author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A2744.
    PIGGLY WIGGLY SOUTHERN, INC. v. McCOOK et al.
    (454 SE2d 203)
   Birdsong, Presiding Judge.

This discretionary appeal was granted to consider the contention of Piggly Wiggly Southern, Inc. d/b/a Piggly Wiggly of Fitzgerald and Bruno’s, Inc. (collectively “Piggly Wiggly”) that the trial court erred by refusing to set aside a default judgment in favor of Annie Lou McCook, individually and as administratrix of the estate of her husband, John McCook. Piggly Wiggly contends the trial court erred by failing to exercise its inherent discretion to set aside a default judgment entered within the same term of court.

After Mr. McCook died, Mrs. McCook filed a wrongful death action against Piggly Wiggly in federal court, contending his death was caused by his fall in the Piggly Wiggly in Fitzgerald, Georgia. After Piggly Wiggly filed a timely answer denying liability, Mrs. McCook dismissed the action in federal court and refiled the case in Ben Hill County Superior Court. Piggly Wiggly was timely served, but, because of a mistake at corporate headquarters in Alabama, did not file an answer within the 30 days prescribed by law or in the 15-day grace period.

After the time expired in which Piggly Wiggly could file an answer as a matter of right, Mrs. McCook obtained a default judgment against Piggly Wiggly for $589,858.87 that was based on evidence presented on damages. Piggly Wiggly, however, did not learn of the default judgment until Mrs. McCook attempted to levy against a Piggly Wiggly store. Then, in the same term of court in which the default judgment was entered, Piggly Wiggly moved to set aside the default judgment and open the default. The motion to set aside the default judgment was based on the trial court’s inherent authority to set aside or modify a judgment within the same term of court in which the judgment was entered. Piggly Wiggly also filed the pleadings required by OCGA § 9-11-55 (b) to open a default. For the required showing of a meritorious defense, Piggly Wiggly set up the defense that Mr. McCook’s death was the result of a heart attack that caused him to fall in the store, and not a slip and fall. The trial court denied the motion to set aside and, consequently, did not consider the motion to open the default.

Piggly Wiggly contends the trial court decided the motion applied based only on the criteria set forth in OCGA § 9-11-60 (d), and refused to exercise the court’s inherent discretionary authority to set aside for meritorious reasons a judgment entered within the same term of court. Piggly Wiggly contends the trial court erred by failing to find the circumstances of this default provided a meritorious reason to set aside the default judgment, by failing to find that its defenses provided a meritorious reason to set aside the default judgment, and also by failing to find that the conduct of McCook’s attorney provided a meritorious reason to set aside the default judgment. Piggly Wiggly also contends the trial court erred, as a matter of law, by applying the standards set forth in OCGA § 9-11-60 (d) to its discretionary motion to set aside a judgment entered in the same term of court, by not exercising its discretion to set aside the default judgment for any meritorious reason, and by not allowing the presentation of evidence relevant to its meritorious defenses. Held:

1. In ruling on Piggly Wiggly’s motion, the trial court held: “OCGA 60 controls, the Official Code of Georgia 9-11-60 controls in this situation. Default may be opened after judgment and this is a post-judgment default, not a 9-11-55 (b) pre-judgment default. It’s post-judgment obviously and the motion to set aside must be based on fraud, none of which is alleged, pled or shown; accident, there’s no accident here; or mistake. There’s a mistake here. Or acts of the adverse party unmixed with the negligence or fault of the movant. The mistakes are the defendant’s mistakes in face of information that put him or should have put him on notice that time was of the essence in these circumstances, and if there were mistakes, it was due to the negligence of the defendants in this case without any fault, fraud, on the part of the plaintiffs. I’m going to let the judgment stand.” Additionally, the trial court specifically reserved the issue of Piggly Wiggly’s motion to open the default until this court determined that the judgment should have been set aside.

Considering the comments quoted above, it is apparent that the trial court believed that the default judgment could not be set aside unless the criteria of OCGA § 9-11-60 (d) were satisfied. Thus, the trial court did not consider whether to exercise its inherent power to set aside the default judgment which was entered within the same term of court as Piggly Wiggly’s motion to set aside the judgment. “It has always been the rule in this State that where a judgment is not based on the verdict of a jury, but is the act of the judge, it is in the breast of the court during the term in which it is rendered, and in the exercise of a sound discretion, the judge may set it aside.” Martin v. GMC, 226 Ga. 860, 862 (178 SE2d 183). Thus, whatever limitations may exist in OCGA § 9-11-60 (d) for post-term motions to set aside, “[a] trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his discretion. This inherent power of the trial court was not changed by passage of the Civil Practice Act.” (Citation omitted.) Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278). The judgment of the trial court denying the motion to set aside must be reversed and the case remanded so that the court properly may exercise its discretion. Johnson v. Hooks, 156 Ga. App. 257, 258 (274 SE2d 666).

2. Because of our disposition in Division 1, we need not address Piggly Wiggly’s other enumeration of error.

Judgment reversed and remanded.

Ruffin, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I agree with the judgment of the majority opinion and with its analysis. I write specially to stress that this case is remanded for the trial court’s consideration of whether or not to grant Piggly Wiggly’s motion to set aside the judgment brought within the same term of court in which the judgment was rendered under the court’s inherent powers. As the trial court appears to have limited its authority by the requirements of OCGA § 9-11-60 (d), the case should be remanded so that it might exercise its discretion unfettered by such limitation. Nothing in this concurrence should be construed as a comment upon the merits of Piggly Wiggly’s motion.

Decided February 16, 1995.

Alston & Bird, G. Conley Ingram, William T. Plybon, Martin, Snow, Grant & Napier, John C. Edwards, Jay C. Traynham, Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Hodges, Jr., for appellant.

Morris, Webster & Corless, F. Leonard Morris, Jr., Craig A. Webster, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A2778, A94A2779.
    CITIZENS & SOUTHERN TRUST COMPANY et al. v. HICKS; and vice versa.
    (454 SE2d 207)
   Johnson, Judge.

James E. Hicks sued the estate of his former employer for breach of the termination provisions of his employment contract. In Case No. A94A2778, Citizens & Southern Trust Company (C & S) and Richard N. Hubert, co-executors of the estate of O. C. Hubert, appeal the trial court’s judgment entered on the jury verdict awarding Hicks $179,063 under the contract and $57,160 in attorney fees and litigation costs. Hicks brings a cross-appeal in Case No. A94A2779.

The contract at issue provided for Hicks’ employment by O. C. Hubert as manager of his extensive real estate holdings for a three-year term from March 1, 1986, through February 28, 1989. O. C. Hubert died on June 2, 1986. C & S was appointed temporary administrator in August 1986, and Hicks continued to occupy his office until October 1, 1986, although he received no salary after July 22, 1986.

Case No. A94A2778

1. The co-executors of the estate contend the trial court’s denial of their motion for directed verdict on Hicks’ claim for breach of contract was error, arguing that the parties’ contract for personal services terminated as a matter of law upon the death of O. C. Hubert.

“From the very nature of a contract for the rendition of personal services to a [sole proprietorship] in its current business, where nothing is expressed to the contrary, both parties should be regarded as having by implication intended a condition dependent, on the one hand, upon the life of the employe [e], and on the other, upon the life of the [proprietorship].” (Emphasis supplied.) Griggs v. Swift, 82 Ga. 392, 395 (9 SE 1062) (1889).

Article III of the contract provides, “The Employer may terminate the Employee at any time upon giving of one year’s severance pay, including the next year’s scheduled bonus, in advance during the first year of employment. . . . Should Employer be incapacitated or be deceased and Employer’s representative terminate the Employee, said one year’s severance pay . . . shall be payable from Employer’s funds or estate.” (Emphasis supplied.) In describing the employee’s duties and providing for his supervision, the contract expressly contemplates that should O. C. Hubert be incapacitated, his son Richard N. Hubert was authorized to act as his substitute under the contract. Construing the whole contract to effect the intent of the parties, the trial court properly denied the co-executors’ motion for directed verdict. The contract’s arguable internal inconsistency as to the effect of O. C. Hubert’s death, as opposed to his incapacity, precludes the grant of a directed verdict on the breach of contract claim. Freyermuth v. Chon, 212 Ga. App. 845, 846 (443 SE2d 636) (1994).

2. C & S and Richard Hubert maintain the trial court erred in denying their motion for a directed verdict on Hicks’ claim that they breached the employment contract in bad faith and are therefore liable for attorney fees under OCGA § 13-6-11. C & S and Hubert argue their mere refusal to pay any debt owed to Hicks under the contract is insufficient to support the award of attorney fees. “OCGA § 13-6-11 provides for expenses of litigation where the defendant has acted in bad faith. . . . The statutory bad faith must have arisen out of the transaction on which the cause of action is predicated rather than defendant’s conduct in defending the case. Bad faith other than mere refusal to pay a just debt may authorize the jury to award attorney fees, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. . . . [T]here may be bad faith in carrying out the provisions of the contract sufficient to support the award.” (Citations and punctuation omitted.) McDonald v. Winn, 194 Ga. App. 459, 460 (1) (390 SE2d 890) (1990).

Contrary to the co-executors’ argument, the fact that they breached the employment contract by refusing to pay Hicks does not automatically mandate that Hicks cannot recover attorney fees. C & S and Hubert can be held liable for attorney fees if they committed the breach in bad faith. In that case, the bad faith would arise out of the transaction supporting Hicks’ cause of action, the contract breach, rather than merely out of the co-executors’ defense of the action. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 111-116 (2) (115 SE2d 852) (1960). Hicks presented some evidence that the co-executors did not merely refuse to pay him in good faith. Compare Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 236 (2) (381 SE2d 406) (1989); Ostrom v. Kapetanakos, 185 Ga. App. 728, 730 (365 SE2d 849) (1988). The jury could have found from the evidence that the co-executors’ refusal to pay was not based on a good faith construction of the employment contract, but was an attempt to defeat the clear intent of O. C. Hubert and Hicks. The jury also could have found some evidence that the co-executors ceased paying Hicks, not because they actually believed he was not entitled to payment, but as a tactic in opposition to the filing of O. C. Hubert’s will for probáte.

“The question of attorney fees under OCGA § 13-6-11 is a question for the jury. [Cit.] The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. [Cit.]” Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990). Because there is some evidence in the instant case to support the jury’s finding that the co-executors breached the contract in bad faith, the award of attorney fees must be upheld.

3. Finally, C & S and Richard Hubert contend that the trial court erred in refusing to give their requested jury charges on impossibility of performance. Our review of the record discloses that the court’s entire charge included the defense of impossibility of performance in the context of OCGA § 53-7-9, the statute setting out the rights and duties of an estate administrator with respect to the decedent’s executory contracts. Moreover, the requested charges were not adjusted to the evidence since the employment contract at issue in this case, unlike the situation in Griggs u. Swift, supra, contains some evidence that the parties contemplated that its termination provisions would be carried out in the event of O. C. Hubert’s death.

Case No. A94A2779

4. In his cross-appeal, Hicks enumerates as error the trial court’s limiting his recovery of damages to that specified in the severance provisions of the employment contract. Hicks argues that the executors having insisted that the estate neither employed Hicks nor “terminated” his employment under the contract, the measure of damages must be the full value of the contract.

Hicks testified that he entered O. C. Hubert’s employ only after having negotiated to protect himself against his septuagenarian employer’s incapacity or death by the contract’s severance provisions. Whether the estate’s representative expressly “terminated” Hicks’ employment under the contract does not control his measure of damages for breach of the agreement. The jury having found the agreement to have been breached, Hicks’ damages are properly limited to those recoverable under the contract. See Victory Sign Indus., Ltd. v. Potter, 208 Ga. App. 570 (430 SE2d 882) (1993).

5. Hicks’ complaint that the trial court improperly ordered him to pay half of the cost of preparing the record on appeal is without merit. OCGA § 5-6-38 (b).

Decided February 17, 1995

Powell, Goldstein, Frazer & Murphy, John T. Marshall, William V. Custer IV, for appellants.

Curtis R. Boren, for appellee.

Judgments affirmed.

Beasley, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A95A0171.
    STATE PERSONNEL BOARD et al. v. ADAMS.
    (453 SE2d 821)
   Blackburn, Judge.

Upon our grant of their discretionary appeal application, the State Personnel Board (SPB), the Board of Natural Resources of the State of Georgia (Board), and the Department of Natural Resources of the State of Georgia (DNR) (referred to collectively as the State), appeal the superior court’s order directing the SPB to hear appellee Spence Adams’ appeal of the Board’s decision refusing to consider his request for waiver of mandatory retirement, pursuant to OCGA § 47-2-224.

Adams, formerly a law enforcement conservation ranger employed by DNR in a supervisory classification, was mandatorily retired at age 55 on January 31, 1993. Adams had earlier applied to the Board for waiver of mandatory retirement as authorized by OCGA § 47-2-224 (e). However, on January 8, 1993, the DNR Commissioner (Commissioner) wrote Adams to confirm that his application had been denied pursuant to department policy, based upon the advice of the Attorney General’s office, requiring that all such requests be denied.

Thereafter, Adams petitioned the Board’s administrative law judge (ALJ) for a hearing on the issue. On February 24, 1993, the Commissioner moved to dismiss on the ground that a Board-appointed ALJ lacked jurisdiction to review such a DNR policy or decision. By “Final Decision Order on Motion to Dismiss,” filed March 19, 1993, the ALJ granted the Commissioner’s motion to dismiss indicating that “review may be available in some other forum, see, e.g., OCGA § 45-20-9 (a) (State Personnel Board review of adverse personnel actions), but it is not available in this forum.” On April 8, 1993, Adams appealed to the SPB. From the denial of such appeal, Adams appealed to the superior court under the provisions of OCGA §§ 45-20-8 and 45-20-9.

The superior court’s order, filed on July 27, 1993, reversed the decision of the SPB and remanded with direction that it hear Adams’ appeal “in accordance with this Order and the findings of law made herein.” In this regard, the superior court concluded, inter alia, that the Board was required to consider Adams’ application for waiver of mandatory retirement under OCGA § 47-2-224; that any policy directing that all such applications for waiver of mandatory retirement be denied was contrary to the plain meaning of such statute; that the failure to consider Adams’ application for waiver of mandatory retirement adversely affected his employment status; and that “[w]hen a permanent status employee’s employment status is adversely affected, an opportunity to file an appeal and request must be provided.”

1. The State contends that the superior court erred by finding it had jurisdiction to hear Adams’ appeal.

Final decisions or orders of the SPB may be appealed in the superior court of the county of the aggrieved employee’s employment by filing a petition in the court within 30 days of the issuance of the decision or order. OCGA § 45-20-9 (h) and (i). There is no claim in the record before us that the superior court lacked jurisdiction over Adams’ person. Adams timely filed his petition for appeal of an SPB determination that it lacked jurisdiction “over issues of retirement.” We conclude that the SPB’s determination in these circumstances was final in that it denied Adams an ability to obtain any hearing before the SPB.

Thus having jurisdiction to hear and decide the case, the superior court was authorized to render a final decision and issue an order thereon. In this regard OCGA § 45-20-9 (m) pertinently provides that “[t]he court may affirm the decision or order of the board or remand the case for further proceedings. The court may reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced. ...” Accordingly, this assignment of error is without merit.

2. The State next asserts that the trial court erred by finding as a matter of law that Adams’ application for waiver of mandatory retirement age adversely affected his employment status. Citing OCGA §§ 45-20-9 (a) and 45-20-8, the State argues that the intent of the General Assembly was to limit its jurisdiction to adverse actions against employees in the nature of dismissal, demotion, and reduction in pay. In this regard, the State avers that its rules and regulations define an adverse personnel action as one taken by an appointing authority for disciplinary reasons alone. Further, the State contends that while the word “retirement” is not used in its disciplinary rules, it is used twice in its rule forbidding unlawful discrimination on the basis of race, creed, gender, national origin, and age — a rule which states that there shall be no appeal or hearing from a decision directing mandatory retirement at an age lower than 70 directed by statute.

Decided February 17, 1995

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Alan Gantzhorn, Assistant Attorney General, for appellants.

Sutton & Associates, Berrien L. Sutton, George A. Bessonette, for appellee.

OCGA § 47-2-224 (e) pertinently provides that “[t]he Board of Natural Resources, in its discretion, may waive the mandatory retirement ages specified in this Code section for conservation rangers in a supervisory classification upon application of such members . . . , provided that such waivers to members in a supervisory classification shall not be extended to such members who have reached 60 years of age.” (Emphasis supplied.) Further, the right to make application for waiver of mandatory retirement is limited to “conservation ranger [s] in a supervisory classification whose supervisory duties are not all or predominately in the field of law enforcement.” OCGA § 47-2-224 (f).

“When construing a statute this court must look to the plain meaning of words and if there is only one reasonable construction, the statute must be construed in that manner. [Cit.]” Davis v. State, 213 Ga. App. 212, 213 (2) (444 SE2d 142) (1994). That Adams was a conservation ranger in a supervisory classification having law enforcement responsibilities is uncontroverted in the record before us.

As a result, we conclude, as the superior court did, that Adams was among those authorized to make application for waiver of mandatory retirement. To the extent the plain meaning of OCGA § 47-2-224 provided Adams a right to apply for waiver of mandatory retirement, it imposed a duty on the Board to “consider” his application, whether favorably or unfavorably. We conclude that the Board’s refusal to consider such application, forcing Adams’ mandatory retirement without benefit of a right conferred by statute, adversely affected Adams’ employment status within the meaning of OCGA § 45-20-8 (a). Accordingly, jurisdiction over the subject matter here lies in the SPB. See OCGA §§ 45-20-8 (a) and 45-20-9 (a).

3. In light of our disposition in Divisions 1 and 2, we do not reach the State’s remaining claims of error. The case is hereby remanded to the SPB for further disposition not inconsistent herewith.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A94A2021.
    JIM ANDERSON & COMPANY v. PARTRAINING CORPORATION.
    (454 SE2d 210)
   Smith, Judge.

ParTraining Corporation brought suit against its insurance agent, Jim Anderson & Company (Anderson), seeking to recover damages resulting from Anderson’s alleged failure to procure requested business interruption insurance coverage. The trial court denied Anderson’s motion for summary judgment but granted a certificate of immediate review. We granted this interlocutory appeal. After reviewing the entire record, we affirm the trial court’s denial of Anderson’s motion for summary judgment.

ParTraining produces and sells instructional materials for use by corporations in teaching business skills to their employees. Jim Georges is the founder, president, and major shareholder in ParTraining. Georges also formed a subchapter S corporation, Abilitech, Inc., which owns the building in which ParTraining operates. Georges had placed the two businesses’ insurance coverages through Anderson for several years, and the coverage was reviewed and renewed on a yearly basis. Each business was covered under a separate policy, and Georges testified on his deposition that upon receiving the new policies each year it was his practice to read them. He also testified he requested business interruption coverage.

In June 1992, the building in which ParTraining operated was damaged by fire. After the loss, Georges sought advice from Anderson in regard to making a claim for the loss and learned for the first time that although Abilitech’s policy provided coverage for business interruption, the policy issued to ParTraining did not. He testified that Max Clark, a supervisor at Anderson who assisted him with the claim, was as surprised as he was to learn of the omission. Anderson refused Georges’ request to compensate ParTraining for the uncovered loss, and ParTraining filed this action, stating claims against Anderson for negligent failure to provide requested coverage and breach of contract. ParTraining also sought attorney fees under OCGA § 13-6-11.

1. Anderson contends it was entitled to summary judgment on the negligence claim.

“In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974), the Supreme Court recognized that under appropriate circumstances the broker or agent who held himself out as an expert in the field of insurance and who performed such expert services on behalf of an insured could be liable ex delicto for his negligence in failing to perform those services adequately. . . . The Wright exception will apply where the prospective insured must rely on the expertise of the agent to identify and procure the correct amount or type of insurance.” (Citation and punctuation omitted.) Greene v. Lilburn Ins. Agency, 191 Ga. App. 829, 830 (383 SE2d 194) (1989).

The evidence shows that an issue of material fact exists regarding whether ParTraining, through Georges, relied on Anderson to provide expertise or exercise discretion in seeking to procure business interruption coverage. Because Georges had been doing business with Anderson or its predecessor for approximately six years prior to this incident, it is apparent that Anderson was aware of the nature of Abilitech and ParTraining’s business. The record shows that when Georges renewed his businesses’ insurance policies each year, Anderson requested financial information so that it could determine the amounts and types of insurance needed and assess the appropriate premiums. Anderson had discretion to adjust the policies and even to change insurance policies without even informing Georges; he in fact did this on at least one occasion. Although Georges admits that he told Anderson he wanted business interruption insurance, it is unclear whether Georges did so because Anderson first recommended such coverage; it is likewise unclear whether Georges relied on Anderson’s expertise to determine the appropriate amount, term, and scope of the coverage. Summary judgment was therefore inappropriate as to this issue.

2. Anderson also contends it was entitled to summary judgment on the contract claim. The general rule is that an insured has a duty to read and examine an insurance policy to determine whether the coverage requested was procured. Greene, supra. Under Wright, supra, an insured is relieved of the responsibility to examine the policy in minute detail. The duty remains, however, where an examination of the policy would have made it “readily apparent” that the coverage requested was not issued. Wright, supra, 233 Ga. at 271.

Georges testified that although it was his general practice to read the renewal policies when he received them, he did not make his own examination of the policy issued to ParTraining to determine whether he was covered for business interruption. Nevertheless, contrary to Anderson’s argument, we agree with ParTraining that summary judgment was properly denied on this issue. The circumstances in this case are similar to those in Atlanta Women’s Club v. Washburne, 207 Ga. App. 3 (427 SE2d 18) (1992), because a genuine issue of material fact remains as to whether omission of the requested coverage would have been “readily apparent” even had Georges read the policy carefully; the extent of the policy’s coverage and the omission of business interruption coverage is not so clear as to remove this issue from jury consideration.

The policy’s “coverage summary” points out that only the coverages listed are provided; the coverages listed do not include business interruption, nor is a coverage part listed for business interruption. The “schedule of coverages” provides that “[i]n return for the payment of the premium, and subject to all the terms of this policy, insurance is provided to you ... for the indicated coverages and for which a coverage part is attached.”

Decided February 20, 1995.

Michael T. Thornton, Linda M. FitzGerald, for appellant.

Drew, Eckl & Farnham, H. Michael Bagley, Julie Y. John, Phillip C. Griffeth, for appellee.

Although it was misguided, Georges’ belief that business interruption insurance was provided had some basis in the policy’s language. Coverage for business interruption was not provided, but a section of the policy sets forth certain exclusions applicable to such coverage. Georges testified he believed ParTraining had coverage for business interruption because “why would you exclude some portion of business income unless there was something to exclude it from?”

The policy must be read as a layman would read it and not as it might be analyzed by an insurance expert. Atlanta Women’s Club, supra, 207 Ga. App. at 5. Reading it in that manner, we find that a jury issue exists regarding whether the absence of business interruption coverage was “readily apparent.” The trial court did not err in denying Anderson’s motion for summary judgment on the contract claim.

3. Our holding that genuine issues of material fact remain for jury resolution necessarily also precludes summary judgment in favor of Anderson on the issue of ParTraining’s entitlement to litigation expenses under OCGA § 13-6-11. Moreover, “questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide. [Cits.]” Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579, 581 (394 SE2d 367) (1990).

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2306.
    BREWTON v. THE STATE.
    (454 SE2d 558)
   Birdsong, Presiding Judge.

Appellant Katherine A. Brewton was charged with one count of aggravated assault and two counts of cruelty to children; she was found not guilty of aggravated assault and of one count of cruelty to children, but guilty of reckless conduct (as a lesser included offense of aggravated assault) and of one count of cruelty to children. She appeals from the judgment of conviction and enumerates seven errors. Held:

1. The inconsistent verdict rule has been abolished in Georgia. Robinson v. State, 257 Ga. 194 (3) (357 SE2d 74).

2. The aggravated assault count averred that appellant did commit aggravated assault upon B. G. “with an object, to-wit: an ax . . . by chasing the boy with said ax.” Appellant contends that reckless conduct is not a lesser included offense of aggravated assault in this case. A crime will constitute a lesser included offense as a matter of law when, inter alia, it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6 (2). The crime of reckless conduct is an instance of criminal negligence, rather than a culpable act of either general or specific criminal intent, which causes bodily harm to or endangers the bodily safety of another. Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457). In a given case, reckless conduct may become a lesser included offense of aggravated assault, “not necessarily by the adding or subtracting of elements, but merely by the substitution of another element” for that of any formed general intent to commit the greater offense thereby resulting, in essence, in a finding of a lesser degree of culpability within the meaning of OCGA § 16-1-6 (2). Id.; see Givens v. State, 184 Ga. App. 498 (3) (361 SE2d 830) (dictum). Appellant testified and in effect denied any criminal intent whatsoever to commit an assault against B. G., her son. Rather, appellant testified she grabbed a maul to smash a toy as a means of disciplining her son, and followed him down the hall after he took the toy and ran; she denied “chasing” him down the hall with an ax. Chasing, running or following after the boy in hot pursuit, without any general or specific criminal intent and while carrying an ax-like maul (for the purpose of breaking toys) could be found by the jury to constitute under the attendant circumstances an act of criminal negligence. The type of criminal culpability, if any, of appellant was an issue for jury resolution. Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742), where appellant admitted he had deliberately pointed the weapon at the victim, is distinguishable and not controlling. Also distinguishable is Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) where the undisputed evidence showed that appellant committed either an aggravated assault or no offense at all. We conclude this enumeration is meritless.

3. Appellant asserts that the evidence is insufficient to support appellant’s conviction of either reckless conduct or cruelty to her son R. G., as averred in the indictment.

Regarding the offense of cruelty to the child, R. G., it was averred that appellant did cause said child “cruel and excessive mental pain by causing the child to live in a home under extremely unsanitary conditions, including but not limited to: piles of trash on the floor, rotting food and dirty dishes in the kitchen, an uncaged parrot with bird droppings everywhere, two live ducks in hall bathroom, roaches crawling on floor and the smell of trash and rotten food throughout the house.”

OCGA § 16-5-70 (b) provides: “Any person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” It appears to be a case of first impression whether the offense of cruelty to- children can be committed by raising a child in a house under circumstances constituting extremely unsanitary conditions; we conclude that when the lack of sanitation reaches such a degree that a jury can find that the acts or omissions of the parent maliciously cause a child under the age of 18 cruel or excessive physical or mental pain within the meaning of OCGA § 16-5-70 (b), the jury is authorized to find that a defendant has committed the offense of cruelty to children. “The intention with which an act is done is peculiarly a question for the jury [cit.], and in view of OCGA §§ 16-2-4 and 16-2-5, the jury was authorized in this case in finding as no excuse the appellant’s [contentions] that she did not mean to [let the house become so unsanitary and was commencing to clean up the house on the day of the incident].” McGahee v. State, 170 Ga. App. 227 (1) (316 SE2d 832). In this regard, “intention” does not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby; intention may be manifest by the circumstances connected with the perpetration of the offense. Daniel v. State, 179 Ga. App. 54, 55 (1) (345 SE2d 143). Thus, intent to inflict cruelty and malice can be proven from all the circumstantial evidence in a case. McGahee, supra at 228 (2); compare Daniel v. State, supra. “For purposes of this Code section [OCGA § 16-5-70 (b)], malice in the legal sense, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result.” (Punctuation and emphasis omitted.) Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25). Malice, like intent, also is peculiarly a jury question. See Rigenstrup, supra; McGahee, supra.

In addition to the graphic testimony of the officer executing the search warrant and the crime scene technician who photographed and videotaped appellant’s home, photographs and a videotape as to the condition of appellant’s house also were introduced in evidence. From the totality of this evidence the jury could find that the child, R. G., was, in fact, maliciously subjected to “excessive mental pain,” within the meaning of OCGA § 16-5-70 (b). The photographs and videotape were relevant and material to establish the nature and severity of the unsanitary conditions in appellant’s house. Compare Lister v. State, 143 Ga. App. 483, 484 (3) (238 SE2d 591). Moreover, the jury could reasonably infer from the evidence of the extreme unsanitary conditions of the home, coupled with the testimony of appellant as to the significant disciplinary problems she had been having with her two children, that the child, R. G., was suffering excessive mental pain from the malicious conduct of his mother in raising him in a home replete with garbage, rotten food, bugs, and the excrement of a parrot and two ducks. In this regard, appellant admitted in judicio that the house had been a mess for “about three weeks”; leaking toilets had saturated hallway and living room carpets, which were rolled up soiled in the house; trash collection had been suspended due to lack of money; trash was stored in the house and dogs would enter a broken deck-door window and get into the trash; two ducks were allowed to live in one bathroom for about two months; the parrot had been allowed to live in the kitchen for at least a week; and ducks go to the bathroom often and the parrot does so “every 30 minutes.” Videotape and photographic evidence grimly corroborates the soiling of the house, particularly the kitchen, by the parrot. “[T]he determination of what is cruel or excessive physical or mental pain is to be made by the jury.” Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74). The infliction of cruel or excessive physical or mental pain upon a victim can be proven by circumstantial evidence. Cf. Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). We conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant contends that the trial court erred by failing to recharge, fully and completely, the jury, orally or in writing, following the jury’s written request that this be done. The jury, apparently after no more than a minimal period of deliberation, requested the trial court to “please send a copy of [the] charges to [the] jury, i.e., what does Judge expect from the jury?” The trial court instructed the jury in open court that it could not provide the jury with a written copy of the charges, but it could recharge if the jury desired as to any portion of the charges. Thereafter, the jury foreman on behalf of the jury requested merely a recharge as to the definition of assault. The trial court, after giving a cautionary instruction that the jury must consider the entire charges given and not just those subject to recharge (see generally Walker v. State, 198 Ga. App. 422 (2) (401 SE2d 613)), proceeded to recharge as to the elements of aggravated assault and its lesser included offense of reckless conduct, the charges of cruelty to children, and as to the defense of justification based on a claim of reasonable disciplining of a minor. The jury foreman subsequently requested another recharge on aggravated assault. The trial court gave another recharge as to aggravated assault and then offered to tender to the jury a copy of the portion of the charges subject to recharge; the jury foreman requested that be done indicating such action “would really help us out at this point.” At no point subsequent to this recharging did the jury renew its request for a complete copy of the charges. Anderson v. State, 262 Ga. 26, 28 (3) (a) (413 SE2d 732) authorizes but does not mandate that the trial court give a written copy of the charges to the jury. In Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97), it was held that where the jury requests further instructions upon a particular phase of the case, the court in its discretion may recharge them in full, or only upon the point or points requested. Likewise, when the jury requests a written copy of a portion of or the entire instructions given, the trial court in its discretion generally may recharge the jury orally in lieu of providing such written instruction. See generally OCGA § 15-6-8 (6); see also Appling v. State, 256 Ga. 36, 38 (343 SE2d 684); compare Jordan v. State, 207 Ga. App. 710, 712 (2) (429 SE2d 97). Appellant has failed to show a breach of discretion by the trial court in electing to recharge the jury orally only as to those particular legal matters determined to be of concern to it and providing it, together with appropriate cautionary instructions, a written copy of only those matters subject to recharge. It appears more appropriately to be a matter for legislative consideration whether in criminal cases written copies of charges should be required to be tendered to the jury.

5. Appellant contends the trial court erred by allowing witnesses to present hearsay statements attributed to the children under the child hearsay statute, because the charges against appellant did not involve allegations of any act of sexual contact or physical abuse, as required by OCGA § 24-3-16. We find that statements as to the circumstances in which appellant chased her son down the hall while carrying a maul constitutes statements regarding “any act” of physical abuse within the meaning of the statute. Any other interpretation of OCGA § 24-3-16 would not square with common sense and reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). Secondly, this testimony was admissible as prior consistent statements of the children. Knight v. State, 210 Ga. App. 228, 230 (2) (435 SE2d 682); accord Fuller v. State, 211 Ga. App. 104, 105 (2) (438 SE2d 183). Also, in view of the cumulative nature of the questioned testimony, any error would have been harmless.

Decided February 7, 1995

Reconsideration denied February 21, 1995

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

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

6. Appellant asserts the trial court erred by charging the jury that criminal negligence was not an issue in appellant’s case, after having repeatedly charged the jury as to the lesser offense of reckless conduct. Criminal negligence is an essential element of reckless conduct (Bowers v. State, supra at 38 (1)); the trial court committed a charging error. Because the charging error was a substantial misstatement as to the essential elements of reckless conduct, it is not waived and is reviewable pursuant to OCGA § 5-5-24 (c). Jackson v. State, 205 Ga. App. 513, 514 (3) (422 SE2d 673). When an error in the charge is shown to exist, as in this case, it is presumed to be prejudicial and harmful, unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736, 737 (363 SE2d 547). Considering the obvious confusion demonstrated by the jury by the nature of their repeated requests for further instructions, the length of their deliberation, their vote as to the offenses under Charge 1, and the fact that the charging error was as to an essential element of an offense for which appellant was shortly thereafter convicted, we cannot conclude from the entire record that this error was harmless. Foskey, supra; compare Jackson, supra. Robinson v. State, 176 Ga. App. 18 (335 SE2d 303) is distinguishable and not controlling. “Because ‘we cannot say as a matter of law that the charge was neither confusing nor misleading,’ we conclude that the trial court’s charge in this case requires reversal.” Anderson, supra at 27 (2).

Accordingly, appellant’s conviction of reckless conduct is set aside and the sentence pertaining thereto vacated; her conviction of cruelty to children and the sentence pertaining thereto is affirmed. In view of the above holdings, we need not address appellant’s claims of inadequacy of counsel.

Judgment affirmed in part and reversed in part.

Blackburn and Ruffin, JJ., concur.


author: Pope, Presiding Judge.

text:
    A94A2032.
    WASHINGTON v. THE STATE.
    (454 SE2d 214)
   Pope, Presiding Judge.

Defendant Larry Washington was sentenced, as a recidivist, to life in prison after being convicted by a jury of two counts of selling cocaine in violation of OCGA § 16-13-30 and two counts of selling cocaine within 1,000 feet of a public housing project in violation of OCGA § 16-13-32.5. He appeals.

The record in this case demonstrates that on October 27, 28 and 29, 1992, Detective Randy Gallman of the Calhoun Police Department conducted an undercover drug-buy operation. On each of the above dates a confidential informant named Mark Dodd, acting as an agent of the police department, approached defendant and allegedly purchased crack cocaine from him. Before each of the drug buys, Dodd met with Detective Gallman, who searched Dodd and his car to verify that no drugs were present. The transaction between Dodd and defendant, which allegedly occurred on October 27, 1992, was not recorded due to a problem with a microphone that was hidden on Dodd. However, both the October 28 and 29, 1992 drug transactions were recorded by a tape recorder that Detective Gallman hid in Dodd’s car. After each of the above transactions, Dodd met with Gallman and gave him a small rock of a white substance allegedly purchased from defendant. At trial the white rocks were positively identified as cocaine.

After defendant was arrested and indicted on six counts of violating the Georgia Controlled Substances Act, he appeared at the November 1, 1993 calendar call of his case without an attorney. There is no explanation in the record as to why defendant had not retained or been appointed counsel prior to that time. At the calendar call, the trial court appointed counsel to represent defendant. When defendant’s case was called the next day, November 2, 1993, defendant’s counsel filed a motion for continuance based generally on the shortness of time given to defendant’s counsel to prepare for trial. The trial court denied the motion for continuance. During the trial the State called only three witnesses, all of whom were thoroughly cross-examined. Defendant did not call any witnesses and there is no indication in the record that defendant wished to do so. The jury found defendant guilty of the four counts based on the October 28 and 29, 1992 transactions and not guilty of the two counts which were based on the October 27, 1992 transaction.

1. In his first enumeration defendant contends that the trial court erred in denying his motion for continuance. We disagree. “[T]he grant or denial of a motion for continuance is within the sound discretion of the trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. Davis v. State, 190 Ga. App. 178, 179 (378 SE2d 519) (1989).” Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992). “Mere shortness of time [for preparation] does not by itself show a denial of the rights of the accused, and denial of a continuance [which is based upon] shortness of time will not reflect an abuse of discretion, where there is no convoluted case or ... a large number of witnesses or intricate defenses. To say otherwise would deprive the trial court of any discretion.” (Citations and punctuation omitted.) Johnson v. State, 185 Ga. App. 475, 476 (364 SE2d 609) (1988).

Here, the State only called three witnesses: the investigating officer, the undercover informant and the crime lab technician who tested the cocaine. Such witnesses are standard in cases involving hand-to-hand cocaine sales, and the record reveals that the witnesses’ testimony in this case was straightforward and uncomplicated. Moreover, “[defendant] has not shown in this case that he was prevented from obtaining and producing any witnesses or evidence, nor that the case was complicated and required more time in preparation, or that further delay would have gained him any palpable advantage. Ward v. State, 165 Ga. App. 163 (300 SE2d 528) [(1983)].” Tucker v. State, 172 Ga. App. 86 (1) (321 SE2d 817) (1984). Consequently, the trial court’s denial of defendant’s motion for continuance cannot be said to constitute an abuse of discretion and defendant is therefore not entitled to a new trial based on the denial of said motion.

2. Defendant also challenges the sufficiency of the evidence introduced. Mark Dodd testified that defendant sold him crack cocaine on October 28 and 29, 1992. Dodd’s testimony was corroborated by two tape recordings of the transactions in question which were made contemporaneously with said transactions. At trial these tape recordings were authenticated by Detective Gallman and subsequently played for the jury. Additionally, the record shows that prior to each transaction with defendant no drugs were found on Dodd or in his car. However, after each transaction, Dodd returned with a small rock of what was believed to be crack cocaine, which Dodd said he purchased from defendant. These rocks were immediately turned over to Detective Gallman and were later tested by the Georgia Bureau of Investigation Crime Lab and found to be cocaine. There also is testimony in the record indicating that at the time of the transactions in question defendant was within 1,000 feet of a public housing project. Therefore, we conclude that the evidence in this case was sufficient for a rational jury to have found defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Finally, defendant contends that the trial court erred in sentencing him to life in prison as a recidivist under OCGA § 16-13-30 (d) because the State failed to notify defendant, as required by OCGA § 17-10-2 (a), that it intended to use prior drug convictions in aggravation of punishment at defendant’s sentencing hearing. OCGA § 17-10-2 (a) provides that before sentencing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions . . . , provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” This notice requirement applies to mandatory life sentences imposed under OCGA § 16-13-30 (d). Armstrong v. State, 264 Ga. 237, 238 (1) (442 SE2d 759) (1994); Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992).

In this case, the evidence of record contains a Petition in Aggravation of Sentencing (Petition) filed by the State on November 2, 1992. The record also contains a certificate of service indicating that the Petition was served on defendant’s trial counsel by hand delivery on November 2, 1992. The Petition contains type-written information concerning a prior conviction for selling marijuana and hand-written information concerning a prior conviction for selling cocaine. Defendant argues in his appellate brief that he never received a copy of the Petition, but when the trial court asked defendant’s counsel at the sentencing hearing whether he had been served with the Petition, defendant’s trial counsel stated that he could not say “one way or the other.” The State, on the other hand, told the trial court that two petitions, including the one containing the hand-written information about the prior cocaine sale, were served on defendant’s trial counsel. Defendant’s trial counsel also admitted to having some recollection of the State providing him with oral notice, but stated that he could not remember when or where such notice was given. Moreover, in the motion for continuance, defendant’s trial counsel stated that he understood that the crimes with which the defendant was charged would carry a life sentence in prison if defendant was convicted. Consequently, because there is evidence of record that defendant was properly notified of the State’s intent to use his prior drug convictions in aggravation of punishment at the sentencing hearing, and such evidence was not sufficiently rebutted by defendant, we conclude that the trial court did not err in sentencing defendant to life in prison as a recidivist under OCGA § 16-13-30 (d).

Judgment affirmed.

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

Decided February 21, 1995.

J. Terry Brumlow, for appellant.

T. Joseph Campbell, District Attorney, for appellee.


text:
    A95A0517.
    WAHNSCHAFF v. ERDMAN et al.
    (454 SE2d 213)
   Blackburn, Judge.

We granted appellant Lorain C. WahnschafFs application for interlocutory appeal to determine whether the trial court erred in dismissing her personal injury action against appellee Jennifer Erdman based upon the insufficiency of service of process.

On April 4, 1990, Wahnschaff commenced the underlying action against Erdman and her father as a result of injuries that Wahnschaff allegedly received when the vehicle that she had been driving was rear-ended by a vehicle driven by Erdman on August 12, 1988. The next day, service was attempted on Erdman and her father by leaving a copy of the summons and complaint with Erdman’s mother. At that time, Erdman was on active duty in the United States Coast Guard and stationed in New Jersey, having enlisted in the military on January 16, 1990. By affidavit in support of her motion to dismiss, Erdman averred that, at the time service was attempted, she intended to make a career in the Coast Guard for the foreseeable future and did not intend to return to her parents’ home to reside. It is undisputed that she has not been personally served with process in this action.

“OCGA § 9-11-4 (d) (7) requires that the complaint and summons be served on ‘the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.’ . . . The emphasized language is known as ‘substituted’ or ‘notorious’ service.” (Citation and footnote omitted.) Tolbert v. Murrell, 253 Ga. 566, 567 (1) (322 SE2d 487) (1984). OCGA § 9-11-4 (d) (7) means exactly what it states and service under this section must be made as provided. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). “[T]he language of the statute is so plain and unambiguous that judicial construction is both unnecessary and unauthorized.” Id. at 419. In addition, there is no authority to dispense with the clear requirements of the statute merely because the defendant otherwise obtained knowledge of the filing of the lawsuit. Id. See also Yelle v. U. S. Suburban Press, 216 Ga. App. 46 (453 SE2d 108) (1995).

The Georgia Supreme Court has enunciated the requirement for service of process when substituted service has been made upon a military serviceperson. “ ‘Where a party maintains a residence with a member of his family, but travels about or lives at various other places, the permanent residence may, on the facts, be his usual place of abode. This leads to a consideration of the situation where the party is in military service. Here a distinction is often made between one temporarily in service, with the intention of returning home after discharge, and one who is a career serviceman, particularly where the serviceman has set up a private home where he is stationed. Thus, in the first situation service by leaving process at defendant’s family home is valid, although defendant is in military service and is stationed elsewhere. ... In the second situation, service at defendant’s former home, or by leaving process with defendant’s parents, [is] invalid.’ ” Tolbert, supra at 567-568.

Decided February 21, 1995

John M. Hyatt, Tyron C. Elliott, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellees.

In the present case, unlike in Tolbert, the undisputed evidence showed that at the time service was attempted, Erdman was a career serviceperson with no intention of returning to her parents’ home to reside. The trial court found as fact that Erdman was not a resident of her parents’ home at the time that service was attempted on her mother at said residence, and this finding is supported by evidence of record. “Where, as in this case, the trial court sat as the trier of jurisdictional issues of fact, absent legal error an appellate court is without jurisdiction to overturn factual findings supported by some evidence. . . .” Ga. Power Co. v. Harrison, 253 Ga. 212, 216 (318 SE2d 306) (1984). The cases upon which Wahnschaff relies, Wolfe v. Rhodes, 166 Ga. App. 845 (305 SE2d 606) (1983) and Rupee v. Mobile Home Brokers, 124 Ga. App. 86 (183 SE2d 34) (1971), are inapposite. In Wolfe and Rupee, the evidence produced was insufficient to rebut the facts contained in the sheriff’s entry of service, whereas here the undisputed evidence showed that Erdman was not a resident of her parents’ home as asserted in the sheriff’s entry of service. Since Erdman has not been properly served with process, we must affirm the dismissal of this action against her.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A94A2805.
    CONKLIN v. ZANT et al.
    (454 SE2d 159)
   Andrews, Judge.

This appeal is taken by plaintiff Robert Conklin, a death row inmate at the Georgia Diagnostic & Corrections Center in Jackson, Georgia. It is the third appearance of this case before this court; the previous appearances were in Conklin v. Zant, 198 Ga. App. 543 (402 SE2d 319) (1991), and Conklin v. Zant, 202 Ga. App. 214 (413 SE2d 536) (1991). The facts relevant to the various enumerations of error will be set forth as necessary.

1. In his first three enumerations, Conklin claims that the Butts County Superior Court erred in granting partial summary judgment tó defendant/appellee Lumbermens Mutual Casualty Company (“Lumbermens”), and in denying his own motion for summary judgment against Lumbermens.

Conklin’s grievance in this matter arose from his tearing pages out of a law book, for which a disciplinary report against him was filed. After a hearing, he was found guilty of the offense of destruction of state property and fined $59.25, which was taken from his inmate account. The hearing officer who found him guilty of the offense was Gilchrist Garrett. Conklin appealed the disciplinary action to Warden Walter Zant, who affirmed the hearing findings.

On September 2,1992, Conklin filed a complaint against Gilchrist Garrett, Walter Zant, Glynn Suggs, June Killingsworth, and John Does I and II. Conklin later amended his complaint to include Lumbermens, Lanson Newsome, David Evans and Bobby Whitworth as parties. In essence, Conklin alleged that the defendants converted funds from his inmate account and thus violated his due process rights. Conklin also claimed that the defendants had violated the Georgia Racketeer Influenced & Corrupt Organizations (RICO) statute. With regard to Zant, Conklin claimed that his violations of the policies and procedures of the prison had breached the terms of Zant’s statutory official bond, for which both Zant and Lumbermens, the issuer of the bond, were liable.

Lumbermens answered, asserting that Conklin was not an obligee, party to, or insured under the bond, and had no rights to bring suit against it. Alternatively, Lumbermens contended that even if Conklin had rights under the bond, the alleged loss was excluded from coverage.

On December 14, 1992, Conklin filed a “Motion for Order Declaring Whether Lumbermens Mutual Casualty Company’s Bond Number 3F 123 796-01 is the Official Bond of Defendants Walter Zant and Glynn Suggs.” Lumbermens filed a response to this motion in which it stated that the bond was a fidelity bond and not a statutory official bond.

On January 12, 1993, Lumbermens filed its motion for partial summary judgment in which it argued that the bond in question was a fidelity bond because it was issued for the sole use and benefit of the State of Georgia and that therefore, under the clear terms of the bond, Lumbermens’ only obligation was to reimburse entities of the State of Georgia for losses caused by the dishonest or unfaithful acts of state employees. Lumbermens cited specific provisions within the bond that stated that the bond was for the sole benefit of the obligee and that the surety was not liable for any loss sustained by any party other than the insured. Lumbermens contended that it had no obligation to reimburse the general public and that since Conklin was not a party to the bond, his action was barred. In connection with its motion, Lumbermens presented evidence which established that Conklin was not an insured under the bond and that the bond was a fidelity bond. See generally Price v. Arrendale, 119 Ga. App. 589 (168 SE2d 193) (1969).

After hearing oral arguments, the court granted Lumbermens’ motion. In its order, the court determined that the bond did not cover persons not in privity with the obligee or the surety and that Conklin’s suit was barred. From this order, Conklin appeals.

The bond at issue here is a “Public Employees Blanket Bond.” The Declarations page lists the name of the insured as “All Subdivisions, Departments, Bureaus, and All Other Entities.” In “Exclusion Section 3,” the document states: “The Surety shall not be liable under this Bond for loss sustained by any party other than the Insured as a result of any act or omission of an Employee whether or not such act or omission occurred in the performance of the duties by the Employee.”

In “Legal Proceedings, Section 7,” the document states: “This Bond is for the sole benefit of the Obligee for the use and benefit of the Insured. No suit, action or proceeding of any kind to recover on account of loss under this Bond may be brought by anyone other than the Obligee or the Insured. . . .”

Despite these provisions, Conklin, citing American Surety Co. v. Googe, 45 Ga. App. 108, 110-112 (163 SE 293) (1932), argues that the bond at issue was intended to satisfy the requirements of OCGA § 42-5-32, and that, as such, its terms should be construed so as to allow him to proceed. In support of this position, he also cites OCGA § 45-4-1 et seq.; Fidelity-Phenix Ins. Co. v. Maudlin, 118 Ga. App. 401 (163 SE2d 834) (1968); Googe v. Fla. Intl. Indem. Co., 262 Ga. 546 (422 SE2d 552) (1992); and additional sections of the policy, which he claims indicate that the bond was intended to serve as the statutory bond.

OCGA § 42-5-32 (a) provides: “Before any state or county correctional institution or other facility operating under the jurisdiction of the board shall be approved to receive inmates, the board shall require the warden, superintendent, or other chief custodial officer of the institution to execute a bond, in an amount as the board may require, with good securities to be approved by it, such bond to be not less than $10,000.00 payable to the Governor and his successors in office and conditioned upon the following: (1) To account faithfully for all public and other funds or property coming into the principal’s custody, control, care or possession; and (2) To discharge truly and faithfully all the duties imposed upon him by law or by the rules and regulations of the board.” (Indention omitted.) Subsection (c) of the statute provides: “All bonds given under this Code section shall be liable for any breach of the conditions specified in paragraphs (1) and (2) of subsection (a) of this Code section by a deputy, agent, or subordinate of the principal, whether expressed therein or not; and all such bonds shall be subject to and governed by all the provisions of Chapter 4 of Title 45 which are not in conflict with this Code Section.”

Without reaching the issue of whether Conklin had a right to bring suit against Lumbermens in light of the restrictive language of its bond, we find the grant of summary judgment here was proper because of the piercing of an essential element of Conklin’s complaint. In the record is the affidavit of Zant in which he states that “in his appellate review of the decision of the hearing officer, the restitution order was upheld based upon his understanding” of the Standard Operating Procedures, which he understood to be consistent with departmental policy. He stated that his actions were based on long contact with the Attorney General’s office and that his specific actions in this matter were also based on consultation with the Attorney General’s office. In light of this evidence, Conklin’s action against Lumbermens as issuer of the bond is barred. Accordingly, there was no error in the court’s grant of Lumbermens’ motion and the denial of Conklin’s motion.

2. In his fourth enumeration, Conklin claims the trial court erred in denying his motion for partial summary judgment against Zant for his claims pursuant to the RICO Act. At the time of Zant’s actions, there was no indication that the policy he followed was improper. Various affidavits in the record establish that Zant’s actions complied with the prison’s policy. The evidence also established that at no time was the disputed money in the possession of any of the defendants.

The predicate act for the RICO claim is alleged theft. Given the evidence here we find that summary judgment on Conklin’s claims was proper. See generally OCGA § 16-14-1 et seq.

3. In his fifth enumeration, Conklin appeals the failure of the trial court to specify established facts for trial. Finally Conklin argues that pursuant to OCGA § 15-6-21 (a), the court erred in failing to timely rule on various pending motions, specifically various motions to compel which have been pending for more than one year.

Decided February 7, 1995

Reconsideration denied February 22, 1995

Robert Conklin, pro se.

Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, for appellees.

We find the fifth enumeration without merit. See OCGA § 9-11-56 (d). Conklin’s final argument, that the court has failed to rule on pending motions, is not properly before this court.

Because the court deems this appeal to be frivolous, it hereby imposes a penalty of $100. See Court of Appeals Rule 26 (b).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


text:
    A95A0234.
    ALEXANDER v. JONES.
    (454 SE2d 539)
   Blackburn, Judge.

On October 26, 1991, the appellant, Alexander, was injured as a result of an automobile collision which occurred while riding as a passenger in a vehicle driven by a co-worker, Barbara Jones. She later commenced the instant complaint for damages against Jones. Jones, a non-resident, failed to respond to the complaint after service was executed under Georgia’s Non-Resident Motorist Act. Alexander moved for the entry of a default judgment and a default judgment was issued on the issue of liability.

The case proceeded to a bench trial on the issue of damages and the bench trial was not recorded by a court reporter. At the close of the trial, Alexander asked the trial court to award her $40,000 in damages, and the trial court instructed Alexander’s attorney to prepare a judgment in said amount for his signature. However, upon further consideration of the evidence, the trial court entered judgment in favor of Alexander for $15,000, concluding that the $40,000 requested would be excessive. Alexander subsequently moved for reconsideration of the judgment or, in the alternative, for a new trial, and the trial court denied both motions, concluding that a trial judge has the authority to modify its judgments and that an oral declaration by a judge does not become a judgment of the court until it is reduced to writing. This appeal followed.

1. In her first two enumerations of error, Alexander maintains that the trial court abused its discretion in entering a judgment in the amount of $15,000 following its oral announcement because the uncontroverted evidence supports an award of damages in the amount of $40,000 and there was no meritorious reason for the judgment entered. However, these enumerations cannot be judicially determined without examination of the trial transcript or a statutorily authorized substitute therefore. See Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684) (1994). The proceedings of the bench trial were not transcribed and Alexander has not submitted a statutorily authorized substitute for consideration on appellate review. “Without access to the necessary trial transcript or a statutorily authorized substitute therefore, we must conclude the trial court did not err as enumerated.” Id. at 273.

Decided January 27, 1995

Reconsideration denied February 22, 1995

Calhoun & Associates, John R. Calhoun, Kenneth A. Calhoun, for appellant.

Barbara H. Jones, pro se.

2. Next, Alexander asserts that the trial court erred in denying her motion for new trial without first conducting a hearing on the motion. “ ‘We are well aware of a movant’s right to a hearing upon a motion for new trial. However, we are also cognizant of the fact that a party, especially in civil proceedings, may waive or abandon that right.’ Peyton v. Peyton, 236 Ga. 119, 120 (223 SE2d 96) (1976).” Page v. Guin, 187 Ga. App. 143, 144 (1) (369 SE2d 517) (1988). In the case at bar, the record does not reflect that Alexander moved the court for a hearing on her “Motion for Reconsideration or, in the alternative, Motion for New Trial.” Consequently, the trial court was justified in concluding that Alexander waived her right for an oral hearing on her motion for new trial and was justified in deciding the motion on her brief and the attached exhibits. See id.

Judgment affirmed.

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


text:
    A95A0474.
    CHAMBERS v. THE STATE.
    (454 SE2d 567)
   Blackburn, Judge.

This is the third appearance of this case before this court. In both Chambers v. State, 205 Ga. App. 78 (421 SE2d 326) (1992), and in Chambers v. State, 213 Ga. App. 284 (444 SE2d 833) (1994), we reversed Chambers’ convictions for child molestation and incest. The case was retried in August 1994, and Chambers was again convicted by a jury of child molestation and incest, both charges involving his biological daughter. This appeal followed.

The evidence viewed in the light most favorable to the jury’s verdict shows that in 1988, the victim, who was 16 years old at the time of the third trial, began living with Chambers, his present wife, and other siblings when the acts of sexual exploitation occurred. During the two years that she lived with Chambers, the victim was subject to numerous acts of sexual abuse. The victim specifically recounted an incident when Chambers took her to a parcel of land that the family owned and had sexual intercourse with her while the two were inside the cab of his truck. Afterwards, Chambers informed the victim that he loved her and instructed her not to tell anyone. The victim also testified that Chambers sexually abused her in the family’s home.

She also recalled an incident when Chambers removed her from her bed, took her into his room, and had sexual intercourse with her. On another occasion, he attempted to place the victim’s hand on his penis after he called her into a bathroom in the home. The victim further testified that Chambers has picked her up, unzipped her pants, and kissed her on her vagina. Chambers also had sexual intercourse with the victim on the floor of the family’s former residence when the two of them returned to the home to retrieve some items. He again informed her that he loved her and instructed her not to tell anyone.

In October 1990, the victim informed a friend, a school counselor, a social worker, an emergency room physician, a victim/witness advocate, and a police officer of the specific acts of sexual abuse committed by Chambers against her. Both the school counselor and the social worker opined, based upon their experience with molestation victims, that the victim exhibited traits that were consistent with those of molested children. The emergency room physician testified that her examination of the victim revealed that the victim’s hymen was absent, and she opined that penetration can result in the absence of the hymen. Based upon her examination of the victim, the physician concluded that the victim’s vagina had been penetrated on more than one occasion. Her examination of the victim was consistent with the history given by the victim that she had been sexually molested by Chambers.

1. Chambers asserts that the trial court erred in denying his motion for a directed verdict of acquittal because of alleged inconsistencies in the victim’s testimony.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Citation and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993). “It is the function of the jury to determine the credibility of the witnesses. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict.” (Citation and punctuation omitted.) Hargrove v. State, 202 Ga. App. 854, 857 (415 SE2d 708) (1992).

In the case at bar, the jury resolved any conflicts in the victim’s testimony in her favor and found her testimony worthy of belief. Reviewing the evidence adduced at trial under the standard of review enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a rational trier of fact was authorized to find Chambers guilty beyond a reasonable doubt of the offenses charged. See Carr v. State, 214 Ga. App. 367 (1) (448 SE2d 33) (1994).

2. Next, Chambers maintains that the trial court erred in failing to grant his motion for mistrial after the prosecution elicited an answer from a witness on the ultimate issue of the case. Specifically, Chambers asserts as error the prosecution’s questioning of Sandra Pace, the school counselor, on, whether she believed the victim was telling the truth when she disclosed to her the acts of molestation committed against her by Chambers. After Pace responded that she did believe the victim, Chambers’ counsel objected to the question on the ground that it addressed the ultimate issue in the case, and moved for a mistrial.

The trial court indicated that it would instruct the jury that whether the witness believed the victim could not be a factor in their determination. Chambers’ counsel responded that he did not object to the instructions, but felt that the instructions were inadequate at that point since this question was also posed in the second trial of the case. The trial court instructed the jury that it had the ultimate responsibility of determining the credibility of witnesses. Chambers’ counsel did not voice an objection after the giving of this instruction, did not ask for additional curative instructions, and did not renew his motion for a mistrial.

“Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.” (Citation and punctuation omitted.) McAlister v. State, 204 Ga. App. 259, 260 (1) (419 SE2d 64) (1992). Counsel’s inaction following the giving of the curative instructions constitutes a waiver and leaves this court with nothing to review. Id.

3. Chambers additionally maintains that the trial court erred in denying his motion for a continuance to enable him to obtain and fully utilize the services of Dr. James Stark, a psychologist. Although Chambers did obtain Dr. Stark as an expert witness and Dr. Stark testified at trial, he contends the psychologist could not adequately prepare for trial because of the limited time period before its commencement. Dr. Stark testified that he did not have an opportunity to evaluate the victim, evaluate the accused, review the files, or study relevant video material because of time constraints. Dr. Stark stated that he would have evaluated the victim, the accused, and reviewed the transcripts and the video material if he had been given adequate time.

“[M]otions for continuances are addressed to the sound discretion of the court. This court will not interfere with the ruling of a trial court on such a motion unless it is clearly shown that the trial court abused its discretion.” (Citations omitted.) Hayes v. State, 214 Ga. App. 893, 894 (449 SE2d 360) (1994).

Following this court’s second reversal of the case on May 24, 1994, the parties were notified by notice dated July 27, 1994, that the case was scheduled for trial on August 22, 1994. Chambers was aware of this court’s decision reversing his convictions in May 1994, and did not seek a continuance to obtain this expert until August 19, 1994, three days prior to trial. Chambers \yas originally indicted on these charges in March 1991. It is incumbent upon a party requesting a continuance to show that he exercised due diligence. Id. Under the circumstances, we cannot say that the trial court abused its discretion in denying the motion for continuance in this case. Id.

4. Chambers asserts error in the trial court’s refusal to allow Dr. Stark to view the videotape interview of the victim by a social worker with the Department of Family & Children Services. Chambers argues that Dr. Stark should have been allowed to view the videotape with the jury since he was not able to review the videotape in preparation for trial.

“OCGA § 24-9-61 gives either party the right to have the witnesses sequestered, subject to the discretion of the trial judge, who may make exceptions thereto. The rule prohibits witnesses from being examined in the presence of each other.” (Citations omitted.) Bartell v. State, 181 Ga. App. 148 (351 SE2d 495) (1986). In Bartell, this court held that the trial court did not err in refusing to allow a defendant’s expert witness to remain in the courtroom to hear the testimony of other witnesses since an expert’s opinion is based upon hypothetical questions if the facts have not been personally observed by the expert. The facts of the case at bar were not personally known to Dr. Stark, and any opinion that he could properly form would have been based upon hypothetical questions. See id. Therefore, the trial court did not err in denying Chambers’ request.

5. Lastly, Chambers asserts that the trial court improperly commented on the evidence when the court stated “[i]f we could come back to this case, it would be helpful.” The trial court made this statement after Dr. Stark testified that children at the age of 15 or 16 are more influenced by their peers.

On the contrary, the trial court did not comment on the evidence but merely instructed the witness and defense counsel to discuss matters relevant to this case, considering the age of the victim at the time that the acts of molestation occurred and the time that the acts were disclosed to the witness. We find nothing improper about the trial judge’s comment. See Smith v. State, 209 Ga. App. 699 (9) (434 SE2d 528) (1993).

Decided February 8, 1995

Reconsideration denied February 22, 1995

James C. Wyatt, for appellant.

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

Judgment affirmed.

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


text:
    A95A0550.
    BENNETT v. THE STATE.
    (454 SE2d 562)
   Blackburn, Judge.

The appellant, Randall O. Bennett, appeals from the trial court’s denial of his motion in arrest of judgment following his misdemeanor conviction of driving under the influence of alcohol.

On May 8, 1988, Bennett was involved in an automobile collision with a Fulton County police vehicle. He was arrested and issued separate “Uniform Traffic Citation, Summons, Accusation/Warning” (UTC) for driving under the influence of alcohol and driving without a driver’s license. The jurat portions of the attesting officer’s certification contained in the UTCs were hot signed and completed by the arresting officer. Bennett entered a plea of not guilty to the DUI offense on June 23, 1993, and the case proceeded to a bench trial on that date. Prior to the commencement of the trial, Bennett orally moved to dismiss the prosecution of the offense based upon the incomplete certification, and the trial court denied the motion because it was untimely filed and was not in writing. Bennett orally renewed the motion to dismiss and the trial court again denied the motion.

In his sole enumeration of error, Bennett asserts that the trial court erred in denying his oral motion to dismiss and in denying his written motion in arrest of judgment based upon the absence of the arresting officer’s certification on the UTCs and the State’s failure to file a formal accusation prior to the expiration of the applicable statute of limitation.

Decided February 7, 1995

Reconsideration denied February 22, 1995

Donald C. Turner, for appellant.

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Jane Morrison, Assistant Solicitors, for appellee.

“OCGA § 17-7-111 provides that [i]f the defendant, upon being arraigned, demurs to the indictment, the demurrer shall be made in writing. Uniform Superior Court Rule 31.1 [which is applicable in state courts] requires that all motions, demurrers, and special pleas be made at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial. Where the accused desires to take exception to the form of an indictment, it is essential that he should do so by a demurrer or motion to quash, made in writing and before entering a pleading to the merits.” (Citations and punctuation omitted.) Dunbar v. State, 209 Ga. App. 97, 98 (432 SE2d 829) (1993).

In the case at bar, Bennett made no motion in writing prior to entering a plea to the DUI offense and hence, waived any objections to the form of the accusation contained in the UTC, including any objection to the incompleteness of the arresting officer’s certification. Accordingly, this issue has not been properly preserved for appellate review. See Lankford v. State, 204 Ga. App. 405 (2) (419 SE2d 498) (1992).

Judgment affirmed.

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

       The offense of driving without a driver’s license was dead-docketed based upon the insufficiency of the facts to obtain a conviction.


author: McMurray, Presiding Judge.

text:
    A95A0696.
    ENGLISH v. DELBRIDGE.
    (454 SE2d 175)
   McMurray, Presiding Judge.

Plaintiff P. T. Delbridge, Jr., brought an action on account against defendant Frank English in the Magistrate Court of Tift County, Georgia, alleging that English owed him $2,000 pursuant to a contract to provide siding to defendant’s home. Defendant answered and counterclaimed for breach of contract, alleging that plaintiff’s “sloppy [and] poor workmanship [required] extra expense to complete [the] job. . . .” His counterclaim (in the nature of set-off) demanded $1,284. The magistrate found that plaintiff failed to carry his burden of proof and plaintiff appealed to the Superior Court of Tift County, Georgia. After a trial de novo, the jury returned a verdict for plaintiff, awarding him $1,650 plus costs. Proceeding pro se, defendant filed this direct appeal. Held-.

Decided February 10, 1995

Reconsideration denied February 22, 1995.

Frank English, pro se.

P. T. Delbridge, Jr., pro se.

“Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings . . shall be by application for discretionary appeal. OCGA § 5-6-35 (a) (1), (b). “The clear intent of section (a) (1), above, was to give the appellate courts (particularly the Court of Appeals . . .) the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case).” C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139). In the case sub judice, the judgment of the superior court entered on the jury verdict after a trial de novo represents review of lower court proceedings, i.e., the judgment of the magistrate court, and requires an application to this court for permission to pursue a discretionary appeal. Moreover, this final judgment awards contractual damages in an amount less than $10,000, and so would require an application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (6). “ ‘Because the appeal to this Court is taken from the decision of a [superior] court reviewing a decision of a magistrate court by a de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. (Cit.); OCGA § 5-6-35 (a) ([1]).’ Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538) (1992).” Crowder v. Citizens Trust Bank, 213 Ga. App. 477 (444 SE2d 853).

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A94A2292.
    HAMPTON v. NORRED & ASSOCIATES, INC.
    (454 SE2d 222)
   Johnson, Judge.

United Parking, Inc., hired Norred & Associates, Inc., to investigate employees suspected of stealing money from United. Norred investigators questioned United employee Paul Hampton regarding the alleged thefts. Hampton then sued Norred and others, claiming, among other things, he was falsely imprisoned during the questioning and is entitled to punitive damages and attorney fees. The trial court granted summary judgment to the defendants on all of Hampton’s claims. Hampton appeals.

1. Hampton contends the court erred in granting summary judgment to Norred on the false imprisonment claim. “On summary judgment, [the] movant has the burden to show there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law. ‘In ruling on a motion for summary judgment, . . . the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.’ [Cit.]” Williams v. Food Lion, 213 Ga. App. 865 (1) (446 SE2d 221) (1994); OCGA § 9-11-56. Construing the evidence in the current case and all inferences therefrom most favorably toward Hampton, we conclude Norred did not meet its burden of showing there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on the false imprisonment claim.

“The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. A detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.” (Citations and punctuation omitted.) Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992); see OCGA § 51-7-20. “A person need not make an effort to escape or to resist until an application of open force results, thereby risking possible physical injury, before he can recover; however, an actual detention must have occurred whether caused by force or fear.” (Citation omitted.) Williams v. Food Lion, supra at 865 (2). In the instant case, Hampton’s deposition testimony creates genuine issues of material fact as to whether he was unlawfully detained by actual physical restraint and by the words and acts of Norred agents which reasonably induced him into believing force would be used against him if he did not submit to their questioning.

Hampton testified that he was questioned for three or four hours in a room at United’s office building by a man identifying himself as a City of Atlanta police officer. Hampton later learned this man was not a police officer, but was actually a Norred investigator. During the questioning, the investigator had handcuffs lying on a table, had a gun and microphone strapped to his leg, cursed at Hampton and called him names, stomped on the floor, and kicked and beat the table. More than once Hampton attempted to leave the room, but two other Norred agents prevented him from exiting by blocking the doorway and bumping into him. These agents told Hampton to sit back down because they had not finished questioning him and he could not leave until he admitted how much money he had stolen. The Norred investigator then took $70 from Hampton and forced him to sign a statement admitting the thefts.

Norred argues that in spite of this testimony Hampton was not detained because he admitted he voluntarily went to United’s office building and never asked to leave. This argument is disingenuous and misconstrues Hampton’s deposition testimony. A review of his entire deposition reveals that Hampton never contradicted the material elements of his testimony that he initially went to United’s offices at the request of the company president, but was not told why he had been summoned; that once the Norred investigator accused him of the thefts he tried to leave the premises; and that Norred agents prevented his exit. Under these circumstances, Hampton was not required to also ask for permission to leave. Contrary to Norred’s argument, this is not a case in which the plaintiff unquestionably chose to surrender his freedom of motion, by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion. See J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813 (344 SE2d 701) (1986); Crowe v. J. C. Penney, 177 Ga. App. 586, 588 (2) (340 SE2d 192) (1986). Rather, this is a case which presents a genuine issue of material fact as to whether Norred detained Hampton. Compare Williams v. Smith, 179 Ga. App. 712, 713 (1) (348 SE2d 50) (1986).

Alternatively, Norred contends that any detention of Hampton was lawful because Norred had probable cause to suspect him of theft. In support of this contention, Norred cites OCGA § 51-7-60. Norred’s reliance on this statute is misplaced. “The statute provides a defense to claims of false arrest or false imprisonment whenever the owner or operator of a mercantile establishment or any agent or employee of the owner or operator detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting. . . . The statute makes no reference to the detention of people for reasons other than suspected shoplifting, and being in derogation of common law, it must be strictly construed.” (Citations and punctuation omitted; emphasis in original.) Taylor v. Super Discount Market, 212 Ga. App. 155, 156 (1) (441 SE2d 433) (1994). Strictly construing OCGA § 51-7-60, we conclude it is inapplicable to the present case. Norred’s argument is therefore without merit.

Because Norred failed to carry its burden of showing the lack of any genuine issues of material fact as to whether it unlawfully detained Hampton, the trial court erred in granting summary judgment to Norred on the false imprisonment claim. See Kemp v. Rouse-Atlanta, 207 Ga. App. 876, 878-880 (2) (429 SE2d 264) (1993).

2. Hampton asserts the court erred in granting summary judgment to Norred on his claims for punitive damages and attorney fees. The court granted summary judgment as to those claims on the ground that they are derivative of the underlying claims, including false imprisonment, which the court had already adjudicated in favor of Norred. As discussed in Division 1 of this opinion, because the court erred in granting summary judgment to Norred on the false imprisonment claim, it also erred in finding there is no underlying claim to support the derivative claims of punitive damages and attorney fees.

Decided February 22, 1995.

Lynn H. Whatley, Smith, Howard & Ajax, Matthew G. Moffett, Michael J. Rust, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, King & Spalding, William A. Clineburg, Jr., for appellee.

Judgment reversed.

Beasley, C. J., and Andrews, J., concur.