text:
    A98A1214.
    RAPAPORT v. BUCKHEAD COACH, INC. et al.
    (506 SE2d 690)
   Smith, Judge.

Alan Rapaport appeals from an order finding him in contempt of a consent order and ordering him to pay attorney fees. He contends the trial court erred in holding him in contempt and in imposing a sanction not permitted by law. We conclude that the trial court did not err in finding Rapaport in contempt, but that payment of attorney fees is not a permissible sanction in a criminal contempt action. We therefore affirm the finding of contempt, but we reverse that portion of the trial court’s order ordering Rapaport to pay Buckhead Coach’s attorney fees and remand to the trial court for imposition of a permissible sanction.

The record shows that Buckhead Coach, Inc. and Hotlanta Buck-head Shuttle, Inc., both d/b/a Hotlanta Buckhead Shuttle and Buck-head Shuttle, brought an action against Rapaport, d/b/a Hotlanta Super Shuttle & Limo Service and Buckhead Super Shuttle, alleging tradename and trademark infringement, deceptive trade practices, unfair competition, and fraud. That action resulted in a consent order, under the terms of which Rapaport was enjoined from identifying his business as Hotlanta Buckhead Shuttle or Buckhead Shuttle. Among other provisions of the consent order, Rapaport was ordered to give prompt notice to Buckhead Coach if he sought to use “any telephone directory listing” to which he was not committed by contract at the time of the consent order.

Buckhead Coach brought this contempt motion, alleging that Rapaport had violated the consent order by contracting with Bell-South Yellow Pages for a listing under the name of Hotlanta Shuttle. At a hearing, evidence was presented that Rapaport had not ordered the listing in issue; it had been placed in the Yellow Pages mistakenly by BellSouth. The trial court heard evidence from Buckhead Coach, however, about a different violation of the consent order: an advertisement for Hotlanta Limo in the Yellow Pages. Rapaport was not prohibited from using this name, but he had placed the advertisement without prior notification to Buckhead Coach. The trial court entered an order finding Rapaport in contempt of the consent order because of the Yellow Pages advertisement for Hotlanta Limo and ordered him to pay Buckhead Coach’s attorney fees.

1. Rapaport first maintains the finding of contempt was erroneous because the motion for contempt was directed at the listing for Hotlanta Shuttle and did not address the advertisement for Hotlanta Limo, thereby failing to give him notice or the opportunity to defend himself against such a charge. Rapaport points out that criminal “[cjontempt is a drastic remedy which ought not to deprive one of [his] liberty unless it rests upon a firm and proper basis.” (Citations and punctuation omitted.) Salter v. Greene, 226 Ga. App. 384, 385 (1) (486 SE2d 650) (1997). And we note that the law requires notice and an opportunity to be heard as to the charges before a finding of criminal contempt is made. Id.

We agree with Rapaport that although the order does not specifically label the finding as such, it is a finding of criminal contempt. The distinction between criminal and civil contempt “is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order. [Cit.]” Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202) (1987). In this case, punishment was not made conditional upon any attempt by Rapaport to comply with the consent order.

We do not agree, however, that the motion for contempt was so narrowly drawn that it did not encompass the conduct forming the basis of the finding of contempt. It alleged that Rapaport “is in violation of [the consent order] in that he has failed to give prompt notice of the use of any telephone directory listing to which he was then not currently committed by contract and has now committed himself without such notice to a contract with the BellSouth Yellow Pages using the name ‘Hotlanta Shuttle’, a name also used by the plaintiffs.” (Emphasis supplied.) Although the motion specifically enumerated the Hotlanta Shuttle listing, the allegation was drawn in the conjunctive, indicating more than one violation, including the allegation that he had failed to give notice to Buckhead Coach before contracting for a new listing. See generally Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988) (use of word “and” between terms defining “residence premises” in fire insurance contract indicates both conditions required); Haskell v. Domain, 160 Ga. App. 145, 146 (286 SE2d 755) (1981) (use of “and” to connect requirements for eligibility for retirement program indicates all must be met). Compare Hill v. Nationwide Mut. Fire Ins. Co., 214 Ga. App. 715, 717 (448 SE2d 747) (1994) (use of connector “or” instead of “and” between terms defining “residence premises” in fire policy indicates both conditions not required). Rapaport received the notice to which he was entitled.

2. Rapaport next contends he should not have been found in contempt because the Yellow Pages advertisement was just that — an advertisement, and not a “directory listing” within the meaning of the consent order, as found by the trial court. This contention, too, is patently without merit. It is apparent that the very purpose of the consent order would be subverted if it applied only to a one-line free “listing,” while permitting Rapaport to purchase advertisements in telephone directories that used the prohibited names in type faces many times larger than the one-line “listing.” To interpret the consent order in this manner would defy common sense. Moreover, Rapaport clearly knew or should have known that regardless of the exact wording of the consent order, this particular conduct was violative of its intent. “ ‘It is the spirit more than the letter of the injunction to which obedience is required.’ ” Smith v. Gwinnett County, 268 Ga. 179, 180 (1) (486 SE2d 151) (1997). The trial court did not err in finding that the offending advertisement was within the purview of the consent order and that Rapaport had violated the order.

Decided September 15, 1998.

Venema, Doherty & Delashmit, Paul T. Wright, for appellant.

Richelo, Morrissey & Gould, Brian J. Morrissey, for appellees.

3. We must conclude, however, that OCGA § 15-6-8 limits the power of the superior courts to punish for contempt to those sanctions included in subsection (5) of the statute. Attorney fees are not included in the permissible sanctions, and the Supreme Court of Georgia has held that they are not awardable in conjunction with a citation for criminal contempt. Gen. Teamsters Local &c. v. Allied Foods, 228 Ga. 479, 485 (5) (186 SE2d 527) (1971). See Johnson v. Kaplan, 225 Ga. App. 53, 56 (3) (483 SE2d 292) (1997). The trial court erred in sanctioning Rapaport by ordering him to pay Buck-head Coach’s attorney fees. We therefore vacate the award and remand to the trial court for imposition of a sanction permitted under the statute.

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

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

       Rapaport mistakenly cites OCGA § 15-2-8 (6), which is inapplicable here.

       We note that in civil contempt, attorney fees are awardable. “[A]ttomey fees are awarded only where some express authority or power exists. No authority exists to award attorney fees merely because the action is for contempt. However, where authority exists and there is no prohibition, attorney fees may be awarded.... Prohibition against the award of attorney fees is a separate matter from authority for the award. . . . [I]f a prohibition against attorney fees exists in contempt actions it is limited to criminal contempt.” Minor v. Minor, 257 Ga. 706, 709 (2) (362 SE2d 208) (1987).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1287.
    In the Interest of A. M. N. et al., children.
    (506 SE2d 693)
   Beasley, Judge.

Terry Lynn Nelson and Bertha Lynn Perkins appeal an order terminating their parental rights to three children. They contend the court erred in determining that the cause of the children’s deprivation is likely to continue or will not likely be remedied (OCGA § 15-11-81 (b) (4) (A) (iii)), that the court and the Department of Human Resources failed to make an exhaustive and thorough search for placement with a suitable family member (OCGA § 15-11-90 (a) (1)), and that they failed to use reasonable efforts to reunite Perkins (mother) and the children.

The evidence showed that in October 1993, the parents, who were then under the influence of heroin, abandoned their three children at a store after being confronted by an employee who caught them shoplifting. The girls were eight and five years old, and the boy was seven months. After the mother threw the baby at the employee, the parents fled from the area, shoplifted in another store, and went to Florida. On the day they were abandoned, the girls were uncombed, and the baby needed a clean diaper, had no milk in his bottle, and had no socks or shoes. The Department of Family & Children Services (DFCS) took custody of the children and they were placed with Mr. and Mrs. A1 Perkins, the mother’s brother and sister-in-law.

In part to contact their local drug supplier, the parents returned 20 days later. Police arrested them for theft by shoplifting and abandonment, and they pled guilty. Nelson and Perkins began serving two-year prison terms with probation to follow. Nelson also pled guilty to certain charges in DeKalb County at about the same time and was sentenced to five years in prison. Perkins pled guilty to other charges in two other counties which resulted in one- and two-year prison terms and more probation.

At the request of DFCS, the juvenile court held a hearing at which both parents were present and represented by counsel. It found by clear and convincing evidence that the children were deprived under OCGA § 15-11-2 (8). Neither parent has appealed this order. Placement of the children remained with Perkins’ brother, but on March 7, 1994, it was discovered that the baby boy had been moved three or four months earlier, without approval or notice, to the paternal grandmother’s home in Coweta County. DFCS investigated the conditions at this location and determined they were unacceptable. Because this violated DFCS policy and endangered the girls as well, DFCS removed all three children from placement with Mr. and Mrs. A1 Perkins and placed them in two foster homes, the two older girls in one home and the baby boy in another.

In January 1994 DFCS established the first of four semi-annual case plans for the family with an initial goal of reunification. Neither parent paid court-ordered child support after DFCS took custody, and although the parents corresponded with the children, their relationship with the children did not strengthen. The parents’ incarceration for their felony convictions continued, and the children were not in a stable environment. In the July 1994 case, plan the goal for the children was changed to “permanency,” and placement with a relative was to be pursued.

On April 3, 1995, DFCS petitioned for termination of parental rights. The petition was heard by the juvenile court on November 6, 7, 11 and 13, 1995 and April 4, 1996. The two girls were among the witnesses from whom the court heard.

The evidence presented at the hearings showed that the mother had three felony incarcerations during her oldest child’s life, twelve arrests, a tendency to steal, two other children placed with relatives, a history of addiction, an abusive relationship with the father, a habit of injecting heroin with her children present, difficulty ensuring that the children attended school, and a history of taking the children shoplifting.

The father had six lifetime felony incarcerations, four of which occurred in his oldest child’s lifetime, twenty arrests, a tendency to steal, and another DFCS encounter ending with him surrendering his parental rights to another child. He also had a ten-year drug abuse history and had injected heroin with his children present. He disciplined the older children until blood ran from their legs, drove with them while using drugs, took them shoplifting, and beat their mother in their presence.

1. “The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” On appeal, “[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.”

“Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence- of parental misconduct or inability.’ ” “A finding of parental misconduct or inability must rest on clear and convincing evidence showing: (1) the child is a deprived child as defined by OCGA § 15-11-2; (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) such cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i), (ii), (iii), and (iv); [cit.] ... If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the child’s best interest.”

Nelson and Perkins do not contest that the children have been deprived and that their lack of parental care and control is the cause. Nor do they question that continued deprivation will likely cause serious harm to the children. The record contains ample evidence to support those findings. Rather, they insist that their parental rights may not be taken from them just because of their past behavior and incarceration, and that the Department failed to present clear and convincing evidence that the cause of the deprivation will continue.

“While it is true that past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.” This is especially true here where expert testimony shows that the irresponsible past behavior predictably will continue. The children’s past deprivation, their present condition, the parents’ projected future behavior and the projected impact on the children are all relevant.

Not insignificant is that the children’s past experience with their parents now requires more skillful parenting than would normally have been needed. Testimony showed that the children continue to be deprived because of the lack of permanency in their lives, the lack of a bonding relationship with one person who is a consistent parental figure, and the effect of “foster care drift” which prevents a child from forming emotional attachments with others.

As for the parents’ projected future behavior, Nelson and Perkins were evaluated by Dr. Martin Youngleson, a clinical psychologist. He testified Perkins suffered from a personality disorder, polysubstance dependence, and the effects of childhood abuse. She lacked an understanding of her children’s physical and emotional needs and of her own addiction. He found that her egocentricity, immaturity, tendency to become involved with abusive men, and history made her a likely candidate for drug relapse and an unlikely candidate for long-term, meaningful change without five to twenty years of intensive therapy costing a minimum of $80 per week.

During the course of the hearings an event occurred that all but confirmed Youngleson’s findings. At the time of the November 1995 hearings, Perkins was assigned to a transitional facility, a work release center, for the last several months of her sentence. Her parole date was set for February 29, 1996, and the juvenile court postponed a decision on termination to provide additional time for her to attempt to demonstrate effective parenting skills once she got out. In .the interim she was sent back to prison to serve the remainder of her original two-year sentence, apparently because she tested positive for drug use.

As for Nelson, Dr. Youngleson diagnosed him with antisocial personality disorder and polysubstance addiction. The doctor said that he could not form nurturing relationships and lacked insight about his addiction. The doctor found recovery from addiction and long-term change unlikely and concluded that Nelson lacked the mental and emotional health necessary to be an adequate parent.

Although imprisonment alone does not lead to termination, “where, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.”

Evidence was presented showing the effects on the children. When DFCS took custody, the girls could not read and had behavioral problems. Their reading improved during their foster care. Neither child wanted to live with the father, and both expressed an aversion to being with their mother if the parents lived together. During and after visits with the parents, the middle child regressed, and she could not describe a positive experience from the period when she lived with her parents. She recounted several positive experiences to a psychologist that occurred after entering foster care. She told the court she was afraid of her father. The foster parents were interested in adopting them, and the children were capable of accepting being adopted.

Initially, the youngest child had a sleep disorder, had underdeveloped speech and motor skills, and needed occupational, physical, and speech therapy. The child had nightmares after visiting his parents. By the time of the hearings, the child was developmentally on target. The boy essentially did not know his parents, and the foster parent wanted to adopt him.

All three children were examined by psychologist Dr. Barrie Alexander. She opined that the young boy had already attached to his foster parent and that removing him would be traumatic and long-term damage could result if he were placed back with his biological parents.

As for the girls, the younger had already begun the process of disengaging from her mother and was open to adoption by a new family. Both girls stated they cared for their mother but that they did not believe things would change. Dr. Alexander stated that the girls would need sophisticated parenting to understand the emotional effect of their past. She testified it would be traumatic for them if they were placed with Nelson and Perkins and the parents went back to their old ways. It would be more devastating if Nelson and Perkins initially proved to be good parents but then later reverted, in part because the girls would lose the ability to trust anyone again. In sum, the achievement of a successful reunion and raising if the children were returned to their parents was remote.

It is true that both parents have taken some steps toward improving their lives, but “[t]he trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court. [Cit.]”

Given the testimony of the psychologists and the social worker about the effect on the children of their parents’ condition and behavior, the parents’ continued incarceration and years of probation, their past behavior, and the likelihood of any significant and meaningful change, a rational trier of fact could have found by clear and convincing evidence that the deprivation was likely to continue or would not likely be remedied.

2. The parents insist that the court and the Department of Human Resources failed to make an exhaustive and thorough search for placement with a suitable family member as required by OCGA § 15-11-90 (a) (1). The only candidate they mention is Perkins’ brother and sister-in-law.

DFCS initially placed the children with Mr. and Mrs. Perkins, but they violated DFCS policy thereby endangering all three children. Despite this, DFCS considered placing the children there permanently, until an investigation revealed that the Perkinses had criminal histories, a pending welfare fraud investigation, and that the uncle had an alcohol problem. The uncle could give no details about his income, and the aunt did not work. They lived in a three-bedroom mobile home with their three children. The addition of three children would be problematic. The home was not approved.

Decided September 15, 1998.

Banks, Stubbs & Neville, John R. Neville, Donald W. Wagner, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Kathryn C. Reeder, Shaten A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Bivens, Hoffman & Fowler, Mark A. Cobb, for appellees.

Mrs. Perkins testified that she would like to have the children live with them, but in light of the evidence, and of the foster parents’ desire to adopt, we find no abuse of discretion in not placing the children with these relatives.

3. With regard to the efforts made to reunite the mother with the children, the court heard extensive testimony of all such attempts and even postponed its final ruling pending Perkins’ expected upcoming release in order to determine whether she was capable of effective parenting. At that point the children had been in foster care for two and a half years. The guardian ad litem urged the court that the children could not tolerate any additional delay in permanency. This was consistent with the recommendations of the DFCS caseworker and the children’s psychologist.

All said, the court did not abuse its discretion in terminating the appellants’ parental rights.

Judgment affirmed.

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

       (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997); Blackburn v. Blackburn, 249 Ga. 689, 694 (2) (292 SE2d 821) (1982).

        In the Interest of R. N, 224 Ga. App. 202 (480 SE2d 243) (1997); In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986).

        In the Interest of R. N., supra.

        In the Interest of R. D. S. P., 230 Ga. App. 205, 206 (495 SE2d 867) (1998).

        In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987).

       See In the Interest of T. B. R., 224 Ga. App. 470, 476 (1) (d) (480 SE2d 901) (1997); In the Interest of J. M. C., 201 Ga. App. 173, 175 (410 SE2d 368) (1991) (court may consider “the detrimental effects of prolonged foster care”).

       (Emphasis omitted.) In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991); In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992); In the Interest of T. B. R., supra at 474 (1) (c); In the Interest of K. J., 226 Ga. App. 303, 307 (2) (a) (486 SE2d 899) (1997).

        In the Interest of J. R., 201 Ga. App. 199, 200 (1) (410 SE2d 458) (1991); see In the Interest of M. N. L., 221 Ga. App. 123, 124 (1) (470 SE2d 753) (1996).

       See In the Interest of A. W., 198 Ga. App. 391 (401 SE2d 560) (1991).

       Compare In the Interest of M. R., 213 Ga. App. 460, 466-467 (3) (444 SE2d 866) (1994), overruled on other grounds, In the Interest of C. W. S., 231 Ga. App. 444, 447 (3) (498 SE2d 813) (1998) (decision not to place child with relative whose ability to care for child may be limited not abuse of discretion); In the Interest of D. T., 221 Ga. App. 328, 330 (2) (471 SE2d 281) (1996) (only candidate declined to accept the responsibility for custody).


author: McMurray, Presiding Judge.

text:
    A98A1307.
    NUNNERY v. THE STATE.
    (506 SE2d 888)
   McMurray, Presiding Judge.

Defendant was tried at a bench trial and convicted of simple battery by making physical contact of an insulting and provoking nature with his spouse (“the victim”). At trial, the arresting officer testified that he responded to a domestic disturbance call at the home of the victim and the defendant; that he found the victim and the house in disarray when he arrived at the scene, and that he observed a bruise on the victim’s face. The officer also testified that the victim told him that defendant struck her during an argument. Defendant, appearing pro se, testified that he and the victim “pushed each other” during the argument, but that he did not hit her during the fight. This appeal followed entry of judgment of conviction and sentence against defendant. Held:

Decided September 15, 1998.

Billy M. Grantham, for appellant.

Kirbo & Kendrick, Ben Kirbo, for appellee.

1. Assuming, without deciding, the victim was compelled to testify against defendant in violation of OCGA § 24-9-23 (a), we find no basis for reversal since the trial judge indicated that the victim’s testimony was unnecessary for him to reach a verdict. Moreover, there is overwhelming evidence that defendant committed the crime charged. The arresting officer not only testified that he observed a bruise on the victim’s face when he arrived at the crime scene, defendant admitted at trial that he engaged in a shoving match with the victim. This proof, and the arresting officer’s testimony — probative under Drane v. State, 265 Ga. 663, 664 (1) (461 SE2d 224) — that the victim informed him at the crime scene that defendant struck her, overwhelmingly supports the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of simple battery as charged in the accusation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Under such circumstances, we find it highly probable that the victim’s testimony did not contribute to the trial judge’s guilty verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869). “ ‘It was harmless and will not require a new trial. (Cit.)’ Duvall v. State, [259 Ga. 801, 802 (4), 803 (387 SE2d 880)]. See also Shaaghir v. State, 264 Ga. 492, 493 (3) (448 SE2d 196) (1994).” McIntyre v. State, 266 Ga. 7, 10 (4), 11 (463 SE2d 476).

Defendant’s first and third enumerations of error are without merit.

2. Defendant contends “[t]he trial court abused its discretion by not allowing a competent witness to present evidence for [him] at trial.” This enumeration presents nothing for review “as defendant failed to proffer the testimony which was allegedly improperly excluded by the trial court. Harris v. State, 263 Ga. 526, 527 (1) (435 SE2d 669).” Wright v. State, 216 Ga. App. 486 (2) (455 SE2d 88).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A98A1316.
    BOONE v. THE STATE.
    (506 SE2d 884)
   Smith, Judge.

Timothy Earl Boone was indicted for murder. He was found guilty by a jury of voluntary manslaughter, and he appeals. We find no error, and we affirm.

The record shows that Boone was separated from his wife, Pearlie, and that Pearlie was living with Henry Steedley. Boone admitted he did not want his marriage to end and was upset that Pearlie had filed for divorce. Both Pearlie and a neighbor testified that to observe Pearlie, Boone had parked his truck near the trailer in which she and Steedley were living. In the early evening on the date in issue, Pearlie, Steedley, and Pearlie’s three children drove to a gas station in Fargo, Georgia. Boone was parked across the street. He watched Pearlie and her children enter the station. When they returned, Steedley left the car. He crossed the street at “a slow jog” to Boone’s truck. He was unarmed. Boone took his knife out of its sheath as Steedley crossed the road and stabbed him in the chest, causing him to bleed to death. Boone then drove to the home of a deputy sheriff, handed him the bloody knife, and told him what had transpired.

1. Boone contends the trial court erred in denying his motion in limine to exclude certain letters Boone wrote to Pearlie during their separation. The letters included at least arguable threats directed at Pearlie. But the letters did not mention Steedley, and the threats in the letters, which involved taking Pearlie’s children from her, were not acted on.

“Threats, though remote, are admissible in murder trials for the purpose of showing motive and malice on the part of the accused. [Cits.]” Vun Cannon v. State, 208 Ga. 608, 612 (3) (68 SE2d 586) (1952). And the remoteness affects only the weight, not the admissibility of the evidence. Id.

At the hearing on the motion, the prosecutor stated the State’s intention to introduce the letters to show Boone’s motive and state of mind. Evidence of prior difficulties between the victim and the accused are admissible to show motive, intent, or bent of mind toward the victim. Cannon v. State, 257 Ga. 475, 478 (3) (360 SE2d 592) (1987). Although these letters do not include direct threats against Steedley, they do demonstrate prior difficulties between Boone and Steedley because Pearlie, Steedley, and Boone were involved in a romantic triangle; prior threats by Boone against Pearlie were therefore relevant to a crime against Steedley. The trial court did not err in admitting the letters.

2. Boone asserts error in the trial court’s failure to give curative instructions or rebuke the prosecutor when the prosecutor made improper argument before the jury. We do not agree that the argument in issue was improper.

In closing argument, the prosecutor asked the jury: “[W]hen are you going to get tough on crime in Clinch County?” Boone objected and was overruled. In arguing to the jury, “[i]t is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard. [Cit.]” Davis v. State, 266 Ga. 801, 804 (8) (471 SE2d 191) (1996). See Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993).

3. The trial court charged the jury over Boone’s objection on the lesser offense of voluntary manslaughter. The offense of voluntary manslaughter is committed when one “causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). Boone argues that the trial court erred in giving such a charge because no evidence was presented of the “sudden, violent, and irresistible passion” necessary to support it and that he stabbed Steedley in self-defense, so that the killing was either murder or justifiable homicide.

Contrary to Boone’s argument, a charge on voluntary manslaughter is not restricted to situations involving mutual combat. Here, as in Raines v. State, 247 Ga. 504 (277 SE2d 47) (1981), “[although the appellant’s testimony may have excluded voluntary manslaughter as a possible verdict, the evidence as a whole did not.” (Citation and punctuation omitted.) Id. at 506 (1). Adulterous conduct provides sufficient provocation to authorize a charge on voluntary manslaughter. Strickland v. State, 257 Ga. 230, 231-232 (2), n. 2 (357 SE2d 85) (1987). And “[o]n the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given to the jury. [Cits.]” Henson v. State, 258 Ga. 600, 602 (5) (372 SE2d 806) (1988). The trial court properly charged the jury on voluntary manslaughter.

4. Boone contends the trial court erred in failing to instruct the jury that it was their duty to acquit if they believed he was justified in killing Steedley. But the trial court gave all Boone’s requests to charge, including Boone’s requested charges on justification. Moreover, when asked by the trial court, Boone did not object to the charge or reserve objections. His only objection was to the charge on voluntary manslaughter. This amounts to a waiver of any other objections. Early v. State, 218 Ga. App. 869, 870 (463 SE2d 706) (1995).

Judgment affirmed.

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

Decided September 15, 1998

Charles J. Steedley, for appellant.

Robert B. Ellis, Jr., District Attorney, Ellen S. Golden, Assistant District Attorney, for appellee.


text:
    A98A1333.
    WILSON v. THE STATE.
    (506 SE2d 882)
   Smith, Judge.

James R. Wilson was indicted by a Floyd County grand jury on six counts of child molestation involving six young girls. He was acquitted on two counts and convicted on the remaining four. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Wilson asserts that the trial court erred in failing to direct a verdict as to Count 6 of the indictment, charging that he committed child molestation by touching and fondling the vagina of the victim and by soliciting her to engage in oral sex. He contends that mere verbal solicitation of sodomy does not constitute child molestation. This contention is foreclosed by this Court’s recent decision in Bowman v. State, 227 Ga. App. 598, 600 (490 SE2d 163) (1997), holding that verbal solicitation of a child to perform sexual acts violates the statute. The recent decision of Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998), is distinguishable as it involves the solicitation of sex by telephone, not “in the presence of” the child victim.

Moreover, Count 6 of the indictment also charges Wilson with committing child molestation by touching and fondling. If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form. Gordon v. State, 199 Ga. App. 704, 705 (1) (406 SE2d 110) (1991). The evidence was sufficient to show that Wilson violated the statute prohibiting child molestation in at least one of the ways alleged in the indictment.

At trial, this victim recanted her testimony and testified she fabricated the accusation at the suggestion of a friend. But in a videotaped interview, which was played for the jury, the victim stated that she woke up from a nap to find Wilson standing over her and that he admitted to her that he touched her between the legs. The victim made statements to other witnesses consistent with her videotaped statement; others also witnessed sexually inappropriate language and conduct by Wilson to the victim, including several requests for oral sex. This evidence, taken as a whole, was sufficient to support Wilson’s conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Kapua v. State, 228 Ga. App. 193, 194-195 (491 SE2d 387) (1997) (child’s videotaped statements and statements to others sufficient to support conviction for child molestation and cruelty to children). See also McCormick v. State, 228 Ga. App. 467 (1) (491 SE2d 903) (1997) (notwithstanding victim’s recantation, conviction authorized by videotaped interview, victim’s statements to others, and similar transaction evidence).

Decided September 15, 1998.

James C. Wyatt, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

2. Wilson also enumerates as error the trial court’s failure to direct a verdict of acquittal as to Count 5 of the indictment, contending that his conviction on that count is inconsistent with his acquittal on Count 4 because the testimony of the same witness was presented by the State in support of both counts. But the jury was authorized to believe parts of the witness’s testimony and reject other parts. Hicks v. State, 221 Ga. App. 735, 736 (1) (472 SE2d 474) (1996). Moreover, we have noted on many occasions that the inconsistent verdict rule was abolished in criminal cases by the Supreme Court in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). “As the Supreme Court held in Dennis v. State, 263 Ga. 257, 259 (3) (430 SE2d 742) (1993), ‘consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.’ (Citations and punctuation omitted.)” Walker v. State, 215 Ga. App. 790, 791 (1) (452 SE2d 580) (1994). This enumeration of error is without merit.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A1457.
    THE STATE v. WEATHERS.
    (506 SE2d 698)
   Judge Harold R. Banke.

Jonathan W. Weathers was charged with possession of marijuana with intent to distribute and two counts of driving under the influence of drugs. After a hearing, the trial court granted Weathers’ motion to suppress, and the State appeals that decision. OCGA § 5-7-1 (a) (4).

Construed most favorably to uphold the trial court’s findings, the record shows that the search at issue occurred after the arresting officer observed Weathers speed by at ten to fifteen mph over the speed limit. Allison v. State, 217 Ga. App. 580 (1) (459 SE2d 557) (1995). When the officer also noticed Weathers weave within his lane and take a right on red without making a complete stop, he stopped Weathers. While requesting Weathers’ license and insurance card, the officer noticed the smell of marijuana coming from the car. At that point, the officer took the license back to his patrol car, assured it was valid and Weathers was not wanted and wrote out a courtesy warning ticket for the speeding and turning violations. The officer then asked Weathers to walk back to the patrol car. He noticed that Weathers’ eyes were bloodshot and he staggered upon leaving the car.

At that point, the officer returned Weathers’ license and insurance card and issued the ticket, explaining that it was a courtesy warning and would not affect Weathers’ record. Then the officer asked Weathers if he had consumed any alcohol or marijuana, mentioning that he smelled the latter. Weathers admitted that he had been with people smoking marijuana all evening and consented to a search of his person. As the officer initiated the search, Weathers gave him a film canister containing a small amount of marijuana and admitted that he had smoked some earlier that night and taken some muscle relaxers. At that point, the officer arrested Weathers for driving under the influence and placed him in the rear of the patrol car.

The officer immediately began searching Weathers’ car, where he found a closed compact disk bag on the front passenger seat. Upon unzipping the bag, the officer discovered what appeared to be marijuana.

Weathers moved to suppress the evidence garnered from the search of his car, arguing that the warrantless search exceeded the proper scope of a search incident to arrest. The trial court agreed, finding the search was not incident to a lawful arrest as required by OCGA § 17-5-1. Held:

The State maintains that Weathers’ lawful arrest entitled him to search the passenger compartment of the car. We agree.

“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981). This rule extends to the contents of any containers found within the passenger compartment. Id.

“ ‘This court has held that a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted.’ ” Richardson v. State, 232 Ga. App. 398, 401 (2) (501 SE2d 885) (1998). The decisive factor in determining whether a search incident to arrest is permissible is whether the arrestee was, at the time of his arrest, a “recent occupant” of the vehicle. Maddox v. State, 188 Ga. App. 883, 884 (1) (374 SE2d 810) (1988).

Decided September 15, 1998

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellant.

Henderson & Lipscomb, David S. Lipscomb, for appellee.

This case involves a lawful custodial arrest of the occupant of an automobile. Although the officer issued only a courtesy ticket, the arrest stemmed from a traffic stop. Shortly after exiting the car, Weathers provided probable cause by giving the officer the film canister. OCGA § 17-4-20 (a); see Jenkins v. State, 223 Ga. App. 486, 487 (1) (477 SE2d 910) (1996). Without question, Weathers was a recent occupant of the vehicle at the time of his arrest. Thus, the search was not improper. State v. Nichols, 225 Ga. App. 609, 611 (1) (b) (484 SE2d 507) (1997) (review of the interpretation and application of law in an order on a suppression motion is subject to de novo review). That Weathers was sitting in the patrol car during the search does not affect that conclusion. Allison, 217 Ga. App. at 580. Nor does the fact that probable cause for the arrest arose from outside the car. See id.; see Gilbert v. State, 209 Ga. App. 483, 484-485 (2) (433 SE2d 664) (1993).

Judgment reversed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A1482.
    SCOTT v. THE STATE.
    (506 SE2d 880)
   Judge Harold R. Banke.

Darryl L. Scott was convicted of two counts of felony shoplifting. He enumerates three errors on appeal.

This case arose one morning at Hartsfield Airport when Scott entered W. H. Smith, Inc. (“W. H. Smith”), a retail establishment on Concourse E. Scott wore a brown and white striped shirt with an “A” embroidered on the back and carried a yellow W. H. Smith bag which appeared empty. The clerk watched Scott walk over to a sunglasses display, place some of them in his bag, and leave the store. She immediately reported the theft to the police.

About an hour later, Scott entered Better Golf, Inc. (“Better Golf”), on Concourse A, carrying the W. H. Smith bag. The clerk noticed Scott’s shirt and the bag. Moments later, as Scott was leaving, the clerk observed that the bag looked fuller than when Scott had entered. The clerk asked to see the bag’s contents and snatched the bag from him. Inside, he found two Michael Thomas golf shirts, which were sold at the airport only by Better Golf, some sunglasses, and other items. Scott could not produce receipts for any of the articles. When Scott tried to leave the store without his merchandise, the clerk summoned the police. After Scott’s arrest, the clerk from W. H. Smith identified two pairs of sunglasses taken from her store. Held,-.

1. Scott contends that he should have received a misdemeanor sentence due to the State’s failure to establish the statutory amount required for felony sentencing. We disagree.

At the time of the offense, OCGA § 16-8-14 (b) (1) set the amount required for felony treatment at $100. The clerk at W. H. Smith valued the sunglasses at $58 per pair. She testified that the sunglasses she identified still bore the price ticket from her store. The clerk from Better Golf valued each of the two Michael Thomas golf shirts at $115 and observed that the price tags were still on the shirts he retrieved from Scott. This testimony was sufficient to establish value. Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118) (1997). While the price tag of the merchandise taken or a copy thereof may be used to prove value, testimony on that issue will also suffice if the witness has an opportunity to form a correct opinion on the matter. Id.; OCGA § 16-8-14 (c). We have routinely permitted store employees who were familiar with the items taken to establish their value. Moncus, 229 Ga. App. at 804 (1) (a); see Parham v. State, 218 Ga. App. 42, 43 (2) (460 SE2d 78) (1995). Notwithstanding Scott’s contention to the contrary, the evidence that both clerks worked at the stores and recalled the price tags on the items taken was sufficient to establish the requisite familiarity. See id.

2. Scott argues that his trial counsel was ineffective for failing to seek severance of the two counts. We disagree.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). Tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994).

“The decision whether to file a motion to sever is a matter of trial tactics.” Pierre v. State, 223 Ga. App. 43, 44 (1) (476 SE2d 829) (1996). This rule is particularly germane where, as here, it appears that the parties’ agreement to consolidate the accusations was made in conjunction with a decision not to present similar transaction evidence. We also note that in this case, where the crimes were temporally linked and based on essentially the same conduct, severance was not mandatory. Smith v. State, 225 Ga. App. 553 (1) (484 SE2d 515) (1997); see Morrow v. State, 226 Ga. App. 833, 834 (1) (487 SE2d 669) (1997). Moreover, Scott has done no more than raise the possibility that separate trials on the charges would have given him a better chance of acquittal. Id. This was insufficient to satisfy his burden of establishing the requisite prejudice. See Johnson v. State, 199 Ga. App. 67, 69-70 (404 SE2d 139) (1991).

Decided September 15, 1998.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

3. We must reject Scott’s contention that the evidence was insufficient to establish that he committed the crimes. The clerk at W. H. Smith actually saw Scott slip the sunglasses into the yellow bag. She was able to describe his attire to the police notwithstanding her inability to give an in-court identification. The clerk at Better Golf observed an identically clothed man walk into his store with a practically empty bag and attempt to leave with it full. He stopped Scott, who attempted to flee. At the time Scott was arrested, the clerk noticed that the area where the Michael Thomas shirts were displayed, which he had tidied before Scott arrived, was in disarray. He unequivocally identified Scott as the shoplifter during trial. Both clerks identified the merchandise taken and testified it was sold in their stores. This evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find each element of the crimes. OCGA § 16-8-14 (a) (1); Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979); Burden v. State, 226 Ga. App. 103, 105 (2) (485 SE2d 228) (1997).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Although, as Scott asserts, this amount was subsequently increased, the change did not become effective until long after Scott’s trial. Ga. L. 1998, p. 578, § 2.


text:
    A98A1495.
    LEDBETTER v. THE STATE.
    (506 SE2d 699)
   Judge Harold R. Banke.

Reginald Ledbetter was convicted of armed robbery, aggravated assault, and possession of a knife having a blade of three inches or more during the commission of a crime. He enumerates two errors on appeal.

This case arose after Ledbetter entered a convenience store seeking change to make a phone call. After chatting with the clerk, Led-better took his change and left. Ledbetter came back two or three more times that day, ostensibly to check the Lotto drawings. Each time, he conversed with the clerk.

The last time Ledbetter came in, the clerk’s wife and infant daughter were present. Ledbetter walked to the counter where the baby lay in its car seat, pulled a knife and stated, “Give me all the money, or I’ll kill your baby.” As he repeated this phrase he held the long, thin knife closer and closer to the baby. After receiving the money, Ledbetter threatened to kill the clerk and his wife if they moved. Ledbetter then walked to a nearby house and asked an acquaintance for a ride because the police were after him. The acquaintance declined, walked up to the convenience store, and informed the police.

Due to the number of charges, the trial court employed a verdict form and instructed the jury on its use. On the armed robbery count (Count 1), it charged the jury “if you find the defendant not guilty, in that event, the form of your verdict would be simply we, the jury, find the defendant not guilty. It would be dated and signed by one of you as the foreperson. On the other hand, if you find him guilty of armed robbery, then in that event, the form of the verdict would be we, the jury, find the defendant guilty of armed robbery. ... If you do not find that he committed the offense of armed robbery beyond a reasonable doubt, you may then consider whether he committed the offense of robbery by intimidation. If you find him guilty of robbery, then in that event the form of your verdict would be we, the jury, find the defendant guilty of robbery.” The trial court also instructed the jury on the unanimity requirement.

After the jury had finished deliberating, the court prepared to receive the verdict. Upon examining the verdict form, the court observed that it reflected guilty verdicts for both robbery and armed robbery. The trial court instructed the foreman “on count one, the form of your verdict would have to be one or the other, but can’t be both, so I’ll ask that you change it accordingly, please sir.” The foreman then crossed out the verdict for robbery, and the court announced the verdict. Held:

1. Ledbetter seeks reversal because the foreman changed the verdict in open court. He argues that further deliberations were required to correct an ambiguous verdict. We need not address this contention because Ledbetter’s failure to object or avail himself of the opportunity to poll the jury waived the issue. Dansby v. State, 165 Ga. App. 41, 42 (2) (b) (299 SE2d 579) (1983).

2. Ledbetter maintains his counsel’s failure to object to the change in the verdict form constituted ineffective assistance. We disagree.

Decided September 15, 1998.

C. Victor Long, for appellant.

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

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Absent a showing of such prejudice, we need not inquire into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

Because our courts permit in-court reformation of a verdict in the jury’s presence, Ledbetter failed to prove a deficiency. Dansby, 165 Ga. App. at 42. Further, nothing in the record demonstrates a reasonable probability that but for the reformation of the verdict, the result would have been different. Accordingly, the trial court’s finding of effectiveness is not clearly erroneous. Benefield v. State, 231 Ga. App. 80 (497 SE2d 650) (1998).

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


text:
    A98A1544.
    McGLOHON v. THE STATE.
    (506 SE2d 886)
   Beasley, Judge.

Joel McGlohon seeks reversal of his conviction for aggravated battery. OCGA § 16-5-24 (a). The jury found him guilty of aggravated assault and aggravated battery, and the court merged the assault with the battery. McGlohon’s original appeal challenged the effectiveness of trial counsel with respect to the failure to request jury instructions on the lesser included offense of battery. But because the issue was first raised on appeal and appellate counsel had no opportunity to present it in the trial court, the case was remanded for development of this issue after the conviction was affirmed on two other enumerations of error.

The trial court held a hearing at which trial counsel testified and thereafter denied the motion for new trial in a detailed order of explanation. Now that there is a ruling, the question is ready for appellate consideration. It is moot with respect to the charge of aggravated assault, as McGlohon does not face fulfillment of a sentence on that count.

Was counsel ineffective, as a matter of law, in terms of the standard of Strickland v. Washington? That is, considering the indictment and the evidence, was he remiss in not requesting that the court charge the jury that it could find McGlohon guilty of battery? If the jury had so found, misdemeanor rather than felony punishment would be the maximum which could be imposed. The focus is on whether counsel’s performance “fell below an objective standard of reasonableness.” The court was not obligated to give the charge absent the request, and it cannot be faulted for omitting it, as would be the case where the omission is harmful as a matter of law.

McGlohon’s defense, to which he had testified, was that he did not inflict the severe injuries which his girlfriend and the other State witnesses described had been suffered by her at his hand. He testified that he merely grabbed at her to calm her down when she angrily slapped and kicked him, and that he remembered nothing thereafter. Other than his saying he merely grabbed her, which had the jury accepted would have resulted in little or no injury, the only evidence of her injuries showed them to include a broken nose, two lacerations, an avulsion on her lip, severe swelling and bruising on her cheek and lip and around the eyes so one could not even be pried open, severe nerve damage to the side of her face, and a knife wound in her chest.

The whole body of evidence, then, demonstrated that either defendant inflicted these serious injuries or, if he was to be believed, he did not. When the trial judge asked defense counsel “your client’s contending he didn’t do it isn’t he? I mean, isn’t that an all or nothing,” defense counsel replied, “yeah.” It was either no battery, simple battery or aggravated battery, all three options of which the jury was instructed. It was not the misdemeanor of battery, as that term is described and illustrated in OCGA § 16-5-23.1 (a) and (b). McGlohon’s act did not inflict merely the alternative physical injuries listed there but rather all of them and others. What is more, the examples given in subsection (b) are all of a temporary nature; whereas the nerve damage left the victim with still no feeling one and a half years after the event, and the physician could not say this would ever heal. Her injuries amount to serious disfigurement which is part of the definition of aggravated battery.

Decided September 15, 1998

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

The accused “is not entitled to a charge on a lesser included offense where the evidence establishes without dispute the commission of the greater offense charged. [Cits.]”

This case is not like Pearson v. State, despite appellant’s urging. There was room there for the evidence to fit into the elements of the lesser included offense which counsel neglected to request, causing reversible error. Here the undisputed evidence does not fit the elements of battery, any more than a foot can be squeezed into a shoe that is too small a size.

McGlohon’s trial counsel did not provide ineffective assistance to his client. Since there was no legal deficiency in his representation, it is unnecessary to consider the second question put by Strickland, i.e., whether there is a reasonable probability the verdict would have been otherwise had counsel requested the charge. It is moot.

There being no cause for a new trial, it was not error to deny one.

Judgment affirmed.

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

        McGlohon v. State, 228 Ga. App. 726 (492 SE2d 715) (1997).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       OCGA § 16-5-23.1 (c).

        Strickland,, supra, 466 U. S. at 688.

        McGlohon, supra at 728 (2).

       OCGA § 5-5-24 (c).

       OCGA § 16-5-24 (a); see also In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991) (broken nose and lacerated scalp constitute serious temporary disfigurement under OCGA § 16-5-24).

        Stafford v. State, 187 Ga. App. 401, 402 (1) (370 SE2d 646) (1988); see also Robinson v. State, 232 Ga. 123, 127 (3) (205 SE2d 210) (1974); Thomas v. State, 226 Ga. App. 441, 444 (8) (487 SE2d 75) (1997).

       216 Ga. App. 333 (454 SE2d 205) (1995).


author: Blackburn, Judge.

text:
    A98A1397.
    THOMAS v. CARTER et al.
    (506 SE2d 377)
   Blackburn, Judge.

Katina Thomas appeals the trial court’s grant of partial summary judgment to uninsured motorist carrier State Farm, based on its argument that Thomas was not entitled to recover for mental distress suffered as a result of the death of her fetus in an automobile collision. We reverse the trial court’s ruling.

On October 18, 1995, Katina Thomas, who was seven months pregnant, was injured when her automobile collided with another being driven by Jude Carter. The next day, Thomas’ doctor determined that her fetus had died, and Thomas was subsequently required to have labor induced to deliver the deceased child.

Thomas sued Carter to recover for her injuries, including pain and suffering. Thomas’ uninsured motorist carrier, State Farm, filed an answer in its own name pursuant to OCGA § 33-7-11. In discovery, Thomas acknowledged that she was seeking damages for the emotional trauma she suffered as a result of the death of her unborn child, caused by the negligence of the tortfeasor. State Farm then filed a motion for partial summary judgment, arguing that Thomas was not entitled to recover for mental distress suffered as a result of the death of her unborn child. The trial court granted this motion, and Thomas appeals.

The arguments in State Farm’s brief which were relied upon by the trial court do not accurately reflect the law applicable to this case. State Farm purports to quote the holding of our Supreme Court in the second appeal in Augusta &c. R. Co. v. Randall, 85 Ga. 297 (11 SE 706) (1890) when, in fact, it is quoting a portion of the defendant’s motion for new trial: “[T]he [lower] court charged that ‘any pain and suffering or sorrow resulting from the miscarriage the law says is an element of damages.’ Error, because pain and suffering are confounded with sorrow, and because sorrow for the loss of a child by miscarriage is not an element of damages.” (Emphasis supplied.) What the Supreme Court actually said in addressing defendant’s motion was: “We would suggest that the word ‘sorrow’ be omitted from the charge of the court on the next trial. It is most too remote to be considered an element of damage, unless it is that sorrow which accompanies the actual injury and is suffered at the time of the miscarriage. The loss of a child by a miscarriage would affect women so differently that it would be hard for men, sitting as jurors, to estimate it as an element of damage; and we therefore think it would be better to omit, in the future, any instruction to the jury upon the question of sorrow as an element of damage. Pain and suffering give a wide latitude to juries, and there are very few complaints made of the smallness of the amounts found by juries upon these two elements of damage.” (Emphasis supplied.) Randall, supra at 322 (9).

In Randall, the Supreme Court granted a new trial on a separate, unrelated enumeration of error based on plaintiff’s counsel’s response to the improper remarks of defense counsel. As to the Supreme Court’s comments concerning women being affected very differently from men where miscarriage is involved, this consideration may have been relevant to that Court’s analysis, as women did not sit as jurors in Georgia in 1890. So, even assuming that gender perspective was a proper consideration in 1890, it would certainly not be appropriate in 1998. In any event, the trial court’s damages charge was not the basis for the Supreme Court’s reversal of the jury verdict and the granting of a new trial. Neither does Randall represent the unchanged law of Georgia for over 100 years, as represented to the trial court.

In Smith v. Overby, 30 Ga. 241 (1860), a mother sued her doctor for malpractice in connection with the delivery of her child. The mother sought to recover damages “not only for the bodily pain and injury inflicted upon the mother, but also for the mental sufferings occasioned, as it is alleged, by the unnecessary destruction of the life of the child.” Id. at 245. Following a jury verdict for the defendant, the Supreme Court held that the trial court erred in charging the jury on damages, noting that “the mind of the jury is nowhere called to the anguish of maternal feeling produced by the destruction of the child.” Id.

In Southern R. Co. v. Jackson, 146 Ga. 243 (91 SE 28) (1916), our Supreme Court affirmed that a mother could recover for mental pain and suffering related to injury to her child, when she herself is also a physical victim of the tort, but not otherwise.

As Judge Beasley, citing to Jackson, supra, stated in her special concurrence in Littleton v. OB-GYN Assoc. of Albany, P.C., 192 Ga. App. 634, 636 (385 SE2d 743) (1989) (Littleton I), “Georgia long ago recognized that a mother could recover for mental pain and suffering (nervous shock, fright) related to injury to her child when she herself is also a physical victim of the tort.”

Judge Beasley’s special concurrence was cited with approval by our Supreme Court in OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 668 (386 SE2d 146) (1989) (Littleton II), “[w]e are in agreement with Judge Beasley’s reasoning in her concurring opinion in this case. As she points out, Mrs. Littleton may claim damages for emotional distress in connection with the alleged malpractice of defendants which resulted in injury to herself. The order granting the motion for partial summary judgment in regard to Mrs. Littleton’s claim for damages for emotional distress in count 4 contains no findings of fact. We are therefore uncertain as to whether the trial judge considered the presence or absence of material facts which would show an injury to Mrs. Littleton, as distinguished from injury to the infant. The presence of such injury could support a claim for emotional distress under Georgia law. We therefore remand this case for a hearing in the trial court to determine whether Mrs. Littleton suffered a physical injury as a result of negligence of defendants.” (Emphasis supplied.)

State Farm contends that the Littleton decisions establish that a mother in a negligence case may not recover for emotional distress associated with the death of her unborn child. This is not true, however, where the mother is also injured by the same force which injures the fetus. The Littleton cases involved a full-term baby that was born alive and died two days later. Id. The Supreme Court was careful to note that, in delivery room situations involving a full-term baby, the mother and child are considered separate individuals, and an injury to one is not necessarily an injury to the other. The alleged negligence of the physicians in Littleton was their failure to diagnose and react appropriately to signs of fetal distress. Littleton v. OB-GYN Assoc. of Albany, P.C., 199 Ga. App. 44, 45 (403 SE2d 837) (1991) (Littleton tip. The physical injuries allegedly suffered by the mother consisted of the administration of medication, prolonged labor, a vaginal delivery, and an episiotomy. OB-GYN Assoc. of Albany v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991) (Littleton IV). Although the alleged negligence of the physicians may have contributed to the death of the child, the particular injuries to the mother were not themselves the proximate cause of the child’s death. In such a situation, where the physical injuries to the mother are separate from the injuries to the child, it is appropriate that the mother not be able to recover for her emotional distress resulting from injuries to the child. State Farm also relies on DeKalb County v. Wideman, 262 Ga. 210 (416 SE2d 498) (1992), which also dealt with a live birth and subsequent death of the child. Wideman did not involve a situation where the mother and child were injured by the same force as is the case here. The issues therein were inapposite, and Littleton was properly applied to the facts therein.

In the present case, however, the injuries to the mother cannot be separated from the injuries which resulted in the death of the fetus. Unlike Littleton, this case does not involve a delivery room situation or a full-term birth. At the time of the accident, Thomas’ fetus was seven months old. An autopsy on the child indicated that the death was most likely caused by trauma to the placenta disrupting the blood flow between the mother and the child. The injury to both the mother and the fetus was caused by the direct force to the mother in the automobile collision which resulted in the in útero death of the fetus. The trauma to the placenta is an injury to the mother, not to the child. It was this injury to the mother, and not any separate injury to the fetus, that caused the death of the fetus. Thus, unlike Littleton, the death of the child was the direct result of an injury to the mother.

In Littleton, the Supreme Court recognized that a plaintiff could bring an action for negligence “ ‘resulting in injuries to her person. This claim may include a claim for compensation for any emotional distress which is a consequential damage resulting from those injuries.’ ” Littleton TV, supra at 664. In this case, any emotional distress suffered by Thomas due to the death of her unborn child was a consequential damage resulting directly from injuries to Thomas herself.

The general rule concerning recovery for mental distress is that “[wjhere there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tortious conduct complained of is merely negligent.” Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776) (1975). “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury. OB-GYN Assoc. v. Littleton, 259 Ga. 663 [Littleton II]” Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

For completeness, the history of the Littleton cases is included as follows: In Littleton I, a mother sued her doctor for malpractice in connection with the delivery of her baby, which died two days after delivery. Relying on Overby, we reversed the trial court’s grant of partial summary judgment to the defendant, holding that the mother was entitled to recover for injuries sustained by her, including mental suffering and emotional distress. Id. at 634-635. We stated that “Bell v. Sigal, 129 Ga. App. 249 (199 SE2d 355) (1973) is not authority for the proposition that appellant Mrs. Littleton should not be allowed to recover for her mental grief and anguish caused by the death of the child subsequent to the enactment of the wrongful death statute.” Id.

On appeal, the Supreme Court noted that an emotional distress claim will lie only where there has been an impact resulting in an injury to the plaintiff. Littleton II. The Court rejected the proposition that “the peculiar relationship between the mother and the unborn child results in any negligence directed toward the child necessarily being directed at the mother as well. Because an unborn fetus at full term and the mother are considered separate persons for many different purposes in Georgia, we find that they are separate in the context of the delivery itself. The mother and the unborn child in the delivery room are two separate beings. The relationship of the mother and the unborn child in the delivery situation does not of itself require that every action towards one is an action towards the other.” Id. at 668. The Court reversed and remanded the case because the trial court failed to consider whether there were facts showing an injury to the mother, as distinguished from injury to the infant. Id. at 668. However, the Court reiterated that the mother “may claim damages for emotional distress in connection with the alleged malpractice of defendants which resulted in injury to herself.” Id.

On remand, the trial court found that there was no evidence of physical injury to the mother and granted partial summary judgment to the defendants. We reversed, finding that there was evidence of injury to the mother. Littleton III. However, in holding that the mother was entitled to recover for her emotional distress, we made the following observation in a footnote: “We emphasize that any potential award of damages to [the mother] in the malpractice claim for her injuries is limited to compensation for any physical injury she suffered as a result of the alleged negligence, and any mental suffering or emotional distress she incurred as a consequence of her physical injuries. Any mental suffering or emotional distress she suffered as a result of injuries to her child is not compensable in this claim!’ (Emphasis supplied.) Id. at 46, n. 1. The Supreme Court affirmed and stated that our footnote “clearly and correctly states the rule.” Littleton IV, supra at 664. However, the Court also noted that the mother could recover “ ‘compensation for any emotional distress which is a consequential damage resulting from [her] injuries.’ ” Id.

Decided August 17, 1998

Reconsideration denied September 16, 1998

Ratcliffe, Smith, Rose & Grinstead, Leonard M. Grinstead, for appellant.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Bradley J. Watkins, for appellees.

Accordingly, the trial court erred in granting State Farm’s motion for partial summary judgment.

Judgment reversed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Chief Judge. Smith, Judge,

text:
    A98A0867.
    HART v. BRASSTOWN VIEW ESTATES, INC.
    (506 SE2d 896)
   Andrews, Chief Judge.

While vacationing for a weekend at a mountainside cabin rented from Brasstown View Estates, Inc., George Rodney Hart slipped and fell on a walkway leading to the entrance to the cabin. Hart sued Brasstown for injuries he sustained in the fall, claiming that the walkway was a hazardous condition on the premises and that Brass-town failed to exercise ordinary care to keep the premises safe for invitees. The trial court granted summary judgment in favor of Brasstown concluding that, because Hart knew about the obvious risks posed by the walkway, he had knowledge of the hazard equal to that of Brasstown, which precluded any recovery. We agree and affirm the grant of summary judgment in favor of Brasstown.

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). Thus, the true ground of liability in a slip and fall action remains the owner/occupier’s superior knowledge of the hazard that was the proximate cause of the invitee’s slip and fall. McCoy v. West Building Materials &c., 232 Ga. App. 620, 621 (502 SE2d 559) (1998); Anderson v. Reynolds, 232 Ga. App. 868 (502 SE2d 782) (1998); Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197, 199 (499 SE2d 94) (1998).

Hart testified by deposition that he slipped and fell while attempting to walk down some steps on the walkway leading from the parking area to the cabin. The walkway was a dirt and gravel path about ten feet long with a change in elevation of about three feet. Hart described the steps on the path as follows: “They’re basically extremely primitive. They were dug out of the side of the mountain. They were just very irregular. They were covered with leaves, debris, gravel and were irregularly shaped and there was no hand railing.” Prior to the slip and fall, Hart had successfully traversed the walkway and steps going both up and down. When describing how he slipped and fell, Hart testified: “Since I had been down the steps and up the steps once[,] I could tell I had to watch because there was no hand rail. I went down from the level of the road to the first step and I was all right then. The next step I got the sensation like I was sliding on marbles like on that loose gravel.” He testified that the loose gravel under his foot caused him to lose his footing and slip and fall.

As to the condition of the walkway, Hart testified that the gravel, leaves, and debris on the steps when he slipped and fell were the same as they appeared when he previously traversed the walkway. He testified that there was no rain when he slipped and fell, and although there were a few snow flurries at the time, there was no ice, sleet, or snow on the steps. When asked if he thought the steps created any kind of hazard that could have caused him to fall, Hart responded: “It was an obvious hazard to me. . . . I’m talking about the structure of the steps themselves and the steepness . . . and knowing that there was gravel which could roll.” Hart admitted that he saw the leaves, debris, and gravel and “saw the potential danger” posed by the steps the first time he traversed the walkway. There was no evidence that the walkway violated the provisions of any building code.

Assuming that Brasstown had actual or constructive knowledge of the alleged hazardous condition of the walkway and steps, the record also shows that Hart had actual knowledge of the hazard that caused his slip and fall. “Furthermore, when a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom.” Pierce v. Wendy’s Intl., 233 Ga. App. 227, 230 (504 SE2d 14) (1998); Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145, 146 (495 SE2d 613) (1998). Since the record plainly demonstrates that Hart knew about the hazard, and there is no evidence that Brasstown had knowledge superior to that of Hart, the trial court correctly granted summary judgment in favor of Brasstown. Steele v. Rosehaven Chapel, 233 Ga. App. 853 (505 SE2d 245) (1998); McCoy, supra; Anderson, supra; Pierce, supra; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

There is no merit to Hart’s contention that the “necessity rule” applies to create a question of fact because he had no alternative but to assume the risk and traverse the hazard in order to gain entry to the cabin. The “necessity rule” applies in the context of a landlord-tenant relationship where in order to enter and leave an apartment rented as the tenant’s dwelling place the tenant is required to traverse a known hazard. Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 159-160 (335 SE2d 408) (1985). The relationship between Hart and Brasstown in the rental of the cabin was not that of landlord and tenant but innkeeper and guest, so the necessity rule does not apply. Id.; see OCGA § 43-21-1 et seq.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Smith, J, concurs specially.

Smith, Judge,

concurring specially.

I concur in the judgment of the majority. I write specially because I cannot agree with all that is said in the majority opinion, particularly the majority’s analysis focusing on Hart’s having traversed the steps previously.

Nevertheless, I agree that summary judgment was proper. One of the primary teachings of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), thrice repeated, is that “[t]he issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 735. See also id. at 741, 748.

In keeping with that guiding principle, once the defendant’s knowledge has been established and evidence has been presented that the plaintiff’s injuries were caused by an “intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge,” Robinson, supra at 748, to withstand a motion for summary judgment, a slip/fall plaintiff is required to produce evidence disproving his own negligence. Id. Here, the defendant’s knowledge of the hazard was established. And Hart admitted he also realized before the fall that the structure of the steps themselves constituted an “obvious hazard.” Thus, even under Robinson, to withstand the motion for summary judgment, Hart was required to present evidence disproving his own negligence. Id. at 748. Because I have found no such evidence in the record, I must agree that summary judgment in this case was properly granted against Hart.

Decided September 16, 1998.

Bynum, Lewis & McEvoy, Joe H. Bynum, Jr., for appellant.

Joe B. Sartain, Jr., for appellee.


author: Ruffin, Judge.

text:
    A98A1051.
    HANNAH v. HAMPTON AUTO PARTS, INC. et al.
    (506 SE2d 910)
   Ruffin, Judge.

In this premises liability action, Ollis A. Hannah sued Hampton Auto Parts, Inc. and the store’s owner, Steve-Morris, for injuries Hannah received when he fell down steps at the automobile parts store. The trial court granted the defendants’ summary judgment, and Hannah appeals. We affirm.

“ ‘To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).’ [Cit.] Our review of an appeal from summary judgment is de novo. [Cit.]” (Emphasis in original.) Cooper v. Corporate Property Investors, 220 Ga. App. 889-890 (470 SE2d 689) (1996).

Viewed in the light most favorable to Hannah, the nonmovant, the evidence shows that Hannah was 73 years old at the time of his fall on September 7, 1994. Hannah testified that for three to five years before his fall, it had been his usual practice to arrive at the auto parts store around 7:30 a.m. five to six mornings a week, sit around the store, and talk with other older people who came to the store to visit. Hannah admitted he did not seek Morris’ permission to come to the store in the mornings, but came of his own accord. He stated he went to the store to get out of his house and have something to do. Hannah testified that he would often open and close the store, assist store customers, walk to a local cafe to buy Morris tea, and take out the trash for Morris. However, he acknowledged he was not an employee of the store.

Hannah testified that on September 7, 1994, the day of his fall, he went to the store at 7:30 a.m. to visit and not to transact business there. After he arrived, Morris asked Hannah to take the trash out to the dumpster. This required Hannah to exit the back door of the store and walk down two steps to the alley. The two steps, which were made of one piece of metal, were not attached to the building foundation. Rather, the steps leaned against the foundation and were supported underneath by a brick base.

Hannah testified that as he stepped down on the right side of the first step, the steps moved under him, causing him to fall on his back. Hannah stated that he had successfully negotiated the steps ten to twenty times in the past. He admitted the steps had never shaken or slipped underneath him on these other occasions, and that he had never had any trouble negotiating the steps in the past. Although Hannah said he looked at the steps every time he traversed them, he never knew the steps were free standing until after the fall. Hannah further testified that before his fall, he never complained to Morris or anyone else that the steps needed to be fixed or secured, and that nothing about the steps over the years had raised any concerns in his mind regarding his safety in using them. Moreover, he had never heard anyone complain about the condition of the steps. Hannah presented the affidavit of a building inspector who stated the steps violated county building codes.

Morris testified the metal steps were in place in 1980 when he first occupied the building. He stated that employees, customers, and social guests had used the steps from 1980 until the date of Hannah’s fall and had never complained “that the stairs were unstable, insecure, deteriorated or otherwise in a dangerous or defective condition.” Moreover, Morris testified that between 1980 and September 7,1994, no one other than Hannah had ever fallen or been injured due to the condition of the steps. Morris said he had used the steps frequently since 1980 and had never noticed that they were unstable or unsecured.

Hannah contends he was an invitee at the time of his injury, and thus the defendants owed him a duty to exercise ordinary care in inspecting the steps and maintaining them in a safe condition. See OCGA § 51-3-1. The defendants, however, assert Hannah was a licensee and that they were liable only for a wilful and wanton injury. See OCGA § 51-3-2. “While [Hannah] and defendants correctly characterize the duty of care owed by an owner or occupier of land to invitees and licensees, it is a distinction without a difference in this case. This is so because ‘it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a . . . hidden peril on one’s premises. Thus(,) as to a licensee(,) ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. After the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited.’ [Cit.]” Cooper, supra at 891.

In this case, it is clear that Morris knew of Hannah’s presence in the automobile parts store on the day in question. Morris was also aware that Hannah had to traverse the metal steps in order to take out the trash as Morris had requested. “Accordingly, we find that even if [Hannah] was a licensee when [he] fell, the defendants owed [him] the same duty as they would have owed if [he] were an invitee.” Id. at 892.

In premises liability cases, “proof of a fall, without more, does not give rise to liability on the part of a proprietor.” (Punctuation omitted.) Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). “The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. [Cit.] Recovery is allowed only when the proprietor had knowledge and the invitee did not. [Cit.]” Parks-Nietzold v. J. C. Penney, 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997). See also Cooper, supra.

In this case, it is clear that the metal steps which had been in place since 1980 were a static condition. “ A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.’ [Cit.]” Hallberg, supra at 215 (2). See also Spires v. Hall, 230 Ga. App. 357, 359 (1) (496 SE2d 501) (1998); Dickman v. South City Mgmt., 229 Ga. App. 289 (494 SE2d 64) (1997) (physical precedent only) (prior successful negotiation of steps precluded recovery). Here, the evidence shows that the defendants were unaware of the alleged defective condition of the steps. Morris and many other people, including Hannah, had successfully traversed the steps without injury many times over a 14-year period and never complained about the condition of the steps. Moreover, the evidence is clear that Hannah had used the steps ten to twenty times without incident. Accordingly, the evidence shows the defendants did not have superior knowledge of the alleged defect. Furthermore, because Hannah had successfully negotiated the steps on several occasions in the past, he cannot recover for his subsequent injury. Hallberg, supra.

Decided September 16, 1998.

James T. Chafin III, for appellant.

Hawkins & Parnell, William H. Major III, David H. Wilson, for appellees.

“We need not decide whether the [steps] constituted a building code violation, because, even assuming [they] did, it would show only negligence per se.” Parks-Nietzold, supra at 726. Hannah and the defendants had equal knowledge of the static condition of the steps, and “[t]he equal knowledge rule would preclude recovery even if [Hannah] could show that the [maintenance of the steps] was negligence per se as a violation of the building code.” Id.

While this Court is to remain mindful “that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication,” this is one of those cases in which the evidence is plain and palpable that the defendants are not liable. Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

Judgment affirmed.

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