text:
    A00A0940.
    A00A0941.
    THE STATE v. MALLARD. THE STATE v. LONGINO.
    (541 SE2d 46)
   Blackburn, Presiding Judge.

In related cases, the State appeals the trial court’s grant of defendants Robert Jacob Mallard’s and Anthony Longino’s motions to suppress marijuana discovered following the stop of their car shortly after they had left a residence on which a search warrant was about to be executed. We affirm the ruling of the trial court.

The standard of review here is: “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Punctuation omitted.) Rider v. State.

Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review. State v. Becker.

So viewed, the evidence at the motion to suppress hearing showed that the Appalachian Drug Task Force was preparing to execute a search warrant on the residence of Ron Cantrell. Officer Robin McClure, one of the officers executing a search warrant on a different premises from the subject house, testified that she received a call that a maroon Honda, containing two unidentified males, had just left the Cantrell residence, prior to the execution of the search warrant for those premises. She stopped the Honda approximately a half-mile from the Cantrell residence, for the sole purpose of determining if Cantrell, the owner of the premises to be searched, was in the vehicle.

McClure quickly determined that Cantrell was not in the car after checking the occupants’ driver’s licenses. After concluding the purpose of the stop, Officer McClure asked the occupants if they had any marijuana in the vehicle. McClure testified that the officers had information from a confidential informant that drug transactions had been taking place at the Cantrell home. The purpose of the warrant was to search the Cantrell home for marijuana. It is undisputed that the police had no information which implicated the two defendants in any criminal wrongdoing, or created an articulable suspicion, or probable cause as to them at the time their vehicle was stopped. The officers quickly determined that Cantrell was not in the vehicle. They then proceeded to question the defendants. The defendants were asked if there was any marijuana in the vehicle, and each produced a baggie of marijuana from their pocket.

Mallard and Longino were then arrested and ultimately indicted for possession of marijuana with intent to distribute, under OCGA § 16-13-30 (j) (l). As each of their cases arises out of the same facts and presents the same issues of law, they will be consolidated for purposes of appellate review. Each of the defendants entered a plea of not guilty in October 1998, and each filed a motion to suppress in December 1998. The cases were consolidated, and a joint hearing was held on defendants’ motions to suppress on April 19, 1999. The trial court’s order granting defendants’ motions to suppress was filed September 27, 1999. The State’s notice of appeal from this ruling was filed October 6, 1999.

The defendants contended that the officers had no authority to stop the vehicle in which they were riding. They further contended that even if the stop was authorized, the police exceeded that authority in further detaining and questioning the defendants after they determined that neither of them was Cantrell. The State relies upon Fritzius v. State, which in turn, relies upon Michigan v. Summers, as authority for the police conduct. In Michigan v. Summers, the U. S. Supreme Court held, inter alia:

If the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.

(Footnotes omitted.) Id. at 704-705.

Based on the facts in this case, the trial court held, inter alia:
In Fritzius, the police were preparing to execute a search warrant on the home of one Henry Fallow. Prior to the arrival of the officers who were to execute the search, another officer who had been conducting surveillance of the dwelling to be searched saw two people leave the dwelling, get into a vehicle and drive off. The surveillance officer requested another officer (Beveridge) to see if one of the people in the car was Fallow. Beveridge stopped the vehicle approximately two miles from the dwelling.
Beveridge asked the driver for a driver’s license and proof of insurance. The driver said that he had lost his wallet and had no license. Upon further questioning, the driver (Fallow) admitted to possessing two marijuana cigarettes. Fritzius was told to get out of the vehicle. He denied possessing any drugs and consented to a search of his person which produced nothing. Fritzius refused Beveridge’s request to search the vehicle, so Beveridge brought a drug [dog] out to do an “odor search.” The dog alerted to the car door. Methamphetamines was [sic] found under the floor mat where Fritzius had been sitting.
The Fritzius case extends Summer[s] by permitting the stopping of individuals who are not on the premises at the time the search began, but to allow people stopped some distance from the scene, [sic] In Summer[s] the [U. S.] Supreme Court relied upon the fact that a warrant had been issued for the search of the house; that the “(t)ype of detention imposed here (emphasis supplied) is not likely to be exploited by the officer or unduly prolonged in order to gain more information” and that the stigma is reduced as the detention was in the house of that person. The Court found legal justification in the prevention of flight and of minimizing risk to law enforcement officers. The Court reiterated several times the fact that the person detained would remain in his home while it was being searched; thus, the holding that for Fourth Amendment purposes “a warrant to search for contraband . . . implicitly carries with at [sic] the limited authority to detain the occupants of the premises while a proper search is conducted.”
In Fritzius, the Court said that “(i)t would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant” (emphasis in original). In that case, the person whose property was to be searched was in fact in the car. In this case, the person whose property was to be searched was not in the car. Law enforcement had identified the occupants and had found neither was Ron Cantrell. These facts exceed the long grasp of Fritzius and far exceed the scope of Summers. . . .
This Court holds that the stop is not authorized under the Fourth Amendment nor Article I, Section I, Paragraph XIII of the Georgia Constitution, or even if authorized, the continued seizure and subsequent search exceeded the scope of the detention exceeded [sic] “its underlying justification” which was to see if either person were Ron Cantrell.

(Citations omitted.) Motion to Suppress Order, filed September 27, 1999.

We note that Fritzius involved the trial court’s denial of defendant’s motion to suppress, while this case involves the grant of defendants’ motions to suppress. Given this Court’s standard of review, the evidence in Fritzius was construed in favor of the State, while in this case it is construed in favor of the defendants. “Just as we viewed the evidence in that case[, State v. Crank,] to favor [the defendant], in this case we must view it to favor the State.” Fritzius, supra at 646. We also note, that in Fritzius, Fallow, the occupant of the residence to be searched, was in fact in the stopped vehicle, while in the present case, Cantrell, the occupant of the residence to be searched, was not in the stopped vehicle. While the police had probable cause to search the residence in each case based upon the search warrants, there was no basis to believe that either Mallard or Longino was involved in criminal activity at the time of the stop.

Michigan v. Summers, supra, the case upon which Fritzius was based, addressed only federal constitutional protections under the Fourth Amendment to the U. S. Constitution. In Summers, police officers were about to execute a search warrant for contraband on Summers’ residence when he came out the front door and locked it. The officers required Summers to reenter the residence with them and forced him to remain in the house until the search was completed, and evidence establishing probable cause to arrest him was found. The U. S. Supreme Court held that a warrant to search for contraband founded on probable cause carried with it the limited authority to detain the occupants of the premises while a proper search of the premises was conducted and reversed the holding of the Supreme Court of Michigan.

In Garmon v. State, our Supreme Court affirmed Garmon v. State, a case involving the stop of a vehicle in conjunction with the execution of a warrant to search a dwelling for contraband. This Court relied upon Summers, supra, in upholding the constitutionality of the vehicle stop. On grant of certiorari, our Supreme Court declined to adopt the Summers analysis applied by this Court and instead applied a Terry v. Ohio standard in affirming the case. In Garmon, 271 Ga. 673, the investigative stop was justified under Terry because there were some objective manifestations that the occupant in the vehicle leaving the search location was engaged in criminal activity. The Supreme Court observed that the existence of the search warrant was a factor to consider in analyzing the validity of the stop. The Court noted that the driver and his companion were leaving a residence suspected as a location for dealing in controlled substances and an illegal sports betting operation, which was operating at that time since it was a big football weekend. Thus, “it was reasonable to believe that persons then at the residence might be . . . involved in criminal activity.” Garmon, 271 Ga. at 677. The Supreme Court further noted that the truck was owned by a known methamphetamine dealer; that the officers had overheard telephone conversations discussing gambling and a drug deal; and that the officers had independent information which supported a reasonable belief that the men in the truck were involved in the operation. This totality of the circumstances provided an articulable suspicion to justify the stop.

In the present case, the officers had no such information. There was no conduct by either Longino or Mallard to connect them to the suspected drug activity. Neither man lived at the residence, and the car was not believed to be owned by Cantrell. In fact, the officers had no specific information about the car or its occupants. The officers had not observed any violations of the law. See, e.g., Smith v. State; Brantley v. State The sole basis for stopping the car was to see who was inside. That reason, standing alone, cannot justify a Terry stop.

The present case arises out of the execution of a search warrant for contraband at Cantrell’s premises and the detention and arrest of persons in connection therewith. Georgia statutory law controlling the State’s conduct in the execution of a search warrant under OCGA § 17-5-28 was not raised in Fritzius or Garmon, 271 Ga. 673. Under Georgia statutory law, the State has a limited authority to act in the execution of a search warrant, as provided in OCGA § 17-5-28, which states:

In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.

The inclusion of language in the warrant authorizing the search of “any persons present” on the premises does not broaden the powers of the searching authorities beyond the limited terms of this section. State v. Holmes. Searches pursuant to OCGA § 17-5-28 are valid only if the State can articulate particular facts from which the police reasonably inferred that the individual searched was armed and dangerous or was concealing things described in the search warrant. Clark v. State. Where the police had no particular reason to suspect that the defendant was armed or was concealing items described in a search warrant, any search was illegal and the contraband should have been suppressed. Id. OCGA § 17-5-28 narrowly limits the authority of the State to search persons in connection with the execution of a search warrant to those who are on the premises and who meet the criteria described therein, absent facts which would have authorized a warrantless search. Nothing in Fritzius, supra, or Summers, supra, requires any other result. OCGA § 17-5-28 was not raised in Fritzius, and, unlike the present case, both Fritzius and Summers involved the seizure of the named occupant of the premises to be searched.

OCGA § 17-5-30 provides for the suppression of evidence illegally seized under OCGA § 17-5-28 during the execution of a search warrant. In Gary v. State, our Supreme Court addressed for the first time whether the “good faith” exception to the exclusionary rule enunciated in United States v. Leon is applicable as a matter of state law in Georgia. While the exclusionary rule had been applied in federal prosecutions since 1914, under Weeks v. United States, it was not until Mapp v. Ohio, in 1961, that the U. S. Supreme Court determined that the sanction of exclusion was enforceable against the states through the operation of the Fourth and Fourteenth Amendments to the U. S. Constitution.

In Leon, the U. S. Supreme Court modified the judicially created exclusionary rule to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. In Gary, supra at 574, our Supreme Court concluded that Georgia law precludes adoption of the “good-faith exception” to the exclusionary rule.

In Gary, supra at 574, our Supreme Court held, inter alia:

“(A) [s]tate is free as a matter of its own law to impose greater restrictions on police activity than those (the Supreme) Court holds to be necessary upon federal constitutional standards.” Oregon v. Hass. Thus, “the State (has) power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.” Cooper v. California. By passage in 1966 of an act “to provide for searches and seizures and for suppression of evidence illegally seized” (Ga. L. 1966, p. 567), the State of Georgia has chosen to impose greater requirements upon its law enforcement officers than that required by the United States Constitution, as interpreted by the U. S. Supreme Court.”

Our Supreme Court recognized in Gary, supra, that the Leon good faith exception was a modification by the U. S. Supreme Court of a judicially created exclusionary rule, while the Georgia exclusionary rule resulted from the exercise by the Georgia legislature of its authority to legislate under the Georgia Constitution. Our Supreme Court recognized that the legislature enacted OCGA § 17-5-30 to protect against governmental disregard for constitutionally protected rights by requiring the State to respect the probable cause requirements of the Georgia Constitution, Art. I, Sec. I, Par. XIII.

In Gary, our Supreme Court went on to say: “In light of the unequivocal language of OCGA § 17-5-30, infusion of the Leon good-faith exception into the statute would be tantamount to judicial legislation. We decline to enter the realm of the legislature.” (Footnote omitted.) Id. at 575.

OCGA § 17-5-30 authorizes a motion to suppress any evidence illegally seized where the State cannot establish that its incriminating evidence is admissible. State v. Johnston. It is clear that under Georgia statutory law, the State has no authority to seize or search a nonoccupant of the premises to be searched, who is not on the premises at the time of the search, absent probable cause for a warrant-less search. OCGA § 17-5-28 does not limit the officer’s right to search persons as to whom probable cause for a warrantless search exists. See Travis v. State; Wallace v. State

We now address whether or not the police had probable cause to stop the defendants, pursuant to Terry v. Ohio, supra. The only reason the police gave for stopping the defendants in connection with the execution of a search warrant on the premises of Cantrell was to determine whether or not he was in the defendants’ vehicle. Such basis is not one of the two reasons for detention of a nonoccupant of the premises to be searched under OCGA § 17-5-28, absent probable cause. Durden v. State held that, as to arrest warrants, holding dual inquiries under federal and state law serves no useful purpose and only complicates the law in an area that needs to be readily understood by law enforcement. Daniel v. State, following Durden, held that for purposes of searching a vehicle incident to an arrest, the state rule is the same as the federal rule. In neither of these cases was the issue of the statutory protections of OCGA § 17-5-28 or § 17-5-30 involved, raised, or addressed. Each addressed only federal and Georgia constitutional standards, not Georgia statutory law, as addressed by our Supreme Court in Gary, supra, and they do not control the present case.

We will follow our Supreme Court’s approach in Garmon, 271 Ga. 673, supra, and apply a Terry analysis. In Garmon, 271 Ga. 673, our Supreme Court held, inter alia:

under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Postell v. State], citing United States v. Cortez. Such articulable suspicion that the law has been or is about to be violated is “less than probable cause, but greater than mere caprice.” McGaughey v. State What is necessary is a founded suspicion, some basis from which the court can determine that the detention was not arbitrary or harassing. Johnson v. State 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.” Brisbane v. State.

Decided October 13, 2000.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellant.

Valpey & Walker, Gregory W. Valpey, Leonard C. Parks, Jr., for appellees.

Garmon, 271 Ga. at 676.

Here, the police had no specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct by these defendants and thus could not meet the requirements of Terry, supra. If one is unlawfully seized, the fact that the discovery of contraband results from such seizure will not render the seizure legal. Willis v. State. Under the facts of this case, we cannot say that the trial court erred in granting defendants’ motions to suppress.

Judgments affirmed.

Eldridge and Barnes, JJ., concur.

        Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996).

        State v. Becker, 240 Ga. App. 267 (523 SE2d 98) (1999).

       Other misdemeanor charges, not herein relevant, were also filed against the defendants.

        Fritzius v. State, 225 Ga. App. 642 (484 SE2d 743) (1997).

        Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

         State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994).

        Garmon v. State, 271 Ga. 673 (524 SE2d 211) (1999).

        Garmon v. State, 235 Ga. App. 671 (510 SE2d 350) (1998).

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

        Smith v. State, 240 Ga. App. 150 (522 SE2d 744) (1999).

        Brantley v. State, 226 Ga. App. 872 (1) (487 SE2d 412) (1997).

        State v. Holmes, 240 Ga. App. 332 (525 SE2d 698) (1999).

        Clark v. State, 235 Ga. App. 569 (510 SE2d 319) (1998).

        Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992).

        United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984).

        Weeks v. United States, 232 U. S. 383 (34 SC 341, 58 LE 652) (1914).

        Mapp v. Ohio, 367 U. S. 643, 655 (81 SC 1684, 6 LE2d 1081) (1961).

        Oregon v. Hass, 420 U. S. 714, 719 (95 SC 1215, 43 LE2d 570) (1975).

        Cooper v. California, 386 U. S. 58, 62 (87 SC 788, 17 LE2d 730) (1967).

        State v. Johnston, 160 Ga. App. 71 (286 SE2d 47) (1981).

        Travis v. State, 192 Ga. App. 695 (385 SE2d 779) (1989).

        Wallace v. State, 131 Ga. App. 204 (205 SE2d 523) (1974).

        Durden v. State, 250 Ga. 325, 327 (297 SE2d 237) (1982).

        Daniel v. State, 199 Ga. App. 180, 181-182 (404 SE2d 466) (1991).

        Postell v. State, 264 Ga. 249 (443 SE2d 628) (1994).

        United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).

        McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1996).

        Johnson v. State, 230 Ga. App. 535, 537 (1) (496 SE2d 785) (1998).

        Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294) (1974).

        Willis v. State, 122 Ga. App. 455 (177 SE2d 487) (1970).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A00A1063.
    SLATER et al. v. SPENCE.
    (540 SE2d 638)
   Miller, Judge.

James and Miley Slater sued Helen Spence in the State Court of Clarke County for personal injuries arising out of an automobile accident that occurred on August 26,1995. They dismissed the complaint without prejudice on February 20, 1998. The Slaters then refiled the complaint, which was stamped “filed” on August 25, 1998. Spence moved to dismiss the action on the ground that the statute of limitation had expired. The court granted the motion, and in three related enumerations of error, the Slaters appeal the dismissal of their complaint. We affirm.

The Slaters sent the second complaint with $60 for filing fees to the clerk of the state court on August 14, 1998. This apparently was received by the clerk’s office on August 17, 1998. On August 21, however, the Slaters received a notice informing them that an additional $5 was required for the filing fees, which they submitted, and which apparently was not received by the clerk’s office until August 25, 1998, five days after the expiration of the statute of limitation.

The Slaters argue (1) that the court erred in finding that there was no abuse of discretion by the clerk in refusing to file their complaint until after the $5 fee had been paid, (2) that the $5 fee does not stand on the same basis as the statutory fees outlined in OCGA § 15-6-77 (e), and (3) that the court’s construction of the applicable statutes was erroneous as a matter of law.

The general laws and rules of practice, procedure, pleading, evidence, and execution applicable to the superior courts are applicable to and govern in the state courts. OCGA § 15-6-77 (e) (2) provides that the filing fee for a civil case is $58 and lists two exceptions found in paragraphs (3) and (4). The Slaters argue that the $5 fee is not one of those exceptions. Regardless of the exceptions listed in paragraphs (3) and (4), however, paragraph (5) independently states: “Nothing contained in this Code section shall be construed so as to prohibit the collection of any other costs authorized by law for postjudgment proceedings or for any other services which the clerk or the sheriff shall perform.” And OCGA § 15-23-7 (a) provides:

For the purposes of providing court-connected or court-referred alternative dispute resolution programs, a sum not to exceed $7.50, in addition to all other legal costs, may be charged and collected in each civil action or case filed in the superior, state, probate, and magistrate courts and other courts within the county that have the same powers and jurisdiction as state or magistrate courts.

Therefore, the additional fee was authorized and the clerk correctly determined the amount of fees to be paid. “[I]t is the responsibility of the plaintiff and his counsel to see that the appropriate fees are paid in a timely manner.” And the clerk may justifiably refuse to file a complaint until the proper fees have been paid. Accordingly, there was no abuse of discretion by the clerk in refusing to file the complaint until the $5 fee was received, and the court did not err in granting Spence’s motion to dismiss based upon the undisputed expiration of the statute of limitation.

Decided October 13, 2000

Callaway, Neville & Brinson, William J. Neville, Jr., for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Josh B. Wages, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       The additional $5 was assessed for the Alternative Dispute Resolution Fund. See OCGA § 15-23-7 (a).

       The applicable limitation period expired on August 26, 1997. OCGA § 9-3-33. The Slaters had six months from the date of voluntary dismissal to refile the complaint if they wanted to have the second filing considered a renewal of the first action and thus timely. OCGA § 9-2-61 (a).

       OCGA § 15-7-43.

       (Citations omitted.) Orr v. Culpepper, 161 Ga. App. 801, 804 (288 SE2d 898) (1982).

       Id. at 803. Accord McFarland & Assoc. v. Hewitt, 242 Ga. App. 454, fh. 1 (529 SE2d 902) (2000) (there is no authority for the clerk to waive the county’s right to filing fees except upon a proper showing of indigence).


author: Ruffin, Judge.

text:
    A00A1084.
    WATTS v. THE STATE.
    (541 SE2d 41)
   Ruffin, Judge.

Zane Phillip Watts was convicted of rape and incest. On appeal, he challenges the sufficiency of the evidence and also contends that the trial court erred in denying his motions to suppress, permitting hearsay testimony, and giving an erroneous charge. For reasons discussed below, we affirm.

1. Count 1 of the indictment charged Watts with forcibly raping K. T., his girlfriend’s daughter, between September 1, 1996, and November 23, 1997. Watts contends that the trial court erred in denying his motion for directed verdict on this count, arguing that the State presented no evidence that force was involved. This contention is without merit.

A motion for a directed verdict should be granted “only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law.” On appeal, we consider all the evidence in the case and view the evidence in the light most favorable to the verdict.

K. T. testified that in September 1996, when she was 11 years old, Watts came into her bedroom, pulled down her pants, and stuck his penis in her vagina. She said that, “[w]hen I started screaming he told me to stop.” She testified that Watts repeatedly molested her on numerous occasions afterward. On November 23, 1997, while at K. T.’s grandfather’s house, Watts told her they needed to look for light bulbs in a toolshed. When they got inside the shed, Watts told K. T. that “[w]e’re gonna do something first.” K. T. tried to walk out of the shed, but the doors were closed. K. T. testified that Watts then pushed her down, pulled down both of their pants, placed a condom on his penis, and placed his penis in her vagina. She testified that “I told him I had a tampon in so he couldn’t put it in me, but he did anyway.”

Watts concedes in his appellate brief that K. T. testified that the September incident involved the use of force. However, he argues that this testimony was not credible because it was inconsistent with her prior accounts of the incident. He claims that it was therefore “unlikely” that the jury convicted him based on the September incident, and that there was no evidence of the use of force in the November 1997 incident. In considering the denial of a motion for directed verdict, however, we consider only whether the evidence, viewed in the light most favorable to the verdict, demanded a verdict of acquittal. Because the credibility of witnesses is a matter for the jury, the jury could have believed K. T.’s testimony that the September incident involved the use of force. Accordingly, regardless of whether the November incident involved force, the evidence did not demand a verdict of acquittal, and the trial court did not err in denying Watts’ motion for directed verdict.

2. The trial court instructed the jury that

a person commits rape when he has carnal knowledge of a female forcibly and against her will. . . . You may find that the element of force is present if the victim’s lack of resistance was induced by fear. Lack of resistance induced by fear is not consent but constitutes force.

Watts argues that this charge blurs the distinction between the issues of force and consent, suggesting that the element of force is satisfied by proof of lack of consent. We do not agree. The court clearly charged the jury that the defendant’s actions must be both forcible and against the victim’s will. The instruction that a lack of resistance induced by fear does not constitute consent, but does constitute force, is a correct statement of law.

3. Watts contends that the trial court erred in allowing testimony from two witnesses concerning statements made by K. T, arguing that there were not “sufficient indicia of reliability” to support admission under the Child Hearsay Statute, OCGA § 24-3-16. We disagree.

(a) Cindy Merritt, a neighbor of K. T.’s, testified that she spoke with K. T. on November 23, 1997, and that K. T. told her Watts had been molesting her. Watts contends that this statement was inadmissible under the Child Hearsay Statute because there were insufficient indicia of reliability. However, he did not raise this specific objection at trial, but simply stated that he “would object to hearsay statements.” After the prosecutor responded that the testimony was being offered under the Child Hearsay Statute, the trial court overruled the objection, and Watts never asserted that there were insufficient indicia of reliability. Accordingly, he has failed to preserve this issue for appeal.

After giving this testimony, Merritt said that K. T. gave her further information in “bits and pieces” over the following three days. Watts’ attorney then objected that statements made over the three-day period would not exhibit sufficient spontaneity to be admissible under the Child Hearsay Statute. The trial court overruled this objection. Immediately thereafter, the prosecutor asked Merritt about K. T.’s mother’s appearance on November 23, and Merritt testified that she was “very distraught.” The prosecutor then asked about K. T.’s statements, and Merritt testified that K. T. “said that she had taken her mother to a condom that [Watts] had thrown out the window of the vehicle that they were returning home in, and that she had remembered the place where he had thrown it out and had taken her mother back to the scene.”

On appeal, Watts asserts that the “statements that were received over a period of time in late November of 1997” were inadmissible under the Child Hearsay Statute due to a lack of spontaneity, although he does not cite the record to specify exactly which statements to which he is referring. Assuming that Watts is referring to the above testimony, it is not clear that he preserved his objection for appeal. At the time Watts made his objection, Merritt had not described the statements made by K. T., so there was no way of judging whether such statements would be objectionable. When Merritt described the statements several questions later, Watts did not raise any objection.

Even assuming that Watts’ objection was sufficient to preserve the issue for appeal, the statement was not inadmissible for the reasons stated in the objection. The Child Hearsay Statute applies only to a statement by a child “describing any act of sexual contact or physical abuse.” The statement at issue did not describe an act of sexual contact or physical abuse, but described K. T.’s own actions in retrieving the condom that Watts threw from his vehicle. Regardless of whether such statement would be inadmissible for any other reason, it was not inadmissible for the reason asserted by Watts.

(b) Watts also contends that the trial court erred in allowing testimony from another witness, Amanda Hunter. The prosecutor asked Hunter if she remembered K. T. “ever telling you anything about [Watts] touching her in ways that he shouldn’t?” When Hunter began to describe what K. T. had said, Watts’ attorney objected on the grounds that “we don’t have any idea when this occurred, so we have no way of judging whether it happened before the alleged incident or after, and that deals with the issue of the reliability of it.” The prosecutor stated that he would “lay some more foundation,” and asked Hunter when K. T. made the statements. Hunter stated that she believed K. T. made the statements before Hunter’s birthday on November 7. The prosecutor then asked what K. T. had told her, and Hunter said that “[s]he said [Watts] was . . . forcing her to have sex with him.” Watts did not raise any objection to this testimony.

“It is the duty of counsel to obtain a ruling on his motions or objections, and the . failure to do so will ordinarily result in a waiver.” By failing to obtain a ruling on his objection, or to renew his objection after the prosecutor elicited further testimony in response to the objection, Watts waived this issue for appellate review.

4. Prior to trial, Watts filed a motion to suppress certain videotapes found during a search of his residence, asserting that the warrantless search “was conducted without any consent on the part of the Defendant.” The trial court considered this motion just before the start of trial. Defense counsel stated that the police had obtained consent for the search from Anita Tetterton, who the State contended was Watts’ common-law wife. The prosecutor stated that Watts and Tetterton had lived together for a number of years and shared a common bedroom. Defense counsel did not contradict this representation of the facts. During the trial, Tetterton confirmed that she lived with Watts from 1988 to 1997, and the investigating officer testified that Tetterton gave him permission to search the residence.

On appeal, Watts does not contest Tetterton’s authority to give consent, but asserts that the trial court erred in denying the motion to suppress because the State introduced no evidence at the suppression hearing. This contention is without merit. First, Watts’ own attorney represented at the hearing that Tetterton gave consent to the search, and did not object when the prosecutor represented that Tetterton had lived in the house with Watts for several years as his common-law wife. In the absence of an objection, statements by counsel serve the same function as evidence. Furthermore, in considering the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. As discussed above, the trial testimony showed that Tetterton did in fact live with Watts in the residence and gave consent for the search.

5. Before trial, blood and hair samples were obtained from Watts pursuant to a warrant. Watts filed a motion to suppress, asserting that the affidavit used to obtain the warrant “contains material omissions that undermine the validity of the warrant.” The motion did not, however, specify what material facts were omitted, nor did it allege that the facts were omitted in order to mislead the magistrate. At the motion to suppress hearing, Watts’ attorney asserted that the affidavit failed to state that (1) an examination of the victim showed “no evidence of rape or intercourse,” and (2) the victim had made prior false accusations against Watts. He contended that, if the affidavit had contained such facts, the magistrate “might not have issued the warrant.” The trial court denied the motion to suppress.

On appeal, Watts contends that the trial court erred in denying the motion because the State presented no evidence at the suppression hearing. However, it is well settled that, where a defendant challenges a warrant based on the alleged omission of material information, the defendant bears “the burden of showing not only that the false and omitted information was material to the determination of probable cause, but that any false information given or material information omitted was done so for the purpose of misleading the magistrate.” In order to force an evidentiary hearing on the accuracy of the affidavit, a defendant must

Decided October 13, 2000

King & King, David H. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

present more than mere conclusions. There must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by evidence or an offer of proof of such evidence. Mere allegations of negligence or mistake of fact are not sufficient.

In this case, Watts did not even allege that any facts were intentionally omitted for the purpose of misleading the magistrate, much less present evidence or an offer of proof on this issue. Accordingly, he failed to satisfy his burden of proof, and the trial court thus did not err in denying the motion to suppress.

Judgment affirmed.

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

        Black v. State, 242 Ga. App. 271-272 (1) (529 SE2d 410) (2000).

       Id. at 272.

       See Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999) (“Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve”) (punctuation omitted).

       Watts does not contend that the indictment was defective for failing to specify with greater precision the date of the offense.

       See Curtis v. State, 236 Ga. 362, 363 (1) (223 SE2d 721) (1976) (“lack of resistance, induced by fear, is not legally cognizable consent but is force”); Long v. State, 241 Ga. App. 370, 371 (2) (526 SE2d 875) (1999) (“Lack of resistance, induced by fear, is not legally cognizable consent but is force”).

       See Ramsey v. State, 214 Ga. App. 743, 744 (1) (448 SE2d 790) (1994); Patterson v. State, 237 Ga. App. 80 (1) (514 SE2d 873) (1999). See also Horan v. Pirkle, 197 Ga. App. 151-152 (1) (397 SE2d 734) (1990) (mere “hearsay” objection insufficient to preserve claim that statement was inadmissible under OCGA § 24-3-8, where, after trial court indicated that statement was admissible as declaration against interest, counsel failed to raise specific grounds that statement did not qualify as declaration against interest).

       See Martinez v. State, 241 Ga. App. 863 (1) (528 SE2d 294) (2000) (“anticipatory” objection does not suffice to preserve issue).

       OCGA § 24-3-16.

       See Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990) (objection on specific ground waives any objection on other grounds).

       (Punctuation omitted.) Harris v. State, 190 Ga. App. 343, 348 (4) (b) (378 SE2d 912) (1989).

       See Morris v. State, 212 Ga. App. 42, 43-44 (2) (441 SE2d 273) (1994) (defendant failed to renew objection to expert’s qualifications after further foundation laid); Ford Motor Co. v. Tippins, 225 Ga. App. 128, 129-130 (1) (483 SE2d 121) (1997).

        Burgess v. State, 207 Ga. App. 286 (427 SE2d 614) (1993).

        Jackson v. State, 230 Ga. App. 292, 296 (6) (496 SE2d 315) (1998).

        Houston v. State, 242 Ga. App. 114, 115-116 (1) (527 SE2d 619) (2000). See also Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997).

       (Citations and punctuation omitted.) Ferrell v. State, 198 Ga. App. 270-271 (1) (401 SE2d 301) (1991).

       See id.; Houston, supra; Bickley, supra. Contrary to Watts’ contention, the fact that the affidavit was not introduced into evidence at the suppression hearing is immaterial, since Watts did not contend that the facts contained in the affidavit were insufficient to support the issuance of a warrant. Compare Liskey v. State, 156 Ga. App. 45-46 (1) (274 SE2d 89) (1980); Bartlett v. State, 165 Ga. App. 18-19 (1) (299 SE2d 68) (1983).


text:
    A00A1106.
    REED v. THE STATE.
    (540 SE2d 636)
   Ruffin, Judge.

Eric Reed was convicted of aggravated child molestation, child molestation, rape, and burglary. On appeal, he challenges the sufficiency of the evidence. He also contends that the trial court erred in resentencing him after his motion for new trial. For reasons that follow, we affirm.

The record reveals that in the early fall of 1994,11-year-old L. H. was asleep in bed when she was awakened by someone patting her leg and telling her to turn over. She woke up and saw Reed standing in front of her with his pants down. Reed attempted to force L. H. to sodomize him, but she resisted. According to L. H., he then stuck his penis in her vagina and he placed his mouth on her vagina. L. H. testified that he threatened to kill her if she told anyone.

That same night, L. H.’s mother, Angela Heard, woke up to find Reed in her bedroom. Heard recognized Reed because she had previously dated Reed’s brother. According to Heard, Reed was “rubbing on” her and saying that he was there for sex, but she beat him off with a hairbrush. Heard believed that Reed had entered her apartment through her bedroom window “[b]ecause the whole window latch was out.” Heard testified that she did not call the police because Reed “didn’t mess with” her.

On September 9, 1994, Stacy Reed woke up to find Reed, whom she used to date, shaking her leg. Stacy told him to leave and escorted him to the door. She then woke her mother, who called the police. Sergeant Billingslea of the West Point Police Department responded to the call. As he was approaching Stacy Reed’s apartment, he saw Reed driving away at a high rate of speed. Billingslea pursued Reed. When Reed’s car skidded, Billingslea’s car struck Reed’s car. As Reed’s car came to a stop, he jumped out and ran away.

One night in May 1996, Antanhon Haynes was sitting on the porch with friends when she saw Reed in her neighborhood wearing a black shirt with designs on it. Later that night, she went inside, locked the doors, and fell asleep on her couch. She woke up when she sensed someone near her and saw Reed, wearing the same shirt, kneeling beside her. She later discovered that the pants she had been wearing had been cut. Haynes chased Reed out of her house with a broom. Several weeks later, Reed saw Haynes at her grandmother’s house, and he apologized and said that he would pay for the pants that he had cut. Haynes’s mother and uncle testified that they heard Reed apologize and offer to pay for the pants.

On February 23, 1998, 15-year-old A. M. was asleep in her bedroom. She awoke and saw a man pulling the covers off of her and telling her to be quiet. A. M. called for her mother, and the man ran away. A. M. testified that when the man turned on the light, she recognized him as Reed, who is the father of her cousin’s child. Sarah Murphy, A. M.’s mother, awoke to the sound of her daughter screaming and called the police.

1. On appeal, Reed contends that the evidence was insufficient to sustain his convictions. Rather than providing any argument in support of his contention, however, Reed merely asks this Court to “carefully review all of the State’s evidence for the purpose of determining whether or not it was sufficient to support the verdict.”

Under Court of Appeals Rule 27 (c) (2), an appellant must support enumerations of error with argument and citations of authority. A request for this Court to search the record for error certainly does not constitute the type of argument contemplated by that rule. “As we have repeated time and time again, . . . it is not the function of an appellate court to cull the record in search of error on behalf of a party.” Accordingly, Reed has abandoned this claim of error.

2. In three enumerations of error, Reed asserts that the trial court erred in resentencing him to a longer sentence after the hearing on his motion for new trial. Following Reed’s conviction, the trial court sentenced him as follows: (1) 30 years on the aggravated child molestation charge for placing his mouth on the vagina of L. H.; (2) 20 years on the child molestation charge for placing his penis on the vagina of L. H., to be served consecutively; (3) 20 years for raping L. H., to be served concurrently; and (4) 20 years for burglary for entering the Murphy home with the intent to commit child molestation, to be served concurrently. Thus, with the first two consecutive sentences, Reed was sentenced to a total of fifty years in prison.

Reed filed a motion for a new trial. During the hearing on the motion, his attorney argued that the child molestation charge for Reed placing his penis on the vagina of his victim merged with the charge for raping her. The trial court agreed, and it vacated the sentence imposed for child molestation. In its order, the trial court modified the sentence for the rape charge so that it would run consecutively to the sentence on the remaining aggravated child molestation charge. Thus, Reed’s overall sentence remained unchanged.

Reed asserts that the trial court lacked authority to resentence him on the rape charge because the term of court in which the original sentence had been issued had expired. While it is true that a trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered, an exception exists where a motion for new trial has been filed during that term. Such motion serves to extend the trial court’s power to modify and/or correct a sentence. Accordingly, Reed’s assertion that the trial court lacked authority to resentence him is without merit.

We also reject Reed’s contention that the trial court was required to document its reasons for resentencing him to a harsher sentence. Although the trial court modified Reed’s sentence on one offense, it did not increase his overall sentence, nor was there any evidence of vindictiveness on the part of the trial court. Thus, the trial court was not required to document its reasons for modifying the sentence.

3. After Reed’s trial attorney filed enumerations of error and an appellate brief, and after the time for filing enumerations of error had expired, Reed obtained new counsel. Reed’s new attorney filed a motion seeking (1) permission to file supplemental enumerations of error raising the issue of ineffectiveness of trial counsel, and (2) in the alternative, permission to file a motion to remand this case to the trial court for resolution of the ineffectiveness issue.

Where a claim of ineffectiveness is raised for the first time in an enumeration of error on appeal, and such claim could not have been raised earlier, we will address the merits of the claim if we can do so as a matter of law based upon the existing record; otherwise, we will remand the issue to the trial court. In this case, however, the issue of ineffectiveness has not been raised by enumeration, and the time for filing enumerations of error has passed. “ [E]numerations of error may not be amended or supplemented after the time for filing has expired.” Consequently, the issue of ineffectiveness has not properly been raised before this Court, and we cannot address it either by deciding the merits or by ordering that the issue be remanded to the trial court. Accordingly, Reed’s motion for permission to file a supplemental brief or for remand is denied.

Judgment affirmed.

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

Decided October 13, 2000.

Alfred F. Zachry, Kenneth D. Teal, for appellant.

Peter J. Skandalakis, District Attorney, Randall W. Duncan, Raymond C. Mayer, Assistant District Attorneys, for appellee.

       The trial court entered an order of nolle prosequi on one child molestation charge, and the jury acquitted Reed of two burglary charges and one aggravated assault charge.

       Although they share the same last name, Stacy Reed is not related to the defendant.

       See Jenkins v. State, 240 Ga. App. 102, 103 (1) (522 SE2d 678) (1999) (“Mere conclusory statements . . . are not the type of meaningful argument contemplated, by [Rule 27 (c) (2)]”).

       (Punctuation omitted.) Galloway v. Linnell, 242 Ga. App. 221, 222 (2) (529 SE2d 226) (2000).

       See Doby v. Evans, 258 Ga. 777 (2) (373 SE2d 757) (1988); Hirjee v. State, 226 Ga. App. 573 (2) (487 SE2d 40) (1997); State v. Bradbury, 167 Ga. App. 390, 392 (4) (306 SE2d 346) (1983).

       See Duffy v. State, 222 Ga. App. 802, 803-804 (2) (476 SE2d 89) (1996).

       Id. at 804-805 (2), (3).

       See Gomillion v. State, 236 Ga. App. 14, 15 (1) (512 SE2d 640) (1999).

        Parrish v. State, 237 Ga. App. 274, 284 (11) (514 SE2d 458) (1999).


text:
    A00A1259.
    GRANT v. THE STATE.
    (540 SE2d 634)
   Miller, Judge.

After his motion to suppress was denied, Noel Sanford Grant consented to a bench trial on stipulated evidence and was adjudicated guilty of trafficking in cocaine. On appeal, Grant contends the trial court erred in denying his motion to suppress and further erred in participating in plea negotiations and in the process whereby Grant stipulated to a bench trial, waiving his right to trial by jury. We affirm.

Viewed to uphold the trial court’s factual findings and judgment, the evidence revealed that Atlanta Police Officer Lisa Rohey has been assigned to the drug task force at the Atlanta airport for eight years. On February 11, 1999, she received information from a confidential informant that two named passengers, defendant and one other, would be flying into Atlanta from Miami, arriving at approximately 7:14 a.m., and that these passengers purchased their one-way tickets with cash moments before the scheduled departure. Rohey decided to interview them, even though the informant had not said that any drugs would be coming in, because, in her experience, a cash one-way ticket was a red flag.

Rohey and another agent approached Grant, displayed their badges, informed him that they were police officers, and “asked him if [they] could talk to him for a minute.” “He said, yes.” Defendant identified himself as Noel Grant, and that name matched the name on the airline ticket. After checking Grant’s ticket and identification, Rohey handed both items back to him. Rohey explained that her police duty was to stop drugs and drug proceeds that came through the Atlanta airport and asked Grant if he would allow the agents to search his bag. Grant agreed, but nothing was discovered during the search of the bag. Rohey then asked if she could search Grant’s person, and he said yes.

Rohey did not threaten Grant with arrest or prolonged detention if he did not consent to a search of his person. In Rohey’s opinion, Grant’s consent to the search of his person was free and voluntary. As Rohey conducted a pat-down search, Grant never said, “don’t touch me there or stop searching me or anything like that.” From the time Rohey first approached Grant until she discovered the drugs on his person, the entire detention lasted approximately four minutes.

1. The third enumeration contends the denial of Grant’s suppression motion was erroneous because the investigating officer had no reasonable, articulable suspicion to approach Grant in the first instance. But merely approaching an individual and requesting consent to search do not amount to a seizure and need not be supported by an articulable suspicion of criminality.

2. Next, Grant contends the State failed to prove a valid consent to search. Based on the testimony of Officer Rohey, the trial court concluded that Grant freely and voluntarily consented to a search of his person, leading to the discovery of “several [unnatural] bulges in his waist area and halfway down his legs.” In Officer Rohey’s experience, drug smugglers “carry narcotics taped to their body and stuffed inside their clothing at the Atlanta Airport. . . .” Although the evidence is conflicting whether Grant consented to a search of his person, the trial court’s determination of questions of fact and witness credibility at a suppression hearing must be accepted by the appellate courts unless clearly erroneous. Here, the trial court’s finding of consent is based upon evidence, is therefore not clearly erroneous, and is affirmed.

3. In two related enumerations, Grant contends the trial court violated Uniform Superior Court Rule 33.5 (A), which “provides that the trial judge should not participate in plea discussions.”

Grant did not plead guilty to any offense but exercised his right to plead not guilty and have the State prove its case beyond a reasonable doubt, with the trial court acting as the trier of fact. The trial court here did not impermissibly participate in plea negotiations by inquiring whether the State’s sentencing recommendation would be the same after the suppression hearing as before. The presiding judge is expressly admonished by USCR 33.5 (B) to inform an accused pleading guilty or nolo contendere whether it will likely follow the State’s sentencing recommendation. Nor did the trial court subtly coerce Grant into waiving his right to trial by jury by explaining that he would not be guaranteed the mandatory minimum sentence were he to proceed with a jury trial and that the sentence was discretionary and could be as much as 30 years. The first and second enumerations are without merit.

Decided October 13, 2000.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). Accord Small v. State, 243 Ga. App. 678, 679 (1) (534 SE2d 139) (2000).

        Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975).

        Roberts v. State, 267 Ga. 669, 674 (7) (482 SE2d 245) (1997).

       (Punctuation omitted.) McDaniel v. State, 271 Ga. 552, 553 (2) (522 SE2d 648) (1999).

       See, e.g., Baldwin v. State, 217 Ga. App. 866, 868 (2) (460 SE2d 80) (1995).


text:
    A00A1363, A00A1364.
    VALLEY PLACE, LTD. v. T. I. EQUITY FUND (1995), L.P.; and vice versa.
    (541 SE2d 37)
   Miller, Judge.

Valley Place, Ltd. sued T. I. Equity Fund (1995), L.P. to recover the balance it claims was due on a promissory note for the sale of real estate. Valley Place agreed to sell T. I. an apartment complex consisting of 250 apartments. After the execution of the contract but before closing, the parties discovered that the property was zoned for only 244 apartments. The parties modified the warranties and representations section of the contract to include the acknowledgment that the property was not properly zoned and that Valley Place agreed to “promptly apply for and pursue” rezoning. The parties then agreed to go forward with the transaction, and at closing on December 2, 1996, T. I. executed a promissory note (the “Note”) in the amount of $625,000 that was to mature one year later. The Note outlined T. I.’s remedy in the event that Valley Place failed to obtain the necessary zoning.

When Valley Place failed to obtain the necessary zoning by December 2, 1997, T. I. offset the amount due by $172,000 pursuant to the terms of the Note and tendered $109,250 as payment in full. Valley Place sued to recover the $172,000, and both parties moved for summary judgment. The trial court granted T. I.’s motion for summary judgment while denying Valley Place’s motion. Valley Place appeals this judgment in Case No. A00A1363. The court also denied T. I.’s motion to set up its counterclaim by leave of court, which order T. I. cross-appeals in Case No. A00A1364.

The standard applicable to motions for summary judgment is announced in Lau’s Corp. v. Haskins, and when reviewing the grant or denial of such motion, this court conducts a de novo review of the law and the evidence.

Case No. A00A1363

1. Valley Place contends that the trial court erred in denying its motion for summary judgment and in granting summary judgment to T. I., specifically because T. I. was not entitled to an offset.

The certificate of warranties and representations provided that:

Seller now acknowledges and represents that the Property, as defined in the Sales Contract, is not properly zoned for its present use due to a violation of the density requirements and a lack of required parking spaces and Seller has agreed to promptly apply for and pursue, at Seller’s expense, a rezoning of the Property to a zoning classification that will allow for the use and occupancy of the Property as a 250 unit apartment complex. . . .

The Note provided:

In addition to the right of Maker to offset obligations owed to Valley Place Apartments, LLC as described above, Maker shall, as its sole and exclusive remedy for density and parking zoning violations, have the right to offset the amount of $172,000.00 from the principal balance hereof in the event that Holder fails to deliver to Maker, prior to the maturity date hereof, evidence of the final rezoning (to include the running of any appeal periods) of the property known as Valley Place Apartments ... to allow for the use and occupancy of the Valley Place Apartments as a 250 unit apartment complex. . . . The amount of $172,000 is a reasonable estimate of Maker’s damages in the event that the rezoning is not received, actual damages being impossible to ascertain and is not intended as a penalty or forfeiture.

Valley Place contends that the Note provides that $172,000 was to be offset only if two events occur: (1) Valley Place breaches its obligations regarding density and parking zoning violations under the representations and warranties section of the sales contract, and (2) Valley Place fails to deliver to T. I., prior to the maturity date of the Note, evidence of final rezoning of the property allowing for all 250 units. Valley Place argues that both of these contingencies must occur to give rise to damages, and that it performed its obligations under the first requirement.

Valley Place misinterprets the plain language of the Note. Regardless of whether Valley Place promptly pursued rezoning, the Note clearly requires rezoning to be acquired and evidence thereof to be delivered to T. I. by December 2, 1997. Therefore, contrary to Valley Place’s assertion, the failure to acquire and document rezoning alone gives rise to the contractual right of offset.

Valley Place next argues that it was excused from performance of its obligation as it was unable to timely obtain rezoning due to an “act of God.” OCGA § 13-4-21 provides that “[i]f performance of the terms of a contract becomes impossible as a result of an act of God, such impossibility shall excuse nonperformance, except where, by proper prudence, such impossibility might have been avoided by the promisor.” And OCGA § 1-3-3 (3) defines an “Act of God” as an “accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness. This expression excludes all idea of human agency.”

Tom Williams, Valley Place’s general partner, deposed that his first effort in January 1997 to obtain rezoning was unsuccessful, and that in March or April 1997 he learned that in order to get the rezoning, he had to get a land use change. Williams further stated that due to surgery he was incapacitated from June 10 to early July, and as a result he did not reapply for a land use change or a zoning change until July or August.

Although Williams’ surgery caused him to be unable to pursue the rezoning for a few weeks between June and July, such nonperformance could have been avoided. Valley Place had one year to acquire the proper zoning and failed in its first attempt. Moreover, although Williams testified that land use changes are heard only in July and December, he was aware of his health problems in February and aware of the land use requirement in March or April. Valley Place and Williams could have taken other measures to assure that the second zoning application was timely filed. For example, Valley Place could have hired or contracted with someone else to fulfill the duty, or Williams could have begun the second application process earlier.

2. Valley Place also argues that the damage provision of the Note constitutes an unenforceable penalty and that it does not pass the three-prong test set forth in Southeastern Land Fund v. Real Estate World. To determine whether a contract provision is enforceable as liquidated damages, the following factors must be present:

First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.

“[T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court.” And the burden is on Valley Place, the defaulting party, to show the provision is a penalty. Margaret Soens, the managing director of T. I., stated in her deposition that neither party knew what the damages would be if the rezoning were not acquired, but that T. I. risked losing six apartment units. She further explained that the $172,000 was calculated by reducing “the purchase price by six units.” Williams also explained that it was hard to figure out what the loss would be if rezoning were not acquired, and that the $172,000 was calculated “by taking the price that was paid per apartment, arriving at the average price per apartment and multiplying it by the number of apartments, six.”

The damages clause in the Note here meets all three requirements of Southeastern Land Fund. The undisputed evidence shows that the parties could not easily calculate the damages that would result from the failure to acquire the proper zoning. We also hold that the clause was intended to provide damages and not to penalize Valley Place for its failure to obtain rezoning. The Note does not use the term “liquidated,” but the language used is that of a liquidated damages clause. And the Note does state that the provision is not intended to be a penalty. Finally, a reduction in the purchase price was indeed a reasonable preestimate of the probable loss as T. I. would not have the use of six apartments. Therefore, Valley Place cannot show that the liquidated damages clause is an unenforceable penalty.

Decided October 13,2000.

Gerry, Friend & Sapronov, William D. Friend, John W. Sandifer, for appellant.

The trial court did not err in granting summary judgment to T. I. and in denying Valley Place’s motion for summary judgment.

Case No. A00A1364

T. I. argues that the court erred in denying its motion for leave to set up its counterclaim by amendment pursuant to OCGA § 9-11-13 (f). In the motion, T. I. argued that due to an error in calculation, it overpaid Valley Place in the amount of $22,929. T. I. filed its answer to Valley Place’s complaint on August 27, 1998, the error was allegedly discovered by T. I. on December 2, 1998, and the motion to amend was filed on December 16, 1998. OCGA § 9-11-13 (f) provides that “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” “[W]hether to allow such a filing even after the requisite showing is made is within the discretion of the trial court and will not be disturbed absent abuse.”

The trial court concluded that T. I. knew or should have known of the alleged overpayment at the time of filing the defensive pleading and that such delay is not excusable. Although a miscalculation in interest is not something that T. I. necessarily should have known at the time its defensive pleading was filed, the mistake was discoverable before the passage of almost four months between the defensive pleading and the motion to amend including the fourteen days (ten working days) it took T. I. to file the counterclaim once the error was discovered. Therefore, we discern no abuse in the denial of T. I.’s motion to add its counterclaim.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

Welch, Spell, Reemsnyder, Pless & Davis, Leroy P. Spell, Jr., Laura M. Lanzisera, for appellee.

       Valley Place’s zoning request was subsequently granted on December 4, 1997.

       261 Ga. 491 (405 SE2d 474) (1991).

        Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (1) (526 SE2d 82) (1999).

       The trial court rejected Valley Place’s “act of God” argument and based its ruling on the fact that there was no showing in the record that other employees of Valley Place were incapable of obtaining the required zoning. Williams testified, however, that there was no other employee capable of handling zoning issues. This became an issue of fact.

       237 Ga. 227 (227 SE2d 340) (1976).

       (Citations and punctuation omitted.) Id. at 230.

       (Citation omitted.) Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989).

        Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 644 (4) (507 SE2d 823) (1998).

       See Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 686 (1) (534 SE2d 145) (2000).

       See OCGA § 13-6-7: “If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.”

       Compare Manning & Assoc. Personnel v. Trizec Properties, 212 Ga. App. 600, 602 (2) (442 SE2d 783) (1994) (where measure of damages is not equivalent to “landlord’s costs” under a lease, sum stipulated is not reasonable preestimate of probable loss resulting from breach); Roswell Properties v. Salle, 208 Ga. App. 202, 206 (3) (430 SE2d 404) (1993) (clause drafted in terms of forfeiting an unspecified sum of earnest money was unenforceable).

       Valley Place argues that the Note provides for liquidated damages as well as actual damages and that therefore the liquidated damages portion is unenforceable. The clause relating to density and parking zoning violations, however, clearly provides that the $172,000 offset is the sole and exclusive remedy.

       T. I. claims that due to a miscalculation in interest it incorrectly paid Valley Place $109,250 instead of $86,321 resulting in an overpayment of $22,929. Soens deposed that the miscalculation arose from T. I.’s failure to take into consideration a payment of $400,000 T. I. made in September 1997.

       (Citation omitted.) Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 506 (6) (497 SE2d 269) (1998).


text:
    A00A1486.
    BURNS v. THE STATE.
    (540 SE2d 640)
   Ruffin, Judge.

Willis Burns appeals his conviction of armed robbery, contending that the trial court committed errors in charging the jury. Because these contentions are without merit, we affirm.

1. In its charge to the jury, the trial court stated that

[i]f . . . you should find and believe beyond a reasonable doubt that this defendant. . . did . . . commit the offense of armed robbery, you would be authorized to find the defendant guilty. On the other hand, if after considering the testimony and the evidence presented to you together with the charge of the court you should find beyond a reasonable doubt that the state has not carried its burden, then you would be authorized to find the defendant not guilty of the offense of armed robbery.

Bums asserts that this instruction misled the jury as to the State’s burden of proof, suggesting that it had to find him not guilty beyond a reasonable doubt in order to acquit. Although the State admits that the trial court’s language “may not be the best,” it argues that, viewed as a whole, the charge properly instructed the jury on the State’s burden of proof. We agree.

In determining whether a jury instruction “allowed a finding of guilt based on a degree of proof below that required by the due process clause,” the Supreme Court has stated that the correct inquiry is “whether there is a ‘reasonable likelihood’ that the jury applied the instmction in a constitutionally impermissible manner.” In resolving this issue, we must consider the trial court’s charge as a whole.

In this case, the trial court repeatedly instructed the jury on the State’s burden of proof. The court charged that the defendant “is presumed to be innocent until proven guilty”; that this presumption remains “until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense charged”; that “no person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty”; that “the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt”; and that “there is no burden of proof upon the defendant whatever and the burden never shifts to the defendant to prove innocence.” The court instructed the jury on the meaning of “reasonable doubt,” and charged that “[i]f . . . your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law and you should acquit the defendant.” Finally, the court charged that “[i]f the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.” Only after thus extensively charging the jury on the State’s burden of proof did the court give the challenged instruction.

The challenged instruction in this case was not nearly as flawed as that in Turner v. State, where the trial court at one point told the jury that “[t]he State is not required to prove the guilt of the accused beyond all reasonable doubt.” The instruction in this case was at least facially accurate, since the jury would indeed be authorized to acquit the defendant if it found beyond a reasonable doubt that the State had not carried its burden. Nevertheless, we held in Turner that the erroneous instruction did not constitute reversible error, since the court repeatedly instructed the jury that “the burden of proof rests on the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Similarly, given the trial court’s repeated instructions as to the State’s burden of proof in this case, we do not believe there is a reasonable possibility that the court’s apparent slip of the tongue misled the jury as to the degree of proof necessary for conviction or acquittal.

2. Bums contends that the trial court erred in using the phrase “moral and reasonable certainty” in its charge on reasonable doubt. However, “there was no reversible error because the charge viewed in its entirety repeatedly and accurately conveyed to the jury the concept of reasonable doubt.”

3. Finally, Burns contends the trial court erred in failing to give his requested charge on the degree of proof necessary for a conviction based on circumstantial evidence alone. Where the State’s case consists of both direct and circumstantial evidence, the trial court is required, upon request, to charge the jury on the law of circumstantial evidence. However, the failure to do so is not necessarily harmful. Burns does not even assert in his appellate brief that he was harmed by the failure to give the requested instruction. Indeed, he provides no discussion of the facts whatsoever. Having reviewed the evidence, we think it is highly probable that the failure to give Burns’ requested charge did not contribute to the verdict.

The evidence showed that Randy Blair and Lisa Brooks were working at the Busy Bee grocery store late one night when two men came in and robbed the store. One of these men had a gun. After Blair struggled with the gunman, the two robbers ran from the store. Neither Blair nor Brooks was able to positively identify Burns as one of the robbers. However, Johnny Williams, who was living with Bums at the time, told the police that, on the night after the robbery, he heard Burns say that he had robbed the store. The police arrested Bums, who gave a written statement admitting his involvement in the crime. In this statement, which was introduced at trial, Burns admitted that he and another person, known as “Shorty,” robbed the Busy Bee store. Burns claimed that he was the lookout and Shorty was the gunman, and that he ran from the store when he saw Shorty fighting with the man at the register. Burns stated that Shorty gave him $100 of the money taken in the robbery. He also stated that a pistol found underneath his bed was the one Shorty had used in the robbery.

Burns’ confession is direct, not circumstantial, evidence of his participation in the crime, establishing his identity as one of the robbers. Although there was also circumstantial evidence tending to show Bums’ involvement in the crime — for example, Williams’ out-of-court statement that he saw Burns watching a videotape apparently taken from the store — this evidence simply corroborated the direct evidence of Burns’ own confession, which was the key piece of evidence showing his guilt. We find it highly unlikely that the jury did not rely on Burns’ confession in convicting him of the crime, but convicted him based solely on the circumstantial evidence. Accordingly, any error in failing to give Bums’ requested instruction, dealing with the standard for conviction based on circumstantial evidence alone, was harmless.

Decided October 13, 2000

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Coleman v. State, 271 Ga. 800, 804 (8) (523 SE2d 852) (1999).

       See id. at 805; Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992).

       241 Ga. App. 431 (526 SE2d 95) (1999).

       (Punctuation omitted.) Id. at 436 (6).

       (Punctuation omitted.) Id. at 437 (6) (a).

       (Punctuation omitted.) Hart v. State, 238 Ga. App. 325, 327 (2) (d) (517 SE2d 790) (1999). See also York v. State, 242 Ga. App. 281, 290 (5) (a) (528 SE2d 823) (2000); Baldwin v. State, 264 Ga. 664, 665 (1) (449 SE2d 853) (1994).

        Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). The theory behind this requirement is that, if the jury finds that all the direct evidence has been impeached, it will be left simply with the circumstantial evidence, “and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction.” Id. However, the Supreme Court has created a bright line rule whereby a circumstantial evidence charge must be given regardless of whether the jury could find that the direct evidence has been impeached. Id. at 699-700.

       See Johnson v. State, 236 Ga. App. 252, 255-256 (3) (511 SE2d 603) (1999).

        See Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995) (criminal conviction “will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict”).

       See Stubbs v. State, 265 Ga. 883, 886, n. 5 (463 SE2d 686) (1995) (“a defendant’s confession is direct evidence”); Bighorn v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996) (confession is not circumstantial evidence); Cooper v. State, 256 Ga. 234, 236 (3) (347 SE2d 553) (1986).

       Williams testified at trial and denied mailing any such statement to the police. In fact, he denied, having any discussion with the police regarding the robbery.

       See Francis, supra.


author: Johnson, Chief Judge.

text:
    A00A1601.
    UPSON COUNTY HOSPITAL, INC. v. HEAD.
    (540 SE2d 626)
   Johnson, Chief Judge.

This is an appeal from the trial court’s order denying Upson County Hospital’s motion to dismiss Carolyn Head’s amended complaint. The question presented is two-fold: first, whether Head was required to file an expert affidavit with her original complaint, and second, whether Head’s failure to file an expert affidavit with her original complaint bars the claims in her amended complaint. Our decision involves consideration of the interaction between a version of OCGA § 9-11-9.1 as it existed at the time Head filed her original complaint and OCGA § 9-3-71, the applicable statute of limitation.

Head filed a suit for damages against doctors Brown and Mameli, Thomaston Obstetrical & Gynecological Associates, and Upson County Hospital. She alleges that she was injured by caudal anesthesia administered by Dr. Brown after she was admitted to the hospital in active, premature labor. The hospital filed a motion for summary judgment contending that it was not liable for any acts or omissions of Drs. Brown and Mameli and that Head had failed to file an OCGA § 9-11-9.1 expert affidavit in support of any allegations of professional negligence against the hospital.

The trial court held that Head was not seeking to hold the hospital liable for any negligent acts of Dr. Brown or Dr. Mameli and granted partial summary judgment in favor of the hospital as to that issue. It denied the hospital’s motion for summary judgment as to the OCGA § 9-11-9.1 expert affidavit issue, holding that a 9.1 expert affidavit was not required given the nature of the causes of action alleged against the hospital in Head’s complaint.

One day before the summary judgment hearing and nearly three years after the running of the statute of limitation, Head filed an amended complaint adding counts of professional malpractice against the hospital. An OCGA § 9-11-9.1 expert affidavit was filed contemporaneously with the amended complaint.

The hospital filed a motion to dismiss Head’s amended complaint, asserting that the amended complaint is barred by the statute of limitation and that Head had failed to comply with the affidavit requirements of OCGA § 9-11-9.1. In denying the motion to dismiss, the trial court held that initially only negligence claims were asserted against nonprofessional employees of the hospital and thus, no 9.1 affidavit was required. It further held that when Head filed her amended complaint, medical malpractice allegations were added that required the filing of a 9.1 expert affidavit and, in fact, Head filed such an affidavit in support of the malpractice claims.

1. Upson County Hospital contends that Head’s amended complaint is barred by the statute of limitation because the 1995 version of OCGA § 9-11-9.1 is applicable to the case and does not allow her to remedy her failure to attach an expert affidavit by amendment. We first note that the hospital correctly argues that the 1995 version of OCGA § 9-11-9.1 is applicable to this case. That version stated as follows:

(e) Except as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.

However, even under this version, a 9.1 expert affidavit was required only when the plaintiff’s complaint alleged professional malpractice.

In order to determine whether the trial court erred in denying the hospital’s motion to dismiss Head’s amended complaint, we must first determine whether the trial court erred in its legal analysis that the original complaint did not allege any professional malpractice claims requiring the filing of an OCGA § 9-11-9.1 expert affidavit contemporaneously with the complaint.

In her appellate brief, Head admits that her original complaint alleged both nonprofessional negligence and professional negligence as to the hospital and its employees. She further admits that she did not attach an OCGA § 9-11-9.1 affidavit to the complaint relating to the professional negligence allegedly committed by the hospital and its employees. And, she concedes that the hospital raised the affidavit defense in its first responsive pleading.

In an effort to circumvent the statutory language prohibiting her from curing her failure to file the requisite affidavit, Head argues that the hospital did not file a motion to dismiss on this issue until nearly 27 months after the defense was raised in its answer. This argument lacks merit. The 1995 version of OCGA § 9-11-9.1 did not require the hospital to file a motion to dismiss at any specific time. The 1995 version required Head to file with her complaint an expert affidavit setting forth a negligent act or omission to support any professional malpractice claims and stated that her failure to do so could not be cured by filing an affidavit with an amended complaint. In this case, the hospital raised an OCGA § 9-11-9.1 defense in response to any allegation of professional negligence in the original complaint, and the record shows that Head never argued that the affidavit was available prior to filing the complaint but was not filed as a result of a mistake or oversight. Consequently, the trial court erred in failing to grant the hospital’s motion for summary judgment regarding any claims of professional malpractice based on Head’s failure to file a 9.1 expert affidavit with her original complaint. The trial court also erred in failing to grant the hospital’s motion to dismiss any claims of professional malpractice based on the untimely affidavit included with Head’s amended complaint.

The question to be answered then is which of Head’s claims constitute professional malpractice. To the extent that the hospital agents or employees are not “professionals,” as defined in OCGA §§ 14-7-2 (2), 14-10-2 (2), arid 43-1-24, the affidavit requirements of OCGA § 9-11-9.1 do not apply. Thus, Head may maintain her action against the hospital with regard to the negligence of any nonprofessionals. Moreover, to the extent that Head’s claims are for simple negligence and not for professional malpractice, then no affidavit is required, even though the action may be against a professional.

“Whether an action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” It is a question of law for the court to decide. A professional negligence or professional malpractice claim calls into question the conduct of the professional in his area of expertise. Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. We have previously held that a nurse’s failure to activate an alarm, as a doctor ordered, was ordinary negligence. Likewise, claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.

We have carefully reviewed Head’s complaint to discern any allegations of simple negligence versus professional negligence. In Head’s complaint, she asserts that at no time during the administration of the caudal anesthesia was she told by hospital staff what she was receiving. With regard to the hospital, she alleges that (1) the hospital was negligent in failing to properly train and supervise the staff, physicians, and medical personnel attending patients; (2) employees or agents of the hospital, including but not limited to the labor and delivery nursing staff, negligently failed to provide an adequate and accurate record of the anesthetic drugs administered to Head during her labor and delivery and her responses to those anesthetic drugs; (3) the hospital, through its employees and agents, failed to properly inform her and obtain her consent before administering obstetrical anesthesia; (4) the hospital either failed to follow established anesthesia procedures or protocols or failed to have established protocols in place to be followed during and after the administration of obstetrical anesthesia in the labor and delivery area; and (5) the hospital is liable for any and all acts of negligence on behalf of their employees and agents.

Clearly, Head’s claim that the hospital is liable for any and all acts of negligence on behalf of its employees and agents can be construed as a claim for both simple negligence and professional negligence. To the extent that the hospital employees and agents are not professionals, as defined in OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24, Head was not required to file an OCGA § 9-11-9.1 expert affidavit to maintain her claim. In addition, to the extent that any acts of negligence by professionals do not involve professional malpractice and are merely clerical, administrative, or routine, Head was not required to file a 9.1 expert affidavit to maintain her claim. However, to the extent that Head’s allegation asserts a claim against the hospital based upon the negligent act of a professional using his professional judgment and skill, then Head’s failure to file a 9.1 expert affidavit is fatal to her claim.

Head alleges that the hospital was negligent in failing to properly train and supervise the staff, physicians, and medical personnel attending patients. Since the hospital is not a “professional,” the affidavit requirement does not apply automatically as to any claim stated against it. The affidavit requirement applies only when liability is based upon respondeat superior and is grounded upon acts or omissions requiring the exercise of professional skill and judgment by agents or employees who are recognized as professionals under OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24. Here, Head does not specify in what regard agents or employees of the hospital were allegedly negligent in their training and supervision. However, based on the facts set forth in her complaint, Head’s allegation must stem from the alleged actions of the staff, physicians, and attending medical personnel in failing to obtain Head’s consent to caudal anesthesia before helping with its administration and in failing to inform Head that she was receiving caudal anesthesia. To the extent that the complaint avers claims of liability arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other professionals under OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24, an expert affidavit was necessary to maintain the claim. However, to the extent that the complaint avers claims based on either (1) the acts or omissions of staff employees who do not qualify as professionals under the stated statutes or (2) acts or omissions of professionals that do not constitute malpractice, such as administrative acts, no expert affidavit was required.

Head’s claim that employees or agents of the hospital negligently failed to provide an adequate and accurate record of anesthetic drugs administered to her is a claim for professional malpractice insofar as it is a claim against a professional as defined in OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24. The professionals’ decisions regarding whether it was necessary to record the anesthetic drugs administered to Head, which anesthetic drugs were recorded, and what reactions by Head were recorded call into question the conduct of the professionals in their area of expertise. The negligence involves an alleged failure to perform professional responsibilities with the requisite degree of care and skill required of the professional. Hence, insofar as this claim involves the exercise of professional judgment and skill by professionals, an OCGA § 9-11-9.1 expert affidavit was required, and the trial court should have dismissed this claim with regard to actions of those professionals. It should be noted, however, that such a claim may be maintained against the hospital insofar as it involves nonprofessional employees or agents of the hospital.

Likewise, Head’s claim that hospital employees and agents failed to properly inform her and obtain her consent before administering caudal anesthesia is a claim for professional malpractice insofar as it is a claim against a professional as defined in OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24. The professionals’ decisions regarding what information needed to be told to Head regarding anesthesia, as well as the professionals’ decisions regarding whether Head had given a fully informed consent before anesthesia was administered, call into question the conduct of the professionals in their area of expertise. The negligence involves an alleged failure to perform professional responsibilities with the requisite degree of care and skill required of the professional. Hence, insofar as this claim involves the exercise of professional judgment and skill by professionals, an OCGA § 9-11-9.1 expert affidavit was required, and the trial court should have dismissed this claim with regard to actions of those professionals. It should be noted, however, that such a claim may be maintained against the hospital insofar as it involves nonprofessional employees or agents of the hospital.

Head’s claim that the hospital either failed to follow established anesthesia procedures or protocols or failed to have any established procedures or protocols in place is a claim for professional negligence. Whether hospital agents or employees failed to meet professional standards in this regard is a question that requires expert testimony, and Head was required to file an OCGA § 9-11-9.1 expert affidavit with her complaint to support this claim.

Accordingly, the trial court properly denied the hospital’s motion for summary judgment with respect to the allegations in Head’s original complaint which do not sound in professional negligence and which do not involve professionals since such counts required no OCGA § 9-11-9.1 affidavit. However, the trial court erred in failing to grant the hospital’s motion for summary judgment with respect to any allegations in Head’s original complaint which sound in professional negligence.

2. Having determined which of Head’s original claims involve professional negligence and are therefore barred by her failure to file an OCGA § 9-11-9.1 expert affidavit, we must now determine whether the claims in Head’s amended complaint are barred.

The first count in Head’s amended complaint asserts that the hospital, through its agents and employees, committed a battery upon Head by assisting Dr. Brown and Thomaston Obstetrical & Gynecological Associates in committing a battery upon Head by administering a caudal anesthesia when it was known or should have been known that Head had specifically elected not to have regional anesthesia administered to her. Head specifically asserts that she told hospital agents and employees upon admission that she did not wish to receive caudal anesthesia but that hospital agents and employees nevertheless assisted in administering the caudal anesthesia. She also asserts that the hospital was negligent in failing to properly train its agents and employees regarding the necessity of obtaining timely written consent for regional anesthesia.

To the extent that this count alleges a claim for battery, Head may maintain the claim against both the professional and nonprofessional employees and agents of the hospital. A claim for battery is not an allegation of professional negligence and does not require an OCGA § 9-11-9.1 affidavit. Moreover, to the extent that this count includes an allegation that the hospital failed to properly train its agents and employees, this allegation may also be maintained. As we discussed in Division 1, the hospital’s purported failure to train its agents and employees is an allegation of ordinary negligence. Thus, no 9.1 expert affidavit is necessary for this claim.

However, paragraph six of Count 1 in Head’s amended complaint asserts that the hospital, through its agents and employees, was negligent in failing to immediately inform Head’s treating physician of the fact that she was complaining of numbness and the effects of anesthesia following the birth of her child. This paragraph does not assert a claim of battery, but rather asserts a claim for professional malpractice insofar as it is a claim against a professional as defined in OCGA §§ 14-7-2 (2), 14-10-2 (2), and 43-1-24. The professionals’ decisions regarding what information and patient complaints should be told to the treating physician call into question the conduct of the professionals in their area of expertise. The negligence involves an alleged failure to perform professional responsibilities with the requisite degree of care and skill required of the professional. Hence, insofar as this claim involves the exercise of professional judgment and skill by professionals, Head’s failure to file an OCGA § 9-11-9.1 expert affidavit with her original complaint bars this claim, which was filed three years after the statute of limitation expired. A strict reading of the statute mandates that her failure to file a 9.1 expert affidavit with her original complaint cannot be cured through the filing of an amended complaint which includes a 9.1 expert affidavit. The trial court should have dismissed this claim with regard to actions of those professionals. It should be noted, however, that such a claim may be maintained against the hospital insofar as it involves nonprofessional employees or agents of the hospital.

The second count in Head’s amended complaint should also have been dismissed by the trial court. This count asserts that the hospital, through its agents and employees, “mixed anesthetic agents together which were not reflected on the face of [her] records” and failed to determine the possible causes of Head’s anesthetic reactions. While Head attached an OCGA § 9-11-9.1 expert affidavit to her amended complaint in support of this allegation, the 9.1 expert affidavit is untimely. Not only was the affidavit filed three years after the statute of limitation expired, but the claim involves the same facts as alleged in Head’s original complaint: employees or agents of the hospital negligently failed to provide an accurate record of the anesthetic drugs administered to Head and her reactions to those drugs. Head’s failure to file a 9.1 expert affidavit with her original complaint cannot be cured through the filing of an amended complaint which includes a 9.1 expert affidavit. The trial court erred in denying the hospital’s motion to dismiss Count 2 of Head’s amended complaint.

Decided October 13, 2000.

Willis, McKenzie & Long, Edward L. Long, Jr., for appellant.

Stephens & Shuler, Charles W. Stephens, W. Ashley Hawkins, for appellee.

3. Based on our holding in Division 2, we need not reach the hospital’s claim that the OCGA § 9-11-9.1 expert affidavit accompanying Head’s amended complaint is insufficient as a matter of law.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Phipps, J., concur.

       Although an expert affidavit was attached to the original complaint, it addressed only the alleged deviations by Drs. Brown and Mameli from the standard of reasonable care and skill practiced by physicians.

       The trial court did not address the effect of the amended complaint in its order on the hospital’s motion for summary judgment.

       In 1997, the General Assembly amended OCGA § 9-11-9.1 by changing the time in which the affidavit must be filed. However, this amendment does not apply retroactively.
        Mug A Bug Pest Control v. Vester, 270 Ga. 407, 408 (1) (509 SE2d 925) (1999).

       We assume Head’s argument was prompted by the 1997 amendment to OCGA § 9-11-9.1, which requires a defendant to raise the failure to file an expert affidavit “by motion to dismiss filed contemporaneously with its initial responsive pleading.”

       See Smith v. North Fulton Med. Center, 200 Ga. App. 464, 466 (2) (408 SE2d 468) (1991).

       See id.

        Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197) (1992).

        Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990); Hodge v. Jennings Mill, 215 Ga. App. 507, 508-509 (451 SE2d 66) (1994).

       (Citations omitted.) Mendoza v. Pennington, 239 Ga. App. 300 (1) (519 SE2d 715) (1999).

        Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998).

        Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993).

       Id.

       See Dent, supra.

        Smith, supra at 466 (1).

        Jenkins County Hosp. Auth. v. Landrum, 206 Ga. App. 753 (426 SE2d 572) (1992).

        Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 10 (456 SE2d 254) (1995).

        Lamb v. Candler Gen. Hosp., 262 Ga. 70, 72 (2) (413 SE2d 720) (1992); Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 64-65 (3) (424 SE2d 632) (1992).

        Legum v. Crouch, 208 Ga. App. 185, 186-187 (1) (430 SE2d 360) (1993); Dozier, supra.

        Legum, supra; Dozier, supra.

       See Dent, supra at 321 (Benham, C. J., dissenting).

        Dozier, supra at 65.

       See Dent, supra.

        Dozier, supra.

        Labovitz v. Hopkinson, 271 Ga. 330, 336-337 (3) (519 SE2d 672) (1999).

        Dent, supra at 319, n. 1 (Benham, C. J., dissenting).

       See id. at 321 (Benham, C. J., dissenting).

       OCGA § 9-3-71.

       See Hodge, supra; Smith, supra.

        Dozier, supra.

       See OCGA § 9-3-71.

       See Hodge, supra; Smith, supra.