text:
    A96A1850.
    SOUTHWIRE COMPANY v. MOLDEN.
    (477 SE2d 646)
   Ruffin, Judge.

This case is an action for termination of disability income benefits based upon a change in condition. Southwire Company (“South-wire”) appeals from the superior court’s order reversing the appellate division’s award, which affirmed the Administrative Law Judge’s (“ALJ”) award terminating Timothy Molden’s benefits. Southwire’s sole enumeration of error is that the superior court erred in ruling there was no evidence in the record to support the appellate division’s conclusion that Molden has undergone a change in condition for the better. For reasons which follow, we reverse.

Construed in, a light most favorable" to Southwire, as the party prevailing before the appellate division, the evidence is as follows. Molden worked as a welder for Southvfire for approximately 15 years. He was partially disabled and unable tó use his right arm and hand due to a birth defect. Therefore', he only used his left hand in performing his welding duties. In October 1993, Molden suffered an ■ injury to his left hand when he used it to depress a button controlling an overhead crane. Following a hearing, the ALJ determined in July 1994 that Molden was suffering from, a ganglion cyst and tendinitis of the left wrist due to the repetitive nature of his work.

Approximately one year later, Sotithwjre filed a notice to controvert the award, claiming that Moljen’s injuries had completely healed and his present disability was not related to his work. Southwire relied on the medical opinion testimony of Dr. Steven Dawkins: Dawkins began treating Molden in 1993 and diagnosed him as having severe tendinitis and a ganglion cyst of his left wrist. Following an examination in March 1995, Dawkins testified that Molden’s 'ganglion cyst and tendinitis hád completely healed. Dawkins concluded that Molden’s present -inability to use his left hand''was due to the onset of brachial plexopathy, which was either caused by cancer or a severe trauma to the shoulder. Dawkins testified it would be “very unusual” and “extremely rare” for the repetitive nature of Molden’s work to have caused the brachial plexopathy. He further testified that if'the brachial plexopathy had resulted from cumulative trauma, it would have healed since Molden had been at rest for at least 18 months.

Dawkins personally examined Molden, took x-rays, did nerve conduction tests, and reviewed Molden’s extensive history prior to forming his opinion. Part of that history included the medical notes and opinions of other doctors, including Dr. Windsor. Subsequently, Dr. Roderique, a hand surgeon, examined Molden and agreed with Dawkins’ findings. Although Roderique testified he could only speculate as to the cause of Molden’s injury, he believed that the cumulative forces exerted by Molden when reaching for a welding tool would have been insufficient to cause the injury. According to Roderique, he did not think it was “theoretically possible to injure one’s brachial plexus by that mechanism described by [Molden].”

Based upon this evidence, the ALJ concluded that Molden’s tendinitis and ganglion cyst, the original diagnosis for his on-the-job injury, had healed. The ALJÍ further concluded that “[although the evidence is clear that . . . Molden is totally disabled and unable to even take care of himself without assistance from others, this is not a result of his on-the-job accident and injury of October 16, 1993 with respect to tendinitis and a ganglion cyst, but is a result of brachial plexopathy, which is not related to his work activities.” Since Southwire proved that Molden’s physical condition with respect to his original on-the-job accident and injury had completely healed, the ALJ found that Molden had undergone a change in condition for the better.

The appellate division affirmed this award, concluding that the ALJ’s findings were “supported by a preponderance of competent and credible evidence contained in the record. . . .”

The superior court, however, reversed the appellate division’s award, concluding that the “new evidence” of Molden’s change in condition was merely a re-diagnosis of his original condition and that the original award, therefore, was res judicata. According to the superior court, “[a] bare showing that [Molden] has recovered from tendinitis and the cyst on his left wrist, without further recovery from his disability, fails to establish a change in physical condition for the better.” We disagree.

“In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” (Citations and punctuation omitted.) South Ga. Timber Co. v. Petty, 218 Ga. App. 497, 498 (462 SE2d 176) (1995); Young v. Columbus Consolidated Govt., 263 Ga. 172 (430 SE2d 7) (1993).

The superior court erred in its opinion that Dawkins’ testimony was inadmissible. “To the extent the expert’s opinion was based on insufficient facts, the weight and not the admissibility of the testimony was affected. [Cits.]” Krause v. Vance, 207 Ga. App. 615, 620 (9) (428 SE2d 595) (1993). Furthermore, since Dawkins examined Molden and formed an opinion based upon his own observations, the fact that he relied on medical records which were not in evidence at the hearing goes only to the weight of his testimony and not its admissibility. Bentley v. B.M.W., Inc., 209 Ga. App. 526 (2) (433 SE2d 719) (1993). Thus, Dawkins’ testimony should not have been excluded.

Even without considering Dawkins’ testimony, the superior court found competent evidence to show Molden’s recovery from tendinitis and the ganglion cyst. Furthermore, had the superior court considered Dawkins’ testimony, it would have been required to construe it in a light most favorable to Southwire, the prevailing party below. Petty, supra. Under the any evidence standard, we must affirm when the ALJ and appellate division “credit the physician’s testimony over that of the claimant or weigh the testimony of conflicting medical experts and credit the testimony of one over the other. [Cit.] Such determinations of credibility and the weight of testimony are for the ALJ and appellate division, not for either reviewing court. [Cit.]” Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995). Given Dawkins’ testimony, the ALJ and the appellate division were authorized to conclude that Southwire carried its burden of proving that Molden’s previous work-related injury (the tendinitis and ganglion cyst) had completely healed and that no causal relationship existed between Molden’s present disability (due to brachial plexopathy) and any work-related accident or condition. That conclusion, so long as it is supported by any evidence, must be upheld, even though other evidence exists which contradicts it. Raley v. Lanco Paint & Drywall, 190 Ga. App. 462 (3) (379 SE2d 196) (1989).

Moreover, the superior court incorrectly imposed an additional burden of proof on Southwire when it stated that an employer “must prove an improved economic condition” prior to terminating benefits. This test is only applicable when an employer seeks to terminate disability payments because the injured employee has or is able to return to work, either light duty with the same employer or other comparable employment. See, e.g., Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827 (278 SE2d 674) (1981). In this case, Southwire needed only to establish that benefits were terminated because Molden’s present disability was not causally connected with his employment. Raley, supra at 464; Williams Bros. Dumber Co. v. Magee, 162 Ga. App. 865 (292 SE2d 477) (1982). “Where the evidence authorizes, as it did in this case, a finding that the claimant has fully recovered from the injury received on the job and no longer suffers any disability therefrom, an award holding that there has been a change in condition is proper. [Cits.] This is true even though the claimant is disabled if such disability is due to causes unrelated to the on the job injury.” Id. at 866.

Decided October 29, 1996

Smith, Wallis & Scott, Kenneth A. Smith, for appellant.

Bovis, Kyle & Burch, Nicholas P. Garcia, Charles M. Medlin, for appellee.

Whether Molden’s original injuries , had completely healed and whether Molden’s current disability was connected to his on the job injury were, at most, questions of fact for the ALJ and appellate division. These questions were decided adversely to Molden, and neither the superior court nor this Court is authorized to find otherwise. It is clear that the prior award, which authorized benefits based on Molden’s tendinitis and ganglion cyst, is not res judicata based on evidence that these injuries have healed and that Molden is presently Suffering from a disability unrelated to his work with Southwire. Because there was evidence that supported the findings of the ALJ and the appellate division, and because the superior court was not authorized to substitute its judgment for that of the ALJ and appellate division, the superior court erTed in reversing the award of the ALJ and appellate division. *

Judgment rever'sed.

McMurray,'P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A2146.
    BLUMSACK et al. v. BARTOW COUNTY.
    (477 SE2d 642)
   Eldridge, Judge.

Appellants appeal from the trial court’s grant of summary judgment to Bartow County on March 6, 1996.

Mr. Blumsack (“the decedent”) was severely injured, and subsequently died as a result of a collision which occurred on May 4, 1994, between the automobile he was driving and a pickup truck which was owned by appellee and being driven by Charles A. Chesser, an employee of Jim Ellington d/b/a Jim Ellington Transmission (“Jim Ellington”). At the time of the collision, appellee’s truck was being test-driven, following a transmission repair at Jim Ellington. The decedent was exiting his employer’s parking lot and attempting to make a left-hand turn onto Bells Ferry' Road. A large commercial truck with an attached long flat-bed trailer was parked on the southbound shoulder of Bells Ferry Road near the exit/entrance of such parking lot. When the decedent exited the parking lot, Mr. Chesser, who was traveling southbound on such road, collided with the driver’s side of the decedent’s vehicle. The original bumper on the front of appellee’s truck had been replaced with a “bumper/bracket” that had been fabricated (manufactured) and attached to the subject pickup truck by an employee of appellee. Such “bumper/bracket” served as a mounting point for an electric winch and removable boom which were used for the purpose of maintaining the appellee’s water and sewer department’s sewage pump stations. At the time of the subject collision, appellee had a policy of insurance which listed the subject vehicle.

1. Appellants argue in their first enumeration of error that the “trial court erred in granting summary judgment as the appellee’s policy of liability insurance, which covered appellee for its own negligence, -under Georgia law waived sovereign immunity to the extent of the policy limits of the insurance coverage.”

In general, counties have sovereign immunity under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. Sovereign immunity can only be waived by an act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of such waiver. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). “The defense of sovereign immunity to tort liability cannot be waived by the mere purchase of insurance coverage. [Cit.]” Woodard v. Laurens County, 265 Ga. 404 (456 SE2d 581) (1995).

Pursuant to OCGA § 33-24-51 (a), a county has the áuthority to “secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by . . . (the) county. . . .” Subsection (b) of this statute provides that if the county “providefs] liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” OCGA § 33-24-51 (a) gives counties the right to purchase insurance; OCGA § 33-24-51 (b) describes when insurance operates to waive sovereign immunity.

Subsection (a) is a very broad grant of power to buy insurance, and allows a county to purchase insurance for liability to any person for personal or property damage that arises out of the use, ownership, or maintenance of a vehicle, whether the vehicle is being used in a governmental capacity or not. However, subsection (b) creates a more limited circumstance where immunity is waived by the insurance. Immunity is waived under subsection (b) only to the extent a county purchases “insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties.” Even though a county may purchase insurance on county vehicles being used in nongovernmental undertakings, subsection (b) does not waive immunity unless the negligent act was caused by the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties. The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to damages caused by the county’s negligence unless the negligence of its officers, agents, servants, attorneys, or employees arises from the use of a motor vehicle. Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994); accord Woodard, supra.

At the time of the accident, appellee had purchased a policy of insurance which covered the subject vehicle. However, the policy excluded from coverage as an insured anyone “using a covered ‘auto’ while he or she is working in the business of selling, servicing, repairing, or parking ‘autos’ unless that business is yours.” (Emphasis supplied.) The facts are undisputed that appellee’s truck had been taken to Jim Ellington for repair work. At the time of the accident, the truck was being test driven by an employee of Jim Ellington. Therefore, the driver of the vehicle would not be an insured under the terms and conditions of appellee’s policy of insurance, and appellee would not have insurance coverage for this incident. Thus, since OCGA § 33-24-51 (b) waives sovereign immunity only to the extent that appellee has insurance, sovereign immunity has not been waived by appellee for any claim due to the negligence of the driver of the truck under the theories of vicarious liability, imputed liability from ownership, or respondeat superior. See Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300 (357 SE2d 569) (1987); Mims v. Clanton, 215 Ga. App. 665 (452 SE2d 169) (1994); DeKalb County School Dist. v. Bowden, 177 Ga. App. 296 (339 SE2d 356) (1985).

However, appellants allege that, even if appellee did not have insurance coverage that covered the county truck while it was in the exclusive possession of Jim Ellington, appellee did, in fact, have a liability insurance policy that covered negligence relating to “ownership” and/or “maintenance” of the vehicle, and that appellee’s act of replacing the original truck bumper with one that had been fabricated (manufactured) by an employee of appellee was a negligent act which, combined with the negligence of the other defendants in this action, resulted in the death of the deceased.

When appellee delivered its truck to Jim Ellington for the purpose of repair, and surrendered the entire control of the vehicle to Jim Ellington, the relationship between appellee and Jim Ellington was not one of master and servant or principal and agent,.but was one of bailment. Appellee, because of mere ownership, would not be liable for negligence in the operation of the truck while it was in the hands of Jim Ellington without a showing that appellee was guilty of some other act of negligence which proximately contributed to the injuries of the decedent. Only “under special circumstances, such as knowledge [by appellee] that [it] is turning the car over to a reckless and incompetent driver, or that the automobile has some mechanical defect [can any action of appellee be found to be a concurrent proximate cause of the decedent’s injuries]. Even in such cases, liability is predicated on a negligent act of the owner in turning the car over to another under such circumstances, not on respondeat superior.” (Emphasis omitted.) McKinney v. Burke, 108 Ga. App. 501, 504 (133 SE2d 383) (1963). Appellants allege that the special circumstances that would allow appellee to be held liable under the facts of this case are appellee’s alleged negligence in the fabrication (manufacture) of the “bumper/bracket,” attaching the “bumper/bracket” to the subject vehicle causing a mechanical defect, failing to warn Jim Ellington of the specific danger posed to the motoring public by the dangerous instrumentality, and failing to place limits on the manner in which the vehicle, with the dangerous instrumentality attached, could be operated by Jim Ellington or its employees. However, the “bumper/ bracket” was obvious and open.

We find appellants’ argument to be unpersuasive. The Supreme Court of this state has interpreted OCGA § 33-24-51 (b) to waive sovereign immunity only “to the extent of the amount of liability insurance purchased for the negligence of its officers, agents, servants, attorneys, or employees [in the performance of their official duties] arising from the use of a motor vehicle.” Gilbert, supra at 749; accord Woodard, supra at 405. While appellee may carry liability insurance for the ownership and/or maintenance of its vehicles, sovereign immunity would not be waived unless such negligent act arose from the “use” of a motor vehicle by an officer, agent, servant, attorney or employee of the county.

Decided October 29, 1996.

J. Phillip Boston, Evan M. Altman, for appellants.

Jenkins & Nelson, G. Carey Nelson III, Peter R. Olson, Carter & Ansley, Burke B. Johnson, Smith & Associates, Elisa A. R. Roberts, Jack O. Morse, for appellee.

While for the purpose of interpreting insurance contracts the courts have adopted a liberal definition of the word “use” which encompasses the normal function and operation of the vehicle, the Supreme Court and this Court in holding that sovereign immunity is only waived under OCGA § 33-24-51 (b) with regard to damages caused by the county’s negligence when the negligence of its officers, agents, servants, attorneys, or employees arises from the use of a motor vehicle, give the word “use” a much narrower interpretation, and couples the normal use of the vehicle and its equipment with the operation of such motor vehicle by the county through its officers, agents, servants, attorneys, or employees in the performance of their official duties.

In order for sovereign immunity to be waived under OCGA § 33-24-51 (b), there must be ownership of the motor vehicle or the right to operate the motor vehicle, insurance coverage provided by the county for the operation of such motor vehicle, and the operation of the motor vehicle by an officer, agent, servant, attorney, or employee of the county in their official duties. Mere ownership or negligent maintenance cannot, by itself, waive sovereign immunity. However, if sovereign immunity is waived due to the negligence of any officer, agent, servant, attorney, or employee in the performance of their official duties in their use of a motor vehicle for which the county has elected to purchase liability insurance for under OCGA § 33-24-51 (a), then any additional negligent or tortious conduct, such as improper maintenance or repair, could be actionable, even though such torts did not cause the waiver of sovereign immunity.

2. This Court, having found that the appellee has not waived sovereign immunity under the facts and circumstances of the case sub judice, will not reach the issues set forth in appellants’ second enumeration of error.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       “In the exercise of its constitutional authority to waive the defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act (GTCA). OCGA § 50-21-20 et seq. However, the waiver of sovereign immunity afforded by that statute does not extend to a county. OCGA § 50-21-22 (5).” Woodard, supra at 405.

       The negligence that appellants are trying to allege against the appellee is one of passive negligence, as opposed to the alleged active negligence of Jim Ellington. Therefore, the negligence of Jim Ellington may be the supervening proximate cause.

       In Long v. Hall County Bd. of Commrs., 219 Ga. App. 853 (467 SE2d 186) (1996) this Court found that the Hall County Board of Commissioners and the Hall County Correctional Institute were entitled to summary judgment on the basis of sovereign immunity when a prisoner escaped, stole a truck belonging to an individual who was not an agent or employee of the county, which had been parked with the keys in the ignition, and ultimately was involved in a collision with the plaintiffs in the case. Even though the Correctional Institute had an insurance policy which, apparently, covered the Correctional Institute for any liability against it based on an incident involving a motor vehicle, this Court held that “OCGA § 33-24-51 (b) does not apply because the liability of the Hall County Board of Commissioners and the county Correctional Institute is not predicated on their alleged negligent use of an insured vehicle.” (Punctuation omitted.) Id. at 857.


author: Blackburn, Judge.

text:
    A96A1590, A96A1887.
    GIST v. DeKALB TIRE COMPANY, INC.; and vice versa.
    (477 SE2d 616)
   Blackburn, Judge.

This appeal and cross-appeal address the deadline for filing a motion for sanctions under OCGA § 9-15-14.

Robert A. Gist, an attorney, was dissatisfied with a set of allegedly defective tires sold to him by DeKalb Tire Company (DeKalb Tire). After Gist rejected DeKalb Tire’s offer to replace the tires, he commenced a suit against DeKalb Tire, its salesman, and the tire manufacturer in Fulton County. In December 1993, Gist dismissed the Fulton County suit without prejudice. A motion for sanctions regarding the matter was never filed in the Fulton County court.

In August 1994, Gist refiled his claim in DeKalb County, proceeding pro se. When Gist failed to appear at a hearing on a motion to compel — which he himself had noticed — the DeKalb County court dismissed his complaint for lack of prosecution. After the dismissal was entered on May 30, 1995, Gist filed a motion to set it aside which the trial court denied by order entered June 29, 1995.

On July 24, 1995, DeKalb Tire filed a motion for sanctions in the DeKalb County court seeking to recover fees and expenses incurred in both the Fulton and DeKalb County actions. This motion was filed more than 18 months after the conclusion of the Fulton County suit, 55 days after the dismissal of the DeKalb County action, and 25 days after Gist’s motion to set aside the DeKalb County action’s dismissal was denied. Gist contended that, pursuant to the deadline set forth in OCGA § 9-15-14, the motion for sanctions was untimely as it should have been filed within 45 days of the DeKalb County case’s dismissal. The trial court rejected this ^argument and awarded DeKalb Tire $34,20,5.69 for fees and expenses it incurred in defending the DeKalb County action. However, the trial court denied DeKalb Tire’s request for fees and expenses incurred in defending the Fulton County action, determining that DeKalb Tire waived its right to seek sanctions in that action by not pursuing them within 45 days after Gist’s voluntary dismissal of that lawsuit.

In Case No. A96A1590, Gist appeals the trial court’s award of fees and expenses stemming from the DeKalb County suit. In Case No. A96A1887, DeKalb Tire appeals the trial court’s denial of sanctions in the Fulton County suit.

Case No. A96A1590

1. Gist’s only enumeration of error concerns whether DeKalb Tire’s motion for sanctions was timely.

In order to seek attorney fees and other expenses under OCGA § 9-15-14 (e), a motion must be filed “45 days after the final disposition of the action.” (Emphasis supplied.) Gist contends that the deadline of OCGA § 9-15-14 (e) fell 45 days after the dismissal was entered. DeKalb Tire contends it fell 45 days after Gist’s post-judgment motion to set aside was decided.

The Supreme Court recently addressed a similar situation in Fairburn Banking Co. v. Gafford, 263 Ga. 792 (439 SE2d 482) (1994). The question in Fairburn Banking was whether the “final disposition” of an action occurs when the lawsuit ceases to pend in the trial court or when the appellate process concludes. The Supreme Court determined that “the phrase ‘final disposition’ in [OCGA § 9-15-14] should be considered to be synonymous with the phrase ‘final judgment’ as it is used in OCGA § 5-6-34 (a) (1).” Id. at 793. The Supreme Court then concluded that “there is a ‘window of opportunity’ for seeking attorney fees under OCGA § 9-15-14 which begins with the entry of final judgment as defined in OCGA § 5-6-34 (a) (1) and ends 45 days later.” Id. at 794.

We find the rule announced in Fairburn Banking applies in this case. Accordingly, because the dismissal of Gist’s action was a final judgment under OCGA § 5-6-34 (a) (1), the 45-day period for filing a motion for sanctions commenced with its entry, and Gist’s motion to set aside did not extend that deadline. Cf. MMT Enterprises v. Cullars, 218 Ga. App. 559 (462 SE2d 771) (1995) (unlike a motion for a new trial or a motion j.n.o.v., a motion to set aside does not extend the deadline within which to appeal the underlying decision). Moreover, we note that a motion to set aside may be filed up to three years after the entry of the judgment being questioned. OCGA § 9-11-60 (f). Consequently, to permit a motion to set aside to delay the “final disposition” of the action would permit OCGA § 9-15-14 motions to be made long after the case initially concluded. This result would be contrary to the Supreme Court’s reasoning that questions concerning a party’s entitlement to attorney fees should be raised “while the trial court’s memory of events is still fresh.” Fairburn Banking, supra at 794.

Because the trial court’s order of dismissal was final pursuant to OCGA § 5-6-34 (a) (1), DeKalb Tire’s OCGA § 9-15-14 motion should have been filed within the following 45-day window. In light of DeKalb Tire’s failure to meet this deadline, the trial court erred in holding that DeKalb Tire’s motion was timely.

Decided October 15, 1996

Reconsideration denied October 30, 1996

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellant.

Womble, Carlyle, Sandridge & Rice, William A. Capp, for appellee.

Case No. A96A1887

2. As outlined in Case No. A96A1590 above, DeKalb Tire’s request for sanctions in the DeKalb County suit was untimely. DeKalb Tire’s contemporaneous request for sanctions in the prior Fulton County suit was also untimely. Accordingly, it is unnecessary for us to reach the merits of the cross-appeal, and the decision of the trial court to deny DeKalb Tire’s request for fees and expenses it incurred in defending the Fulton County action is affirmed. Goss v. Total Chipping, 220 Ga. App. 643, 647 (469 SE2d 855) (1996) (“a trial court’s ruling right for any reason will be affirmed”).

Judgment affirmed in Case No. A96A1887. Judgment reversed in Case No. A96A1590.

Beasley, C. J., and Birdsong, P. J., concur.

       Although the facts in Fairburn Banking may be distinguished from the present matter, its holding — that the 45-day “window” begins with the entry of a final judgment as defined by OCGA § 5-6-34 (a) (1) — is broad enough to encompass the present situation. See Adams v. State, 174 Ga. App. 558 (331 SE2d 29) (1985) (“[t]his court has no authority to . . . modify a decision of the Supreme Court of Georgia”).


author: Andrews, Judge.

text:
    A96A1274.
    WATSON v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH et al.
    (477 SE2d 667)
   Andrews, Judge.

Brian Watson appeals from the trial court’s order granting summary judgment to the Mayor & Aldermen of Savannah (“City”) on Watson’s claim for injuries received in a dispute with an off-duty policeman. We affirm the judgment of the trial court.

This case arose out of an altercation between Watson and Nicholas Kenny, a corporal with the Savannah Police Department. Watson and some friends were in Malone’s, a Savannah nightclub, late one Friday night when Kenny came into the club. At the time, Kenny was moonlighting as a security officer in a neighboring nightclub when he noticed all the lights inside Malone’s had come on earlier than usual prior to closing time. Kenny thought there might be something wrong and came into the club to see if his fellow officers, also moonlighting as security workers, needed help. After Kenny arrived at Malone’s and went inside, Watson called “hello Bucky” to Kenny and waved at him. The term “Bucky” apparently was offensive to Kenny, who then told Watson he was messing with the wrong person, or words to that effect. According to Watson, he said “okay Bucky” and turned away, at which point Kenny grabbed him around the throat and swept his feet out from under him.

Watson initially filed a complaint against Kenny for assault and battery and later amended his complaint to add a 42 USC §1983 claim against Kenny and the City. The City moved for summary judgment contending that 1) Kenny was not acting under color of law when he “swept” Watson to the ground and 2) there was insufficient evidence that Kenny was acting in conformity with any City policy at the time of the altercation.

The trial court granted the City’s motion, finding Kenny was acting under color of state law; however, there was not sufficient evidence that the injury was caused by any City policy or custom. Accordingly, the § 1983 claims' against the City and against Kenny in his official capacity were dismissed. The § 1983 claim against Kenny individually and the state law claims are still pending.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is ho genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue' on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the norimoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

After the incident in the bar, Watson filed an Internal Affairs complaint against Kenny. Captain Tolbert of Internal Affairs was assigned to investigate Watson’s complaint, and she interviewed Watson and Kenny and witnesses to the incident. Kenny was charged with conduct unbecoming an officer and failure to file a use of force report. After Tolbert completed her invéstigation, a board, consisting of four majors from the Savannah Police Department and the chief of police, held a hearing on the complaint. The board vote was 4-0, but there is no indication as to the vérdict. Under “Chief’s Action,” the record shows the chief ordered the case closed as exonerated on the unbecoming conduct charge and sustained on the charge of failure to file a “use of force” form.

Watson also argues there was another incident involving Officer Kenny which was not handled in accordance with required procedures. In that case, Derek Binnicker, a soldier at Fort Stewart, filed a complaint in which he claimed that a police officer held him down on the ground in an alley behind Congress Street Station one night, while another police officer struck him on the ankles several times with a nightstick. The complaint was reviewed by Ralph Bashlor, a commander in the Internal Affairs Division. The investigation synopsis stated there was no evidence to support the allegation; that Bin-nicker promised to return with copies of his medical exam but had not done so and repeated attempts to contact him were unavailing. The Internal Affairs finding was “Not Sustained,” and the chief of police ordered the case closed as not sustained.

In Bin nicker’s affidavit, submitted by Watson in opposition to the City’s motion for summary judgment, Binnicker said that he picked Officer Kenny’s picture out of a card file as the officer who hit him on the knees and ankles with the billy club. Binnicker stated that he was told by the captain that since there were no other witnesses to the event, Binnicker did not have a case and the best thing for him to do was not pursue it. Binnicker said he followed the advice and did not pursue the claim.

42 USC § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .” 42 USC § 1983 (1988). In Monell v. Dept. of Social Svcs. &c., 436 U. S. 658, 690 (98 SC 2018, 56 LE2d 611) (1978), the Supreme Court held that local governing bodies could be sued directly under § 1983 “where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. But, “a municipality cannot be held liable solely because it employs a tortfeasor.” (Emphasis omitted.) Id. at 691. In other words, there is no respondeat superior liability under § 1983; rather, a plaintiff must point to some official policy or custom which resulted in the injury. Id. at 694.

Here, Watson contends the police department failed to properly train Kenny as to police procedures and policies concerning the use of force and also that the police department failed to follow the required procedures with regard to his and Binnicker’s complaints against Kenny. But, “for liability to attach in this circumstance the identified deficiency in a city’s training program must be closely related to the ultimate injury.” City of Canton, Ohio v. Harris, 489 U. S. 378, 391 (109 SC 1197, 103 LE2d 412) (1989). “In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city ‘could have done’ to prevent the unfortunate incident.” Id. at 392. Section 1983 claims will result in liability against the city only when that city’s failure to train reflects deliberate indifference to the rights of the inhabitants. Id. Accordingly, Watson must prove that the City deprived him of a constitutional right “pursuant to an impermissible or corrupt policy which is intentional and deliberate.” (Citation and punctuation omitted.) Brayman v. DeLoach, 211 Ga. App. 489, 492 (439 SE2d 709) (1993). Further, inasmuch as Watson is claiming the City failed to train its officers properly in the use of force, “[inadequate training of police officers (can) be characterized as the cause of the constitutional tort if — and only if — the failure to train amounted to ‘deliberate indifference’ to the rights of persons with whom the police come into contact.” (Punctuation omitted.) Bell v. City of Albany, 210 Ga. App. 371, 373 (436 SE2d 87) (1993), quoting Collins v. City of Harker Heights, Texas, 503 U. S. 115, 123-124 (112 SC 1061, 117 LE2d 261, 272) (1992).

Decided October 30, 1996

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellant.

Karsman, Brooks & Callaway, R. Krane Riddle, Lee, Black, Scheer & Hart, Steven E. Scheer, Wiseman, Blackburn & .Futrell, James B. Blackburn, Abda L. Quillian, Oliver, Maner & Gray, Patrick T. O’Connor, for appellees.

Pretermitting the issue of whether or not the trial court correctly found that Kenny was acting under color of law, there is simply no evidence in the record sufficient to show that Kenny’s off-duty altercation with Watson in a bar was the result of an impermissible or corrupt policy which was intentional and deliberate. Even if it could be argued that the City’s officers failed to properly investigate the charges against Officer Kenny, this does not sustain a claim under § 1983. “[EJven negligence in the performance of official duties . . . does not warrant redress under 42 USC § 1983.” (Citation and punctuation omitted.) Brayman, supra at 493. Accordingly, the trial court correctly granted summary judgment to the City on Watson’s 42 USC § 1983 claim.

2. Watson also enumerates as error the trial court’s denial of his motion in limine. In light of the holding above, we need not address this enumeration.

Judgment affirmed.

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


text:
    A96A1309.
    THE STATE v. YATES.
    (477 SE2d 670)
   Andrews, Judge.

The State appeals the trial court’s dismissal of the charges against Kyle Stephen Yates after finding he was denied his constitutional right to a speedy trial. We affirm.

Yates and a companion, Matthew Morgan, were arrested by off-duty police officers in Union City on August 14, 1993, and both were charged with DUI. Yates also was charged with permitting another to violate state law, failure to exhibit driver’s license on demand, and obstruction of an officer.

On September 9, 1993, the Municipal Court of Union City transferred the case to the State Court of Fulton County. On August 10, 1994, almost one year later, the Solicitor of Fulton County filed Accusations against Yates on the above charges and the case was assigned to Judge Vaughn. The court set arraignment for December 1, 1994. Yates’ counsel could not be present on that date and waived arraignment on November 23, 1994. Yates filed a motion in limine on December 5, 1994 and the court held a hearing on the motion on March 2, 1995. The case was scheduled for trial on March 29, 1995 and Yates and his counsel advised the court he would be ready for trial on that date. On March 29, 1995, Yates and his counsel appeared and were ready for trial but the court continued the case. On April 12, 1995, the case was again continued until May 30, 1995. On May 30, 1995, the case was finally called. Again, Yates was prepared for trial but the State moved for a continuance because it had failed to subpoena certain witnesses. The court granted the continuance over Yates’ objection and put the State on terms. The case was never re-set, even though there were trial calendars in June and July.

On July 13, 1995, Matthew Morgan, Yates’ only witness, died, and on August 21, 1995, Yates filed a motion to dismiss. Judge Mather, Judge Vaughn’s successor, held a hearing on the motion on December 1, 1995. The court granted the motion to dismiss, pointing out that almost a year had elapsed from Yates’ arrest to the filing of the Accusation, when the case was finally called for trial nine months later, the State requested a continuance, and, despite the State’s having been put on terms in May, the case was never again scheduled for trial.

In Barker v. Wingo, 407 U. S. 514, 515 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court set out a four-part standard to be used in determining whether or not a defendant was denied the constitutional right to a speedy trial. The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and, (4) the prejudice to the defendant. Id. In considering the prejudice to defendant, the most important factor is whether or not the delay resulted in any impairment of the defense. Barker, supra at 532; State v. Auerswald, 198 Ga. App. 183, 184 (401 SE2d 27) (1990).

(1) Length of delay. The more than 27-month delay in this case is “presumptively prejudicial” and triggers the Barker analysis of the other three factors. Boseman v. State, 263 Ga. 730, 732 (438 SE2d 626) (1994).

(2) Reason for delay. The record is largely silent as to any reasons for the delay. For instance, there is no explanation for the one year delay between arrest and the filing of the Accusation and also no explanation as to why the case was never put on another trial calendar after the State requested a continuance from the May 30, 1995 calendar. “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Boseman, supra at 733.

(3) Defendant’s assertion of his right to a speedy trial. On May 30, after the case was called for trial and the State requested a continuance, Yates opposed the motion for continuance and orally moved that the case be dismissed for lack of prosecution. This appears to be Yates’ only assertion of the right prior to his motion to dismiss.

(4) Prejudice to defendant. The prejudice in this instance is clear as Yates’ co-defendant and only witness died in July 1995, approximately two years after Yates was arrested. “If witnesses die or disappear during a delay, the prejudice is obvious.” Barker, supra at 532.

In determining whether a defendant has been denied his right to a speedy trial, the court must engage in a “difficult and sensitive balancing process.” Brown v. State, 264 Ga. 803, 805 (450 SE2d 821) (1994) (quoting Barker, supra at 533). The standard of review of the trial court’s decision is whether the court abused its discretion in granting Yates’ motion to dismiss for lack of a speedy trial. See, e.g., Vick v. State, 211 Ga. App. 735, 738 (440 SE2d 508) (1994).

Considering the length of time between the arrest and Accusation, the State’s inability to proceed with the trial once the case was finally called, that the case was never put on another calendar after the State was put on terms, and impairment of Yates’ defense caused by the death of his only witness, we find the trial court did not abuse its discretion in granting Yates’ motion to dismiss for lack of a speedy trial.

Judgment affirmed.

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

Decided October 30, 1996.

Paul L. Howard, Jr., Solicitor, Cynthia G. Strong-McCarthy, Deborah W. Espy, Assistant Solicitors, for appellant.

Ellis C. Smith, for appellee.

       The State and federal constitutional rights to a speedy trial “attach at the time of arrest or when formal charges are brought, whichever is earlier.” Boseman, supra at 731.


author: McMurray, Presiding Judge.'

text:
    A96A1505.
    DILLARD v. THE STATE. BOLDEN v. THE STATE.
    A96A1506.
    (477 SE2d 674)
   McMurray, Presiding Judge.'

Defendants Dillard and Bolden appeal their convictions of the offenses of armed robbery, kidnapping, hijacking a motor vehicle, rape, and aggravated assault (with intent to rape). Held:

1. Defendant Dillard’s appeal in Case No. A96A1505 must be dismissed. An order denying defendant Dillard’s motion for new trial was entered on December 14, 1995. On January 11, 1996, defendant Dillard filed a motion in accordance with OCGA § 5-6-39 (a) (1), and seeking a 30-day extension for the filing of a notice of appeal. This motion was granted by an order entered on January 18, 1996. OCGA § 5-6-39 provides no jurisdiction to either the trial court or this Court to grant an extension of more than 30 days for the filing of a notice of appeal. Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874 (377 SE2d 730). Thus, the deadline for the filing of the notice of appeal became the 60th rather than the 30th day following the entry of the denial of the motion for new trial. That deadline was February 12, 1996, yet defendant Dillard’s notice of appeal was not filed until February 19, 1996. Inasmuch as defendant Dillard’s appeal is not timely, it must be dismissed.

2. The remaining issues are those raised by Bolden in Case No. A96A1506. Bolden contends that the State failed to prove venue in Clarke County with regard to the offense of rape.

Bolden and co-defendant Campbell (whose appeal is Case No. A96A1709) were accused of an offense of rape (as parties thereto) which was actually perpetrated by Dillard. The victim stopped briefly at a grocery store in Clarke County just past midnight. As the victim returned to her car in the grocery store parking jot, she was forced into the back seat of her vehicle with Bolden. After Dillard was unable to drive her manual transmission car, he replaced Bolden in the back seat and Bolden drove. Campbell followed in his own car. The vehicles proceeded for a period of time and then'stopped on a dirt road where the victim was repeatedly sexually assaulted by all three of her abductors. These sexual assaults included a rape of the victim by Dillard. Campbell then left in his separate vehicle while Bolden, Dillard, and the victim continued to Florida. The victim was released in Florida. In his statement to police, Campbell provided detailed information concerning the route taken by the two vehicles after they left the grocery store parking lot and identified a location in Morgan County where the dirt road stop had occurred. The victim was forced to lie down in the back seat of her car, therefore she saw little of where the car went during the interval immediately following her abduction, and did not recognize the place on a dirt road where the vehicle was stopped and she was sexually assaulted.

In response to defendants’ motions for directed verdict and new trial questioning whether the Clarke County venue had been proven, the State has relied upon OCGA § 17-2-2 (e) which provides that: “If a crime is committed upon any . . . vehicle . . . traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled.” This brings us to the question of whether the jury was obliged to accept, as accurate, the evidence from Campbell’s statement concerning the location of the dirt road site, or whether the jury was authorized to disregard that evidence. While the jury may not arbitrarily disregard uncontradicted evidence from a credible witness; there was sufficient contradiction of other portions of Campbell’s statement as to place in the hands of the jury all issues concerning the weight and credit to be afforded the evidence concerning that statement. Jones v. State, 265 Ga. 84 (2), 85 (453 SE2d 716); Davis v. State, 242 Ga. 901, 907 (8) (252 SE2d 443). Thus, the jury was authorized to reject that portion of Campbell’s statement relating to the site of the sexual crimes.

The remaining venue evidence would then be the victim’s testimony that the vehicle traveled for a time while making many turns so that she did not know where the site at which they stopped was located. This, combined with the evidence that the abduction had taken place in Clarke County would amount to sufficient proof that the rape of the victim by Dillard could have occurred in Clarke County. Withman v. State, 210 Ga. App. 159 (435 SE2d 519).

3. Next, Bolden contends the trial court erred in sentencing him consecutively for the armed robbery conviction and for the hijacking a motor vehicle conviction because both convictions are based on the same conduct and thus merge. While they maintain that their sentences are prohibited by state law double jeopardy provisions, particularly OCGA § 16-1-7, the prosecution maintains that these provisions are superseded by OCGA § 16-5-44.1 (d) which provides that: “The offense of hijacking a motor vehicle shall be considered a separate offense and shall not merge with any other offense.” The prosecution’s view being well supported by the rationale of the decision in Miller v. State, 250 Ga. 436 (298 SE2d 509), we find no error in the punishment imposed. See also Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714); Wilson v. Zant, 249 Ga. 373, 380 (2) (290 SE2d 442); State v. Estevez, 232 Ga. 316 (206 SE2d 475); Clark v. State, 206 Ga. App. 10, 11 (1) (424 SE2d 310); Kennedy v. State, 195 Ga. App. 795 (1) (395 SE2d 270); and Glover v. State, 192 Ga. App. 798, 800 (1) (386 SE2d 699).

Decided October 30, 1996

Jimmie E. Baggett, Jr., for appellant (case no. A96A1505).

McArthur & McArthur, John J. McArthur, for appellant (case no. A96A1506).

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

4. Bolden’s final enumeration of error contends that there was no proof at trial that the victim’s automobile was taken from her person or immediate presence so as to constitute armed robbery. This contention is also based on that element of armed robbery which requires that the property be taken “from the person or the immediate presence of another,” and on the evidence at trial that the victim remained in or near the vehicle at all times following the abduction. See OCGA § 16-8-41. However, this element is satisfied by the slightest change of location whereby dominion of the property is (even temporarily) transferred from the victim to the perpetrator. James v. State, 232 Ga. 834, 835 (209.SE2d 176). Such a taking clearly occurred in the case sub judice. Consequently, a rational trier of fact was authorized to find defendant Bolden guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed in Case No. A96A1506. Appeal dismissed in Case No. A96A1505.

Johnson and Ruffin, JJ, concur.


text:
    A96A2235.
    REVELS v. WIMBERLY.
    (477 SE2d 672)
   Blackburn, Judge.

This appeal challenges the trial court’s imposition of severe discovery sanctions, which included striking the plaintiff’s complaint and entering a default judgment against her on the defendant’s counterclaim. Stephanie Revels sued Kenneth Wimberly over a 1994 Lexus automobile they apparently purchased together. Wimberly counterclaimed, alleging that Revels had agreed to make the first 12 payments of $980.83 each towards purchase of the car but had failed to do so. Along with the counterclaim, Wimberly served discovery on Revels’ attorney consisting of requests for admission and requests for production of documents. Because five months went by in which Revels did not answer any of this discovery, on May 15, 1995, Wimberly moved for discovery sanctions. Revels filed no response to this motion for sanctions. On July 18, 1995, the trial court entered an order striking Revels’ complaint and entering a default judgment for Wimberly on his counterclaim.

Revels did not contest this sanction until November 1995, when her attorney asked the trial court to reconsider its sanction and explained that his personal business had prevented him from filing any response to Wimberly’s motion. The trial court denied this motion in January 1996. In March 1996, Revels finally filed responses to the discovery along with motions requesting the court to set aside its sanctions, open the default judgment, and allow her to withdraw the admissions she had made by failing to answer Wimberly’s requests for admission. See OCGA § 9-11-36 (a) (2). The trial court denied these motions as well.

After scheduling Wimberly’s counterclaim for a trial on damages, the court determined no trial was necessary because Wimberly withdrew his demands for attorney fees, expenses of litigation, and punitive damages. Wimberly’s remaiping damages were liquidated, the court ruled, because by defaulting, Revels had admitted she agreed to make 12 payments of $980.83. The court then entered final judgment for Wimberly in an amount representing those 12 payments, and Revels appeals.

1. Revels does not cite any authority showing the trial court erred by striking her complaint and entering default judgment against her on Wimberly’s counterclaim, and we find none. Additionally, we note Revels’ brief’ does not comply with the rules of this Court. Instead of complying with the brief format required by the rules of this Court, she merely “incorporates” into her brief the documents she filed below containing arguments she made to the trial court when she asked that court to reconsider its sanction. See Court of Appeals Rule 27 (a).

In her motions asking the superior court to reconsider its action, Revels acknowledged the discretionary power of the trial court to enter the sanction but asked for relief because of her attorney’s busy personal schedule. Even though the trial court entered this sanction in July 1995 and thereafter denied her motion for reconsideration, Revels did not file responses to Wimberly’s requests for production of documents until March 1996. Her attorney’s personal schedule notwithstanding, these actions show Revels’ wilful refusal to answer discovery, which merits the trial court’s sanction. OCGA § 9-11-37 (b) (2), (d); Didio v. Chess, 218 Ga. App. 550, 551 (462 SE2d 450) (1995). See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991) (a hearing on a sanctions motion is not required if the trial court can otherwise determine that the party’s refusal to respond to discovery was wilful).

Decided October 30, 1996.

Gordon L. Joyner, for appellant.

The Roberts Law Firm, John A. Roberts, James A. Dooley, for appellee.

Revels similarly contends the trial court erred by refusing to grant her motion for reconsideration and motion to reopen the default judgment. Because the trial court did not err in its original ruling imposing discovery sanctions, we cannot say it erred in refusing to set aside that order. We reject as spurious Revels’ contention that she should have been allowed to “reopen” the trial court’s entry of default judgment by following the remedial procedures outlined in OCGA § 9-11-55 (a).

2. Neither did the trial court err by entering final judgment in an amount representing 12 payments of $980.83, as Revels’ default established that this sum certain in damages resulted from a contract between the parties. See OCGA § 9-11-55 (a) (upon entering a default judgment, court may determine damages without a jury unless damages are unliquidated or result from a tort); Fadum v. Liakos, 186 Ga. App. 556, 558 (3) (367 SE2d 843) (1988).

3. We further find this appeal to be frivolous. Considering the lack of any persuasive citation of authority or argument to support Revels’ position, it could not have reasonably been believed that this appeal would result in a reversal. Further, after seeking the right to orally argue his client’s case, Revels’ attorney failed to appear to argue the case, or to notify either this Court or opposing counsel that he would not appear. Pursuant to Court of Appeals Rule 15 (b), we assess a penalty of $1,000 against Revels’ attorney, Gordon L. Joyner. See French Quarter v. Peterson Young Self &c., 220 Ga. App. 852, 854 (4) (471 SE2d 9) (1996). On remittitur, the trial court will enter judgment for Kenneth Wimberly against Gordon L. Joyner, in the amount of $1,000.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       We note that the trial court’s reference in its order to “unliquidated damages” appears to be a typographical error.


author: Judge Harold R. Banke.

text:
    A96A1650.
    McGINNIS et al. v. ADMIRAL MOVING & STORAGE COMPANY, INC.
    (477 SE2d 841)
   Judge Harold R. Banke.

Don McGinnis, his wife, Patricia McGinnis, his employer, Select Van & Storage, Inc. (“Select”), and its insurer, Aetna Casualty & Surety Company (“Aetna”) (collectively McGinnis) appeal the summary judgment granted to Admiral Moving & Storage Company, Inc. (“Admiral”) in this negligence action. Aetna and Select claim a right of subrogation and seek recovery of over $98,000 in workers’ compensation benefits McGinnis received.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that McGinnis was injured while unloading a moving van containing household goods into Admiral’s storage facility when a six-foot-long metal walk board he was crossing shifted and fell, dropping him to the ground and striking him in the face. Before the fall, Admiral employees had provided the walk board and positioned it between the truck and the loading dock after either directing or accepting the way McGinnis parked the truck parallel to the dock. The walk board bridged the three-foot gap between the dock and the moving van’s side door, with one end of the board extending onto the dock and the other into the van. McGinnis and his partner made between ten to twenty round trips over the walk board before it fell. He testified that when he “stepped on the walk board, it catapulted up and hit me in the head and then I went down between the dock and the truck and it hit me again.”

McGinnis sustained head injuries which he claimed caused short-term memory loss. He also testified that he could not remember which end of the walk board fell. However, one Admiral employee testified that the end of the walk board lying on the truck fell. Another testified that the walk board slid off the dock. Still another of Admiral’s employees testified that McGinnis was pushing a dolly loaded with boxes onto the walk board toward the truck when the end lying on the dock slipped. Held:

Occupiers of land are charged with the duty of keeping their premises safe for invitees or warning them of hidden dangers or defects not observable in the exercise of ordinary care. Ga. Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613) (1979); OCGA § 51-3-1. “An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are reasonably foreseeable from the arrangement and use of the premises. [Cit.] . . . The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. [Cit.]” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984). The invitee is not required to look continuously for defects without interruption. Id.

The record indicates that several of Admiral’s employees who witnessed McGinnis unloading his truck knew that the walk board was dangerous. One Admiral employee testified that they generally used a dock plate, a “better,” shorter device with pins to anchor it, rather than a walk board. Another testified that “[i]f you could see our dock, if you make so many trips, it’s [sic] a walk board is . . . actually going to keep on sliding if you constantly keep on making trips.” Another testified that had he been using that walk board, “I would have put me a furniture pad up under it. That way it won’t slide back and forth.” In contrast, McGinnis’s partner attested that neither he nor McGinnis knew that the Admiral employees had not secured the walk board.

These disputed facts regarding whether Admiral fulfilled its duty of exercising ordinary care in keeping its approaches safe by providing a walk board with no means of securing it to the dock or van preclude summary judgment. OCGA § 51-3-1. Whether it is reasonably foreseeable that a driver unloading a truck into a commercial storage facility would focus on his burden without suspecting that a walkway provided for his use might become unsafe is a jury question.

Admiral’s slip and fall analysis ignores the facts. McGinnis did not slip and fall. On the contrary, the walk board Admiral’s employees purposely chose and positioned slipped out from under him, dropped him to the ground, and landed on his head.

We reject Admiral’s argument that McGinnis possessed equal knowledge of the hazard and thus, in effect, assumed the risk. Because Admiral failed to present evidence that McGinnis (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with the danger; and (3) voluntarily exposed himself to those risks, this defense lacks merit. Vaughn v. Pleasent, 266 Ga. 862 (471 SE2d 866) (1996); see Hillard v. Fed. Paper Board Co., 218 Ga. App. 699, 700 (1) (463 SE2d 494) (1995) (creation of condition without informing business invitee presented jury question as to breach of duty).

Notwithstanding Admiral’s contention to the contrary, this case does not turn on whether Admiral’s employees had an initial duty to position the walk board. Having undertaken to provide a walkway, Admiral acquired a concomitant duty to act reasonably in so doing. If Admiral executed the undertaking unreasonably, it incurred liability. Lau’s Corp., 261 Ga. at 495, n. 2. A jury should decide whether providing a walk board with no means of securing it in place demonstrated a lack of reasonable care and whether McGinnis failed to exercise reasonable care for his own safety. Begin, 172 Ga. App. at 295; see Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991).

Decided October 3, 1996

Reconsideration denied October 31, 1996

Johnson & Ward, Clark H. McGehee, William C. Lanham, Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, for appellants.

Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., Robert D. Schoen, for appellee.

Judgment reversed and remanded.

Beasley, C. J, and Birdsong, P. J., concur.


text:
    A96A2307.
    WATTS v. THE STATE.
    (477 SE2d 852)
   Eldridge, Judge.

A confidential informant identified, for the narcotics agents of the Atlanta Bureau of Police Services, 51 Montgomery Street N.E., Atlanta, DeKalb County, as a crack house. Narcotics officer S. J. Chambers had the informant make a controlled buy from the house with city funds. The sale was made by Bennie, a dark complected, medium sized, African-American male on March 8, 1994. Chambers had the informant identify appellant, Bennie Watts, from a group of photographs and then showed the photograph of appellant to officers surveilling or taking part in the later search of the house at 51 Montgomery Street. Between March 8 and March 23, Chambers and her partner kept the house under surveillance and observed a high volume of different people enter the house and leave after two to five minutes, which conduct was consistent with their experience with crack houses. On March 23, Chambers and the informant went to 51 Montgomery Street to make another drug buy; a different African-American male, Walt (later identified as Walter Stephens), sold them the crack cocaine. Chambers obtained a “no knock” search warrant on March 24, which was served on March 25. Chambers briefed the officers with the photograph of appellant and told them to watch for him during the search.

The police found Ira Charles Dotsun on the front porch of 51 Montgomery Street and took him into custody. He gave an address elsewhere as his residence.

After breaking the lock, Chambers and the other officers stormed into the house. Chambers observed Donnell Stephens and Keith Williams run from the direction of the right rear bedroom, across the hall to the left rear bedroom, where they were arrested. Keith Williams gave a residence address elsewhere. Donnell Stephens gave as his address 4243 Scottie Drive.

Walter Stephens and Darnell Watts, appellant’s nephew, were found in the right front bedroom. Both men gave 51 Montgomery Street as their residence.

After entry, Chambers rushed down the hall to the closed door of the right rear bedroom and kicked in the door. She found appellant in a crouched position, as if rising from a kneeling position, next to the window and over an open vent in the floor; the vent cover had been removed, and she found a large quantity of crack cocaine hidden in the hole in the floor. Appellant was the only person in the room, and she had not seen the door open or close when she saw Stephens and Watts run from that direction. When searched, appellant had $390 on'his person. No one else in the crack house had any money, and no money was found stashed in the crack house except on appellant.

Pistols and shotguns were found in almost every room in the house. A Beretta was found in a chest of drawers next to the door inside the right rear bedroom, and an Ithaca Excel 900 shotgun was also found in the room, as well as several beepers and a Topper 158 shotgun. A Remington 16 gauge shotgun was found in the left front bedroom along with a Rossi .38. An Arimus .38, an S & W .38, and a .357 magnum were found in the right front bedroom.

After arrest, appellant told the officers that he lived at 51 Montgomery Street and had a Georgia driver’s license, which had as his address 51 Montgomery Street, Atlanta, Georgia.

The 51 Montgomery Street house was in a very run down condition, and the water had been turned off since October 1992.

Appellant was indicted on May 23, 1995 for trafficking in cocaine, possession of cocaine with the intent to distribute, and possession of firearms by a convicted felon.

The public defender’s office was appointed to defend appellant at trial and during pretrial proceedings. Upon motion of the defense, the drug charges were bifurcated from the weapons charges. The jury returned a verdict of guilty on both drug charges on November 14, 1995. Appellant was found not guilty on the weapons charges on the same date. On November 29, 1995, appellant was sentenced to 15 years to serve on the trafficking charge, with the other drug charge merging. On December 20, 1995, a general motion for new trial was filed, and on February 7, 1996, the motion for new trial was amended to raise the issue of ineffective assistance of counsel.

An evidentiary hearing on the issue of ineffective assistance of counsel was held on May 8, 1996.

Appellant testified that he was seen at the jail by Ms. Levy only once and by Ms. Peterson twice prior to trial for 15 to 30 minutes each time. Ms. Levy contradicted this testimony by stating that she had seen appellant at the jail twice and that she and Ms. Peterson had seen appellant numerous times in court when he had been brought over for calendar calls before his case reached trial. Appellant contended that counsel failed to call the defense witnesses that he gave them to show that his residence was not 51 Montgomery Street. Ms. Levy testified that they talked to the defense witnesses and that one witness did not know where appellant lived and that Donnell Stephens told their investigator that appellant was a drug dealer that used 51 Montgomery Street as a drug house for sales. Their investigation showed that the house was run down and had no water since October 1992.

The defense strategy had been not to focus on the place of residence of appellant, because 51 Montgomery Street was obviously a drug house, but to defend on equal access to the drugs. This strategy was premised upon there having been five men arrested inside the house and one on the front porch; two occupants were observed running from the room with the drugs; “Walt” had sold the drugs on March 23 to Chambers; the confidential informant did not testify at trial as to the sale by “Bennie” on March 8 and did not identify appellant at trial as the seller; and there was nothing to tie appellant to the drugs except presence at the scene of the crime. The defense team did not attempt to interview Chambers; however, they interviewed all possible defense witnesses as to equal access. Ms. Levy testified that they had prepared to cross-examine the prosecution’s Witnesses; they had made a thorough investigation; and they had talked to all witnesses named by appellant. Defense counsel explained the defense and the case to appellant, advised appellant in regard to a plea bargain made by the district attorney, and advised appellant regarding his right to testify, as well as to the risk of his being placed under oath. Beginning August 31, 1995, defense counsel served motions for discovery, Brady material, and a list of witnesses, as well as motions to reveal the identity of the confidential informant and to bifurcate the trial. The prosecution gave the defense an open file discovery. The defense submitted 19 requests to charge and did a vigorous cross-examination of the prosecution witnesses to show equal access to the drugs as well as presented two witnesses as to where appellant lived. The record demonstrates that the jury selection, opening statement, and closing argument were professionally done.

On May 8, 1996, after the evidentiary hearing, the trial court denied appellant’s motion for new trial. Appellant filed a timely appeal on June 6, 1996.

1. The first enumeration of error is that the trial court erred in denying the motion for new trial on the grounds of ineffective assistance of counsel.

After a careful examination of the record, we find that appellant has failed to carry the burden of proof as to the issue of ineffective assistance of counsel in the case sub judice. The defense counsel made an informed decision not to focus on the issue of appellant’s proper residence, although they did put up two defense witnesses to show that 51 Montgomery Street was not his residence. Any more attention devoted to this issue would focus the jury’s attention on why appellant would show on his driver’s license the address of an obvious crack house, which had not had water for nearly two years and where two other defendants claimed residence, including his nephew. This would also focus attention on the fact that at the time of arrest, appellant gave 51 Montgomery Street as his residence and for what reason he may have done so: to possibly avoid a search of his actual residence. Defense counsel did not waste their time attempting to interview the arresting narcotics officer, who would know that she could refuse to talk to them and probably would have refused. The defense strategy was to focus on the fact that there had been six men on the premises at the time of the search, and one of them had made a direct hand-to-hand sale to Chambers on March 23; such equal access raised legitimate questions of law and fact for the jury.

The Supreme Court held in Lakes v. State, 266 Ga. 389 (467 SE2d 566) (1996), “To establish a claim of ineffective assistance at trial requiring reversal of a conviction, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Judicial review of counsel’s performance should be highly deferential with substantial latitude given trial counsel in deciding trial strategy.” See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Stewart v. State, 262 Ga. 894, 895 (2) (426 SE2d 367) (1993); Moody v. State, 206 Ga. App. 387, 388 (425 SE2d 397) (1992).

“[T]he defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Taylor v. State, 203 Ga. App. 210, 211 (3) (416 SE2d 554) (1992); see also Davis v. State, 209 Ga. App. 755 (1) (434 SE2d 752) (1993).

The Supreme Court has held that “given all the circumstances, the defendant’s counsel’s choice was tactical and considered, and that this strategy was not so clearly erroneous as to be ineffective.” Stewart v. State, supra.

“To justify a reversal for ineffective assistance of counsel, appellants must show: (1) counsel’s performance was not reasonably effective, and (2) that the outcome of the trial would have been different but for counsel’s unprofessional efforts. Brogdon v. State, 255 Ga. 64, 67 (335 SE2d 383) (1985).” Wiltshire v. State, 191 Ga. App. 426, 427 (382 SE2d 166) (1989). See also Williams v. State, 200 Ga. App. 187 (408 SE2d 512) (1991).

“The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. [Cit.]” Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994); see also Adefenwa v. State, 221 Ga. App. 429 (471 SE2d 900) (1996).

The trial court did not err in finding that defense counsel effectively represented appellant.

2. The second enumeration of error is that there was insufficient evidence to support a conviction and that the trial court erred in denying the motion for new trial on such ground.

The appellant had been identified by the confidential informant both by name and by picture as an occupant of 51 Montgomery Street involved in the sale of drugs. At trial, Chambers testified that she had circulated appellant’s photograph among the raiding officers for that reason. Chambers testified that she and the confidential informant made a drug buy on March 23 from “Walt,” later identified as Walter Stephens, a resident by his own admission. Appellant was arrested , in a closed room, alone, getting up from a large stash of drugs hidden in a floor vent hole; the vent cover was lying at his feet; the only money in the crack house was the $390 found on appellant; appellant was also found in the room with several beepers, as well as a Berétta and a shotgun; although the house was rundown and had not had water for nearly two years, appellant still had the address listed as his residence on his driver’s license, although he had lived elsewhere for sufficient time that the driver’s license should have been renewed and corrected as to any former address; and he told the arresting officers that was his residence. Such evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Scott v. State, 216 Ga. App. 692, 693 (1) (455 SE2d 609) (1995); Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

This Court held in Funderburk v. State, 221 Ga. App. 438, 439 (471 SE2d 535) (1996), “The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict.”

The trial court did not err in denying the motion for new trial on such grounds.

3. Appellant’s final enumeration of error is that the trial court erred in failing to grant him a mistrial when Chambers, in recounting the charges against each of the six men arrested at 51 Montgomery Street, stated that appellant had been arrested on the drug charges, as well as possession of a firearm by a convicted felon.

The Supreme Court stated in Head v. State, 253 Ga. 429, 431-432 (3) (322 SE2d 228) (1984), that it was the better practice to bifurcate the charge of possession of a firearm by a convicted felon from other unrelated charges to avoid prejudice; however, if the charges were interrelated, such as felony murder and the possession by a convicted felon was the underlying felony, then such charges could be tried together, although it did put his character in evidence. See also Jones v. State, 265 Ga. 138 (454 SE2d 482) (1995); Kellam v. State, 260 Ga. 464, 465 (396 SE2d 894) (1990); Barnett v. State, 215 Ga. App. 46, 47 (449 SE2d 651) (1994); Waddell v. State, 190 Ga. App. 499, 500 (379 SE2d 592) (1989); Evans v. State, 186 Ga. App. 37 (366 SE2d 325) (1988). The trial court did bifurcate the trial on these offenses for such reason and sought to keep the jury ignorant of the convicted felony status of appellant, until such issue was relevant and material, so as not to prejudice the appellant, but the arresting officer revealed such information innocently.

The trial court sent the jury out to hear such motion and then instructed the jury to disregard such statement, because appellant was not charged as a convicted felon, which removed such possible prejudice caused, if they believed that appellant was, in fact, a convicted felon. The curative instruction was adequate to avoid harm to appellant and to avoid any prejudice to appellant.

This Court held in Bryant v. State, 210 Ga. App. 222, 224 (435 SE2d 741) (1993), “ ‘The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact. . . .’ (Citations and punctuation omitted.) Crawford v. State, 256 Ga. 585, 587 (351 SE2d 199) (1987).”

The Supreme Court held in Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982), that “[w]hen prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.”

“The granting or denial of a mistrial is within the sound discretion of the trial court, and we will not disturb his ruling in the absence of abuse of that discretion.” Griggs v. State, 181 Ga. App. 618 (353 SE2d 97) (1987). See also Anderson v. State, 183 Ga. App. 669, 672 (359 SE2d 688) (1987); Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991); Hall v. State, 177 Ga. App. 464 (339 SE2d 658) (1986).

The trial court did not abuse his discretion in denying the motion for mistrial and in the giving of the curative instruction.

Decided October 21, 1996

Reconsideration denied October 31, 1996.

Elliott A. Shoenthal, for appellant.

Bennie Watts, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


text:
    A96A2308.
    KINNEY v. THE STATE.
    (477 SE2d 843)
   Eldridge, Judge.

Bruce Michael Kinney was indicted in the Superior Court of Clayton County for the offenses of aggravated assault under Count 1, aggravated battery under Count 2, and aggravated stalking under Counts 3, 4, 5, and 6 of Indictment No. 96CR-541-4. Count 6 of the indictment was quashed pursuant to appellant’s demurrer thereon. Appellant appeals the trial court’s denial of his motion in autrefois convict and plea in bar of former jeopardy with regard to Counts 4 and 5 of the indictment.

At the outset, in order to thoroughly evaluate the issues raised in the instant appeal and the factual basis therefor, we take judicial notice of the record and transcript pertaining to appellant in the case of Kinney v. State, 218 Ga. App. XXXII (1995), an unpublished opinion. See Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984); Rogers v. State, 195 Ga. App. 446, 447 (394 SE2d 116) (1990).

The facts which give rise to this appeal are these: appellant was charged with a violation of the Family Violence Act, OCGA § 19-13-1 et seq., pursuant to OCGA § 19-13-6 (b) which states that “[a]ny person who violates the provisions of a domestic violence order which excludes, evicts, or excludes and evicts that person from a residence or household shall be guilty of a misdemeanor.” To that end, an accusation was drawn in the State Court of Clayton County on September 23, 1994, alleging that the appellant “did violate a temporary protective order issued by a superior court judge.”

A bench trial was held in state court on November 28, 1994, wherein the victim, appellant’s wife Patti Kinney, testified at length regarding the appellant’s numerous violations of the temporary protective order (TPO) 94-PO-00031-6, which excluded appellant from her residence and was issued by Judge Deborah C. Benefield on February 18, 1994, and modified on February 23, 1994. Pátti Kinney’s trial testimony included instances of repeated harassing telephone calls made from April 1994 to August 1994; Ms. Kinney had written down all calls made from March 18, 1994, onward and had tapes of some telephone calls which were not tendered during trial. In addition, Ms. Kinney testified about repeated instances occurring between February and August 1994, in which appellánt followed her and would appear at her home, and church, as well as at her son’s baseball games, in violation of the TPO; Patti Kinney had documented these instances, too, by writing them down as they occurred.

After the trial court heard evidence from all parties, appellant was found guilty of the violation of TPO 94-PO-00031-6 pursuant to OCGA § 19-13-6 (b); the trial court specifically found that “Ms. Kinney is somewhat equivocal about many of the allegations. I say equivocal, indefinite let’s say, about many of the allegations. There are statements that certain calls are made and there are tapes of them. Again, it would have been nice to have heard the tape and there wouldn’t be any question about what we’re talking about here: The one event, though, that I find of particular note is . . . that he followed [her] approximately three miles on Jodeco Road not away from Ms. Kinney’s house but towards Ms. Kinney’s house , after she had remained secluded until she got [word] from the sheriff’s department that he had been served with the temporary protective order. I find that this allegation and this allegation alone has been, proven to me beyond a reasonable doubt . . . [a]nd for that the Court finds the defendant guilty.” The trial court sentenced appellant to 12 months probation, 80 hours of community service, a $500 fine, and directed appellant to abide by all terms and conditions of any order governing the conduct of the parties.

Less than two months later, January 26, 1995, appellant allegedly appeared at Patti Kinney’s place of employment, a Scottish Rite children’s clinic on Riverdale Road in Clayton County, and shot her in the head. Ms. Kinney lived, but she lost the use of her left arm. From these acts, the indictment in the case sub judice arose.

Counts 1, 2, and 3 of the instant indictment relate to appellant’s alleged shooting of the victim: aggravated assault, aggravated battery, and aggravated stalking in violation of court order 94-DR-00389-6. Counts 4 and 5 of the indictment charge the appellant with two counts of aggravated stalking for specific violations of TPO 94-PO-00031-6: Count 4 wherein the appellant allegedly made harassing telephone calls to Patti Kinney between the dates of May 1994 and June 12, 1994; and Count 5 wherein the appellant allegedly contacted Ms. Kinney while she was watching her son’s baseball game at a local park.

Appellant filed a motion in autrefois convict and plea in bar of former jeopardy with regard to Counts 4 and 5 of the instant indictment. An evidentiary hearing was held during which the appellant introduced only selected pages of the transcript of the prior prosecution; thereafter, the trial court denied appellant’s motion. This appeal followed. Held:

1. Appellant argues that prosecution on Counts 4 and 5 of the indictment in the case sub judice is barred since appellant was tried on the same set of facts under the prior accusation in Clayton County State Court. The State concurs that the acts contained in Counts 4 and 5 are the same as were proved in the prior trial, but contends to this Court, as it did to the trial court, that “it is not at all clear why this evidence was admitted. Perhaps it was admitted as similar transaction evidence or was considered relevant in some other way”; the State maintains that the conduct alleged under Counts 4 and 5 of the indictment is not the same conduct for which appellant was convicted in the prior state court prosecution.

We find this argument patently disingenuous. Even a cursory review of the transcript of the prior trial, an entire copy of which was not provided to the trial court in the instant case, demonstrates that, contrary to the State’s assertions before this court and the trial court, evidence of the harassing telephone calls, as well as appellant’s contact with the victim at the baseball game, was offered to prove repeated violations of TPO 94-PO-00031-6 pursuant to OCGA § 19-13-6 (b). Any one of these acts, the State argued at the time, would “meet the state’s burden of proof,” and would thus constitute grounds for conviction under the statute. That the conviction was based upon the appellant’s act of following his wife on Jodeco Road, and not the acts contained in Counts 4 and 5 of the instant indictment, does not alter the fact that the State tried to convict the appellant upon the acts asserted in Counts 4 and 5 and introduced them against appellant in the prior trial specifically for that purpose. See McCannon v. State, 252 Ga. 515, 518 (315 SE2d 413) (1984). Such is jeopardy in the classic sense in that further prosecution on the conduct charged in Counts 4 and 5 of the indictment would violate both substantive and procedural principles of double jeopardy; appellant was prosecuted for a general violation of TPO 94-PO-00031-6 under the same set of facts that the State now attempts to use as a basis for conviction on aggravated stalking in violation of TPO 94-PO-00031-6. See OCGA § 16-1-7 (a) (2); State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). A prosecution thereon cannot be sustained. OCGA § 16-1-7 (b).

We reverse the trial court’s denial of appellant’s motion in autrefois convict and plea in bar, and we find that prosecution on Counts 4 and 5 as alleged in the indictment in the case sub judice is barred.

2. In addition to the above, appellant also alleges that the trial court erred in denying his demurrer to Count 3 of the indictment. While not styled as a constitutional challenge, appellant claims that Count 3, by simply tracking the “contact” language of the aggravated stalking statute, OCGA § 16-5-91, is too “vague” to put appellant on sufficient notice of the offense against which he is to defend. We do not agree.

“[N]o man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” (Citations and punctuation omitted.) Ridley v. State, 232 Ga. 646, 648 (208 SE2d 466) (1974). Under Count 3 of the indictment in the case sub j'udice, the term, “to contact,” is readily understood by people of ordinary intelligence as meaning to get in touch with; to communicate with. Johnson v. State, 264 Ga. 590, 591 (449 SE2d 94) (1994). The statute at issue here “prohibit[s] the defendant from contacting another person intending to harass and intimidate and the defendant certainly knows if he is doing that.” (Citations and punctuation omitted; emphasis in original.) Id. at 591. Further, Count 3 specifies the date and place in which the contact occurred and specifically references court order 94-DR-00389-6 as the order allegedly violated by the appellant’s prohibited contact with the victim. Thus, Count 3 of the indictment “was stated in the language of the statute and we believe fairly apprised the defendant of the contemplated conduct forbidden by the statute with which he was charged in this case.” Ridley, supra at 647-648; Burnett v. State, 202 Ga. App. 563, 565 (415 SE2d 43) (1992). The trial court did not err in denying appellant’s demurrer to Count 3 of the indictment.

3. Appellant contends that the trial court erred in denying his motion to obtain the Georgia criminal history through the Georgia Crime Information Center (GCIC) of prospective jurors in the case sub judicé. Appellant alleges that the Clayton County District Attorney’s Office runs a GCIC on all prospective jurors and uses the information during jury selection; appellant argues that since the prosecutor has this GCIC information, appellant is entitled to this information pursuant to the new discovery act, OCGA § 17-16-1 et seq., in order to “level the playing field.”

Decided October 17, 1996

Reconsideration denied October 31, 1996

Richard D. Hobbs, Pandora E. Terry, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

In the alternative, appellant argues that if he is not entitled to this information, the prosecutor should not be either, as the district attorney, in obtaining GCIC information on prospective jurors, violates a juror’s right to privacy and subverts the purposes for which the GCIC was created and maintained pursuant to OCGA § 35-3-33.

The routines of the district attorney’s office may be common knowledge among the parties involved in the case sub judice. However, other than a statement regarding his own perception of the practices of that office, appellant failed to introduce any evidence whatsoever in support of his contention that the Clayton County District Attorney runs a GCIC of prospective jurors and utilizes that information in the jury selection process; moreover, there is absolutely nothing in the record before this Court that would provide a factual basis for this contention. Accordingly, appellant’s factual assertions, unsupported by evidence of record, cannot be considered on appeal. Dotson v. State, 213 Ga. App. 7, 9 (443 SE2d 650) (1994); Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223) (1988).

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ., concur.

       This Court affirmed appellant’s conviction in an unpublished opinion, Kinney v. State, supra.

       The State’s additional argument regarding theTegal impossibility of basing the prior conviction for violation of OCGA § 19-13-6 (b) upon acts such as those contained in Counts 4 and 5 of the instant indictment disregards the law of the case as established by the decision of this Court in Kinney v. State, supra. See Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 837) (1996). This legal impossibility argument was not raised by either party in the prior trial or on the appeal thereof, and this Court affirmed appellant’s prior conviction, thereby establishing the law of this case, based upon the record and enumerations of error before this Court. See generally Johnson v. Heifler, 141 Ga. App. 460, 463 (233 SE2d 853) (1977).

       In any future proceedings wherein these arguments are raised, the initial inquiry should concern appellant’s standing in this criminal case to raise matters pertaining to: (1) an individual juror’s constitutional right to privacy, and (2) the district attorney’s adherence to the requirements of the Georgia Bureau of Investigation’s policies and procedures pursuant to OCGA § 35-3-33. See generally Keenan v. State, 263 Ga. 569, 570 (436 SE2d 475) (1993); City of Chamblee v. Village of North Atlanta, 217 Ga. 517 (123 SE2d 663) (1962).


author: Beasley, Chief Judge.

text:
    A96A1210.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BLACKBURN et al.
    (480 SE2d 848)
   Beasley, Chief Judge.

Georgia Farm Bureau Mutual Insurance Company filed a complaint for declaratory judgment that, under an insurance policy it issued to the Blackburns, it is not obligated to defend them in a wrongful death action. Pursuant to the Blackburns’ motion, on which oral argument was heard, the trial court granted judgment on the pleadings to them as provided by OCGA § 9-11-12 (c). The insurer’s sole claim on appeal is that, within the framework of the pleadings, evidence could be introduced to sustain the relief it sought.

An examination of the record requires affirmance. First, the complaint attaches and incorporates two exhibits, an insurance policy which allegedly was in effect at the time of the residential fire which resulted in the deaths plus the complaint in the underlying lawsuit. It is not disputed that the fire occurred on January 28, 1994. The policy attached is for the period August 28, 1993 to August 28, 1994. The insurer subsequently amended the- complaint, striking that insurance policy and substituting another policy which covered the period August 28, 1994 to August 28, 1995. It is obvious that this policy was not in effect at thé time of the fire, which leaves no policy as part of the complaint.

In its appellate brief, the insurer states that its complaint requests the grant of declaratory judgment “based upon a business pursuits exclusion” and admits that the exclusion quoted in the complaint is not the applicable section. Thus it admits that it would not -be entitled to a declaration of non-coverage on that quoted exclusion. It follows that judgment on that pleading for defendants is warranted.

Second, insurer posits that the erroneously quoted exclusion’s replacement is in an amendment to the policy, is attached to the complaint, and is the basis for its claim of non-coverage. Since appellant does not cite the record, it is not certain whether it is referring to the policy in effect at the time of the fire, which it struck from its complaint, or the policy it substituted, which was not in effect at the time of the fire.

Assuming that appellant means the policy in effect at the time, and overlooking the fact that it was stricken from the pleadings, appellant’s argument is that evidence would show that the property at which the fire occurred was not covered by the policy. However, as pointed out by the Blackburns, the insurer’s complaint alleges that the fire occurred on their property, and their counsel stated at oral argument that “[tjhere is no issue in this case that the — the plot of land, the acreage where this alleged incident occurred was covered by this policy. There is no issue about that.” This is a different basis for non-coverage than was urged before the trial court. There the insurer claimed exclusion because the residence was being put to a business use, i.e., rental, so that “exclusion g” (the replacement version) precluded coverage. This is the issue the trial court ruled on, in that the policy unambiguously covers “the liability arising out of additional farm premises with buildings owned or occupied by the insured or rented to others.” An appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal. “[W]here the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is. argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error. [Cit.]” Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986). Knight v. State, 216 Ga. App. 200, 201 (1) (453 SE2d 798) (1995).

Decided October 31, 1996.

McClure, Ramsay & Dickerson, John A. Dickerson, Luther H. Beck, Jr., for appellant.

Law Offices of E. Wycliffe Orr, E. Wycliffe Orr, Kristine E. Orr, Carey, Jarrard & Walker, Mary R. Carden, for appellees.

Finally, appellant has not demonstrated, by its brief, that the trial court erred in its rulings.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J, concur.