correctly denied Britton’s motion to suppress.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J, and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

Defendant argues that the stop of his vehicle was illegal. In order for an anonymous telephone tip to provide a basis for articulable suspicion authorizing an investigatory stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), the tip must provide some basis for predicting the future behavior of the subject of suspicion. McKinley v. State, 213 Ga. App. 738, 739-740 (445 SE2d 828).

The only information provided by the tipster in this case related to defendant’s plans to travel to South Carolina. If the tipster had such private information as defendant’s itinerary it would be much more reasonable for law enforcement officers to believe that the tipster had access to reliable information about any illegal activities of the defendant. Bentley v. State, 214 Ga. App. 580, 581 (2), 582 (448 SE2d 479).

When first observed, defendant’s vehicle turned east on Highway 84 which was toward 1-95, one of the obvious routes to South Carolina. But defendant then “turned up by the post office to . . . the IGA store, the little grocery store.” Officers lost sight of defendant’s vehicle and then soon found it again at an automobile parts store. Defendant’s vehicle was stopped immediately after it left the parts store. He had not committed any traffic offense, attempted to elude the officers, or engaged in any unusual behavior.

The State’s evidence shows defendant meandering about a small rural town and failed to confirm the one and only prediction of future behavior provided by the tipster, that defendant was going to South Carolina. In this connection, it should be noted that the officers knew defendant lived south of Midway so that his route into town would be consistent with the route to South Carolina. The only testifying officer who participated in the stop acknowledged that the law enforcement officers did not attempt to follow defendant to see whether he was going to South Carolina.

As the reliability of the tip was not established by confirming the accuracy of its predictions as to future behavior, there was no authority for a forcible stop of defendant. Moreland v. State, 204 Ga. App. 218 (418 SE2d 788). The consent to search, having followed immediately and without intervening circumstances from the felony stop during which officers approached defendant with guns drawn, must be viewed as the poisonous fruit of the illegal stop. Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514).

Insofar as some substitute for a prediction of the future behavior of the suspect may be found to establish the reliability of an anonymous tip, such is not established in the case sub judice. The goal is to corroborate the tip before acting upon it, and none of the factors listed in the majority opinion serve this purpose. The anonymous tip predicted a trip to South Carolina, not merely to the nearby town. Anyone in the general public could have seen defendant leave for the town and call with that information. The indication that the information was acquired by personal observation just prior to the call was not subject to corroboration prior to the stop of defendant. And finally, the tip could not be corroborated by prior information known to police since the reliability of that prior information was not established. I would hold that the trial court erred in denying defendant’s motion to suppress evidence, therefore I respectfully dissent.

Decided February 7, 1996

Donaldson, Herndon, Bell & Metts, James C. Metis III, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

I am authorized to state that Judge Blackburn joins in this dissent.


author: Beasley, Chief Judge.

text:
    A95A2398.
    PRESHA v. THE STATE.
    (469 SE2d 293)
   Beasley, Chief Judge.

After pleading guilty to two counts of selling cocaine, OCGA § 16-13-30 (b), Presha was sentenced to serve two consecutive terms of thirty years, the first ten while incarcerated and the remainder on probation. As a condition of probation, the court required that Presha, a lifelong resident of Thomasville, leave and not return to the area of Brooks, Colquitt, Echols, Lowndes, and Thomas counties. He asserts that such a lengthy banishment violates both the Eighth Amendment to the United States Constitution and the Georgia Constitution of 1983, Art. I, Sec. I, Par. XVII. Presha also seeks to invoke OCGA § 38-2-460, but it does not apply to his case.

We cannot reach either constitutional issue because Presha made no objection in the trial court to the sentence, either at the sentence hearing or by sentence review request. Thus, the issue was not preserved for appellate review. Henderson v. State, 218 Ga. App. 311, 312-313 (3) (460 SE2d 876) (1995); compare Peterson v. State, 212 Ga. App. 147, 149 (1) (441 SE2d 481) (1994). This Court does not address constitutional issues not raised below. Ogletree v. State, 211 Ga. App. 845, 846 (1) (440 SE2d 732) (1994).

This is not a case of “exceptional circumstances,” where the Court will excuse the failure and take notice of error sua sponte, as was Taylor v. State, 186 Ga. App. 113, 114-115 (3) (366 SE2d 422) (1988). While it may be that the length of the banishment here makes the case “exceptional,” there is no error such as fits either of the categories identified in Taylor.

Decided February 8, 1996.

Andrew W. Clark, for appellant.

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

Presha has the burden to show the probation condition is unreasonable. State v. Collett, 232 Ga. 668, 670-671 (208 SE2d 472) (1974). He does not contend that banishment itself is unreasonable but that it is excessive in length. We affirmed a banishment of ten years, with no discussion about length, in Edwards v. State, 173 Ga. App. 589, 590-591 (1) (327 SE2d 559) (1985). Presha’s probation condition was imposed on a sentence of lawful duration, Boyd v. State, 204 Ga. App. 729, 730 (420 SE2d 389) (1992), and is of recognized utility. Wyche v. State, 197 Ga. App. 148, 149 (2) (397 SE2d 738) (1990). As the State points out, Presha could have been banished to prison for the entire 60 years. In fact, it appears that if he had objected to the condition at the hearing, the court would not have abused its discretion if it had sentenced him to 60 years to serve. Garland v. State, 160 Ga. App. 97, 99 (4) (286 SE2d 330) (1981).

Judgment affirmed.

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


text:
    A95A2542.
    SUMMERS et al. v. DEUTSCHE SEEREEDEREI ROSTOK Gmbh et al.
    (469 SE2d 289)
   Blackburn, Judge.

William P. Summers and Lisa A. M. Summers brought the underlying maritime tort action. The complaint sought damages for injuries William sustained as a longshoreman in discharging cargo from the Motor Vessel Bergen in an accident on November 30, 1993 and for Lisa’s loss of consortium. Summers alleged that the cargo operation of his employer was “visibly dangerous and obviously unsafe” and that the ship’s owner, Deutsche Seereederei Rostok Gmbh (Deutsche), knew of the unsafe condition through the ship’s crew. Deutsche answered denying the material allegations of the complaint. Thereafter, the trial court denied Deutsche’s motion to dismiss but granted its motion for summary judgment finding that “[bjecause there is no evidence of failure to provide a safe vessel and equipment, actual knowledge of a dangerous condition giving rise to a duty to intervene, or actual negligence or participation in cargo operations, the motion for summary judgment on plaintiff William Summers’ claim is appropriate. Additionally, plaintiff Lisa Summers’ loss of consortium claim is derivative and cannot be maintained against a party who is not liable to her husband.” The Summerses appeal from the grant of summary judgment for Deutsche.

1. The Summerses contend that the trial court erred by granting Deutsche summary judgment in that a jury question exists as to whether Deutsche had knowledge of a dangerous condition which required it to intervene in cargo operations.

In Scindia Steam Navigation Co. v. De Los Santos, 451 U. S. 156 (101 SC 1614, 68 LE2d 1) (1981) the United States Supreme Court set forth the applicable standard of negligence under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 USC § 905 (b), where, as here, cargo operations have begun. In this regard, Scindia holds that the shipowner has no duty to supervise longshoremen or to discover dangerous conditions which develop within the confines of cargo operations conducted by the stevedore. Id. at 172. “The necessary consequence is that the shipowner is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself.” Id. However, “there are circumstances in which the shipowner has a duty to act where the danger to longshoremen arises from the malfunctioning of the ship’s gear being used in the cargo operations.” Id. at 175. A duty to intervene and repair a ship’s equipment is deemed to arise where the shipowner is aware of the defect and is aware that the stevedore knows of the defect, and continues to use the equipment in an “obviously improvident” manner. Id. at 175.

Summers does not contend that he was injured by defective equipment, only that his stevedore’s cargo operation was conducted in a negligent manner and that Deutsche negligently failed to intervene, which resulted in his injury. By his failure to respond to Deutsche’s request for admissions he admits, among other things, that he has no evidence that the accident was caused by any defect in the ship or its gear. See OCGA § 9-11-36 (a) (2). Inasmuch as Summers introduced no evidence showing defective ship’s equipment, he failed to establish any breach of the duty of care as owed to him. Scindia, supra. Accordingly, this enumeration of error is without merit.

2. Summers further enumerates that the trial court erred in granting Deutsche’s motion for summary judgment without allowing Summers to obtain additional discovery. OCGA § 9-11-56 (f) permits a party to request a continuance by affidavit stating that, for reasons given, he cannot present by affidavit facts sufficient to justify his opposition to a motion for summary judgment. “[T]he grant or denial of a continuance is a matter within the discretion of the trial judge and unless clearly abused will not be interfered with. This applies in summary judgment proceedings.” (Citations and punctuation omitted.) Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 101 (406 SE2d 807) (1991). Only in the instance where there is an identified witness to the occurrence is such a continuance required. A continuance is not required in the event witnesses are unidentified or unknown. Gray v. Gober, 185 Ga. App. 624, 627-628 (365 SE2d 279) (1988). Neither is it required to permit “ ‘fishing expeditions’ in the hope of coming up with a tenable cause of action.” Id. at 628. Rather the movant must satisfy the court that if given a continuance “beneficial objectives of pretrial discovery will be achieved.” (Punctuation omitted.) Id.

Decided February 8, 1996.

John H. Cooper, for appellants.

The Summerses supported their opposition to Deutsche’s motion for summary judgment by the affidavit of trial counsel in which they requested a continuance. The affidavit, undated and not notarized, was served two days after the Summerses took depositions of the stevedore’s representatives who had supervised the cargo operations. Thus, at the time the Summerses sought a continuance, the degree to which the ship’s crew participated in cargo operations was available to the Summerses. Further, the Summerses delayed requesting a continuance for nearly three months after filing suit, averring only that further “[djiscovery may uncover [the crew’s] active involvement.” In effect, they sought further discovery upon the “fishing expedition” rationale we rejected in Gray. Id. Under these circumstances, we conclude that the trial court did not err by denying the Summerses’ request for continuance to allow discovery.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the disputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewing the evidence in the light most favorable to the Summerses, we find that the trial court’s grant of summary judgment for Deutsche was proper.

Judgment affirmed.

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

Chamlee, Dubus & Sipple, George H. Chamlee, for appellees.

       State substantive law does not apply to this case since the federal law is exclusive. Anderson v. Savannah Machine &c. Co., 96 Ga. App. 621 (100 SE2d 621) (1957).

       The stevedore is the longshoremen’s employer. Scindia, supra at 170.


author: McMurray, Presiding Judge.

text:
    A95A2671.
    CARTER et al. v. BENNETT et al.
    (469 SE2d 279)
   McMurray, Presiding Judge.

Plaintiff Timothy Carter brought this tort action against defendant John P. Bennett and John Doe, seeking to recover for personal injuries sustained in an automobile collision. Plaintiff Cindi Carter seeks to recover for loss of consortium. Jefferson-Pilot Fire & Casualty, served as the “purported uninsured motorist [(UM)] carrier,” answered and denied coverage.

At the time of the collision, Timothy Carter was driving a van owned by his employer, Republic Data Corporation, and insured by Southern Fire & Casualty Company. According to the complaint, defendant John P. Bennett “without warning crossed from the outside north bound lane on Austell Road into the inside north bound lane striking Plaintiff’s [employer’s] vehicle. . . . Defendant, JOHN DOE, [an unknown driver,] contributed to the cause of the collision by negligently and unreasonably moving into Defendant, JOHN P. BENNETT’S, path of travel without first ascertaining whether such movement could be done safely.” In his answers to interrogatories, defendant John P. Bennett averred that “an unidentified vehicle driven by, what appeared to be a woman, cut in front of his vehicle. In reaction to the unidentified vehicle, Defendant [John P.] Bennett attempted to move into the lane to his left to avoid impact with the unidentified vehicle. Unfortunately, a minor impact occurred between Defendant’s vehicle and the vehicle driven by the Plaintiff.” In defendant John P. Bennett’s view, the “sole cause of this accident was the phantom vehicle that failed to stop or yield the right-of-way when it pulled from Floyd Road onto Austell Road.” At his own deposition, however, plaintiff Timothy Carter affirmed that he “never saw this unidentified vehicle at all[; and that] the very first time [plaintiff] knew anything about an unidentified vehicle was when [he] got a copy of the police report. ...”

Southern Fire & Casualty Company, a “wholly owned subsidiary of Jefferson-Pilot Fire & Casualty Company,” appeared and defended on the ground that plaintiff Timothy Carter himself never saw the phantom vehicle described by defendant John P. Bennett. The trial court granted summary judgment on that basis and this appeal followed. Held:

1. In their second enumeration, plaintiffs contend the “uninsured motorist provisions of the insurance policy provide coverage ... independently of OCGA § 33-7-11.” Under the specific terms of the policy issued by Southern Fire & Casualty Company, the insured may be afforded more liberal uninsured motorist coverage than would be mandated by OCGA § 33-7-11 (b) (2), in which case the alleged failure of plaintiffs to establish the statutory eyewitness corroboration in lieu of physical impact with a phantom vehicle would be irrelevant. Walker v. United Svcs. Auto. Assn., 205 Ga. App. 693 (423 SE2d 299). In the case sub judice, however, we are unable to address the merits of this contention, as the Georgia Uninsured Motorist Coverage Endorsement quoted by plaintiffs in their brief does not appear in the record as transmitted to this Court from the trial court. Nixon v. Rosenthal, 214 Ga. App. 446, 447 (3) (448 SE2d 45). For aught that appears of record, this contention was not raised in the trial court but is argued for the first time on appeal. Consequently, the ground urged in this enumeration presents nothing for appellate review. See, e.g., Kumar v. Hall, 262 Ga. 639, 644 (3) (423 SE2d 653).

2. OCGA § 33-7-11 (b) (2) provides in part: “[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” In related enumerations, plaintiffs contend the trial court erred in granting summary judgment to the purported UM carrier, arguing that Timothy Carter “satisfied the description requirement of OCGA § 33-7-11 (b) (2), by pleading how the accident occurred in his complaint[, . . . since that Code section] does not require that [plaintiff] personally observe the phantom vehicle to satisfy the statute.” This contention is, however, controlled adversely to plaintiffs, for the following reasons:

This Court has expressly ruled that “filing suit against John Doe does not constitute a ‘description by the claimant of how the occurrence occurred,’ [as required by OCGA § 33-7-11 (b) (2)]. . . . Because the statute addresses only those situations in which the claim is that the accident was caused by an unknown vehicle, it is beyond question that the ‘description’ required by the claimant must at least include such an unknown vehicle.” (Emphasis in original.) Hoffman v. Doe, 191 Ga. App. 319, 320 (381 SE2d 546). In the case sub judice, “not only did [Timothy Carter] not describe the accident as having been caused by an unknown vehicle, [he] could not have so described it because the only vehicles [he] remembered were [his] own and that of [defendant John P. Bennett]. . . . Because [plaintiff Timothy Carter’s] description did not include a ‘phantom’ vehicle, [OCGA § 33-7-11] does not apply. Accordingly, no coverage existed under the uninsured motorist endorsement and the trial court did not err by granting summary judgment to [the insurer].” Hoffman v. Doe, 191 Ga. App. 319, 321, supra.

Decided February 8, 1996.

Dudley, Norton & Singleton, Ainsworth G. Dudley, Jr., for appellants.

McLain & Merritt, William S. Sutton, Downey & Cleveland, Todd E. Hatcher, for appellees.

3. Plaintiffs’ remaining contentions have been considered and are found to be without merit.

Judgment affirmed.

Andrews, J., concurs. Blackburn, J., concurs in the judgment only.


author: Pope, Presiding Judge.

text:
    A95A2339.
    THE STATE v. BABEL et al. THE STATE v. JOHNSON. THE STATE v. BABEL. THE STATE v. WILLIAMS.
    A95A2340.
    A95A2341.
    A95A2342.
    (469 SE2d 203)
   Pope, Presiding Judge.

Defendants A. J. Babel, Carol Babel, Bill Johnson, Elizabeth Babel, and Stacey Williams were indicted for participating in a pyramid club in violation of OCGA § 16-12-38. The trial court quashed the indictments on the ground that defendants had been selectively prosecuted in violation of their constitutional rights, and the State appealed. Concluding that defendants’ indictments did not violate their constitutional rights even if we accept all the trial court’s factual findings in their favor, we reverse.

Defendants participated in a pyramid club scheme which was widespread in Floyd and surrounding counties. Authorities estimate that hundreds and possibly thousands of people were involved in the scheme. Hampered by limited resources, however, government agents in Floyd County investigated only about 77 individuals, and eventually indicted only 26. At the hearing on the motions to quash, the State presented evidence that its decisions about indictments of particular participants were based primarily on the following factors: whether their participation was in Floyd County; whether they were at the top of the pyramid, and thus had received the largest sums of money; whether they had repaid the money they had illegally received; and whether the victims they had received money from (or other members of the public) had called to file a complaint about them. Defendants countered with evidence that these criteria were inconsistently applied, and that the District Attorney (“DA”) exhibited favoritism to friends involved in the scheme. Moreover, defendants asserted that they were really chosen for indictment because they had angered the DA by using his name to sell positions on the pyramid; and the DA acknowledged his anger as well as his statement that he would prosecute those who used his name.

In her ruling from the bench immediately after the hearing, the trial court found that the DA had shown favoritism to some potential indictees by personally telling them how to repay the money, while others had to rely on confusing and unreliable media reports, and that there was “an appearance of impropriety and vindictiveness” on the part of the DA. Presumably, this last “finding” was based on the evidence of the DA’s anger and his consideration of whether potential indictees had used his name for solicitation purposes in deciding whether to indict. The trial court then concluded that the prosecution of defendants was based on discriminatory standards and quashed the indictments.

1. Selectivity in enforcement of a criminal statute is not a constitutional violation (and thus not a reason to quash an indictment) unless the selection is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” (Emphasis supplied.) Oyler v. Boles, 368 U. S. 448 (82 SC 501, 7 LE2d 446) (1962). See also State v. Causey, 246 Ga. 735, 737 (2) (273 SE2d 6) (1980). As the Georgia Supreme Court stated in Causey, “the fact that, ‘(o)ther persons or classes of persons may have violated the law without being prosecuted therefor is no excuse for a violation by the defendant.’ [Cit.]” Id. at 737. Thus, a criminal defendant seeking to avoid prosecution because others who violated the law are not being prosecuted bears a heavy burden: he must show “(1) that others generally are not prosecuted for the same misconduct, and (2) [that] the decision to prosecute [defendants] was based upon impermissible grounds such as race, religion, or exercise of constitutional rights. [Cit.]” (Emphasis in original.) Gayton v. State, 184 Ga. App. 387, 388 (361 SE2d 691) (1987). Actual, deliberate discrimination is required; an “appearance of impropriety” is clearly not enough. See Snowden v. Hughes, 321 U. S. 1, 8 (64 SC 397, 88 LE 497) (1944).

In this case, we accept the trial court’s rejection of the State’s explanations for its indictment decisions, as well as the court’s implicit determination that the indictments targeted those potential indictees who used the DA’s name in marketing the pyramid. See Vansant v. State, 264 Ga. 319 (1) (443 SE2d 474) (1994) (an appellate court will accept the trial court’s findings of fact unless they are clearly erroneous). Even so, we do not agree with the trial court’s ruling that the prosecutions violated defendants’ rights, because defendants’ use of the DA’s name in promoting their illegal scheme distinguished their misconduct from the misconduct of other potential indictees, making their violation of the law more threatening to the public and therefore more culpable. Accordingly, if use of the DA’s name was the standard by which indictment decisions were made, it was a justifiable and permissible one. And this conclusion is not changed by the trial court’s finding of favoritism, as “[t]he fact that some persons are wrongly singled out for special favor does not justify a charge of discrimination or selective prosecution.” Gayton, 184 Ga. App. at 388.

Our holding is that the record in this case does not support selective prosecution because the prosecutor’s actions were reasonable. Those with less reasonable grounds for initiating a prosecution should not look here for refuge, however. A prosecutor’s unlawful actions are as abhorrent as the unlawful actions of any other government official, if not more so.

2. Some defendants also contend that the trial court’s finding of “an appearance of . . . vindictiveness” alone mandates dismissal of the indictments. See Lee v. State, 177 Ga. App. 698, 700 (340 SE2d 658) (1986) (vindictive exercise of prosecutor’s discretion violates due process). A prosecution is vindictive for purposes of due process analysis, however, when it is brought in retaliation for behavior on the part of a defendant which is legally protected. See, e.g., Bordenkircher v. Hayes, 434 U. S. 357 (98 SC 663, 54 LE2d 604) (1978). Here, defendants assert that their indictments were brought in retaliation for their use of the DA’s name in marketing the pyramid — i.e., for conduct which not only is not legally protected, but which is also an integral part of the crime charged in the indictment. Under these circumstances, where the prosecutor is allegedly being vindictive because of behavior on the part of the defendant relating to the nature of the charged offense itself, we hold that the prosecution cannot, as a matter of law, be deemed “vindictive.” Clearly, the fact that a prosecutor is particularly horrified and angered by the details of a particular crime does not preclude his prosecution of the perpetrator of that crime. In the same way, the DA’s anger with these defendants based on the particular way in which they pursued their illegal activity does not preclude his prosecution of them.

Decided January 4, 1996

Reconsideration denied February 9, 1996

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Mark M. J. Webb, Tambra P. Colston, for the Babels and Johnson.

James A. Robbins, Jr., for Williams.

Judgments reversed.

Ruffin, J., concurs. Beasley, C. J., concurs in judgment only.

       For the most part, this apparently took the form of saying that the DA had examined the scheme and approved it as legal, but some defendants may have said that the DA was actually participating in the scheme. There is also evidence that some defendants used the DA’s alleged approval of the scheme to justify their refusal to repay their victims.

       We note that selective prosecution analysis is essentially equal protection analysis. Thus, the level of scrutiny we use to determine whether the State’s distinction is justifiable is based on the nature of the distinction. If the distinction is based on a “suspect” classification such as race, it is only justifiable if it is necessary to promote a compelling State interest; if it is based on gender or illegitimacy, it is justifiable if it bears a substantial relationship to an important State interest; and if, as here, it is not based on a protected classification, it is justifiable as long as it arguably bears a rational relationship to some legitimate State purpose. See Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure (2d ed. 1992), Vol. 3, pp. 7-8, 14-19, §§ 18.2-18.3.


text:
    A95A1867.
    THE STATE v. BURNETT.
    (469 SE2d 324)
   Beasley, Chief Judge.

The State appeals from the trial court’s grant of defendant’s motion to suppress evidence seized after he was arrested. There is evidence that defendant struggled with police and was in possession of cocaine, so he was indicted for possession of cocaine with intent to distribute (OCGA § 16-13-30) and obstruction of two officers (OCGA § 16-10-24).

The defendant’s motion prompted a hearing, at which the burden was on the State to prove that the arrest and seizure without warrant were justified. OCGA § 17-5-30 (b); Baez v. State, 206 Ga. App. 522, 526 (1) (425 SE2d 885) (1992). The State presented one of the officers involved, as its sole witness. After the hearing, both the State and defendant submitted briefs, and the court thereafter issued an extensive order granting the motion.

The standard of review on appeal, with respect to the facts, is the “clearly erroneous” one, so if there is “any evidence” to support them, they control. As summarized in Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990): “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. [Cit.] The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. [Cits.] Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. [Cit.]”

Decided February 9, 1996.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Sadhana Pandey, Assistant District Attorneys, for appellant.

James N. Finkelstein, for appellee.

The transcript of the hearing shows that the court’s detailed findings of fact are supported by the evidence. The court found that when the officer seized defendant by grabbing his pants as a precaution against him running away from the officer instead of being subjected to questioning, there was not even a reasonably articulable suspicion that defendant had committed or was committing a crime. In fact, the officer testified that he wanted to talk to defendant because he and his companion were in a “small drug area” and when the police car was seen, the companion had fled. This made both of them “suspicious,” and the officer wanted to find out who defendant was and whether there were any warrants for his arrest.

As the trial court correctly concluded, this exceeded the bounds of brief intrusion permitted under the Fourth Amendment by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The totality of the circumstances did not show “a particularized and objective basis for suspecting [Burnett] of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). Moreover, the facts found by the trial court constituted even more than a brief Terry stop when the officer grabbed his pants so he could not leave. This constituted a seizure because “a reasonable person would have believed that he was not free to leave.” (Footnote omitted.) United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980).

Based on these authorities, and in concert with state cases applying their principles, which cases were analyzed by the trial court, we hold that it did not err in suppressing the evidence.

Judgment affirmed.

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