text:
    A98A1968.
    HUZZIE v. THE STATE.
    (512 SE2d 5)
   Andrews, Judge.

Derick D. Huzzie appeals from the judgment of conviction entered on jury verdicts finding him guilty of two counts of armed robbery.

1. There is no merit to Huzzie’s claim that the evidence was insufficient to support the jury’s guilty verdicts.

The State presented evidence that two victims were robbed at gunpoint at their residence and that the robberies were planned and carried out by Huzzie and two accomplices. The victims were Huzzie’s sister and her boyfriend. While Huzzie was visiting the victims, he walked outside the residence, then came back inside pretending to be held at gunpoint by two masked men who were actually his accomplices. Although Huzzie claimed he had no part in the robberies, the State presented testimony from both accomplices — the testimony of one corroborating the testimony of the other — that Huzzie planned and participated in the armed robberies. Ross v. State, 245 Ga. 173, 177 (263 SE2d 913) (1980). The evidence was sufficient to show that Huzzie was guilty as a party to the crimes beyond a reasonable doubt. Murphy v. State, 212 Ga. App. 153, 154 (442 SE2d 2) (1994); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Huzzie claims his trial counsel was ineffective for failing to raise either before or during the trial the issue of whether he was mentally competent to stand trial.

The competency issue was raised for the first time after the trial in Huzzie’s motion for a new trial. An accused has a constitutional right not to be put on trial while incompetent. Harris v. State, 256 Ga. 350, 351 (349 SE2d 374) (1986). “[T]he issue of mental competency to stand trial is the same whether raised before, during or subsequent to trial, and if, in fact, [Huzzie] was not competent at the time of his trial but is now competent to stand trial, a new trial should be granted.” Smalls v. State, 153 Ga. App. 254, 256 (265 SE2d 83) (1980). The issue is whether at the time of the trial Huzzie was capable of understanding the nature and object of the proceedings against him, whether he rightly comprehended his own condition in reference to such proceedings, and whether he was capable of assisting his attorney in the defense of the charges against him. Crawford v. State, 240 Ga. 321, 326 (240 SE2d 824) (1977).

Huzzie’s trial attorney testified at the hearing on the motion for a new trial that he was aware that Huzzie had been treated for depression and suicidal and homicidal ideation at a mental hospital between the time of his arrest and the time of the trial. He testified, however, that he was unaware Huzzie had attempted suicide. Trial counsel testified that he spoke to Huzzie about his mental problems prior to trial and determined that Huzzie understood what he was doing. He testified that he discussed the case with Huzzie, that Huzzie understood the charges against him, assisted in the preparation of his defense, and participated in his trial. The transcript of the trial reflects that Huzzie testified in his own defense, spoke candidly about his depression during his testimony, testified as to the details of the robbery while denying that he was a participant, and gave rational answers to questions posed on direct and cross-examination.

In ruling on the motion for a new trial, the trial court entered an order for a hearing on Huzzie’s competency and heard evidence from two psychologists who examined Huzzie on July 29, 1997, and February 11, 1998, respectively, to determine if he was competent at the time of the September 12, 1996 trial. The psychologist employed by Huzzie found he was suffering from severe cognitive impairment, would be unable to provide “consistent help” to an attorney, and would have “a lot of difficulty” understanding the consequences of a trial. Based on his examination, he testified that Huzzie was probably incompetent to stand trial in September 1996. The psychologist employed by the State testified that, based on her examination of Huzzie and her review of the transcript of the testimony at the trial, she found no evidence that Huzzie was suffering from any kind of severe mental symptoms at the time of the trial that would have interfered with his ability to understand the nature and object of the legal proceedings, or with his ability to comprehend his own condition in reference to the proceedings, or with his ability to render assistance to his attorney. She testified that Huzzie was able to discuss with her the details of the trial and that he remembered his own testimony at trial and that of the other witnesses.

Considering the testimony of Huzzie’s trial attorney, the transcript of the trial, and the conflicting expert testimony, we find the trial court properly exercised its discretion in determining that Huzzie was competent at the time of trial. Smalls, 153 Ga. App. at 255-257; Levitt v. State, 170 Ga. App. 32-34 (316 SE2d 6) (1984).

It follows that the trial court also correctly denied Huzzie’s motion for a new trial made on the basis that his trial attorney was ineffective for failing to raise the competency issue. Morris v. State, 226 Ga. App. 535, 536-539 (488 SE2d 685) (1997). Assuming, without deciding, that trial counsel had or could have acquired information sufficient to warrant further investigation of Huzzie’s mental condition prior to or during the trial, “[t]o establish a claim of ineffective assistance of counsel, [Huzzie] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996); Morris, 226 Ga. App. at 538-539. Since the evidence supported the trial court’s determination that Huzzie was competent at the time of the trial, there was no showing of prejudice under Strickland.

3. Huzzie contends the trial court erred by denying his motion for a new trial made on the competency issue because the State failed to carry its burden of showing there was sufficient evidence to make a meaningful retrospective determination that he was competent at the time of the trial.

This argument is based on the holding in Baker v. State, 250 Ga. 187, 192-193 (297 SE2d 9) (1982). Baker held that the defendant has a right under the United States Constitution not to be put on trial while incompetent and that, where sufficient doubt as to the defendant’s competency is raised during the criminal proceedings, due process requires the trial court to give the defendant an adequate hearing on the issue of competency. Id. at 189-190. Recognizing that these constitutional requirements continue throughout the criminal proceedings both prior to and during the trial of the main case itself, Baker held that “the trial court has the inherent authority and duty to question competency before and during the trial and if at any time while criminal proceedings are pending, the court observes facts which raise doubt as to the sanity of the accused, or such facts are brought to its attention by counsel, the question of his sanity should be settled before further steps are taken.” (Citation and punctuation omitted.) Id. at 190-191.

In Baker there was evidence presented before and during the trial which raised doubt as to the defendant’s competency, but no hearing was conducted to investigate the defendant’s competency. Accordingly, Baker concluded that the due process requirements for an adequate hearing on the issue of the defendant’s competency were not met in the trial court. Id. at 192. To remedy this failure, Baker remanded the case for a hearing to determine whether the defendant was competent at the time of trial. Id. at 192-193. In remanding the case, Baker held: “Upon remand the burden first falls upon the state to show there is sufficient evidence to make a meaningful determination of competency at the time of trial. If the court rules that a determination of appellant’s competency at the time of his trial is not presently possible, then a new trial must be granted. If the court decides such a determination is possible, the issue of competency to stand trial must be tried and the appellant shall have the burden to show incompetency by a preponderance of the evidence.” Id. at 193.

In the present case, Huzzie made no special plea pursuant to OCGA § 17-7-130 raising the issue of his competency at the time of trial, and there is no evidence in the record raising sufficient doubt before or during the trial as to Huzzie’s competency so as to trigger the due process requirement that the trial court conduct a competency hearing as required by Baker. Huzzie’s contention that his constitutional rights were violated arose, not from a denial of due process as in Baker, but from a post-conviction claim that counsel was ineffective in failing to bring evidence of his mental problems to the attention of the trial court for the purpose of investigating his competency to stand trial. See Curry v. Zant, 258 Ga. 527-528 (371 SE2d 647) (1988). Nevertheless, where the evidence supports the defendant’s claim that he was improperly denied a competency hearing, whether by denial of due process or by ineffective assistance of counsel, a retrospective determination of the defendant’s competency at the time of trial can be made only if there is sufficient evidence presently available to make a meaningful determination. See Baker, 250 Ga. at 192-193.

Although there are obvious difficulties connected with conducting a retrospective competency hearing, the initial determination as to whether there is sufficient data upon which to make a meaningful determination rests with the trial court subject to review by this Court for abuse of discretion. See Dowdy v. State, 169 Ga. App. 14, 15 (311 SE2d 184) (1983); Smalls, 153 Ga. App. at 257. Neither the length of time between the trial and the retrospective hearing nor the opinion of experts is necessarily determinative on this issue. The observations of the Fifth Circuit Court of Appeals in Wheat v. Thigpen, 793 F2d 621, 630 (5th Cir. 1986) are instructive: “[T]he length of time between the trial and the nunc pro tunc hearing [is] not determinative. . . . [T]he transcript of the trial itself may provide a solid starting point for reliable reconstruction of the facts. While we recognize that contemporaneous expert medical evidence often provides the most useful evidence for determining whether a meaningful hearing may be held, we have also stated that the recollections of non-experts (including the observations of the trial judge) who had the opportunity to interact with defendant during the relevant period may in some instances provide a sufficient base upon which a fact finder may rest his decision that even a belated determination will be accurate. We have also approved the use of experts to aid the [trial] court in determining whether the court may hold a meaningful retrospective hearing. The test for the [trial] court in determining the question of meaningfulness is whether the quantity and quality of available evidence was adequate to arrive at an assessment that could be labeled as more than mere speculation.” (Citations and punctuation omitted.) See Levitt, 170 Ga. App. at 34.

Assuming, without deciding, that Huzzie was improperly denied a competency hearing before or during the trial by reason of ineffective assistance of counsel, the trial court did not abuse its discretion by finding that there was sufficient evidence to make a meaningful retrospective determination as to Huzzie’s competency at the time of trial. Accordingly, the trial court did not err by denying Huzzie’s motion for a new trial.

4. Huzzie claims the trial court erred in denying his motion for a mistrial made on the basis that the prosecutor improperly commented on his character during the opening statement.

During his opening statement, the prosecutor told the jury that Huzzie’s two accomplices, both seventeen years old and both of whom had already pled guilty, would testify for the state and that they were “not hardened criminals.” Huzzie moved for a mistrial claiming that the statement that they were not hardened criminals implied he had a criminal record. We find no merit in this contention. The statement did not even mention Huzzie, and the prosecutor stated he was referring solely to the accomplices.

Decided February 2, 1999.

Douglas N. Fox, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

5. Huzzie contends the trial court erred by failing to give an unrequested charge on mere association. “[S]ince the trial court instructed the jury that the [S]tate must prove every element of the offenses charged beyond a reasonable doubt, and the mere association principle is just a corollary of this requirement, this argument is without merit.” Hy v. State, 232 Ga. App. 247, 250 (501 SE2d 583) (1998); Roberts v. State, 223 Ga. App. 167,168 (477 SE2d 345) (1996).

. 6. Huzzie contends that the trial court’s charge to the jury that they would determine “both the law and the facts” was reversible error. Since jurors determine the facts from the evidence presented, but not the law, which is given by the court in the jury charge, the above charge was error. Young v. State, 225 Ga. App. 208, 209-210 (483 SE2d 636) (1997). Nevertheless, given the trial court’s charge as a whole, including correct charges on the presumption of innocence, the elements of the charged offenses, and the State’s burden of proof, the error was harmless. Id. at 210.

7. Contrary to Huzzie’s contention, we find nothing in the trial court’s preliminary instructions to the jury that improperly shifted the burden of persuasion to the defense or that constituted an improper expression of opinion by the trial court.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2056.
    WHEELER v. THE STATE.
    (511 SE2d 564)
   Smith, Judge.

Allen Ray Wheeler was charged by indictment with aggravated assault with a hammer and aggravated assault with a van. A jury acquitted him of the charge concerning the hammer but found him guilty of the remaining charge. Wheeler filed a motion for new trial on the same day he filed a notice of appeal. The motion for new trial was never ruled upon, and Wheeler appeals from the judgment entered on the jury’s verdict. We find no error, and we affirm.

1. In two enumerations, Wheeler contends the evidence was insufficient to convict him of aggravated assault against Hale, the victim, with a van. We do not agree. Construed to uphold the verdict, evidence was presented that Wheeler was married to Hale’s ex-wife. During her marriage to Wheeler, however, Mrs. Wheeler returned on occasion to Hale’s home to live with him. At the time of the incidents for which Wheeler was charged, Mrs. Wheeler was living with Wheeler but returned to Hale’s home to retrieve some of her belongings left there. Hale testified that after the Wheelers arrived, Mrs. Wheeler ran into his house from Wheeler’s van, and he could hear Wheeler screaming from outside. Hale went outside, picked up an aluminum pole, walked toward the van, and told Wheeler to leave. Wheeler screamed at Hale, among other things, that he would run over him if he did not move. Hale stated he walked to the passenger’s side door, which was open, and Wheeler struck him in the mouth with a hammer. Hale then struck Wheeler’s windshield with the pole, after which Wheeler drove into the driveway, spinning tires. Hale stated that as he was attempting to move out of the van’s path, the van struck him, knocked him off his feet, and dragged him through his yard. Two of Hale’s neighbors testified that they saw the van chase and strike Hale.

Wheeler’s rendition of the facts differed from that of Hale. In particular, Wheeler testified that while threatening to kill him Hale hit him several times with the pole and then struck the windshield of the van. He claimed that during this altercation, his foot slipped off the brakes and onto the gas pedal, causing the van to lunge forward.

Although Wheeler claimed he did not intentionally injure Hale, it was for the jury to determine either that Hale was accidentally injured or that Wheeler intentionally struck him with the van. “An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. [Cit.]” Cheney v. State, 233 Ga. App. 66, 69 (2) (503 SE2d 327) (1998). Conflicting testimony is a matter of credibility for the jury to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict. Id. Given the testimony of the victim and the eyewitnesses, the jury was authorized to convict Wheeler of aggravated assault with the van under the standard of Jackson v. Virginia, supra.

2. Wheeler also contends the trial court erred in refusing to give bis requested charge that a witness’s feelings toward and relationship with parties may be proved to show bias or interest on the part of the witness. We find no error in the trial court’s refusal to give this charge, because the principle addressed by the requested charge was adequately covered by the trial court’s charge on witness credibility. “It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given. [Cit.]” Robertson v. State, 184 Ga. App. 796, 797 (5) (363 SE2d 43) (1987). Moreover, even assuming the court committed error in refusing to give the charge, Wheeler cannot show that any error contributed to the verdict, as the evidence against him was overwhelming. See generally McIntyre v. State, 266 Ga. 7, 10-11 (4) (463 SE2d 476) (1995).

Decided February 2, 1999.

Raymon D. Burns, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

3. Wheeler also contends he was denied effective assistance of counsel at trial. Although Wheeler raised this issue in a motion for new trial, he did not seek an evidentiary ruling on the issue before filing a notice of appeal. Failure to request an evidentiary hearing on a motion for new trial raising ineffectiveness of counsel operates to waive appellate review of the issue. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988); Howard v. State, 233 Ga. App. 724, 730 (505 SE2d 768) (1998). It is true that Dawson “does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is properly raised for the first time on appeal.” (Citation and punctuation omitted.) Howard, supra. But here, appellate counsel did “participate in the motion for new trial”; he filed it. Appellate review of the ineffectiveness issue therefore is foreclosed.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.


author: Andrews, Judge.

text:
    A98A2293.
    CHADWICK v. THE STATE.
    (511 SE2d 286)
   Andrews, Judge.

Leon Chadwick, Jr. appeals after conviction and sentencing for driving under the influence of marijuana, improper passing, and possession of marijuana. He alleges denial of his motion for directed verdict on the first charge was error because of a fatal variance in that charge and the evidence introduced. Further, he contends the first and third charges merged. We find no error.

1. Viewed in favor of the verdict, the evidence was that Argo was driving on an unfamiliar two-lane road looking for the Naval Air Station Resort. He was going about 35 mph in a no passing zone. Although he missed the entrance, he saw another driveway a little farther. When he spotted that driveway, he turned on his left turn signal, applied his brakes, and began his turn when he was struck in the driver’s side door by a motorcycle driven by Chadwick. The impact flattened the left front tire and jammed his door and fender so that his door would not open. After the wreck, his car was positioned so that the double yellow line was running through the center of his tires.

Argo consoled his pregnant wife and then went to check on Chadwick, who was in the ditch, injured. Although Argo tried to keep Chadwick still, he continued to move around, saying he was looking for his nugget, a piece of jewelry. Argo, who was unfamiliar with the smell of marijuana, smelled some type of odor on Chadwick, which was not aftershave or cologne, but was “just strange.”

The wreck occurred around 4:14 p.m., and Chadwick’s blood was taken at 5:50 p.m., after implied consent warnings were read by Trooper Lowe. Chadwick told Lowe that he noticed the car slowing but did not notice the turn signal when he went around to pass on the left.

Dr. McCurdy, the forensic toxicologist, tested Chadwick’s blood and found it positive for marijuana and opiates. Dr. McCurdy stated that the presence of morphine would not give a false positive for marijuana. Marijuana is measured in nanograms per milliliter, with 25 nanograms being the minimum considered positive. Most readings seen at the crime lab register below 100. Chadwick’s blood contained 159 nanograms per milliliter, an unusually high reading, which indicated to Dr. McCurdy either recent use or heavy chronic use.

Chadwick testified that he had not personally smoked marijuana, but had been doing plumbing work for a neighbor and had been in the presence of six to eight persons smoking marijuana while he worked. Dr. McCurdy testified that the highest level ever recorded in blood due to such passive inhalation was two nanograms per milliliter;

The evidence of the first and third counts was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The first and second enumerations claim error in the court’s denial of Chadwick’s motion for directed verdict based on fatal varianee on the first count and the court’s charge on that count and are considered together.

The accusation charged Chadwick with having marijuana and its metabolites present in his urine while driving. No urine sample was analyzed, and the direct evidence dealt with metabolites in the blood. At the close of the State’s case, Chadwick moved for directed verdict on this ground and contends its denial was error.

“ ‘ “Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. . . .”’ Denson v. State, 212 Ga. App. 883 (2), 884 (443 SE2d 300). ‘ “Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. (Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).)” ’ Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303).” Cole v. State, 216 Ga. App. 68, 70 (2), 71 (453 SE2d 495) (1995).

When asked how the variance had affected the defense, counsel stated that “fw]e knew that was going to be a problem for the District Attorney and we prepared in this manner. Had he been charged by blood, we would have approached it a little bit differently, but we were prepared to fight it regarding to urine and there’s no urine test whatsoever.” Asked for specifics as to how it affected his defense, counsel stated “[t]hat’s confidential.”

We find no fatal variance. As noted by the court, the presence of marijuana metabolites in the blood is circumstantial evidence from which a jury could conclude they were also present in the urine, as specifically charged. Chadwick testified that he had, in fact, been exposed to marijuana smoke, although only passively, making it difficult for any such variance to have adversely affected him. Also, Chadwick acknowledged that he was aware he was being charged with a violation of OCGA § 40-6-391 (a) (6), and he is clearly protected from a second prosecution.

Chadwick also moved for a mistrial based on the court’s intention to charge the entire Code section, OCGA § 40-6-391 (a) (6), using both blood and urine, and contends its denial was error.

“ ‘It is generally not error to charge an entire Code section even though part of that section may be inapplicable to the allegations and the evidence.’ Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). ‘However, error arises if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment.’ Levin v. State, 222 Ga. App. 123, 126-127 (6) (473 SE2d 582) (1996).” Hunley v. State, 227 Ga. App. 234-235 (1) (488 SE2d 716) (1997).

Here, the court read the indictment to the jury as well as the entire Code section, and as noted above, there was circumstantial evidence of marijuana metabolites in the blood. Under these circumstances, “ ‘we will neither impute an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination.’ (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (5a) (421 SE2d 560) (1992) .” Hogan v. State, 210 Ga. App. 122, 124 (3) (435 SE2d 494) (1993) .

3. Finally, Chadwick contends that the offenses of possession of marijuana by ingestion (Count 3) and driving while having marijuana or its metabolites present in his urine (Count 1) merged.

Although Count 3 of the accusation filed by the district attorney recites that it was charged under OCGA § 16-13-30, that section is a felony which may not be brought by accusation pursuant to OCGA § 17-7-70 without the assent of the accused, which does not appear in the record here. Nor is it one of those felonies listed in OCGA § 17-7-70.1, which, under certain circumstances not present here, may be pursued by accusation.

Therefore, we consider Count 3 as brought under OCGA § 16-13-2 (b), misdemeanor possession of less than an ounce of marijuana.

“OCGA § 16-1-6 provides, in part, that one crime is included in another when ‘(i)t is established by proof of the same or less than all the facts . . . required to establish the commission of the crime charged. . . .’ In determining whether one crime is included in another, this court applies the ‘actual evidence’ test such ‘that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. . . .’ Alvin [v. State, 253 Ga. 740, 742 (1) (325 SE2d 143) (1985)].” Hawkins v. State, 262 Ga. 193, 194 (3) (b) (415 SE2d 636) (1992).

While a defendant may be tried for both offenses under such circumstances, he may not be sentenced for both. Kinney v. State, 234 Ga. App. 5, 7 (2) (505 SE2d 553) (1998).

Here, there was no evidence independent of the blood analysis which showed any possession of marijuana by Chadwick. “The presence of [marijuana] metabolites in body fluid is direct evidence only of the fact that [marijuana] was introduced into the body producing the fluid, and is not direct evidence that the person possessed the [marijuana]. Rather, the presence of [marijuana] metabolites in body fluid is only circumstantial or indirect evidence, i.e., ‘evidence which only tends to establish (that the person possessed [marijuana]) by proof of various facts, sustaining by their consistency the hypothesis claimed.’ ” (Emphasis in original.) Green v. State, 260 Ga. 625, 626 (1) (398 SE2d 360) (1990).

Decided February 2, 1999.

Robert D. Pope, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

The State having used up all the evidence in proving one crime, it was error for the court to sentence Chadwick for both charges.

Judgment affirmed in part and vacated in part.

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

       Chadwick was administered morphine at the hospital as part of his treatment for a punctured lung, broken ribs, and other injuries.


author: Judge Harold R. Banke.

text:
    A98A1735.
    BRANDON v. THE STATE.
    (511 SE2d 573)
   Judge Harold R. Banke.

John Brandon was convicted of two counts of driving while intoxicated, speeding and exceeding the maximum posted speed limit. He enumerates three errors on appeal.

This case arose as Brandon returned home from a dinner date during which he consumed several alcoholic beverages. The arresting officer initially stopped Brandon for speeding, but detected the odor of alcoholic beverages emanating from the car and asked Brandon to perform several field tests. When the results were mixed and Brandon registered positive on the alco-sensor, the officer arrested him and drove to the station for further testing.

There, Brandon submitted to breath testing on an Intoxilyzer 5000. The results registered .114, over the legal limit. Held:

1. Brandon contends that the trial court erred in admitting the Intoxilyzer 5000 results because the State failed to lay the proper foundation under the business records exception to the hearsay rule. We disagree.

Prior to the admission of the test results, the State was required to establish that the Intoxilyzer 5000 was properly maintained and in good working order. Hamilton v. State, 228 Ga. App. 285, 286 (4) (491 SE2d 485) (1997). A properly prepared and executed certificate of inspection may be used to satisfy this requirement. Gidey v. State, 228 Ga. App. 250, 251 (1) (491 SE2d 406) (1997). The admission of such certificates may depend on foundational proof satisfying the business records exception to the hearsay rule. Payne v. State, 232 Ga. App. 591, 594 (2) (502 SE2d 526) (1998); but see State v. Haddock, 235 Ga. App. 726 (510 SE2d 561) (1998) (finding that OCGA § 40-6-392 (f) renders proof under the business records exception unnecessary).

Here, the certificates of inspection were admitted without objection. The patrolman who offered the documents testified that they were generated in the police department’s ordinary course of business, made at the time the machine was inspected, and kept alongside the machine. OCGA § 24-3-14 (b). This evidence was sufficient to satisfy the foundational requisites for the admission of the certificates of inspection as business records. Id.; see Payne, 232 Ga. App. at 594 (2).

2. Brandon argues that the trial court erred in allowing the operating officer to testify that the Intoxilyzer 5000 was working properly because the machine did not provide a printout verifying its self-diagnostic test. He maintains that such testimony was sheer speculation.

The officer testified that just prior to running the test on Brandon, the Intoxilyzer 5000 ran a diagnostic test on itself. He stated the machine was designed to shut down if anything was wrong and it performed properly during Brandon’s tests. He also testified that he was trained to run the machine and he followed the methods and procedures taught by the Georgia Bureau of Investigation Division of Forensic Sciences. His permit to operate the machine was read into evidence. This is sufficient to refute Brandon’s contention that the evidence used to establish that the machine was working properly was speculative. Gidey, 228 Ga. App. at 251-252 (1); see Bankers Health &c. Ins. Co. v. Fryhoffer, 114 Ga. App. 107, 110 (1) (150 SE2d 365) (1966).

3. Brandon contends that the trial court abused its discretion in denying his motion for continuance to permit his expert witness to attend. Assuming, arguendo, that Brandon properly preserved this enumeration, denial of the motion for continuance was well within the trial court’s discretion.

To warrant a continuance based upon the absence of a witness, the requesting party must show due diligence in securing the witness’ attendance. Halthon-Howard v. State, 234 Ga. App. 229-230 (1) (506 SE2d 415) (1998); OCGA §§ 17-8-20; 17-8-25. Absent a showing that the witness was subpoenaed and where other statutory requisites are unsatisfied, the denial of a continuance does not constitute an abuse of discretion. Halthon-Howard, 234 Ga. App. at 230.

Decided February 3, 1999.

Sharon L. Hopkins, for appellant.

Gerald N. Blaney, Jr., Solicitor, Tracy S. Drake, Assistant Solicitor, for appellee.

The record shows that the trial court granted Brandon at least one previous continuance to secure this same witness. Brandon offered no evidence that he was properly subpoenaed. In these circumstances, we cannot say the trial court abused its discretion. Halthon-Howard, supra. Moreover, without a proffer of the witness’ testimony, we cannot gauge the harm, if any, his absence caused. See Brown v. State, 169 Ga. App. 520, 521 (2) (313 SE2d 777) (1984).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       For sentencing purposes, Count 2, driving with an unlawful alcohol concentration, merged with Count 1, a less safe to drive charge, and the exceeding the posted speed limit charge merged with the speeding charge.


author: Beasley, Presiding Judge.

text:
    A98A2007.
    HOLDEN v. SMITH et al.
    (511 SE2d 569)
   Beasley, Presiding Judge.

Larry Holden sued Donald Joe Smith and Annie Mae Jordan in equity for specific performance of an installment land sales contract. The trial court granted defendants’ motion for summary judgment. Holden urges that material issues of fact remain for jury resolution.

On July 8, 1996, Holden entered into an agreement, drafted by his attorney, entitled “Installment Land Sales Contract.” The agreement was with Smith and Jordan (“the sellers”) to purchase their home for a price equal to the outstanding payments due on the sellers’ first and second mortgages on the property plus all future payments due under those mortgages until the debts were paid in full. Although the contract provided that payment was to be made to the sellers, Holden made payment directly to the original mortgage holders without objection. Upon signing the agreement, Holden took possession of the property and was required to pay the taxes and assessments. He also cured the substantial defaults by payment. The sellers were obligated under the contract to execute and deliver a warranty deed for the property only upon Holden’s payment of the entire outstanding indebtedness secured by the property.

The agreement also provided: “DEFAULT BY BUYER: Should the Buyer fail to make any payments as provided herein when due the amount paid hereon may be retained by the Seller as the consideration for making this agreement and thereupon the Seller shall be released from all obligation in law or equity to convey said property and any occupancy of said property thereafter by Buyer shall be deemed to be a tenancy at the pleasure of the Seller and Buyer shall never acquire and expressly waives any and all rights or claims of title because of such possession.” (Emphasis supplied.)

The contract further provided: “EFFECT OF WAIVER. The waiver by the Seller of any covenant, condition or agreement herein contained shall not vitiate the same or any other covenant, condition or agreement contained herein and the terms, conditions, covenants and agreement set forth herein shall apply to and bind the heirs, successors, and assigns of each of the parties hereto. Time is of the essence of this agreement.” (Emphasis in original.)

Having made payments totaling thousands of dollars in the course of a year, Holden inadvertently missed the June 1997 payment to the first mortgage holder. On June 27 that holder notified the sellers, but the sellers never informed Holden that the payment was overdue or that they considered the lack of payment to constitute a forfeiture of the purchase. Holden made the July payments. Then on July 16 Holden notified the sellers in writing that he had scheduled a closing for July 30 and had prepared a warranty deed for the sellers to sign. He verbally informed them that the purpose of the closing was to pay off the two loans. The sellers only responded that they would not sign anything. In an affidavit Holden stated that at the time of the closing, “I was ready, willing and able to pay off both the first and second priority notes and Deeds To Secure Debt and was prepared to tendered [sic] all such indebtednesses.” The sellers did not appear for the closing, and Holden has not made any payments since.

On August 4, Holden filed suit to compel the sellers to convey title to him. Holden concedes he overlooked the June payment but argues that the sellers, by their conduct, waived the default by (1) not timely “exercising the [default] option” and (2) “by continuing to accept payments from [Holden] after the default.” He also contends the sellers’ failure to timely exercise the default option was a waiver of the “time is of the essence provision,” and that once the sellers refused to deliver title, he was not required to continue making payments on the mortgages in order to obtain specific performance of the contract. He asserts he made an unconditional tender of the balance of the purchase money before institution of the suit. The sellers respond that the clear terms of the agreement provide a remedy of forfeiture in the event of a missed payment, that the contract included a “no waiver clause,” that the contract did not require the sellers to notify Holden of a default, and that any payments after June were just rental payments.

We must decide whether judgment was premature. “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Resolution of the appeal focuses on the meaning of the word “may” as used in the default clause which provided that upon default the sellers “may” choose to recharacterize the past payments as consideration for the agreement, and that “thereupon the seller shall be released from all obligations. . . .” (Emphasis supplied.) When construing the Georgia Code, “may” ordinarily denotes permission and not command. In other settings such as this contract, “[t]o determine what meaning the word ‘may’ imparts, it must always be considered in connection with its context and subject matter. [Cits.]” “The contract must be examined ‘as a whole’ in attempting to construe any portion thereof. Where the terms and conditions of a policy are unambiguous, the court must declare the contract as made by the parties. . . . Where the meaning is plain and obvious, it should be treated as literally provided therein.’ ”

The remedy provision of the contract refers to “the exercise of the right of forfeiture,” implying the vendor may choose not to exercise the right. It also provides that the sellers may pursue remedies other than forfeiture “contemporaneously or otherwise,” implying the seller may choose another remedy in lieu of forfeiture. The contract as a whole makes clear that the word “may” in the default provision denotes permission. The person or persons who “may” declare forfeiture have the right to choose. Because the sellers could elect one or more of several possible remedies including forfeiture once a default occurred, it became necessary for them to declare their intention. Forfeiture was not an automatic result of default. At a minimum the sellers were required to indicate whether they were exercising the contractual right to forfeiture. The law abhors forfeiture.

The sellers contend their refusal to attend the closing shows their election to seek forfeiture under the contract. But their silence is not conclusive because their actions are not inconsistent with pursuit of other remedies. Indeed, the sellers accepted payments in July despite the omitted June payment, suggesting they may have chosen to waive noncompliance. As for the provision that time is of the essence, the evidence suggests the sellers may have waived strict compliance with the provision with regard to the June payments.

The sellers also contend that because the contract does not require them to give notice of default, their rights are not impaired by not announcing intent to seek forfeiture. Notice of default and notice of forfeiture under the contract are two distinctly different acts of communicated intent. Once Holden defaulted, the sellers were not free to declare rescission secretly and continue receiving payments. The provision that time is of the essence applies to the sellers as well.

There is no evidence in the record that the sellers elected or pursued any remedy as of July 16, 1997, when they were invited to a closing. Based solely on the record, as of the date suit was filed an issue remained as to whether the sellers had exercised any right to a remedy available to them arising out of Holden’s default. They offered no evidence that they did.

Holden attempted to pay off the two mortgages pursuant to the contract which authorized him to make prepayments including payment in full. Therefore at the time of his demand to close Holden believed he was fully authorized to close the transaction, and he had received no indication to the contrary from the sellers. Holden stated he was willing to pay all necessary amounts at the closing, and thus he complied with the prepayment provision.

Holden did not make the August payments before filing suit on August 4, three days after the August payments were due. “Generally a plaintiff seeking specific performance must show performance, or ability, readiness, and willingness to perform all the provisions of the contract to be performed by him; and relief will be denied a plaintiff who is unable to perform his part of [the] contract.” “But it is a well-established rule that tender before suit is filed may be and is waived where the party entitled to payment, by conduct or declaration, proclaims that, if a tender should be made, acceptance would be refused.” At a minimum, there is an issue of fact as to the meaning of the sellers’ refusal to attend the scheduled closing and accordingly whether Holden was required to make the August payments before filing suit. Jordan v. Flynt involves default after filing suit and is not on point.

Decided February 3, 1999.

Charles L. Day, for appellant.

Daniel B. Simon III, for appellees.

Judgment reversed.

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

       The Supreme Court transferred the case to this Court stating that “any issues on appeal involving equity are ancillary to the main legal issues on appeal pertaining to whether the plaintiff/appellant breached the underlying contract for the sale of real property. . . .”

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       OCGA § 1-3-3 (10).

        Olympic Constr. v. Drywall Interiors, 180 Ga. App. 142, 143 (1) (348 SE2d 688) (1986).

       (Citations omitted.) Lamb Bros. Lumber Co. v. South Carolina Ins. Co., 186 Ga. App. 51, 53 (366 SE2d 388) (1988).

        Smith v. Wilson, 173 Ga. 103 (159 SE 583) (1931) (equity abhors forfeitures).

        Edwards v. McTyre, 246 Ga. 302, 303 (3) (271 SE2d 205) (1980) (“Even though the contract stated that time was of the essence, this provision can be waived and conduct either before or after the [deadline] date may show waiver.”).

       See, e.g., Chapman v. Ayer, 95 Ga. 581 (1) (23 SE 131) (1895).

        Smith v. David, 168 Ga. 511, 513, hn. 3 (148 SE 265) (1929).

        Finney v. Blalock, 206 Ga. 655, 660 (3) (58 SE2d 429) (1950).

       240 Ga. 359, 364 (3) (a) (240 SE2d 858) (1977).


text:
    A98A2214.
    MADDOX v. THE STATE.
    (511 SE2d 294)
   Beasley, Presiding Judge.

Maddox was convicted of deposit account fraud which, under OCGA § 16-9-20 (a), a person commits by making or delivering an instrument for the payment of money on any bank or other depositary in exchange for “a present consideration or wages,” knowing the drawee would not honor it.

The accusation alleged that on or about December 5, 1997, he unlawfully made and delivered a certain check in the amount of $2,000 drawn on his account at a named bank “in exchange for a present consideration, to wit: wages,” with the essential knowledge. Maddox challenges the sufficiency of the evidence because of a variance between the allegation that the check was given for wages and the proof showing it was in payment for goods and services.

The victim Barber is a self-employed carpenter who did remodeling work on Maddox’s home. Upon completion, Maddox paid Barber by the check. Barber deposited it into his checking account, but it was dishonored several times. Barber gave Maddox notice pursuant to OCGA § 16-9-20 (a) (2) that the case would be prosecuted if the check was not paid within ten days. No payment resulted. Maddox testified in defense that he gave the check to Barber with the express understanding that funds to cover the check would not be deposited in his account for another week, that he was unable to deposit the funds by the week’s end and tried unsuccessfully to contact Barber to resolve the matter, and that he did not pay when Barber contacted him weeks later because work was undone and repairs were needed.

Denial of the motion for directed verdict of acquittal is assigned as error on the ground the evidence that Barber is an independent contractor and not an employee of Maddox’s means the check was given in exchange for goods and services, rather than for wages as the accusation alleged. Maddox relies on Hutto v. State. Hutto issued a check, subsequently dishonored, to landscape subcontractors performing services to Hutto’s partnership in payment for services rendered four to six weeks before the check was issued. Division 1 of the opinion held that the requisite of present consideration was not met. Division 2 defined the term “wages,” as used in OCGA § 16-9-20, as connoting an employer-employee relationship. Since the subcontractors in Hutto were not partnership employees, the court held that the check issued by Hutto was not given in exchange for wages. His conviction of deposit account fraud was accordingly reversed. Maddox’s case is distinguishable because the evidence shows he gave the dishonored check to Barber in exchange for a present consideration, albeit goods and services rather than wages. The evidence thus supports the conviction.

The variance between the allegations and proof was not fatal. “[T]he rule that ‘allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ ” Maddox’s defense was in no way prejudiced by any variance between the allegations of the accusation and proof at trial, and he clearly stands protected against another prosecution for the offense charged.

Decided February 3, 1999.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       198 Ga. App. 325 (401 SE2d 339) (1991).

        Walker v. State, 146 Ga. App. 237, 240-241 (1) (b) (246 SE2d 206) (1978).

       See McCarty v. State, 157 Ga. App. 336 (1) (277 SE2d 259) (1981) (variance between allegation and proof as to lot number of burglarized mobile home not fatal); Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982) (where cocaine-trafficking indictment alleged that defendant was in possession of more than 28 grams of cocaine, with such offense being committed whether the cocaine is in pure form or is merely present in a mixture containing other substances, state was only required to prove that substance which defendant possessed weighed more than 28 grams and contained cocaine); Kelly v. State, 188 Ga. App. 362 (2) (373 SE2d 63) (1988) (where indictment charged defendant with armed robbery of victims A and B, state was not required to prove that defendant robbed victim A in order to support charge that he robbed victim B); Adside v. State, 216 Ga. App. 129 (1) (453 SE2d 139) (1995) (no fatal variance between allegation that defendant obstructed law enforcement officers by attempting to run from them and proof that he abruptly moved away from them); compare Cantrell v. State, 162 Ga. App. 42 (1) (290 SE2d 140) (1982) (fatal variance resulted from allegation that defendant forged the name of named individual who was payee of a check and proof that such individual was co-endorsee of check and only the signature of the other endorsee was forged); Ross v. State, 195 Ga. App. 624 (1) (b) (394 SE2d 418) (1990) (fatal variance between allegation that defendant committed aggravated sodomy by putting his mouth on the sexual organ of the victim and proof that he forced her to perform oral sex upon and have anal sex with him).


author: Johnson, Chief Judge.

text:
    A98A2227.
    In RE ESTATE OF DUNN.
    (511 SE2d 575)
   Johnson, Chief Judge.

Bridget Gallagher Dunn was appointed administrator of the estate of Ronald Edward Dunn based on her claim that she was the decedent’s spouse at the time of his death on June 20, 1996. Elizabeth Ann Dunn, the adult daughter of the decedent, subsequently filed a petition to remove Bridget Dunn as administrator and for an accounting. Bridget Dunn appeals the probate court’s order removing her as administrator.

1. Bridget Dunn contends the probate court erred by requiring her to prove that she was the common-law spouse of the decedent. For reasons hereinafter discussed, Bridget Dunn had the burden of proving her common-law marriage after Elizabeth Dunn proved that Bridget Dunn and Ronald Dunn had been divorced.

(a) Bridget Dunn lawfully married the deceased in a ceremonial marriage in 1986. They were divorced in 1994. When Bridget Dunn’s total divorce became final, her legal status changed from being "married” to being “single,” see OCGA § 19-5-15, and any common-law marriage would have had to occur between the date of the divorce and the death of the deceased. In Georgia, once it is unequivocally established that a state of things or a particular status exists, it is presumed that this status or state of things will continue to exist, until the contrary is shown. This rule has been referred to as the doctrine or presumption of continuity. See Bass v. Bass, 222 Ga. 378, 381 (1) (149 SE2d 818) (1966). Thus, as soon as Elizabeth Dunn proved the divorce, Bridget Dunn had the burden of proving her common-law marriage to Ronald Dunn. As discussed in Division 2, the record reveals that after Elizabeth Dunn proved the divorce, Bridget Dunn failed to carry her burden of proving her subsequent common-law marriage.

In its order, the probate court concluded: “Based on the . . . evidence this court finds that there was insufficient proof as to the existence of a common-law marriage.” This is a correct holding. Bridget Dunn’s enumeration of error is without merit.

(b) The probate court initially ruled that because Bridget Dunn had been appointed and had functioned as the administrator, Elizabeth Dunn had the burden of proving the non-existence of a common-law marriage. Bridget Dunn claims that because of this ruling, she introduced only that evidence which was necessary to rebut Elizabeth Dunn’s testimony. However, the record fails to support Bridget Dunn’s contention that she held back any relevant evidence in reliance on this ruling. Moreover, she has not shown on appeal what admissible evidence she would have offered had it not been for the probate court’s ruling. This Court will not reverse cases based on speculation; an appellant must show both error and harm before this Court will reverse the judgment of a trial court. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) (1989).

2. Bridget Dunn contends the probate court erred in failing to find that the evidence of record, including evidence of connubial habit, gave rise to a presumption of the validity of her common-law marriage to Ronald Dunn. This contention is not supported by the record.

(a) The order of the probate court does not contain an express finding as to the existence of connubial habit. The order is also silent as to whether the trial court elected not to apply a presumption of validity of a common-law marriage or whether it applied the presumption and then concluded it had been successfully rebutted by other admissible evidence. Error will not be presumed from a silent record; it must be affirmatively shown. Rowe v. Rowe, 195 Ga. App. 493, 494 (2) (393 SE2d 750) (1990); Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988).

(b) The evidence is conflicting as to whether Bridget Dunn and the deceased entered into a common-law marriage. While Bridget Dunn presented some evidence of her alleged common-law marriage to the deceased, evidence to the contrary also exists. For example, for several consecutive years Bridget Dunn filed federal income tax returns as a single person, she did not have a joint checking, savings or credit card account with the deceased, she held title to her home and her automobile in her own name, and she kept her bills separate from those of the deceased. The deceased’s sister testified that Bridget Dunn told her on numerous occasions, after the Dunns’ divorce, that Ronald Dunn was not her husband. The deceased’s sister also testified that both Bridget and Ronald Dunn “were very adamant” that they were divorced.

The evidence, when construed in favor of the judgment, is sufficient to establish that Bridget Dunn did not consistently claim or engage in conduct consistent with the existence of a common-law marriage. See Baynes v. Baynes, 219 Ga. App. 848, 849 (1) (467 SE2d 195) (1996). She would say she was divorced or single when it was convenient or advantageous for her to do so. A legal marital relationship cannot be partial or periodic. Id.; Wright v. Goss, 229 Ga. App. 393, 395 (1) (494 SE2d 23) (1997). Thus, there exists evidence in the record to support the probate court’s finding that there was insufficient proof of a common-law marriage.

Bridget Dunn’s reliance on Brown v. Brown, 234 Ga. 300 (215 SE2d 671) (1975), is not warranted. Brown does not involve a situation where the parties previously were divorced from each other.

3. Bridget Dunn contends the probate court erred in removing her as administrator and appointing a county administrator without finding any legal ground for removal. Because the probate court did not abuse its discretion in resolving this matter, we find this contention is without merit.

The probate court made a finding of fact that the basis for Bridget Dunn’s appointment as administrator was her claim that she was the wife of the deceased at the time of his death. The court also found that the sole issue at the removal hearing was whether Bridget Dunn was, in fact, the common-law spouse of the deceased at the time of his death and thus entitled to serve as administrator. The probate court revoked Bridget Dunn’s letters of administration after finding that the evidence was insufficient to establish a common-law marriage.

Bridget Dunn asserts, however, that where there is no allegation of mismanagement, her letters of administration can be revoked only on the grounds of a false and fraudulent representation in the application for letters of administration. Thus, she contends that because the probate court did not enter findings of false and fraudulent representation, her letters could not be revoked. We are not persuaded by. this contention.

A probate court has broad discretionary powers under OCGA § 53-7-148. It may remove an administrator upon a showing of waste, mismanagement, insolvency of sureties, refusal or failure to make returns, or if “for any reason [she] is unfit for the trust reposed in [her].” OCGA § 53-7-148; see Nesmith v. Pierce, 226 Ga. App. 851, 852 (1) (487 SE2d 687) (1997). The word “unfit,” as used in this statute, is given a broad meaning and is not merely limited to physical, mental, or moral conditions. See McLendon v. McLendon, 96 Ga. App. 197, 198 (1) (99 SE2d 489) (1957). The term also includes “legal disqualification under the will” and situations where the administrator is otherwise unsuitable or not qualified. Id.; cf. Morse v. Caldwell, 55 Ga. App. 804 (191 SE 479) (1937).

The Official Code of Georgia imposes no express limitations on the scope of a probate court’s inquiry as to the fitness and capacity of an administrator. Cf. Morse, supra at 805, hn. 2 (a), 817. A probate court may consider, as an additional factor, the best interests of the estate. Cf. Ivey v. Ivey, 266 Ga. 143, 145 (4) (465 SE2d 434) (1996) (removal of trustee). While a petition to remove an administrator should be carefully scrutinized and removal should not be directed for slight causes, each case must be adjudicated on its own merits. An appellate court will not normally reverse a probate court’s determination to remove or retain an administrator in the absence of an abuse of discretion. See Perdue v. McKenzie, 194 Ga. 356, 366 (21 SE2d 705) (1942); Nesmith, supra.

Whether Bridget Dunn negligently or . intentionally misstated her status as a spouse when seeking letters of administration is not the controlling question in this case. The controlling question is whether the facts stated in Bridget Dunn’s application were accurate and, if inaccurate, whether such facts were material either in establishing her statutory qualification as an administrator or in influencing the probate court’s exercise of discretion in granting letters of administration where no statutory priority exists. See generally OCGA §§ 53-6-24; 53-6-25. The findings and conclusions of the probate court establish that Bridget Dunn’s marital status was not correctly stated in her application and that this incorrect information was a material factor in the issuance of letters of administration to her. See also OCGA §§ 53-6-20 (Rev. Probate Code of 1998); 53-6-24.

Under the totality of the circumstances in this case, Bridget Dunn has failed to establish that the probate court abused its discretion in removing her as the administrator of the deceased’s estate. This conclusion is also supported by the broad power of a court to amend and control its orders, so as to make them conformable to justice, and to correct its own proceedings before final judgment. OCGA § 15-1-3. The probate court did not err as enumerated.

Bridget Dunn’s reliance on Watson v. Watson, 208 Ga. 512, 515 (1) (67 SE2d 704) (1951); Jackson v. Jackson, 179 Ga. 696, hn. 2 (177 SE 591) (1934); and Wallace v. Wallace, 142 Ga. 408 (2) (83 SE 113) (1914), is misplaced. Each of these cases involves equity proceedings, and none expressly holds that where mismanagement is not alleged the only ground for revoking letters of administration is to establish false and fraudulent misrepresentations in an application for letters of administration. Questions which merely lurk in the record, neither brought to the court’s attention nor ruled upon, have not been decided so as to constitute precedent. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960).

Decided February 3, 1999.

McCullough & Payne, Ashley E. Sexton, Hinton & Powell, Andrew J. Hinton, Jr., for appellant.

Potts & Badaruddin, James H. Potts II, Shandor S. Badaruddin, Charles H. Edwards, for appellee.

Judgment affirmed.

Smith and Barnes, JJ, concur.

       While no common-law marriage shall be entered into in this state on or after January 1, 1997, valid common-law marriages entered into prior to that date shall continue to be recognized. OCGA § 19-3-1.1.


text:
    A98A2327.
    ADAMS v. APAC-GEORGIA, INC.
    (511 SE2d 581)
   Beasley, Presiding Judge.

After Margaret Adams sustained serious injuries in a vehicle collision which occurred as a result of icy conditions on a newly reconstructed road, she sued the road contractor, APAC-Georgia, Inc. Adams appeals the trial court’s grant of APAC’s motion for summary judgment and the denial of summary judgment to her.

In February 1995, APAC was engaged in a project under contract with Cobb County to widen various sections of Atlanta Road. The collision occurred on an area of the road first opened to the general driving public on Sunday, February 5. On Monday, the temperature was below freezing during the entire work day, and at 2:00 a.m. on Tuesday it began to snow. By 6:00 a.m., .02 inch of precipitation from snow and dew had fallen, and an icy glaze covered the widened roadway. At approximately 6:20 a.m., Oscar Harris was driving his automobile on the road in a northerly direction. At the same time, Adams was a passenger in a vehicle driven by her husband in a southerly direction. As Harris was traveling up a long hill, he passed over an icy patch in the road, lost control, crossed the centerline, and struck the Adamses’ car. The investigating officer concluded that the sole cause of the accident was Harris’ loss of control of his car resulting from the weather conditions.

At the time of the accident, the roads in Cobb County were generally icy. Approximately 70 weather-related accidents were reported in the unincorporated part of the county. APAC’s work site traffic supervisor was aware of the weather conditions and had equipment and personnel which could have been used to remove ice from the road. Following the accident, Cobb County placed sand on the icy areas of the road. The county did not request such action by APAC either on the day of the accident or at any other time during the construction project.

Adams initially sought to hold APAC liable by claiming that the accumulation of ice resulted from improper drainage caused by APAC’s negligent construction of the road. After discovery established that APAC had constructed the road in accordance with project plans and specifications provided by the county, and that the collision occurred as a result of a natural accumulation of ice caused by inclement weather, Adams amended her complaint to claim that APAC negligently performed a contract duty to patrol the project area for such hazards and either remedy the condition or place warning signs.

Adams sues as a third-party beneficiary of the contract. She relies on decisions which are exemplified by Lee v. Petty and hold that “[a] contract between [a governmental entity] and a construction company by which the latter undertakes to provide for the safety of the public during the construction of the project inures to the benefit of the public, and a member of the public injured as a result of negligence in failing to do so may sue the contracting party directly.”

Adams also claims standing to sue APAC under § 324A of the Restatement of the Law, Torts 2d. This section, adopted as Georgia law in Huggins v. Aetna Cas. &c. Co., provides in pertinent part that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . . . (b) he has undertaken to perform a duty owed by the other to the third person. . . ”

But “ ‘the duty owing toward the public by a contractor in the performance of public work cannot be increased by a contract with a public official as such, beyond the sum of the legal duty of such public official toward the public and the legal duty of the contractor toward the public.’ ” In order to hold APAC liable under either of Adams’ theories, it would be necessary to find that either APAC or the county was under a duty to remove natural accumulations of ice from the roadway or warn travelers of the dangers thereby created.

APAC would be under no such duty, because “a contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction,” and “ ‘no duty aside from statute is imposed upon [a contractor] to protect the traveling public against dangerous or defective conditions of the highway caused by others.’ [Cit.]” Adams has cited no statute requiring a road contractor to remove, or place signs warning traffic of, natural accumulations of ice. Under Georgia law, her attempt to establish the existence of such a duty through expert testimony fails.

As to Cobb County, Adams asserts that it has a duty to remedy or warn of weather-related hazards on the roadway under OCGA §§ 32-4-41 (1) (requiring a county to both construct and maintain an adequate county road system) and 32-6-50 (c) (requiring counties to place and maintain upon their public road systems such traffic control devices as are necessary to regulate, warn, or guide traffic). Since APAC does not dispute this assertion, it is assumed for purposes of this case that such a duty exists. The next question is whether APAC undertook to perform this duty.

One provision of the contract makes reference to obligations of APAC “during inclement weather.” It requires APAC to maintain sufficient personnel and equipment on the project “to ensure that ingress and egress are provided when and where needed.” Since Adams’ claim does not relate to the denial of ingress or egress to the roadway, this provision is inapplicable.

Other contractual provisions require APAC to perform work required to protect the work site from damage from “both existing conditions and performed work” and to “be responsible for all damages to all persons and property due to the non-maintenance of the project site”; to maintain existing traffic control devices and to install “additional necessary devices to protect traffic from existing as well as created hazards”; and to be available on a 24-hour basis “with access to all equipment, personnel, and materials needed to maintain traffic control and handle traffic related situations” and to have the construction area patrolled at all times “for the purpose of early detection and correction of traffic related problems before they interfere with traffic flow or safety.” The trial court correctly interpreted these provisions as only requiring APAC to install traffic control devices, or to take preventative or corrective action, where traffic-related problems are caused either from preexisting hazards or by APAC’s construction activities. This interpretation is consistent with that given the highway construction contract in Purvis v. Virgil Barber Contractor, ,

Even if the contract was sufficiently ambiguous to be interpreted as imposing broader obligations on APAC, neither APAC nor the county interpreted the contract in such manner. Therefore, APAC’s failure to perform the duty which Adams seeks to impose on it would amount, at most, to a promise which Cobb County never realized had been made and which APAC never undertook to perform. Under such circumstances, tort liability under § 324A does not arise. As a claimed third-party beneficiary of the contract between APAC and Cobb County, Adams is bound by the parties’ construction of it.

Decided February 3, 1999

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellant.

Scoggins & Goodman, Luke A. Kill, for appellee.

The court did not err either in denying Adams’ motion for summary judgment or in granting summary judgment to APAC.

Judgment affirmed.

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

       See Bob v. Scruggs Co., 204 Ga. App. 375, 376 (1) (419 SE2d 100) (1992) (as a general rule, a contractor may be liable to third parties injured as a result of the negligent performance of the contract work, i.e., work not in accordance with the project plans and specifications).

       133 Ga. App. 201 (210 SE2d 383) (1974).

       (Citations and punctuation omitted.) Id. at 205.

       245 Ga. 248, 249 (264 SE2d 191) (1980); see Tang v. Republic Parking System, 734 FSupp. 486 (N.D. Ga. 1989).

       (Punctuation omitted.) Id. Section 324A and the holding in the Petty line of cases are exceptions to the rule in OCGA § 51-1-11 (a) that if a “tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract.” See Stuart v. Berry, 107 Ga. App. 531, 535 (2) (130 SE2d 838) (1963).

        State Constr. Co. v. Johnson, 88 Ga. App. 651, 657 (3) (77 SE2d 240) (1953).

       (Citations and punctuation omitted.) Gleaton v. APAC-Ga., 228 Ga. App. 52, 54 (2) (491 SE2d 138) (1997); see Fine v. APAC-Ga., 192 Ga. App. 895 (386 SE2d 692) (1989); Patch v. Sebelius, 349 NW2d 637 (N. D. 1984).

        Marshall v. Hugh Steele, Inc., 122 Ga. App. 114, 115 (2) (176 SE2d 554) (1970) (road contractor entitled to summary judgment because accident occurred on an area of road outside its control and responsibility); compare Miller v. APAC-Ga., 197 Ga. App. 801, 803 (2) (399 SE2d 534) (1990) (physical precedent only) (road contractor not entitled to summary judgment as it failed to show that it was not responsible for gravel placed on roadway by another).

        See Nat. Foundation Co. v. Post, Buckley &c., 219 Ga. App. 431, 435 (2) (465 SE2d 726) (1995) (defendant entitled to summary judgment notwithstanding expert testimony that it was chargeable with breach of duty, as what duty a defendant owes to a plaintiff is a question of legal policy to be decided as an issue of law); compare Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 457 (1) (475 SE2d 188) (1996) (expert testimony as to industry practice is admissible on the question of whether there has been compliance with a duty which the law imposes).

        Purvis v. Virgil Barber Contractor, 205 Ga. App. 13, 15 (1) (421 SE2d 303) (1992).

       Whether a statute imposes a duty on a county and whether a county can be held liable for a breach of such duty are two separate questions. See Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996) (holding that although OCGA § 32-4-41 may impose responsibilities on a county, it does not constitute a waiver of sovereign immunity).
      For a review of foreign cases deciding whether a government entity can be held liable for a motor vehicle accident resulting from ice or snow on the roads, see 97 ALR3d 11, Anno: Liability, in Motor Vehicle-Related Cases, of Governmental Entity for Injuries or Death Resulting from Ice or Snow on Surface of Highway or Street (1980).

       Supra, 205 Ga. App. at 14 (trial court did not err in construing provisions of DOT contract as only requiring road contractor to install warning signs and traffic control devices connected with its paving of the highway).

       Compare Hoffmaster v. County of Allegheny, 550 A2d 1023 (Pa. Cmwlth. 1988) (where an agreement between a township and county expressly required the former to remove snow and ice from a road taken over by the latter).

       By its terms, § 324A applies to a duty which the promisor “has undertaken to perform.” Moreover, it was not the intent of this section to overrule cases holding that breach of an unperformed promise can give rise only to a contract action and does not result in tort liability. See Comment f to § 324A and Comment d to § 323.

        Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 709 (309 SE2d 870) (1983) (the rights of a third person to sue on a contract made for his benefit are no greater than those granted by the contract as intended by the parties thereto); see also Eickhoff v. Eickhoff, 263 Ga. 498, 505 (6) (435 SE2d 914) (1993) (the construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them).


text:
    A99A0072.
    CHRISTOPHER v. DONNA’S COUNTRY STORE et al.
    (511 SE2d 579)
   Johnson, Chief Judge.

This is a slip and fall action brought by Kimberly Christopher against Donna’s Country Store, owned by Philip Harden, and Harden’s estate (collectively “the Hardens”). The trial court granted the Hardens’ motion for summary judgment. Christopher appeals, and we affirm.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Christopher alleges she slipped and fell on a greasy substance that she did not see in the Hardens’ parking lot. She bases this allegation on the fact that she noticed a greasy substance on her arms and clothing after her fall. However, Christopher admitted in her deposition that she never saw a greasy substance in the parking lot prior to her fall. She further testified that she did not recall seeing anything on the ground after she fell and that she did not look at or examine the area where she fell to determine if any hazardous or defective condition was present which may have caused her fall. When asked during her deposition if she knew why she fell that day, Christopher responded, “No.” In addition, while cleaning herself off, she told a store employee that she did not know why she had fallen.

In granting summary judgment to the Hardens, the trial judge found that “[b]y producing no evidence to connect her injuries to the defendants’ conduct, the court would have to speculate what caused the plaintiff to fall.” We agree with the trial court.

It is axiomatic that a plaintiff in a negligence case can prevail only if she shows that a defendant’s negligence caused her injuries. See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). Christopher failed to make such a showing. She could only speculate that a greasy substance caused her to slip and fall because such a substance was found on her clothing after she fell. This is insufficient to prove negligence by the Hardens.

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (Citations and punctuation omitted.) Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998). See Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 682-683 (3) (498 SE2d 748) (1998). Likewise, “it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citations and punctuation omitted.) Head, supra at 346.

In the present case, Christopher merely established the occurrence of an unfortunate event. She failed to meet her burden of pointing to specific evidence showing that the Hardens caused her alleged injuries. Christopher’s speculations, “ ‘taken in the light most favorable to her, are merely conclusions and are probative of nothing.’ [Cits.]” Wilkes v. Kroger Co., 221 Ga. App. 113, 114 (470 SE2d 506) (1996).

Christopher correctly points out that Robinson v. Kroger Co., 268 Ga. 735, 743 (493 SE2d 403) (1997), disapproved of appellate decisions holding as a matter of law that an invitee’s failure to see before falling the hazard which caused her fall constitutes a failure to exercise ordinary care. However, while Robinson significantly lightens the burden of proof load placed on plaintiffs with regard to their failure to exercise ordinary care and requires defendants to establish a defense to liability (see id. at 743, 747-748), Robinson does not hold that every slip and fall case must be sent to the jury. Nor does Robin son hold that a plaintiff no longer must prove a prima facie case of negligence from the defendant’s alleged misconduct.

Decided February 3, 1999

Van C. Wilks, for appellant.

Drew, Eckl & Farnham, James M. Poe, Kelly O. Coogan, for appellees.

Even viewed in a light most favorable to Christopher, the evidence fails to identify any defective or hazardous condition on the Hardens’ premises and fails to demonstrate that any such condition proximately caused her fall. The evidence is undisputed that Christopher does not know what, if anything, caused her to fall. She did not see anything on the ground either before or after her fall, and she has produced no one else who saw any substance on the ground. Thus, whether she slipped on something or nothing at all is subject only to speculation. While Christopher asserts that she must have fallen in a greasy substance, she has produced no evidence supporting her claim. The fact that she noticed a greasy substance on her arms and clothing as she cleaned up is not sufficient to show that she slipped because of any such greasy substance. Because Christopher failed to point to any evidence establishing the essential element of causation, the trial court properly granted summary judgment to the Hardens.

2. The Hardens’ motion for penalty for frivolous appeal is denied.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A99A0504.
    In the Interest of E. J. P., a child.
    (511 SE2d 290)
   Eldridge, Judge.

Sixteen-year-old E. J. P. challenges his September 1998 transfer from Fulton County Juvenile Court to the Superior Court. We affirm.

According to the allegations underlying the juvenile court’s delinquency petition, the appellant was visiting the apartment of an acquaintance in the early morning hours of August 24,1997. In addition to the appellant, who was fifteen years old at the time, at least five children and two adults were present in the apartment. Suddenly, the appellant produced several knives and a handgun. After threatening those present, the appellant shot both adults and three of the children in the head, neck, and/or upper extremities; all of the victims suffered life-threatening, disfiguring injuries. The remaining child escaped out of a bedroom window and called the police. The appellant left the apartment and went to the home of a friend, where he was apprehended the same day. The appellant was charged with delinquency in Fulton County Juvenile Court on the basis of, inter alia, five counts of aggravated battery.

On August 29, 1997, the State moved the juvenile court to transfer the case to the Fulton County Superior Court. A few days later, the juvenile court ordered that the appellant be transported for psychiatric evaluation and treatment. The examining psychologist diagnosed the appellant as suffering from symptoms of schizophrenia, including hallucinations and delusions.

On January 6, 1998, pursuant to a defense motion, the trial court ordered the Georgia Department of Human Resources Division of Mental Health, Mental Retardation, & Substance Abuse (“DHR”) to conduct an ex parte, confidential, psychological evaluation of the appellant to determine (1) his present competence to stand trial and (2) whether he was suffering from a “delusional compulsion” at the time of the alleged offenses. See OCGA §§ 16-3-3; 37-2-2.1. The DHR responded to the order by showing that, as long as the juvenile court had jurisdiction over a case, Georgia’s criminal code did not authorize the agency to provide for an evaluation as to whether the juvenile was acting under a delusional compulsion at the time of the incident underlying the juvenile petition. Based on this information, the juvenile court amended its order directing DHR to conduct the psychological evaluation to include only an evaluation as to present competence. Further, the juvenile court ruled that the appellant was not entitled to present the affirmative defense of delusional compulsion during an adjudicatory hearing in juvenile court. Pursuant to the juvenile court’s order, DHR arranged an evaluation as to the appellant’s present competence, and the results were presented and discussed during the bind-over hearing on May 21, 1998.

Based upon the evidence presented during the hearing, the trial court transferred the case to the Fulton County Superior Court. This appeal was timely filed. Held:

1. As a preliminary matter, we note that the appellant did not challenge the evidentiary basis of the transfer of his case from juvenile court to the superior court. However, since he alleges that his constitutional rights were violated when he was precluded from raising an affirmative defense during the transfer hearing, an overview of the transfer procedure is necessary.

Under OCGA § 15-11-39 (a), “after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, . . . the [juvenile] court before hearing the petition on its merits may transfer the offense for prosecution to the appropriate court having jurisdiction of the offense.” (Emphasis supplied.) For the transfer to take place, the child must have been at least 15 years of age at the time of the alleged delinquent conduct. OCGA § 15-11-39 (a) (4). Prior to the transfer, the juvenile court must conduct a hearing and give notice to the child and his legal guardians. OCGA § 15-11-39 (a) (1), (2); see also R. S. v. State of Ga., 156 Ga. App. 460, 461 (1) (274 SE2d 810) (1980). Pursuant to such hearing, the juvenile court may, in its discretion, transfer such offense if the State presents competent evidence from which the court “determines there are reasonable grounds to believe that: (A) [t]he child committed the delinquent act alleged; (B) [t]he child is not committable to an institution for the mentally retarded or mentally ill; and (C) [t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” OCGA § 15-11-39 (a) (3) (A)-(C). See also In re C. R., 264 Ga. 215 (442 SE2d 737) (1994); In the Interest of J. H., 260 Ga. 447, 449-450 (1), (4) (396 SE2d 885) (1990); State v. M. M., 259 Ga. 637 (386 SE2d 35) (1989); In the Interest of A. F., 214 Ga. App. 440, 441-442 (2) (448 SE2d 11) (1994). “Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this [C]ourt. [Cits.]” In the Interest of L. L., 165 Ga. App. 49, 50 (299 SE2d 53) (1983).

In this case, the juvenile court fulfilled all of the procedural requirements for a proper transfer. Evidence was presented as to each transfer requirement, and the juvenile court ruled that such evidence justified transfer. Accordingly, the only remaining issue in this appeal is whether the appellant was improperly denied the opportunity to present additional evidence during the transfer hearing.

2. The appellant asserts that the juvenile court violated his constitutional rights to due process and equal protection when it ruled that the appellant was not entitled to assert the affirmative defense of delusional compulsion during a transfer or adjudicatory hearing in juvenile court.

In this case, the order that was the basis for this appeal decided only whether the juvenile court should transfer the case to the superior court; there was no adjudication of the case on the merits. Contrary to the appellant’s assertions, the consideration of his affirmative defense in reaching a conclusive determination of whether the actor intended to commit the criminal act goes to the merits of the case and is not an issue during the juvenile court’s consideration of whether to transfer the case. See Division 1, supra; OCGA § 15-11-39 (a) (3) (A). If such determination of the merits of the case was required prior to effecting a transfer, the need for such transfer would be lost.

Further, to the extent that a consideration of the appellant’s need for future psychiatric treatment might influence the determination of whether a transfer would be in the appellant’s best interest, see OCGA § 15-11-39 (a) (3) (C), the determination of whether the appellant was suffering from a delusional compulsion at the time of the prior act is irrelevant. The relevant consideration is whether the appellant requires treatment now or in the future, and whether such treatment is available through the superior court or exclusively through the juvenile court. The record reflects that the juvenile court thoroughly considered such needs prior to determining that transfer was in the best interests of the appellant and the community.

Accordingly, this Court finds that the appellant was not entitled to present the affirmative defense of delusional compulsion during a transfer hearing in juvenile court and affirms the trial court’s ruling to that extent. Further, any remaining issue regarding the appellant’s rights during an adjudicatory hearing in juvenile court is moot, as this case has been properly transferred to the superior court and no adjudicatory hearing will be held in the juvenile court. See OCGA § 5-6-48 (b) (3); see also generally Bond v. Parten, 206 Ga. App. 88, 89 (424 SE2d 353) (1992). Therefore, the juvenile court’s ruling as to such issue, if error, was harmless.

3. Further, to the extent that the appellant attempts to challenge the constitutionality of OCGA § 17-7-130 or 17-7-131 as the statutes apply to juveniles, such consideration is not ripe unless and until the merits of a case are considered during an adjudicatory hearing in juvenile court. See Divisions 1 and 2, supra; see generally Action for a Clean Environment v. State of Ga., 217 Ga. App. 384 (457 SE2d 273) (1995). Further, jurisdiction over constitutional challenges to statutes lies exclusively in the Supreme Court of Georgia. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).

Decided February 3, 1999.

Whitman M. Dodge, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        “A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” OCGA § 16-3-3.

       Under OCGA § 37-3-1 (9.1), a person is committable if he is mentally ill and “presents a substantial risk of imminent harm to [himself] or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons!, or who] is so unable to care for [his] own physical health and safety as to create an imminently life-endangering crisis!, and who] is in need of involuntary inpatient treatment.”

       “[I]nsanity is an affirmative defense which the defendant must prove to a preponderance of the evidence. Harris v. State, 256 Ga. 350, 354-355 (6) (349 SE2d 374) [(1986)]. The State does not have to prove sanity because the law presumes sanity; no new burden of proof is imposed on the State by an affirmative plea of insanity. Id.; Johncox v. State, 189 Ga. App. 188 (2) (375 SE2d 139) [(1988)].” Dixon v. State, 217 Ga. App. 267, 268 (456 SE2d 758) (1995).

       These statutory provisions require a superior court judge to order a psychiatric evaluation of a defendant’s mental health status at the time of the crime when the defendant intends to assert an insanity defense at trial or as part of a plea bargain. However, it is unclear whether the statutes at issue provide for such evaluation in the juvenile courts.


text:
    A98A2296.
    In the Interest of M. C. J. et al., children.
    (511 SE2d 533)
   Johnson, Chief Judge.

The mother of M. C. J. and R. A. J. filed a petition in juvenile court to terminate the parental rights of the children’s biological father. The mother has physical custody of the children, and the father recently began serving a 40-year prison sentence in connection with the shooting of a man.

In her petition, the mother alleges that the children are deprived because of the father’s misconduct or inability. She requests, among other things, that the children be placed in her permanent custody. After a hearing, the juvenile court entered an order terminating the father’s parental rights. The father filed a notice of appeal from the judgment. He and the children’s guardian ad litem filed separate but nearly identical enumerations of error and briefs.

1. The father and guardian ad litem argue that the juvenile court lacked subject matter jurisdiction over the petition. We agree that the mother was required to file the case in superior court and therefore vacate the juvenile court’s judgment.

In Lewis v. Winzenreid, 263 Ga. 459 (435 SE2d 602) (1993), the Supreme Court held that the juvenile courts of this state should not entertain deprivation proceedings brought between parents to obtain custody. Thereafter, this Court has interpreted Lewis as meaning “that when the dispute is between parents, it is prima facie a custody matter. The superior court may determine the proceeding is a valid deprivation petition, and it can transfer the case to juvenile court as any court would do on finding it does not have jurisdiction.” (Citations and punctuation omitted; emphasis in original.) In the Interest of W.W.W., 213 Ga. App. 732, 734 (445 SE2d 832) (1994).

This Court reached the same result in In the Interest of M. A., 218 Ga. App. 433, 434 (461 SE2d 600) (1995), where we stated that all deprivation proceedings between parents must be brought in superior court; only the superior court may decide that a deprivation proceeding between parents is not a custody dispute.

Decided January 21, 1999

Reconsideration denied February 4, 1999

Charles E. Day, Ann N. Garner, for appellant.

McNally, Edwards, Bailey & Lander, Kenneth J. Lander, for appellees.

We recognize that Lewis and In the Interest of W. W. W., unlike this case, involve non-custodial parents attempting to obtain custody. And, in our opinion, the instant case appears to be an actual deprivation case rather than a custody case. Nonetheless, the authority is clear: a deprivation petition brought between parents must be filed initially in superior court for a determination that it is indeed a valid deprivation case. In this case, there was no such determination. Because the juvenile court in these circumstances did not have proper subject matter jurisdiction, the judgment must be vacated. See In the Interest of M. A., supra.

2. In light of the foregoing, we need not address the remaining enumerations of error.

Judgment vacated.

Smith and Barnes, JJ, concur.


author: McMurray, Presiding Judge. Beasley, Presiding Judge,

text:
    A97A0446.
    FRAME et al. v. HUNTER, MACLEAN, EXLEY & DUNN, P.C.
    (511 SE2d 585)
   McMurray, Presiding Judge.

In Frame v. Hunter, Maclean, Exley & Dunn, P.C., 227 Ga. App. 169 (488 SE2d 713), we reversed the trial court’s grant of summary judgment in this legal malpractice action, holding that Hunter, Maclean, Exley & Dunn, P.C.’s (“the firm”) continued relationship after withdrawing as Christopher Frame’s and Rosemary Frame’s long-time family lawyer, while assuring the Frames that they would not suffer damages as a result of the firm’s alleged malpractice, would authorize a finding that the statute of limitation was tolled. Id. at 171 (1), supra. The Supreme Court of Georgia granted certiorari and reversed our decision in Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 851 (2) (507 SE2d 411) directing that, “[o]n remand, the Court of Appeals [of Georgia] may consider justiciable issues previously raised, but not decided, in that Court.” Id. Accordingly, our judgment in the case sub judice is vacated and the judgment of the Supreme Court of Georgia is hereby made the judgment of this Court. This disposition conceives a threshold issue in the Frames’ remaining assertion that “[t]he trial court erred in holding that the verbal tolling agreement between counsel for the parties [is] unenforceable.”

Before the applicable statute of limitation on the Frames’ malpractice claim expired on April 24, 1993, the firm executed a written tolling agreement extending this limitation period to April 24, 1994. The attorney who negotiated this agreement for the Frames (“the Frames’ former attorney”) deposed that the firm’s lawyer verbally agreed in March 1994 to extend the first tolling agreement to October 1, 1994. While the firm’s lawyer denies that he entered into such a verbal agreement, it is undisputed that the Frames’ former attorney reduced the second tolling agreement to writing; that the opposing parties executed this document and that the agreement reflected therein provides for expiration of the applicable statute of limitation on April 23, 1994 — not October 1, 1994. The Frames’ former attorney deposed that omission of the October 1, 1994, statute of limitation extension date “was inadvertently omitted” from the second tolling agreement due to “an error in drafting.”

Citing Gen. Communications Svc. v. Ga. Pub. Svc. Comm., 149 Ga. App. 466 (254 SE2d 710), affirmed in Ga. Pub. Svc. Comm. v. Gen. Communications Svc., 244 Ga. 855 (262 SE2d 96), the Frames contend their detrimental reliance on the alleged verbal tolling agreement compels enforcement of the understanding. We do not agree.

In Gen. Communications, this Court held that detrimental reliance on a verbal understanding between counsel may equitably preclude OCGA § 15-19-5’s requirement that such agreements be made in writing. But unlike the circumstances in Gen. Communications, the alleged verbal tolling agreement in the case sub judice was reduced to writing. The controlling issue, then, is whether this writing is subject to reformation based on the Frames’ assertion that a “mutual mistake” caused the second written tolling agreement not to reflect the parties verbal understanding that the statute of limitation would be extended to October 1, 1994.

“ A mistake relievable in equity is some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.’ OCGA § 23-2-21. Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties. Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981). We have examined the record in [the case sub judice] and find no evidence of mutual mistake. ‘(E)quity will reform a written instrument for the unilateral mistake of one party accompanied by fraud or inequitable conduct on behalf of the other party.’ Layfield, at 93. There is likewise no evidence of fraud or inequitable conduct in the record before us. Further, if a party by reasonable diligence could have known the truth, the instrument will not be reformed. Martin v. Heard, 239 Ga. 816 (238 SE2d 899) (1977).” A. J. Concrete Pumping v. Richard O’Brien Equip. Sales, 256 Ga. 795, 796 (1) (353 SE2d 496). Since it appears in the case sub judice that Christopher Frame had opportunity to examine the second written tolling agreement before he executed it and since there is no suggestion that the alleged mistake in this agreement (omission of the purported October 1, 1994, statute of limitation extension date) was anything other than a unilateral mistake on the part of the Frames, there remains no basis for reforming the parties’ second written tolling agreement. A party may not defend a claim on the ground of mistake of fact where it appears that the mistake was the result of his own negligence. See Prince v. Friedman, 202 Ga. 136, 138 (1), 140 (2) (42 SE2d 434).

Decided February 4, 1999.

Savage, Herndon & Turner, Robert B. Turner, Robert S. Kraeuter, Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellants.

Oliver, Maner & Gray, Patrick T. O’Connor, Timothy D. Roberts, Warlick, Tritt & Stebbins, William B. Warlick, King & Spalding, Byron Attridge, for appellee.

The trial court did not err in granting the firm’s motion for summary judgment.

Judgment affirmed.

Eldridge, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

Although I do not concur in the analysis, I concur in the judgment because the issue the court decides is moot insofar as this Court’s jurisdiction is concerned. The Supreme Court of Georgia, in reversing this Court, states at the end of its opinion that “[the statute of limitation] was tolled until April 23, 1994, by the written tolling agreement.” Hunter, Maclean, Exley & Dunn, P. C. v. Frame, 269 Ga. 844, 851 (507 SE2d 411) (1998). The Supreme Court did not leave open the possibility that the agreement was subject to reformation to add a further extension to October 1 due to mutual mistake. As pointed out by it, the action was not filed until September 26. The Court held that the action was accordingly time barred. That forecloses the farther consideration of the contention that what was in fact intended by the parties was an extension to October 1.

       It is undisputed that this agreement mistakenly designates April 24, 1993, as the statute of limitation extension date.