author: Beasley, Judge.

text:
    A97A1823.
    BANKS v. THE STATE.
    (495 SE2d 877)
   Beasley, Judge.

When a nurse responded affirmatively to defense counsel’s inquiry whether the victim had reported a prior act of consensual intercourse, the court declared a mistrial in Jeffrey Banks’ trial for rape (OCGA § 16-6-1), aggravated assault (OCGA § 16-5-21), false imprisonment (OCGA § 16-5-41), and false statements (OCGA § 16-10-20). Prior to retrial, Banks moved to dismiss on grounds of double jeopardy under the United States and Georgia Constitutions and under OCGA § 16-1-8, which motion the court denied. The issues are (i) whether the court’s pre-trial order allowing Banks to present his own testimony that he and the victim had previously had consensual intercourse permitted him under Georgia’s Rape Shield Statute (OCGA § 24-2-3) to ask the nurse about the victim’s statement, and (ii) whether the inquiry and answer were so prejudicial as to create a manifest necessity to declare a mistrial.

1. “The United States and Georgia Constitutions proscribe a defendant’s being twice placed in jeopardy for the same offense. United States Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1-8 extend the proscription of double jeopardy beyond those constitutional limits by placing limitations upon multiple prosecutions, convictions and punishments for the same criminal conduct. A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn.”

Under OCGA § 16-1-8 (a) (2), a prosecution is barred if the defendant was formerly prosecuted for the same crime and the former prosecution was terminated improperly after the jury was impaneled and sworn. A prosecution is not terminated improperly under this statute if the court declares a mistrial based on the misconduct of the defendant in introducing prohibited evidence that irreparably prejudices the State’s case. Similarly, the “double-jeopardy clause of the Fifth Amendment, as applicable to the states through the due-process clause of the Fourteenth Amendment, does not bar retrial of a criminal defendant following declaration of a mistrial over his objection where there is ‘manifest necessity’ for declaration of the mistrial or the ‘ends of public justice’ would be defeated by allowing the trial to continue. Illinois v. Somerville, 410 U. S. [458 (93 SC 1066, 35 LE2d 425) (1973)] ” Nor does the Georgia Constitution bar a retrial under such circumstances. In determining whether there was manifest necessity, we consider whether Banks’ inquiry of the nurse violated the Rape Shield Statute, and if so, whether the inquiry and answer caused irreparable prejudice.

2. In any prosecution for rape, Georgia’s Rape Shield Statute prohibits the introduction of evidence relating to the past sexual behavior of the victim. The statute “is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. It prohibits all evidence relating to the past sexual behavior of the complaining witness, including marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to community standards; in other words, her reputation concerning past sexual activity with persons other than the defendant.” “OCGA § 24-2-3 assists the truth-seeking process by preventing the jury from becoming inflamed or impassioned and deciding the case on irrelevant and prejudicial evidence.”

The statute provides for a limited exception subject to a specified procedure that is “the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness.” The defendant must first notify the court of an intent to introduce the evidence, whereupon the court conducts an in camera hearing to consider the defendant’s offer of proof. The court must make one of the following sets of findings before the evidence is admissible: (i) “that the past sexual behavior directly involved the participation of the accused and . . . that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution,” or (ii) that the evidence “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” If the court makes one of these sets of findings, “the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.” Only then may the defendant introduce the evidence, and then only as set forth in the court order.

With regard to the question asked of the nurse, Banks did not follow this procedure. Prior to trial he did notify the court of his intent to introduce evidence of prior sexual relations with the victim. At the in camera hearing on the first day of trial, defense counsel claimed that a few weeks prior to the incident, Banks and the victim had engaged in voluntary intercourse under similar circumstances, and that this contributed to his belief that the later incident was consensual. Counsel stated that Banks would testify to this, and that a police officer and a friend of Banks would both testify that Banks told them of this prior act. The prosecution doggedly pressed defense counsel to ensure the defense intended to present no other evidence of this alleged earlier incident. After extensive argument, the court found the evidence admissible and specifically limited it to the proffer made.

At no time did Banks proffer that a nurse would testify that the victim admitted to a prior act of voluntary intercourse, nor did he claim the victim had ever admitted it to anyone. Nevertheless, when the nurse who had treated the victim was testifying, Banks asked whether in taking the history of the victim she had established that three to four weeks before the alleged rape the victim had had voluntary intercourse. This statement of the victim appeared in the nurse’s admissions report, which the defense had received ten days prior to trial. Just before the State objected, the nurse responded affirmatively.

The State moved for curative instructions and then for a mistrial, arguing that Banks had not included this admissions report statement in his proffer, and further that had he done so, the State would have presented evidence from, the victim and her ex-boyfriend that the statement referred to an act of intercourse with the friend, not with Banks. Conceding the evidence had not been included in the proffer, Banks’ counsel explained she had failed to notice it until reviewing the report during the direct examination of the nurse. Counsel argued she nevertheless had the latitude to cross-examine on the statement because it coincided with Banks’ proffered testimony about the prior act of consensual intercourse. After lengthy argument and a recess, the court granted the State’s motion for a mistrial.

Where the defendant has failed to include certain evidence in his proffer, the court is unable to make the required finding that the missing evidence concerns past sexual behavior directly involving the participation of the defendant, or that the missing evidence is so highly material that it substantially supports a consent defense.

This case exemplifies the purpose for requiring a complete proffer. Had Banks proffered in the in camera hearing that he intended to introduce the statement in the admissions report as evidence of consensual intercourse with him, the State would have had the opportunity to elicit from the victim and her ex-boyfriend that the statement did not refer to Banks. If based on the evidence presented the court found the statement did not refer to sexual activity involving Banks, the court would have precluded its admission. On the other hand, if the court found it did involve him and was indicative of consent, the court would have ordered the manner in which it would be introduced. Banks completely bypassed these procedural safeguards by failing to give any notice of an intent to ask about the sexual history contained in the admissions report. Because the procedure in the statute is the “exclusive means” for admitting any past sexual history of the victim in a rape prosecution, Banks’ failure rendered any reference to the statement inadmissible.

Banks argues that the State’s failure to object before the nurse responded constitutes waiver, citing Garner v. State. This argument is specious. The record shows the prosecution objected so quickly that the court and parties were unsure whether the nurse had answered the question before the objection, and that the court had the tape of the proceedings played back to determine this. Furthermore, objecting after a one-word answer is hardly dilatory. There is no waiver here. In contrast, Garner found waiver where the party failed to object to the prejudicial evidence when discussed on direct and did not object until the matter was raised again on redirect. When the matter was raised yet a second time on redirect, the party made no objection or motion until after recross-examination was concluded.

3. The second issue is whether the introduction of evidence prohibited by the Rape Shield Statute gives a court grounds to find manifest necessity for a mistrial. This Court (Abdi I), the Supreme Court of Georgia (Abdi II), and the United States Court of Appeals for the Eleventh Circuit (Abdi III) have held that it does.

Abdi’s counsel asked the victim if the defendant had ejaculated, in response to which the victim made a remark concerning the physical process of sexual ejaculation. Counsel then said, “ You have had personal experience with that?’ ” Before the witness answered, the State objected, asked for a curative instruction and stated it was not moving for a mistrial. Without hearing from defense counsel, the court immediately found the remark too prejudicial and sua sponte declared a mistrial. Prior to retrial, Abdi filed a plea of former jeopardy, claiming no manifest necessity existed for the mistrial order. The judge at the second trial sustained the plea and granted an acquittal.

Abdi I reversed, holding the original trial court “determined that in this case the injection by the defense of matter strictly prohibited by the Georgia ‘shield law’ [OCGA § 24-2-3] irreparably prejudiced the right of the state to a fair trial. In these circumstances, the trial court determined that mistrial was a ‘moral necessity’ [cit.] and a legal necessity, and we cannot say the trial court abused its discretion on that account. [Cits.]” Abdi II affirmed this holding, explaining that “where, as here, the remarks by defense counsel are in violation of a ‘shield law,’ declaration of a mistrial is certainly in implementation of a legitimate state policy.”

Abdi was nevertheless successful in obtaining habeas corpus relief from the federal district court, only to have it reversed by the Eleventh Circuit in Abdi III, which reasoned that the “clear policy of the shield law supports the trial court’s evaluation and reflects the judgment of Georgia lawmakers that such evidence is unusually prejudicial. The statute also put the defense attorney on notice regarding such inquiries. The obvious impropriety of the action here made a swift declaration of mistrial more acceptable than in cases where the reason for mistrial is more susceptible to doubt[.] [Cits.]”

The facts here are even more compelling than Abdi. In response to the improper question, the nurse affirmed the victim’s sexual activity, and the court acted only after the State moved for a mistrial and after it discussed at length with both counsel the question of whether curative instructions would suffice. It even took a recess to consider the matter before ruling. It specifically found that (a) the injection of the evidence irreparably prejudiced the right of the State to a fair trial, (b) an impartial verdict could not be reached, (c) the error could not be cured by instructions to the jury, and (d) manifest necessity existed to declare a mistrial, absent which the ends of public justice would be defeated. The court did not abuse its discretion.

Decided January 21, 1998.

Jo C. Nesset-Sale, for appellant.

Banks nevertheless argues the State was not prejudiced by the evidence, for the jury consisted of “sophisticated,” “modern” jurors who would not discredit the victim’s testimony because she was sexually active. Banks misperceives the purpose of the Rape Shield Statute. “The purpose of the law is to ‘protect the complaining witness, thereby encouraging the reporting and prosecution of rapes’ by excluding immaterial and prejudicial evidence of the victim’s sexual history. [Cit.]” It also seeks to eliminate any vestiges of the bias that “women of promiscuous sexual reputation are entitled to less protection under the rape laws than women of chaste reputation.” As held in the three Abdi decisions, these policies are so strong that a single unanswered question by defense counsel about the victim’s sexual history may alone give rise to the manifest necessity for a mistrial.

Because of Banks’ improper question, the State was faced with the dilemma either to invade the victim’s privacy by having her publicly testify to the jury about her sexual history so as to deny that the statement in the admissions report referred to Banks, or to just let the matter alone and allow the jury to believe that the undenied statement to the nurse referred to a previous sexual episode with Banks (to which Banks would testify). A defendant cannot take advantage of an error induced by him so as to plead former jeopardy.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

       (Citations and punctuation omitted.) Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997).

        State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772) (“Abdi I”), aff’d 249 Ga. 827 (294 SE2d 506) (1982) (“Abdi II”).

        Abdi v. State, 249 Ga. at 828 (1); see Abdi v. State, 744 F2d 1500, 1502-1503 (11th Cir. 1984) (“Abdi III”); Jackson v. State, 226 Ga. App. 256, 257 (485 SE2d 832) (1997).

        Abdi I, 162 Ga. App. at 21.

       OCGA § 24-2-3.

        Parks v. State, 147 Ga. App. 617 (249 SE2d 672) (1978).

        Harris v. State, 257 Ga. 666, 667 (1) (a) (362 SE2d 211) (1987).

       (Citations and punctuation omitted.) Griffin v. State, 224 Ga. App. 225 (2) (480 SE2d 608) (1997). See Tremble v. State, 162 Ga. App. 761, 762 (2) (292 SE2d 442) (1982).

       OCGA § 24-2-3 (c) (1).

       OCGA § 24-2-3 (b), (c) (2). See Brown v. State, 214 Ga. App. 676, 677 (2) (448 SE2d 723) (1994).

       OCGA § 24-2-3 (c) (2).

       OCGA § 24-2-3 (c) (3).

       OCGA § 24-2-3 (b), (c) (2).

       See cases cited in n. 8, supra.

       180 Ga. App. 146 (348 SE2d 690) (1986).

       Id. at 146-147 (1).

       Id. at 147.

        Abdi I, 162 Ga. App. at 20; Abdi II, 249 Ga. at 827; Abdi III, 744 F2d at 1502, fn. 1.

       Id.

        Abdi I, 162 Ga. App. at 20-21; Abdi III, 744 F2d at 1503-1504.

        Abdi I, 162 Ga. App. at 21.

       Id.

       Id. at 22.

       249 Ga. at 829.

       744 F2d at 1504; compare George v. State, 257 Ga. 176, 177 (2) (356 SE2d 882) (1987) (no manifest necessity where questioning did not violate Rape Shield Statute).

       See State v. Battaglia, 221 Ga. App. 283, 288 (2) (470 SE2d 755) (1996) (court should give consideration to reasonable alternatives to mistrial).

       See Venson v. State, 212 Ga. App. 540, 541 (1) (441 SE2d 893) (1994) (court took recess to consider motion after hearing extensive argument; “ ‘ “The manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial” ’ ”); Moss v. State, 200 Ga. App. 253, 255 (407 SE2d 477) (1991) (court took recess to consider); Phelps v. State, 187 Ga. App. 236 (369 SE2d 506) (1988) (court took short recess to consider).

       See Abdi I, 162 Ga. App. at 22 (whether to grant a mistrial is in the court’s discretion).

        Hicks v. State, 222 Ga. App. 828, 829 (1) (476 SE2d 101) (1996); see Harris, supra, 257 Ga. at 667 (1) (a).

        Singleton v. State, 157 Ga. App. 192 (1) (276 SE2d 685) (1981).

        Abdi I, 162 Ga. App. at 22.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A1947.
    LYON v. STATE OF GEORGIA.
    (495 SE2d 899)
   Smith, Judge.

The State filed a forfeiture action against a pickup truck owned by appellant Betty Lyon, alleging that the truck was used by her son, Jesse Dubberly, to facilitate a purchase of cocaine. Lyon answered, asserting, among other things, that she was an innocent owner of the forfeited property. The “innocent owner” provision of the forfeiture statute provides in relevant part: “A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (1) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur.” OCGA § 16-13-49 (e).

After a bench trial, the trial court found that Lyon knew or reasonably could have known that Dubberly was using the truck to purchase cocaine and ordered the forfeiture of the truck. In her sole enumeration of error, Lyon contends the trial court erred in this finding and in determining that she was not an innocent owner of the truck. We disagree.

In this case, as in all condemnation actions, once the State established a prima facie case for forfeiture of the property, Lyon had the burden of establishing by a preponderance of the evidence that she was an innocent owner under the provisions of OCGA § 16-13-49. State v. Banks, 215 Ga. App. 828, 832 (452 SE2d 533) (1994). “Subsections (o) (5) and (p) (6) of OCGA § 16-13-49 provide that forfeiture proceedings shall be held by the court without a jury. [Cit.] Upon appellate review, factual findings made after a bench trial ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.’ OCGA § 9-11-52 (a).” Id. “The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Maynard v. State of Ga., 217 Ga. App. 344, 346 (457 SE2d 253) (1995).

At trial, the State offered a statement that Lyon gave to the police shortly after Dubberly’s arrest. In that statement, Lyon told the police that Dubberly “has had a drug problem for approximately 5 years” and that she had taken the truck away from him “a couple of

Decided January 21, 1998.

Ratcliffe, Smith & Rose, Charles P. Rose, Jr., for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

months ago for not working and being strung out on cocaine.” She also stated that Dubberly “is so strung out that I have to hide my money and my jewelry to keep him from taking it somewhere to swap it for dope,” and that the seat of the truck was burned from his using crack. She added that it “didn’t take him 6 months to destroy that truck because of his addiction.” While Lyon testified and disavowed this statement, “[u]nder Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), ‘a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.’ The . . . evidence here was the prior inconsistent statement of a witness who testified and was subject to cross-examination.” Gilbert Corp. of Delaware v. Yetman, 219 Ga. App. 320, 322 (464 SE2d 822) (1995) (on motion for reconsideration). Lyon’s statement was sufficient under the any evidence rule to support the trial court’s finding that Lyon knew or should have known that Dubberly’s use of the truck to purchase cocaine was likely to occur.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.


author: Judge Harold R. Banke.

text:
    A97A2338.
    STEWART v. AUTO-OWNERS INSURANCE COMPANY.
    (495 SE2d 882)
   Judge Harold R. Banke.

Pauline Stewart appeals the dismissal of her action against Auto-Owners Insurance Company (“Auto-Owners”).

While acting within the scope of her employment, Stewart sustained extremely serious injuries in an automobile accident. Her employer’s workers’ compensation carrier, Auto-Owners, initially accepted Stewart’s claim as compensable and began to pay benefits. From the liability insurer of the driver at fault, Charles H. Wilson, she recovered only $15,000. She sought additional payment from her own insurance company, Cincinnati Insurance Company (“Cincinnati”) under her $300,000 uninsured motorist policy.

After experiencing several problems with Auto-Owners’ handling of her benefits and records, Stewart filed the underlying action, suing Wilson and Auto-Owners. While this lawsuit was pending; Stewart and her husband settled with Cincinnati for $35,000 and $250,000 respectively. Also during the pendency of the instant action, Stewart and her “Employer/Insurer” entered into a mediated settlement concerning several workers’ compensation issues.

After mediation and the settlement with Cincinnati, Stewart amended her complaint and sought declaratory relief, claiming that an actual controversy existed between the parties “concerning the right of subrogation, extent of subrogation, and the priority of subrogation with respect to claims arising out of the accident in question.” Auto-Owners counterclaimed asserting its right to a subrogation lien. Stewart moved for partial summary judgment contending on several grounds that Auto-Owners had no subrogation right to her uninsured motorists benefits. Stewart maintained that due to its misconduct, Auto-Owners “waived, forfeited, and is estopped to enforce any claim of subrogation.” Auto-Owners then moved to dismiss her suit under OCGA § 9-11-12 (b). Stewart appeals the dismissal of her action. Held:

A motion to dismiss should not be granted unless it appears to a certainty that a plaintiff would be entitled to no relief under any state of facts which could be proven in support of that claim. Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). When, as here, the trial court does not recite the grounds upon which the court granted the motion to dismiss, if the judgment is authorized for any reason it must be affirmed. Gillis v. American Gen. Life &c. Ins. Co., 222 Ga. App. 891, 892 (476 SE2d 648) (1996).

Here, however, all of Stewart’s tort claims devolve from Auto-Owners’ alleged mishandling of her workers’ compensation benefits and documents and are precluded by State law. No independent cause of action apart from the Georgia Workers’ Compensation Act (“Act”) is permitted where an insurer wrongfully denies benefits or delays authorizing medical benefits. Doss v. Food Lion, 267 Ga. 312, 313 (1) (477 SE2d 577) (1996); Bright v. Nimmo, 253 Ga. 378, 379-381 (320 SE2d 365) (1984) (limits of liability extend to insurer as well as employer). Similarly, Stewart’s redress, if any, for her emotional distress claim for Auto-Owners’ alleged mishandling of her benefits and documents or for Auto-Owners’ alleged breach of a position of confidence and trust, is through the Act. Smart Professional Photocopy Corp. v. Dixon, 216 Ga. App. 825, 827 (456 SE2d 233) (1995). Stewart’s remedy for her claim that the delay exacerbated her condition or created a subsequent injury, would have to be obtained under the Act, not in a separate action. OCGA §§ 34-9-18; 34-9-108 (b). Her claim for damages for the purported violation of the Board Rule also lies exclusively within the jurisdiction of the Board. Dixon, 216 Ga. App. at 827.

The only remaining issue is whether the trial court properly dismissed the portion of Stewart’s action seeking declaratory relief as to the parties’ respective rights to Stewart’s uninsured motorist benefits. In moving to dismiss, Auto-Owners claimed that no justiciable controversy existed between itself and Stewart. We disagree. The record indicates that Auto-Owners counterclaimed to protect and enforce “a subrogation lien against any recovery obtained by Plaintiff from Defendant Wilson pursuant to OCGA § 34-9-11.1.” At all pertinent times, Auto-Owners asserted that it had a subrogation right under OCGA § 34-9-11.1 to the insurance payment Stewart received from Cincinnati. Compare Mikart, Inc. v. Marquez, 211 Ga. App. 209 (1) (438 SE2d 633) (1993) (dismissal of action for declaratory judgment proper where plaintiff cannot show position of uncertainty as to an alleged right). See Professional Carpet Systems v. Saefkow, 212 Ga. App. 131 (441 SE2d 98) (1994).

In dispute is whether a workers’ compensation insurer, like Auto-Owners, has a statutory right to assert a subrogation lien to an injured claimant’s uninsured motorist benefits. This issue of law is apparently a question of first impression and necessitates the statutory construction of OCGA § 34-9-11.1. The pertinent subsection states, “In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery.” OCGA § 34-9-11.1 (b). Further, by the law’s plain terms, an insurer’s recovery is predicated on certain conditions precedent and is balanced against “the amount of the recovery [by the injured claimant] in the third-party claim.” OCGA § 34-9-11.1 (b).

By its express terms, this subsection authorizes workers’ compensation insurers, like Auto-Owners, to maintain a right of action against tortfeasors other than an employer, where an employee recovers from that third-party tortfeasor in a third-party claim and has been fully compensated. See Government Employees Ins. Co. v. Hirsh, 211 Ga. App. 374, 375 (439 SE2d 59) (1993) (subrogation lien under OCGA § 34-9-11.1 attaches to injured party’s recovery against negligent third party). See Bennett v. Williams Electrical Constr. Co., 215 Ga. App. 423, 424 (3) (450 SE2d 873) (1994) (physical precedent only). But nothing in the statutory scheme authorizes an insurer to assert a subrogation right against an injured person’s uninsured motorist benefits. Auto-Owners cited no authority and we know of none which permits OCGA § 34-9-11.1 to apply to uninsured motorist benefits.

Decided January 21, 1998

Robert M. Goldberg, for appellant.

The cardinal rule of statutory construction is to effectuate the legislative purpose and intent. See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). In enacting OCGA § 34-9-11.1, the legislature intended “ To provide for some amount of cost containment, by recompensing the employer [for amounts recovered against a third party].’ ” Bennett, 215 Ga. App. at 425 (3).

Cincinnati’s obligation to Stewart was a contractual duty arising under Stewart’s insurance policy. See Jenkins & Miller, Ga. Auto. Ins. Law, § 37-5 (1997 ed.). Cincinnati’s payment to Stewart under the terms of her uninsured motorist policy was not a recovery from a negligent third party. “[P]ayments made by the insurance company under [an uninsured motorist] policy are not payments made by or on behalf of the uninsured-motorist tortfeasor, and do not affect the uninsured motorist’s liability to pay the damages recovered in the lawsuit against him.” Mullenberg v. K. J. Saxon Constr. Co., 192 Ga. App. 281, 282 (1) (384 SE2d 418) (1989).

Thus, the benefits at issue were not obtained from a third-party tortfeasor and would not affect Wilson’s tort liability or Auto-Owners’ right of recovery against Wilson. Mullenberg, 192 Ga. App. at 282 (1). Accordingly, we find as a matter of law that Auto-Owners could not assert a subrogation lien against Stewart’s uninsured motorist benefits. To hold otherwise would require that we disregard the plain wording of the Act, as well as the intent of the legislature, which we cannot do. Hall v. Canal Ins. Co., 195 Ga. App. 16, 17 (392 SE2d 340) (1990). Because the statute at issue does not support any right to the subrogation claim which Auto-Owners asserted, it necessarily follows that Stewart was entitled to declaratory relief in her favor. We reverse the dismissal of Stewart’s declaratory judgment action and remand for the entry of an order consistent with this opinion.

Judgment affirmed in part, reversed in part and case remanded with direction.

Pope, P. J., and Johnson, J., concur.

Long, Weinberg, Ansley & Wheeler, John C. Bonnie, Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Timothy C. Lemke, for appellee.

       It also appears that Stewart’s claims would have been foreclosed under the terms of the mediation agreement.

       In its response brief to Stewart’s motion for partial summary judgment, Auto-Owners claimed it had paid over $100,000 in benefits on her behalf. It noted, “At all times relevant hereto, Ms. Stewart has been on notice of Auto-Owners’ subrogation lien under OCGA § 34-9-11.1 against any recovery the Plaintiff may make against some person other than the employer.”


text:
    A97A2346.
    CARROLL ANESTHESIA ASSOCIATES, P.C. v. ANESTHECARE, INC. et al.
    (495 SE2d 897)
   Beasley, Judge.

Plaintiff Carroll Anesthesia Associates, PC. (“Carroll”) sued Anesthecare, Inc. and others for tortious interference with contractual and business relations. Defendants moved for summary judgment and simultaneously filed a separate written request for oral argument on the motion. Carroll responded to the motion but did not request oral argument. Shortly thereafter, the court granted summary judgment to defendants.

1. Carroll contends the trial court erred by granting summary judgment without first holding oral argument as required by Uniform Superior Court Rule 6.3.

“[USCR] 6.3 provides that ‘oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.’ Under this rule, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.”

Defendants, as in Vincent v. Bunch, argue that because Carroll “did not request argument pursuant to USCR 6.3, [it] cannot complain about the trial court’s refusal to hold argument.” Vincent rejected this argument, reasoning that “the mandatory hearing requirements of USCR 6.3 were triggered without a request from [plaintiff].” The defendants’ timely request set the wheels in motion. “The law does not require a useless act. Although [plaintiff] certainly could have filed a separate request, it would have been cumulative and unnecessary under USCR 6.3, which requires that ‘one of the parties’ request argument. The trial court had no discretion to deny oral argument in this case.” Contrary to defendants’ contention, the appearance of both Vincent parties at the courthouse for an oral argument that was canceled was not the factor triggering the Vincent plaintiff’s right to oral argument. The rule of procedure, which is to be uniformly applied, must be enforced.

Decided January 21, 1998.

J. Hue Henry, Christopher L. Casey, for appellant.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, for appellees.

Defendants assert harmless error, contending that reversing the judgment and remanding the case to the court for oral argument will give that court “no reason” to decide the case differently. That we do not know, as the plaintiff has been deprived of the full opportunity to be heard afforded by the rule. Its argument may shed further light on the merits of its motion, enhance the court’s understanding of the undisputed facts and their significance in relationship to each other, and persuade. Moreover, “the trial court’s failure to hold oral argument cannot be considered harmless error, because doing so would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.” Nor does the fact that the appellate courts review summary judgment rulings de novo, so that omitting the step would simply streamline the process, justify noncompliance. Since addressing the question of harmless error in Dixon v. McClain, we have consistently required oral argument, when properly requested by a party, as a meaningful contribution to the goal of legally correct resolution of disputes.

Accordingly, the trial court’s ruling on defendants’ motion for summary judgment is reversed and the case is remanded for oral argument.

2. Carroll’s remaining enumerations of error are moot.

Judgment reversed with instruction.

McMurray, P. J, and Smith, J., concur.

       (Citations and punctuation omitted.) Vincent v. Bunch, 227 Ga. App. 480 (1) (489 SE2d 592) (1997); see Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623-624 (351 SE2d 443) (1987); Dept. of Transp. v. APAC-Georgia, 217 Ga. App. 103, 107 (5) (456 SE2d 668) (1995).

       See n. 1, supra.

       227 Ga. App. at 480.

       (Emphasis omitted.) Id. at 480-481.

       (Citations, punctuation, and emphasis omitted.) Id. at 481.

       (Citations and punctuation omitted.) Id. at 480.

       204 Ga. App. 531 (1) (420 SE2d 66) (1992).

       See Vincent, supra, 227 Ga. App. at 481; Premo v. Ga. Ports Auth., 227 Ga. App. 27, 28 (1) (488 SE2d 106) (1997); APAC-Georgia, supra, 217 Ga. App. at 107 (5); Pit Stop v. Jackson, 216 Ga. App. 648 (1) (455 SE2d 358) (1995); Southeast Reducing Co. v. Wasserman, 213 Ga. App. 763 (445 SE2d 859) (1994).

        Vincent, supra, 227 Ga. App. at 481 (2); Pit Stop, supra, 216 Ga. App. at 649 (2).


text:
    A97A2356.
    WILSON v. THE STATE.
    (495 SE2d 894)
   Smith, Judge.

Jackie Wilson was indicted on one count of burglary, OCGA § 16-7-1 (a), one count of possession of tools for the commission of a crime, OCGA § 16-7-20, and two counts of obstruction of an officer, OCGA § 16-10-24 (a). He was convicted on all four counts. Judgment was entered on the jury verdict, and Wilson appeals, raising two enumerations of error concerning the sufficiency of the evidence on the burglary conviction. We find the evidence sufficient to convict Wilson under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we affirm.

Construed to uphold the jury’s verdict, the State presented evidence that on Christmas night, 1996, Officer Glaze of the Rome Police Department was dispatched to a burglary in progress at an elementary school. Just after arriving at the school, he saw an unidentified man run out of a classroom doorway. Glaze began chasing him toward the back of the school. During the chase, Glaze also saw Wilson running from an area near the classroom that was later found to have been burglarized. Glaze chased both men, but the other individual climbed over a fence and escaped. He continued chasing Wilson into some woods and found Wilson lying on his stomach with his arms underneath him. Wilson refused to cooperate with Glaze’s commands to place his hands behind his back. Another officer arrived on the scene, and Wilson continued to refuse to cooperate until one officer sprayed him with pepper spray. Wilson then complied with the officers, and as he was standing up, a pair of white gloves and a screwdriver handle fell to the ground. According to one of the officers, Wilson made the statement that he was “with a John Davis . . . when the burglary was being committed.” The two police officers walked back to the school and found that two window frames appeared to have been unscrewed and the glass removed. The officers also found a trash can containing two computers, a printer, a VCR, and some disks “|j]ust right around the corner” from the classroom with the missing windows.

Wilson testified that he went to the school to burglarize it but that on his way into the school, he saw another man running and became frightened and began running himself. He stated that he did not enter the building or take anything from it.

1. Wilson contends the State failed to meet its burden of showing that he entered the school without authority, as required by OCGA § 16-7-1, and therefore the trial court should have directed a verdict of acquittal. We do not agree. Only when the evidence demands a verdict of not guilty can the trial court grant a motion for directed verdict of acquittal. See generally Williams v. State, 195 Ga. App. 476, 480 (4) (394 SE2d 123) (1990). The evidence here did not demand a not guilty verdict.

A maintenance and security employee testified that to his knowledge, no one had authority to place the items found by the police officers outside the school on Christmas night. He also stated that Wilson in particular did not have authority to enter or take items from the school. It is true that this witness acknowledged that he had not been provided with an actual list of who could and could not enter the school and that he did not have “personal knowledge” of whom the principal had given permission to come and go from the school. But despite this lack of personal knowledge, this witness was a 15-year employee of the school system with knowledge gleaned from experience of those people who had permission to enter the school. And the jury, like this witness, could infer from the circumstances surrounding the incident that Wilson did not have authority to enter the school. The incident occurred late on Christmas night at a time the school likely would not have been open to the public, and Wilson was seen fleeing from the area. Flight is circumstantial evidence of an accused’s guilt. Quinn v. State, 222 Ga. App. 423, 424 (1) (474 SE2d 297) (1996). Once caught by law enforcement officials, Wilson was at first uncooperative; when he did cooperate, the officers found that he possessed part of a screwdriver. Removal of the windows from the school had been accomplished in part by removing screws from them. Although this evidence was circumstantial, it was for the jury to determine whether the evidence excluded every other hypothesis save that of Wilson’s guilt. See, e.g., Harris v. State, 223 Ga. App. 661, 663-664 (478 SE2d 458) (1996). Given the time of year and the time of day, as well as Wilson’s flight from the school and his failure to cooperate with the police, the evidence did not demand a verdict of not guilty. The trial court therefore did not err in denying Wilson’s motion for directed verdict on the basis of failure to prove Wilson’s lack of authority to enter the school.

2. Wilson also contends the evidence was insufficient to convict him because “the evidence is uncontroverted that the only person whom the police officer saw running from the school was another individual besides Mr. Wilson. Accordingly, the officers [sic] version of what they saw at the school was totally consistent with Mr. Wilson’s version of the facts that he went to the school to commit a burglary but another individual beat him to it and he never entered the building.”

We do not agree with Wilson that reversal is warranted. First, Wilson misstates the record. It is true that Glaze acknowledged that the only person he saw actually running from inside the school building was the other individual, who was not apprehended. But he did observe and chase Wilson as he ran from the area where the burglary occurred.

Decided January 21, 1998.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.

Second, it is true that Wilson offers an alternative explanation for his presence near the school and the reason why he began running, and this explanation must be taken into account in determining whether the circumstantial evidence was sufficient to convict him. See, e.g., Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981). But whether this explanation was reasonable was inherently a question for the jury: ‘Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.” (Citations and punctuation omitted.) Id. at 2-3. Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial. See Hulsey v. State, 210 Ga. App. 251, 253-254 (435 SE2d 713). Given the evidence that Glaze saw Wilson running near the areá where the classroom was broken into, along with other evidence concerning Wilson’s behavior and the time of day and year as well as the trial court’s charge on the applicable law, we cannot say the jury’s verdict was insupportable as a matter of law. A rational trier of fact was therefore authorized to find Wilson guilty under the standard of Jackson v. Virginia, supra.

We note that Graves v. State, 172 Ga. App. 829 (324 SE2d 790) (1984), cited by Wilson, is not binding precedent because one judge on a three-judge panel concurred in judgment only. Court of Appeals Rule 33 (a). More importantly, it is inapposite. The only relation between the burglary and defendant in that case was that the stolen items were found in an unoccupied car owned by defendant and parked near the scene of the burglary. The defendant was not seen or found anywhere in the vicinity of the burglary, unlike Wilson, who was seen running away from the area that was burglarized.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A2412.
    PARK v. THE STATE.
    (495 SE2d 886)
   Beasley, Judge.

Dong Jin Park was convicted of aggravated battery (OCGA § 16-5-24) for repeatedly striking Eung Chul Lee and rendering his left eye useless. The issues are whether the trial court erred by (i) declining to order Lee to undergo an independent eye exam, (ii) allowing the testimony of an officer who was not on the State’s witness list and who testified to a statement made by Park to another officer, (iii) failing to charge the jury on justification, (iv) allowing the State to present impeaching testimony as to statements of Park’s wife, the State’s witness, and (v) allowing the State to call unlisted rebuttal witnesses.

During dinner at a restaurant one evening, Lee informed his employer Park he was quitting. Hours later, after the two men had drunk substantial amounts of alcohol, Park’s wife intended to drive them home in her van. Lee declined, stating he wanted to take a taxi, and when Park tried to force Lee into the van, Lee resisted. Park struck Lee in the left eye, and he collapsed. Park then bit him on the back, kicked him in the head, and beat him. Lee’s testimony that he has permanently lost sight in his eye was corroborated by his ophthalmologist. Park testified he did not strike Lee but merely wrestled with him when the two fell to the ground following Lee’s refusal to enter the van.

1. Two months prior to trial Park moved unsuccessfully to compel Lee to undergo an independent medical examination of his eye, claiming Lee’s eye injuries were pre-existing or did not deprive him of his eye nor render it useless. Following conviction, Park sought a new trial because of the refusal of an independent eye exam, but the court denied the motion.

Citing Sabel v. State, Patterson v. State, and three federal cases, Park contends he was entitled to the examination because the condition of the eye was critical to his defense, for aggravated battery requires proof that the victim was deprived of a body member or that the body member was rendered useless. Sabel held due process requires that a “criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion.” Sabel concluded the defendant was entitled to have paint samples examined that linked him to the crime. Patterson held the defendant could have his expert examine the contraband on which his possession charge was based.

Park did not want to examine contraband or paint samples; he wanted to examine a person. Persons are protected by the Fourth Amendment from unreasonable searches and seizures, and surgical procedures on or medical examinations of a person’s body cannot be compelled unless the state has good reason to believe the person has committed a crime. “Our Supreme Court has recognized that in criminal cases it is violative of the rights of witnesses or victims for them to be ordered to submit to surgery or examinations for visual acuity. [Cit.]”

“We are aware of no statutory authority nor case law in this state that mandates the involuntary examination of a . . . victim.” “The Fourth Amendment right of the victim to be secure against an unreasonable search must prevail over the right of the accused to obtain evidence for his defense.” Just as victims may decline to be interviewed by defense counsel, they may also decline to be examined by defendant’s experts.

Park’s rights as to the ascertainment of truth concerning the eye condition were adequately protected inasmuch as Lee and his ophthalmologist were subjected to extensive cross-examination. The court did not err.

2. Park enumerates as error the allowance of Officer Putnam’s testimony even though he was not on the State’s witness list. Park complains further that although the State did not provide him prior notice of a “custodial” statement, the court allowed Officer Putnam to testify that he overheard Park say to the investigating officer “he was trying to teach [Lee] a lesson.”

(a) Park was not entitled to a list of the State’s witnesses, so he may not complain of the omission of Officer Putnam’s name from the list. In October 1996, Park demanded a list of the State’s witnesses pursuant to OCGA § 17-7-110. But OCGA § 17-7-110 had been repealed as of January 1, 1995 and replaced with the new criminal discovery statute, OCGA § 17-16-1 et seq. Article 1 of Chapter 16 of Title 17 applies to felony cases indicted or docketed after January 1, 1995, and requires the disclosure of trial witness lists only if the defendant elects by written notice to have the article apply to him. Park was indicted in September 1996 and did not opt to have the discovery statute (with its corresponding obligations on him) apply. Accordingly, the State was not required to provide a trial witness list.

Further, the omission of the officer’s name from the list was unintentional, for the prosecuting attorney did not learn of his identity until the night before trial. Park’s counsel was afforded the opportunity to interview the officer before he testified. Thus, even if the statute applied, its purpose was fulfilled. “[A] trial court may allow an unlisted witness to testify if the accused is given an opportunity to interview the witness prior to the time he takes the stand. [Cit.]”

Park cites but does not support with argument Art. I, Sec. I, Par. XTV of the 1983 Georgia Constitution, which requires the State to furnish an accused “on demand, with a list of the witnesses on whose testimony such charge is founded.” “ ‘We will therefore consider the invocation of the state constitution as abandoned. (Cits.)’ [Cit.]” Even if we did consider it, this constitutional provision does not require the State to provide a list of trial witnesses, but only a list of witnesses on whose testimony the charge was founded.

(b) Park’s argument on the “custodial” statement fails on similar grounds. Assuming the statement was custodial, the State was not required to provide it to Park. Citing OCGA § 17-7-210, Park demanded a copy of all custodial statements taken by police. OCGA § 17-7-210 was also repealed as of January 1,1995, and replaced with the same discovery statute. Since Park did not opt in under the statute, the State was not obliged to disclose statements Park made to the police.

Park contends that OCGA § 17-16-22 of the new discovery statute requires this disclosure on demand. This section is a part of Article 2 of Chapter 16 of Title 17, which article applies only to misdemeanor cases or to felony cases indicted or docketed prior to January 1, 1995. It does not apply to Park’s 1996 felony indictment.

3. Park charges that counsel was ineffective in citing the wrong Code section in his demand for the “custodial” statement and in failing to object to hearsay by Officer Putnam. Following an evidentiary hearing on the motion for new trial, the court rejected the charge.

“ ‘Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.’ [Cit.]”

(a) It was not the citing to OCGA § 17-7-210 that caused the demand for custodial statements to be unavailing; it was the decision not to opt in under the new discovery statute. As a benefit of this decision, Park did not incur the obligation to provide discovery to the State. This was a tactic or stratagem that will not be second-guessed, particularly where Park did not even query trial counsel about this decision during the evidentiary hearing on the motion for new trial.

(b) Nor was there ineffective assistance in trial counsel’s failure to object to Officer Putnam testifying to two instances of alleged hearsay. The first instance occurred during cross-examination, when Park’s counsel intimated Officer Putnam may not have understood Park at the time he said he was trying to teach Lee a lesson. Counsel queried Officer Putnam as to the quality of Park’s English, and he responded: “I understood him. [The investigating officer] could understand him. I mean, it is not the perfect English, but we understood. We had no problem understanding what he was saying.” This is not inadmissible hearsay. Putnam did not testify to any statement other than what Park himself said. His comment that the other officer also understood Park was likely based on his observations at the time. Thus, Park’s counsel had sound reason not to object.

The second instance occurred when Officer Putnam testified Lee was advised he could take out a warrant against Park. This was in the context of explaining why the officers arrested Park only for public drunkenness (OCGA § 16-11-41), i.e., the victim was advised that he, not the officers, would be responsible for filing any battery charges. This was admissible to explain the officers’ conduct; a hearsay objection would not have been valid.

The evidence supports the finding that counsel’s actions did not fall below an objective standard of reasonableness.

4. Park enumerates as error the court’s failure to charge the jury on justification. Park did submit complete charges on the subject but no evidence warranted the charge. All witnesses, including Park, confirmed that Park was the aggressor. Park testified that he grabbed Lee’s shoulders to force him into the van, and that when Lee tried to push him away they fell down together and wrestled, with Park’s arms flailing.

“A person is not justified in using force . . . if he . . . [w]as the aggressor . . . unless he withdraws from the encounter and effectively communicates to such other person his intent to do so. . . .” The evidence is undisputed that Park was the aggressor and that he made no effort to communicate a withdrawal from the encounter. “Since a person is not justified in using force if he was the aggressor, OCGA § 16-3-21 (b) (3), appellant was not entitled to a charge on justification.”

5. It was not error to allow witnesses to testify to Mrs. Park’s statements. Lee testified that during the incident Mrs. Park told her husband, “Why you do this way? Don’t hit him, don’t hit him.” Around 7:00 a.m., about four hours after the incident, Mrs. Park came to visit Lee in the hospital. Lee and another witness testified Mrs. Park was upset and crying and asked Lee at the hospital why he did not fight back when Park beat him. Later that morning at about 11:00 a.m., Mrs. Park visited Lee at his parents’ home and while crying told him and his parents her husband acted like an animal. At trial Mrs. Park denied making these statements.

Park moved in limine to exclude the latter two statements. Finding the statements were close in time to the incident and that Lee had gone to the hospital immediately after the incident, the court properly concluded the incident was continuing and allowed the testimony under the doctrine of res gestae.

OCGA § 24-3-3 provides “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” “Our Supreme Court has . . . enunciated more liberal standards for appraising whether statements fall within the parameters of res gestae. [Cit.]” Andrews v. State held that “a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.”

Brantley v. State, which found admissible statements made three to four hours after the incident, synthesized the law in this area. “What the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction — if they elucidate it — if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous. However, no precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed. The admissibility of such declarations does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from all suspicion of device or afterthought. It is also a well established rule of law that if the admissibility of evidence is doubtful, the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.”

Evidence showing the statements were made “ ‘while the parties were still laboring under the excitement and strain of the circumstances and in such proximity in time as to preclude the idea of deliberation or fabrication’ ” will support a judicial finding that the statements were sufficiently informative and reliable.

Mrs. Park, a bystander, spoke against her interest; she did not want her husband convicted or found liable for civil damages. Upset and crying, she was still laboring under the excitement and strain of the violent encounter from earlier that morning. The hospital was her first opportunity to speak with Lee about the incident without her husband present, and the residence was the first opportunity to speak with Lee’s parents. Her statements were consistent with her outcry while the incident was occurring. It was only at trial, after she had time to think, that she denied making the statements.

The passage of four hours before the first statement and another four hours before the second statement do not preclude a finding of res gestae. Georgia courts have admitted statements made after longer periods of time.

6. Park contends the court erred in allowing the State to impeach its own witness, Mrs. Park. In addition to the statements made at the hospital and the residence denied by Mrs. Park, she also denied telling a police officer Park’s trial counsel was her attorney. Park argues that because some of the prior statements were made to lay witnesses, and not to police investigators nor to the prosecuting attorney, the State was not entitled to rely on them and was therefore not entrapped by them.

OCGA § 24-9-81 provides: “A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.” Davis v. State held that a party has been sufficiently entrapped under the statute “[i]f, at the time of the questioning, a party has knowledge of a prior statement by one of his witnesses which contradicts testimony that witness has just given.” More recently the Supreme Court held that a “party may impeach its own witness with a prior inconsistent statement without any showing of entrapment or surprise. [Cits.]”

Decided January 21, 1998.

Drew Findling, Elizabeth L. Rankin, Thomas Y. Choi, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

The prior inconsistent statements are not limited to those given to police investigators or prosecuting attorneys. Neither the statute nor the case law imposes such a restriction. Nor should they, for prior inconsistent statements are admissible as substantive and impeachment evidence, regardless of their source.

The court did not abuse its discretion in allowing the State to impeach Mrs. Park.

7. Citing OCGA § 17-7-110, Park enumerates as error the court’s allowing the State to call witnesses in rebuttal who were not listed on the State’s witness list and of whom the State was aware prior to trial. As discussed earlier, OCGA § 17-7-110 has been repealed, and its replacement does not require a witness list without an election under OCGA § 17-16-2 (a). The two cases cited by Park for the proposition that certain rebuttal witnesses must be listed both assume the old statute applies. Even if it did, “calling an unlisted witness in rebuttal is not error and does not violate OCGA § 17-7-110.”

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       248 Ga. 10, 16-18 (6) (282 SE2d 61) (1981), overruled on other grounds, Rower v. State, 264 Ga. 323, 325 (5) (443 SE2d 839) (1994).

       238 Ga. 204 (232 SE2d 233) (1977).

        White v. Maggio, 556 F2d 1352, 1356-1358 (5th Cir. 1977) (inspection of bullets); United States v. Herndon, 536 F2d 1027, 1029 (5th Cir. 1976) (inspection of “moonshine” liquor); Barnard v. Henderson, 514 F2d 744, 746 (5th Cir. 1975) (inspection of murder weapon and bullet).

       OCGA § 16-5-24 (a).

       248 Ga. at 17-18; see Patterson, supra, 238 Ga. at 206 (defendant charged with possession may have contraband examined); Rogers v. State, 224 Ga. App. 359, 360 (2) (480 SE2d 368) (1997) (inspection of syringe).

        State v. Haynie, 240 Ga. 866, 867-868 (242 SE2d 713) (1978); see Weems v. State, 268 Ga. 142, 145 (8) (485 SE2d 767) (1997) (surgery to remove bullet from victim denied); see also Young v. State, 146 Ga. App. 167, 168 (2) (245 SE2d 866) (1978) (obtaining evidence in possession of victims would constitute search and seizure).

        Collar v. State, 206 Ga. App. 448 (1) (426 SE2d 43) (1992) (psychological examination of victim denied); see Watkins v. State, 212 Ga. App. 296, 297 (1) (441 SE2d 801) (1994) (“in criminal cases it is violative of the rights of the witnesses or victims for them to be required to submit to surgery or examinations”).

         J. B.v. State, 171 Ga. App. 373, 376 (4) (319 SE2d 465) (1984) (psychiatric exam of victim to test why she did not resist rape denied); see Marcello v. State, 220 Ga. App. 284, 285 (1) (469 SE2d 252) (1996) (expert examination of nonconsenting victim denied); Pope v. State, 197 Ga. App. 832, 833 (4) (399 SE2d 552) (1990) (psychiatric examination of victim denied); Rhodes v. State, 193 Ga. App. 28, 29 (2) (386 SE2d 857) (1989) (psychiatric exam of witnesses denied). Compare Ely v. State, 192 Ga. App. 203 (1) (384 SE2d 268) (1989) (court allowed psychological examination of consenting victim).

        State v. Haynie, supra, 240 Ga. at 868; Weems v. State, supra, 268 Ga. at 145 (8).

        Collar, supra, 206 Ga. App. at 448 (1).

       See J. B., supra, 171 Ga. App. at 376 (4).

       Ga. L. 1994, pp. 1895, 1896, 1899-1908, §§ 1, 4.

       OCGA §§ 17-16-2 (a); 17-16-3.

        White v. State, 253 Ga. 106, 109-110 (3) (317 SE2d 196) (1984).

        Thrasher v. State, 265 Ga. 401, 402 (3) (456 SE2d 578) (1995).

        Cook v. State, 199 Ga. App. 523, 524 (2) (405 SE2d 341) (1991).

        Britten v. State, 221 Ga. 97, 99 (2) (143 SE2d 176) (1965).

       Ga. L. 1994, pp. 1895, 1897-1908, §§ 2, 4.

       See OCGA §§ 17-16-2 (a); 17-16-4 (a) (1).

       OCGA § 17-16-20.

        Bevil v. State, 220 Ga. App. 1, 4 (7) (c) (467 SE2d 586) (1996).

       See, e.g., OCGA §§ 17-16-4 (b); 17-16-5; and 17-16-7.

       See OCGA § 24-3-31 (party admissions are admissible).

       OCGA § 24-3-2.

       OCGA § 16-3-21 (b) (3).

        Montgomery v. State, 173 Ga. App. 570, 572 (2) (327 SE2d 770) (1985).

        Taylor v. State, 176 Ga. App. 567, 574 (4) (b) (336 SE2d 832) (1985).

       249 Ga. 223, 228 (290 SE2d 71) (1982).

       See Williams v. State, 180 Ga. App. 562, 563 (1) (349 SE2d 797) (1986); Samples v. State, 169 Ga. App. 605, 606 (4) (314 SE2d 448) (1984).

       177 Ga. App. 13 (338 SE2d 694) (1985).

       (Citations, punctuation and emphasis omitted.) Id. at 14-15 (2); see Perkins v. State, 226 Ga. App. 613, 614 (1) (a) (487 SE2d 365) (1997); Millwood v. State, 174 Ga. App. 113, 115 (2) (329 SE2d 273) (1985).

        Williams, supra, 180 Ga. App. at 563 (1); see Ward v. State, 186 Ga. App. 503, 504 (1) (368 SE2d 139) (1988) (key is spontaneity). Compare Wilbourne v. State, 214 Ga. App. 371, 372-373 (1) (448 SE2d 37) (1994) (no evidence that victim’s statements were spontaneous).

       See Moseley v. State, 179 Ga. App. 698, 699 (2) (347 SE2d 686) (1986) (victim’s first opportunity to report crime outside presence of perpetrator is admissible as res gestae).

       See Phillips v. State, 260 Ga. 742, 744, fn. 2 (399 SE2d 202) (1991) (over 12 hours); Ward, supra, 186 Ga. App. at 503-504 (1) (day after incident); Williams, supra, 180 Ga. App. at 563 (1) (eight hours); Millwood, supra, 174 Ga. App. at 115 (2) (nearly 24 hours).

       249 Ga. 309, 314 (3) (290 SE2d 273) (1982).

        Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285) (1993). See Knight v. State, 266 Ga. 47, 49 (4) (c) (464 SE2d 201) (1995) (“The State was authorized to use the prior inconsistent statement to impeach the witness it had called without a showing of surprise or entrapment”); Morris v. State, 228 Ga. App. 90 (491 SE2d 190) (1997); Lebis v. State, 212 Ga. App. 481, 485 (8) (442 SE2d 786) (1994).

       See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       Ga. L. 1994, pp. 1895, 1896-1897, § 1.

       See Allison v. State, 256 Ga. 851, 853-854 (8) (353 SE2d 805) (1987); Cunningham v. State, 137 Ga. App. 758 (1) (225 SE2d 98) (1976).

       (Citations and punctuation omitted.) Thomas v. State, 222 Ga. App. 120 (1) (473 SE2d 251) (1996); see Gibbons, supra, 248 Ga. at 865.


author: Johnson, Judge.

text:
    A98A0237.
    THE STATE v. GILSTRAP.
    (495 SE2d 885)
   Johnson, Judge.

Guy Gilstrap was arrested and cited for several traffic offenses. He posted bond and was released from custody three days later. The District Attorney prepared and filed an accusation charging Gilstrap with driving after having been declared an habitual violator, a felony; failing to maintain lane, a misdemeanor; and misdemeanor DUI.

Prior to trial, defense counsel. filed a written demurrer and motion in limine objecting to the prosecution of the felony habitual violator charge because Gilstrap had not expressly waived his right to a preliminary (commitment) hearing and/or his right to indictment by a grand jury. At a pretrial hearing, the state declined the trial court’s suggestion that it nol pros the felony habitual violator charge without prejudice. The trial court then dismissed the charge, and the state appeals. See OCGA § 5-7-1 (a) (1).

Citing Gerstein v. Pugh, 420 U. S. 103 (95 SC 854, 43 LE2d 54) (1975), our Supreme Court noted that the “ ‘Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.’. . . Thus it appears that an arrestee out on appearance bond is not entitled to a commitment hearing under the Fourth Amendment.” Watts v. Pitts, 253 Ga. 501, 503 (322 SE2d 252) (1984). Noting that the remedy for failing to hold a probable cause hearing within the statutory period is a release from custody, and not a dismissal of the charges, the court concluded that “a person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing.” Id. at 504. See State v. Ruff, 176 Ga. App. 303 (335 SE2d 687) (1985). Gilstrap’s posting of bond constituted a waiver of his right to a preliminary hearing.

Additionally, Gilstrap is not entitled to grand jury indictment on the habitual violator charge. OCGA § 17-7-70.1 specifically designates OCGA § 40-5-58, the habitual violator statute, as one of a class of felonies which may be tried on an accusation preferred by a district attorney rather than on an indictment returned by a grand jury. The constitutionality of this procedure has withstood challenge. See Lamberson v. State, 265 Ga. 764 (462 SE2d 706) (1995). “In enacting OCGA § 17-7-70.1, the legislature authorized the use of accusations rather than grand jury indictments for certain enumerated felonies, [including OCGA § 40-5-58]. On these offenses, the State may proceed to trial upon accusation without obtaining a waiver of indictment.” (Citations omitted.) Hood v. State, 223 Ga. App. 573 (479 SE2d 400) (1996).

Because Gilstrap waived his right to a preliminary hearing and was not entitled to indictment by a grand jury on the offense of habitual violator, the trial court erred in dismissing that charge.

Decided January 21, 1998.

Albert F. Taylor, Jr., District Attorney, for appellant.

Lea L. London, for appellee.

Gilstrap filed a motion to dismiss the state’s appeal, and for sanctions, alleging the state’s brief and enumerations of error were untimely filed. This appeal was docketed on September 16, 1997. On October 2, 1997, 20 days after docketing, a motion for an extension of time to file was granted, giving the state an additional 14 days to file its brief and enumerations of error. On October 16, 1997, the state filed its brief and enumerations of error. Accordingly, Gilstrap’s motion to dismiss and for sanctions is denied.

Judgment reversed.

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

       Gilstrap was subsequently arrested for failing to appear for a scheduled court appearance in connection with these charges and was allowed to post another bond. These events are not relevant to the issues presented in this appeal.


author: Andrews, Chief Judge.

text:
    A97A1884.
    In re CHARLES T. BRANT.
    (496 SE2d 321)
   Andrews, Chief Judge.

Charles T. Brant, an attorney, appeals from the judgment holding him in criminal contempt of court and fining him $150. Brant brings several enumerations of error, among which is his claim that the evidence was insufficient to support the judgment. We disagree and affirm.

In reviewing an appeal from a criminal contempt conviction, this Court must determine whether, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” (Emphasis omitted.) In re Smith, 205 Ga. App. 857, 858 (424 SE2d 45) (1992). See also In re Crane, 253 Ga. 667, 670 (324 SE2d 443) (1985).

Here, the evidence showed that Brant represented a criminal defendant whose case was first on an 8:30 a.m. trial calendar. When the court called the calendar, Brant was not in the courtroom. The court then took pleas and attended to other business, after which the judge called the calendar again. Brant was not in the courtroom for the second calendar call.

The judge called Brant up to the lectern after Brant returned to the courtroom and asked Brant where he had been. Brant stated he had been in the courtroom earlier but was in the bathroom when the judge called the calendar the first time. Brant said he returned to the courtroom while the judge was taking pleas but left to go to his car and get some papers. The judge found Brant in contempt for failing to appear at the calendar calls. The court’s order stated that as a result of his failure to answer two calendar calls, Brant “caused numerous other attorneys, witnesses, and parties to be inconvenienced. . . . The Court and many others, including summoned jurors awaiting call to the courtroom, simply had to wait ten to fifteen additional minutes for Mr. Brant’s appearance in the courtroom.”

Eight days later, the court entered a supplemental order in which it described several other instances of Brant’s “contemptuous conduct.” This order stated that Brant “misquoted evidence to the jury,” was “habitually tardy and disrespectful,” and “lied about his asserted inability to obtain a transcript of a previous trial.”

1. In determining whether there was sufficient evidence to support the verdict, we note that “[d]uring trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (b) (304 SE2d 52) (1983). Although Brant was given an opportunity to explain why he was not present at the calendar calls, he never had an opportunity to respond to the charges in the supplemental order. Therefore, we consider only whether Brant’s failure to appear for the calendar calls was sufficient to support the judgment of contempt.

“Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court, but it also includes the interruption of the proceedings.” (Citations and punctuation omitted.) In re Booker, 195 Ga. App. 561, 564 (4) (394 SE2d 791) (1990). “Implicit within the definition of direct, summary contempt is a finding that the conduct is in the presence of the trial court and results in an interference with the court’s ability to administer justice.” In re Adams, 215 Ga. App. 372, 375 (450 SE2d 851) (1994).

Here, it is undisputed that Brant knew he was to be in court for the 8:30 calendar call. Although he arrived at the courthouse on time, he missed not only the 8:30 calendar call but a later one as well. Because Brant disregarded the court’s command, he disrupted court proceedings and interfered with the orderly administration of justice. See OCGA § 15-1-4 (a); In re Shafer, 216 Ga. App. 725, 726 (455 SE2d 421) (1995).

In re Hayes, 185 Ga. App. 818 (366 SE2d 204) (1988) and In re Henritze, 181 Ga. App. 560 (353 SE2d 58) (1987), relied on by Brant in support of his argument that the evidence was insufficient, are not to the contrary. In Hayes, the Solicitor of the State Court was 15 minutes late for a non-jury trial calendar. He stated that he was late because he “ ‘had an office full of people all wanting to avoid court this afternoon. . . .’” Hayes, supra at 819 (1). We found this evidence insufficient to support a finding of contempt. In Henritze, the attorney had car trouble and called the court to say he would be a little late. After getting the car started, the engine failed again and the car had to be towed. By this time, the attorney was two and one-half hours late and the court was forced to declare a mistrial in the criminal case of the attorney’s client. Again, we found this insufficient evidence of contempt.

These cases are not on point. In both instances, the attorneys were late due to circumstances beyond their control. Here, Brant was in court before the calendar and chose to leave before the calendar was called, returned and chose to leave again before the calendar was called for the second time.

Therefore, for the reasons outlined above, the evidence was sufficient for a rational trier of fact to find the elements of the offense of contempt beyond a reasonable doubt.

2. Next, Brant argues the court should have recused itself from hearing the contempt charge. Brant admits he did not ask the trial judge to recuse himself, but argues the judge should have recused himself sua sponte. Brant cites no authority for this proposition, and we find none. Indeed, case law is to the contrary. If appellant fails to make a motion to recuse, there is no error. In the Interest of A. L. L., 211 Ga. App. 767, 769 (440 SE2d 517) (1994); Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 469 (326 SE2d 827) (1985).

3. Brant also claims he was not afforded due process of law because the trial court failed to give him reasonable notice of the contempt charge, the right to counsel, the opportunity to be heard, and the right to present evidence in'mitigation before the court imposed punishment. Brant admits he never raised lack of notice to the trial court and never requested counsel or the opportunity to be heard and present evidence; however, he argues the trial court should have afforded these opportunities to him sua sponte. Again, Brant cites us to no authority for this proposition, and we find none. Rather, case law is to the contrary. Pretermitting the issue of whether or not Brant was entitled to a further hearing with opportunity to engage counsel, he never voiced any objection to the manner in which the trial court decided the issue. “Where a party charged with contempt voluntarily appears and defends against the contempt proceedings, it is not required that he be served with a rule nisi.” (Citations and punctuation omitted.) In the Interest of A. L. L., supra at 769 (3).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided January 22, 1998

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A97A1916, A97A1917.
    ATHENS INTERNATIONAL, INC. et al. v. VENTURE CAPITAL PROPERTIES, INC.; and vice versa.
    (495 SE2d 900)
   Blackburn, Judge.

Athens International, Inc. (Athens) and Sandy’s Pizza, Inc. (Sandy’s) (collectively referred to as the guarantors) were joint guarantors on a lease agreement between Venture Capital Properties, Inc. (Venture), as the landlord, and MD, Inc. (MD), as the tenant. MD leased the premises for five years to operate an Athens Pizza restaurant. MD operated the restaurant pursuant to a franchise agreement with Athens. Venture brought the underlying action to recover damages pursuant to the guaranty, and the guarantors counterclaimed for intentional interference with the contractual and business relationships between MD, its president, Mihir Patel, and Athens. In Case No. A97A1916, the guarantors appeal the trial court’s order granting Venture’s motion for summary judgment on the guarantors’ counterclaim. In Case No. A97A1917, Venture cross-appeals the trial court’s order denying its motion for summary judgment on its claim pursuant to the guaranty.

Case No. A97A1916

1. The guarantors contend that the trial court erred in refusing to consider and striking Susan R. Bain’s affidavit. The guarantors argue that Bain’s affidavit is admissible pursuant to OCGA § 24-3-34, 24-3-35, or 24-3-2. We cannot agree.

Bain is one of the attorneys representing the guarantors. Her affidavit consists of her recollection of a conversation she had with Mihir Patel, the president of MD, in which Patel explained the circumstances under which he claims to have surrendered the Venture lease. Bain avers not only what Patel told her that he did and thought, but also what Patel told her that J. B. Bader told him and did. Bader worked for Venture and managed the property which Patel was leasing. The guarantors attempt to use the affidavit for the truth of Patel’s statements and the truth of Bader’s statements.

OCGA § 24-3-34 provides, in pertinent part, that “[a]dmissions by a real party in interest shall be admissible, even if he is not of record.” OCGA § 24-3-15 equates the term “admissions” used in civil cases with the term “confessions” used in criminal cases. See also Lumpkin v. American Surety Co., 69 Ga. App. 887, 899 (27 SE2d 412) (1943) (“[t]he terms ‘admissions’ and ‘confessions’ are interchangeable”). In the present case, the trial court correctly determined that Patel’s statements as recalled in Bain’s affidavit are not admissions as they are not against his interest and are self-serving. See Price v. Star Svc. &c. Corp., 119 Ga. App. 171, 177 (166 SE2d 593) (1969) (a self-serving statement is made “when it is of benefit to or in the interest of the one who made it, [cit.] was made out of court and not under oath, and does not include testimony which he gives as a witness”).

Bain’s affidavit is also not admissible pursuant to OCGA § 24-3-35 because the statements are not against Patel’s interest and are not collateral to the main issue. The guarantors attempt to use Bain’s affidavit to support their claim that Venture interfered with their business relationship with MD and Patel. As this is the main issue in their counterclaim, the trial court did not err in finding that Bain’s affidavit was not admissible under OCGA § 24-3-35. See Cobb v. Garner, 158 Ga. App. 110, 112 (279 SE2d 280) (1981) (admissions inadmissible where they bear on the main issue in the case).

Nor does OCGA § 24-3-2 provide a basis for the admissibility of Bain’s affidavit. The import of the affidavit is not Bain’s conversation with Patel, but Patel’s conversations with Bader, as related to Bain by Patel. “The evidentiary value of testimony admitted under [OCGA § 24-3-2] depends not on the credibility of the out-of-court declarant, but on the credibility of the witness on the stand who is reporting the statement for the purpose of explaining his conduct.” (Emphasis in original.) Harrell v. State, 241 Ga. 181, 185 (243 SE2d 890) (1978). Therefore, because Bain’s affidavit depends on the credibility of Patel, it is not admissible. While Bain’s affidavit might be admissible as evidence of her motives or to explain her conduct, it is not admissible to prove the truth of Patel’s statements or the truth of Bader’s statements to Patel contained therein. Because Bain’s motives and conduct are not relevant in the instant case, the trial court did not err in determining that her affidavit was inadmissible hearsay.

2. The guarantors contend that the trial court erred in granting Venture’s motion for summary judgment on their counterclaim because disputes as to material facts exist.

“[A] movant for summary judgment who will not have the burden of proof at trial need not conclusively disprove the [nonmoving] party’s case. Instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Citation and punctuation omitted.) Harrison v. Golden, 219 Ga. App. 772, 774 (2) (a) (466 SE2d 890) (1995).

The guarantors’ counterclaim was for tortious interference with contractual and business relations. “Tortious interference with business relations is a distinct and separate tort from that of tortious interference with contractual relations, although some of the elements of the two torts are similar.” Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994). “In establishing a cause of action for malicious or tortious interference with business relations, the appellants must demonstrate that the appellee (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the appellants, and (4) for which the appellants suffered some financial injury. A cause of action for intentional interference with contractual rights must be based on the intentional and non-privileged interference by a third party with existing contractual rights and relations.” (Citations and punctuation omitted; emphasis in original.) Lake Tight-squeeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486) (1993).

Initially, we note that the record does not contain the franchise agreement; therefore, we will not consider the counterclaim as one for interference with contractual rights. Cf. Renden, Inc., supra at 334 (“Proof of a valid and enforceable contract is not required as an element of a cause of action for intentional tortious interference with business relations”). The guarantors alleged that Venture, with knowledge of the franchise agreement between Athens and MD and Patel, encouraged Patel to cease operations of the Athens restaurant and to terminate the lease in order to have the property vacant for another tenant. The evidence indicates that Venture was aware that Patel operated an Athens Pizza at a different location prior to the Venture lease. However, the record contains no evidence that Venture encouraged or in any way influenced Patel’s decision to stop operating the Athens restaurant. Even if there was evidence that Venture improperly encouraged Patel to surrender the lease, such evidence does not equate to encouraging Patel to stop operating an Athens Pizza because Venture was aware that Patel operated the restaurant at another location. In other words, there is no evidence that Patel had to operate the restaurant at that location to comply with the franchise agreement. Therefore, presumably, he could have surrendered the Venture lease, changed locations, and continued to operate the restaurant without breaching the franchise agreement. Instead, he surrendered the lease and stopped operating the restaurant. There is no evidence that Venture encouraged Patel to stop operating the restaurant.

Decided January 22, 1998.

Furthermore, the guarantors have not presented any evidence that Venture’s actions were malicious. Although questions of fact do exist as to the actions of Venture and Patel surrounding the surrender, termination, or breach of the lease, such facts are not relevant to the guarantors’ counterclaim because there is no evidence that the franchise agreement could not have continued without this lease. There is no evidence that Patel could not continue to operate an Athens restaurant at another location.

“[I]n response to a summary judgment motion, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Appellant has not met its burden to go forward with this claim. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47) [(1991)].” Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 319 (2) (a) (461 SE2d 282) (1995).

Case No. A97A1917

3. Venture contends that the trial court erred in denying its motion for summary judgment on the guaranty. Venture asserts that it established the guaranty and that the guarantors are indebted to it for unpaid rent on the lease pursuant to the guaranty. However, we cannot agree.

The record contains evidence which indicates that MD surrendered the lease pursuant to an agreement with Venture. When returning the keys to the premises, Patel’s letter indicated that he was surrendering the lease. The record also contains evidence that Venture was negotiating with Hooters to lease the premises prior to the time MD vacated it. Construing this evidence in the light most favorable to the nonmovant, we conclude that the trial court correctly determined that issues of fact precluded summary judgment in Venture’s favor on its complaint.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Long, Aldridge & Norman, Phillip A. Bradley, Barry J. Armstrong, Susan R. Bain, for appellants.

Kessler & Sparks, Michael A. Kessler, for appellee.

       MD was originally a defendant in the underlying action; however, it was .later dismissed.

       As we do not believe the guarantors instigated this appeal for delay purposes, Venture’s motion for frivolous appeal is hereby denied.


text:
    A97A1981.
    WILSON et al. v. PHILLIPS.
    (495 SE2d 904)
   Judge Harold R. Banke.

William and Doreta Wilson (“Wilsons”) filed suit against Larry M. Phillips d/b/a Larry Phillips Contractors (“Phillips”) more than eight years after the substantial completion of the construction of their home. The Wilsons appeal the trial court’s decision that their claims were untimely.

The Wilsons sued Phillips for faulty construction and fraud alleging that Phillips, the seller and builder of their house, negligently erected the foundation and footings over buried construction trash and vegetative debris. The Wilsons asserted that Phillips fraudulently and deliberately deceived them that the footings and foundation were laid over solid ground in compliance with the applicable building code. According to their complaint, extensive damage and structural failure rendered the house uninhabitable.

The record discloses that William Wilson initially noticed some cracks in the foundation and walls in 1986, but did not contact the county until 1993, at which time an inspector informed him that she believed the problems were caused by grading and drainage. Wilson conceded that he delayed further contact with the county inspection department until January 1995. The Wilsons’ only attempt to contact Phillips about the foundation problems did not occur until 1995.

It is undisputed that Phillips substantially completed the construction in late September 1985 and that the Wilsons did not file the underlying action until August 1995. The sole issue on appeal is whether summary judgment was precluded by the Wilsons’ evidence of fraudulent concealment so as to toll the four-year statute of limitation on damage to realty (OCGA § 9-3-30) and the four-year statute of limitation on fraud (OCGA § 9-3-96) until such time when the defect was discoverable. Held:

In order to establish fraudulent concealment under OCGA § 9-3-96 sufficient to toll the statute of limitation, a plaintiff must prove that: (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff, and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his failure to do so within the applicable statute of limitation. Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Moreover, to toll the statute of limitation under OCGA § 9-3-96, the concealment of a cause of action must be by positive affirmative act, not by mere silence. Comer ford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980). “ ‘ “To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.” ’ [Cit.]” Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 422 (1) (138 SE2d 687) (1964). See Moore v. Meeks, 225 Ga. App. 287, 288 (2) (483 SE2d 383) (1997). Here, the Wilsons made no showing as to how Phillips’ construction of the house involved an act of moral turpitude or by what artifice he concealed the faulty construction. Id.

It is true that fraud in the sale of realty may be based on “a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which!,] though not readily discernible, is known to the seller.” Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994). But where a purchaser claims passive concealment by the seller of defective realty, “ ‘the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer by the exercise of due diligence and that the seller . . . was aware of the problems and did not disclose them.’ [Cit.]” Id. at 76.

To avert summary judgment, the Wilsons could not rest on their pleadings but had to present some evidence that Phillips concealed the cause of action or committed actual fraud. Jim Walter Corp., 245 Ga. at 357. This they failed to do. Phillips’ uncontroverted testimony was that he had no knowledge about any debris being buried under the house. According to Phillips, he had been present “on and off” while his subcontractor was grading the property. Thus, the Wilsons failed to show that Phillips knew about this burial pit, or witnessed it being covered up, or participated in concealing it. Compare Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) (487 SE2d 362) (1997) (summary judgment reversed where evidence showed that defendant actively participated in supervising the concealment of construction defects).

Nor did the Wilsons offer evidence that Phillips hindered or prevented them from discovering the serious nature of the problem sooner. See Ben Farmer Realty, 212 Ga. App. at 77. Although the presence of buried debris is not the type of defect that would be readily discernible by a purchaser, the Wilsons failed to show any act or artifice by Phillips to deter them from timely obtaining the true facts. See Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 64 (1) (473 SE2d 501) (1996); Coleman a Hicks, 209 Ga. App. 467, 469 (4) (433 SE2d 621) (1993). Compare Jennings, 226 Ga. App. at 767 (2); Moore, 225 Ga. App. at 288 (2).

Decided January 22, 1998.

Evans & Bell, Mark G. Evans, for appellants.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, Sharon B. Austin, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       The Wilsons’ effort to raise a disputed issue of material fact about the disappearance of a number of large trees is unavailing. William Wilson admitted that there were two other burial pits on the land and that he saw trees being buried in those pits.