text:
    A01A2201, A01A2202, A01A2228, A01A2229, A01A2230, A01A2464, A01A2465, A01A2466, A01A2467, A01A2475.
    A01A2468.
    GAMBLE et al. v. WARE COUNTY BOARD OF EDUCATION et al. (ten cases). GAMBLE v. WARE COUNTY BOARD OF EDUCATION et al.
    (561 SE2d 837)
   Ruffin, Judge.

Proceeding pro se, George Gamble presented to the Ware County Superior Court clerk 11 lawsuits naming the Ware County Board of Education and various school officials and employees as defendants. Gamble included a pauper’s affidavit with each complaint stating that he could not pay the court filing fees. Pursuant to OCGA § 9-15-2 (d), the court clerk submitted the complaints to the trial court for review before filing them. Concluding that the complaints contained no justiciable issue of law or fact, the trial court refused to permit their filing. Gamble now appeals. Although not all of these appeals are factually related, the same legal principles generally govern their disposition. Accordingly, we have consolidated them for appeal, and for reasons that follow, we affirm in part and reverse in part.

Under OCGA § 9-15-2 (d),

[w]hen a civil action is instituted by an indigent party who is not represented by an attorney the trial judge is required to review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.

In conducting this review, the trial court must determine whether the facts alleged in the complaint state a claim for relief under which the plaintiff may recover. The court can deny filing “[o]nly if the pleading is completely devoid of any justiciable issue of law or fact.” A complaint is sufficient if it places the defendant on notice of the claim against him, and on appeal, we must construe Gamble’s complaints favorably to him. Furthermore, we will not hold his pro se complaints to the “[strict] standards of formal pleading.”

Applying these principles, we find no error in the trial court’s order prohibiting Gamble from filing the complaints in Case Nos. A01A2201, A01A2228, A01A2229, A01A2464, A01A2465, A01A2466, A01A2468, and A01A2475. The trial court, however, should have permitted Gamble to file the complaints involved in Case Nos. A01A2202, A01A2230, and A01A2467.

1. As an initial matter, the defendants named in Gamble’s complaints have filed a motion to dismiss these appeals or, in the alternative, have requested that we order Gamble to serve his appellate briefs on them. They argue that because Gamble failed to serve them with the complaints or any other pleadings, we should not consider his appeals. We disagree.

Because the trial court did not permit Gamble to file his complaints, suit has not begun, and these named defendants are not yet parties. The complaints were not filed, the clerk never issued summons, and process was not served. In short, the trial court halted the lawsuits before they started, and nothing obligated Gamble to serve the complaints on the defendants. Similarly, Gamble was not required to serve his notice of appeal on the defendants, who were never parties below and thus are not parties on appeal. Also, we cannot find that Gamble violated the rules of this Court by failing to serve his appellate briefs on these nonparties. Although the better practice in this type of appeal would be to serve the named defendants, the failure to do so does not warrant dismissal. The defendants’ motion, therefore, is denied.

Case Nos. A01A2201, A01A2202, A01A2228, A01A2229, and A01A2230

These five appeals arise out of a November 12, 1999 school bus incident involving Gamble’s son. As alleged in the complaints and attached documents, on that date, bus monitor Essie Mae Hands prepared a conduct form stating that K. G., Gamble’s son, engaged in sexual misconduct on the bus. The conduct form was signed by bus driver Quincy Daniels, Transportation Director M. O. Beverly, and Assistant Principal Ken Williams.

K. G. was suspended from riding the bus from November 16, 1999, through November 18, 1999. Apparently, however, he was ill for the first two days and did not learn of the suspension until November 18, 1999, when he attempted to ride the bus and received a copy of the conduct form. Gamble immediately contacted the school to arrange a conference, and a meeting between Assistant Principal Williams, bus driver Daniels, bus monitor Hands, Gamble, and K. G. took place on November 22, 1999. At that meeting, Gamble questioned the bus employees about the incident. Ten days later, Gamble submitted to Williams an affidavit executed by K. G. denying the misconduct. The following November, Gamble requested that Superintendent Richard Brantley delete the reference to sexual misconduct from K. G.’s school record. Brantley refused, but school officials permitted Gamble to place a “rebuttal statement” relating to the incident in K. G.’s record.

2. Case Nos. A01A2201, A01A2228, andA01A2229. In three complaints, Gamble alleges that, with respect to the November 12, 1999 incident, the Board of Education, Superintendent Brantley, Assistant Principal Williams, and Ware County Transportation Director Beverly violated K. G.’s due process rights and engaged in tortious conduct that injured his family. We agree with the trial court that these complaints present no justiciable issue of fact or law.

(a) Gamble contends that he and K. G. did not receive adequate notice of the bus suspension, that school officials failed to immediately inform him about the alleged misconduct, and that the delay hindered any investigation into the incident. Citing the delays and inaction, Gamble asserts that the defendants violated his son’s due process rights under the United States Supreme Court’s decision in Goss v. Lopez. The Goss Court determined that

[s]tudents facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.

As we have noted, Goss “sets forth the principles relative to a student’s constitutional rights” in cases involving school suspensions.

Gamble’s complaints involve a school bus suspension, rather than a suspension from school, and we question whether a student has a constitutionally protected interest in riding the school bus. We need not resolve this issue, however, because Gamble does not contend that the defendants violated due process or injured K. G. by temporarily banning him from the bus. Instead, his due process allegations involve the alleged damage to K. G.’s reputation and honor caused by the sexual misconduct report placed in his school record. Thus, we must consider whether school officials afforded K. G. a sufficient opportunity under Goss to challenge that misconduct report.

Gamble asserts that various school officials failed to provide K. G. and his family sufficient notice of the misconduct charge. According to Gamble, he and his son first learned about the charge when K. G. tried to ride the bus on November 18, 1999, seven days after the incident and during the suspension period. Gamble apparently contends that due process required the school to notify K. G. of the misconduct charge and hold a hearing before the suspension commenced.

Generally, “notice and hearing should precede removal of the student from school.” Even if this general rule applies to bus suspensions, however, it does not permit recovery here because Gamble does not complain about his son’s inability to ride the bus for three days. His concerns involve the sexual misconduct report placed in K. G.’s school file.

Furthermore, assuming — without deciding — that notice of the suspension was late, school officials cured this deficiency by subsequently giving Gamble and K. G. an adequate opportunity to challenge and question the sexual misconduct allegations in K. G.’s file. Gamble’s complaints show that he and K. G. received written notice of the charges seven days after the incident, met with and questioned the individuals who witnessed and reported the alleged misconduct, presented K. G.’s side of the story to authorities, and placed a rebuttal statement outlining K. G.’s version in his permanent student record. The complaints thus establish that K. G. received the minimum procedural protections required by Goss.

In his complaints, Gamble asserts that the delay in notification prevented him from gathering evidence — such as a bus videotape that was erased — to support K. G.’s explanation of the incident. Under Goss, however, due process guarantees a suspended student only oral or written notice of the charges, an explanation of the evidence against him, and an opportunity to present his side of the story. A school is not required to “afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” Clearly, the school need not formally gather, preserve, and present evidence. Accordingly, the alleged delay in notification did not deny K. G. due process, and the trial court properly prohibited Gamble from proceeding with his due process claims against the school board, Superintendent Brantley, Assistant Principal Williams, and Transportation Director Beverly.

(b) Gamble also alleges that these defendants’ decision to discipline K. G. was, among other things, unlawful, malicious, negligent, fraudulent, libelous, and constituted intentional infliction of emotional distress. As discussed below, these tort claims cannot withstand review under OCGA § 9-15-2 (d) because immunity protects each defendant from suit.

Gamble alleges that the school board is “vicariously liable” for the actions of its employees, such as bus driver Daniels and bus monitor Hands, who, according to Gamble, are “social enemies” of his family and fabricated the sexual misconduct charges against K. G. The Ware County Board of Education, however, falls within the “1991 constitutional amendment extending sovereign immunity to the state and all of its departments and agencies.” Sovereign immunity can be waived only through legislation specifically providing “that [the] immunity is thereby waived and the extent of [the] waiver.” We have not found — and Gamble has not cited — any legislation specifically waiving the school board’s immunity from liability in this type of case, which involves allegations that school employees tortiously and unlawfully disciplined a student. And the State’s limited waiver of sovereign immunity for the torts of state officers and employees under OCGA § 50-21-23 (a) does not apply to school districts or other “local authorities.” The trial court, therefore, properly refused to file Gamble’s tort claims against the Ware County Board of Education.

Gamble’s complaints also present no justiciable tort issue regarding Superintendent Brantley, Assistant Principal Williams, and Transportation Director Beverly. The doctrine of official immunity “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” A discretionary act requires personal deliberation and judgment, which “‘entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ ” We have previously found that supervising and disciplining school children constitute discretionary acts. Furthermore, under OCGA § 20-2-1000 (b), “[n]o educator shall be liable for any civil damages for, or arising out of, any act or omission concerning, relating to, or resulting from the discipline of any student or the reporting of any student for misconduct, except for acts or omissions of willful or wanton misconduct.”

Gamble’s tort allegations against Brantley, Williams, and Beverly revolve around their participation in the disciplinary action against K. G. Based on the official immunity doctrine and OCGA § 20-2-1000 (b), we find that those allegations cannot survive OCGA § 9-15-2 (d). Gamble complains that these individuals signed bus conduct forms, did not timely notify him about the suspension, refused to overturn the charges, and upheld the findings of their subordinates. None of these alleged facts shows malicious, wilful, or wanton conduct. Gamble’s claims against Brantley, Williams, and Beverly, therefore, are barred.

3. Case Nos. A01A2202 and A01A2230. The trial court, however, erred in refusing to file the complaints in Case Nos. A01A2202 and A01A2230. In addition to naming the school board and Superintendent Brantley as defendants, these two cases assert a litany of tort claims against bus driver Daniels and bus monitor Hands, including intentional infliction of emotional distress, libel, and negligence. As discussed above, Gamble’s allegations against the school board and Brantley present no justiciable issue. Construed favorably to Gamble, however, the tort allegations against Daniels and Hands state a claim for relief under which Gamble may, theoretically, be able to recover.

In Case No. A01A2230, Gamble asserts that Hands fabricated the sexual misconduct charges against K. G. because, as a “social enemy” of Gamble’s family, she sought to damage and injure K. G.’s “honor, integrity, reputation, and character.” Gamble similarly alleges in Case No. A01A2202 that Daniels, Hands’ brother-in-law and another “social enemy” of the Gambles, colluded with Hands “to provide misleading false facts” relating to the incident. If, as Gamble claims, Daniels and Hands intentionally made up the misconduct charges to injure K. G.’s reputation and character as part of an ongoing feud, recovery might be available. Furthermore, given Gamble’s specific allegations of intentional and arguably malicious conduct by Daniels and Hands, we cannot conclude from the pleadings that these complaints would be barred by official immunity or OCGA § 20-2-1000 (b).

Although we express no view as to the merits of Gamble’s allegations, we find that his actions against Daniels and Hands present a justiciable issue of law or fact. Accordingly, the trial court’s order prohibiting Gamble from filing the complaints in Case Nos. A01A2202 and A01A2230 must be reversed.

Case Nos. A01A2464, A01A2465, A01A2466, A01A2467, and A01A2475

These five cases involve a separate allegation of school bus misconduct by K. G. According to the complaints and attached documents, on September 21, 2000, bus driver Jackie Dickson prepared a conduct form stating that K. G. was “acting up on the bus[,] was doing ugly things with his body[,] and was sexual [ly] harassing a young girl on the bus.” Dickson, Assistant Principal Williams, and Transportation Director Beverly signed the conduct form, which indicated that K. G. would be suspended from the bus for ten days, beginning on September 25, 2000. A school official brought the conduct form to Gamble’s home on September 25.

Four days later, Gamble met with school officials, who raised concerns about the sexual harassment allegation and arranged a subsequent meeting with Dickson. Gamble, K. G., Dickson, Principal Yonz, Williams, and Beverly attended that meeting. Gamble questioned Dickson about the incident, and Yonz determined that K. G. had not sexually harassed a female student. At that point; Yonz amended the conduct form to state that K. G. had “made a sexual gesture towards [a] girl [but] did not touch [the] girl.” He also deleted the reference to sexual harassment.

Protesting that K. G. had not made a “sexual gesture” on the bus, Gamble met with Superintendent Brantley and asked that the conduct form be removed from K. G.’s record. Brantley refused, and Gamble prepared complaints naming the Board of Education, Brantley, Yonz, Williams, Beverly, and Dickson as defendants.

4. Case Nos. A01A2464, A01A2465, A01A2466, and A01A2475. In the complaints in these four cases, Gamble contends that the school board, Brantley, Yonz, Williams, and Beverly deprived K. G. of due process and committed various torts against his family. We agree with the trial court that these complaints do not present a justiciable issue of law or fact.

(a) As in the complaints discussed in Division 2, Gamble alleges that each defendant denied K. G. due process. Once again, the due process arguments focus not on K. G.’s temporary loss of bus privileges, but on the sexual misconduct charges in his school record, which, Gamble asserts, impair K. G.’s “honor, reputation, dignity, integrity, and un-corruptibility.”

Gamble’s complaints show that the school gave Gamble and K. G. the chance to discuss the incident with school officials, question the bus driver who witnessed and reported the misconduct, and offer K. G.’s version of the facts. Those meetings resulted in removal of the sexual harassment language from the bus conduct form. We find that school officials afforded Gamble and K. G. the notice and opportunity to be heard required by Goss.

Gamble contends that K. G. should have been notified immediately about the misconduct charge and that school officials tried to “sneak” the conduct form into K. G.’s school file without informing K. G. or his family about the charge. The complaints show, however, that Gamble received a copy of the bus conduct form four days after the incident, on the day the suspension began. And even if Gamble and K. G. should have been notified earlier, any deficiency in the notice was cured by the opportunities school officials gave Gamble and K. G. to question and challenge the misconduct allegations. The defendants thus complied with due process.

(b) Gamble also alleges that these defendants committed various torts against his family, including intentional infliction of emotional distress, negligence, and libel. He contends that the school board, Brantley, Yonz, Williams, and Beverly unlawfully failed to expunge the misconduct charge from K. G.’s record, neglected to promptly notify K. G. and his parents about the misconduct, and altered the bus conduct form to reference a “sexual gesture,” even though K. G. denied making the gesture. In addition, Gamble asserts that the school board, Brantley, and Yonz are vicariously liable for the torts of their employees.

Again, we agree with the trial court that these allegations do not set forth a justiciable issue. As discussed in Division 2 (b), the Board of Education enjoys sovereign immunity, barring Gamble’s claims against it. Furthermore, even if school authorities should have notified K. G. and his parents sooner about the misconduct allegations, but failed to do so, these facts do not show the type of wilful or malicious conduct needed to avoid the official immunity doctrine and OCGA § 20-2-1000 (b). Similarly, the fact that school authorities refused to completely reject Dickson’s misconduct report does not evidence malice or wilfulness. In fact, the complaints reveal that authorities reduced the original charge from sexual harassment to making a sexual gesture, indicating a lack of malice.

Gamble vaguely alleges that the defendants engaged in a “coverup” by “slipping” this misconduct charge into K. G.’s record to substantiate the November 12, 1999 misconduct allegation. Other factual allegations in Gamble’s complaints, however, undermine this “cover-up” charge. According to the complaints, just four days after the September 21, 2000 incident, a school official brought the bus conduct form to Gamble’s home. Shortly thereafter, Gamble and K. G. met with various school officials and the bus driver, and school officials concluded that K. G. had not sexually harassed a female student, as originally reported. The complaints themselves establish that no malicious “cover-up” took place. The trial court, therefore, properly refused to file the complaints in Case Nos. A01A2464, A01A2465, A01A2466, and A01A2475.

5. Case No. A01A2467. The trial court erred, however, in not allowing Gamble to file his complaint in Case No. A01A2467. In that complaint, Gamble alleges that the Board of Education, Superintendent Brantley, and bus driver Dickson violated K. G.’s due process rights and committed various torts against his family. As found in Division 4, the claims against the school board and Brantley — as well as the procedural due process claims — cannot survive review under OCGA § 9-15-2 (d). Nevertheless, Gamble’s tort allegations against Dickson are sufficient to permit filing.

Gamble contends that Dickson conspired with Daniels and Hands to fabricate the September 21, 2000 misconduct charge in order to “substantiate the [November 12, 1999] incident.” Like Gamble’s claims against Daniels and Hands, this conspiracy allegation, if true, could lead to recovery. And while Gamble’s conspiracy theory seems far-fetched, we cannot assume that it did not occur. Accordingly, the trial court erred in refusing to file Gamble’s claim against Dickson.

Case No. A01A2468

6. Gamble’s eleventh complaint does not involve K. G. or misconduct on a school bus. Instead, he alleges that the Ware County Board of Education, Superintendent Brantley, and Assistant Superintendent Vince Richardson discriminated against him when they refused to hire him as a substitute teacher. According to the complaint, the defendants rejected Gamble for employment after they learned that Gamble had been charged with a criminal drug violation, for which he apparently received first offender treatment. We agree with the trial court that this complaint contains no justiciable question of law or fact.

Gamble broadly asserts that, in refusing to hire him as a substitute teacher, the defendants discriminated against him, violated his due process and equal protection rights, and engaged in wilful, conspiratorial, and malicious conduct. Without some specific allegations regarding how the defendants’ conduct violated the law, however, “bald assertions of impropriety” cannot withstand review under OCGA § 9-15-2 (d). Facts showing unlawful conduct must be asserted.

In his complaint, Gamble makes no effort to allege how the defendants’ conduct violated the law. The complaint states only that he applied for the substitute teaching position, submitted information about his criminal history to the defendants, learned that an administrative review committee had discussed his criminal history and rejected his application, and filed a charge of discrimination with the Equal Employment Opportunity Commission, which was denied.

These “facts” neither allege any illegal conduct nor “serve to put the defendants on notice of the existence of a claim against them.” At base, Gamble claims that the defendants rejected his application when they grew concerned about his criminal history. We cannot find that the defendants acted unlawfully or improperly by rejecting his application on this ground; a school board may refuse “to employ as a substitute teacher one who, in the discretion of the board, would be detrimental to the education of the students.” Furthermore, Gamble’s vague claim that the school board’s hiring procedure denied him due process is insufficient. His complaint does not explain how his due process rights were violated, and he has not asserted how the school board’s hiring decision possibly affected his liberty or property interests. Similarly, his general allegations that the defendants discriminated against him and treated him maliciously have no factual support. Accordingly, the trial court properly refused to file the complaint in Case No. A01A2468.

Judgment affirmed in Case Nos. A01A2201, A01A2228, A01A2229, A01A2464, A01A2465, A01A2466, A01A2468, and A01A2475. Judgment reversed in Case Nos. A01A2202, A01A2230, and A01A2467.

Johnson, P. J., and Ellington, J., concur.

Decided February 19, 2002.

George K. Gamble, Jr. et al., pro se.

Harben & Hartley, Sam S. Harben, Jr., for appellees.

       At least one other member of Gamble’s family also signed the complaints in four of the eleven cases.

       (Punctuation omitted.) Mosier v. State Bd. of Pardons &c., 213 Ga. App. 545 (2) (445 SE2d 535) (1994).

       See Gamble v. Diamond “D” Auto Sales, 221 Ga. App. 688 (1) (472 SE2d 446) (1996).

       Id.

       See id.

       Id.

       See OCGA §§ 9-15-2 (d); 9-11-4 (a) (“Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it for service.”) (emphasis supplied); 9-11-4 (e) (“Except for cases in which the defendant has waived service, the summons and complaint shall be served together.”).

       See OCGA § 5-6-37 (“All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal”).

       See Court of Appeals Rule 1 (a) (“All filings, documents, motions, briefs, requests and communications relating to appeals . . . shall show that copies have been furnished to opposing counsel?) (emphasis supplied). We note that, according to Gamble, he served each of the briefs on the Board of Education by hand delivery.

       419 U. S. 565 (95 SC 729, 42 LE2d 725) (1975).

       Id. at 581 (III).

        Dillard v. Fussell, 160 Ga. App. 382 (287 SE2d 96) (1981); see also Wayne County Bd. of Ed. v. Tyre, 199 Ga. App. 384, 386 (1) (404 SE2d 809) (1991).

       See Rose v. Nashua Bd. of Ed., 679 F2d 279, 281-282 (1st Cir. 1982).

       See Goss, supra at 574 (II) (“The Due Process Clause also forbids arbitrary deprivations of liberty. Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ the minimal requirements of the Clause must be satisfied.”).

       Id. at 582 (III).

       See Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218 (466 SE2d 588) (1996) (“ ‘[T]he state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation . . . arise.’ ”).

       See Tyre, supra at 386.

       See Goss, supra at 581.

       Id. at 583 (III).

       See id.

        Hunt v. City of Atlanta, 245 Ga. App. 229, 230 (537 SE2d 110) (2000).

        Crisp County School System v. Brown, 226 Ga. App. 800 (1) (487 SE2d 512) (1997).

       See id. at 800-801; see also OCGA § 20-2-992 (local board of education does not waive immunity by obtaining liability insurance for school officials and employees under OCGA § 20-2-991).

       See Crisp County, supra at 801; OCGA § 50-21-22 (5).

       See Mosier, supra at 547-548 (trial court properly refused to allow prisoner to file complaint against parole board, which was protected from suit by sovereign immunity).

        Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995).

       Id.

       See Holbrook v. Exec. Conference Center, 219 Ga. App. 104, 106 (1) (464 SE2d 398) (1995); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 297 (454 SE2d 149) (1995); see also Dillard, supra at 383 (principal, school superintendent, and members of school board were immune from allegations that student was wrongfully suspended).

       See Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999) (“[I]n the context of official immunity, actual malice means a deliberate intention to do a wrongful act.”); Muller v. English, 221 Ga. App. 672, 676 (2) (c) (472 SE2d 448) (1996) (“ Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent.’ ”).

       See Dillard, supra at 383 (principal’s hurried and erroneous decision to suspend student did not give rise to a cause of action).

       For the reasons discussed in Division 2 (a), the procedural due process allegations in Case Nos. A01A2202 and A01A2230 also lack merit.

       See Gamble, supra.

       See, e.g., Hill v. City of Fort Valley, 251 Ga. App. 615, 616 (1) (a) (554 SE2d 783) (2001) (to sustain a claim for intentional infliction of emotional distress, plaintiff must prove that (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) a causal connection existed between the wrongful conduct and the emotional distress; and (4) the emotional distress was severe); Gillis v. American Gen. Life &c. Ins. Co., 222 Ga. App. 891, 892 (476 SE2d 648) (1996) (“A complaint is not required to set forth a cause of action, but need only set forth a claim for relief. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff the complaint is sufficient.”) (punctuation omitted).

       See Evans v. City of Atlanta, 189 Ga. App. 566, 567 (377 SE2d 31) (1988); see also Battle v. Seago, 208 Ga. App. 516, 517 (431 SE2d 148) (1993) (“While plaintiff’s allegations are somewhat bizarre, we cannot assume that they did not occur.”).

       In fact, it appears from the complaints that K. G. continued to ride the bus during the ten-day suspension period.

       Supra at 581.

       See Dowling, supra.

       See Adams, supra.

       See Battle, supra at 517.

       See OCGA § 42-8-62 (a).

        Williams v. Skandalakis, 265 Ga. 693 (461 SE2d 226) (1995).

       See id.

       Id. at 693-694.

       OCGA § 20-2-216.

       See Ga. Const. of 1983, Art. I, Sec. I, Par. I (“No person shall be deprived of life, liberty, or property except by due process of law.”); Goldrush II v. City of Marietta, 267 Ga. 683, 695 (8) (482 SE2d 347) (1997) (“[T]o have a property interest, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it”) (punctuation omitted); see also DeClue v. City of Clayton, 246 Ga. App. 487, 489 (1) (540 SE2d 675) (2000) (“Under Georgia law, generally, one in public employment has no vested right to such employment.”); Johnson v. New York City Police Dept., 2001 U. S. App. LEXIS 26167 at *2 (2nd Cir. 2001) (plaintiff “cannot claim a property interest in a prospective job. As an applicant, he has only an ‘unprotected unilateral expectation’ of employment”).

       See Williams, supra; Cargill v. Zant, 207 Ga. App. 393, 394 (427 SE2d 809) (1993).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A2208.
    THE STATE v. DUNCAN.
    (560 SE2d 720)
   Andrews, Presiding Judge.

In defense of possession of cocaine charges, Harold Duncan moved to suppress evidence of cocaine found in his car during a warrantless search conducted by police. The State appeals from the trial court’s order granting the motion. Because we find the State had probable cause to conduct a warrantless search of the car without exigent circumstances, we reverse.

At the hearing on the suppression motion, the State presented testimony from police officers and an affidavit used to obtain a related search of Duncan’s house showing that Duncan’s nephew, Pedro Duncan, sold cocaine to an undercover officer and told the officer that his uncle could provide larger quantities of cocaine. In a telephone call to set up additional sales of cocaine, Pedro Duncan called the officer from a telephone number known to police from parole records to be the home phone of Harold Duncan. During the call, the officer was put on the line with another individual who stated he would meet the officer at a Texaco station with the cocaine. Shortly thereafter, Pedro Duncan arrived at the station in his car, followed by Harold Duncan in his car. Police observed the two meet inside the food store attached to the Texaco station and then watched Harold Duncan walk to an adjacent fast food restaurant. Pedro Duncan was arrested at the Texaco station. As police approached Harold Duncan in the fast food restaurant, he threw away a small bag which was recovered and tested positive for cocaine. Harold Duncan was arrested at the restaurant and handcuffed, and the keys to his car were taken from his pocket. When the keys were taken, he denied driving the car to the Texaco station. After a drug dog alerted for the odor of narcotics outside of Harold Duncan’s car, police used the keys to enter the car and conduct a search during which they found cocaine in a bag on the back seat of the car.

At the suppression hearing, Duncan argued that the State was required to show exigent circumstances to justify the warrantless search of his car, and that, because he was under arrest and the car was in no danger of being moved at the time of the search, no such circumstances existed. The trial court entered a one-sentence order denying the motion which gave no basis for the ruling. However, in its oral ruling denying the motion at the suppression hearing, the court concluded that, where the State had probable cause to search the car, it could conduct a warrantless search in the absence of exigent circumstances. In a motion for reconsideration, Duncan argued that both probable cause and exigent circumstances were required before the State could conduct a warrantless search. After reconsideration, the trial court entered a second order reversing its first order and granting the motion to suppress, again without stating a basis for the ruling.

Decided February 19, 2002.

J. Tom Morgan, District Attorney, David W. Bass, Barbara B. Conroy, Assistant District Attorneys, for appellant.

Peters, Roberts, Borsuk & Rubin, R. Stephen Roberts, Lynne Y. Borsuk, Michael D. Mann, for appellee.

The trial court was right the first time. As we held in McKinney v. State, 184 Ga. App. 607, 609-610 (362 SE2d 65) (1987), because the State had probable cause to suspect the car contained contraband, a warrantless search was reasonable even though (as in the present case) the driver was arrested, handcuffed, and the keys secured, and there were no exigent circumstances. Accord Benton v. State, 240 Ga. App. 243, 245 (522 SE2d 726) (1999); Parker v. State, 218 Ga. App. 770, 771 (463 SE2d 70) (1995).

Judgment reversed.

Eldridge and Miller, JJ., concur.


text:
    A01A2286.
    BRYAN COUNTY BOARD OF EQUALIZATION v. BRYAN COUNTY BOARD OF TAX ASSESSORS.
    (560 SE2d 719)
   Andrews, Presiding Judge.

The sole issue before us on appeal is whether the Bryan County Board of Equalization is subject to the provisions of the Open Meetings Act when it deliberates and votes on matters before it. We conclude that it is and affirm.

The parties stipulated to the following facts. After receiving a valuation from the Board of Tax Assessors on two pieces of property, the Ford Plantation filed an appeal with the Board of Equalization. The Board of Equalization held an open hearing at which evidence was presented as to the value of the property but, after hearing the evidence, closed the meeting and conducted their deliberations and voting in private. The Board of Tax Assessors sued to set aside the decision for violation of the Open Meetings Act and requested an injunction to prevent further violations of the Open Meetings Law.

Under Georgia’s Open Meetings Act, OCGA § 50-14-1, all “meetings” of an agency or authority of a municipality shall be open to the public. Meetings are defined under the Act as “the gathering of a quorum of the members of the governing body of an agency or of any committee of its members created by such governing body ... at a designated time and place at which official business or policy of the agency is to be discussed or at which official action is to be taken or, in the case of a committee, recommendations on official business or policy to the governing body are to be formulated or discussed.” OCGA § 50-14-1 (a) (2); see Red & Black Pub. Co. v. Bd. of Regents, 262 Ga. 848, 852 (3) (427 SE2d 257) (1993). However, before we begin our analysis under this Act, “(w)e must bear in mind that the Open Meetings Act must be broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings. (Cit.)” Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (2) (405 SE2d 655) (1991). “(T)he policy of this state is that the public’s business must be open, not only to protect against potential abuse, but also to maintain the public’s confidence in its officials. (Cit.)” Red & Black Pub. Co., supra at 854.

(Emphasis omitted.) Jersawitz v. Fortson, 213 Ga. App. 796, 798 (1) (446 SE2d 206) (1994).

The Board of Equalization acknowledges that it is an agency subject to the Open Meetings Act and that its meetings must be open to the public. It contends, however, that when it deliberates and votes on tax appeals, it is performing a quasi-judicial function and is therefore entitled to deliberate and vote in private.

First, we note that the Act specifically excludes certain proceedings from its provisions. Deliberations of the Boards of Equalization do not come under any of the specific exclusions. OCGA § 50-14-3. Next, the Act itself provides a two-prong test for its applicability: “first, is the meeting one of a ‘governing body of an agency or any committee thereof?; and second, is the meeting one ‘at which official business or policy of the agency is to be discussed or at which official action is to be taken(?)” Red & Black Pub. Co., supra at 853 (3). Under this test, the Act applies to all meetings of the Board of Equalization, including deliberations and voting.

Decided February 19, 2002

Ray C. Smith, for appellant.

Thurbert E. Baker, Attorney General, Kathryn L. Allen, Senior Assistant Attorney General, Henderson & Harvey, Michele M. Henderson, for appellee.

In addition, this Court disapproved a similar procedure in Beck v. Crisp County Zoning Bd. of Appeals, 221 Ga. App. 801 (472 SE2d 558) (1996). In Beck, the Zoning Board of Appeals adjourned the public hearing prior to deciding and voting on the matters before it. Id. at 801-802. We held that the public had the right to be present for the remainder of the meeting, including the deliberations and voting. Id. at 803.

We are not persuaded by the Board of Equalization’s arguments that as quasi-judicial bodies, they are entitled to conduct their deliberations and voting in secret. We realize that “openness in sensitive proceedings is sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy of this state is that the public’s business must be open, not only to protect against potential abuse, but also to maintain the public’s confidence in its officials.” Red & Black Pub. Co., supra at 854 (3) (b).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Eldridge, Judge. Andrews, Presiding Judge,

text:
    A01A2249.
    MCHENRY v. LONGHORN STEAK, INC. et al.
    (560 SE2d 731)
   Eldridge, Judge.

On March 24, 1998, Ruth McHenry, plaintiff, ate at Longhorn Steak, Inc. and was seated in a dimly lit area in a booth on a raised platform above the main dining room. After the meal, she and her family got up to leave; plaintiff slipped on a peanut shell on the floor beneath her table and broke her leg. Plaintiff sued Longhorn Steak, Rare Hospitality International, Inc. and Rare Hospitality Management, Inc. After answering, the defendants moved for summary judgment, which the trial court granted. We reverse.

The defendants provided baskets of peanuts for customers to shell and eat, and the McHenry family ate some peanuts, placing the shells in the basket. Their waitress saw the shells in the basket and threw them on the floor away from where they were seated and told them to throw the shells on the floor.

The defendants by their custom and practice of throwing peanut shells on the floor created a dangerous condition by its employees throwing peanut shells on the floor, encouraging the customers to do the same, and failing to timely sweep up the shells. From their custom and practice, the defendants had constructive knowledge that at all times there were peanut shells on the floor or that shells were likely to be on the floor. The waitress in throwing the shells from the plaintiff’s basket away from her table onto the floor had actual knowledge that such shells could land near the table and engaged in active negligence. Further, since it was evening and meals had been previously served to other customers at this table as evidenced by the presence of shells on the floor not put there by the McHenrys, then the reasonable inference arose that the shells had been left on the floor from diners prior to the McHenrys’ arrival and that there had been sufficient time for a reasonable inspection to have disclosed the presence of the shells. See Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998) (length of existence of foreign object on floor not necessary in absence of inspection procedure). Also, plaintiff’s waitress, as well as other employees, had been in the immediate area of plaintiff’s fall but due to custom and practice ignored the presence of peanut shells on the floor. See J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470 (522 SE2d 749) (1999); Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631-632 (3) (493 SE2d 196) (1997).

The plaintiff never saw peanut shells on the floor and had knowledge only that their waitress had thrown the shells on the floor away from the table. She lacked knowledge that other employees and patrons also threw peanut shells on the floor as a usual custom and practice and that there was no inspection or routine removal of the shells. Therefore, the plaintiff lacked equal knowledge with the defendants, which had superior knowledge because they had instituted and perpetuated such custom and practice.

A slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiff’s negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety. In this way, the defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. Only after the defendant has produced evidence of the plaintiffs negligence does the plaintiff have the burden of producing rebuttal evidence that the invitee’s failure to ascertain the existence of the hazard was due to actions or conditions within the control of the defendant, which actions or conditions are of such a nature that the defendant knew or should have known they would have diverted the invitee’s attention from looking where [she] was going.

Robinson v. Kroger Co., 268 Ga. 735, 747-748 (2) (493 SE2d 403) (1997). In this case, the raised platform, the constriction of the booth, the dim lighting, and the action of the waitress in throwing the peanut shells away from the plaintiffs table could be found by a jury to constitute such a foreseeable distraction causing the plaintiff not to look at the floor under the table to discover the presence of peanut shells left by prior diners. “In sum, we remind members of the judiciary that ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiffs lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 748. This is not such a case.

“It is a plaintiff’s knowledge of the specific hazard [precipitating a] slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids.” (Punctuation and emphasis omitted.) Gourley v. Food Concepts, 229 Ga. App. 180 (493 SE2d 587) (1997). Whether or not plaintiff exercised reasonable care under the facts and circumstances for her own safety is a question for the jury. See J. H. Harvey Co. v. Reddick, supra at 472 (1) (c); Straughter v. J. H. Harvey Co., supra at 31 (1).

The cases relied upon by defendant are distinguishable, because there the injured party either walked backward without looking, Becton v. Tire King of North Columbus, 246 Ga. App. 57 (539 SE2d 551) (2000); Carey v. W. R. Grace & Co., 221 Ga. App. 728 (472 SE2d 524) (1996), or blindly barged through a closed door thinking that it was a room and not stairs, Parker v. Welborn, 236 Ga. App. 344 (511 SE2d 917) (1999).

Further, even if the defense of assumption of the risk were raised as to plaintiff’s conduct, then such defense requires (1) actual knowledge of the specific danger, (2) understanding and appreciation of the risk associated with such danger, and (3) voluntarily exposing herself to those risks. This causes a jury question under the evidence in the record.

The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition t^at proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.

(Footnotes omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). Plaintiff cannot be said as a matter of law to have assumed the risk of walking out of the restaurant after she learns after she is seated that the floor is strewn with peanut shells.

Judgment reversed.

Johnson, P. J., Ruffin, Miller, Ellington and Phipps, JJ, concur. Andrews, P. J., dissents.

Andrews, Presiding Judge,

dissenting.

Because I believe this is one of those cases in which the evidence of McHenry’s equal knowledge of the condition which she contends caused her fall is “plain, palpable, and undisputed[,]” I would affirm the trial court’s grant of summary judgment to Longhorn Steak, Inc.

Both McHenry and her daughter deposed that when they ate some of the peanuts on the table, they put the shells back into the basket. Seeing this, the waitress instructed them, “you don’t do that, . . . you just throw them on the floor.” The waitress then tossed the basket of shells onto the floor. McHenry also deposed that “I just knew that when the waitress threw those peanuts, . . . that certainly they were on the floor.”

Pretermitting whether, under these circumstances, the peanut shells could even be considered a defect in the premises, as opposed to a part of the decor, see Pritchett v. Hartwell Entertainment Group, 221 Ga. App. 708 (472 SE2d 512) (1996), it is without question that McHenry was aware of the condition.

“A plaintiff is held accountable for the failure to exercise due care for personal safety when doing an obviously dangerous act, and that failure is regarded as the sole proximate cause of the injury.” City of Winder v. Girone, 265 Ga. 723, 724 (462 SE2d 704) (1995). Just as Girone knew she was traversing a patio covered with sewage, McHenry knew she was traversing a peanut-strewn floor. See also Moss v. Dept. of Public Safety, 247 Ga. App. 426 (1) (543 SE2d 799) (2000); Palermo v. Winn-Dixie Atlanta, 221 Ga. App. 532, 533 (1) (472 SE2d 85) (1996).

Therefore, I respectfully dissent.

Decided February 20, 2002.

Deming, Parker, Hoffman, Green & Campbell, Christopher W. Daly, William R. Pike, for appellant.

Cruser & Mitchell, Joseph R. Cruser, Jennifer M. McBath, for appellees.


author: Eldridge, Judge.

text:
    A02A0831.
    EDWARDS v. THE STATE.
    (560 SE2d 735)
   Eldridge, Judge.

A DeKalb County jury found Michael Edwards guilty of possession of cocaine. He appeals from this verdict and, in his sole claim of error, contends the trial court erred in denying his motion to suppress the drugs in question as their seizure was allegedly the result of a Terry investigative detention unsupported by reasonable articulable suspicion. We disagree and affirm Edwards’ conviction.

The defense did not put up evidence at the motion to suppress. The State’s evidence shows that, during roll call at the beginning of the 2:45 p.m. to 10:45 p.m. shift, DeKalb County police officers were informed that the manager of the Howard Johnson motel on the Northeast Expressway in DeKalb County had telephoned in order to report drug sales occurring at the motel; further information revealed that the sales were occurring specifically out of room 112 of the motel. Drug activity occurred frequently at the motel, and the manager had called “on many occasions” to report such activity when it was observed.

During the shift, DeKalb County Police Officer R. Jimenez responded to the Howard Johnson dispatch. He had been to the motel several times before on drug investigations. Based on information he had received, Jimenez placed room 112 under surveillance from a vantage point where he could not be seen. Shortly thereafter, he observed Edwards and another man walking across the inner courtyard toward room 112, which was a ground floor room. “[T]hey were looking around as they were approaching the room,” apparently in an attempt to see if they were being observed by anyone. The men went directly to room 112 and stopped in front of the door. At that point, Officer Jimenez, in full uniform, stepped into view. Edwards and the other man saw Jimenez, and they “abruptly” turned away from the room; the men began to hurriedly walk in the opposite direction from the police officer.

Thereafter, Jimenez called to them to “stop,” at which point “[t]hey looked back and kept walking.” The officer had to run to catch up with them in order to stop them. Edwards had both of his hands in the front pockets of his pants. When he was asked to remove them for the officer’s protection, he would not. From experience as a police officer, Jimenez had determined that “when people keep their hands in pockets, it’s because they have a gun or knife, and they don’t want their hands out of their pockets.” The officer asked Edwards “repeatedly” to remove his hands, but “Mr. Edwards did not take his hands out of his pocket, at any time.”

Finally, Officer Jimenez put Edwards on the ground on his stomach in order to secure his hands behind his back with cuffs. Edwards still would not remove his hands from his pockets and was lying on top of them. Other police officers arrived as backup, and several officers attempted to aid Jimenez in removing Edwards’ hands from his pants pockets: “it took approximately three officers to get his hands out from underneath him, so he had been laying on them on the ground. . . . We kept telling him we needed to see his hands. We had no idea what he had in his hands, in his pockets. We just continued to, you know, try and get ahold of his arms, to pull his arms back behind him.” Once he was secured, the officers lifted Edwards off of the ground. “And his pants were unzipped, his boxers were pulled out threw [sic] his underwear, and there was a crack — baggy of crack located right in the vicinity of his crotch, where he was laying face down in the kudzu.” The contraband was retrieved from the kudzu. Held:

[A]rticulable suspicion that the law has been or is about to be violated is less than probable cause, but greater than mere caprice. What is necessary is a founded suspicion, some basis from which the court can determine that the detention was not arbitrary or harassing. Thus, in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh [s] the momentary inconvenience and indignity of investigatory detention. Each case turns on its own circumstances.

(a) In this case, the Howard Johnson motel was the scene of frequent drug investigations and was a known drug sale location. The information was that drug sales were currently occurring specifically in room 112 of the motel, and such information was provided by a known, credible concerned citizen who had provided information about drug activity at other times prior to the incident in question. Further, this information was relayed to Jimenez by fellow police officers as dispatch information. This dispatch information, coupled with (a) Edwards’ and his companion’s behavior in looking around for possible observation of their activities; (b) their clear connection to the specific room in which current drug activity had been reported; and (c) their otherwise inexplicable and “abrupt” departure from the door of that room upon seeing Officer Jimenez — a location at which they had only just arrived — provided a reasonable articulable suspicion that would justify a brief Terry detention of Edwards and his companion in order to investigate their connection to the reliable report of drug activity in room 112.

We reject Edwards’ contention that our decision in Barnes v. State requires a different end. This Court reversed in Barnes because the investigatory stop at issue was predicated solely on the defendant’s presence in a general area known for drug crime and he walked away when he saw a police officer. As described above, however, this case turns on more; a reasonable nexus can be inferred between the current drug activity, the specific location, and Edwards’ abrupt, immediate, and otherwise inexplicable attempts to remove himself therefrom upon spotting law enforcement. Accordingly, Barnes does not authorize a reversal.

(b) Because Officer Jimenez had a reasonable articulable suspicion to perform a brief Terry investigatory detention, Edwards’ and his companion’s refusal to stop at Jimenez’s oral request to do so provided a basis for the officer to pursue the men and detain them for questioning. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a criminal to escape.”

Decided February 20, 2002

Ruth L. Rocker, for appellant.

J. Tom Morgan, District Attorney, Joseph N. Walden III, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

(c) Finally, “[i]t is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” That the defendant several times refused to take his hands out of his pockets after being asked to do so “is not inconsistent with the reasonable belief that he might have been armed as a drug trafficker.” Accordingly, Edwards’ refusal to cooperate and show Jimenez his hands for the officer’s safety constituted an obstruction of a lawful investigation and provided probable cause to arrest for obstruction.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       Edwards was indicted and tried for possession of cocaine with intent to distribute.

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

       (Citations and punctuation omitted.) Garmon v. State, 271 Ga. 673, 677 (524 SE2d 211) (1999).

       See Penny v. State, 248 Ga. App. 772, 775 (2) (b) (547 SE2d 367) (2001) (“a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable”); accord Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999); see also Williams v. State, 193 Ga. App. 677, 680 (388 SE2d 893) (1989), overruled on other grounds, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996) (manager of rental unit considered concerned citizen providing information about drug activity therein).

       See Cunningham v. State, 231 Ga. App. 420, 421 (498 SE2d 590) (1998) (“In forming an articulable suspicion, an officer is entitled to rely on the information given him by a fellow officer”) (punctuation omitted); accord State v. Maddox, 252 Ga. App. 414 (556 SE2d 501) (2001); see also Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999) (information from police dispatcher sufficient to support a Terry investigative stop).

        Johnson v. State, 230 Ga. App. 535, 537 (496 SE2d 785) (1998).

       228 Ga. App. 44 (491 SE2d 116) (1997).

        Gonzales v. State, 235 Ga. App. 253, 254-255 (509 SE2d 144) (1998); Singleton v. State, 235 Ga. App. 88, 89-90 (508 SE2d 461) (1998).

       (Citations and punctuation omitted.) Holcomb v. State, 191 Ga. App. 379, 380 (381 SE2d 594) (1989); accord Stewart v. State, 236 Ga. App. 888 (513 SE2d 778) (1999).

       (Citations and punctuation omitted.) Stewart v. State, 227 Ga. App. 659, 660-661 (2) (490 SE2d 194) (1997).

        Satterfield v. State, 251 Ga. App. 141, 144 (553 SE2d 820) (2001).

        Green v. State, 240 Ga. App. 774, 775 (525 SE2d 154) (1999); Tuggle v. State, 236 Ga. App. 847, 849 (1) (d), (e) (512 SE2d 650) (1999).


text:
    A02A0832.
    CAPRICORN SYSTEMS, INC. et al. v. GODAVARTHY.
    (560 SE2d 730)
   Eldridge, Judge.

A DeKalb County jury returned a verdict against Capricorn Systems, Inc. (“Capricorn”) on its employment contract action against Srivinas Godavarthy and for Godavarthy on his counterclaim against Capricorn for past wages. The trial court entered final judgment on the jury’s verdict on February 12, 2001. In a second order, dated that same day, the trial court awarded to Godavarthy attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (b): “it is ORDERED that Srivinas Godavarthy have judgment against Capricorn Systems, Inc. in the amount of $40,000.00 of which $5,000.00 shall be against both Capricorn Systems, Inc. and its counsel, Theodore Lackland, jointly and severally.”

Thereafter, Capricorn and Lackland filed a notice of direct appeal from “the Final Order and Judgment granting Defendant’s Motion for Attorney’s Fees and Expenses under OCGA § 9-15-14.” Appellants’ sole claim of error is that “The trial court erred in granting Defendant attorney's fees under OCGA § 9-15-14 (b).” Held:

OCGA § 5-6-35 (a) (10) requires that an appeal of an award of attorney fees made pursuant to OCGA § 9-15-14 be preceded by the grant of a discretionary application[; however], a direct appeal is permitted “when it is appealed as part of a judgment that is directly appealable.” Haggard v. Bd. of Regents, 257 Ga. 524 (4) (a) (360 SE2d 566) (1987) (award of attorney fees and expenses of litigation made pursuant to OCGA § 9-15-14 and reduced to judgment several months after judgment which is the basis of a direct appeal may be appealed directly and considered in conjunction with main appeal). See also Stancil v. Gwinnett County, 259 Ga. 507 (384 SE2d 666) (1989) (since § 9-15-14 attorney fee award made two months after directly appealable judgment was entered was appealed with other matters directly appealable, no application was necessary); and Hallman v. Emory University, 225 Ga. App. 247, 249-250 (483 SE2d 362) (1997) (§ 9-15-14 award directly appealable since attorney fees were also awarded pursuant to OCGA § 51-7-80, which is not statutorily subject to discretionary review). Thus, “a party aggrieved by a post-judgment OCGA § 9-15-14 award is required to comply with the discretionary appeal procedure of OCGA § 5-6-35 (a) (10) only in those instances where no direct appeal has been otherwise taken from the underlying judgment. (Cit.)” Rolleston v. Huie, 198 Ga. App. 49 (4) (400 SE2d 349) (1990).

As was noted by now Justice Carley when he was a distinguished member of this Court,

OCGA § 5-6-35 (a) provides that appeals in certain specified instances “shall be taken” by application for a discretionary appeal. A careful reading of OCGA § 5-6-35 leads us to the inescapable conclusion that the legislature never intended for the application procedure to be circumvented. An appeal from an award under OCGA § 9-15-14 is included among those appeals which “shall be taken” by application for a discretionary appeal.

Decided February 20, 2002.

Theodore H. Lackland, for appellants.

Kramer & Thomas, Terence T. Thomas, Maureen W McCain, for appellee.

Thus, for judicial expedience and to avoid “the anomalous possibility that [an] OCGA § 9-15-14 award will be allowed to stand notwithstanding the reversal of the underlying judgment upon which the award was erroneously predicated,” this Court will review an OCGA § 9-15-14 award on direct appeal when such review is a part of a direct appeal taken from the underlying judgment. We will otherwise, however, continue to require application for discretionary review in those instances where the only judgment being appealed is a trial court’s award of expenses under OCGA § 9-15-14.

Here, it is clear that no direct appeal has been taken from the trial court’s order and judgment entered on the jury’s verdict, and the time for filing such is past.Indeed, no claim of error has been raised with regard to the jury’s verdict. The only order being appealed is the judgment against Capricorn and Lackland awarding Godavarthy attorney fees and litigation expenses under OCGA § 9-15-14. A direct appeal will not lie on such grounds, alone. Appellants’ failure to follow the requisite discretionary appeals procedures of OCGA § 5-6-35 deprives this Court of jurisdiction to consider this claim of error. Accordingly, the instant appeal must be dismissed.

Appeal dismissed.

Smith, P. J., and Ellington, J., concur.

       (Emphasis omitted and supplied.) Mitcham v. Blalock, 268 Ga. 644, 646-647 (4) (491 SE2d 782) (1997), overruled in part on other grounds, Felix v. State, 271 Ga. 534, 537 (523 SE2d 1) (1999).

       (Citation and punctuation omitted.) Rolleston v. Huie, supra at 51 (4).

       Id. at 52.

       OCGA § 5-6-38 (a).

        Fabe v. Floyd, 199 Ga. App. 322, 332 (405 SE2d 265) (1991) (“compliance with the discretionary appeals procedure is jurisdictional”).


author: Mikell, Judge.

text:
    A01A1634.
    SEA TOW/SEA SPILL OF SAVANNAH v. PHILLIPS.
    (561 SE2d 827)
   Mikell, Judge.

Sea Tow/Sea Spill of Savannah (“Sea Tow”) filed suit in state court against Robert L. Phillips seeking recovery for services rendered in connection with the salvage of Phillips’ boat. In his answer, Phillips raised as an affirmative defense the court’s lack of jurisdiction. After limited discovery, Phillips filed a motion to dismiss on January 25, 2000, arguing that the state court lacked subject matter jurisdiction because the marine salvage action was subject to federal maritime law and within the exclusive jurisdiction of the federal court sitting in admiralty. Thirteen days later, the court granted Phillips’ motion. After Sea Tow’s subsequent motion to set aside was denied, it appealed to this Court. We reversed the denial of the motion to set aside, because the trial court had failed to provide counsel with notice of the order of dismissal, effectively depriving Sea Tow of the opportunity to seek reconsideration or appeal of the adverse decision. Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 614-615 (2) (545 SE2d 34) (2001). We directed the state court to set aside and reenter its order. Id. Accordingly, the court reentered the order of dismissal on February 1, 2001. The present appeal followed. We now reverse the dismissal.

1. First, Sea Tow contends that the state court erred in granting Phillips’ motion to dismiss, because it did not provide Sea Tow adequate time to respond to the motion. Sea Tow argues that because the court considered matters outside the pleadings, the motion to dismiss was, in fact, a motion for summary judgment; therefore, Sea Tow should have been provided 30 days to respond pursuant to OCGA § 9-11-56 (c). We disagree.

A motion to dismiss for failure to state a claim upon which relief can be granted under OCGA § 9-11-12 (b) (6) will be converted to a motion for summary judgment when it relies on matters outside the pleadings; however, in this case Phillips’ motion to dismiss was based on a lack of subject matter jurisdiction, OCGA § 9-11-12 (b) (1), which is a “matter in abatement.” Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 821 (2) (377 SE2d 901) (1989). We recognize that Phillips brought his motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim; however, his entire argument regarding the latter ground was that the complaint failed to state a claim upon which that particular court could grant relief because the state court was not empowered to grant relief in admiralty matters. Phillips offered as evidence, outside the pleadings, responses to interrogatories by Sea Tow which asserted that its claim was based on “pure salvage with ... an agreement by the Defendant to pay for the services.” The order granting the motion to dismiss was based solely on the issue of jurisdiction. There is nothing in the record to indicate that the trial court relied on evidence when deciding the legal issue raised by the motion to dismiss.

“[J]urisdiction is a subject matter in abatement, not one involving a judgment on the merits.” Cohran v. Jones, 160 Ga. App. 761 (1) (288 SE2d 80) (1981). See also Manufacturers Nat. Bank &c. v. Tri State Glass, 201 Ga. App. 253, 254 (1) (410 SE2d 808) (1991). “Matters in abatement are not properly the basis for a motion for summary judgment.” (Citation omitted.) Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994). Thus, Phillips’ motion to dismiss was not converted to a motion for summary judgment, and the required response period provided in OCGA § 9-11-56 (c) did not apply.

Contrary to Sea Tow’s argument, it is not error for a court to decide a motion to dismiss for lack of subject matter jurisdiction prior to the expiration of the 30-day response period contemplated in Uniform State Court Rule 6.2. That rule provides in pertinent part: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.”

In Kidd v. Unger, 207 Ga. App. 109 (427 SE2d 82) (1993), we held that it was not error when a trial court decided a similar motion to dismiss before the 30-day response period had expired. That case involved Uniform Superior Court Rule 6.2, which is identical to the state court rule at issue in the case sub judice. We reasoned that “[t]he presence of the conditional language in the rule clearly gives the trial judge discretion regarding the period of time by which a party must respond to a motion in a civil case.” Id. at 110-111 (2).

On the other hand, Uniform State Court Rule 6.2 implies that the opponent of a movant can generally count on having 30 days in which to file a response “[u]nless otherwise ordered by the judge.” In Kidd, the trial court “convened a hearing on the issue.” Id. at 110. The scheduling by the trial court of a hearing on a matter in abatement prior to the running of the 30 days could certainly be interpreted as an order shortening the period of time for a response or at least as notice that the opponent should be prepared by the date of the hearing orally to urge legal authority in opposition to the motion. In the case at bar, as best as we can tell from the record, Sea Tow, as the party opposing the motion, had no opportunity to be heard, orally or by brief, prior to the court’s ruling.

Although many matters in abatement may be appropriate for an expedited ruling, there are two problems with a court’s ruling without hearing from both sides. The first is constitutional. “The fundamental requisite of due process of law is the opportunity to be heard. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” (Citation and punctuation omitted.) Mullane v. Central Hanover Bank &c. Co., 339 U. S. 306, 314 (70 SC 652, 94 LE 865) (1950). The second reason is practical. Trial courts and appellate courts greatly improve their chances for avoiding error by listening to both sides of an issue before making up their minds. The best book about how to be a judge is a long-out-of-print tome called The Trial Judge by Henry T. Lummus, published by The Foundation Press, Inc. in 1937. In it, Judge Lummus, then an associate justice of the Supreme Judicial Court of Massachusetts, counsels that a judge should listen patiently to both sides, even when the arguments are dull.

For most of us, instantaneous determination of complicated cases is impossible. A moderate degree of mental slowness, or apparent slowness, gives time for reflection, avoids snap judgments, and prevents parties from complaining that they were dismissed unheard.

Lummus, supra at 22.

The losing party in the court below, Sea Tow, was dismissed unheard. However, its first enumerated error complains that the motion to dismiss should have been treated as a motion for summary judgment entitling Sea Tow to 30 days to respond. That enumerated error is not sustained, and we will not disturb the ruling below on that ground.

2. The state court did err in granting Phillips’ motion to dismiss the action for lack of jurisdiction. 28 USC § 1333 (1) provides in pertinent part that federal district courts “shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” (Emphasis supplied.) Sea Tow contends that the present action may be brought in state court under the “saving to suitors” clause of the statute, which conveys concurrent jurisdiction to state courts over claims as to which an individual would have had a cause of action at common law. We agree.

In Lancaster v. Casey, 110 Ga. App. 278, 279-280 (138 SE2d 388) (1964), we held that

[t]he intention of the statute [28 USC § 1333] was to confer exclusive admiralty and maritime jurisdiction upon the Federal district courts, at the same time leaving to the suitor his option of seeking redress at common law. In personam suits, as distinguished from the in rem suits common to admiralty, clearly fall within the “other remedies” mentioned in the statute. The jurisdiction of the subject matter is concurrent and the forum is to be selected at the option of the plaintiff.

(Citation and punctuation omitted.) Id. Furthermore, the United States Supreme Court has recognized that the “ ‘saving to suitors’ clause . . . allows litigants to bring in personam maritime actions in state courts.” Offshore Logistics v. Tallentire, 477 U. S. 207, 222-223 (IV) (106 SC 2485, 91 LE2d 174) (1986). Thus, Sea Tow could elect to pursue an in personam action in state court.

It is unusual for Congress to attempt by statute to grant jurisdiction to state courts in contradiction to the allocation of power prescribed by the United States Constitution. One such allocation is the seemingly exclusive grant of admiralty jurisdiction to the federal courts. U. S. Const., Art. III, § 2. See generally Maryland Cas. Co. v. Grant, 169 Ga. 325 (150 SE 424) (1929), cert. denied, Grant v. Glynn Canning Co., 281 U. S. 690 (50 SC 240, 74 LE 1120) (1930). Nonetheless, the validity of the grant of jurisdiction by the “saving to suitors” clause is beyond argument because it was part of the Judiciary Act of 1789, 1 Stat. 76 (1789), a statute enacted by the first Congress. Acts of that Congress concerning governmental organization have traditionally been given extra deference because many legislators in that Congress had also been members of the Constitutional Convention. See Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L. Rev. 205, 259 (1985). See also Murdock v. City of Memphis, 87 U. S. 590, 594 (22 LE 429) (1874). Also, the Judiciary Act of 1789 established the federal district courts as Congress was permitted to do by Art. Ill, Sec. 1 of the U. S. Constitution, and simultaneously gave concurrent jurisdiction to state courts in admiralty for some remedies, “where the common law is competent to give it.” 1 Stat. 76-77. Although the extent of the limited, concurrent jurisdiction of state courts in maritime matters has been exhaustively litigated in the two centuries since 1789, the existence of some form of concurrent state jurisdiction has never been questioned. See Gilmore and Black, The Law of Admiralty (2nd ed. 1975), supra at §§ 6-45 — 6-52.

Phillips relies on Sasser v. Lester, 153 Ga. App. 220, 221 (1) (264 SE2d 728) (1980) (physical precedent only); however, that case does not hold that federal courts have exclusive jurisdiction over all marine salvage claims. Rather, it states that federal courts “may have exclusive jurisdiction over the establishment and amount of salvage. liens sought by the salvors of ships or cargo” and that federal maritime law generally controls in marine salvage cases. Sasser correctly holds that only federal courts have jurisdiction to impose an in rem lien on the salved vessel. But it does not preclude a Georgia court from exercising concurrent jurisdiction, with the federal courts, over the salvor’s in personam claim against the owner of the salved vessel.

Moreover, Sasser is in accord with well-established law: the rules of decision in a state court action in admiralty will be governed by federal law. As stated by Justice O’Connor in Offshore Logistics v. Tallentire, supra at 222-223 (IV):

The “saving to suitors” clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit’ so long as it does not attempt to (give in rem remedies or) make changes in the ‘substantive maritime law.’ ” [Madruga v. Superior Court of California, 346 U. S. 556, 560-561 (74 SC 298, 98 LE 290) (1954),] (quoting Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 124 [(44 SC 274, 68 LE 582)] (1924)). Stated another way, the “saving to suitors” clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state law may be used to remedy maritime injuries is constrained by a so-called “reverse-Erie” doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards. Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 34 (1963) (referring to Erie R. Co. v. Tompkins, 304 U. S. 64 [(58 SC 817, 82 LE 1188)] (1938)). See also Garrett v. Moore-McCormack Co., 317 U. S. 239, 245 [(63 SC 246, 87 LE 239)] (1942); Stevens, Erie RR. v. Tompkins and the Uniform General Maritime Law, 64 Harv. L. Rev. 246 (1950).

Additionally, Phillips cites a Florida appellate decision, O’Neill v. Schoenbrod, 355 S2d 440 (Fla. App. 1978), which affirmed the dismissal of a salvage claim brought in state court because salvage was “a matter peculiarly within the jurisdiction of the admiralty courts because, inter alia, of the peculiar system awarding the compensation.” Inexplicably, O’Neill does not address the appellant’s argument that the state court would have concurrent jurisdiction over an in personam action under the “saving to suitors” clause. Regardless of the court’s reasoning, O’Neill does not provide binding precedent for this Court.

Decided February 1, 2002

Reconsideration denied February 21, 2002

Portman & Shehane, James F. Shehane IV, for appellant.

Hunter, Maclean, Exley & Dunn, Colin A. McRae, for appellee.

Accordingly, because Sea Tow could maintain an in personam salvage action in a Georgia court, pursuant to 28 USC § 1333 (1), the state court erred in granting Phillips’ motion to dismiss.

Judgment reversed.

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

       Phillips argues that Sea Tow did not raise the “saving to suitors” clause in the trial court and is hence precluded from relying on it now. However, Sea Tow did not have an opportunity to raise any argument prior to the court’s ruling on Phillips’ motion to dismiss. Furthermore, not knowing that the court had already ruled, Sea Tow filed on February 21, 2000, a brief in which it argued that the state court had subject matter jurisdiction over an in personam claim for salvage. Under Georgia’s liberal “notice pleading” system, a litigant is not required to direct a court’s attention to the precise constitutional or statutory source of jurisdiction.

        Maryland Cas., supra, relied on Southern Pacific Co. v. Jensen, 244 U. S. 205 (37 SC 524, 61 LE 1086) (1917), a case which recognized the “saving to suitors” clause but held it inapplicable to workers’ compensation cases.

       The statute was amended in 1948 and 1949 and now reads “saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 USC § 1333. See Gilmore and Black, The Law of Admiralty (2nd ed. 1975), § 1-13.


author: MlKELL, Judge.

text:
    A01A1648.
    JONES v. THE STATE.
    (560 SE2d 695)
   MlKELL, Judge.

The Grand Jury of Echols County indicted Amory Sylvanus Jones on two counts of aggravated assault and two counts of interference with government property. Jones pled guilty to one count of aggravated assault and was sentenced to ten years in confinement. On appeal, Jones asserts three errors: (1) his plea was not freely and voluntarily given; (2) the trial court erred by denying his motion to withdraw his plea; and (3) the prosecution denied him the right to all exculpatory evidence in its possession. Having found no error, we affirm.

1. In his first enumeration of error, Jones argues that his plea was not voluntarily, knowingly, or wilfully given. We disagree.

When a defendant challenges the validity of a guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill[ing] a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

“The most reliable method of perfecting the record is to conduct an inquiry into the defendant’s understanding of the nature and consequences of his plea.”

In this case, the trial judge thoroughly inquired into Jones’ understanding of the rights he waived by entering a guilty plea. He informed Jones of his right to a jury trial, the presumption of his innocence, and his right to confront his accusers and to subpoena witnesses to testify on his behalf. In each instance, Jones indicated that he understood his rights. The court ensured that Jones understood that by entering a plea of guilty, the court could proceed with the sentencing phase of the case and explained the range of the possible sentence to him. When asked whether his guilty plea was made freely and voluntarily, Jones answered affirmatively.

After the prosecution recited the facts of the case, the trial judge asked Jones, “Are you totally satisfied that if you went to trial that the evidence would be more than sufficient to convict you beyond a reasonable doubt of the charges that have been made against you?” Jones replied that he was satisfied that he would be convicted and entered his guilty plea. It is readily apparent from the record that Jones was made cognizant of the rights he waived by pleading guilty and that his plea was freely, intelligently, and voluntarily given. Accordingly, this enumeration fails.

2. Next, Jones argues that the trial court should have granted his motion for leave to withdraw his guilty plea. “The trial court’s denial of a motion to withdraw a guilty plea is a matter within the court’s sound discretion and will not be disturbed on appeal unless manifestly abused.”

Based on our finding that Jones’ plea was freely and voluntarily given, we find no error in the trial court’s denial of his motion. Furthermore, we agree with the prosecution that the trial court had no authority to grant Jones’ motion because it was filed after the expiration of the term of court in which the sentence was entered.

Jones also argues that the court’s ruling on his motion was erroneous because he was denied effective assistance of counsel. Ordinarily, ineffectiveness hearings are first held at the trial court. “When remand would serve no useful purpose, however, the issue may be decided on the record by this Court.” To establish a claim of ineffective assistance of counsel in the context of a guilty plea, “a defendant must demonstrate . . . that the performance of counsel fell below an objective standard of reasonableness and . . . that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”

The court asked Jones the following questions about his attorney:

Has he gone over the case with you? . . . Has he explained to you your rights and responsibilities? . . . Has he given you an opportunity to talk to him about the case? . . . Has he done everything that you think he could or should have done in regard to representing you? . . . Has he failed to do anything that you think he could or should have done? . . . Are you perfectly satisfied with his services?

In response to each question, Jones replied, “yes.” Accordingly, we conclude that Jones has not shown that but for counsel’s errors, he would have chosen to proceed to trial. The transcript of Jones’ plea shows clearly that Jones fully understood what he was doing when he entered the plea and that it was entered voluntarily.

3. Jones contends that the prosecution violated his constitutional right to all exculpatory evidence in its possession. The exculpatory evidence in question is the affidavit of Marcus Hart, which is attached as an exhibit to Jones’ motion to amend to withdraw his guilty plea. We disagree.

Decided October 2, 2001

Reconsideration denied February 21, 2002.

Amory S. Jones, pro se.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

While Brady v. Maryland does impose an affirmative obligation upon the state to timely provide material evidence in its possession that is favorable to a defendant, the prosecution did not violate Brady in this case. The affidavit in question was created several months after the trial. Therefore, it could not be produced by the prosecution before trial.

Judgment affirmed.

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

       Jones’ charges arose out of his involvement in a high speed chase with officers of the Lowndes County Sheriff’s Office. Several items were thrown at the police car from the car that Jones was driving.

       The trial court granted the prosecution’s motion to enter nolle prosequi as to the remaining charges.

       (Citations and punctuation omitted.) Morgan v. State, 191 Ga. App. 367-368 (1) (381 SE2d 583) (1989).

        Clowers v. Sikes, 272 Ga. 463, 464 (532 SE2d 98) (2000).

       (Citations omitted.) Swan v. State, 251 Ga. App. 80, 81 (2) (553 SE2d 383) (2001).

        Cook v. State, 230 Ga. App. 507 (496 SE2d 785) (1998).

       Jones raised an ineffective assistance of counsel claim in his motion for leave to amend to withdraw his guilty plea, but there was no hearing on Jones’ motion.

       See Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989).

       (Citations and punctuation omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4), n. 1 (495 SE2d 347) (1998).

       (Citations and punctuation omitted.) Sibley v. State, 249 Ga. App. 664-665 (550 SE2d 104) (2001).

        Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).

       Jones also argues that his counsel was ineffective because he withdrew from the case without taking the steps necessary to avoid foreseeable prejudice to Jones, wilfully abandoned and disregarded legal matters, and did not advise Jones of his right to appeal. Since the plea hearing preceded these events, these actions would have had no effect on whether Jones chose to proceed to trial, which is what Jones must show to establish ineffectiveness. Moreover, we find no evidence in the record to support any of these arguments. Even if we assume that Jones’ counsel did not advise him of his right to appeal, it is clear from the transcript that the court advised Jones of this right; thus, he suffered no harm.

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).