text:
    A02A0817, A02A1214.
    WILLETT v. RUSSELL M. STOOKEY, P.C. et al. (two cases).
    (568 SE2d 520)
   Pope, Presiding Judge.

Harold Willett, Jr. sued Russell M. Stookey, P.C. and Russell M. Stookey for legal malpractice, fraud, breach of fiduciary duty, and intentional misconduct in connection with Stookey’s representation of Willett in the sale of the stock of Willett Construction Company, Inc. to Ralph Neely. Ronald M. Cohen and his law firm, Hunter, MacLean, Exley & Dunn, P.C., were aiso named as defendants in the suit. The trial court granted Stookey’s motion for summary judgment on all counts other than legal malpractice. The legal malpractice claim was tried before a jury and resulted in a verdict for Stookey and Cohen. In Case No. A02A1214, Willett claims the trial court erred in making a number of evidentiary rulings during the trial of his legal malpractice claim. In Case No. A02A0817, Willett claims the trial court erred in granting Stookey’s motion for summary judgment on Willett’s claims for punitive damages in connection with his legal malpractice claim, and on his claims for fraud, breach of fiduciary duty, and intentional misconduct.

Attorneys Stookey and Cohen represented Willett in the sale of the stock of Willett Construction Company to Neely, a Willett Construction employee. At the time of the sale, Willett had been convicted of child molestation and was in jail. Willett and Neely executed a purchase agreement for the stock of Willett Construction, and Neely gave Willett a promissory note as payment for the stock. Willett Construction guaranteed payment of the note. In a transaction which violated the terms of the purchase agreement, Neely subsequently obtained an $80,150 personal loan secured by real estate owned by Willett Construction. Because of Neely’s default under the purchase agreement, Willett took back his stock; Willett was then forced to satisfy Neely’s personal loan to prevent Neely’s creditor from foreclosing on the Willett Construction property.

Willett claimed that Stookey and Cohen were guilty of legal malpractice because the stock sale was not properly structured. More specifically, he complained that lawyers of ordinary skill and capacity who undertook to represent clients in similar transactions would have caused the real and personal assets of Willett Construction to be pledged to the payment of its guaranty and would have secured the pledge by executing and filing deeds to secure debt and Uniform Commercial Code financing statements in the appropriate public records. Willett maintains that the failure to establish and record a security interest in the assets of Willett Construction harmed him because it allowed Neely to pledge real estate owned by Willett Construction as security for Neely’s personal loan.

Case No. A02A1214

1. Willett claims that the trial court erred by admitting the bill of indictment against him for child molestation. Willett admits that his conviction for the crime was admissible for purposes of impeachment, but urges that the details of the crime could not be introduced.

A witness may be impeached by introducing proof of conviction of a crime involving moral turpitude. Vincent v. State, 264 Ga. 234 (442 SE2d 748) (1994). In this case, the defense successfully impeached Willett by tendering certified copies of his previous convictions for two counts of aggravated sodomy, two counts of child molestation, and two counts of aggravated sexual battery. But the defense went further, introducing the corresponding indictment that contained the highly prejudicial specific details of the crimes.

Inasmuch as the witness had already been impeached, and [he] did not attempt to rehabilitate [his] character by explaining the circumstances of [his] convictions (see Belvin v. Houston Fertilizer &c. Co., 169 Ga. App. 100, 101 (2) (311 SE2d 526) (1983)), the facts surrounding the . . . conviction[s] should have been excluded. [Cits.] It follows that the trial court erred in permitting the [party] to “bolster” its impeachment evidence.

Vincent, 264 Ga. at 235.

The error was harmful. The details found in the indictment are extremely prejudicial; the defense had already accomplished its purpose of impeaching Willett; and the details of the crimes committed by Willett are not “merely cumulative” of the fact that he had been convicted of the crimes. The details found in the indictment are graphic, specific, and wholly irrelevant to a legal malpractice claim. The trial court’s conclusion that the indictment was “part and parcel” of the conviction was an abuse of discretion.

Nor does it matter that Willett admitted in his case-in-chief that he had been convicted of child molestation and the other offenses. He did not testily about the details of the incidents. We do not address the question of whether the conviction itself should have been admitted given Willett’s earlier repeated admission to the convictions on direct, and again on cross-examination.

2. Willett next claims that the trial court erred by admitting, over his objection, a copy of the complaint and answer from a civil lawsuit arising out of the same incident for which he was convicted. In particular, Willett notes that these documents revealed the highly prejudicial fact that he was convicted of sexually abusing a young boy.

Prior to trial, the court had ruled in limine that Stookey could present “evidence regarding the existence of a civil lawsuit growing out of Plaintiff’s criminal conviction to the extent that it is relevant to the Defendants’ claim that Plaintiff was attempting to hide assets from a potential judgment creditor.” At trial, Stookey’s lawyer asked Willett, “And you were sued by the father of one of the children you had molested . . . , isn’t that true?” He then sought to admit the complaint and answer to that suit both to show Willett’s financial motivation and to show that Willett had lied in his answer by denying that he was a personal friend and business associate of the father and a trusted person for the child. The court allowed introduction of a redacted copy of the complaint and answer for the limited purpose described in the earlier order in limine but refused to allow questioning about the details of the underlying incidents.

When the questioning resumed, Stookey’s lawyer, in an obvious violation of the judge’s order, asked, ‘You knew that that boy’s daddy wanted some money out of you. True?” Willett objected but did not move for a mistrial. The court instructed Stooke/s lawyer to refer to the child only as “the victim,” but noted that because the indictment would probably be introduced, the jury was going to learn the gender of the child eventually. Given our ruling in Division 1, however, any reference to the gender of the child should be excluded from the retrial.

Even when character evidence is admissible, the trial court must weigh the relevance against the harm. As we have stated,

The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. However, such testimony may be admitted if relevant to an issue in the case and if the evidence does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.

(Citations and punctuation omitted.) Troncalli v. Jones, 237 Ga. App. 10, 16 (4) (514 SE2d 478) (1999). Reviewing the trial court’s decision to allow the complaint and answer without fully redacting all details of the underlying incident, we again find that the court abused its discretion. Although redacted, the complaint still reveals the age of the child and other facts unrelated to the defense that Willett had a financial motivation. For the purposes of retrial, we again caution that only the bare facts necessary to show Willett’s possible financial motivation should be admitted given the extremely prejudicial nature of the lawsuit against Willett.

3. Willett claims the trial court erred in refusing to admit into evidence certain audiotape recordings of telephone conversations between Stookey and Willett. Citing Russell v. Superior K-9 Svc., 242 Ga. App. 896 (531 SE2d 770) (2000), the trial court refused to allow introduction of the tapes or any use of the corresponding transcripts, saying,

[T]he fact that Mr. Stookey may have said that he taped on occasions telephone conversations between himself and his former client does not per se make the tapes of those conversations admissible. There’s certain threshold showings that you have to make before that witness can — that evidence can be received. What you’ve outlined to me is not sufficient to meet the requirements of the case law and the statutes.

“[T]he admission of evidence is generally committed to the sound discretion of the trial court [ ] whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” (Punctuation and footnote omitted.) Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457 (2) (543 SE2d 21) (2001).

Under Georgia law, admission, of audiotape is controlled by “the 7-part test referred to in Steve M. Solomon, Inc. v. Edgar, 92 Ga. App. 207, 211 (88 SE2d 167) (1955), adopted with approval by [the Supreme Court] in Estes v. State, 232 Ga. 703, 710 (208 SE2d 806) (1974), and relaxed a bit in Harris v. State, 237 Ga. 718, 724 (230 SE2d 1) (1976).” Saunders v. Padovani, 258 Ga. 866, 867 (375 SE2d 853) (1989). See also Russell, 242 Ga. App. at 897 (1). As stated by this Court in 1955,

A proper foundation for their use must be laid as follows: (1) It must be shown that the mechanical transcription device was capable of taking testimony. (2) It must be shown that the operator of the device was competent to operate [the device]. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.

Edgar, 92 Ga. App. at 211-212 (3). See also Russell, 242 Ga. App. at 897 (1).

Willett admits that he did not provide all the above listed elements, but he asserts that he introduced sufficient information to authenticate the evidence, and he points to our comment in Russell that our Supreme Court has somewhat relaxed the foundation requirements for audio recordings because of advances in recording technology.

It is true that Willett failed to introduce evidence to support the findings required in nos. 1, 2, and 5 in the above list. But, he did provide the testimony of both parties to the conversation to show the other elements. Willett testified that for each tape in question, he had listened to the tape in its entirety, that he recognized the voices to be those of Stookey and himself, that he recalled having the conversation, and that the tape was a fair, accurate, and complete recording of the conversation. With regard to the tapes themselves, this established required finding nos. 3, 4, and 6.

Willett also based admissibility on Stookey’s answers to requests for admission made during discovery.

In his requests for admission Willett asked Stookey to admit, for each tape, the following: “That the tape entitled_contains a fair and accurate recording of a conversation between Russell M. Stookey and_recorded by Russell M. Stookey on or about_.” For each tape, Stookey’s response to the request was the same:

Mr. Stookey objects to this request on the grounds that it is unduly burdensome for him to listen to each tape and review the transcribed version at the same time given the amount of requests involved in the plaintiff’s request for admissions to the defendant. Furthermore, Mr. Stookey objects to this request on the grounds that he cannot authenticate the transcriptions as he was not the court reporter who transcribed the audio-taped conversations. Subject to said objection, Mr. Stookey agrees that, based on his listening of the tape in question and his review of the transcription of same that the transcription appears to be a substantially accurate depiction of the conversation, although the court reporter herself noted that certain portions were inaudible. Mr. Stookey cannot admit that the transcription of said conversation is accurate to the letter.

(Emphasis supplied.)

For each transcript of those same tapes, Willett asked Stookey to admit the following:

That the transcript entitled _ contains a true and accurate transcription of the audiotape of the same title. If you do not admit that the transcript is a true and accurate transcription of the said audiotape, then identify by page and line, each and every error or omission in the transcript, and state how each such error or omission in the transcript should read.

In reply, Stookey stated, “Although Mr. Stookey cannot admit that, as transcribed, this transcript is accurate to the letter, he cannot identify any error or omission in the transcript per se.”

Although written with objections and caveats, these admissions certainly do not dispute what Willett testified to, that the tapes are accurate recordings of their conversations. Furthermore, Stookey has admitted that each specific tape and transcript “appear\] to be a substantially accurate depiction of the conversation” and that “he cannot identify any error or omission in the transcript per se.”

Finally, during the trial, Stookey admitted that he had made tape recordings of some of his conversations with Willett, that Willett’s attorney had the tapes and transcripts of them, that he had read the transcripts during the early phase of the litigation (presumably in connection with responding to the requests for admission), and, with regard to whether he had recorded one of the specific conversations, he testified, “if I admitted it [in response to the requests to admit] and you’ve got the tape, then obviously I did.” Stookey’s testimony did not alter his responses to the requests to admit and obviously shows that the tapes were not made under duress.

For the purposes of retrial, we believe that Stookey’s admissions, his testimony in court, and Willett’s testimony would be sufficient to lay the foundation for the admission of the tapes and transcripts. See Russell, 242 Ga. App. 896. Although Willett never showed the “manner of preservation” of the tapes, that requirement should have little importance where both parties to a conversation have testified that the tapes in the attorney’s possession are accurate and complete recordings. The fact that the tapes exist at all is evidence that the tape recorder was functional and that Stookey knew how to operate it. However, a review of the transcript shows that Willett failed to clearly present the significance of Stookey’s discovery admissions to the court or to show how the tapes came to be in his possession. Therefore, under the current state of the law, as adopted by the Supreme Court in Estes, 232 Ga. 703, and modified in Harris, 237 Ga. 718, we cannot say that the court abused its discretion by refusing to admit the tapes. Because Willett will have another opportunity to lay the foundation, our holding on this issue is not controlling for the purposes of retrial.

4. Willett claims that the trial court erred in granting Stookey’s motion to exclude evidence related to a separate civil action then pending against Stookey in the State Court of Chatham County. Willett wished to present the testimony of three witnesses indicating that Stookey fabricated a letter to the Cotton States insurance company in order to cover up his legal malpractice. Willett argues that the testimony was relevant to Willett’s contention that Stookey fabricated a May 20, 1995 letter from Stookey to Willett in order to cover up his malpractice in this case. He notes that “the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” (Citations and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990).

The evidence with regard to the Cotton States letter is arguably probative of Stookey’s fraudulent intent or motive with regard to the charge that he fabricated the May 20, 1995 letter. See Kutner v. Davenport, 257 Ga. 456, 457 (360 SE2d 586) (1987). However, the admissibility of evidence rests in the sound discretion of the trial court. Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127) (1992). And in exercising its discretion in determining the admissibility of evidence, the trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by the risk of confusing the issues or misleading the jury. Goss v. Total Chipping, 220 Ga. App. 643, 644 (2) (a) (469 SE2d 855) (1996).

The proffered testimony presented a risk of confusing the issues. First, the evidence that Stookey fabricated the Cotton States letter is circumstantial. Second, two of the witnesses are arguably biased; witness Richardson is the plaintiff in the unrelated litigation, while witness Carpenter left Stookey’s employment because she was unhappy. Third, in order to understand the testimony of witness Shiver, a forensic document examiner, the jury would have to be educated about law office procedure in handling insurance matters such as the Cotton States letter, as well as numerous technical concepts related to document production and transmission. In short, it would have been necessary to have a mini-trial on this one point. And, the proffered evidence does not directly address the core issue of Stookey’s alleged malpractice in handling the sale of Willett Construction. We find that it was within the discretion of the trial court to conclude that the probative value of the proffered evidence with regard to the forgery of the Cotton States insurance letter was outweighed by the possibility of unfair prejudice to Stookey.

Case No. A02A0817

Willett appeals the trial court’s grant of summary judgment to Stookey on all issues other than his legal malpractice claim. Stookey may prevail “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of the record is de novo. Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

5. The trial court granted summary judgment to Stookey on Willett’s claim for punitive damages for legal malpractice. Our review of the cited evidence regarding the alleged malpractice and any possible motivation by Stookey and Cohen to structure the transaction as they did does not reveal any evidence of wilful misconduct, malice, fraud, wantonness, oppression, or conscious indifference to the consequences, and therefore, summary judgment on this issue was proper.

6. In his second and fourth enumerations of error, Willett claims that the trial court erred in granting summary judgment to Stookey on his two counts of fraud, breach of fiduciary duty, and intentional misconduct. In particular, in Count 2 of his complaint, Willett charges that in October 1996, Stookey (a) conspired with Beverly Lawhorn, a secretary at Willett Construction, to create a false defense to the charge of legal malpractice; (b) caused Lawhorn to give a false affidavit for the purpose of discouraging Willett from pursuing the legal malpractice claim; and (c) breached his fiduciary duty by not disclosing the alleged legal malpractice. In Count 4 of his complaint, Willett alleges that after the time Stookey became aware of a potential malpractice case against him, he fabricated a letter to make it appear as if he had advised Willett to place the sales documents on record and took other steps to create a defense to Willett’s claims.

We find that the trial court did not err in granting summary judgment to Stookey on these counts. To the extent that Willett alleges that Stookey had procured false testimony or fabricated documents in anticipation of trial, this amounts to a claim of conspiracy to commit perjury, or of perjury, for which there is no civil remedy. See Commercial Plastics &c. Corp. v. Molen, 182 Ga. App. 202, 205 (4) (355 SE2d 86) (1987); Sun v. Bush, 179 Ga. App. 140, 141-142 (3) (345 SE2d 873) (1986). Compare Butler v. Turner, 274 Ga. 566, 569 (2) (555 SE2d 427) (2001).

Relying on Holmes v. Drucker, 201 Ga. App. 687 (411 SE2d 728) (1991), Willett argues that he is not pursuing a civil cause of action for perjury, but an action for breach of the continuing fiduciary duty that an attorney owes a former client. However, unlike in Holmes, the acts complained of here were allegedly taken in direct anticipation of a lawsuit. In Holmes, the attorney acted during representation of his client, to conceal the fact that he failed to file his client’s action in a timely manner, and we found the concealment to be an actionable breach of fiduciary duty. Id. at 688-689 (1). The act of concealment was injurious in and of itself, and not taken only in the context of an impending lawsuit.

7. Willett claims that Stookey breached his fiduciary duty to Willett by recording several telephone conversations between Willett and Stookey, after the representation had terminated, without Willett’s knowledge or consent; giving the tape recordings to the Chat-ham County Police Department; and by acting as secretary Law-horn’s attorney in connection with a police investigation into claims that she was stealing from Willett Construction.

“Of course, a lawyer may not disclose confidences or secrets of the former client, nor use them adversely to that client.” Crawford W Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 721, n. 1 (373 SE2d 749) (1988). But even if Willett could show a breach of fiduciary duty with regard to Stookey’s dealings with Lawhorn, there is no evidence that Willett suffered any damages. He argues that he is nevertheless entitled to nominal damages, but some injury is necessary to show even nominal damages for a breach of fiduciary duty.

To successfully bring a tort claim for breach of [fiduciary] duty, however, the claimant must show injury. As described by our Supreme Court, the traditional formula for a claim in tort has three elements: “duty, breach (failure to conform to the required standard) and damage proximately caused by the breach.” Damages compensate for injury and may be inferred from invasion of a property right. Where no actual damage flows from the injury, nominal damages may be awarded. Yet, some injury — even if small or nominal — is necessary.

Decided June 21, 2002

Reconsideration denied July 9, 2002

Donald E. Dyches, Jr., for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Michael J. Han-nan III, Oliver, Maner & Gray, Inman G. Hodges, Ellis, Painter, Ratterree & Bari, Ryburn C. Ratterree, Tracy A. O’Connell, for appellees.

(Footnotes omitted.) Conner v. Hart, 252 Ga. App. 92, 94 (1) (a) (555 SE2d 783) (2001). We cannot find any invasion of Willett’s property rights by reason of Stookey’s aid to Lawhorn in the police investigation.

Judgment affirmed in Case No. A02A0817. Judgment reversed in Case No. A02A1214.

Ruffin and Barnes, JJ, concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A02A1096, A02A1097.
    TRAMMEL et al. v. BRADBERRY et al.; and vice versa.
    (568 SE2d 715)
   Eldridge, Judge.

This is an interlocutory appeal raising many issues from a personal injury action for negligence in failing to take medication and for an intentional tort for the criminal act of aggravated assault by a person adjudged not guilty by reason of insanity of all criminal acts. In addition, the appeal and cross-appeal contain a number of complex issues involving mental illness and arising from service, discovery, procedure, and substantive law. Thus, a lengthy analysis and factual recitation is necessary.

Horace D. Trammel, Jr. (“Tommy”) was sued by Officer B. R. Bradberry, Gwinnett County Police Department, Special Weapons and Tactics, and his wife Elaine for shotgun wounds inflicted on the plaintiff while Trammel was being arrested at his home in Forsyth County on a commitment order from the probate court.

In August 1995, Tommy was hospitalized where he was diagnosed and treated for paranoid schizophrenia; when he ceased taking his medication, he was rehospitalized several times under the civil commitment criteria as a danger to himself and others. Tommy had no legal guardian appointed by the probate court.

Again, prior to January 13, 1996, Tommy stopped taking his medication and posed a danger to himself and others requiring his involuntary commitment, which he resisted violently for the first time. On that date, after obtaining a commitment order from the probate court, Horace D. Trammel, Sr. called the Forsyth County Sheriff’s Department, requesting assistance in taking Tommy to the hospital and advised Sergeant A1 Hurst that Tommy had guns. On several prior occasions the Forsyth County Sheriff’s Department had assisted in the hospitalization of Tommy without any violence on the part of either. Sergeant Hurst and Trammel, Sr. went to Tommy’s home, but Tommy was absent. Sergeant Hurst informed Trammel, Sr. that he would return later to pick Tommy up.

Returning later, Sergeant Hurst passed Tommy on the highway in his pickup truck, executed a turn, activated his blue lights and siren, and commenced to chase Tommy. Tommy fled, and more sheriff’s deputies, a police helicopter, and Georgia State Patrol joined the pursuit. Sergeant Hurst called off the chase, because Tommy was headed home and could be taken into custody there.

A deputy disregarded the order to terminate the chase and cornered Tommy on a dead-end road near Tommy’s residence. The deputy confronted Tommy with a drawn gun, firing at him. Tommy pulled a shotgun from his truck and returned fire. Tommy got back into his truck and drove off-road to his house, and the deputies struck the fleeing truck numerous times with their fire.

Tommy arrived home, and the deputies surrounded the house. They requested assistance from Gwinnett County’s SWAT unit, of which Bradberry was on call and a responding member. The deputies and the SWAT team opened fire on the house and tried to use tear gas. They had orders to shoot to kill Tommy.

On the morning of January 14, 1996, the law enforcement officers stormed the house after assaulting it with explosives, which set the house on fire. Tommy was shot in the hand, and his shotgun was damaged by gunshots; he surrendered.

During the assault, Bradberry received a gunshot wound; at the time that he was wounded, Bradberry was on the other side of the house from where Tommy was apprehended.

After evaluation by the court-appointed psychiatrist for the state mental health department in the criminal prosecution, Tommy was diagnosed under D.S.M. IV as Delusional Disorder, Mixed Type (Grandiose Type and Persecutory Type) 297.1. On May 28, 1999, Tommy was adjudicated not guilty by reason of insanity by the Superior Court of Forsyth County as to all criminal acts and ordered confined to the forensic unit of the state mental health facility.

On January 2, 1998, while Tommy was confined in the Forsyth County Jail, Bradberry had Tommy personally served with a copy of a complaint and summons without having a legal guardian or next friend served. During discovery in this civil action, Bradberry sought to obtain Tommy’s treatment records. Trammel, Sr. filed a timely answer.

Tommy objected to the discovery of his psychiatric records and refused to waive the privilege under OCGA § 24-9-2. The trial court ruled that there was no privilege since Tommy was committed under court order as not guilty by reason of insanity.

On February 16, 1998, Tommy filed a motion to dismiss for failure to state a claim in lieu of an answer, which was not ruled upon until October 9, 2001. On April 20, 2000, Tommy filed a motion to dismiss for want of service. On May 15, 2000, the Bradberrys amended their complaint.

On March 13, 2000, Trammel, Sr. filed a motion for summary judgment, which was denied. On July 12, 2001, both Trammels filed a motion to dismiss as a sanction for violation of OCGA § 24-9-21. The plaintiffs moved for entry of a default judgment, which was denied.

Case No. A02A1096

1. The Trammels raise as error that the trial court found that service can be perfected upon an insane person without complying with the statutory requirements of OCGA § 9-11-4 (d) (4) that they assert are required for service on the insane. While this is enumeration of error 8, it should be dealt with first, because it goes to the trial court’s personal jurisdiction over Tommy. We do not agree with the Trammels’ contention.

Under OCGA § 9-11-4 (e) (4), when a person “has been judicially declared to be of unsound mind or incapable of conducting his own affairs and for whom a guardian has been appointed,” then the guardian must be served. The adjudication of unsound mind refers to all classes of mental illness or other conditions under OCGA § 29-5-1 (a) where the probate court determines that a person needs a guardian to handle his affairs and to manage his property. Shea v. Gehan, 70 Ga. App. 229, 230-232 (28 SE2d 181) (1943) (probate court has jurisdiction to determine that person needs a guardian because he or she is insane); Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 379-380 (18 SE2d 57) (1941) (guardians are appointed for mentally incompetent, insane persons, non compos mentis, deaf and dumb, habitual drunkards, and imbeciles from age or other cause who cannot manage their estate). Only the probate court has jurisdiction to determine if a person is civilly incompetent and in need of a guardian of either their person or property or both. Shea v. Gehan, supra at 229; Meadors v. Walden, 28 Ga. App. 409 (1) (111 SE 227) (1922). To have a guardian appointed does not mean that the person meets the civil criteria for involuntary commitment to a mental hospital; however, involuntary civil commitment would satisfy the need for a guardian to be appointed by the probate court. Tucker v. American Surety Co. &c., 78 Ga. App. 327, 329-330 (1) (50 SE2d 859) (1948). A civil commitment does not act as a procedure to have a guardian appointed, because many psychotic people have no estate to administer.

Thus, Tommy’s current and prior commitments to psychiatric hospitals under the civil or criminal commitment criteria would permit the appointment of a guardian for him. However, there is no evidence in the record that Tommy has been adjudicated as incompetent by the probate court and had a guardian appointed. Unless and until there has been an adjudication by the probate court of Tommy’s incompetence, OCGA § 9-11-4 (d) (4) does not apply; therefore, any lawful means of service will confer personal jurisdiction over him. Sellers v. Bell, 151 Ga. App. 440, 441 (1) (260 SE2d 538) (1979). Thus, personal service on Tommy in the Forsyth County Jail was valid and sufficient to withstand a motion to dismiss. OCGA § 9-11-12 (b) (4), (5).

2. Trammel, Sr. contends that the trial court erred in denying his motion for summary judgment. We agree.

Trammel, Sr. went to the probate court to obtain an order to again involuntarily commit Tommy, because Tommy was off his medication and acting psychotic in that Tommy believed that the Federal Bureau of Investigation, the Georgia Bureau of Investigation, and Governor Zell Miller were lurking outside to kill him. At the time that Trammel, Sr. asked for the assistance of the Forsyth Sheriff’s Department in taking Tommy by force for an involuntary commitment to a psychiatric hospital, he knew that Tommy had become a danger to himself and others by stopping his medication. Trammel, Sr. specifically warned Sergeant Hurst that Tommy had guns in his possession. The father did not provide the guns to Tommy nor know where Tommy obtained possession of the guns; however, the record shows that Tommy bought the guns prior to his first commitment and retained possession of them. This indicated both actual knowledge and foreseeability that Tommy could shoot at someone or shoot himself.

The general rule that the intervening criminal act[s] of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act. . . . Here, [the person with a special relationship of control may be] liable to third parties because [he] violated [his] duty owed to those third parties to conform to a given standard of conduct.

(Citations and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 202-203 (296 SE2d 693) (1982) (duty of care to third persons when a special relationship based upon physical control exists). Thus,

where the course of treatment of a mental patient involves an exercise of “control” over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. [Cits.]

Bradley Center v. Wessner, 161 Ga. App. 576, 581 (1) (287 SE2d 716) (1982), aff’d, 250 Ga. 199, supra.

If a special relationship between Trammel, Sr. and Tommy existed, then it would be because the father had physical control over Tommy; “as far as the scope of a defendant’s duty is concerned, it makes no difference if the act of the intervening third party [Tommy] is negligent, intentional, or criminal, for even criminal conduct is often reasonably to be anticipated. 2 Harper & James, The Law of Torts 1144, § 20.5.” Associated Health Systems v. Jones, 185 Ga. App. 798, 801-802 (1) (366 SE2d 147) (1988) (nursing home liable to an inmate who was savagely beaten in his sleep by his roommate with a history of psychotic violence). When physical control exists through counseling; restriction on possession of weapons, drugs, alcohol, or access to certain areas; management of behavior, movement, or medication; or supervision to protect the person or third parties from the person, such control is indicium of a special relationship, giving rise to liability to third persons for such person’s conduct. Id.

The criteria for determining whether a person has a special relationship over another giving them control of such individual with the attendant duties are analogous to when a physician has such special relationship of control over a mental patient. For a physician to be under a special relationship of control of such person so that liability may attach for failure to exercise ordinary care to protect others from such mental patient, a two-part test must be satisfied: “(1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others.” Ermutlu v. McCorkle, 203 Ga. App. 335, 336 (1) (416 SE2d 792) (1992) (psychiatrist for mentally ill outpatient who killed a third person in a wreck could not legally confine or restrain the patient against her will); accord Keppler v. Brunson, 205 Ga. App. 32, 33 (421 SE2d 306) (1992) (no control over a voluntary outpatient who acquiesced in treatment plan). Where the mental patient entered into voluntary treatment with a physician as an outpatient,

[the physician] had no control of [the patient] in the sense that [he] could claim legal authority to confine or restrain [him] against [his] will unless [he] met the criteria for involuntary commitment set forth in OCGA § 37-3-1 (9.1). Thus, if [the patient] had not acquiesced in the treatment plan prescribed by [the physician], he could not have unilaterally imposed the treatment plan upon [the patient] except in the most extraordinary circumstances. OCGA § 37-3-163. This court has previously held in order for [the] duty to control to arise, the physician must be able to exercise control over the freedom of a mental patient or claim the legal authority to confine or restrain the patient against his will.

(Citations and punctuation omitted.) Ermutlu v. McCorkle, supra at 337 (1); accord Keppler v. Brunson, supra at 32-33; see also Baldwin v. Hosp. Auth. of Fulton County, 191 Ga. App. 787, 789 (2) (383 SE2d 154) (1989). Thus, absent being appointed the legal guardian of the person, there must be evidence of actual assumption of physical control as well as knowledge of the danger the person poses to others if the control is not reasonably maintained.

Trammel, Sr. knew that Tommy was diagnosed and treated for paranoid schizophrenia; that Tommy was not taking his medication; that he had been hospitalized on several occasions when he did not take his medication, because Tommy was a danger to himself and others and was in need of hospitalization immediately; and that Tommy had firearms, making him dangerous. Thus, Trammel, Sr.’s knowledge of Tommy’s dangerous nature satisfied the second part of the analysis. See Baldwin v. Hosp. Auth. of Fulton County, supra at 789-790 (lack of knowledge of substantial risk of imminent harm); accord Keppler v. Brunson, supra at 33. The remaining question raised by the evidence was did Trammel, Sr. have actual control over Tommy to satisfy the first part of the test?

The facts and circumstances of this case fail to create a factual question for resolution by the jury as to whether Trammel, Sr. had assumed control of his mentally ill son, Tommy, in a special relationship. Trammel, Sr. did not have Tommy in his physical custody, did not take charge of Tommy, and could not restrain or force Tommy to take his medication. The father had to go to the probate court to obtain an involuntary committal order and then have the sheriff enforce the order, demonstrating his lack of physical control. The plaintiffs seek to find control arising from the ownership of the dwelling, furnishing Tommy a truck, and allowing him to cut wood to sell, because the father at any time could have conditioned the son’s staying in the house owned by the father and uncle on the surrender of the guns. However, this is not the control envisioned under the law; otherwise, every parent, owner of realty, or landlord would find themselves in a special relationship of control with an adult living under their roof. Here, the father merely provided Tommy with a free place to live, which does not create either the right or exercise of physical control over the behavior of a mentally ill person necessary to create the special relationship. Thus, summary judgment should have been granted to Trammel, Sr. Baldwin v. Hosp. Auth. of Fulton County, supra at 789-790; Keppler v. Brunson, supra at 33.

3. The Trammels contend that the trial court erred in ruling that OCGA § 45-9-81 requires that the law enforcement officer receive additional compensation from the requesting authority in addition to his regular pay from his own department for the fireman’s rule to apply and that if a police officer goes to assist another police agency that OCGA § 45-9-81 does not apply. We do not agree.

Under OCGA § 45-9-80 et seq., this statute provides for indemnification for death of a law enforcement officer killed on active duty or “attempting to enforce . . . the criminal . . . laws preserving or attempting to preserve public order.” OCGA § 45-9-81 (5) (c). This act provides for additional compensation to the beneficiaries of a law enforcement officer killed in the line of duty. However, this statute is inapplicable to the facts of this case, because there is no issue that Bradberry was a law enforcement officer, was off duty at the time of the occurrence, was seeking to enforce the criminal laws, and survived his gunshot wound.

Trammel raised as a defense the fireman’s rule, which we have held also applies to peace officers. Simply stated “that while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. [0]ne cannot complain of negligence in the creation of the very occasion for his engagement.” (Citation and punctuation omitted.) Martin v. Gaither, 219 Ga. App. 646, 647 (466 SE2d 621) (1995). Put another way

the fireman’s rule has been viewed as adopted in Georgia, broadly construed to cover tortfeasors other than those whose acts prompted the presence of the fireman at the place of injury, narrowly construed to exclude subsequent or extrinsic acts of negligence other than the initial reason for the fireman’s professional presence, and . . . , broadly construed to apply to “public safety employee(s)” including police officers.

Id. at 650. Thus, the fireman’s rule does not apply to negligence that causes the presence of the fireman or law enforcement officer to deal with the occurrence, but applies only to prior negligence in maintaining the premises and subsequent negligence.

Thus, the fireman’s rule has been viewed as adopted in Georgia, broadly construed to cover tortfeasors other than those whose acts prompted the presence of the fireman at the place of injury, narrowly construed to exclude subsequent or extrinsic acts of negligence other than the initial reason for the fireman’s professional presence, and in dicta, broadly construed to apply to “public safety employee(s)” including police officers. We hold that it does include them.

Id. Pretermitting that the plaintiff was off duty but voluntarily responded to a law enforcement siege, the fireman’s rule only applies to negligent conduct other than the conduct causing the law enforcement person to respond and not wilful and wanton acts or intentional torts; since Trammel, Sr. is no longer a party charged with negligence and Tommy’s negligence was in not taking his medication, causing his psychotic symptoms, then the fireman’s rule is not a defense available to Tommy for intentional or wilful and wanton acts or the negligent causing of the occurrence by not taking his medication. Gaither v. MARTA, 235 Ga. App. 603, 606 (510 SE2d 342) (1998).

4. The Trammels contend that the trial court erred in ruling that when a police officer goes to assist another police agency, the doctrine of assumption of risk does not apply.

The reason the fireman’s rule did not apply in McClelland v. Riffle[, 970 FSupp. 1053 (S.D. Ga. 1997),] was because the defendant’s injury-causing acts constituted wilful and wanton misconduct, which [is] not excepted from liability by the [fireman’s] rule. A firefighter’s or police officer’s job does not include assuming the general risk of harm from a person’s wilful and wanton or malicious conduct. The court in McClelland honored that.

Gaither v. MARTA, supra at 606.

However, as to the defense of assumption of risk outside the fireman’s rule for negligence, other than negligence in causing the occurrence, where the facts and circumstances make the defense of assumption of risk applicable, such defense can bar recovery for wilful or wanton torts as well as negligence. Muldovan v. McEachern, 271 Ga. 805, 808-809 (2) (523 SE2d 566) (1999). Whether Tommy’s intentional torts superseded his negligent failure to take his medication as the supervening proximate cause of plaintiffs’ damages, because Tommy should have foreseen that stopping medication would bring on a paranoid delusion of persecution, in which he believed that law enforcement personnel were out to kill him and foreseeably could shoot a third person, is an issue for jury determination.

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. As recently stated by [the Supreme] Court: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. . . . [T]he plaintiff may assume the risk where the conduct of the defendant is wilful or wanton.

(Punctuation and footnotes omitted; emphasis in original.) Id. at 807-809 (2) (quoting from Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996)).

Thus, the trial court did not err in leaving the determination of the actual and subjective knowledge to a jury determination.

5. The Trammels contend that the trial court erred in ruling that where the plaintiff is operating under orders to shoot to kill Tommy and invades Tommy’s home that the plaintiff is not protected by the rescue doctrine. Whether or not the rescue doctrine is applicable is a mixed question of law and fact for jury determination.

If the plaintiff was shot by Tommy, then the rescue doctrine has no application, because the plaintiff was wounded not as a result of Tommy’s negligence but intentional act; however, if the plaintiff was wounded by another officer as a result of Tommy’s negligent failure to surrender, causing the storming of the house, then Tommy’s negligence was a concurrent proximate cause of plaintiff’s injury and the rescue doctrine may apply. If Tommy had failed to take his medication, was wounded, disabled, or suffering from a psychotic state that incapacitated him but had not negligently earlier surrendered, then it was reasonably foreseeable that an attempt to rescue him would be coupled with an attempt to kill him if he resisted with further deadly force.

The doctrine of rescue, as deduced from a series of Georgia cases, may be stated as follows: Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involves urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose; and insofar as the proximate cause of any injuries that a rescuer sustains as a result of his efforts is concerned, the chain of causation remains intact, since it is reasonably to be anticipated that, once such peril to life or property is initiated and brought into being by the negligence of a defendant, reasonable attempts will be undertaken to alleviate and nullify the consequences of such peril. . . . There is no issue involved as to assumption of risk, since the doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants’ negligence and allows recovery for injuries thereby incurred, for the reason that the defendants were charged with the foreseeability of their negligence attracting rescuers to assume the risks.

Walker Hauling Co. v. Johnson, 110 Ga. App. 620, 624-625 (139 SE2d 496) (1964). If Tommy’s conduct was negligent and if the plaintiff was acting as a volunteer and not as an off-duty police officer seeking to arrest a criminal for felonies committed in his presence, then the rescue doctrine and not the fireman’s rule would apply. Bycom Corp. v. White, 187 Ga. App. 759, 762 (1) (371 SE2d 233) (1988) (dealing with a volunteer firefighter who did not come within the fireman’s rule, because of his volunteer status). Generally, the duty owed to a volunteer is not to wilfully or wantonly injure him after his presence is known. Huddle House v. Burke, 133 Ga. App. 643, 647 (211 SE2d 903) (1974). But, under the facts of this case, the evidence raises the issue of wilful and wanton conduct or gross negligence at the least.

However, if Tommy’s conduct was negligent when the law enforcement officers stormed his house, then the plaintiff was acting in the capacity of a law enforcement officer at such time and not as a volunteer, because an off-duty officer is always on duty when a crime is committed in his presence; therefore, the plaintiff would not be a volunteer. See generally Wilson v. Waffle House, 235 Ga. App. 539 (510 SE2d 105) (1998) (policeman in uniform working off-duty security performing police duties when crime occurs); Sommerfield v. Blue Cross &c., 235 Ga. App. 375 (509 SE2d 100) (1998) (off-duty policeman in uniform directing traffic performing police duties when a crime occurs); Tate v. State, 198 Ga. App. 276, 278 (4) (401 SE2d 549) (1991) (off-duty officer in uniform performing official duties as security when a crime occurs); Duncan v. State, 163 Ga. App. 148 (1) (294 SE2d 365) (1982) (same).

6. Tommy contends that the trial court erred in ruling that he lost his privilege under OCGA § 24-9-21 by involuntary commitment to a state mental health facility in that he was found not guilty by reason of insanity. We do not agree, because there are several reasons why such statutory privilege was waived.

A sharp distinction must be drawn between the civil commitment for evaluation or involuntary commitment by the probate court under OCGA §§ 37-3-1 et seq. (mental illness), 37-4-1 et seq. (mental retardation), and 37-7-1 et seq. (alcohol and drugs), and a forensic involuntary commitment under OCGA § 17-7-130 (a special plea of insanity or mental retardation to stand trial), § 17-7-130.1 (evaluation and psychiatric/psychologist evidence), § 17-7-131 (a general plea of insanity or retardation at the time of the offense), or § 17-10-60 et seq. (mental status for purpose of execution) by a superior court and any evidence of prior psychiatric or mental health treatment introduced as part of any forensic mental status determination. As to civil commitment or treatment by psychiatrist, psychologist, or counselor, the absolute privilege of OCGA § 24-9-21 applies except when waived by the patient alone. Wiles v. Wiles, 264 Ga. 594, 595-596 (1) (448 SE2d 681) (1994) (physician engaged in psychotherapy comes within privilege); Kimble v. Kimble, 240 Ga. 100, 101 (1) (239 SE2d 676) (1977) (psychiatrist-patient relationship existed); Wilson v. Bonner, 166 Ga. App. 9, 16-17 (5) (303 SE2d 134) (1983) (psychiatrist-patient communications privileged so that deposition of psychiatrist could not be used).

Where the psychiatrist or mental health worker is consulted for evaluation and testimony rather than treatment or appointed by the court for such purpose, no privileged relationship arises that is protected under the Act. Christenson v. State, 261 Ga. 80, 83-84 (2) (d) (402 SE2d 41) (1991) (criminal defendant sent by court for evaluation, no patient-psychiatrist relationship); Kimble v. Kimble, supra at 100-101; Massey v. State, 226 Ga. 703, 704-705 (4) (177 SE2d 79) (1970) (court-appointed psychiatrist for evaluation is outside the privilege, because there is no psychiatrist-patient relationship); Fulbright v. State, 194 Ga. App. 827 (1) (392 SE2d 298) (1990) (where a psychiatrist was retained for evaluation and testimony and not for treatment, no privileged relationship arises).

A special plea of insanity or retardation causes a special proceeding of a civil nature where the defendant has the burden of proof of such condition by proof beyond a reasonable doubt. Clark v. State, 245 Ga. 629, 630-631 (1) (266 SE2d 466) (1980) (trial court retains jurisdiction over person found not guilty by reason of insanity to determine when he or she no longer meets the civil criteria for commitment); Smalls v. State, 153 Ga. App. 254, 256-257 (1) (265 SE2d 83) (1980) (determination of mental competency to stand trial). Any evidence introduced in court on such forensic issues would result in a waiver of such privileged evidence if there existed a patient-psychiatrist treatment relationship.

Where a person is adjudged not guilty by reason of insanity, not capable of standing trial by reason of insanity, or guilty but mentally ill, and committed by court order to a forensic unit of a state mental health institution for treatment, such treatment records and testimony are not privileged, because the trial court, the State, and the defense must have access to these records and testimony to monitor and determine if and under what conditions the person can be released under the civil criteria or stand criminal trial. OCGA §§ 17-7-130; 17-7-131 (d), (e), (f), (g), (h), (i); Logan v. State, 256 Ga. 664, 665-666 (352 SE2d 567) (1987) (effect of a plea of guilty but mentally ill); Clark v. State, supra at 630-631 (rights of person found not guilty by reason of insanity and committed to a mental hospital as to release when civil criteria no longer met).

In either a civil or criminal case, where the defense of insanity, retardation, or diminished capacity is raised, putting the defendant’s mental capacity in issue, such affirmative defense waives the privilege under OCGA § 24-9-21 (5) through (8). See generally Kennestone Hosp. v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000) (failure to object to discovery does not waive psychiatric privilege); Nance v. State, 272 Ga. 217, 218-219 (2) (526 SE2d 560) (2000) (raising mental status in sentencing phase as mitigation waives the psychiatric privilege and Fifth Amendment); Hicks v. State, 256 Ga. 715, 721-722 (14) (352 SE2d 762) (1987) (privilege waiver by plea of insanity as to examination by court-appointed expert and as to Fifth Amendment). The reason for such policy of waiver is that a fair balance between parties is demanded so that the courts may ascertain the truth; otherwise, “the defense [of] psychiatric testimony without [the opposite party’s] own psychiatric examination of the [defendant and access to his prior psychiatric records] and by the need to prevent fraudulent mental defenses” would cause a privilege shield and an offensive weapon for injustice. (Citations and punctuation omitted.) Nance v. State, supra at 219 (2).

Where a party calls his or her psychiatrist to testify at trial on the party’s behalf, when the mental status of the party is in issue, this constitutes decisive, unequivocal conduct that reasonably implies the intent to waive the psychiatric privilege. Wiles v. Wiles, supra at 596 (1); Sims v. State, 251 Ga. 877, 881-882 (311 SE2d 161) (1984); Griggs v. State, 241 Ga. 317, 318-319 (3) (245 SE2d 269) (1978); Fields v. State, 221 Ga. 307, 308-309 (2) (144 SE2d 339) (1965); accord Kennestone Hosp. v. Hopson, supra at 148.

However, the psychiatric privilege is not waived as to all treating psychiatrists by the testimony of the psychiatrist hired by the police officer-witness’ employer through his testimony in the workers’ compensation hearing; the police officer suffered from post-traumatic stress disorder after being shot and her partner killed and underwent psychiatric treatment, arising from being shot during the crime being prosecuted. The workers’ compensation psychiatrist testified at her compensation hearing and at the criminal trial as a defense witness on the mental status of the officer. The police officer had not waived her psychiatric privilege as to her other personal psychiatrist, who never testified, by having the workers’ compensation psychiatrist testify either at the criminal trial or the compensation hearing. Bobo v. State, 256 Ga. 357, 358 (2) (349 SE2d 690) (1986) (the personal psychiatrist who did not testify was privileged and his testimony was cumulative); cf. Kennestone Hosp. v. Hopson, supra at 148.

The privilege does not end with the death of the person with the privilege. Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 191-192 (2) (196 SE2d 172) (1973); see for general discussion as to discovery of hospital psychiatric records and waiver of psychiatric privilege Hopson v. Kennestone Hosp., 241 Ga. App. 829, 831 (526 SE2d 622) (1999) (psychiatric records for drug and alcohol treatment excluded from discovery by statute).

7. Tommy contends that the trial court erred in denying his motion for summary judgment because an insane person cannot be liable for a tort. We do not agree.

A delusional compulsion, although it is a defense in criminal law, is not a defense to a civil tort action. Thus, OCGA § 16-3-3, a criminal statute, states: “[a] person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” See Continental Cas. Co. v. Parker, 167 Ga. App. 859, 860 (1) (307 SE2d 744) (1983). However, factual issues exist as to whether or not paranoid schizophrenia is a delusional compulsion and whether or not Tommy had the mental capacity to formulate an intent to commit an intentional tort.

A [psychotic person] is not responsible for crime, because he is not a free agent, capable of intelligent voluntary action, and therefore is incapable of a guilty intent; but in a civil action for an injury done to the person or property of another, the intent is generally immaterial, and the rule is that an insane person is liable for his torts the same as a sane person, except for those torts in which malice, and therefore intention, is a necessary ingredient. In respect to this liability there is no distinction between torts of nonfeasance and of misfeasance; and consequently an insane person is liable for injuries caused by his tortious negligence. Insane persons are held to this liability on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.

(Citations and punctuation omitted.) Central of Ga. R. Co. v. Hall, 124 Ga. 322, 332-333 (52 SE 679) (1905); accord as to intentional torts State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 379-380 (2) (364 SE2d 62) (1987); Continental Cas. Co. v. Parker, supra at 860 (1); Sauers v. Sack, 34 Ga. App. 748, hn. 1 (131 SE 98) (1925).

Thus, it is a factual question whether the plaintiffs’ injuries were caused by Tommy’s negligence in not taking his medication and not surrendering or caused by an intentional tort.

8. Trammel, Sr. contends that the trial court erred in ruling that a parent of an adult child can be held liable for the criminal acts of his grown son. Division 2 renders this enumeration moot.

Case No. A02A1097

9. Plaintiffs contend that the trial court erred in denying plaintiffs’ motion for default judgment against Tommy. We do not agree.

Tommy filed a motion to dismiss for failure to state a claim, which timely raised the defense of avoidance by reason of insanity and which is an admission in judicio of the facts. Such response sufficiently advised the plaintiffs of the sole affirmative defense and admitted all the well-pled facts so as to constitute an answer. OCGA §§ 9-11-8 (b), (c); 9-11-12 (a); M & M Mobile Homes of Ga. v. Haralson, 233 Ga. App. 749, 750-751 (1) (505 SE2d 249) (1998) (physical precedent only) (a filed letter, served on opposite counsel, that answered specifically each averment constituted an answer); Robinson v. Rearden, 134 Ga. App. 815, 816 (216 SE2d 370) (1975) (a short pro se answer denying the note was sufficient); Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383, 384-385 (2) (203 SE2d 290) (1973) (physical precedent only) (a simple two-paragraph answer that denied all the contentions of the complaint was sufficient), overruled on other grounds, Eckles v. Atlanta Technology Group, 267 Ga. 801 (485 SE2d 22) (1997) (physical precedent only). Thus, the motion served all the functions of an answer under the liberal provisions of the Civil Practice Act, i.e., admitting all well-pled allegations and asserting the defense in avoidance of liability by reason of insanity, by informing the plaintiffs with sufficient definiteness of the defense. Id. If the motion is treated as an answer, then it provides something that can be amended; although Tommy has not chosen to amend his answer. OCGA § 9-11-15 (a); see Knickerbocker Tax Systems v. Texaco, supra at 385 (3). Further, the plaintiffs have amended their complaint to set forth the theory of negligence by Tommy’s failing to take his medication, resulting in the onset of his clinical symptoms. Such amendment to the complaint asserting negligence gives Tommy the right to respond but not the duty to further answer; when a complaint is amended, there is no duty to answer further, and defendant is deemed to deny it. Adams v. Wright, 162 Ga. App. 550, 551 (1) (293 SE2d 446) (1982); Diaz v. First Nat. Bank &c., 144 Ga. App. 582, 583 (2) (241 SE2d 467) (1978).

Judgment affirmed in part and reversed in part in Case No. A02A1096. Judgment affirmed in Case No. A02A1097.

Smith, P. J., and Ellington, J., concur in judgment only.

Decided May 31, 2002

Reconsideration denied July 9, 2002

Clifford H. Hardwick, for appellants.

Winburn, Lewis & Barrow, Gene M. Winburn, John J. Barrow, Gambrell & Stolz, Irwin W. Stolz, Jr., for appellees.

       OCGA § 29-5-1 (b) authorizes the State Board of Workers’ Compensation to appoint a guardian for a person entitled to benefits as a workers’ compensation claim. Such facts are not present in this case.

        Bradley Center v. Wessner, supra, 250 Ga. at 201-202, adopted with approval Restatement (Second) of Torts, §§ 315-319, which deals with liability for the conduct of a third person in a special relationship under their control. “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Bradley Center v. Wessner, supra, 250 Ga. at 201-202. Restatement (Second) of Torts, § 315 states: “[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.” Bradley Center v. Wessner, supra, 250 Ga. at 201-202; Cechman v. Travis, 202 Ga. App. 255, 258 (2) (414 SE2d 282) (1991); Associated Health Systems v. Jones, supra at 801 (1). A special relationship sufficient to give rise to a duty of care arises when the person in custody is a dangerous person, which is known by the person in control. Bradley Center v. Wessner, supra, 250 Ga. at 201-202; Restatement (Second) of Torts, § 319.


author: Pope, Presiding Judge.

text:
    A02A0198.
    WILCHER et al. v. SMITH.
    (568 SE2d 589)
   Pope, Presiding Judge.

Four-year-old Dontavius Wilcher was struck by a truck driven by defendant John Edward Smith as he crossed the road to his school bus on the morning of November 20, . 1997. Wilcher’s mother, Kathleen Walker, filed suit on his behalf and individually against Smith and seven other defendants on November 13, 1999. Smith notified his insurer, Atlanta Casualty Insurance Company of the suit, and Atlanta Casualty and plaintiffs’ attorney agreed in writing (by facsimile) to extend the time for Smith to file his answer to January 3, 2000. However, this extension agreement was never filed with the court, and Smith did not file his answer until January 13, 2000.

On May 17, 2002, plaintiffs dismissed the suit against the other defendants and moved for a default judgment against Smith. Smith responded that the agreement between plaintiffs’ attorney and Atlanta Casualty constituted an extension under OCGA § 9-11-6 (b), and since his answer was filed within 15 days of the extended deadline of January 3, 2000, he was entitled under OCGA § 9-11-55 (a) to open default as a matter of right by filing his answer and paying costs. The trial court, citing OCGA § 9-11-6 (b), denied the motion for default judgment and allowed Smith to file his answer, but granted plaintiffs a certificate of immediate review. We granted plaintiffs’ application for interlocutory review, and this appeal followed.

OCGA § 9-11-55 (a) provides, in pertinent part,

[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon payment of costs.

Smith argues that the time for filing the answer had been extended “as provided by law,” and that pursuant to OCGA § 9-11-55 (a), he was entitled to open default as a matter of right. Plaintiffs argue that because the agreement was never filed with the court, it was ineffective to operate as an extension under OCGA § 9-11-6 (b). We agree.

A request for an extension of time . . . must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6 (b)), and by written stipulation of counsel filed in the action. A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court.

(Citations and punctuation omitted; emphasis supplied.) Roberson v. Gnann, 235 Ga. App. 112, 114 (2) (508 SE2d 480) (1998). Because the time for filing his answer had not been extended as provided by law, and his answer was thus not filed within 15 days of the day of default, Smith was not entitled to open default as a matter of right pursuant to OCGA § 9-11-55 (a).

Smith argues, however, that even if subsection (a) of OCGA § 9-11-55 does not apply, he nevertheless was entitled to open default under subsection (b) of that Code section. Under this section,

[a] default may be opened if the defaulting party satisfies four conditions and one of the required three grounds. The four conditions are a showing made under oath, an offer to plead instanter, an announcement of ready to proceed to trial, and setting up a meritorious defense. The three grounds are providential cause, excusable neglect, and a proper case.

(Citations omitted.) Roberson, 235 Ga. App. at 115 (4).

Smith argues that his reliance on his insurer to provide a defense constitutes excusable neglect under OCGA § 9-11-55 (b). We need not consider, however, whether Smith’s reliance on his insurer constitutes excusable neglect under the facts of this case because the record shows that Smith has failed to comply with the four conditions listed in that section. “Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citations and punctuation omitted.) C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990).

In his response to plaintiffs’ motion for default judgment, Smith merely stated that he had previously interposed his meritorious defenses, and attached his answer. But Smith’s answer, which might otherwise constitute a meritorious defense, was not made or verified under oath. “The showing of a meritorious defense is one of the showings which must be made under oath, and is a condition precedent to the opening of a default. In the absence of such a showing under oath, the trial court has no discretion to open the default.” SunTrust Bank &c. v. Perry, 233 Ga. App. 701, 702 (505 SE2d 230) (1998). Cf. Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 429 (2) (535 SE2d 780) (2000) (although the answer was not verified, defendant filed an affidavit setting forth with sufficient detail the allegation that it was not liable). It follows that the default could not be properly opened in this case under either subsection (a) or (b) of OCGA § 9-11-55, and the trial court thus erred in denying plaintiffs’ motion for default judgment.

Decided July 9, 2002.

Gardner & Gardner, Milton F. Gardner, Jr., for appellants.

Sherman E. Moody III, for appellee.

Judgment reversed.

Ruffin and Barnes, JJ, concur.


author: Barnes, Judge.

text:
    A02A0431.
    MILBY v. THE STATE.
    (569 SE2d 256)
   Barnes, Judge.

Alan Milby was charged with possession of cocaine in violation of the Georgia Controlled Substances Act. He moved to suppress evidence of crack cocaine found during a pat-down conducted after the traffic stop of a truck in which Milby was a passenger, contending that the police officer had no articulable suspicion for the search. The trial court denied the motion and granted Milby’s request for a certificate of immediate review. We granted Milby’s application for interlocutory appeal and now reverse the trial court’s ruling.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

At the motion to suppress hearing, Officer Hitchcock, a policeman with the City of Carrollton Police Department, testified that on September 10, 2000, he was working the night shift in the patrol division when he made a traffic stop of a blue truck driven by Judy Milby for failure to maintain lane. The defendant, Alan Milby (hereafter Milby), was the sole passenger in the truck. After the driver consented to a search of the vehicle, Milby was instructed to exit the vehicle, told to place his hands on the truck, and subjected to a pat-down to which he did not consent. The officer patted him down and felt what appeared to be a rock of crack cocaine in the left pocket of Milby’s shirt. He placed Milby in handcuffs and retrieved the suspected crack cocaine from Milby’s shirt pocket after which Milby was arrested for possession of cocaine. During this time, a backup officer was present on the scene behind Officer Hitchcock.

The officer testified that he had asked for consent to search the truck because he saw the truck drive away from a high drug area, and Milby and the driver lied about coming from that location and appeared to be nervous and shaking. He also testified that he searched Milby because he was looking for “weapons that might be used offensive [ly] against me and anybody else at the scene.” And when asked about the practice of searching the passenger in a vehicle, the officer stated that he does so routinely, “when I ask for consent to search, if [the passenger is] going to be standing outside the vehicle behind me when I’m searching. It’s a common practice.”

A reasonable search for weapons for the protection of the police officer is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

(Citations and punctuation omitted.) Mashburn v. State, 186 Ga. App. 488, 489 (367 SE2d 881) (1988).

A Terry pat-down involves a two-step process. “The officer must pat down first and then intrude beneath the surface only if he comes upon something which feels like a weapon.” State v. Newton, 227 Ga. App. 394, 395 (1) (489 SE2d 147) (1997).

But, “[implicit in this rule of law ... is the prerequisite determination that the officer actually concluded that the suspect was armed or a threat to personal safety and the officer can articulate a basis for his conclusion so that a Terry protective pat-down would not be unreasonable in the given set of circumstances.” (Citation omitted.) Edgell v. State, 253 Ga. App. 775, 777 (560 SE2d 532) (2002). We have held that such a practice was reasonable when the defendant was a passenger in a car that was reported stolen (see Dowdy v. State, 209 Ga. App. 311 (433 SE2d 293) (1993)), when the passenger exhibits aggressive behavior toward the officer (see Sikes v. State, 247 Ga. App. 855 (545 SE2d 73) (2001)), and where drug use is admitted and one of the car’s occupants is known to be involved in the drug trade. See State v. Cannon, 253 Ga. App. 445 (559 SE2d 76) (2002).

In this case, no evidence suggested that Milby’s conduct gave the officer any reason to believe that he posed any physical hazard. In fact, during his testimony, the officer never articulated any cogent basis for his suspicion that Milby presented a threat to his safety. Although the officer explained patting down Milby’s shirt pocket by saying that some people wear small guns around their neck, he never said he had any reason to believe that Milby was doing so. Instead, he explained that when he stops a vehicle, he always searches the occupants. A general practice of routinely patting down anyone who exits a car does not provide a reasonable basis for concluding that the subject is a threat to the officer’s safety. See Edgell, 253 Ga. App. at 778.

An individual’s rights under the Fourth Amendment are not automatically waived, however, simply because he or she is asked to step out of a vehicle. The safety of officers is of extreme importance to this Court. Nonetheless, our constitution requires an officer to provide evidence to show that an act alleged to be performed for his safety was actually performed for that purpose in conformance with the requisite standards of Terry. Without appropriate evidence that the “officer . . . had a reasonable basis for concluding that (the suspect subject to the search) was armed or was otherwise a threat to his personal safety,” Newton, supra, the intrusive search of the type in this case is unconstitutional.

Id.

While police officers “need not disregard the passenger . . . given the number of cases in which police officers are attacked, sometimes fatally, by passengers in vehicles” (Dowdy, 209 Ga. App. at 312), they must be able to articulate a reasonable basis for conducting a pat-down search. Because the State failed to do so in this case, it has not met its burden of establishing that the search of Milby was lawful. See State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996).

Decided July 9, 2002.

Allen M. Trapp, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Tara M. Wilson, Assistant District Attorney, for appellee.

Our decisions in Buffington v. State, 229 Ga. App. 450 (494 SE2d 272) (1997), and Harris v. State, 239 Ga. App. 537 (521 SE2d 462) (1999), do not require a different outcome. Buffington involved the search and seizure of the driver of a vehicle who was stopped when he was observed committing a traffic violation, who had, according to the officer’s testimony, left a building where a drug buy had previously taken place, and who was “nervous and fidgety.” Buffington, 229 Ga. App. at 450. In Harris, which also involved the search and seizure of the vehicle’s driver, the propriety of the protective weapons search was not challenged; Harris argued instead that the officer was not authorized to seize a “powdery substance” that was obviously not a weapon. Harris, 239 Ga. App. at 539.

Accordingly, as the trial court erred in denying Milby’s motion to suppress, the judgment of the trial court must be reversed.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       Milby does not contend that the initial stop of the car was improper; therefore, we do not consider this issue.


author: MlKELL, Judge. Phipps, Judge,

text:
    A02A0442.
    LUNSFORD et al. v. LABORATORY CORPORATION OF AMERICA.
    (568 SE2d 597)
   MlKELL, Judge.

Ann and William Lunsford filed an action against Laboratory Corporation of America (“LabCorp”) alleging that one of LabCorp’s employees negligently placed a needle in Ann Lunsford’s arm to draw blood, which resulted in a permanent injury to her median nerve. A Cobb County jury rendered a verdict in favor of the defendant. In their sole enumeration of error on appeal, the Lunsfords argue that the trial court erred by admitting and sending back to the jury room a page of notes from Ann Lunsford’s medical record. “Admission of evidence is ‘committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.’" Having found no such abuse of discretion, we affirm.

Lunsford’s treating physician, Dr. Marvin Rachelfsky, diagnosed her median nerve injury. The medical record in question was a page from Dr. Rachelfsky’s notes, which discussed the results of Lunsford’s electromyogram (“EMG”) study. Portions of the document were redacted by the judge. The portions remaining provided:

EMGs tested: right biceps, triceps, finger and wrist extensors, flexor carpi radialis, opponens pollicis brevis muscle showing normal insertional activity. No spontaneous activity or fibrillations or sharp waves or fasciculations. There was decreased interference pattern, flexor carpi radialis. Otherwise all muscles tested were within normal limits with good recruitment and full interference pattern. Median nerve was tested. Distal latency shows motor latency of 2.8 and proximal latency of 6.8 and distance of 18 and conduction velocity of 45 mps and evoked responses 5 millivolts with normal being greater than equal to 3 millivolts, median and F wave was 27 ms and normal being less than 30 ms and median sensory was 3.5 with normal being less than 3.7 ms. OVERALL IMPRESSION: Electrical studies showed median nerve working well at this point.

The document was admitted after the close of the evidence but prior to closing argument.

Appellants argue that the admission of the record was erroneous because the document was offered to impeach Dr. Rachelfsky’s testimony. Thus, pursuant to OCGA § 24-9-83, appellee should have been required to lay a proper foundation for its admission by showing or reading it to Dr. Rachelfsky before it was introduced. Though the record shows that the document was initially offered to impeach Dr. Rachelfsky, it was not admitted for that purpose. After appellants’ counsel objected, appellee offered, and the court admitted, the document as original evidence. When appellants’ counsel later sought to perfect the court’s ruling, the court reiterated that the document was not admitted for impeachment purposes, but because it contained the results of a specific test conducted on Lunsford. Thus, appellants’ argument that the appellee did not lay the proper foundation to admit the document for impeachment purposes is moot.

The appellants’ enumeration of error might be read to challenge the lack of a proper foundation to admit the document as original evidence. “If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” Although the trial court did not expressly recognize Dr. Rachelfsky as an expert, the testimony established that he was licensed to practice medicine in Georgia and was board-certified in neurology. The court impliedly recognized him as an expert by allowing him to testify repeatedly to his opinion on medical issues.

Moreover, the record shows that during his direct examination, Dr. Rachelfsky testified in detail about the EMG study. He explained how both the EMG test and the nerve conduction tests are performed. That testimony adequately related the facts upon which the entry was based.

In any event, the admission of the report was harmless. Dr. Rachelfsky testified that the only abnormality he found on Lunsford’s test was a decreased interference pattern in the flexor carpi radialis muscle and that this was an objective finding; that the nerve conduction study was normal; and that Lunsford could have a normal nerve conduction study and still have a median nerve injury. On cross-examination, Dr. Rachelfsky again testified that the results of the EMG study were normal with the exception of the one finding. Then, on redirect, he stated, “The EMG test basically showed the nerve was not cut and was functioning within the normal limits of that examination,” but that this was not conclusive because “[his] overall impressions were based on the history [Lunsford] gave [him] in her examination. The EMG testing is just one part of that examination.” Therefore, the document, as redacted, was merely cumulative of Dr. Rachelfsky’s testimony.

Appellants also argue that the trial court’s redaction of certain parts of the record had the effect of emphasizing evidence favorable to the defense. When the trial court announced which portions of the document would not be permitted, however, appellant did not object. Thus, appellants’ argument that the trial court’s redaction of certain portions of the document was erroneous is waived.

Finally, appellants contend that the trial court violated the continuing witness rule when it allowed the document to go out with the jury. We disagree. The general rule is that “[w]ritten documents ... that substitute for testimony may not be taken into the jury room when the jury retires.” “The proscription on the jury’s possession of ‘written testimony’ does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.” We find no error in the trial court’s decision to allow the document to go out with the jury.

Decided July 9, 2002.

Johnson & Cooper, Jean E. Johnson, Jr., Jackel, Rainey, Busch & Reed, Dana L. Jacket, James L. Rainey, Christopher L. Phillips, for appellants.

Judgment affirmed.

Blackburn, C. J., Andrews, P. J, Johnson, P. J., Smith, P. J., and Miller, J., concur. Phipps, J., dissents.

Phipps, Judge,

dissenting.

I dissent because the trial court violated the continuing witness rule when it allowed the exhibit to go out with the jury.

In Georgia, the “continuing witness” objection is based on the idea that

written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is heard but once.

Although the exhibit was never offered or admitted during Dr. Rachelfsky’s testimony, he did testify in detail about the EMG test. Thus, it would fall into the “continuing witness” category.

The majority finds no violation of the “continuing witness” rule based on its conclusion that the exhibit was relevant and admissible as original evidence. While the exhibit was clearly relevant, neither party laid the proper foundation for its admission. Dr. Rachelfsky, who entered the diagnostic opinions and conclusions in the exhibit, was never qualified as an expert.

The Lunsfords timely objected to the admission of the exhibit as a violation of the “continuing witness” rule. Their objections should have been sustained. A new trial is in order.

Fisher & Phillips, Griffin B. Bell, Jr., for appellee.

       (Citation omitted.) Chambers v. Gwinnett Community Hosp., 253 Ga. App. 25, 26 (1) (557 SE2d 412) (2001).

       (Punctuation omitted.) Buford v. Benton, 232 Ga. App. 102, 103 (2) (501 SE2d 272) (1998).

       See Sharpe v. Dept. of Transp., 270 Ga. 101, 103-104 (505 SE2d 473) (1998).

       (Citations omitted.) Johnson v. State, 244 Ga. 295, 296-297 (3) (260 SE2d 23) (1979).

       See Hodson v. Mawson, 227 Ga. App. 490, 491 (2) (489 SE2d 855) (1997); Stacey v. Caldwell, 186 Ga. App. 293 (367 SE2d 73) (1988).

       (Citation and punctuation omitted.) McAlpine v. Leveille, 258 Ga. 422, 423 (2) (369 SE2d 907) (1988).

       See id.

       See Buford v. Benton, 232 Ga. App. 102, 103 (2) (501 SE2d 272) (1998).

       See Thomason v. Genuine Parts Co., 156 Ga. App. 599, 601 (275 SE2d 159) (1980).


author: Smith, Presiding Judge.

text:
    A02A0447.
    WHITAKER v. THE STATE.
    (568 SE2d 594)
   Smith, Presiding Judge.

In Whitaker v. State, 244 Ga. App. 241 (535 SE2d 283) (2000) ('Whitaker 7), we vacated the judgment of conviction in this case and remanded for an evidentiary hearing to determine whether Whitaker knowingly and intelligently waived his right to a jury trial. Id. at 243-244 (4). After a hearing, the trial court found that Whitaker “did knowingly, voluntarily, and intelligently waive his right to a jury trial,” and reinstated his conviction and sentence. Whitaker appeals this determination, and we affirm.

As we noted in Whitaker I, the record below “contains some evidence of a waiver but does not show whether Whitaker personally, voluntarily, knowingly, and intelligently participated in it.” Id. at 244 (4). As the bench trial began, the prosecutor stated, ‘Tour Honor, the forms have been executed indicating that the defendant pleads not guilty and waives his right to a jury trial.” The form is entitled “Plea and Verdict,” was signed by Whitaker, his counsel, and the prosecutor, and includes the handwritten notation “[I] waive my right to a jury trial.” In addition, after denial of his motion for new trial and filing his notice of appeal, Whitaker prepared and signed an affidavit in preparation for the appeal in Whitaker I, detailing his claims of ineffective assistance of counsel. At the hearing on remand, Whitaker was examined at length regarding this affidavit as well as the plea and verdict form.

In the affidavit, Whitaker swore that his counsel advised him “that should I proceed with a jury trial and be found guilty, my sentence would be extremely harsher, (that I would spend twelve months in jail), thán that of proceeding with the bench trial.” When pressed at the hearing, Whitaker acknowledged that he had signed the affidavit, and when asked if this statement in the affidavit was a lie, responded only that “it’s open to multiple interpretations.” With respect to the plea and verdict form, he contended that the words “waive my right to a jury trial” were “illegible.” However, in another exchange, Whitaker conceded that he was given the form to sign with the waiver of jury trial, but contended that he was “freaked out,” that his lawyer’s tactics were coercive, and that he “had just fallen off a cliff and I was just swept along.” Whitaker acknowledged that he did not complain to the judge and was willing to abide by the advice of his attorney, although he contended that he was “betrayed by my attorney.”

At this point, the trial court undertook to question Whitaker. When the trial court attempted to inquire whether Whitaker had read his affidavit before signing it, Whitaker was evasive in responding to the court’s questions for a significant length of time. The trial court then questioned Whitaker regarding his counsel’s representations of the consequences of a jury or a bench trial, and Whitaker was again evasive, not responding directly to the court’s questions. He did testify, however, that he was advised by his attorney that a jury trial would result in a harsher sentence if he were found guilty than if he agreed to a bench trial. He also acknowledged that he knew when the trial started that it was not a jury trial but did not protest. Eventually, Whitaker’s appellate counsel intervened and questioned Whitaker, but he continued to give nonresponsive answers until she interrupted him and directed him to answer. Ultimately, however, he testified that, based on his counsel’s representation that a jury trial would result in a harsher sentence upon conviction, he agreed to proceed with a bench trial.

After argument of counsel, the trial court ruled from the bench, finding that Whitaker is a well-educated man with above average common sense, that he understands the legal process, that “he knew the difference between a bench and a jury trial and that he knew what was happening, despite the feigning of confusion to very simple questions.” The trial court found there was no evidence showing mental disability, alcohol intoxication, or drug abuse either at the hearing or on the day of trial. Finally, the trial court concluded that Whitaker was not coerced and that his waiver of his right to trial by jury was voluntary and knowing. This ruling was memorialized in a written order, and from that order, Whitaker appeals.

1. Whitaker first complains of the conduct of the hearing on his waiver of jury trial, contending that the trial court erred in requiring Whitaker to take the stand and in questioning him personally. Whitaker appears to argue that the State was required to meet its burden of proof without his testimony, and that requiring him to testify violated his privilege against self-incrimination. But Whitaker waived these objections not only by acquiescence or failure to object but by actual consent to the procedure used at the hearing. As the hearing began, the parties and the court discussed the remand from this court and the method of implementing its specific directive to determine whether Whitaker’s waiver of jury trial was voluntary and knowing. The trial court noted that “if Mr. Whitaker somehow evidences some concern that he didn’t know what was going on or anything of that sort, I’ve got to judge that. I don’t know if I don’t talk to him,” and then asked Whitaker’s counsel if she preferred a different procedure. Counsel responded that “if that’s the way to clear up this particular issue, then by all means we need to get him on the stand to proffer that.” The trial court specified that it would not inquire into “something that would be otherwise incriminating” but would limit questions to the issue of waiver. The court asked Whitaker’s counsel, “[S]o that the record is clear, do you have objection to the court asking Mr. Whitaker questions?” and counsel responded, “No, your honor.” Whitaker’s counsel not only consented on the record to the examination of her client, she assisted the trial court in formulating questions after Whitaker’s repeated refusal to answer.

“Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992). Moreover, “[i]t is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. [Cit.]” Maxwell v. State, 233 Ga. App. 419, 423 (4) (b) (503 SE2d 668) (1998); see also Cunningham v. State, 244 Ga. App. 231, 234 (2) (535 SE2d 262) (2000). Whitaker’s privilege against self-incrimination was not affected by inquiry into matters not relevant to his guilt or innocence. See, e.g., Cummings v. State, 242 Ga. App. 657-658 (1) (530 SE2d 782) (2000) (questioning not relevant to guilt not interrogation requiring Miranda warnings). The trial court stated at the outset that it would not make any inquiries concerning the underlying conviction, and it did not do so.

Whitaker’s further contention that the trial court improperly commented on the evidence in violation of OCGA § 17-8-57 is also without merit because that Code section is applicable only to jury trials, not to a bench trial with the trial court acting as factfinder. In the Interest of S. U, 232 Ga. App. 798, 801 (3) (503 SE2d 66) (1998). Whitaker’s credibility, intelligence, and understanding were crucial to a determination of whether his waiver of jury trial was knowing, voluntary, and intelligent, and the trial court as finder of fact was not only permitted but obligated to reach a conclusion on such issues. Moreover, Whitaker will not be heard to complain of error he caused by his own conduct. Maxwell, supra; Cunningham, supra. The record shows that the trial court’s questions and comments were largely, if not entirely, elicited by Whitaker’s evasive and nonresponsive answers, requiring not only the trial court but also his own counsel to intervene. Any admonition or finding by the trial court with respect to this conduct was caused by Whitaker himself.

Decided July 9, 2002.

John W. Kraus, for appellant.

2. Whitaker also challenges the trial court’s finding that his waiver of jury trial was knowing, voluntary, and intelligent.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation, punctuation and footnote omitted.) Gary v. State, 241 Ga. App. 76, 77 (2) (526 SE2d 148) (1999). “The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Payne v. State, 219 Ga. App. 439, 440 (465 SE2d 724) (1995). The State demonstrated by extrinsic evidence, including Whitaker’s own affidavit detailing discussions with his trial counsel and his testimony at the hearing, that the waiver was knowing and voluntary, and the trial court’s decision finding that Whitaker properly waived a jury trial is not clearly erroneous.

Whitaker complains of an affidavit from his trial counsel, filed after the hearing pursuant to the State’s motion to supplement the record with no objection or response from Whitaker, in which trial counsel details her discussions with Whitaker regarding the decision to forgo a jury trial. But the trial court ruled from the bench on August 4, although its order was not entered until August 7, the same day the State’s motion was filed. The trial court did not clearly err in finding that Whitaker waived a jury trial, and its decision was not based upon the late-filed affidavit. We do not consider the affidavit either, and Whitaker’s complaint with respect to it is now moot.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

Carmen D. Smith, Solicitor-General, Jody L. Peskin, Assistant Solicitor-General, for appellee.

       Whitaker acknowledged, reluctantly, that he received an appointment to the United States Naval Academy although he did not complete his degree there and that he holds a bachelor’s degree in psychology and an MBA in international business.

       While the State argues that Whitaker has asserted four errors in a single enumeration in violation of OCGA § 5-6-40, that argument is foreclosed by the Supreme Court of Georgia’s decision in Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).