author: Eldridge, Judge.

text:
    A02A1406, A02A1407.
    WILLIAMS v. MITCHELL COUNTY ELECTRIC MEMBERSHIP CORPORATION (two cases).
    (566 SE2d 356)
   Eldridge, Judge.

These are appeals from the grant of a judgment notwithstanding the verdict for the estate and in a wrongful death action for electrocution of a farm worker who tried to disengage a neutral wire from a cotton picker and came within ten feet of a high-voltage line. The trial court granted the motion, because the court contended that the High-voltage Safety Act was violated and that the deceased assumed the risk of injury. The jury rejected the affirmative defense of assumption of risk, and there was no evidence to show that the deceased had both objective and subjective appreciation of the danger; therefore, the trial court erred. However, the 1992 High-voltage Safety Act immunizes the power company’s negligence of omission and commission in placement and maintenance of such lines when there had been no notice given. Thus, the Act applied barring liability, because there had been no notice.

In 1949, the Mitchell County Electric Membership Corporation erected a high-voltage power line above ground along Strawberry Road. The power line consisted of two copper wires, strung one above the other; the lower was neutral and the higher was the phase wire. Each wire was a single strand of number six gauge copper wire, which was the smallest used by Mitchell EMC; however, beginning over 70 years ago, Mitchell EMC had gone to the general use of a thicker, braided aluminum wire to avoid stretching. Over time, a single strand of copper wire will stretch, causing greater sagging of the power lines. The poles were placed over 495 feet apart, causing a sag so that the top line was nineteen feet two inches instead of at least twenty-two feet above the ground, and the neutral was at twelve feet six inches instead of eighteen feet as required by the National Electric Safety Code. Mitchell EMC followed the NESC standards as testified to by Donnie Stanfill, engineering technician, and Alex Rex Hutto, operations superintendent, for Mitchell EMC. To avoid sagging, NESC required shorter spans, resulting in higher wires; the pole placement had been violated here. Thus, this site failed to meet the minimum NESC requirements at the time of death for pole placement, power line height, and maintenance.

Further, Mitchell EMC kept no records of the clearance over the field and did not measure the wire after it had fully stretched. It never had its employees inspect or maintain this span after the stringing of the wires in 1949. Mitchell EMC serves 14 rural counties with 4,800 miles of power lines. Mitchell EMC was aware that its lines crossed fields where farm equipment was operated. Other power companies in Georgia were aware that larger equipment was used in farming and began to raise the lines as early as the 1960s; however, Mitchell EMC did not do this.

On December 15, 1996, Donald Wyatt Williams, the deceased, drove a cotton picker, which was fifteen feet high, into the field from Strawberry Road and commenced picking cotton, four rows at a time, going west across the field toward the power lines; this required him to keep his attention on the rows at all times in order to keep the picker straight with the rows. Before he completed the first four rows, the neutral wire, sagging twelve feet from the ground, snagged on a light on the side of the picker’s collection basket. Williams climbed up onto the second step of the basket of the cotton picker and attempted to remove the neutral wire. The other operators saw Williams near the wires on top of the cotton picker but did not realize that he was in any danger until he was electrocuted. Williams did not appear to be aware of any danger. Looking at the power lines up close, it was not observable whether there was insulation on the wires. Williams appeared to have been shocked, lost his balance, and stretched out his arm to regain his balance when he was electrocuted.

The coroner found that Williams died from electrocution. Plaintiff’s expert witness testified that the line carried 7,200 volts. There was no evidence that anyone had given the required notice of work within ten feet of the high-voltage lines.

1. Plaintiff contends that the trial court erred in granting a j.n.o.v. for assumption of the risk. We agree.

The evidence established clearly and palpably that Mitchell EMC had negligently maintained its high-voltage lines too close to the ground and the poles too close together, and this was contrary to the NESC and the practice of both Mitchell EMC and other power companies. “A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment.” Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491-492 (1) (A) (260 SE2d 540) (1979). A power company must maintain its lines “at such a location as not to injure persons who might be reasonably expected to come in contact with such lines.” Carden v. Ga. Power Co., 231 Ga. 456-457 (202 SE2d 55) (1973).

For the defense of assumption of a known risk of danger, the defendant must prove not only that the plaintiff knew of the danger but also that the plaintiff appreciated such danger. North Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319-320 (2) (540 SE2d 271) (2000). A person cannot assume a risk about which he lacks knowledge and fails to appreciate. Roberts v. King, 102 Ga. App. 518, 521 (116 SE2d 885) (1960). Generally, assumption of the risk is a factual issue to be determined by a jury and not by the trial court. North Ga. Elec. Membership Corp. v. Webb, supra at 319; Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996). “As a general rule a person of ordinary intelligence, a layman in the field of electricity!,] is not credited with information concerning the dangerous character of wire placed in a position or strung at heights which indicate the wire is harmless.” Planters Elec. Membership Corp. v. Burke, 98 Ga. App. 380, 388 (1) (105 SE2d 787) (1958).

The Supreme Court has repeatedly made clear that the knowledge necessary for the defense of assumption of the risk means not only actual knowledge but also subjective knowledge of the danger.

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. As stated by Dean Prosser: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); accord Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999) (wilful or wanton conduct does not bar assumption of the risk defense). “[T]he standard to be applied in assessing an assumption of the risk defense is a subjective one, geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence who appears in the completely separate defense of contributory negligence.” (Punctuation and footnote omitted.) Muldovan v. McEachern, supra at 808 (2).

The record is devoid of even a scintilla of evidence that Williams had subjective knowledge of the danger and consciously encountered the danger of electrocution from these low hanging wires. The evidence is to the contrary in that the eyewitnesses had no subjective knowledge or appreciation of the risk and in their lay opinion, and the jury was authorized to find that neither did the deceased have subjective knowledge and appreciation of the risk. Therefore, the trial court erred in granting a j.n.o.v. on the grounds of assumption of the risk.

2. Plaintiff contends that the trial court erred in finding that the 1992 High-voltage Safety Act barred recovery, requiring the j.n.o.v. We are constrained to disagree, because the 1992 Act drastically changed the liability of power companies when no notice was given.

When the General Assembly passed Ga. L. 1960, pp. 181, 185 (OCGA § 46-3-30 et seq.), the Act had one purpose: to make it safer to work around “high-voltage lines.” The caption of the Act stated: “to provide the precautions to be taken in the proximity of high-voltage electric lines for the prevention of accidents.” Id. at 181. However, the caption never mentioned the limitation of liability or immunity, and in fact § 10 expressly stated that “[njothing in this Act shall be construed or applied as limiting or reducing the duty or degree of care now applicable to owners or operators of such high-voltage lines with respect to damage or loss to person or property.” Id. at 185. A condition precedent for a power company coming within the ambit of the 1960 Act was that the high-voltage lines be erected and maintained within the industry-recognized standards for high-voltage lines set forth in NESC. Where the power company either erected or maintained power lines that were not “ ‘otherwise properly located and maintained,’ ” failure to give notice of work within close proximity did not bar recovery. Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983); accord Savannah Elec. &c. Co. v. Holton, 127 Ga. App. 447, 450-452 (3) (193 SE2d 866) (1972).

In our view the power company’s liability for injury resulting from contact with an uninsulated high tension wire arises only when it is reasonable for the company to foresee that contact might be made with its uninsulated wire, i.e., that there is a reasonably foreseeable danger of harm to [the deceased] created by [the power company’s] wires.

(Citations and punctuation omitted.) Butler v. Ga. Power Co., 183 Ga. App. 144, 145 (358 SE2d 266) (1987).

A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment. Ordinary care is that reasonable care and caution which an ordinary cautious and prudent person would exercise under the same or similar circumstances. The scope of this duty is dependent on the attendant circumstances.

(Citations omitted.) Collins v. Altamaha Elec. Membership Corp., supra at 491-492 (1) (A); accord Leonardson v. Ga. Power Co., 210 Ga. App. 574, 575-576 (436 SE2d 690) (1993); Buckner v. Colquitt Elec. Membership Corp., 206 Ga. App. 69, 70 (424 SE2d 299) (1992). Thus, “[h]igh voltage lines must be maintained in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines.” (Citation and punctuation omitted.) Beamon v. Ga. Power Co., 199 Ga. App. 309, 311 (404 SE2d 463) (1991); accord Leonardson v. Ga. Power Co., supra at 576.

“The kinds of activities intended to be covered under the [1960] Act are not random or casual exposures to lines.” (Citation and punctuation omitted.) Southern Orchard Supply v. Boyer, 221 Ga. App. 626, 628 (472 SE2d 157) (1996); see also Johnson v. Richardson, 202 Ga. App. 470 (414 SE2d 698) (1992); Savannah Elec. &c. Co. v. Hol-ton, supra at 451. Thus, the 1960 Act applied to “those businesses, whether giant corporations or one-man concerns, whose usual activities would foreseeably bring their employees within proximity to . . . voltage lines.” Savannah Elec. &c. Co. v. Holton, supra at 451 (3); accord Southern Orchard Supply v. Boyer, supra at 628.

Under the 1960 Act, foreseeability of plaintiffs acts of work leading to injury from contact with high-voltage lines was uniquely a jury question. Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858, 859 (1) (380 SE2d 720) (1989) (two employees of commercial grain operation augering grain struck power pole); Habersham Elec. Membership Corp. v. Dalton, 170 Ga. App. 483 (317 SE2d 312) (1984) (farmer cleaning chicken feed with a hoe with an attached conduit pipe touched power line); Collins v. Altamaha Elec. Membership Corp., supra at 491 (farm worker struck guy wire of utility pole with farm equipment); Gilbert v. Ocmulgee Elec. Membership Corp., 100 Ga. App. 638 (112 SE2d 207) (1959) (farmer cleaning well with long pipe contacted power line).

However, Ga. L. 1992, pp. 2141, 2147 (OCGA § 46-3-30 et seq.) radically changed the liability of power companies for negligent erection or maintenance of high-voltage lines, which causes injury to anyone working in the area of the high-voltage power lines without notice. The caption of the 1992 Act stated some of the purposes to be: (1) “to change the provisions relating to the effect of such laws on duty or degree of care applicable to owners and operators of high-voltage lines”; and (2) “to provide limitations on liability.” Now, the 1992 Act, § 10 (OCGA § 46-3-39) of Ga. L. 1960, pp. 181,185, severely limited that which formerly read: “[njothing in this Act shall be construed or applied as limiting or reducing the duty or degree of care now applicable to owners ... of such high-voltage lines with respect to damage or loss to person or property.” Under the 1992 Act, OCGA § 46-3-39 (a) now limited subsection (b); (a) currently reads:

[any] owner or operator of high-voltage lines shall not be liable for damage or loss to person or property resulting from work within ten feet of high-voltage lines unless notice has been given as required by Code Section 46-3-34 and the owner or operator of the high-voltage line has failed to comply with the provisions of Code Section 46-3-33 [(a)].

(Emphasis supplied.) See Preston v. Ga. Power Co., 227 Ga. App. 449, 455 (2) (489 SE2d 573) (1997). Now, OCGA § 46-3-39 (b) (formerly § 10 of the 1960 Act) reads: “[except as provided in subsection (a) of this Code section, nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.” (Emphasis supplied.) See also Preston v. Ga. Power Co., supra at 454-456. The 1992 Act “specifically provided the owner-operator with immunity from liability if notice was not given as required by OCGA § 46-3-34. The 1992 amendment, therefore, effectively overruled Malvarez. See Preston v. Ga. Power Co., [supra at 454-456].” Santana v. Ga. Power Co., 269 Ga. 127, 128 (2) (498 SE2d 521) (1998). This was a radical legislative departure from the prior statute.

Decided May 24, 2002

Reconsideration denied June 7, 2002

Burge & Wettermark, Frank T. Burge, Frank C. Vann, for appellants.

McNatt, Greene & Thompson, Hugh B. McNatt, Richard S. Thompson, James C. Brim, Jr., John W. Bass, Sr., for appellee.

Further, now OCGA § 46-3-32 (3) applies to “the person actually-doing the work,” so that such worker must give notice if the owner, contractor, or subcontractor does not give notice. Under OCGA § 46-3-32 (6), the 1992 Act redefined “work” so broadly that even occasional or casual work came within the Act. Therefore, failure to give notice for anyone doing any work within ten feet of a power line, casual worker or not, confers immunity to the power company under the Act. Santana v. Ga. Power Co., supra at 128; Preston v. Ga. Power Co., supra at 454-456; see also generally Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 465 (511 SE2d 160) (1999) (employer who failed to give notice of worker injured by high-voltage line must indemnify power company despite workers’ compensation); Ga. Power Co. v. Franco Remodeling Co., 240 Ga. App. 771, 772 (2) (525 SE2d 152) (1999) (power company immune to liability without notice and is entitled to indemnity). Thus, the trial court did not err in granting a j.n.o.v. to Mitchell EMC in both cases.

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


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A02A0026.
    In the Interest of T. W., a child.
    (566 SE2d 405)
   Andrews, Presiding Judge.

The mother of T. W. appeals from the juvenile court’s order terminating her parental rights. After reviewing the record on appeal, we conclude there was clear and convincing evidence to support the juvenile court’s decision and affirm.

T. W., who was born July 3, 1994, was taken into custody by the Department of Family & Children Services (the Department) on July 15, 1997. On that date, police responded to a call from a relative about possible child abuse. The relative said she had seen the mother throw T. W. into the car, and the mother admitted at trial that she put the child in the car and left him there with the windows rolled up, even though it was the middle of July. The police officer found the mother to be very upset, shaking, and nervous and stated in his report that she appeared to be mentally unstable. The mother told the officer that T. W. was getting on her nerves and that she was having a mental breakdown. The relative told police that the mother had abused T. W. in the past, and the officer’s report states that the child had marks on his arms, legs, and back which T. W. said were “boo boo’s from his mom.” The relative also informed the officer that the mother used drugs and had threatened recently to kill the child.

T. W. was found to be deprived, and the Department placed him in a foster home. A reunification plan was developed under which the mother was required to take parenting classes, undergo a psychological evaluation and attend therapy sessions, and schedule regular visits with T. W.

For a period of time, the mother appeared to be meeting the goals of the reunification plan and was allowed unsupervised visits with T. W. But, after three unsupervised weekend visits, the mother called the Department caseworker, crying and hysterical. She told the caseworker that she had been lying to her and she had a significant drug problem and wanted to get treatment for it. The mother admitted at the hearing to problems with marijuana and crack cocaine use. At that point, the unsupervised visits were discontinued, and the reunification plan was amended to require that the mother remain drug free, complete a drug treatment program, and find stable employment and suitable housing.

The mother, who was in jail at the time of the hearing on the termination petition, acknowledged that she did not have a job or a suitable home for T. W. She testified that she had been in several drug treatment programs and this treatment was ongoing when she was taken into custody. She also admitted that she had not visited with her child since June 1999. The mother said she called the Department in September 1999 to schedule a meeting but she was arrested before the visitation could occur. The mother testified that she was taking classes in jail and had completed several programs such as life skills and parenting. She stated that she loved her son and wanted to be a better parent to him.

The psychologist who worked with the mother and child under the reunification plan testified that the mother came to weekly sessions for approximately three months. She stated that the sessions ended abruptly when the mother began missing the weekly visits. The psychologist asked her why she stopped coming, and the mother told her that she was using drugs and was having a difficult time. The psychologist testified that it was her opinion that “it would be virtually impossible for [the mother] to take the responsibility for that child.”

The guardian ad litem recommended termination of the mother’s parental rights, noting that she did not have stable housing or employment and there had been no successful completion of a drug treatment program.

The Department caseworker testified that T. W. had “significant” behavioral problems when taken into the Department’s custody. Since that time, he had improved considerably and was able to follow instructions and get along with his peers without fighting, hitting, or biting. Nevertheless, he was still in a special education class and attended weekly counseling sessions. The child was currently placed with the mother’s aunt and uncle and was “doing very well” with them.

The trial court granted the Department’s petition and terminated the mother’s parental rights. This appeal followed.

Under OCGA § 15-11-94 (a) (formerly OCGA § 15-11-81), the considerations for terminating parental rights involve a two-step process. The trial court must first determine “whether there is present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-94 (a). Such misconduct or inability may be proved by showing (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Further, in determining whether there is a lack of “proper parental care and control,” the court may consider several factors, including the . . . [past or present] “(p)hysical, mental, or emotional neglect of the child.” OCGA § 15-11-94 (b) (4) (B) (v). If the child is not in the custody of the parent in question, the lack of proper parental care and control can be demonstrated by showing that the parent, without justifiable cause, failed for a period of one year prior to the filing of the termination petition to “develop and maintain a parental bond with the child in a meaningful, supportive manner” [; to complete a court-ordered reunification plan;] or to support the child financially. OCGA § 15-11-94 (b) (4) (C) (i)-(iii). Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-94 (a).

(Citations and punctuation omitted.) In the Interest of L. E. C., 253 Ga. App. 82, 83 (558 SE2d 56) (2001).

On appeal, we view the evidence in a light most favorable to the juvenile court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of L. E. C., supra at 82.

1. There was clear and convincing evidence of present parental misconduct or inability under OCGA § 15-11-94 (a). As discussed above, the mother was in jail at the time of the termination hearing. She had no job and no home and could not presently care for T. W.

2. There was also clear and convincing evidence that the deprivation was likely to continue and likely to cause serious harm to T. W. OCGA § 15-11-94 (b) (4) (A) (iv). At the time of the hearing on the termination petition, December 22, 1999, T. W. had been in foster care since July 1997. The mother acknowledged at the hearing that she had been unable to keep a job, had no suitable home for T. W., and was in jail. In the almost two and a half years that T. W. had been in the Department’s custody, the mother had made no progress in reuniting with T. W.; rather, just the opposite. Before she was taken to jail, the mother acknowledged that she had been spending less and less time with T. W. Moreover, the mother did not give the court any indication of how long it would be before she was able to take care of the child. The mother promises that she will eventually find a job and a home and remain drug free. But, the decision as to a child’s future must rest on more than positive promises that are contrary to negative past fact. In the Interest of N. M. if., 252 Ga. App. 353, 357 (556 SE2d 454) (2001). Judging the credibility of the mother’s good intentions was a task for the juvenile court, and the past conduct of a parent properly may be considered by the court in determining whether conditions of deprivation are likely to continue. In the Interest of L. H., 236 Ga. App. 132, 136 (511 SE2d 253) (1999). In light of this and the other evidence discussed above, there was clear and convincing evidence that the pattern of deprivation was likely to continue and to cause harm to the child.

3. The mother argues that she was not given a full year in which to comply with new goals that were added to her reunification plan. This Court has rejected the argument that the Department is under a statutory duty to make reasonable efforts to reunite a family for at least one year after the case plan is formulated. In the Interest of C.W.S., 231 Ga. App. 444, 447 (498 SE2d 813) (1998); In the Interest of V.S., 230 Ga. App. 26, 30 (495 SE2d 142) (1997); In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). Here, the Department worked with the mother on her reunification plan for almost two years before filing the termination petition. There was no error.

Decided June 7, 2002.

Chandler R. Bridges, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Robert G. Nardone, for appellee.

4. If the first prong of the test is met, the trial court considers whether termination of the parental rights is in the best interest of the child. In looking at this second prong, the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., 201 Ga. App. 173, 175 (410 SE2d 368) (1991). The court may also look at the same factors which show parental inability to care for the child to support a finding that termination of parental rights would be in the child’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988). The same evidence showing parental misconduct may, and in this case does, satisfy this requirement. In the Interest of C. L. R., 232 Ga. App. 134, 138 (501 SE2d 296) (1998). In addition, the juvenile court could consider the testimony at the hearing that the child was attending regular counseling sessions, his behavioral problems were improving, and he was well and happy in foster care.

Accordingly, the child’s need for a stable home environment, the mother’s past and present unfitness to care for him, and her failure to show that she will be able to provide for him anytime in the near future were sufficient clear and convincing evidence that termination was also in the best interest of the child. In the Interest of J. M. C., supra; In the Interest of T. R. G, 162 Ga. App. 177 (290 SE2d 523) (1982).

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0221.
    OWENS v. DEPARTMENT OF HUMAN RESOURCES.
    (566 SE2d 403)
   Andrews, Presiding Judge.

Franklin D. Owens, Jr. appeals from the trial court’s order registering and enforcing a Florida child support order under the Uniform Interstate Family Support Act, OCGA § 19-11-100 et seq. (UIFSA), contending that the trial court incorrectly applied Florida law to the issue of dormancy and failed to properly consider his defense of laches.

Owens and his former wife were divorced in Florida on September 19, 1974. Pursuant to that judgment, Owens was ordered to pay child support of $30 per week for his then one and one-half-year-old daughter. Thereafter, Owens moved to Georgia. In 1975, a petition was filed in Georgia under the Uniform Reciprocal Enforcement of Support Act, OCGA § 19-11-40 et seq. (applicable to actions initiated prior to January 1, 1998), and an order was entered directing him to pay support of $30 per week.

In November 1999, the Department of Human Resources filed its petition under the UIFSA, pursuant to a request from Florida, seeking to register and enforce the original Florida judgment. Owens raised the defenses of laches and dormancy.

1. The trial court correctly concluded that, pursuant to the UIFSA, Florida law applied to this matter. Dept, of Human Resources v. Deason, 238 Ga. App. 853, 857 (1) (520 SE2d 712) (1999) (physical precedent). As provided in OCGA § 19-11-163 (a), the law of the issuing state, here Florida, “governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.” Subsection (b) provides that, in a proceeding for arrearages, “the statute of limitation under the laws of Georgia or of the issuing state, whichever is longer, applies.” (Emphasis supplied.)

While, in Georgia, judgments become dormant after seven years, with the possibility of revival within three years of becoming dormant, OCGA §§ 9-12-60 (a) (1) and 9-12-61, Florida has no statute of limitation for child support orders because actions to enforce support arrearages are treated as equitable in nature. Dept, of Human Resources, supra at 862, citing, e.g., Dean v. Dean, 665 S2d 244 (Fla. App. 1995); Fowhand v. Piper, 611 S2d 1308 (Fla. App. 1992). Further, Florida has no dormancy provisions applicable to child support orders. Id. Florida’s general statute of limitation provides actions must be brought within 20 years. Fla. Stat. Ann. § 95.11 (1) (1960); Dept, of Human Resources, supra at 858.

Decided June 7, 2002.

Kenneth R. Carswell, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, Betty N. O’Haire, for appellee.

Therefore, Florida’s statutes provide for a longer period, and the trial court properly applied Florida law.

2. The trial court concluded that, under Florida law, Owens had not carried his burden of proof regarding laches. We agree.

Under Florida law, without a showing of “extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages.” (Citation and punctuation omitted.) Fowhand, supra at 1310.

In order to establish the defense of laches in a child support action, Owens was required to show the obligee/mother had a valid claim; failure of the obligee/mother to assert the claim; obligor/father had no knowledge that the obligee/mother would assert the claim at any time; and prejudice to the obligor/father. Dean, supra at 247; Fowhand, supra at 1310.

A trial court’s conclusion regarding the peculiarly factual defense of laches is a matter within its discretion and will not be disturbed here absent abuse. Ajayi v. Williams, 248 Ga. App. 325, 330 (1) (d) (546 SE2d 537) (2001); Carmody v. Hill, 248 Ga. App. 437, 438 (546 SE2d 545) (2001).

Here, we cannot say that the trial court abused its discretion in rejecting Owens’ conclusory arguments concerning the delay in asserting the claim (particularly since he opposed the obligee/ mother’s efforts in 1981 to terminate his parental rights so the child could be adopted by her stepfather) and claimed prejudice to him caused by the delay.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       Owens has not complied with Court of Appeals Rule 27 (c) in that, although three enumerations of error are stated, the argument does not follow the order of the enumerations, is not logically linked to them, and is not divided and numbered accordingly. To the extent that we can discern the main arguments, we exercise our discretion to address them. Stagl v. Assurance Co. &c., 245 Ga. App. 8, 9 (1) (539 SE2d 173) (2000).

       The 1997 amendment to this statute making the defense of dormancy no longer applicable to child support orders applies prospectively only and does not apply to the arrearages at issue here. Brown v. Brown, 269 Ga. 724, 726 (2) (506 SE2d 108) (1998).


text:
    A02A0272.
    STEPHENS v. THE STATE.
    (569 SE2d 250)
   Andrews, Presiding Judge.

David Anderson Stephens appeals from the judgment entered after a jury found him guilty of one count of child molestation. Stephens brings numerous enumerations of error including a claim that the evidence was insufficient to support the judgment. For reasons which follow, we conclude there was no reversible error and affirm.

The evidence at trial, taken in the light most favorable to the jury’s verdict, was as follows. The victim, who was fourteen years of age at the time of trial, testified that her stepfather began molesting her at the age of ten and the abuse continued for approximately two years. The first incident occurred when she awoke early one morning after having a nightmare and started crying. Her mother had gone to work, and her stepfather told her to get into bed with him. She went back to sleep but awoke when she felt him touching the inside of her vagina. The victim said that after this initial encounter, Stephens began fondling her when he tucked her into bed at night. This happened when her mother was working late, sometimes once a week and sometimes more often.

A woman who chaperoned the victim at a church camp said the victim came to her crying and upset and said she wanted to talk to her. The victim told her that her stepfather would come into her room while she was sleeping and would touch her on her private parts. She said she always pretended she was asleep because she did not want to confront him.

A friend of the victim’s testified that when they were in the seventh grade, the victim told her that when her stepfather tucked her in at night, he would “touch her and finger her and stuff.” Another friend of the victim also stated that the victim told her that her stepfather began fondling her when she was ten.

The victim’s stepmother testified that the victim was now living with her and the victim’s father. At some point after the victim talked to the counselor at church camp, she told her stepmother about the incidents of abuse with her stepfather, stating that he would fondle her breasts and put his finger in her vagina. At that point, the victim and her mother met with the victim’s father and his wife and it was decided that the victim would live with her father.

An investigator testified that when Stephens was questioned about the charges, he admitted to rubbing lotion on the victim’s breast area and said that he may have touched her buttocks area. Stephens said that when he realized the victim was developing sexually, he discontinued rubbing lotion on her at night after her bath.

The victim’s mother testified and stated that she did not believe the victim when she described the incidents of abuse. When asked why, the mother replied, “Because I know my husband and I know how [my daughter] lies.”

Stephens testified in his own defense. He denied molesting his stepdaughter. When asked why she would lie, Stephens said that she did not like the strict rules in their household and wanted to live with her father and his wife because they were more lenient.

1. The evidence was sufficient to support the verdict.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the 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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). Here, the evidence was sufficient for the jury to find Stephens guilty of child molestation beyond a reasonable doubt.

2. Next, Stephens argues the trial court erred in not granting his motion for new trial because of alleged juror misconduct. The misconduct complained of was a discussion by the jurors of the sentence they believed Stephens would receive if convicted. One of the jurors testified at the hearing on the motion for new trial that the jury was deadlocked in their deliberations and one of the jurors said, “[W] ell, he’s just going to get probation anyway.” The juror stated that, based on this statement, she voted to convict Stephens. The juror acknowledged that she knew that the other juror had no legal background, but said she believed him because he had served on other juries.

Stephens argues that this statement by a juror was an extrajudicial gathering of law. We disagree. OCGA § 17-9-41 provides that affidavits of jurors may be taken after a trial in order to sustain their verdict but not to impeach it. There are exceptions to this rule when “extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations.” (Punctuation and footnote omitted.) Glover v. State, 274 Ga. 213, 215 (3) (552 SE2d 804) (2001). The comments complained of in this case do not fall within either of these exceptions. “[T]here was no discussion between the jury and a non-juror about the sentence and the extrajudicial information was not the result of a juror independently researching the law or gathering evidence.” (Footnotes omitted.) Id.

3. Stephens argues that the trial court erred in charging the jury on general intent when the crimes alleged were specific intent crimes. The charge complained of was as follows:

Intent is an essential element of any crime and must be proved by the State beyond a reasonable doubt. Intent may be shown in many ways provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from proven circumstances or by acts and conduct or it may be in your discretion inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion. Criminal intent does not mean an intention to violate the law or to violate a penal statute but means simply to intend to commit the act which is prohibited by a statute.

Stephens claims that it was error to give this charge because he was charged with a specific intent crime which required the State to prove he had committed the acts “with the intent to arouse and satisfy the sexual desires of [the] accused.”

We note that Stephens acknowledges he did not request a charge on specific intent and also that he cites to no authority for his claim that giving this charge was reversible error. Indeed, case law is to the contrary.

As the State points out, the jury was adequately instructed on the specific intent of the crime of child molestation. The court charged the jury on the statutory definition of child molestation and read the indictment to the jury two times. Moreover, the jury had the indictment with them in the jury room during deliberations. Therefore, the charge as a whole, including the trial court’s charge on general criminal intent, when considered together with the charges on the elements of an offense of specific intent and the State’s burden of proving each element of the offense, was not confusing and provided sufficient guidelines for the jury. Dixson v. State, 191 Ga. App. 410, 411 (382 SE2d 357) (1989). There was no reversible error.

4. Next, Stephens claims the trial court erred in failing to excuse a potential juror. The only evidence of this in the record is defense counsel’s statement that three prospective jurors were stricken for cause and defense counsel requested that a fourth juror be stricken after making a statement that she would not want to be judged by a juror with her mindset. Counsel then stated, ‘You granted me the opportunity to follow up with her on that, however, I declined.” Accordingly, it is apparent from the record that the trial court had not made a final ruling because counsel did not take the opportunity given to ask follow-up questions and then renew his motion to strike the prospective juror. Stephens’s failure to obtain a final ruling by the trial court waived this issue on appeal. See Nanthabouthdy v. State, 245 Ga. App. 456, 459 (538 SE2d 101) (2000).

5. Stephens next contends that the trial court erred in failing to conduct a hearing to determine whether he was eligible for an appeal bond. First, we note that when the court denied the motion for an appeal bond, defense counsel made no objection to the ruling and did not request any further hearing or findings of fact. Next, the court did hear evidence from one of Stephens’s witnesses as to whether Stephens should be granted bond. The witness, a minister, was asked whether he thought Stephens would flee the jurisdiction, be a significant threat to the safety of others, be a significant risk to commit other felonies, or intimidate witnesses or otherwise obstruct justice. After hearing this evidence, the court denied the motion for an appeal bond. Counsel did not request any further hearing or findings of fact and cites to no authority that he was entitled to any. There was no error.

6. In his last enumeration of error, Stephens argues the trial court erred in charging the jury by defining child molestation in a manner not alleged in the indictment. The specific portion of the charge complained of was: “A person commits the offense of child molestation when he or she does any immoral and indecent act in the presence of and upon the person of a child under the age of 16 years with the intent to arouse and satisfy the sexual desires of either the person or the child.” Stephens claims this was error because the act of child molestation alleged in the indictment was “with the intent to arouse and satisfy the sexual desires of said accused . . .” and made no mention of the child. Stephens contends that by reading the entire statutory definition of the charged offense, the jury was permitted to find him guilty in a manner not alleged in the indictment.

As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable. But, when the indictment specifies the commission of a crime by only one of several methods possible under the statute, it may be reversible error to charge the entire Code section if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a manner not alleged in the indictment. Bryant v. State, 249 Ga. App. 383, 384 (547 SE2d 721) (2001). Jury instructions must be read and considered as a whole however; and, when an entire statutory definition is given, we will not find error if the instructions sufficiently limit the jury’s consideration to the elements of the offense as charged in the indictment. Id.

Here, the trial court read the indictment to the jury twice and instructed the jury that the State must prove each element of the offense as charged in the bill of indictment beyond a reasonable doubt. In addition, the indictment was before the jury to aid them in their deliberations, and there was no evidence at trial that the crime was committed in any other manner than that alleged in the indictment. See Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995). Under these circumstances, “we will neither impute an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination.” (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (5) (a) (421 SE2d 560) (1992). Because the trial court properly limited the elements of the crimes to those charged in the indictment, we find no error. Bryant, supra at 384; Brown v. State, 243 Ga. App. 632, 634-635 (534 SE2d 98) (2000); Roberson v. State, 241 Ga. App. 226, 230 (526 SE2d 428) (1999); Cheeks v. State, 234 Ga. App. 446, 447 (507 SE2d 204) (1998).

Decided June 7, 2002.

Kam & Ebersbach, Brian D. Lewis, for appellant.

Peter J. Skandalakis, District Attorney, Randall W. Duncan, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps and Mikell, JJ., concur.


author: Miller, Judge.

text:
    A02A0309.
    THE STATE v. BRAUNECKER.
    (566 SE2d 409)
   Miller, Judge.

In this prosecution for DUI and other traffic violations, the State appeals the pre-trial suppression of the results of a breath test for alcohol. The trial court found that police denied defendant Braunecker the opportunity to have an independent test. The evidence clearly supports the trial court’s findings, and therefore we affirm.

Pursuant to OCGA § 40-6-392, police may have a chemical analysis done of a DUI suspect’s blood, urine, breath, or other bodily substance. This statute also provides the suspect with the right to have a “qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” OCGA § 40-6-392 (a) (3). “Law enforcement officers have a . . . duty not to refuse or fail to allow an accused to exercise the right to have an independent test.” (Footnote omitted.) Avant v. State, 251 Ga. App. 165, 166 (554 SE2d 194) (2001). Indeed, denying the defendant the right to this independent test, without justification, renders the State’s test results inadmissible. Chamberlain v. State, 246 Ga. App. 423, 425 (541 SE2d 64) (2000).

The trial court found that police unjustifiably denied Braunecker the right to an independent test. Our standard for reviewing this finding is clear:

In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Our Supreme Court has established three guiding principles for reviewing such rulings: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted; emphasis in original.) State v. Gibbons, 248 Ga. App. 859, 860 (1) (547 SE2d 679) (2001).

Under the applicable standard of review, this Court is required to construe the evidence in favor of the court’s ruling. So construed, the evidence showed that when arrested, Braunecker heard the portion of the implied consent warning stating that after submitting to the State’s test, he was entitled to an independent, additional test, but he was not advised as to when he needed to exercise that right. Within 30 minutes after administration of the breath test, he asked the officer who was taking his booking photo if he still had an opportunity to take an independent blood test. That officer replied that he did not, explaining that Braunecker needed to have asked the arresting officer earlier, and the booking photo officer made no effort to call anyone regarding Braunecker’s request. Braunecker believed the officer’s statement that it was too late to have an independent test. He was not given back his cell phone or told that he had a right to make any calls. The trial court found Braunecker’s unrefuted testimony to be credible. This testimony supports a finding that Brau-necker was denied his opportunity to have an independent test.

The State would have us focus on Braunecker’s failure to ask the arresting officer for an independent test and would have us ignore Braunecker’s request to the booking photo officer. In Covert v. State, 196 Ga. App. 679 (396 SE2d 596) (1990), this Court held that the breath test evidence should have been suppressed for failure to allow an independent test even though the request was made to the jailer, not the arresting officer. The State’s attempt to distinguish Covert on the ground that the defendant there had the jailer also testify is meaningless, as this merely goes to the weight and credibility of the evidence, matters for the trial court to decide. See Gibbons, supra, 248 Ga. App. at 860 (1). As there was evidence to sustain the trial court’s findings, we hold that the trial court did not err in granting Braunecker’s motion to suppress.

Decided June 7, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellant.

Head, Thomas, Webb & Willis, William C. Head, for appellee.

Judgment affirmed.

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


text:
    A02A0427.
    GRIFFIN v. STATE OF GEORGIA.
    (566 SE2d 414)
   Miller, Judge.

Davis Griffin appeals the drug forfeiture of a parcel of improved real property he owns, contending that the State failed to prove by a preponderance of the evidence that the property was used to facilitate a purchase or sale of a controlled substance. See last sentence of OCGA § 16-13-49 (e). As there was evidence to support the finding that the property was so used, we affirm.

1. “Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard should be given to the opportunity of the trial court to judge the credibility of the witnesses. The clearly erroneous test is the same as the any evidence rule.” (Citations and punctuation omitted.) Morris v. State of Ga., 234 Ga. App. 683 (507 SE2d 532) (1998). After the bench trial here, the trial court found “numerous incidents of drug dealing on the property.”

Viewed in the light most favorable to the trial court’s judgment (see Corsini v. State, 238 Ga. App. 383 (1) (519 SE2d 39) (1999)), the record shows that on October 21, 1999, an undercover agent went into Griffin’s premises and asked him where she could purchase drugs. Griffin responded, “[L]ook around, take your pick,” and then called an individual back to the kitchen and told him to close the door. The agent then bought drugs from the individual in Griffin’s presence. A week later, the agent again entered the premises and asked Griffin from whom she could get some drugs. Griffin gave her the name of an individual playing pool in the premises, though when she approached that individual, he told her he did not have any drugs. She then purchased drugs from another individual at the door to the premises. Finally, on January 6, 2000, a narcotics investigator entered the premises and observed drugs being openly sold in the presence of Griffin.

The record shows several other incidents of drug dealing on the property. The foregoing suffices, however, to demonstrate that the finding of the trial court, which was legally sufficient under Salem v. State of Ga., 232 Ga. App. 886, 890 (1) (503 SE2d 62) (1998), cannot be set aside as clearly erroneous under the “any evidence” rule.

Decided June 7, 2002

Louis K. Polonsky, for appellant.

Kermit N. McManus, District Attorney, Thurbert E. Baker, Attorney General, Thomas W. Hayes, Gary D. Bergman, for appellee.

2. Griffin also asserts error in the trial court’s failure to hold a post-trial hearing on whether the forfeiture violated the Eighth Amendment prohibition against the imposition of “excessive fines.” Griffin claims that such a hearing is mandated by Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994). Thorp mandates, however, only that when an excessiveness analysis is made, certain factors must be evaluated. Id. at 714-718 (3). Griffin did not raise the issue below, and thus we cannot consider it here. “[Defendant] did not raise any issue concerning excessiveness in the trial court and therefore has waived appellate review. We will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.” (Citations omitted.) Jones v. State of Ga., 249 Ga. App. 64, 67 (2) (547 SE2d 725) (2001).

Judgment affirmed.

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


author: MIKELL, Judge.

text:
    A02A0748.
    THE LIMITED, INC. et al. v. LEARNING CHILDBIRTH CENTER, INC.
    (566 SE2d 411)
   MIKELL, Judge.

The Limited, Inc., Bath & Body Works, Inc., and Express, LLC appeal the order of the trial court modifying a previously entered restitution order. The trial court required the Limited to pay a portion of the restitution proceeds it received as the victim of a criminal act to Learning Childbirth Center, Inc. (“LCC”), another victim of the same crime. On appeal, the Limited argues that the order is without any basis in law and violates public policy, that LCC’s recovery was barred under the equitable doctrine of laches, and that the court erred in awarding attorney fees to LCC. For reasons explained below, we reverse the trial court’s order.

It is undisputed that Lara Hensley set a fire at the Bath & Body Works retail store located at Southlake Mall in Morrow on October 3, 1999. Hensley, who was employed by Bath & Body Works, entered the store after hours, took $2,900 from the cash registers of Bath & Body Works and Express, and started the fire, which resulted in significant damage to both stores. LCC was located next door to Express and also sustained smoke and water damage as a result of the fire.

On June 14, 2000, Hensley pled guilty to second degree arson and theft by taking. She was sentenced under the First Offender Act and was required to pay restitution to the Limited in the amount of $140,000. Prior to Hensley’s sentencing, counsel for the Limited spoke with Hensley’s counsel and the prosecution regarding restitution. The Limited agreed that if Hensley paid partial restitution, it would ask the state to recommend that she not be incarcerated. As part of the negotiation, the Limited was required to establish damages of at least $140,000. At the time of the restitution hearing, the Limited’s known loss was actually $450,000.

There is evidence that LCC was aware of the criminal investigation of Hensley. LCC’s two owners admitted that they knew of the investigation because a Limited representative informed them of it on November 5, 1999, and from the media coverage of the fire. LCC did not participate in the criminal proceedings. Instead, LCC filed a civil action against the Limited in Fulton County State Court on August 3, 2000, alleging claims of negligent hiring, retention, supervision, and entrustment. After filing the civil suit and after Hensley paid the $140,000 restitution to the Limited, LCC filed a motion in Hensley’s criminal case to modify the restitution order. Following an evidentiary hearing, the trial judge who sentenced Hensley entered an order requiring the Limited to pay LCC $22,372, including $6,000 in attorney fees, out of the restitution payment the Limited had received from Hensley months earlier. It is from this order that the Limited appeals.

1. As a preliminary matter, we must address LCC’s argument that the Limited’s appeal is not properly before this Court. LCC contends that the order of the trial court modifying its previous restitution order is not a final judgment under OCGA § 5-6-34 (a) (1), and, therefore, the Limited was required to apply for a discretionary appeal. We disagree. “[E]ven though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits, and leaves the parties with no further recourse in the trial court.” (Citations and punctuation omitted.) Vurgess v. State of Ga., 187 Ga. App. 700 (1) (371 SE2d 191) (1988). See also R. J. Reyn olds Tobacco Co. v. Fischer, 207 Ga. App. 292, 293 (1) (427 SE2d 810) (1993). In the case sub judice, the trial court’s order satisfied all three of these requirements.

LCC’s argument that the order would not become final until 2010 upon the expiration of Hensley’s ten-year probated sentence is without merit. The law does not require that corresponding prison terms or probated sentences expire before restitution orders may be appealed. See Williams v. State, 247 Ga. App. 783 (545 SE2d 343) (2001). Furthermore, the modification order at issue had no impact on Hensley. In fact, she paid the restitution months before LCC filed the motion to modify the order of restitution, and she could not have been ordered to pay additional restitution. Harris v. State, 261 Ga. 859, 860-861 (2) (413 SE2d 439) (1992). Accordingly, we conclude that the court’s order was a final judgment, and this case is properly before us pursuant to OCGA § 5-6-34 (a) (1).

2. In its first enumerated error, the Limited argues that the trial court’s decision to take a portion of the restitution paid to one victim to give it to another is without any basis in law and violated public policy. We agree.

First, LCC has failed to cite any case law or statutory provision authorizing a trial court to revise a victim’s restitution payment in order to pay another victim, and our research reveals none. OCGA § 17-14-3 authorizes a trial court to order an offender to make restitution as a condition of relief ordered by the court. There are seven factors for a court to consider in determining the nature and amount of restitution:

(1) The present financial condition of the offender and his dependents; (2) The probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (6) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.

OCGA § 17-14-10; Jones v. State, 246 Ga. App. 857, 859 (2) (542 SE2d 584) (2000). A court retains jurisdiction to modify a restitution order “at any time before the expiration of the relief ordered.” OCGA § 17-14-12. “Relief” is defined in OCGA § 17-14-2 (6) as “any . . . probated sentence.” Therefore, according to the statute, the trial court retained jurisdiction to modify its restitution order until Hensley’s ten-year probated sentence expired. But the trial court’s authority to modify the order is not unlimited.

In Harris, supra, 261 Ga. at 860-861 (2), the Supreme Court held that a trial court could not modify a restitution order to increase the amount of restitution after the defendant had begun serving his sentence. In that case, the defendant pleaded guilty to theft by taking in connection with the theft of a rental car. As a term of probation, he was ordered to pay the victim $600 in restitution. The victim subsequently moved to modify the restitution order after the rental car company sued her for damages to the car. The trial court ordered the defendant to pay an additional $2,296.30 in restitution to the rental car company. Id. at 859. This Court affirmed the modification, but the Supreme Court reversed that decision. Id. at 861. Therefore, the court in the case sub judice could not have ordered Hensley to pay additional restitution to LCC. The issue is whether the trial court was authorized to take restitution that had been paid to one victim and give it to another victim who did not participate in the restitution hearing.

Public policy concerns weigh against giving the court such authority. As we noted above, Harris, supra, 261 Ga. at 861, reversed a decision of this Court in which we held that a trial court could modify its restitution order by increasing the amount of restitution a defendant had to pay after he had begun serving his sentence. Harris v. State, 200 Ga. App. 841 (410 SE2d 123) (1991). Presiding Judge Birdsong dissented to the opinion of this Court. He wisely cautioned that “victims [ ] who belatedly learn of this procedural vehicle of open-ended restitution will be applying in substantial numbers to the trial courts to reopen restitution hearings in cases long ago adjudicated to award them reimbursement for their ‘damages.’ ” Id. at 845 (Birdsong, P. J., dissenting). Judge Birdsong’s reasoning is instructive in the case sub judice. If trial courts are authorized to force victims who have received restitution payments to reimburse other victims, it is foreseeable that more victims will seek similar modification in cases that have already been adjudicated. Victims who have received restitution deserve a degree of finality.

Furthermore, the fact that LCC was damaged does not automatically entitle it to restitution. The Supreme Court recognized in Harris, supra, 261 Ga. at 860, that “restitution is not synonymous with civil damages. . . . We reject the . . . argument that restitution is a civil remedy for the victim, as the purpose of restitution is not solely to restore the crime victim to the financial status enjoyed before the crime was committed.” See also Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987). LCC could file a civil action against Hensley to recover for the damage to its store, as such an action would not be barred by the restitution order. Jones, supra at 861; OCGA § 17-14-11. In fact, as we noted above, LCC did file a separate civil action alleging claims of negligent hiring, supervision, retention, and entrustment against the Limited based on its employment of Hensley. Our reversal of the modification of the restitution order in Hensley’s criminal action has no bearing on that separate civil action.

Decided June 7, 2002.

Thomas & Kane, Stephen R. Kane, for appellants.

Ellis, Funk, Goldberg, Labovitz & Dokson, Robert N. Dokson, Power & Futch, Warren R. Power, LeAnne P. Cooper, Rebekah E. Meier, for appellee.

Accordingly, we conclude that the trial court’s modification of its restitution order had no basis in law and violated public policy concerns. Because the trial court exceeded its authority, the modification order must be reversed.

3. Based on our decision in Division 2, we need not reach the Limited’s remaining enumerated errors.

Judgment reversed.

Andrews, P. J., and Phipps, J., concur.

       The Limited is the parent company of Bath & Body Works and Express. Accordingly, the three parties may be collectively referred to as “the Limited.”

       The two retail stores were physically connected to each other.


author: Smith, Presiding Judge.

text:
    A02A0138.
    THE STATE v. PINCKNEY et al.
    (566 SE2d 325)
   Smith, Presiding Judge.

In this appeal in a prosecution for violation of the Georgia Controlled Substances Act, we must consider the effect of a police officer’s failure to maintain certification under the Georgia Peace Officer Standards and Training (POST) statute. Appellees Anthro Pinckney and Stephanie Stewart obtained an order from the trial court suppressing the contraband found in a search of Pinckney’s vehicle. They successfully argued to the trial court that one arresting officer’s failure to maintain current POST credentials rendered their arrests and the subsequent search of Pinckney’s automobile invalid. We disagree and reverse.

The parties stipulated that Greene County Sheriff’s Deputy Daryl Watts, who signed the incident report and two of the three arrest warrants, had failed to complete his training hours for POST certification, although he was not notified that his arrest powers were suspended until after this incident. During the evening of November 15, 1999, Watts and Greene County Sheriff’s Deputy Roland were in Watts’s patrol car and operating a radar installation on a bridge over Interstate 20. They clocked a gold or brown Honda Accord traveling 86 mph in a 70-mph zone and stopped the vehicle. Roland filled out the paperwork and wrote the ticket while Watts spoke with the driver of the car, identified as Pinckney. Watts obtained verbal consent to search the car and did so while Roland conversed with Pinckney. During that search, Watts detected a strong odor of marijuana in the rear seat and lowered the armrest. He then smelled a “stronger odor” of marijuana and observed a black trash bag behind the armrest in the trunk area. Upon tearing a small hole in the bag, he observed what he believed to be marijuana inside the bag. He then instructed Deputy Roland to handcuff the driver and passengers.

In ruling on the motion to suppress, the trial court placed great emphasis on the degree to which Deputy Roland, who was properly certified, participated in the arrest. Although Roland was equal in rank to Watts, was present throughout the arrest, prepared the paperwork, and took Pinckney into custody, the trial court concluded that he was acting under the direction of Watts throughout, which rendered the arrest improper despite Roland’s valid certification. The question of whether the presence of another officer authorizes an arrest by an officer without POST certification has not been directly addressed by this court. But we need not reach this issue, because the trial court erred in failing to consider whether Watts’s arrest was effective as a valid citizen’s arrest, despite his lack of POST certification.

OCGA § 35-8-17 (a) provides: “Any peace officer so employed who does not comply with this chapter shall not be authorized to exercise the powers of a law enforcement officer generally and particularly shall not be authorized to exercise the power of arrest.” The earlier version of this Code section, Ga. Code Ann. § 92A-2115, varied significantly in its wording. It provided: “Any Peace Officer so employed who does not comply with the provisions of this Act shall not be authorized to exercise the powers of law enforcement officers, generally, and particularly shall not be authorized to exercise the power of arrest, and any arrest so made shall be deemed illegal, and any proceeding under it null and void.” (Emphasis supplied.) See Rogers v. State, 133 Ga. App. 513 (211 SE2d 373) (1974) (criticizing broad language in Code section). It is presumed that, in changing the language of this Code section to delete this reference, the legislature intended to remove this consequence of the law. Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592-593 (2) (a) (436 SE2d 219) (1993). The legislature therefore did not intend that any arrest made by such an officer would be illegal, null, or void. The trial court therefore erred in concluding that Watts’s lack of POST certification rendered the arrest illegal.

Decided May 22, 2002

Reconsideration denied June 10,2002

Failure to comply with the Act renders the arrest unauthorized. However, such a characterization of an arrest as unauthorized is not equivalent to a determination, nor even necessarily implies, that the arrest is illegal. Instead, the non-complying peace officer is thereby relegated to the status of a private citizen who is also authorized to effect an arrest under certain circumstances.

(Citations and punctuation omitted.) Williams v. State, 171 Ga. App. 807, 809 (1) (321 SE2d 386) (1984).

OCGA § 17-4-60 provides, in pertinent part, that a private citizen may arrest an offender “if the offense is committed in his presence or within his immediate knowledge.” It does not distinguish between misdemeanor and felony offenses. The term “within his immediate knowledge” enables a private citizen to use any of his senses to obtain knowledge that an offense is being committed. A private citizen is not required to actually be present when a misdemeanor offense occurs.

(Footnotes and emphasis omitted.) Merneigh v. State, 242 Ga. App. 735, 739 (4) (531 SE2d 152) (2000).

Here, both officers observed Pinckney committing the misdemeanor offense of speeding, OCGA § 40-6-181 (b) (2). Gregg v. State, 253 Ga. App. 243, 244 (2) (a) (558 SE2d 729) (2001). Upon stopping Pinckney’s car and obtaining permission to search, Watts discovered a large quantity of marijuana and was authorized to arrest Pinckney for the felony offense committed in his presence and within his immediate knowledge. “Even if the consent [had not been] given, the misdemeanor committed in the officer’s presence authorized the search. [Cits.]” Exposito v. State, 191 Ga. App. 761, 763 (1) (382 SE2d 412) (1989). The trial court therefore erred in granting the motion to suppress.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellant.

Guy J. Notte, for appellees.

       Darren Dixon was a passenger in Pinckney’s vehicle and was arrested at the same time, but he is not a party to this appeal.

       Ga. L. 1977, p. 1180, § 3 reenacted this Code section and omitted this language.


author: SMITH, Presiding Judge.

text:
    A02A0076.
    JACKSON v. NORFOLK SOUTHERN RAILROAD.
    (566 SE2d 415)
   SMITH, Presiding Judge.

After Norfolk Southern Railroad closed a railroad crossing leading to his house, William Forrest Jackson, Jr. brought suit claiming interference by the railroad with his easement rights. Jackson sought to compel the railroad to replace the crossing it had removed. The case proceeded to trial, and a jury returned a verdict in Jackson’s favor. Subsequently, the trial court granted Norfolk Southern’s motion for judgment notwithstanding the verdict. In this appeal, Jackson claims that the record contains evidence to support each of the elements required to obtain an easement by prescription. We find otherwise and affirm.

This litigation arose after Norfolk Southern removed an existing crossing over its railroad tracks in an area in front of Jackson’s house in Johnson County. As part of a safety program, Norfolk Southern removed this particular crossing in October 1996, mainly because the railroad determined that the crossing was redundant and unnecessary since Jackson had alternative access to his home via another railroad crossing less than 400 feet north of his property. Jackson, who had purchased his property in 1987 from his grandfather’s estate, had made uninterrupted use of the long-established railroad crossing from 1987 until October 1996. Although Jackson still could access his property, he was forced to use a dirt road to do so.

Prior to trial, the issue was narrowed to the question of whether Jackson had acquired a prescriptive easement in the place where the railroad crossing once stood. To prevail on his easement claim, Jackson had to prove four elements: (1) that uninterrupted use of the crossing had continued for seven years or more; (2) that the width of the crossing did not exceed twenty feet; (3) that the width did not deviate from the number of feet originally appropriated; and (4) that Jackson kept the crossing open and in repair for seven uninterrupted years. See OCGA §§ 44-9-1; 44-9-54; 44-9-40 (a); Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 (420 SE2d 39) (1992). The jury decided that Jackson had prescriptive rights to the crossing.

In entering j.n.o.v. for the railroad, the trial court determined that the record lacked evidence of all the elements required to prove the existence of a prescriptive easement. The trial court found no evidence that the width of the crossing was less than twenty feet during the seven years immediately before the crossing was removed and no evidence that Jackson had performed any repairs or maintenance of the crossing or had otherwise given notice of his easement claim to Norfolk Southern. This appeal followed.

1. Jackson contends that the trial court erred in granting Norfolk Southern’s motion for j.n.o.v. He claims that the record contains evidence from which the jury could find that the easement claimed was 20 feet or less.

A motion for j.n.o.v. should be granted only when, despite being construed most favorably to the party prevailing at trial, the evidence demands a particular verdict. St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998). If the record contains any evidence to support the verdict, then the judgment entered thereon must be affirmed. Signsation, Inc. v. Harper, 218 Ga. App. 141, 142-143 (2) (460 SE2d 854) (1995).

Prescriptive rights must be strictly construed, and the party asserting such rights must satisfy each of the established criteria. Simmons v. Bearden, 234 Ga. App. 81, 82 (506 SE2d 220) (1998). Here, Jackson failed to establish the requisite width of the crossing during the period that he had purportedly acquired his prescriptive interest. Through the testimony of his relatives, Jackson presented evidence that the crossing may have been less than 20 feet wide at some earlier time. Both Jackson’s great-aunt and his father testified that it would have been a “tight squeeze” for two cars to travel simultaneously in opposite directions and that two trucks could not have passed. A forensic surveyor retained on behalf of Jackson relied upon an ancient map of indeterminate origin that had been in the family’s possession since 1939. This surveyor calculated the width of the crossing as 16 or 17 feet based on that map.

But all of the evidence pertaining to the width of the railroad crossing during the seven years preceding its removal showed the width to be between twenty-four and twenty-six feet. Even the forensic surveyor retained on behalf of Jackson admitted that when he had measured the asphalt of the crossing that was removed he calculated the width as 25 feet and his survey crew gauged it as 26 feet. According to the professional survey of the crossing after its closure, it measured 26 feet wide. James E. McDonald, the chairman of Norfolk Southern’s Grade Crossing Committee, testified that he was certain that this crossing had been 24 feet wide because he remembered driving his rail-modified Chevrolet Suburban over it while evaluating the crossing for removal. McDonald explained that his Suburban had added rail wheels for driving on the tracks and that he needed at least 24 feet of maneuvering space to transfer the vehicle from the roadway onto the rails. By Jackson’s own personal estimate, the crossing had been 24 or 25 feet wide. When asked, “[h]ere in court today, is it still your estimate that the crossing before it was removed, it was 24 to 26 feet?” Jackson responded, “Yes.”

Georgia law plainly states that the burden is on the prescriber to show that the width did not exceed the maximum authorized by law. See Bedingfield v. McCullough, 106 Ga. App. 759, 760 (128 SE2d 374) (1962). And where the width of a private way exceeds the permitted width, it cannot establish prescriptive rights. Church v. York, 212 Ga. 135, 136 (91 SE2d 9) (1956). Having reviewed the record, we find no evidence and Jackson has pointed to none that shows that the actual width of the crossing during the alleged prescriptive period did not exceed 20 feet. Moreover, even if the width of the crossing originally was less than 20 feet, the width appropriated for a prescriptive easement cannot subsequently change. Johns, supra at 594. The evidence did not demand a verdict in Jackson’s favor, and the trial court properly entered judgment for Norfolk Southern. See Meeks, supra.

Latham Homes Sanitation v. CSX Transp., 245 Ga. App. 573 (538 SE2d 107) (2000), relied upon by Jackson, is inapplicable here. There, the railroad held only an easement for its track, id. at 574, in contrast to the fee simple title here. Moreover, the alleged prescriptive easement in Latham included a private road extending a substantial distance across several parcels of property and the railroad crossing to a public highway. Id. at 575. The railroad contended that the private road exceeded the permitted width, but showed this only with respect to a single point 29 feet south of the crossing. We noted that “the mere existence of a few wider places will not defeat the right of the users.” Id. at 578. In contrast, the evidence here showed that the entire alleged prescriptive easement in dispute, the crossing, exceeded the width permitted by law.

2. Jackson contends that the trial court erred in granting Norfolk Southern’s motion for j.n.o.v. because the record contains evidence from which the jury could find that Norfolk Southern was given notice of the claimed easement. He claims that “the fact that the railroad admitted to listing this crossing in their records shows that they had notice.”

This argument conflates the concepts of knowledge and notice. Certainly, Norfolk Southern knew about the railroad crossing located on its own property. But, no evidence shows that Norfolk Southern had notice of an adverse claim of ownership by Jackson. In fact, when Jackson was asked, “ [d] id you feel like you were using [the crossing] though, with the permission of the railroad?” Jackson responded, “I’d have to say that I was using it with their permission because they knew I was crossing it to get to my house.” But mere use of a roadway is not enough to acquire prescriptive rights. Trammell v. Whetstone, 250 Ga. App. 503, 505-506 (1) (552 SE2d 485) (2001). “An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license. [Cit.]” Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993). Moreover, the record is devoid of any evidence that Jackson did any maintenance or repairs to the crossing during the seven-year prescriptive period. Compare Trammell, supra at 506 (1). Because Jackson did not establish all of the elements required for a prescriptive easement, the trial court properly entered judgment in favor of Norfolk Southern. See Lopez v. Walker, 250 Ga. App. 706, 708 (1) (551 SE2d 745) (2001).

Decided June 10, 2002.

Jackson & Lewis, Ralph N. Jackson, Lance G. Jones, for appellant.

Hall, Bloch, Garland & Meyer, John E. Hall TV, Mark E. Toth, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ., concur. Ellington, J, disqualified.


author: Pope, Presiding Judge.

text:
    A02A0237.
    POMERANTZ v. ATLANTA DERMATOLOGY & SURGERY, P.A.
    (566 SE2d 425)
   Pope, Presiding Judge.

A plaintiff is required to file an expert affidavit with a complaint under OCGA § 9-11-9.1 for a claim of professional negligence but not for a claim of ordinary negligence. Holloway v. Northside Hosp., 230 Ga. App. 371-372 (496 SE2d 510) (1998). In this case, David Pomer-antz argues that the trial court improperly determined that his suit against Atlanta Dermatology & Surgery, P.A., was a claim for professional negligence and, accordingly, dismissed the suit.

Pomerantz alleged that during a procedure to have stitches removed following an earlier mole biopsy, “Defendant’s employees seated Plaintiff upright on an examining table. Plaintiff lost consciousness and was allowed by Defendant’s employees to fall to the floor.” These are the only relevant factual allegations in the complaint. There is no allegation that it was apparent that Pomerantz might lose consciousness or that he warned anyone that he might.

In response to a motion by Atlanta Dermatology, the trial court dismissed the case on the ground that Pomerantz failed to file an expert affidavit in compliance with OCGA § 9-11-9.1. The court found “that the removal of stitches involved special expertise, and that the decision to have the patient sit upright on the examining table instead of having him lie down or otherwise restrained during this procedure involved professional judgment.”

Decided June 10, 2002.

Harry Rand, for appellant.

Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., Ashley E. Taylor, for appellee.

In cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. Compare Holloway, 230 Ga. App. at 372, with Brown v. Durden, 195 Ga. App. 340 (393 SE2d 450) (1990). This distinction is a question of law for the court. Drawdy v. Dept, of Transp., 228 Ga. App. 338, 339 (491 SE2d 521) (1997).

In this case, Pomerantz’s sole allegation of negligence addresses “the decision as to whether or not to support an upright patient who is having stitches removed and to prevent him from falling.” Without any indication that Pomerantz was going to lose consciousness or any warning by Pomerantz, the only possible negligence was the decision to seat Pomerantz on the table during the procedure. Such a decision is a matter of professional judgment because a lay person is not expected to know when such a procedure could cause a patient to lose consciousness. Cf. Strickland v. Hosp. Auth. of Albany &c., 241 Ga. App. 1, 3 (525 SE2d 724) (1999).

Pomerantz also argues that the person who removed his stitches may not have been a licensed health care professional and that therefore OCGA § 9-11-9.1 is not applicable. There is no allegation in the complaint regarding whether the person or persons who removed his stitches were licensed professionals. But, as we have held, the alleged negligent decision was a matter of professional judgment. Therefore, the complaint can be construed to allege that a professional either made the wrong decision or failed to direct nonprofessional members of the staff on how to handle Pomerantz. Furthermore, Pomerantz did not bring this issue to the attention of the trial court. Therefore we find no error.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.


text:
    A02A0319.
    BUICE v. BUICE.
    (566 SE2d 421)
   Andrews, Presiding Judge.

Pursuant to this Court’s grant of an interlocutory appeal, Allen Buice appeals from the trial court’s denial of his motion for summary judgment in this conversion action filed by Glenda Buice, executrix of the estate (Executrix) of Mrs. D. E. Buice (decedent). Executrix contends that Allen Buice improperly converted funds contained in several accounts at NationsBank.

In reviewing the grant or denial of summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

So viewed, the evidence was that Mrs. Buice and her husband executed wills in 1991. Mr. Buice died in 1994, and Mrs. Buice then lived with her son David and his wife Dorothy from January 1995 until July 1996 when David died. While living with David and Dorothy, Mrs. Buice had given Dorothy her power of attorney in March 1995 solely for the purpose of selling the family home. Dorothy was also on several bank accounts with Mrs. Buice while Mrs. Buice resided with her and David.

After David’s death, Mrs. Buice moved in with her son Allen Buice and his wife Sarah in July 1996. On August 22, 1996, Mrs. Buice and Allen went to the bank where Mrs. Buice closed her existing savings and checking accounts and opened a money market joint savings account and a joint checking account in her and Allen’s names. On September 30, Mrs. Buice executed a modification agreement adding Allen’s name to the certificate of deposit then in her and Dorothy’s names. On December 6, 1996, Mrs. Buice executed a second modification, removing Dorothy’s name from this CD. Also, on September 30, Mrs. Buice added Allen’s name to three other CDs. According to the bank manager, NationsBank provided its customers with a Deposit Agreement and Disclosures pamphlet which stated that joint accounts were owned by the parties listed on said accounts as joint tenants with right of survivorship and not as tenants in common and upon the death of either party listed on the accounts, the remaining deposits were payable to the surviving party.

The law in Georgia is clear that “sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). See also Godwin v. Johnson, 197 Ga. App. 829, 830 (1) (399 SE2d 581) (1990) (OCGA § 7-1-813 (a) applied equally to certificates of deposit).

(Emphasis supplied.) Jordan v. Stephens, 221 Ga. App. 8-9 (1) (470 SE2d 733) (1996).

The evidence relied upon by Executrix consists of alleged statements made by Mrs. Buice to the effect that she wanted her “property” to be distributed according to her will. These statements, however, were made in April 1997, several months after Mrs. Buice made the changes to the accounts involved. Executrix acknowledged that she had no idea of Mrs. Buice’s intent on the three dates when she made the changes at the bank, which are the critical dates. Willig v. Shelnutt, 224 Ga. App. 530, 532 (1) (480 SE2d 924) (1997). In fact, Executrix admitted that, until shortly before she filed this suit, she was unaware that the accounts were joint.

These statements are hearsay and do not come within any hearsay exception. Urban v. Lemley, 232 Ga. App. 259, 260 (1) (501 SE2d 529) (1998), citing Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224-225 (173 SE2d 691) (1970). Hearsay proving nothing, Executrix may not rely on these statements as the required clear and convincing evidence necessary to overcome the statutory presumption. Urban, supra; Willig, supra. Also, since the accounts at issue were opened in 1996, the 1991 will obviously makes no mention of them and therefore lends support to the statutory presumption. Parker v. Peavey, 198 Ga. App. 694, 696 (2) (403 SE2d 213) (1991); Nowlin v. Parker, 183 Ga. App. 137, 139 (358 SE2d 258) (1987); Collins v. Collins, 176 Ga. App. 79, 80 (335 SE2d 307) (1985).

Executrix also relies on the fact that Mrs. Buice had joint accounts with Dorothy while living with her, but only for the purpose of assisting Mrs. Buice in the sale of her house and conducting other personal business. Again, that Mrs. Buice previously had other arrangements with another relative proves nothing with regard to her intent in 1996 when she opened the joint accounts with Allen Buice. Willig, supra.

Allen Buice was entitled to summary judgment as to conversion of the funds.

Judgment reversed.

Phipps and Mikell, JJ., concur.

Decided June 10, 2002.

Renehan & Moody, Edward G. Renehan, David A. Webster, for appellant.

Vallerina F. Day, for appellee.

         Mr. Buice’s will left his estate to Mrs. Buice, and her will provided that, if Mr. Buice preceded her in death, Mrs. Buice’s estate would be divided equally among her sons Allen and Bobby, her daughter-in-law Dorothy, and her grandson Gallimore.

       Remaining below for resolution is Executrix’s claim regarding certain personalty of Mrs. Buice which was not included in this appeal.


author: Johnson, Presiding Judge.

text:
    A02A0585.
    FLOYD v. LOGISTICARE, INC.
    (566 SE2d 423)
   Johnson, Presiding Judge.

In 1997, Terri Floyd entered into a contract with Automated Dispatch Solutions, Inc. to provide transportation services for Medicaid patients. In 1998, she sued Automated Dispatch Solutions’ successor, Logisticare, Inc., for alleged breach of the contract. The lawsuit was removed from state court to federal district court, where Floyd voluntarily dismissed the action.

In 1999, Floyd again sued Logisticare for breach of contract. Logisticare counterclaimed for damages and attorney fees based on a clause in the contract which provides that the prevailing party in a dispute under the contract is entitled to such fees and related expenses. The trial court scheduled a peremptory calendar call for the case and notified Floyd and Logisticare to appear for the calendar call.

Floyd failed to appear at the calendar call, so the trial court dismissed her complaint for want of prosecution. Floyd’s attorney moved the court to reinstate the complaint. She claimed that she had not appeared for the call because she was covering a matter in a different court for another lawyer, and because there had been a glitch in her system for keeping track of court appearance conflicts.

The trial court held a hearing on Floyd’s motion to reinstate her complaint and on Logisticare’s still-pending claim for attorney fees and expenses. After the hearing, the court denied Floyd’s motion to reinstate and invited the parties to submit further briefs and affidavits on the issue of attorney fees. The court thereafter found that Logisticare is the prevailing party under the contract and awarded it attorney fees and expenses in the amount of $9,278. Floyd appeals.

1. Floyd contends that the trial court erred in denying her motion to reinstate her complaint. The contention is without merit.

Dismissal of an action for failure of the plaintiff to prosecute does not operate as an adjudication on the merits. Such a dismissal is discretionary and is subject to appellate review for abuse of discretion. Likewise, the denial of a motion to reinstate a dismissed action is discretionary.

Floyd has not shown that the trial court abused its discretion. She makes no claim that she did not receive notice of the calendar call, only that her own conflict notification system failed. It was Floyd’s responsibility to appear at the call or contact the court to clarify the status of the case. Because she failed to fulfill her responsibility, the trial court had no obligation to reinstate her complaint and did not abuse its discretion in refusing to do so. The trial court’s denial of the motion to reinstate Floyd’s claim is therefore affirmed.

2. However, the trial court did err in awarding attorney fees to Logisticare. The claim for attorney fees and the trial court’s award were based on a clause in the contract which provides: “The prevailing party in any proceeding to resolve dispute or to enforce its rights under this Agreement shall be entitled to receive its reasonable attorney’s fees and related out-of-pocket costs and expenses related to such proceeding in addition to any other relief it may be awarded.”

Contrary to the finding of the trial court, Logisticare is not yet the prevailing party simply because Floyd’s complaint has been dismissed, without prejudice, for lack of prosecution. The Supreme Court of Georgia has considered the meaning of the phrase “prevailing party” as used in various cases for purposes of recovering attorney fees and has found that the phrase requires some actual relief on the merits of a claim.

Common to all the cases cited is the requirement that a claim for attorney fees be based on obtaining at least some of the relief sought. A succinct but thorough expression of that requirement was stated by the U. S. Supreme Court in establishing a standard for determining whether a plaintiff is a prevailing party for the purpose of seeking attorney fees in an action pursuant to 42 USCA § 1983: a plaintiff prevails when actual relief on the merits materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff.

In the instant case, Logisticare has obtained no actual relief on the merits of either Floyd’s claim or its counterclaim for damages. Rather, all that has happened is that Floyd’s claim has been dismissed without prejudice, which of course means that there has been no adjudication on the merits. Because Logisticare has not obtained relief on the merits, it is. not the prevailing party, and therefore it is not entitled to attorney fees pursuant to the contract. The trial court’s award of attorney fees and expenses is therefore reversed.

Decided June 10, 2002.

Janise L. Miller, for appellant.

Browning & Tanksley, Jerry A. Landers, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, C. J, and Miller, J., concur.

       OCGA § 9-11-41 (b).

        Broadwater v. City of Danville, 184 Ga. App. 886, 888 (2) (363 SE2d 316) (1987).

        In re Anderson, 171 Ga. App. 918, 919 (2) (321 SE2d 417) (1984).

        Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997).

        In re Anderson, supra.

       (Citations omitted.) Magnetic Resonance Plus v. Imaging Systems Intl., 273 Ga. 525, 529 (3) (543 SE2d 32) (2001).

       See Ector, supra.

       See Morris v. Morris, 222 Ga. App. 617, 618 (1) (475 SE2d 676) (1996) (voluntary dismissal of action was not an adjudication of the merits, so defendant was not a prevailing party entitled to attorney fees).


author: Blackburn, Chief Judge.

text:
    A02A0848.
    THE STATE v. FOSTER.
    (566 SE2d 418)
   Blackburn, Chief Judge.

In this DUI prosecution, the State appeals the trial court’s grant of Michael Foster’s motion to suppress the results of certain field sobriety tests, contending that Foster was not under arrest at the time the tests were administered and, as such, was not entitled to be read his Miranda rights beforehand. For the reasons set forth below, we reverse.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie, Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

The record shows that, on the evening of November 12, 1999, Officer W. G. Kinney was working at a sports bar named Barnacle’s as a security guard. Although officially off duty, Officer Kinney was dressed in his full uniform and a badge. While Officer Kinney was stationed at the door, Foster and a friend walked by him shortly after they had been asked to leave by bar management. Noticing that the men were visibly drunk, Officer Kinney advised them not to drive, and a cab was called. When the cab arrived, however, Foster and his friend refused to take it, and they explained that the friend’s wife was on her way to pick them up from the bar.

While waiting for their ride, Foster and his friend asked Officer Kinney if they could wait in the friend’s car. Officer Kinney agreed and instructed the men to sit in the backseat of the car only. At that point, Officer Kinney admonished Foster that he would arrest him for DUI if he drove the car anywhere. Shortly thereafter, Officer Kinney saw Foster and his friend .climb into the front seat of the car, and Foster drove the car away. Officer Kinney then got into his police car, pursued Foster, and found him parked behind a building.

By the time Officer Kinney arrived, Foster and his friend had returned to the backseat of the car. When Officer Kinney approached the car, Foster stated that he had not been driving. Officer Kinney then told Foster that he had seen him driving and asked him to step out of the car. At that time, Foster repeated that he had not been driving and that he and his friend had simply been waiting for his friend’s wife. Officer Kinney then asked Foster to perform certain field sobriety tests. When this request was made, Officer Kinney used no threats or force of any kind. Foster agreed to the field sobriety tests and failed them. It is undisputed that Officer Kinney did not read Foster’s Miranda rights before these tests.

Once the field sobriety tests were completed, Officer Kinney informed Foster that he was under arrest, read the implied consent notice to him, and took him to the station where he agreed to take an Intoxilyzer 5000 test. The results of the Intoxilyzer test showed that Foster’s blood alcohol level was above the legal limit. Foster scored 0.105 on each of two tests.

Subsequent to his arrest, Foster made a motion to suppress the field sobriety tests, arguing that: (1) he was in custody when the tests were performed and (2) he was not read his Miranda rights prior to the administration of the tests. The trial court granted this motion to suppress, and the State appeals.

Under Georgia law, Miranda warnings must precede a request to perform a field sobriety test only when the suspect is “in custody.” Price v. State

For the proscriptions of [Miranda, supra], to apply, a person must have been taken into custody or otherwise deprived of his freedom of action in some significant way. In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. • Since it is undisputed that defendant in the case sub judice had not been formally arrested at the time Officer [Kinney] asked defendant to perform field sobriety tests or to submit to a breath test, the proper inquiry becomes whether he had been restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest.

Decided June 10, 2002.

(Citations and punctuation omitted.) Sisson v. State.

In this case, contrary to Foster’s arguments, he had not been restrained to the degree associated with a formal arrest at the time he was asked to submit to field sobriety testing. Although Officer Kinney admonished him at the bar that he would be arrested if he drove under the influence, Officer Kinney did not actually arrest Foster until after the field sobriety tests had been completed. Officer Kinney’s admonishment to Foster at the bar did not automatically turn the subsequent stop into a custody situation from the moment that it occurred. Such a warning, standing alone, does not create an appropriate basis upon which a reasonable person would believe he was under arrest the moment that he is stopped sometime thereafter.

In our view, defendant was not in the custody of the police as that phrase has been construed. Nor was he compelled by force or threats to perform roadside field sobriety tests in violation of his right against self-incrimination as guaranteed by Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution and OCGA § 24-9-20. Thus, any recitation of individual rights guaranteed by the federal and Georgia constitutions was not necessary at the time defendant was requested to perform the field sobriety tests.

(Citation and punctuation omitted.) Sisson, supra.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

Gerald N Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellant.

Mickey G. Roberts, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       Foster does not appeal the admission of the results of the Intoxilyzer 5000 test, and we do not consider this issue here.

        Price v. State, 269 Ga. 222, 224 (3) (498 SE2d 262) (1998).

        Sisson v. State, 232 Ga. App. 61, 67 (4) (499 SE2d 422) (1998).