text:
    A95A2692.
    WALSH v. THE STATE.
    (469 SE2d 526)
   Ruffin, Judge.

Charles Walsh was convicted of driving under the influence (less safe driver) pursuant to OCGA § 40-6-391 (a) (1) and acquitted of driving under the influence (alcohol concentration of .10 grams) pursuant to OCGA § 40-6-391 (a) (4). For reasons which follow, we affirm.

1. In his first enumeration of error, Walsh asserts that the trial court erred in denying his plea of former jeopardy. Walsh argues that because his driver’s license had previously been administratively suspended, under OCGA § 40-5-67.1, the State’s prosecution for driving under the influence constituted double jeopardy.

We recently rejected this same argument in Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995). For the reasons explained in Nolen, we conclude that “the suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy.” Id. at 823. Thus, we find no error.

2. In three enumerations of error, Walsh asserts that the trial court erred in denying his motion in limine to exclude the results of his breath test. However, the jury “did not find [Walsh] guilty on the count of the accusation charging him with having an illegal blood alcohol level but expressly . . . found [him] guilty only on the count charging him with being intoxicated to the extent that he was a less safe driver. Thus, even if the trial court erred in admitting evidence of his alcohol concentration level it was harmless error.” Jones v. State, 200 Ga. App. 666 (2) (409 SE2d 251) (1991). See also Gilbert v. State, 262 Ga. 840 (3) (426 SE2d 155) (1993).

3. In his final enumeration of error, Walsh asserts that the trial court erred in denying his motion for a directed verdict because the State did not prove beyond a reasonable doubt that he was under the influence of alcohol at the time he was driving to the extent that it was less safe for him to drive.

“A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty.” (Citation and punctuation omitted.) Torrance v. State, 217 Ga. App. 562, 563 (2) (458 SE2d 495) (1995). Furthermore, on appeal we must view the evidence in a light most favorable to the jury’s verdict. Id. Under this standard, the evidence at trial showed that at approximately 3:00 one morning, a police officer noticed Walsh walking along the roadway. Because the temperature was in the low teens and Walsh was wearing shorts, the officer offered him a ride. Walsh accepted the offer and when he sat in the car, it became obvious to the officer that he had been drinking. The officer testified that Walsh had a “pretty strong” odor of alcohol on his breath, red eyes, a general demeanor consistent with someone who had been drinking, and that he hesitated when he talked, as though “[h]e had to think a little bit before he spoke.” Walsh told the officer he was drinking with friends and that when they got into an argument, the friends forced him out of the car. The officer took Walsh to the sheriffs office to call a ride. Then, because he was suspicious of Walsh’s story, the officer drove to the vicinity where he initially found Walsh to look for a car.

The officer found a car with its back end in a pasture fence. The officer determined that after leaving the road, the car travelled approximately 120 feet along the road shoulder, reentered the road, crossed back over the road centerline, then slid off the other side of the road before knocking down 21 feet of fence. On the floorboard of the car, the officer saw an empty bottle of malt liquor. Because he had not observed any other traffic on the road that evening, the officer concluded that the car was Walsh’s and called the sheriffs office to bring Walsh to the car because he left the scene of an accident in which there was property damage. When a deputy at the sheriffs office patted Walsh down for weapons, Walsh gave the deputy his keys and admitted that the car was his. The deputy testified that Walsh smelled strongly of alcohol and slurred his speech.

Walsh testified that he did not consume any alcohol before the accident. He stated that after the accident, he took a pint of cognac from the trunk of his car and drank the cognac as he walked down the road. He stated that when he finished the cognac, he threw the bottle in the woods, and that he had been walking approximately three and a half hours before the officer offered him a ride. Walsh stated that he told the officer the story about drinking with his friends because he was nervous and, having consumed the pint of cognac, did not want to be charged with driving under the influence.

Decided March 7, 1996.

Randall W. Burton, for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

“ ‘Driving an automobile while under the influence of alcohol may be shown by circumstantial evidence. [Cit.]’ [Cit.]” Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994). While in this case “there is conflicting evidence concerning whether [Walsh] had been drinking when the accident occurred, or, as [Walsh] contends, he only consumed alcohol after the accident while [walking down the road], there is sufficient evidence to support the jury’s verdict that [Walsh] had been drinking prior to the accident. . . . Matters of witness credibility are within the purview of the jury. . . . The obligation to weigh the evidence and to determine witness credibility rests with the jury. This court considers only the sufficiency of the evidence.” (Citations and punctuation omitted.) Conner v. State, 205 Ga. App. 564, 567-568 (5) (422 SE2d 872) (1992). We find sufficient evidence for a jury to find beyond a reasonable doubt that Walsh was intoxicated to the extent that it was less safe for him to drive. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Conner, supra; Schoicket, supra.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2091.
    WILKINS v. THE STATE.
    (469 SE2d 695)
   Beasley, Chief Judge.

After an Atlanta police officer stopped Cynthia Wilkins for traffic violations and found her smelling of alcohol and unable to perform roadside sobriety tests up to par, her blood alcohol concentration level was determined to be .16 grams. A jury convicted her of driving under the influence and speeding. She does not contest the jury’s verdict on her speeding charge but raises several issues concerning the DUI conviction. OCGA § 40-6-391 (a) (1) or (4).

1. Wilkins claims the trial court erred by denying her motion in limine and allowing evidence of the blood-alcohol readings revealed by the Intoximeter 3000. She argues before this Court that the implied consent warning failed to inform her she could choose her own qualified personnel to perform an independent test, as required by State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). We cannot consider this ground because it was not raised in the trial court. Wilkins’ only claim there was that the officer should not have told her the additional test would be at her own expense. The attempted shift of grounds waives one and forgoes the other. Watkins v. State, 206 Ga. App. 701, 705 (426 SE2d 238) (1992); Smith v. State, 265 Ga. 570, 571-572 (459 SE2d 420) (1995). “Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.” Waugh v. State, 218 Ga. App. 301, 304 (460 SE2d 871) (1995).

To the extent Wilkins still urges the ground presented to the trial court, it is without merit. Such language in the implied consent warning has not been disapproved. See Howard v. State, 219 Ga. App. 228, 229 (2) (465 SE2d 281) (1995). The advice given was a correct statement of the law then in effect, OCGA § 40-5-67.1 (b) (4).

2. Wilkins alleges as error the court’s refusal to grant a mistrial during her cross-examination. The solicitor asked Wilkins if she had ever been stopped by the police; an objection was raised and sustained before she ever answered. The solicitor asked if she had “ever been convicted of a D.U.I. before.” Another objection was made before she answered, and the solicitor responded: “If she has ever been convicted of a previous D.U.I. then there’s an indication that this is a pattern of conduct.” The court excused the jury, and defense counsel moved for a mistrial. The court denied it and, when the jury returned, told the jurors to disregard the last question posed by the solicitor. Defense counsel made no further objections on this issue until the close of evidence, at which time he renewed his motion for mistrial and the court again denied it.

Wilkins contends that the State’s unanswered question improperly injected her character into the determination of guilt or innocence. In these circumstances, the trial court has wide discretion to grant the mistrial or give curative instructions as the court did. Morgan v. Hawkins, 155 Ga. App. 836, 839 (273 SE2d 221) (1980); Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982). The questions and stated hypothetical were not so egregious as to infect the factfinding process per se, and thus the trial court did not abuse its discretion. Id.

Decided February 12, 1996

Reconsideration denied March 8, 1996.

L. Paul Cobb, Jr., for appellant.

Louise T. Hornsby, Solicitor, Clayton Sinclair, Jr., Assistant Solicitor, for appellee.

Furthermore, after the curative instructions were given, Wilkins made no further objection or motions for mistrial until the jury had received all evidence and retired to the jury room. Having failed to timely inform the trial court of any further action she desired taken, Wilkins cannot now complain. Bailey v. State, 209 Ga. App. 390, 394-395 (6) (433 SE2d 610) (1993).

3. Wilkins protests the trial court’s denial of her motion for new trial because the court did not first conduct a hearing on that motion. The motion asserted only the general grounds and was filed two days after the jury’s verdict but with no request for a hearing. The trial court, with the evidence and proceedings fresh in mind albeit without a transcript, denied the motion ten days after it was filed. See McClure v. State, 163 Ga. App. 236, 237 (2) (293 SE2d 496) (1982); OCGA § 5-5-40 (c). Wilkins cannot complain of the court’s action when she took no steps to request argument or a hearing. She had a due process right to one if requested, but “the trial court has no duty to initiate such hearing until requested by one of the parties.” Peyton v. Peyton, 236 Ga. 119, 120-121 (1, 2) (223 SE2d 96) (1976). See also Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Gantt v. Sweatman, 162 Ga. App. 738 (293 SE2d 359) (1982). As was done in the latter two cases, but not by Wilkins, the party seeking a hearing must take affirmative steps to request one. Wilkins waived her right by missing her opportunity. Peyton, supra.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       The court charged both subsections and the jury returned a verdict of guilty of violating “40-6-391.”


text:
    A95A2590.
    ELLIS et al. v. GALLOF et al.
    (469 SE2d 288)
   Beasley, Chief Judge.

The Gallofs filed a complaint against their neighbors the Ellises, seeking abatement of a nuisance; damages for maintenance of the nuisance, trespass, and breach of restrictive covenants; and attorney fees and litigation expenses under OCGA § 13-6-11.

The Gallofs claimed that the Ellises modified the grade and topography of their property by construction of a swimming pool in their backyard, thereby causing surface water that once flowed from the Gallofs’ property onto and across the Ellises’ property to collect in the Gallofs’ yard.

In a counterclaim, the Ellises claimed that the Gallofs constructed an addition to their house in violation of restrictive covenants and local ordinances, thereby altering the natural flow of water from their land and causing water to concentrate, and silt and other matter to flow, on the Ellises’ land. The Ellises sought damages against the Gallofs for trespass and nuisance, as well as litigation costs and expenses.

On the Gallofs’ complaint, the jury awarded $1,451 for nuisance, trespass, and breach of restrictive covenants, plus $13,500 in attorney fees and litigation expenses. On the Ellises’ counterclaim, the jury awarded $1,500 for trespass and nuisance but no litigation costs and expenses. The final judgment gives the Gallofs a net recovery of $13,451. The court also granted their request for nuisance abatement, requiring the Ellises to pay for certain corrective work in an amount not to exceed $2,000 and ordering the Gallofs to pay any additional amounts. At a hearing, the court stated it understood the work would cost approximately $4,000.

1. The Ellises contend that the court erred in awarding the Gallofs attorney fees under OCGA § 13-6-11 which, if excluded, results in an award of $49 more to the Ellises on their counterclaim than to the Gallofs on their complaint. Therefore, the Ellises assert, the Gallofs were not the prevailing parties.

Although OCGA § 13-6-11, by its terms, is not limited to prevailing parties, “the correct principle is that plaintiffs must prevail on their basic cause of action in order to obtain litigation expenses [under OCGA § 13-6-11]. . . Barnett v. Morrow, 196 Ga. App. 201, 203 (396 SE2d 11) (1990). Accord Cora v. Wagner, 196 Ga. App. 774, 775 (1) (397 SE2d 46) (1990).

The Gallofs also contend that, even though the jury did award more damages to the Ellises than to them on the parties’ underlying claims, they prevailed nonetheless since they were also granted affirmative equitable relief. That is true, but the equitable relief consisted of an order that corrective work be done, and the Gallofs were required to pay for a portion of it. From the record, it cannot be determined whether the Gallofs will be required to pay more than, less than, or the same amount as the Ellises. Consequently, the Gallofs were not established as the prevailing parties. Compare Adams v. Cowart, 224 Ga. 210, 214 (6) (160 SE2d 805) (1968). The award of attorney fees must be reversed.

2. The remaining enumeration, which attacks the award of attorney fees on other grounds, is moot.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

Decided February 8, 1996

Reconsideration denied March 8, 1996

Mottern & Van Gelderen, Leon A. Van Gelderen, for appellants.

Holt, Ney, Zatcoff & Wasserman, Jay F. Castle, for appellees.


text:
    A95A1928.
    MYRICK et al. v. STEPHANOS et al.
    (472 SE2d 431)
   Beasley, Chief Judge.

Plaintiff Stephanos was severely injured when a tractor-trailer driven by defendant Myrick, owned by defendant Falcon Transport, Inc., and insured by defendant Reinsurance Corporation of New York collided with Stephanos’ car. Stephanos’ wife asserts a loss of consortium claim. Defendants appeal the judgment entered on a jury verdict awarding Stephanos $1,989,726 and his wife $45,000.

1. In their first three enumerations, defendants meritoriously contend that in closing argument plaintiffs’ counsel made improper comments to the effect that the jury should award damages: (1) because of the negligence of Reinsurance, through Falcon and Myrick; (2) because of the unsympathetic treatment of Stephanos by Reinsurance following the collision; and (3) to deter Reinsurance from treating other accident victims the way it had treated Stephanos.

Although OCGA § 46-7-12 (e) permits an injured person to join the insurance carrier as a party defendant in the same action brought against the motor carrier, Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992), the insurance carrier is neither a jcint tortfeasor nor responsible for the motor carrier’s negligent conduct under a theory of vicarious liability. See Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992).

Consequently, counsel’s attempts in closing argument to impute Myrick’s and Falcon’s negligence to Reinsurance were improper and prejudicial, as was the argument that the jury should base its award of compensatory damages on the insurance carrier’s treatment of Stephanos independent of the collision. Such conduct, even if fact, is not relevant to the issue of compensatory damages in this case. Moreover, plaintiffs cite no evidence of such fact. Counsel’s deterrence argument amounted to a plea for punitive damages, which were not in issue. Compare McClure v. Gower, 259 Ga. 678, 681-683 (3) (385 SE2d 271) (1989).

2. Defendants moved for a directed verdict on Stephanos’ claims for lost earning capacity and future lost wages except insofar as the evidence showed he would lose wages due to future surgery for a period of time. The court granted the motion as to future lost wages on the ground that Stephanos had not lost any wages because he was being paid his full salary. But it erroneously denied the motion as to lost earning capacity.

“Diminished capacity to labor” is an element of pain and suffering recoverable by one who is physically injured. Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 764-765 (1) (227 SE2d 397) (1976). It is an item of general damages. Wright v. Lail, 219 Ga. 607, 610 (135 SE2d 418) (1964). “The rule for determining such damages is the enlightened consciences of fair and impartial jurors. [Cit.]” City Council of Augusta v. Drawdy, 75 Ga. App. 543, 547 (2) (43 SE2d 569) (1947).

“Recovery for ‘lost earning capacity’ is, however, a separate element of damages recovery of which physical injury to the plaintiff resulting in a permanent or total physical disability is the essential element. [Cit.]” (Emphases omitted.) Leggett, supra at 765 (1). “[T]he measure of such damages involves numerous considerations, among which are, first, the earnings before the injury, earnings after the injury, probability of increased or decreased earnings in the future, considering the capacity of the injured party, effects of sickness and old age, etc.” Drawdy, supra. “[R]ecovery for ‘lost earning capacity’ is an item of special damages which requires some evidence upon which a jury can base with reasonable certainty a finding as to amount of such damages. [Cit.]” (Emphasis omitted.) Leggett, supra. “ ‘ “While proof of the plaintiff’s actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff’s decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. . . .” (Cits.)’ [Cit.]” Dept. of Human Resources v. Thomas, 217 Ga. App. 174, 178-179 (2) (456 SE2d 724) (1995). Thus, a claim for “lost earning capacity” embraces a recovery for lost future earnings. See Super Discount Markets v. Coney, 210 Ga. App. 659 (1) (436 SE2d 803) (1993); Walkley v. Dukes, 175 Ga. App. 820, 821 (3) (334 SE2d 868) (1985).

A recovery for the separately recognized claim of “loss of future earnings” is available where there is proof of loss of definite earnings that would have been received in the future but for an injury, even though the injury is not permanent. See Hunt v. Williams, 104 Ga. App. 442, 448 (5), 450 (122 SE2d 149) (1961); F. M. Eldridge, Personal Injury and Property Damage — Damages, The Law in Georgia, § 5-7.

Stephanos presented evidence of what he was earning as a pilot before his injuries. There is evidence he could be permanently grounded by his injuries if he does not pass a medical examination his employer has instructed him to take and that a visual impairment caused by his injuries could render him unable to fly. There is also evidence that following the accident, he continued to pass FAA flight physical examinations and to obtain his pilot recertifications and excellent performance reviews by his supervisor. The evidence does not show the probability of his being permanently grounded or becoming unable to fly.

Stephanos presented medical testimony showing that his injuries have resulted in a permanent impairment to his lower extremities and whole body in certain percentages, and that he could lose his class I FAA medical certificate as a result. But there is no evidence of the degree to which the disability or loss of the medical certificate may reasonably affect his future income. Such evidence is required in order to support a charge on lost earning capacity. Long v. Serritt, 102 Ga. App. 550, 554-555 (4) (117 SE2d 216) (1960). Its absence prevents the jury from finding with reasonable certainty the amount of damages for this loss. Although the court gave a legally correct charge on the issue of lost earning capacity, the charge was not supported by the evidence and it was error to give it.

3. Defendants contend that the court erred in admitting a letter from the FAA.

On cross-examination, Stephanos was asked whether he had passed all of his physical examinations without comment from the FAA. He responded in the negative, stating that he had recently received a notification from the FAA questioning his last physical. On redirect examination, he testified that in this letter, the FAA had asked him to submit all of his medical records and undergo an additional eye examination. Defendants later objected to the admission of this letter on grounds that it was hearsay and not properly authenticated. The court overruled the objection for the reason that the letter was admissible to explain Stephanos’ conduct in taking the eye examination, not to prove the truth of its contents.

This was error. Stephanos never testified that he had actually taken an eye examination. Rather, his testimony was that he had received a letter from the FAA requesting, among other things, that he take an eye examination. The letter was not relevant to explain Stephanos’ conduct. Compare Bodrey v. Bodrey, 246 Ga. 122, 123 (2) (269 SE2d 14) (1980).

4. Defendants contend it was error to allow plaintiffs’ counsel, over objection, to violate the Golden Rule in his closing argument by asking the jurors to place themselves in Stephanos’ shoes.

In determining the amount of compensation to be awarded, plaintiffs’ counsel made repeated statements asking the jurors to put themselves in the various positions Stephanos had been put in as a result of this accident. Among other things, counsel stated to the jurors that “You’re going to have to be willing to undergo essentially a head-on crash with a tractor-trailer. You are going to have to have so many bones in your body broken that it’s going to require pins, screws and plates to put you back together. You’re going to be in intensive care for three days, you’re going to be in a hospital for three weeks. You’re going to be in a hospital bed for four months.”

Decided March 8, 1996.

Freeman & Hawkins, Warner S. Fox, Michael J. Goldman, for appellants.

Dwyer & White, J. Matthew Dwyer, Jr., Carmen Smith, Anne W. Sapp, for appellees.

Defendants, who had previously raised an objection to counsel’s closing argument as violating the Golden Rule, again objected. After the court overruled the objection, plaintiffs’ counsel continued with this line of argument, by stating, among other things, that “[y]ou cannot enjoy the pleasures life has to offer. You are deprived of the ability to be the father that you want to be with your children and the lover that you want to be with your high school sweetheart.”

The so-called “Golden Rule” argument urges the jurors to place themselves in the position of plaintiff or to allow such recovery as they would wish if in the same position. Opatut v. Guest Pond Club, 188 Ga. App. 478, 481 (5) (373 SE2d 372) (1988) (citing Earl v. Edwards, 117 Ga. App. 559, 560 (3) (161 SE2d 438) (1968)). It is improper because it asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant. 75A AmJur2d, Trial, § 650 (1991). It has been generally held that counsel’s invocation of the Golden Rule is reversible error if objected to, unless the objection is sustained and a curative instruction given. See 70 ALR2d 935 (1960). Here, the court overruled the objection.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       Due to the bases for reversal in Divisions 2 and 4, we do not decide whether other improper comments made by plaintiffs’ counsel during closing argument (Division 1) give rise to reversible error, in that it is questionable whether defendants made proper and timely objections at trial. It is also unnecessary to decide whether the court committed reversible error in its erroneous admission of the PAA letter (Division 3). We have reviewed the other improper comments and erroneous admission of the letter because of the possibility that upon retrial the same comments will be made and the letter will sought to be admitted on the same ground as at this trial.


author: Pope, Presiding Judge.

text:
    A95A2145.
    PERKINS v. THE STATE.
    (469 SE2d 796)
   Pope, Presiding Judge.

After his motion to suppress evidence seized in a search of his home was denied, defendant David Perkins was convicted of manufacturing marijuana in Fannin County. On appeal, defendant asserts that the evidence should have been suppressed because the officer who obtained the search warrant (a) withheld information relevant to the confidential informant’s (“Cl’s”) reliability from the magistrate, and (b) relied in part on information he had obtained in an earlier, warrantless search. Concluding that probable cause for the search warrant existed regardless of the Cl’s initial reliability and even if we disregard the officer’s observations in the earlier search, we affirm.

Defendant had two homes he inherited from his father; one was in Cobb County and one was in Fannin County. After an informant of unknown reliability reported that defendant was growing marijuana in both houses, Officer Cebula of Cobb County and Trooper Burch of Fannin County set up a controlled buy of marijuana at defendant’s Cobb County home. They searched the Cl and his car, gave the Cl funds to use for the purchase of marijuana, followed him to the Cobb County home, and watched the Cl enter the house and emerge a short time later. They then followed the Cl back to a prearranged location, where the Cl turned over to Officer Cebula an amount of marijuana. Based on an affidavit which included a description of the controlled buy, Officer Cebula obtained a search warrant for defendant’s Cobb County home the following day. This warrant was executed, and the officers seized marijuana plants and related paraphernalia from an indoor marijuana “grow.”

Trooper Burch then obtained a warrant to search the Fannin County residence. Burch’s affidavit recited what the Cl had told the officers about defendant’s marijuana growing activities and related that Burch had been to the Fannin County home, smelled the odor of marijuana, observed that the lower level windows were all covered, and had seen large amounts of potting soil in plastic bags around the house. The affidavit did not describe either the controlled buy or the results of the warrant executed in Cobb County. Trooper Burch testified at the motion to suppress hearing, however, that he orally informed the magistrate that the Ccbb warrant had been executed and a “grow” with numerous marijuana plants had been found. Trooper Burch executed the Fannin County warrant and seized 54 additional plants as well as processed marijuana and paraphernalia.

1. The question presented is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched. See State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) . In this case, the controlled buy at the Cobb County home provided probable cause for the search of that residence; and the results of the search of defendant’s Cobb County home, coupled with information from the Cl (who could then be considered reliable as a result of the controlled buy and the earlier Cobb County search) that defendant was growing marijuana in both his homes, provided probable cause for the search of the Fannin County home.

2. Defendant contends the information provided the magistrate in support of the Fannin County warrant was insufficient because Trooper Burch failed to inform the magistrate that the Cl had demanded and received money from the officers, and that the Cl had a criminal record. Even under the common sense “totality of the circumstances” test of Stephens, an informant’s reliability is a relevant consideration. Poole v. State, 175 Ga. App. 374 (1) (333 SE2d 207) (1985) . Accordingly, officers seeking warrants should provide the magistrate with any information they have relevant to a Cl’s reliability or motivation, including criminal records and any payments made; and in some cases, if the information is material and the affiant knowingly or recklessly omits it, suppression of the seized material could result. See Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989) (if material information is knowingly or recklessly omitted, the reviewing court should include it with other information provided the magistrate to determine whether probable cause to issue the warrant existed). As discussed above, however, the information directly known by the officers (i.e., the buy they set up and controlled, and the results of the Cobb County search) was sufficient to establish probable cause for the warrants at issue here, without the need to rely on any uncorroborated information from the Cl.

3. Defendant also contends the information was insufficient because it included Trooper Burch’s observations from an earlier visit to defendant’s Fannin County home without a warrant. An officer may use whatever he perceives with his senses, but only if he is at a place he is entitled to be when he perceives it. See Lewis v. State, 126 Ga. App. 123, 126 (2) (b) (190 SE2d 123) (1972).

Despite the trial court’s finding that Burch visited the home for the legitimate purpose of verifying the address and directions for the warrant, it is clear from Burch’s testimony at the motion to suppress hearing that his primary purpose in approaching and walking around the house was investigation. Burch himself acknowledged this purpose, and a walk around the house after ascertaining that no one was home was not necessary to verify the address and directions. The State’s reliance on Gilreath v. State, 247 Ga. 814 (1) (279 SE2d 650) (1981) is misplaced, as that case involved officers responding to a request to locate a missing person last seen at the house in question. Under those circumstances, the Supreme Court held that the officers were entitled to go up to the door and knock without a warrant, and to go around the house and knock on other doors when no one answered at the front; but the Court specifically stated that “this is not to say . . . that a search of the curtilage in investigation of a crime is unobjectionable.” Id. at 820. “A search is a quest for information and that is exactly what the [officer was] accomplishing when [he] entered” the area immediately surrounding defendant’s Fannin County home. Lewis, 126 Ga. App. at 126. See also State v. O’Bryant, 219 Ga. App. 862 (467 SE2d 342) (1996).

Decided March 8, 1996

Alan J. Baverman, for appellant.

Roger G. Queen, District Attorney, Joe W. Hendricks, Jr., Assistant District Attorney, for appellee.

Thus, Trooper Burch’s observations regarding the odor, covered windows, and potting soil cannot be considered in evaluating the sufficiency of the information supporting probable cause. Again, however, these observations were not necessary to establish probable cause; the information provided the magistrate was sufficient even if these perceptions are disregarded. Accordingly, the warrant was valid and the trial court did not err in denying the motion to suppress, even though Trooper Burch’s earlier investigation at the Fannin County residence was improper.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A2167.
    SHELTER MUTUAL INSURANCE COMPANY v. BRYANT. SHELTER MUTUAL INSURANCE COMPANY v. GOOLSBY.
    A95A2793.
    (469 SE2d 792)
   Pope, Presiding Judge.

These two cases arise from the same April 5, 1991, automobile collision, which happened when Kenneth Steven Wigley, who was traveling more than 70 mph in a 35 mph zone, passed another car on a curve, lost control, crossed the centerline, and struck the vehicle which plaintiff Sharon Bryant was driving. Riding in the car with Bryant were her mother, daughter and niece, as well as her sister, plaintiff Sandra Goolsby, and Goolsby’s daughter. Wigley was killed in the accident; analysis indicated that at the time of the accident, he had a blood alcohol level of .26 grams percent.

In Case No. A95A2167, Bryant sued Wigley’s estate, through his administrator, for injuries she claimed resulted from Wigley’s negligent operation of his vehicle. She served Shelter Mutual Insurance Company (“Shelter”) as the uninsured motorist carrier. The suit against Wigley’s estate went into default, and Shelter defended the suit in its own name. See OCGA § 33-7-11 (d).

Prior to trial, Shelter moved to amend the pretrial order and amended its answer, admitting that Bryant was an insured under the policy, that Wigley was an uninsured motorist, and that the automobile accident was a covered policy event. Shelter also filed a motion in limine to exclude evidence of Wigley’s intoxication from the trial. The court allowed Shelter to admit its liability under the policy, but denied the motion in limine regarding Wigley’s intoxication.

In Case No. A95A2793, Sandra Goolsby, Bryant’s sister, sued Wigley for injuries she claimed from his negligence and served Shelter as the uninsured motorist carrier. As in Bryant’s case, the suit against Wigley’s estate went into default, and Shelter answered the complaint in its own name. Shelter filed a motion to amend its answer to admit its contractual liability and a motion in limine regarding Wigley’s intoxication, which the court denied.

The trials were conducted separately. At both trials, the investigating officer of the collision testified regarding the accident and testified to Wigley’s blood alcohol level at the time of the accident. In both cases, a medical report confirming Wigley’s blood alcohol content was also admitted. Bryant testified at both trials regarding the manner in which the accident occurred.

In Case No. A95A2167, there was evidence that, as a result of the accident, Bryant suffered an avulsion fracture in her right foot and incurred medical bills of $2,355. Medical testimony established that, as a result of the accident, Bryant suffered permanent nerve impairment and developed arthritis in her foot. Bryant testified that at the time of the trial, nearly four years after the accident, she still suffered pain from her injury.

In Case No. A95A2793, Goolsby testified that she suffered neck and back injuries in the accident and incurred $4,500 in medical bills. Goolsby testified that because of her injuries, she went to physical therapy 51 times and that she continued to have neck pain. Medical testimony was consistent with Goolsby’s complaints.

At the conclusion of the evidence in both cases, the court charged the jury that because the complaint against Wigley’s estate had gone into default, the estate had admitted Wigley’s responsibility for the wreck and for any of the plaintiffs’ injuries as proven by a preponderance of the evidence. The court further charged the jury that Shelter had admitted that it was responsible for the damages proximately caused by Wigley’s wrongful acts in operating his car. Accordingly, the court directed a verdict on fault and responsibility against both of the defendants, and stated that since fault and responsibility were not at issue, the jury’s sole duty was to determine the amount of damages proximately caused by the accident. The court then charged the jury on proximate cause, compensatory damages, and damages for pain and suffering. The court charged that the award of damages was to compensate the plaintiff and not to unreasonably burden the defendant. No charge regarding the evidence on alcohol was given.

In Case No. A95A2167, the jury returned a $95,000 verdict for Bryant. In Case No. A95A2793, the jury returned a $60,000 verdict for Goolsby. Here, Shelter raises the same enumerations of error in both cases, and we will address them together.

1. In its first and second enumerations, Shelter claims error in the trial court’s refusal to exclude evidence of Wigley’s intoxication. First, Shelter claims the court erred in denying its motion in limine. Secondly, Shelter argues that the court erred in permitting the investigating officer to testify to Wigley’s blood alcohol level and allowing into evidence a report corroborating this testimony. Shelter argues that because the trial involved only causation and damages, evidence regarding Wigley’s intoxication was unduly prejudicial. Bryant and Goolsby contend that this evidence was relevant and admissible to give context to the accident and to establish the speed and force of the vehicles at the time of impact.

In resolving this issue, we are first mindful that an insurance company is not liable to its insureds under its uninsured motorist coverage for punitive damages. State Farm &c. Ins. Co. v. Weathers, 260 Ga. 123 (392 SE2d 1) (1990); Roman v. Terrell, 195 Ga. App. 219 (393 SE2d 83) (1990). The Roman court explained: “(a)llowing punitive damages to be awarded against an insurance company can serve no deterrent function because the wrongdoer is not the person paying the damages. . . .” Id. at 222. Accordingly, Bryant and Goolsby did not seek punitive damages in these cases.

Clearly, evidence regarding alcohol consumption is admissible when punitive damages are sought. Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985); see generally OCGA § 51-12-5.1. That evidence of alcohol consumption is an aggravating circumstance in awarding punitive damages does not mean that such evidence is automatically inadmissible if punitive damages are not sought, however. See, e.g., Beal v. Braunecker, 185 Ga. App. 429, 430 (1) (364 SE2d 308) (1987) (alcohol consumption does not mandate finding that aggravating circumstances existed).

In these cases, there was no error in admitting this evidence since Wigley’s alcohol consumption was inextricably linked to the accident, and to Wigley’s negligence. Bryant’s testimony regarding the accident was that Wigley was traveling more than twice the speed limit, that he lost control of the vehicle, crossed over the centerline, and ricocheted off a tree. In both cases, photographs of the vehicles at the accident scene were admitted into evidence. All of this evidence was relevant to the jury’s inquiry because although the court directed a verdict on negligence, the elements of proximate cause and damages were still subject to proof. See Harrison v. Feather, 211 Ga. App. 468 (1), 469 (439 SE2d 706) (1993) (admission of liability distinguishable from admission of negligence); compare Dilworth v. Boeckler, 187 Ga. App. 241 (370 SE2d 17) (1988).

In both trials, the court instructed the jury that the plaintiff was entitled “to be compensated for all such elements of damage as you determine to have been a direct result of the wrong in this case. You should award such an amount as will reasonably compensate her as far as money can do it for the injuries which she has sustained as a proximate result of any of the defendants’ conduct.” Wigley’s “wrong” or “conduct” necessarily involved his alcohol consumption. See, e.g., Cheevers v. Clark, 214 Ga. App. 866, 868 (3) (449 SE2d 528) (1994) (“ ‘the conduct of the driver in hitting, running, and failing to stop, etc., is a circumstance which may be considered [in the liability phase of a bifurcated proceeding], in connection with his other acts preceding the injury, as tending to establish his conduct in causing the injury as being negligence.’ [Cit.]”). The jury was entitled to consider Wigley’s entire act of negligence in determining what caused Bryant’s and Goolsby’s injuries.

Our decision is supported by OCGA § 40-6-392 (a), which provides: “[u]pon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood . . . shall be admissible.” (Emphasis supplied.) In the absence of statutory language indicating that cases involving uninsured motorist coverage are exempt from these provisions, we conclude that the trial court did not err.

2. Shelter claims that the verdicts were excessive, as a matter of law. We disagree.

“On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. Since the verdict was within the range of damages established by the evidence, there was no error.” (Citations and punctuation omitted.) Crawford v. Presbyterian Home, 216 Ga. App. 54, 56 (5) (453 SE2d 480) (1995); see also Whitley v. Ditta, 209 Ga. App. 553, 554-555 (2) (434 SE2d 108) (1993).

Judgments affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

1. The problem here is that there was not a clear distinction made between an admission of negligence and an admission of liability. Admitting negligence means that defendant admits there was a legal duty and a breach, the first two elements of a tort; admitting liability goes one step further and admits there was proximate cause, i.e., that defendant is liable for damages, whatever they are. Defendant admits duty, breach, and proximate cause. Harrison v. Feather, 211 Ga. App. 468 (1) (439 SE2d 706) (1993).

An admission of liability would make Wigley’s intoxication irrelevant because the jury would not have to decide whether his condition caused or contributed to the collision rather than its occurring due to some other form of negligence. The whole scenario and course of the event could be explained to the jury, absent the evidence of intoxication, without jeopardizing their understanding of what happened. Why it happened, which examines the cause of defendant driver’s actions and his vehicle, is not related to damages, which examines the extent of plaintiffs’ injuries and what amount is necessary to compensate for them.

In Bryant’s case, Shelter admitted “liability” and said only the question of damages remained. Plaintiff’s counsel misunderstood and took it to mean only an admission of negligence. The court agreed that the case was to be tried only on the question of damages. That assumes an admission of proximate cause. Defendant made that distinction regarding the other two cases, where there was “at least an argument that at least a portion of the injury that was claimed did not relate to the automobile accident.” The court ruled that, since the jury would need to know the way the defendant driver’s car was swerving over the road from one side to the other and the crash occurred, i.e., what happened, the evidence of intoxication could be admitted to explain “why” these events occurred.

At the conclusion of the evidence presentation, the court instructed the jury: “I have directed a verdict against the defendants and in favor of the plaintiff establishing fault and responsibility as against both of the defendants. In other words, fault and responsibility will not be a concern in your deliberations and as such, I charge you that it will be your sole duty in your deliberations to determine the amount of damages, if any, proximately caused to the plaintiff as a result of her injury suffered in the motor vehicle collision in question . . . the question of damages [is] really the only issue that you have to decide in this case.” Defendant Shelter does not challenge the court’s charge.

The same general course transpired in Goolsby’s case.

Although the evidence of intoxication was not a necessary ingredient for the jury’s deliberation on the sole issue it had to decide in each case (damages), and it may have been better to omit it as irrelevant and arguably inflammatory due to the general public appreciation of the dangers of driving with one’s ability impaired by alcohol, I agree that it was not an abuse of discretion such as to require a new trial. OCGA § 40-6-392 (a) expressly authorizes the admission of alcohol tests as evidence in civil and criminal actions, although the authorization relates only to instances in which the evidence is relevant to a determination of an issue in the case. Here it was of marginal utility.

Decided March 8, 1996.

Karsman, Brooks & Callaway, D. Campbell Bowman, Jr., for appellant.

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

2. I do not read Beal v. Braunecker, 185 Ga. App. 429, 430 (1) (364 SE2d 308) (1987), as supporting the proposition that evidence of alcohol consumption is admissible in cases in which punitive damages are not sought. Although I agree with the proposition, such evidence being admissible whenever it is relevant, the plaintiff in Beal did seek punitive damages, which were in issue.


text:
    A95A2244.
    COOPER v. THE STATE.
    (469 SE2d 790)
   Pope, Presiding Judge.

Defendant Bernard Cooper was indicted for rape, aggravated assault and kidnapping. A jury convicted him of kidnapping, but was unable to reach a unanimous verdict on the rape and aggravated assault charges. Consequently, the trial court declared a mistrial as to those two charges. Defendant appeals his kidnapping conviction on the ground that he was denied his right to a fair and impartial jury based on the trial court’s decision to disallow two of defendant’s peremptory jury challenges. We reverse.

During jury selection, defendant, who is African-American, used ten of his eleven peremptory strikes to excuse white venirepersons from the jury. The State objected to these strikes on the ground that they were racially discriminatory in nature. See Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 120 LE2d 33) (1992). The trial court determined, and defendant does not dispute, that the State made a prima facie showing of racial discrimination. Thus the trial court required defendant to articulate racially neutral reasons for the peremptory challenges. See State v. Carr, 262 Ga. 893 (427 SE2d 273) (1993). Defendant contends that his explanations for striking jurors Flemming and Zavakos were race-neutral, and that the trial court erred in ruling to the contrary and seating these two jurors on the jury. We agree.

During voir dire, Flemming indicated that his adopted grandson had been convicted of a felony. Upon questioning by the State, Flemming stated that he thought that his grandson had been treated fairly by authorities, and that he could be a fair and impartial juror. In articulating reasons for excusing Flemming, defendant cited Flemming’s prior family involvement with the criminal justice system. The trial court refused to accept this explanation as being racially neutral and disallowed the strike.

In articulating reasons for striking Zavakos, defendant cited Zavakos’ prior service on a jury and the fact that she had looked at the prosecution in a very accepting way during questioning on voir dire. The trial court rejected defendant’s explanation specifically finding that the explanation was not race-neutral.

After the opponent of a peremptory strike demonstrates a prima facie case of racial discrimination, the burden is shifted to the strike’s proponent to articulate a racially neutral explanation for the strike. Hernandez v. New York, 500 U. S. 352, 358-359 (111 SC 1859, 114 LE2d 395) (1991). “At this step of the inquiry, the proponent of the strike is not required to enunciate ‘an explanation that is persuasive, or even plausible.’ Purkett v. Elem, [514] U. S. _ (115 SC 1769, 131 LE2d 834) (1995). . . . Rather, a neutral explanation . . . means an explanation based on something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the . . . proponent’s explanation, the reason offered will be deemed race neutral. Hernandez, supra at 360. Furthermore, although the proponent of the strike must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges,’ Batson [v. Kentucky, 476 U. S. 79, 98, n. 20 (106 SC 1712, 90 LE2d 69) (1986)], (citation omitted), ‘(w)hat is meant by a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection.’ Purkett, 115 SC at 1771.” (Indentation omitted.) Jackson v. State, 265 Ga. 897, 898-899 (463 SE2d 699) (1995).

In this case, the explanations defendant gave for striking Flemming and Zavakos were racially neutral. Flemming’s prior involvement with the criminal justice system “is not a characteristic that is peculiar to any race ...” nor is Zavakos’ prior jury service or perceived partiality. Purkett, 115 SC at 1771. Moreover, defendant’s specific neutral explanations were “related to the particular case to be tried.” See Batson, 476 U. S. at 98. Flemming’s prior involvement with the criminal justice system, whether positive or negative, could affect his impartiality as a juror at defendant’s trial. So could Zavakos’ prior jury service and any alleged favoritism she might demonstrate toward the prosecution. Consequently, we conclude that the trial court erred by not accepting defendant’s explanations as race-neutral.

Decided March 8, 1996.

Emerson Carey, Jr., for appellant.

Lewis R. Slaton, District Attorney, Donald P. Geary, Carl P. Greenberg, Assistant District Attorneys, for appellee.

“Assuming the trial court recognized [that defendant’s] explanation^ were] facially race-neutral, but refused to accept [them] as race-neutral because it concluded that the explanation [s were] pretextual, the court misapplied Batson jurisprudence. Only after the opponent of a strike establishes a prima facie case of racial discrimination (step one), and the proponent thereof tenders a race-neutral explanation (step two), should the trial court evaluate the persuasiveness of the justification for exercising the strike and determine whether the opponent of the strike has carried his burden of proving purposeful discrimination (step three).” (Citation and punctuation omitted.) Jackson, 265 Ga. at 899. “At [step] 3, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. Purkett, 115 SC at 1771.” (Punctuation and indentation omitted; emphasis in original.) Id.

Based on the holdings in Purkett and Jackson, we conclude that the trial court prematurely evaluated the persuasiveness of defendant’s explanations and impermissibly placed the ultimate burden of persuasion on the proponent of the strike. Instead, “[t]he trial court should have accepted [defendant’s] explanation [s] as race-neutral, then . . . determined whether the opponent of the strike, the State, had established that [defendant’s] explanation [s were] motivated by discriminatory intent.” Id.

In light of the above, defendant is entitled to a new trial. Id. at 900.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2253.
    NORTHWEST GEORGIA REGIONAL HOSPITAL et al. v. WILKINS.
    (469 SE2d 786)
   Beasley, Chief Judge.

Defendants Georgia Department of Human Resources (“DHR”) and Northwest Georgia Regional Hospital (“NGRH”), a psychiatric facility operated by DHR, appeal an order denying their motion for summary judgment against the administrator of the estate of Willie Lloyd Wilkins on the grounds that they are immune under the doctrine of sovereign immunity, Ga. Const. 1983, Art. I, Sec. II, Par. IX and OCGA § 50-21-20 et seq., and that they are not liable for the actions of their employees who are themselves immune under OCGA § 37-3-4. Because our ruling on these grounds is dispositive, we do not address others.

The evidence is viewed in favor of the non-movant Wilkins, and he is given the benefit of every doubt and every reasonable inference in his favor on the motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The record reveals that Willie Lloyd Wilkins had spent much of his life in professional care because he was mentally handicapped. He was admitted to NGRH for the fourth time on July 30, 1990, and was assigned to a treatment team chaired by a psychiatrist. Besides being diagnosed with organic mental disorder, he also had mental retardation, epilepsy, cardiovascular disease, thyroid problems, testicular atrophy, hiatal hernia, and chronic bronchitis. He was agitated on occasion and combative and would steal food, drink, and tobacco from other patients.

After determining in April 1992 that Wilkins’ condition had improved and that he had received maximum benefit from his stay at NGRH, the treatment team considered Wilkins to be a suitable candidate for discharge from NGRH and for admission into a personal care home. He was discharged on April 16 with a month’s supply of eight medications, including Digoxin for his heart condition. He was transported to Bobbie Moore Community Care Motel, where he stayed until his death on July 31, 1992.

Bobbie Moore, another defendant in this action, maintained two facilities in Fannin County. An employee from NGRH inspected one of the facilities to determine if it would be suitable for Wilkins and was shown a permit to maintain and operate a family personal care home. However, Wilkins was placed in Bobbie Moore’s second facility. Although this facility had not been issued an operating permit, it was being operated with the knowledge and permission of the Acting Director of the DHR’s Personal Care Home Program, Environmental Health Section. According to him, “[t]his facility was offering all the services that meet the definition of a personal care home” under OCGA § 31-7-12. There were some complaints made by families of residents of the second facility, but DHR was not made aware of any problems until after Wilkins’ death.

Wilkins’ brother, who was the administrator of the estate (whom we also refer to as “Wilkins”) brought suit for wrongful death under 42 USC §§ 1395dd and 1983, the Georgia Tort Claims Act, and for medical malpractice. The court granted summary judgment to defendants on the two federal claims, which are no longer at issue.

1. Any discussion of sovereign immunity must begin with the relevant provisions of the 1983 Georgia Constitution, as amended in 1991. Art. I, Sec. II, Par. IX (e) provides, “Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Paragraph IX (a) explains that “[t]he Generar Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act.” The legislature did enact such a law, which is codified at OCGA § 50-21-20 et seq.

OCGA § 50-21-23 provides, “(a) The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. . . . (b) The state waives its sovereign immunity only to the extent and in the manner provided in this article.”

One of these exceptions is found in OCGA § 50-21-24: “The state shall have no liability for losses resulting from: (1) an act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid.” The trial court determined that whether or not employees of NGRH had exercised due care in discharging Wilkins was a jury question and thus denied defendants’ motion for summary judgment on the issue of sovereign immunity.

Subsection (2) of OCGA § 50-21-24 insulates the state from liability for “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-22 prescribes the definition of “discretionary function or duty” as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.”

A sizable body of case law developed prior to the enactment of the 1991 amendment contrasting the “discretionary” acts of a state employee, for which official immunity applied to protect the employee from personal liability, and “ministerial” acts of an employee, for which the employee was potentially personally liable. The cases held that “ ‘[a] discretionary act . . . calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cits.]” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). “[T]he intent of the [1991 constitutional] amendment and the Tort Claims Act enacted under its authority is to redraw and redefine the terms of the State’s waiver of sovereign immunity.” Gilbert, supra, 264 Ga. at 748. Although these cases may provide some guidance, the statutory definition of “discretionary” is narrower than that of the earlier case law, and each alleged tortious act of a state employee must be analyzed in accordance with it. See Hemak v. Houston County School Dist., 220 Ga. App. 110 (469 SE2d 679) (1996); but see Christensen v. State, 219 Ga. App. 10, 12 (464 SE2d 14) (1995).

Under paragraph IX (d) of the 1991 constitutional amendment, “all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions,” except as specifically provided by the General Assembly in a State Tort Claims Act. OCGA § 50-21-25 (a) provides: “[The State Tort Claims Act] constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.”

The legislative intent of the Tort Claims Act is expressed in OCGA § 50-21-21 (b): “[T]he proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets. Consequently, it is declared to be the public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.” The Supreme Court stated in Gilbert, supra at 753, “We interpret the term ‘official functions’ to mean any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under this definition, the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts, which is consistent with prior law. This interpretation comports with the purpose of providing immunity from personal liability to government employees who work in positions where they make policy or exercise discretion.” See also City of Atlanta v. McKinney, 265 Ga. 161, 166 (454 SE2d 517) (1995).

Gilbert does not address whether OCGA §§ 50-21-21 (b) and 50-21-25 (a) in fact declare that state employees are liable only for torts committed outside the scope of their employment, regardless of the language of subsection (d) of the 1991 amendment, and we decline to do so here, since no individual officer is named in the suit. See OCGA § 50-21-25 (b).

Even under the narrower statutory definition of “discretionary function,” the acts of NGRH and DHR fall within its ambit. OCGA § 37-2-1 provides that it is the State’s policy that mentally handicapped persons be cared for by the State. OCGA §§ 31-7-12 and 31-7-12.1 define personal care homes and describe licensing procedures. Whether a mental patient is a candidate for discharge from a hospital to a personal care home when the treatment team determines that expensive hospital care is no longer warranted necessarily requires the team, implicitly or explicitly, to weigh possibly competing economic and social policy considerations. Summary judgment on this issue should have been granted to defendants.

2. Wilkins maintains that even if the hospital’s actions can be viewed as discretionary under the Tort Claims Act, defendants have failed to prove that they exercised the requisite good faith required under OCGA § 37-3-4, and thus the trial court’s determination that this was a jury question should be affirmed. OCGA § 37-3-4 provides that “[a]ny physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state . . . who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.” But OCGA § 37-3-4 is inapplicable, because the legislative intent, as articulated in OCGA § 50-21-25, supra, is clear. By enacting the Tort Claims Act, the General Assembly eliminated any other avenue for pursuing the state in a tort action. Compare Roberts v. Grigsby, 177 Ga. App. 377, 387 (1) (339 SE2d 633) (1985) (Beasley, J., concurring specially).

Decided March 8, 1996

Michael J. Bowers, Attorney General, William C. Joy, Patricia B. Downing, Senior Assistant Attorneys General, Womack & Rhyne, Ronald R. Womack, for appellants.

Coppedge, Goddard & Leman, Joseph T. Leman, Ralston & Painter, David E. Ralston, for appellee.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       For the history of the development of sovereign and official immunity and the distinction between the two, see Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994).


author: Ruffin, Judge.

text:
    A95A2331.
    THE STATE v. WILSON et al.
    (469 SE2d 804)
   Ruffin, Judge.

The State appeals the trial court’s dismissal of aggravated assault charges against Dolphus Wilson, Sr. and Dolphus Wilson, Jr. because venue was improper.

The altercation giving rise to the charges against the Wilsons occurred on a bridge that spanned the St. Marys River, which separates Charlton County, Georgia and Nassau County, Florida. The only material conflict in the evidence relevant to the question of venue was where on the bridge the fight occurred. At the hearing on the motion to dismiss, the victim testified that the fight occurred approximately 50 feet from the Georgia side of the bridge. Dolphus Wilson, Sr. testified that the fight took place on the Florida side of the bridge, on the spot where the victim’s hat was discovered after the fight. Wilson referenced the hat’s location by counting the lines in the pavement on the bridge. According to Wilson, the hat, and therefore the fight, was located 14 veins from the Florida side and 12 veins from the Georgia side. Using a certified Georgia Department of Transportation plat of the bridge, Wilson identified the location of the fight on the bridge plat by counting the corresponding veins. The plat was admitted without objection but was not transmitted with the record on appeal. At the end of the hearing, however, it appears that with the aid of the plat, Wilson’s attorney pointed out to the trial court that the location Wilson identified was in Nassau County above dry land. Counsel argued that if the fight had occurred immediately below the bridge, in the same spot, venue and jurisdiction would unquestionably lie in Nassau County, Florida. The trial court then granted the motion to dismiss due to improper venue.

The State contends that because the offense was committed on a Georgia boundary, OCGA § 17-2-3 dictates that proper venue is in Charlton County. The State also argues that OCGA § 17-2-2 (g), the venue provision applicable to crimes committed on water boundaries, makes no distinction between crimes occurring closer to one river bank than another on rivers which separate Georgia from neighboring states. The State maintains that as long as the victim was beaten anywhere on the river, venue lies in Charlton County and that merely elevating the fight onto a bridge over the river should not change venue.

Decided March 8, 1996.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellant.

Randall C. Sorenson, Nelson Dupree, for appellees.

“Determinations of fact, including credibility issues are questions which must be resolved by the fact finder, and appellate courts must accept such determination on review unless they are clearly erroneous. [Cit.]” Presley v. State, 177 Ga. App. 611, 613 (1) (340 SE2d 253) (1986). The evidence authorized a finding that the fight occurred on a portion of the bridge which is over land and within the state of Florida. Under these circumstances, we cannot say that the trial court clearly erred in dismissing the charges against the Wilsons due to improper venue.

Judgment affirmed.

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


text:
    A95A2401.
    CHAPMAN et al. v. AUTO OWNERS INSURANCE COMPANY.
    (469 SE2d 783)
   Ruffin, Judge.

Auto Owners Insurance Company (“Auto Owners”) sued Robert Chapman d/b/a Chapman Electrical Company (“Chapman”) for damages from a fire allegedly caused by Chapman’s employees. Chapman moved in limine for the court to dismiss Auto Owners’ case or prevent Auto Owners’ experts from testifying about certain evidence that Auto Owners destroyed which was essential to Auto Owners’ theory of causation. We granted Chapman’s petition for interlocutory appeal to determine an issue of first impression: whether the trial court’s only means to address the destruction of evidence was to charge the jury that spoliation of evidence raises a rebuttable presumption against the spoliator. Chapman contends the court had the option of dismissing Auto Owners’ case or preventing Auto Owners’ experts from testifying about the destroyed evidence. Because we find that in the appropriate circumstances, a trial court may remedy the prejudice from such destruction by dismissing the case or excluding testimony about the evidence, we reverse and remand for a determination as to whether such remedy is warranted in this case.

In late January 1992, a fire occurred at Buckle’s hardware store where employees of Chapman Electrical had been working. Auto Owners insured the store and paid over $300,000 for the store’s losses. Auto Owners then hired Applied Technical Services (“ATS”) to investigate the cause of the fire. An ATS employee removed various wires, circuit breakers, and other electrical parts from the store for testing and gave them to an ATS consultant for testing. On February 3, 1992, Chapman’s insurer, American Liberty, wrote ATS requesting inspection of the items ATS removed from the store for its investigation. American Liberty claims it received no response to the request, and ATS contends it offered access to the items contingent upon interviewing Chapman’s employees. On March 9, 1992, ATS concluded that the fire was caused because one of Chapman’s electricians negligently cut into a live circuit which produced sparks and ignited the surrounding area. On April 5, 1993, the instant action was filed, and ten days later, on April 15, ATS ordered the destruction of wiring, circuit breakers, and other items it removed for testing.

Chapman moved the trial court to either dismiss the lawsuit or preclude Auto Owners’ experts from testifying about the destroyed evidence. The court held that under Georgia law, its only option was to charge the jury on the negative presumption created when evidence is spoliated, OCGA § 24-4-22, a remedy Chapman contends is inadequate to ameliorate the prejudice it faces. Chapman cites no Georgia cases and we have found none which address any other remedy available to the trial court when evidence has been destroyed. However, we find persuasive the reasoning in cases from foreign jurisdictions which have upheld the exclusion of testimony about the destroyed evidence in circumstances such as those presented by this case. Those decisions reason that a jury charge is insufficient to counter the prejudice resulting to a party who, because of the destruction of evidence, was unable to put on a full defense of its case.

For example, in Uniguard Security Ins. Co. v. Lakewood Engineering &c. Corp., 982 F2d 363 (9th Cir. 1992), a sailboat burned and Uniguard, the boat’s insurer, sued the manufacturer of a space heater which it claimed was responsible for the fire. Uniguard’s experts examined the boat and heater, performed tests, and took photographs. Id. at 365. Uniguard then destroyed the heater and sold the boat for salvage. Uniguard later sued the manufacturer of the heater. The trial court found that Uniguard’s “ ‘destruction of key evidence renders a full defense [by the space heater manufacturer] impossible’ ” and therefore precluded any testimony from Uniguard’s experts. Id. at 368. In upholding the district court’s exclusion of Uniguard’s evidence, the Ninth Circuit Court of Appeals began by recognizing a trial court’s inherent discretion “to make . . . evidentiary rulings conducive to ... a fair and orderly trial. Within this discretion lies the power to exclude testimony of witnesses whose use at trial would unfairly prejudice an opposing party. [Cit.]” (Punctuation omitted.) Id. See in this regard, CRS Sirrine v. Dravo Corp., 213 Ga. App. 710, 713 (1) (445 SE2d 782) (1994) (trial court has inherent power to control course of case, including excluding relevant evidence if its prejudice outweighs its probative value). The Uniguard court went on to hold that because there was no dispute that Uniguard destroyed the evidence and that the defendant was denied the opportunity to inspect that evidence, the trial court was authorized to determine that a rebuttable presumption against Uniguard was insufficient to cure the prejudice. Id. at 369. See also Headley v. Chrysler Motor Corp., 141 FRD 362 (D. Mass. 1991) (appropriate to preclude expert’s opinion testimony based on destroyed evidence because opposing party was then prevented from having its own expert investigate cause of fire); Barker v. Bledsoe, 85 FRD 545 (W.D. Okla. 1979) (to avoid trial by ambush, court is required to ameliorate advantage gained by destroying evidence and rebuttable presumption insufficient to do so).

Auto Owners contends that exclusion of its expert’s testimony is unwarranted because photographs of the destroyed evidence are an adequate substitute for the actual evidence and because the destruction of the evidence was not malicious. Chapman, however, disputed this contention and filed the affidavit of an engineer it hired to investigate the cause of the fire. The affidavit lists ten different tests the engineer would have performed on the wires, circuit breakers, and other parts which were destroyed to rebut Auto Owners’ theory of causation. Because the engineer was unable to perform these tests and because the causation opinion the ATS expert rendered is based almost entirely upon his examination and testing of the destroyed evidence, we do not find the photographs of the evidence are an adequate substitute for the original evidence. See Nally v. Volkswagen of America, 539 NE2d 1017 (Mass. 1989), in which the Massachusetts Supreme Court held that the physical items themselves, in the precise condition they were in immediately after the incident, would be far more useful and persuasive to the jury than photographs. Id. at 1021. Based on these factors and the fact that it would be unfair to allow an expert to place himself “in the position of being the only expert with first-hand knowledge of the physical evidence on which expert opinions as to . . . causation may be grounded,” the court held the trial court would be authorized to exclude any testimony based on the destroyed evidence. Id. See also State Farm &c. Co. v. Frigidaire, 146 FRD 160 (N.D. Ill. 1992) (dismissal of case warranted because photographs of destroyed evidence which supported plaintiff’s theory of fire’s cause were an inadequate substitute for evidence in its original post-fire condition).

Similarly, in Northern Assurance Co. v. Ware, 145 FRD 281 (D. Me. 1993), the court held that although a small amount of evidence from the fire at issue remained, because the defendants were unable to examine the electrical system and other evidence upon which plaintiff’s expert buttressed his causation opinion, “[t]he prejudice to constructing a defense . . . cannot really be cured.” Id. at 283. Relying on Headley, supra, the court considered the following five factors in reaching its decision to exclude testimony about the evidence: (1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Ware, supra. The court precluded the plaintiff’s expert from testifying and did so despite the fact that there was no evidence that the destruction was malicious: “This is not a case in which the conduct of a lay person, inexperienced in . . . litigation, has resulted in the destruction of evidence. This is a case brought by an insurance carrier. . . . Insurance companies are no strangers to litigation, and it seems [very] likely that Plaintiff had litigation in mind when, very soon after the fire, it had its own expert examine the site. . . . Knowing what it did [after its investigation], Plaintiff was palpably remiss in failing to make reasonable arrangements within the range of possibility to preserve the evidence. ... It could have made the necessary arrangements to prevent destruction . . . until a period of time after commencement of [the] suit to afford any diligent defendants an opportunity to [investigate]. . . .” (Emphases supplied.) Id. at 283-284.

Finally, the court noted that “dismissal should be reserved for cases where a party has maliciously destroyed relevant evidence with the sole purpose of precluding an adversary from examining that relevant evidence.” Id. at 282, n. 2.

Based on the foregoing authority, we find that in certain circumstances, allowing the case to proceed or an expert to testify about destroyed evidence which the opposing party is unable to test may result in trial by ambush which cannot be cured by a jury instruction. Accordingly, we conclude that where a party has destroyed evidence which may be material to ensuing litigation, the trial judge may be authorized to dismiss the case or prevent that party’s expert witnesses from testifying in any respect about the evidence. Whether those remedies are warranted in this case is a matter for the trial court to decide. Auto Owners argues they are not warranted because it destroyed the evidence inadvertently. However, the deposition testimony which it cites in support of the contention that the destruction was not intentional is not included in the record. Furthermore, the plaintiffs good or bad faith is an issue for the trial court’s consideration. Id. Auto Owners also argues that exclusion of testimony is unwarranted because both parties had access to the evidence in the 14 months that elapsed between the fire and the destruction of the evidence. Compare Uniguard, supra. We are not persuaded by this argument because Auto Owners had not yet filed suit during that period of time. However, this is again a matter for the trial court, and we therefore remand for the court’s determination as to Auto Owners’ good or bad faith, whether it should have made appropriate arrangements to prevent the destruction until a reasonable period of time after it filed suit, and whether the prejudice to Chapman can be cured. Ware, supra.

Decided March 8, 1996.

Beck, Owen & Murray, Richard L. Collier, for appellants.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, for appellee.

Judgment reversed and remanded with direction.

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

       The decision in Uniguard was predicated upon this inherent power, not Fed. R. Civ. P. 37.


text:
    A95A2570.
    CITY OF LAFAYETTE v. MORGAN.
    (469 SE2d 532)
   Pope, Presiding Judge.

We granted this interlocutory application to review the superior court’s denial of the City of Lafayette’s motion for summary judgment arising from the following property conveyance.

Milford Morgan executed a warranty deed to the City of Lafayette on November 1, 1992; the deed reflected that the grantors conveyed to the City a right-of-way in certain property around “Boy Scout Road.” It is undisputed by the parties that the plat attached to the deed was incorrect and that the deed omitted any description of an eastern boundary to the property.

After this transference, K-Mart became interested in buying 85 feet of the easternmost part of Morgan’s property. In order to facilitate the sale to K-Mart, the City rerecorded the warranty deed with a corrected plat map. A quit-claim deed by which the City purported to reconvey 85 feet of the previously deeded property back to Morgan was filed on August 9, 1993.

Also on August 9, 1993, Morgan received a letter from the City attorney, which stated: “[o]n November 1, 1992, you, along with others, executed a deed to the City regarding Boy Scout Road. The eastern most 297.55 feet of said road came exclusively from certain property owned by you via a limited warranty deed. . . . The City hereby notifies you of the availability of the eastern most eighty-five feet of the property conveyed by you in the aforesaid November 1, 1992 deed. ... You are hereby given the opportunity to purchase from the City the property described in EXHIBIT A hereto for the total consideration of One Dollar ($1.00) and other good and valuable consideration. ... If you are desirous of purchasing the subject property, as stated above please sign and date a copy of this letter and return immediately to me. Should you have any questions, please advise.”

On the same date, Morgan signed both pages of the letter and returned it to the City attorney’s office. Although Morgan was aware that the City claimed it had an easement, Morgan testified that he relied on the November warranty deed and plat in believing that no such easement existed. On September 13, 1993, Morgan sold the 85 feet of property to K-Mart for $30,000.

Nine months later Morgan sued the City and a contractor, who is no longer a party to the action, for fraud and trespass, essentially alleging that the City fraudulently created a right-of-way across his property. The complaint alleged that at the time of the first meeting regarding the City’s acquisition of the easement, Morgan was told that the easement did not go through his property and that the plat which was attached to the deed confirmed this understanding.

1. In four enumerations of error, the City claims that the superior court erred in denying its motion for summary judgment. In addition to general arguments, the City argues that the court erred in not finding that Morgan had full knowledge by August 9, 1993, of the material facts regarding the right-of-way and that Morgan accepted the benefits of any unauthorized act, thereby ratifying any such action.

Upon full review of the record, it appears that the superior court correctly determined that factual issues remain. Citing numerous cases, including Johnson v. Willingham, 212 Ga. 310 (92 SE2d 1) (1956), the City argues that the metes and bounds description in the November deed prevailed over the incorrect plat. The truth of this proposition is irrelevant, because both parties here acknowledge that the original deed omitted an eastern boundary description of the property. Accordingly, the dispute here involves an area which was not fully described in the deed. In light of this indefinite description and the inaccuracy of the plat, there is a factual issue as to whether the original conveyance was void. See generally Smith v. Hooker/Barnes, Inc., 253 Ga. 514, 515 (3) (322 SE2d 268) (1984); Sanders v. Bryant, 240 Ga. 825 (242 SE2d 717) (1978). If the original conveyance was void, the attempted reconveyance was invalid, and there was no error in the court’s denial of the motion.

Decided March 8, 1996.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, I. Stewart Duggan, for appellant.

Albert C. Palmour, Jr., for appellee.

2. The City also argues that the trial court erred in failing to grant its motion for summary judgment on the punitive damages claim, since punitive damages are improper against a governmental entity. We agree. “[A]n award of punitive damages against a governmental entity is against public policy and is thus impermissible as a matter of law. MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991).” Groves v. City of Atlanta, 213 Ga. App. 455, 458 (2) (444 SE2d 809) (1994).

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A95A2663.
    In the Interest of T. C. S., a child.
    (469 SE2d 802)
   Andrews, Judge.

T. C. S., age 15, was charged with aggravated child molestation, sexual battery, and delinquent act/violation of supervision. We granted his application for interlocutory appeal from juvenile court to determine whether the State failed to comply with the time constraints for speedy trial mandated by OCGA § 15-11-21 (c) (1).

T. C. S. was taken into State custody on March 28, 1995, and charged with the above-stated offenses. Under OCGA § 15-11-5 (b) (2) (A) (v) the Sumter County Superior Court had exclusive jurisdiction over T. C. S. because he was charged with aggravated child molestation. After T. C. S. could not produce bond, he remained at the Albany Regional Youth Development Center until May 24, 1995.

“Before indictment, the district attorney may, after investigation and for extraordinary cause, decline prosecution in the superior court of a child 13 to 17 years of age alleged to have committed an offense specified in subparagraph (A) of this paragraph. Upon declining such prosecution in the superior court, the district attorney shall immediately withdraw the case and lodge it in the appropriate juvenile court for adjudication.” OCGA § 15-11-5 (b) (2) (C). The district attorney, John Parks, decided not to prosecute T. C. S. as an adult due to his age and physical size. So on May 15, 1995, he dictated a letter directed to David Dunaway, senior court service worker, informing him of his position on T. C. S.’s case. On May 18, 1995, after making his final decision, Parks signed and mailed the letter to Dunaway so that Dunaway “could see that the transfer of jurisdiction was properly documented, pursuant to OCGA § 15-11-5 (b) (2) (C).” A delinquency petition was filed in Sumter County Juvenile Court on May 23, and a hearing was specially set for May 24, within 72 hours.

At the May 24 hearing, T. C. S. moved to dismiss the delinquency petition against him claiming he had been detained for longer than 72 hours without a detention hearing in violation of OCGA § 15-11-21 (c) (1). Dunaway testified that he was the only person authorized to open mail from the district attorney’s office and because he had been out of town at a conference for a few days, a delay in opening the district attorney’s letter may have resulted. Dunaway testified that upon his receipt of the letter he immediately proceeded to set up a hearing. After hearing testimony, the juvenile court granted T. C. S.’s motion and dismissed the petition because it appeared that the detention hearing was not held within 72 hours. Immediately following the hearing, the State’s attorney instructed the Sumter County Sheriff’s Department to release T. C. S. The State moved for reconsideration to reinstate the delinquency petition on the ground that the applicable time limit did not begin on May 15, the day the district attorney’s letter was dictated, or on May 18, the day the letter was postmarked, but rather it began on May 23, the date the petition was filed, because the juvenile court did not obtain jurisdiction over T. C. S. until that date.

T. C. S. appeals the juvenile court’s granting of the State’s motion for reconsideration. Although T. C. S. enumerates three errors, the controlling issue is when jurisdiction vested in the juvenile court so as to trigger the 72-hour statutory time period for a detention hearing.

1. T. C. S. contends that the juvenile court erred in ruling that he did not come under its jurisdiction until the district attorney’s letter declining prosecution was received by the juvenile court officer. He also argues that the time limit under OCGA § 15-11-21 (c) (1) began running when the State declined prosecution. We disagree.

Decided March 8, 1996.

Cecilia M. Cooper, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

We note at the outset that this is a case of first impression because until the passage of OCGA § 15-11-5, as amended, effective May 1, 1994, a superior court and a juvenile court had concurrent jurisdiction in a case of this nature. Also, under these facts, the usual transfer procedures under OCGA § 15-11-39 are inapplicable. See OCGA § 15-11-39 (f). Thus, under the amended statute, from the date of the criminal warrant forward, the Sumter County Superior Court had exclusive jurisdiction over this matter pursuant to OCGA § 15-11-5 (b) (2) (A) and it determined and set T. C. S.’s bond.

Relying on OCGA § 9-11-5 (b), T. C. S. argues that the controlling date is May 18, when the district attorney mailed the letter, because by analogy, notice is complete upon the mailing of service in civil cases. This is not, however, a valid comparison. The superior court had jurisdiction and retained jurisdiction until the district attorney declined prosecution, withdrew the case, and lodged it in Sumter County Juvenile Court, the appropriate juvenile jurisdiction. OCGA § 15-11-5 (b) (2) (C). Parks’ letter was only a portion of the requisite process. Thus, neither the time of the district attorney’s decision not to seek an indictment nor the time of mailing a formal letter is determinative. Until all the statutory requirements were completed, the case remained under the jurisdiction of the Sumter County Superior Court. Therefore, the proceedings in juvenile court were not commenced until the petition alleging delinquency was filed on May 23. OCGA § 15-11-11 (4).

2. Having determined in Division 1 that the juvenile court lacked jurisdiction over the case until the entire process was completed, including the filing of the petition for delinquency, the juvenile court properly denied T. C. S.’s motion to dismiss. Because the 72 hours did not commence until the petition was filed on May 23, T. C. S. was not denied his right to a speedy trial. We also reject T. C. S.’s argument that from May 18 he was illegally detained under no valid authority because he was under the superior court’s exclusive jurisdiction. Similarly, we find no merit to his contention that the juvenile court lacked the authority to order a rehearing. See In re P. S. C., 143 Ga. App. 887, 889 (240 SE2d 165) (1977).

Judgment affirmed.

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

       Both the State and T. C. S. agree that the superior court held a detention hearing on March 31, 1995, and that bond was set. No transcript has been made available of that hearing.


text:
    A95A2735.
    CARPENTER v. CORDELE ELECTRIC SUPPLY, INC.
    (469 SE2d 799)
   Pope, Presiding Judge.

The trial court granted summary judgment to Cordele Electric Supply in its suit to recover personally from L. J. Carpenter a debt related to his business, Midstate Electric Company. We reverse because Carpenter has shown genuine issues of fact remain on his sole defenses: that he incurred this debt as the agent of F.A.E., Inc. d/b/a Midstate Electric Company and that Cordele Electric extended credit to the company, not to Carpenter.

Cordele Electric sued to recover amounts due for electrical supplies it sold to Midstate Electric on an open account between January and March 1994. Cordele Electric argued Carpenter was individually liable for the debt based upon the original credit application he made in October 1990. The record shows Carpenter signed the application as “Officer or Owner” of the applicant company, “Midstate Electric Company.” Carpenter was noted as the “person responsible for account,” but the application mentions nothing of F.A.E., Inc. The application indicates Cordele Electric extended a $2,000 credit line. The trial court found this application dispositive of Carpenter’s personal liability.

In response to Cordele Electric’s motion for summary judgment, Carpenter submitted an affidavit in which he deposed that he signed this application as an officer of F.A.E., Inc. solely on behalf of Mid-state Electric. He also presented 13 checks totaling in excess of $50,000 written to Cordele Electric between May 1992 and February 1994 and drawn on the account of “F.A.E., INC. dba Midstate Electric Company.” Although Carpenter signed these checks without indicating his representative capacity, he contended the checks were drawn as payment by F.A.E., Inc. for supplies purchased on this account and that Cordele Electric accepted and negotiated these checks.

Summary judgment is appropriate only when the court, viewing all the facts and reasonable inferences in a light most favorable to the non-movant, concludes the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Here, the key issue is whether Carpenter sufficiently disclosed the identity of his principal — F.A.E., Inc. — so as to escape personal responsibility on the debt. Chambliss v. Hall, 113 Ga. App. 96, 98-99 (2) (147 SE2d 334) (1966). To succeed on its summary judgment motion, Cordele Electric had to show it did not know Carpenter purchased these supplies as an agent of F.A.E., Inc. Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991).

1. Contrary to the trial court’s finding, the language of the credit application noting Carpenter as the “person responsible for account” does not control. Even if this language constituted Carpenter’s personal promise to guarantee payment of any credit extended through this application, that personal guaranty was extinguished when Cordele Electric extended credit beyond the $2,000 limit agreed to in the application. OCGA § 10-7-22; Southeastern Automotive Warehouse v. McCurdy, 205 Ga. App. 550, 551 (422 SE2d 574) (1992); West &c. of Savannah v. Liberty Mtg. Corp., 160 Ga. App. 323, 324 (287 SE2d 320) (1981). This case turns on broader principles of agency.

2. A factfinder must determine whether Carpenter disclosed the identity of his principal. Here, the credit application does not mention Carpenter’s corporate principal, but his affidavit shows that for almost two years before Midstate Electric incurred these specific debts, Carpenter paid the account with checks drawn on the corporation, F.A.E., Inc. The bills at issue were addressed to “Midstate Electric Company,” not Carpenter. “[T]o protect the agent from personal liability, it is essential that the principal be disclosed to the third [party] at the time the transaction is being conducted.” (Emphasis supplied; footnote omitted.) 3 AmJur2d 834, Agency, § 327. The fact that prior charges were paid by checks drawn on the account of a corporate entity may have put Cordele Electric on notice that Carpenter acted only as an agent of F.A.E., Inc. when he incurred debts for these supplies in 1994. See Jensen v. Alaska Valuation Svc., 688 P2d 161, 164 (Alaska 1984) and Potter v. Chaney, 290 SW2d 44, 46 (Ky. 1956), in which those courts held an agent’s use of corporate checks may amount to a disclosure of its corporate principal.

“Whether or not the fact of the agency and the identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence.” (Citation and punctuation omitted.) Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992); Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga. App. 300, 303 (145 SE2d 294) (1965). “While the fact that a trade name was used is a factor to be considered on the issue of disclosure of agency, [cit.] . . . the use of a trade name is not necessarily a sufficient disclosure of the identity of the principal. . . .” Crolley, 201 Ga. App. at 702 (3). But unlike the defendants in Crolley, and Hunter Turnkey v. Pilot Prop. Co., 210 Ga. App. 365 (436 SE2d 84) (1993), there is some evidence that Carpenter disclosed to Cordele Electric the identity of his corporate principal prior to entering the specific transactions on which Cordele Electric sued. See, e.g., Lamas v. Baldwin, 140 Ga. App. 37, 39-40 (1) (230 SE2d 13) (1976), holding that all the circumstances surrounding a transaction might lead the agent to reasonably believe the other contracting party knew the identity of his principal and understood their relationship.

Decided March 8, 1996.

Wright & Hyman, Thomas H. Hyman, for appellant.

James W. Hurt, for appellee.

3. Carpenter also contends an issue of fact exists as to whether Cordele Electric extended credit to him personally or to his corporate principal, F.A.E., Inc. We agree. Because the jury may determine Carpenter disclosed to Cordele Electric his principal’s identity before making the 1994 credit purchases, the jury must also determine this issue. “When the agency is known and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case.” OCGA § 10-6-87; see Wojcik, 204 Ga. App. at 305. The language of the credit application noted that Carpenter was the “person responsible for account.” But as discussed in Division 1, resolution of this case depends on whether Cordele Electric extended credit for the 1994 purchases to Carpenter or to the corporation. It is true that “[a]n agent may expressly contract on his own credit, and be bound, even though his principal [is] known.” (Citation and punctuation omitted.) Brown & Huseby v. Chrietzberg, 242 Ga. 232, 234 (3) (248 SE2d 631) (1978). If the jury determines Carpenter disclosed his corporate principal, it must then determine whether the parties intended that principal or Carpenter to be bound for the 1994 charges upon which Cordele Electric sued.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.