author: Barnes, Judge.

text:
    A00A0714.
    ADAMS v. HARE.
    (536 SE2d 284)
   Barnes, Judge.

Valerie Adams sued Tracey Hare as a result of injuries she received when a horse formerly owned by Hare kicked her. Adams appeals from the trial court’s grant of summary judgment to Hare based on her immunity under the Injuries From Equine Activities Act (“Equine Activities Act”), OCGA § 4-12-1 et seq., enacted in 1991. For reasons that follow, we affirm.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Viewed in this light, the record shows that at the time of her injuries, Adams was a professional horse trainer who had trained about 50 horses in the preceding 20 years. She first encountered the horse that caused her injuries, “Bobby,” at a horse show in June 1995. She talked to his owner, Hare, and learned that Hare was unhappy with his performance and current trainer. In August 1995, Hare moved Bobby to Adams’ barn in the Atlanta area and asked Adams to help her build up his stamina and sell him.

At some point, Adams asked Hare a series of questions about Bobby. On appeal, Adams relies upon Hare’s response to these questions to support her suit against Hare. Adams asked about Bobby’s history with regard to shoeing, training, and the bit and bridle used on him. She also asked about Hare’s experience with the horse at different locations where he had been kept, as well as “what kind of guy is he?” She never asked Hare whether Bobby kicked or inquired about his “mental condition.” According to Adams, Hare told her “what she knew about the bit [used] and showing and her experience with taking care of him . . . and her initial show ring experience with him. . . .” Hare also told her that Bobby had “no problems.”

In December 1995, Adams acted as a sales agent when Hare sold Bobby to one of Adams’ clients, Valerie Maneely.

In April 1996, Bobby injured Adams while she was preparing him for the first day of competition at a horse show in Clemson, South Carolina. Adams entered Bobby’s stall to cross-tie, brush, and blanket him before turning him loose and allowing him a little freedom before the start of the show. After fastening one cross-tie and while she was moving to Bobby’s left front side to fasten the other, Bobby “spun and kicked [her] in the right thigh” before she even knew that he had turned around. The kick knocked her against the wall of Bobby’s stall, where she was pinned by Bobby’s rear end. Adams testified that while Bobby pinned her against the wall, he turned around to look at her and repeatedly kicked the stall wall. According to Adams, “the horse knew full well that I was right there,” and was intentionally trying to harm her. Bobby eventually kicked Adams in the knee, causing her to fall to the ground. As Adams crawled out of the stall to safety, Bobby “continued to kick and spin and thrash.”

Adams testified that before her injury, she never saw Bobby kick or attempt to kick a person. She experienced no problems with Bobby’s behavior in the eight months that she cared for him before her injury. She further testified that Bobby never repeated his inappropriate behavior after the incident through March 1998, when Maneely sold Bobby.

Adams asserts Hare intentionally and maliciously misrepresented that Bobby had no problems based on information provided by Hare’s friend, Amy Gessler. After Adams’ injury, Gessler called Hare and told her she was not surprised when she learned Adams had been hurt because she had witnessed Bobby act in ways that could be dangerous to himself or people on more than one occasion. Adams contends these specific behaviors included: rearing, striking out with his front foot, and running into people, on purpose.

In her deposition, Gessler testified that she saw the horse regularly for a three-month period at some point before Hare sold him to Maneely. In her opinion, Bobby was an inconsistent horse that she did not trust in the stall because sometimes

he would just forget that you were there, and he’d run over you. A normal horse will swat at a fly with his tail or stomp his foot. That horse would cowkick at a fly, he hated them so bad. And if you happened to be in the way, you’d get it. He pawed to the point where I had to cut a mat, a rubber mat that you lay down in the dirt, and you’d put shavings on top of it to try to protect the stall bottom so you don’t have to replace the dirt all of the time. I had to cut a mat so that it would come out in front of his stall where he could stand there and continuously paw at this mat. And he would do that for a few days and then he’d quit. And he wouldn’t do it for a while and then he’d start it again.

Gessler explained that Hare was aware of this behavior because she reported it to Hare when she returned from her trips. She also believed that Hare may have been present with her when the horse behaved in this manner. According to Gessler, Bobby was not a malicious horse that intentionally tried to harm her. Instead, “[h]e was like a child and completely unaware at times of my presence or where I was in conjunction with himself.”

The trial court granted summary judgment to Hare because it concluded she was immune from liability under the Equine Activities Act. On appeal, Adams asserts the Act does not apply to the facts of this case, and that even if it did, three exceptions to immunity embodied in the Act apply. See OCGA § 4-12-3 (b) (1) (B), (3), (4).

1. We find no merit in Adams’ claim that the Equine Activities Act does not apply because this case involves misrepresentations in the sale of a horse, not equine activities.

The Act provides that “an equine activity sponsor, an equine professional ... or any other person . . . shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.” (Emphasis supplied.) OCGA § 4-12-3 (a). The General Assembly expressly provided us with their, legislative findings and the intent behind this Act.

The General Assembly recognizes that persons who participate in equine activities . . . may incur injuries as a result of the risks involved in such activities. The General Assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. The General Assembly finds, determines, and declares that this chapter is necessary for the immediate preservation of the. public peace, health, and safety. It is, therefore, the intent of the General Assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities.

OCGA § 4-12-1.

It then broadly defined “equine activities” to include:

(A) Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines . . . ; (B) Equine training or teaching activities, or both; (C) Boarding equines; (D) Riding, inspecting, or evaluating an equine belonging to another . . . ; (E) Rides, trips, hunts, or other equine activities . . . sponsored by an equine activity sponsor; (F) Placing or replacing horseshoes on an equine; and (G) Examining or administering medical treatment to an equine by a veterinarian.

OCGA § 4-12-2 (4).

The legislature defined “inherent risks of equine activities” as “those dangers or conditions which are an integral part of equine activities . . ., including, but not limited to: (A) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them. . . .” (Emphasis supplied.) OCGA § 4-12-2 (7) (A).

A “participant” for purposes of the Act “means any person, whether amateur or professional, who engages in equine activity. . . .” OCGA § 4-12-2 (12)

Finally, the legislature defined “engages in an equine activity” as “riding, training, assisting in providing medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or any person assisting a participant or show management.” (Emphasis supplied.) OCGA § 4-12-2 (2).

The facts of this case fall squarely within the terms of the Equine Activities Act. Hare cannot be held liable for the injury to Adams, a participant, that resulted from the inherent risks of equine activities. See OCGA § 4-12-3 (a).

2. We also reject Adams’ argument that this case falls within the following three exceptions to immunity under the Act, under which a person’s liability is not limited if she:

Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity . . . and to safely manage the particular animal based on the participant’s representations of his or her ability; . . . Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or Intentionally injures the participant.

OCGA § 4-12-3 (b) (1) (B), (3), (4).

(a) Adams asserts the exception in subsection (b) (1) (B) applies because Hare sold Bobby to Maneely without determining “whether her buyer (a novice rider) had the skill to safely manage the horse. . . .” We find no merit in this argument because Adams was the “participant” injured by Bobby, not Maneely.

(b) Adams asserts that Hare’s failure to disclose Bobby’s “dangerous behavioral patterns” constituted wilful and wanton disregard for Adams’ safety within the meaning of OCGA § 4-12-3 (b) (3). We disagree.

In Muller v. English, 221 Ga. App. 672, 676 (2) (c) (472 SE2d 448) (1996), we construed the Equine Activities Act for the first time and outlined the following definitions of “wilful” and “wanton”:

Wilful [misconduct] is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent. Wilful misconduct, or wilful failure or refusal to perform a duty required by statute, is more than negligence or even gross negligence; it involves conduct of a criminal or quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

(Citations and punctuation omitted.) In this case, the evidence, viewed in the light most favorable to Adams, falls short of demonstrating a wilful and wanton disregard for the safety of Adams by Hare. First, there is no evidence that Bobby intentionally kicked a human being before injuring Adams. Second, even if we consider Adams’ testimony that Gessler told her that Bobby would run into people “on purpose,” a fact that was not corroborated by Gessler in her deposition, no evidence shows that Hare knew Bobby would intentionally try to kick people, as he did when he injured Adams.

Decided June 23, 2000

Johnny N. Panos, Robert C. Koski, for appellant.

Hawkins & Parnell, William H. Major III, Alycen G. Adams, for appellee.

(c) For the reasons stated in Division 2 (b), the immunity exception for the intentional injury of a participant does not apply. See OCGA § 4-12-3 (b) (4).

3. Because the evidence shows that this case falls within the scope of the Equine Activities Act and no exceptions to immunity under that Act apply, the trial court did not err by granting summary judgment to Hare.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       Adams testified that she did not recall whether this occurred at the horse show in Tennessee or “after he had come to us or in the process of.”

       Hare worked as a flight attendant, and Gessler would care for the horse while Hare was out of town.

       Adams falls within the definition of “participant” because she was preparing Bobby to be ridden by Maneely in a horse show.

       Adams’ injury resulted from her proximity to Bobby while preparing him for a horse show and Bobby behaving in a way “that may result in injury ... to persons . . . around [him].” OCGA § 4-12-2 (7) (A).

       A nonmoving party can “withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of the existence of a prior inconsistent statement made by a witness upon whose sworn testimony the movant relies.” (Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539-540 (492 SE2d 678) (1997).

       Gessler testified that Hare was aware that Bobby might unintentionally kick a person in the vicinity of a fly or accidentally run into a person.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A1312.
    ABERNATHY v. THE STATE.
    (536 SE2d 289)
   Phipps, Judge.

Following the denial of his motion for new trial, Robert Abernathy appeals his conviction of child molestation of his daughter. He complains that he was denied the right to interview the child before trial. He also contends that the trial court erred in denying his motion for new trial based on ineffective assistance of trial counsel. We find no error and affirm.

The molestation became known to school authorities after the victim informed her boyfriend of the abuse. Although she recanted her accusations against Abernathy after being removed from her home and placed in foster care, evidence that he had molested her was presented to the jury through an audiotape of her interview by authorities. The victim’s brother testified that he too had been sexually abused by Abernathy.

1. Abernathy first contends that the trial court erred in denying his motion for a court order allowing him to interview the victim before she testified at trial.

Before trial, the Department of Family & Children Services (DFACS) was made the child’s legal custodian. A guardian ad litem was also appointed for her. Abernathy filed pretrial motions to compel access to the victim because of her recantation. In the motions, he sought a court order directing DFACS to permit defense counsel to interview the child. DFACS filed a response opposing the motions.

At the beginning of the trial, the court ruled that whether Abernathy should be allowed to interview the child was a question properly addressed to the child’s custodian. We find no error. Rutledge v. State holds that a witness cannot be compelled to submit to a pretrial interview. Pendergrass v. State holds that when the witness is a child, DFACS, acting as the child’s legal custodian, may make this decision.

On appeal, Abernathy argues that the decision of whether to allow an interview of the child should have been made by her guardian ad litem because DFACS, as an arm of the state, was operating under a conflict of interest. This conflict-of-interest argument was, however, rejected in Pendergrass. In Sosebee v. State, another child molestation case, the trial court did perceive that DFACS had a conflict of interest and appointed a guardian ad litem to decide whether the defense should have been given access to the child. But in Sosebee this court did not mandate that procedure; in this case Abernathy sought to compel DFACS to make the decision. Therefore, he will not be heard to complain that the matter was not referred to the guardian ad litem.

2. Abernathy claims that his trial counsel was ineffective in failing to introduce expert testimony regarding improper or suggestive techniques used by prosecution witnesses in interviewing the victim.

At the time of Abernathy’s trial, this court’s decision in Barlow v. State prohibited introduction of such testimony. Although Barlow was subsequently reversed by the Supreme Court of Georgia, we cannot say that defense counsel’s failure to anticipate this change in Georgia case law constituted ineffective assistance.

3. Abernathy also claims that his trial attorney was ineffective in failing to object to improper comments by the prosecuting attorney in closing argument.

Because closing arguments were not transcribed, we must affirm the trial court’s resolution of this issue against Abernathy.

Judgment affirmed.

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

Decided June 23, 2000.

Gerard P. Verzaal, Daniel L. Sproles, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

       245 Ga. 768, 770 (2) (267 SE2d 199) (1980).

       168 Ga. App. 190 (2) (308 SE2d 585) (1983).

       Id. at 191.

       190 Ga. App. 746, 748 (3) (380 SE2d 464) (1989).

       229 Ga. App. 745, 747 (2) (494 SE2d 588) (1997).

        Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998).

        Whiteley v. State, 188 Ga. App. 129, 132 (2) (372 SE2d 296) (1988).


text:
    A00A1578.
    ASTUDILLO v. THE STATE.
    (536 SE2d 271)
   Phipps, Judge.

Martin Astudillo appeals his convictions of the rape, armed robbery, and kidnapping of S. H. and of the burglary of her residence. Relying on Woodard v. State, Astudillo charges the trial court with error in admitting in evidence a prior statement of S. H. which was consistent with her trial testimony. We find no harmful error and affirm.

The State’s evidence showed that at approximately 3:00 a.m. on July 1, 1996, Astudillo broke into S. H.’s apartment and raped her at knifepoint. During a struggle which preceded the rape, S. H.’s hand was cut with the knife. Fearing for her life, she then ceased struggling and begged Astudillo to wear a condom, which he did. After the rape, Astudillo forced S. H. to go through the apartment in search of money. He fled with a small amount of change. S. H. immediately alerted the police to the rape. She was taken to a hospital where she was treated for the knife wound, and a rape examination was performed. Afterward, she was taken to the police station where she gave a City of Atlanta police detective an account of the incident.

At approximately 5:00 a.m. on July 13, Astudillo broke into S. H.’s apartment again. After being confronted by S. H.’s mother, who had come to stay with her after the rape, Astudillo fled. Police apprehended him in the vicinity, and S. H. identified him as her assailant. DNA taken from the condom worn by the rapist matched Astudillo’s DNA.

Astudillo testified that on July 1, S. H. enticed him into her apartment, had consensual sex with him, and then cut herself with the knife after attacking him with it. According to Astudillo, he was simply walking in the vicinity of his residence on July 13 when the police arrested him.

At trial, the Atlanta police detective who took S. H.’s pretrial statement was allowed to read the statement to the jury, over a defense objection of improper bolstering. The trial court overruled the objection.

In Cuzzort v. State, a prior statement of a child molestation victim consistent with her trial testimony was admitted to rebut defense counsel’s questioning concerning the possibility of recent fabrication and improper influence. Noting that the victim’s veracity had been placed in issue and that at trial she was under oath and subject to cross-examination, the majority in Cuzzort held that her prior consistent statement was admissible as substantive evidence. Cases such as Still v. State held that under Cuzzort a prior consistent statement of a witness is admissible as long as the witness is under oath and subject to cross-examination. But in Woodard v. State, the Court later disapproved this line of cases as a misinterpretation of Cuzzort. Woodard reaffirms that a prior consistent statement of a witness is not admissible unless (1) the veracity of the witness’s trial testimony has been placed in issue at trial, (2) the witness is present at trial, and (3) the witness is available for cross-examination. Additionally, Woodard holds that a witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. Otherwise, “the witness’s prior consistent statement is pure hearsay evidence which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury.” Although Woodard was decided after Astudillo’s trial, it is applicable because it did not create a new rule but rather corrected a misinterpretation of a prior decision.

As argued by Astudillo, his objection to admission of S. H.’s prior consistent statement as improper bolstering should have been sustained under Cuzzort as clarified in Woodard, because there was no charge of recent fabrication or of improper influence or motive. The question is whether overruling the objection was harmful error. We hold that it was not. Before the statement was admitted through the testimony of the police-detective, S. H. testified without objection that she had given a pretrial statement to the detective and that it was consistent with her trial testimony. Moreover, given S. H.’s immediate complaint to the police and submission to a rape examination, it was obvious that she was maintaining from the outset that she had been raped. Under the circumstances, it does not appear likely that the reading of the statement contributed to the verdict.

Decided June 23, 2000.

Jennifer N. Foster, Steven E. Phillips, for appellant.

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

Judgment affirmed.

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

       269 Ga. 317 (496 SE2d 896) (1998).

       254 Ga. 745 (334 SE2d 661) (1985).

       260 Ga. 463, 464 (3) (b) (396 SE2d 898) (1990).

       269 Ga. at 319, n. 14.

       Id. at 320 (2).

       (Footnotes omitted.) Id.

       See Fleming v. State, 233 Ga. App. 483, 490 (504 SE2d 542) (1998) (Eldridge, J., concurring specially), rev’d on other grounds, 271 Ga. 587 (523 SE2d 315) (1999); compare King v. State, 270 Ga. 367, 372 (3) (509 SE2d 32) (1998).

       See generally Woodard v. State, supra, 269 Ga. at 324 (4).


author: Pope, Presiding Judge.

text:
    A00A0131.
    KINARD v. WORLDCOM, INC.
    (536 SE2d 536)
   Pope, Presiding Judge.

William Kinard appeals a superior court order awarding Worldcom, Inc. $65,150 in attorney fees and expenses. Kinard argues that the trial court misapplied OCGA § 9-15-14 because the underlying action was substantially justified and he presented a justiciable issue of law. We disagree and affirm.

Kinard v. Worldcom, 232 Ga. App. 278 (500 SE2d 649) (1998) provides the background to this dispute:

On November 6, 1991, Innova Information Systems (“Innova”) granted a stock subscription warrant to Worldcom, Inc., then called ATC, a stockholder in Innova. The warrant gave ATC the right to acquire a certain number of shares of the common stock of Innova for a given period of time on terms specified in the agreement. At that time, William Kinard was CEO of Innova, a company he co-founded. The warrant agreement granted Kinard and his co-founder each “a 25% undivided interest in any net gain derived by ATC from the sale or other disposition by ATC of the Warrant and/or the shares of common stock purchased upon exercise of the Warrant.” In the fall of 1993, Kinard terminated his employment with Innova. On January 31, 1994, Kinard signed a document entitled “Severance and Consulting Agreement,” which was retroactive, taking effect September 1, 1993. The severance and consulting agreement contains a mutual release provision as follows: “the Company and Kinard . . . hereby absolutely and forever releases, relieves and discharges the other and, as applicable, each of the other’s past, present and future partners, owners, stockholders, predecessors, successors, assigns, heirs, agents, directors, officers, employees, representatives, attorneys, subsidiaries and all other persons, firms and corporations acting by, through or in concert with any of them . . . from any and all . . . contracts, agreements, promises, liabilities ... of every kind or character whatsoever, whether known or unknown, suspected or unsuspected . . . disclosed or undisclosed” which Kinard may have or claim to have. The release further states that Kinard releases all claims arising out of or connected with any agreements, whether written or oral, between Kinard and each of Innova’s affiliates, defined to include stockholders. The severance and consulting agreement also contains a merger clause and a “no reliance on representations” clause. Although Worldcom is not identified by its proper name in the release, there is no dispute that Worldcom was a stockholder in Innova at the time the release was executed. Subsequently, Kinard sued Worldcom, seeking his share of the net gain. Worldcom moved for summary judgment, contending Ednard’s claim is barred by the release Kinard signed when he left his employment with Innova. Kinard argues that the parties never intended to release his claim against Worldcom for 25 percent of the warrant proceeds. Kinard and a witness to the severance negotiations contend that the possibility of releasing this claim was specifically discussed and rejected during the negotiations.

(Emphasis supplied.)

This court affirmed the grant of summary judgment to Worldcom because we found that parol evidence was inadmissible to show that the parties’ intent differed from the terms of the unambiguous release. Worldcom, 232 Ga. App. at 279. Worldcom then asked the trial court for an award of attorney fees under OCGA § 9-15-14 (a) and (b). The trial court found that the intent of the parties to the release, upon which Kinard’s only viable argument rested, “was not a justiciable issue under the well-established legal principles governing this action,” and granted Worldcom’s motion for attorney fees and expenses.

OCGA § 9-15-14 (a) provides that attorney fees shall be awarded:

to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.

OCGA § 9-15-14 (b) allows the award of attorney fees if the court finds that an attorney or party has brought an action that “lacked substantial justification.” “The phrase, ‘lacked substantial justification’ means substantially frivolous, substantially groundless or substantially vexatious.” Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (2) (512 SE2d 347) (1999).

The standard of review for motions under OCGA § 9-15-14 (a) is the “any evidence” rule. Moore v. Harris, 201 Ga. App. 248, 249 (1) (410 SE2d 804) (1991). “Notwithstanding the any evidence standard of review, when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.” (Punctuation omitted.) Hall v. Hall, 241 Ga. App. 690, 691 (1) (527 SE2d 288) (1999). The standard of review for motions under OCGA § 9-15-14 (b) is abuse of discretion. Cagle v. Davis, 236 Ga. App. 657, 659 (513 SE2d 16) (1999). However, “[a]s a practical matter, it is difficult to distinguish between these two standards for awarding attorney’s fees.” Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 (2) (525 SE2d 687) (2000).

In the underlying action, Kinard could only question the application of the release to Worldcom’s stock subscription warrant by introducing evidence that the parties to the release, Kinard and his employer, had not intended that the release apply to the warrant. Kinard maintains that such an inquiry was permissible under Posey v. Med. Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987). But the portion of Posey on which Kinard relies was specifically modified by the Supreme Court in Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), almost two years before he entered into the severance and consulting agreement, and therefore, he had no basis to rely on Posey.

In Posey, the Supreme Court eliminated the longstanding rule that the release of one joint tortfeasor releases them all. As the Court stated: “A valid release of one tortfeasor from liability for a harm, given by [an] injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them. [Cit.]” Posey, 257 Ga. at 59. The effect of the holding was to limit the effect of releases to those the parties intended to release.

The Court went on to hold that parol evidence was allowed to show exactly whom the parties intended to release. Again, in the words of the Supreme Court: “We further add that the intent of the parties to the release regarding its effect may be proven by external evidence as against a third party. One not a party to the release may not object to the external evidence under the parol evidence rule. [Cit.]” Posey, 257 Ga. at 59. The effect of this language allowed introduction of parol evidence against both named and unnamed nonparties to show whether they were covered by the release. One could argue that the ruling relaxed the parol evidence rule by allowing parol evidence even if a release was not ambiguous. Kinard relies on this language as the basis for his argument that parol evidence is always admissible against a nonparty to the release.

But in Lackey, the Supreme Court modified this secondary holding by further limiting who is released. The Court held that only non-parties “named” in the agreement are released and that, thenceforth, parties not named in the release would not be discharged: “We take this opportunity to modify Posey, so as to provide a clearer rule: Only those parties named in the release will be discharged by that instrument.” (Emphasis in original.) Lackey, 262 Ga. at 186. The Court further clarified: “By ‘named,’ we mean being identified either by proper name or such other description as leaves no question of the identity of the party released,” i.e., the releasee is unambiguously named. Id. at 186, n. 1.

The Court then concluded by pointing out that parol evidence would no longer be necessary in this setting. “This should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” Lackey, 262 Ga. at 186. Thus Lackey made plain that the parol evidence rule was intact — such evidence is not allowed where the releasee is unambiguously named.

In this case, as we held in Worldcom, the release unambiguously released stockholders, and Worldcom was a stockholder at the time of the release, i.e., it was a named releasee. For these reasons, Kinard had no basis in law to argue that parol evidence could be admitted to show that he did not intend to release Worldcom.

Second, Kinard’s actual argument appears to be more limited, thereby making his Posey argument even more irrelevant. Kinard specifically argued that he did not intend to release his rights under the warrant agreement, not that he did not intend to release Worldcom. This argument goes to the scope of the release rather than the identity of who was released. Posey considered issues pertaining to what parties are released. The parol evidence rule still governs whether evidence is admissible to explain the scope of a release. Here, the agreement unambiguously released all claims of every kind that Kinard had. He had no basis to argue that parol evidence was admissible to show otherwise. Thus his reliance on Posey was misplaced entirely.

Decided June 26, 2000.

Rogers & Hardin, John J. Almond, for appellant.

Paul, Hastings, Janofsky & Walker, J. Allen Maines, Eric C. Lang, for appellee.

Accordingly, we find that there was evidence to support the trial court’s ruling that Kinard failed to present a justiciable issue of law as required by OCGA § 9-15-14 (a) and that the trial court did not abuse its discretion in awarding fees under OCGA § 9-15-14 (b).

Judgment affirmed.

Smith, P. J., and Miller, J., concur.

       The trial court also found that the release provision itself, other language of the release extending the release to unknown and unsuspected claims, Kinard’s reliance on legal advice regarding the release, and the existence of a merger clause and a no reliance on representations clause demonstrate unquestionably that Kinard’s claim was released.


text:
    A00A0284.
    FULLER v. THE STATE.
    (536 SE2d 296)
   Pope, Presiding Judge.

James Stanley Fuller entered a plea of nolo contendere to two counts of theft by conversion. Pursuant to the plea agreement, the court held a hearing to determine whether Fuller’s sentence would be probated and to determine if Fuller owed restitution. At the start of the sentencing and restitution hearing, the State’s attorney questioned Fuller regarding the terms and voluntariness of his plea. Fuller showed that he understood the consequences of his plea and that he understood that he was waiving his rights with respect to the plea. The court then questioned Fuller regarding the plea and his waiver.

The State called several witnesses regarding Fuller’s sentence. Then the State called Fuller as a witness on cross-examination, and defense counsel objected. Nevertheless, the court overruled the objection and allowed the State to proceed.

After the hearing, the court entered an order sentencing Fuller to two consecutive ten-year sentences to be served on probation and ordering him to perform eighty hours of community service. The court also ordered Fuller to pay restitution to the victim, his former employer Macon Beauty Supply, the sum of $300,000. The court later entered a supplementary order in which it specified that Fuller would pay the restitution over the 20-year sentence in the amount of $15,000 yearly. The court’s order outlined the factors under OCGA § 17-14-10 which it considered in making the restitution order; included in these reasons was the fact that the total amount of damages to Macon Beauty Supply was about $900,000.

Here, in eight enumerations of error, Fuller claims that the court erred in various ways in ordering restitution. He does not challenge the other parts of the sentence. Because we conclude that the court erred in overruling Fuller’s objection to testifying, we reverse the sentence and remand for proceedings consistent with this opinion.

1. Fuller claims that the court violated his Fifth Amendment right to be protected from self-incrimination in allowing the State to call him for cross-examination at the sentencing hearing over the objection of defense counsel.

The U. S. Supreme Court recently addressed the question of whether a defendant may invoke the Fifth Amendment privilege against self-incrimination in the context of a sentencing hearing after he has entered a guilty plea in Mitchell v. United States, 526 U. S. 314 (119 SC 1307, 143 LE2d 424) (1999). That case arose after defendant Mitchell pled guilty to federal charges of conspiring to distribute cocaine, but retained the right to contest the drug quantity. At the sentencing hearing in Mitchell the district court ruled that as a consequence of her guilty plea, Mitchell relinquished her right to remain silent with respect to the details of her crimes. Despite this ruling, Mitchell refused to testify and the district court used her failure to testify as evidence against her. The Third Circuit affirmed the district court’s sentence, finding that “[b]y voluntarily and knowingly pleading guilty to the offense Mitchell waived her Fifth Amendment privilege.” Mitchell v. United States, 122 F3d 185, 189 (3rd Cir. 1997).

In reversing the Third Circuit’s holding, the Supreme Court found that if Mitchell had pleaded not guilty and taken the stand at trial, she could have been cross-examined on matters to which she had testified. But, the court explained, the colloquy surrounding the entry of a guilty plea differs:

[t]he concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled self-incrimination upon entry of a guilty plea, including the right to remain silent at sentencing.

Mitchell, 526 U. S. at 322.

Thus, the Supreme Court determined that the defendant who pleads guilty does not waive the privilege against self-incrimination at sentencing. While the Supreme Court recognized that by pleading guilty the defendant waives any rights he would have had at trial, “[a] waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial.” Id. at 324. Accordingly, the court stated: “[treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants.” Id. Citing Estelle v. Smith, 451 U. S. 454, 462 (68 LE2d 359, 101 SC 1866) (1981), the court concluded that incrimination was not complete until a sentence was fixed and the judgment of conviction became final. See also United States v. KuKu, 129 F3d 1435 (11th Cir. 1997) (holding that a “defendant retains the Fifth Amendment privilege against self-incrimination prior to sentencing, despite having entered a guilty plea, because of the possible impact that compelled testimony may have on the defendant’s as yet undetermined sentence”).

No Georgia case has yet applied Mitchell. Nevertheless, the principle that a defendant who pleads guilty retains his right to avoid self-incrimination at the sentencing hearing is implicit in previous Georgia cases. See, e.g., Cheeks v. State, 218 Ga. App. 212 (460 SE2d 860) (1995) (defendant’s silence during restitution hearing deemed waiver of opportunity to provide evidence of her ability to pay restitution); Christenson v. State, 261 Ga. 80 (402 SE2d 41) (1991) (recognizing that under Estelle v. Smith, 451 U. S. at 462-463, a criminal defendant may not be compelled to testify at the sentencing phase of a death penalty trial). See also Victrum v. State, 203 Ga. App. 377 (1) (416 SE2d 740) (1992) (trial court properly allowed witness who pled guilty to crime to refuse to answer questions based on right to avoid self-incrimination); Barber v. State, 192 Ga. App. 323 (385 SE2d 15) (1989).

Accordingly, the court in this case erred by forcing Fuller to testify in the sentencing hearing after he entered his plea of nolo contendere. We note that for purposes of the application of Mitchell, the fact that Fuller entered a nolo contendere plea rather than a guilty one does not change our analysis. See generally Fortson v. Hopper, 242 Ga. 81, 83 (247 SE2d 875) (1978) (“When the judge accepts the plea of nolo contendere, he is empowered to impose whatever sentence is provided by law for the crime, just as if the defendant had been convicted by a jury or entered a plea of guilty.”) (punctuation omitted). See also USCR 33.1.

Decided June 26, 2000.

George L. Williams, Jr., for appellant.

Charles H. Weston, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

We reject the State’s argument that because the sentencing here involved restitution, which it argues is akin to civil damages, the court was permitted to call Fuller for cross-examination. This argument is flawed. First, the court did not pronounce any part of the sentence — the probation, community service, or restitution — until the hearing was complete. And, though a restitution hearing is analogous in some ways to a civil proceeding, it is fundamental that restitution is punishment when ordered as part of a criminal sentence. See Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992); Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987). See generally OCGA § 17-14-1 et seq. In fact, as early as 1870, our Supreme Court determined that the Fifth Amendment right to avoid self-incrimination applied to cases in which the defendant might be subject to a fine, forfeiture, or penalty. Bryan v. State, 40 Ga. 688 (1870).

Accordingly, we must reverse Fuller’s sentence and remand the case to the trial court with the direction that another sentencing and restitution hearing be held at which the appropriate factors are to be considered and the written findings required under OCGA § 17-14-8 are to be made. Murphy v. State, 182 Ga. App. 791, 792-793 (5) (357 SE2d 147) (1987).

2. Because of our conclusion in Division 1, we do not reach Fuller’s remaining arguments.

Judgment of conviction affirmed. Sentence reversed and case remanded with direction.

Smith, P. J., and Miller, J., concur.

       The Supreme Court also recognized the duty of the district court of ensuring a factual basis for a plea. Further, the court recognized “the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis.” Id. at 324. With respect to Georgia’s provisions regarding pleas, see Uniform Superior Court Rules 33.7— 33.12.

       The fact that Fuller took the stand later in his own defense does not mean that Fuller waived his right to avoid self-incrimination. At this point, his right to avoid testifying had been violated. “Although a criminal defendant cannot be compelled to testify against himself, OCGA § 24-9-20 (a), once he elects to testify and takes the stand, he can be examined and cross-examined as any other witness.” Scott v. State, 270 Ga. 93, 94 (2) (507 SE2d 728) (1998). Here, over his objection, Fuller was compelled to testify by cross-examination initially; thus, his decision to rehabilitate himself later cannot operate as a waiver. Compare Everett v. State, 238 Ga. 80 (230 SE2d 882) (1976), in which the defendant and his counsel agreed that defendant would be called to testify on cross-examination first.


text:
    A00A0380.
    THE STATE v. STINSON.
    (536 SE2d 293)
   Barnes, Judge.

The State appeals from the trial court’s grant of James Terry Stinson’s motion to suppress two videotaped interviews. Because we find the trial court erred in applying Garrity v. New Jersey, 385 U. S. 493 (87 SC 616, 17 LE2d 562) (1967) and Kastigar v. United States, 406 U. S. 441 (92 SC 1653, 32 LE2d 212) (1972) to the facts of this case, we reverse.

The record shows that the interviews at issue resulted from a citizen’s complaint that Stinson, a Gwinnett County police officer, sexually assaulted her and forced her to perform oral sex while on duty. Gwinnett County Police Officers Toney and Wilson testified in the motion to suppress hearing. Officer Toney interviewed Stinson on February 17, 1998, and Officer Wilson interviewed him three days later, on February 20, 1998. Stinson did not testify at the motion to suppress hearing.

Officer Toney testified that at the time of the February 17, 1998 interview, he was working in the Criminal Investigations Division, which was not a part of internal affairs. As he did not know Stinson, he arranged an interview through Stinson’s supervisor to investigate the citizen’s complaint. Specifically, Stinson’s supervisor asked him to report to the southside precinct on his day off to participate in a robbery stakeout with Officer Toney. When Stinson arrived, Toney, along with another officer, informed Stinson that there was no robbery stakeout and that he had been asked to report because of a complaint about sexual indiscretion during a call three days earlier. They asked Stinson if he would accompany them to headquarters to talk about the complaint, and he agreed. Before driving to headquarters, they also asked Stinson, who was in uniform, to place his weapon in the trunk of their car, and he agreed to do so. Officer Toney testified that he did not order Stinson to give him his weapon.

When they arrived at headquarters approximately 30 minutes later, they went into an interview room and started discussing the details of the call and the citizen’s possible motivation for making a complaint against Stinson. This interview was videotaped without Stinson’s knowledge or consent. Stinson was never told before or during the interview that he was under arrest or in custody. He was not handcuffed, and Miranda warnings were not given to him. According to Officer Toney, Stinson was not under arrest and would have been free to go if he had made such a request, but he did not. Officer Toney did not inform Stinson before or during the interview that he was conducting a criminal investigation.

Officer Wilson testified that he and another officer interviewed Stinson on February 20, 1998. The interview resulted from a request by Stinson to talk with them about the citizen’s complaint. The interview was again videotaped without Stinson’s knowledge. At the beginning of the videotaped interview, Officer Wilson told Stinson he was working on a criminal investigation and gave him the Miranda warnings.

During cross-examination, Officer Wilson acknowledged that before the February 20,1998 interview with Stinson, he had watched the first videotaped interview and talked with Officer Toney about it. He also acknowledged that he used this information to formulate his questions to Stinson.

Both police officers testified that all officers are given a copy of the Gwinnett County Police Department’s internal orders and procedures manual and are expected to know its contents.

The trial court granted Stinson’s motion to suppress both videotaped statements based upon these officers’ testimony, its review of the videotaped interviews, and the following internal general orders of the Gwinnett County Police Department:

Gwinnett County Police Department’s own internal General Order No. 111.01 and 111.02 provide that complaints of misconduct involving allegations of criminal violations will be investigated by the Professional Standards Unit of the Police Department. Gwinnett Police Department General Order No. 111.05 provides that, “in serious cases that involve the public interest or which may bring the agency into disrepute, the accused employee may be questioned during non-working hours.” General Order No. 111.05 provides that employees are expected to answer questions or submit materials and statements to the investigator when so directed. Failure to answer questions may result in disciplinary action.
Gwinnett County Police General Order No. 111.05 . . . imposes a duty on internal affairs investigators to do the following: “Prior to being interviewed, the employee should be advised of who is investigating the complaint. The employee will be advised as to whether the investigation is administrative in nature.”

The trial court concluded that the first videotaped statement should be suppressed because it was “likely and reasonable to conclude that the Defendant believed that this was an administrative interview that he must cooperate in. . . .” As a result, the trial court reasoned, the statement was obtained through the type of coercion prohibited by the United States Supreme Court in Garrity, supra. The trial court then suppressed the second statement because it was tainted by the first compelled statement. See Kastigar, supra.

On appeal, we review a trial court’s application of the law to undisputed facts when ruling on a motion to suppress de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). In this case, the trial court’s decision to grant the motion to suppress hinges upon its interpretation of Garrity, supra.

In Garrity, New Jersey police officers were investigated for allegedly fixing traffic tickets. The officers were informed that they could exercise their Fifth Amendment privilege against self-incrimination if they wished, but doing so would cost them their jobs under a New Jersey statute which required all public employees to cooperate with investigations or forfeit their positions. The officers cooperated with the investigation but were prosecuted. They moved to suppress their statements as involuntary and coerced. The Supreme Court held that “statements obtained under threat of removal from office” cannot be used in subsequent criminal proceedings and reversed the New Jersey Supreme Court’s decision allowing the officers’ statements into evidence. Garrity, supra, 385 U. S. at 499.

Since the Supreme Court’s decision in Garrity, federal and state courts asked to apply its holding to the facts before them have developed two distinct lines of authority, one requiring an explicit threat of termination and mandatory termination for a failure to cooperate and the other requiring an objectively reasonable, subjective belief on the part of the officer that he must answer questions or lose his job.

The first line of authority evolved from United States v. Indorato, 628 F2d 711 (1st Cir. 1980). In Indorato, the First Circuit noted that

[i]n all of the cases flowing from Garrity, there are two common features: (1) the person being investigated is explicitly told that failure to waive his constitutional right against self-incrimination will result in his discharge from public employment (or a similarly severe sanction imposed in the case of private citizens); and (2) there is a statute or municipal ordinance mandating such procedure.

Decided June 26, 2000

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

(Emphasis supplied.) Id. at 716. It then rejected a police officer’s claim that Garrity should be applied to exclude a statement coerced by an implied threat, specifically police department rules requiring an officer to obey a lawful order of his superiors or face disciplinary action, including dismissal. Id. The First Circuit concluded that Garrity did not apply because the police officer was never expressly told that he would be dismissed if he failed to answer questions and no statute mandated dismissal if he refused to answer questions. Id.

The second line of authority stems from United States v. Friedrick, 842 F2d 382 (D.C. Cir. 1988). In Friedrick, the D. C. Circuit held that statements should be excluded under Garrity if (1) the defendant subjectively believes that he must answer questions or lose his job, and (2) this subjective belief is objectively reasonable. Friedrick, supra, 842 F2d at 395. Courts applying the Friedrick analysis emphasize that a subjective belief cannot be considered objectively reasonable unless it is based upon actions taken by the state. See, e.g., United States v. Camacho, 739 FSupp. 1504, 1515 (S.D. Fla. 1990). In other words, the state must play a role “in creating the impression that the refusal to give a statement will be met with termination of employment.” Colorado v. Sapp, 934 P2d 1367, 1373 (Col. 1997).

In this case, the trial court erred by applying Garrity to exclude the first videotaped statement whether we adopt the Indorato analysis or the Friedrick analysis. No evidence establishes the Indorato requirement of an overt threat to terminate Stinson’s employment or the Friedrick requirement that Stinson subjectively believed he would be terminated if he failed to answer questions. See State v. Lacaillade, 266 N.J. Super. 522 (630 A2d 328, 332) (1993) (subjective belief requirement of Friedrick analysis not met in the absence of testimony by the defendant). Thus, we need not choose which analysis should have been applied by the trial court.

Because the trial court erred by excluding the first statement under Garrity, it also erred when it excluded the second statement based upon a Kastigar taint analysis.

Judgment reversed.

Blackburn, P. J, and Eldridge, J., concur.

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellee.

       Stinson was indicted for one count of aggravated sodomy, five counts of sexual battery, and one count of violation of an oath by a public officer.

       See, e.g., People v. Coutu, 235 Mich. App. 695 (599 NW2d 556, 561) (1999); United States v. Johnson, 1997 U. S. App. LEXIS 36363 (2nd Cir. 1997); People v. Bynum, 159 Ill.App.3d 713 (512 NE2d 826, 827) (1987); Commonwealth v. Harvey, 397 Mass. 351 (491 NE2d 607) (1986).

         See, e.g., People v. Sapp, 934 P2d 1367, 1373 (Col. 1997); State v. Lacaillade, 266 N.J. Super. 522 (630 A2d 328, 332) (1993); State v. Connor, 124 Idaho 547 (861 P2d 1212, 1214) (1993); United States v. Camacho, 739 FSupp. 1504, 1514 (S.D. Fla. 1990).


text:
    A00A0599.
    In the Interest of L. S., a child.
    (536 SE2d 533)
   Pope, Presiding Judge.

J. T. appeals the juvenile court order terminating his parental rights. He claims that the court erred in finding that he had abandoned his child, that he had failed to properly file a legitimation petition, and that he had abandoned his opportunity interest to father his child. We find no merit in these enumerations of error and affirm.

J. T. is the biological father of L. S., who was born on September 10, 1992. L. S. lived with her mother until October 1995. After leaving her mother’s custody, L. S. lived with her maternal grandmother and aunt for several months. On December 12, 1995, the Athens-Clarke County Department of Family & Children Services (“DFCS”) gained temporary custody of L. S. L. S. and her half-brother were placed in their current foster home in July 1996; the foster parents wish to adopt both children.

After determining that it was in L. S.’s best interest, DFCS petitioned to terminate the parental rights of J. T. and L. S.’s mother. The mother voluntarily surrendered her parental rights on January 7, 1998. The court heard J. T.’s case on April 13, 1998. On April 5, 1999, the court issued an order terminating his parental rights. The court found that J. T. had abandoned L. S. as contemplated by OCGA § 15-11-81 (b) (3).

OCGA § 15-11-81 establishes a two-step process for considering parental rights cases. The court is first required to determine whether there is clear and convincing evidence of parental misconduct or inability. If there is parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. In the Interest of C. D. A., 238 Ga. App. 400, 401 (519 SE2d 31) (1999). Abandonment of a child is a ground for termination of parental rights. See OCGA § 15-11-81 (b) (3).

“In order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, so far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.” [Cits.]

In the Interest of J. C. P., 167 Ga. App. 572, 573 (307 SE2d 1) (1983).

The standard of appellate review is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. [Cit.]” Sims v. Sims, 171 Ga. App. 99, 100 (318 SE2d 805) (1984). “This court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of S. J. C., 234 Ga. App. 491, 492 (507 SE2d 226) (1998).

1. J. T. and L. S.’s mother separated three months after L. S. was born, and L. S. remained with her mother. When L. S.’s mother gave birth to her half-brother in 1995, the baby had cocaine in its system. J. T. knew of this, and he also knew that the mother had lost her apartment, but he took no formal steps to claim his daughter. Because of the mother’s drug use, DFCS moved for temporary custody of L. S. J. T. showed only marginal interest in the child after she moved in with her grandmother and then her aunt. The grandmother testified that J. T. visited L. S. only once or twice. A DFCS caseworker testified that the last documented visit of L. S. by J. T. was at a relative’s home in January or February 1996. DFCS had no evidence of visits or contact through phone call or letter from early 1996 through the date of the hearing, a period of over two years. There is no evidence that J. T. provided any monetary support to L. S. once she entered foster care.

A citizens review panel held four panel reviews with respect to L. S. J. T. did not attend any of the reviews or attempt to comply with the panel’s goals for achieving custody of his daughter, including the payment of $5 a month in child support. Although the panel did not formally notify J. T. of the reviews, the case plan was explained to him in an October 23, 1995 conversation with a DFCS employee.

At the time of the April 13, 1998 termination hearing J. T. was incarcerated and serving a five-year sentence for selling cocaine. He had not seen his daughter in over two years. J. T. testified that while incarcerated he did not write L. S. In support of J. T.’s position, the evidence also shows that the mother acknowledged J. T.’s contribution to her support during pregnancy and hospitalization for the birth of the child (although she also indicated that J. T. had not supported L. S.). J. T. spent time with L. S. before his incarceration, including the Christmas immediately before his arrest. He claimed that he did not contact DFCS about L. S. while he was in prison because he was not aware that DFCS had custody of his daughter. L. S. called J. T. “daddy.”

The evidence is conflicting as to whether J. T. intended to sever parental relations with L. S. Our analysis here is aided by In the Interest of B. D. C., 256 Ga. 511 (350 SE2d 444) (1986). There, evidence presented to support termination of parental rights showed that the father failed to make child support payments for three years. He hardly ever saw his child; he did not know the child’s birthday. The grandparents testified that, for years, the father made no inquiries about the child. On the other hand, the father testified that he was blocked from seeing the child by the grandparents and that he had made some cash payments to the mother for child support. Our Supreme Court, noting that “the factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test,” held that a rational factfinder could have found that the father abandoned his child. Id. at 513.

Although we do not weigh the evidence, we must ask if there is evidence to support the trial court’s ruling. The record here shows that J. T. failed to contact his daughter for a two-year period; that after some initial assistance to the mother, he failed to contribute to L. S.’s support; that he, made no formal attempt to gain custody of his daughter, even after knowing her mother had given birth while under the influence of cocaine and that she was homeless; and that he failed to legitimate his status as L. S.’s father. We hold that the record reflects sufficient evidence for a rational trier of fact to find by clear and convincing evidence that J. T. abandoned L. S. for purposes of OCGA § 15-11-81 (b) (3). Given that the current foster parents wish to adopt L. S. and her brother, it was in the best interest of L. S. that J. T.’s parental rights be terminated, and the trial court acted properly in terminating those rights.

2. With respect to the trial court’s findings that J. T. lost his parental rights because he did not legitimate his status as father of L. S. and had forgone his opportunity interest to fáther the child, we find that J. T.’s failure to legitimate L. S. was probative to the determination of whether J. T. had abandoned his daughter. However, the record indicates that J. T. was not notified of the termination hearing by registered or certified mail, return receipt requested, as required by then applicable OCGA § 15-11-83 (e), and so we cannot uphold a termination of J. T.’s parental rights because he failed to file a legitimation petition. See OCGA § 15-11-83 (h). But failure to notify J. T. in compliance with OCGA § 15-11-83 (e) did not affect the jurisdiction of the court to consider a termination proceeding brought under OCGA § 15-11-81. See In the Interest of J. K., 239 Ga. App. 142, 146 (2) (520 SE2d 19) (1999). Here, the court made a ruling under OCGA § 15-11-81 after J. T. was afforded a hearing at which he was present and represented by counsel. The court’s termination of J. T.’s parental rights remains valid.

Judgment affirmed.

Smith, P. J, and Miller, J., concur.

Decided June 26, 2000.

Kristopher Shepherd, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Garcia & Powell, Tony D. Coy, for appellee.


text:
    A00A0756.
    GULLEY v. THE STATE.
    (536 SE2d 530)
   Pope, Presiding Judge.

Curtis Gulley appeals following a bench trial in which he was convicted of rape, kidnapping with bodily injury, aggravated assault and burglary. We affirm.

In August 1998, the victim hired the moving company where Gulley worked to help her move to her new home. Four men, including Gulley, assisted in the move. The victim was making the move as a result of a divorce, and the court had set specific times for each party to collect his or her belongings. The victim urged the movers to finish removing her belongings before her ex-husband arrived to inventory his property. Due to a misunderstanding regarding travel charges, the victim decided not to tip the movers. Gulley later asked the victim’s friend, who was helping with the move, about his tip.

Approximately one week later, the victim arrived home from work to discover a tall, dark-skinned man in her kitchen, with a plastic bag over his head, holding a kitchen knife. As he held the knife to the victim’s neck, the man pushed her into the bedroom. He kept telling her that her husband had sent him. The victim testified that the only people who knew where she had moved as a result of her divorce were her mother, her friend, her broker and the four movers. She had not even told her ex-husband her new address.

After the man tore off the victim’s shorts and black pantyhose, he raped her. During the rape, the victim was face down on the bed, and the man poked her with the knife a couple of times. The man raped her again before leaving the bedroom. When the victim determined that he was no longer close to the bedroom, she threw herself out of a window and ran to a neighbor for help. As she was fleeing, the victim saw the man coming out of her front door and going toward the Brookhaven Metropolitan Atlanta Rapid Transit Authority station. Her neighbor called 911, and the police arrived. The victim was later taken to a hospital for an examination and the gathering of samples for DNA testing.

The victim determined that her wallet and checkbook had been taken from her purse at the time of the rape. Her wallet held her credit cards, an ATM card and business cards. Previously, a few days after the move, the victim had noticed that her gold panda-shaped ring was missing. After the rape she noticed that she was missing an onyx ring as well.

Forty-two minutes after the neighbor called 911, someone attempted to use the victim’s ATM card at a Peachtree Center location. A police detective later made the ride from the Brookhaven MARTA station to the Peachtree Center station and timed it at approximately 33 minutes. Photographs from the ATM camera showed a man attempting to use the victim’s card. Both the owner of the moving company and another employee who had assisted in the victim’s move identified Gulley as the man in the photos.

Police searched Gulley’s home pursuant to a search warrant and discovered several rings, including the victim’s gold panda ring. Near that ring the police discovered a MARTA rail-to-bus transfer card with a Peachtree Center stamp on it. They also discovered a pair of black pantyhose. Gulley was subsequently arrested, and a sample of his blood was taken for DNA analysis. At trial, Stephanie Fowler, an expert for the state, testified that Gulley’s DNA matched that found in samples of the sperm taken from the victim’s rape kit.

1. Gulley first contends that the trial court erred in qualifying Fowler as an expert on DNA analysis. He asserts that Fowler did not have the proper educational qualifications because she lacked a degree in either molecular biology or molecular population genetics.

The decision to qualify a witness as an expert rests in the trial court’s discretion:

“This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert. To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may he derived from experience as well as study, and formal education in the subject is not a requisite for expert status.” [Cit.]

(Emphasis supplied.) Vasquez v. State, 241 Ga. App. 512, 513 (2) (527 SE2d 235) (1999).

Here, Fowler testified that (1) she received a bachelor of science degree from Wofford College and a masters of science and forensic science from the University of Alabama in Birmingham; (2) she had been employed in the field of forensic sciences and DNA testing for over five years — three years with the Alabama Department of Forensic Sciences and the remainder at the Georgia Bureau of Investigation crime lab; (3) after starting her job in Alabama, she underwent several months of training in various DNA testing procedures; (4) when she went to work for the GBI, she again underwent several months of training in that department’s laboratory; (5) all of her professional experience has been in the field of DNA analysis; (6) she is a member of the Southern Association of Forensic Sciences; and (7) she had qualified as an expert in DNA analysis in three prior cases.

We find this evidence was sufficient to allow the trial court to qualify Fowler as an expert witness in DNA analysis. See Wingfield v. State, 229 Ga. App. 75, 83-84 (6) (493 SE2d 235) (1997), overruled in part on other grounds, Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

2. Gulley next argues that the trial court erred in admitting the DNA evidence because it was not demonstrated that Fowler performed the tests in an acceptable manner. At trial, however, Gulley did not object to the admission of the DNA evidence on that ground. He objected only to Fowler’s explaining a statement she made in her report that “with a reasonable scientific certainty it can be concluded that the DNA obtained from the vaginal cervical swab which matches Curtis Gulley originated from him or his identical twin.” The grounds for Guffey's objection at trial were that such testimony improperly went to the ultimate issue in the case, that it was bolstering and that it is not generally accepted in the scientific community that DNA evidence can pinpoint the individual who committed the crime.

“It is well-established that expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves.” (Citations and punctuation omitted.) Godbey v. State, 241 Ga. App. 529, 532 (2) (526 SE2d 415) (1999). Clearly, the complex issue of DNA matching is one that is appropriate for an expert’s conclusion. See generally Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990); Beecher v. State, 240 Ga. App. 457, 458 (2) (523 SE2d 54) (1999).

The testimony at issue merely explained the basis for Fowler’s conclusions. Fowler testified that the tests she performed generated a numerical frequency of how often Gulley’s DNA . profile would be expected to be found in the general population. The computerized test results showed that Gulley’s profile would be expected to occur once out of 700 quadrillion profiles in the Caucasian population and once out of 200 quadrillion profiles in the African-American population. As she explained, she uses the term “with a reasonable scientific certainty” only when the frequency shows a rare occurrence, which she defined as an occurrence of once in above ten billion. Thus, this testimony was necessary to explain the results of Fowler’s testing and was neither improper nor bolstering. The trial court, therefore, correctly overruled Gulley’s objection. And because Gulley did not object to the admission of the DNA testimony on the ground that the procedures were not properly performed, that issue has not been preserved for appeal: “ ‘[A]n objection on a specific ground or grounds at trial waives any objection to that evidence on other grounds on appeal. Accordingly, all other grounds for objection, other than the specific grounds posed at trial, are not preserved for appeal.’ [Cit.]” Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (1998). See also Smith v. State, 265 Ga. 570, 571-572 (3) (459 SE2d 420) (1995).

Decided June 26, 2000.

Paola F. Toreselli, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Noah H. Pines, Assistant District Attorneys, for appellee. '

3. Gulley also asserts that the evidence at trial was insufficient to support the verdict. Based upon our review of the record, however, we find the evidence was sufficient to support Gulley’s conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith, P. J., and Miller, J., concur.


author: Miller, Judge.

text:
    A00A0591.
    In re ESTATE OF FARQUHARSON.
    (535 SE2d 774)
   Miller, Judge.

In her will, Nell Gardiner Glenn Farquharson named her son-in-law William B. Hardegree and First Union National Bank of Columbus as co-executors of her estate. A codicil made James A. Farquharson, the testatrix’s husband, an income beneficiary of a certain trust, which the parties refer to as the A. G. Edwards account. After the testatrix’s death, the bank declined to serve as co-executor, and Hardegree offered the will with codicil for probate in solemn form. Farquharson filed a caveat “objecting to the appointment of William B. Hardegree as executor” on the ground that Hardegree was unfit because he was prejudiced against Farquharson. Farquharson supplemented the caveat to allege numerous conflicts of interest, in that Hardegree approved payments to his own law firm and commissions to his wife, improperly transferred assets, and improperly persuaded the bank to refuse to serve as co-executor. Farquharson prayed for an order refusing to appoint Hardegree as the executor or, alternatively, making Hardegree a co-administrator with an independent third party.

At a hearing on the probate petition, Hardegree, as propounder, orally moved to dismiss the caveat, in part because Farquharson did not object to probating the will and in part because the grounds alleged did not state a basis for refusing to appoint the choice of the testatrix. In response, Farquharson was prepared to show at that hearing that Hardegree had such conflicts of interest as would disqualify him from serving as executor.

The probate court thought these were matters more properly considered at a later scheduled hearing on the dismission of the guardians of the decedent, whereas the instant hearing concerned whether there was a proper will. The probate court further reasoned that the executor first had to be appointed before determining whether the executor was fit or unfit and that if he proved unfit, he could be removed. The court expressly promised to hear the caveator’s evidence, “next week at the dismission. . . .” Although financial advisors were recommending the prompt sale of certain securities held in the A. G. Edwards account, the parties were unable to agree on the application of the proceeds. The probate court decided to “go ahead and appoint Mr. Hardegree to serve as executor, [but] not to make any changes to the account until we can meet next week.” The order of September 15, 1999, establishing the will in solemn form granted Hardegree letters testamentary and incorporated Hardegree’s agreement as executor to “take no action regarding the A. G. Edwards Agency Account. . .” until a ruling on the pending application for letters of dismission in the related guardianship matter.

1. The first enumeration contends the probate court erred in granting Hardegree’s oral motion to dismiss the caveat. The order appointing Hardegree as executor does not expressly dismiss the caveat or preclude Farquharson from pursuing it at the expected subsequent dismission hearing, but it does purport to determine that “no legal or factual basis appeared ... to refuse granting Letters Testamentary to William B. Hardegree. . . .”

The probate court’s reasoning that, in order to consider the merits of Farquharson’s caveat, the executor must first be appointed and then challenged by a removal petition is in error.

The qualification and fitness of an executor to serve is a proper subject of inquiry in a caveat in the probate court. ... In a proceeding before the issuance of [letters testamentary], setting up objections to such appointment, we see no reason why the same objections that might be urged in a proceeding for removal might not be urged in objections to the original appointment. The fact that the will was established . . . will not prevent the [probate court], upon a proper showing, from failing and refusing to appoint such [unqualified] persons as executors under the will, although named therein as such.

Decided June 12, 2000

Reconsideration denied June 27, 2000.

Miller, Layfield & Lee, Charles W. Miller, L. M. Layfield III, Harry O. Lee, Jr., Sherry B. Goodrum, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Alan F. Rothschild, James E. Humes II, Denney, Pease, Allison & Kirk, John W. Denney, for appellee.

The procedural error in refusing to entertain the caveator’s objections to Hardegree at the probate hearing does not require appellate reversal of his appointment as executor. The merits of the objection can be determined after the subsequent hearing envisioned by the probate court at the probate hearing.

2. Irreconcilable differences and animosity, between a nominated executor on the one hand and the beneficiaries on the other, authorize but do not require the probate court’s refusal to appoint the person nominated in the will as executor. The initial appointment of Hardegree as executor is affirmed. The case is remanded for further proceedings, including a hearing on the merits of the caveat, consistent with this opinion.

Judgment affirmed and case remanded with direction.

Pope, P. J., and Smith, P. J., concur.

       (Citations and punctuation omitted.) Fountain v. Cabe, 242 Ga. 787-788 (1) (251 SE2d 529) (1979).

       Indeed, since Farquharson has failed to include the evidence he intended to introduce, we cannot rule on the merits of the objections. See Choi v. Wan, 207 Ga. App. 73, 74 (2) (427 SE2d 64) (1993).

       See, e.g., Stewart v. State, 263 Ga. 843, 845 (1) (440 SE2d 452) (1994), overruled on other grounds, Wall v. State, 269 Ga. 506, 508-509 (2) (500 SE2d 904) (1998). See also the cases cited in Stewart, approving post-trial hearings to rectify procedural error.

       See In re Estate of Bagley, 239 Ga. App. 877 (522 SE2d 281) (1999).

       The October 14, 1999 notice of appeal does not indicate whether the anticipated dis-mission hearing was ever held. Our relief in this case is strictly procedural. We do not direct that the probate court conduct a second hearing on the merits, if, in fact, such a hearing has already been conducted, unless our ruling in Division 2 authorizes a renewed challenge to Hardegree.


author: McMurray, Senior Appellate Judge.

text:
    A00A1535.
    STRANGE v. THE STATE.
    (535 SE2d 315)
   McMurray, Senior Appellate Judge.

Following an earlier mistrial, a Morgan County jury convicted defendant of four counts of aggravated assault. The superior court thereafter sentenced defendant consecutively and concurrently to 50 years confinement, to serve 40 and the remainder probated. Defendant now appeals upon the superior court’s denial of his motion for new trial, as amended. Held:

Viewed in a light most favorable to the jury’s verdict, the evidence pertinently shows that defendant and his friend, Derek Bray, were guests at a 1996 Fourth of July party at the home of the victim, John Thomas Cathey II. At about 11:00 p.m. while outside, two brothers attending the party, Todd and James Copeland, overheard the defendant and Bray in a discussion about “loading the clip” as they walked to their car. The brothers reported what they had heard to a number of the guests, at the party and went back outside to further check on the defendant and Bray. While doing so, James Copeland observed defendant in the act of loading a 9 mm semiautomatic pistol. The Copelands returned to the party to further report this information, and, at approximately 12:30 a.m., July 5, 1996, Douglas Phelps, the victim, Cathey, and Grey Lewis left the party to investigate. Finding defendant and Bray on the driveway of the residence, the three asked the defendant about the gun. The defendant denied the claim of the loaded weapon, explaining that he had only been rolling a marijuana cigarette. The three young men accepted defendant’s explanation and went back to the party.

Shortly thereafter, Carrie Harper, who had come to the party with the defendant and Bray, told Phelps that she had seen a gun in the car on the way to the party and asked Phelps to try to get the weapon to diffuse the situation. Phelps passed this information on to Cathey and Lewis. At about 12:45 a.m., the three observed defendant and Bray walking toward their car and followed them. Phelps grabbed the defendant from behind thinking he was going to the car to get the gun. However, when he did so, the defendant pulled a 9 mm semiautomatic out and fired a single shot into the ground. Phelps released the defendant and sought cover under a nearby vehicle. Defendant wheeled and ran down the driveway toward the woods. When Phelps emerged, he saw Lewis holding Bray from behind and proceeded to strike Bray in the face. Additional shots directed at the people at the party rang out from the bottom of the driveway as the defendant shouted “Come on, you mother [expletive deleted].”

Cathey then ran down the driveway and followed defendant into a nearby field where a struggle over the gun ensued. Three shots were fired. Hit in his chest by one round, Cathey fell to his knees, uttering, ‘You shot me, boy, you know.” Defendant responded saying, “I know I did.”

James Darnell who had seen Cathey shot pursued the defendant as he ran, finally stopping defendant behind a tree by throwing rocks at him. Moments later, Darnell waved two cars down which were returning to the party. Once the vehicles came to a stop, he told the occupants that Cathey had been shot and asked James “Dusty” Bonner, the driver of the lead vehicle, to direct his headlights to the area where defendant was hiding. As Bonner did so, defendant stepped out from the tree where he was hiding and fired four to five shots at Bonner’s vehicle — one of the rounds striking the truck’s back fender on the passenger’s side. Bonner “took off” when he heard shots fired. Melissa Malcom sat in the passenger’s seat of Bonner’s vehicle. In addition to hearing shots fired, she observed muzzle flashes at a range of 20 feet which appeared to be directed at the vehicle. On this, Malcom “laid down in the seat and said go.”

Defendant ran once more, climbing into a briar patch where in ten minutes he was asleep. Defendant slept through much of the manhunt which followed, turning himself in the following morning to Lieutenant Mike Pritchett of the Morgan County Sheriff’s Office. Later defendant led the authorities to the semiautomatic he used in the shooting spree. The weapon was empty.

1. Defendant challenges the sufficiency of the evidence to support his convictions for aggravated assault as to Bonner and Malcom. In particular, he contends that he acted in self-defense and that the State’s attorney proved neither criminal intent nor reasonable apprehension of serious bodily injury in Bonner or Malcom. We disagree.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. . . . Conflicts in the testimony of witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Reviewing the evidence in the light most favorable to the jury’s verdicts and leaving evidentiary weight and credibility to the jury, we find that the jury could have found the defendant guilty beyond a reasonable doubt of the crimes of aggravated assault in issue in the case sub judice. While defendant testified that he acted in self-defense in the face of the State’s testimony to the contrary, “[t]he determination of a witness’ credibility ... is within the exclusive province of the jury.” Likewise, the question of whether the defendant acted with the requisite criminal intent also presented a question for the jury and “ ‘shall not be disturbed by this court unless it is contrary to the evidence and clearly erroneous.’ ” Moreover, “[a] person commits the offense of aggravated assault when he or she assaults: ... (2) With a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The facts here clearly show that Bonner and Malcom reacted defensively and aggressively upon realizing defendant had taken them under fire from close range. This was sufficient circumstantial evidence to show that they had been placed in reasonable apprehension of immediately receiving violent injury. Consequently, we conclude that a jury could have found the defendant guilty beyond a reasonable doubt of aggravated assaults upon Bonner and Malcom.

2. Defendant further contends that the superior court erred in considering a presentence report showing his prior criminal history for lack of notice thereof before trial in violation of OCGA § 17-10-2 (a). He argues that his prior convictions were used in aggravation to determine sentence and that the court abused its discretion by imposing sentences grossly disproportionate to the crimes of which he was convicted, in effect, sentencing him for the murder of which he was acquitted. We disagree.

“Trial courts are permitted to consider presentence reports when deciding whether to suspend or probate all or part of a sentence, although such reports cannot be used to determine the length of a sentence.” Further, “[i]f the State intends to introduce evidence that defendant is a recidivist for sentencing purposes, it must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2 (a).” While defendant contends that he did not receive proper notice, “ ‘[defendant’s] counsel did not object to the admission of [his] (prior) convictions and affirmatively stated that he did not contest their admission, thereby waiving error.’ ”

Decided May 31, 2000

Reconsideration denied June 27, 2000

James C. Bonner, Jr., Arthur L. Gibson, Jr., for appellant.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

Neither is there merit in defendant’s claim that the superior court abused its discretion by imposing an excessive sentence against him. The superior court imposed sentences of imprisonment well within statutory limits, a portion of which was imposed to run concurrently and the remainder probated. “‘A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. [Cits.]’ ” Accordingly, this claim of error is likewise without merit.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The jury acquitted defendant of a single count of murder (Count 1) and a single count of aggravated assault (Count 6).

       The superior court sentenced defendant to twenty years confinement as to Count 2, twenty years confinement as to Count 3 consecutive to Count 2, ten years confinement as to Count 4 consecutive to Count 3; ten years confinement as to Count 5 concurrent to Count 4; to serve forty years and the remainder of ten years probated.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

       (Citations and punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

        Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653), overruled on other grounds, Johnson v. State, 272 Ga. 254, 255 (1) (526 SE2d 549).

       (Citations omitted.) Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757).

       OCGA § 16-5-21 (a).

        Lewis v. State, 215 Ga. App. 161, 163 (2) (450 SE2d 448).

        Denny v. State, 226 Ga. App. 432, 436 (13) (486 SE2d 417).

       (Citations and punctuation omitted.) Howard v. State, 233 Ga. App. 724, 726 (1) (a) (505 SE2d 768).

       Pertinently, defendant’s counsel stated that the presentence report “summarizes fairly well background information I wanted the court to have. . . .”

       Id.

       The superior court was authorized to impose a maximum sentence of eighty years confinement upon the four counts of aggravated assault of which defendant was convicted. OCGA § 16-5-21 (b).

        Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241), citing Pollard v. State, 230 Ga. App. 159, 161 (5) (495 SE2d 629).


author: Blackburn, Presiding Judge.

text:
    A00A0233.
    INTERNATIONAL BUSINESS MACHINES CORPORATION v. KEMP et al.
    (536 SE2d 303)
   Blackburn, Presiding Judge.

International Business Machines Corporation (IBM) appeals from the trial court’s grant of Barbara J. Kemp, Maria G. Wilson and Roger Wilson’s (plaintiffs) motion for class certification. IBM contends that the trial court erred by: (1) holding that New York law governs the fraud claim of all potential class members; (2) holding that New York law governs the contract claim of all potential class members; (3) granting class certification where the claims lack commonality; and (4) granting class certification prior to determining whether plaintiffs’ claims were preempted by federal law. Because the trial court based its grant of class certification on erroneous determinations of the law governing potential class members’ claims, we reverse in part, vacate in part and remand the case.

THE FACTS

IBM is headquartered in New York and has offices and employees in all 50 states and the District of Columbia. Plaintiffs, two former employees of IBM and the spouse of a former employee, are or were residents of Georgia. In late 1991 and early 1992, IBM offered to its employees certain early leave or retirement benefits in a program known as ITO-II. The program was “intended to help IBM become more competitive and efficient by reducing its work force and to assist employees who choose to participate in the program in making the transition into a new career or retirement.” Employees who took part in ITO-II continued to be eligible for a pre-existing program for employees and their spouses, the “Retirement Education Assistance Program” (REAP). REAP offered reimbursement of up to a total of $2,500 each per employee and spouse for a course of study or training taken within three years after retirement. Subsequently, in December 1992, IBM suspended REAP benefits.

In December 1994, plaintiffs filed a complaint asserting causes of action for fraud and breach of contract. Plaintiffs allege that they were defrauded when IBM canceled REAP benefits after they took early leave or early retirement. Plaintiffs further allege that the REAP benefits were promised by IBM as part of the incentive for early leave or retirement and that IBM breached that promise when it canceled REAP. IBM denies that canceling REAP breached the ITO-II agreement.

The issue before this court concerns plaintiffs’ motion for class certification. The proposed class would consist of those former IBM employees who participated in ITO-II and their spouses, who did not receive full REAP benefits due to its suspension. Proposed class members are residents of Alabama, California, Colorado, Florida, Georgia, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, Washington, Wisconsin and the District of Columbia.

The trial court granted class certification, finding that the requirements of the class action statute, OCGA § 9-11-23, were met. Specifically, the trial court determined that the number of potential class members satisfied the numerosity requirement; that plaintiffs were adequate representatives of the class; that the superiority requirement was satisfied and that, because New York law would uniformly apply to the claims of all potential class members, the commonality requirement was met.

1. On appeal, IBM contends the trial court erred by granting class certification because New York law does not uniformly apply to all potential plaintiffs’ claims and, as a result, the commonality requirement is not met. We will analyze the conflict of laws for the tort claim and the contract claim in turn.

CONFLICT OF LAWS ANALYSIS

(a) IBM contends that the trial court erred by determining that New York law applied to fraud claims of all potential class members. We agree. The trial court properly determined that, for tort claims generally, Georgia applies the choice of law doctrine lex loci delictis. The trial court misapplied the doctrine of lex loci delictis to this case which involves a transitory tort. It is undisputed that the alleged fraud is of a transitory nature.

Under the rule of lex loci delictis, tort cases are generally governed by the substantive law of the place where the tort or wrong occurred. In torts of a transitory nature, the place of the wrong is the place where the last event occurred necessary to make an actor liable for the alleged tort. Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378, 380 (210 SE2d 854) (1974); Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903-904 (324 SE2d 738) (1984). As to the fraud claim, the substantive law will be governed by the state where the “last event” occurred.

The trial court ruled that New York law applied based on its determination that the last event necessary to establish liability for fraud was the decision to suspend REAP benefits, which occurred in New York. The decision to suspend REAP benefits was not, however, the last act necessary to establish liability for fraud. The elements of fraud are: “a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Only fraud which results in-damage is actionable. OCGA § 51-6-1. Thus, the “last event” necessary to make an actor liable for fraud is the injury, and consequently, for purposes of lex loci delictis, the place of the wrong is where that injury is sustained. This doctrine has been so applied in other jurisdictions. See Mgmt. Science America v. NCR Corp., 765 FSupp. 738 (N.D. Ga. 1991) (fraud committed in state where economic loss occurred); Steele v. Ellis, 961 FSupp. 1458, 1463 (D. Kan. 1997) (applying Kansas law, the last event is the injury and the place of the wrong is where the loss is sustained); Glass v. Southern Wrecker Sales, 990 FSupp. 1344, 1347 (M.D. Ala. 1998) (same result when applying lex loci delictis under Alabama law); Restatement of Conflicts of Laws, § 377 (1934).

Potential class members here did not suffer injury at the moment IBM decided to suspend benefits, as plaintiffs urge. A former employee or spouse was not entitled to reimbursement under REAP until tuition had been paid. Thus, injury occurred only when a former employee or spouse felt the effect of IBM’s decision, that is when IBM failed to reimburse tuition to those who would have qualified for reimbursement. This economic damage occurred in the state of residence of each potential class member at the time of such failure. Since the potential class members reside in a variety of states, the trial court erred in determining that New York law applied to the fraud claim of all potential class members. We do not address the merits of the underlying fraud claims.

(b) IBM contends that the trial court erred by determining that New York law applied to the contract claim of all potential class members. We agree.

Georgia courts apply the traditional lex loci contractus in contract actions.

Under this approach, contracts are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, except where it appears from the contract itself that it is to be performed in a State other than that in which it was made, in which case, the laws of that sister State will be applied. In order to determine where a contract was made, the court must determine where the last act essential to the completion of the contract was done.

(Citations and punctuation omitted.) Gen. Tel. Co. &c. v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). The trial court determined that all of IBM’s actions occurred in New York and, as a result, New York was where the contract was made. However, the trial court failed to identify the last act essential to the completion of the ITO-II contract, which may or may not have been an act of IBM. If, for example, the last act essential to the contract was the employee’s acceptance of the terms thereof and this act was completed outside of New York, under those circumstances the contract would have been completed in the state where that act occurred. The laws of the state in which such acceptance occurred would apply to the contract, unless the contract provided otherwise. Also, the trial court failed to determine where the contract was to be performed, which fact could be determinative as to the controlling law on this claim.

Because the trial court did not reach the necessary factual determinations (it erred in determining that New York law applied to the contract claim of all potential class members), we are therefore unable to reach the issue on the record before us.

(c) Absent an appropriate factual basis, the trial court erred by finding the commonality requirement of the class action statute has been satisfied. We remand this case to the trial court to (1) make the required factual findings and determine the law governing the breach of contract claim and (2) determine whether, after applying the appropriate choice of law, the commonality requirement of the class action statute is met and whether class certification as prayed is proper.

2. IBM has raised as a defense that plaintiffs’ claims are preempted because the state law claims relate to an Employee Retirement Income Security Act (ERISA) covered plan (parts of ITO-II). IBM contends that the trial court erred by granting class certification prior to determining whether plaintiffs’ claims were preempted by federal law. In Kemp v. Intl. Business Machines Corp., 109 F3d 708 (1997), the Eleventh Circuit Court of Appeals held that plaintiffs’ claims were not sufficient to establish the complete preemption necessary to establish federal question jurisdiction. That court further stated that “[a]ny defensive preemption arguments [would] have to be decided, if at all, in state court.” Id. at 714.

This court has previously addressed the priority of issue resolution and held: “[I]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA § 9-11-23] have been met.” Sta-Power Indus. v. Avant, 134 Ga. App. 952, 954 (1) (216 SE2d 897) (1975). The trial court did not err by determining the propriety of the class action before addressing the merits of IBM’s ERISA defense. See Taylor Auto Group v. Jessie, 241 Ga. App. 602 (527 SE2d 256) (1999).

Judgment reversed in part, vacated in part and remanded.

Eldridge and Barnes, JJ, concur.

Decided June 27, 2000.

Powell, Goldstein, Frazer & Murphy, John F. Wymer III, Jacqueline E. Kalk, for appellant.

Browning & Tanksley, Jerry A. Landers, Jr., Hull, Towill, Norman, Barrett & Salley, David E. Hudson, William F. Hammond, for appellees.

        See Alexander v. Gen. Motors Corp., 219 Ga. App. 660 (466 SE2d 607) (1995), rev’d on other grounds, 267 Ga. 339 (478 SE2d 123) (1996) (“[t]he opinion by the Court of Appeals correctly states the choice of law principles applicable to this case”), vacated by 224 Ga. App. 238 (481 SE2d 7) (1997).