author: Johnson, Judge.

text:
    A96A1367.
    In the Interest of A. M. V. et al., children.
    (474 SE2d 723)
   Johnson, Judge.

Charlie Vincent, Jr., appeals from an order terminating his parental rights. He argues that the only evidence of unfitness introduced was one or two years old and consequently was insufficient to establish present unfitness. We disagree.

“The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrably negative effect on the quality of the parent-child relation; and physical, mental, or emotional neglect of the child.” (Citation and punctuation omitted.) In the Interest of A. Q. W., 217 Ga. App. 13, 14 (456 SE2d 284) (1995); OCGA § 15-11-81 (b) (4) (B) (i), (iii), (v). “Another [factor which may be considered] is a parent’s egregious conduct or evidence of past egregious conduct of the parent toward the child of a physically, emotionally, or sexually cruel or abusive nature. OCGA § 15-11-81 (b) (4) (B) (iv).” (Punctuation omitted.) In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1995).

In cases involving the termination of parental rights, we review the evidence in the light most favorable to the appellee. In the Interest of S. T., 201 Ga. App. 37, 40 (4) (410 SE2d 312) (1991). So viewed, the evidence shows that in June 1993, while executing a search warrant for marijuana in the residence of Charlie Vincent and his wife Jennifer Vincent, police found the couple and their five children, who ranged in age from one to five years, living in deplorable conditions. One of the officers searching the home testified that it was filled with flies and that the odors in the house, which he likened to the smell of a decomposing body, were so terrible that he was barely able to breathe. When the officer entered a bedroom, he found the mother “half nude” and the children lying on one of many piles of clothing. One of the children was sucking a dirty bottle as flies flew around the child’s mouth. Human feces were found in several places on the floor, on clothing lying on the floor, and smeared on the walls and fixtures. There was very little food in the refrigerator, the kitchen sink was filled with dirty water and dead flies, and rotten food and garbage were strewn about the inside and outside of the house. Food, garbage and maggots were found in the cars in the carport, and a utility room was completely filled with garbage. Marijuana and photographs of the parents engaged in various lewd sexual poses and acts were found in the same room as the children. The children were immediately taken into the custody of the Pierce County Department of Family & Children Services (“DFACS”). The parents were arrested and charged with possession of marijuana and cruelty to children. They later pled guilty to all of the charges and were sentenced to serve probation.

In August 1993, after a hearing and upon stipulation by the parents, the juvenile court found that the children were deprived and in need of protection and entered an order placing temporary legal custody of the children with DFACS for 18 months. The order also referred to a case plan designed to reunify the family. The order was not appealed. In January 1995, DFACS moved to extend custody of the children for an additional two years. After a hearing and stipulation by the father (the mother did not appear), the juvenile court extended DFACS’ custody for another two years. In August 1995, DFACS moved to terminate the parents’ rights to the children. The mother voluntarily relinquished her parental rights, and the proceeding continued with only the father contesting the termination.

In addition to Officer James Mock, whose testimony is discussed above, several other witnesses testified at the termination hearing. One foster parent of three of the children testified that the children came to the foster home with head lice, were extremely violent, and were found engaging in inappropriate sexual behavior. A kindergarten teacher who taught one of the children testified that the child always came to school dirty, improperly dressed, and with such a terrible odor that other children complained and did not want to sit near him. She added that the child was angry, disruptive, and missed approximately one-third of all school days. The teacher added that often neither parent showed up for scheduled conferences, and that the father stated at one meeting that he did not have time for the conferences.

A DFACS caseworker testified that, while in foster care, two of the children reported that their father had sexually abused them in 1993. The children told the caseworker that their father had “messed with” them, performed oral sex upon them, and forced them to touch and to perform oral sex upon him. Videotaped interviews with the boys on this subject were admitted into evidence. The father was arrested in February 1994 on child molestation charges based on the allegations, but as of the date of the termination hearing, November 30, 1995, the case had not been presented to a grand jury.

A mental health facilitator testified that two of the children are in therapeutic foster care, which is designed for children with special needs, and that one of the children stated during therapy that he is afraid of his father; the witness testified that she has seen the child try to hide upon seeing someone resembling his father. Another foster parent testified about behavioral problems exhibited by one of the boys, including nightmares, bedwetting, and expressions of fear that his father was coming to get him.

Jennifer Vincent, the children’s mother, testified that the father did not work and that he often smoked marijuana in front of the children. She also testified that while the children were in DFACS’ custody the father admitted to her that he had committed the acts of sexual abuse alleged by the children.

The father, who was 25 years old at the time of the termination hearing, testified that he supports himself with Supplemental Security Income benefits which he receives for a personality disorder and asthma. He has received these benefits since he was 16 years old. He testified that he was admitted to a hospital emergency room for mental illness just a few days before the hearing in November 1995 and was ordered to take tranquilizers five times per day, which he stopped taking because they “messed up up in my — in my private areas.” He testified further that between October 1995 and the termination hearing in November 1995, he lived in at least six different places, including the car.

On the one hand, the father is correct in his argument that much of the evidence adduced at the hearing concerns his circumstances at the time the children were removed from his home and placed in DFACS’ custody, rather than his circumstances at the time of the termination hearing. However, he is incorrect in concluding that the evidence was therefore insufficient to show present unfitness.

In a termination case, evidence that is one or two years old is not outdated. There will necessarily be some passage of time between the date the children are taken from the parents’ home and the date of the termination hearing. This is due in part to the fact that where children are removed from the home, the parent must be given an opportunity to comply with a court-ordered reunification plan before termination proceedings are initiated. See OCGA § 15-11-41 (c). The lapse of time in this case was not inordinate.

Furthermore, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue if the children were ever returned to their father. See In the Interest of M. J. T., 217 Ga. App. 356, 358 (457 SE2d 265) (1995). The juvenile court considered Vincent’s past conduct in making this determination.

Finally, it is clear from the court’s order that the father’s present circumstances were fully considered. In its order, the juvenile court specifically cited evidence of the father’s source of income, his mental disability and recent hospitalization, and his lack of a stable residence. The court also considered evidence that the father admitted having sexually abused two of the children over whom he sought to regain custody. The evidence clearly shows that the children were deprived, that the deprivation was due to lack of proper parental care, that the deprivation was likely to continue, and that the deprivation was likely to cause serious physical, mental, emotional and moral harm to the children. We are not persuaded by the father’s argument that because he did not serve time in prison for the cruelty to children conviction, the conviction is not grounds for termination. The charge was for cruelty inflicted upon these particular children, and is certainly relevant to issues of whether he acted egregiously toward or physically, mentally or emotionally neglected them. Reviewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the father’s rights to custody have been lost. See Williams v. Payne, 211 Ga. App. 57, 58 (438 SE2d 170) (1993). The juvenile court did not abuse its discretion in terminating his parental rights. See In the Interest of M. J. T., supra at 358.

Decided August 16, 1996.

McGee & McGee, James B. McGee III, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Landers & Boggs, Michael P. Boggs, Michael D. DeVane, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A96A1370.
    DONALDSON v. THE STATE.
    (474 SE2d 722)
   Johnson, Judge.

In a two-count indictment, David Earl Donaldson was charged with simple battery, committed by intentionally causing physical harm to a person over 65 years of age, and robbery. After being found guilty on both counts, Donaldson appeals, asserting only that there was insufficient evidence to support the robbery conviction. The simple battery, with special circumstances, conviction is affirmed.

Donaldson argues that by failing to prove that any money or property was taken, the state failed to establish an essential element of the offense of robbery as charged in the indictment. Therefore, he contends the denial of his motion for directed verdict and conviction was error. We are constrained to agree. Four witnesses testified for the prosecution. The first witness testified that he called the police when he saw Donaldson pulling Nora Barnette from the office of the motel she managed into the rear residential area. A police officer testified that when he arrived at the scene he heard Donaldson say “I know there’s some f_money in this house, and I want it.” He saw that Barnette’s face had been beaten, and her blouse had been ripped. The living quarters appeared to have been ransacked. A second police officer testified that during a strip search conducted at the jail, $62 and some change was found in Donaldson’s underwear. Finally, Barnette’s son testified briefly about his 79-year-old mother’s injuries and the condition of her living quarters after the incident. The victim did not testify. The defense did not present any evidence.

No evidence was presented suggesting that anything was missing from either the motel office or Barnette’s living quarters. Compare Stowers v. State, 205 Ga. App. 518 (422 SE2d 870) (1992). The fact that Donaldson was carrying $62 at the time of his arrest at the motel while clearly attempting to commit a robbery, a crime with which he was not charged, is at best circumstantial evidence that any money was taken from the premises. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Here, the jury was not authorized to extrapolate from the fact that Donaldson had money hidden in his underwear that the only reasonable inference permissible was that some money had been stolen from Barnette, and further, that the money Donaldson was carrying was that money. This is particularly true in light of the officer’s testimony that he heard Donaldson complaining that he knew there must be money in the house, implying that he had not found it at the time of his arrest. “Only by speculation and conjecture could we assume that [Donaldson] took the money, and speculation and conjecture will not sustain a conviction.” Woodall v. State, 235 Ga. 525, 533 (221 SE2d 794) (1975). Accordingly, Donaldson’s conviction on the robbery count only must be set aside. See generally Dillard v. State, 251 Ga. 858 (2) (310 SE2d 518) (1984). However, the evidence was sufficient to support the lesser included offense of attempted robbery. In prior cases an appropriate procedure was established for vacating the conviction on the greater offense and directing entry of a conviction on the lesser offense. The case is remanded with direction that a conviction and sentence on the offense of attempted robbery be entered by the trial court. See Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989); Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981).

Judgment affirmed in part, vacated in part and case remanded with direction.

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

Decided August 16, 1996.

Levinson & Paul, Christopher G. Paul, Perrotta & Associates, Brian R. Cahn, for appellant.

T Joseph Campbell, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.


text:
    A96A1711.
    THE STATE v. BOLMAN.
    (474 SE2d 721)
   Johnson, Judge.

Therill Luel Bolman was charged with aggravated assault as follows: “The grand jurors . . . charge and accuse Therill Luel Bolman . . . with the offense of aggravated assault ... [in that he] did unlawfully make an assault upon the person of another, to wit: Henry Wade Alexander, with a deadly weapon, to wit: a certain knife.” Relying on Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), the trial court dismissed the indictment. Pursuant to OCGA § 5-7-1 (a) (1), the state appeals that ruling.

“[A] criminal indictment which does not recite language from the Code must allege every essential element of the crime charged. Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. . . . [Aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon.” (Footnotes omitted.) Hardrick, supra at 54-55 (1), (2). The indictment in Hardrick accused the defendant of “mak[ing] an assault upon (the victim) by placing his hands around (her) neck and using his hands to apply pressure to her neck contrary to the law.” Id. at 54.

The Supreme Court’s analysis first addressed the second prong of aggravated assault, finding that unless so specified, hands do not constitute deadly weapons and concluding the indictment was fatally flawed because it failed to identify that Hardrick had either an intention to murder, rape or rob, or that a deadly weapon was used to commit the crime. In this case, the indictment specifically identified the weapon as a knife which the trial court acknowledged satisfied that portion of the aggravated assault offense which contemplates use of a deadly weapon.

In Division 3 of the Hardrick opinion, the Supreme Court turned to the first prong of the aggravated assault charge and held that the indictment’s failure to specify that Hardrick intended to inflict a violent injury or place the victim in reasonable apprehension of being injured violently, by placing his hands on the neck of the victim, also rendered it fatally flawed. Id. at 56. Likewise, the indictment here did not state that Bolman’s use of the knife was intended to inflict a violent injury or place the victim in reasonable apprehension of being injured violently. Following Hardrick, the trial court here concluded that the indictment’s failure to address intent warranted dismissal.

Decided August 16, 1996

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellant.

Kenneth D. Kondritzer, for appellee.

We do not agree with the trial court that application of Hardrick to the indictment in this case requires a dismissal. The Supreme Court observes that the acts described in the Hardrick indictment, placing hands around the neck and applying pressure, also describes the legal activities of a state licensed chiropractor, thereby implying the indictment should have described Hardrick’s acts with more specificity than a cursory “contrary to the law.” In this case, however, the presence of a knife would normally place a victim in reasonable apprehension of being injured violently. Further, the indictment specifically stated that Bolman’s acts were unlawful, and “[t]his court has held that an allegation that appellant acted ‘unlawfully’ is sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent.” Joiner v. State, 204 Ga. App. 592, 593 (3) (420 SE2d 73) (1992).

Because Bolman’s right to reasonable notice of the charge against him was satisfied by this indictment, the trial court’s dismissal of the indictment is reversed. See Frost v. State, 200 Ga. App. 267 (2), 268, 269 (407 SE2d 765) (1991).

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A94A2584.
    A94A2585.
    A94A2586.
    A94A2587.
    A94A2588.
    A94A2589.
    A94A2591.
    MAY DEPARTMENT STORE et al. v. CENTER DEVELOPERS, INC. et al. HARTFORD ACCIDENT & INDEMNITY COMPANY v. CENTER DEVELOPERS, INC. et al. ALLSTATE INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. NATIONWIDE MUTUAL INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. JEWELERS MUTUAL INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al. ASSOCIATION OF APRIL MARCUS v. LOTZ et al. HOME INSURANCE COMPANY v. CENTER DEVELOPERS, INC. et al.
    (474 SE2d 734)
   McMurray, Presiding Judge.

In these related appeals, the plaintiffs are a tenant, the owner of a tenant, or else the subrogated insurer of a tenant, seeking to recover for property damage and business interruption losses resulting from two fires allegedly caused by negligence attributable to defendant Center Developers, Inc. and others. The trial court granted summary judgment to all defendants in each case, concluding that in the respective leases, the tenants had expressly waived any claim of subrogation and had agreed with Center Developers to hold each other harmless to the extent permitted by their respective fire insurance policies. Appellate consideration of these judgments resulted in three rulings by the whole court. Southern Trust Ins. Co. v. Center Developers, 217 Ga. App. 215 (456 SE2d 608). In Case Nos. A94A2583 and A94A2590, the whole court reversed the grant of summary judgment, holding that the trial court erred in failing to recognize the distinction between coverage under a liability policy and coverage under a property insurance policy. Id. at 220 (4). Certiorari was not sought with respect to that ruling. Certiorari was, however, granted by the Supreme Court of Georgia to consider our affirmance of summary judgment in Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589, and A94A2591, holding that the language employed in the leases was a valid waiver of the subrogation clause, and did not violate OCGA § 13-8-2. Id. at 216 (1). Certiorari was further granted in Case No. A94A2584 to consider our reversal of summary judgment on the grounds that any subrogation claims presented by the Interested Underwriters, although barred by the lease, were not pursued on appeal and that the claims of plaintiff May Department Store for uninsured losses were not barred by subrogation. Id. at 218 (3). Pursuant to the grants of certiorari these appeals were consolidated in May Dept. Store v. Center Developers, 266 Ga. 806 (471 SE2d 194). Therein the Supreme Court affirmed our affirmance of summary judgment in Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589 and A94A2591. However, as to Case No. A94A2584, the Supreme Court determined that the Interested Underwriters were, in fact, parties to the appeal and further “agree[d] with the Court of Appeals’ conclusion that the waiver of subrogation clause in the [applicable] lease is a valid one. . . Id. at 810 (3). Consequently, the Supreme Court “h[e]ld that the claims of the Interested Underwriters [were] barred by the waiver of subrogation. However, [the Supreme Court] agree[d] with the Court of Appeals that to the extent that May’s losses may not have been covered by the required insurance, summary judgment was inappropriate. . . . With the [single] exception, noted above, of the claims of the Interested Underwriters, the judgment of the Court of Appeals with respect to all parties to this appeal is affirmed.” Id. at 811 (3). Accordingly, in Case No. A94A2584, reported at 217 Ga. App. 215, 218 (3), supra, our judgment is vacated, and the judgment of the Supreme Court is made the judgment of the Court of Appeals. Therefore, the judgment of the trial court in Case No. A94A2584 is affirmed in part and reversed in part. With respect to Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589, and A94A2591, the trial court’s grant of summary judgment is affirmed.

Decided August 19, 1996.

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

Duncan & Mangiafico, Leslie P. Becknell, for appellees.

Lokey & Smith, Malcolm Smith, amicus curiae.

Judgments affirmed in Case Nos. A94A2585, A94A2586, A94A2587, A94A2588, A94A2589, and A94A2591. Judgment affirmed in part and reversed in part in Case No. A94A2584.

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


author: Judge Harold R. Banke.

text:
    A96A0809.
    HANSEN v. THE STATE.
    (474 SE2d 735)
   Judge Harold R. Banke.

After a bench trial, Robert E. Hansen was convicted of driving under the influence (less safe), driving with an expired license, and no proof of insurance. From his conviction and sentence of probation and fines, he appeals. Held:

1. Claiming the officer had no legitimate reason to stop his vehicle, Hansen moved to suppress all evidence the State obtained as a result of that stop, including the results of field sobriety tests. In his first enumeration of error, he claims the trial court erred by denying that motion.

“ “When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.’. . . [Cit.]” Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). The inquiry is whether the officer had reasonable grounds, based on specific and articulable facts, for making the stop. Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). “[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

Evidence produced at the motion hearing showed that Cobb County police officer May was dispatched to investigate a domestic disturbance at Hansen’s house at approximately 3:30 p.m. on September 19, 1994. He met Hansen in the driveway and entered the house with Hansen’s permission to speak with a guest who apparently did not want to leave. While there, he noted Hansen appeared to be intoxicated, he smelled of alcohol, and his speech was slightly slurred.

The unwelcome visitor left, but at 7:30 p.m. Officer May received another dispatch to the same residence to investigate another possible domestic dispute. When he arrived, the front door of the house was open; he walked inside and found no one there. He returned to the front yard and found a boy of ten or twelve years old who said he lived there. At that time, Hansen drove by, looked in the officer’s direction, and kept going. The officer followed Hansen in his patrol car and stopped him to investigate the domestic disturbance call. Also, having seen Hansen’s intoxicated condition three and one-half hours earlier, Officer May did not believe he would have sobered sufficiently to drive a vehicle.

These facts give rise to an articulable suspicion saving this traffic stop from Hansen’s charges of “pretext.” In this case, the totality of circumstances — the second domestic disturbance report, the earlier intoxication, and the fact that Hansen drove past the officer and child standing in his front yard — authorized the officer to conclude Hansen likely had been engaged in criminal activity. Cheatham v. State, 204 Ga. App. 483, 484 (1) (419 SE2d 920) (1992); McFarland, supra.

2. Hansen filed a motion in limine to prevent Officer May from testifying about empty beer cans he saw in Hansen’s kitchen when he entered the house after receiving the second dispatch. He contends the trial court erred by rejecting his argument that the officer’s entry constituted an illegal search. Pretermitting whether the officer’s actions were constitutionally permissible, we find no harmful error. Officer May testified that when he entered the house on his first visit at Hansen’s request, he saw the beer cans in the kitchen. When he returned, he stated, the cans were still there and the kitchen “was in the same order that I felt it was the first time I was there.” This additional testimony gave the factfinder no new prejudicial information to consider, and its admission is no grounds for reversal. Gilbert v. State, 209 Ga. App. 483, 485 (2) (433 SE2d 664) (1993).

Decided August 19, 1996.

Patrick D. Peering, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Cindi L. Teelon, Assistant Solicitors, for appellee.

3. After the case was called for trial and the rule of sequestration invoked, Hansen requested a jury trial even though his attorney, with his consent, had waived that right in writing nine months before trial. He now claims that because he told the trial court he did not understand the consequences of his waiver, the court should have allowed him to reassert his right to a jury trial. We disagree. Hansen’s attorney acknowledged he consulted with his client before signing the waiver. “[Tjhough the evidence was in conflict, the record supports the trial court’s finding that defendant consulted with his attorney and made an intelligent and knowing decision to waive this right.” McCollum v. State, 201 Ga. App. 493, 494 (1) (411 SE2d 328) (1991). “Since the [original] waiver of the jury trial was effective, it was [Hansen’s] burden to revoke the waiver in such fashion so as not to delay the trial or impede the cause of justice. [Cit.]” Mojica v. State, 210 Ga. App. 826 (1), 827 (437 SE2d 806). (1993). The court did not err in finding this request for jury trial untimely.

4. Hansen’s motion to strike the State’s brief and for contempt is denied.

Judgment affirmed.

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


author: Andrews, Judge. Pope, Presiding Judge,

text:
    A96A1357.
    CANAL INSURANCE COMPANY v. FARMER et al.
    (474 SE2d 732)
   Andrews, Judge.

We granted Canal Insurance Company’s interlocutory appeal to determine whether or not the trial court erred in denying its motion for summary judgment. We conclude that it did and reverse.

This case arose out of an accident involving a pickup truck in which Gary Farmer was a passenger, and a tractor-trailer owned by J. L. Garnett, Inc. Garnett’s tractor-trailer was insured at the time by Canal Insurance Company. Farmer and his wife sued the driver of the tractor-trailer, Garnett, and Canal Insurance Company.

Canal argues that the Farmers cannot proceed directly against the insurance company because OCGA § 46-7-12 (e) allows a plaintiff to join the insurance company in the same action as the motor carrier only if the motor carrier has filed a security bond or an indemnity insurance policy in lieu of a bond with the Public Service Commission (“PSC”). It is undisputed that Garnett never filed for a certificate of public convenience and necessity with the PSC and never filed a bond or insurance policy in lieu of bond. It is also undisputed that Canal Insurance Company never filed a Form E certificate of insurance with the PSC.

The Farmers contend Canal Insurance Company knew Garnett was a non-exempt motor contract carrier under state law and yet deliberately refrained from filing a Form E certificate of insurance with the PSC. They argue that plaintiffs should not be deprived of their right to sue the insurance company directly when the insurance company intentionally failed to register the insurance policy with the PSC.

We recently decided this issue in Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613 (472 SE2d 325) (1996). In that case, we held that, “[u]nder the unambiguous terms of the statute, as construed in Glenn McClendon [Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987)], a plaintiff must prove that a policy was filed and approved by the PSC in order to maintain a direct action against the insurer of a motor contract carrier.” Waymond, supra.

Therefore, in light of our holding in Waymond, we conclude that the Farmers cannot maintain a direct action against Canal Insurance Company because the insurance policy issued to Garnett was never filed or approved by the PSC. Accordingly, the trial court erred in denying Canal Insurance Company’s motion for summary judgment.

Judgment reversed.

Smith, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I concur specially to express my concern over the inequities which arise under the present statutory scheme for allowing a direct action against the insurer under OCGA § 46-7-12. In the instant case, there was evidence that Canal Insurance Company knew, or should have known, that Garnett was a non-exempt motor contract carrier under state law, and yet deliberately refrained from filing a Form E certificate of insurance with the Public Service Commission. Given this situation, the law should be that the motion for summary judgment was properly denied. Nevertheless, as the statute presently exists, the majority’s conclusion — that summary judgment should have been granted — is correct.

Decided August 19, 1996

Gray & Gilliland, T. Cullen Gilliland, McÑatt, Greene & Thompson, Hugh B. McNatt, for appellant.

Canal certainly should have known that Garnett was subject to motor contract carrier registration. OCGA § 46-7-12 (e) provides: “It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” Although subsection (e) does not specify who is to file the proof of insurance certificate, subsection (c) provides: “[t]he commission may, in its discretion, allow the holder of such certificate ... to file, in lieu of such bond, a policy of indemnity insurance. . . .” (Emphasis supplied.) See also OCGA §§ 46-7-53 (a); 46-7-58 (c). Accordingly, “[o]nly when such a bond or policy of indemnity insurance has been given by the motor carrier may a direct action be brought against the motor carrier’s insurer. . . .” (Emphasis supplied.) Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, 614 (472 SE2d 325) (1996). An essential element of the plaintiff’s claim under OCGA § 46-7-12 is to show that the carrier fulfilled this obligation. See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987).

That there is no statutory obligation imposed upon the insurer to file proof of the policy subverts the statute’s purpose. “The purpose of permitting joinder of the Insurance Company in a claim against common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence.” Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992). Allowing Canal to escape liability works a disservice on the public.

Moreover, to impose the filing obligation on Garnett ignores the reality of the insurer and carrier relationship: the insurer maintains the copy of the policy, and the insurers are more aware of the filing requirements than many of the carriers. Canal’s evasion here was not intended by the statute. This loophole should be remedied by the legislature.

Terry Leiden, for appellees.


author: Blackburn, Judge.

text:
    A96A1475, A96A1476.
    BACON v. SMITH; and vice versa.
    (474 SE2d 728)
   Blackburn, Judge.

In Case No. A96A1475, Jerry Bacon appeals the superior court’s order which reversed the probate court and upheld Walter Smith’s investment of his ward’s assets in annuities. In Case No. A96A1476, Walter Smith appeals the portion of the superior court’s order which denied his motion for summary judgment, thereby affirming the pro.bate court’s revocation of the letters of dismission granted to Walter H. and Lois L. Smith as guardians of Christopher Lee Smith (minor). The underlying action arose out of a petition for accounting and distribution filed by Bacon.

On April 25, 1990, Walter and Lois Smith were appointed the guardians of their 15-year-old adopted son, Christopher Lee Smith, for the purpose of managing Christopher’s assets until he reached the age of majority. Also on April 25, 1990, the Liberty County Probate Court authorized the settlement of the tort claims Christopher lodged against Anneewakee, Inc., in the total amount of $452,740.05, from which attorney fees were deducted. On May 14, 1990, Christopher’s guardians filed a petition in probate court seeking the court’s approval to invest Christopher’s settlement in certain described annuity plans. After review, the probate court specifically approved of and authorized the purchase of the annuities requested.

The annuities were purchased, and Christopher listed his parents as primary beneficiaries and Henry and Sheila Smith as secondary beneficiaries. Bacon, Christopher’s half-brother from his mother’s previous marriage was not listed as a beneficiary. Christopher designated the beneficiaries in the probate court judge’s presence and outside the presence of his guardians.

On December 24, 1991, Christopher was killed in an accident. Christopher’s guardians administered his estate and were issued letters of dismission on September 16, 1993. On November 1, 1994, Bacon filed the underlying petition for accounting and distribution of Christopher’s estate, asserting that he was entitled to a one-fifth share in the annuities and estate assets. The probate court determined that letters of dismission granted to the guardians should be set aside as the final return did not show a zero balance and no distribution was made to Bacon of the cash funds in the estate. The probate court further determined that, although the purchase of the annuities was authorized, Bacon was entitled to a one-fifth share of all annuity payments upon Christopher’s death.

On appeal from the probate court’s order, the superior court determined that the probate court properly set aside the letters of dismission because Bacon was omitted from the distribution of estate funds; however, the superior court found that the probate court erred in determining the annuities were part of Christopher’s estate. The superior court determined that the annuities were authorized by court order and that Christopher had the right to dispose of his property by designating the beneficiaries to the annuities. These appeals followed.

Case No. A96A1475

1. In his first enumeration of error, Bacon contends the trial court erred in determining that Christopher’s designation of beneficiaries to the annuities was tantamount to making a will. This enumeration is without merit as it misconstrues the trial court’s order. The trial court merely drew an analogy between the right of a 15 year old to dispose of his property by will, see OCGA § 53-2-22, and 15-year-old Christopher’s right to determine the beneficiaries of his annuities. OCGA § 53-2-22 provides that the minimum age for testamentary capacity is 14 years. The trial court correctly determined that Christopher had the ability to designate beneficiaries to his annuities.

2. Bacon next asserts that the trial court erred in determining that a conflict of interest did not prevent the guardians from naming themselves as beneficiaries. By this enumeration, Bacon misconstrues the facts in evidence. The only evidence in the record concerning the process of the beneficiary designation indicates that Christopher made such designation with the guidance of the probate judge and outside the presence of his parents. No evidence was presented supporting Bacon’s allegation that the guardians “named themselves as beneficiaries.” As Bacon presented no evidence of undue influence by the guardians, the trial court correctly granted summary judgment on this issue. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

3. Bacon contends the trial court erred by determining that the guardians were authorized to make investments with their ward’s property when such investments were not authorized by statute. However, the investments were specifically reviewed and authorized by the probate court on May 14, 1990. Furthermore, as recognized by the probate court, OCGA § 29-2-16 (b) became effective July 1, 1990, in which the legislature merely codified the type of settlement arrangements obtained for Christopher herein. Although not specifically authorized by statute as of the date of court approval, Bacon has cited no authority indicating that the probate court was without the power to authorize the purchase of the annuities. The protections of the ward’s assets afforded by OCGA § 29-2-15 are certainly present upon the probate court’s review and approval of the proposed settlement.

Furthermore, OCGA § 53-12-280 provides for authorized investments of trust funds and indicates specifically that “[a]ny other investments of trust funds shall be made under an order of the superior court or shall be at the risk of the trustee.” The Georgia Supreme Court has previously applied this Code section in a guardian/ward situation. See Cochran v. Spinks, 180 Ga. 623 (180 SE 221) (1935). By making an investment without statutory or court approval the trustee “risks” being liable for any funds lost. See Karsman v. Portman, 173 Ga. App. 108 (325 SE2d 608) (1984). In the present case, no funds were lost, and there have been no allegations that the annuities were not sound investments. Therefore, Bacon is without any basis to contest the investment of Christopher’s funds in the annuities at issue.

4. In his fourth enumeration of error, Bacon contends the trial court erred in determining that the probate court was unauthorized to correct or set aside its previous order which authorized the purchase of the annuities.

Pretermitting whether the probate court was unauthorized to set aside its previous order, we find that the probate court did not set aside its order authorizing the purchase of the annuities, but set aside only the letters of dismission it gave to the Smiths on the administration of Christopher’s estate. In fact, the probate court specifically held that it “did have the authority to approve the investment of the ward’s funds in the annuity and the deferred payment plan,” and that there was no reason to set aside the annuity at this point in time.

The trial court correctly held that Bacon is not entitled to a one-fifth share of the annuities because they were not part of Christopher’s estate. See King v. Travelers Ins. Co., 202 Ga. App. 568, 569 (415 SE2d 176) (1992) (“[t]he proceeds of this workers’ compensation settlement agreement, which bears analogies to an annuity contract, see OCGA § 33-28-1 (1), are likewise not part of the decedent’s estate”).

Decided August 19, 1996

Simon, Booth, Cook & Cardillo, Robert R. Cook, for appellant.

Alton D. Kitchings, for appellee.

Case No. A96A1476

5. Smith appeals the portion of the superior court’s order in which it denied his motion for summary judgment, thereby affirming the probate court’s revocation of the letters of dismission granted to Smith with regard to probating his ward’s estate.

The evidence in the record is uncontradicted that Christopher’s estate did contain assets and that no assets were distributed to Bacon. However, OCGA § 53-4-1 provides that, after payment of expenses, the balance of the estate “shall stand subject to distribution among the heirs at law of the decedent, according to the rules prescribed by law.” OCGA § 53-4-2 (5) provides, in pertinent part, that “[bjrothers and sisters of the intestate shall stand in the second degree and shall inherit if there is no surviving spouse, child, or representative of a child. The half blood, both on the paternal and maternal side, shall inherit equally with the whole blood.” Additionally, “[t]he father and mother inherit equally with brothers and sisters and stand in the same degree.” OCGA § 53-4-2 (6). Therefore, Bacon was entitled to a one-fifth share of the assets in Christopher’s estate.

An estate’s administrator may not obtain a discharge until he has fully discharged all duties, including the duty of distribution. See OCGA § 53-7-140; Fuller v. Fuller, 107 Ga. App. 429 (130 SE2d 520) (1963). In the present case, the Smiths did not comply with their duty of distribution to heirs at law. The assertions in the record regarding the Smiths’ lack of knowledge that Bacon would be included as an heir, do not excuse their failure to make the proper distribution, and in fact support the setting aside of the letters of dis-mission. OCGA § 9-11-60 (d) (2) provides that a judgment may be set aside based upon “[flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.”

In the present case, the letters of dismission were properly set aside due to mistake. Therefore, the trial court correctly denied Smith’s motion for summary judgment, thereby affirming the probate court’s revocation of the letters of dismission.

Judgments affirmed.

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

       Bacon is the son of Lois Smith and her first husband. Bacon is therefore the half-brother to the children of Lois and her second husband, Walter Smith.

       The action was filed against Walter Smith as Lois Smith was deceased.


text:
    A96A1483.
    MITCHELL v. DEPARTMENT OF HUMAN RESOURCES.
    (474 SE2d 727)
   McMurray, Presiding Judge.

The Georgia Department of Human Resources (“DHR”) initiated a petition for child support against defendant Willie Mitchell under the Georgia Child Support Recovery Act, OCGA § 19-11-1 et seq. The petition alleged that Beverly Pennamon is the natural mother of the minor child, C. K. P, born November 1, 1986, and that defendant “is the absent parent of said minor child [and is] liable for [its] support.” The petition prayed for child support “in the amount of $39.00 per week plus costs or 23% of Defendant’s gross income, plus costs[;. . .] any arrearages that have accrued for prior child support^ . . .] an Order for Income Deduction^ . . . and an order that defendant] provide and maintain health and accident insurance coverage for said minor [child].” Defendant moved to dismiss the petition on the grounds that “Plaintiff was married to a Leroy Nmi Pennamon during 1986 when the child was born [and] show[ed] that the Plaintiff signed a birth certificate indicating that her husband at the time, Leroy Pennamon, was the father of the child.” To rebut the evidentiary presumption that the mother’s husband, Leroy Pennamon, was the legal father of C. K. P, Beverly Pennamon submitted her affidavit wherein she deposed that the “father of said minor child is [defendant; . . . that at] the time [her] child was born, [she] was legally married to Leroy Pennamon; however, [they] had been separated for approximately six (6) years[; that she] did not have sexual relations with Leroy Pennamon during the period of conception [. . .; that she] did not have sexual relations with any man other than [defendant] during the time that [C. K. P] was conceived[; . . . that defendant] has acknowledged that he is the father . . . and he has bought Christmas and birthday gifts for [C. K. P; and that the] reason that Leroy Pennamon is named as the father on [C. K. P.’s] birth certificate is that [she] was told at the hospital that this was necessary since [she] was still legally married to Mr. Pennamon. [Nevertheless, Beverly Pennamon] knew at the time and [has] always known that Leroy Pennamon is not the father of the child.”

The trial court denied defendant’s motion to dismiss and further ordered defendant to “submit to a blood test for [the] purpose of proving or disproving parentage.” This order also directs that “the parties be bound by the written test results and that said results shall be admissible in Court without establishing the chain of custody of the blood samples and without expert testimony as to the [test] results.”

Defendant subsequently moved to have Leroy Pennamon’s blood tested, supporting his motion with proof that Leroy Pennamon still lived within the jurisdiction of the court. The trial court ruled that “defendant must arrange that blood test by the usual discovery methods by the end of January, 1994, or the request will be deemed waived.”

Decided August 19, 1996

Gregory N. Crawford, for appellant.

Michael J. Bowers, Attorney General, Stephanie M. Baldauff, Assistant Attorney General, for appellee.

At trial, DHR presented the expert opinion testimony of Gary Michael Steulmiller, Ph.D., the Director of Paternity Evaluation for Roche Biomedical Laboratories in Burlington, North Carolina. Dr. Steulmiller identified as business records two tests performed on defendant’s blood. Each time, defendant’s blood was tested for ABO phenotype, Rh, HLA (human leukocyte antigen), and four different DNA (deoxyribonucleic acid) markers. Dr. Steulmiller “did not specifically perform any of the testing [him] self. [Rather, he] personally reviewed and interpreted the original results [himjself [and confirmed that the] report[s] [do not] depend in any way on the opinion or conclusions of anyone other than [him]self.’’ “Based upon the test report[s], . . . [defendant] could not be excluded from paternity of [C. K. P.]” “[I]n every one of the five genetic tests performed [defendant] expressed the necessary information to qualify as a father for this child.” In Dr. Steulmiller’s opinion, the “probability of paternity is . . . over 99.9%.”

Defendant testified and denied paternity. Although the clerk of the Chatham County Superior Court had issued a subpoena for Leroy Pennamon, defendant rested without calling this witness. The jury determined that defendant is the biological father of C. K. P. and found that he should pay $100 per week in child support, $10,000 in back child support, and that he should provide medical insurance coverage for the child. Defendant’s application for discretionary appeal was granted by this Court, and a timely notice of appeal was filed. Held:

Defendant urges, in part, that the trial court erred in not requiring Leroy Pennamon to submit to paternity blood testing and erred in permitting evidence of blood test results without a proper foundation. It is apparent from our recitation from the record in the case sub judice that these contentions are without merit. “Upon consideration of the entire record and the applicable statutory provisions [in light of the errors alleged in the application], this discretionary appeal is hereby dismissed as having been improvidently granted. See generally Morgan v. G. M. &c. Corp., 167 Ga. App. 404 (307 SE2d 137) (1983).” Vulcan Materials Co. v. Upshaw, 197 Ga. App. 604 (399 SE2d 584).

Appeal dismissed.

Johnson and Ruffin, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A96A0827.
    ROBERTS et al. v. JONES.
    (475 SE2d 193)
   Birdsong, Presiding Judge.

Jack Randolph Roberts, individually and as administrator of the estate of Jack Roberts, deceased, appeals the grant of summary judgment to defendant William B. Jones, M. D.

Appellant Roberts sued Dr. Jones for battery, for having successfully performed an emergency “dorsal slit” in Jack Roberts’ penis foreskin after Jack Roberts had not urinated for 14 hours. Two other physicians, including a urologist, had attended Roberts and had been unable to insert a catheter. Although Roberts later died, it is not contended the procedure performed by Dr. Jones contributed to Roberts’ death.

The allegation of battery is founded on this statement: “I do not want to be operated on or any other treatment that will cause pain and suffering,” which Roberts specially inserted in the Durable Power of Attorney he executed prior to hospitalization, naming his son, appellant, and a daughter as his agents under a “health care agency” power. It is apparently undisputed that Roberts’ daughter told a hospital employee of the Durable Power of Attorney which contained her and her brother’s health care agency appointment, and the hospital employee indicated that the document was contained in Roberts’ medical records. However, it is also apparently undisputed that the Durable Power of Attorney was not in Roberts’ chart, that appellee Jones did not see it and that neither of Roberts’ agents informed him of it. Appellant contends, however, that before he had a chance to tell Jones of the Durable Power of Attorney and health care agency Jones instructed him to leave the room. Held:

1. As to actions for battery against a physician, see generally Williams v. Lemon, 194 Ga. App. 249 (390 SE2d 89).

2. OCGA § 31-36-7 (1) provides: “It is the responsibility of the agent or patient to notify the health care provider of the existence of the health care agency and any amendment or revocation thereof.” As it is undisputed that neither of the health care agents (appellant Roberts and his sister) in this case notified the health care provider (Dr. Jones; see OCGA § 31-36-3 (4)) of the Durable Power of Attorney and its proscription against any surgery, summary judgment to Jones was correct.

Although OCGA § 31-36-7 (1) also requires the hospital to make the Durable Power of Attorney and health care agency appointment a part of the record, and the hospital did make the document a part of the “medical record,” nevertheless the action for battery against Dr. Jones cannot stand because the document was not in Roberts’ hospital chart and Dr. Jones did not know the document existed.

Appellant Roberts contends the legislature did not intend this result and that the hospital record in which the document is required to be placed necessarily includes a patient’s chart, but the statute does not specifically require this. The document was placed in Roberts’ medical records. Contra to the argument that the legislature intended that the document be placed in the patient’s chart to be seen by every health care provider, OCGA § 31-36-7 (1) provides: “It is the responsibility of the agent or patient to notify the health care provider of the existence of the health care agency!’ (Emphasis supplied.) Furthermore, OCGA § 31-36-7 (2) provides that “A health care decision made by an agent in accordance with the terms of a health care agency shall be complied with by every health care provider to whom the decision is communicated, subject to the provider’s right to administer treatment for the patient’s comfort or alleviation of pain.” (Emphasis supplied.) As neither health care agent communicated the medical procedure limitations to appellee Jones, he cannot be held liable for battery.

Appellant’s rejoinder that he was instructed to leave the room before he could communicate the agency to Dr. Jones may show a doctor’s poor bedside manner and communication skills, but it does not prove battery because in the circumstances, as agent of the patient, appellant had the legal responsibility to inform the doctor of any limitation on medical procedure before he obeyed the doctor’s dictate to leave the room. In short, if he intended to rely on the limitation, the law required him to communicate it to the health care provider; as appellant was the agent empowered to convey this information, the contention that the provider would not let him speak is not good enough unless physical force or threat thereof prevented the agent from communicating the information.

3. In any event, the statute just quoted states that the health care provider’s duty to comply with a communicated limitation is “subject to the provider’s right to administer treatment for the patient’s comfort or alleviation of pain!’ (Emphasis supplied.) Appellee Dr. Jones testified he would have performed this procedure even if he had been informed of the limitation on painful “surgery.” We doubt not that the patient, having been unable to urinate in 14 hours, was already in pain. The procedure was performed and although the patient was still unable to urinate, it is debatable whether the procedure caused more “pain and suffering” than did Roberts’ inability to urinate for 14 hours. Had the doctor, in deference to an agent’s decision, refused to try to alleviate Roberts’ undoubted pain and suffering by performing this minor surgery, he might have been engaged in litigation for negligent dereliction of duty in adherence to an uninformed agent’s instruction, or upon a debate as to whether the procedure was “surgery” or was “painful.”

Decided July 12, 1996

Reconsideration denied August 20, 1996

Verdery & Oliver, William R. Oliver, for appellants.

Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellee.

4. Appellants’ contention that the hospital admission consent form did not authorize the procedure does not prevent summary judgment. OCGA § 31-9-6 (d) requires that to be conclusively valid the consent must also “disclose[ ] in general terms the treatment or course of treatment . . . with which it is given.” The procedure was authorized by the terms of the general consent form and by the provision in OCGA § 31-36-7 (2) referring to the health care provider’s “right to administer treatment for the patient’s comfort or alleviation of pain.”

Moreover, this issue was not raised in response to the appellee’s motion for summary judgment and it is now raised too late. See Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 766 (1) (431 SE2d 746). The grant of summary judgment to appellee on the allegation of battery was correct, as no genuine issue of material fact remains and appellee was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832).

Judgment affirmed.

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


text:
    A96A0980, A96A0981.
    BOB v. HARDY et al.; and vice versa.
    (474 SE2d 658)
   Birdsong, Presiding Judge.

This is a pre-Tort Claims Act case in which certain DOT employees were alleged to have been negligent in regard to the maintenance, construction and design of a guardrail and embankment on I-75 south of Valdosta. In November 1988, Emma Bob was a passenger in a car driven south on 1-75; she was injured when the driver fell asleep, ran off the road and plunged down a steep embankment. She filed suit contending that her quadriplegia occurred as a result of the lack of a guardrail of sufficient length and strength to protect against a steep embankment, the failure of DOT employees to have eliminated the embankment if a proper guardrail was not to be provided and the failure to provide rumble strips and reflectors to alert motorists who leave the traveled portions of the roadway. Prior to the incident, the guardrail was reconstructed as a part of a bridge widening project; however, this was not a general program for upgrading guardrails. DOT replaced the guardrails which had to be removed for the bridge to be widened. The design plans included guardrail specifications. Appellant’s expert, Mr. Roberts, opined that the guardrail at the location of the incident appeared to conform to design plans.

DOT contractors who performed certain improvement work on the embankment and guardrail were previously found to have no responsibility for the dangerous condition as their work was accepted by DOT employees. See generally Bob v. Scruggs Co., 204 Ga. App. 375 (419 SE2d 100).

In Case No. A96A0980, appellant Emma Bob appeals from the grant of summary judgment to certain DOT construction, maintenance and design personnel and to Thomas Moreland in his capacity of state highway engineer.

In Case No. A96A0981, cross-appellants appeal from the denial of summary judgment to Floyd Hardy and Kim Fulbright, asserting their alleged negligent actions were not, as a matter of law, the proximate cause of Emma Bob’s injuries, and appeal from the denial of the deceased William Johnson’s motion to dismiss. Held:

Case Nos. A96A0980, A96A0981

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). However, a grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746).

Case No. A96A0980

2. Appellant contends the trial court erred in granting summary judgment to Mr. Bullard, Mr. Burnsed, Mr. Walker, Mr. Senkbeil and Mr. Byrom, who were DOT construction personnel. As to appellees Mr. Bullard, Mr. Burnsed, Mr. Walker and Mr. Senkbeil, we find the holding in Painter v. Sorrow, 205 Ga. App. 775 (423 SE2d 684), although not directly in point, to be controlling. Assuming arguendo some of these appellees subsequently may have been placed on actual or constructive notice of the alleged defect in the design of the length and placement of the guardrail, to impose a legal duty on the part of these particular construction engineer/supervisors to redesign the length and placement of the guardrail would, in our view, “ ‘extend the duty of reasonable care beyond reasonable limits.’ [Cit.]” Id. at 776. The trial court did not err in granting summary judgment in favor of these appellees. Mr. Byrom, the Director of Construction, testified as follows: He did not play a part in the design of the project; although he stopped at the project sites, he does not believe he stopped at the site of this incident. Mr. Byrom testified that, although Director of Construction, he did not play any part or have any input in the design of the project as reflected in its plan, and he had no responsibility for determining the length of the guardrail at the incident site. His responsibility basically extended to seeing that the project was completed according to the plans. The standards for guardrail installation contained in the plans are separate from standards pertaining to the length of a guardrail. While a project plan contains detail as to the length of a guardrail at a bridge approach, it does not necessarily “spell out” the guardrail length required for the “extended fills on down the road.” This latter information would normally be provided by “the design office.” He further testified that it was DOT’s design office which had the responsibility to determine the length of guardrail needed for the bridge’s approach; Mr. Fulbright, Mr. Brisendine (also referred to in the record as Mr. Brizendine) and Mr. Hardy were in the design department at that time. Appellee Byrom met his burden under Lau’s Corp., supra; however, appellant/non-movant failed thereafter to carry her burden of going forward and pointing to specific evidence of record giving rise to a triable issue as to the scope of duty of appellee Byrom. Id. at 491. The trial court did not err as enumerated.

3. Appellant contends the trial court erred in granting summary judgment to these maintenance personnel: Mr. Hartley, district maintenance engineer, Mr. James, assistant area engineer in charge of maintenance, and Mr. Joyner, county maintenance foreman. This enumeration is without merit. There exists no genuine issue of material fact that these maintenance personnel were involved in any manner in the design of the guardrail in the bridge widening project, and appellant makes no such contention. The duty of maintenance personnel is to preserve what is there; it is not a part of daytime inspection to determine guardrail design requirements. Appellee maintenance personnel gave testimony by way of deposition which carried their burden under Lau’s Corp., supra, for establishing that they had no duty to engage in or review guardrail design requirements. See also Ethridge v. Price, 194 Ga. App. 82, 84 (3) (389 SE2d 784). Where, as here, the movants have carried their burden under Lau’s Corp., supra, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47); Malaga Mgmt. Co. v. John Deere Co., supra at 767 (6). Appellant has failed to do this. Additionally, we decline, as a matter of law, to impose a duty on DOT highway maintenance personnel to redesign or report to DOT design personnel any proposals for the redesign of an existing guardrail in the absence of some evidence that the maintenance personnel actually were involved in the design phase of the project at issue. “‘To impose such a duty on employees in the position of [these appellees] would, in our view, extend the duty of reasonable care beyond reasonable limits.’ [Cit.]” Painter v. Sorrow, supra at 776; see also Ethridge, supra.

4. Appellant contends the trial court erred in granting summary judgment to Mr. Moreland, Commissioner of DOT from 1975 to 1987, and state highway engineer/chief engineer of DOT at the time plans pertaining to the project were signed with Mr. Moreland’s name. Mr. Moreland gave unrefuted testimony by way of deposition that he did not sign his name to the plans. He also testified without contradiction that he did not perform any review of the plans, nor did he have any input as to the design of the roadway, the approach to the bridge or the guardrail. His signature on the plans, as state highway engineer, was merely the result of department custom. All duties with regard to the plans and design of the project were delegated by Mr. Moreland to other employees. “ ‘The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have actual knowledge of the negligent acts of their employees, and their knowledge, coupled with a refusal to correct or properly instruct such employees, amounts to a ratification of such negligent act.’ [Cits.]” Peavy v. Chavers, 121 Ga. App. 354, 355 (1) (173 SE2d 749). Although Mr. Brisendine testified that More-land’s signature made the plans official, he also admitted that he did not know if Moreland personally signed the plans or whether someone else had signed his name. Although appellant’s expert, Mr. Roberts, testified that the ultimate responsibility for what went on or what was failed to be done at the project site “would ultimately go up to Tom Moreland,” he did not opine expressly that Mr. Moreland had any input as to the actual design of the project. Moreover, Mr. Roberts based his generalized opinion as to ultimate legal responsibility, an issue not beyond the ken of the average jury, substantially upon the fact that Mr. Moreland’s signature was on the plans. At best, appellant has offered circumstantial evidence as to the overall responsibility of Mr. Moreland for approving the project plans; Mr. Moreland, on the other hand, has given direct testimony that he had delegated all design responsibilities to other employees, did not have any input as to project design, had not personally reviewed the plans and had not placed his signature to the plans. In passing upon a summary judgment motion, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Rowell v. McCue, 188 Ga. App. 528, 531 (373 SE2d 243). Moreover, appellee Moreland carried his burden under Lau’s Corp., supra; the burden of going forward then shifted to appellant, as non-moving party, to point to specific evidence giving rise to a triable issue. Lau’s Corp., supra; compare Precise, supra at 212 (3). This appellant failed to do. There is no genuine issue of fact established by the record that Mr. Moreland’s duties included the actual design or construction of the roadway project. See Ethridge, supra at 84 (3). The trial court did not err in granting summary judgment in favor of Mr. Moreland.

5. Appellant contends the trial court erred in granting summary judgment to Mr. Brisendine and Mr. Pierce. These appellees were never served with process in this suit. The senior assistant attorney general representing DOT filed a motion for summary judgment which sought, inter alia, a motion for summary judgment on behalf of Mr. Brisendine and Mr. Pierce asserting the cause of action against them was “barred by the statute of limitations.” However the trial court, apparently considering that portion of the motion according to its substance rather than its nomenclature (see generally Cain v. Moore, 207 Ga. App. 726, 727 (2) (429 SE2d 135)), ordered appellees Mr. Brisendine and Mr. Pierce to “be dismissed on the ground of insufficiency of service of process.” Compare Cheshire Bridge Enterprises v. Lexington Ins. Co., 183 Ga. App. 672, 674 (2) (359 SE2d 702). Notwithstanding the nature of the trial court’s ruling, appellant crafted his enumeration of error to assert that the trial court erred in granting these appellees summary judgment “on the ground that the statute of limitations had expired.” This tailored enumeration does not reasonably encompass a claim that the trial court erred in dismissing appellees from the suit on the ground of insufficiency of service of process, the separate ground relied upon by the trial court. “ ‘On appeal an enumeration of error cannot be enlarged by (a) brief to give appellate viability to an issue not contained in the original enumeration.’ [Cit.] One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold. [Cits.]” Crotty v. Crotty, 219 Ga. App. 408, 410 (3) (465 SE2d 517). The insufficiency of service issue has not been preserved on appeal.

Case No. A96A0981

6. Genuine issues of material fact exist whether cross-appellants Mr. Hardy and Mr. Fulbright of the DOT design office were liable for cross-appellee’s injuries. The posture of the record does not establish by clear, plain, palpable and undisputed evidence that no genuine issue of material fact exists as to one or more essential elements of proof as to the claims against Mr. Hardy and Mr. Fulbright. See generally Lau’s Corp., supra. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). A reasonable inference to be drawn from the driver’s testimony is that he was traveling less than 55 mph when the incident occurred. Cross-appellee’s experts expressed opinions which provided a sufficient basis, when examined under Lau’s Corp. standards, to support the trial court’s denial of summary judgment to cross-appellants. It is well settled that “opinion evidence can be sufficient to preclude the grant of summary judgment.” Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673). No legal basis exists to depart from the general rule that “ ‘ “[questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.” ’ [Cits.]” Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629). The trial court did not err in denying cross-appellants’ summary judgment motions.-

Decided August 8, 1996

Reconsideration denied August 20, 1996

Barham & Dover, J. Carol Sherwood, Jr., Berrien L. Sutton, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Eric A. Brewton, Carlton L. Kell, Assistant Attorneys General, for appellees.

7. As cross-appellee/plaintiff voluntarily dismissed Mr. Johnson from the suit prior to the trial court’s order denying the deceased Johnson’s motion to dismiss, we find that cross-appellants’ enumeration of error as to this matter is moot.

Judgments affirmed.

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


author: Ruffin, Judge.

text:
    A96A1280.
    MELTON v. THE STATE.
    (474 SE2d 640)
   Ruffin, Judge.

A jury convicted Walter Keith Melton of rape and sodomy. He appeals the judgment of conviction with seven enumerations of error. For reasons which follow, we affirm.

1. Melton first contends trial counsel was ineffective because he failed to present any evidence to substantiate Melton’s alibi defense for the May 11, 1979 rape. After a hearing in which trial counsel testified, the trial court determined that trial counsel was effective. We agree. The false face of this error is apparent, and its innumerable variants have not placed it beyond the pale of our recognition, nor diminished our disdain for it.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995).

At trial, Melton testified that he spent the majority of the weekend, Thursday through Sunday, with his family and that “[s]omewhere during that time, before Saturday, I went and got a puppy. . . .” He remembered learning of the puppy from an advertisement in the newspaper which came out on Thursday of the same week. Even if Melton picked up a puppy on May 11, 1979, this testimony does not reasonably exclude the possibility that Melton was present at the rape scene at the time it was committed. Thus, Melton’s explanation did not constitute an alibi. OCGA § 16-3-40; Storey v. State, 205 Ga. App. 610, 612 (3) (422 SE2d 879) (1992).

Melton asserts his trial counsel should have presented the testimony of Robin Robinson, Melton’s wife at the time of the rape, and should have introduced the May 10, 1979 Newnan newspaper advertisement for a bird dog. Melton’s trial counsel testified at the hearing on the motion for new trial that he spoke with Robinson in preparing for Melton’s trial and learned that Robinson had some information about the purchase of the dog. However, according to trial counsel “at that point, [Robinson] was [un]able to give us a whole lot of information about it. . . .” Even at the hearing on the motion for new trial, Robinson testified that Melton got the dog in May 1979, but admitted she could not identify the exact date Melton brought the dog home. Since this testimony would not constitute an alibi under OCGA § 16-3-40, Melton was not prejudiced by trial counsel’s failure to call Robinson as a witness.

Furthermore, according to trial counsel, he made a tactical decision that Robinson would not make a good witness and that the benefit of calling Robinson as a witness was less than the strategic advantage of having the last closing argument. “In view of the fact that neither [Melton’s] own testimony nor that of his purported alibi witness was such as ‘reasonably to exclude the possibility of (his) presence’ at the scene at the time the offenses were committed, as required by OCGA § 16-3-40 to establish an alibi defense, it is by no means apparent that it would have been more beneficial to him to have presented this witness’ testimony than to have had the concluding argument in the case.” Gant v. State, 197 Ga. App. 351, 352 (2) (398 SE2d 301) (1990).

We are unable to conclude that Melton was prejudiced by trial counsel’s failure to introduce the newspaper advertisement into evidence at trial. The advertisement did not establish Melton’s whereabouts at the time of the rape, and it is highly unlikely that admission of the advertisement into evidence would have changed the outcome of the trial.

Melton “has not overcome the presumption that counsel’s failure to call the alibi witness [and introduce the newspaper advertisement was] made in the exercise of reasonable professional judgment.” Jackson v. State, 209 Ga. App. 217, 222 (7) (433 SE2d 655) (1993). As appellate judges we must tread the path trod by the trial judge. As we tread that path, we do so with the illuminating lantern of the law in one hand and the sabre of truth in the other. Regardless of how illuminating or tempting, we cannot veer from the trail of the trial judge’s path. And the sabre is used to excise error, not to behead the trial judge. If the light of the law exposes no error, the sabre must be resheathed until another day, or another case. Accordingly, the trial court’s finding that Melton was afforded effective assistance of counsel was not clearly erroneous. Id.; Gant, supra.

2. Melton next contends the trial court erred in failing to allow him to cross-examine the victim on pending criminal charges. We disagree.

During cross-examination of the victim, defense counsel attempted to go into the victim’s juvenile record for the theft of two motor vehicles. Counsel asked, “[a]re you as truthful today as you were when you took those two automobiles over in DeKalb (sic) County?” The State objected on the ground that the question attempted to improperly impeach the witness. Defense counsel then specifically withdrew the question. After a brief discussion, defense counsel agreed the jury should be instructed to disregard the question and stated that he did not intend to pursue the line of questioning. Since Melton voluntarily abandoned this line of inquiry, he cannot complain on appeal. Wilburn v. State, 199 Ga. App. 667, 668 (2) (405 SE2d 889) (1991) (physical precedent only); Johnson v. State, 158 Ga. App. 333 (280 SE2d 379) (1981).

Furthermore, according to defense counsel, both of the victim’s vehicle thefts occurred after the victim’s initial rape complaint in this case, only one of the incidents had been adjudicated at the time of trial, and defense counsel did not have a certified copy of the adjudicated delinquency. Thus, it is doubtful whether the adjudication would have been admissible. See McBee v. State, 210 Ga. App. 182 (1) (435 SE2d 469) (1993); Woods v. State, 210 Ga. App. 172, 173 (1) (435 SE2d 464) (1993).

3. In his third enumeration of error, Melton asserts the trial court erred in failing to give two requested charges concerning reasonable doubt. However, the record reveals that the trial court charged the jury on reasonable doubt and adequately covered the requested principle of law. “ ‘The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal.’ [Cit.]” Hill v. State, 250 Ga. 277, 284 (5) (295 SE2d 518) (1982). Moreover, “the trial court’s reference to a moral and reasonable certainty appears in the context of a charge which as a whole repeatedly and accurately conveyed to the jury the concept of reasonable doubt. Accordingly, that reference did not lessen the burden of proof necessary to obtain a conviction, and therefore did not violate the Due Process Clause.” (Citations and punctuation omitted.) Armstrong v. State, 265 Ga. 18, 19 (3) (453 SE2d 442) (1995).

4. Melton contends the trial court erred in failing to charge the jury on identity. However, the trial court did charge on the defense of alibi. Thus, no reversible error occurred. Favors v. State, 166 Ga. App. 764 (2) (305 SE2d 475) (1983); Hamby v. State, 158 Ga. App. 265 (3) (279 SE2d 715) (1981).

5. The trial court did not err in failing to charge on simple battery. Melton argues that evidence indicating he forcibly grabbed the victim’s head, pushed it down and placed his penis in her mouth constituted sufficient evidence to demand a charge on simple battery. However, Melton admitted at trial that he committed sodomy and contended that the victim consented to committing the sexual acts. This identical issue was decided contrary to Melton in Jones v. State, 194 Ga. App. 356, 357 (3) (390 SE2d 623) (1990).

In Jones, we held as follows: “The appellant contends that the trial court erred in refusing to instruct the jury that they could find him guilty of simple battery as a lesser offense included in the crime of aggravated sodomy. The appellant admitted that he had engaged in the act of sodomy with the victim but maintained that he had done so with her consent. If so, then no battery was committed. If not, then the admitted act of sodomy was aggravated. [Cit.] It follows that no charge on simple battery was required. [Cit.]” Id. Accordingly, Melton was not entitled to a charge on simple battery.

6. Melton asserts the trial court erred in allowing his custodial statement to go out with the jury because it contained references to sex crimes not included in the indictment. We disagree. The record reveals that during a Jackson-Denno hearing regarding the admissibility of his statement, Melton objected to that portion of his statement referring to other crimes. The trial court agreed and stated, “I’m not going to let the whole thing go in, not that part about previous offenses.”

Subsequently, a redacted version of the statement was read to the jury. The State then introduced the statement into evidence to perfect the record and the following colloquy occurred: “[PROSECUTOR]: [W]e’re going to introduce it for purposes of the record. We understand that it’s not allowed to go out with the jury, but for the purposes of the record, it needs to be introduced. [DEFENSE COUNSEL]: For purposes of the record, that’s fine, as long as it’s not taken out to the jury. [The Court]: Well, it has to be introduced in evidence.” It appears from the record that the complained of portion was not given to the jury, but admitted only to perfect the record on appeal. While Melton argues the record is silent regarding whether the entire statement was given to the jury, thereby creating the inference that the portion of his statement regarding other crimes actually went to the jury, he has produced no evidence confirming his assertions. Moreover, when the trial court instructed counsel to examine the evidence before it went to the jury, Melton’s trial counsel responded, “[i]t looks all right, Your Honor.” If error, it is an embraced error, and an embraced error is an earned error, hence not redressable.-

Moreover, “[i]t is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record. [Melton] has not met his burden and it is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Millis v. State, 196 Ga. App. 799, 800-801 (4) (397 SE2d 71) (1990). Thus, we find this enumeration of error lacks merit.

7. The trial court properly charged the jury on sodomy. Since Melton did not object to this charge during the charge conference or following the charge and did not reserve the right to object, he has waived any objection to this charge. Roura v. State, 214 Ga. App. 43, 44 (2) (a) (447 SE2d 52) (1994). In addition, although Melton argues in his brief that nonviolent sexual acts, including sodomy, between consenting adults should be beyond the enforcement powers of the State, this issue was not raised at trial. Accordingly, this allegation of error has not been preserved for appeal. Hestley v. State, 216 Ga. App. 573, 576 (3) (455 SE2d 333) (1995).

Judgment affirmed.

McMurray, R J., and Johnson, J., concur.

Decided August 5, 1996

Reconsideration denied August 20, 1996

Jones & Heard, Derek H. Jones, for appellant.

Thomas J. Charron, District Attorney, Joan V. Bloom, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A96A1398.
    CARROLL v. THE STATE.
    (474 SE2d 737)
   Judge Harold R. Banke.

Jessica Lacy Carroll pleaded guilty to homicide by vehicle, OCGA § 40-6-393, and serious injury by vehicle, OCGA § 40-6-394. On appeal, she argues that the trial court erred in refusing to allow her to withdraw her plea after she discovered that the State deliberately withheld exculpatory information from her in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

This case arose while the then 19-year-old Carroll was driving down a roadway during a heavy rainstorm with three passengers, two adults and a toddler. She lost control and the car overturned, ejecting and killing one adult and breaking the collarbone of another. No other vehicles and no drugs or alcohol were involved.

The record shows that Officer John Floyd investigated the accident. The roadway information sheet he completed after the accident indicated that the road and shoulder did not appear to contribute to the accident. At the preliminary hearing, he reiterated his conclusion that the roadway and shoulder had no impact on the accident, and calculated Carroll’s speed at 70.84 mph in a 35 mph zone.

While Floyd was investigating this case, he had not yet completed his first class in accident reconstruction. In mid-December, he showed his speed calculations to his instructor, Officer David Roskind, who informed Floyd that the calculations were incorrect. Roskind, an instructor at the Regional Police Academy and coordinator for accident reconstruction at the Fulton County Training Center, teaches classes in accident reconstruction and critical speed analysis to law enforcement officers. Roskind recalculated Carroll’s speed at 44.66 mph and the State so informed Carroll.

Floyd asked Roskind to be an expert witness at Carroll’s trial and in April, during the week before the trial was scheduled, the men visited the accident site. After examining the site, the instructor informed Floyd that there was no evidence to support his calculation of Carroll’s speed and that both the newly-paved roadway and the shoulder, which dropped off, contributed to the accident. Six days before the trial date, Floyd and Roskind advised the State that Floyd’s speed calculation was again incorrect. The instructor also informed the State it was not possible to calculate the speed based on the data Floyd had provided and he could not give expert testimony on the speed. They also discussed the shoulder drop-off. It is undisputed that the State failed to disclose this new information to Carroll before her scheduled trial date, the day she entered her guilty plea.

At the hearing on Carroll’s motion to withdraw her plea, Floyd admitted that he and Roskind met with the prosecutor after viewing the accident site. Floyd testified that he knew the speed calculation of 44 mph was incorrect before Carroll entered her plea. Floyd also admitted that the injured passenger, who estimated Carroll’s speed at 50 mph, had been sitting in the back seat and could not see the speedometer.

At the same hearing, Roskind testified that road defects, weather conditions, the presence of standing water, uneven pavement, and a sloping, soft shoulder had contributed to what was, in his opinion, an accident. Roskind emphasized that the angle of the shoulder’s two to six inch drop-off created a negative super-elevation which made it harder to recover from a swerve off the road. Roskind also testified that Floyd was not qualified to do a critical speed determination in this case due to a lack of training and experience. Held:

Brady, 373 U. S. at 83, holds that suppression of exculpatory material evidence violates due process. To prove a Brady violation, the defense must establish that (1) the State possessed material evidence favorable to the defense; (2) the accused did not possess such evidence and could not through reasonable diligence obtain it; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that disclosure of the evidence would have altered the outcome of the proceedings. Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

Notwithstanding the State’s claim to the contrary, the materiality of the State’s sole expert’s rejection of its speed calculations and determination of fault can hardly be disputed. See Green v. State, 219 Ga. App. 24, 26 (3) (464 SE2d 21) (1995). Both charges against Carroll required proof that she committed reckless driving in violation of OCGA § 40-6-390 by driving over the 35 mph speed limit, an allegation completely undermined by Roskind’s testimony that the speed could not be calculated on Floyd’s data and that the road defects, and the shoulder drop-off contributed to what he deemed an accident. Id. Further, the record shows that the State obtained this evidence just prior to trial, at a time when Carroll could not avail herself of it through reasonable diligence. Moreover, several months prior to entering her plea, Carroll filed a discovery demand for exculpatory evidence. Carroll testified that she did not know her speed at the time of the accident and would not have entered her plea had she known of the evidence at issue.

Decided August 20, 1996.

We reject the State’s contention that it was not required to provide the defense with this information because Roskind and Floyd merely “reached different conclusions” about the wreck. By his own admission, Floyd was not “trained” in critical speed determination, and was completing his only class in it when the accident at issue occurred. In contrast, his instructor attended over 700 hours of accident reconstruction classes and taught at a police academy. He testified that Floyd lacked the training and experience to make a critical speed determination in this case, a conclusion substantiated by Floyd’s initial speed miscalculation and his subsequent error. Under these circumstances, we question whether Floyd was qualified to offer his opinion on this matter. Compare Kimbrough v. State, 215 Ga. App. 303 (1) (450 SE2d 457) (1994).

Further, the State’s reliance on Bromley v. State, 259 Ga. 377, 378 (380 SE2d 694) (1989) for the proposition that it had no duty to disclose the instructor’s evidence is misplaced. In Bromley, because the defense located the State’s expert who had given favorable testimony before trial and used him as a witness, the Brady violation was deemed harmless. That is hardly the case here.

We also observe that the State neglected a clear opportunity to set the record straight. During Carroll’s plea hearing, the State remained silent when her lawyer stated that he expected the State’s evidence to show that Carroll was driving at approximately 44 mph. See Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993) CBrady material must be disclosed in time to benefit the defense). When the court inquired whether that account comported with the State’s version, the prosecutor answered in the affirmative, despite his knowledge of the shoulder drop-off and the second error in calculating the speed imparted in his meeting with Roskind and Floyd days before. This response did not promote the truth-seeking function on which the judicial process is founded. See West v. State, 213 Ga. App. 362, 365 (1) (a) (444 SE2d 398) (1994).

The withdrawal of a plea is appropriate only to correct manifest injustice. State v. Evans, 265 Ga. 332, 336 (454 SE2d 468) (1995). Because the State’s failure to comply with Brady’s clear mandate spawned such injustice, we find the trial court abused its discretion in denying Carroll’s motion to withdraw her plea. Mock v. State, 218 Ga. App. 514, 517 (3) (462 SE2d 429) (1995).

Judgment reversed and remanded for trial.

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

Warren A. Sellers, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, James L. Wright III, Assistant District Attorneys, for appellee.


text:
    A96A1404.
    OWENS et al. v. HEWELL et al.
    (474 SE2d 740)
   Blackburn, Judge.

Mary and Clarence Owens appeal the trial court’s order granting summary judgment to Terry Hewell and the City of Loganville based upon the expiration of the statute of limitation and the inapplicability of OCGA § 9-2-61 to state cases originally filed in federal court. The issues presented are: Do the renewal provisions of OCGA § 9-2-61 apply to state actions which were originally filed in federal court, and if so, from what date does the renewal period run for such cases.

On October 29, 1991, Mary Owens was involved in a motor vehicle collision with Hewell, a Loganville police officer. Following the collision, Owens and her husband filed a lawsuit against Hewell and the City of Loganville in the United States District Court for the Northern District of Georgia. Owens asserted both civil rights claims and pendent state law tort claims pursuant to 28 USCA § 1367 (a). Her husband sought relief for loss of consortium. The United States District Court dismissed the Owenses’ federal claims for failure to state a claim upon which relief could be granted. Consequently, the Owenses’ state law tort claims were also dismissed for láck of subject matter jurisdiction.

The Owenses appealed to the Eleventh Circuit Court of Appeals, which on January 7, 1994, affirmed the District Court’s dismissal. The Owenses, without seeking a stay, then petitioned the United States Supreme Court for certiorari, which was denied on October 3, 1994. On November 2, 1994, the Owenses refiled their tort claims in Walton County Superior Court under the renewal provisions of OCGA § 9-2-61. The Superior Court granted summary judgment in favor of Hewell and the City of Loganville, finding that OCGA § 9-2-61 was not applicable in this case because the action was originally filed in federal court and that, consequently, the Owenses’ claims were barred by the statute of limitation. This appeal ensued.

Since its amendment in 1985, OCGA § 9-2-61 permits a plaintiff whose timely filed federal action is dismissed without prejudice to renew that claim in a state court, within the original statute of limitation period or within six months after the dismissal, whichever is later. See O’Neal v. DeKalb County, 667 FSupp. 853 (N.D. Ga. 1987), aff’d 850 F2d 653 (11th Cir. 1988). OCGA § 9-2-61 applies to involuntary, as well as voluntary dismissals, where the merits of the case are not adjudicated. Swartzel v. Garner, 193 Ga. App. 267, 268 (387 SE2d 359) (1989).

OCGA § 9-2-61 requires plaintiffs to refile their claims within six months of their having been dismissed in federal court. The Owenses assert that their action was timely under OCGA § 9-2-61 because they refiled it within six months of the United States Supreme Court’s denial of their petition for certiorari. Hewell and the City of Loganville contend that the Owenses’ action is barred because the renewal period runs from the date of the Eleventh Circuit’s decision affirming the District Court’s dismissal. The first impression question to be resolved is from which date does the six-month renewal period under OCGA § 9-2-61 run, the date of the Eleventh Circuit Court of Appeals’ decision, or the date of the U. S. Supreme Court’s denial of the subsequent petition for certiorari?

Pursuant to 28 USCA § 1291, the Owenses had the statutory right to appeal to the United States Court of Appeals. However, the Owenses did not have a statutory right to appeal to the United States Supreme Court. See 28 USCA § 1254 (1); see also Potts v. Flax, 313 F2d 284, 290, n. 6 (5th Cir. 1963) (“grant of certiorari is a discretionary review and not one which the Supreme Court must hear as a matter of right”). The Eighth Circuit Court of Appeals addressed this issue in Glick v. Ballentine Produce, 397 F2d 590 (8th Cir. 1968).

In Glick, plaintiffs’ original action was dismissed for failure to state a claim. Id. at 591. The dismissal was affirmed by the Eighth Circuit Court of Appeals, and plaintiffs sought a writ of certiorari from the United States Supreme Court which was denied. Id. The plaintiffs refiled their action less than one year after their writ was denied but more than one year after their dismissal was affirmed by the Eighth Circuit.

The renewed action was dismissed by the trial court for failure to comply with the one-year limitation of the renewal statute therein involved. The Eighth Circuit Court of Appeals affirmed because the plaintiffs never sought a stay while petitioning for certiorari and rejected the plaintiffs’ argument that their action did not reach its final disposition until the United States Supreme Court denied certiorari. “We find no support for the contention that the filing of a petition for a writ of certiorari prevents the judgment of [the Eighth Circuit Court of Appeals] from becoming final until the [United States] Supreme Court acts upon the petition, where no stay of mandate has been filed under 28 USCA § 2101 (f).[] . . . While it is true that the actual granting of a writ of certiorari does operate as a stay [cit.] the mere petition for certiorari does not have such an effect.” Id. at 594.

Decided August 20, 1996.

McKinney & Salo, Jan McKinney, for appellants.

Barnhart, O’Quinn & Williams, Michael A. O’Quinn, Margaret E. Sanders, for appellees.

While this Court is not bound to follow Glick, supra, its logic is persuasive. The Owenses’ unsuccessful pursuit of a discretionary appeal to the United States Supreme Court did not extend their right to renew their action under OCGA § 9-2-61, absent a stay, and the six-month renewal period thus ran from the date of the Eleventh Circuit Court of Appeals’ affirmance of the trial court’s dismissal of their action.

The trial court based its summary judgment on the erroneous determination that OCGA § 9-2-61 does not apply to claims originally filed in federal courts. This was the law prior to its amendment in 1985. For the reasons outlined above, however, the renewal period had expired prior to the bringing of the subject action and is thus barred by the statute of limitation. Appellee was therefore entitled to summary judgment and “a grant of summary judgment must be affirmed if it is right for any reason.” Hanna v. McWilliams, 213 Ga. App. 648, 651 (446 SE2d 741) (1994).

Therefore, the trial court did not err in finding that appellants’ claims are barred by the statute of limitation.

Judgment affirmed.

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

       As amended in 1985, OCGA § 9-2-61 provides in pertinent part: “(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or, if permitted by the federal rules of civil procedure, in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later,. .. provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.... (c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.”

       28 USCA § 2101 ffl provides in pertinent part: “In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court.”