text:
    A93A1059.
    HUNTER et al. v. ROUSE-ATLANTA, INC. et al.
    (438 SE2d 188)
   Cooper, Judge.

Appellants, victims of a shooting incident in the plaza area just outside Underground Atlanta, brought an action against the operators of Underground, Rouse-Atlanta, Inc. and Underground Festival, Inc., alleging a failure to provide adequate security. Appellants appeal the trial court’s order granting summary judgment in favor of appellees Rouse-Atlanta and Underground Festival.

Viewed in a light favorable to appellants, the evidence shows that sometime during the evening of August 10, 1990, appellants were walking across an area known as Peachtree Fountains Plaza just outside Underground Atlanta on their way into Underground to get something to eat. At the stairwell leading into Underground, appellants found themselves in between a group of young men wearing red scarves and a group of four young men wearing blue scarves. The young men wearing blue scarves suddenly began shooting at appellants. All three appellants were shot, one of them fatally. Appellants’ complaint alleges appellees failed to provide adequate security to the entrances of Underground and failed to remove the young men who shot them from Underground when they knew or should have known that there was an unreasonable apprehension of danger to patrons of Underground from the conduct of these young men.

1. Appellants first argue the trial court erred in granting summary judgment to appellees because it incorrectly applied a “foresight standard” for determining whether appellees owed a duty to guard against such a criminal attack. “The general rule is that a [proprietor] is under no duty to anticipate a criminal assault against an invitee by a third party; however, the rule has been held inapplicable if the [proprietor] had reasonable grounds for apprehending that such a criminal act would be committed.” (Citations and punctuation omitted.) Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 817 (1) (386 SE2d 415) (1989). “[I]n order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the [proprietor] may be held liable.” (Citations and punctuation omitted.) Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993). The standard applied by the trial court was whether the proprietor had reasonable grounds for apprehending that such a criminal act would be committed. As such, the trial court applied the proper standard to this case.

Appellants’ reliance on this court’s decision in Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (414 SE2d 265) (1991), for the proposition that the trial court should have applied a different rule is misplaced. This court in Confetti did not apply a rule different from that set forth above. We simply determined that the attack on the plaintiff therein was not an isolated criminal attack but rather “the extension of an uncontained, uninterrupted fight” and that it was foreseeable that a fight which continues unchecked could turn into a more violent encounter. Confetti, supra at 243.

2. Appellants nevertheless contend that even if the trial court did apply the correct standard, genuine issues of material fact exist as to whether evidence of prior criminal acts at Underground was sufficient to put appellees on notice of the danger of a shooting attack on appellants. In support of their motion for summary judgment, appellees showed that no shooting had previously occurred at Underground. They produced evidence that they had an agreement with the City of Atlanta whereby its police officers would provide security in the area in question, that the city maintained a police precinct in the above-ground portion of Underground, and that two to three City of Atlanta police officers always patrolled the plaza area. They further showed that two police officers had been patrolling the area in question just before the shooting occurred.

In opposition to the motion for summary judgment, appellants pointed to deposition testimony by the former Chief of Security at Underground that young' people in general were “running crazy and intimidating a lot of people” on Friday and Saturday nights and that his request for additional security to assist in controlling the young people had been turned down. As to the youths in question, he testified that they had frequented Underground and that a couple of them had been issued criminal trespass warnings and asked to leave. He had seen the youths in question wearing blue bandannas which he understood could be symbolic of gang membership; however, he did not consider the youths to be members of a gang.

Appellants also submitted a handwritten statement of a flower seller at Underground who was apparently present during the shooting. The statement said that on the night of the shooting the four young men in question were sitting on the steps leading into Underground from approximately 6:30 p.m. on drinking beer from brown paper bags and verbally harassing visitors entering Underground. It also said that three to four weeks before the shooting the youths in question were involved in an altercation with some other young men in the area of Underground adjacent to Pryor Street in which they threw bottles at the other young men. While appellants refer to this notarized statement as an affidavit, it does not state that it was based upon the flower seller’s personal knowledge or even that he witnessed any of the incidents to which he attested.

Decided November 24, 1993.

Gerry Carty, for appellants.

Gorby & Reeves, Michael J. Gorby, Amanda H. Burri, for appellees.

The dangerous condition alleged by appellants to exist in the plaza area outside Underground was that the presence of the youths who shot appellants presented a risk of a violent criminal attack on patrons of Underground. However, none of the incidents described by the former Chief of Security involved personal injury to patrons of Underground. We cannot say that young people “running crazy” and verbal harassment of Underground patrons by the youths in question were so substantially similar to the attack on appellants as to place appellees on notice that appellants might be shot. See Tolbert v. Captain Joe’s Seafood, 170 Ga. App. 26 (2) (316 SE2d 11) (1984). Finally, even assuming the flower seller’s statement describing the bottle-throwing incident provided competent evidence of a prior incident at Underground involving the youths in question, the statement does not show that this attack involved patrons of Underground. See Gay v. Franchise Enterprises, 203 Ga. App. 870 (418 SE2d 135) (1992). “Thus, the [statement] was insufficient to establish the essential element of [appellees’] knowledge of prior substantially similar incidents sufficient to place [appellees] on notice of a danger to [appellants].” Id. at 872. “As a matter of law, appellee[s] owed no duty to protect [appellants] from the attack at issue. [Cits.]” Woods, supra at 911.

“Since appellee[s] did not know of the dangerous conditions giving rise to the present attack ... we find no merit in the claim that appellee [s] failed to provide security adequate to prevent this kind of attack. [Cit.] There was no evidence that any security efforts undertaken by appellee [s] were otherwise below a reasonable standard of care, made the situation worse by increasing the danger, misled [appellants] into the belief that the danger had been removed, or deprived [appellants] of the possibility of help from other sources. [Cits.]” Woods, supra at 911. Accordingly, the trial court’s grant of summary judgment to appellees was proper.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

       Appellants also brought suit against the alleged gunman; however, he is not a party to this appeal.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A1387.
    A93A1388.
    A93A1389.
    A93A1514.
    ROBINSON v. DEPARTMENT OF CORRECTIONS. DEPARTMENT OF CORRECTIONS v. ROBINSON. ROBINSON v. DEPARTMENT OF CORRECTIONS. ROBINSON v. DEPARTMENT OF CORRECTIONS.
    (438 SE2d 190)
   Beasley, Presiding Judge.

This case involves attorney fee awards for representation on appeal to the superior court under the Fair Employment Practices Act, OCGA § 45-19-20 et seq., specifically OCGA § 45-19-39 (c).

Williams filed complaints with the Georgia Office of Fair Employment Practices (OFEP), alleging that she had been unlawfully denied employment at two Department of Corrections penal institutions because of her race and sex.

A special master entered findings of fact and conclusions of law in favor of Williams on the issue of unlawful discrimination. He denied her request for attorney fees on the ground that, because she was not obligated to pay any attorney fees either on a contingent basis or otherwise, to grant such would exceed that to which she was entitled, i.e., actual damages only, citing OCGA § 45-19-38 (d).

Williams petitioned for judicial review, enumerating as error the special master’s deduction of unemployment compensation benefits from her back pay award, refusal to award prejudgment interest, and refusal to award attorney fees. The department cross-petitioned, challenging the special master’s findings and conclusions.

The superior court concluded that each of Williams’ enumerations was meritorious. In its order, the court noted only one contention by the department, which related to the timeliness of an amendment to Williams’ complaint, and rejected it. As to attorney fees, the court held that “the attorney’s fee statute authorizes courts to award reasonable attorney’s fees to the prevailing civil rights litigant, and as such, it is appropriate to award fees to the Petitioner. Accordingly, that part of the Special Master’s order declining to award attorney’s fees is reversed and remanded.” The court found that Williams’ attorney had agreed to represent her “on a pro bono basis, and at a reduced hourly rate to be paid by OFEP without regard to outcome.” The court did not rule on Williams’ request for attorney fees incurred in the judicial review but instead remanded that, too, despite reference to OCGA § 45-19-39 (c), the statute authorizing courts to award fees. No application for discretionary review from this final order was filed by either party under OCGA § 5-6-35 (a) (1).

On remand, the special master awarded attorney fees in connection with counsel’s representation before the special master and required counsel to reimburse OFEP for fees paid by it. It refused to rule on attorney fees incurred in pursuing judicial review, correctly concluding that § 45-19-39 (c) authorizes only the superior courts to decide this issue.

Williams filed a “supplemental” petition for judicial review and “motion” in the superior court in which she sought attorney fees for counsel’s representation in the prior appeal to superior court. This was in effect a new appeal pursuant to § 45-19-39, even though it was given the same case number as the prior action. As such, it was timely, having been filed within 30 days of the special master’s final order. OCGA § 45-19-39 (a). The department did not file a cross-petition.

The superior court denied the “supplemental” petition on the ground that Williams’ counsel was provided to her by OFEP and was not retained at her own expense. It cited Dept. of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992), as controlling. Williams moved for reconsideration, on the ground that Finney did not preclude attorney fees for the time expended by counsel in superior court, in that Williams’ attorney was not paid by OFEP for activities in superior court. There was a fee arrangement between Williams and her attorney under which she agreed to pay to counsel only any fee award given in the state administrative or judicial proceeding or as a result of filing an action in federal court.

While the motion for reconsideration was pending, Williams applied for discretionary appeal of the court’s two orders, insofar as they denied attorney fees for the time expended by counsel before the court. The application was granted, effective only as to the second order; the application for review was too late with respect to the first order, which similarly was a final order. Williams filed a timely notice of appeal in Case No. A93A1387 on July 1. It is valid insofar as it relates to the second order.

Also on July 1, the superior court vacated its second order upon reconsideration of Finney and granted Williams’ request for attorney fees incurred in superior court, both for the initial judicial review and for bringing the motion for reconsideration. On July 4, Williams died. On July 27, the department applied for discretionary appeal of the July 1 order. Permission was granted, and the department filed a timely notice of appeal in what is now Case No. A93A1388. '

Williams’ attorney then filed a notice of cross-appeal of the July 1 order, Case No. A93A1389, in Williams’ name. Seven months later, Robinson, the administrator of Williams’ estate, also filed an identical notice of cross-appeal from the July 1 order, Case No. A93A1514. A substitution of parties should have been effected instead. OCGA § 9-11-25 (a) (1). In any event, the two appeals (A93A1389 and A93A1514) are actually one and proceed in the name of the administrator as the proper party, as does the appeal by the department.

1. Both administrator Robinson and the department acknowledge, correctly, that the superior court was without jurisdiction to enter the July 1 order granting Williams’ motion for reconsideration. The filing of the application for discretionary appeal divested the court of power to effect the judgment. OCGA § 5-6-35 (h). Even if it vacated the judgment appealed and reached a different and proper result, it must be reversed because it is void. Park v. Minton, 229 Ga. 765, 769 (3) (194 SE2d 465) (1972). Consequently, the judgment in Case Nos. A93A1388, A93A1389, and A93A1514 is reversed.

2. In Finney v. Dept. of Corrections, 263 Ga. 301 (1) (434 SE2d 45) (1993), a three-justice plurality of the Supreme Court held that where a FEPA claimant is not contractually obligated to pay counsel, the special master is not authorized to award attorney fees since OCGA § 45-19-38 (d) states that “[a]ny monetary award ordered pursuant to this article [Article 2] shall be for actual damages only.” The plurality did not consider that, regardless of the claimant’s contractual relationship with her representative, an attorney’s fee is a real cost whether OFEP pays it, the claimant pays it, her relatives or friends pay it, or the attorney foregoes it. In so holding, the plurality distinguished a special master’s implicit authority under OCGA § 45-19-38 to award reasonable attorney fees to a successful claimant, as held in Kilmark v. Bd. of Regents, 175 Ga. App. 857, 870 (5) (334 SE2d 890) (1985), from OCGA § 45-19-39 (c).

The latter section expressly authorizes a superior court in its discretion to award reasonable attorney fees and costs of litigation if, upon judicial review of any order of a special master, the court rules in favor of the complainant. In Division 2, the plurality recognized that Sections 38 and 39 are significantly different and held that the issue of Finney’s entitlement to a recovery under OCGA § 45-19-39 (c) was “an entirely separate issue from” her entitlement to a recovery of attorney fees in the special master proceeding. Finney, supra at 303. The case was remanded to this Court with direction to address the issues of whether Finney might be eligible to recover attorney fees pursuant to OCGA § 45-19-39 (c) and, if so, whether the superior court erred in failing to make such an award. No decision has been reached yet.

The two-justice special concurrence in Finney would hold that the determinative factor for the opportunity for a special master to award attorney fees to the prevailing party is whether the party has obtained counsel appointed by OFEP pursuant to OCGA § 45-19-27 (3) or retained private counsel at his or her own expense pursuant to OCGA § 45-19-37 (i). The special concurrence states that “since Finney’s attorney at the superior court level was not compensated under the contract with the OFEP administrator, see OCGA § 45-19-27 (3), unlike the proceedings before the special master, Finney would not be precluded from a fee award under the rationale of this special concurrence.” Finney, supra at 305, n. 2.

The two-justice dissent in Finney would hold that a prevailing FEPA claimant is entitled to an award of reasonable attorney fees at both the special master and superior court levels irrespective of the amount of the attorney fees actually incurred and irrespective of whether the attorney was appointed by OFEP. The dissent’s reference to the “reasonable attorney fee provisions of OCGA § 45-19-38 (c)” is to the implied authority for such, inasmuch as subsection (c) contains a non-inclusive list of remedies, but it does not expressly mention attorney fees.

Under Finney, and as we understand OCGA § 45-19-39 (c), a superior court has discretion under that section to award reasonable attorney fees to the complainant in whose favor the court rules, even if, as here, the complainant is not obligated to pay an attorney fee in the absence of an award. First, this result obtains under the special concurrence and dissent, which constitute the majority in Finney. It would seem that the result would also obtain under the plurality opinion.

Second, § 45-19-39 (c)’s provision for attorney fees and costs of litigation in the superior court was added to the 1978 Fair Employment Practices Act in 1983. Ga. L. 1983, pp. 1097, 1112. Compare Ga. L. 1978, pp. 859, 872-873, § 17. It expresses part of the legislature’s compensatory goals in the achievement of redress for an aggrieved person against a discriminatory state agency. The law authorizes but does not compel such an award when the underlying ruling is in favor of complainant. Making such an award is in the court’s discretion. The award, if it is to be made, is to be for “reasonable” attorney fees. There is no other qualifier, condition, or restriction. An award is not limited to those cases in which counsel is not appointed by OFEP under § 45-19-27 (3), or for those in which complainant is contractually obligated to pay counsel. The fee arrangement does not conclusively establish eligibility or noneligibility for attorney fees.

In analyzing § 45-19-39 (c) and its relationship with § 45-19-38 (d), we conclude that there is none. Section 45-19-38 (d) states that “Any monetary award ordered pursuant to this article shall be for actual damages only.” Although the reference is to “this article,” which encompasses the whole Fair Employment Practices Act, it relates to the “award” and the “award” is what the special master orders as remedial. The provision was in the original act, when there was no express authorization for the judicial body, upon review of the administrative body’s award, to award attorney fees and costs of litigation in the superior court. The meaning of § 45-19-38 (d) did not change with the introduction of an express authorization to the superior court with respect to attorney fees. When reviewing its history, it is clear that it refers to the remedies ordered at the administrative level, by the special master. Section 45-19-39 (c) provides a remedy over and above that of the special master. It is not governed by § 45-19-38 (d) but instead by its own terms.

Furthermore, the term “actual damages” in Georgia has traditionally meant compensatory damages and does not include punitive damages and attorney fees. See, e.g., Money v. Thompson & Green Machinery Co., 155 Ga. App. 566, 567 (271 SE2d 699) (1980); Hudson v. Abercrombie, 258 Ga. 729, 730 (2a) (374 SE2d 83) (1988). They are allowed by contract or statute. Here, as was held in Kilmark, supra, and affirmed by the Georgia Supreme Court in Finney, § 45-19-38 (c) in context inherently authorizes the special master to award them. That section begins: “Remedial action under this Code section may include but is not limited to” and lists, non-exclusively, certain types of remedies authorized. As indicated in Kilmark, supra at 870 (5), the remedial authority of the special master under what is now OCGA § 45-19-38 is “expansive.”

Robinson seeks attorney fees for Williams’ initial appeal to superior court, under that statute. She seeks reversal of the superior court’s second order on the ground that where the ruling of the court, which is within its discretion, shows that no discretion was in fact exercised, and the judgment rendered is based upon an erroneous view of the law which would preclude the exercise of discretion, reversal results. Mark Inn v. Dept. of Transp., 174 Ga. App. 420, 421 (1) (330 SE2d 134) (1985). It does appear that the court’s denial of Williams’ attorney fee request in its order was based upon its erroneous assumption that Finney precluded an award of an attorney fee because OFEP was compensating counsel for services rendered in connection with the appeal to superior court. Since OFEP compensation is limited-to the special master’s proceeding, § 45-19-27 (3), and since all of the superior court rulings were in favor of Williams on the first appeal, the court does have discretion to award fees.

Consequently, in Case No. A93A1387, the court’s order is reversed, and the case is remanded to the court for exercise of its discretion pursuant to § 45-19-39 (c) and in conformity herewith.

Decided November 24, 1993.

Stroup & Coleman, Robert H. Stroup, for appellant.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellee.

Judgment in Case No. A93A1387 reversed and case remanded. Judgment in Case Nos. A93A1388, A93A1389, and A93A1514 reversed.

Cooper and Smith, JJ., concur.

       It entered a separate order denying Williams’ second “supplemental” petition, on an unrelated issue. This separate order was not appealed.

       It could be argued, however, that the plurality view is that OCGA § 45-19-38 (d)’s actual damage limitation for monetary awards “pursuant to this article” is also applicable to an award of attorney fees under OCGA § 45-19-39 (c), and that the plurality contemplated the determinative threshold issue on remand as being whether Finney was obligated to pay her attorney any fee for the appeal to superior court.
      But, the plurality’s recognition of this as “an entirely separate issue from” the issue of attorney fees at the special master level indicates that different standards apply. In Division 1 the plurality cites federal statutes cast in language comparable to OCGA § 45-19-39 (c) and approvingly cites federal decisions holding that under these statutes the private fee arrangement as between the prevailing party and counsel is not determinative as to either the recovery of attorney fees or the amount thereof.


author: Birdsong, Presiding Judge.

text:
    A93A1799.
    DYE v. TRUSSWAY, INC.
    (438 SE2d 194)
   Birdsong, Presiding Judge.

Lester Dye appeals from the grant of summary judgment to Trussway, Inc. He contends the trial court improperly found that Trussway was his statutory employer within the meaning of our Workers’ Compensation Act so that his tort action against Trussway was barred under OCGA § 34-9-11.

Dye was employed by Abear Service Group, a temporary employment agency, and assigned to Trussway under a written agreement between Abear and Trussway. In the course of Dye’s work at Truss-way, Dye’s hand was severely injured in an on-the-job accident.

Abear paid Dye, handled all his personnel records, provided his unemployment insurance, and according to Abear, had the right to terminate his employment or to change his assignment from one place to another at Abear’s discretion. Trussway, however, contended that it had the right to terminate Dye’s employment.

Dye contends that as the trial court granted summary judgment on the sole issue of whether Trussway was Dye’s statutory employer (OCGA § 34-9-8 (a)), the primary issue is whether there wás a contractor/subcontractor relationship between Trussway and Abear. Trussway, however, contends that a contractual relationship is not required and that an independent contractor can be a subcontractor under the “owner plus” theory if the work is an integral part of the owner’s overall business or enterprise. Held:

This case is controlled by our Supreme Court’s recent decision in Yoho v. Ringier of America, 263 Ga. 338 (434 SE2d 57), which has clarified the application of tort immunity under the statutory employer principle. Although Yoho was decided after the trial court’s action in this case, we are obliged to apply the decision to this appeal. Clary v. State, 151 Ga. App. 301 (259 SE2d 697).

Decided November 24, 1993.

Daniel B. Simon III, for appellant.

Swift, Currie, McGhee & Heirs, Robin L. Frazer, Stephen L. Cotter, for appellee.

In combination, OCGA §§ 34-9-8 (a) and 34-9-11 grant tort immunity to contractors who are secondarily liable for workers’ compensation benefits. Our law, however, does not grant tort immunity to owners, who are not contractors, even though they are in control of premises and are actively involved in the enterprise in which an employee was injured. Yoho, supra at 341. An owner who is not a contractor owing an obligation of performance to another is not a secondary employer even if a subcontractor owes a duty of performance to the owner. Id. Therefore, the issue is whether Trussway owed a contractual duty of performance to another. Since it is apparent from the record that Trussway did not, it is not a “contractor” within the meaning of OCGA § 34-9-8 (a). Yoho, supra at 343. Accordingly, Trussway was not entitled to tort immunity under OCGA § 34-9-11 and the trial court erred by granting summary judgment to Trussway.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1621.
    THOMAS v. WHITE et al.
    (438 SE2d 366)
   Birdsong, Presiding Judge.

Jacqueline Thomas appeals the grant of partial summary judgment to the defendants on the issue of punitive damages in her legal malpractice action against Fred White, Alan Bates, and Alexander Repasky, individually, and their law firm, Repasky & Bates, attorneys at law. Thomas’ claims against those defendants arose from her representation by Bates and Repasky after she was injured when her car, while stopped at a traffic light, was struck from the rear by a large truck with Budweiser signs on the side. That truck was apparently owned by Atlanta Beverage Company. Although the case was initially handled by another attorney in the firm, White was later given responsibility for appellant’s case.

After suit was filed against Atlanta Beverage Company and its driver, it was dismissed and then refiled. Subsequently, under the local rules of court, the case was referred for arbitration. Because service of process was not perfected against the driver, only Thomas and Atlanta Beverage Company participated in the hearing. After the hearing, the arbitrators recommended a defendant’s verdict because Thomas did not prove that Atlanta Beverage Company owned the truck.

Although the local rules required that a demand for jury trial be filed within 30 days of the recommended result to continue the case, no demand was filed and appellees admit that the failure was their responsibility. Subsequently, upon Atlanta Beverage’s motion, Thomas’ case was dismissed.

Thereafter, Thomas filed this action seeking damages from appellees for their professional negligence and also seeking punitive damages for fraud under OCGA § 51-12-5.1. Thomas alleged that appellees, through their failure to communicate with her and their false statements, wilfully and intentionally concealed from her that her claim was dismissed as a direct and proximate result of appellees’ negligence. According to Thomas’ allegations, White misrepresented to her the status of her case, refused to communicate with her, and ultimately told her that the case had not been lost and he was working on it.

Thereafter, appellees moved for partial summary judgment on the issue of punitive damages. They contended that at best Thomas had alleged a claim for their negligence in failing to file the demand for trial and that negligence, without culpable conduct, does not authorize imposition of punitive damages. See, e.g., Morales v. Webb, 200 Ga. App. 788, 790 (409 SE2d 572). Moreover, they contended that Thomas’ deposition testimony showed she had no claim for fraud or concealment. The trial court granted the motion and this appeal followed. In three enumerations of error, Thomas asserts that the evidence showed that a genuine issue of material fact existed on whether punitive damages would be authorized because of appellees’ fraud. Held:

Although appellees correctly assert that negligence alone, even gross negligence, will not support the imposition of punitive damages (Morales v. Webb, supra), Thomas is not seeking punitive damages because of appellees’ negligence in failing to file the demand for jury trial. Instead, the record shows that Thomas sought punitive damages because of appellees’ wilful and intentional concealment of the fact that her case was lost through their negligence, because of their wilful, knowing, and intentional false statements that it was her fault the demand for trial was not filed since she did not tell them to file the demand, and because of their intentional, wilful, knowing, and fraudulent refusal to communicate with her about her case after the demand for trial was not filed and the case was lost. As these allegations, if proven, will support an award of punitive damages, appellees’ contention that Thomas’ complaint would not authorize the award of punitive damages is without merit. Holmes v. Drucker, 201 Ga. App. 687, 688 (411 SE2d 728); Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 792-793 (399 SE2d 565).

Moreover, the evidence shows that genuine issues of material fact exist on whether appellees fraudulently concealed their failure to file the demand for jüry trial. In her deposition, Thomas testified that after the arbitration hearing White did not tell her that the arbitration panel had recommended against her or explain the need for a timely demand for jury trial. Instead, White told her Atlanta Beverage had offered to settle her case for $30,000, that she should think about it, and that he would get in touch with her. She testified further that after she did not hear from him for almost two months, she repeatedly attempted to contact White over a period of weeks, but he would not speak with her and would not return her calls. During this period, Thomas first learned from White’s secretary that Thomas’ case had been lost because the demand for jury trial was not filed. Finally, after Thomas threatened to bring another attorney into the case, White spoke with her and said that he had told her she had lost her case. Thomas further testified that when Thomas disputed this and protested that White was supposed to keep her informed about the case, White said, “Well, Jackie, you lost the case.” According to Thomas, as White then began using big words she did not understand and she stated she would hire another attorney, White told her not to do that and he would call her later. Thomas further testified that White called her back and told her, “Jackie, you haven’t lost the case. Repasky and I, we’re working on it and I’ll call you back.” According to Thomas, however, White never called back.

Thomas also testified that White’s secretary told her that her case was dismissed. Although appellees dispute Thomas’ contentions, we find that her testimony is sufficient to present a jury issue on whether appellees were fraudulently concealing from Thomas, by refusing to communicate with her and misstatements of the facts, that they had caused her case to be dismissed because they had failed to file the jury trial demand. Moreover, even without the evidence of the misstatements of fact, because of the attorney-client relationship between these parties, appellees’ failure to communicate with Thomas about the status of her case, under the circumstances here, could be sufficient to constitute fraud. See Arnall, Golden & Gregory v. Health Svc. Centers, supra at 793. Further, other facts in the record support Thomas’ contention that appellees were intentionally concealing their responsibility for the loss of her case. For example, White’s response to Thomas’ bar complaint contended that she was responsible for not telling him to file the demand for jury trial, but in an earlier letter to his malpractice insurance carrier, he placed the blame on his secretary for not filing the demand after he had instructed her to do so. In the deposition White’s secretary, however, denied that any such instructions had been given.

Decided October 25, 1993

Reconsideration denied November 29, 1993

Dover & Sexton, Jeffrey H. Dover, Jonathan P. Sexton, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Edward A. Miller, for appellees.

Finally, we do not find that Thomas’ inability to recite at her deposition the facts and theories necessary to support an award of punitive damages to be dispositive of this issue. Under the evidence of record, the trial court erred by finding no genuine issue of material fact remained for trial. Holmes v. Drucker, supra; Arnall, Golden & Gregory v. Health Svc. Centers, supra. Accordingly, the trial court’s grant of summary judgment on this issue must be reversed.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A0308.
    COLLINS et al. v. GRAFTON, INC.
    (440 SE2d 267)
    Decided November 29, 1993.

      Willie J. Woodruff, Jr., for appellants.

      McClure, Ramsay & Dickerson, John A. Dickerson, for appellee.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Collins v. Grafton, Inc., 263 Ga. 441 (435 SE2d 37) (1993), our decision in Collins v. Grafton, Inc., 207 Ga. App. XXVII (1993), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Blackburn and Smith, JJ., concur.


author: Smith, Judge.

text:
    A93A1311.
    GOOLSBY v. THE STATE.
    (438 SE2d 394)
   Smith, Judge.

Ronnie Eugene Goolsby was tried on two counts of selling cocaine, OCGA § 16-13-30 (b). Goolsby was convicted on one count and acquitted of the other. The affirmative defense of entrapment was argued as to both counts. Goolsby appeals following the denial of his motion for new trial.

1. Goolsby enumerates as error the admission into evidence of a written custodial statement by him. A Jackson-Denno hearing was conducted that began with the jury present but ended outside the jury’s presence. After the hearing, the trial judge found, “from a preponderance of the evidence, that the defendant was advised of each of his Miranda rights; that he understood them; that he voluntarily waived them; and, that he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury.” The evidence at trial before the jury was excused showed that Goolsby was interviewed in an office at the Jasper County Sheriff’s Department. The officer taking the statement testified that Goolsby was read his Miranda rights from a form; that Goolsby was informed of the charges against him; that he signed a written form to that effect, which also stated that Goolsby had not been “threatened,” “promised anything,” or “forced in any way to answer any questions, or make any statements”; that the officer in fact did none of those things; that Goolsby appeared to understand his rights; and that Goolsby freely and voluntarily made a statement to him.

At defense counsel’s request, the jury was excused after this testimony for a “Jackson-Denno hearing,” at which time defense counsel cross-examined the officer. The officer testified during cross-examination that he did not know whether Goolsby was allowed to talk to relatives, family, or an attorney in the interval between arrest and questioning; that he was aware that Goolsby had only an eighth grade education; that he did not know whether Goolsby could read or write; that he “wrote . •. . out” the statement Goolsby signed; that the written statement was Goolsby’s statement “almost verbatim”; that no one else was present during the interview; and that Goolsby did not appear to be under the influence of alcohol or drugs.

On redirect examination, the officer testified that Goolsby never asked that the interview be terminated; that Goolsby did not ask for an attorney; that he did not add or subtract anything from Goolsby’s statement; and that he went over the statement with Goolsby prior to his signing it. Although Goolsby testified at his trial, he did not testify regarding the voluntariness of his statements during the hearing.

“A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will withstand attack on appeal unless they are clearly erroneous. [Cit.]” Walker v. State, 186 Ga. App. 765, 766 (2) (368 SE2d 547) (1988). The trial judge’s finding in this case was not clearly erroneous, and we therefore find no error.

2. Goolsby asserts as error the trial court’s refusal to charge the jury that “the function of law enforcement is the prevention, not the manufacture, of crime.” Thornton v. State, 139 Ga. App. 483, 486 (4) (228 SE2d 919) (1976). While this is a sound rationale for the existence of the affirmative defense of entrapment, we agree with the trial court’s determination that the requested charge is argumentative and therefore improper. Loder v. State, 140 Ga. App. 166, 170-171 (5) (230 SE2d 124) (1976) (vacated on other grounds but reaffirmed, 141 Ga. App. 665 (234 SE2d 132) (1977)). The transcript reflects that the jury was adequately charged regarding Goolsby’s entrapment defense. “It is well established that language which is appropriate when contained in an opinion by a reviewing court may be improper when embodied in a jury charge. [Cits.]” Lofton v. State, 157 Ga. App. 447, 448 (1) (278 SE2d 94) (1981). A charge by the court explaining the rationale for the entrapment defense in this case would have been no less argumentative than one explaining the rationale for a law against selling cocaine. In this regard, see generally Gibbs v. State, 174 Ga. App. 19 (1) (329 SE2d 224) (1985). We find no error.

Decided November 29, 1993.

Roy R. Kelley III, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

3. Goolsby has failed to support his remaining enumerations by argument or citation of authority, and they are therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Williams v. State, 202 Ga. App. 494, 496 (3) (414 SE2d 716) (1992).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1416.
    BROWN v. CITY OF CHAMBLEE et al.
    (438 SE2d 396)
   Smith, Judge.

Plaintiff Brown brought this action under OCGA § 36-33-4 against the City of Chamblee, its mayor, city council members, city clerk, chief of police, a police officer, and the city electrical inspector. He alleged the defendants conspired to injure him by discontinuing electrical service to his business in July 1991 and participated in a “vendetta” against him. Brown prayed for injunctive relief. During a hearing held in January 1992, the parties reached a stipulation which concluded that hearing. Thereafter, all defendants with the exception of Leighton Barker, the city electrical inspector, filed a motion for summary judgment. The trial court granted the motion in a comprehensive, well-reasoned order. We affirm.

The undisputed facts in the record show that Brown owns an upholstery shop in a building adjacent to the building housing the city police department and jail. These buildings apparently share a common wall. During renovation of the Chamblee Police Department building in 1990, appellee Marc Johnson and other police officers noticed signs of water leaking along the common wall. A roofer inspected the roof and pointed out to Johnson that water was entering the building through Brown’s roof, which had rotted near the common wall. Brown was asked to repair the roof, and he stated he would do so.

After renovations were completed, however, water continued to leak through the common wall. While Johnson was investigating the damage, he looked through Brown’s shop window and saw water running through an electrical panel box mounted on the common wall. He observed a squeegee leaning against the wall, corrosion on the box, water stains on the wall around the box, and water-damaged sheet-rock. Concerned about the fire hazard presented by water running through an electrical panel, particularly with respect to prisoners confined in the city jail, he notified DeKalb County Fire Inspector Vincent, who is not a party to this action.

Vincent entered and inspected the premises and issued a “Notice of Fire Hazard” to Brown, which included a request to obtain an electrical inspection due to water entering the panel. Vincent testified that he made an independent determination that the situation was hazardous. Vincent further testified that as part of his duties, he notified appellees Johnson, City Clerk Kathy Brannon, and Police Chief Reed Miller of his findings. Brannon testified that once Vincent had served a notice of hazard, she had no choice but to call in the city electrical inspector.

Defendant Leighton Barker, an electrical inspector for the City of Chamblee, testified that he received notice through Brannon that the DeKalb County fire marshal had issued a hazard notice at Brown’s shop. Brannon asked him to perform an inspection to determine if water was causing a hazard around the panel box area. Barker went to the shop and looked through the window at the panel box, which was “just a few feet” away. He observed water splashing on the top of the panel box, and water marks on the wall and the sides of the panel box. The panel box was not of a waterproof design. Based on these observations, Barker determined that a violation had occurred; he asked Brannon to type up a hazard notice and serve it on Brown. This notice shows service upon Brown on June 28, 1991. It requires that a licensed electrician obtain city permits to remedy the problem by July 1, 1991, to avoid disconnection of the electric service. Neither Barker nor Brannon heard anything further from Brown. After another 24 hours elapsed because of the weekend, electrical service was disconnected on July 2, 1991. Appellees submitted verified copies of the relevant sections of the National Electrical Code and municipal ordinances under which the hazard notice was issued.

In response to the testimony and affidavits submitted by appellees, Brown filed an affidavit in which he stated that neither the county fire inspector nor the city electrical inspector conducted a proper inspection of his panel box. He maintained that he made no alterations in the panel box before it was reinspected and his service was restored in January 1992. However, on his deposition Brown acknowledged that his roof was reshingled in September 1991. Brown further stated in his affidavit that appellees were engaged in a vendetta against him because of his political opposition to the mayor, contending that the mayor orchestrated the inspections and termination of his electrical service as part of this vendetta. In support of this contention, he stated that he was also issued a citation for a “nuisance junk vehicle” stored on his property.

1. In three enumerations of error, Brown contends that the trial court erred in granting summary judgment against him on his claim for damages under OCGA § 36-33-4. That Code section provides: ' “Members of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.” The Georgia Supreme Court has interpreted this Code section to require proof of two elements: “that [city officials] acted contrary to a non-discretionary, ministerial duty and that they acted with malice.” City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 112 (3) (200 SE2d 262) (1973).

On summary judgment, “[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.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Brown has presented no evidence supporting his allegations of a general conspiracy among various city officials. He has not pointed to any depositions or discovery which would support his contentions. In essence, Brown was cited for an electrical code violation and for having a derelict car on his premises, and he disagrees with the basis for these citations. Without more, this disagreement between Brown and city officials does not rise to the level required to show liability under OCGA § 36-33-4. Brown has not pointed to any evidence that the appellees acted contrary to a nondiscretionary, ministerial duty or that they acted with malice. His averment by affidavit of the existence of a conspiracy is wholly conclusory, amounts to mere reargument of his claim, and standing alone, will not create a material issue of fact for trial. Ekokotu v. Pizza Hut, 205 Ga. App. 534, 536 (2) (422 SE2d 903) (1992); Richard A. Naso & Assoc. v. Diffusion, 194 Ga. App. 201, 204 (390 SE2d 106) (1990). The trial court did not err in granting summary judgment to the appellees.

2. The trial court dismissed Brown’s complaint against the City of Chamblee because Brown failed to provide the city with written notice of his claim within six months of the events giving rise to his claim, as required by OCGA § 36-33-5 (b). The record contains no such ante litem notice, and Brown does not allege the sending of a notice in his complaint or state that he did so in his affidavit. “The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. [Cit.] ‘Formal, written notice is required. . . .’ [Cits.]” Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287) (1985).

Brown contends that the “Hazard Notice” issued by the city constitutes ante litem notice on his behalf. This contention is completely without merit. First, this document merely states that the city has found a hazardous condition on Brown’s property and orders him to correct it. It is a notice of a “hazard” directed to Brown, not notice of a “claim” by Brown. Second, the notice was a document prepared by the city that was not given or presented to the city by Brown, as required in OCGA § 36-33-5. The trial court did not err in dismissing Brown’s claim against the City of Chamblee.

3. Brown next contends that the trial court erred in granting summary judgment on an equitable action seeking an injunction. Brown presents no argument or citation of authority on this enumeration, and it is therefore deemed abandoned. Court of Appeals Rule 15 (c); Roswell Properties v. Salle, 208 Ga. App. 202, 206 (6) (430 SE2d 404) (1993). Moreover, it is apparent from the record that any issues pertaining to an injunction were resolved at the hearing in January 1992 and that Brown’s electrical service has been restored. Therefore this contention is rendered moot. Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 138 (2), n. 1 (355 SE2d 437) (1987); see Acree v. Walls, 240 Ga. 778, 786 (2) (243 SE2d 489) (1978).

Upon judgment on this court’s remittitur, the trial court is ordered, pursuant to Court of Appeals Rule 26 (b), to impose a penalty against appellant in the amount of $500.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided November 29, 1993.

Richardson & Chenggis, George G. Chenggis, for appellant.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, Fowler, Hein & Kremier, Joe L. Fowler, for appellees.


text:
    A93A1499.
    THE STATE v. JAMES.
    (438 SE2d 399)
   Smith, Judge.

The State appeals the order of the trial court granting the motion for reconsideration of appellee Anthony Joseph James. The trial court’s order allowed James to withdraw his plea of nolo contendere.

On November 25, 1992, James pled nolo contendere in the State Court of Gwinnett County to one count of harassing telephone calls. OCGA § 16-11-39 (4). He was sentenced to 12 months to be served on probation, on the condition that he not contact the alleged victims of the telephone calls. At that time, James was represented by counsel. On December 28, James, through his attorney, filed a “Motion to Withdraw Plea,” in which he alleged that his plea was coerced. After a.hearing, the trial court denied the motion on December 31, 1992.

The succeeding term of the State Court of Gwinnett County began on January 4, 1993. OCGA § 15-7-40; Ga. L. 1981, pp. 3033, 3035. On January 29, 1993, James, acting pro se, filed a “Notice of Appeal” from the order denying his motion to withdraw his plea and a “Motion to Appoint Counsel for Indigent Person On Appeal.” After a hearing, the trial court granted James’s motion and appointed counsel.

On February 23, through his new counsel, James filed a “Motion to Reconsider Defendant’s Motion to Withdraw Plea and to Vacate Defendant’s Sentence.” A hearing on that motion was set for March 9. On that date, James filed a motion to withdraw his pending notice of appeal. After the hearing, the trial court determined that James’s plea was withdrawn, vacated his sentence, and set the case down for trial. The State timely appealed that order.

1. We note initially that notwithstanding the provisions of OCGA § 5-7-1, the State may appeal a void or illegal judgment directly. State v. Mohamed, 203 Ga. App. 21 (1) (416 SE2d 358) (1992). The State contends that the trial court’s order was void for lack of jurisdiction.

2. “During the term in which they are rendered, judgments of criminal conviction are in the breast of the trial court and may, therefore, be vacated for good cause shown. [Cit.] However, after the original term has passed, a motion to vacate and set aside the judgment is not an appropriate remedy in a criminal case. [Cits.]” Thigpen v. State, 165 Ga. App. 837, 838 (303 SE2d 81) (1983). “This rule applies equally to a withdrawal of a plea; otherwise, there would be no limit to time to withdraw a plea and no end to the case.” State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985). See also State v. Mohamed, supra. Moreover, “ ‘a trial judge’s authority to reconsider, vacate, substantially modify, correct other than a recording error, or otherwise alter a judgment ends with the conclusion of the term in which judgment was entered.’ [Cit.]” Stonecypher v. State, 168 Ga. App. 507 (308 SE2d 639) (1983).

In this case, a motion to withdraw the plea was filed and denied during the November term. After that motion was denied, a notice of appeal and request for counsel were filed in the January term. No motion was pending when the November term adjourned, and no motion was carried over to the following term. James’s motion for reconsideration of the trial court’s ruling on his earlier motion to withdraw his plea was not filed until nearly two months after the beginning of the term.

James, citing no specific authority, contends that his “Motion to Appoint Counsel for Indigent Person On Appeal” and the trial court’s rule nisi on that motion held the court’s previous judgment open into the new term. By its express terms, James’s motion had in view the pursuit of an appeal, not further proceedings on the trial court’s earlier order. The motion to appoint counsel was filed and the rule nisi issued during pendency of James’s notice of appeal; during that time the trial court retained jurisdiction in such matters as dismissal of an appeal, OCGA § 5-6-48; appointment of counsel on appeal, OCGA § 17-12-61 (applicable to capital felonies); and preparation of the record, Harp v. State, 204 Ga. App. 527, 528 (1) (420 SE2d 6) (1992). The acknowledged authority of the trial court to assist in and expedite the appeal of a case is not relevant here.

An order issued within the term and setting the hearing of a motion for a date beyond term has the effect of keeping the term open until the designated day as to that particular case. State v. Bradbury, 167 Ga. App. 390, 392 (4) (306 SE2d 346) (1983). “[A] motion made during the term serves to extend the power to modify. [Cit.]” Porterfield v. State, 139 Ga. App. 553, 554 (228 SE2d 722) (1976). However, neither James’s motion to reconsider nor the rule nisi were within the preceding term of court, and as Porterfield acknowledges, “a trial judge loses the inherent right to modify a judgment after the term expires.” Id.

The trial court retains the power to modify a misdemeanor sentence under OCGA § 17-10-3 (b) and to modify a probated sentence under OCGA § 42-8-34 (g) during the period of probation. These Code sections provide that the judge may revoke, rescind, modify, or change such a sentence “at any time.” However, this power to modify is limited by its terms to the sentence itself or its conditions. See Burns v. State, 153 Ga. App. 529, 530-531 (265 SE2d 859) (1980) (where sentence divided between straight time and probation, a trial court may modify the probation portion of the sentence only).

Decided November 29, 1993.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Robert Greenwald, for appellee.

Under the applicable law, the trial court could rescind, revoke, or modify James’s sentence of probation, but it could not go behind the sentence to readdress the merits of James’s plea. That issue having been ruled upon in the preceding term, the motion for reconsideration came too late. Since the trial court lacked jurisdiction to consider James’s motion for reconsideration, the judgment of March 11, 1993 is a nullity, and the court is directed to strike it from the record.

Judgment vacated and case remanded with direction.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2545.
    JOHNSON v. THE STATE.
    (438 SE2d 657)
   Birdsong, Presiding Judge.

Marvin Johnson appeals his judgment of conviction and sentence of one count of forgery in the first degree and one count of forgery in the second degree. OCGA §§ 16-9-1; 16-9-2. His sole enumeration is sufficiency of the evidence. Held:

Appellant asserts that the State failed to prove beyond a reasonable doubt that appellant knowingly possessed or uttered any forged instruments with the requisite intent to defráud. Appellant attempted to cash an altered money order at a general store stating that he wanted to buy a case of Sprite. But the clerk refused to cash the money order and handed it back to appellant after observing it was written for $291 but was marked with a punched hole reflecting on its face that it was not valid for more than $20. Both at the time he attempted to cash the money order and at the time of his subsequent detention by the police, appellant was driving his aunt’s car. The altered money order was found on appellant; he made a voluntary statement admitting that the money order in his pocket was the one he had attempted to cash. Items found in the glove compartment of appellant’s aunt’s car included another money order which appeared to be altered in the same amount of $291 as the one in appellant’s pocket, five other money orders in the amount of $1, a vertical lettering guide, a red ballpoint pen, and a bottle of green liquid paper. Appellant testified that a man named Jolt had used appellant’s aunt’s car for a couple of days; Jolt subsequently gave appellant the money order in question as compensation for allowing Jolt to be transported from Florida to Ashburn, Georgia, in the car and for a past debt; appellant attempted to cash the money order being unaware it had been altered; he was unaware of the other items found in his aunt’s car; and several other people as well as Jolt and appellant had been in recent possession of the car.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Although the intent of the accused to defraud has been characterized as the essence of the crime of forgery and must be established by proof beyond a reasonable doubt (Chambers v. State, 22 Ga. App. 748, 750 (97 SE 256)), both intent to defraud and knowledge may be proven by direct and/or circumstantial evidence. Compare Dyous v. State, 195 Ga. App. 99 (2) (392 SE2d 730); Foster v. State, 193 Ga. App. 368, 370 (1) (387 SE2d 637) and Hudson v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212); see OCGA § 16-2-6. Moreover, “[a]n offer to pass a [money order] to another person as a genuine instrument constitutes ‘uttering.’ ” Hudson v. State, supra at 689. “ ‘There must be a representation of genuineness but acceptance is not necessary.’ ” (Citations omitted.) Gordon v. State, 206 Ga. App. 450, 454 (3) (425 SE2d 906). Representation of genuineness is a factual issue likewise capable of proof by circumstantial evidence. See OCGA §§ 24-1-1 (3), (4); 24-4-9. Thus, forgery and each individual factual element thereof are capable of proof by direct and/or circumstantial evidence. Dyous, supra; Hudson, supra.

To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the direct and circumstantial evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided November 29, 1993.

Jesse W. Owen, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Melinda I. Ryals, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1479.
    ROBERTS v. AMALGAMATED TRANSIT UNION et al.
    (440 SE2d 266)
    Decided November 10, 1993
    Reconsideration denied November 30, 1993.

      Wayne B. Kendall, H. Michael Harvey, for appellant.

      Bouhan, Williams & Levy, Walter C. Hartridge, M. Tyus Butler, Jr., Walls & Corlew, J. Michael Walls, Harold D. Corlew, for appellees.
   McMurray, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405 (434 SE2d 450) (1993), our decision in Roberts v. Amalgamated Transit Union, 205 Ga. App. 594 (423 SE2d 16), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A93A1427.
    HYDE v. ACCELERATION LIFE INSURANCE COMPANY et al.
    (438 SE2d 385)
   McMurray, Presiding Judge.

Melvin E. Hyde filed an action against Acceleration Life Insurance Company (“Acceleration”), United Insurance Group, Inc. and Coordinated Benefits Plans, Inc. (defendants) based on the alleged fraud of defendants’ insurance agent, Shelley Jefferson. Specifically, Hyde alleges that he lost health insurance when Jefferson duped him into prematurely cancelling an existing health insurance policy by promising Hyde that he would be covered under a replacement policy issued by Acceleration. Defendants denied the material allegations of the complaint and filed motions for summary judgment.

Hyde and others were covered under a group health insurance policy administered by American Life Assurance Corporation (“American Life”). On March 5, 1990, Shelley Jefferson, an Acceleration sales agent, met with Hyde and other members of the American Life group in an attempt to persuade them to exchange their existing group policy for a group policy offered by Acceleration. Jefferson informed the American Life group that they would be covered under Acceleration’s group policy regardless of their health.

Jefferson gave each member of the American Life group present, at the March 5, 1990 meeting an application for health insurance through Acceleration. This application included a section entitled, “APPLICANT’S STATEMENT,” which provides that “[n]o agent or other representative of the Company . . . has waived any conditions of this application^ that the] information provided on this application will be used by the Company in approving or not approving each person for whom Insurance Coverage is requested [and that] Insurance Coverage will not be provided for any person requiring a ‘Yes’ response to any of the first seven (7) numbered Health Questions.”

Hyde entered a “yes” response to the first health question, affirming that he had undergone open heart surgery. Hyde then asked Jefferson whether he would be covered under the Acceleration policy due to his heart condition and Jefferson explained that the entire American Life group would be accepted by Acceleration because they were already a group. Jefferson advised the American Life group that they could terminate their existing health insurance coverage because the Acceleration policy would be effective April 1, 1990.

Hyde and other members of the American Life group with preexisting health problems cancelled coverage with American Life, but were not accepted for coverage by Acceleration. Hyde later suffered a heart attack which required hospitalization.

This appeal followed an order granting defendants’ motions for summary judgment. Held:

“Insurance is a matter of contract law and contract rules and interpretations will apply. Parris & Son v. Campbell, 128 Ga. App. 165, 168 (196 SE2d 334). A party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. Curtis v. First Nat. Bank, 158 Ga. App. 379, 381 (280 SE2d 404). One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336). There is no fiduciary relationship existing between an insured and an insurer or the insurer’s agent. Stewart v. Boykin, 165 Ga. App. 868, 871 (303 SE2d 50). ‘Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.’ Hubert, supra at 146; accord Lorick v. Na-Churs Plant Food Co., 150 Ga. App. 209, 210 (257 SE2d 332).” Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498).

Decided November 17, 1993

Reconsideration denied November 30, 1993

Summers & Jones, Ezra B. Jones III, Robert H. Stansfield, Deena S. Woodall, for appellant.

Mills & Moraitakis, Glenn E. Kushel, Bovis, Kyle & Burch, John V. Burch, Robert B. Caput, for appellees.

In the case sub judice, it is undisputed that Hyde read and understood the application for health insurance provided by Jefferson. Further, the application clearly informed Hyde that he would not be covered because of a pre-existing heart ailment, that Jefferson had no authority to waive any condition of the application and that Acceleration must approve any applicant before coverage will be extended. Finally, we are directed to no evidence that a confidential relationship existed between Hyde and Jefferson (as an agent for Acceleration) that would excuse Hyde from the requirement that he exercise ordinary diligence in his own behalf. Under these circumstances, we cannot say that Hyde was justified in ignoring the clear terms of Acceleration’s application for insurance and relying on Jefferson’s deceitful representations. “ ‘Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence.’ (Citations and punctuation omitted.) Godwin v. City of Bainbridge, 172 Ga. App. 290, 292 (2) (322 SE2d 733) (1984).” Thompson v. Pate, 193 Ga. App. 418, 419 (388 SE2d 30). Genuine issues of material fact as to the controlling issue of imputed fraud simply do not exist in the case sub judice. See Fowler v. Preferred Accident Ins. Co., 100 Ga. 330 (2) (28 SE 398). Consequently, the trial court did not err in granting defendants’ motions for summary judgment.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       The insurance application required Shelley Jefferson to certify as follows: “I certify that I have asked all of the questions and have recorded the information accurately and have advised the Applicant not to terminate other insurance until the Company has notified the Applicant that this application has been accepted.” This certification appears immediately below the applicant Hyde’s signature.


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A1573.
    SCHMIDT v. ADAMS.
    (438 SE2d 659)
   Smith, Judge.

Plaintiff Adams brought this wrongful death action against the Fulton-DeKalb Hospital Authority, Emory University and Emory Medical Care Foundation, Inc., the treating physician at Grady Hospital, the estate of the former physician at the DeKalb County Jail, a nurse at the DeKalb County Jail, and Schmidt, a physician’s assistant at the DeKalb County Jail. Adams contends that the defendants were negligent in their diagnosis and treatment of his wife’s fatal pulmonary emboli.

Schmidt and the nurse moved for summary judgment on the basis of their official immunity as salaried employees of the DeKalb County Sheriff’s Department. The trial court denied the motion in a brief order and certified the judgment for immediate review. Schmidt’s application for interlocutory review of the trial court’s order was granted, and this appeal followed.

Schmidt’s sole contention on appeal is that he was entitled to a grant of summary judgment on the basis of his official immunity under the authority of Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980) and Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). We agree and reverse.

Sovereign or governmental immunity, which applies to the state and its subdivisions, is intended to protect the public purse. Hennessy v. Webb, supra at 329. Official immunity, in contrast, is applicable to government officials and employees sued in their individual capacities. While official immunity does not apply to purely ministerial duties required by law, public officials are immune from individual liability for discretionary acts undertaken in the course of their duties and without wilfulness, malice, or corruption. Id. at 330-331. This official immunity is intended to protect public officials in the honest exercise of their judgment, however erroneous or misguided that judgment may be. “ ‘Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced.’ ” Price v. Owen, 67 Ga. App. 58, 60 (19 SE2d 529) (1942).

Employees of a county sheriff’s department are immune from liability for negligent acts that are discretionary rather than ministerial. See Logue v. Wright, supra, 260 Ga. at 207 (1). “ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ ” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). “[W]hether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official’s position. [Cits.]” Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991).

In essence, Adams complains that Schmidt was negligent in failing to properly diagnose his wife’s illness before she was transferred from the jail to Grady Hospital and in failing to transfer her to the hospital at some earlier time. Such decisions clearly would be made by Schmidt based on his examination of the facts, his experience, and the exercise of his best judgment. The acts complained of are thus “discretionary” and fall within the scope of Schmidt’s official immunity.

Adams contends that Schmidt is excluded from the protection of official immunity by this court’s decisions in Irwin v. Arrendale, 117 Ga. App. 1 (159 SE2d 719) (1967) and Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985). Irwin, however, was decided on the doctrine of sovereign immunity alone; official immunity was never raised or discussed. Moreover, Hennessy explicitly rejected the common law principle relied upon in Irwin with regard to the individual liability of government personnel. Compare 117 Ga. App. at 3 (3) with 245 Ga. at 330. Later cases have likewise rejected Irwin’s position with respect to jail personnel, and have applied official immunity. See Alford v. Osei-Kwasi, 203 Ga. App. 716, 721 (2) (418 SE2d 79) (1992).

Jackson v. Miller, in its turn, has been criticized repeatedly for its apparent direct conflict with Hennessy, Roberts v. Grigsby, 177 Ga. App. 377, 379 (339 SE2d 633) (1985) (Deen, P. J., concurring specially), and for its failure to recognize the distinction between sovereign and official immunity. Swofford v. Cooper, 184 Ga. App. 50, 56 (360 SE2d 624) (1987) (Beasley, J., dissenting), aff’d Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988). However, Jackson is distinguishable on its facts from the case before us.

In Jackson, this court held that a doctor at a public hospital who had been sued for negligence was not entitled to “sovereign” or “governmental” immunity, observing that the alleged negligence “cannot reasonably be considered that of an agent of the government acting in his official capacity. Rather, his alleged negligence was simply that of a medical doctor in providing treatment to a patient.” 176 Ga. App. at 220-221.

Decided November 30, 1993.

Johnson & Montgomery, Albert S. Johnson, Harry W. MacDougald, Robert H. Walling, for appellant.

John E. Talmadge, for appellee.

In contrast, Schmidt is not a physician acting within the scope of a traditional doctor-patient relationship which incidentally arises at a publicly owned or funded hospital. First, he is a physician’s assistant rather than a physician. More importantly, as a salaried employee of the DeKalb County Sheriff’s Department, employed at the county jail, his primary concern and duty is the governmental function of caring for persons confined in the jail. The provision of medical aid to inmates is mandated by OCGA § 42-4-4 (a) (2) and, as Schmidt points out, is so essential a part of the government’s duty that it is undelegable for purposes of a civil rights action pursuant to 42 USC § 1983. See West v. Atkins, 487 U. S. 42, 54 (108 SC 2250, 101 LE2d 40) (1988); Ancata v. Prison Health Systems, 769 F2d 700 (11th Cir. 1985). Schmidt’s actions clearly were undertaken in his official capacity and as part of a governmental function. The rationale of Jackson v. Miller is not applicable under these circumstances, and the trial court erred in denying summary judgment to Schmidt on the basis of his official immunity. Upon remand, the trial court is directed to enter summary judgment for Schmidt.

Judgment reversed with direction.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur but simply state that, giving due regard to the opinion of the Supreme Court of Georgia in Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988), I adhere to the opinion expressed in the partial dissent in Swofford v. Cooper, 184 Ga. App. 50, 55 (360 SE2d 624) (1987).

       The nurse has been voluntarily dismissed from this action.


author: Cooper, Judge. Beasley, Presiding Judge, Smith, Judge,

text:
    A93A1592.
    COLLUM v. THE STATE.
    (438 SE2d 401)
   Cooper, Judge.

■ Appellant, represented by counsel, pled guilty to driving without insurance, leaving the scene of an accident, driving under the influence and following too closely. He appeals from the denial of his motion to withdraw guilty plea.

The record reveals that following an automobile accident on Christmas Day 1992, appellant was arrested and charged with leaving the scene of an accident and driving under the influence. The State subsequently added charges of following too closely and no insurance. Appellant’s attorney negotiated with the prosecutor for a recommended sentence of nine months, but when appellant appeared in court with his attorney on January 4, 1993, appellant entered a plea of not guilty because he believed that he had insurance. The prosecutor notified appellant’s counsel in writing that the case would be placed on the February 15, 1993 trial calendar and that after the case was on the calendar there would be no further plea discussions. The prosecutor further informed appellant’s counsel that if appellant desired to enter a plea after February 5, 1993, it would be a non-negotiated plea. On February 15, appellant appeared in court with his attorney to enter a guilty plea. The trial court inquired of the prosecutor whether she had a recommended sentence, and when the prosecutor responded that she did not, the trial judge commented that the plea was non-negotiated. After accepting the plea, the trial judge sentenced appellant to two consecutive twelve-month sentences. Appellant’s attorney immediately requested that appellant be allowed to withdraw the guilty plea, but the trial judge refused. Appellant then filed a motion to withdraw the guilty plea on the ground it was not voluntarily and intelligently entered because appellant believed he would receive a nine-month sentence. Two days after the guilty plea proceedings, which were not transcribed, the trial judge held a hearing on appellant’s motion to withdraw the plea. The motion was denied and this appeal followed.

“Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant ‘ “intelligently and understanding^” ’ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. [Cit.]” Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989). The trial judge should not enter a judgment on a guilty plea before determining that there is a factual basis for the plea. Uniform Superior Court Rule 33.9; Head v. State, 262 Ga. 795 (2) (426 SE2d 547) (1993). “When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered ‘ “by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Cit.)’ [Cit.]” Wood, supra at 180.

Although the guilty plea proceedings were not recorded, the transcript from the hearing on appellant’s motion to withdraw guilty plea provides some evidence of what transpired during the guilty plea proceedings. The record includes appellant’s signed plea statements in which appellant acknowledged that he was represented by counsel; that he understood the nature of the charges against him, the possible sentence on each of the charges, and the rights waived by pleading guilty; that no one made any promises of a lesser sentence, and that his plea was freely and voluntarily given. The transcript from the hearing also reveals that prior to accepting appellant’s guilty plea, the trial judge read each plea statement to appellant. The trial judge also noted that when appellant’s counsel stated during the guilty plea proceedings that it was his understanding appellant would receive a nine-month sentence, the trial judge explicitly told appellant’s counsel that he was not bound by any recommendation the State might have made. The judge then asked the prosecutor whether she had a recommendation, and the prosecutor stated that she did not. Appellant also testified that during the plea proceedings the trial judge stated that appellant’s plea was non-negotiated and appellant acknowledged that the prosecutor had stated she did not have a sentence recommendation.

However, “the record does not affirmatively show that the court ascertained the factual basis for appellant’s plea as required by [Uniform Superior Court Rule] 33.9.” Watt v. State, 204 Ga. App. 839, 840 (1) (420 SE2d 769) (1992). Since the record does not show that the trial court determined that a factual basis existed for the guilty plea, we conclude that the State did not meet its burden of showing affirmatively by the record that appellant’s guilty plea was knowingly and voluntarily entered. Watt, supra at 840. Consequently, the trial court should have granted appellant’s motion to withdraw guilty plea.

Judgment reversed.

Beasley, P. J., and Smith, J., concur specially.

Beasley, Presiding Judge,

concurring specially.

I concur. Although we cite USCR 33.9, which governs also in the state courts, as the authority for the requirement that a factual basis be shown on the record, this has been mandated since Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The Georgia Supreme Court, in 1971, held that the state trial judge has the same duty as the federal trial judge under Federal Rule of Criminal Procedure 11. The state trial judge shall not enter a judgment on a guilty plea “ ‘unless it is satisfied that there is a factual basis for the plea.’ ” Purvis v. Connell, 227 Ga. 764, 766 (182 SE2d 892) (1971).

Several cases in this court since Boykin do not require an express finding of factual basis and hold that there is compliance if the record contains a factual basis of which the court was aware or the record at least shows that the trial judge was aware of a factual basis: Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230) (1989); Clark v. State, 186 Ga. App. 106, 107 (2) (366 SE2d 361) (1988); Brannon v. State, 176 Ga. App. 49 (2) (335 SE2d 163) (1985); Harris v. State, 167 Ga. App. 153 (3) (306 SE2d 79) (1983). USCR 33.9, which governs now, states that “the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy [the judge] that there is a factual basis for the plea.”

This defect could not be cured at the hearing on the motion to withdraw the plea. Although a record of what occurred at the entry of the plea could be, and was, made at the motion hearing, the state could not supplement that record by adding a factual basis at the motion hearing.

Thus it is necessary to reverse and allow withdrawal of the plea rather than remand for a hearing on whether a factual basis existed, i.e., whether the evidence would show that defendant committed the crimes. That issue now must be decided by a jury or in a bench trial, where a proper plea is entered.

Smith, Judge,

concurring specially.

As the other opinions indicate, the difficulty here is with the lack of any record of a factual basis for a guilty plea. There is no transcript of the plea hearing, although there is a transcript of the hearing on the motion to withdraw the plea. I agree that there is nothing in the record to show the trial court made an inquiry at the plea hearing as to the factual basis for the plea, and I further agree that the record does not otherwise contain a factual basis for the plea or an indication that the trial court was aware of a factual basis for it. However, I do not fully agree with the assertion in Judge Beasley’s special concurrence that such a deficiency “could not be cured at the hearing on the motion to withdraw the plea.”

While it is true that the state could not add a factual basis at the motion hearing if there had been none at the plea hearing, I know of no reason why either the state or the trial court could not properly make a record at that later hearing of a factual basis that existed at the plea hearing and of which the trial court was aware at that time.

If the transcript of the motion hearing contained such a factual basis, either established or existing at the time of the plea hearing, or if the written plea statement signed by the defendant and his attorney showed such a basis, I would vote to affirm the trial court. Since there is nothing of this kind in the transcript of the motion hearing or elsewhere in the record, I concur.

Decided November 30, 1993.

Lloyd J. Matthews, for appellant.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellee.

       The actual current wording of Rule 11 (f) differs somewhat.


text:
    A93A1656.
    PENAHERRERA v. THE STATE.
    (438 SE2d 661)
   Beasley, Presiding Judge.

Appellant was charged with criminal damage to property in the second degree, for which the maximum sentence is five years’ imprisonment. OCGA § 16-7-23 (b). Appellant requested first offender treatment and agreed to abide by the terms and conditions, after the court fully explained the ramifications of such a sentence. Thereafter, he was advised of the specifics and of the rights to appeal and sentence review.

He appeals the following sentence, which was imposed under the First Offender Act (OCGA § 42-8-60 et seq.) so as to allow avoidance of a felony criminal record: (1) five years’ probation, conditioned upon successive periods in a Department of Corrections Detention Center (from 90 to 270 days), a Diversion Center (from 180 days to date all money is paid), and his own home with intensive supervision (not less than six months and until further order of court); (2) a fine ($1,200), restitution ($917.58), and the expenses of his court-appointed attorney (amount to be approved by court or indigent defense administrator).

Appellant is also required to obey all rules and regulations of the centers and the program during the respective phases. While resident at the diversion center, he is to surrender “all earnings and/or monies received” to the center in order to pay room and board and related expenses, the restitution, the fine, savings, and the attorney fee. Payments required by the court are to be made “from wages earned by the resident.”

1. Appellant contends that he cannot be sentenced to both probation and confinement because OCGA § 42-8-60 (a) provides: “(a) [T]he court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.” (Emphasis supplied.)

In Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992), the question was whether the trial court could make incarceration of forty-eight months in a county correctional institution a special condition of probation in Pitts’ sentence for three felonies. The court held that in the absence of express statutory authority, a trial court cannot impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation. It also held, however, that the trial court can probate the sentence and impose intermittent or limited confinement for a continuous period, other than in a jail or penitentiary.

A trial court has broad discretion to determine the terms and conditions of probation. Pitts at 637 (3). OCGA § 42-8-35 provides: “The court shall determine the terms and conditions of probation and may provide that the probationer shall... (6) Remain within a specified location.” OCGA § 42-8-34.1 (b) lists, among others, “diversion centers, probation detention centers, [and] special alternative incarceration” as alternatives to confinement in prison and as suitable responses short of revocation of probation, when a probationer violates a condition of probation. This demonstrates the intention that such types of limited confinement are authorized terms of a sentence of probation. Boot camp, a “special alternative incarceration,” may also be imposed as a condition of probation. OCGA § 42-8-35.1 (a). It, too, constitutes confinement of a nature and to a degree less than imprisonment in a jail or penitentiary.

OCGA § 17-10-1 (a) (1) grants to the sentencing judge “power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, subject to the conditions set out in subsection [(a)].” Any “reasonable condition” may be imposed. Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985). As said in State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974), “Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation, and serve a useful purpose in appropriate cases as an alternative to confinement.” The confinement referred to means imprisonment in a jail or penitentiary, which is primarily punitive, rather than the type of confinement described in Pitts, supra, where the primary goal is rehabilitation. Of course, any deprivation of liberty has punitive aspects.

Georgia law thus áuthorizes a trial court to condition a defendant’s probation on limited confinement in a detention or diversion center or own home. Such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary. Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988), is an illustration of a probationer ordered to a diversion center. A first offender’s probation may be subject to like conditions under OCGA § 42-8-60 (a) (1).

We reject appellant’s argument that the only limited confinement permitted for a probationer is the 90-day boot camp authorized by OCGA § 42-8-35.1. Moreover, the absence in OCGA § 42-8-60 (a) (1) of a similar requirement as that in OCGA § 42-8-35.1 (c), that boot camp start within 15 days of sentencing, does not preclude the above-described authority. The fact that defendant was not transferred to the detention center until 27 or 28 days after sentencing does not invalidate the sentence or violate its terms. The types of confinement designated in the sentence were within the bounds of the law and did not constitute an abuse of discretion. See Woods v. State, 204 Ga. App. 415, 417 (1) (419 SE2d 513) (1992).

2. Appellant next contends that the requirement that he pay the expenses of the county for his court-appointed attorney, undetermined at the time of sentencing, as a condition of his release from the detention center violates his due process and equal protection rights, because there has been no hearing on his ability to pay and his liberty will be curtailed as a result of his indigence.

Under Bearden v. Georgia, 461 U. S. 660, 672 (103 SC 2064, 76 LE2d 221) (1983), if a court determines that a fine or restitution is the appropriate and adequate penalty for a crime, it may not imprison a person solely because he lacks the resources to pay it. “A Bearden hearing [as to defendant’s ability to pay] is required only when [a] fine is made a condition precedent of probation or probation is about to be revoked for failure to pay [a] fine.” Reid v. State, 204 Ga. App. 358, 361 (4) (419 SE2d 321) (1992). Since neither is the case here, with respect to the complained-of attorney fee, Bearden does not apply. Appellant did not at the time sentence was imposed, and does not in the future under the terms of the sentence, face imprisonment if he is unable to repay the county for the cost of his counsel. This is true even though the court conditioned release from the diversion center after six months on the payment of the court-imposed monetary obligations, including the attorney fee. For that reason, Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), is also inapplicable because in that case, incarceration in jail was the result of defendant’s non-wilful failure to pay a fine at the outset. The court had determined that probation was an appropriate sentence but required that the fine be paid first. Here, the obligation is a condition of probation. Appellant entered probation with an opportunity to pay in the future; probation was not withheld nor did incarceration follow any non-payment of financial obligations. Confinement at a diversion center is not akin to incarceration in a jail or penitentiary.

Decided November 30, 1993.

Jon W. McClure, for appellant.

OCGA § 17-12-10 authorizes a court to require an indigent criminal defendant, as a condition of probation, to pay for the cost of his representation by a court-appointed attorney to the extent of the defendant’s financial ability to pay. See Fowler v. State, 184 Ga. App. 177 (360 SE2d 918) (1987). The record must provide a basis for the determination concerning ability to pay. Id.

Here, there is such a basis. The trial court concluded, based on the presentence investigation, that defendant is eligible for the detention center program, which impliedly includes a finding of employability. By the terms of the “Diversion Center Conditions,” made a part of the sentence, gainful employment is contemplated. The sentence gives appellant the future opportunity to earn the cost through outside employment while a resident of the diversion center, and the incentive to earn it as quickly as he is able by rewarding him with release after a six-month period as soon as it and certain other financial obligations are paid. The attorney fee and other obligations are to be paid only out of “wages earned by the resident.” If there are none, of course, he is not required to pay while in the diversion center. Compare Owens v. State, 187 Ga. App. 262 (1) (369 SE2d 919) (1988), where the requirement of payment of the attorney fee was not conditioned on employment.

It is apparent that in the court’s judgment, the assurance of steady employment after six months, so as to guarantee the funds by his own labor, required the supervision and structural living environment of a detention center. The court had the benefit of the presentence investigation report of the probation department to determine defendant’s ability to work, and there is no evidence or contention that he was not able. If that becomes the case, appellant can petition the court for a modification of his sentence. OCGA § 42-8-34 (g); see Dean v. Whalen, 234 Ga. 182 (215 SE2d 7) (1975). Of course, his probation cannot be revoked if he is not able to pay. Bearden, supra. That is not to say that he must be released from the detention center if he has not paid the fee within 180 days and is able. That question has not yet arisen.

We find no abuse of discretion and no violation of any of the rights advanced by appellant.

Judgment affirmed.

Cooper and Smith, JJ., concur.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

       Appellant was sentenced before the date the 1993 amendment became effective. See Ga. L. 1993, p. 444.