author: Johnson, Judge. Beasley, Chief Judge, dissenting.

text:
    A94A2520.
    MOORE v. THE STATE.
    (456 SE2d 708)
   Johnson, Judge.

James Moore, Jr., was convicted of two counts of rape, kidnapping, aggravated assault and aggravated sodomy. He appeals from his convictions.

1. In two separate enumerations of error, Moore argues that, despite his having interposed insanity as a defense, the trial court failed to give a complete charge on insanity and mental illness as required by OCGA § 17-7-131 (b) (3). OCGA § 17-7-131 (b) (3) provides: “In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.” (Emphasis supplied.) At trial, rather than giving the charge as set out in the statute, the court stated: “Now, if you find the defendant insane at the time of the act or mentally ill at the time of the alleged act and your verdict so specifies, then the defendant will be committed to the proper facility until the Court is satisfied — and to be held as required by law until be — and ordered to be released as provided by law.” Defense counsel excepted to the charge.

We agree with Moore that the court erred in giving this summary rather than using the statutory language. “The Code mandates that the charge set forth in OCGA § 17-7-131 (b) (3) [(A) and] (B) ‘shall’ be given.” (Emphasis in original.) Spraggins v. State, 258 Ga. 32, 33 (2) (364 SE2d 861) (1988). “[T]he failure to comply with a mandatory rule is presumptively harmful.” (Citations omitted.) Id. at 33 (3). The legislature made the charge mandatory, perhaps to prevent courts from incorrectly summarizing the law and confusing the jury, as was the case in Prophitt v. State, 183 Ga. App. 332, 333 (1) (358 SE2d 892) (1987). In Prophitt, the trial court charged the jury in accordance with OCGA § 17-7-131 (b) (3), (A) & (B). After beginning deliberations, the jury asked the court to define the possible verdicts it would be authorized to return. The court responded by summarizing the statute. We found the court’s instructions to be ambiguous with regard to the crucial issue of who would have custody and control of the defendant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity, and held that the recharge constituted reversible error. Id. In this case, the court’s charge failed to indicate who would have custody and control of Moore in the event he were found not guilty by reason of insanity or guilty but mentally ill. We also found reversible error in Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986), where the trial court instructed the jury that a state mental institution would have the ultimate power to order the release of an insanity acquittee, when that power actually rests with the trial court. (OCGA § 17-7-131 (b) (3) was not in effect at the time of Loftin’s trial.) We stated that the court’s summary was an erroneous statement of the law and the jury’s verdict may have been influenced by its belief that the procedural safeguards were inadequate and that the defendant’s dangerous propensities may not be given adequate consideration by a mental institution in determining whether release was appropriate. Id. Unlike in Loftin, the trial court in the instant case correctly stated that the power to order Moore’s release rested with the court. However, we believe the jury in this case may have been, as in Loftin, misled as to Moore’s disposition were it to return an insanity verdict. In simply stating that the defendant would be committed to the “proper facility,” the trial court failed to inform the jury that, depending upon the verdict, the proper facility might include the Department of Corrections. Such an omission may have influenced the jury’s verdict. If the court misleads the jury as to the defendant’s treatment and release if found insane, he has effectively been deprived of his insanity defense. See generally Cranford v. State, 186 Ga. App. 862, 863 (2) (369 SE2d 50) (1988).

In addition, the trial court’s omission of the words “if ever” from the charge may have left the jury with the incorrect impression that the court would definitely be ordering Moore’s release at some point; the “if ever” language implies the contrary. “Failure to give such a charge when required by statute is reversible error.” Guilford v. State, 258 Ga. 253, 254 (3) (368 SE2d 116) (1988). Therefore, Moore is entitled to a new trial wherein the court is instructed to give the charge required by the statute.

2. Moore contends the trial court erred in not directing the jury to cease deliberations if it found the defendant lacked the ability to distinguish right from wrong at the time the act was committed. This enumeration lacks merit. The court charged the jury that if it found that the defendant was incapable of distinguishing between right and wrong at the time of the act, then the jury had the duty to acquit him because of insanity and cease deliberations. We find no error.

3. Moore’s contention that the court erred in failing to instruct the jury that the state bore the burden of proving he was sane is without merit. In Georgia, an individual’s sanity is presumed. Loumakis v. State, 179 Ga. App. 294, 299 (9) (346 SE2d 373) (1986). “[T]he United States Supreme Court has found no constitutional infirmity in a rule which places the burden upon the defendant to prove his insanity. [Cits.]” Pope v. State, 256 Ga. 195, 208 (16) (345 SE2d 831) (1986).

4. Moore claims the trial court erred in allowing the state to place his character in issue by inquiring into a prior assault he allegedly committed upon the victim, his estranged wife. Prior to trial, the state asked the court to rule on the admissibility of this evidence. Defense counsel objected to its admissibility, arguing that it was prejudicial and improperly placed Moore’s character in issue. The trial court ruled the evidence admissible for the limited purposes of explaining the victim’s conduct and the defendant’s state of mind. Defense counsel apparently acquiesced in the court’s ruling and made no objection when the evidence was introduced at trial. Moore’s argument contained within this enumeration raises a “similar transaction” issue not raised in his objection below. Since no timely, specific objection was made at trial, it is treated as a waiver on appeal. Brenneman v. State, 200 Ga. App. 111, 115 (5) (407 SE2d 93) (1991).

5. Moore’s contention that the trial court erred in allowing the state to play a 911 audiotape of calls made by the victim and witnesses during the attack is without merit. At trial, Moore argued the tape was inadmissible because it was redundant, lacked probative value, and constituted hearsay. The objection was properly overruled. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. ... A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 140-141 (2) (410 SE2d 344) (1991). We will not disturb the trial court’s ruling on this issue.

6. Moore argues the trial court erred in instructing the jury that a person is presumed to be “of sound mind and distinction” rather than “of sound mind and discretion” (see OCGA § 16-2-3). This error is not likely to recur on retrial. In any event, it is highly probable that the error did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Judgment reversed.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent because, contrary to the ruling in Division 1, the court’s charge as to the authority responsible for the defendant’s destiny under the possible verdicts did not constitute reversible error in this case. Appellant complains that the portion of the court’s charge in this respect, which is quoted in the majority opinion, is an incorrect and incomplete statement of the law and is ambiguous and misleading.

Defendant had requested a charge on OCGA § 17-7-131 (b) (3) (A), which states the prescribed disposition for persons found not guilty by reason of insanity. He did not submit a request for OCGA § 17-7-131 (b) (3) (B), which provides the disposition for a person found guilty but mentally ill. It is apparent from the submitted charges, especially Request No. 9, and the discussion at the charge conference, that defendant did not particularly want such a charge because he was afraid that if the jury found he was mentally ill at the time of the crime, it would find him guilty but mentally ill instead of not guilty by reason of insanity. Although he agreed with the court that “guilty but mentally ill” was one of the verdicts the jury could consider, he thought the charge would confuse the jury. He acknowledged that it was in the pattern charge book. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 60.

Defendant reminded the court of the statutory language and the court indicated that it would give the substance of OCGA § 17-7-131 (b) (3) (A) and (B), telling the jury that if it finds defendant was insane or mentally ill at the time of the act, he would be taken and handled as required by law.

The court gave a lengthy charge on insanity and mental illness, the distinction between the two, the test to be applied in determining the existence of each, and the verdict which should be entered upon a finding of either one. It tracked the charge in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., pp. 55-61, omitting the inappropriate charges on delusional insanity and mental retardation and the paraphrases of OCGA § 17-7-131 (a) (3) (A) and (B). At a logical point near the end of the instructions on this whole subject, the court gave the charge at issue. In it, the court explained that if either verdict was returned, the defendant would be committed to “the proper state facility until the Court” is satisfied and orders him released in accordance with the law.

After conclusion of the jury instructions, defendant objected to the charge enumerated as error: “[W]hen the Court charged the jury down here that, if — if they found — sort of like a sideline, if you find him not guilty by reason of insanity or mental illness — I don’t think mental illness is in that statute — you told them they would be committed until the Court figured out what to do with them. That’s not in the statute either. That’s in the law, but it’s not in the statute that’s supposed to be charged to them. They’re just supposed to be told that the defendant will be committed to the Department of Human Resources for further evaluation.”

The Supreme Court reversed the conviction in Spraggins v. State, 258 Ga. 32 (364 SE2d 861) (1988), because the trial court did not give the jury instruction mandated by OCGA § 17-7-131 (b) (3) (B) concerning the dispositional consequences of a verdict of “guilty but mentally ill,” of which mental condition there was evidence at trial. The trial court did give OCGA § 17-7-131 (b) (3) (A) regarding insanity. The Supreme Court applied the rule that, since the language of the statute is mandatory, “the failure to comply with a mandatory rule is presumptively harmful.” Id. at 33. It considered the purpose of a charge on subsection (B) and concluded that it was not fulfilled. The purpose “is to ensure that the jury understands that a verdict of guilty but mentally ill does not mean that the defendant will be released.” Id. at 34. The Court found that, since the jury was not so informed and the prosecutor’s argument strongly implied that such a verdict would result in defendant’s release, the presumption of harm was not overcome.

The Court pointed to Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986), for comparison. In that case, instead of the problem being a prosecutor’s misleading argument, the trial court itself instructed the jury that on a verdict of not guilty by reason of insanity, the defendant could be released by a state mental institution after examination. This court ruled that the statement was clearly erroneous because “[t]he ultimate power to order the release from a mental institution of an insanity acquittee is one which rests, not in the institution, but in the trial court.” Id. This is so, we explained, in that “[t]he trial court is entirely free to reject the recommendation of the staff of the institution.” Id. A new trial was ordered because this court could not be certain the jury understood that if it found defendant not guilty of the homicide by reason of insanity, there was the procedural safeguard of a judicial determination that it was safe to release her, before any release occurred, not merely a mental institution determination.

In Guilford v. State, 258 Ga. 253 (368 SE2d 116) (1988), a few months after Spraggins, the Supreme Court reversed the conviction and required a new trial because the trial court failed to give the dis-positional charge relating to a verdict of not guilty by reason of insanity, OCGA § 17-7-131 (b) (3) (A). The authority cited is Spraggins. At that time, the prescribed charge when the defense of insanity was interposed was that “should [the jury] find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others.” Id. at 254.

The year before, in Prophitt v. State, 183 Ga. App. 332 (1) (358 SE2d 892) (1987), this court held that, although the trial court charged the jury OCGA § 17-7-131 (b) (3) (A) and (B), it erred in a recharge when the jury asked for a “ ‘brief definition’ ” of possible verdicts. As pertinent to the issue on appeal, the trial court attempted to condense by instructing that “ ‘a verdict of not guilty by reason of insanity would discharge (the appellant) from the offense charged, (and) he would be committed to the Department of Human Resources until he is no longer a danger to himself or others.” We concluded that this was “at best ambiguous with regard to the crucial issue of who would have custody and control of the appellant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity. . . .” Id. at 333. This is precisely in line with what Spraggins later held.

In the month following Spraggins, this court decided Cranford v. State, 186 Ga. App. 862 (369 SE2d 50) (1988), a case involving the defense of mental illness but not insanity. The court rejected appellant’s contention that he was entitled to a jury charge on sentencing if he should be found guilty but mentally ill. In support of his contention, Cranford cited Prophitt, supra; Loftin, supra; and Price v. State, 179 Ga. App. 598, 601 (1) (347 SE2d 608) (1986). We distinguished them as holding that instructions on the consequences of a verdict of insanity or mental illness must not mislead the jury into thinking that defendant would be released outright. “The error in those cases,” we said, “was in either allowing the jury to compromise by finding that defendant did not know right from wrong or suffered a delusional compulsion and returning a verdict of guilty but mentally ill, or in the court’s misleading the jury as to defendant’s treatment and release if found insane, thereby depriving him of his insanity defense.” Id. at 863. Cranford acknowledged that he could not prove insanity, and he did receive an instruction on the guilty but mentally ill verdict. We held that “[h]e was not entitled to an instruction on the sentencing options of that verdict, as that would have no bearing on his guilt or innocence. [Cit.]” By continuing to recognize that it would be error to mislead the jury as to the consequences of finding no guilt by reason of insanity or guilt but mental illness, our view was in conformity with Spraggins, although it was not cited.

Since these cases were decided, the statutory provision has been materially changed with respect to subdivision (A). As it applied in all the cases cited above up through Guilford, it read: “I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others.” Now it reads, as relates to Moore’s case: “I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.”

No longer is the court to instruct that it will maintain custody and control of defendant, even though it will retain legal control; literally taken, the instruction is misleading because an insane acquittee is sent to and detained in the custody of a state mental health facility selected by the Department of Human Resources for evaluation and report to the court which retains jurisdiction. OCGA § 17-7-131 (d). Thereafter the trial judge decides whether the person is to be released or committed to the Department of Human Resources for involuntary treatment. OCGA § 17-7-131 (e). An acquittee so committed may be discharged from Department of Human Resources custody only by the committing court, in accordance with OCGA § 17-7-131 (f).

The key thread running through all of these cases, and subsection (b) (3) of the statute, is that the court will decide if and when a defendant who the jury finds was insane or mentally ill at the time of the crime will be released. The jury is to be disabused of any fear that such a person will be released outright or will be released upon the judgment of mental health authorities. The jury is to be assured that the trial court itself, which the jury knows has the sentencing power, will retain control of the question of release.

That is precisely what the court charged in Moore’s case. After having already described at length the legal definitions of insane and mentally ill and the verdicts appropriate for each, should one or the other be found, the court instructed the jury that if it found one or the other, the defendant would be committed to the proper state facility until the court was satisfied he should be released as provided by law.

It is true that the court did not use the words of the Code. It did not say that defendant would go to a state mental health facility if acquitted by reason of insanity or to the Department of Corrections or the Department of Human Resources if convicted but found mentally ill by the jury. That would be fairly confusing, because the jury would not necessarily know that the state mental health institutions are under the aegis of the Department of Human Resources. It would also be misleading, because subsection (B) does not advise that a defendant found guilty but mentally ill will not be released without court order. Yet that would be the ultimate result. OCGA § 17-7-131 (g). Further, charging in the precise words of subsection (B) is obtuse, because a jury would not know why defendant would go to Corrections instead of Human Resources or vice versa, or who would decide. Which state agency or institution is given physical custody of defendant is not the jury’s concern; it is the trial court’s. OCGA § 17-7-131 (g). Yet the charge implicates those two departments of state government.

Decided March 17, 1995

Reconsideration denied March 31, 1995

Daniel B. Kane, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

What is the jury’s concern is that, should it find that defendant was insane or mentally ill when committing the act, defendant would not be released without court order. Of that it was assured in Moore’s case. He was not deprived of his insanity defense or of the defense of mental illness, which he eschewed but was permitted anyway as an alternative to the more ominous verdict of guilt outright. The court’s instruction, particularly taken in the context of its entire charge on the defenses and the alternative verdicts, fulfilled the judicially-recognized purpose of the legislated jury charge in OCGA § 17-7-131 (b) (3). For this reason, I respectfully dissent.

I am authorized to state that Presiding Judge McMurray, Judge Andrews, and Judge Ruffin join in this dissent.

       Moore’s objection that no proper foundation was laid was not raised below and therefore will not be considered on appeal. See Hunter v. State, 202 Ga. App. 195, 197-198 (3) (413 SE2d 526) (1991).

       The pattern charge for subsection (A) is: “If this [not guilty by reason of insanity] is your verdict, the defendant will be committed to a state mental health facility until the court is satisfied that the defendant should be released under the law.” The pattern charge for subsection (B) is: “If that [guilty, but mentally ill] is your verdict, the defendant will be given over to the Department of Corrections or to the Department of Human Resources, as the mental condition of the defendant may warrant.” Id. at 58, 60.

       Mental illness is in the statute, as subsubsection (3) (B), and it is that provision which involves the Department of Human Resources.

       Subsubsection (3) (B) was not involved, but the same would apply to it. Spraggins, supra at 33.


source: Caselaw Access Project

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

license: Public Domain

text:
    A94A2583.
    A94A2584.
    A94A2585.
    A94A2586.
    A94A2587.
    A94A2588.
    A94A2589.
    A94A2590.
    A94A2591.
    SOUTHERN TRUST INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. MAY DEPARTMENT STORE et al. v. CENTER DEVELOPERS, INC. et al. HARTFORD ACCIDENT & INDEMNITY COMPANY v. CENTER DEVELOPERS, INC. et al. ALLSTATE INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. NATIONWIDE MUTUAL INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. JEWELERS MUTUAL INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. ASSOCIATION OF APRIL MARCUS v. LOTZ et al. HARTFORD ACCIDENT & INDEMNITY COMPANY v. CENTER DEVELOPERS, INC. et al. HOME INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al.
    (456 SE2d 608)
   McMurray, Presiding Judge.

These nine companion cases arise out of suits by a tenant, Association of April Marcus d/b/a Men’s Wear Outlet (Case No. A94A2589), by the owner of a tenant, May Department Store (Case No. A94A2584), or else by the subrogated insurer of a tenant (collectively “plaintiffs”), against the owner of commercial premises, defendant Promenade Associates, Ltd. (“Promenade”), defendant Charles A. Lotz, Jr., who is the “General Partner of Promenade,” and against Promenade’s property management company, defendant Center Developers, Inc. (“Center”). Also named in each case was Belco Electric, Inc. (“Belco”), while in four cases, Henry Sign Systems, Inc. (“Henry”) also was named. The complaints alleged, inter alia, that the tenants’ premises and contents were damaged by two fires at the Loehmann’s Plaza Shopping Center in Smyrna, Georgia, and that the fires were caused by the negligence of defendants or their agents in maintaining faulty neon signs in violation of applicable electrical codes. Each insurer also alleges that it has paid its insured’s claim for property damage and business interruption losses incurred as a result of fire and has become subrogated to the rights of the tenant to the extent of payment. In Case No. A94A2583, Southern Trust Insurance Company is the subrogee of the tenant, Argus, Inc. In Case No. A94A2584, May Department Store is' “the owner of [the tenant], Loehmann’s, Inc. . . .” In Case No. A94A2585, Hartford Accident & Indemnity Company is the subrogee of the tenant, Hair, Inc. In Case No. A94A2586, Allstate Insurance Company is the subrogee of the tenant, Natalie’s Bags ‘N’ Things, Inc. In Case No. A94A2587, Nationwide Insurance Company is the subrogee of the tenant, Bennie’s Shoes. In Case No. A94A2588, Jewelers Mutual Insurance Company is the subrogee of the tenant, Kid’s World, Inc. d/b/a Plaza Diamonds. In Case No. A94A2590, Hartford Accident & Indemnity Company is the subrogee of the tenant, The Finish Line, Inc. In Case No. A94A2591, the Home Insurance Company is the subrogee of the tenant, Factory Outlet Shoes of Oklahoma, Inc.

Defendants denied the material allegations. After discovery, defendants Promenade, Center, and (in Case No. A94A2589) Charles A. Lotz, Jr., moved for summary judgment on the basis of provisions in the respective leases by which each tenant had expressly waived any claim of subrogation and had agreed with Center to hold each other harmless to the extent permitted by their respective fire insurance policies. The trial court granted these motions and these appeals followed. At the request of the parties, the nine separate appeals are consolidated for disposition in this single opinion. Held:

Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589 and A94A2591

1. Plaintiffs in these six cases enumerate the grant of summary judgment as error, arguing first that “the operative provisions of the lease agreements do not bar subrogation because none of the leases required the tenants to purchase first-party property insurance.” Relying on Central Warehouse & Dev. Corp. v. Nostalgia, Inc., 210 Ga. App. 15 (435 SE2d 230), plaintiffs argue that a contractual requirement that either party purchase first-party property insurance is essential to a valid effort to shift the risk of any casualty loss to an insurance carrier. Consequently, it is urged that the waiver-of-subrogation clauses in these cases are void as contrary to public policy pursuant to OCGA § 13-8-2 (b).

In each of these six appeals, the tenant’s lease contains the identical Article XXI, captioned: “WAIVERS OF SUBROGATION[:. . .] Each of the parties hereto waives any and all rights of recovery against the other or against any other tenant or occupant of the building or the Shopping Center, or against the officers, employees, agents, representatives, invitees, customers and business visitors of such other party or of such other tenant or occupant of the building or the Shopping Center, for loss of or damage to such waiving party or its property or the property of others under its control arising from any cause insured against under the standard form of fire insurance policy with all permissible extensions and endorsements covering additional perils or under any other policy of insurance carried by such waiving party in lieu thereof. Such waivers shall be effective only so long as the same is permitted by each party’s insurance carrier without the payment of additional premium.”

OCGA § 13-8-2 (b) provides in pertinent part that an agreement (relative to a building) “purporting to indemnify or hold harmless the promisee against liability for damages arising out of . . . damage to property caused by or resulting from the sole negligence of the promisee, his agents, or employees, or indemnitee is against public policy and is void and unenforceable. ...” Plaintiffs’ contention that the “WAIVERS OF SUBROGATION” clauses in the six cases sub judice are void by operation of this Code section is controlled adversely to them by the recent whole court opinion in Glazer v. Crescent Wallcoverings, 215 Ga. App. 492, 493 (1) (451 SE2d 509), involving substantially identical contractual language. In Glazer, this court observed that “our Supreme Court has recognized that parties to a building-related contract (such as a lease) can agree to look solely to insurance to cover their [respective] losses without violating [OCGA § 13-8-2 (b)], and that an intent to do so is the ‘well-recognized meaning’ of a ‘waiver of subrogation’ clause. See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980). Such an agreement does not violate the statute because it does not indemnify the promisee, but instead ‘shifts the risk of loss to the insurance company regardless of which party is at fault. (Cit.)’ [Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 29 (2), supra.]” Glazer v. Crescent Wallcoverings, 215 Ga. App. 492, 493 (1), supra. The whole court disapproved of certain language in Central Warehouse & Dev. Corp. v. Nostalgia, Inc., 210 Ga. App. 15, 16 (1), supra, suggesting that an intent to shift the risk to the insurer could be expressed only by a separate mandatory insurance provision. In the six cases sub judice, the contractual waiver clauses “are explicitly labeled as ‘Waiver[s] of Subrogation’ clauses, clearly contemplate the existence of insurance, and by their terms do not apply in the absence of insurance. [Under such circumstances], a mandatory insurance provision is unnecessary to show the parties’ intent to look solely to the insurer. ... [It follows that in the cases sub judice, the] ‘Waiver [s] of Subrogation’ provisions in the [six] leases at issue here are not indemnification clauses void under OCGA § 13-8-2 (b), and are therefore [not] [unenforceable.” (Emphasis in original.) Glazer v. Crescent Wallcoverings, 215 Ga. App. 492, 493 (1), 494, supra. “[S]ubrogation places the subrogee in the shoes of the subrogor. Consequently, the rights to which the subrogee succeeds are the same as, and no greater than, those of the subrogor; therefore, the subrogee’s rights are subject to any limitations incident to them in the hands of the subrogor, and subject to any defenses that might have been urged against the subrogor. [Cits.]” Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 262 (2) (356 SE2d 877). In these six cases, since the tenants validly waived any subrogation claim for fire damage, the trial court correctly granted defendants’ motions for summary judgment.

2. The second enumeration, regarding whether plaintiffs’ insureds and defendants were co-insureds, has been considered and found to have been rendered moot with respect to these appeals. Inasmuch as the valid waiver of subrogation applies to the agents of the parties to the lease, the sixth enumeration is found to be without merit.

Case No. A94A2584

3. In the fifth enumeration, it is contended that “any waiver of subrogation in [the Loehmann’s, Inc.] lease had no effect upon a direct action filed against [defendants].”

This action was brought by May Department Store (“May”), seeking to collect for “uninsured losses [incurred] as a result of the [two fires] . . .” at the premises leased by May’s wholly-owned corporation, Loehmann’s, Inc. The alleged subrogation claims in this case are brought in the names of two additional plaintiffs, namely “Michael Maughan, an underwriter at Lloyd’s Syndicate . . . [, representing] an unincorporated group of alien individual underwriters . . . ,” hereinafter the “Interested Underwriters”; and “David Duberry, an underwriter at Hull Maritime Insurance Company for himself and other underwriters at the Institute of London Underwriters .. . ,” hereinafter “the London Institute.” It appears that Center, Belco, and Henry are the only defendants named and served in this action, although pleadings are filed in the names of both Center and Promenade.

Article XI, Section 11.3 of the Loehmann’s, Inc. lease contained in part the following provision:

“WAIVER OF SUBROGATION . . . Landlord and Tenant agree that in the event the Demised Premises or its contents are damaged or destroyed by fire or any other cause recoverable by insurance maintained by either, the rights of either against the other with respect to such damage or destruction are hereby waived and released.” Section 11.1 obliged the landlord to maintain at all times fire insurance as to the improvements. “Any such policy shall name Tenant as an insured. . . .” Also, Section 11.2 required the landlord to maintain “general public liability insurance . . . [issued] under a ‘blanket policy,’ so-called, . . . [which] shall not be cancelled or changed without at least ten (10) days’ prior written notice to Tenant.” The trial court characterized “Plaintiff/insurer [sic] May Department Store’s [claim as a] subrogation action [and held that such claim was] barred . . .” by the above-quoted waiver of subrogation provision and on the alternative ground that May and defendants are co-insureds. See E. C. Long, Inc. v. Brennan’s of Atlanta, 148 Ga. App. 796, 797 (1), 803 (252 SE2d 642).

Under the analysis of Glazer v. Crescent Wallcoverings, 215 Ga. App. 492, 493 (1), supra, the trial court’s grant of summary judgment with respect to subrogation claims would be correct, but this ruling would apply only to the Interested Underwriters and the London Institute, both non-parties to this appeal. A waiver-of-subrogation analysis is not germane to the May claims for allegedly uninsured losses as stated in the complaint. The trial court’s grant of summary judgment as to May cannot be sustained on this ground. Moreover, although May or Loehmann’s, Inc. is supposed to be a co-insured under a policy of fire insurance defendants were contractually responsible for maintaining, “we are unable to discern from the present record whether [defendants’] required [‘fire] insurance’ covers losses to [May’s] property. . . .” Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330, 332 (364 SE2d 84). Accordingly, the record in the case sub judice does not establish the non-viability of May’s direct claim against defendants and summary judgment was unauthorized. Other grounds of defendant Center’s motion were not ruled upon by the trial court and will not be considered on appeal.

Case Nos. A94A2583 and A94A2590

4. The leases entered into by Argus, Inc. (Case No. A94A2583) and also by The Finish Line, Inc. (Case No. A94A2590) contained (in pertinent part) the following provisions:

“20. LIABILITY INDEMNITY INSURANCE . . . Landlord shall not be liable to Tenant or any other person for any damage . . . to . . . property by reason of the failure of Landlord to perform any of its covenants or agreements hereunder, nor for such damage . . . caused by reason of any defect in the Premises now or in the future existing, nor for any damage . . . caused by any present or future defect in the plumbing, wiring, or piping in any part of the Shopping Center ... , or for any damage arising from acts or negligence of other tenants or occupants of the Shopping Center. Tenant agrees to indemnify and save harmless the Landlord from and against any and all loss, damage, claim, demand, liability or expense by reason of any damage ... to property ... which may be claimed to have arisen as a result of or in connection with the occupancy or use of said Premises by Tenant. Tenant shall, at its expense, provide and maintain in force during the entire lease term public liability insurance with limits of coverage of not less than $50,000.00 for property damage loss from any one accident . . . , and each policy of such insurance shall name as the insured thereunder the Landlord and the Tenant. . . .” (Emphasis supplied.) Paragraph 21 is captioned: “INSURED’S WAIVER, NOTICE . . . Any insurance procured by Tenant as herein required shall be issued in the name of Landlord and Tenant . . . [pursuant to a policy which], at Landlord’s option, waives its [the insurer’s] right to subrogation against Landlord for any reason whatsoever.”

The trial court concluded that, since the parties to these leases mutually agreed that insurance will be provided as part of the bargain, the result was a mutual exculpation and a waiver of subrogation binding upon Southern Trust Insurance Company and The Hartford Accident & Indemnity Company as subrogees. The trial court further held that these provisions made the landlord a co-insured with the tenant, also barring any subrogation claim. Plaintiff insurers argue that these conclusions fail to recognize “the distinction between coverage under a liability policy and coverage under a property insurance policy. . . .” We agree.

Liability insurance is defined as “insurance against legal liability for the death, injury, or disability of any human being, or for damage to property. ...” OCGA § 33-7-3 (1). By way of contrast, “Property insurance is insurance on real or personal property of every kind and interest therein against loss or damage from any or all hazards or causes and against loss consequential upon such loss or damage other than noncontractual legal liability for any such loss or damage.” OCGA § 33-7-6 (a). In the cases sub judice, the agreement that the tenant was financially responsible for obtaining public liability insurance to hold the landlord harmless is to protect the landlord from the “noncontractual legal liability” claims of invitees or other third parties. This is not evidence that the landlord and tenant have agreed to exculpate each other and look solely to insurance in the event of casualty to personal property such as the destruction of inventory and fixtures by fire, with consequential business losses. The trial court erred in concluding that a contractual requirement that a tenant maintain in force a public liability insurance policy with the landlord (or its agents) as a named insured amounted to a mutual exculpation of the parties to the lease for fire damage to the tenant’s inventory and contents of the leased premises. Moreover, the contractual language in these two leases (unlike that considered in Division 1, supra) does not purport to be an express waiver of subrogation for damage to the tenant’s property. Rather, the lease requires only that such public liability policy as the tenant is contractually obligated to obtain shall include a provision whereby “at Landlord’s option, [the insurance company] waives its right to subrogation against Landlord for any reason whatsoever.” Accordingly, “the instant lease provision does not clearly and unequivocally express the mutual intent of [plaintiffs’ insureds and defendants] to waive, as against each other, liability for the consequences of their own respective negligent acts or omissions. See generally Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 SE2d 67) (1984).” Borg-Warner Ins. Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70 (400 SE2d 340). The trial court erred in granting summary judgment against plaintiff insurers Southern Trust Insurance Company and The Hartford Accident & Indemnity Company for their respective subrogated claims for fire damage and alleged consequential business losses.

5. In Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589 and A94A2591, the grant of summary judgment on the basis of a valid waiver of subrogation for fire damage to the tenant’s property is affirmed. In Case Nos. A94A2583, A94A2584 and A94A2590, the grant of summary judgment on that same ground is reversed.

Judgment affirmed in Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589 and A94A2591. Judgment reversed in Case A94A2583, A94A2584 and A94A2590.

Birdsong, P. J., Pope, P. J., Blackburn and Ruffin, JJ., concur. Beasley, C. J., Pope, P. J., Andrews, Johnson and Ruffin, JJ., concur specially. Smith, J., concurs specially in part and dissents in part.

Beasley, Chief Judge,

concurring specially.

I concur in the majority opinion except that it does not expressly rule on the question addressed in Division 3 (c) of the dissent. Applying the principles of contract interpretation cited in the dissent and other applicable rules of construction including others contained in OCGA § 13-2-2, there is no conflict in the leases identified such that summary judgment was improper.

Reading the loss and damage provision together with the waivers of subrogation provision in the Men’s Wear lease reveals that the parties intended the waivers to be effective only to the extent of insurance. Landlord remained liable for its own negligence or that of its employees, agents, or assigns, to the extent it was not covered by insurance. By inserting the typed exception, the parties were merely explicitly recognizing the public policy expressed in OCGA § 13-8-2 (b) which, as construed by the Supreme Court in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980), allows the shifting of the risk of loss to the insurance company. The risk remains the landlord’s to the extent it is not cast upon the insurer, which is being paid a premium to carry it. Where the loss from negligence exceeds the amount of coverage, the landlord does not, and cannot, avoid it by contract with the tenant. An attempt to do so would violate OCGA § 13-8-2 (b), which prohibition the parties expressly honored.

The typed additional language in the Shoe Secrets lease has the same effect; the parties just stated it differently. The printed all-encompassing loss and damage provision is limited by the typed exception which states that the landlord is not relieved of liability for its negligent acts. Reference is then immediately made to the rider containing a waiver of subrogation provision, which protects tenant from any right of recovery of the landlord subrogated to the landlord’s insurer for losses caused by the tenant. The standard printed “waivers of subrogation” provision waives the rights of recovery of the parties, and by implication the subrogated insurers, to the extent of insurance coverage. Reading all of this together, it is plain that the landlord’s liability for negligence remains only to the extent not covered by insurance.

I am authorized to state that Presiding Judge Pope, Judge Andrews, Judge Johnson and Judge Ruffin join in this special concurrence.

Smith, Judge,

concurring specially in part and dissenting in part. I concur in certain portions of the majority’s judgment, but for different reasons. I respectfully dissent as to other portions of the majority opinion.

1. I agree with the majority’s holding in Division 3, albeit for a different reason: Glazer v. Crescent Wallcoverings, 215 Ga. App. 492 (451 SE2d 509) (1994), is inapplicable to the May Company claim; and summary judgment was therefore inappropriate as to the May Company.

The “loss and damage” clause in the May Company lease provides that “subject to the provisions of Section 11.3 [the ‘waiver of subrogation’ clause], tenant covenants and agrees that all personal property of tenant . . . which is on the demised premises shall be so at tenant’s sole risk (to the extent permitted by law), except for damage thereto resulting from landlord’s negligence, wilful act or default under this lease.” This clause shows an intent to hold the landlord liable for its own negligence, but makes the clause “subject to” the “waiver of subrogation” clause. This conflict also creates an issue of fact regarding the parties’ intent, and that issue of fact makes a grant of summary judgment improper.

The majority also holds in Division 3, however, that the Interested Underwriters and the London Institute, the May Company’s insurers, are non-parties to this appeal. Majority opinion at 218-219. Appellee concedes that this is incorrect, and I would hold that summary judgment was inappropriate as to them for the reasons stated above and in Division 3, infra.

2. I also agree with the majority’s disposition of Case Nos. A94A2583 and A94A2590, dealing with the Argus and Finish Line leases. Summary judgment was improper in these cases because the trial court appears to have mistakenly inferred an intent to shift the risk of fire loss to insurance; it appears to have made that inference from the lease requirement that the tenants purchase liability insurance. It also appears from the record, however, that the trial court was under the same misapprehension as to most of the leases.

3. I dissent as to Division 1 of the majority opinion.

(a) OCGA § 13-8-2 (b) provides in pertinent part that, as a matter of public policy, any provision in an agreement relating to the construction or maintenance of a building that purports to indemnify the promisee for damages resulting from the promisee’s sole negligence is unenforceable. However, it has long been the rule in Georgia that “ ‘where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.’ [Cits.]” Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (262 SE2d 794) (1980).

Until recently, cases interpreting OCGA § 13-8-2 (b), as applied to leases, inferred the intent “to look solely to the insurance” only where the purchase of such insurance was required under a lease. In Glazer, a majority of this court held that an explicit “waiver of subrogation” clause will usually suffice to show such an intent. Although I dissented in Glazer, I recognize that the rationale in Glazer must be applied, if applicable, in this case. Despite the presence of “waiver of subrogation” clauses, it is apparent to me that several of the leases in this case not only do not evince an intent to look solely to insurance to cover certain losses, they fairly demonstrate the parties’ intent to limit the application of the “waiver of subrogation” clause. For that reason, I cannot agree with the majority that any of these cases is controlled by the holding in Glazer.

(b) All of these leases have a “loss and damage” clause as well as a “waiver of subrogation” clause. In four leases, the form “loss and damage” clause is intact. Its language holds the landlord harmless from liability based on claims of the tenant for damage to the tenant’s property, including subrogation claims by the tenant’s insurance carrier, “unless such damage shall be caused by the willful act or gross neglect of landlord.” (Emphasis supplied.) The language in these three leases appears to me to except damage caused by wilful acts or gross neglect of the landlord from the operation of the waiver of subrogation clause. A question of fact remains for jury determination whether the damages sought here were the result of such “gross neglect.” I therefore cannot agree that summary judgment was appropriate.

(c) Certain other leases have typewritten phrases interlined into the form “loss and damage” clause. In the Mens Wear lease, for instance, typewritten language was inserted into the first sentence, so that it now reads: “Landlord shall not except through its own negligence or the negligence of its employees, agents or assigns, be liable for any damage to property of tenant or of others located on the premises. . . .” In the Shoe Secrets lease, a sentence was added at the end of the “loss and damage” clause. The sentence reads as follows: “The foregoing to the contrary notwithstanding, landlord shall not be relieved of liability in the event of loss or damage caused by the acts of negligence of the landlord. 8.02 (a) — See 6 on rider.” Number 6 on the rider is an entirely new “waiver of subrogation” clause that appears to waive subrogation only as to the insurance the lease requires the tenant to purchase — i.e., liability insurance and plate glass insurance. These insertions create a conflict between the “loss and damage” clause and the form “waiver of subrogation” clauses, and that conflict undermines the inference that the parties intended to exculpate the landlord from liability for its own negligence and shift the risk of loss to insurance. We may not consider the form “waiver of subrogation” clauses in isolation; we must endeavor to construe these leases as a whole, and we must give them constructions that will honor all their parts and the intent of the parties. OCGA § 13-2-2 (4); see Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330 (364 SE2d 84) (1987). This is particularly true in cases where typewritten provisions have been inserted into form leases. In such cases, the typewritten provisions control over the preprinted language. OCGA § 13-2-2 (7); Ft. Oglethorpe Assoc. v. Hails Constr. Co., 196 Ga. App. 663, 664 (2) (396 SE2d 585) (1990). In these cases, it is at least true that a genuine issue of material fact exists regarding whether the form “waiver of subrogation” clause was intended to control, or whether the typewritten provisions holding the landlord liable for its own negligence was intended to limit the waiver of subrogation for claims involving the landlord’s negligence. In my view, summary judgment was therefore inappropriate as to these leases as well.

Decided February 28, 1995

Reconsideration denied March 31, 1995

McPhail & Marmur, Jon B. McPhail, Sari B. Marmur, for appellants.

Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, for appellees.

       The two fires were caused by allegedly faulty neon signs. The repair and maintenance of these signs were the tenant’s contractual responsibility. Consequently, the dissent errs when it assumes that the failure of the landlord to perform gratuitously the tenant’s contractual responsibilities for repair and maintenance is any evidence of “ ‘the willful act or gross neglect of [the] landlord,’ ” as used in the “loss and damage” clause.


author:
Pope, Presiding Judge.
      Beasley, Chief Judge, Smith, Judge, McMurray, Presiding Judge,
      Ruffin, Judge,

text:
    A94A2670.
    THE STATE v. DAVIS et al.
    (457 SE2d 194)
   Pope, Presiding Judge.

Defendants Roy Bradley Davis and Terri Lynn Davis are charged by indictment with violations of the Georgia Controlled Substances Act, manufacture of marijuana and possession of more than one ounce of marijuana. The State appeals from the trial court’s grant of defendants’ motion to suppress evidence discovered pursuant to the execution of a search warrant. The entire record in regard to the issues on appeal consists of the affidavit submitted in support of the application for issuance of the search warrant.

“In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [the Georgia Supreme C]ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . . Under that analysis, (t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. (Cit.) Gary [v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992)].” (Punctuation omitted.) Munson v. State, 211 Ga. App. 80, 81 (438 SE2d 123) (1993).

The affidavit in this case stated that the affiant was contacted by a concerned citizen, within the past 24 hours, who had been in defendant Roy Davis’s residence within the previous week. The concerned citizen stated that while in Davis’s residence he observed 30 to 35 growing marijuana plants. This concerned citizen also stated that he knew Davis and that Davis sold marijuana from the above residence. The concerned citizen advised the affiant that he knew what marijuana looked like and that what he saw in Davis’s residence was marijuana. The affiant specifically stated that the concerned citizen is in good standing in the community and owns his own business. The affiant also described the concerned citizen as a Glynn County property owner who had nothing to gain by providing information about Davis. The concerned citizen provided the affiant with a description of Davis and the property in question, both of which the affiant determined to be correct. The affiant contacted the Glynn County Sheriff, who informed the affiant that the sheriff had received information, from a reliable source known to the sheriff, that Davis was selling marijuana out of his residence. The affiant also checked the Glynn County Police Department records wherein he found a file on Davis, which confirmed Davis’s address.

In his dissent, Presiding Judge McMurray cites Eaton v. State, 210 Ga. App. 273, 275 (435 SE2d 756) (1993) in support of the conclusion that the unidentified informant in this case was no more than a mere anonymous tipster. Eaton, however, is distinguishable from the case before us in that the affiant in Eaton specifically testified at the motion to suppress hearing that he did not know the informant and that the sole basis for his characterization of the informant as a concerned citizen was what the informant had told the affiant on the phone. Id. Here no such testimony exists, and the language of the affidavit clearly demonstrates that the affiant in this case had a personal familiarity with the unidentified informant thereby justifying the affiant’s description of said informant as a “concerned citizen.” This personal familiarity is demonstrated by the fact the affiant specifically stated that the concerned citizen is in good standing in the community; owns his own business; and owns property in Glynn County. The affidavit does not indicate that such information was merely provided to the affiant by the unidentified informant and thus does not bring into question the accuracy of such information.

“This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. Furthermore, where, as here, other investigation supports the information of the informant, this can be considered as a part of the reliable basis for the finding of probable cause.” (Citations omitted.) Whitten v. State, 174 Ga. App. 867, 868 (331 SE2d 912) (1985). Considered in its entirety, rather than piecemeal, the affidavit also provides corroboration of the information provided by the concerned citizen. This is evidenced by the affiant’s statement that he not only verified Davis’s address, but that he also contacted the Glynn County Sheriff’s Department and was told by the sheriff that another concerned citizen, known to be reliable, had stated that Davis was selling marijuana out of his residence.

Consequently, given the informant’s status as a concerned citizen, the magistrate correctly concluded that the information included in the affidavit, viewed as a whole, provided a sufficient basis for a finding that probable cause existed for the issuance of a warrant. This is especially true in light of the fact that “[a] grudging or negative attitude by reviewing courts toward warrants, is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. . . . Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citation and punctuation omitted.) Munson v. State, supra, 211 Ga. App. at 83; see Mincey v. State, 180 Ga. App. 898, 900 (350 SE2d 852) (1986); see also Futch v. State, 178 Ga. App. 115 (342 SE2d 493) (1986). Furthermore, “there exists a presumption of validity regarding an affidavit supporting a search warrant. [Cit.]” Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989). The challenger of a search warrant has the burden of proving its invalidity. OCGA § 17-5-30 (a); State v. Slaughter, 252 Ga. 435, 437 (315 SE2d 865) (1984). In this case, defendants did not meet their burden. Accordingly, we hold that the trial court improperly granted defendants’ motion to suppress.

Judgment reversed.

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

Beasley, Chief Judge,

concurring specially.

I agree that the affidavit contains sufficient indicia to categorize the informant as a concerned citizen. As I read in context the description of the informant who “contacted” affiant, a GBI agent, within 24 hours before preparation of the affidavit, it appears to be based on the affiant’s personal knowledge of the informant. In contrast, except where it was obvious that the information was related by the informant (such as that the informant was in the residence within the past week), the affiant stated that the informant “advised” him of specified information. Thereafter the affiant described what he knew or did, being careful to say what the sheriff “advised.”

The indicia of reliability of the informant are set forth directly, not as having been advised by anyone, and the affiant swore or affirmed that “all of the information contained in [the] Affidavit . . . [was] true to the best of [his] knowledge and belief.” It appears from the handwriting that before the oath was administered, the magistrate added other facts related to her by affiant, including that in the affiant’s opinion, what the informant described to him fit the description of growing marijuana.

Thus, based on the record before us, the magistrate had before her an officer who vouched for the informant as a person of good standing in the community, a business owner, a local property owner, a person who the affiant verified was familiar with the property to be searched, the suspect, and what growing marijuana looks like. There is no countervailing evidence, as there was in Eaton v. State, 210 Ga. App. 273, 275 (435 SE2d 756) (1993), with respect to the affiant’s knowledge of the informant. As stated by the majority, the challenger of a search warrant must prove its invalidity, OCGA § 17-5-30 (a) (2); State v. Slaughter, 252 Ga. 435, 437 (315 SE2d 865) (1984), and “there exists a presumption of validity regarding an affidavit supporting a search warrant. [Cit.]” Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

The defendants in this case did not meet their burden, as I cannot conclude as a matter of law that the magistrate erred in finding probable cause to believe that marijuana was growing or at least was present on the premises sought to be searched. In the totality of the circumstances here, the warrant is entitled to the preference accorded by law, and its issuance did not contravene federal constitutional law. Munson v. State, 211 Ga. App. 80, 83 (438 SE2d 123) (1993), and cases cited therein; Futch v. State, 178 Ga. App. 115 (342 SE2d 493) (1986), and cases cited therein.

The Supreme Court of Georgia has cautioned attesting officers and magistrates to spell out in the affidavits the maximum indications of reliability of the informant and of the information. State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984); Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). We have reiterated it. See, e.g., Eaton v. State, 210 Ga. App. 273, supra.

Affidavits should be clear and complete, reflecting all of the articulable facts upon which the affidavit relies for probable cause (except identity of informant if need be). The affidavit must communicate, to those who are not present when the affidavit is presented but must judge its validity ultimately, not only the facts but the source thereof and the basis for accepting those facts as true from the source. If that were done, there would be fewer problems of facial validity which jeopardize searches because of what is unknown or unclear to the reviewer but possibly known and clear to the affiant and magistrate.

Smith, Judge,

concurring specially.

While I concur with the majority’s analysis, I write specially to point out the potential dangers of the approach advocated in Judge Ruffin’s dissent. If specificity is required to the point of divulging such matters as when and why the informant was in the suspect’s residence, as well as details of the informant’s good standing in the community, business connections, and property ownership, there is a substantial risk that an accused or other interested persons may identify and endanger the “confidential” concerned citizen, particularly in a small community.

There is far from “complete lack of specificity” in this affidavit, and it is by no means a general warrant. Rather, it amply satisfies the requirement of a substantial basis for a “practical common-sense decision” by the magistrate under Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) and State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

McMurray, Presiding Judge,

dissenting.

“ ‘In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by (the Georgia Supreme) (C)ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In addition, (the Georgia Supreme) (C)ourt has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability.’ (Citations, punctuation and emphasis omitted.) Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992).” Eaton v. State, 210 Ga. App. 273 (1) (435 SE2d 756).

The majority concludes that the person from whom the affiant received information is a concerned citizen rather than an anonymous tipster because of the affiant’s descriptions of the informant as a property and business owner in good standing in the community and with nothing to gain by providing information. Uncorroborated information from an anonymous tipster is not alone sufficient to base a finding of probable cause. McRae v. State, 204 Ga. App. 234, 235 (1) (418 SE2d 796). In my view the affidavit failed to establish the reliability and veracity of the unidentified informant. I find no support for the affiant’s characterization of the tipster as a “concerned citizen,” or for the majority’s conclusion that the affidavit demonstrates “personal familiarity,” and consequently find no error in the grant of defendants’ motion to suppress evidence. Therefore, I respectfully dissent.

In the remarkably similar case of Eaton v. State, 210 Ga. App. 273 (1), supra, the informant was described by the attesting officer as “a ‘concerned citizen’ who had never previously given such information to the police, is mature, regularly employed and without a criminal record.” Nonetheless, in Eaton, the officer admitted at the motion to suppress hearing that he did not know the identity of the informant and that the sole basis of the description of the informant was what the informant himself had told the officer. In the case sub judice there is no evidence concerning the source of the officer’s conclusory statement that the informant was a concerned citizen. Yet Eaton should be seen as holding that such descriptions of informants as are present there and in the case sub judice must be viewed as conclusory when the affidavit contains no information concerning the veracity of the informants. Eaton may not be distinguished by the absence of an admission from the officer in the case sub judice since the test of the sufficiency of the affidavit relates to the time of the issuance of the warrant and does not embrace information later revealed at a motion to suppress hearing. The admissions of the officer in Eaton serve only to highlight the errors which may result from reliance on conclusory affidavits. This court held in Eaton that “no facts were placed before the magistrate from which she could have found that any of the informants were concerned citizens.” In my view, this statement is equally correct in reference to the case sub judice.

Ruffin, Judge,

dissenting.

This case presents another instance of the on-going saga regarding the validity of an affidavit supporting a search warrant whereby the court is to apply the “totality of the circumstances” analysis consistent with Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) and adopted by our Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). Interestingly, but not unusually, both the majority and the dissent of Presiding Judge McMurrary utilize a “common sense” approach with divergent results. While I have no disagreement with the analysis of either, I believe the majority portends rather precarious consequences, hence I write separately.

Initially, I believe it is appropriate to clarify the duty of the reviewing court. That duty “is simply to ensure that the magistrate has a substantial basis for concluding that probable cause existed.” Davis v. State, 214 Ga. App. 36, 37 (447 SE2d 68) (1994). Moreover, since our Supreme Court “has cautioned attesting officers and magistrates to ‘make every effort to see that supporting affidavits reflect the maximum indication of reliability[,] . . .’ [cit.]” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992), any analysis by the reviewing court should reflect this admonition. Further, reviewing courts must be ever mindful “that Gates [is to] be considered as the outer limit of probable cause.” Stephens, supra at 184.

In determining what was before the magistrate in this case, even a cursory reading of the affidavit reveals a pattern of verbiage couched in conclusions. “Affiant was contacted by a concerned citizen. . . . This concerned citizen was in the [residence]. . . . [T]he concerned citizen observed 30 to 35 marijuana plants. . . . This concerned citizen advises that it knows Roy Davis sells marijuana. . . . The concerned citizen . . . knows what marijuana looks like. . . . This concerned citizen is in good standing in the community, [the owner of] its own business and . . . several pieces of property. . . . The concerned citizen has nothing to gain. ...”

If the “totality of the circumstances” doctrine means anything, it means scrutinizing the affidavit for what it does not contain as well as for what it does contain. What it does not contain are the specifics which could guide a neutral and detached magistrate; the specifics which remove the guesswork from consideration; the specifics which give life and vitality to an affidavit inundated with conclusions. In this case, the affidavit should have included such specifics as how and why the affiant was contacted by the informant; under what circumstances the informant was in Davis’s residence; how did the informant recognize marijuana and how did he or she happen to observe the plants growing in Davis’s residence; how did the informant know that Davis was selling marijuana from his residence; how did the affiant know the informant was a concerned citizen in good standing who owned a business and other property. These are the kinds of specifics required for an affidavit supporting a search warrant, especially in a case like this where there is absolutely no indication the affiant ever met the informant in person or had more than a single conversation with him. See Davis, supra at 37.

Decided March 17, 1995

Reconsideration denied March 31, 1995

W. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellant.

Lane & Crowe, Grayson P. Lane, for appellees.

Moreover, the affidavit contains verbiage which is susceptible to other, less favorable inferences than those relied on by the majority. Could the informant’s familiarity with Davis have been the result of some common criminal enterprise? Is property and business ownership within the exclusive domain of upstanding, honest citizens? While “ ‘[t]his court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information[,] . . . before an anonymous tipster can be elevated to the status of concerned citizen, thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the magistrate facts from which it can be concluded that the anonymous tipster is, in fact, a concerned citizen.’ ” Id. at 36.

The complete lack of specificity in the affidavit relegated the affidavit and the accompanying warrant to that of a general warrant, proscribed by the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution. Accordingly, I would affirm the trial court.

I am authorized to state that Judges Johnson and Blackburn join in this dissent.


author: Smith, Judge. McMurray, Presiding Judge, Blackburn, Judge,

text:
    A94A1903.
    DEPARTMENT OF TRANSPORTATION v. TAUNTON.
    (457 SE2d 570)
   Smith, Judge.

John Daniel Taunton died from injuries he sustained in an automobile collision on April 11, 1993. Appellee Raymond Taunton filed a complaint for the wrongful death of his son on December 1, 1993. Appellant Georgia Department of Transportation (“DOT”) filed its answer, which included several defenses. Taunton subsequently filed a motion to strike three of the DOT’s defenses, which were based on the expert affidavit requirement, OCGA § 9-11-9.1, exceptions to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., and the “public duty doctrine,” respectively. The motion was granted as to those defenses based on OCGA § 9-11-9.1 and the public duty doctrine, but denied as to the DOT’s defense under the Tort Claims Act. The order was certified for interlocutory review, the DOT’s application was granted by this court, and this appeal followed.

OCGA § 9-11-12 (f) provides that “[u]pon motion made by a party within 30 days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Generally, “[s]uch motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation. [Cit.]” Medlin v. Carpenter, 174 Ga. App. 50, 55 (10) (329 SE2d 159) (1985). Defensive pleadings in particular “are to be liberally construed in favor of the pleader, and a motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense.” Wellbaum v. Murphy, 122 Ga. App. 654, 655 (178 SE2d 690) (1970).

Moreover, although there is very little authority in Georgia generally on what constitutes an “insufficient” defense under OCGA § 9-11-12 (f), it would appear obvious that the procedure should not be used to dispose of weighty matters of law. In this regard, we find particularly persuasive the view taken in Resolution Trust Corp. v. Youngblood, 807 FSupp. 765 (N. D. Ga. 1992), and cases cited therein as to Rule 12 (f) of the Federal Rules of Civil Procedure. “Where a defense is insufficient as a matter of law, it should be stricken to eliminate the unnecessary delay and expense of litigating it. However, motions to strike cannot be used to determine disputed fact questions, nor can they be used to decide disputed and substantial questions of law, particularly where there is no showing of prejudice to the movant. Even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial questions of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits. To do otherwise would be to run the risk of offering an advisory opinion on an abstract and hypothetical set of facts.” (Citations and punctuation omitted.) Id. at 769.

We examine the “sufficiency” of each of the DOT’s stricken defenses under these formidable standards.

1. DOT’s third defense states: “Plaintiff failed to file an expert affidavit pursuant to OCGA § 9-11-9.1. Therefore, to the extent Plaintiff alleges that DOT engaged in professional malpractice, Plaintiff’s complaint should be dismissed for failure to state a claim.” Taunton is asserting that DOT should have installed advance warning signs, rumble strips, a crossroad sign, flashing lights, etc., none of which previously existed at the intersection.

The DOT argues that such matters are for professional traffic engineers to determine and that any alleged shortcoming in that decisionmaking process would sound in professional negligence. “The process of building and designing roads requires engineering services which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1. [Cits.]” Dept. of Transp. v. Gilmore, 209 Ga. App. 656 (434 SE2d 114) (1993). Under the circumstances, we cannot say that “it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense.” Wellbaum v. Murphy, supra. The trial court erred in striking this defense.

2. The question of whether the DOT’s defense based on the “public duty” doctrine established in City of Rome v. Jordan, 263 Ga. 26, 27 (426 SE2d 861) (1993), should be limited to cases where third party negligence is involved is indisputedly a “substantial question of law.” Youngblood, supra. We do not reach the substance of this weighty matter given the lack of factual development of the record at this stage of the case. We merely hold that a motion to strike under OCGA § 9-11-12 (f) was not the appropriate vehicle to dispose of the DOT’s “public duty” defense at this juncture.

Defenses that are clearly insufficient based on established law should be readily stricken even “upon the court’s own initiative,” OCGA § 9-11-12 (f). However, we find the importance of further developing the record on this particular issue to outweigh consideration of the delay and expense to Taunton necessitated by the DOT’s reliance on City of Rome v. Jordan, supra.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

“Upon motion made by a party within thirty days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. OCGA § 9-11-12 (f). Such motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation. [Cit.] In particular, a motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense. [Cits.]” Medlin v. Carpenter, 174 Ga. App. 50, 55 (10) (329 SE2d 159).

Defendant’s third defense and the first at issue in this appeal states that: “Plaintiff failed to file an expert affidavit pursuant to OCGA § 9-11-9.1. Therefore, to the extent Plaintiff alleges that DOT engaged in professional malpractice, Plaintiff’s Complaint should be dismissed for failure to state a claim.” I would hold that any issue concerning the striking of this defense has been rendered moot by plaintiff’s “formal admission in judicio,” contained in his brief to this court, that “the complaint is not based on professional malpractice.” Whether plaintiff’s concession is technically an admission or a waiver, the substance is the same. Any ambiguities in the wording of the complaint relevant to the issues at hand are removed. Since it is thereby settled that the present complaint in this action does not state a claim based on professional malpractice, the defense at issue has no relevance to any claim pending in the case and no purpose is served by reversing the order striking the defense. Nonetheless, the majority has concluded that this defense should not have been stricken because under some conceivable sets of circumstances it could be a proper response to the allegations of plaintiffs complaint.

In my view, this is a purposeless reversal which will only facilitate a wasteful expenditure of the resources of the parties and of the lower court. The plaintiff has conceded all that defendant could ever hope to gain from the defense at issue. Defendant sought the dismissal of plaintiff’s complaint to the extent it states a claim for professional malpractice and plaintiff has responded with a formal concession which in effect says “fine, O.K., I never intended to assert professional negligence anyway.” After plaintiff’s concession, there is nothing for the defense at issue to act upon, it is irrelevant and immaterial.

The remaining defense at issue states that: “This action is barred by the public duty doctrine. DOT owed no specific duty to Plaintiff beyond that which is owed to the public generally.” This defense would invoke the public duty doctrine stated in City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861). This doctrine as created by the Supreme Court involves only failures of governmental entities to protect citizens from third party wrongdoers. Accord City of Lawrenceville v. Macko, 211 Ga. App. 312, 314 (2) (439 SE2d 95). Defendant has failed to submit any authority for expansion of the public duty doctrine to circumstances such as those in the case sub judice. Therefore, I would hold that the superior court did not err in striking this defense since it appears that the matter stricken can have no possible bearing upon the subject matter of the litigation. Medlin v. Carpenter, 174 Ga. App. 50, 55 (10), supra. By effectively eviscerating the statutory provision for motions to strike, the majority imposes upon plaintiff the very delay and expense which this provision is intended to prevent.

Decided March 31, 1995

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Susan J. Levy, for appellant.

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., for appellee.

As I would affirm the superior court’s grant of plaintiff’s motion to strike these two defenses, I respectfully dissent.

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

Blackburn, Judge,

dissenting.

I join in Presiding Judge McMurray’s dissent, and I write specially to emphasize the potential misuse of the majority’s opinion.

Control of discovery is within the trial court’s discretion and authority. DOT had the opportunity to request an extension of time to file a response to the plaintiff’s motion to strike, so that discovery could be conducted. Such a request would have been within the trial court’s discretion to grant; however no such request was made. Therefore, the DOT proceeded at its peril. The majority opinion adopts the burden of reviewing each case to determine if sufficient discovery has been conducted on the issue presented. This position requires that this court second guess the attorneys and parties in the underlying case, i.e., perhaps there was a tactical reason why the party did not attempt to proceed with discovery. This is not, and should not be, a duty of this court. Where insufficient evidence is presented to this court to make a determination, the party with the burden of proof must lose.