author: Ellington, Judge. Andrews, Presiding Judge,

text:
    A99A2012, A99A2013.
    GEORGIA PORTS AUTHORITY v. HARRIS et al.; and vice versa.
    (533 SE2d 404)
   Ellington, Judge.

In Case No. A99A2012, Georgia Ports Authority (GPA) appeals from the judgment entered on the jury’s verdict in William N. and Ruthie Mae Harris’ negligence suit under the.Georgia Tort Claims Act (GTCA) for personal injuries suffered while Mr. Harris was working as a longshoreman at the Brunswick port. In Case No. A99A2013, the Harrises cross-appeal. The cases are considered together.

Harris, working out of the International Longshoremen’s union hall for stevedore Ryan-Walsh Shipping Company, was injured on December 20,1993, when he and others were attempting to remove a tarp from a stack of steel pipe which was to be loaded onto a waiting vessel. The steel had been removed from rail cars and stacked in the GPA yard by GPA workers on Friday, December 17, 1993. The steel was stacked in layers which were separated by four-inch by four-inch boards, called “dunnage.” After the steel was stacked, the GPA workers sprayed the steel with a protective coating of oil and covered it with a tarp.

Because the tarp was holding standing water and could not be lifted off the steel by the men, Ryan-Walsh employees brought a forklift to the stack to help lift the tarp to allow the water to run off. As the water was draining off the tarp, the men heard a crack and a bundle of steel fell off the stack, severely injuring Harris. After the tarp was finally removed and the stack examined, it appeared that the GPA workers had not properly stacked the steel, causing the dunnage to break and one of the upper bundles of steel to fall.

Case No. A99A2012

1. GPA’s first and second enumerations deal with the trial court’s denial of its motion to dismiss, which was finalized by the judgment appealed, and are considered together.

Prior to trial, GPA filed its motion to dismiss pursuant to OCGA § 9-11-12 (b) (l)-(6), contending that Harris had not given notice as required by OCGA § 50-21-26 (a) (2). Although GPA argued, both at thé hearing held on the motion to dismiss and during the trial, that the court should rule on the merits of the motion based solely on the pleadings, the court accepted both documentary and testimonial evidence on the issue of the validity of the notice.

(a) GPA contends the trial court erred by accepting evidence on this issue after initially denying the motion to dismiss based solely on the pleadings.

A review of the procedural history of this case is necessary to a resolution of this issue. Harris’ complaint was originally filed in November 1995. As the claimed ante litem notice required by OCGA § 50-21-26, Harris attached a letter of July 26, 1994, addressed to Danny Thompson of GPA. The letter was from Derrell DeHart, an insurance adjuster/claim manager for Ryan-Walsh. That letter stated that it was:

to serve notice on the Georgia Ports Authority for potential liability in the accident and injury that occurred to ILA longshoreman, William N. Harris, on December 20, 1993 in Brunswick, Georgia. Mr. Harris’ injuries occurred as a result of section of pipe falling, causing extensive damage to his knee, ankle and shoulder.

After GPA filed its motion to dismiss on May 6, 1996, Harris filed his second amended complaint which attached, in addition to the DeHart letter, the December 16, 1994 letter from prior counsel for Harris, Linny Bailey. That letter enclosed a “State of Georgia Tort Claim” setting out the matters required by OCGA § 50-21-26 (a) (5). The copy of the letter attached to the complaint is marked “RECEIVED DEC 20 1994 DOAS/FISCAL DIVISION.” The copy also bears the handwritten claim number assigned to Harris’ claim by the Department of Administrative Services (DOAS). Also appended to the second amended complaint was the Federal Express air bill prepared by Bailey, pursuant to which the letter was sent overnight to Douglas Williams of the Risk Management Division of the DOAS.

At the hearing on GPA’s motion to dismiss, held on April 3,1997, GPA insisted that the matter was to be determined solely by reference to the “face of the pleadings in this case” and objected to consideration of evidence by the court. At the beginning of trial on March 30, 1998, the court revisited the issue of GPA’s motion to dismiss. At that time, Harris had witnesses he wished to put on concerning the notice issue. GPA objected that the motion to dismiss had already been ruled on and that the court had already decided any issue of fact. The court pointed out, however, that the issue had been decided, based on GPA’s position, solely on the pleadings and no factual determination had been made by the court. GPA then stated that “our contention [is] that the motion to dismiss is dispositive of all factual issues and that all those issues have been decided.”

The court ruled that it would consider evidence regarding the issue of notice outside the presence of the jury and make factual determinations regarding notice. While GPA agreed that such evidence was not for the jury’s consideration, it again urged that the issue should not be further considered by the court.

The crux of the issue is the mechanism by which it is determined whether a plaintiff has complied with the ante litem provisions of the statute, a question of subject matter jurisdiction. OCGA § 50-21-26 (a) (3) (“the courts shall have no jurisdiction . . . unless and until a written notice of claim has been timely presented to the state as provided in this subsection”).

As pointed out by Harris and acknowledged by GPA, the lack of subject matter jurisdiction, such as failure to comply with the ante litem notice provisions of the GTCA, is a matter in abatement, not a motion designed to test the merits of the claim. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974); Pettus v. Drs. Paylay &c., P.C., 193 Ga. App. 335, 336 (387 SE2d 613) (1989); see McGregor v. Stachel, 200 Ga. App. 324 (1) (408 SE2d 118) (1991). As such, it is controlled by OCGA § 9-11-43 (b), which provides that: “[w]hen a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. . . (Emphasis supplied.) Ogden Equip. Co., 232 Ga. at 615. In this case, the trial court considered depositions and testimony at trial from attorney Bailey, Thompson, DeHart, and Williams to determine whether it had subject matter jurisdiction. The trial court did not err in considering evidence outside the pleadings for that purpose.

(b) We turn now to GPA’s first enumeration: that the trial court erred in denying the motion to dismiss because Harris did not strictly comply with the GTCA’s ante litem notice requirement. In its final judgment, the trial court stated that, having initially denied GPA’s motion to dismiss, additional evidence was presented on the issue, outside the presence of the jury, during trial and that “a final ruling on Defendant’s motion was deferred pending receipt of the verdict.” The trial court then concluded that the ante litem notice signed by attorney Bailey and physically delivered to DOAS by Federal Express on the anniversary of the date of Mr. Harris’ injury, with a copy sent by regular mail to GPA’s Thompson, satisfied the GTCA.

OCGA § 50-21-26 (a) provides:

No person . . . having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: ... (2) Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity [involved].

(Emphasis supplied.) Because the Bailey letter was not sent by certified mail, the issue is whether the delivery by Federal Express constituted personal delivery in compliance with the emphasized portion of the statute.

Certainly, “[b]y its own terms, the State Tort Claims Act must be strictly construed,” and we have held that substantial compliance with OCGA § 50-21-26 (a) (2) is insufficient. Kim v. Dept. of Transp., 235 Ga. App. 480, 481 (2) (510 SE2d 50) (1998); see also Howard v. State of Ga., 226 Ga. App. 543-544 (1) (487 SE2d 112) (1997). But we do not conclude, as the dissent does, that the Federal Express delivery failed to satisfy the personal delivery option because DOAS opted to accept Federal Express deliveries at one desk and did not issue a separate paper “receipt” for the delivery, while claimants, their attorneys or local couriers would have been directed to a different desk at which separate receipts were issued. The requirement that a receipt be obtained can only have been intended to protect potential claimants, by providing proof of delivery of the required notice, and to simplify the trial court’s determination of whether the claimant had complied with OCGA § 50-21-26 (a) (2). In a case such as this, where actual receipt of the notice is admitted (and how could DOAS deny it, given its dated “received” stamp on the cover letter to Harris’ ante litem notice?), the doctrine of strict compliance does not require us to use the receipt provision to harm the very party it was designed to benefit, namely, one with a tort claim against the state. We have since held that ante litem notices sent by United States mail, return receipt requested, are timely if mailed by the anniversary date of the injury even if the notice is not physically received by DOAS until after the one-year period has passed. Norris v. Dept. of Transp., 268 Ga. 192, 193 (486 SE2d 826) (1997). It is unreasonable to penalize Harris for physically delivering his notice more promptly.

2. GPA contends the trial court erred in the way it allocated the defense’s peremptory jury challenges between GPA and Ryan-Walsh. Generally, two co-defendants would each be allowed to exercise three of the defense’s six jury strikes. Sheffield v. Lewis, 246 Ga. 19, 20 (1) (268 SE2d 615) (1980). Where, as here, a third-party claim can be severed under OCGA § 9-11-42 (b), the trial court may exercise its discretion to grant additional jury strikes to the defendants. Opatut v. Guest Pond Club, 188 Ga. App. 478, 480 (2) (373 SE2d 372) (1988). Here, the trial court “considered the posture of the case, the respective claims of the parties, and the adverse nature of those claims,” id., and granted GPA and Ryan-Walsh one additional jury strike each. Having reviewed the record, we find no abuse of discretion in the trial court’s ruling.

3. GPA contends the trial court erred in excluding evidence regarding the GPA Tariff. GPA further contends the trial court abused its discretion in refusing to give its requested jury charge regarding Ryan-Walsh’s alleged indemnity obligation pursuant to the tariff. The tariff at issue provided that users agreed “to indemnify and save harmless” GPA “from and against all losses, claims, demands and suits for damages,” including personal injury “incident to or resulting from their operations on the property of [GPA] and the use of its facilities.” The application of indemnity provisions contained in written contracts is a question of law for the court. Westinghouse Elec. Corp. v. Williams, 183 Ga. App. 845, 846 (2) (360 SE2d 411) (1987). Evidence regarding how any judgment in favor of Harris and against GPA and Ryan-Walsh jointly would have been allocated as a matter of law was utterly irrelevant to the jury’s determination of negligence and damages. See generally Rumsey, Agnor’s Ga. Evidence (3rd ed.), § 10-19, pp. 300-301. It follows that the trial court did not err in excluding evidence of the indemnity provision of the tariff and in refusing to charge the jury about the indemnity provision.

Furthermore, the tariff provided: “This Item is not to be construed as requiring any user to indemnify or hold harmless the Georgia Ports Authority for that portion or percentage of such losses, if any, caused by the negligence of the Georgia Ports Authority, its’ [sic] agents or employees.” The jury determined that GPA was negligent, its negligence was a proximate cause of Harris’ injuries, and that neither Harris nor Ryan-Walsh was negligent; no other parties were alleged to be responsible for the collapse of the stacked steel. It follows that in this case the “portion or percentage of such losses caused by the negligence of” GPA was 100 percent. By its terms, the tariff did not require Ryan-Walsh to indemnify GPA for losses to the extent they resulted from GPA’s negligence. Because GPA was wholly at fault, even if the trial court had admitted evidence of the indemnity provision of the tariff and instructed the jury about it, GPA could not have been relieved of paying the entire allowable judgment.

4. GPA contends the trial court abused its discretion in refusing to give its requested charge that Ryan-Walsh, as Harris’ employer, owed Harris the primary duty to provide a safe work place and to protect him from an unreasonable risk of harm under the Longshore & Harbor Workers’ Compensation Act. See 33 USC § 941 (a); Ga. Ports Auth. v. Southeast Atlantic Cargo Operations, 202 Ga. App. 318, 321 (2) (b) (414 SE2d 232) (1991). In its third-party complaint, GPA alleged “[t]he steel pipe was carelessly and negligently uncovered.” Nor did GPA add any allegation that Ryan-Walsh had breached any higher duty of care derived from the federal act in the pretrial order. Because GPA did not raise the issue of anything more than simple negligence before trial began, any such, theory of recovery was waived. Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 503 (1) (359 SE2d 412) (1987).

Even assuming the pleadings were deemed automatically amended to conform to the evidence by OCGA § 9-11-15 (b), Brackett v. Cartwright, 231 Ga. App. 536, 537 (1) (499 SE2d 905) (1998), a standard of care which would apply to a claim by Harris against Ryan-Walsh cannot be asserted in GPA’s third-party claim against Ryan-Walsh for indemnification. Larue v. Joann M., 73 F3d 325, 327 (11th Cir. 1996).

5. GPA contends the trial court erred in excluding testimony from Harris’ doctor that he could return to work. Excerpts of the doctor’s deposition were read into the record at trial. The trial court excluded the question “Can he go back to work?” and the doctor’s affirmative response for lack of foundation because the doctor admitted he did not know what Harris’ duties as a longshoreman would be. But a review of the transcript shows that the doctor’s testimony that Harris was not completely disabled and could return to work with restrictions was admitted. Therefore the excluded testimony was merely cumulative of admitted testimony; the judgment will not be reversed on this basis. Complete Trucklease v. Auto Rental &c., 160 Ga. App. 568, 570 (1) (288 SE2d 75) (1981).

6. GPA contends the trial court erred in refusing to allow impeachment of Harris with a prior recorded statement. GPA attempted to impeach Harris with a statement made in a tape recorded interview. The investigator who conducted the interview was not available to testify, the transcript contained many indications of omissions and indecipherable speech, and the tape itself was barely audible. The trial court’s conclusion that GPA did not lay a proper foundation for using the transcript for impeachment purposes was not clearly erroneous. OCGA § 24-9-83; see Dyous v. State, 195 Ga. App. 99, 100 (4) (392 SE2d 730) (1990).

Case No. A99A2013

7. Harris contends the trial court erred in reducing the amount of damages awarded by the jury in his favor to $1,000,000 in accordance with OCGA § 50-21-29 which provides, “no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence.” Because of Ryan-Walsh’s lien for medical and wage benefits paid under the Longshore & Harbor Workers’ Compensation Act, Harris’ net recovery will be reduced by almost 20 percent. Harris contends that he and Ryan-Walsh are two separate entities which suffered two separate losses from the occurrence on December 20, 1993, and, therefore, they should be subject to separate $1,000,000 caps. To the extent Ryan-Walsh’s claim failed because the state did not receive timely ante litem notice of Ryan-Walsh’s separate claim, Harris contends that he should not be penalized for Ryan-Walsh’s failure to pursue its separate claim against GPA.

Pretermitting whether Ryan-Walsh could have recovered directly from GPA the amount it had paid Harris in medical and wage benefits, it did not pursue such a claim against GPA in this action. Harris cited no authority justifying adding to the $1,000,000 per person cap just because he is forced by operation of another law to reimburse Ryan-Walsh for benefits it paid before he secured a negligence judgment against GPA.

8. Mrs. Harris contends the trial court erred in refusing to enter judgment in her favor and in denying her motion for partial new trial, based on its finding that she did not provide timely ante litem notice of her loss of consortium claim. Mrs. Harris argues that the Bailey letter — which did not mention her loss of consortium claim or even the fact that Mr. Harris was married — was sufficient to include her as a claimant. The authority relied upon by Mrs. Harris, Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (1) (486 SE2d 851) (1997), holds that one person bringing suit as two distinct legal entities (in that case, a personal representative who was also an administratrix) is treated as two persons for purposes of the $1,000,000 limit on recovery. It does not indicate that a wife claiming loss of consortium does not have to serve a separate ante litem notice.

Mr. Harris, on the other hand, does not contend that he is one person who may recover in two separate legal capacities; he contends that notice of his claim gave notice of the derivative claim of a separate person, his wife. As noted above in Division 1, by its own terms, the ante litem notice provisions of the GTCA must be strictly construed, and this applies to the description of the nature of the loss claimed. Williams v. Dept. of Human Resources, 234 Ga. App. 638 (507 SE2d 230) (1998). In Williams, we held that a notice which described the loss suffered as a woman’s pain, disfigurement, and reduced life expectancy and her husband’s loss of consortium, sent while the woman was still alive, did not provide notice of the husband’s later-accruing claim for his wife’s wrongful death. Id. at 639-640. We must conclude that notice of Mr. Harris’ claim did not give notice of Mrs. Harris’ loss of consortium claim, and the trial court’s entry of judgment for GPA on Mrs. Harris’ claim was proper.

Judgments affirmed.

McMurray, P. J., Blackburn, P. J., Ruffin, Eldridge and Barnes, JJ, concur. Andrews, P. J., dissents.

Andrews, Presiding Judge,

dissenting.

I must respectfully dissent in Case No. A99A2012, because there was no compliance by William Harris with the ante litem notice requirements of OCGA § 50-21-26 (a).

Compliance by a plaintiff with the ante litem provisions of the statute is a question of subject matter jurisdiction. OCGA § 50-21-26 (a) (3) (“the courts shall have no jurisdiction . . . unless and until a written notice of claim has been timely presented to the state as provided in this subsection”) (emphasis supplied).

The trial court concluded that the Federal Express delivery initiated by attorney Bailey and mailing a copy by regular mail to Georgia Ports Authority’s Thompson satisfied the Georgia Tort Claims Act.

OCGA § 50-21-26 (a) provides that:

No person . . . having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: ... (2) Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity [involved].

(Emphasis supplied.)

Since Harris did not opt to use the certified mail, return receipt method of giving notice, compliance with the GTCA must be found in delivery by a private delivery company, Federal Express, to DOAS. The “receipt” required by the statute can only, under the facts of this case, be the Federal Express air bill filled out by attorney Bailey or the recipient’s copy of the air bill left with DOAS. Bailey testified that Harris’ Exhibit 43 was his copy of the air bill, prepared in and maintained by his office, and Harris’ Exhibit 42 was the recipient’s copy which was left with DOAS by Federal Express. Harris’ Exhibit 41A is a copy of Bailey’s notice letter, marked received by DOAS Fiscal Division and provided by DOAS to Harris during discovery. This, apparently, is the linchpin upon which the majority would hang compliance with the ante litem provision, since the evidence does not reflect that anything was obtained by the Federal Express delivery person from DOAS and returned to Bailey. The only proof that Bailey had that, in fact, the letter had been delivered to DOAS was a notation on his bill from Federal Express, indicating the “person or entity that it was addressed to and . . . the date that it was received.” Bailey acknowledged that he no longer had a copy of the Federal Express bill reflecting delivery of the Harris notice and that he had received nothing from DOAS indicating receipt of the notice.

It is unclear from what portion of the GTCA the majority has divined that the purpose of the ante litem notice requirement of a receipt from DOAS is to protect the claimant, since the notice provisions are also for the benefit of the State.

In Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) (1997), the Supreme Court noted that:

The stated intent of the Act is to balance strict application of the doctrine of sovereign immunity, which may produce “inherently unfair and inequitable results,” against the need for limited “exposure of the state treasury to tort liability.” OCGA § 50-21-21 (a). The legislature expressly declared as “the public policy of this state that the state shall only be liable in tort actions within the limitations of [the Act] and in accordance with the fair and uniform principles established” therein. OCGA § 50-21-21 (a).

Norris also emphasized that:

The plain language of OCGA § 50-21-26 (a) (2) provides two alternative methods of transmitting written notice mailing or personal delivery. As the Code section specifies, notice “shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. . . .

(Emphasis in original and supplied.) Id. at 192-193.

In Norris, while notice had been sent certified mail, return receipt requested, one of the two methods provided by OCGA § 50-21-26 (a), the notice had not been received by DOAS within the year, a requirement which had been read into the statute by the courts based on a comparable, but different, federal statute. The Supreme Court held that mailing by the method set out in the statute “presented” notice to the State under the statute.

Based on the majority’s reasoning here, mailing of the notice no longer has to be by certified mail, return receipt requested, because, if a claimant can show that DOAS had notice, by whatever method obtained, that would suffice, in contravention of Norris, supra.

Such a conclusion ignores the well-established canon of statutory construction, inclusio unius, exclusio alterius, i.e., the inclusion of one implies the exclusion of others. See, e.g., O’Melveny & Myers v. Fed. Deposit Ins. Corp., 512 U. S. 79, 86 (114 SC 2048, 129 LE2d 67) (1994); Blackwell v. State, 237 Ga. App. 896, 897 (516 SE2d 787) (1999). Here, the legislature specified two specific methods of delivering notice, thereby impliedly excluding others.

Here, even assuming without deciding that the use of a private delivery service such as Federal Express might be deemed “personal delivery” under that option, a further conjunctive and, I believe, contemporaneous requirement is contained in the statute, i.e., the obtaining of a receipt “from the Risk Management Division of the Department of Administrative Services.”

As repeatedly held, “the Georgia Tort Claims Act will be strictly construed. [Cits.]” Williams v. Dept. of Human Resources, 234 Ga. App. 638, 640 (507 SE2d 230) (1998), cert. granted, Case No. S99G0178 (issued October 13, 1999). Substantial compliance with the requirements of the GTCA’s provisions will not suffice. Kim v. Dept. of Transp., 235 Ga. App. 480 (510 SE2d 50) (1998).

Harris argues that showing that DOAS did receive the notice should suffice, based on the presence of DOAS’ receipt stamp on the copy of the Bailey letter attached to the complaint. That, however, does not satisfy the requirement that, if personal delivery is used, a receipt must be obtained “from” the department. To hold otherwise would amount to a finding that substantial compliance will suffice. As set out above, until Harris obtained from DOAS the copy of the notice stamped “received,” he had NOTHING from DOAS indicating receipt of the notice, only the documents prepared by Federal Express.

The majority’s rationale would also seem to imply that any time a litigant has actual notice of a lawsuit, the courts should find that the requisites of valid personal service are present, even if the requirements of numerous statutes have not been met. See, e.g., Joyner v. Schiess, 236 Ga. App. 316 (512 SE2d 62) (1999) (OCGA § 9-11-4 (d) (7)); Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, 347 (2) (469 SE2d 462) (1996) (OCGA § 44-14-161 (c)); Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694, 695 (431 SE2d 712) (1993) (OCGA § 18-4-62 (a)).

Alternatives for notification within the act are the purview of the legislature, not this Court. State Ethics Commr. v. Moore, 214 Ga. App. 236, 239 (447 SE2d 687) (1994).

Decided March 30, 2000

Reconsideration denied April 13, 2000

Thurbert E. Baker, Attorney General, Daniel M. Formby, Kathleen M. Pacious, Deputy Attorneys General, R. O. Lerer, Senior Assistant Attorney General, George S. Zier, Assistant Attorney General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, Mary Kathryn Hogan, for appellant.

Jones, Boykin, Stacy & Associates, Noble L. Boykin, Jr., for appellees.

       Mrs. Harris’ claim is for loss of consortium and is addressed separately only as necessary.

       Ryan-Walsh is the third-party defendant sued by GPA. GPA contends Ryan-Walsh is liable to it for any damages to Harris based on an indemnity provision in the terminal tariff applicable to all who use the port. For its part, Ryan-Walsh asserted a lien on any recovery by Harris for reimbursement of $178,100.68, the amount it had paid in medical and wage benefits under the Longshore & Harbor Workers’ Compensation Act, 33 USC § 933.

       Only subsections (1), lack of jurisdiction over the subject matter, and (6), failure to state a claim upon which relief can be granted, are applicable to this situation.

       Although a second letter, this one from trial counsel and dated August 24, 1995, is also attached to the original complaint, that was not relied upon below and was acknowledged as untimely.

       Although GPA argues that Bailey’s testimony alone was insufficient evidence that a copy was mailed to GPA’s Thompson, that was a matter of credibility properly decided by the trial court.

       The dissent’s excessively narrow reading of the language “and a receipt obtained from” DOAS takes the principle of strict compliance too far. Indeed, taking the requirement of obtaining a receipt from DOAS to its absurd extreme, the cover letter to Harris’ ante litem notice, stamped “received” by DOAS, should be considered his receipt. Presumably Harris did not receive it from DOAS until it was produced in discovery many months later, but the statute does not — literally — say when or how the receipt must be obtained.

       While it is true that under Georgia’s workers’ compensation law an employer’s lien for medical and wage benefits is not enforceable against an injured employee’s tort recovery until the employee has been fully and completely compensated for all economic and noneconomic losses incurred as a result of the injury, OCGA § 34-9-11.1 (b); see North Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (513 SE2d 251) (1999), the federal Longshore & Harbor Workers’ Compensation Act is not controlled by a similar full compensation rule. Peters v. North River Ins. Co., 764 F2d 306, 312 (5th Cir. 1985).

       Such a conclusion is bolstered by the fact that DOAS receives, by all methods, 40,000 to 50,000 documents a week and they are dealt with differently depending on the method of their delivery.


source: Caselaw Access Project

author: Ellington, Judge. Ruffin, Judge,

license: Public Domain

text:
    A99A2064.
    THE STATE v. MILLSAP.
    (528 SE2d 865)
   Ellington, Judge.

Pennie Dee Millsap was indicted for violating the Georgia Controlled Substances Act, for possessing marijuana and methamphetamine, OCGA § 16-13-30. The State appeals the grant of Millsap’s motion to suppress evidence. We reverse.

In reviewing a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment, and the court’s findings on disputed facts and credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997).

Viewed in this light, the evidence shows that Millsap was a passenger in a vehicle that was stopped when a police officer observed the driver not wearing a seat belt, in violation of OCGA § 40-8-76.1. After issuing the driver a warning for the violation, the officer asked for, and the driver granted, both oral and written consent to search the vehicle. The officer searched the car and found nothing, then asked Millsap for permission to search her purse. After obtaining her consent, the officer searched the purse and found marijuana and methamphetamine. At the hearing on the motion to suppress the evidence, the trial court found that the officer’s stop for the seat belt violation was pretextual and invalidated both consents to search.

OCGA § 40-8-76.1 (f) states:

[plrobable cause for violation of [OCGA § 40-8-76.1 (b)] shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Code section. Noncompliance with the restraint requirements of this Code section shall not constitute probable cause for violation of any other Code section.

The General Assembly added the language concerning probable cause for violation of other Code sections for the purpose of prohibiting a search of a person or a vehicle based solely on the failure of the occupant of the front seat to wear a seat belt. Davis v. State, 232 Ga. App. 320, 321-322 (1) (501 SE2d 836) (1998). However, the language was not intended to prevent an officer from making an arrest on additional offenses based upon evidence ascertained through reasonable inquiry and investigation following the initial stop. Id.

The officer testified that he had a clear and unobstructed view of the driver of the vehicle not wearing a seat belt. This view was sufficient to establish probable cause for the stop. OCGA § 40-8-76.1 (f). Accordingly, the stop was not pretextual.

Once the vehicle was lawfully stopped, the officer was allowed to ask for the driver’s consent to search the car. See Stokes v. State, 238 Ga. App. 230, 233 (518 SE2d 447) (1999). No additional probable cause or articulable suspicion was required to simply ask the question. Id. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual . . . and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” (Citations and punctuation omitted.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

The officer testified that the driver and the vehicle’s occupants were free to leave at any time after he gave the verbal warning for the seat belt violation. Both the driver and Millsap were within their rights to refuse the officer’s request to search the vehicle and the purse. The trial court determined, however, that Millsap instead remained at the scene and consented to a search of her purse. We will not disturb the trial court’s finding that Millsap’s consent to the search of her purse was valid. Because the stop was not pretextual, the trial court erred in suppressing evidence obtained in the search.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur. Andrews, P. J., and Barnes, J., concur in judgment only. Blackburn, P. J., and Ruffin, J., dissent.

Ruffin, Judge,

dissenting.

Once a routine traffic stop has ended, can police continue to detain motorists and passengers for questioning without any basis for doing so? Because I do not believe that police officers have such authority, I dissent.

At the outset, I must state that I disagree with the analysis employed by the trial court. Contrary to the trial court’s order, the issue here is not whether the traffic stop itself was pretextual. Under OCGA § 40-8-76.1 (f), the police have statutory authority to stop a car if either the driver or front seat passenger is not wearing a seat belt. Thus, the initial stop was clearly authorized, and the trial court erred in labeling it pretextual. But the issue remains as to whether, after having stopped the car, the police exceeded the scope of their authority by detaining the occupants of the car for questioning. It is here that I disagree with the reasoning employed by the majority.

In its opinion, the majority concludes that, having validly stopped the car, the police were free to question the occupants. But this is not an accurate statement of Georgia law. We have held that stopping a vehicle for investigative purposes is analogous to a Terry stop and that,

[t]he validity of an officer’s investigative . . . conduct upon making [such a] stop is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.

In striking this balance, we have held that traffic stops must be limited in time and limited in scope and that police officers must limit their questions to those “reasonably related to the circumstances that justified the initiation of the momentary stop” Thus, police officers do not have carte blanche to question motorists after having stopped them for a traffic violation. Rather, in order to justify additional questioning of motorists following a routine traffic stop, “an officer must have reasonable suspicion of criminal conduct.” To meet this standard,

an officer’s investigation during a traffic stop must be justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this sus-. picion need not meet the standard of probable cause, it must be more than mere caprice, or a hunch or an inclination.

Here, neither the trial court nor the majority addresses whether the police officers had reasonable suspicion to further detain Millsap and the other occupants of the car for questioning. The . transcript appears devoid of any evidence of suspicious conduct. But the trial court is the factfinder regarding such matters. Accordingly, I would reverse and remand for an order consistent with this dissent.

Decided January 28, 2000

Reconsideration denied April 13, 2000.

James R. Osborne, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellant.

Charles E. Pinkard, Jr., for appellee.

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

       See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Punctuation omitted.) State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

       (Citations and punctuation omitted; emphasis supplied.) Id.

       See Edwards v. State, 239 Ga. App. 44, 45 (1) (518 SE2d 426) (1999); see also Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).

       (Citations and punctuation omitted.) Id. at 618.

         Cunningham v. State, 231 Ga. App. 420, 421 (1) (498 SE2d 590) (1998).


author: Pope, Presiding Judge.

text:
    A99A2096.
    O’KELLEY v. HALL COUNTY BOARD OF EDUCATION et al.
    (532 SE2d 427)
   Pope, Presiding Judge.

We granted Debbie O’Kelley’s application for discretionary review of a superior court order that reversed an award by the Appellate Division of the State Board of Workers’ Compensation (the “Board”). At issue is whether the superior court ordered the Board to apply the wrong formula and, thereby, miscalculated O’Kelley’s average weekly wage. We conclude that the superior court erred, and we reverse.

The Hall County Board of Education (“Hall County”) hired O’Kelley as a substitute lunchroom worker on September 3, 1995, and converted her to a full-time position on October 3, 1995, at a contract rate of $229.85 per week. On October 18, 1995, O’Kelley suffered a compensable on-the-job injury. At the time of this injury, O’Kelley also had part-time employment as a food service worker at Dari-Spot, a job she had held for five years.

Hall County calculated O’Kelley’s income benefits by taking the sum of all her wages from both jobs for the 13 weeks prior to the injury and then dividing that figure by 13. See OCGA § 34-9-260 (1). Hall County paid two-thirds of $255.44, or $170.30 per week. After O’Kelley controverted this method of calculating her average weekly wage, an administrative law judge (“ALJ”) rejected Hall County’s methodology. The ALJ decided that because O’Kelley had worked for Hall County for only seven weeks, OCGA § 34-9-260 (1) was inapplicable. Instead, the ALJ determined that O’Kelley’s average weekly wage should have been calculated by finding the average weekly wage for each of her two jobs and adding them together: $138.75 from Dari-Spot and $229.85 from Hall County for a total of $368.60 per week, or $245.73 in income benefits. The Board agreed with the ALJ’s calculations, but the superior court did not.

The court decided that the “wrinkle in this case [was] caused by the fact that Ms. O’Kelley was employed by two employers at the time of her injury, but only for the seven weeks prior to the injury.” The court found that the language of the statute required only that O’Kelley have worked in the same kind of job — in this instance food services — for 13 weeks prior to her injury in order for subsection (1) to apply. Accordingly, the court reversed and directed the Board to recalculate O’Kelley’s weekly wage by including all of the wages she earned at Dari-Spot and all of the wages she earned from Hall County during the 13 weeks immediately prior to the injury and then dividing that result by 13. O’Kelley appeals.

1. O’Kelley contends that the court erred in reversing the Board by failing to follow established case law in calculating her average weekly wage and by failing to adhere to the any evidence standard of review.

An award of the Board is “conclusive and binding as to all questions of fact.” OCGA § 34-9-105 (a). Neither the superior court nor this Court has any authority to substitute itself as the factfinding body in lieu of the Board, and such award must be affirmed if there is any evidence to support it. Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216, 217 (348 SE2d 586) (1986).

Where, as here, an employee was working for two separate and distinct employers prior to an on-the-job accident with one of the employers, Georgia courts look to the doctrine of concurrent similar employment to determine whether the earnings in the employment in which she was not injured should be included in computing the average weekly wage. St. Paul Mercury Indem. v. Idov, 88 Ga. App. 697, 700-701 (77 SE2d 327) (1953). Under that doctrine, where an employee is concurrently employed by different employers at the time of the injury, is doing similar work for each of them, and sustains a compensable injury while working for one of the employers that is subject to the Workers’ Compensation Act, the employee’s total wages from all his employers are considered in determining the average weekly wage. Id. This allows the employee “compensation in direct relation to his earning capacity at the time of the accident.” Id. at 700.

Here, the parties stipulated that O’Kelley’s employment in both her jobs constituted similar and concurrent employment. And the ALJ found that O’Kelley’s employment in her two jobs was similar and became concurrent beginning September 3, 1995, when she took her job with Hall County. Under these circumstances, we find that the doctrine of concurrent similar employment applies and O’Kelley’s wages from both her jobs must be taken into consideration in calculating her average weekly wage. See generally St. Paul Fire &c. Ins. Co. v. Walters, 141 Ga. App. 579, 581 (3) (234 SE2d 157) (1977). The crucial question then is what formula must be used to calculate that wage.

OCGA § 34-9-260 sets forth various formulas for calculating the average weekly wage. Subsection (1) of that Code section provides:

If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.

This Court has held that the term “employment” as used in this subsection means “the type or kind of employment. ... It refers to the particular calling or kind of employment in which claimant was engaged at the time of his injury.” Black v. American &c. Ins. Co., 123 Ga. App. 133, 134-135 (2) (179 SE2d 679) (1970) (holding that employee’s second job was not similar and thus the wages from that job could not be considered in calculating workers’ compensation award). Nevertheless, although O’Kelley had worked in the food service industry for more than 13 weeks prior to her injury, she had not worked with Hall County for substantially the whole of 13 weeks. She did not begin her job with Hall County, even on a part-time basis, until seven weeks before the date of the accident.

We have previously held that where an employee worked 90 percent of his regular work schedule during the 13 weeks prior to his injury, he had not worked “substantially the whole” of the 13 weeks as required by OCGA § 34-9-260 (1). Callahan, 180 Ga. App. at 218. And in New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 796 (2) (a) (60 SE2d 245) (1950), we stated:

A man who has worked a full work week for not more than [two] of the thirteen weeks, and has not worked at all during three of those weeks, cannot be held to have worked during substantially the whole of thirteen weeks, and the director correctly refused to use subsection 1 of [OCGA § 34-9-260] as a yardstick for determining average weekly wage.

Decided March 24, 2000

Reconsideration denied April 13, 2000.

Perry M. Sartain, for appellant.

Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr., for appellees.

Therefore, we find there was sufficient evidentiary support for the Board’s determination that O’Kelley had not worked “substantially the whole of 13 weeks” prior to her injury, and the superior court should have affirmed the Board’s finding that OCGA § 34-9-260 (1) did not apply.

Similarly OCGA § 34-9-260 (2) does not apply. First, the parties stipulated that no “similar employee,” as required by that subsection, existed. Although neither the ALJ, the full Board nor the superior court is bound by this stipulation to the extent it represents a conclusion of law, O’Kelley, who bore the burden on this issue, offered no evidence to the contrary. See Fran’s Escort Svc. v. Strickland, 208 Ga. App. 294 (430 SE2d 389) (1993); Hood v. Jackson, 81 Ga. App. 465 (3) (59 SE2d 45) (1950) (claimant must establish by sufficient competent evidence the proper basis for compensation).

Where neither subsection (1) nor subsection (2) can “reasonably and fairly be applied,” subsection (3) states that “the full-time weekly wage of the injured employee [must] be used.” OCGA § 34-9-260 (3). See Federated Mut. &c. Ins. Co. v. Elliott, 88 Ga. App. 266, 271 (4) (76 SE2d 568) (1953). In this case, under the doctrine of concurrent similar employment, O’Kelley’s “full-time weekly wage” includes both the full-time wages she earned with Hall County and the part-time wages earned at Dari-Spot: “Where wages are paid on an hourly basis, the fulltime weekly wage is the wage per hour multiplied by the number of hours shown by the evidence to constitute a full time work week for such employee under his contract of employment.” (Citation and punctuation omitted.) Black v. American &c. Ins. Co., 123 Ga. App. at 136; New Amsterdam Cas. Co. v. Brown, 81 Ga. App. at 791, hn. (2) (b). Therefore, the ALJ and the Board correctly calculated O’Kelley’s average weekly wage. We reverse the judgment of the superior court and remand the case for further proceedings in accordance with this opinion.

2. In light of the above holding, we need not address O’Kelley’s public policy argument.

Judgment reversed and case remanded with direction.

Smith and Miller, JJ, concur.

George, Bartles & Wallach, Alex B. Wallach, Hazleton & Sullivan, Philip J. Botwinik, Todd K. Maziar, amici curiae.

       O’Kelley earned the $229.85 rate for only one week. For the other six weeks, she averaged about $93.60 from her job with Hall County.


author: Ruffin, Judge.

text:
    A99A2124.
    BAUMANN et al. v. SNIDER et al.
    (532 SE2d 468)
   Ruffin, Judge.

Christopher and Karen Baumann sued their neighbors, Michael Snider and Julie Abston, for trespass and nuisance, claiming that improvements Snider and Abston had made to their property caused increased rainwater runoff onto the Baumanns’ property. After a jury found in favor of the Baumanns, Snider and Abston filed a motion for judgment notwithstanding the verdict, which the trial court granted. The Baumanns appeal, and for reasons that follow, we reverse and remand with direction.

The evidence, viewed most favorably to support the jury verdict, shows the following. The Baumanns’ home lies downhill from the neighboring Snider/Abston residence. There is a natural runoff of rainwater from the Snider/Abston property to the Baumann property. After Snider and Abston purchased their residence in 1992, they gradually stripped the existing vegetation on their lot, which had previously included a dense ivy cover, and graded the property until it was mostly dirt. They hired a landscape firm to design and construct a Japanese garden, including a dry streambed built of rocks. The construction included four underground gutters that fed into the streambed, which terminated at the Baumanns’ property line.

The Baumanns’ expert witness, a hydraulic engineer, reported that the alterations to the Snider/Abston property resulted in a 40 to 80 percent increase in surface water discharge onto the Baumann property during storms. The Baumann property suffered ongoing damage from the increased water flow, including erosion causing the exposure of tree roots and the build-up of soil against a boundary fence, reducing it from a four-foot fence to a two-foot fence.

Christopher and Karen Baumann both testified that there was increased rainwater runoff from the Snider/Abston property. Christopher Baumann also recounted his mitigation efforts, including construction of a sidewalk to funnel water to the front of the Baumann property and onto the street. He reversed the gutters on his carport to funnel water to the front of his property. He added bushes and plants. These remedial efforts resulted in total out-of-pocket costs to the Baumanns of approximately $400 and required eight days of labor.

After presentation of the case, the trial court found that the evidence would not support an award of punitive damages and granted a motion for directed verdict on that issue. The jury returned a verdict in favor of the Baumanns for $12,500 in damages and $15,000 in attorney fees. After judgment was entered against them, Snider and Abston filed a motion for judgment n.o.v. or in the alternative for a new trial. The Baumanns filed an application for a permanent injunction against the rainwater runoff. The trial court denied the Baumanns’ application, granted Snider and Abston’s motion for judgment n.o.v., and entered judgment in favor of Snider and Abston for all claims in the case.

1. In granting Snider and Abston’s motion for judgment n.o.v., the trial court ruled that the Baumanns failed to prove damages. In their first enumeration of error, the Baumanns claim that the trial court erred in so ruling. In order to prevail on a motion for judgment n.o.v., the evidence must demand a verdict for the moving party. Where there is conflicting evidence, judgment n.o.v. should not be awarded. As there is some evidence of damages for nuisance, the trial court erred in granting judgment n.o.v.

The Baumanns sought to recover damages under the theories of trespass and nuisance. In actions for either trespass or nuisance, there may be a recovery for damage to real property. Generally, the measure of damages to the property is the cost of repair as well as the difference in the fair market value before the trespass and the fair market value after the trespass. If the cause of the trespass is an abatable nuisance, and therefore not necessarily permanent in nature, the measure of damages is the loss in fair market rental value plus actual damages. In a nuisance action, there may also be a recovery for damages to the person. The determination of damages for “discomfort, loss of peace of mind, unhappiness and annoyance” caused by the nuisance is for the enlightened mind of the jury. In the case of a nuisance involving runoff of surface water, “actual damages as such, i.e., injuries, are evidenced by a showing that the property owners are deprived of the full use and enjoyment of their property by the increased flow of surface waters or sediments on it.”

The trial court held that “the question of whether Plaintiffs presented sufficient evidence in this case turns upon whether Plaintiffs proceeded under the claim of trespass or nuisance in this action.” The trial court noted that, in the pretrial order, the Baumanns made no “claim for damages for ‘discomfort, loss of peace of mind, unhappiness and annoyance’ or other damages that would be recoverable under a claim of nuisance” and that “ ‘ “[i]f a claim or issue is omitted from the [pretrial] order, it is waived.” ’ ” Therefore, the trial court reasoned, the Baumanns could not recover damages for nuisance, but could recover damages only for trespass. At trial, no evidence was presented that demonstrated a diminution in the fair market value of the Baumann property. Absent such evidence, the trial court ruled that there was no basis for the jury verdict.

Putting aside the question of property damages, the evidence supports a verdict based on damages to the person under a nuisance theory. Therefore, we must decide whether the Baumanns waived their nuisance claim by failing to include damages for nuisance in the pretrial order.

A pretrial order, “when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” The purpose of a pretrial order is to promote efficiency and to conserve judicial resources. A pretrial order is to be construed liberally “to allow the consideration of all questions fairly within the ambit of contested issues.” Failure of a party to raise an issue in the pretrial order is not controlling where evidence is introduced on the issue without objection, the opposing party is not surprised, and the issue is litigated. Rather, the pretrial order is deemed modified to conform to the evidence that is admitted.

Here, the nuisance claim was made in the initial complaint. Moreover, the trial court charged the jury on the theory of nuisance and on damages, instructing jurors that:

[t]o constitute a nuisance, the use must be such as to produce either actual, tangible, and substantial injury to neighboring property or such as to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities. The plaintiffs here seek to recover monetary damages from the defendants. Damages are given as pay or compensation for injury done. ... If you believe from the preponderance of the evidence that the plaintiffs are entitled to recover, you should award to the plaintiffs such sums as you believe are reasonable and just in this case.

The defense was not prejudiced by the failure to specify a recovery for damages under the theory of nuisance because nuisance was a central theory of recovery from the outset of the case. Indeed, the jury was charged on nuisance without objection. We find that, under the circumstances, the pretrial order was modified to include the issue of recovery of damages for nuisance. Therefore, the trial court erred in finding the Baumanns had waived the issue.

Because there is evidence that the increased discharge of surface water interfered with the Baumanns’ use and enjoyment of their property, the jury was authorized to render its verdict for damages in the amount of $12,500. The trial court’s grant of Snider and Abston’s motion for judgment n.o.v. must be reversed, and the judgment of the jury reinstated.

2. The trial court vacated the $15,000 jury award for litigation expenses because such expenses are “ancillary and recoverable only in cases where other elements of damages are recoverable.” Because damages have been reinstated, this reasoning no longer applies. The award of litigation expenses is a question for the jury and will be affirmed if there is any evidence to support it. There is evidence that in April 1996 the Baumanns complained to Snider and Abston about the increased runoff caused by the removal of their gutters. Snider and Abston, with knowledge of the existing drainage problem, proceeded to construct the dry streambed in May 1996, running four new gutters into it and more steeply grading their property from the house slanting down into the streambed. This is evidence upon which a jury could base a finding of bad faith. Accordingly, the trial court’s grant of judgment n.o.v. respecting the jury verdict for litigation expenses must be reversed.

3. The Baumanns contend that the trial court erred by granting Snider and Abston’s motion for a directed verdict on the question of punitive damages. We agree. OCGA § 51-12-5.1 (b) provides that:

[plunitive damages maybe awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

“[I]t remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” Ordinarily, the imposition of punitive damages is a question for the jury.

There is no evidence that Snider and Abston harbored a malicious intent to cause harm. The Baumanns argue, however, that Snider and Abston demonstrated a want of care rising to a conscious indifference to consequences by clearing the ivy and other ground cover from their property, by constructing the dry streambed and by failing to abide by a temporary injunction.

Actions arising to a conscious indifference to consequences may authorize a finding of punitive damages. In Ponce de Leon Condo, v. DiGirolamo , our Supreme Court found that a judgment for punitive damages was supported by the evidence where the defendants had developed property adjacent to the plaintiff’s residence. Despite the plaintiff’s warnings about the danger of increased water discharge, the defendants graded and paved their property and routed a drainage system onto the plaintiff’s property, causing water damage. The defendants never altered the drainage system despite the plaintiff’s protests before and after its construction.

Here, Snider and Abston constructed a drainage system, through the dry streambed, which concentrated and directed water onto the Baumanns’ property. They were on notice of a water discharge problem even before the streambed was constructed but never acted to abate it. This is sufficient evidence of “conscious indifference” to authorize a jury to award punitive damages. Therefore, the trial court’s grant of the motion for directed verdict on the issue of punitive damages is reversed.

4. In their final enumeration of error, the Baumanns claim that the trial court erred by refusing to grant their application for a permanent injunction. The exercise of discretion by the trial court in granting or denying an injunction will not be interfered with absent manifest abuse. But:

[w]here . . . the trial judge has a legal discretion to exercise and passes judgment on the question, resting his decision solely upon a point of law and affirmatively showing from the language of the ruling that he failed to exercise any discretion whatsoever in the premises, the rule of discretion does not apply; and if the legal ground on which the judgment was rested was erroneous, a reversal will result.

If a trial court refuses to grant an injunction on an erroneous basis where there is no exercise of discretion, the case must be returned with direction that it be reheard on the merits. The trial court denied the Baumanns’ request for a permanent injunction because it held that the issue was moot, but, in view of this opinion, the motion for a permanent injunction was not moot. Therefore, the request for injunction was denied for an erroneous basis which did not involve the exercise of discretion.

The trial court suggested that it would have otherwise denied the motion because the Baumanns had an adequate remedy at law through the recovery of damages on a periodic basis. However, the law allows permanent injunctions against surface water runoff and also authorizes a remedy which includes both an injunction and damages. The trial court’s order does not indicate that it reviewed the question on the merits. Therefore, we remand this case to the trial court for consideration of the Baumanns’ request for a permanent injunction.

Decided March 24, 2000

Reconsideration denied April 13, 2000.

Smith, Schroeder & O’Connell, John J. O’Connell, Jr., for appellants.

Saveli & Williams, John C. Parker, Lisa J. Bucko, for appellees.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Ellington, J., concur.

        U S. Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 250 (6) (b) (496 SE2d 283) (1998).

       Id. See also Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).

       The Baumanns claimed damage from surface water discharge onto their property. Although property must accept the natural runoff of water from neighboring lands, an artificial increase or concentration of water discharge may give rise to a cause of action. As our Supreme Court said in Cox v. Martin, 207 Ga. 442 (1) (62 SE2d 164) (1950):
      Where two city lots adjoin, the lower lot owes a servitude to the higher, so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means. As to surface water, one land proprietor has no right to concentrate and collect it, and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality, or in a manner different from that in which the water would be received by the lower estate if it simply ran down upon it from the upper by the law of gravitation.
      (Citations and punctuation omitted.)

       The distinction between trespass and nuisance consists in the former being a direct infringement of one’s right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. In the one case the injury is immediate; in the other it is consequential, and generally results from the commission of an act beyond the limits of the property affected.
      (Punctuation omitted.) Jillson v. Barton, 139 Ga. App. 767, 768 (1) (229 SE2d 476) (1975).

        Allgood &c. Methodist Church v. Smith, 173 Ga. App. 28, 29 (2) (325 SE2d 392) (1984).

        Burleyson v. Western Atlantic R. Co., 91 Ga. App. 745, 752 (1) (87 SE2d 166) (1955).

       OCGA § 41-1-4.

       (Punctuation omitted.) Roddenberry Farms v. Leverich, 192 Ga. App. 153 (384 SE2d 243) (1989); City of Columbus v. Myszka, 246 Ga. 571, 573 (6) (272 SE2d 302) (1980); Mayor &c. of Waynesboro v. Hargrove, 111 Ga. App. 26 (2) (140 SE2d 286) (1965).

        Tyler v. Lincoln, 236 Ga. App. 850, 853 (1) (513 SE2d 6) (1999) (cert. granted).

        Dunaway v. Parker, 215 Ga. App. 841, 845 (1) (453 SE2d 43) (1994).

       See F. A. Reece Enterprises v. Winnings, 191 Ga. App. 30 (1) (380 SE2d 747) (1989); Hale v. Glenn, 108 Ga. App. 579, 580 (134 SE2d 60) (1963).

       OCGA § 9-11-16 (b).

        Goodman v. Frolik & Co., 233 Ga. App. 376, 379 (2) (504 SE2d 223) (1998).

       (Punctuation omitted.) Ackley v. Strickland, 173 Ga. App. 784, 787 (328 SE2d 549) (1985) (when nominal damages are inferred by the commission of a tort, it is error for the trial court to refuse to submit the question of nominal damages to the jury solely on the ground that such damages had not been specifically pled or referred to in the pretrial order).

        Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 137-138 (2) (267 SE2d 792) (1980).

        Dept. of Human Resources v. Phillips, 268 Ga. 316, 319 (1) (486 SE2d 851) (1997).

       The trial court told counsel that he was going to be deliberately vague in presenting the damage question to the jury: “let me show you [counsel] this verdict form. I just have damages set out. I don’t specify it as general or special or nominal, because ... the law infers some damage from the invasion of a property right.”

        Barnett v. Morrow, 196 Ga. App. 201, 202 (396 SE2d 11) (1990).

       See Kent v. Brown, 238 Ga. App. 607, 613 (2) (g) (518 SE2d 737) (1999) (questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide); Equicor, Inc. v. Stamey, 216 Ga. App. 375, 378 (2) (454 SE2d 550) (1995).

       (Punctuation omitted.) Tri-County Investment Group v. Southern States, 231 Ga. App. 632, 638 (4) (b) (500 SE2d 22) (1998).

        Read v. Benedict, 200 Ga. App. 4, 7 (2) (406 SE2d 488) (1991).

       238 Ga. 188 (232 SE2d 62) (1977).

        Slaven v. City of Buford, 257 Ga. 100 (355 SE2d 663) (1987).

       (Punctuation omitted.) Lowance v. Dempsey, 99 Ga. App. 592, hn. 2 (a) (109 SE2d 318) (1959) (physical precedent only).

        Stribbling v. Ga. R. &c. Co., 139 Ga. 676, 687 (3) (78 SE 42) (1913).

       See Columbia County v. Doolittle, 270 Ga. 490, 493 (3) (512 SE2d 236) (1999).


author: BLACKBURN, Presiding Judge. Eldridge, Judge, Barnes, Judge,

text:
    A99A2256.
    THE STATE v. HANSON et al.
    (532 SE2d 715)
   BLACKBURN, Presiding Judge.

The State appeals the trial court’s grant of James Hanson and Deborah Sue Huddleston’s motion to suppress evidence of marijuana found during a vehicle search following a traffic stop. Driver Hanson, who was not in violation of any traffic law, was stopped by Deputy Fred Sutton of the Camden County Sheriff’s Department to check upon his physical condition, as he purportedly was weaving within his traffic lane. The court determined that the deputy’s testimony was not credible and that the police conduct of the stop amounted to a ploy to create a basis to search defendants’ vehicle where probable cause was lacking. We affirm.

Following a search of the vehicle and Huddleston’s purse, driver Hanson and passenger Huddleston were each charged with one count of violation of the Georgia Controlled Substances Act, possession of marijuana with intent to distribute.

It was stipulated at the hearing that the hand-rolled cigarette found in defendant Huddleston’s purse contained less than one ounce of marijuana and that the trunk of the vehicle contained 11.3 pounds of marijuana.

The defendants filed a motion to suppress all statements made by them and any evidence seized from the vehicle based on violations of the defendants’ Fourth and Fifth Amendment rights. The trial court granted defendants’ motion following a hearing, holding inter alia:

FINDINGS OF FACT
1. The vehicle driven by Defendant Hanson was observed weaving within its lane of traffic by a Camden County Deputy Sheriff who was working traffic on Interstate Highway 95.
2. Said vehicle promptly pulled over when the officer activated his vehicle’s blue light.
3. The officer spoke with Defendants. While out of their hearing, he commented (for purposes of the videotape) that they appeared to be very nervous. Defendant Hanson told the officer he was a musician. He had long hair and a full beard. The vehicle had tinted windows.
4. The officer testified that he smelled marijuana when he was near the passenger area of the vehicle. He did not make a “verbal note” of that observation for the videotape, although he made such verbal notes for the videotape on less significant matters. The inclusion of an assertion in the officer’s report that he smelled marijuana is not persuasive in light of the officer’s obvious effort to inject relevant comments sotto voce, which convinces the Court the officer’s testimony on that issue is not credible.
5. The officer found no evidence of intoxication or other basis for detaining Defendants.
6. The officer informed the Defendants that his investigation of the cause of their vehicle’s weaving had ended, and after admonishing them to get some rest if they were tired, he informed Defendant Hanson that they were free to go. Mr. Hanson proceeded to the door of his vehicle and grabbed its handle.
7. The officer then directed Defendant Hanson to halt his departure from the scene.
8. As part of this new encounter with Defendants, the officer requested and received consent to search the vehicle.
9. Marijuana was found in the vehicle.
CONCLUSIONS OF LAW
1. There was probable cause for a brief investigatory stop of Defendants’ vehicle due to the officer’s observation it was weaving in its lane of traffic. Semich v. State, 234 Ga. App. 89 [(509 SE2d 216)] (1998).
2. The public has a right to be free from “profiling” and persons who exhibit physical and/or occupational characteristics thought to make them more likely to be violating the law than citizens in general cannot be subjected to differing law enforcement standards.
3. While the presence of certain characteristics may justify reasonable suspicion sufficient to support a brief investigatory detention, Murphy v. State, 230 Ga. App. 365 [(496 SE2d 512)] (1998), that detention must have a distinct ending point which is ascertainable to both the officers charged with enforcing the law and the citizens whom they encounter. This is essential because the concept that a person is free to leave the scene of a brief investigatory detention when that detention has ended will be stripped of its significance if officers feel the best method of inducing consent to a search is to notify the person detained that the encounter had ended, while in the mind of the officer there is a reason for further investigation of possible criminal offenses but no legal basis for additional detention of the subject. A rule of law which would encourage officers to tell citizens that the reason for their brief detention has ended while in fact the officer is planning to extend the encounter for the purpose of securing evidence of criminal offenses would encourage disrespect for the law.
4. The investigatory encounter authorized by the officer’s observation of the weaving of Defendants’ vehicle ended when the officer told Defendant Hanson he was free to leave and said Defendant left the location where he had spoken with the officer and put his hand on his vehicle door.
5. The conversation between Defendants and the officer, which disclosed that Defendant Hanson was a professional musician, the fact that said Defendant had long hair and a full beard, and the fact he was driving a vehicle with tinted windows and appeared to be nervous did not constitute probable cause for an additional investigatory encounter.
6. The consent of Defendants to a search of the vehicle was obtained outside the scope of a permissible investigatory encounter with a law enforcement officer. It was the product of an improper restriction placed upon their freedom of movement, because it occurred after the justifiable restriction on their freedom of movement warranted by the investigative stop for weaving had been terminated, pursuant to the officer’s representation that the encounter had ended. The officer therefore had no legal basis for ordering Defendant Hanson to interrupt his departure from the scene after he had begun to do so.

Order, Camden Superior Court, dated June 9, 1999, filed June 10, 1999.

The trial court granted the State’s motion to reopen the record and permit tender of the videotape viewed by the court at the hearing on the motion to suppress, as the court’s decision was based primarily upon its consideration of that evidence, but otherwise denied the State’s motion for reconsideration, providing inter alia:

After considering the State’s motion for reconsideration the Court finds said motion to be without merit. The foundation of the Court’s decision granting the motion to suppress was not the propriety of the traffic stop of Defendants’ vehicle, or the brief encounter that ensued as a result of that stop. The Court found that said encounter terminated when the officer told Defendant Hanson he and the vehicle were free to leave, and Defendant Hanson did in fact leave the scene of the encounter with the officer and return to the door of the vehicle. The officer’s subsequent order that Mr. Hanson stop, after he had placed his hand on the door of the vehicle, was a subsequent, compelled encounter, and an interference with Defendants’ freedom of movement and liberty which was not supported by probable cause.
If, as a result of the initial encounter resulting from the officer’s observation the vehicle was weaving within its lane of traffic, he had directed Defendants to remain on the scene until a drug dog could be summoned to conduct a free air search around the vehicle, a different question would be presented. The Court would be required to determine if the evidence adduced by the officer during the encounter constituted probable cause for detaining Defendants beyond a period which was reasonable for a brief investigatory stop. But that is not what occurred. Informing citizens whose liberty has been interrupted by a traffic stop that they are free to resume their trip cannot be permitted to be a tactical ploy designed to increase the probability an officer’s request for consent to search a vehicle will be granted. If an officer determines there is no basis for continuing a brief investigatory encounter, he or she is authorized to request consent to a vehicle search as part of that encounter. But when, as in this case, an officer unequivocally terminates an encounter and releases the subjects from the scene, their departure cannot be halted by the officer’s command to submit to additional questioning, even if that questioning is limited to a request for a vehicle search, in the absence of probable cause for an additional detention.
The State contends that probable cause existed to detain Defendants because of their nervousness, which the officer noted for the videotape record, and the allegedly inconsistent descriptions of where Defendants had been prior to the traffic stop. However, probable cause is not the issue presented in this case, because as noted above there was nothing improper about the officer’s decision to make a brief investigation into the cause of the vehicle’s weaving in its lane of traffic. The Court found, in essence, that the officer properly evaluated what he learned during his brief investigatory encounter with Defendants and concluded that there was no probable cause to detain them further. It was, however, an improper infringement on Defendants’ liberty to command them to interrupt their departure from the scene, because that departure had been authorized by the officer and nothing occurred between it and the officer’s order that Defendant Hanson stop and respond to additional questioning.

Order, Camden Superior Court, dated June 30, 1999, filed July 6, 1999.

On appellate review, the evidence is viewed most favorably to upholding the ruling of the trial court. We have held that:

[a]n appellate court reviewing a trial court’s order on a motion to suppress evidence must accept the trial court’s decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court’s findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.

(Citation omitted.) Parker v. State, 233 Ga. App. 616, 617 (504 SE2d 774) (1998). See also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Semich v. State, supra at 89; Taylor v. State, 230 Ga. App. 749 (498 SE2d 113) (1998); State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

The State argues that this court should apply a de novo standard of review in this case because the evidence primarily relied upon is a videotape which this court can view, citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994): ££[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”

Here, the State relies not only upon the videotape, but also upon the deputy’s testimony. For example, the deputy testified that he smelled marijuana when he was at the passenger area of the vehicle, but no mention of this is made on the videotape. Also, the deputy issued the warning and released the defendants subsequent to the time he contended at the hearing that he had smelled marijuana. Unlike Vansant, this case does involve questions of credibility of the State’s witness. Vansant has no application on the standard of review where credibility is at issue, because only the trial court can resolve such issue. Issues of the credibility of witnesses are reserved to the trial court in hearings on motions to suppress, and this court has no authority to substitute its judgment for that of the trial judge in such regard. State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994). Further, a review of the videotape discloses no factual errors by the trial court in any event. The trial court specifically found that the deputy’s testimony was not credible. The trial court said: “I don’t find it credible that that happened here,” and “I don’t buy any of that stuff. I don’t buy any of it [deputy’s explanation] and I don’t find it credible.”

The court’s findings followed several explanations by the deputy which were either contrary to the evidence contained in the videotape, were not supported thereby, or defied logic and common sense. The deputy clandestinely recorded on the videotape his contention that the defendants were very nervous during his interrogation, which conclusion is not supported by a viewing of the videotape.

On the videotape, Deputy Sutton stated that the passenger, Huddleston, was grabbing for her purse when he instructed her to go to the rear of the vehicle. He also testified to this effect at the hearing. A review of the videotape does not support his conclusion or testimony. After several reviews of the videotape, the trial judge stated: “I didn’t see her reaching for the purse,” and “[t]hat’s speculation. ... I mean, she wasn’t anywhere near the purse.”

Deputy Sutton testified that he first noticed the smell of marijuana when he talked to Huddleston about the registration and the insurance as she sat in the passenger seat. No mention of this fact appears on the videotape, and he made no inquiry about the marijuana smell even though he asked the passenger approximately a dozen questions during this time, returned to the driver, Hanson, gave him a warning, and subsequently released the defendants. Deputy Sutton could not explain why he did not ask any questions about the marijuana, why he did not record this comment on the videotape, as he had his conclusion that the parties were nervous, or why he released the defendants with a warning only, under such circumstances. At this point, the court found this testimony not to be credible.

Also, Deputy Sutton did not videotape Hanson weaving within his lane, which he testified was the basis for the stop initially, even though he was following the vehicle and turned the videocamera on immediately prior to stopping the vehicle. A review of the videotape recording the relatively short distance the vehicle was traveling prior to its stop does not reveal any weaving or other suspicious conduct.

A review of the evidence under the required standard reveals that Deputy Sutton testified at the motion to suppress hearing that at 10:40 p.m. on February 17, 1998, he observed a Ford Thunderbird with a Florida license plate weaving within its own lane on 1-95, southbound. While the vehicle was not violating any law, Deputy Sutton decided to investigate to determine if the driver was intoxicated or otherwise incapacitated and stopped the vehicle for this purpose.

The vehicle was being driven by Hanson, a long-haired, bearded musician. The videotape of the incident does not disclose the vehicle weaving; it begins shortly before the stop.

The video clearly shows that Deputy Sutton asked Hanson for his driver’s license and asked him to step to the rear of his vehicle. Deputy Sutton asked Hanson if he was tired and if he had been drinking, which Hanson denied. It was quickly apparent that Hanson was not incapacitated, and there was no evidence of intoxication. Deputy Sutton confirmed to Hanson that he had broken no law and was not being charged with any violation. He then proceeded, however, to issue a written warning to Hanson even though he had broken no law. Deputy Sutton used the approximately six minutes it took him to write the warning to interrogate Hanson. He asked approximately 40 questions during this period, including such questions as:

When did y’all leave Largo? Do you have to go to work tomorrow? Where are you coming from? How long were you in Savannah? What’s the name of your band? How many members are in your band? Where did y’all play? How long did y’all play there? How long have you been doing that? Does your wife work? What kind of work does she do?

Similar questions were asked of passenger Huddleston when Deputy Sutton questioned her separately from Hanson.

As a justification for stopping Hanson’s departure after his release by Deputy Sutton, prosecutor Presswood argued that the driver’s license inquiry had not come back at that time. This is clearly untrue as Hanson did not leave until after Deputy Sutton returned his driver’s license, handed him the warning, and told Hanson he was free to leave.

Prosecutor Presswood also stated that the police were trained in the technique involved here — that is, using an investigatory stop to attempt to develop probable cause for a search, and where that effort is unsuccessful, stopping the defendant after he has been released and asking for permission to search the vehicle. The presumption being, that at that point, there is a consensual search. The trial court recognized the problem when it inquired of the State:

How far can you go? [He] hasn’t violated any [law] — you just stop [him]. . . . What can you do beyond that? What is reasonable? What is constitutional? What does the law permit you as an officer to do beyond checking and seeing if [he is] drunk, if you stopped [him] because you thought [he] was drunk, even though [he] didn’t violate any law? What can you do? Can you ask [him] where [he has] been for the past 24 hours? Can you ask to look in [his] car? Can you ask to search [his] car? How far can you go when there has been no law violated to start with?

May 13, 1999 hearing transcript, p. 83.

While the police are authorized under limited conditions to stop a vehicle where no violation of the law has occurred, they are strictly limited in such investigation to satisfying the basis of their concern. The State is not free to adopt a scheme or pattern of stopping citizens who have not violated the law for the express purpose of seeking permission to search their vehicles. The trial court squarely addressed the problem with the above-described pattern of inquiry at a Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) stop involving no violation of the law, when she said: “[T]he law is here for everybody’s benefit.” May 13, 1999 hearing transcript, p. 83.

Constitutional protections are in place for the protection of all citizens against the excesses of government. The great majority of Terry stop violations of the type herein involved go undetected and unaddressed, as the vast majority of citizens who are subjected to such stops have violated no law, the searches are not fruitful, and no charge is ever brought, so no judicial review occurs. This in no way diminishes the fact that such searches are unlawful, and their wholesale use should be condemned. Recent history demonstrates how well-intentioned government crime-fighting techniques such as “profiling” have the potential to cause more damage to the public than the conduct they are intended to control. It is the function of the Georgia and United States Constitutions to prevent such excesses.

The State argues that the officer’s conduct was authorized under Williams v. State, 233 Ga. App. 70, 71 (1) (503 SE2d 324) (1998). Williams involved a traffic stop based upon a violation of the traffic laws in the presence of the police officer and is factually distinguishable from the present case which involved no such violation of the law and was therefore subject to extremely limited police inquiry. In Williams, the officer asked for and received permission to search the vehicle where drugs were discovered. Under the totality of these circumstances, the conduct of the police did not exceed the boundaries of a legitimate Terry traffic stop. Where the traffic stop is initiated because of an observed violation of Georgia law, the boundaries of Terry are broader than where there has been no violation of Georgia law at the time of the stop. In the present case, weaving within a traffic lane was not a violation of Georgia law. See Terry, supra. While weaving within one’s lane does not generally constitute a traffic offense, it may serve as sufficient reason to warrant an investigative stop for a possible DUI violation, triggering the severe limitations of Terry, supra. OCGA § 40-6-48 (1); State v. Diamond 223 Ga. App. 164,166 (477 SE2d 320) (1996); Semich v. State, 234 Ga. App. at 89.

Here, we must determine whether the deputy’s action was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, supra.

While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

(Citation omitted.) Raney v. State, 186 Ga. App. 758, 759 (368 SE2d 528) (1988).

In this case, the officer testified that he stopped [Hanson] to investigate a possible DUI violation and not to effect a search for drugs. Under these circumstances, the officer would have been authorized to ask [Hanson] for his license to establish his [identity], and to ask questions reasonably related to whether or not [Hanson] was driving under the influence. In response to such questions, [Hanson] offered a reasonable response. . . . Upon hearing [Hanson’s] explanation, the officer would have been authorized to continue asking questions regarding [Hanson’s] condition, to administer a statutorily authorized field sobriety test, or take any other reasonable steps to determine whether [Hanson] was . . . driving under the influence. However, the evidence is uncontroverted that the officer proceeded to ask [Hanson] questions that did not relate to his suspicion that [Hanson] was driving under the influence and that did not relate to any traffic violations, but instead probed into [Hanson’s] possession of contraband, specifically [drugs], and culminated in the officer’s request to search [Hanson’s vehicle]. This later questioning was based on the officer’s hunch that [Hanson’s vehicle] contained [drugs]. At the point the officer initiated this later probe, he went beyond the permissible scope of the investigation and his further detention of [Hanson] went beyond that permitted by Terry and its progeny. “The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth [A]mendment rests on the assumption that limitations upon the fruit to be gathered tend to limit the quest itself.’ Thus, evidence may not be introduced if it was discovered by means of a (detention) which (was) not reasonably related in scope to the justification for (its) initiation.” (Citations omitted.) [Terry], 392 U. S. 1 at 29.

Smith v. State, 216 Ga. App. 453, 455 (2) (454 SE2d 635) (1995). This court finds no reversible error in the findings and the ruling of the trial court in this matter.

Judgment affirmed.

Eldridge, J., concurs fully and specially. Barnes, J., concurs specially and in the judgment.

Eldridge, Judge,

concurring specially.

I concur completely with the majority and write only as the author of Williams v. State, 233 Ga. App. 70, 71 (1) (503 SE2d 324) (1998), to emphasize why the facts of this case are drastically different from Williams. First, in Williams, the stop was not under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), as a reasonable articulable suspicion of DUI or other impairment, but the violation of a traffic law in the officer’s presence. See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Second, the delay in completing the Williams stop arose from the delay in completing the computer traffic check caused by a common name, regarding the traffic offense. Then, there was further delay from the presence of a pistol in the vehicle, requiring further delay while a computer check was made of the gun. At no time was Williams asked to leave the vehicle prior to the consensual search.

In this case, a Terry stop, as soon as the deputy smelled Hanson’s breath and observed him after examining his driver’s license and insurance card, further questions were outside the scope of the Terry stop, unless a new reasonable articulable suspicion had arisen, which had not occurred prior to the search. At that point Hanson should have been allowed to leave and any request to search should have been made. However, the driver and the passenger were separately questioned, and the driver was removed from the vehicle while the deputy held his driver’s license questioning him and stalling by making out a bogus warning. Further, the deputy told him that he could leave but ordered him to stop.

Barnes, Judge,

concurring specially.

Because I agree that under the totality of the circumstances the search was unreasonable under the Constitutions of both the United States and Georgia, I concur in the judgment.

I write separately to emphasize that the husband’s consent to search the car did not, and could not, extend to the search of the wife’s purse that was in her possession and control at the time he consented to the search of her car. A purse is no mere container found in an automobile; it is a uniquely private item containing a person’s most confidential possessions. Further, it is an item that is universally recognized as one in which a person has a reasonable expectation of privacy. In this case, the wife’s consent to the search of her purse was not sought even though she was present and available to be asked.

When the State attempts:

to justify a warrantless search on grounds of consent, it has the burden of proving the consent was freely and voluntarily given. Silence in the face of a request for permission to search may sometimes be interpreted as acquiescence, but such acquiescence cannot substitute for free consent. While [Huddleston’s] conduct may well have signaled acquiescence [since she did not object], it did not show consent. [Huddleston] was not informed of her right to refuse to consent to a search of her purse [,] and [she] did not give any express consent.

(Citations omitted.) State v. Harris, 236 Ga. App. 525, 529 (2) (b) (ii) (513 SE2d 1) (1999). Therefore, I also would find that the deputy was not authorized to search Huddleston’s purse based upon the consent to search the car given by Hanson. Id.

On Motion for Reconsideration.

On motion for reconsideration, the State erroneously contends that the opinion is in error at page 539, when it states:

[a]s a justification for stopping Hanson’s departure after his release by Deputy Sutton, prosecutor Presswood argued that the driver’s license inquiry had not come back at that time. This is clearly untrue as Hanson did not leave until after Deputy Sutton returned his driver’s license, handed him the warning, and told Hanson he was free to leave.

Decided March 27, 2000

Reconsideration denied April 13, 2000.

State’s motion for reconsideration April 6, 2000.

The transcript of the hearing reveals the following:

Mr. Presswood: Your Honor, we expect the evidence to show that the report back from the 911 center as to whether the license was valid or not did not come until after the consent was obtained to search the vehicle. And so, therefore. . . .
Mr. Radish: Excuse .me, Your Honor. That’s an incorrect statement. . . .
The Court: I thought it had all come back. I thought —
Mr. Radish: He even had let them go.
The Court: He’d given the man his license and he had let the man go.
Mr. Radish: Of course. He was — they had gotten the license report back and he told him to go to his car.
The Court: And he put his hand on the car. That’s true. He put his — you’re right. You’re absolutely right. He put his hand on the car. He was getting in the car to leave before he asked him, then, to search. He was on the way out. To me, that was caput. That was the end of it.
Mr. Radish: Correct.
The Court: Nothing else should have ever happened. . . .
Mr. Presswood, why would he continue? . . . You’re going to let him drive. He’s going to drive. He hasn’t violated any laws. There’s no showing of any illegal violations. You give him his license back, you tell him to leave and then you stop him again? For what reason?
Mr. Presswood: Your Honor, I would also expect the evidence to show that Sergeant Sutton has been trained in this technique, or even come up with this technique, under the impression that once you let a person go off a traffic stop and you ask them, “Do you mind if I ask you a few questions?” that then you’re in a consensual situation.

(Emphasis supplied.) May 13, 1999 hearing transcript, pp. 74-76. Motion for reconsideration denied.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellant.

James J. McGinnis, Mark J. Kadish, for appellees.