author: Johnson, Judge.

text:
    A96A2288.
    WILLIG v. SHELNUTT.
    (480 SE2d 924)
   Johnson, Judge.

Sheryl Willig, as administratrix of the estate of her grandmother, Estelle Jolly, sued Sandra Shelnutt, Willig’s sister, claiming that when Jolly died, Shelnutt improperly converted to her own use funds from two joint bank accounts bearing Shelnutt’s and Jolly’s names. Shelnutt moved for summary judgment, relying on OCGA § 7-1-813 (a), which provides that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” The trial court granted Shelnutt’s motion for summary judgment, and Willig appeals.

1. Willig contends the trial court erred in granting summary judgment for Shelnutt when there was evidence that the joint accounts at issue were created solely for Jolly’s convenience and that Jolly did not intend Shelnutt to receive the funds remaining in the accounts upon her death. See James v. Elder, 186 Ga. App. 810, 811 (368 SE2d 570) (1988).

At issue are two joint accounts: a certificate of deposit dated April 8, 1991, which replaced a joint certificate of deposit dated August 15, 1990, and a joint checking account modified October 21,. 1991. Each account bears the names of both Jolly and Shelnutt. In her last will, executed in November 1992, Jolly made no mention of the accounts, but provided that after her debts were paid, the remainder of her estate would be divided equally between James Jolly, Sr., Susan Butker, Willig and Shelnutt.

In support of her motion for summary judgment, Shelnutt submitted an affidavit from LeDoris Chandler, custodian of records at SouthTrust Bank of Georgia. After laying a business records foundation, Chandler testified that she was familiar with the certificate of deposit established in April 1991 in the names of “Mrs. Frank L. Jolly [Estelle] or Sandra Shelnutt.” Chandler stated that Jolly and Shelnutt executed a contract on the account, the terms of which provide that Jolly and Shelnutt are joint tenants with the right of survivorship and that any funds placed in the account are conclusively intended to be a gift to the other signatory party. Copies of the contract are attached to the affidavit as exhibits. Chandler added that the bank’s records do not reveal any manifestation by Jolly of any intention or desire that the account belong to her estate rather than the surviving depositor, and had Jolly manifested any such intention, in the bank’s ordinary course of business, Jolly would have been required to execute a contract for an individual account instead.

In addition, Shelnutt submitted the affidavit of Melma Reid, custodian of records for Wachovia Bank, who also laid a business records foundation for documents pertaining to the joint checking account which Jolly modified in October 1991 to add Shelnutt’s name. The agreement was expressly made subject to “Terms and Conditions Governing [the] Account.” The “Terms” document includes the provision that sums on deposit at the death of a depositor to a joint account belong to the surviving depositor to the exclusion of the estate. Reid added that the records do not indicate a manifestation by Jolly of any intention that the account belongs to her estate rather than Shelnutt. Copies of the terms and signature card are attached to the affidavit.

Shelnutt also submitted the deposition of Jolly’s private-duty nurse and personal assistant, Theresa Halsell. Halsell testified that in 1989 or 1990 Jolly made arrangements to put Shelnutt “on her account,” and that Jolly told her she wanted Shelnutt “to have what she had,” that she “raised her from a little girl,” and that Shelnutt always called her regardless of how Jolly treated her. Halsell testified further that in 1990 she was present when Jolly told her attorney that she intended for Shelnutt to have everything she had. Halsell stated that Jolly asked the lawyer what would happen if Shelnutt was on her savings and checking accounts when she died. The attorney responded that the money would go to the person whose name was on the account at the time the other person died.

In opposition to Shelnutt’s motion, Willig submitted an affidavit from Susan Butker, another of Jolly’s granddaughters, who testified that Butker’s name was also on some of Jolly’s bank accounts in “the early 1980s” but it was only to assist Jolly with her finances. Butker stated that other family members’ names were also on the accounts “during the last thirteen years” of Jolly’s life, but Jolly “made it clear that the money in her bank accounts . . . belonged to her, and to no one else,” and removed relatives’ names from the accounts when she became angry with them. Butker added that just after Jolly died in 1993, Shelnutt expressed uncertainty as to whether she was authorized to spend the money in the joint accounts. None of Butker’s statements specifically refers to Jolly’s intentions at the time the joint accounts bearing Shelnutt’s name were established.

Willig also submitted an affidavit from Jolly’s son, James Jolly, Sr. James Jolly testified that Estelle Jolly put his name on her bank accounts in the late 1980s so he could help manage her financial affairs and then removed his name when she was mad at him. Without specifying any time frame, he stated generally that Estelle Jolly “made it clear” to him that although she put family members on the accounts, the money belonged to her and no one else. James Jolly also stated that in 1993 Estelle Jolly told him she wished the accounts would pay more interest “for us,” and that everything she owned was going to him, Willig, Butker and. Shelnutt. James Jolly made no statements specifically addressing Estelle Jolly’s intentions in 1990 or 1991 when she placed Shelnutt’s name on the accounts at issue.

“OCGA § 7-1-813 (a) requires clear and convincing evidence of a different intention at the time the account is created to rebut the presumption that a joint account shall belong to the surviving party as against the estate of the non-surviving party.” (Punctuation omitted; emphasis supplied.) Nowlin v. Parker, 183 Ga. App. 137, 139 (358 SE2d 258) (1987). Even if we assume arguendo that all of the foregoing testimony is admissible, the evidence is insufficient to rebut the statutory presumption of survivorship as an incident to the creation of the joint assets. None of the affiants provides any evidence that Jolly told them at the time these joint accounts were created she did not intend for the deposits .to belong to Shelnutt upon her death. In fact, the only evidence pertaining directly to Jolly’s intentions at the time these accounts were created indicates that Jolly did intend for Shelnutt to receive the account proceeds when she died. Jolly signed contracts with the bank in,which she agreed that the funds would belong to Shelnutt upon her death, told her nurse that she wanted Shelnutt “to have what she had,” and, after being advised by her attorney that the joint funds would belong to Shelnutt, did not undertake to effect any changes in the accounts.

“[OCGA § 9-11-56] places the burden on the moving party to show that no material issues of fact exist. The burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time, or suffer judgment against him.” (Emphasis omitted.) Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977). The non-movant must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. Wheat v. First Union Nat. Bank, 196 Ga. App. 26, 27 (2) (395 SE2d 351) (1990). Shelnutt satisfied her burden by presenting bank records and testimony which created a statutory presumption that the funds belong to her as the surviving party to a joint account. Willig, however, failed to rebut the statutory presumption by presenting specific evidence of a different intention at the time the joint accounts were created. See Nowlin, supra.

Whether the evidence is sufficient to establish a different intention with regard to a joint account is, ordinarily, to be decided by the trier of fact. See Godwin v. Johnson, 197 Ga. App. 829, 831 (1) (399 SE2d 581) (1990). In the present case, however, there is no evidence, either “clear and convincing” or otherwise, which would authorize a finding that Jolly did not intend for Shelnutt to have a right of survivorship in the accounts at the time they were created. See Trust Co. Bank v. Thornton, 204 Ga. App. 903, 904-905 (1) (420 SE2d 817) (1992). The trial court properly entered summary judgment in favor of Shelnutt. See Nowlin, supra at 139.

Decided February 7, 1997.

Charles A. Mullinax, James E. Howard, for appellant.

John L. Skelton, Jr., for appellee.

2. There is no merit to Willig’s argument that the trial court erred in not considering James Jolly’s and Butker’s affidavits. The trial court did not state that it did not consider the affidavits and in fact specifically relied on the contents of the affidavits in rendering its decision.

3. Willig argues that the trial court erred in considering Chandler’s and Reid’s affidavits when they contain opinions which are conclusory in nature. In our view, the affidavits complained of do not set forth any opinions, only facts. In any event, affidavits may be considered even if conclusions are intermingled with facts. Hepner v. Southern R. Co., 182 Ga. App. 346, 349 (1) (356 SE2d 30) (1987). We find no error.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A2069.
    RIDGEVIEW INSTITUTE, INC. v. HANDLEY.
    (481 SE2d 531)
   Pope, Presiding Judge.

Plaintiff/appellee Hubert Handley filed suit against defendant Ridgeview Institute, Inc./appellant, seeking damages for false imprisonment based upon his involuntary commitment at the hospital. The trial court denied Ridgeview’s motion for summary judgment, and this appeal follows our grant of Ridgeview’s application for interlocutory review of the trial court’s order.

On Saturday, March 20, 1993, Kay Dunn, a psychiatric nurse and plaintiff’s daughter, called Dr. Ronald Rosen, a psychiatrist and co-defendant in this action, at his personal residence. She told Dr. Rosen that her father had tied up her mother in the house, that he had loaded guns and was threatening to use them on his wife and himself, and that he was threatening to burn down his house. She also told the doctor that her father was paranoid, that he had acted irrationally in the past, and that he had a long history of physical abuse against his wife.

Following this conversation, Dr. Rosen filled out a Form 1013 authorizing a peace officer to detain Handley and bring him to Ridgeview, an emergency receiving facility authorized by the State to accept patients on an involuntary, emergency basis for evaluation. Handley was picked up by two Cobb County sheriffs later that Saturday and admitted to Ridgeview as an involuntary patient at 3:40 p.m. Although Dr. Rosen certified on the 1013 certificate that he had personally examined Handley and found him to be a mentally ill person requiring involuntary treatment and a person presenting a substantial risk of imminent harm to himself or others, no personal examination was actually conducted.

Handley telephoned his son, Joey Handley, approximately ten minutes after he was admitted at Ridgeview. His son, accompanied by two of Handley’s other daughters, arrived at the hospital a short time later. Joey and one of the daughters were appointed as Handley’s personal representatives, and Handley signed forms acknowledging this appointment. The admitting nurse claims that Handley refused to sign other forms presented to him acknowledging his right to retain counsel and his right to seek a protective order or habeas corpus relief as required by OCGA § 37-3-44, but Handley claims he was never informed of these rights. No notation was placed in Handley’s file regarding his refusal to sign these forms.

Handley was evaluated by a psychiatrist at Ridgeview the next day at 3:30 p.m. and was found not to be in need of continued hospitalization. He was discharged that evening at approximately 7:00 p.m. At no time during his 24 hour hospitalization did Handley, or either of his personal representatives, request an attorney or assistance in preparing a habeas corpus petition.

1. False imprisonment is an intentional tort and not a tort of negligence. Stewart v. Williams, 243 Ga. 580 (1) (255 SE2d 699) (1979). Therefore, an essential element of a claim for false imprisonment is an unlawful arrest or detention. Scott Housing Systems v. Hickox, 174 Ga. App. 23 (1) (329 SE2d 154) (1985). “With regard to the element of ‘unlawfulness’ in the tort of false imprisonment, the law has always made a fundamental distinction between a detention effectuated pursuant to process and detention which is not predicated on process. ‘An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and can not be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be.’ [Cit.] Thus, when the detention is predicated on no process, false imprisonment is an available remedy and liability depends upon whether a detention without supporting process was legally authorized under the circumstances. [Cit.] When the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, regardless of the motives upon which the process was secured, because detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not ‘unlawful.’ ” Williams v. Smith, 179 Ga. App. 712, 714 (2) (348 SE2d 50) (1986).

The same analysis is applied to claims for false imprisonment arising from involuntary mental examinations and commitments under OCGA § 37-3-40 et seq. The issue of the “unlawfulness” of a detention is determined “as in any other false imprisonment case by deciding whether the detention was predicated upon procedurally valid process.” Id. at 715. See also Kendrick v. Metro Psychiatric Center, 158 Ga. App. 839 (282 SE2d 361) (1981). Thus, this Court has established the rule that “[w]here one is taken into custody pursuant to a procedurally valid certificate of a physician authorizing involuntary mental treatment, the resulting detention is not ‘unlawful.’ Although such detention may give rise to other claims, a cause of action for false imprisonment is not among them.” Williams v. Smith, 179 Ga. App. at 716. See also Heath v. Peachtree Parkwood Hosp., 200 Ga. App. 118 (4) (407 SE2d 406) (1991); Hudgins v. Bawtinhimer, 196 Ga. App. 386 (2) (395 SE2d 909) (1990).

In this case, there is no question that the 1013 certificate signed by Dr. Rosen was facially valid for Ridgeview’s purposes and under our holdings in Williams, Heath and Hudgins could not form the basis for a claim against Ridgeview for unlawful detention.

Handley contends, however, that his claim for false imprisonment is not based upon his initial admission pursuant to the 1013 certification, which is the “process” by which his detention was effected. Instead, Handley argues that a “lawful” detention became “unlawful” when Ridgeview continued to detain him after allegedly failing to provide him with notice of his right to counsel and notice of his right to seek a protective order or habeas corpus relief as mandated by OCGA § 37-3-44.

The trial court accepted Handley’s reasoning and ruled that the requirement of “procedurally valid process” for involuntary mental treatment as set forth in Williams was intended to extend to compliance with all of the notification requirements of OCGA § 37-3-44. We disagree and reverse the trial court.

As discussed above, the tort of false imprisonment is an intentional tort. Stewart v. Williams, 243 Ga. at 581. If we were to extend the definition of “process” in the manner advanced by Handley and the trial court, then every negligent act or violation of law accompanied by a detention — for example, the failure to read Miranda warnings after a valid arrest — could give rise to a claim for false imprisonment. This would, in effect, eliminate the element of intent from the tort of false imprisonment and create a cause of action for negligent false imprisonment, which is a tort our law does not recognize. Id. at 581-582. “To constitute a false imprisonment, the act of the defendant in confining the plaintiff must be done with the intent of causing a confinement. If the confinement is due to the defendant’s negligence, the latter may be liable as for negligence, but the action is then governed by the rules and principles of the tort of negligence, according to which the plaintiff is required to show actual damage. In other words, there can be no such tort as a negligent false imprisonment which of itself makes the defendant liable without proof of the invasion of some interest other than the bare interest in freedom from confinement.” (Citations and punctuation omitted.) Baggett v. Nat. Bank &c. Co., 174 Ga. App. 346, 349 (2) (330 SE2d 108) (1985). We therefore reaffirm our holding in Williams, supra at 716, that “[w]here one is taken into custody pursuant to a procedurally valid certificate of a physician authorizing involuntary mental treatment, the resulting detention is not ‘unlawful.’ Although such detention may give rise to other claims, a cause of action for false imprisonment is not among them.” Accordingly, the trial court erred in ruling that Handley has a viable claim for false imprisonment based upon Ridgeview’s alleged failure to provide the statutory notices required by OCGA § 37-3-44.

2. We also hold that Handley cannot maintain an independent claim for intentional infliction of emotional distress. “The only emotional distress suffered by [Handley] was in connection with [his] alleged false imprisonment and [he] has no separate and independent tort claim for emotional distress.” Heath v. Peachtree Parkwood Hosp., 200 Ga. App. at 120. Therefore, to the extent that Handley’s complaint sets forth a claim for emotional distress, summary judgment was proper.

3. We also find that the trial court erred in failing to grant Ridgeview’s motion for summary judgment on Handley’s negligence and negligence per se claims. “To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Therefore, assuming arguendo that Handley can establish that Ridgeview breached its legal obligation to provide the notifications required by OCGA § 37-3-44, Handley must still be able to prove he suffered actual damages as a proximate cause of Ridgeview’s negligence. Stewart v. Williams, 243 Ga. at 581; Cannon v. Street, 220 Ga. App. 212 (3) (469 SE2d 343) (1996).

Here, the record is clear that Handley’s claimed injury, his detention, did not proximately flow from Ridgeview’s alleged negligent act. Even if Ridgeview failed to give Handley the required statutory notice mandated by OCGA § 37-3-44, there is no evidence that this failure resulted in Handley being denied access to legal counsel or the courts. Likewise, there is no evidence that Handley, or either of his children appointed as his legal representatives, desired a legal resolution to his involuntary commitment. Further, even if Handley had wanted to seek a protective order or file a habeas petition, such an action would have been moot because Handley was discharged before any pleading could have been filed with any court. Finally, there is no evidence that Handley was prejudiced by the lack of counsel under the circumstances of this case. If Handley had managed to retain an attorney within that 24 hour period, there is nothing the attorney could have done without a court order to compel Ridgeview to release Handley any sooner than it did. Ridgeview’s own doctors did on their own initiative what any attorney would have requested; they evaluated Handley within the time period mandated by OCGA § 37-3-43 and immediately released him. Therefore, Ridgeview’s alleged failure to provide Handley with statutory notice regarding his right to counsel and his right to seek a protective order or habeas corpus petition did not proximately cause Handley any injury.

Decided January 13, 1997

Reconsideration denied February 10, 1997

Ray H. McCard, Jr., for appellant.

Jackel, Rainey, Marsh & Busch, Dana L. Jacket, Larry W. Ramsey, Jr., for appellee.

While proximate cause is ordinarily a question for the jury, plain and indisputable cases may be decided by the court as a matter of law. See, e.g., Deese v. NationsBank of Ga., 222 Ga. App. 275 (1) (474 SE2d 18) (1996); Ermutlu v. McCorkle, 203 Ga. App. 335, 338 (2) (416 SE2d 792) (1992). We find the question of proximate cause could be decided as a matter of law in this case. Accordingly, the trial court erred in failing to grant Ridgeview’s motion for summary judgment on Handley’s negligence claims.

4. Because we are reversing the trial court’s denial of Ridgeview’s motion for summary judgment on all of Handley’s claims against Ridgeview in this action, it is unnecessary for us to address the additional grounds for reversal raised in this appeal.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A2532, A96A2533.
    JENNINGS ENTERPRISES, INC. et al. v. CARTE; and vice versa.
    (481 SE2d 541)
   McMurray, Presiding Judge.

Plaintiff Charles Carte brought this tort action against defendants Jennings Enterprises, Inc. (“JEI”) and Robbie Jennings, alleging that in March 1992, plaintiff entrusted a certain red “1987 Mercedes 560 SEL automobile,” to defendants for storage and safekeeping, to which bailment defendants assented; but that in “December, 1992, the Mercedes disappeared from Defendants’ place of business.” Plaintiff demanded “the sum of $20,000,. . . plus pre-judgment interest at 7% per annum from the date of loss, plus expenses of litigation.” Plaintiff also asserted a claim for attorney fees. Defendants denied the material allegations, and the case was tried to the State Court of Carroll County, Georgia, without the intervention of a jury.

Viewed in the light most favorable to the trial court’s judgment, the evidence showed that, in October 1991, the law firm of Smith & Diment obtained a judgment in favor of their client, plaintiff Charles Carte, against one Sultan Shabazz in the principal amount of $40,442.78. Execution was levied on one of two Mercedes motor vehicles owned by Shabazz, whereby defendant JEI was summoned by “Travis Lumpkin, who is a [Fulton County] sheriff’s deputy employed ... to assist [the law firm] with the levy,” to tow a gray Mercedes to its lot in Carrollton, Georgia. Mr. Shabazz subsequently turned over “the physical title [certificate], as well as the keys . . .” to the red 1987 Mercedes at issue. It was agreed that “if he [Mr. Shabazz] came to Carrollton and brought . . . 15,000 dollars in cash, we [the law firm] would return the car to him.” The next day, J. Nevin Smith, plaintiff’s counsel, “spoke with [defendant,] Mr. [Robbie] Jennings and turned the [red] car over to him and requested they store it with inside storage and explained to him that we needed to be sure that the car wasn’t damaged because we were responsible for it until the date of the sheriff’s sale.” Mr. Smith “advised a member of the Jennings staff that they should take particular care because Mr. Shabazz might come out there and try to steal it.” Counsel was subsequently notified that the judgment debtor filed for bankruptcy and so an advertised sale of the car was indefinitely postponed. “At no time did anybody from Jennings contact us [at the law firm] about moving the Mercedes or about terminating the storage.” Although the firm was billed for storage of the gray car, it received no invoice or “bill from Jennings ... for storage that went unpaid with respect to this [red] Mercedes[.]” Mr. Smith “had a conversation with the bankruptcy trustee, [and] was asked to produce the vehicle . . .” as an asset of the bankruptcy estate. When Mr. Smith telephoned JEI, “[he] was told that the car was not there that it had been sold and that [he would] have to speak with Mr. Jennings about it.” But “Mr. Jennings refused to give . . . any information about the sale.” The bankruptcy trustee agreed to compromise plaintiff’s claim against the bankruptcy estate by “assigning the Trustee’s rights in and to the Mercedes Benz and against Jennings Towing and Recovery to Mr. Carte. . . .” This agreement was approved by Honorable James E. Massey of the United States Bankruptcy Court for the Northern District of Georgia. In return, plaintiff agreed to reduce his “claim against the bankruptcy estate [by] 20,000 dollars.” Don Alan Denney, president of Scott Denney Motors, a used car company on Bankhead Avenue, testified that, in his opinion, the “wholesale value of that particular vehicle at that time, [December 1992,] not the retail, the wholesale value would have been 21,000 dollars.” The wholesale value of the car was $19,200 in April 1994.

Defendant Robbie Jennings affirmed that defendant “Jennings Enterprises, Inc. accepted both [oí] the Mercedes and agreed to store them. . . .” In October 1992, Robbie Jennings “deemed the vehicle abandoned,” and “arranged for a public auction.” But then he gave Elizabeth Ramey, who was listed as the buyer on the bill of sale and who was the woman he was dating at the time, “525 dollars to turn around and give back to [him].” On December 19, 1992, Robbie Jennings as seller executed a bill of sale to the Mercedes with Elizabeth Ramey as buyer. The very next day, Elizabeth Ramey as seller executed another bill of sale to the car, reciting that defendant Robbie Jennings bought the vehicle for $2,500. He refused the law firm’s request for the car’s return because “the car was sold.” Robbie Jennings agreed that Mr. Smith “never told [him] that the car had been abandoned.” He never billed the firm for storage and never directly notified plaintiff or the law firm of his intent to sell the vehicle at auction as an abandoned vehicle. An auction announcement was, however, published twice in the local newspaper. Defendant affirmed he personally “received notice of the bankruptcy ... in January, 1993, when [he] had this telephone call with [Mr. Smith] after [defendant] had already sold the car [to Elizabeth Ramey].” Defendant thus “acquired the car from Elizabeth Ramey after [he] had notice of the bankruptcy. . . .” Elizabeth Ramey affirmed that defendant Robbie Jennings “asked [her] if [she] could put the car in [her] name because it would look better.” She also testified that defendant Robbie Jennings never paid her the $2,500 mentioned in the bill of sale dated December 20, 1992.

The trial court awarded plaintiff $20,000 in compensatory damages but denied his requests for pre-judgment interest, punitive damages, and attorney fees. In Case No. A96A2532, defendants appeal from this judgment, and in Case No. A96A2533, plaintiff cross-appeals. Held:

Case No. A96A2532

1. Defendants first contend the trial court erred in concluding that a December 1,1992, judgment of the Magistrate Court of Carroll County, Georgia, foreclosing on defendants’ claim of lien on the Mercedes for towing and storage, was void because it violated the automatic bankruptcy stay. They argue that the authority cited by the trial court no longer represents the interpretation of 11 USC § 362 employed by the United States Court of Appeals for the Eleventh Circuit. We disagree.

“In the Fifth Circuit, . . . actions in violation of the automatic stay are deemed voidable rather than void, and must, therefore, be affirmatively challenged in order to be set aside. ... In the Eleventh Circuit, on the other hand, actions in violation of the stay are . . . void ab initio. Such acts are deemed ‘without effect’ and are rendered an absolute nullity.” Barnett Bank &c. v. Trust Co. Bank &c., 178 B. R. 570, 578. In the case sub judice, the trial court correctly concluded that defendants’ judgment foreclosing a claim of lien on property belonging to the bankruptcy estate was void for being in violation of the automatic stay in bankruptcy provided by 11 USC § 362. That judgment was void ab initio, was without effect, and was an absolute nullity.

2. Defendants next contend the State Court of Carroll County, Georgia, was without subject matter jurisdiction to hear a collateral attack on the judgment of the Magistrate Court.

A careful reading of the trial court’s well-reasoned judgment clearly indicates the court appreciated that it had no equitable authority. The court expressly stated it was not setting aside the judgment of the Magistrate Court but was giving priority to the order of the United States Bankruptcy Court. This enumeration is without merit.

3. Defendants enumerate the denial of their motion for directed verdict, made on the ground that plaintiff lacked standing to bring this action because no valid assignment of the trustee’s rights in the car and claim against defendants was formally made until February 19, 1996, that is, the day before trial. But the document executed on February 19, 1996, by James R. Marshall as Trustee in Bankruptcy for Sultan K. Shabazz expressly recites: “This assignment is made as of April 10, 1994.” Consequently, defendants’ argument that plaintiff was not the real party in interest is without merit.

Case No. A96A2533

4. In his cross-appeal, plaintiff first contends the trial court erred in refusing to award pre-judgment interest under OCGA § 7-4-15, arguing that the damages claimed were liquidated.

“As a matter of law, unliquidated demands arising ex delicto do not bear interest; and on a suit to recover the value of property which has been injured or destroyed, the jury can not legally find a given amount for principal with an additional amount as interest.” Western & Atlantic R. Co. v. Brown, 102 Ga. 13 (hn. 1) (29 SE 130). “ ‘We understand by liquidation an amount certain and fixed, either by act and agreement of the parties, or by operation of law; a sum which can not be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing.’ Nisbet v. Lawson, 1 Ga. [275,] 287. The word ‘liquidated,’ as used in the statute . . . means ‘settled, acknowledged, or agreed.’ Parris v. Hightower, 76 Ga. 631.” Council v. Hixon, 11 Ga. App. 818, 826 (4), 827 (76 SE 603). In the case sub judice, there was no agreement by either defendant that a certain amount was owed plaintiff. Rather, the proof of plaintiff’s damages was the expert opinion testimony of Don Alan Denney, that is, his estimate of the fair market value of the car. This factor alone makes any damage award to plaintiff unliquidated. Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 51 (3), 52 (305 SE2d 864). Consequently, the trial court correctly refused to award pre-judgment interest.

5. Plaintiff enumerates the refusal of the trial court to award attorney fees and the expenses of litigation pursuant to OCGA § 13-6-11, arguing that defendants acted in bad faith.

“The issue of attorney fees under OCGA § 13-6-11 is a question for the factfinder. [Cit.]” Crotty v. Crotty, 219 Ga. App. 408, 412 (4) (465 SE2d 517). “Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.” (Citations and punctuation omitted.) Michaels v. Gordon, 211 Ga. App. 470, 472 (2), 473 (2) (b) (439 SE2d 722). “When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but [merely to] determine if there is any evidence which supports the judgment below. Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is ‘any evidence’ to uphold the lower court’s determination.” (Citations and punctuation omitted.) Edwards v. Wilson, 185 Ga. App. 514, 515 (1) (364 SE2d 642).

Plaintiff refers to evidence that would have authorized a finding of bad faith on the part of defendants. But the trial court concluded that defendants’ acts, however questionable in appearance, “[did] not rise to the level of bad faith. Defendants’ formally requesting vehicle title and lienholder information and running the legal ad, considered with the lack of evidence of the auction being chilled or not open to all bidders, is significant in this regard.” In our view, plaintiff has failed to show error by the trial court’s reliance on mitigating circumstances to reach its ultimate determination that defendants did not act in bad faith. The trial court’s refusal to award OCGA § 13-6-11 attorney fees and expenses of litigation is supported by the evidence and is consequently affirmed.

Decided January 27, 1997

Reconsideration denied February 10, 1997

Word & Mitchell, Gerald R Word, for appellants.

Smith & Diment, Dana G. Diment, William G. Hamrick III, for appellee.

Judgment affirmed in Case Nos. A96A2532 and A96A2533.

Johnson and Ruffin, JJ, concur.


author: Smith, Judge.

text:
    A97A0069.
    LEE v. THE STATE.
    (481 SE2d 264)
   Smith, Judge.

Julio Lee appeals his conviction on a charge of underage possession of an alcoholic beverage, OCGA § 3-3-23 (a) (2). We affirm the conviction after reviewing his challenges to the sufficiency of the evidence and his exception to the court’s charge.

1. Lee enumerates the general grounds, which we review under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). The State produced evidence showing that in early August 1995, a police officer found Lee in an Athens bar with a dark-colored, foam-topped beverage in front of him and with alcohol on his breath. The officer knew Lee and believed him to be underage. When confronted by the officer, Lee asked that he not be given a ticket because his 21st birthday was only a month away. Evidence at trial showed Lee did not reach legal drinking age until September 5, 1995. Although Lee’s attorney was able to demonstrate that the officer may have been mistaken about the date of this incident, the evidence viewed in a light most favorable to the verdict supports the jury’s finding that Lee possessed an alcoholic beverage while under the age of 21. Gilbert v. State, 262 Ga. 840, 841 (1) (426 SE2d 155) (1993).

2. Lee also contends the trial court erred in its charge by failing clearly to instruct the jury that it had to find Lee was under the age of 21 at the time of the offense. He points to a portion of the charge in which the court stated, “Now, it is incumbent upon the State of Georgia to prove that all of the necessary elements of the crime charged in the accusation were committed by the Defendant at some time within two years prior to the return of the accusation” (Emphasis supplied.) As Lee points out, he had reached the age of 21 by the time the accusation was returned. This instruction was correct, however, in that the State is required to institute prosecution of a misdemeanor within two years of its commission. OCGA § 17-3-1 (d). The court went on to inform the jury that the State was required to prove every essential element of the crime charged and that under the crime charged, “no person under 21 years of age shall knowingly possess any alcoholic beverage.” This charge sufficiently explained the State’s burdens of proof. “As the charges given were correct statements of the law, and we do not believe that the charge as a whole would mislead a jury of average intelligence, we find no error. [Cit.]” Dooley v. State, 221 Ga. App. 245, 246 (3) (470 SE2d 803) (1996).

Decided February 10, 1997.

John W. Donnelly, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

       We note that the trial court did not ask counsel for either the defendant or the State if there were exceptions to the charge. Trial courts are encouraged to make this inquiry, as it helps clarify the record and allows the trial court to correct any potential inadequacies in the charge. See Collins v. State, 176 Ga. App. 634, 638 (2) (337 SE2d 415) (1985).


author: Eldridge, Judge.

text:
    A97A0092.
    CARROLL v. THE STATE.
    (481 SE2d 562)
   Eldridge, Judge.

A Gwinnett County jury found appellant, former DeKalb County police officer Joseph Mathis Carroll, Jr., guilty of the offenses of aggravated stalking and terroristic threats. He appeals.

The evidence demonstrates that appellant separated from his wife, Tammy Carroll, in August 1995; appellant moved out of the marital residence, a mobile home located in a mobile home park at 741 Stone Hill Drive in Stone Mountain, Gwinnett County. Several days later, appellant broke into this residence and brandished a gun while threatening his wife; immediately thereafter, Ms. Carroll filed a petition under the Family Violence Act, OCGA § 19-13-1 et seq., and obtained a temporary protective order (TPO), dated August 30, 1995. The TPO gave Ms. Carroll temporary possession of the mobile home; the TPO specifically stated that “until further order of this Court, the Defendant shall not come upon said premises or have contact with the Plaintiff or the Plaintiff’s minor child(ren).” At the time of the issuance of the TPO, a hearing was scheduled on the merits of the petition pursuant to OCGA § 19-13-3 (c). On August 30, 1995, appellant received notice of the TPO, as well as the hearing; appellant chose not to attend the hearing.

At the hearing on September 6, 1995, the court entered a “Judgment Under the Family Violence Act” (Judgment); the Judgment provided that “[s]ole, exclusive use and possession of the residence . . . shall be awarded to the plaintiff!.]” Both the TPO and the Judgment enjoined the appellant from threatening or attempting to injure or harass Tammy Carroll. In addition both the TPO and the Judgment evicted appellant from the mobile home and ordered the Gwinnett County Sheriff’s Department to aid in the removal of the appellant and his belongings from the residence. Further, the Judgment, which gave Tammy Carroll sole custody of the parties’ minor child, allowed appellant date-specific visitation privileges, but only after providing Ms. Carroll with 48 hours notice of his intent to exercise those privileges. Appellant received a copy of the Judgment approximately a week after its signing.

In the early morning hours of October 5,1995, in the midst of the storm generated by hurricane Opal, the incident which gave rise to the indictment in the case sub judice occurred. Appellant, who was working the 5:00 p.m. to 1:30 a.m. shift at the DeKalb Police Department, left work at approximately 2:30 a.m. and returned to his residence; at this time, appellant was residing with his grandmother in Chamblee, DeKalb County. Appellant testified at trial that after he arrived at his grandmother’s house, he opened a beer and began to pay bills. Appellant testified that “the storm was raging and it was windy — it wasn’t raining, but it was very windy and obviously, you know, a bad storm. Branches had been knocked down . . .”; however, appellant discovered that he had no postage stamps. So, at approximately 4:00 a.m., apparently in the middle of a raging storm, appellant testified that “I [went] to get some stamps so I could get these bills in the mail as soon as possible.”

Appellant’s journey took him first to the Chamblee Post Office where a wide-spread power outage, which must have, perforce, also encompassed his grandmother’s house in Chamblee, frustrated appellant’s attempts to obtain postage stamps, since the electronically operated stamp machine was not working. Undaunted, appellant drove through the storm to the Embry Hills Post Office where the power outage, again, prevented the successful acquisition of stamps. Onward to the Tucker Post Office in DeKalb County with the same disappointing results; thereafter, appellant headed toward the Stone Mountain Post Office in DeKalb County in order to “accomplish the goal to get the stamps.”

Appellant testified that he realized that his route had taken him close by his wife’s mobile home park in Gwinnett County, and thus, he decided to stop by the central mailbox in the mobile home park in order “to check to see if there was any bills in the mailbox”; so he made yet another postal stop. Thereafter, appellant testified that because of the violence of the storm in which he had been roaming around, “I figured I’d just ride by and make sure that every — a tree didn’t fall on it, to make sure everything’s okay. And I drove by the trailer.”

Appellant testified that “in the driveway where I had normally parked my car,” was a vehicle appellant recognized as belonging to Daniel Harvey, Tammy Carroll’s new boyfriend. Appellant testified that upon seeing Harvey’s vehicle, he was not irate or angry; instead, appellant was “very upset,” “overcome with emotion,” and “it confirmed all [his] suspicions”; appellant “knew that they were in bed together,” and “had a good idea what was going on in that bedroom.” In that regard, appellant exited his car and banged on the front door of the trailer while shouting obscenities; appellant repeatedly threatened to kill Daniel Harvey. Appellant went to the master bedroom window where he ripped the screen from the sash; still shouting threats, appellant climbed through the opened window and entered the bedroom.

Appellant had correctly assumed that Tammy Carroll and Daniel Harvey were in the master bedroom, but so were Ms. Carroll’s two children; the family had gathered in the bedroom to ride out the storm together. When Tammy Carroll heard what she immediately recognized as appellant’s voice, she ran into the living room to call 911. As appellant entered the bedroom through the window, he stepped on his three-year-old daughter who was still lying in the bed; Ms. Carroll shouted for her children to come with her, and they all fled to a neighbor’s home where Ms. Carroll again called 911.

As appellant came through the window, Daniel Harvey reached for a gun he had hidden under the bed; he could not get it out of the holster. As soon as he was through the window, appellant grabbed for Harvey, and a struggle ensued with appellant again threatening to kill Daniel Harvey. The gun discharged and eventually fell during the struggle. Daniel Harvey was able to escape the trailer and attempted to call the police at the trailer park’s clubhouse. Appellant took Harvey’s gun, left the trailer, and threw the weapon into a nearby open field.

Shortly thereafter, the police arrived; appellant had returned to the outside of Tammy Carroll’s trailer. Appellant told the police that he “used to live there”; that he had “brought some mail here for my wife”; and that he “saw the boyfriend’s car in the driveway, it made him mad . . . [h]e lost his temper and entered the residence.”

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion for directed verdict as to Count 1 of the indictment. Count 1 of the indictment in the case sub judice charged appellant with aggravated stalking for “contacting Tammy Carroll at her residence” for the purpose of harassing and intimidating her in violation of the TPO and the Judgment. Appellant’s argument, as we are best able to decipher it, goes as follows: (1) only the terms of the TPO, not the Judgment, precluded appellant from contacting Tammy Carroll at her residence; (2) at the time of the incident, the TPO was “no longer in effect,” having “expire[d] by operation of law thirty (30) days after its issuance” pursuant to the Civil Practice Act, and was superseded by the “Final” Judgment; and (3) since the TPO could not be violated because it was no longer in effect, and since contacting Tammy Carroll at her residence was not a violation of the terms of the Judgment, appellant was entitled to a directed verdict on Count 1 as alleged in the indictment. Appellant’s argument fails for at least two reasons.

First, the TPO had not expired at the time of the incident. Contrary to appellant’s assertions, a petition for relief filed under the Family Violence Act, OCGA § 19-13-1 et seq., and the orders resulting therefrom are not subject to the Civil Practice Act. An ex parte order obtained pursuant to OCGA § 19-13-3 (b) is subject to the provisions of OCGA § 19-13-4, and under subsection (c) of that portion of the Code, any order obtained under the Family Violence Act, ex parte or otherwise, remains in effect for six months, unless specifically converted into a permanent order by the court. In fact, that provision of the Civil Practice Act upon which appellant relies for support of his contention that the TPO expired in 30 days as a matter of law, OCGA § 9-11-65, specifically provides that the Code section is “not applicable to actions for divorce, alimony, separate maintenance, or custody of children,” which is the subject matter most closely aligned with the purposes for and contents of an order under the Family Violence Act. See OCGA §§ 9-11-65 (e); 19-13-4 (a) (l)-(ll). Moreover, nothing in either the Family Violence Act or in the terms of the Judgment, itself, supports appellant’s contention that the Judgment was a “Final” Judgment which “superseded” the TPO, thereby rendering the terms of the TPO null and void. In fact, both orders were valid for six months after their issuance. OCGA § 19-13-4 (c).

Secondly, even if the TPO had expired, contacting Tammy Carroll at her residence as alleged under Count 1 of the indictment was a violation of the Judgment. Under the Judgment, Ms. Carroll was given sole, exclusive use and possession of the mobile home. The Judgment evicted appellant from the property, ordered the county sheriffs to remove appellant from the property, and ordered appellant to provide 48 hours notice to Ms. Carroll before he even approached the property to obtain his child in the exercise of his visitation privileges. Appellant’s pre-dawn break-in of Ms. Carroll’s residence was a clear violation of the terms of the Judgment, and it strains credibility for appellant to argue that the Judgment of the court pursuant to the Family Violence Act did not protect Tammy Carroll from the type of “contact” at her residence that appellant employed in the case sub judice.

2. In his second enumeration of error, appellant contends that the trial court’s failure to give his requested charge on circumstantial evidence pursuant to OCGA § 24-4-6 was reversible error.

Trial courts are required to charge the principles of circumstantial evidence under OCGA § 24-4-6 in situations where the state’s case includes both direct and circumstantial evidence, and the defendant has requested such a charge. Stubbs v. State, 265 Ga. 883 (463 SE2d 686) (1995); Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994); Grier v. State, 217 Ga. App. 409, 410 (458 SE2d 139) (1995). Accordingly, in order to curtail the subsequent, inevitable analysis of the tendered evidence in a particular case as being direct or circumstantial or both, the safest course would be to just give the charge. See Johnson v. State, 210 Ga. App. 99 (435 SE2d 458) (1993). After all, “[i]t is a rare case that does not include direct and circumstantial evidence.” Yarn v. State, 265 Ga. 787 (462 SE2d 359) (1995). However, the requested charge was not given in the instant case, and thus, once again, analyze the evidence we must. See, e.g., Stubbs, supra at 884-887. In so doing, this Court concludes that in the instant litigation lies the exception to the rule, i.e., the extremely rare case wherein the state relied not at all upon circumstantial evidence to prove the offenses against appellant, including the element of requisite intent.

“The distinction between direct and circumstantial evidence has best been explained this way: Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite.” Stubbs, supra at 885, citing 1A Wigmore, Evidence, pp. 948, 949, § 24 (Tillers rev. 1983). In other words, direct evidence demonstrates a defendant’s guilt or his innocence, but cannot be consistent with both. In the case sub judice, the state’s evidence consisted of direct testimony of both victims regarding appellant’s conduct as alleged in the indictment. Pictures taken on the night of the incident were introduced which showed the bedroom window screen torn away, as well as the damage done to the trailer from the gunshot, the disheveled condition of the bedroom from the struggle, and Harvey’s gun holster lying on the bed. Both 911 tapes were played at trial which permitted the jury to hear the appellant shouting in the background, and the voice of Tammy Carroll, clearly terrified, reporting appellant’s actions as they occurred. When the police arrived, appellant was on the scene and stated to them that he had gotten angry and lost his temper when he saw Harvey’s car in the driveway; that he had entered the residence.

Moreover and perhaps most importantly, appellant, in his own testimony, never denied any of the conduct alleged against him or that he intended to do the acts alleged against him. In fact, with the exception of his assertions regarding his dubious quest for stamps, appellant’s testimony was remarkably consistent with that of the victims in this case, even as to the admission that he could have threatened to kill Daniel Harvey that night; being overcome with emotion, appellant simply did not remember. Instead, appellant offered a type of “moral justification” defense. Appellant’s defense was that his actions were justified because his wife was having an affair with another man; appellant’s defense was, in essence, “I acted like I think any man would have; on emotion.” Appellant’s case was an admission of guilt as to the acts alleged in the indictment, predicated upon the belief that the jury’s sympathy and moral outrage at the victims’ conduct would translate into a finding of not guilty on his part. The jury did not so find.

Thus, under the Wigmore direct evidence analysis as discussed above, the evidence was consistent only with appellant’s guilt as to the acts alleged in the indictment and was “completely inconsistent with a reasonable hypothesis of innocence.” Johnson, supra at 101. Accordingly, this Court finds that the failure to give appellant’s, requested circumstantial evidence charge pursuant to OCGA § 24-4-6 was not error.

3. In his last enumeration of error, appellant contends that the trial court erred by failing to charge the jury on the offense of “fighting words,” OCGA § 16-11-39 (a) (3), as a lesser included offense of terroristic threats, OCGA § 16-11-37 (a). Appellant contends that “fighting words” is a lesser included offense of terroristic threats because “both statutes include use of words toward another” with “the mental state attached to their utterance determining the distinction between the two.” We agree that both offenses involve verbal communication; however, the similarity ends there. The type of words uttered, i.e., the prohibited conduct, and “the mental state attached” differ completely.

Under OCGA § 16-1-6, a crime is included in another as a matter of law when it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6 (2); Shuler v. State, 195 Ga. App. 849 (395 SE2d 26) (1990).

A conviction for disorderly conduct, “fighting words,” requires proof that, without provocation, a person used words toward another person which commonly create resentment sufficient to immediately incite a fight between speaker and listener. On the other hand, the law against terroristic threats prohibits a person from telling another person that he is going to commit a violent offense against him. One offense attempts to prevent unprovoked name calling in order to pick a fight and the subsequent anger caused thereby; the other offense attempts to prevent specific threats of physical violence toward another person in order to terrorize and the subsequent fear caused thereby. “The two offenses differ more than with respect to a less serious injury or risk of injury, or a lesser kind of culpability. OCGA § 16-1-6 (2). The crimes have different elements [and] prohibit generally different types of conduct.” Shuler, supra at 850. OCGA § 16-11-39 (a) (3) is not included in OCGA § 16-11-37 (a) as a matter of law.

A crime is included in another as a matter of fact when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime as alleged in the indictment. OCGA § 16-1-6 (1). ‘We acknowledge that one crime may be changed into another by adding or subtracting elements which distinguish them. However, where the defendant is charged with a narrowly drawn [indictment] with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, [unindicted,] separate offense. Criminal [indictments] are not deemed amendable to conform to the evidence.” State v. Tweedell, 209 Ga. App. 13, 14 (432 SE2d 619) (1993); Shuler, supra at 850. In the case sub judice, appellant was indicted for threatening to murder Daniel Harvey with the purpose of terrorizing him. Under this narrowly drawn indictment, even if the facts had supported an additional offense of fighting words, which it did not, the trial court did not have the power to interpret the evidence so as to support a jury charge on a separate, unindicted, alternative offense. “One can not be tried and convicted of an offense different from that for which he is prosecuted or called upon to answer.” (Punctuation omitted.) Tweedell, supra at 14. There was no error in refusing to charge the jury on “fighting words.”

Decided February 10, 1997.

Brenda J. Bernstein, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       See 1995 Op. Atty. Gen. No. U95-7.

       We note that the state in the case sub judice argued to the trial court that appellant’s request to charge pursuant to OCGA § 24-4-6 was, in essence, the “two theories” charge which has been disproved by the appellate courts. While the state was correct in its assessment of the standing of the “two theories” charge, the state incorrectly convinced the trial court that OCGA § 24-4-6 and the “two theories” charge are one and the same. They are not.


author: Blackburn, Judge.

text:
    A96A1865.
    TYLER v. THE STATE.
    (481 SE2d 228)
   Blackburn, Judge.

Jeffrey K. Tyler appeals the trial court’s denial of his motion for judgment of acquittal pursuant to his speedy trial demand under OCGA § 17-7-170, asserting that the trial court erred in determining that his demand was premature.

On October 19, 1995, Tyler received a Uniform Traffic Citation (UTC) for driving under the influence. On October 31, 1995, Tyler filed various motions concerning this matter with the clerk of the court including a demand for a speedy trial under OCGA § 17-7-170. In March 1996, Tyler filed a motion for judgment of acquittal contending that he had not been tried although two full terms of court had expired and juries had been impaneled in each term that were qualified to hear his case. The State responded that Tyler’s speedy trial demand had been premature as it was filed with the clerk prior to the filing of Tyler’s accusation, contrary to the requirements of OCGA § 17-7-170. While the record in this matter contains both a UTC and an accusation, neither document reflects an indication of the date on which it was filed with the clerk. The trial court concluded that the accusation was docketed in the State Court of Richmond County on November 30, 1995, approximately one month after Tyler’s demand was first filed. Based on this finding, the trial court then held that Tyler’s demand was premature, and, consequently, his motion was denied. On March 18, 1996, Tyler’s case was tried wherein he was convicted on two counts of driving under the influence. This appeal ensued.

OCGA § 17-7-170 provides in pertinent part: “[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for [a non-capital offense] may enter a demand for trial. ... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” (Emphasis supplied.)

“It is well settled in Georgia law that the protection conferred by OCGA § 17-7-170 attaches with the formal indictment or accusation. Thus, a demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred.” (Citations and punctuation omitted.) State v. Black, 213 Ga. App. 331, 332 (444 SE2d 368) (1994). See also State v. Lipsky, 191 Ga. App. 842, 843 (383 SE2d 204) (1989) (“[t]he current version of OCGA § 17-7-170 requires that an accusation be filed with the clerk before an accused may file a demand for trial”). Our Supreme Court has recently held however that the right to a speedy trial under OCGA § 17-7-170 also attaches when the State files a UTC which functions as an accusation. State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996).

Here, it is clear that the subject UTC which was assigned Case No. 95-RCST-19426, was filed with the clerk on or before October 31, 1996. Various motions filed by Tyler on October 31, 1995, including his demand for a speedy trial, contain the case number assigned to the UTC. This case number was placed on Tyler’s October 31, 1995, pleadings and accepted by the clerk for filing because the UTC had previously been assigned this case number when filed with the clerk. Accordingly, under Gerbert, supra, Tyler’s demand for a speedy trial was not premature as it was filed after the UTC. While Gerbert had not been issued at the time of the trial court’s ruling, its holding must be followed on appeal.

In .light of the above, Tyler filed his demand in the October term of court or before. It is undisputed that he was not tried either that term or the next regular term that followed even though juries were impaneled during both of these terms that were qualified to try Tyler’s case. As a result, under our present Supreme Court holding, it was error to deny Tyler’s motion for acquittal due to his failure to receive a speedy trial as mandated by OCGA § 17-7-170.

Judgment reversed.

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

Decided January 6, 1997

Reconsideration denied February 11, 1997.

William H. Lumpkin, for appellant.

Robert W. Hunter III, Solicitor, Jesse W. Owen, Sheryl B. Jolly, James J. Phillips, Assistant Solicitors, for appellee.

       The Richmond State Court has six two-month terms of court that begin the third Monday of October, December, February, April, June, and August. Ga. L. 1911, p. 352.


author: Ruffin, Judge.

text:
    A96A2480.
    NORFOLK SOUTHERN RAILWAY COMPANY v. PERKINS.
    (481 SE2d 545)
   Ruffin, Judge.

In this Federal Employers’ Liability Act case, Norfolk Southern Railway Company (“Norfolk Southern”) appeals from a jury verdict rendered in favor of George Perkins. Norfolk Southern contends the trial court erred in four respects: (1) denying its Batson motion, (2) failing to require Perkins to calculate his wage loss based on net wages minus railroad retirement taxes, (3) denying its motion for partial directed verdict relating to Perkins’ failure to prove the extent to which his prior injuries were aggravated by the incident at issue, and (4) admitting the expert opinion testimony of Perkins’ economist, Dr. Fred Johnson, despite the fact that his opinions were withheld from Norfolk Southern until the first day of trial. For reasons which follow, we affirm.

1. Norfolk Southern contends that, in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the manner in which Perkins exercised peremptory challenges against white venirepersons gave rise to an inference of racial discrimination that was not successfully rebutted by Perkins. Norfolk Southern argues that Perkins used all six of his strikes against white potential jurors and that three of these strikes were used for pretextual reasons. The trial court heard argument on the Batson motion and ruled that Perkins presented legitimate race-neutral reasons for each of the three strikes challenged by Norfolk Southern. We agree.

“The trial court’s decision rests largely upon assessment of the [attorney’s] state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996). See also Johnson v. State, 266 Ga. 775, 777 (4) (470 SE2d 637) (1996). Furthermore, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from[,] the opponent of the strike.” (Citations and punctuation omitted.) Whatley v. State, 266 Ga. 568, 570 (3) (468 SE2d 751) (1996). “Batson does not demand that the explanation proffered by [an attorney] be persuasive, or even plausible. A legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.” (Citations and punctuation omitted.) Greene v. State, 266 Ga. 439, 442 (5) (469 SE2d 129) (1996).

(a) Norfolk Southern first challenges Perkins’ strike of juror no. 13, Timothy Perez. Perez stated that he teaches math at Marist High School, a private Catholic school. Perkins’ reason for striking Perez was that “[u]nlike the woman who teaches accounting or a job skill, this man works at a very exclusive, very expensive private school that is historically very conservative, in a subject which is conservative. . . . It’s a simple matter that I foresee that is a very conservative environment that will color his thought processes.” Perkins further argued that “math is not a people subject,” and he did not believe Perez would think about human emotions.

Norfolk Southern argues that Perkins’ stated reasons were a sham because he failed to strike other venirepersons in the same or similar disciplines as Perez, such as Mitchell (no. 11), Abdul-Rashid (no. 23), Bridges (no. 4) and Harrington (no. 26). It should be noted that Bridges and Harrington are white. We find that Perkins presented rational and legitimate reasons for seating these individuals in lieu of Perez. Mitchell is an accounting and word processing teacher who works at a public school teaching math as both a work life skill and a college preparatory subject. Abdul-Rashid is a government worker, a group which is attractive to plaintiff lawyers, and is voluntarily in a union. Bridges works for a charitable hospital and is conversant with concepts such as present value calculations, which were needed to calculate Perkins’ damages. Harrington is also familiar with concepts such as present value calculations.

In this personal injury action, the strike based on Perkins’ unfavorable view of individuals teaching subjects which are not people-oriented in a conservative, wealthy environment is a race-neutral reason, and the record does not demonstrate that similarly situated black jurors were not also stricken. Therefore, the trial court’s finding that Perkins struck Perez for race-neutral reasons is not clearly erroneous.

(b) Norfolk Southern next challenges Perkins’ strike of juror no. 18, Lynda Ramseur. According to Perkins, he struck Ramseur because she lives in a very exclusive zip code, has a husband in management in a large company, and worked in the insurance industry before becoming a homemaker. “My reason was rich and insurance and known to be from a conservative zip code. . . . [PJeople who have acquired information through the insurance industry, as a general rule, have been poisoned from serving and giving independent evaluations in personal injury claims. The insurance industry is full of literature that they hand out to employees. ... I don’t have any other insurance people on this jury, regardless of race.” While AbdulRashid and Bridges are from the same “conservative” zip code, as stated previously, Perkins provided legitimate reasons for not striking these jurors.

“Where, as here, multiple racially-neutral reasons are given for the peremptory strike . . ., a Batson violation does not exist simply because one or more of those racially-neutral reasons was not used by the [attorney] to strike [black] potential jurors. [Cits.]” Smith v. State, 264 Ga. 449, 452 (3) (448 SE2d 179) (1994). Perkins not only gave additional race-neutral reasons besides the zip code for exercising his peremptory strike against Ramseur, but he also articulated race-neutral explanations for not exercising peremptory strikes against Abdul-Rashid and Bridges. The trial court’s finding that there was no racial motivation in Perkins’ exercise of a peremptory strike against Ramseur is not clearly erroneous.

(c) Norfolk Southern also challenges Perkins’ strike of juror no. 21, Connie Yates. Perkins articulated two reasons for striking Yates: she did not respond to questions and was introverted, and she “had to go on a trip also, and I felt that she would hold that against the people who brought her here, that’s us.” “Perceived inattention, nonresponsiveness, and hostility have been found to be legitimate, racially neutral reasons for striking a prospective juror. [Cits.]” Moak, supra at 39. While Norfolk Southern contends there were two other potential jurors chosen who did not respond to questions and at least four others who answered minimal questions, none of the other jurors which Norfolk Southern compares with Yates complained about jury service interfering with a scheduled trip for which a nonrefundable airline ticket had been purchased. The trial court’s finding that Perez did not strike Yates for improper racial reasons is not clearly erroneous.

2. In its second enumeration of error, Norfolk Southern contends the trial court erred in excluding reference to Perkins’ receipt of railroad retirement benefits. Norfolk Southern argues it should have been permitted to show Perkins’ net income as reduced by his railroad retirement taxes. We disagree.

“The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers. The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer so they cannot be considered in mitigation of the damages caused by the employer.” (Citations and punctuation omitted.) CSX Transp. v. Levant, 200 Ga. App. 856, 859 (3) (410 SE2d 299) (1991), rev’d on other grounds, 262 Ga. 313 (417 SE2d 320) (1992). See also Southern R. Co. v. Cabe, 109 Ga. App. 432 (5) (136 SE2d 438) (1964). “Since the railroad retirement taxes would ultimately be paid directly to [Perkins] upon his retirement, we find no error with the trial court’s exclusion of this evidence. . . .” Levant, 200 Ga. App. at 859-860. We find Norfolk Southern’s case law from foreign jurisdictions nonpersuasive and not on point.

3. In its third enumeration of error, Norfolk Southern asserts the trial court erred in overruling its motion for a partial directed verdict based on Perkins’ failure to prove the extent of the aggravation of his injuries. We disagree.

A directed verdict is proper only if “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 799-800 (1) (a) (353 SE2d 491) (1987).

Norfolk Southern argues that Perkins’ neck, back and carpal tunnel syndrome were pre-existing conditions which were merely aggravated by his accident. Perkins, however, disputed that these conditions were merely aggravated by his accident and testified that prior to his accident, he was working every day without limitation and without pain. This testimony was corroborated by others who worked with him, all of whom testified that prior to his accident Perkins was in “great shape” and had no limitations.

In addition, doctors who treated Perkins before his accident testified that at no time prior to the accident had Perkins been placed on restrictions or been unable to perform his job due to injuries. The medical testimony further showed that Perkins’ need for surgery was consistent with his accident. Dr. Kelly opined that Perkins’ inability to return to work was causally related to his accident. While Dr. Kelly testified at one point that he did not know of Perkins’ prior injuries, he later clarified that his records showed Perkins had a prior problem with his arm and lower back. Dr. Kelly’s testimony, in addition to the other testimony presented at trial, raised a factual question as to whether Perkins’ disability was solely the result of his accident or whether the accident only served to aggravate alleged pre-existing injuries. Thus, “[t]he judge properly left resolution of the question of liability to the jury. [Cits.]” Colonial Life &c. Ins. Co. v. McClain, 144 Ga. App. 201, 202-203 (1) (240 SE2d 759) (1977).

4. In its final enumeration of error, Norfolk Southern contends the trial court erred in admitting the testimony of Perkins’ economist, Dr. Fred Johnson, because Perkins did not provide his expert’s changed opinions to Norfolk Southern until the first day of trial. Norfolk Southern argues that OCGA § 9-11-26 (e) requires a party to amend a discovery response which he knows was incorrect when given or which he knows is no longer true. We review this enumeration of error under the “abuse of discretion” standard. Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186 (3) (450 SE2d 452) (1994).

According to the record, the parties were discussing Perkins’ lost wage estimates on the first day of trial when Norfolk Southern claimed the economists’ numbers had been adjusted from previously disclosed figures. Norfolk Southern requested an opportunity to depose Johnson regarding these changes, and the trial judge granted this request. At no time did Norfolk Southern request a continuance to prepare for what it claims was prejudicial surprise.

Pretermitting the question of whether Perkins should have provided amended interrogatory responses at an earlier date, “the proper procedure when [Johnson was] called to testify was not to object to [his] testifying or to the admission of [his] testimony, but to move for a postponement of the trial for a sufficient length of time to enable [Norfolk Southern] to interview [Johnson], check the facts to which [he] would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach [him].” Nathan v. Duncan, 113 Ga. App. 630, 641 (7) (149 SE2d 383) (1966). See also Glover v. Southern Bell Tel. &c. Co., 132 Ga. App. 74, 77 (5) (207 SE2d 584) (1974). Where an opportunity to explore the witnesses’ testimony is given, a continuance may not even be necessary. Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 212 (3) (319 SE2d 38) (1984).

As no motion for postponement was made by Norfolk Southern, we cannot find the trial court abused its discretion in refusing to exclude Johnson’s testimony. This is especially true in light of the fact that Norfolk Southern was given an opportunity to depose Johnson prior to his testifying at trial and that Norfolk Southern’s counsel indicated the situation could be “solved” if Norfolk Southern was given an opportunity to depose Johnson.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

Decided January 28, 1997

Reconsideration denied February 11, 1997

Holland & Knight, Eileen M. Crowley, Tanya M. Lawson, Keith J. Reisman, for appellant.

Warshauer & Woodruff, Michael J. Warshauer, Lyle G. Woodruff, for appellee.

       In Johnson, supra, not wanting a postal worker on a jury panel was accepted as a valid reason to exercise a peremptory strike.

       Norfolk Southern admitted it would have struck Ramseur if Perkins had not, so it is ironic that it now complains about saving one of its own strikes.


text:
    A96A1860.
    PENN-AMERICA INSURANCE COMPANY v. DISABLED AMERICAN VETERANS, INC. et al.
    (481 SE2d 850)
   Johnson, Judge.

Disabled American Veterans, Inc. (“DAV”) owned a facility which was covered under a liability insurance policy issued by Penn-America Insurance Company. When Lois Farley slipped and fell on the premises, she and her husband sued DAV, Robert Lee (the post’s commander), and McCrary-Adams, Chapter 9, DAV (“McCraryAdams”). Although the insurance agreement provided that Penn-America would defend DAV, Lee and McCrary-Adams in actions filed against them, Penn-America refused to defend the Farley lawsuit. Farley subsequently dismissed the action against DAV, but not against Lee or McCrary-Adams. Lee and McCrary-Adams moved for summary judgment based on the grounds that: (1) Farley’s exclusive remedy was to file a workers’ compensation claim; (2) she failed to •exercise ordinary care for her own safety; and (3) there was no negligence on Lee’s part. The trial court granted summary judgment to Lee and McCrary-Adams without specifying its reason(s) therefor. DAV, Lee and McCrary-Adams then sued Penn-America for refusing to defend them in the Farley action. Penn-America moved for summary judgment, claiming that it had no duty to defend the suit because Farley was injured in the course of her employment, and the policy specifically excludes insurance coverage for bodily injuries to employees arising out of employment. DAV filed a cross-motion for summary judgment, arguing that Penn-America was obligated under the contract to defend the suit filed against DAV, McCrary-Adams and Lee (hereinafter collectively referred to as “the insureds”) because the complaint asserted a claim covered by the policy. The trial court granted the insureds’ cross-motion and denied Penn-America’s motion for summary judgment. Penn-America appeals from the grant of the insureds’ cross-motion.

The insurance contract states that Penn-America “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . arising out of the use of the premises . . . and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury . . . even if any of the allegations of the suit are groundless, false or fraudulent. . . .” The policy also provides that “[t]his insurance does not apply: (i) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured for which the insured may be held liable as an employer.”

Whether an insurer is obligated to defend an action against its insured “is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted. Thus, the issue ... is not whether [the insured] is actually liable to the [plaintiffs] . . .; the issue is whether a claim has been asserted which falls within the policy coverage and which [the insurer] has a duty to defend.” (Punctuation omitted; emphasis in original.) St. Paul Fire &c. Co. v. Mitchell, 164 Ga. App. 215, 216 (1) (296 SE2d 126) (1982); compare Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995). The Farleys’ complaint alleges that Lois Farley slipped and fell at DAV’s establishment, that DAV was negligent by not providing a clear, dry and accessible walkway around the counter and waitress station, and that this negligence was the cause of the plaintiffs’ injuries. Nowhere in the complaint is it alleged that Farley was injured in the course of her employment. Inasmuch as the policy provides that Penn-America will pay for bodily injuries arising out of the use of the premises and that it will defend any suit against the insureds for bodily injuries, and the allegations of the complaint show it to be a personal injury action against the insureds for an injury occurring on the insureds’ premises, the allegations clearly assert a claim which falls within the policy coverage and which Penn-America was obligated to defend. See St. Paul Fire &c. Co., supra at 216 (1).

Contrary to Penn-America’s argument, the fact that the trial court in the Farley action granted summary judgment to the insureds does not require a different result. Although Penn-America claims the Farley court granted summary judgment to the insureds based on its finding that Farley was an employee, the order is silent as to which of the three grounds was the basis for the trial court’s decision.

However, even if the court in the earlier action did find that Farley was injured in the course of employment and that action was therefore precluded by the exclusive remedy provision of the workers’ compensation statute, Penn-America still had a duty to defend the action before the insureds received the favorable ruling. Indeed, it was Penn-America’s duty to seek that favorable decision on its insureds’ behalf.

We do not look to the outcome of an earlier action to determine if the insurer had a duty to defend. In Georgia, “an insurer’s duty to pay and its duty to defend are separate and independent obligations. [Cits.]” Capital Ford &c. v. U S. Fire Ins. Co., 180 Ga. App. 413, 416 (349 SE2d 201) (1986), rev’d on other grounds, 257 Ga. 77 (355 SE2d 428) (1987). The issue of the insureds’ ultimate liability to the Farleys for their injuries is irrelevant to the question of whether the insurer was obligated to defend the insureds in the tort action. See Crook v. Ga. Farm Bureau &c. Ins. Co., 207 Ga. App. 614 (428 SE2d 802) (1993). The question is not whether the underlying action has merit, but whether the complaint alleges a claim that is covered by the policy. See Cantrell v. Allstate Ins. Co., 202 Ga. App. 859, 860 (415 SE2d 711) (1992); St. Paul Fire &c. Co., supra. If the facts as alleged in the complaint bring the occurrence even arguably within the policy’s coverage, the insurer has a duty to defend the action, regardless of whether liability is ultimately established. See Capital Ford &c., supra at 416. Because the complaint in the Farley action does allege a claim which would be within the policy coverage, the trial court did not err in granting the insureds’ motion for summary judgment. See Aetna Cas. &c. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 644 (1) (c) (442 SE2d 778) (1994).

Penn-America relies upon State Farm &c. Ins. Co. v. Keene, 111 Ga. App. 480, 482 (142 SE2d 90) (1965), for the court’s holding that the ultimate test for determining whether the insurer has a duty to defend is whether the claim asserted actually falls within the coverage of the policy. The claim as asserted in this case does fall within the coverage of the policy. We cannot agree, however, with Penn-America’s argument that Keene requires that we look beyond the complaint and policy language to extrinsic facts in order to determine whether a duty to defend exists. Subsequent state appellate decisions citing Keene have not interpreted it as Penn-America suggests. For example, Associated Petroleum Carriers v. Pan American Fire &c. Co., 117 Ga. App. 714, 716 (161 SE2d 411) (1968), which cites Keene, holds that the insurer is obligated to defend a suit both when the true facts are within the coverage of the policy, and also when the complaint alleges facts within the policy’s coverage. Great American Ins. Co. v. McKemie, 244 Ga. 84, 86 (259 SE2d 39) (1979), also cites Keene. In Great American Ins. Co., even though additional facts were revealed during the course of litigation which had a bearing on whether the insurer had a duty to defend, the Supreme Court held that the allegations of the complaint are looked to “to determine whether a liability covered by the policy is asserted.” (Citation and punctuation omitted; emphasis in original.) Id. at 85-86. The Court concluded that the insurer justifiably refused to defend based upon the complaint it received. The trial court in the instant case did not err in finding that Penn-America was obligated to defend the insureds in the Farley action.

Decided February 11, 1997

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Dennis A. Brown, for appellant.

Mullís, Marshall, Lindley & Powell, Julius A. Powell, Jr., Miguel A. Garcia, Jr., for appellees.

Judgment affirmed.

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


text:
    A96A2217.
    HUTCHESON v. DANIELS.
    (481 SE2d 567)
   Ruffin, Judge.

This case arises from an automobile collision which occurred on April 26,1991. James Wade Daniels sued James Wadis Hutcheson to recover for personal injuries, including a hernia and a carpal tunnel injury. Hutcheson moved for a directed verdict on each claim, contending Daniels failed to prove any causal relationship between the collision and his hernia or carpal tunnel injury. The trial court denied Hutcheson’s motions for directed verdict on the causation issue, and the jury rendered a verdict in favor of Daniels. Hutcheson filed a motion for judgment notwithstanding the verdict on the causation issue, which the trial court denied after reviewing the briefs and holding a hearing. Hutcheson appeals the denial of his motions for directed verdict and his motion for j.n.o.v.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [Hutcheson’s] motion for directed verdict . . . and j.n.o.v. will not be disturbed.” (Citations and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996).

1. Hutcheson first enumerates as error the trial court’s denial of his motion for directed verdict and j.n.o.v. regarding Daniels’ carpal tunnel injury. The record shows that Daniels first noticed problems with his left wrist a few days after the accident. Daniels testified, “I started (sic) a tenderness in this area (indicating), and then the fingers started. It started radiating down the fingers until all the fingers went completely numb.” Daniels sought medical treatment from Dr. Cannon in August 1991, and Dr. Cannon thereafter performed carpal tunnel surgery on his left wrist.

Hutcheson relies on Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987), where this Court affirmed the trial court’s grant of a directed verdict for the defendant on the ground that the plaintiff failed to prove through expert medical testimony a causal connection between a football injury he sustained during his 1979-1982 collegiate football career and the physical condition underlying medical expenses he incurred several years later in 1985. The court held that whether the plaintiff’s physical condition in 1985 was caused by the injury he sustained while playing college football in 1979-1982 was “not one of those matters which jurors must be credited with knowing by reason of common knowledge.” (Citations and punctuation omitted). Id. at 518. The Eberhart case, however, has been factually distinguished on a number of occasions.

In Madden v. Solomon, 196 Ga. App. 512, 513 (1) (396 SE2d 245) (1990) (physical precedent only), this Court held that where there was no significant lapse of time between the date the injuries were sustained in an automobile collision and the onset of the physical condition for which the injured party sought compensation, “[t]he jury could have determined, without expert testimony, that the expenses incurred were related to the injuries sustained in the collision. [Cit.]” The Madden case involved a neck injury which manifested itself within hours of the accident. Likewise, in Jordan v. Smoot, 191 Ga. App. 74 (1) (380 SE2d 714) (1989), there was no significant lapse of time, and the Court, distinguishing Eberhart, held that expert testimony was not required for the plaintiff to establish a case sufficient to withstand a defendant’s motion for directed verdict. In Jordan, the plaintiff began experiencing symptoms later on the same day of her accident.

In the present case, Daniels testified that he began experiencing the onset of the carpal tunnel condition a few days after the collision, and he sought medical treatment within four months of the onset of his symptoms. Thus, this case is more closely analogous to Madden and Jordan, where a lay jury could conclude from common knowledge that a causal connection existed in light of the short lapse between Daniels’ accident and his onset of symptoms and receipt of medical treatment. Given the standard of review which we must apply, we find that the trial court did not err in denying Hutcheson’s motion for directed verdict or motion for j.n.o.v. on this issue.

Hutcheson further relies on Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 856 (2) (459 SE2d 592) (1995). However, this case is also factually distinguishable. In Magnan, the question presented involved the continuing, long-term nature of an eye injury sustained by a plaintiff who had been exposed to pesticides. We held that the plaintiff “could not simply testify that the continuing eye problems were caused by the incident!, but] he was required to present expert medical testimony to make this showing. [Cits.]” Id. at 857 (2). This was especially true since the plaintiffs own physician testified that his initial eye injuries had healed and his later eye problems were not causally related by a reasonable probability. Id. In the present case, the question was not one regarding the longevity of Daniels’ carpal tunnel condition, but simply whether this injury was caused by the collision. We find no error.

Decided February 11, 1997

Andrew & Threlkeld, Reid A. Threlkeld, Dillard, Bower & East, Bryant H. Bower, Jr., Joseph E. East, for appellant.

2. In his second enumeration, Hutcheson asserts the trial court erred in denying his motion for directed verdict and j.n.o.v. relating to the hernia injury. The record shows that Daniels first experienced problems in the area where the hernia was located “[w]ithin just a short few days” after the collision. According to Daniels, the pain got worse and worse. Daniels admitted he had a prior hernia operation in 1985, but testified that he had no problems with his hernia between 1985 and the time of the collision. Daniels further testified that because of the multiplicity of the medical problems he was experiencing and because he had to care for his wife following her heart attacks in 1991, he did not seek medical treatment for his hernia until March 1992. Thereafter, Daniels had to get another doctor before his hernia surgery was performed because his original doctor had a heart attack.

“Given the fact that [Daniels’] problems with [his hernia] ceased after [his] surgery in [1985] and did not recur until soon after the collision [in 1991], this case is more like Jordan and Madden than Eberhart. The jury did not need expert evidence to find that although the automobile accident did not cause the [hernia], it aggravated [it]. [Hutcheson was] not entitled to a directed verdict at the close of [the] evidence.” Cox v. Rewis, 207 Ga. App. 832, 835 (2) (429 SE2d 314) (1993) (physical precedent only).

Based on the foregoing, including our analysis in Division 1, we conclude that the trial court did not err in denying Hutcheson’s motion for directed verdict and motion for j.n.o.v. on the hernia claim.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Morris & Tillman, Keith M. Morris, for appellee.


text:
    A96A2432.
    BOONE v. THE STATE.
    (481 SE2d 569)
   Johnson, Judge.

A jury convicted Derrick Bernard Boone of two counts of armed robbery. On appeal, Boone alleges his trial counsel was ineffective. We disagree and affirm.

We consider ineffectiveness of counsel claims under the two-part test set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The first part requires the convicted defendant to show that his trial counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688. The defendant must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Cit.]” Id. at 689. The second part of the Strickland test requires the defendant to show that any deficiency in trial counsel’s performance resulted in prejudice to his defense, meaning “a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted.) Shelton v. State, 220 Ga. App. 163, 165 (2) (469 SE2d 298) (1996).

1. Boone alleges ineffectiveness in his trial counsel’s failure to call Shirley Christmon as an alibi witness.

At the hearing on the motion for new trial, trial counsel testified that she had several reasons for not calling Christmon. First, when trial counsel had interviewed Christmon, she could establish only that Boone had been with her in Warner Robins at 5:00 a.m. on the day of the robberies, one of which took place at 4:00 a.m. and one at 6:00 a.m. in nearby Macon. Second, Christmon’s testimony would have been Boone’s only evidence, and trial counsel noted that calling her would have forfeited Boone’s right to present first and last closing arguments. See OCGA § 17-8-71. Third, counsel considered Christmon’s credibility suspect because she had been taking pain medication at the time of the robberies. Because Boone’s counsel had tactical reasons not to call Christmon, this decision does not constitute ineffective assistance. See Bradford v. State, 221 Ga. App. 232, 235 (3) (a) (471 SE2d 248) (1996).

2. Boone contends his trial counsel should have challenged the qualifications of a police sergeant and a detective to give expert testimony about fingerprints. The sergeant testified that he had two weeks of formal fingerprint training and eleven years of on-the-job experience. The detective testified that he had FBI and university training in fingerprints and also had on-the-job experience. Boone has not shown any basis for challenging these qualifications, which were sufficient to allow the officers to testify as fingerprint experts. See Jones v. State, 198 Ga. App. 303, 306 (3) (401 SE2d 322) (1991). Boone has therefore failed to show error in or prejudice from his counsel’s decision not to raise such a challenge.

3. Boone contends his trial counsel should have obtained expert testimony to refute that of the sergeant and detective. Their testimony explained the lack of Boone’s fingerprints at the scenes of both robberies, despite eyewitness testimony and a videotape establishing that the robber touched certain surfaces at the scenes. Boone contends an expert would have testified that it is extremely unlikely the robber could have touched these surfaces and not left legible fingerprints. Boone, however, introduced no evidence at the hearing on the motion for new trial that an expert would have testified as he claims. He therefore has not demonstrated prejudice from his counsel’s failure to present expert testimony at trial.

4. Boone claims his trial counsel deprived him of his right to testify in his own behalf by threatening to withdraw from the case if he insisted on testifying.

A criminal defendant has a fundamental right to testify. See Rock v. Arkansas, 483 U. S. 44, 49, 52 (107 SC 2704, 97 LE2d 37) (1987). This right may be waived by the defendant personally, but not by defense counsel or the court. United States v. Teague, 953 F2d 1525, 1532, 1534-1535 (11th Cir. 1992) (en banc), cert. denied, 506 U. S. 842 (113 SC 127, 121 LE2d 82) (1992). If a convicted defendant wishes to complain that trial counsel improperly prevented him from testifying, a claim of ineffective assistance of counsel is the proper vehicle for doing so. Teague, supra at 1534.

At the hearing on the motion for new trial, trial counsel testified she and Boone had discussed his wish to .testify many times, often angrily, and that she did ultimately threaten to withdraw from representing Boone if he insisted on testifying. She testified Boone had told her one version of events early in her investigation of the case, then told her something else as trial neared, so she thought he would commit perjury if he took the stand; trial strategy was not a consideration.

At trial, the judge engaged in an on-the-record colloquy with Boone concerning his right and desire to testify. See Barron v. State, 264 Ga. 865, 866 (2), n. 2 (452 SE2d 504) (1995). The judge explained to Boone that he had a right to testify, but no obligation to do so, and that the jury could draw no harmful inference from his failure to testify if he chose not to do so. The court then asked Boone whether he understood and whether he wanted to testify. Boone replied that he did understand and did not wish to testify. Boone also affirmed that he had decided this freely and voluntarily because he thought it was in his best interest. The court made an oral finding at the hearing on the motion for new trial that Boone “understood what his options were” when he waived his right to testify. This factual finding is not clearly erroneous. Because Boone was advised of his right to testify, this was an “intentional relinquishment or abandonment of a known right or privilege,” and therefore a valid waiver. (Citation, punctuation and emphasis omitted.) Teague, supra at 1533; see id. at 1535. We therefore affirm Boone’s conviction. See generally Chambers v. State, 266 Ga. 39, 41-42 (3) (463 SE2d 887) (1995).

Decided February 11, 1997.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Kimberly S. Schwartz, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Judgment affirmed.

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