text:
    A96A2265.
    MEARS et al. v. GULFSTREAM AEROSPACE CORPORATION et al.
    (484 SE2d 659)
   Ruffin, Judge.

Sheila Mears and her husband Luther brought this action for intentional infliction of emotional distress and loss of consortium against Gulfstream Aerospace Corporation (“Gulfstream”), Sheila Mears’ former employer, and Harold Smith, her former supervisor in the accounts receivable department at Gulfstream. The trial court granted summary judgment to Gulfstream and Smith, and the Mears appealed. For reasons which follow, we affirm in part and reverse in part.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

The Mears claim that during Mrs. Mears’ employment at Gulf-stream from 1982 until 1993, Smith subjected her to constant abuse, stress, and harassment rising to the level of intentional Infliction of emotional distress. They further claim that Gulfstream tortiously participated in this conduct because it knew about Smith’s actions but took insufficient steps to remedy the situation.

As described by Mrs. Mears, the abuse included a running joke between Smith and another worker that Mrs. Mears secured her job at Gulfstream by pulling her dress above her knee, fluttering her eyelashes, and flirting during her interview, all of which she denied. Mrs. Mears also testified that Smith and another worker commented after the birth of her second son that a design on her blouse appeared to “lead[] to the Milky Way.” In addition, Smith referred to Mrs. Mears as “small chested” and laughed when co-workers placed a shoulder pad cut out of a shirt on her desk in an alleged reference to breast implants. Mrs. Mears further claims that Smith made degrading remarks about the fact that she had undergone a hysterectomy.

According to Mrs. Mears, Smith often made off-color remarks at the office, some of which were directed at her, and suggested at one point that if Mrs. Mears had worn a certain “little purple dress” to a meeting, they would have achieved better results. Smith also told Mrs. Mears on one occasion while walking up stairs that a dress “fit[] [her] body good” and that she should “stand up and turn around and let [him] see how [it] look[ed] on [her].” Finally, Mrs. Mears testified that Smith would put his elbow on her shoulder when looking over her desk to review her work.

Despite these claimed incidents, Mrs. Mears admitted that she and Smith worked fairly well together until approximately October 1992, when Smith accused her of being under the influence of drugs and asked that she take a drug test. Mrs. Mears took the test, returned to her office, and questioned Smith as to why he thought she had taken drugs. In response, Smith allegedly became enraged and beat his fist on a desk. Although Mrs. Mears tested positive for a foreign substance, she was told by a Gulfstream nurse that the positive reading resulted from nerve medication she had taken the previous week. In accordance with Gulfstream policies, Mrs. Mears visited a drug counselor, who informed her that she did not have a problem with drugs but should learn to stand up to Smith.

After the drug testing incident, the working relationship between Mrs. Mears and Smith disintegrated. Mrs. Mears approached several individuals at Gulfstream about the problems she was having with Smith and ultimately spoke with Linda Hildebrandt in the personnel department. Hildebrandt expressed concern for Mrs. Mears’ well-being and told her that Gulfstream would take care of the situation. Mrs. Mears and Hildebrandt then met with Smith’s superior, Bill Skinner, who was also concerned about Mrs. Mears and told her to take time off from work if she was under too much stress. In late November 1992, Gulfstream moved Mrs. Mears into a position in the pricing department at the same salary and “skill code” as her accounts receivable position. Gulf-stream also moved Smith out of the accounts receivable department. Mrs. Mears did not interact with Smith after she left the accounts receivable department.

Mrs. Mears worked in the pricing department until May 1993, when she was placed on short-term disability for stress and depression. Mrs. Mears’ physician subsequently released her to return to Gulfstream on June 1, 1993, but she worked only one day before taking medical leave again. In October 1993, Gulfstream informed Mrs. Mears that her short-term disability benefits were about to expire and that, pursuant to Gulfstream policy, she should return to work to avoid termination. Gulfstream also advised Mrs. Mears that if she did not return to work, she would then be eligible to apply for long-term disability benefits. Mrs. Mears did not return to Gulfstream and was terminated in November 1993. Mrs. Mears subsequently was approved for long-term disability benefits retroactive to November 1993.

The Mears filed this suit in September 1995. Smith and Gulf-stream moved jointly for summary judgment, arguing that the two-year statute of limitation had expired on Sheila Mears’ claim and that, as a matter of law, no conduct rising to the level of intentional infliction of emotional distress had occurred. The trial court agreed, granting Smith and Gulfstream summary judgment on all claims.

1. In their first enumeration, the Mears argue that the trial court improperly found that the statute of limitation barred Sheila Mears’ claim for intentional infliction of emotional distress. According to the Mears, the conduct giving rise to this action was continuous in nature and culminated in Sheila Mears’ eventual discharge in November 1993, within two years of this suit. We disagree.

“The test to be applied in determining when the statute of limitations begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage then may be.” (Citations and punctuation omitted.) Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 622 (347 SE2d 670) (1986) (physical precedent only); see also Fox v. Ravinia Club, 202 Ga. App. 260, 262 (414 SE2d 243) (1991), quoting Adams.

A claim for intentional infliction of emotional distress has four elements: (1) intentional or reckless conduct (2) that is extreme and outrageous and (3) causes emotional distress (4) that is severe. Trim ble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996). Accordingly, damage in the form of severe emotional distress must be sustained before the cause of action accrues. Pursuant to the test set forth in Adams, therefore, the statute of limitation for this tort begins to run when the alleged conduct culminates in damage.

Although we cannot clearly ascertain the date on which Mrs. Mears first claims to have experienced emotional distress, the record reveals that stress and depression purportedly stemming from Smith’s conduct prevented her from returning to Gulfstream after June 1, 1993. Furthermore, the record reveals that none of Smith’s allegedly abusive acts continued during the two years prior to this suit. To the contrary, Sheila Mears had no contact with Smith after she left the accounts receivable department in November 1992, and thus was “no longer subjected to the conduct for which she now seeks remedy.” Adams, supra at 622. Consequently, we find that Mrs. Mears’ cause of action for intentional infliction of emotional distress accrued when Smith’s conduct allegedly culminated in damage, which occurred no later than June 1, 1993. See Fox, supra; Hickey v. Askren, 198 Ga. App. 718, 719 (1) (403 SE2d 225) (1991).

In an effort to avoid summary judgment, the Mears claim that Mrs. Mears’ termination in November 1993 constituted the “ultimate act of inflicting emotional distress” and brings her claim within the limitation period. We disagree. The record reveals that, pursuant to Gulfstream policy, Mrs. Mears was terminated only after her short-term disability benefits expired and she was unable to return to work. At that point, Mrs. Mears became eligible for long-term disability, for which she subsequently applied and qualified. We find that Gulfstream’s decision to terminate Mrs. Mears in this situation is not the type of “outrageous conduct” necessary to support a claim for intentional infliction of emotional distress. See Fox, supra.

Mrs. Mears’ claim for intentional infliction of emotional distress, filed in September 1995, was commenced well outside of the two-year period of limitation for personal injuries. OCGA § 9-3-33. Accordingly, the trial court properly granted summary judgment on this claim.

2. In their second enumeration, the Mears argue that the trial court improperly granted Smith and Gulfstream summary judgment on Mr. Mears’ derivative claim for loss of consortium, which stems from his wife’s personal injury claim. See Elwell v. Haney, 169 Ga. App. 481 (313 SE2d 499) (1984). Although the statute of limitation defeated Sheila Mears’ claim for intentional infliction of emotional distress, Luther Mears can recover for loss of consortium if his wife could have recovered absent the statute of limitation bar. Id.

(a) Recognizing that a four-year limitation period governs the loss of consortium claim, see OCGA § 9-3-33, the trial court con-eluded that the only allegedly improper conduct occurring in the four years prior to the lawsuit was the October 1992 drug testing incident. The trial court further determined that, as a matter of law, Smith’s conduct during this incident was not extreme or outrageous, and thus would not support Mr. Mears’ loss of consortium claim.

We disagree that the October 1992 incident should be viewed in isolation. Georgia recognizes the theory of continuing tort, which applies “where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time.” Everhart v. Rich’s, Inc., 229 Ga. 798, 802 (2) (194 SE2d 425) (1972) (limited to personal injury actions by Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368 SE2d 732) (1988)). Under this theory, the statute of limitation does not begin to run “until such time as the continued tortious act producing injury is eliminated.” Everhart, supra at 802 (2).

Although we have been reluctant to apply this theory broadly, we conclude that it is applicable here. We previously have indicated that a series of acts allegedly causing emotional distress should be viewed cumulatively, rather than in isolation. See Fox, supra at 261; Anderson v. Chatham, 190 Ga. App. 559, 567 (8) (379 SE2d 793) (1989). Claimants bear a heavy burden in establishing the type of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress. Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 229 (1) (335 SE2d 445) (1985). In cases involving a series of acts allegedly producing emotional distress, one incident “might not, taken in isolation, rise to a level of conduct actionable under the law for emotional distress.” Chatham, supra at 567. Viewed cumulatively, however, that incident in combination with a claimed pattern of conduct may support the cause of action. Id.

We find that there is evidence that the alleged intentional infliction of emotional distress is continuing in this case. Accordingly, the October 1992 drug testing incident should be considered in the context of the prior alleged pattern of harassment and abuse.

(b) “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.] If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination. [Cit.]” Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). To support the emotional distress allegation, and thus sustain Mr. Mears’ loss of consortium claim against Smith, Smith’s conduct “must have been so abusive or obscene as naturally to humiliate, embarrass, frighten, or extremely outrage [Mrs. Mears].” Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

Mere tasteless, rude or insulting social conduct will not give rise to such a claim. Id. “ ‘There is no occasion for the law to intervene in every case where someone’s feelings are hurt.’ ” Id. As we previously have found, however, “‘the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist.’ [Cits.]” Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 169 (1) (381 SE2d 303) (1989).

Considering the totality of the circumstances, we conclude that the Mears’ evidence is sufficient to survive summary judgment on the loss of consortium claim against Smith. Viewing the evidence most favorably to the Mears, a jury could reasonably find Smith’s alleged sexual innuendo and pattern of other conduct to be outrageous and extreme, rather than merely rude or insulting. See id. Mrs. Mears’ admission that she worked well with Smith until the October 1992 incident and appellees’ argument that the described conduct was insufficient to cause harm “belittle but do not defeat the claim.” Id. at 169.

Furthermore, the record presents some evidence that Mrs. Mears’ experience at Gulfstream resulted in a loss of companionship and services for Mr. Mears. “A claim for loss of consortium is based on the loss of a property right growing out of the marriage relationship, and includes the exclusive right to the services of the spouse and to the society, companionship, and conjugal affection of each other.” (Citations and punctuation omitted.) Sevcech v. Ingles Markets, 222 Ga. App. 221, 225 (6) (474 SE2d 4) (1996). Accordingly, we find that the trial court improperly granted Smith summary judgment on Mr. Mears’ derivative loss of consortium claim.

(c) In contrast, Gulfstream’s conduct will not support the loss of consortium claim brought against it. An employer cannot be vicariously liable for an employee’s intentional harassment of another employee unless the employer ratifies the conduct. Trimble, supra at 501; B. C. B. Co. v. Troutman, 200 Ga. App. 671, 672 (1) (409 SE2d 218) (1991). If the employer knows about the employee’s conduct and responds inadequately, however, liability for intentional infliction of emotional distress may arise. Trimble, supra.

We find no evidence that Gulfstream “ratified” Smith’s alleged conduct or that it knew about the conduct until after the October 1992 drug testing incident, when Sheila Mears reported the problems she had been having with Smith. The Mears claim that Gulfstream “was aware of” Smith’s behavior, such as his comments about how Mrs. Mears’ clothing fit her body. The Mears have cited no evidence, however, that Mrs. Mears reported the conduct to Gulf-stream before October 1992. On the contrary, it appears from the record that Gulfstream became aware of the alleged incidents and discussed them with Smith after Hildebrandt met with Mrs. Mears subsequent to October 1992. At that point, Gulfstream took steps to separate Smith and Mrs. Mears by transferring each out of the accounts receivable department.

Decided February 20,1997

Reconsideration denied March 21,1997

Clark & Clark, Fred S. Clark, for appellants.

Stanford A. Hines, for appellees.

Rather than participating in Smith’s conduct as the Mears claim, Gulfstream expressed concern for Mrs. Mears’ well-being and attempted to remedy the situation by moving her to a different department at the same skill level and rate of pay. As a matter of law, we find no “outrageous” or “extreme” conduct in Gulfstream’s response to Smith’s alleged behavior. Accordingly, the trial court properly granted summary judgment to Gulfstream on Mr. Mears’ claim for loss of consortium.

Judgment affirmed in part and reversed in part.

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

       Mrs. Mears claimed that in addition to Smith’s conduct, she also was subjected on one occasion to harassment from another Gulfstream employee. She testified, however, that a director at Gulfstream confronted that employee about the inappropriate conduct, required him to apologize to her, and stated that any further incidents would result in his termination. Mrs. Mears was satisfied with the way in which the incident was handled. We find no “outrageous” or “extreme” conduct in Gulfstream’s response to this incident.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Beasley, Judge, Judge Harold R. Banke,

license: Public Domain

text:
    A96A1667.
    FRITZIUS v. THE STATE.
    (484 SE2d 743)
   Birdsong, Presiding Judge.

After a stipulated bench trial, Fritzius was convicted on one count of possession of methamphetamine, a Schedule II controlled substance (OCGA §§ 16-13-26 (3) (B); 16-13-30 (a)), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (4)). He appeals from the denial of his motion to suppress evidence seized in what he contends was an illegal search, violative of the Fourth Amendment to the United States Constitution and of Art. I, Sec. I, Par. XIII of the Constitution of the State of Georgia. He makes no independent argument on the state constitutional grounds, so we do not address that issue. Null v. State, 216 Ga. App. 641, 642 (455 SE2d 359).

Officer Beveridge, in uniform and accompanied by his drug detection dog, was preparing to participate with a police narcotics unit in executing a search warrant on a mobile home occupied by Henry Fallaw. Another officer who was conducting surveillance of the mobile home saw two men leave it, enter a vehicle and drive off. Officer Beveridge was asked merely to identify the occupants of the vehicle to see if one was Fallaw. While the search was conducted, the officer stopped the car approximately two miles away.

He requested the driver’s license and proof of insurance, which the driver said he did not have because he had lost his wallet. The driver, who actually was Henry Fallaw, also said he believed he did have a valid license and gave the officer the name and birth date of his brother William. Beveridge noticed Fallaw was nervous and asked if he had any illegal weapons or drugs on his person. Fallaw first said no, then admitted he had two marijuana cigarettes in his back pocket. Beveridge took those and placed Fallaw under arrest.

Passenger Fritzius exited the vehicle at Beveridge’s direction. He told the officer he had no illegal drugs or weapons on his person and consented to a search, which produced nothing. The car was registered to Fritzius, and he refused the officer’s request for consent to search its interior. The officer brought the drug detection dog from his car and directed him to do an odor search of the car’s exterior. The dog alerted to the vehicle’s door, and a small plastic bag containing methamphetamine was found under the floor mat on the passenger’s side where Fritzius had been sitting. A revolver was found under Fritzius’ seat.

Fritzius contends the vehicle stop was invalid because it was not supported by reasonable, articulable suspicion as required under Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889). He does not complain independently of Beveridge’s actions after the stop. Our analysis commences according to the following guide, derived from pronouncements of the United States Supreme Court. “ ‘Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken t< ¿ ether with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314). A Terry stop “ ‘must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cits.]’ ” TarwidL v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63).

Fritzius does not dispute that the search warrant for the mobile home was based upon probable cause to believe drug activity took place there. The warrant was about to be executed when the vehicle and its occupants left. Fritzius contends Beveridge had no suspicion the vehicle’s occupants were engaged in drug activity but only stopped the car to identify the occupants. Beveridge testified he stopped the vehicle because it had just left the mobile home and another officer asked him to find out if Fallaw, who was named in the warrant, was in the car. Additionally, the record reveals a certain stipulation of facts which purports on its face to contain matters beyond that already in evidence. Held:

When a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause. Michigan v. Summers, 452 U. S. 692, 699- 700 (101 SC 2587, 69 LE2d 340). In Summers, a warrant had been obtained to search a house for narcotics. As the officers approached the house, they encountered owner Summers descending the front steps. They asked for his assistance in gaining entry and detained him while they searched the premises. In deciding the detention was supported by articulable suspicion, the Court examined both the character of the intrusion on Summers’ liberty and personal security, and the justification for the intrusion. Id. at 700- 701. As to the character, the Court noted that the detention was less intrusive than the search pursuant to the warrant, and that the fact that the detention occurred at the residence “add[ed] only minimally to the public stigma associated with the search itself.” Id. at 701- 702. As to the justification for detention, the Court noted the interest in preventing flight if any contraband was found, the interest in reducing the risk of harm to officers involved in the search, and the interest in facilitating the search by the resident’s presence. Id. at 702-703. It also noted that a magistrate had found there was probable cause to believe someone in the residence was committing a crime, providing another “objective justification for the detention.” Id. at 703.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386). The Court found as fact, inter alia, that the vehicle was stopped because the police expected one occupant to be the resident of the search premises. The record does not reveal that this finding of fact is clearly erroneous within the meaning of Burse, supra.

It is a well-established appellate rule that on appeal the evidence must be viewed in the light most favorable to support the verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Thus, in determining whether the State met its burden of proof that the search and resulting seizure were legal, this Court must view the evidence of record in accordance with the dictates of Grant, supra. In determining the legality of a search, this Court can consider all evidence of record, including that found in pretrial, trial and post-trial proceedings. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448); accord Underwood v. State, 218 Ga. App. 530 (1) (462 SE2d 434).

Review of the record in the light most favorable to supporting the verdict reveals that appellant consented to a stipulated bench trial and to these resulting stipulation of facts: “The car was, stopped in Clayton County. . . . Some of this is already in evidence. But it was stopped by Agent Beveridge as he received information that the defendant and the co-defendant who were driving in this defendant’s car were leaving a location for which they had a search warrant for drugs” (Emphasis supplied.) The record reveals this stipulation of fact, which on its face professed to contain facts beyond those already in evidence, establishes that the detaining officer had received information before the stop that the occupants in the car had been observed leaving the search scene. Moreover, at the suppression hearing the detaining officer testified that he was aware not only that the search warrant was issued for a specific trailer lot location but also that the subject of the warrant was co-defendant Henry Calhoun Fallaw (who later was determined to be a co-occupant of the detained vehicle), and that he was to stop the departing vehicle to see if the co-defendant was an occupant thereof.

The dissent has interpreted the dictates of the United States Supreme Court in Michigan v. Summers, supra, in too restrictive a manner. The Supreme Court clearly held in Summers, supra at 703-705: “The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral [and detached] magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant. ... If the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Footnotes omitted; emphasis supplied.) Further, it was recognized in Summers, supra at 702, that there exists an obvious “legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found” during a lawful search. In addition to this body of law we must also consider that the existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials (Tarwid v. State, supra at 855), and that the detaining officer was entitled to rely on the information given him by a fellow officer in the formation of an articulable suspicion (Chumbley v. State, 180 Ga. App. 603, 604 (349 SE2d 823)).

Reliance upon State v. Crank, 212 Ga. App. 246 (441 SE2d 531) also is misplaced. Crank may be distinguished in several ways. We did not address the legality of the stop in Crank because it was not challenged. The contention was that the search and seizure of Crank’s person and his car were illegal because they were not accomplished at his home. Here, Fritzius contends only that the stop was illegal.

Second, in Crank the trial court granted the motion to suppress; in this case it was denied. Just as we viewed the evidence in that case to favor Crank, in this case we must view it to favor the State. “ ‘On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. (Cit.)’ [Cit.]” Rider v. State, 222 Ga. App. 602 (475 SE2d 655).

In determining whether a search or seizure is constitutionally prohibited, “the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” (Emphasis omitted.) Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784); accord Duvall v. State, 194 Ga. App. 420, 421 (390 SE2d 647). It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power. This becomes apparent particularly when the circumstances surrounding the detention are balanced against the legitimate law enforcement interests identified in Summers, supra, and, additionally, when (as appears from the reasonable inferences to be drawn from the record in this case) the detention is effected under circumstances somewhat analogous to a fresh pursuit.

Further, it is not significant to the disposition of this appeal that the police’s communication with the detaining officer merely requested assistance in stopping the vehicle so that it could be ascertained if one of the occupants was Fallaw. The temporary detention of the vehicle and its occupants for the limited and minimal intrusive purpose of ascertaining identity was, under the totality of the existing circumstances, reasonable. The absence of any instructions as to what to do with Fallaw, if he were found in the vehicle, does not negate the reasonableness of the police’s detention of the vehicle and its occupants. Moreover, once Fallaw was identified, the detaining officer could communicate with the officers requesting the vehicle stop to obtain guidance whether to return Fallaw to the search scene or to search him at the location of his detention, according to whatever conduct would be compatible with and facilitate the execution of the search warrant according to its terms.

This case is in harmony with Bales v. State, 216 Ga. App. 856 (456 SE2d 112). Appellant’s various contentions in support of his enumeration of error are without merit.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

This case is governed by the principles applied in Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

First, in connection with the facts, it is notable what is not in evidence. There was no testimony that a reason for the stop was to connect one of the car occupants to drugs, if found, for which the officers had a warrant to search. There was no explanation of what the officer intended to do if one of the occupants was Fallaw. There was no testimony about the information that provided the basis for the warrant. Neither the warrant nor the affidavit is in the record. There was no testimony that either the officer who asked Officer Beveridge to stop the car, or Beveridge himself, had any reason to suspect that there would be contraband in the car.

The State points to Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995), and Setser v. State, 209 Ga. App. 57 (432 SE2d 652) (1993), in support of its position that the stop was founded on articulable suspicion. In Bales the nonresident defendant was detained when he arrived at a residence where a warrant search was taking place and had already produced narcotics. In Setser the defendant arrived at the site of a roadside automobile search and was there detained. The presence of the defendant at the search scene in these cases, and in Summers, presented a potential risk of harm to the officers, which was a noted justification in Summers. The court in Setser, supra at 58 (1), specifically referred to the officers’ interest in self-protection. The Bales court did not do so but did note that the officers performed a weapons frisk. Additionally, in Bales “the police clearly had an articulable reason to suspect defendant of criminal activity, since the residence at which defendant arrived contained illegal drugs, and since a passenger in his vehicle was just arrested for possession of a controlled substance.” Bales, supra at 857.

Risk of harm was not present here as the car was stopped two miles from the residence. Further, a detention away from the search scene creates a public stigma at the location which, when a defendant is detained at his residence, is already present because of the connection produced by proximity. State v. Crank, 212 Ga. App. 246, 249 (441 SE2d 531) (1994).

The State also cites Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991), in which the appellant drove up to premises where a search warrant was about to be executed, stopped close enough to speak to a person there, then drove away. The court ruled that this, coupled with the fact that a warrant had been issued on probable cause to believe that drug activity was conducted on the premises, was sufficient for the court to justify the officer’s suspicion that the defendant driver was engaged in the suspected illegal activity. Id. at 204-205.

There is no behavior of either Fallaw or Fritzius connecting them to the suspected drug activity. There is only the warrant that specified the residence, not the car in which they left the curtilage and drove away. Even if it is inferable that a resident of a search premises is engaged in the suspected activity, the officers did not know either of the occupants of the car was a resident. Compare State v. Deshon, 194 Ga. App. 425 (390 SE2d 651) (1990), where the police knew the resident as he drove away. Finding out whether one of the car occupants was Fallaw was the only stated reason for the stop. None of the State’s cases shows the vehicle stop here to be justified by the criteria analyzed in Summers or otherwise.

Crank, supra, is more analogous. He contended his person and car were illegally seized. Id. at 248. A warrant was to be executed on Crank’s home. Because of what the police knew of Crank’s penchant for weapons and fighting with police officers, the officers decided to stop and detain Crank outside his home for safety reasons and to have him facilitate the search, but Crank was “two or three miles” from the residence before the officers stopped him. Id. at 248. There, as here, “[n]o magistrate had authorized a search of Crank or the car at that location,” and the seizure did not fit the parameters established by Summers. Crank, supra at 249. Rather, the stop and detention were illegal despite the fact that the officers were serving two of the interests recognized in Summers-, reducing the risk of harm and facilitating the search.

This case, like Crank, differs from Summers in the great distance from the search premises at which the detention occurred. Although “the connection of an occupant” to the search warrant premises in Summers, supra at 703, made it “constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home,” (footnote omitted; emphasis supplied) id. at 705, Summers does not stand for the proposition that a person with such a connection to a search premises may be detained wherever he may be found. If the seizure in this case is constitutionally permitted, a resident could be seized whenever found, because of his connection with the premises, when a search warrant for the person’s residence is being executed.

Most of the operable Summers factors are not present. At the time of the stop, none of the officers even knew that one of the car occupants was a resident of the mobile home. The roadside stop was certainly more intrusive than the search as it pertained to passenger Fritzius. The stop produced a public stigma separate from any associated with the mobile home search. There was no evidence the police feared Fallaw or Fritzius would flee, nor is any inferable from the testimony; there is no suggestion that the men were aware of any police activity at the trailer before Officer Beveridge stopped their car. The distance dissipated any danger to officers conducting the search. Compare Allen v. Commonwealth of Virginia, 353 SE2d 162 (Va. Ct. App. 1987) (departing van stopped when met leaving residence on long driveway, but close enough to building for there to be concern of crossfire between van and residence). Nor is there any evidence that would allow the inference Fritzius and Fallaw were detained to facilitate the search; Officer Beveridge did not serve the warrant upon Fallaw, and the mobile home was actually entered while Officer Beveridge was trying to find the vehicle in which Fallaw and Fritzius were driving. Compare United States v. Cochran, 939 F2d 337 (6th Cir. 1991) (defendant’s car stopped “a short distance” after leaving residence so defendant could help officers gain peaceful entry and avoid guard dog).

The only justification given for the stop was that the police wanted to know if Fallaw was in the car. That alone does not justify such a governmental intrusion into a person’s freedom of movement. In fact, the officer did not end the detention when the information he gained was that neither man was the named resident. The only apparent relationship the men had to the trailer was their departure from it. They took no actions suggestive of participation in drug trade or possession. Neither the warrant itself, nor whatever was the probable cause on which it was based, alone provided an articulable suspicion to justify the stop.

The stipulation announced at trial adds nothing to the evidence concerning what information was available to the police prior to the stop. The stipulation was only that Officer Beveridge “received information that the defendant and the co-defendant who were driving in this defendant’s car were leaving a location for which they had a search warrant for drugs.” This merely identified the persons who were then known at trial to be William Fritzius and Henry Fallaw.

The reason the court gave for denying the motion to suppress was that the police believed one of the persons in the car was Fallaw, “an occupant of the residence they had a warrant to search.” Even if that reason is supported by the evidence, it does not follow that the interception was therefore valid. The State did not explain what was to occur if the officer learned that one of the men was Henry Fallaw. “ ‘[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’ . . . [Cits.]” Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784) (1988). The State has not advanced any line of questioning that would advance a State interest which would validate the distant stop. The officer did not stop the car to find out if Fallaw was inside so the officer could inform him of the search in order to allow him to return and facilitate it if he chose to; not only was such an interest not articulated on the record or acted on at the scene, but the searching officers entered the trailer before Fallaw was stopped.

If the police halted the car to identify Fallaw with the intention of detaining him until they had completed their search, again, a purpose the State did not articulate, that would not be a valid purpose but would amount to an arrest without probable cause. There was no warrant for his arrest. A propér analysis of the stop and detention in this case in accordance with the rationale of Michigan v. Summers, supra, compels the conclusion that the trial court erred.

I am authorized to state that Judge Ruffin joins in this dissent.

Judge Harold R. Banke,

dissenting.

I separately dissent because the majority creates new law from whole cloth with no legal or factual justification for so doing. Controlling legal authority permits police to detain a person found on the premises during the execution of a search warrant, but does not authorize police to stop and seize individuals not found on the premises. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

Although the majority opinion purports to cloak itself in Summers, a careful reading of that case strips bare the majority’s legal predicate. By quoting only a snippet of Summers, the majority misconstrues Summers to hold that a search warrant for a place carries implicit or explicit authority to stop and seize a person not at the place specified by the search warrant. Compare Summers, 452 U. S. 692. What the Supreme Court actually determined was that the officers’ detention of Summers on his property was not violative of the Fourth Amendment because “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Footnotes omitted.) Id. at 705. The Supreme Court noted, “this argument could not justify the initial detention of respondent outside the premises described in the warrant.” (Emphasis supplied.) Id. at 694.

The majority’s out-of-context quote from Summers is misleading and heads this Court down a slippery slope. Nowhere in Summers did the Supreme Court hold that government officials are authorized to stop and search an individual located miles away from the premises being searched. By erroneously extending Summers to authorize an off-premises detention, the majority misses the essence of Summers, which analyzes the reasonableness of compelling an individual to remain on his property while a lawful search is conducted. Inasmuch as the Supreme Court’s opinion was narrowly tailored to permit the police to intercept and detain a resident on his premises, the majority’s expansion of the rule of Summers is unjustified.

In this case, Fallaw, whose premises were being searched, was driving Fritzius’ vehicle. Neither Fritzius’ vehicle nor Fritzius was named in the search warrant for Fallaw’s trailer. The evidence Fritzius sought to suppress was obtained during a search of his vehicle. The State offered no valid grounds for stopping Fritzius’ vehicle, miles away from the trailer, asserting only that the police wanted to ascertain whether Fallaw was inside the car. Yet the State’s conduct far exceeded that asserted purpose. Summers and its progeny do not authorize the stop and search at issue here.

Nor can the majority show the application of any exception to the warrant requirement. Under extremely rare circumstances under nonbinding federal law, a person may be detained as he leaves the premises subject to the search warrant where his presence is essential to the execution of the warrant. See United States v. Cochran, 939 F2d 337, 339 (6th Cir. 1991) (police could lawfully stop vehicle immediately after it exited the residence where defendant’s presence was crucial due to dangerous and menacing guard dog on premises). In this case, the presence of Fritzius, a nonresident of the trailer, was not essential for the safe execution of the warrant. Nor did the State claim that Fallaw’s presence was needed, inasmuch as agents were already in the process of conducting the search when Fallaw and Fritzius were detained.

Notwithstanding the claim to the contrary, this case is controlled by State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994), where we upheld the suppression of evidence found in Crank’s vehicle. In Crank, police had a warrant for Crank’s person, premises, and vehicles located on his premises. Id. at 247. Due to concern for police safety, because Crank was known to be armed at all times and had a known proclivity for fighting with police, police set up surveillance to intercept him a safe distance from his home. After Crank was stopped and detained two or three miles from his home, his vehicle, which had been specified in the search warrant, was impounded and searched. We affirmed the trial court’s grant of Crank’s motion to suppress because the seizure was not authorized by Summers, probable cause, or exigent circumstances.

The facts in this case are even more compelling because here, unlike in Crank, the police had no search warrant for Fritzius or his vehicle. Because the State failed to show probable cause, exigent circumstances or any application of an exception to the Fourth Amendment, Fritzius’ motion to suppress the search of his vehicle should have been granted.

In a circuitous effort to distinguish Crank, the majority mischaracterizes the record by stating that Fritzius challenged only the legality of the stop. Fritzius’ motion to suppress expressly provided, “The search and seizure complained of was a violation of the Fourth Amendment.” Fritzius’ motion demanded the suppression of evidence “obtained by virtue of the illegal search.” Fritzius’ appellate brief echoes this argument.

Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995) provides no support for the majority’s position. In that case, while the police were conducting a lawful search, Bales suddenly arrived in a vehicle at the premises being searched. Having discovered narcotics and being on the lookout for the occupant of the house, police had reasonable articulable suspicion to authorize a brief investigative stop of Bales to determine whether he was that person. Id. at 856-857.

Here, the State cannot show the requisite justification for a brief investigatory stop. Burdette v. State, 210 Ga. App. 471, 472-473 (436 SE2d 502) (1993); see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979) (specific and articulable facts which taken together with rational inferences are needed to justify government’s intrusion). Ascertaining whether Fallaw was inside Fritzius’ vehicle, without more, cannot support the invasion of Fritzius’ rights. Such conduct was plainly an unlawful intrusion violative of the Fourth Amendment. Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

Decided March 21,1997.

Billy J. Dixon, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Even if Summers did apply to the facts in this case, the stop was improper. As the dissent correctly concludes, none of the Summers factors justified the stop. Because this stop was outside the premises described in the search warrant, and the State could not show that Fallaw’s presence was essential to effectuate their search, it could not be justified by the warrant. See United States v. Cochran, 939 F2d at 339. Nor was there any evidence that the officers were at risk of harm from Fallaw or that the officers were preventing Fallaw’s flight. Summers, 462 U. S. at 702-703.

Under the holding of the majority, law enforcement officials may now temporarily detain vehicles containing persons who recently departed premises subject to the execution of a search warrant. Outside of misapplying Summers, the majority cites absolutely no authority for expanding the scope of police power while constricting the safeguards of the Fourth Amendment. Defining the parameters of this new rule authorizing the “fresh pursuit” of a person who has left premises subject to a search warrant will doubtlessly generate endless controversy and countless motion hearings.

For these reasons, I respectfully dissent. I am authorized to state that Judge Ruffin joins in this dissent.

       Neither Hayes nor Deshon was analyzed in accordance with Summers.


author: Beasley, Judge. Blackburn, Judge, Birdsong, Presiding Judge,

text:
    A96A1740.
    A96A1741.
    A96A1742.
    REDDING v. WALKER. WILLIAMS v. WALKER. REDDING v. WALKER.
    (485 SE2d 252)
   Beasley, Judge.

Chiquata Redding, Aquarious Redding and Bobby Williams filed these personal injury suits against Pauline Walker. Walker owned the car which co-defendant Dennis Watson, while driving at speeds in excess of 100 mph, crashed into plaintiffs’ vehicle. A few months after the suits were filed, Walker was released from all dischargeable debts by order of the bankruptcy court. On August 22, 1995, the trial court dismissed plaintiffs’ complaints against Walker and Watson. Subsequently, the trial court amended its orders to dismiss only Walker, on the basis of the bankruptcy discharge. Watson is allegedly judgment-proof.

Plaintiffs in their appeals contend the dismissal of Pauline Walker has the erroneous effect of dismissing her insurer. Walker filed motions to dismiss the appeals because the trial court’s dismissals were not final judgments (OCGA § 5-6-34 (a) (1)) and contained no language rendering them directly appealable (see OCGA § 9-11-54 (b)), and because the interlocutory appeal procedures were not followed pursuant to OCGA § 5-6-34.

1. The ruling below, as to each plaintiff’s case, was in effect an order of summary judgment. The motion was denominated a motion to dismiss, responded to under the same denomination, and so referred to in the court’s order. But Walker’s motion in each case was not in substance or form a motion pursuant to OCGA § 9-11-12 (b). It did not present one of the defenses listed in subsection (b) but rather presented the defense of bankruptcy discharge. That does not constitute “[flailure to state a claim upon which relief can be granted,” OCGA § 9-11-12 (b) (6), or any of the other listed defenses which may be disposed of by a motion under that Code section. In substance her motions were for summary judgment, based on a complete bar.

In form as well, the motion in each case was in effect a motion for summary judgment. Walker attached evidence in the form of a document, and the court accepted another document at the time of the hearing on the motions. Documentary evidence, as well as the affidavits expressly mentioned in the summary judgment provision of the Civil Practice Act (at OCGA § 9-11-56 (e)), may be used in considering such motions. Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994); Kiker v. Pinson, 120 Ga. App. 784 (1) (172 SE2d 333) (1969).

Discharge in bankruptcy is an affirmative defense. OCGA § 9-11-8 (c). It was not originally pled by Walker, but she pled a stay of proceedings because of the petition for bankruptcy protection in the federal court. An affirmative defense “asserts a bar to recovery and not merely the abatement of an action. [Cit.]” City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992). That case distinguishes between the two concepts. Matters in abatement are such as those found in OCGA § 9-11-12 (b), with the exception of OCGA § 9-11-12 (b) (6). Intl. Indem. Co. v. Blakey, 161 Ga. App. 99, 100-101 (1) (289 SE2d 303) (1982). “ ‘[A] motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. [Cit.]’ [Cits.]” Id. at 101 (1).

The documents presented to the court were the basis upon which the court resolved an issue of fact (whether defendant’s plea in bar was valid) and dismissed the complaints against Walker with prejudice. This terminated, rather than merely abated, each claim against her and left only the claims against the driver, Watson. When the court considers evidence in ruling on such a motion, a ruling in favor of the movant constitutes summary judgment for that defendant. Jones v. Ward, 201 Ga. App. 757, 758-759 (1) (412 SE2d 576) (1991). See also Peeples v. City of Atlanta, 189 Ga. App. 888, 889 (1) (377 SE2d 889) (1989). The judgments are final as to Walker, based not on the pleadings alone but together with the evidence which proved the basis for the judgments in her favor, i.e., the discharge in bankruptcy.

“An order granting summary judgment. . . as to any party shall be subject to review by appeal.” OCGA § 9-11-56 (h). Plaintiffs contend that Walker should not be eliminated from the cases as a defendant. If they are correct, the trial or trials should not proceed to judgment which, if it favors plaintiffs, must still be appealed to decide the question now properly before the Court on direct appeals. If Walker was erroneously excused, additional trials would be required were the appeals dismissed.

2. Each plaintiff makes the identical arguments on appeal, that the discharge in bankruptcy does not allow defendant Walker’s liability insurer to escape liabihty, and that the case should therefore continue -with Walker as defendant to the limit of her insurance coverage, relying on Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (2) (224 SE2d 167) (1976), federal cases involving bankruptcy law, and OCGA § 33-7-11 (a) (4).

No insurer is a party to these suits. No evidence in the record shows that Walker had liability insurance. Although the plaintiffs answered Walker’s motion to dismiss with an assertion that “Walker had liability insurance at the time the accident occurred,” that does not satisfy their burden to point to evidence showing a triable issue remains. See Hodge v. SAHA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

Normally, when an ill-styled motion to dismiss is treated as a motion for summary judgment, as in this case, the nonmovant should have 30 days to respond with opposing evidence, from the time it is chargeable with knowing that the court will treat the motion as one for summary judgment. OCGA § 9-11-56 (c); Cardin v. Outdoor East, 220 Ga. App. 664, 665 (468 SE2d 31) (1996) (Beasley, C. J., concurring specially); Hart v. Sullivan, 197 Ga. App. 759, 760 (399 SE2d 523) (1990) (physical precedent).

In this instance that is not necessary. Plaintiffs do not need time to present evidence controverting the discharge; they in fact agreed in their responses to the motions that it had occurred. Instead, they objected to her discharge because, they asserted, she had liability insurance at the time of the accident.

Even if plaintiffs were given time to file copies of Walker’s insuranee policy, if there is one, the result would be the same. Plaintiffs have presented no authority for the proposition that they as claimants are entitled to retain her even nominally in the lawsuit so as to obligate her insurer with a judgment based on her contract of insurance for liability coverage. The insurer, if there is one, is not even a party at this stage of the incompleted lawsuit, but even if plaintiffs had added her alleged insurer as a defendant, they cite no authority to prevent Walker’s dismissal from the lawsuit. Indeed, the bankruptcy court not only released her from all dischargeable debts, it enjoined all creditors whose debts are discharged by the order “from . . . continuing any action ... to collect such debts as personal liabilities” of the debtor. Plaintiffs’ claims were listed in the bankruptcy.

Wilkinson v. Vigilant Ins. Co., supra, is not directly on point but it supports Walker, not the plaintiffs as to the issue before us. It held that the defendant’s discharge in bankruptcy did not entitle the uninsured motorist carrier of the plaintiff to dismissal as a party. Like these instant cases, it was a suit arising out of an auto collision, and the defendant filed a motion to dismiss him because of the bankruptcy discharge. Unlike these cases, plaintiff Wilkinson’s uninsured motorist carrier was served and filed a motion for summary judgment (the proper type of motion) based on defendant’s discharge. At issue was whether the uninsured motorist carrier’s potential liability remained extant. The Supreme Court ruled that it did, based on 11 USCA § -34 (see current 11 USCA § 524 (e)).

Although the defendant’s motion for dismissal of him as a party was not in issue on appeal in Wilkinson, the Supreme Court implied that he would be entitled to dismissal (or more accurately summary judgment) when it stated that “no liability can attach to the known uninsured” and that the suit should proceed as a John Doe action. Id. at 457 (2).

Defendant Walker’s discharge in bankruptcy is not trumped by the existence of her liability insurance, if she has such, so as to preclude her affirmative defense. She was entitled to judgment in her favor.

The judgments are affirmed.

Judgments affirmed.

Andrews, C. J., Johnson and Smith, JJ, concur. McMurray, P. J., and Blackburn, J., concur in the judgment only of Division 1 and dissent as to Division 2 and the judgment of affirmance. Birdsong, P. J, and Pope, P. J., dissent and would dismiss. Ruffin, J., not participating.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur in the judgment only as reached by the majority in Division 1; however, I must respectfully dissent to the majority’s holding in Division 2 and to its judgment affirming the trial court.

With respect to Division 1 of the majority, I agree that this case was properly brought as a direct appeal. A discharge in bankruptcy is an affirmative defense and proof of such defense constitutes “a bar to recovery and not merely the abatement of an action.” City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992).

The trial court and the parties dealt with the subject motion as a motion to dismiss. This Court, however, concluded that Walker’s motion to dismiss was converted into a motion for summary judgment by the trial court’s consideration of evidence outside the pleadings. Upon such determination, it became incumbent upon this Court to determine whether or not such motion for summary judgment was properly granted.

“Although the trial court may convert a motion to dismiss to a motion for summary judgment[,] where this is done there must be compliance with OCGA § 9-11-56 requiring 30 days notice and an opportunity for a hearing. A respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to thirty days to respond to the motion for summary judgment unless such notice and opportunity are waived. Since the record does not reflect any such waiver, it was error to render judgment in favor of the defendants. The judgment must be reversed, and the case remanded to provide an opportunity for the opposing party to submit evidence in opposition to the motion for summary judgment, and for an opportunity for a hearing on the motion.” (Citations and punctuation omitted.) Bonner v. Fox, 204 Ga. App. 666, 667-668 (420 SE2d 312) (1992).

In Jones v. Ward, 201 Ga. App. 757, 758 (1) (412 SE2d 576) (1991), cited by the majority, we determined that the trial court did not err in treating a motion to dismiss as a motion for summary judgment because the respondent had the opportunity to address the issues raised by the evidence introduced by the movant. In the present case, Walker’s discharge in bankruptcy was not filed with the trial court until the day the court filed its orders dismissing plaintiffs’ claims. This action gave plaintiffs no opportunity to properly respond to Walker’s motion. “OCGA § 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing. Since the motion to dismiss was converted to a motion for summary judgment[,] appellant was entitled to have the notice requirements of OCGA § 9-11-56 (c) met. Moreover, evidence in support of summary judgment must be filed thirty days before the hearing to be considered on behalf of the movant.” (Citations and punctuation omitted; emphasis supplied.) Id. at 759 (1).

Where it was this Court which for the first time dealt with the motion as one for summary judgment, we cannot fault plaintiffs for failing to enumerate the trial court’s ruling as error since the trial court did not treat the motions as ones for summary judgment. See Robertson v. U-Haul Co. of Western Ga., 208 Ga. App. 222, 223 (2) (430 SE2d 113) (1993), for a discussion of behavior constituting waiver of this issue.

Had the plaintiffs received the required notice, they would have had an opportunity to present the very evidence of automobile liability insurance coverage, the absence of which forms the basis of the majority’s opinion in Division 2. Therefore this case should be reversed and remanded to the trial court for further action consistent with the above.

I am authorized to state that Presiding Judge McMurray joins in this opinion.

Birdsong, Presiding Judge,

dissenting.

I must dissent from the opinion of the majority.

1. Pauline Walker filed a motion to dismiss the suit against her because of her bankruptcy discharge. The trial court granted that motion to dismiss. The remaining defendant, Watson, who was the driver of this car, is evidently judgment-proof, but plaintiffs contend (and defendants do not deny) that Pauline Walker had insurance which should provide coverage for any personal injury caused to third parties by the driver of her car.

The insured’s personal bankruptcy discharge does not excuse the insurer from its contract liability as to the driver of her car. Prior to Walker’s motion to dismiss, her insurer was not specially impleaded because it could not be sued as a defendant under the collateral source rule; its shadowy presence in the case was only through Pauline Walker. Even though the dismissal of Pauline Walker, the plaintiffs would be able to hold the insurer to its contract of coverage as to Pauline Walker’s vehicle. Now, however, the majority has declared that this contracted-for insurance coverage of Pauline Walker’s car is not available to the plaintiffs, because the majority has converted Pauline Walker’s motion to dismiss to a summary judgment and the trial court’s dismissal to a final judgment merely because it examined a federal court document and supporting affidavit, and because there is at this stage no evidence in the record that Pauline Walker had insurance. Thus, reasons the majority, the plaintiffs cannot recover under Pauline Walker’s insurance policy as it applies to the driver of her vehicle because the plaintiffs, adhering to the rule against mentioning insurance, had not mentioned Pauline Walker’s insurance before the trial court dismissed Pauline Walker from the case.

This result is grossly unjust and untenable, patched together as it is by technical theories and by the idea that if the trial court looks at anything besides the pleadings it “converts” the proceeding to summary judgment. The first rule of the Civil Practice Act is that it “shall be construed to secure the just, speedy, and inexpensive determination of every action!’ (Emphasis supplied.) OCGA § 9-11-1. In Ambler v. Archer, 230 Ga. 281, 286-287 (196 SE2d 858), the Supreme Court held: “ ‘The Act is designed to simplify [civil procedure] by deemphasizing form and technicality in order that the substantive rights of litigants may be asserted and tried on the merits! [Cit.] . . . ‘(The Act) should serve to reduce the number of decisions which are resolved on grounds having no relation to the merits of the litigation! These comments undoubtedly reflect the spirit and purpose of the Civil Practice Act and the courts . . . should be diligent to hew not only to the letter of the act, but also to this spirit.” (Emphasis supplied.)

The trial court granted Pauline Walker’s motion to dismiss her personally because of her personal bankruptcy discharge. According to our appeal laws, this was not a final judgment because issues remain pending (OCGA § 5-6-34 (a) (1)); and because appellants did not follow interlocutory procedures (OCGA § 5-6-34), this appeal should merely be dismissed, leaving for resolution on the merits the liability of the driver of Pauline Walker’s car.

If there is insurance liability coverage of Pauline Walker’s car and its driver’s acts, that insurance will be available to the appellants/plaintiffs because there are obviously still triable issues below as to that driver’s liability. No procedural trick should obviate the driver’s potential liability and the car’s insurer’s contractual responsibility to third-party beneficiaries.

This Court has held that even if an order does not specify that it is a final judgment within the meaning of OCGA § 5-6-34 (a) (1), it nevertheless constitutes a final judgment if it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties without further recourse in the trial court. R. J. Reynolds &c. v. Fischer, 207 Ga. App. 292, 293 (1) (427 SE2d 810); Spring-U Bonding Co. v. State of Ga., 200 Ga. App. 533 (408 SE2d 831); and Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452). Plainly the issue of Watson’s liability is still pending even if he is judgment-proof. If Pauline Walker’s insurer is contractually liable for the driver’s acts, her dismissal for personal bankruptcy has no effect on the insurer’s contractual liability. The dismissal of a bankrupt defendant does not operate as a res judicata “dismissal” of the bankrupt’s insurer or other contractee which owes a duty to third persons. See Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (224 SE2d 167). The dismissal of an insured as a bankrupt does not touch the contract to insure the insured’s vehicle or persons injured by a driver of that vehicle or other such third-party beneficiaries. If the driver’s liability would render liable the insurer who contracted to insure the car owned by Pauline Walker, the fact that Walker is no longer a party does not affect the insurer’s liability.

The trial court’s judgment — whatever it is called — leaves pending the entire merits of plaintiffs’ claims, including defendant Watson’s liability as driver and the ultimate liability of the insurer who contracted to insure the car he drove. These appeals should be dismissed as improper direct appeals of a grant of a motion to dismiss; this would leave this lawsuit intact as a viable proceeding with triable issues. No other result is proper or just.

2. The majority retains jurisdiction of this case as a direct appeal on the ground that the trial court, considering Pauline Walker’s bankruptcy filing and her discharge in bankruptcy, converted this motion to dismiss to a motion for summary judgment which is subject to direct appeal. However, OCGA § 9-11-12 provides that a motion to dismiss may be converted to a motion for summary judgment if “matters outside the pleading[s]” are considered by the trial court.

“Matters outside the pleading[s]” are such things as affidavits and other “evidentiary” materials of such substance that the inquiry is converted to one of whether any genuine issue of material fact remains for a jury (Zepp v. Mayor &c. of Athens, 180 Ga. App. 72 (348 SE2d 673)). The rule allowing conversion of a motion to dismiss to a motion for summary judgment, OCGA § 9-11-12 (b), refers only to a motion to dismiss based on the affirmative defense of failure to state a claim upon which relief can be granted. “No such treatment is statutorily mandated for a motion to dismiss based on [other affirmative defenses].” Terrell v. Porter, 189 Ga. App. 778, 779-780 (377 SE2d 540).

Moreover, the fact that an affidavit was considered on a motion to dismiss does not convert the proceedings to summary judgment proceedings. See Terrell, supra at 779, where we held: “A motion to dismiss for lack of jurisdiction of the defendant, when tried on affidavits pursuant to OCGA § 9-11-43 (b), does not become a motion for summary judgment. Behar v. Aero Med Inti., 185 Ga. App. 845 (1) (366 SE2d 223).” The reason for the conversion of a motion to dismiss for failure to state a claim to summary judgment proceedings is purely rational: the inquiry for a defense of failure to state a claim is whether there is any law or any fact or set of facts which necessarily defeats the claim (Oliver v. Irvin, 230 Ga. 248, 249 (196 SE2d 429)), so that on evidence, the movant is entitled to judgment as a matter of law on the merits. This is similar to the summary judgment inquiry whether there is any issue of fact to put to a jury and movant is entitled to judgment. Both inquiries determine the merits.

The conversion to summary judgment proceedings has been the source of much argument and confusion. See, e.g., Ledford v. Meyer, 249 Ga. 407 (290 SE2d 908). Under OCGA § 9-11-12 (b), this “conversion” is properly used only with a motion to dismiss for failure to state a claim upon which relief may be granted. See Christensen v. State of Ga., 219 Ga. App. 10, 11 (4) (464 SE2d 14). See also City of Atlanta v. Chambers, 205 Ga. App. 834 (424 SE2d 19), which, although cited by the majority, did not involve a “conversion” to summary judgment proceedings from a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b). It involved a motion for summary judgment asserting a bar of municipal immunity. In Peeples v. City of Atlanta, 189 Ga. App. 888, 889 (377 SE2d 889), we noted that a statute of limitation is a matter in bar and where the court considers matters outside the pleadings, it “should [be] treated as one for summary judgment and disposed of as provided in [OCGA § 9-11-56].” Hoffman v. PMC Dev. Co., 238 Ga. 258 (232 SE2d 541). However, Hoffman did not involve a “conversion” of motions under OCGA § 9-11-12 (b); it involved the judicial consideration of evidentiary “matters outside the complaint” in a “ ‘motion to dismiss and plea of statute of limitations.’ ” Hoffman, supra.

Where the trial court considers evidence and decides either that there is a question for the jury or that there is not, we deemed such cases in substance to be summary judgment proceedings because there is no magic in nomenclature. That is not the situation here. The federal discharge and supporting affidavit do not create an issue of fact. While the trial court necessarily looked at those documents, they were not in dispute and were conclusive as a matter of law, as a bar to the proceedings against her personally.

Technical niceties of a “bar” versus an “abatement” do not govern “conversion” of proceedings to summary judgment. The majority’s “conversion” of the trial court’s dismissal of one defendant to a final judgment as to all parties leaves plaintiffs with no recourse whatsoever, even though the trial court’s dismissal of Pauline Walker left issues pending as to the driver’s liability and the liability of the insurer of the car he drove.

We should not, on appeal, cause confusion by tweaking the trial court’s orders and proceedings into a “conversion to summary judgment” simply to reach procedural goals or adjust the rights to appeal as we might deem desirable in a particular case. Important to the question of converting a motion to dismiss to summary judgment proceedings is the question whether the trial court intended to render summary judgment. Ledford, supra at 408. The very bottom line is that “summary judgment” is proper only when the court, viewing the facts and reasonable inferences most favorably to the non-moving party, concludes that the evidence does not create a claim (OCGA § 9-11-12 (b)) or a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). Or, what starts as a motion to dismiss for the affirmative defense of failure to state a claim (OCGA § 9-11-12 (b)) may be resolved by studying evidence outside the pleadings so the trial court “converts” the motion to summary judgment proceedings with proper notice to all parties. If this had been done, plaintiffs would have been able to argue that the defendant driver’s acts were contractually covered by insurance, leaving issues pending below, and the majority could not rule as it does.

Decided March 21,1997.

Hillman J. Toombs, for appellants.

A bankruptcy discharge is an affirmative defense which bars further proceedings. OCGA § 9-11-8 (c). It does not give rise to a defense of “failure to state a claim” so as to be amenable to conversion to summary judgment proceedings (OCGA § 9-11-12 (b)), even if the trial court examines an affidavit in the course of its ruling. The only reason to convert any matter to a summary judgment proceeding is to determine whether a claim is stated under OCGA § 9-11-12 (b) or whether an issue of fact remains to be determined by a jury or judge on the merits. OCGA § 9-11-56. Unless affirmative defenses give rise to an issue of fact, they are “not within the scope of. . . summary judgment.” Intl. Indem. Co. v. Blakey, 161 Ga. App. 99, 101 (1) (289 SE2d 303).

Judicial proceedings are treated according to their substance rather than their name. McDonald v. State, 222 Ga. 596 (151 SE2d 121); Manning v. Robertson, 223 Ga. App. 139, 142 (476 SE2d 889). The substance of this motion was merely to dismiss Pauline Walker personally, and not to dismiss the driver of her vehicle or the insurer of her vehicle which would be liable for the driver’s acts. As the dismissal of Pauline Walker for bankruptcy discharge bar is not a final judgment, and many issues remain pending on the merits, this is an interlocutory judgment and appellants were not entitled to direct appeals. OCGA § 5-6-34.

Whatever the analysis, even if the majority insists on entertaining these as direct appeals, the case should be returned to the trial court for resolution on the merits of plaintiffs’ claims. To do otherwise violates the mandate of Rule 1 of the Civil Practice Act (OCGA § 9-11-1), which forbids us from aborting cases on procedural technicalities when the merits of the case can fairly be reached. See Ambler, supra. The result of the majority is neither fair nor correct.

I respectfully dissent. I am authorized to state that Presiding Judge Pope joins in this dissent.

Berry & Wilson, Matthew T. Berry, Richard L. Ormand, for appellee.


author: Eldridge, Judge.

text:
    A97A0574.
    GEORGIA PACIFIC CORPORATION v. WILSON.
    (484 SE2d 699)
   Eldridge, Judge.

Appellee, Billy C. Wilson, was an employee of appellant who received temporary total disability benefits from appellant, which disability began on March 3, 1992. Appellee became aware of the injury on December 7, 1991. After contravening appellee’s claim and a hearing before the administrative law judge (ALJ), appellee received an award of temporary total disability on September 23, 1993.

On or about March 20, 1995, Wilson became employed by Spartan, Inc. to do light-duty work as a checker; appellee documented tools issued from a tool room and sat in a chair to do this job. Spartan, Inc. was a contractor that was doing maintenance services for appellant on appellant’s premises in Early County during a short shutdown, and Wilson worked there temporarily for such period. The work and appellee’s job lasted from March 20, 1995, through May 30, 1995. Appellee Wilson worked for Spartan, Inc. under his son’s name and social security number. No medical release for Wilson to return to work had ever been entered.

When appellant learned that appellee was working full-time for Spartan, Inc., appellant suspended payment of appellee’s temporary total disability benefits on May 10,1995. Appellant moved for a hearing to adjudicate the issues regarding suspension of benefits under the prior award or reduction of Wilson’s benefits, as well as the determination of whether or not appellee had to reimburse appellant for any overpayment. The record and transcript revealed how many days and hours appellee had with Spartan, Inc., as well as how much compensation was received.

A hearing was held on December 4, 1995; Wilson neither testified nor appeared at the hearing.

1. Appellant’s first enumeration of error is that the State Board of Workers’ Compensation (State Board) erred in placing the burden of proof on appellant to show that appellee no longer was entitled to continued temporary partial disability benefits after the termination of his employment with Spartan, Inc. on May 30, 1995.

Appellant sought the hearing before the ALJ in order to: (1) justify its termination of benefits for temporary total disability previously awarded, or (2) to determine any reduction of benefits. Appellee Wilson had made no motion for change of condition. Since appellant was seeking either to terminate or to reduce benefits previously awarded to appellee, then appellant properly had the burden of proof, even when the hearing went into reduced benefits as temporary partial disability; appellant, not appellee Wilson, was the movant. “Where a change of condition was asserted, the burden of establishing this was on the party claiming such change under our former procedure. Fortson v. American Surety Co., 92 Ga. App. 625 (2) (89 SE2d 671) [(1955)]. This is true because the award of the board was res judicata and conclusive until superseded by a new award. Complete Auto Transit v. Davis, 101 Ga. App. 849 (115 SE2d 482) [(I960)]; Hartford Accident &c. Co. v. Webb, 109 Ga. App. 667 (1) (137 SE2d 362) [(1964)].” Cornell-Young &c. v. Minter, 168 Ga. App. 325, 327 (309 SE2d 159) (1983); see also Lumbermen’s Mut. Cas. Co. v. Cook, 195 Ga. 397 (24 SE2d 309) (1943); Rourke v. U. S. Fidelity &c. Co., 187 Ga. 636, 638 (1 SE2d 728) (1939); Home Accident Ins. Co. v. McNair, 173 Ga. 566 (1) (161 SE 131) (1931); Yates v. Hall, 189 Ga. App. 885 (377 SE2d 887) (1989). There is no provision for automatic cancellation of an award; thus, an award remains in effect until changed. Guess v. Liberty Mut. Ins. Co., 219 Ga. 581 (134 SE2d 783) (1964); Hayes v. Consolidated Freightways, 131 Ga. App. 77 (205 SE2d 40) (1974). Even if the appellee’s physical condition remains unchanged, then a change in economic condition, i.e., earning capacity, constitutes a “change in condition.” Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978). Where the change in condition is sought by the employer, the employer has the burden of proof. Commercial Union Ins. Co. v. Weeks, 155 Ga. App. 20 (270 SE2d 259) (1980); see also Freeman v. Continental Baking Co., 212 Ga. App. 855 (443 SE2d 520) (1994); Cornell-Young cfee. v. Minter, supra at 329-330. The employer carried its burden of proof to show that the appellee had a change for the better. Freeman v. Continental Baking Co., supra at 856; Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827 (278 SE2d 674) (1981); Hercules, Inc. v. Adams, 143 Ga. App. 91 (237 SE2d 631) (1977). However, the burden did not shift in the same hearing from the employer, appellant, to the claimant, appellee, to show what lesser disability benefits if any, the claimant, appellee, was entitled to receive, because “[t]he board on its own motion may propose or any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision. . . .” OCGA § 34-9-104 (b). Unless and until the ALJ or the State Board makes a new award, the prior award continues as res judicata, and the movant continues to have the burden of proof. Yates v. Hall, supra; Hartford Accident &c. Co. v. Webb, supra.

The State Board did not err.

2. Appellant’s second enumeration of error is that the State Board erred as a matter of law in determining that appellee was entitled to continued temporary partial disability benefits after his employment with Spartan, Inc. was terminated on May 30, 1995.

If an employer seeks a change in the condition of the employee from temporary total disability to temporary partial disability, then the employer must prove the ability to do light-duty work. However, if the employee seeks to return to the original status of temporary total disability, then the employee has. the burden of proof. But if the employee accepts the reduced benefit determination of temporary partial disability and does not seek to return to a higher benefit level of temporary total disability, then such lower benefit determination of temporary partial disability would continue after a termination of the light-duty work. Cornell-Young &c. v. Minter, supra. To terminate all benefits at the same hearing from temporary total disability, or to overcome a revised award of temporary partial disability from a temporary total disability made upon such evidence, the employer must show the employee’s ability to return to full duty, without restrictions, and the availability of suitable work. Peterson/Puritan, Inc. v. Day, supra. Appellant failed to prove that appellee had the ability to resume unrestricted full-time work; that suitable work was available; and that appellee no longer had an economic disability. All appellant proved at the hearing was that appellee had the ability to return to suitable light-duty work at his former wage level. Therefore, under the evidence, or lack thereof, temporary partial disability benefits were an appropriate award.

Contrary to appellant’s assertions, Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), overruled on other grounds, Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995), does not call for an automatic termination of all benefits as a matter of law. In Aden’s, the employer suspended benefits when it learned that the employee had returned to work at a lower paying job while the original restrictions on the ability to work were still in force; the subsequent employer fired the employee when it learned that the employee was drawing workers’ compensation, as well as working full time; the employee, not the employer, then sought, by hearing, to obtain a resumption of temporary total disability benefits. This Court affirmed the denial of temporary total disability benefits but remanded the case for the determination of temporary partial benefits. While the resumption of light-duty work would deprive the employee of temporary total disability benefits after the subsequent job was terminated or ended, the employee was entitled to temporary partial benefits, unless the employer proved that the employee had the ability to return to full duty, without restrictions, and suitable work was available.

Decided March 10,1997

Reconsideration denied March 24,1997

Drew, Eckl & Farnham, Lawrence L. Bennett, Jr., for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, Mark R. Youmans, for appellee.

The State Board did not err.

3. Appellant’s final enumeration of error is that the State Board erred by awarding appellee continued temporary partial disability benefits after his employment with Spartan, Inc. was terminated on May 30, 1995, in that there is no evidence in the record to support said award.

The ALJ found: (1) that appellee continued to be restricted in performing light-duty work; (2) that the Spartan, Inc. tool room attendant position was suitable light-duty work; (3) that appellee was not able to work all the hours Spartan, Inc. wanted him to work because of his original injury; (4) and that with the termination of the job with Spartan, Inc., appellee continued to be economically disabled. Under the any evidence rule, the award must be affirmed. A & P Transp. v. Warren, 213 Ga. App. 60 (443 SE2d 857) (1994); Peterson/Puritan, Inc. v. Day, supra. The evidence shows that appellee still suffers from the original injury to the extent that he cannot resume his regular duties. Williams Bros. Lumber Co. v. Magee, 162 Ga. App. 865 (292 SE2d 477) (1982). The evidence does not show the continued availability to appellee of suitable work so that he still suffers an economic disability due to his original injury. Peterson/Puritan, Inc. v. Day, supra.

The State Board did not err.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A0763.
    FAIRBANKS v. THE STATE.
    (484 SE2d 693)
   Eldridge, Judge.

A Clayton County jury found appellant Charles Henry Fairbanks guilty of an aggravated assault on his ex-wife during which appellant shot her in the throat with a handgun. We affirm his conviction.

1. Appellant alleges error in the introduction of two prior difficulties between the parties. First, appellant contends that the state failed to make the appropriate showings for the introduction of such evidence under Williams v. State, 261 Ga. 640, 641 (409 SE2d 649) (1991). At trial, appellant failed to object to the admissibility of this evidence based on the Williams standard. Accordingly, this enumeration of error has been waived. Gable v. State, 222 Ga. App. 768, 770 (476 SE2d 66) (1996); Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

Appellant also challenges the adequacy of the notice of prior difficulties and contends that the state introduced more than the two incidents of prior difficulties contained in the written notice to the appellant. Appellant argues that he was thus unprepared to defend against additional instances of prior difficulties. This claim is merit-less.

Pursuant to Uniform Superior Court Rule 31.1, the state provided the appellant with notice of the two prior difficulties it intended to introduce against him: stalking on February 7, 1994, and terroristic threats on September 27, 1993. Prior to trial, the appellant claimed full knowledge of all prior difficulties between the parties and did not at any time contest the adequacy of the notice.

Moreover, contrary to appellant’s assertions, the state did not go beyond the parameters of the notice when introducing evidence of the two prior difficulties. The first indication that any additional prior difficulties may have occurred between September 1993 and February 1994 arose through suggestion by appellant during cross-examination. There was no error.

2. In his next enumeration of error appellant asserts that reversible error occurred when the state improperly commented on appellant’s Fifth Amendment right to silence pursuant to the Supreme Court of Georgia’s holding in Mallory v. State, 261 Ga. 625, 629 (5) (409 SE2d 839) (1991). For the reasons that follow, we disagree.

First, a review of the record demonstrates that appellant did not object to that portion of the state’s cross-examination which he now contends is reversible error as an improper comment on his right to remain silent. Consequently, this enumeration of error is waived. Pruitt v. State, 176 Ga. App. 317, 321 (335 SE2d 724) (1985); see also Smith v. State, 221 Ga. App. 428 (472 SE2d 4) (1996); Harrison v. State, 213 Ga. App. 366, 367 (1) (444 SE2d 613) (1994).

Further, a review of the record demonstrates that appellant’s contentions are meritless since the appellant testified that he freely and voluntarily talked to the police. During direct examination, appellant took the stand and testified that he was “placed under arrest by Officer Brown, the black officer. Officer Cash did not put handcuffs on me, he did not take me to the car. Officer Cash is the one who took the gun and was in control of the gun. Officer Brown took me to the police car, which was driven by Officer Cash. Officer Brown, I told him, Lorraine came into my house and had these different restraining orders and stalking charge on me. She came into my house and she tried to kill me, stab me with that knife. He said, just wait until the investigator comes here and he’ll take your story, and nobody ever came back and talked to me in the car.”

On cross-examination, appellant, again, testified as to his discussions with the police: “[Prosecutor]: And you told officer Brown that you shot your wife in self-defense? [Appellant]: Yes, ma’am. [Prosecutor]: You’re telling this under oath? [Appellant]: Yes, ma’am.”

Again, on re-cross, appellant testified concerning his statements to the officer: “[Prosecutor]: Did you tell Officer Brown about'this knife that she allegedly had? [Appellant]: Yes, ma’am, I did. [Prosecutor]: Did you want to try to point it out to him? [Appellant]: Well,. he wanted to get me into the car and I guess secure the area. He said an investigator would come and talk to me. I think his name was, it’s on the police report. The investigator’s name was, if I could see that police report, I could tell you his name. [Prosecutor]: I’m interested in what you told Officer Brown. . . . You told him about the knife that she allegedly had? [Appellant]: Yes, ma’am.”

Thereafter during a pointed second redirect, appellant testified that he wanted to talk to an investigator, but one was not forthcoming: “[Defense Attorney]: Did you ever talk to an investigator from the City of Forest Park? [Appellant]: No investigator talked to me, no. [Defense Attorney]: You talked to the police officers that have testified, but you never talked to an investigator? [Appellant]: No. No investigator ever showed up at the — I didn’t see an investigator. [Defense Attorney]: Did you ever talk to an investigator since you’ve been arrested? [Appellant]: No.”

The state then countered on a second re-cross: “[Prosecutor]: Mr. Fairbanks, isn’t it because when Officer Cash entered the apartment, you said, I don’t want to make any statements until I’ve got an attorney. . . . [Appellant]: The truth is I did say that, yes, I need to have an attorney present. [Prosecutor]: And you refused to answer any questions until you had an attorney present and the law does not allow police to inteview [sic] defendants when they’ve invoked their right to counsel, isn’t that correct, Mr. Fairbanks? [Appellant]: No, ma’am.”

From a review of the above, it is clear to this Court that appellant took the stand and implicitly waived any Fifth Amendment concerns when he voluntarily testified about his alleged statements to the police and his unrequited desire to converse further with an investigator, which desire was allegedly frustrated only by a non-responsive police force. Appellant cannot, then, on appeal claim a violation of his Fifth Amendment right to silence when he, himself, maintained that he did not remain silent. Thus, the state properly questioned him concerning the making of these alleged statements. “The shield provided by Miranda [v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)] cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris v. New York, 401 U. S. 222, 226 (91 SC 643, 28 LE2d 1) (1971). The shield of Miranda may not be turned into a sword. Cribbs v. State, 204 Ga. App. 109 (418 SE2d 405) (1992). There was no error.

3. In his third and fourth enumerations of error, appellant takes exception to the trial court’s charge to the jury on justification. Specifically, appellant claims as error the trial court’s alleged failure to charge the jury on defendant’s Request to Charge No. 3 regarding the state’s burden to disprove an affirmative defense, and an alleged failure to charge the jury on defendant’s Request to Charge No. 4 that “if they believed the defendant to have been justified, it would be their duty to acquit the defendant.”

We have reviewed the trial court’s charge on justification and find appellant’s assertions to be meritless. The trial court correctly charged the jury that “[t]he State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense”; correctly charged the jury that if “the defendant’s conduct was justified, this is a defense to prosecution for any crime based on that conduct”; and correctly charged on the form of the verdict. “It is not necessary that the jury be given the exact language requested where the same principles fairly are given to the jury in the general charge.” (Citations and punctuation omitted.) Trotter v. State, 216 Ga. App. 612, 614 (3) (455 SE2d 121) (1995). There was no error.

Decided March 10,1997

Reconsideration denied March 24,1997

Elizabeth A. Baker, for appellant.

Charles H. Fairbanks, pro se.

Robert E. Keller, District Attorney, Lisa S. Estes, Assistant District Attorney, for appellee.

4. Lastly, appellant alleges ineffective assistance of counsel based upon (1) his attorney’s failure to object to the introduction of the prior difficulties evidence based on Williams-, and (2) his attorney’s failure to object to the state’s alleged comment on appellant’s right to remain silent.

Error and prejudice must be shown in order to prevail on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Prejudice requiring reversal entails a showing that, but for the enumerated error, there is a reasonable probability that the outcome of the proceedings would have been different. Wade v. State, 208 Ga. App. 700, 701 (431 SE2d 398) (1993).

With regard to appellant’s contention concerning the admission of the prior difficulties evidence, this evidence was clearly admissible under the Williams standard as the evidence showed: (1) appellant was the perpetrator of the independent offense; (2) motive and the state of feelings between the parties; and (3) sufficient probative connection between the crime charged and the prior difficulties. See Maxwell v. State, supra at 74 (2). Thus, appellant cannot show that a timely objection on the part of counsel and the subsequent conformation of the hearing to comport with Williams would have produced a different result.

Further, for the reasons outlined in Division 2 above, we find appellant failed to show either error or prejudice with regard to counsel’s failure to object to an alleged comment on appellant’s Fifth Amendment right to silence.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       The proper analysis for the admissibility of prior difficulties is found in Maxwell v. State, 262 Ga. 73, 75 (414 SE2d 470) (1992), which extends the Williams similar transaction admissibility threshold to evidence of prior difficulties between the parties. See also Stewart a State, 263 Ga. 843, 847 (440 SE2d 452) (1994), Hunt, P. J., dissenting (distinguishing evidence of prior difficulties from similar transaction evidence).

       The case sub judice is entirely distinguishable from Mallory, supra. In Mallory, the issue concerned the introduction during the state’s case-in-chief of that portion of Mallory’s post-arrest statement regarding why he had not come forward during the investigation to explain his innocence. Id. at 629. The instant case involves a defendant who voluntarily testified at trial on his own behalf regarding his alleged repeated statements to the police from the moment the investigation began with the arrival of the officers at his front door, and his stated intention to communicate further with any investigator who would interview him. Thus, the Mallory rule, wherein a witness may not testify as to a criminal defendant’s statement based on the acquiescence or silence of the defendant, does not impact on a scenario such as the instant case wherein the defendant testifies as to statements he made and denies silence altogether. See Jarrett v. State, 265 Ga. 28 (453 SE2d 461) (1995).

       Appellant does not herein claim a violation of any rights pursuant to Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981).

       Appellant improperly relies upon Anderson v. State, 262 Ga. 7, 8 (2) (413 SE2d 722) (1992) for the proposition that a trial court must charge the jury specifically that it is their duty to acquit a defendant if they find the presence of justification. Anderson was overruled on this ground. Coleman v. State, 264 Ga. 253, 254 (3) (443 SE2d 626) (1994). Thus, defendant’s Request to Charge No. 4 about which appellant complains was an incorrect statement of law and provides no basis for reversal.