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

text:
    A98A0503.
    PAINTER v. CONTINENTAL INSURANCE COMPANY.
    (504 SE2d 285)
   Johnson, Presiding Judge.

Plaintiff Painter brought an action against a “John Doe” driver for personal injuries and served the complaint on Continental Insurance Company which had provided motor vehicle insurance, including uninsured motorist coverage, for his employer’s vehicle. Plaintiff alleged that he was injured due to the negligence of the “John Doe” defendant when the vehicle he occupied crashed into a highway median after being struck by an unknown vehicle. Defendant moved for summary judgment contending that plaintiff failed to show either of the alternative prerequisites for recovery of a claim where the owner or operator of a vehicle causing damage is unknown as provided pursuant to OCGA § 33-7-11 (b) (2). Defendant’s motion for summary judgment was granted and plaintiff appeals.

Pursuant to OCGA § 33-7-11 (b) (2), plaintiff is required to establish either actual physical contact between the vehicle of the unknown party and the vehicle he occupied, or that his description of how the occurrence occurred is corroborated by an eyewitness other than himself. See State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538 (492 SE2d 678) (1997); Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501 (431 SE2d 147) (1993); State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992); Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 49 (1) (397 SE2d 466) (1990).

Plaintiff deposed that a co-worker, Horace Stewart, was driving the company owned pickup truck in the right-hand lane of 1-285 northbound when a vehicle merging from 1-20 westbound struck their vehicle. Plaintiff stated that: “He hit us in the back as he came off. He hit us on the back right corner. Started the truck to turn this way. Spun to the right. The front end did. When Mr. Stewart corrected it, it spun back hard the other way and seemed to catch traction and just shot right into the median concrete barrier between the lanes. And we hit him just pretty much straight head on. Went across all the traffic lanes. I don’t know how many it hit.” Plaintiff also testified that he felt and heard the impact of the unknown vehicle. Following the hearing on defendant’s motion for summary judgment, plaintiff filed the affidavit of Stewart which was considered by the state court in reaching its judgment. Stewart stated that: “an unidentified vehicle came off of the exit ramp from 1-20 West and caused their vehicle to swerve and lose control.”

The state court held that Stewart’s affidavit was not consistent with plaintiff’s deposition testimony and construed the supposedly conflicting testimony against plaintiff. See Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583 (361 SE2d 383) (1987). For the following reasons, the state court’s grant of summary judgment to Continental Insurance Company must be reversed.

1. Conflicting testimony. In this case, the claimant’s testimony on deposition as to how the incident occurred is not in material conflict with his description of the incident as evidenced in his complaint. Compare Atlanta Cas. Ins. Co. v. Crews, supra at 49 (2). Further, the affidavit of Stewart is not actually contradictory of Painter’s claim about the vehicle being struck by a phantom vehicle. However, even if it is considered contradictory, the rule of self-contradictory testimony does not apply to Painter. The rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), and thus perforce the similar rule as applied in Gentile, supra, “that a party/ witness testimony is to be construed against him when self-contradictory — does not apply to the testimony of a third-party witness.” Allen v. King Plow Co., 227 Ga. App. 795, 799 (4) (490 SE2d 457) (1997). Any inconsistency in Stewart’s affidavit could not be construed against Painter as to whom no self-inconsistent testimony as to this issue is shown. As Stewart’s sworn account on affidavit is not self-contradictory, within the meaning of Gentile and Prophecy, it remains viable evidence, evidence which corroborates Painter’s contention as to the existence of a phantom vehicle which caused the incident. Cf. Korey v. Bell South &c., 269 Ga. 108 (498 SE2d 519) (1998) (opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator’s self-contradictory testimony that supports the equivocator’s position).

2. OCGA § 33-7-11. OCGA § 33-7-11 (b) (2) pertinently provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. . . . [I]n order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.) The last sentence of this Code section was added to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not contact the insured’s vehicle. Atlanta Cas. Ins. Co. v. Crews, supra at 49 (1).

It was not the intent of the legislature to create a rule which would arbitrarily preclude coverage, for example for a victim injured so rapidly or so severely she could not testify as to how the occurrence happened, regardless of the number of competent witnesses available to testify as to the actual involvement of a John Doe driver and his phantom automobile. Id. at 50 (3). Rather, it was the legislature’s intent “to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim, ‘coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle,’ but where the claimant’s assertions of a phantom vehicle could be corroborated by an eyewitness.” (Emphasis supplied.) Id. What the legislature intended to be established with reasonable certainty, so as to preclude fraudulent claims, is the existence of a phantom automobile which caused the damage or injury. The legislature provided two methods by which this can be accomplished: (a) by proof of actual physical contact, or (b) by the claimant’s description of the occurrence corroborated by eyewitness testimony. The eyewitness does not have to be a disinterested third party. See Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987).

The corroboration required by the eyewitness account is corroboration of that portion of the claimant’s description asserting the existence of a phantom vehicle which caused the incident; that is, existence and causation. This is the degree of corroboration that is necessary to reasonably reduce the possibility of a fraudulent claim. Other discrepancies between the claimant’s description and the eyewitness account should be treated like any other evidentiary conflict — as presenting issues for resolution by the factfinder as to witness credibility and evidentiary weight.

As there exists an eyewitness who adequately corroborates that portion of Painter’s description of the occurrence which asserts that a phantom vehicle was present and caused the incident, there exists no need to further inquire as to the existence of actual physical contact. Accordingly, the judgment of the trial court must be reversed.

The precedent in Bone v. State Farm Mut. Ins., 215 Ga. App. 782 (452 SE2d 523) (1994) is not relevant to the disposition of this case and therefore the legal principió which it addresses is not ripe for appellate reconsideration.

Judgment reversed.

Andrews, C. J., Pope, P. J., Blackburn, Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., Beasley and Eldridge, JJ., concur specially.

McMurray, Presiding Judge,

concurring specially.

I am compelled to specially concur because I cannot go along with the majority holding that the case sub judice is not ripe for reconsidering that part of Bone v. State Farm Mut. Ins., 215 Ga. App. 782 (452 SE2d 523), which holds that the OCGA § 33-7-11 (b) (2) corroboration requirement applies to proof of actual physical contact. Because such reasoning was the basis of the trial court’s summary judgment order in the case sub judice, I believe this Court is authorized and obliged to resolve any confusion spawned by the decision in Bone.

The trial court points out in its summary judgment order that defendant Continental Insurance Company’s motion for summary judgment "is based on Plaintiff’s failure to establish physical damage or to present any evidence corroborating his claim that he was hit by an uninsured motorist pursuant to the provisions of O.C.G.A. § 33-7-11 (b) (2).” The trial court then reasons that defendant is entitled to summary judgment because (quoting from the trial court’s summary judgment order) “there is nothing in [Horace Stewart’s] affidavit which corroborates actual physical contact between Plaintiff’s vehicle and the John Doe vehicle.” This ruling, in my view, vests this Court with jurisdiction to consider whether corroboration is required with respect to evidence of actual physical contact between the vehicles. No such requirement had been discussed prior to Bone v. State Farm Mut. Ins., 215 Ga. App. 782, supra, which holds that OCGA § 33-7-11 (b) (2)’s corroboration requirement applies to proof of actual physical contact. The majority in Bone reasoned that circumstantial evidence of actual physical contact, the damage to the insured’s car discovered after the incident, did not provide proof that actual physical contact ever occurred because “[s]uch circumstantial evidence will not supply the necessary corroboration to satisfy OCGA § 33-7-11. Murphy [v. Ga. Gen. Ins. Co., 208 Ga. App. 501, 502, supra]. Therefore, Plaintiff has not supplied sufficient corroboration of actual physical contact to allow recovery under OCGA § 33-7-11.” Id. at 783.

I believe the Bone case is mistaken and must be overruled. A reading of OCGA § 33-7-11 (b) (2) shows that the corroboration requirement relates only to the exception which is provided for those circumstances in which there is no physical contact between the vehicles of the unknown uninsured motorist and the insured. Or, in other words, where there has been actual physical contact, there is no corroboration requirement and the proof of the fact of actual physical contact may be provided under general rules of evidence. Accordingly, since no case cited in the Bone opinion holds otherwise, I believe that for purposes of summary judgment, plaintiff’s deposition testimony in the case sub judice is sufficient to establish actual physical contact.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Beasley, Judge,

concurring specially.

Although I would still maintain the correctness of the dissenting opinion in Bone v. State Farm Mut. Ins., 215 Ga. App. 782 (452 SE2d 523) (1994), I agree with the majority that this is not a proper case in which to overrule that case.

In Bone the majority agreed with the trial judge that proof of “actual physical contact” had to be corroborated in order to satisfy the first alternative in OCGA § 33-7-11 (b) (2). They regarded the circumstantial evidence as insufficient corroboration. The dissent did not read the first statutory alternative as requiring corroborative evidence and regarded the plaintiff’s deposition testimony as sufficient circumstantial evidence of “actual physical contact” so as to survive summary judgment. All of the participating appellate judges agreed with the trial judge that plaintiff’s case fell short of fulfilling the second alternative because the nonparty witness was not an eyewitness and could not corroborate the claimant’s description of how the incident occurred. The majority opinion held that neither of the statutory alternatives was available in plaintiff’s situation, whereas the dissent concluded that plaintiff’s evidence satisfied the “actual physical contact” category.

In Painter’s case, the majority opinion holds that plaintiff’s direct testimony, establishing that the unknown vehicle struck the truck in which he was riding and that he felt and heard the impact and saw the car’s shadow as it went by them immediately thereafter, met the requirements of the first “actual physical impact” alternative and did not require corroboration. I agree with that.

The trial court, which erroneously referred to the passenger plaintiff as the driver and the driver-witness as the passenger when it was vice versa, committed a second error by requiring corroboration. The trial court then ruled that the non-party’s affidavit failed to corroborate the plaintiff’s evidence and that the plaintiff’s testimony constituted unexplained self-contradiction which was to be construed against him.

As demonstrated in the majority opinion, plaintiff’s own testimony supplied evidence of actual physical contact between the unidentified car and the truck in which he was riding. Not only did he describe it orally, he showed by diagram where the car “clipped,” i.e., “hit,” the truck. That satisfied the fraud-precluding requirement that “actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” OCGA § 33-7-11 (b) (2). No corroboration was required.

Deciding this case within the frame of the first alternative requires overruling Bone. Deciding it instead upon an analysis of the second alternative’s approach does not, because the plaintiff’s testimonial description of how the unidentified motorist caused the occurrence, which amplifies the allegations in his complaint, is corroborated by eyewitness Stewart’s affidavit statement “that as their vehicle exited 1-20 and proceeded north on 1-285 an unidentified vehicle came off of the exit ramp from 1-20 West and caused their vehicle to swerve and lose control. . . [and thus] caused the accident of their vehicle.” Therefore, a consideration of Bone is not necessary to resolve this summary judgment case, and its overruling here would be improper because it would be dicta. Flournoy v. State, 266 Ga. 618, 619 (2) (469 SE2d 195) (1996); White v. State, 213 Ga. App. 429, 430 (1) (445 SE2d 309) (1994). See also Wand v. State, 230 Ga. App. 460, 465 (496 SE2d 771) (1998) (McMurray, P. J., concurring specially); Cornwell v. State, 193 Ga. App. 561, 565 (388 SE2d 353) (1989) (Benham, J., concurring specially).

Decided July 15, 1998.

David L. Smith, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Marvin D. Dikeman, Steven R. Thornton, for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A0883.
    PARRISH v. AKINS et al.
    (504 SE2d 276)
   Pope, Presiding Judge.

On the morning of March 1, 1994, Henry Jones, a correctional officer for the Bulloch County Correctional Institute (BCCI), was in charge of supervising six inmates working at the courthouse annex in Statesboro. The six inmates, state prisoners being housed at BCCI, had been working under Officer Jones’ supervision at the annex for a week. Two of the inmates, Michael Jones and Paul Vickery, had worked without incident on Officer Jones’ work detail for six months prior to March 1. On that date, Michael Jones, Paul Vickery and two other inmates were assigned to clean windows and scrape paint on the south side of the annex. While those four inmates worked on the south side of the building, Officer Jones spent forty to fifty minutes teaching two other inmates how to lay brick walls around a radio tower near the southwest corner of the annex. During those 40 to 50 minutes, Officer Jones was approximately 75 to 100 feet away from the inmates on the south side of the annex and his view of them was obstructed by a large tree. As Officer Jones helped lay the brick, Michael Jones and Paul Vickery fled from the work site. The following morning, Michael Jones and Paul Vickery attacked Susie Parrish and stole her car. Both escapees were eventually found and taken back into custody.

Parrish subsequently sued, among others, Officer Jones and BCCI Warden John Akins, alleging that they were negligent in supervising the inmates who attacked her. Officer Jones and Warden Akins moved for summary judgment, in part, on the basis of their official immunity as government employees. The trial court granted the motion. Parrish appeals from the court’s order granting summary judgment to Jones and Akins.

1. Parrish claims that Officer Jones is not protected by official immunity because his supervision of the inmates working at the annex was a ministerial, rather than a discretionary, function. Parrish bases this claim on the fact that state regulations adopted by BCCI mandate that an officer keep medium security prisoners, such as Michael Jones and Paul Vickery, under constant supervision when they are outside the prison. Contrary to Parrish’s claim, the mere fact that supervising the prisoners is a mandatory function does not render the actual carrying out of the supervision a ministerial function unprotected by official immunity.

“The doctrine of official immunity . . . provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority. [Cits.]” Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994). “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citation and punctuation omitted.) Schmidt v. Adams, 211 Ga. App. 156, 157 (438 SE2d 659) (1993). “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. [Cit.]” Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995).

The facts of the instant case show that Jones’ supervision of inmates working outside the correctional institution was not a simple act requiring the mere execution of a specific duty, but was instead a difficult function that called for Jones to exercise his personal judgment. Even before going out on a work detail Jones exercised his judgment by deciding whether to request a particular inmate for the detail based on the inmate’s work skills, security classification, and criminal history. See Vertner v. Gerber, 198 Ga. App. 645, 646-647 (402 SE2d 315) (1991). At the work site, according to Warden Akins’ uncontroverted deposition testimony, it was Jones’ responsibility to use his discretion to decide exactly how to supervise the inmates. It is true, as Parrish notes, that the state regulations used by BCCI gave Officer Jones some guidance by directing him to keep medium security inmates such as Michael Jones and Paul Vickery under constant supervision. But the regulations give no explicit procedures that an officer must follow in order to execute the duty of constant supervision.

Moreover, the regulations provide: “The Correctional Officer or Supervisor in charge of each work detail shall be charged with the responsibility for maintaining custody, assuring discipline, achieving productivity, the care, control and maintenance of equipment, and the safety of both inmates and the general public.” It is clear from these regulations that an officer supervising inmates on a work detail has many responsibilities beyond simply watching inmates. Officer Jones had to determine for himself how to meet all of these responsibilities while supervising the six inmates at the courthouse annex. He decided to have four of the inmates work on the south side of the building while he taught two others how to lay brick on the southwest corner of the annex. This decision was fully within his judgment as the officer placed in charge of supervising the inmates.

The Georgia courts have found various acts of officers charged with the duty of supervising people in custody to be discretionary. See Merrow v. Hawkins, 266 Ga. 390, 391 (1) (467 SE2d 336) (1996) (jailer exercised discretionary power when he gave the keys of a car to be washed to an inmate); McDay v. City of Atlanta, 204 Ga. App. 621, 622 (2) (420 SE2d 75) (1992) (officer used discretion to remove handcuffs from a suspect during a custodial interview). In Price v. Owen, 67 Ga. App. 58, 63 (19 SE2d 529) (1942), this Court found that a warden used his discretion to allow convicts to work unsupervised outside a public-works camp. Relying on Price, we have said that “the operation of a . . . county correctional institute and the related supervision of convicts on work details outside the boundaries of that correctional institute, including the degree of training and supervision to be provided over its officers, is a discretionary governmental function of. . . the county warden, as opposed to a ministerial, proprietary, or administratively routine function.” (Citations, punctuation and emphasis omitted.) Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527-528 (4) (a) (486 SE2d 917) (1997) (physical precedent only). Under the circumstances of the instant case, we find that the task given to Officer Jones to supervise inmates working outside BCCI was a discretionary, as opposed to a ministerial, function.

Because Officer Jones was carrying out a discretionary function, he is protected by official immunity and cannot be held liáble unless he acted maliciously. Merrow v. Hawkins, 266 Ga. at 391 (2); Woodard v. Laurens County, 265 Ga. at 406 (2). The record is devoid of any evidence that Jones acted with malice. At most, his decision to allow inmates Jones and Vickery to work on one side of the building while he helped other inmates located around the corner of the building was negligent. “[0]fficial immunity is intended to protect public officials in the honest exercise of their judgment, however erroneous or misguided that judgment may be. Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced.” (Citations and punctuation omitted.) Hemak v. Houston County, 220 Ga. App. 110, 112 (469 SE2d 679) (1996). Here, any error by Officer Jones was made in the honest exercise of his judgment. Because Officer Jones’ supervision of inmates working outside the prison was a discretionary duty executed without malice, the trial court correctly granted summary judgment to him on the basis of his official immunity.

Decided July 15, 1998

Edenfield, Cox & Classens, Gerald M. Edenfield, Susan W. Cox, Michael J. Classens, for appellant.

Thurbert E. Baker, Attorney General, Kimberly L. Schwartz, Assistant Attorney General, Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellees.

2. Parrish contends that Warden Akins is not protected by official immunity because a warden is liable for his negligent supervision of subordinates engaged in a ministerial duty. See Nelson v. Spalding County, 249 Ga. 334, 337 (2) (a) (290 SE2d 915) (1982). Parrish reasons that Akins can therefore be held liable for Officer Jones’ negligent supervision of the inmates, which was a ministerial duty. This reasoning is without merit because, as discussed in Division 1 of this opinion, Officer Jones’ supervision of the inmates was a discretionary, rather than a ministerial, function. Accordingly, the trial court correctly found that Warden Akins is protected by official immunity. Bontwell, 226 Ga. App. at 527-528 (4) (a).

3. Because of our holdings in Divisions 1 and 2, we need not address Parrish’s arguments regarding proximate cause.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.


author: Smith, Judge.

text:
    A98A0899.
    LEDFORD v. THE STATE.
    (504 SE2d 512)
   Smith, Judge.

Charles Terry Ledford was indicted on one count of possession of methamphetamine with intent to distribute. He filed a motion to suppress evidence, which was denied after a hearing. Following a bench trial, Ledford was found guilty as charged. He appeals, contending in two enumerations of error that his motion to suppress was wrongly denied.

The evidence presented at the hearing on the motion to suppress consisted entirely of the testimony of the arresting officer, Sergeant David Spillers of the Hall County Sheriff’s Department. Spillers testified that while in charge of the Hall County Multi-Agency Narcotics Squad (MANS), he worked on a drug investigation in conjunction with the Piedmont-Northern MANS Unit. In the course of that investigation, Spillers provided information from a confidential informant to Investigator Steve Barnhart of the Piedmont-Northern MANS Unit. Based upon that information, Barnhart obtained a search warrant for certain premises in Jackson County. That warrant was executed on June 22, 1995, by officers from both MANS Units.

Spillers and another officer had earlier taken up positions in a concealed location at the edge of woods near the back door. Part of their assignment was to ensure that they “reduced or prevented any flight from the back door” during the execution of the warrant. He testified that other officers came to the location in a pickup truck and approached the front door. When the officers began executing the warrant, Spillers heard “a commotion inside the house — loud talking and bumping and thumping around.” Spillers then saw Ledford and another man come “flying out the back door.” Spillers testified that because of his position, Ledford and the other man “weren’t actually running away from me. They were running to me. . . . They were running away from the agents that were executing the warrant at the front of the house.”

Spillers stopped Ledford, placed him on the ground, and searched him. The search of Ledford’s person revealed a double plastic bag containing suspected methamphetamine. Ledford was not named in the warrant, but the warrant specifically authorized a search for methamphetamine.

1. Ledford contends his motion to suppress should have been granted because the search of his person was unlawful. He argues that Spillers’s search of Ledford’s person was not authorized -under OCGA § 17-5-28. “This statute by necessary implication describes the limited circumstances in which the executing officer may search persons not identified in the warrant incident to a legitimate search of premises.” (Citations and punctuation omitted.) Brown v. State, 181 Ga. App. 768, 770 (1) (353 SE2d 572) (1987). The statute provides that in executing a search warrant, an officer “may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.”

Spillers testified that he conducted the search for his own safety. Although Ledford turned out not to have been armed, Spillers did not know that when he searched him. Ledford argues that even if Spillers conducted the search because he reasonably believed Ledford to be dangerous, Spillers exceeded his authority in conducting a full search, including Ledford’s pockets, without first having conducted a patdown for weapons. Brown, supra at 770-771 (1) (a).

We need not reach this issue, however, because “[i]t has been held that this statute does not limit the officer’s right to search persons as to whom probable cause for a warrantless search exists.” (Citations and punctuation omitted.) Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989). Here, as in Travis, the appellant’s undisputed flight from the premises, coupled with the evidence of his presence at premises being searched under a warrant, provided probable cause for the officer to believe that he possessed, or was, at least, a party to the crime of possessing, the unlawful contraband specified in the warrant. Id. Ledford’s attempts to distinguish Travis are unavailing. The fact that in Travis the police officers knocked on the door, were wearing uniforms, and identified themselves, does not bear either on presence at the premises or on flight from the premises. And these two factors, when combined, serve to establish probable cause. Id. The search was proper.

Decided July 15, 1998.

Whitmer & Law, George H. Law III, for appellant.

Timothy G. Madison, District Attorney, Hillary M. Krepistman, Robin R. Riggs, Assistant District Attorneys, for appellee.

2. Ledford also contends the search could not be authorized as incident to his arrest because no probable cause existed for his arrest. But the same two factors establishing probable cause to search Ledford also established probable cause for his arrest. Travis, supra. The trial court relied upon Travis and correctly denied Led-ford’s motion to suppress. *

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A98A1076.
    McCONNELL et al. v. SMITH & WOODS MANAGEMENT CORPORATION et al.
    (504 SE2d 526)
   McMurray, Presiding Judge.

Plaintiff Sharon McConnell brought this tort action against defendant Smith & Woods Management Corporation d/b/a Wholesale Food Outlet Number 6 (“S & W”) and the ABC Company (name unknown), seeking to recover for personal injuries received when she slipped and fell allegedly because “defendant allowed excess food items to remain on the defendant’s premises even though there were employees in the area. . . .” Plaintiff further alleged she “did not have any knowledge of the dangerous condition and could not reasonably have expected to discover it.” Plaintiff Jon S. McConnell brought a separate claim for loss of consortium.

Defendant S & W denied the material allegations and moved for summary judgment, supporting its motion with the affidavit of Glenn Floyd, the assistant manager, who deposed that he was informed that plaintiff “had apparently fallen between the checkout and the front door of the store. When [Floyd] arrived at the scene, [plaintiff] informed [him] that she had just fallen after stepping on a green grape.” In keeping with his general routine to inspect the store on a regular basis for any type of debris, water, or other potentially hazardous foreign substances, on the day plaintiff fell, Floyd had “inspected the exact portion of the floor where [plaintiff] fell no more than thirty (30) minutes prior to her fall.” Floyd “confirmed that the area was clean, dry and free of any debris or foreign substances.” Defendant also relied on portions of plaintiff Sharon McConnell’s deposition wherein she admitted she was not looking down at the floor or at her feet; nothing distracted her; she did not know how the grape got on the floor or how long the grape had remained there prior to her fall; and that, while there were two store employees in the area at the time of her fall, one employee was busy ringing up plaintiff’s daughter’s groceries while the other was bagging groceries.

The trial court delayed consideration of defendant’s motion pending the decision of the Supreme Court of Georgia in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), but ultimately granted defendant’s motion for summary judgment, concluding that plaintiffs failed to show defendant’s actual or constructive knowledge of the hazardous grape. In reaching this determination, the trial court gave no weight to plaintiff Sharon McConnell’s affidavit testimony that the two employees “were able to see where the grape was” concluding such testimony was a mere conclusion as to what other persons did or could have done which was without probative value. Second, applying Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), the trial court eliminated any favorable aspect of plaintiff Sharon McConnell’s affidavit on this point, ruling that the affidavit and plaintiff Sharon McConnell’s deposition “directly contradict each other concerning the ability of the . . . employees to have seen the grape,” on the basis that in her deposition, plaintiff stated “I don’t think none of those people were watching me.” Plaintiffs Sharon McConnell and Jon S. McConnell appeal from the order of the trial court granting summary judgment, urging in three related enumerations of error that genuine issues of material fact remain for jury resolution. Held:

1. The trial court erred in eliminating the favorable factual elements of plaintiff Sharon McConnell’s affidavit on the basis of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, supra. To state that employees were focused on their tasks and not watching plaintiff at the time of her fall does not contradict the factual assertion that they were physically capable of seeing the loose grape had they looked. Compare Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (whole court), where the area of the floor where that plaintiff fell on a radish “was separated from the line of sight of the store employees by an aisle divider.”

Decided July 15, 1998.

Joseph M. Todd, for appellants.

2. Viewing all the evidence in the light most favorable to the nonmovant, defendant S & W’s own evidence establishes that the grape could have been on the floor for as long as 30 minutes. Where there is evidence that a reasonable inspection and/or cleaning procedure is in place and had been followed, normally no actionable constructive knowledge can be charged to the proprietor. J H. Harvey Co. v. Johnson, 211 Ga. App. 809, 810 (440 SE2d 548) overruled on other grounds, Robinson v. Kroger Co., 268 Ga. 235, supra; Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362). But this rule does not conclusively establish the absence of defendant S & W’s constructive knowledge, due to the presence of the two employees in the immediate vicinity where plaintiff fell. J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, supra (where that plaintiff testified at her deposition “that there were no employees of [defendant] in the vicinity at the time of her fall.”). The fact that defendant S & W’s two employees were not watching plaintiff at the precise moment she fell does not eliminate the favorable inference that, at some point during the half hour when the grape was on the floor, either the cashier or the bag person easily could have seen it and removed it. Compare Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 826 (2), 828 (482 SE2d 720), where that defendant’s employee did not have a reasonable opportunity to discover and remove the clear, colorless substance which smelled like Armorall or some similar product, which “substance was not on the floor 15 minutes before [plaintiff] Coffey fell.”

3. “A slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiff’s [own] negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard. . . .” Robinson v. Kroger Co., 268 Ga. 735, 747 (2) (b), supra. In support of a summary judgment motion, the defendant in a slip-and-fall action still bears the onus of establishing the nonexistence of every material fact, namely, disproving its actual knowledge and pointing out the absence of evidence of its constructive knowledge of the alleged hazard. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In our view, defendant S & W’s evidence fails to pierce the pleadings. The grant of summary judgment on this evidentiary posture was in error.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.

Webb, Carlock, Copeland, Semler & Stair, Andrea M. Muller, Marvin D. Dikeman, James R. Doyle II, for appellees.


author: McMURRAY, Presiding Judge.

text:
    A98A1180.
    JOHNSON et al. v. THE STATE.
    (504 SE2d 290)
   McMURRAY, Presiding Judge.

Defendant Helen Johnson, also known as Helen Clare Elroy, and defendant Randall Edwin Johnson were charged in an indictment “with the offense of THEFT BY DECEPTION (§ 16-8-3) for that the said accused in the County of Richmond and State of Georgia, between the 1st day of March, 1996, and the 30th day of June, 1996, did obtain property, to-wit: United States Currency, the property of Augusta Laboratory, Inc., with a value of $9,413.00, with intention of depriving the owner of said property by deceitful means, in that they did: intentionally create the impression of another, to-wit: Dr. Jan Scholar, of an existing fact, to wit: that Edwin R. Jernigan was a legitimate person representing a South Carolina Corporation, to-wit: Phlebotomy, Inc., and that representatives of Phlebotomy, Inc. performed 5612 phlebotomy procedures and 44 audits of Medical records and procedures for which Augusta Laboratory, Inc., was billed pursuant to an agreement between Phlebotomy, Inc. and Augusta Laboratory, Inc., all of which was false and which the said accused knew to be false. The aforesaid false impressions were created by the way presentation of invoices presented by Phlebotomy, Inc., for payment to Augusta Laboratory, Inc., on Phlebotomy Inc. Invoice numbers 1001, 1002, 1003, and 1004 in which the number of phlebotomy procedures and audits are overstated.”

Defendants jointly filed a written demurrer, contending the indictment “fails to allege some specific date on which the purported offense was committed[;] fails to specify whether the alleged offense arises out of a single occurrence or a series of occurrences[; and] is too vague, uncertain and unclear to allow the Defendants to prepare a defense and avoid surprises at trial.” Permission to pursue an interlocutory appeal was granted to review the certified order of the superior court overruling this demurrer on each and every ground, and a timely notice of appeal was filed. Defendants’ sole enumeration of error contends the trial court erred in overruling their demurrer to the indictment. Held:

1. OCGA § 17-7-54 (a) provides a statutory form indictment which directs the grand jury to “state with sufficient certainty the offense- and the time and place of committing the same. . . .” “But the defendant is entitled, if he demand it in time, to have a perfect indictment in form as to the essential elements of time and place. . . .” Harris v. State, 58 Ga. 332, 334 (2). This Code section “was not intended to dispense with the substance of good pleading.” Johnson v. State, 90 Ga. 441, 444 (16 SE 92). Upon special demurrer, the indictment is examined “on the assumption that [the accused is] innocent, [for] this the law presumes. . . .” Johnson v. State, 90 Ga. 441, 442, supra. Nevertheless, “[i]t is a well-settled rule in this State, that the language of an indictment is to be interpreted liberally in favor of the State. Penal Code, § 929 [now OCGA § 17-7-54]; Studstill v. State, 7 Ga. 2, 16. It follows necessarily from this, that a demurrer raising special objections to an indictment should be strictly construed against the pleader.” Green v. State, 109 Ga. 536, 538 (1), 540 (35 SE 97).

2. Defendants contend the alleged lack of a specific date or dates on which the purported offense or offenses occurred requires reversal under the authority of State v. Stamey, 211 Ga. App. 837 (440 SE2d 725). We disagree. See Bridges v. State, 103 Ga. 21, hn. 1 (29 SE 859).

In State v. Stamey, 211 Ga. App. 837, supra, that indictment charged those defendants with theft by taking “based on allegations that between January 2, 1991, and January 10, 1992’” they did unlawfully possess United States Currency, the property of another valued at more than $500 with the intention of depriving the owner of that property. State v. Stamey, 211 Ga. App. 837, supra. The trial court quashed the indictment, in part, for failure to allege when the property was taken, and failure to specify whether the alleged offense constituted a series of thefts or a single occurrence. Id. This Court affirmed, holding that the failure to allege either a day or a month within the 53-week period specified rendered the indictment defective under the authority of Braddy v. State, 102 Ga. 568 (27 SE 670) and OCGA § 17-7-54 (a) for failure to state the time of the offense with sufficient certainty. State v. Stamey, 211 Ga. App. 838 (1) supra. See also Bailey v. State, 65 Ga. 410, hn. 1.

But in Bridges v. State, 103 Ga. 21, 31 (1), supra, the Supreme Court of Georgia held an indictment alleging defendant Bridges committed embezzlement “on the first day of January, one thousand eight hundred and ninety-four, and on divers other days since that date . . .” (emphasis omitted) sufficiently alleged a date certain. In the case sub judice, the indictment in substance alleges defendants fraudulently obtained money from Augusta Laboratory, Inc., over a specific time period within a single calendar year, “between the 1st day of March, 1996, and the 30th day of June, 1996,” by the artifice of submitting four specified billings which intentionally overstated work performed. The alleged theft by deception plainly occurred in two steps, namely submitting the fraudulent bills and then accepting any tendered payment therefor. In our view, this indictment states the offense and the time with sufficient certainty to allow each defendant, as an innocent accused, to prepare his or her defense and also to afford protection against double jeopardy. See Wingard v. State, 13 Ga. 396, 400 (2). Consequently, we do not deem State v. Stamey, 211 Ga. App. 837, 838 (1), supra to be controlling in the case sub judice.

Decided July 15, 1998.

Richard E. Allen, for appellants.

Daniel J. Craig, District Attorney, Swift, Currie, McGhee & Hiers, Monique R. Walker, for appellee.

3. The indictment is also good as against a general demurrer, in that defendants cannot admit the facts alleged and still be innocent of theft by deception. Dunbar v. State, 209 Ga. App. 97 (2), 98 (432 SE2d 829). The trial court correctly overruled defendants’ demurrer on each and every ground.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       The entire decision in Braddy v. State, supra is: “An indictment [for adultery] which charges the commission of an offense in a certain year, without naming either the day or month upon which it was committed, is defective, and upon special demurrer thereto before arraignment, should be quashed.”


author: Eldridge, Judge.

text:
    A98A1503.
    A98A1504.
    A98A1505.
    A98A1506.
    CHARTER PEACHFORD BEHAVIORAL HEALTH SYSTEM, INC. et al. v. KOHOUT. VARGAS v. KOHOUT. CPC PARKWOOD HOSPITAL v. KOHOUT. COBIELLA v. KOHOUT.
    (504 SE2d 514)
   Eldridge, Judge.

This malpractice case involves mental health issues and the statute of limitation as to such actions. All appeals raise such issues of the statute of limitation but state the issues, in a number of different ways. Case Nos. A98A1503, A98A1504, and A98A1505 raise exclusively such issues, while Case No. A98A1506 raises additional issues that will not be reached.

Ms. Kohout has a history of mental health illness dating to 1987, which history pre-dates treatment by the defendants, of an eating disorder, depression, suicidal ideation, auditory hallucination, and reported sexual abuse by her father. In June 1990, plaintiff was diagnosed by Dr. Ann Gustin, a psychologist, as having multiple personality disorder (“MPD”), and Dr. Gustin treated the plaintiff for MPD in 1990. While in therapy with Dr. Gustin, plaintiff engaged in physical abuse of herself, including cutting her body.

In August 1990, plaintiff began therapy at the same time with defendant Dr. Donna Ulrici, a psychologist, who is not a defendant-appellant. Dr. Ulrici learned of Dr. Gustin’s diagnosis of MPD and concurred in the diagnosis. Plaintiff terminated her treatment with Dr. Gustin.

In March 1991, Dr. Ulrici admitted plaintiff to the Eating Disorder Unit at Charter Peachford Hospital (“Charter”) where she remained until August 1991. Plaintiff alleges that Charter, Christine Engstrom, Dr. Grace Cobiella, and Dr. Fiameta Vargas, defendants-appellants, forced her through therapy to believe that she had a MPD with dozens of “altered personalities”; that she had been sexually abused by family members; and that such abuse occurred during satanic cult ceremonies. Plaintiff contends this is a misdiagnosis. Plaintiff alleges that Dr. Ulrici, with the assistance of the other defendants, used improper therapy or used therapy in an improper way through “memory work,” “guided imagery,” “body memories,” and hypnosis, as well as drug therapy, resulting in recovered memory and causing plaintiff to believe that she had been abused sexually by her family during satanic rituals and that she had a MPD as a result. Thus, using improper therapy, plaintiff recovered “repressed” memories of sexual and satanic ritual abuse, which eliminated any doubts that she had as to her diagnosis through the institutionalized nature of Charter’s therapy.

From August 21, 1991 until August 26, 1991, plaintiff was admitted to CPC Parkwood Hospital (“Parkwood”). Plaintiff alleges that Parkwood negligently accepted the admission diagnosis of Dr. Ulrici and the other defendants without performing available and competent tests to independently establish the nature of plaintiff’s mental condition.

From December 1991 until February 1992, plaintiff was again hospitalized at Charter and underwent the same treatment as during previous hospitalizations.

Subsequently, plaintiff intentionally cut herself, requiring 40 stitches. She was hospitalized at Parkwood from August 5,1992 until September 3, 1992, and then again from October 8, 1992 until October 12, 1992.

In November 1992, plaintiff began work as a full-time nanny for Dr. Elizabeth Goey until August 1994. From August 1994 until December 1994, plaintiff worked full-time as a nanny for Ms. Lauretta Russell.

From August 17, 1994 until August 19, 1994, plaintiff was again hospitalized at Parkwood. However, other than such hospitalization, plaintiff had no further treatment or clinical care from the defendants-appellants, except Dr. Ulrici. In February 1995, plaintiff discontinued her treatment with Dr. Ulrici.

On November 25, 1995, plaintiff filed her original complaint alleging medical malpractice in misdiagnosing and treating her. On March 25, 1996, plaintiff filed her amended complaint against the defendants and added Parkwood. The defendants-appellants filed their motions for summary judgment based upon the running of the statute of limitation. The trial court entered an order denying all summary judgment motions. The defendants-appellants applied for a discretionary appeal which was applied for and granted. Dr. Ulrici did not seek a discretionary appeal.

All the defendants-appellants, in various ways, contend that the trial court erred in not finding that the statute of limitation barred plaintiff’s action against them. We agree that summary judgment on the running of the statute of limitation should have been granted to the defendants-appellants as to injuries arising on or before October 12, 1992.

(a) OCGA § 9-3-70 (1) and (2) defines an “action for medical malpractice” so broadly for purposes of the statute of limitation that the defendant medical doctors, psychologists, mental hospitals, and the dietician all come within the act. See Bradway v. American Nat. Red Cross, 263 Ga. 19 (426 SE2d 849) (1993); Zechmann v. Thigpen, 210 Ga. App. 726, 727 (1) (437 SE2d 475) (1993); Allrid v. Emory Univ., 166 Ga. App. 130, 131 (1) (303 SE2d 486) (1983), aff’d, 251 Ga. 367 (306 SE2d 905) (1983). OCGA § 9-3-71 (a) mandates that a medical malpractice action must be brought “within two years after the date on which an injury . . . arising from a negligent or wrongful act or omission occurred.”

In this case, plaintiff’s alleged misdiagnosis and treatment, including the representations that she had been sexually abused by a family member and that the sexual abuse was part of a satanic ritual, were injuries that occurred and became manifested at the same time of the defendant’s acts or omissions, were manifested prior to the running of the statute. Plaintiff in her complaint and amended complaint seeks to recover for mental pain and suffering from the inception of the misdiagnosis and treatment, as well as for special damages for unnecessary, improper treatment and hospitalizations, which means that damages, i.e., general, special, or nominal, occurred and became manifested at the time of the misdiagnosis. See Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984); Everhart v. Rich’s, Inc., 229 Ga. 798, 802 (194 SE2d 425) (1972); Oxley v. Kilpatrick, 225 Ga. App. 838, 839-840 (486 SE2d 44) (1997), rev’d on other grounds, Rossi v. Oxley, 269 Ga. 82 (495 SE2d 39) (1998).

“In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. [Cit.] The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. [Cit.]” Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988); see Jones v. Lamon, 206 Ga. App. 842, 846 (1) (426 SE2d 657) (1992); Stone v. Radiology Svcs., R A., 206 Ga. App. 851, 852 (426 SE2d 663) (1992). Thus, in this case, plaintiff suffered mental pain and suffering from the inception of the misdiagnosis, if not physical pain and suffering as well, and special damages from the alleged needless hospitalizations and therapy sessions. This is not a situation where the injury was concealed but was revealed to plaintiff at the time of the act or omission by the disclosure of the diagnosis to her, because the consequences to plaintiff were ascertainable and known to her from the inception of the wrongful acts or omissions, whether or not she appreciated the medical cause. Allrid v. Emory Univ., 249 Ga. 35, 36 (285 SE2d 521) (1982); Everhart v. Rich’s, Inc., supra at 802; Bryant v. Crider, 209 Ga. App. 623 (434 SE2d 161) (1993).

While plaintiff may have later learned that defendant’s diagnosis and treatment was made in error, causing her mental pain and suffering at that time in 1995, plaintiff and plaintiff alone was always in the unique position of knowing from the commencement of treatment and the alleged misdiagnosis (despite the suggestions, hypnosis, or influence of the defendants) whether she had been sexually abused by a family member and if the abuse came from satanic practices, as evidenced by the fact that she later came to reject such diagnosis. Plaintiff had mental suffering at the time of the misdiagnosis in 1990 from the belief that she had a MPD and had been abused as a child by family members during satanic rituals; at that time, she suffered isolation and alienation from her family as a consequence of the misdiagnosis and therapy.

Damages, i.e., manifested compensable injuries, whether general, special, or nominal damages, begin the running of the statute of limitation in misdiagnosis cases, and the failure to know the medical cause of the damage until later does not give rise to the application of the “discovery rule,” where damages occurred concurrently with the wrongful acts or omission so that the cause of action then accrued. OCGA § 9-3-71 (a); Ford v. Dove, 218 Ga. App. 828, 831 (3) (463 SE2d 351) (1995); Henry v. Medical Center, 216 Ga. App. 893, 894 (2) (456 SE2d 216) (1995); Crawford v. Spencer, 217 Ga. App. 446, 448 (3) (457 SE2d 711) (1995); Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994); Bryant v. Crider, supra at 626 (3); Jones v. Lamon, supra at 846. Thus, there was no subsequent discovery of the injury; plaintiff always was aware of the injury and only later came to reject the diagnosis and treatment as false. See Henry v. Medical Center, supra at 894; Crawford v. Spencer, supra at 448; Whitaker v. Zirkle, supra.

(b) The “continuing tort” theory is inapplicable to actions for medical malpractice, since it would nullify the intent of the General Assembly that, after five years, no medical malpractice action could be brought, even when a disability attaches to toll the running of the statute because the statute of repose abolishes any action five years after the negligent or wrongful act or omission. OCGA § 9-3-71; Crawford v. Spencer, supra; see also Ford v. Dove, supra at 829 (2); Hickey v. Askren, 198 Ga. App. 718, 720-721 (2) (403 SE2d 225) (1991). OCGA § 9-3-71 (b) creates a statute of repose so that no cause of action for medical malpractice exists five years after the negligent or wrongful act or omission; the right of action is abrogated by statute as if it never existed. See Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (437 SE2d 308) (1993).

If the injury, i.e., damage, is not manifested so that it is discoverable until two or more years after the negligent or wrongful act or omission, then under the plain meaning of OCGA § 9-3-71 (a), the statute of limitation does not commence to run until an injury is manifested, i.e., discovery or reasonable opportunity for discovery of the injury. The tort does not accrue until there are damages, i.e., injury or death, to commence the running of the statute of limitation. See Clark v. Singer, 250 Ga. 470, 471 (298 SE2d 484) (1983); Screven v. Drs. Gruskin & Lucas, P.C., 227 Ga. App. 756, 758 (490 SE2d 422) (1997); Oxley v. Kilpatrick, supra at 839-840. Discovery should occur when damages first become manifest; without damages, no tort action accrues in order to commence the running of the statute of limitation. Shessel v. Stroup, supra at 57; Everhart v. Rich’s, Inc., supra at 802; Screven v. Drs. Gruskin & Lucas, P.C., supra at 758; Oxley v. Kilpatrick, supra at 839-840; Whitaker v. Zirkle, supra; accord Staples v. Bhatti, 220 Ga. App. 404, 406 (469 SE2d 490) (1996); Knight v. Sturm, 212 Ga. App. 391 (442 SE2d 255) (1994); Zechmann v. Thigpen, supra at 728-729 (3); Vitner v. Miller, 208 Ga. App. 306, 307 (430 SE2d 671) (1993). “Georgia courts have consistently held that in a continuing tort a cause of action accrues when a plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof. [Cits.]” Waters v. Rosenbloom, 268 Ga. 482, 483 (2) (490 SE2d 73) (1997).

Whether by discovery, which delays the accrual of the action, or by infancy, incompetency, or fraud, which may toll the statute of limitation for up to five years, however, nothing stops the abrogation of the action by the statute of repose; five years after the negligent or wrongful act or omission occurred, despite any non-discovery or any tolling, the medical malpractice action or potential action ceases to exist by abrogation of law under the statute of repose. OCGA §§ 9-3-71 (b); 9-3-73 (c); Waters v. Rosenbloom, supra at 483-484; Crowe v. Humana, Inc., 263 Ga. 833 (1) (439 SE2d 654) (1994); Craven v. Lowndes County Hosp. Auth., supra at 660 (2); Wright v. Robinson, 262 Ga. 844, 845 (1) (426 SE2d 870) (1993); Kumar v. Hall, 262 Ga. 639 (423 SE2d 653) (1992); Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 572 (3) (423 SE2d 235) (1992); Zechmann v. Thigpen, supra at 729-730; Lasoya v. Sunay, 193 Ga. App. 814, 815 (1) (389 SE2d 339) (1989); Whitaker v. Zirkle, supra at 707 (1).

(c) To toll the running of the statute of limitation by fraud or concealment, plaintiff must present evidence to show such concealment or fraud by each defendant against whom such tolling is sought to apply. Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 280-281 (2) (306 SE2d 366) (1983); Hamilton v. Mitchell, 165 Ga. App. 717, 718 (302 SE2d 589) (1983). Even where the plaintiff can show actual fraud exists, if plaintiff knew all of the facts necessary to show malpractice prior to the running of the statute, then such knowledge will prevent the statute from being tolled. Lasoya v. Sunay, supra at 816-817 (3); Hendrix v. Schrecengost, 183 Ga. App. 201 (358 SE2d 486) (1987); Hamilton v. Mitchell, supra at 719.

The conduct of Dr. Ulrici cannot be imputed to any defendant-appellant for purposes of tolling the statute of limitation; whether the defendants-appellants and Dr. Ulrici acted “in concert” or “sequentially and/or concurrently,” each defendant-appellant must be shown to have individually made fraudulent misrepresentations or intentionally concealed the existence of a cause of action to toll the running of the statute as to such defendant-appellant.

The fraud that tolls the running of the statute of limitation must be actual and not constructive and is that fraud which deters or debars the bringing of the action. See Wade v. Thomasville Orthopedic Clinic, supra at 280-281 (2); General Tire &c. Co. v. Alex, 149 Ga. App. 393, 394 (254 SE2d 509) (1979); see also OCGA § 9-3-96. Fraud under OCGA § 9-3-96 requires that “plaintiff has been debarred or deterred from bringing an action.” This statute has three elements: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the existence of the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) plaintiff exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation. Jim Walter Corp. v. Ward, 245 Ga. 355 (265 SE2d 7) (1980).

The key element for such tolling to apply is that the fraud must have debarred or deterred plaintiff from bringing the suit timely. General Tire &c. Co. v. Alex, supra at 394-395. The fraud must conceal the cause of action and cut plaintiff off from suing, preclude him, hinder him, shut him out, or exclude him to debar him from bringing suit for purposes of suspension of the running of the statute of limitation. Haynesworth v. Hall Constr. Co., 44 Ga. App. 807, 816 (2) (163 SE 273) (1932). Some trick or artifice must be employed to prevent inquiry, elude investigation, or mislead and hinder the plaintiff from obtaining information necessary to reveal the existence of a cause of action. Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 679 (2) (426 SE2d 165) (1992); Kerce v. Bent Tree Corp., 166 Ga. App. 728, 729 (305 SE2d 462) (1983); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 613 (1) (247 SE2d 197) (1978); Clinton v. State Farm &c. Ins. Co., 110 Ga. App. 417, 421-422 (1) (138 SE2d 687) (1964); Middleton v. Pruden, 57 Ga. App. 555, 557-559 (196 SE 259) (1938).

If the underlying cause of action is based upon constructive fraud, negligence, or breach of contract, then an independent act of actual fraud or intentional concealment must also exist that debars and deters plaintiff from suit on the underlying action; but if the underlying action is for actual fraud, then the statute of limitation begins to run from discovery of the fraud or when the fraud should have been discovered in the exercise of due diligence, absent a confidential relationship thatjustifi.es reliance. Shipman v. Horizon Corp., 245 Ga. 808, 809 (267 SE2d 244) (1980); Metlife v. Wright, 220 Ga. App. 827, 828 (1) (470 SE2d 717) (1996); Middleton v. Pruden, supra at 557-559. Mere silence is not enough to establish actual fraud that tolls the statute; there must be a positive affirmative act to conceal the existence of the cause of action. Shipman v. Horizon Corp., supra at 809; Stephens v. Walker, 193 Ga. 330, 332 (2) (18 SE2d 537) (1942); Comerford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980).

However, where there is a confidential relationship and where there is a duty to disclose or the right in the plaintiff to expect full communication of the facts, concealment per se or intentional silence amounts to actual fraud that tolls the statute. Zechmann v. Thigpen, supra at 730 (5); Southern Feed Stores v. Sanders, 193 Ga. 884, 888 (4) (20 SE2d 413) (1942); Lasoya v. Sunay, supra at 815 (1); Morris v. Johnstone, 172 Ga. 598 (158 SE 308) (1931); Comerford v. Hurley, supra at 388. “The physician-patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud”; however, there must be evidence that there was an intent to conceal by silence or that the representations were false when made and were intended to mislead. Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456) (1986); accord Beck v. Dennis, 215 Ga. App. 728, 729 (452 SE2d 205) (1994). The physician- or psychologist-patient relationship is a confidential relationship that requires disclosure of facts that would give rise to a cause of action, and the intentional failure to do so is concealment that tolls the statute. Zechmann v. Thigpen, supra at 730 (5); Lasoya v. Sunay, supra at 815 (1); Breedlove v. Aiken, 85 Ga. App. 719, 720-721 (70 SE2d 85) (1952). Where such confidential relationship exists, the plaintiff has the right to rely upon what her physician tells her, and an intentional failure to disclose will toll the statute if the intent to conceal or to remain silent is shown. Hill v. Fordham, 186 Ga. App. 354, 355 (1) (367 SE2d 128) (1988); Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773-774 (278 SE2d 653) (1981). There must be evidence that each health care provider intentionally withheld information as to the wrongful conduct in order to toll the statute of limitation. Zechmann v. Thigpen, supra at 730 (5); Lasoya v. Sunay, supra at 815 (1); Hendrix v. Schrecengost, supra at 202 (1).

In this case, there is no evidence that the .defendants-appellants knew that there was a misdiagnosis prior to the lawsuit or intended to conceal anything from the plaintiff that would give her a cause of action. Craven v. Lowndes County Hosp. Auth., supra at 660 (3); Lasoya v. Sunay, supra at 816 (1); Hendrix v. Schrecengost, supra at 203 (1). “A mere misdiagnosis ‘is insufficient to raise an issue of fraud.’ [Cit.]” Hendrix v. Schrecengost, supra at 203; accord Craven v. Lowndes County Hosp. Auth., supra at 660.

Thus, if the defendant never learns or has no reason to believe that there has been a misdiagnosis, then there can be no concealment, because there must be the actual intent to mislead or to conceal, involving moral turpitude. Blalock v. Anneewakee, Inc., supra at 678; Craven v. Lowndes County Hosp. Auth., supra at 660; Hendrix v. Schrecengost, supra at 202 (1); Stephens v. Walker, supra; Morris v. Johnstone, supra; Middleton v. Pruden, supra.

In a medical malpractice action for misdiagnosis, the fraud that plaintiff must show to toll the statute of limitation is an intentional failure to reveal negligence. Rowell v. McCue, 188 Ga. App. 528 (373 SE2d 243) (1988). Notwithstanding the confidential relationship between physician and patient and the resultant lessened duty of diligence on the plaintiff, if the alleged fraud did not prevent the plaintiff from learning of defendant’s alleged negligence, then the statute is not tolled. Craven v. Lowndes County Hosp. Auth., supra at 660; Hendrix v. Schrecengost, supra at 202 (1); Hamilton v. Mitchell, supra at 719.

In this case, plaintiff knew the facts of her past; knew that Dr. Ulrici diagnosed her as having a MPD, with childhood sexual abuse in conjunction with satanic rituals; and knew that she was treated based upon such diagnosis. Plaintiff chose to believe and to act on such opinions and to allow treatment. Hamilton v. Mitchell, supra at 719. Thus, plaintiff was not debarred or deterred from knowing that she had a cause of action for an alleged misdiagnosis by defendants-appellants’ acts or omissions. Plaintiff subsequently came to believe that the earlier diagnosis was incorrect; both positions were based upon the same knowledge in her possession, but were interpreted in different ways. Plaintiff chose to believe and to rely upon different experts with different opinions. Fraud did not operate to toll the running of the statute of limitation as to any defendant-appellant. Wade v. Thomasville Orthopedic Clinic, supra at 281-282.

(d) OCGA § 9-3-73 (b) (“persons who are legally incompetent because of mental retardation or mental illness”) and OCGA § 9-3-90 (a), when construed in pari materia, have the same meaning and require a plaintiff to be “mentally incompetent” during the period of tolling of the statute of limitation. Kumar v. Hall, supra at 643-644 (1). The General Assembly in passing such Code sections did not intend to change the prior law by modernizing the statutory language from “insane persons” as used in Ga. Code Ann. § 3-801. “[Mjental incapacity is included within insanity as used in Code Ann. § 3-801. . . . We find that the enactment of the Official Code of Georgia did not change the preexisting meaning of the predecessor of § 9-3-90. [Cits.]” (Punctuation omitted.) Id. at 643. The general tolling provisions of OCGA § 9-3-90 do not apply to medical malpractice actions, because OCGA § 9-3-73 (b) applies instead. Id. at 643-644.

In determining whether to apply the tolling provisions, under OCGA § 9-3-73 (b), the test for mental incompetence is: “ ‘Is his mind so unsound, or is he so weak in his mind, or so imbecile, no matter from what cause, that he cannot manage the ordinary affairs of life?’” Mayor &c. of Athens v. Schaefer, 122 Ga. App. 729, 730 (178 SE2d 764) (1970). Mental incapacity that tolls the statute is the unsound mind that renders the plaintiff incapable of acting for him or herself in order to carry on her business, to undertake or maintain a suit for the recovery of her property, to prosecute her claim, and to manage the ordinary affairs of life. Lawson v. Glover, 957 F2d 801 (11th Cir. 1987); see Lowe v. Pue, 150 Ga. App. 234 (257 SE2d 209) (1979); Cline v. Lever Bros. Co., 124 Ga. App. 22, 23 (4) (183 SE2d 63) (1971); Barnett v. Ashley, 89 Ga. App. 679, 682 (1) (81 SE2d 11) (1954); Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 380 (1) (18 SE2d 57) (1941).

For purposes of summary judgment, plaintiff’s claim of incompetency to function on a day-to-day basis so as to toll the statute may be rebutted by plaintiff’s own testimony to the contrary, showing that there is no factual dispute as to competency. Hickey v. Askren, supra at 719-721 (2). While plaintiff may have been mentally ill, even assuming the alleged misdiagnosis was correct that plaintiff suffered from MPD and an eating disorder, plaintiff’s testimony did not show that she was incapable of carrying out her day-to-day life activities and making decisions, even though she was hospitalized for treatment. The record shows that she did, with some emotional difficulty, carry on her daily ability to make decisions. She had the mental capacity to voluntarily admit herself for treatment and to be discharged from hospitals. Plaintiff was not legally incompetent within the meaning of OCGA § 9-3-73 (b) so as to toll the statute of limitation.

(e) For purpose of determining when an injury from a misdiagnosis occurred as the consequence of acts or omissions of the defendants, each defendant’s acts or omissions must be separately analyzed and determined as concurring in the cause of the original injury or in aggravation of such injury; where the acts or omissions of the defendants concurrently caused an indivisible injury or aggravated a preexisting injury, the statute begins to run for each such defendant at the time the injury occurred from the tort and manifests any damages or at the date the injury was subsequently aggravated by each defendant’s acts or omissions. See generally Stone v. Radiology Svcs., P. A., supra at 852 (2); Jones v. Lamon, supra at 844-846; Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 178-180 (2) (358 SE2d 468) (1987). In the case of a misdiagnosis that does not manifest any damages at the time of the act or omission, but does result in damages at a later time, the statute of limitation commences to run upon discovery of the damages. Shessel v. Stroup, supra at 56; Staples v. Bhatti, supra at 406; Knight v. Sturm, supra at 391; Vitner v. Miller, supra at 307; Whitaker v. Zirkle, supra. However, the subsequent act or omission of a tortfeasor causing subsequent injury does not extend the statute of limitation to such subsequent injury for other tortfeasors, because such subsequent act or omission is an independent tortious act aggravating a pre-existing injury. See Jones v. Lamon, supra at 846. But, if the subsequent tortious act brings about the indivisible injury where no injury previously existed, i.e., the straw that broke the camel’s back, then all previous tortfeasors would be joint tortfeasors in the discovered and manifested injury. See Whitaker v. Zirkle, supra. However, in this case, the damages accrued concurrently with the alleged wrongful conduct, not subsequently.

In this case, plaintiff suffered special damages, as well as general damages or at least nominal damages, at the date of the alleged misdiagnosis by Dr. Ulrici. Therefore, any damages sustained by the plaintiff between October 12, 1992, and February 1995, when plaintiff discharged Dr. Ulrici, were further aggravation of a pre-existing injury, affecting the statute of limitation as to Dr. Ulrici only.

Absent a partnership, the joint treatment of a patient by health care providers does not create a joint venture as a matter of public policy, allowing the wrongful conduct of one health care provider to be imputed to another health care provider. Rossi v. Oxley, supra. Separate from public policy considerations, absent joint right of control and sharing of profits and losses, a joint venture cannot legally exist between health care providers. Id. at 82-83.

(f) Charter and Parkwood had a duty to supervise only employees and agents; such hospitals had no duty to supervise independent contractors, doctors with staff privileges, who were not employees, i.e., psychiatrists and psychologists. See Allrid v. Emory Univ., supra at 39-40 (2); Ga. Osteopathic Hosp. v. Hollingsworth, 242 Ga. 522 (250 SE2d 433) (1978); Hodges v. Doctors Hosp., 141 Ga. App. 649, 651 (234 SE2d 116) (1977). “The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” Hodges v. Doctors Hosp., supra at 651; accord Allrid v. Emory Univ., supra at 39-40; Murphy v. Clayton County Hosp., 175 Ga. App. 152, 153 (1) (333 SE2d 15) (1985); Clary v. Hosp. Auth. &c. of Marietta, 106 Ga. App. 134, 135 (1) (126 SE2d 470) (1962). Where a “ ‘hospital reserve(s) no right to control specific medical techniques employed by the . . . doctors, but merely exercise(s) a limited surveillance in order to monitor the quality of medical care provided,’ these controls are not inconsistent with an employer-independent contractor relationship. Overstreet v. Doctors Hospital, 142 Ga. App. 895, 897 (237 SE2d 213) (1977).” Allrid v. Emory Univ., supra at 40.

Decided July 15, 1998

Alston & Bird, Lawrie E. Demorest, Cari K. Dawson, for appellants (case no. A98A1503).

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, Henry E. Scrudder, Jr., Linda J. Pollock, for appellant (case no. A98A1504).

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Daniel J. Huff, Cameron P. Turner, for appellant (case no. A98A1505).

Downey & Cleveland, Y. Kevin Williams, W. Curtis Anderson, for appellant (case no. A98A1506).

Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., Philippa V. Tibbs, Scott M. Zahler, for appellee.

The acts or omissions of Dr. Ulrici “in concert” or “sequentially and/or concurrently” with Charter and Parkwood did not impute her subsequent conduct after October 12, 1992 to Charter and Parkwood so as to extend or toll the statute of limitation as to them, because they were not liable for her acts or omissions as an agent or employee.

Judgment reversed.

McMurray, P. J., concurs. Blackburn, J., concurs in judgment only.


text:
    A98A1865.
    LIBERTY MUTUAL INSURANCE COMPANY v. ANTHONY et al.
    (504 SE2d 525)
    Decided July 15, 1998.

      Carter & Ansley, Tommy T. Holland, Burke B. Johnson, for appellant.

      Frederick & Associates, J. Malik Abdullah Frederick, for appellees.
   McMurray, Presiding Judge.

Plaintiff Liberty Mutual Insurance Company filed this direct appeal from the trial court’s February 23, 1998 order dismissing defendant Carolyn Anthony as Guardian of Kirsten Bowen and as Administratrix of the Estate of Connie M. Stembridge from plaintiff’s action for declaratory relief for failure to state a claim upon which relief could be granted under OCGA § 9-11-12 (b) (6). The plaintiff’s action for declaratory relief remains pending against defendants Clarendon National Insurance Company, John Bleakly Ford, Inc. and Charles Bowman. Since the trial court did not direct entry of final judgment in accordance with OCGA § 9-11-54 (b) and there has been no compliance with the interlocutory appeals procedure of OCGA § 5-6-34, the trial court’s February 23, 1998 order is not final and appealable. Church v. Bell, 213 Ga. App. 44 (443 SE2d 677) (1994). Accordingly, this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1133.
    HAMILTON v. THE STATE.
    (504 SE2d 236)
   Eldridge, Judge.

On July 16, 1997, at approximately 3:35 p.m., defendant Linda Hamilton was stopped on Turner Hill Road in DeKalb County for driving 62 mph in a 45 mph speed zone. The weather was cloudy, the road was dry, and traffic was light. The DeKalb County Solicitor-General filed an accusation in DeKalb County State Court charging Hamilton with two counts of speeding. Hamilton pled not guilty and demanded a jury trial.

On January 15, 1998, Hamilton appeared for trial without counsel and represented herself. She apparently declined to have the proceedings taken down by the court reporter. Accordingly, there is no transcript of what the trial court said in advising Hamilton regarding her decision to act pro se or the risks of proceeding without the benefit of a trial transcript. However, Hamilton signed a waiver of counsel form, and the trial court issued an order in which she concluded that Hamilton had validly waived her right to counsel.

It is undisputed that, at trial, Hamilton testified in her own defense and was cross-examined by the State. The jury subsequently convicted Hamilton of both counts of speeding.

The record contains a transcript of the sentencing phase, during which the trial court made numerous questionable statements regarding Hamilton’s unwillingness to admit to the act for which she was convicted and the trial court’s belief that Hamilton had lied during her testimony as to prior speeding, a belief that was based upon inferences made from outside the record. According to the trial court, the State asked Hamilton during cross-examination whether she had “ever” driven over the speed limit, an improper question which injected Hamilton’s character into evidence. Hamilton testified that she never sped, then clarified her answer, saying that she sped only when necessary as a matter of safety, as when trying to pass a truck. The State presented no evidence that Hamilton had ever sped previously. It is undisputed that Hamilton had never been charged with speeding prior to this incident. Thus, any inference to the contrary was made from outside the record.

Even so, during sentencing, the trial court stated that “it is incredible for anyone to get up on the stand and say that you have never sped.” The trial court then sentenced Hamilton to serve two days in jail because the court believed that Hamilton lied during her testimony as to prior speeding. The trial court also sentenced Hamilton to 12 months on probation, a $1,000 fine plus court costs, and 80 hours of community service. Hamilton persuaded the trial court to allow her to present herself for the jail sentence on the following Tuesday, January 20, 1998.

On January 20, 1998, Hamilton appeared with counsel before the trial court. Counsel made an oral motion to the court to reconsider the jail sentence. According to the transcript of the hearing, the trial court repeatedly reiterated that Hamilton was sentenced to jail because she lied to the jury as to prior speeding. After the trial court denied the motion, counsel requested that the court set an appeal bond. Although Hamilton owned a home, was employed, had family in the area, and stood convicted of a misdemeanor, the trial court set a bond of $10,000. This appeal follows. Held:

1. (a) In her first enumeration of error, Hamilton claims ineffective assistance of counsel, based upon numerous substantial errors she committed during her pro se defense. However, “[w]hen a criminal defendant elects to represent [herself], . . . [she] will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein [she] was counsel.” (Citation and punctuation omitted.) Williams v. State, 192 Ga. App. 317, 319 (3) (384 SE2d 877) (1989).

(b) Even so, in pursuing her ineffectiveness claim, Hamilton also raises the legitimate issue of whether or not she knowingly and intelligently waived her right to counsel. Because this Court finds that the record does not show that Hamilton had sufficient information upon which to effect a valid waiver, notwithstanding the trial court’s conclusory order, we reverse.

“When an accused is placed on trial for any offense, whether felony or misdemeanor, for which [she] faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment” of this right. (Citations and punctuation omitted; emphasis supplied.) Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997). See also Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1938); Taylor v. Ricketts, 239 Ga. 501 (238 SE2d 52) (1977); Keith v. State, 218 Ga. App. 729 (1) (463 SE2d 51) (1995); Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991). In other words, the record should establish that the defendant “knows what [she] is doing” in choosing self-representation and that her choice is made “with eyes open.” (Citations and punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 195 (275 SE2d 49) (1981).

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” (Citations and punctuation omitted.) McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986). See also Johnson v. Zerbst, supra at 465; Clarke v. Zant, supra at 196. “In order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid[,] such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. When determining whether there has been an informed and intelligent waiver of such a right, each case must be determined upon its own peculiar facts and circumstance[s]. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” (Citations and punctuation omitted; emphasis supplied.) Rutledge v. State, supra at 669-670 (3). See also Clarke v. Zant, supra at 196; King v. State, 231 Ga. App. 775 (501 SE2d 19) (1998); Keith v. State, supra; Kirkland v. State, supra at 357-358 (1); Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68) (1990). In so noting, we recognize that there is “no magic language that must be used by a trial judge in determining that a defendant has made a valid waiver of his right to counsel.” Reviere v. State, 231 Ga. App. 329, 330 (498 SE2d 332) (1998); see also King v. State, supra at 776.

On appeal, the appellant generally carries the burden to show error affirmatively by the record. Keith v. State, supra at 729 (1), citing Hudson v. State, 197 Ga. App. 428, 429 (2) (398 SE2d 779) (1990). However, when a defendant challenges an alleged waiver on appeal, it is the State’s burden to prove that the defendant received sufficient information and guidance from the trial court upon which to knowingly and intelligently relinquish this right. Wilson v. State, 230 Ga. App. 74 (495 SE2d 330) (1997); Keith v. State, supra at 730; Kirkland v. State, supra at 357. This evidence must overcome the presumption against waiver. See Cook v. State, 227 Ga. App. 674, 676 (490 SE2d 181) (1997); Keith v. State, supra at 730.

(c) Looking at the totality of facts and circumstances in this case, the only evidence in the record which supports a finding that Hamilton validly waived her right to counsel was a waiver form signed by Hamilton. However, there was a cursory order by the trial court and a more explicit order denying Hamilton’s motion for reconsideration dated January 21, 1998, which simply reiterated the same conclusions of the trial court without stating the facts upon which the court relied regarding Hamilton’s alleged waiver. In the January 21 order, the trial court noted that it instructed Hamilton in accordance with Cook v. State, supra, and concluded that Hamilton understood “the consequences of self[-]representation.” The order also stated that Hamilton was advised of the “benefits of an official transcript.”

In Cook v. State, supra at 675, the record included a transcript which showed, in detail, the court’s warnings to the defendant which reflected that the defendant had been informed about the risks of proceeding pro se at trial. Numerous other cases have found that the case records sufficiently supported the State’s assertion that the defendant knowingly waived the right to counsel. For example, in Rutledge v. State, supra, this Court found that the trial transcript “clearly” indicated that the defendant knowingly and voluntarily waived his right to counsel. However, the Rutledge Court also found that, even if the trial court erred in allowing the defendant to proceed pro se, such error was harmless, since court-appointed counsel provided assistance regarding procedural matters during trial, so that the defendant did not stand trial “ ‘alone with no assistance or protec tion of his rights! ” (Emphasis supplied.) Id. at 670. See also Clarke v. Zant, supra at 197; Wakily v. State, 225 Ga. App. 56 (483 SE2d 313) (1997); Staples v. State, 209 Ga. App. 802, 804 (434 SE2d 757) (1993); Williams v. State, supra at 318-319 (2). Also, the Rutledge Court found that the State’s evidence against the defendant was strong, the defendant was given “considerable” latitude during cross-examination, and the “defendant was well prepared to defend himself and did so in a credible fashion. [Therefore, this Court concluded] that it is unlikely that defendant’s convictions were attributable to his decision to represent himself.” (Citations and punctuation omitted.) Id. at 671. See also King v. State, supra at 776; Reviere v. State, supra at 330; McCook v. State, supra at 277-278.

In this case, there is no transcript of the trial court’s instructions to Hamilton regarding her right to counsel and the significant potential consequences of proceeding pro se. Indeed, this case provides many examples of such consequences, some of which are tied directly to Hamilton’s ill-informed decision to waive recording of the proceedings. For example, there is no indication in the record that Hamilton was apprised of the real possibility of a jail sentence, even though she never before had been charged with speeding and no other aggravating circumstances were present; it is unlikely that one would anticipate a jail sentence following a conviction based on a first offense for speeding 17 miles over the speed limit, even though such sentence is statutorily authorized. Additional considerations of which Hamilton should have been advised were the inherent difficulties on appeal in challenging her conviction and sentence, due to the failure to have the proceedings taken down; the opportunity to strike a former prosecutor from the jury or to assert an objection to the trial court’s alleged failure to strike for cause; the opportunity to object to questioning and the importance of preserving an objection for consideration on appeal; the risk that a fundamental misunderstanding of the State’s burden of proof might influence one to waive other constitutional rights by testifying in one’s own behalf; or that the State could not inject her character into evidence unless she did it first. Under the circumstances in this case, information regarding these issues was necessary for Hamilton to fully appreciate the risks of self-representation and to make a truly informed decision about whether to waive her right to counsel, as well as to fulfill the trial court’s protective duty to pro se defendants once the decision has been made to proceed without counsel. The waiver form failed to advise her of such matters. A proper waiver form should contain the warnings verbally given by the court instead of the conclusions.

Instead, in proving Hamilton’s alleged waiver on appeal, the State relies on a waiver form signed by Hamilton, the trial court’s conclusory findings that Hamilton knowingly waived her rights, and the trial court’s subsequent assertions that Hamilton was duly informed of her rights. However, accepting the trial court’s assertion that it undertook to so inform Hamilton, it was incumbent upon the trial court to provide either a record with sufficient particularity regarding the information given or to set forth the findings of fact upon which the conclusions of law were based, so as to allow for subsequent appellate review. Although we reiterate that no “magic words” regarding specific risks or benefits are necessary to prove a waiver, the totality of the evidence in the record must show that the trial court provided sufficient information, assistance, and support to allow the defendant to make a truly informed decision to knowingly relinquish counsel under the individual circumstances of the case. Under the facts and circumstances of this case, it is clear that this did not occur with sufficiency for the defendant to knowingly relinquish the right to counsel.

Accordingly, we find that the State’s evidence in this case was insufficient to meet its burden of proving a valid waiver and that the trial court erred in finding that Hamilton knowingly and voluntarily waived her constitutional right to counsel.

(d) Further, the record clearly shows that Hamilton was, indeed, standing “alone with no assistance or protection of [her] rights.” See Rutledge v. State, supra at 670, and cases cited in Division 1 (c), supra. In fact, Hamilton’s mistakes during trial directly resulted in the trial court’s branding her as a liar and imposing a jail sentence that was harsh under the circumstances, although statutorily authorized. We therefore conclude that Hamilton’s alleged waiver of counsel very likely contributed to her subsequent conviction and resultant sentence. Accordingly, such harmful error requires reversal. We remand this case to the trial court for a new trial and a proper advising of the defendant of her rights.

Decided July 1, 1998

Reconsideration denied July 16,1998

Ronald B. Arenson, for appellant.

Ralph T. Bowden, Jr., Solicitor, Raymond J. Burby TV, W. Cliff Howard, Assistant Solicitors, for appellee.

2. For purposes of this appeal, Hamilton’s remaining enumerations are moot. Further, they are unlikely to recur upon retrial and, therefore, will not be addressed.

Judgment reversed and remanded.

McMurray, P. J., and Blackburn, J., concur.

       The waiver form stated as follows: “I have been advised of the nature of the charges against me, the maximum and minimum punishment provided by law and my right to be represented by a private attorney!.] I understand that I am not eligible for the assistance of the public defender and I have decided to represent myself at trial. ... I have been advised by the court of the dangers of proceeding to trial without the assistance of counsel. I understand that a lawyer might be able to discover and raise defenses to the charge(s) against me, discover weaknesses in the State’s case, and/or offer advice that might otherwise benefit me during my trial. I understand that I have the right to remain silent at trial and I am not required to testify or offer any other evidence at trial. I understand that I will be bound by the rules of trial procedure during my trial even though I have not been trained as a lawyer.” Under Hamilton’s signature at the bottom of the page, someone wrote “Age 38 . . . Post-college education.” However, such proposed waiver does not set forth that the defendant understood the possible defenses to the charges, circumstances in mitigation, that the State cannot place the defendant’s character in evidence, a detailed description of trial procedure, and the statement of any plea offers and the consequences to constitute a knowing relinquishment of the right of counsel in addition to knowing that there is a right of counsel. See Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997); see also Cook v. State, 227 Ga. App. 674 (490 SE2d 181) (1997).

       The trial court’s order stated that “I have satisfied myself that [Hamilton] has decided to forego the assistance of counsel and represent himself [sic] and that this decision is free, voluntary, and intelligent. Moreover, it has been made with an understanding of the consequences of representing one’s self.”

       Hamilton was charged with and convicted on two separate counts: driving 62 mph in a 45 mph speed zone and driving at a speed in excess of the posted 45 mph speed limit. Hamilton’s convictions were merged for sentencing purposes. See OCGA § 16-1-7; see also Padgett v. State, 205 Ga. App. 576, 578 (423 SE2d 411) (1992).

       This Court specially notes that transcripts of the sentencing phase and hearing on the motion for reconsideration were produced on appeal only after Hamilton filed a writ of mandamus to compel the trial court to produce such transcripts for inclusion in the record on appeal. See Hamilton v. Majette, No. CA 98-4809-1 (DeKalb Super. Ct. filed April 22, 1998).

       We note, however, that the trial court’s statements during sentencing indicate that Hamilton’s sentence possibly was influenced also by Hamilton’s demand for a jury trial. The trial court admonished Hamilton that “[cjollectively literally thousands of dollars have been spent, in attorney time, police officer time, in the Court’s time, delaying other matters that had . . . been previously scheduled, so that you could have your day in court, that there is a cost to all of that. You understand what I’m saying?” The trial court also lamented the cost of a jury trial during the hearing on Hamilton’s motion for reconsideration.

       Immediately following the trial, the trial court, on its own motion, ordered the evidence produced at trial to be sealed. Such evidence was unsealed on March 6, 1998, for transmission to this Court, following a motion by Hamilton.

         This Court recognizes that, during the sentencing hearing and the hearing on the motion to reconsider, the trial court stated that it previously had given Hamilton instructions regarding the State’s burden of proof and the defendant’s right not to testify. However, the trial court also expressly noted that Hamilton clearly did not “understand the gravity of what you have done” in choosing to testify on her own behalf. This is particularly true when the trial court makes inferences from-such testimony that are not supported by the record in aggravation for sentencing purposes. Since the trial court went to considerable trouble in preparing a lengthy written order setting forth her conclusions of law, then, had such order contained a recitation of facts upon which such conclusions were based, i.e., what the verbatim warnings were and what defendant’s response had been, the evidentiary basis would have existed.

       We note, without deciding, that advising the defendant about the “benefits” of transcription is insufficient to support an informed waiver of such right unless the defendant is also advised about the risks of the failure to transcribe, particularly the difficulties in challenging a conviction or sentence on appeal.

       Specifically, the prosecution violated the prohibition of OCGA § 24-9-20 (b) by inquiring on cross-examination into prior similar criminal conduct, i.e., speeding. If Hamilton answered yes, then she admitted to such conduct without a pretrial hearing pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991); if she answered no, as she did, then the prosecutor raised the issue of her credibility, i.e., as shown by the influence on the trial judge.

       Hamilton asserted during the sentencing hearing that she had talked to the jurors following the trial and that they “thought I had a good case but not enough evidence to sup

        port my stand,” i.e., that she was not speeding. (Emphasis supplied.) This statement clearly indicates that Hamilton believed that she had the burden to disprove the State’s case.


author: Johnson, Presiding Judge.

text:
    A96A2343.
    THE STATE v. DAVID et al.
    (504 SE2d 528)
    Decided July 16, 1998.

      R. Joseph Martin III, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellant.

      Turner & Pool, John R. Turner, Jack B. Williamson, Jr., F. Gates Peed, Gary L. Mikell, for appellees.
   Johnson, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, State v. David, 269 Ga. 533 (501 SE2d 494) (1998), our decision in State v. David, 225 Ga. App. 541 (484 SE2d 278) (1997), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

McMurray, P. J, and Ruffin, J, concur.