text:
    A98A0793.
    CANTRELL v. NORTHEAST GEORGIA MEDICAL CENTER et al.
    (508 SE2d 716)
   Andrews, Chief Judge.

Lee Cantrell, widower of Ava Melissa Cantrell, appeals from the judgment entered on the jury’s verdict in favor of Dr. John Lewellen, Dr. Michael Connor, Dr. Thomas Sholes, and Gainesville OB/GYN Specialists, P.C., and the court’s directed verdict in favor of Northeast Georgia Medical Center in this wrongful death and medical malpractice action premised on Mrs. Cantrell’s death as a result of complications after suffering a ruptured appendix.

Viewed with all inferences in favor of the verdict, the evidence was that on Wednesday, February 23, 1994, Mrs. Cantrell, 31-year-old mother of two, began feeling ill. On Thursday, Mrs. Cantrell called Gainesville OB/GYN Specialists, P.C., the group practice which had handled her last pregnancy and regular gynecological care. Dr. Connor spoke with her and, based on her complaints of bilateral lower abdominal pain and increased frequency of and burning on urination, prescribed Macrobid, an antibiotic commonly used to treat urinary tract infections. He did not physically examine her, but prescribed over the telephone. He told her that, if she continued to experience problems, she should go to the emergency room or call back.

Because she did not improve, on Friday morning, Mr. Cantrell took her to the emergency room at Northeast Georgia Medical Center at 7:00 a.m., where she was seen by Dr. Lewellen, a board certified emergency specialist. Dr. Lewellen was not an employee of the hospital, but worked for Synergon, a company which staffs emergency rooms. There was a sign posted over the registration desk advising patients that the doctors were independent contractors. Additionally, Mr. Cantrell signed the consent for treatment form, which stated that “I understand that the physicians who will participate in my care are not hospital employees, but are independent contractors who have been granted the privilege of using hospital facilities to care for patients.”

Dr. Lewellen spoke with and examined Mrs. Cantrell, including a bimanual pelvic examination. He found bilateral abdominal pain with suprapubic tenderness and ordered an ultrasound. The ultrasound revealed the presence of a cyst on her right ovary and fluid in the cul de sac, indicative of a ruptured ovarian cyst or pelvic inflammatory disease. Dr. Lewellen also spoke with Dr. Sholes, Dr. Connor’s partner, by telephone, advising him of the situation. He also phoned the pharmacy to verify that she had been taking Macrobid. Although he considered appendicitis, Dr. Lewellen’s working diagnosis was a ruptured cyst or pelvic inflammatory disease. Mrs. Cantrell was prescribed another antibiotic that would address the ruptured cyst and pain medication and advised to either contact Dr. Sholes or return to the emergency room if her temperature or pain increased or if she became nauseous or faint.

On Monday, Mrs. Cantrell called Dr. Sholes’ office, advised them her pain was worse, and was told to come into the office. There, she was examined by Mr. McGuire, a certified nurse midwife who had assisted in the delivery of her last child. He performed the rebound test on her abdomen, used to diagnose appendicitis, and found it was negative. He did find a mass on her left side and discussed the situation with Dr. Sholes, who ordered a vaginal probe ultrasound. The ultrasound was performed by Ms. Jans at Dr. Sholes’ office. The vaginal probe is inserted and moved around the pelvis to examine the structures, including being pushed against the rectal wall, all of which Mrs. Cantrell tolerated well. As a result of the ultrasound, a second cyst was located on Mrs. Cantrell’s left ovary and Dr. Sholes decided to hospitalize her for observation.

Dr. Connor was on call at the hospital Monday evening, performing surgery and delivering babies. He spoke to McGuire and Dr. Sholes and was advised of Mrs. Cantrell’s condition and their suspicion of a ruptured ovarian cyst. The plan was that, if she did not improve, Dr. Sholes would perform a laparoscopic exam on Tuesday. Dr. Connor went by to see her that evening and performed an abdominal exam, finding no rebound tenderness or significant guarding, both of which are cardinal signs of a “surgical abdomen,” needing immediate surgery. Although the nurse’s notes reflected a fever earlier, when he examined her, she was afebrile.

On Tuesday, March 1, Dr. Sholes examined Mrs. Cantrell, finding no marked guarding or rebound tenderness. He and Dr. Hill, another partner, then performed the laparoscopic exam and found that her appendix had ruptured and was gangrenous. In addition to the cysts, she had adhesions covering her ovaries.

Dr. Brown, a surgeon, was called in and removed her appendix. Four hours later, Dr. Brown determined that she was “shocky,” with low blood pressure and an elevated pulse. He placed her in ICU and determined that she was in septic shock. She was given antibiotics and responded over the next 24 to 48 hours and her blood pressure returned to normal. She continued, however, to run a temperature and Dr. Brown was concerned about an abscess. After additional testing, on March 9, he took her back into surgery and removed approximately a cup of fibrinous material from around her liver. Such material is a reaction to recent infection. Approximately four hours after this operation, she again became shocky and was treated as before, including the use of a respirator.

After the second surgery, her respiratory function deteriorated and Dr. Murray, a pulmonologist, was called in to treat her for Adult Respiratory Distress Syndrome (ARDS), including chemically paralyzing her for 16 days to assist her breathing. She suffered a number of pneumothoraxes during this period and on March 15, she was operated on and a breathing tube was put in place. Dr. Brown never discovered any source of infection after removing the fibrinous material and it was his opinion that the infection had cleared, her continued elevated temperatures were the result of the ARDS, and that she would recover. Before her discharge, all tubes had been removed from her chest and her lungs had re-expanded.

On March 25, Mrs. Cantrell suffered an unexplained brain insult, causing her to go into a vegetative state, from which she never recovered. She was then transferred to a nursing home where she died in October 1995 from respiratory failure, likely due to recurrent aspiration pneumonia.

The only opinion expressed at trial regarding the cause of the March 25 incident was that of Dr. Murray, the pulmonologist, who stated that, while he could not explain what happened, an air embolus was one possibility. When a ventilator is used, air sometimes gets into the blood stream and blocks flow in the vessels. Such an event is not preventable.

1. Cantrell’s first enumeration is that the court erred in granting Dr. Lewellen’s motion to bifurcate the liability and damages issues for trial “on the grounds of prejudice where there were no inflammatory photographs nor any evidence of prejudice and the Judge during the trial repeatedly referred to the case as being sad, tragic.”

(a) This enumeration, however, also includes five subsections dealing with exclusion of various witnesses’ testimony.

“This court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors ‘shall set out separately each error relied upon.’ . . . Therefore[,] for the purpose of protecting our judgments on appellate review (cit.) this court, in the exercise of our sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.” West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990). Therefore, we consider only the issue of the court’s grant of the motion for bifurcation.

(b) OCGA § 9-11-42 (b) provides that “[t]he court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, . . . or of any separate issue, or of any number of. . . issues.”

Here, prior to entry of the pretrial order, Dr. Lewellen filed his motion to bifurcate the liability and damages issues of this case because to do so would be expeditious, economical and avoid prejudice to the doctors and hospital based on Mrs. Cantrell’s lengthy suffering and eventual death and the emotional, as well as financial damages imposed upon her husband and daughters by it. The court agreed and granted the bifurcation.

Trial courts are vested with wide discretion in the management of the business before them and this Court will not interfere absent clear and manifest abuse of discretion. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (2) (470 SE2d 724) (1996); APAC-Ga. v. Padgett, 193 Ga. App. 706, 708 (1) (388 SE2d 900) (1989); Vitner v. Funk, 182 Ga. App. 39, 40 (1) (354 SE2d 666) (1987).

No such abuse of discretion has been shown here and the cases relied upon by Mr. Cantrell are inapposite. The suggestion that any prejudice to the medical providers could have been alleviated by instructing the jury not to let sympathy for the family affect its deliberations does not show any abuse of discretion in bifurcating the issues instead. Additionally, despite Cantrell’s argument that some evidentiary showing of prejudice is required and was not present here, the defendants relied upon Mr. Cantrell’s deposition and proffer at trial concerning his caring for Mrs. Cantrell after she went into a vegetative state as well as his graphic description of her physical reactions at the time the brain insult occurred in order to show prejudice. There was no error in bifurcating the liability and damages issues. See Hanie v. Barnett, 213 Ga. App. 158, 160 (1) (444 SE2d 336) (1994).

2. After the close of the evidence, the court granted the hospital’s motion for directed verdict because there had been no showing of independent negligence by hospital employees and there had been no holding out by the hospital of Dr. Lewellen as anything but an independent contractor, as evidenced by the hospital’s sign at the registration area and the consent to treatment form. Mr. Cantrell enumerates the directed verdict as his seventh enumeration, contending there was a question of fact on the issue of ostensible or apparent authority based on Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421 (445 SE2d 270) (1994).

Unlike Abdul-Majeed, where there were some factual issues regarding the hospital’s holding out of the doctor and reliance on it, there are no such factual issues here. This case is factually similar to Holmes v. Univ. Health Svc., 205 Ga. App. 602 (423 SE2d 281) (1992) where, as here, conspicuous signage was posted and forms signed by the patient or representative revealed the independent contractor status of the doctor. See also Charter Peachford &c. v. Kohout, 233 Ga. App. 452, 461 (f) (504 SE2d 514) (1998); Sorrells v. Egleston Children’s Hosp. &c., 222 Ga. App. 229 (474 SE2d 60) (1996) (physical precedent).

There was no error in granting a directed verdict to the hospital on the issue of apparent authority.

3. The second enumeration is that the trial court erred in granting the hospital’s motion in limine which sought to exclude evidence of Mrs. Cantrell’s self-extubation on March 2 and evidence from Dr. Sladen suggesting that nurses are less attentive during shift changes and that Mrs. Cantrell might have self-extubated on March 25 during a shift change.

The hospital made its motion for directed verdict after the close of plaintiff’s case on two bases, one that there was insufficient evidence to go to the jury on apparent authority regarding Dr. Lewellen and that, absent Dr. Lewellen’s acts, there was no evidence of negligence by any other hospital employee. In response to this latter ground, plaintiff’s counsel stated “[tjhat’s right. I am going to proffer evidence but there is nothing else. It’s just strictly the agents, apparent agency.”

There was no mention of any connection between the proffer of the remaining deposition testimony of Dr. Sladen, tendered over 200 pages later in the trial transcript, and any attempt to show additional negligence on the part of hospital employees. Therefore, the argument presented here for the first time will not be considered. Cornelius v. Wood, 223 Ga. App. 339, 341 (1) (477 SE2d 595) (1996).

4. The third and fourth enumerations deal with the testimony of Dr. Sladen, one of Cantrell’s expert witnesses, were argued together, and are so considered here.

Dr. Sladen was asked on direct examination “would a rectal exam be unnecessary for a woman if her vaginal exam with a speculum was performed?” He answered, “[t]he literature says that a rectal examination should be performed on every patient who presents with abdominal pain and that’s written in Sabiston, which is probably one of the very best textbooks. . . .” The hearsay objection made to this answer was sustained, but the court advised Cantrell, “[i]f you want to revisit it later you may.” Thereafter, Dr. Sladen was asked the same question and responded that a rectal examination was “essential.”

Pretermitting the nonresponsiveness of the answer given to the question asked and the fact that the question asked was then answered without objection, we find no error.

“ An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others.’ (Citations and punctuation omitted.) In the Interest of A. S. M., 214 Ga. App. 668, 671 (1) (448 SE2d 703) (1994).” Jordan v. Ga. Power Co., 219 Ga. App. 690, 693 (1) (466 SE2d 601) (1995); Austin v. Kaufman, 203 Ga. App. 704, 709 (6) (417 SE2d 660) (1992). While Dr. Sladen could give his own opinion based on his reading of Sabiston, he could not merely recite Sabiston’s opinion, as that was hearsay. Id.

Dr. Sladen also attempted to give an opinion based on what he had read in the deposition of Mr. Cantrell. That deposition, however, was not in evidence nor had he yet testified at trial and there was no error in excluding this opinion, since an opinion must be premised on facts in evidence. Id.

5. The fifth enumeration, as did the first, contains inappropriate subparts dealing with multiple errors and we consider only that portion contending that the court erred in “granting the request of the Defendants’ attorney[s] that they be excused from objecting to any testimony that would be inadmissible and taking over the objection and admonishing the Plaintiff’s attorney in tendering and proffering evidence that would be inadmissible for any legal reason or because the evidence would involve issues of damages.” West, supra.

The record reference reflecting this “grant” of such a request, however, is the culmination of lengthy pretrial discussions among plaintiff’s counsel, defense counsel and the court regarding the bifurcation of liability and damages, discussed in Division 1. The court instructed plaintiff’s counsel that the fact of damage, i.e., death, could be proven during the liability phase of the trial, as it was through the testimony of Dr. Whitehead, the physician attending Mrs. Cantrell at the time of her death, but that “the extent of her pain and suffering, the extent of her losses must be reserved for the second phase of this trial.” Further, the court advised that the “issues to be addressed in the liability phase of this case will be two, and the issues are was there malpractice and did the malpractice cause Ms. Cantrell’s death.” In response to the continued objections of Cantrell regarding the bifurcation and problems counsel anticipated in presenting evidence as a result of it, the court directed that “you need to limit the evidence to the two issues of was there malpractice and did the malpractice cause death.”

At the conclusion of plaintiff’s case, represented in the record by over 300 pages of transcript after the above-quoted discussion, plaintiff’s counsel tendered “additional testimony” of Mr. Cantrell, Dr. McDaniel, a physical rehabilitation specialist, and Dr. Eyzaguirre, an internist/cardiologist, by presenting to the court the entirety of their pretrial depositions. Defense counsel noted that portions of those depositions might be admissible if specified and the court concurred. In response, counsel for Cantrell stated that “[y]ou have ordered me to cull out the parts that would be admissible in phase one. We’re going back to this morning. And I say that’s not my obligation. I am offering evidence [the depositions], it’s up to the defendants to object. You put an obligation on me that I suggest the law doesn’t put on me.” In response, the court made the statement referenced in Cantrell’s argument regarding this enumeration, “[t]he law puts an obligation on you not to tender clearly inadmissible evidence and that’s the responsibility I put on you and it’s your obligation to follow that direction and it’s fairly clear. So what do you want to do [regarding the depositions]?”

It is clear that the court was not taking over the defense’s obligation to object, but was merely directing that his previously issued order bifurcating the trial be followed and that evidence relating only to damages not be tendered in contravention of that order.

Additionally, as the court noted for the record, he had not read the depositions and was not able to make a judgment on their admissibility based on the mass tender of the depositions. Despite Cantrell’s protest to the contrary, it is the obligation of a party to make a specific tender of evidence which they contend is improperly excluded and the failure to do so precludes our review of this contention. Barron v. Barron, 185 Ga. 346 (2) (194 SE 905) (1938); State Farm &c. Ins. Co. v. Hudson, 215 Ga. App. 218, 219 (2) (450 SE2d 286) (1994); Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 212 (2) (319 SE2d 38) (1984).

Although this situation did not specifically deal with a motion in limine, those cases offer guidance. “ ‘ “The purpose in filing a motion in limine to suppress evidence [or motion to bifurcate liability and damages] or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case. . . . It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine [or motion to bifurcate] is intended to reach.” Bridges v. City of Richardson, 163 Tex. 292 (354 SW2d 366, 367) (1962).’ [Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20) (1979)].” Reno v. Reno, 249 Ga. 855 (295 SE2d 94) (1982).

6. We consider the sixth enumeration, but not its subpart. West, supra. That enumeration is that the court erred in not admitting plaintiff’s Exhibits 3, 4, and 5, photographs of Mrs. Cantrell with her children before her illness, and Exhibit 6, a videotape of her in her vegetative state being ministered to by her family and medical staff.

The videotape was arguably relevant only as to damages and there was no error in excluding it from the liability phase. Even assuming, without deciding, that the photographs were admissible and improperly excluded, Cantrell can show no harm from their exclusion if their purpose, as argued, was to show that, prior to these events, she was “alive and in good health.” Other evidence of this was admitted without objection, including the testimony of her 16-year-old daughter regarding her mother’s vibrancy and involvement in her church, community, and the lives of her children. Hardy v. Tanner Med. Ctr., 231 Ga. App. 254, 255 (1) (499 SE2d 121) (1998); Wood v. Browning-Ferris Indus. &c., 206 Ga. App. 707 (3) (426 SE2d 186) (1992).

Decided November 2, 1998

Reconsideration denied November 20, 1998

Clark & Clark, Fred S. Clark, for appellant.

Forrester & Brim, Weymon H. Forrester, Whelchel & Dunlap, Thomas M. Cole, for appellees.

7. The final two enumerations deal with the court’s charge on agency, relating only to Drs. Sholes and Connor and their acts as imposing liability on the professional corporation, and the use of a special verdict form which allowed for corporate liability based only on the doctors’ negligence and not on that of the ultrasound technician and midwife. There was no contention of negligence by either of these latter two individuals in the pretrial order entered in this case, however, nor was any expert testimony provided regarding any such negligence. There was no error.

Judgment affirmed.

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

       A portion of Dr. Sladen’s deposition had been introduced during Cantrell’s case.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A1134, A98A1135.
    BESS v. THE STATE (two cases).
    (508 SE2d 664)
   Smith, Judge.

Appellants Renaldo and Jarrin Bess were charged by indictment with armed robbery. Each entered into a negotiated plea agreement. In accordance with the terms of the plea agreements, the trial court entered a 20-year sentence with respect to Renaldo Bess, with 15 years to be served in confinement and the remainder on probation. The court sentenced Jarrin Bess to 15 years, with ten to be served in confinement and five on probation.

Appellants challenge the acceptance of their guilty pleas without assurance by the trial court that they were advised of the minimum mandatory sentence imposed by OCGA § 17-10-6.1 (b), or that they understood the requirement that any sentence, except one of life imprisonment, life without parole, or death, imposed on a conviction of armed robbery be served in its entirety, without probation or parole. OCGA § 17-10-6.1 (c) (3). They also contend that the trial court erroneously failed to find on the record a factual basis for their pleas. We find no error and affirm.

1. A trial court is required to advise defendants of any mandatory minimum sentence. See Uniform Superior Court Rule 33.8 (C) (3). Here, the mandatory minimum sentence was ten years to be served in confinement without probation or parole. OCGA §17-10-6.1 (b). But under the facts of this case, the trial court’s failure to advise appellants of the mandatory ten-year requirement does not reach the level of “manifest injustice” required for successfully attacking entry of a plea after sentence has been pronounced. See State v. Evans, 265 Ga. 332, 336 (454 SE2d 468) (1995). Because these sentences were negotiated, whether appellants knew about the ten-year mandatory minimum sentence is irrelevant, as each sentence as actually imposed obviously exceeded the minimum ten-year sentence imposed by OCGA § 17-10-6.1 (b). Reversal on this ground is not warranted.

In addition, the court’s failure to advise appellants of the “no parole” policy codified at OCGA § 17-10-6.1 (c) (3) does not mandate reversal. Although criminal defendants are entitled to be informed of the consequences of their pleas, “[p] aróle eligibility is not so much a direct consequence of a trial court’s acceptance of a bargained plea of guilty, as it is a collateral legislative consequence of the defendant’s own decision to accept a certain sentence in exchange for his guilty plea to a specified crime. Parole eligibility may be a factor which the defendant should consider in bargaining for a recommended sentence, but the trial court is entitled to presume that a defendant has apprised himself of such collateral consequences before agreeing to accept a certain sentence in exchange for his guilty plea.” (Emphasis omitted.) Smith v. State, 174 Ga. App. 238, 240 (329 SE2d 507) (1985) (physical precedent only). Appellants entered negotiated guilty pleas and received the sentences for which they bargained. As in Smith, from appellants’ “point of view, the consequence of receiving the sentence to which [they] agreed can hardly be deemed unanticipated or adverse.” (Emphasis omitted.) Id. at 240. This case is distinguished from Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998), in which we concluded that trial counsel rendered ineffective assistance of counsel by failing to advise appellant of the effect of OCGA § 17-10-6.1 on his guilty plea. Hutchison distinguished Smith, supra, on the ground that no allegation was made in Smith that trial counsel rendered ineffective assistance. Id. at 144. Here, too, no such allegation is made, and Smith is controlling.

2. Appellants also contend that the trial court erroneously failed to determine whether a factual basis existed for their pleas as required by Uniform Superior Court Rule 33.9. We do not agree. During the plea hearing, the trial court concluded that a factual basis for the pleas existed, based on its recollection of the facts introduced during appellants’ bond hearing. The transcript of the bond hearing includes testimony that appellants entered a Wendy’s restaurant, forced the victim to lie on the floor and sing at gunpoint, and took money from the store.

The trial court was authorized to consider evidence outside of that presented at the plea hearing when determining whether a factual basis for the pleas existed. See Evans, supra at 335 (trial court may learn factual basis from material contained in remainder of record if plea hearing record shows portion of record relied on and relevant portion is part of record on appeal). Based on the evidence presented at the bond hearing, the court was provided with sufficient information from which to determine that a factual basis existed for appellants’ guilty pleas to the charge of armed robbery. See OCGA § 16-8-41 (a).

Judgment affirmed.

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

On Motion for Reconsideration.

Appellants contend that in affirming their judgments of conviction, this Court overlooked the controlling authority of Johnson v. State, 227 Ga. App. 390 (489 SE2d 138) (1997). In Johnson we reversed the judgment entered on defendant’s guilty plea, because the record did not show that he was advised of the mandatory imposition of life sentences on the charges against him. But Johnson is distinguished from this case in at least two respects. First, the guilty plea entered in that case was a non-negotiated plea. The plea here was negotiated, and as stated in Smith v. State, 174 Ga. App. 238 (329 SE2d 507) (1985), the consequence of receiving the sentences for which appellants bargained “can hardly be deemed unanticipated or adverse.” Id. at 240. Second, Johnson does not address the issue of parole eligibility; instead, that case involves the failure of counsel to inform defendant of a mandatory minimum life sentence. As discussed in Division 1 of our opinion, the trial court’s failure to advise appellants of the minimum ten-year sentence was not reversible error, because the sentences as imposed on them were negotiated and exceeded the mandatory statutory minimum sentences.

Decided September 8, 1998

James A. Yancey, Jr., for appellants.

Renaldo W. Bess, pro se.

Jarrin Bess, pro se.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

       Although Smith is physical precedent only because one judge on a three-judge panel concurred specially, the special concurrence supports the majority proposition in Smith that parole is a collateral consequence of a guilty plea. Id. at 242.


text:
    A98A1361.
    SOMMERFIELD et al. v. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. et al.
    (509 SE2d 100)
   Smith, Judge.

This case presents the issue of whether an off-duty police officer and his part-time private employer can be liable to a motorist injured as the result of a traffic accident that occurs while the officer is directing traffic in a public roadway at the behest of the private employer. This issue was previously addressed by this Court in Beck v. Paideia School, 191 Ga. App. 183 (381 SE2d 132) (1989). We conclude that this case is controlled by Beck, and we therefore affirm the trial court’s grant of summary judgment in favor of the defendants.

The record shows that Glenda Sommerfield, her husband George Sommerfield, and her minor son, Matthew Sommerfield, brought suit against Chris Cannon, a City of Columbus police officer, Blue Cross & Blue Shield of Georgia, Inc. (“Blue Cross”), the private employer that hired Cannon to direct traffic near its premises, and the driver of another car, to recover for injuries resulting from a vehicular accident. The Sommerfields alleged negligence on the part of Cannon in directing traffic and asserted that Blue Cross was liable as Cannon’s employer. The trial court granted the motions for summary judgment of Cannon and Blue Cross, and the Sommerfields appeal. We conclude that Beck, supra, cannot be distinguished and that its reasoning is sound. We find that Cannon is immune from suit because he was acting in his official capacity and performing a discretionary function. Because the sole claim alleged against Blue Cross is based upon respondeat superior, recovery against Blue Cross is barred as well. We therefore affirm the trial court’s grant of summary judgment in favor of these two defendants.

Cannon testified on his deposition that his superior officer, Sergeant Orlich, arranged for him to work at Blue Cross to fill in from time to time for other officers who worked there regularly. Orlich informed him he would be filling in on the day of this incident. Cannon reported for work and was directing traffic from the middle of Warm Springs Road, in front of the exit from Blue Cross’s premises. The record shows that Sommerfield, driving her car with her son as a passenger, picked up her husband, who was a Blue Cross employee. She then approached the exit from Blue Cross’s premises. Cannon testified that he was sharing duty with another officer, who was handling the eastbound traffic on Warm Springs Road. It was Cannon’s responsibility to stop westbound traffic to allow vehicles exiting the Blue Cross premises to proceed.

Cannon testified he stopped westbound traffic, checked to make sure the other officer had eastbound traffic stopped, rechecked to ensure that westbound traffic was still stopped, and only then signaled the cars waiting to exit from the Blue Cross premises. Cannon motioned to Sommerfield to exit. As she did, her car was struck by a car traveling westbound on Warm Springs Road at a high rate of speed. At the same time, Cannon heard tires screeching and saw the westbound car hit the Sommerfield vehicle.

1. A cause of action against a police officer may involve sovereign immunity or official immunity. Pearson v. City of Atlanta, 231 Ga. App. 96, 101 (5) (499 SE2d 89) (1998). Such “immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. [Cit.]” Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995). And whether a police officer can be held liable for negligent conduct while working for a private entity depends on whether the officer was acting “within the scope of [his] official authority” at the time of the conduct. Id. In this case, we must determine whether in directing traffic on a public street while being paid by a private employer Cannon was performing a public function or a private function.

The Sommerfields contend that at the time of the accident, Cannon either was performing a completely private function on behalf of Blue Cross — assisting its employees to leave work safely — or at the very least he was acting in a dual capacity — directing traffic on a public roadway while also assisting Blue Cross employees. They therefore argue that the trial court erred in granting summary judgment in favor of Cannon. We do not agree.

It is certainly true that in directing traffic, Cannon was assisting Blue Cross employees. But we are persuaded, as we were in Beck, supra, that “directing traffic upon a public thoroughfare is a police function.” Id. at 184. It is always a police function; and this is true regardless of who is assisted in the process. Only police officers, firefighters, and school crossing guards may direct traffic. OCGA § 40-6-2. See OCGA § 40-1-1 (46) (“police officer” defined as officer authorized to direct or regulate traffic or make arrests for traffic violations). The activity of directing traffic is thus distinguished from other activities engaged in by police officers, such as security work, for which a question may exist as to whether an off-duty police officer is acting in his capacity as a police officer or as a private individual on behalf of his off-duty employer while performing specific tasks. See, e.g., Smith v. Holeman, 212 Ga. App. 158, 161 (4) (441 SE2d 487) (1994) (physical precedent only) (jury question whether police officer working as security guard for restaurant acted as police officer when making arrest); Welton v. Ga. Power Co., 189 Ga. App. 17, 19-20 (1) (375 SE2d 108) (1988) (summary judgment properly granted to private employer of off-duty police officer because evidence showed capacity in which officer working at time of arrest was that of police officer); Colonial Stores v. Holt, 118 Ga. App. 826 (166 SE2d 30) (1968) (jury question whether off-duty officer working for warehouse made arrest in capacity as police officer or as employee of warehouse).

Because Cannon was directing traffic, and this activity is necessarily a police function, it follows that he was acting in his capacity as a police officer at the time of the incident. He therefore was entitled to assert official immunity as a defense to a claim of negligent conduct, and the trial court did not err in granting summary judgment as to Cannon.

2. The relationship of Cannon and Blue Cross determines whether Blue Cross can be held liable as Cannon’s employer. Beck, supra at 183 (1). Generally, the employer can be held liable under the principle of respondeat superior if the employer had “the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract.” (Citations and punctuation omitted.) Beck, supra at 183 (1). But where the employee is a police officer, another element must be considered. If the police officer, while working for the private employer, “was performing public duties, not at the direction of the private master,” the employer will not be held liable. Id. Here, as in Beck, supra, Cannon’s admission in his answer that he was “acting as an employee of” the private employer is not dispositive. Id. at 184-185. Contrary to the Sommerfields’ contention, this was not an admission in judicio; it was merely an expression of Cannon’s belief as to a legal conclusion. “The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]” Aycock v. Calk, 228 Ga. App. 172, 174 (491 SE2d 383) (1997).

Decided November 9, 1998

Reconsideration denied November 20, 1998

Shulman & McBride, Warren S. Shulman, for appellants.

Lewis, Taylor & Todd, Alex L. Dixon, Hatcher, Stubbs, Land, Hollis & Rothschild, Gregory S. Ellington, James E. Humes II, for appellees.

Although Blue Cross determined the hours it required police assistance and the pay rate, no evidence was presented that Blue Cross controlled the manner or the method in which Cannon directed traffic. On the contrary, Cannon’s police training and experience dictated how he directed the traffic. Because the duties he was performing for Blue Cross were clearly public duties, any negligence on the part of Cannon is not attributable to Blue Cross. Beck, supra at 184-185. Since the only ground for recovery asserted against Blue Cross is its alleged vicarious liability for Cannon’s actions, it follows that no recovery can be had against Blue Cross. The trial court correctly granted summary judgment in favor of Blue Cross, as well.

Judgment affirmed.

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

       Their complaint also alleged a claim against Blue Cross for negligence in failing to provide for a signal light or other traffic control device, but it is apparent that the plaintiffs did not pursue this allegation and did not argue, it in opposing the motion for summary judgment. It was therefore abandoned.


author: Andrews, Chief Judge.

text:
    A98A1986.
    RICE v. HIGGINBOTHAM.
    (508 SE2d 736)
   Andrews, Chief Judge.

John J. Higginbotham, the named executor in the June 10, 1996 will of Sarah H. Hale, filed a petition to probate the will in solemn form. Doris H. Rice, an heir at law named in the petition, appeals from orders of the Probate Court striking her caveat to the probate of the will as untimely, and denying alternative motions to allow her to open default or to intervene in another caveat to the will filed by other interested parties.

1. First, we address Rice’s contention that she was not properly served with notice.

After the petition to probate Hale’s will was filed on September 29, 1997 in the Cobb County Probate Court, Rice, a resident of Utah, was served by publication on October 10, 17, 24 and 31, and served by mail, as provided in OCGA § 53-3-14. The published notice and the copy of the notice mailed to Rice on the date of the first publication notified her that all objections to the petition to probate the will must be filed on or before the 10:00 a.m. November 3, 1997 hearing. Rice admitted that she received the mailed notice on or about October 21,1997, about 13 days before the November 3 hearing. Rice further stated that on November 17, 1997, she sent a letter to the other named heirs at law citing a will made by Hale prior to 1994, alleging undue influence over Hale after that date, and stating that “I am filing a caveat against all wills made [by Hale] after 1994.” A copy of this letter was filed with the Probate Court on November 25, 1997. On or about December 5, 1997, Rice hired an attorney who filed a caveat to the probate of the will on her behalf on December 31, 1997.

Since Rice was an heir at law residing in Utah at a known address, she was properly served with notice by publication and by mail prior to the date on which objections were required to be filed pursuant to OCGA § 53-3-14. Foster v. Foster, 207 Ga. 519, 522 (63 SE2d 318) (1951). There is no merit to Rice’s contention that the Probate Court erred in failing to require personal service or other service requirements of the Civil Practice Act (CPA). As a court of record, the provisions of the CPA apply to the Probate Court except as provided in OCGA § 9-11-81. Greene v. Woodard, 198 Ga. App. 427, 428 (401 SE2d 617) (1991). Section 9-11-81 provides that the CPA “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law. . . .” Similarly, § 15-9-122 provides that “[u]nless provided to the contrary by Code Section 9-11-81, the general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state shall be applicable to and govern in civil cases in the probate courts.”

Although we conclude the proceedings for the probate of Hale’s will under OCGA § 53-3-1 et seq. were special statutory proceedings within the meaning of OCGA § 9-11-81 (see Taylor v. Donaldson, 227 Ga. 496-499 (181 SE2d 340) (1971)), § 53-3-14 expressly provided specific rules for service by publication and by mail upon nonresident heirs at law with known addresses. Section 53-3-14 (e) further provided in part that “[w]hen service by publication is ordered pursuant to this Code section in the matter of probate of a will in solemn form, compliance with the provisions of this Code section relating to a party to be notified . . . who resides outside the state . . . shall be equivalent to personal service of a copy of the petition, citation, and order for publication when that fact appears in the records of the court showing the persons notified and the character of the notice given.” Moreover, the service provisions of the CPA set forth in § 9-11-4 provide that “[t]he methods of service provided in this Code section may be used as alternative methods of service in proceedings in the probate courts and in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.” OCGA § 9-11-4 (j)- Accordingly, service on Rice in accordance with the provisions of OCGA § 53-3-14 was expressly allowed under the provisions of OCGA §§ 9-11-81 and 9-11-4 (j). See Utica Mutual Ins. Co. v. Mitchell, 227 Ga. App. 830, 832 (490 SE2d 489) (1997).

Rice’s further contention that service on her in accordance with OCGA § 53-3-14 violated the equal protection provisions of the United States Constitution was not raised or ruled upon in the trial court and presents nothing for appellate review. Zach, Inc. v. Fulton County, 226 Ga. App. 842, 843 (487 SE2d 602) (1997).

2. Even though service was proper, we agree with Rice that the Probate Court erred by striking her caveat filed on December 31, 1997 as untimely.

The citation published and mailed to Rice pursuant to OCGA § 53-3-14 stated that: “This is to notify you to appear before this Court on November 3, 1997, at 10:00 A.M., to show cause, if any there be, why said Will should not be probated in Solemn form and why Letters of Administration with Will Annexed should not be issued as prayed. You do not need to appear unless you wish to be heard concerning this matter. All objections to the petition must be in writing, setting forth the grounds of any such objections, and must be filed at or before the time stated in the citation.” After the citation was served but before a hearing on the petition to probate, the Probate Court issued an order of continuance on November 3, 1997 stating: “The within and foregoing case having regularly come on for a hearing this date; whereas, a caveat was filed on October 30,1997, by Joseph A. Carragher, Jr.; it is hereby ordered that the case be continued until further order of the Court.”

Generally, “[a] contest to a will consists in filing with the court before or at the probate hearing written allegations commonly called a caveat. . . .” Redfern, Wills, Ga. § 125 (5th ed.); Moore v. Dearing, 216 Ga. 596, 597 (118 SE2d 366) (1961). However, where the law governing proceedings in the Probate Court for probate in solemn form requires “that a citation be published, or published and mailed, and also be served personally upon one or more parties,” the Court may issue a citation which, instead of stating the time of hearing as the deadline for response, states that: “(1) Any party who is not ordered to be served personally must file with the court his response to the petition on or prior to a date certain, which shall be a date for which hearing could be set according to the laws governing the particular proceeding; and (2) Any party who is served personally must file with the court his response by the later of the date certain established as provided above or the tenth day after the service of the notice upon him.” OCGA § 15-9-86.1 (b), (e) (ll).

Decided November 2, 1998

Reconsideration denied November 20, 1998

Stephen F. Carley, for appellant.

Zweifel Law Firm, Gary D. Zweifel, Monica K. Gilroy, Moore, Ingram, Johnson & Steele, Robert D. Ingram, Melissa W. Gilbert, for appellee.

The citation served on Rice notified her that a hearing on the petition to probate was set for November 3, 1997, at 10:00 a.m., and that her written objections to the petition “must be filed at or before the time stated in the citation.” We find this notice insufficient to inform Rice pursuant to OCGA § 15-9-86.1 that November 3, 1997 was a date certain on or before which she was required to file her caveat. See Simon v. Bunch, 260 Ga. 201 (391 SE2d 648) (1990). Instead, the citation could be read as notice that written objections were required to be filed no later than the date and time at which the hearing occurs. Given that the hearing in this case was continued until further order of the Court, and the hearing had not occurred prior to the caveat filed by Rice on December 31, 1997, the caveat filed on that date was timely.

3. We need not address Rice’s additional enumerations of error.

4. Appellee’s motions to dismiss the appeal and for imposition of a penalty pursuant to Court of Appeals Rule 15 (b) are denied.

Judgment reversed.

Beasley and Ruffin, JJ, concur.

       This case involves the version of the Probate Code applicable to estates of decedents who died before January 1, 1998.

       This case applies former OCGA § 15-9-86.1 as it appeared prior to its 1998 amendments.


author: ELDRIDGE, Judge.

text:
    A98A2409.
    WATSON et al. v. THE STATE.
    (509 SE2d 87)
   ELDRIDGE, Judge.

James G. Watson and Brenda E Watson, husband and wife, appeal from a Muscogee County jury’s verdict finding them guilty as parties to the crime of two counts of violation of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”), OCGA § 16-14-1 et seq., stemming from their joint operation of two businesses, Jak’s Pawn Shop and Check Cashers, in Columbus, Georgia. We affirm their convictions.

As in many RICO actions, the record in this case is large, consisting of seven volumes of testimony and hundreds of pages of exhibits. Accordingly, we will address only those facts relevant to a resolution of the three enumerations of error raised on appeal.

In a light most favorable to the jury’s verdict, the pertinent evidence shows that the Watsons operated Jak’s Pawn Shop, not as a pawnbrokerage, but as a small loan company in violation of the Georgia Industrial Loan Act, OCGA § 7-3-1 et seq., which closely regulates and licenses “the business of making loans of $3,000.00 or less[.]” OCGA § 7-3-2. Further, the Watsons used the State’s criminal process as its collection agency on the loans.

In that regard, customers would obtain a cash loan and, contemporaneously, write Jak’s Pawn Shop a check for the full loan amount plus a twenty percent fee, which fee was purportedly classified as one percent interest and 19 percent “storage fee.” The check was left as collateral for the loan. However, at the same time that the customer handed the Watsons the check for the loan, an item of nominal value, such as a jar of dirt or a Bic lighter, would also be given to the Watsons as “pledged goods” pursuant to the pawnbroker regulatory scheme. See OCGA § 44-12-130 (5).

Thereafter, the Watsons would hold the customer’s check for four weeks, at which time the customer could either repay the loan and get the check back, or “renew” the loan for another four weeks by paying an additional twenty percent fee; this renewal process could be, and often was, repeated indefinitely.

If the loan customer did not repay or renew the loan, the Watsons would deposit the customer’s check in the bank. When the check was returned because of “insufficient funds” or “account closed,” the Watsons would swear out a warrant for the customer’s arrest pursuant to the bad check statute, OCGA § 16-9-20. The sworn affidavit in support of the arrest warrant for bad check alleged that the customer:

“[U]ttered and delivered to Jak’s, a check in the amount of [dollar amount] for merchandise knowing that said check would not be honored by drawee [the bank].”

However, (1) Jak’s Pawn Shop did not sell merchandise; (2) at the time the Watsons received the customer’s check as collateral for the loan, it was understood by all parties that “said check would not be honored by drawee” because there was no money in the checking account: otherwise, “they wouldn’t have to come in and get a loan”; and (3) at the time the Watsons received the check, “there was never any intention on Jak’s to present the check to the bank”; the check would only be presented to the bank upon occurrence of a future act, i.e., the customer’s failure to pay or renew.

Nevertheless, in order to avoid arrest and prosecution by the State for the offense of “bad check,” the customer would go to the Columbus Government Center in order to pay the check amount, plus fines and court costs. Held:

1. The Watsons first challenge the trial court’s denial of their motion for directed verdict. They contend that the evidence was insufficient to demonstrate perjury in connection with the swearing out of arrest warrants for the offense of bad check because: (a) the checks were, in fact, bad checks since they were returned for insufficient funds or account closed; (b) there was no evidence of intent to give false testimony in swearing out the warrants since the checks were, in fact, bad checks; and (c) the State failed to meet its burden to call two witnesses to testify that the Watsons committed perjury, as allegedly required by OCGA § 24-4-8.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Cantrell v. State, 230 Ga. App. 693, 694-695 (498 SE2d 90) (1998). “A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [the Watsons] no longer enjoy[ ] the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations omitted.) White v. State, 233 Ga. App. 24, 25-26 (503 SE2d 26) (1998).

(a) In essence, the Watsons’ initial contention is that, since a check was “not honored by the drawee” as specified by the bad check statute, there can be no peijury in swearing out a warrant for that offense. We do not agree.

In pertinent part, “[a] person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” OCGA § 16-9-20 (a).

Accordingly, and contrary to the Watsons’ assertions, whether or not a check ultimately is worthless when it is finally deposited misses the point. The offense of “bad check” occurs at time of the issuance of the check with knowledge that it will not be honored. State v. Brannon, 154 Ga. App. 285 (267 SE2d 888) (1980); Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980).

Here, in order to obtain an arrest warrant, the Watsons swore that the customer uttered and delivered to Jak’s a check for merchandise, knowing that the check would not be honored by the bank. Yet, the evidence shows that (1) the Watsons knew, at the time of its issuance, a check was not in exchange for merchandise; and (2) at the time of a check’s issuance, the customer and the Watsons never intended for the check to be deposited and honored by the bank, rendering impossible the requisite knowledge/intent under the statute.

Moreover, at the time of its delivery to the Watsons, a check was not a “bad check” within the meaning of the statute, OCGA § 16-9-20 (a), because such check was not given in exchange for present consideration. “[T]he requisite of‘present consideration’ may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.” (Citations and punctuation omitted; emphasis supplied.) McNeal v. State, 204 Ga. App. 791 (420 SE2d 653) (1992).

In this case, accepting a check in exchange for money with the intent to hold the check until the money is paid back, or finally depositing the check in retaliation for the failure to pay the money back, negates the exchange as a “single contemporaneous transaction” and, thus, as one for “present consideration.” As succinctly stated by the investigating officer, “the check itself is not totally for present consideration if it involved a future event taking place to determine whether, in fact, the check is to be negotiated as a check or whether it’s to be tossed in the trash.”

(b) The Watsons maintain that the evidence was insufficient to demonstrate the requisite intent to give false testimony so as to support a perjury charge. We do not agree.

In pertinent part, “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” OCGA § 16-10-70 (a). A charge of perjury may be predicated on an affidavit made to procure issuance of an arrest warrant. Williford v. State, 53 Ga. App. 334 (185 SE 611) (1936); see also Dee v. Sweet, 218 Ga. App. 18, 21 (460 SE2d 110) (1995). “[I]t is a jury question as to whether or not the facts sufficiently prove the requisite intent and thus, perjury.” (Citations and punctuation omitted.) West v. State, 228 Ga. App. 713, 716 (492 SE2d 576) (1997).

Here, based on the evidence recounted in Division 1 (a), as well as other evidence detailed in the statement of facts above, we find that a rational trier of fact could have found beyond a reasonable doubt that the affidavits in support of the arrest warrants for bad check contained false statements that were sworn to knowingly and willfully in order to force the customers of Jak’s Pawn Shop to repay their loans. The evidence sufficiently shows that the Watsons knew the checks were not bad, the loans were.

(c) The Watsons contend that the State failed to meet its burden to call two witnesses to testify that the Watsons swore falsely and committed perjury, as allegedly required by OCGA § 24-4-8. However, this contention demonstrates a fundamental misunderstanding of the statute.

OCGA § 24-4-8 states that “[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for . . . perjury,. . . the testimony of a single witness is not sufficient.” (Emphasis supplied.) Thus, in a prosecution for perjury, the two-witnesses rule outlined by the statute concerns fact witnesses. “[Tjhis rule applies only to proof of the fact alleged to have been falsely sworn to, and not to other ingredients which constitute the ofíenseü” (Emphasis supplied.) Bell v. State, 5 Ga. App. 701, 703 (63 SE 860) (1909).

In that regard, the State called several employees of Jak’s Pawn Shop to testify regarding the process of making small loans thinly disguised as “pawns,” as recounted in the statement of facts above. These witnesses testified that, at the Watsons’ direction, arrest warrants were obtained for the offense of bad check when the loans were not repaid in the agreed upon fashion, as recounted above. These witnesses testified as to the substance of the affidavits in support of the arrest warrants. The facts to which these witnesses testified were corroborated by extensive testimony from customers of Jak’s Pawn Shop who wrote checks as collateral for small loans and against whom arrest warrants were sworn out for the offense of bad check. In addition, hundreds of pages of documentary evidence corroborated the factual testimony of these witnesses, including arrest warrants, affidavits in support thereof, pawnbroker reports, and the checks, themselves.

Accordingly, the State amply complied with OCGA § 24-4-8 in the production of fact witnesses to testify regarding the facts alleged to have been falsely sworn to, i.e., the underlying acts the Watsons used as a basis to swear out the arrest warrants for the offense of bad check. Contrary to the assertions of the Watsons, the statute does not require the State to produce opinion witnesses to testify that the Watsons swore falsely and committed perjury. Such determination was solely a matter for the jury based on the evidence. West v. State, supra; Bell v. State, supra.

Enumeration of error number one is without merit.

2. The Watsons’ second enumeration of error is that the trial court failed to charge OCGA § 24-4-8, even though such charge was not requested. Nevertheless, [n]o such written request having been made below, there was no error.” Slaughter v. State, 227 Ga. App. 739, 741 (2) (490 SE2d 399) (1997); see also Johnson v. State, 258 Ga. 506, 508 (5) (371 SE2d 396) (1988).

Even if requested, the Watsons failed to show how they were harmed by the failure to charge OCGA § 24-4-8, except to cite such failure as “some explanation for the wacky verdict in this case.” However, we are not persuaded that “wackiness” is a sufficient description of harm to justify reversing a jury’s verdict. “Harm as well as error must be shown to warrant a reversal.” (Citations and punctuation omitted.) Whitt v. State, 215 Ga. App. 704, 710 (8) (452 SE2d 125) (1994). And considering the number of fact witnesses produced by the State as outlined in Division 1 (c), supra, the failure to charge OCGA § 24-4-8 cannot be considered a substantial error which was harmful as a matter of law. See OCGA § 5-5-24.

3. In their final enumeration of error, the Watsons contend that the trial court erred in denying their motion to suppress evidence gathered pursuant to search warrants issued for their residence and their businesses. The Watsons contend that (a) the warrants were improperly executed in that the officers seized items not listed in the warrants; and (b) the information contained in the warrants was insufficient to constitute probable cause for the warrants to issue. These contentions are meritless.

(a) “A lawful search is limited to that which is described in the warrant. The warrant shall particularly describe the things to be seized and the search must be limited to that matter described.” (Citations and punctuation omitted.) Grant v. State, 220 Ga. App. 604, 607 (469 SE2d 826) (1996). However, “when circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of the items he is seeking.” (Citations and punctuation omitted.) Id. at 608 (2).

Decided November 6, 1998

Reconsideration denied November 20, 1998

Michael E. Garner, for appellants.

We have reviewed the warrants in this case, as well as the returns generated after the execution of the warrants. We find that the items seized did not exceed the scope of the warrant. Further, as they did at the motion to suppress, the Watsons have failed to identify any specific, seized item that was either unlisted or outside the scope of the warrant. Compare Grant, supra at 607 (“the inventory list of the items seized and [agent] Olinger’s testimony established that the scope of the search exceeded the warrant[.]”). Further, the items listed in the warrant were limited to those involving named participants and businesses; thus, the items were described with the requisite particularity. Compare Grant, supra at 609. “The determination of which documents fell within this rubric would have been a matter of fact, and would have been an appropriate determination for the searching officers to make. [Cit.]” Id.

(b) The Watsons’ challenge to the affidavit supporting the search warrant also fails. “[A] magistrate faced with an application for a search warrant must decide whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. We, in reviewing the magistrate’s decision, must determine whether the magistrate had a substantial basis for concluding that probable cause existed to issue a search warrant.” (Citations and punctuation omitted.) Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). Here, the affidavit in support of the search warrant provides detailed information and corroboration regarding the unlawful practices of the Watsons in operating Jak’s Pawn Shop and Check Cashers as unlicensed small loan companies, which practices were uncovered during a financial audit conducted pursuant to an initially unrelated arson investigation. Reviewing the record, we hold that the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. Id.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

       In order to satisfy the requirements of OCGA § 16-14-3 (8), twenty-five predicate acts were named in support of the RICO violations: thirteen counts of perjury in connection with the swearing out of arrest warrants for the offense of “bad check”; one count of collection of extension of credit by extortionistic means, i.e., threats of violence; one count of first degree arson; one count of second degree arson; eight counts of false statements made in connection with the submission of pawnbroker reports pursuant to OCGA §§ 44-12-132; 44-12-133; and one count of unlawful possession of a firearm (dangerous weapon), i.e., a Steinmark II sub-machine gun. In addition, the Watsons were also indicted for two substantive counts of arson, first and second degree, for which counts they were found not guilty.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       The record shows that Jak’s Pawn Shop had no merchandise to store so as to justify a “storage fee.” Further, the Industrial Loan Act, OCGA § 7-3-14 (1), permits such a money lender, licensed under the Act, to charge an interest rate not exceeding ten percent. See also OCGA § 7-4-18 (a) authorizing a criminal penalty for charging excessive interest on money loans, i.e., interest in excess of five percent per month.

       Although the check was returned when a customer repaid the loan, the nominal “pledged goods” given at the time of the loan generally was not returned because it had no value.

       Herein, the Watsons do not contest their status as “parties to the crimes” for which they were convicted, since they operated and controlled Jak’s Pawn Shop, and its employees acted under their direction. See OCGA § 10-6-1. Accordingly, this enumeration of error is solely a challenge to the evidence in support of the substantive offenses.


author: McMurray, Presiding Judge.

text:
    A99A0291.
    WIMBERLY v. THE STATE.
    (508 SE2d 699)
    Decided October 28, 1998
    Reconsideration dismissed November 20, 1998.
    Henry J. Wimberly, Jr., pro se.

      Daniel J. Porter, District Attorney, for appellee.
   McMurray, Presiding Judge.

The record in this appeal shows that appellant was arrested for theft by deception and that he has been incarcerated since his arrest. By order entered on June 10, 1998, the trial court set bond at $50,000. On August 18, 1998, appellant filed a pro se notice of appeal, referencing his arrest for theft by deception and the bond having been set at “55 thousand dollars.”

If the trial court’s order in this case were directly appealable, appellant’s appeal would have to be dismissed as untimely, because the notice of appeal was not filed within 30 days after entry of the order setting bond. OCGA § 5-6-38 (a). However, the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) are required to obtain review of an order denying or setting pretrial bond. See, e.g., Howard v. State, 194 Ga. App. 857 (392 SE2d 562) (1990). Because of appellant’s failure to comply with those requisite interlocutory procedures, this direct appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A96A2191.
    NATIONAL AMERICAN INSURANCE COMPANY v. THORNTON.
    (509 SE2d 669)
   Blackburn, Judge.

In Nat. American Ins. Co. v. Thornton, 225 Ga. App. 883 (485 SE2d 530) (1997), we reversed the trial court’s grant of summary judgment to Michael Thornton in this legal malpractice action. We based such reversal on two grounds: (1) an issue of fact existed as to whether Thornton had actual notice of a pending trial for which he failed to show up, resulting in a default judgment entered against his client and (2) an issue of fact existed as to whether Thornton’s representation of his client following entry of the default judgment was deficient.

Decided November 20, 1998.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellee.

The Supreme Court granted certiorari and reversed our decision in Thornton v. Nat. American Ins. Co., 269 Ga. 518 (499 SE2d 894) (1998). However, the Supreme Court did so by addressing the notice issue only, finding that the notice of the pending trial given to Thornton was not reasonable and that no genuine issue of fact regarding actual notice existed. However, the Supreme Court did not address Thornton’s clearly deficient representation after entry of a default judgment against his client. For example, although Thornton was aware of the court’s ruling on October 6, 1993, he took no meaningful action for 29 days. In ignoring this fact, the Supreme Court is apparently concluding that no jury issue is raised by Thornton’s conduct.

It is this Court’s duty to enforce and uphold the decisions of our Supreme Court. However, it is a troubling duty in this case, because National American Insurance Company winds up with a default judgment against it, without either its attorney or the trial court, the only two actors in the play, being held accountable. Quite simply, justice has not been served.

Our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Pope, P. J., Beasley, Johnson, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur in the judgment only.


text:
    A98A1119.
    GLEASON v. HAGEMEISTER et al.
    (509 SE2d 704)
   McMurray, Presiding Judge.

This is a slip and fall case. Plaintiff Gleason, an outside salesman employed by a supplier of building materials, had visited the home construction site where he was injured on March 9, 1994, and again on March 10, 1994.

The first of these visits was to check on a delivery of building supplies, and on that occasion he entered and left the premises via the front entrance using a walk board that had “runners” the entire length of the board. The “runners” were apparently strips of wood placed perpendicular to the length of the board and nailed down so as to provide better traction in crossing the board.

On the following day, plaintiff returned to the construction site for a meeting concerning measurements for and selection of windows with a co-owner of the corporation building the house. On this occasion, the two walked to the back of the house in order to check the basement windows and then entered the house through the garage in order to check the windows on the main and upstairs level. After completing their task, the men proceeded to leave the house via the front entrance. At this stage of construction no permanent steps had been provided.

At the front entrance, plaintiff saw the end of a walk board at the same position as the board he had used the previous day, and he assumed it was the same board. Plaintiff saw a portion of the walk board extending into the house with two “runners” on it, one in the house and one just outside the house. The walk board was a two-inch by ten-inch board slanted at an angle of approximately forty-five degrees from level. The walk board entered the house from plaintiff’s right, and most of its length was concealed behind a wall. Plaintiff climbed onto the walk board, placing his foot between the two “runners” he saw so that it was supported by the lower one, then turned and took his first step without visually checking his footfall. His foot slipped, and plaintiff fell. After his fall, plaintiff could see that the walk board did not have “runners” for its entire length, but only the two which he had previously seen.

This action was filed against a framing subcontractor, Hagemeister, and his employees or agents, Bryner and Arlelia. The complaint included allegations that defendants breached duties of care to plaintiff to maintain the premises in a safe condition by placing the walk board from which plaintiff fell. The action against Arlelia was dismissed by plaintiff without prejudice.

The superior court granted summary judgment in favor of defendants as to the slip and fall issue. Plaintiff appeals. Held:

In order to recover, plaintiff must show that defendants had actual or constructive knowledge of the dangerous situation, and that plaintiff was without knowledge of the situation or, for some reason attributable to defendants, was prevented from discovering the situation. Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613). The superior court’s order indicates it concluded that plaintiff had failed to satisfy either portion of this two-part test.

While it is clear that defendants were aware of the walk board from the uncontroverted evidence showing that it was positioned at the front entrance by Bryner on Hagemeister’s instructions, the superior court determined that there is no evidence that the walk board created a dangerous situation. With this conclusion, we cannot agree. Plaintiff presented the affidavit of an architect and builder who opined that a walk board should not have been used because it was inherently dangerous and that any walk board used should have “runners” for the entire length of the board to prevent persons slipping, rather than merely having two runners at the top of the board. This evidence is consistent with plaintiff’s statements showing that he relied on an assumption that the board in place on the date of his fall was the same as was in place the previous day with “runners” along the entire length of the board. Plaintiff deposed that runners were placed on such a board “in case the board was wet that you would have footing all the way down.”

The second part that plaintiff must show, his lack of knowledge of the situation, is established by plaintiff’s evidence that the walk board in place on the date of his injury was different from the walk board in place the previous day in that it lacked “runners” along the entire length. This distinction is strangely overlooked in both defendants’ argument and the superior court order, both of which suggest that plaintiff had a familiarity with the walk board from which he fell due to crossing an apparently different walk board on the previous day. Yet, the evidence on this point is not in conflict as Hagemeister acknowledged that he did not know whether the walk board from which plaintiff fell was the same as had been in place the previous day. The evidence as to the different construction of the two walk boards is a critical matter in view of plaintiff’s evidence establishing the greater lack of safety of a walk board without “runners” and due to the fact that the walk board was wet due to rain when plaintiff fell. Plaintiff cannot be deemed to have had knowledge of the characteristics of the walk board from which he fell so long as his vision of it was blocked.

This brings us to that point in time after plaintiff climbed on the walk board and could have observed the full length of the board, but instead took that faithful first step without first observing his footfall. Since the superior court apparently overlooked plaintiff’s evidence that the walk board from which he fell was different from the one which was in place the previous day, it did not reach this issue but concluded that plaintiff’s prior use of supposedly the same walk board gave him ample opportunity to realize the lack of “runners.” Putting aside this incorrect factual predicate, we note that in the light of Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (493 SE2d 403), decided after the superior court ruling in the case sub judice, plaintiff’s failure to observe his footfall may not alone be deemed to be conclusive proof that plaintiff failed to exercise due care for his own safety. Thus, a jury question remains with regard to the significance of plaintiff’s failure to look before taking his first step.

Decided November 20, 1998.

Eastman & Apolinsky, Stephen D. Apolinsky, for appellant.

Downey & Cleveland, George L. Welborn, for appellees.

Nor is this, as suggested by defendants, a case where there is nothing more than proof of a fall. Compare Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103). Plaintiff’s evidence also shows fault on the part of defendants along with his own ignorance of the hazard. While defendants argue that plaintiff was unable to show why he fell, this disregards evidence that plaintiff slipped and fell due to the absence of “runners” along the walk board. Plaintiff deposed that when he stepped on the walk board, he stepped on a “runner,” but that his next step did not contact a “runner” as there were no more. This step which failed to contact a “runner” is when plaintiff slipped and fell.

Finally, defendants argue that plaintiff voluntarily assumed the risk of any hazard posed by the walk board since he was aware of alternative exits from the house. However, this argument incorrectly assumes that plaintiff had full knowledge of the hazard posed by the walk board which lacked “runners” along its entire length to prevent a slip and fall incident. However, plaintiff’s evidence shows that due to the identical placement of the walk boards, he assumed the walk board would be the same as he had crossed the previous day and was unaware that better traction as provided by the “runners” was absent. The superior court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.