text:
    A01A2429.
    CONEX FREIGHT SYSTEMS, INC. v. GEORGIA INSURANCE INSOLVENCY POOL.
    (561 SE2d 221)
   Ruffin, Judge.

Conex Freight Systems, Inc. (“Conex”) appeals from the trial court’s order granting summary judgment to the Georgia Insurers Insolvency Pool (“the Pool”) in this declaratory judgment action. For reasons that follow, we reverse.

Summary judgment is appropriate “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Applying a de novo standard of review, “we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Viewed in this light, the evidence shows that Conex is a California trucking and warehousing corporation that has its corporate headquarters in California, but operates a facility in Atlanta. On June 22, 1998, Steven and Brenda Rohland sued Conex for injuries allegedly sustained in Georgia when a truck owned and driven by an independent contractor hired by Conex’s Atlanta facility collided with Steven Rohland’s truck.

The record shows that Georgia General Insurance Company provided liability insurance coverage to Conex’s Atlanta facility under a commercial automobile insurance policy. At some point, however, that insurance company became “insolvent,” as defined by the Georgia Insurers Insolvency Pool Act (“the Act”), and Conex sought coverage under the Act. Although the Pool undertook Conex’s defense in the Rohland suit, it reserved the right to challenge coverage. The Pool subsequently filed this declaratory judgment action, asserting that the Act did not require it to defend or indemnify Conex. The trial court agreed and granted the Pool summary judgment, and this appeal ensued.

1. The Act provides “a remedy for covered claims under property and casualty insurance policies when the insurer has become insolvent and is unable to perform its contractual obligations.” If an insurer becomes insolvent, the Pool “must fulfill the insurer’s obligations to the insured” for covered claims. To be “covered” under the Act, a claim must meet two requirements. First, it must arise out of a property or casualty insurance policy issued by an insurer authorized to do insurance business in Georgia. Second, it must fall within “any of [five] classes of claims” identified in OCGA § 33-36-3 (2) (B). This appeal focuses on the second requirement.

(a) The five classes of claims identified in OCGA § 33-36-3 (2) (B) include a claim that “arises out of an insurable event under a property or casualty insurance policy and . . . is . . . [t]he claim of a policyholder or insured who at the time of the insured event was a resident of this state.” Conex argues that it falls within this provision because it is a Georgia resident. Rejecting this argument, the trial court deemed Conex a resident of California, where it is incorporated and has its principal place of business. On appeal, Conex does not deny California residency, but also claims Georgia residency because it is qualified to do and does business here. According to Conex, an insured can have multiple states of residence under the Act.

The Act does not define “resident.” Seeking to place itself within the term, Conex argues that, in other contexts, a corporation can be a resident of more than one state, including a state in which it merely transacts business. Under Georgia’s long arm statute, for example, a foreign corporation authorized to do or transact business in this state is a Georgia resident for purposes of personal jurisdiction. We have noted also that “a person may have several residences which are not necessarily permanent or in the same locale as [his or her] domicile.” Those interpretations of the term “resident,” however, are not definitive. Rather, we must construe the various provisions of the Act to determine what the legislature intended when it included that term in the Act. As we have explained,

[a] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

Construed as a whole, the Act does not support Conex’s claim that OCGA § 33-36-3 (2) (B) (iii) permits multiple states of residency. Indeed, the legislature’s use of the term “resident” elsewhere in the statutory scheme evidences a contrary meaning. Specifically, in OCGA § 33-36-10 (a), the legislature prohibited “duplicate recoveries of covered claims under [the Act] and an insolvency fund or its equivalent of any other state.” To prevent such double recovery, the Act provides that, for the type of claim involved in this case, “the sole recovery . . . shall be under the insolvency fund or its equivalent of the state of residence of the insured.” The statute’s clear terms refer to only one “state of residence.” Furthermore, permitting multiple residences could lead to multiple recoveries, as insureds seek recovery in their various states of residence. Conex’s argument reduces the duplicate recovery prohibition to mere surplusage, violating basic rules of statutory construction.

Other jurisdictions interpreting comparable legislation have construed the residency requirement in this way. The Iowa Supreme Court, for example, found that “a corporation has only one residence” for purposes of insurer insolvency legislation, in part because the statutory scheme “appears to recognize only one residence for an insured by requiring an insured having a claim against more than one insurance guaranty association to first seek recovery from its state of residence.” Like the Iowa Supreme Court, we find that Conex has only one residence under the Act.

The record farther shows that Georgia is not Conex’s one “state of residence.” Without dispute, Conex is a California corporation with its principal place of business in that state. We recognize that Conex is authorized to do and does business here. Many corporations, however, are authorized to do business and operate facilities in multiple states. Allowing a corporation to establish residency under the Act simply by transacting business in a state could lead to numerous states of residency, undermining the single residency requirement.

Other jurisdictions differ on whether residency stems from a corporation’s state of incorporation or its principal place of business. We need not address this issue, however, because Conex is not a Georgia corporation and does not have its principal place of business in this state. And “[w]e have been cited to no authority indicating that a corporation which is incorporated in state A and which has its principal place of business in state B is to be considered a resident of state C in the context of an insurance guaranty fund.” Conex cannot claim Georgia as its one “state of residence” under the Act merely by transacting business or maintaining a facility here. It follows that the trial court properly rejected Conex’s residency claim under OCGA § 33-36-3 (2) (B) (iii).

(b) Nevertheless, we agree with Conex that the trial court erred in granting the Pool summary judgment. Under OCGA § 33-36-3 (2) (B) (iv), the term “covered claims” includes a claim that “arises out of an insurable event under a property or casualty insurance policy and . . . is . . . [t]he claim of a person having an insurable interest in or related to property which was permanently situated in this state.” From the beginning of this litigation, Conex has not only sought coverage under the residency provision, but has claimed an insurable interest in property permanently located in Georgia.

On appeal, the Pool argues that this “insurable interest in property” coverage applies only to “first-party claims for damage to or destruction of [the] property,” not to liability claims. According to the Pool, a liability claim falls within the Act only if the claimant meets the residency requirement. The Act, however, specifically defines “covered claims” as those “within any of the [five] classes of claims under [OCGA § 33-36-3 (2) (B)].” The “insurable interest in property” provision is the fourth of these five classes, and nothing in the statutory language restricts the fourth class to property insurance claims. A claim within this class can arise under a property or casualty insurance policy. The Act thus covers nonresident claimants having sufficient Georgia ties to hold an insurable interest in property permanently located here.

An “insurable interest” is “[a] legal interest in . . . the protection of property from injury, loss, destruction, or pecuniary damage.” To identify an insurable interest, we consider whether the party claiming the interest “has such a right, title, or interest therein, or relation thereto, that he will be benefitted by its preservation and continued existence, or suffer a direct pecuniary loss from its destruction or injury.” Thus, “[w]hile title may not always be the determinative fact, the insured must have some lawful interest in property before he can have an insurable interest in the property, although that interest may be ‘slight or contingent, legal or equitable.’ ” Under Georgia law, a lessee has such an insurable interest in leased property.

Decided March 1, 2002

Kaufman, Chaiken, Miller & Klorfein, Fredric Chaiken, for appellant.

Gorhy & Reeves, Blakely H. Frye, for appellee.

As noted by the trial court, Conex leased its Atlanta facility, which Conex’s president described as 2,500 square feet of office space, 10,000 square feet of warehouse space, and six acres of land. This lease interest provides evidence that Conex had “an insurable interest in . . . property which was permanently situated in this state.” Accordingly, the trial court erred in finding, as a matter of law, that Conex was not entitled to coverage under the Act.

2. Our decision in Division 1 renders Conex’s remaining enumeration of error moot.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

        Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001).

       Id.

       OCGA § 33-36-1 et seq.

       OCGA § 33-36-2.

       (Punctuation omitted.) Norman Enterprises Interior Design v. DeKalb County, 245 Ga. App. 538, 541 (1) (538 SE2d 130) (2000).

       OCGA § 33-36-3 (2) (A) (i); see also OCGA §§ 33-36-3 (7); 33-7-3 (“casualty insurance” includes vehicle insurance under OCGA § 33-7-9).

       OCGA § 33-36-3 (2) (A) (ii).

       OCGA § 33-36-3 (2) (B) (iii).

        See Allstate Ins. Co. v. Klein, 262 Ga. 599, 601 (422 SE2d 863) (1992); OCGA § 9-10-90; see also OCGA § 14-2-140 (10) (defining “foreign corporation” as “a corporation for profit incorporated under a law other than the law of this state”).

        Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998).

       (Punctuation omitted.) City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996); see also Cherokee Warehouses v. Babb Lumber Co., 244 Ga. App. 197, 198 (535 SE2d 254) (2000) (“In construing statutes, a court must ‘give meaning to and harmonize all parts of the statute to give them sensible and intelligent effect, while avoiding constructions that make any part of the statute mere surplusage.’ ”).

       (Emphasis supplied.) OCGA § 33-36-10 (a) (3); see also OCGA § 33-36-10 (a) (1) (“[T]he sole recovery. . . with respect to a workers’ compensation claim[ ] shall be under the insolvency fund or its equivalent of the state of residence of the claimant”) (emphasis supplied).

       See OCGA § 33-36-10 (a); see also Kendall v. Griffin-Spalding County Hosp. Auth., 242 Ga. App. 821, 822 (2) (531 SE2d 396) (2000) (statutes “should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions to limit or extend their operation”).

       See Cherokee Warehouses, supra.

        Kroblin Refrigerated Xpress v. Iowa Ins. Guaranty Assn., 461 NW2d 175, 179 (I) (Iowa 1990). Conex argues that any reliance on Kroblin Refrigerated is misplaced because the Iowa statute, as amended, defined the term “resident.” The Iowa court explained, however, that the claim at issue arose before the legislature adopted the definition and that the amendment did not help determine the unamended statute’s meaning. Id. at 178.

       See also Wyoming Ins. Guaranty Assn. v. Woods, 888 P2d 192, 199 (III) (Wyo. 1994) (“As used in the [Wyoming Insurance Guaranty Association Act], ‘place of residence’ is a term of art that designates a single locality”).

       Compare Kroblin Refrigerated, supra (principal place of business), and Woods, supra (same), with Alabama Ins. Guaranty Assn. v. Colonial Freight Systems, 537 S2d 475, 476 (Ala. 1988) (state of incorporation).

        Douglass v. Levi Strauss & Co., 315 Ark. 380, 385 (2) (868 SW2d 70) (1993).

       See id.; see also Trans Louisiana Gas Co. v. Louisiana Ins. Guaranty Assn., 652 S2d 686, 691 (La. App. 1995) (“[I]t is not necessary to decide . . . whether place of incorporation, principal place of business, or an analysis of both should control residency because [the company] does not meet any of the tests. . . . [W]e believe that the legislature certainly did not mean to include within the definition of resident a foreign corporation, with its principal place of business out of [this state], that does business through subsidiaries or operating divisions in other states, merely because it also does substantial business in [this state].”).

       See also OCGA § 33-1-2 (5) (the term “person” includes corporations).

       (Emphasis supplied.) OCGA § 33-36-3 (2) (A) (ii).

       Cf. OCGA § 33-36-3 (2) (B) (ii) (second class of covered claims restricted to unearned premium claims of policyholder “under a policy affording coverage for property permanently situated in this state”); OCGA § 33-36-3 (2) (B) (v) (fifth class of covered claims restricted to claims under “a liability or workers’ compensation insurance policy”).

       See OCGA § 33-36-3 (2) (B) (iv).

       Black’s Law Dictionary (7th ed. 1999), p. 816.

        Brown v. Ohio Cas. Ins. Co., 239 Ga. App. 251, 253 (2) (519 SE2d 726) (1999); see also OCGA § 33-24-4 (a).

       (Citations omitted; emphasis in original.) Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 591 (2) (307 SE2d 107) (1983).

       See Townsend v. Morris, 222 Ga. 242, 243 (1) (149 SE2d 464) (1966); New Jersey Ins. Co. v. Rowell, 157 Ga. 360 (121 SE 414) (1924); see also Splish Splash, supra at 592 (2) (party claiming to be real estate lessee through assignment “can claim no insurable interest in the realty . . . unless [the] lease was effectively assigned”).

       OCGA § 33-36-3 (2) (B) (iv).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A1666.
    ASHMORE v. FOSTER.
    (561 SE2d 228)
   Phipps, Judge.

Sherry Foster sued her next-door neighbors, Neil Ashmore and his wife, alleging malicious arrest and malicious prosecution. The trial court directed a verdict in favor of Ashmore’s wife, and the jury found in favor of Sherry Foster. Ashmore appeals, contending that there was insufficient evidence of malicious arrest or malicious prosecution and that the trial court erred in refusing to admit certain videotapes. We find that the evidence was sufficient to support the jury’s verdict and that the trial court did not abuse its discretion in disallowing the videotapes into evidence. We therefore affirm.

Where a jury returns a verdict and it has the approval of the trial judge, we must affirm on appeal if there is any evidence to support it. We construe the evidence with every inference and presumption in favor of upholding the verdict, even where the evidence is in conflict.

Viewed in this light, the evidence showed that in February 1997, the Ashmores moved into a house on property adjacent to the home of Sherry Foster and her husband, Rick. The Ashmores accessed their property via a gravel roadway owned and maintained by the Fosters. Rick Foster testified that there was friction between the couples almost immediately. In January 1997, the Fosters had begun clearing a portion of their property to build a new house. Their original house was approximately 300 feet from the Ashmores’ property, but the new site was much closer, with a driveway that was approximately ten to twenty feet from the boundary line. After the clearing began, Ashmore approached Rick Foster and offered to purchase a portion of the roadway. Rick Foster declined. Later, in April 1997, when the Fosters applied for a variance to construct their new home, Ashmore’s wife attended the hearing and opposed the variance. The variance was granted, however, and construction began.

The relationship between the neighbors deteriorated. Rick Foster told of an encounter with Ashmore.' Some of the property pins demarcating the property line between the roadway and Ashmore’s property had been disturbed, and Rick Foster hired surveyors to replace them. While the surveyors were working, Ashmore’s wife called the police to the site, and the surveyors left, promising to return to complete the work. Later, when Rick Foster was examining the area to determine whether the surveyors had completed replacing the pins, Ashmore drove up, yelled at him, “[D]on’t touch those boundary pins,” and threatened to have him arrested. According to Rick Foster, Ashmore then gave him three options: sell that portion of the road to him, stay off that property, or Ashmore would keep him in court over it.

Rick Foster described another incident. In May 1998, he saw Ashmore using a Bobcat tractor to move gravel from one area of the roadway to another and walked to the scene to determine what Ash-more was doing. Sherry Foster soon followed in her van, parking it across the road from the Bobcat. Ashmore, however, would not stop to talk, but continued to operate the Bobcat. When the bucket on the Bobcat hit the mirror of Sherry Foster’s parked vehicle, the Fosters left and called the police.

Sherry Foster told of an incident in which she was working near the construction site in a corner of her property that was adjacent to the Ashmores’ property. When she turned to leave the area, “[Ash-more] was in [her] face with a camera.” She tried to ignore him, but Ashmore began circling her, snapping her picture, and yelling that she would be put in jail.

In June 1998, Rick Foster was using a riding lawn mower to maintain the roadway. As he was working near the boundary line, the Ashmores called the police and complained that he had driven off the roadway and onto their property. Based on that incident, Ash-more applied for an arrest warrant against Rick Foster for criminal trespass. But it appeared that Rick Foster had stayed on his property. Thus, after several court dates, Ashmore dismissed the case. The disposition order stated that Ashmore did so “to achieve a new hearing for the more proper charge of stalking.”

The day following the dismissal, Sherry Foster was arrested. Ashmore had sworn out an arrest warrant against her for stalking him, including when he had taken pictures of her. The case was assigned to an assistant county solicitor-general, who testified that using information from the warrant, from conversations with the Ashmores, and from his own investigation, he added other charges. The accusation charged Sherry Foster with: (1) stalking Ashmore, (2) stalking Ashmore’s wife, (3) assaulting Ashmore, (4) criminal trespass, and (5) reckless driving. After a trial, a jury found her not guilty of all charges.

Deborah Stephens, Sherry Foster’s friend who had attended the criminal trial, testified in the instant case that during the criminal trial, she observed the Ashmores “sitting real close.” Stephens testified that for about 15 to 20 minutes, Ashmore was “forceful[ly]” instructing his wife, “you say this, you do this,” including “say . . . □ Sherry came out swinging her arms, screaming. [’]” Ashmore’s wife was writing down what her husband was saying. When Stephens later heard Ashmore’s wife on the witness stand repeating exactly what Ashmore had told her, she reported what she had observed to the court, who directed her to take the stand and testify about what she had seen and heard.

1. Ashmore argues that the evidence was insufficient to support the verdict for malicious prosecution. To prevail on a claim of malicious prosecution, a plaintiff must prove: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) want of probable cause; (5) malice; and (6) damage to the plaintiff. Ashmore argues that the decision to prosecute was made solely by the assistant solicitor-general without any consultation with him, that there was probable cause, and that there was no malice.

Ashmore supports this contention by pointing to his trial testimony. He testified that Sherry Foster began harassing him and his wife after he testified in a warrant application hearing in March 1998 against Sherry Foster and on behalf of Rick Foster’s brother, Russell. Russell Foster, who also lived on property along the gravel road, had accused Sherry Foster of stalking. According to Ashmore, after that, she would stand or park outside his house and stare at the house “many times in one day, many days a week, for long durations,” although he never saw her on his property. He stated that it was Sherry Foster’s harassment that led him to offer to purchase the Fosters’ property. Ashmore’s recollection of the “Bobcat” incident differed from Rick Foster’s. He stated that Sherry Foster had used her van to block him as he was attempting to maintain the roadway. Ash-more’s account of the “picture taking” episode also differed from Sherry Foster’s. He stated that he saw Sherry Foster standing approximately 50 feet from his front door that day and attempted to take photographs of her conduct, as he had been instructed to do by police. As he was snapping her picture and circling around her, she charged him and began swinging her arms at him.

(a) We consider first whether Ashmore instigated a prosecution for a criminal offense.

The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for . . . malicious prosecution; in the latter case there is not.

Having reviewed the record in a light favorable to the verdict, we conclude that the evidence authorized the jury to determine that Ashmore instigated Sherry Foster’s prosecution. And although Ash-more urges that he played no role in any of the charges except the initial stalking charge, the jury was entitled to believe the testimony of the assistant county solicitor-general that the additional charges were added after, among other things, conversations with the Ashmores.

Decided March 4, 2002.

Steven E. Conner, Edwin Marger, for appellant.

Peevy & Lancaster, Donn M. Peevy, Lucas O. Harsh, for appellee.

(b) “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” Here, the facts were disputed, leaving for the jury to decide whether the circumstances created an honest and reasonable belief in Ashmore’s mind that there was probable cause for Sherry Foster’s prosecution. And the evidence here presented a sufficient basis for finding that there was no probable cause to arrest her.

(c) “Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” Malice may be inferred from a want of probable cause, and we have determined in Division 1 (b) that the evidence authorized the jury to find a lack of probable cause. We conclude that the evidence authorized the jury to find that Ashmore acted with malice.

2. Ashmore contends that there is insufficient evidence to support a verdict of malicious arrest. But there was no verdict of malicious arrest. The record shows that the jury was charged on malicious prosecution and was not charged on malicious arrest.

3. Ashmore contends that the trial court erred in refusing to admit several videotapes into evidence. He argues that the tapes recorded a course of conduct on Sherry Foster’s part that would have refuted certain elements of her malicious prosecution claim. The tapes recorded only incidents that occurred after the criminal prosecution, and the trial court did not abuse its discretion in ruling that what Sherry Foster had done subsequent to the criminal prosecution was not relevant.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

       Id.

       OCGA § 51-7-40; Willis, supra at 350.

       This warrant application was ultimately dismissed.

       (Citations omitted.) Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (3) (243 SE2d 528) (1978); Holmes v. Achor Center, 249 Ga. App. 184, 191 (2) (b) (547 SE2d 332) (2001).

       See Willis, supra at 351 (1) (a).

       OCGA § 51-7-43.

       OCGA § 51-7-2.

        Fleming v. U-Haul Co. &c., 246 Ga. App. 681, 684 (3) (541 SE2d 75) (2000).

       See Powell v. Alan Young Homes, 251 Ga. App. 72, 74 (1) (554 SE2d 186) (2001); see generally Casillas v. State, 233 Ga. App. 752, 755-756 (1) (505 SE2d 251) (1998).


text:
    A01A1884.
    A01A1885.
    PALLADINO et al. v. PIEDMONT HOSPITAL, INC. PATTERSON v. PALLADINO et al.
    (561 SE2d 235)
   Phipps, Judge.

Albert Palladino and his wife sued Piedmont Hospital (Piedmont) and its employee, Arthur Patterson, and asserted claims for assault, battery and loss of consortium arising out of Patterson’s allegedly improper touching of Palladino’s genitals while Palladino was a patient at Piedmont. The Palladinos also asserted claims against Piedmont for negligent hiring and negligent supervision. Piedmont moved for summary judgment on the grounds that (1) it could not be liable under a respondeat superior theory because Patterson’s actions were outside the scope of his duties and not in furtherance of the hospital’s business interest, and (2) it could not be held liable for negligent hiring or negligent retention because it had no knowledge of any propensity for sexual misconduct by Patterson. The trial court granted Piedmont’s motion on the respondeat superior theory of liability, finding that “it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee.” The trial court also granted summary judgment on the negligent hiring and negligent retention claims, finding that Pal-ladino had shown no evidence that would suggest Piedmont knew or should have known of Patterson’s alleged criminal propensities.

In Case No. A01A1884, the Palladinos appeal only the trial court’s ruling on Piedmont’s liability under a respondeat superior theory. We find that, based on the particular facts of this case, summary judgment in favor of Piedmont was inappropriate. Therefore, we reverse that ruling.

Patterson also moved for summary judgment, claiming that Pal-ladino had failed to prove that he was the perpetrator. The trial court denied the motion, ruling that a jury could infer from the evidence that Patterson was the perpetrator. Patterson appeals in Case No. A01A1885. We find that Patterson’s motion was properly denied and affirm.

On August 13 and 14, 1998, Palladino was a patient at Piedmont. As a result of undergoing an angioplasty, a sheath was inserted in the femoral artery in his groin. Patterson was responsible for providing treatment following the angioplasty and was authorized to enter Palladino’s room alone. Treatment included checking the groin area for any bleeding or complications, cleaning the area and, if necessary, moving his testicles to perform these tasks.

In his deposition, Palladino testified that after the angioplasty he was taken back to his hospital room. He claimed that at some point on the evening of August 13, Patterson entered his room alone and began rubbing his leg. When he asked Patterson what he was doing, he responded that he was “washing [Palladino’s] leg.” Pal-ladino then passed out, but later woke to see Patterson rubbing his penis with both hands, attempting to cause him to have an erection, and Patterson’s lips almost touching his penis. At that point, Pal-ladino lost consciousness. The next day, Palladino’s penis was sore. Palladino testified that he was paralyzed both verbally and physically at the time of the incident and believes that the temporary paralysis was caused by an unknown drug, introduced intravenously. Palladino admitted that he did not know Patterson’s name at the time of the incident and that he based his determination that the perpetrator was Patterson on police records in which Patterson admitted to washing his leg.

Palladino told his wife about the incident the day after he was released, and they contacted Piedmont the following day. In interviews with hospital personnel and police, Palladino described the perpetrator as a tall black male with a large build and black hair who spoke with an accent, perhaps Jamaican or African, and who came into his hospital room wearing green scrubs on the evening of August 13 or early morning of August 14. In his deposition, Palladino testified that he recalled seeing only one male nurse in his room during his hospitalization.

Patterson admitted in his deposition that he provided patient care to Palladino on the evening of August 13. He testified that his first contact with Palladino was at approximately 8:00 p.m. when he checked the sheath in his groin, noticed a trickle of blood and cleaned the groin area. He then replaced the gauze in the crease of Pal-ladino’s groin. Patterson testified that he had to adjust Palladino’s testicles to perform these tasks and that he may have been wearing green scrubs that night. Patterson testified that he returned to Pal-ladino’s room once more that evening. He denied manipulating Pal-ladino’s genitals to arouse him sexually and denied having his mouth on or near Palladino’s penis.

Hospital records verify that Patterson was in Palladino’s room more than once on the evening of August 13 and that he checked the dressing on Palladino’s sheath and noted that there was no bleeding. Records from Patterson’s personnel file indicate that Patterson is a black male, six feet tall, with black hair, and that he weighed between 190 and 220 pounds in 1998. Only three male staff members were identified as fitting, to some degree, the description provided by Palladino. Of the three men, only Patterson had worked on August 13. Patterson was also the only male staff member who admitted to being in Palladino’s room that evening.

Case No. A01A1884

1. Every person shall be liable for the torts committed by his servant by his command or in the prosecution and within the scope of his business, whether committed by negligence or voluntarily. That liability extends to intentional torts, where the question is directed not to

the authority to commit the tort, but to authority to accomplish a purpose in pursuance of which a wilful tort is committed. [Cit.] The test is whether the tort was done within the scope of the actual transaction of the [employer’s] business for accomplishing the ends of his employment. If [an employee] steps aside from his [employer’s] business to do an act entirely disconnected from it and injury to another results, the [employer] is not liable. [Cit.] Where the tort is entirely personal to the employee, it is not within the scope of his employment and the employer is not liable. [Cit.]

Except in plain and indisputable cases, whether an employee is acting within the scope of his employment is a question for the jury. Here, the actions attributed to Patterson were not so far removed from his accepted duties to preclude liability for his employer. Patterson was performing his job when he initially touched Palladino’s genitals. Whether any continued, inappropriate touching was “entirely disconnected” from Piedmont’s business is a question for the jury. It does not matter whether Piedmont did not intend or expect Patterson to perform the complained-of acts. Nor does the fact that Patterson’s actions may have been mingled with personal motives or purposes automatically entitle Piedmont to summary judgment. A jury must determine if Patterson deviated from his accepted duties so slightly that it would not affect Piedmont’s liability for his actions.

We are not persuaded by the cases relied upon by the trial court — Alpharetta First United Methodist Church v. Stewart, Doe v. Village of St. Joseph and Coley v. Evans Mem. Hosp. In Stewart, a minister engaged in a sexual relationship with one of his parishioners who later sued the church for assault and battery. In Doe, parents sued their daughter’s school for emotional trauma resulting from the child’s consensual sexual relationship with an adult staff member who worked as a recreational advisor. Coley involved a suit against a hospital based on an alleged sexual assault on a patient by an emergency room physician. In all three cases, the plaintiffs proceeded against the employer under the theory of respondeat superior and the court held that the acts were purely personal in nature, unrelated to the employee’s duties and not in furtherance of the employer’s business. Stewart and Doe are clearly distinguishable because contact with another person’s sex organs was not remotely within the scope of either employee’s duties. Unfortunately, the Coley opinion does not reveal sufficient facts for us to determine if it presented a similar factual situation. We cannot assume that the facts here are sufficiently similar to the facts in Coley to warrant summary judgment under its precedent.

Piedmont relies on Lucas v. Hosp. Auth. of Dougherty County, where a nurse gave lethal, unauthorized injections of potassium chloride to a patient, ultimately causing his death. The court affirmed summary judgment for the hospital, finding that the nurse pursued only her own personal interests when she gave the lethal, unauthorized injections.

We find Lucas distinguishable. The nurse’s actions in Lucas were completely outside the scope of her employment as she had no authority to give the patient any injection of potassium chloride. Thus, she was not performing an authorized function of her job when she administered the injections to Lucas. Here, Patterson was authorized to and even required to touch Palladino’s genitals to perform his job. While performing the authorized task, he allegedly went further and sexually assaulted Palladino.

This is not a case where the facts are plain and indisputable that the employee was acting outside the scope of his employment. As a result, we must reverse summary judgment in favor of Piedmont.

Case No. A01A1885

We review the denial of a motion for summary judgment de novo and view the evidence with all reasonable inferences and conclusions in favor of the party opposing the motion. To prevail on a motion for summary judgment, the movant must show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden 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. . . . All of the other disputes of fact are rendered immaterial.” If the defendant discharges this burden, the plaintiff cannot rest on his pleadings, but must point to specific evidence giving rise to a triable issue.

2. Patterson claims that he is entitled to summary judgment because there is no proof that he committed the acts alleged by Pal-ladino. He argues that he has discharged his summary judgment burden by denying the Palladinos’ allegations of assault and battery in his deposition testimony and that the Palladinos have failed to point to any evidence to the contrary.

Viewed most favorably to the Palladinos, the evidence shows that Patterson entered Palladino’s room on the night of August 13; that he touched Palladino’s genitals, allegedly to remove blood near his groin, despite notations in the hospital records that no blood was present; that someone fitting Patterson’s physical description improperly touched Palladino’s genitals and that no other hospital employee fitting that description was working that night. Despite Patterson’s denial, a jury could conclude that he performed the acts alleged by Palladino. The trial court properly denied Patterson’s motion for summary judgment.

3. Patterson also appears to claim that summary judgment is appropriate because Palladino never revoked his consent to any medical treatment during his stay at Piedmont. Patterson relies on Williams v. Lemon, where the court granted a doctor’s motion for directed verdict on a patient’s claim that he touched her improperly during a routine gynecological exam. The court in Williams recognized that unauthorized touching constitutes actionable battery, but found that the patient had authorized the doctor to touch her for purposes of a gynecological examination and had presented no evidence that the touching exceeded accepted medical techniques. Here, Palladino’s testimony that Patterson was attempting to cause him to have an erection and preparing to perform oral sex on him constituted evidence that the touching exceeded accepted medical techniques. Palladino’s failure to object to or prevent the touching does not authorize summary judgment in Patterson’s favor under the standard set forth in Williams.

Decided March 4, 2002

Barry L. Zimmerman, for Palladino et al.

Hall, Booth, Smith & Slover, Deborah S. Moses, Downey & Cleveland, William C. Anderson, for Piedmont Hospital, Inc. and Patterson.

Judgment reversed in Case No. A01A1884. Judgment affirmed in Case No. A01A1885.

Smith, P. J, and Barnes, J., concur.

       Palladino testified that he could not be more precise about the timing of the incident because there was no clock on the wall.

       In his statement to a police investigator, Patterson admitted to washing Palladino’s groin.

       OCGA § 51-2-2.

        Frazier v. Southern R. Co., 200 Ga. 590, 594 (2) (37 SE2d 774) (1946).

        Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612-613 (1) (492 SE2d 347) (1997).

        Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 (373 SE2d 797) (1988).

       See id.

        Reynolds, supra; Bacon, supra; see Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (1) (345 SE2d 886) (1986) (“ ‘The theory that one may be an employee one minute and the very next minute become enraged, commit an assault and battery, and in that act not be an employee, is too fine-spun a distinction.’ [Cit.]”).

       See Reynolds, supra.

       Id.; Bacon, supra.

       Id.

       221 Ga. App. 748, 752 (2) (472 SE2d 532) (1996).

       202 Ga. App. 614, 616 (1) (415 SE2d 56) (1992).

       192 Ga. App. 423 (385 SE2d 100) (1989).

       193 Ga. App. 595 (1) (388 SE2d 871) (1989).

       Id. at 596.

       See Reynolds, supra (distinguishing Lucas because it did not involve the uninterrupted escalation of an employee’s performance of one of the duties for which he was employed).

        McBride v. Brown, 246 Ga. App. 149 (538 SE2d 863) (2000).

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.; OCGA § 9-11-56 (e).

        Lau’s Corp., supra.

       See Thompson v. Crownover, 259 Ga. 126, 130 (6) (381 SE2d 283) (1989) (“[i]t is the jury’s function to draw an inference from the evidence when more than one inference can be drawn”).

       194 Ga. App. 249 (390 SE2d 89) (1990).

       Id. at 251 (2).


text:
    A01A1916.
    SMITH v. THE STATE.
    (561 SE2d 232)
   Phipps, Judge.

Michael Smith was convicted of aggravated assault, terroristic threats, family violence battery, simple battery and possession of a firearm by a convicted felon. The charges stemmed from physical altercations with his girlfriend, Donna Hayward. On appeal, Smith claims that the trial court erred by allowing Hayward to testify without conducting a hearing to determine if she was his common-law wife and by denying his motion to suppress and allowing the State to introduce audio recordings of conversations between him and Hayward that occurred while he was detained in the DeKalb County Jail. We find no error by the trial court and thus affirm.

1. During the State’s examination of Hayward, Smith’s counsel moved to suppress her testimony as being privileged because she claimed to be Smith’s common-law wife. The trial court denied the motion because Hayward had not invoked the marital privilege. The court stated that if she had invoked the privilege, it might prompt an inquiry into whether a common-law marriage existed. Smith claims that the court erred by failing to conduct a hearing on the existence of a common-law marriage.

Although the parties dispute whether Hayward was aware of the existence of the marital privilege, which provides that she cannot be compelled to testify against her spouse, the court had no obligation to inform her of the privilege. The privilege of refusing to testify belongs to the witness and not to the defendant. Where a spouse takes the stand and testifies voluntarily, it is presumed that she has waived the marital privilege.

Because Hayward took the stand and testified voluntarily, we must assume that she waived any privilege afforded her as a result of her relationship with Smith. Thus, it was not necessary to conduct a hearing or otherwise receive evidence on the existence of a common-law marriage.

2. Smith claims that the trial court erred by denying his motion to suppress audio recordings of conversations between him and Hayward while he was detained at the DeKalb County Jail. He argues that the recordings were made in violation of OCGA § 16-11-62, that they were not promptly disclosed as required by OCGA § 16-11-64 (b) (7) and that the State failed to present evidence that they were protected from tampering or monitoring.

(a) OCGA § 16-11-62 (4) prohibits any person from intentionally and secretly intercepting a telephone call by use of any device, instrument or apparatus. OCGA § 16-11-66 (a) provides an exception to OCGA § 16-11-62 that allows such an interception where one of the parties to the communication has given prior consent. Here, the State argues that Smith’s consent can be implied because he knew that his telephone calls were subject to being monitored and recorded. Although Smith concedes that he understood that his telephone calls were subject to being monitored, he argues that he thought the monitoring was solely for institutional security purposes and that he did not consent to having his conversations recorded.

Although there is no Georgia authority on the issue of whether and when an inmate has given implied consent to have his telephone calls recorded, several federal courts have addressed it under 18 USC § 2511 (2) (c) (the federal equivalent of OCGA § 16-11-66). In the federal cases, whether an inmate’s consent can be implied depends on his knowledge of the possibility that his calls may be recorded. The fact that a defendant is in custody and knows or should know that the facility where he is detained has a common practice of monitoring inmates’ telephone calls is not enough to establish implied consent. Implied consent has been found where (1) an inmate attended a lecture discussing the facility’s monitoring and taping system, (2) the inmate received a handbook describing the system and (3) notices were posted on or near the telephones explaining that use of the telephone constituted consent to having the caller’s conversation monitored. Implied consent has also been found where only (1) and (3) were present, where only (2) and (3) were present and where (2) and (3) were present and the inmate signed a form containing a warning that telephone calls were subject to monitoring and taping.

We find the federal cases on this issue persuasive and agree that consent can be inferred under certain circumstances. Here, the prosecuting attorney apprised the court of three procedures used at the DeKalb County Jail to inform inmates that their calls are subject to being recorded: (1) a manual, which is distributed at booking, containing a notice that all telephone calls are subject to being recorded; (2) notices placed near each telephone stating that telephone calls are subject to being recorded and (3) a recorded message played before the telephone call begins, telling the inmate and the person receiving the call that the conversation is subject to being recorded. But the State introduced no evidence of the actual procedures. At the motion for new trial hearing, Smith denied receiving a manual and denied that any notices were posted near the telephones. But he admitted that a recording played after he dialed the telephone number and informed him that the call was subject to being monitored and recorded and that by using the telephone, he was giving his consent. We find this admission sufficient to constitute implied consent to the monitoring and recording of his telephone calls while he was detained at the DeKalb County Jail.

(b) Smith claims that the existence of the recordings was not promptly disclosed as required by OCGA § 16-11-64 (b) (7).

Decided March 4, 2002.

Robert J. Storms, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

By its terms, OCGA § 16-11-64 (b) (7) relates only to the disclosure of evidence of intercepted conversations obtained through a warrant, not to the disclosure of those obtained by virtue of the consent of one party to the conversation as provided for in OCGA § 16-11-66. We determined in Division 2 (a) that the conversations at issue were obtained under OCGA § 16-11-66. Thus, the disclosure requirements of OCGA § 16-11-64 (b) (7) were not applicable. Moreover, before the trial began, Smith’s counsel acknowledged that he had been given the recordings and had been reviewing them.

(c) Smith claims that the State failed to present evidence that the recordings were protected from tampering or monitoring as required by King v. State, which involved the failure to seal tape recordings of telephone conversations obtained through a wiretap order as required by 18 USC § 2518 (8) (a).

Section 2518 sets forth procedures for a law enforcement officer to obtain an order authorizing the interception of wire, oral or electronic communications. Subsection (8) (a) provides that when the wiretap order expires, the recordings of any intercepted communications shall be given to the judge issuing the order and sealed under his directions. The presence of the seal is required before the recordings can be used or disclosed. By its terms, 18 USC § 2518 (8) (a) requires the sealing of recordings obtained through a wiretap order, not those obtained by virtue of the consent of one party to the conversation. We determined in Division 2 (a) that the conversations at issue were obtained pursuant to Smith’s implied consent. Thus, the sealing requirements of 18 USC § 2518 (8) (a) were not applicable. Moreover, Hayward testified that she had listened to some of the recordings and that they were fair and accurate recordings of her conversations with Smith.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 24-9-23.

       Id.

        Mapp v. State, 191 Ga. App. 622 (2) (382 SE2d 618) (1989); Wiley v. State, 150 Ga. App. 607, 608 (1) (258 SE2d 286) (1979).

       Id.

       Id.

        Campiti v. Walonis, 611 F2d 387, 393 (1st Cir. 1979); Crooker v. U S. Dept. of Justice, 497 FSupp. 500, 502-503 (D. Conn. 1980).

        United States v. Amen, 831 F2d 373, 379 (2nd Cir. 1987).

        United States v. Willoughby, 860 F2d 15, 19-20 (2nd Cir. 1988).

        United States v. Workman, 80 F3d 688, 693 (2nd Cir. 1996) (notice above telephone told inmates only that telephone conversations were subject to electronic monitoring).

        United States v. Van Poyck, 77 F3d 285, 291-292 (9th Cir. 1996); United States v. Noriega, 764 FSupp. 1480, 1491 (S.D. Fla. 1991); United States v. Lombardo, 1999 U. S. Dist. LEXIS 7078, at *18 (S.D. N.Y. 1999).

        Luck v. State, 163 Ga. App. 657, 660 (3) (295 SE2d 584) (1982).

       262 Ga. 147 (414 SE2d 206) (1992).

       See Luck, supra.


author: Ellington, Judge.

text:
    A01A2005.
    TALTON v. THE STATE.
    (561 SE2d 139)
   Ellington, Judge.

A Taylor County jury convicted Xavier A. Taitón of aggravated assault, OCGA § 16-5-21, and possession of a firearm during the commission of a crime, OCGA § 16-11-106 (b) (1). Taitón appeals from the denial of his motion for new trial, challenging his conviction for aggravated assault on several grounds. Because the trial court gave an erroneous and misleading jury instruction defining aggravated assault that resulted in a violation of Talton’s due process rights, we must reverse.

The record reveals the following relevant facts. On September 26, 1998, Taitón attended a birthday party, uninvited. He wanted to continue an argument he started earlier that day with the victim. Taitón approached the victim and said: “My girl said you were picking at her.” Before the victim could respond, Taitón struck him and then pointed a pistol at his chest. When a friend of Talton’s tried to intervene, Taitón fired the pistol, hitting the victim in the toe. Upon his arrest, Taitón admitted taking the pistol to the party because he expected trouble; however, he said he fired the pistol accidentally during the scuffle with his friend. Talton’s defense at trial was accident.

1. Taitón contends the trial court erred in giving a jury instruction defining aggravated assault as “an act which places another person in immediate apprehension of receiving a violent injury” when Taitón was indicted for aggravated assault by a specific method, “by shooting” the victim with a pistol. During the charge conference, the State asked the court to give one instruction on simple assault and two instructions that defined aggravated assault to include acts which put the victim in immediate apprehension of receiving bodily injury. Taitón argued against the simple assault instruction, and the State withdrew its request. Further, the court announced that it would not give the State’s instruction on simple assault. The court also declined to give the State’s requests to charge on aggravated assault, indicating instead that it would give a pattern jury instruction defining the crime. During its final charge, however, the trial court gave an instruction which defined an aggravated assault to include a simple assault. Moreover, the court charged the jury that “[i]f the pointing of a firearm places the victim in reasonable apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred.” Taitón excepted to that charge. Further, because the court found that Taitón reasonably believed that the charge would not be given, it allowed him additional closing argument.

The court’s instruction was improper in this case because the State indicted Taitón for the offense of aggravated assault by a specific method, by shooting the victim with a pistol. “Given the way the indictment was drafted, the jury was required to find beyond a reasonable doubt that [Taitón] shot a handgun at [the victim] in order to find him guilty of aggravated assault.” (Citation omitted.) Elrod v. State, 238 Ga. App. 80, 83 (2) (517 SE2d 805) (1999).

It is axiomatic that, “[i]n criminal prosecutions [,] the court’s instructions . . . must be tailored to fit the charge in the indictment and the evidence [adduced] at trial. This is particularly true when the offense charged may be committed in one of several ways, but the indictment charges one specific method.” (Citations omitted.) Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978). In this case, the indictment averred an aggravated assault by shooting the victim with a pistol. Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage. See, e.g., Hammett v. State, 246 Ga. App. 287, 289 (3) (539 SE2d 193) (2000); Ross v. State, 195 Ga. App. 624, 625 (1) (b) (394 SE2d 418) (1990). Such averments “must be proved as laid, or the failure to prove the same . . . will amount to a [fatal] variance” and a violation of the defendant’s right to due process of law. (Citations omitted.) Ross v. State, 195 Ga. App. at 625 (1) (b); see also Dobbs v. State, 235 Ga. 800, 802 (3) (221 SE2d 576) (1976). Consequently, a jury instruction that constructively amends an indictment to allow a conviction based upon proof of fewer than all the material averments of the crime alleged violates due process and results in harmful error. See Jackson v. Virginia, 443 U. S. 307, 314 (III) (A) (99 SC 2781, 61 LE2d 560) (1979) (“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.”); see also Chapman v. State, 273 Ga. 865, 868 (2) (548 SE2d 278) (2001); Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987); Walker v. State, 146 Ga. App. at 244.

This is not a case where the trial court gave an overly broad aggravated assault instruction that included a definition of the crime as averred in the indictment and which was followed by an appropriate limiting instruction. Cf. Lumpkin v. State, 249 Ga. 834, 836 (2) (295 SE2d 86) (1982). In this case, the trial court failed to charge the jury on aggravated assault by shooting the victim with a pistol. Rather, it instructed the jury that in order to prove an aggravated assault, the State need only show that the person was put in reasonable apprehension of immediately receiving a violent injury. The aggravated assault instruction expressly authorized the jury to find Taitón guilty if the evidence showed beyond'a reasonable doubt that Taitón simply pointed a pistol at the victim,' thereby putting the victim in reasonable apprehension of receiving a serious bodily injury. The evidence adduced would permit the jury to make such a finding, even if they believed the shooting was accidental. Consequently, the court’s instruction constructively amended the indictment to relieve the jury of finding one of the material allegations averred, that is, that Taitón committed the offense “by shooting” the victim. This was harmful error requiring reversal. See Chapman v. State, 273 Ga. at 868 (2); Lumpkin v. State, 249 Ga. at 836; Walker v. State, 146 Ga. App. at 244 (2).

Even if the court had given a limiting instruction, which it did not, such an instruction would be insufficient to remedy the error here. In this context, limiting instructions are meant to advise the jury that although the court has charged that an offense may be committed in a number of ways, it should limit its consideration of those methods to the manner actually set forth in the indictment. To do this, the jury must compare the jury instruction defining the crime to the crime as averred in the State’s indictment. If the court’s overly broad definition of aggravated assault does not contain a correct definition of the offense as indicted, then the court is asking the jury to compare the indictment to nothing, or, worse, to an erroneous instruction. Thus, under these circumstances, a limiting instruction would not remedy the error.

Decided February 13, 2002

Reconsideration denied March 5,2002

Hamlett & Kreider, Monica N. Hamlett, Robin M. Kreider, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

2. Because we reverse Talton’s conviction for the reason set forth above, the remaining enumerations of error are moot.

Judgment reversed and case remanded for new trial.

Johnson, P. J, and Ruffin, J., concur.

       The trial court’s entire instruction on aggravated assault is as follows:
      As assault is an attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of immediately receiving a violent injury. A person commits the offense of aggravated, assault when that person assaults another with a deadly weapon. To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury to another person coupled with the apparent ability to commit the injury, and that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant. If the pointing of a firearm places the victim in reasonable-apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred. It makes no difference whether the weapon was loaded or could, in fact, be fired.

       The State argues that Taitón, by making additional closing argument, waived his objection to the instruction. We disagree. Talton’s choice was not an election between mutually exclusive remedies, nor does it imply an acquiescence in the court’s decision to give the instruction; rather, Taitón simply asked to revisit his closing argument in light of the court’s unexpected decision to give an objectionable instruction. See generally Whisnant v. State, 178 Ga. App. 742, 744 (2) (344 SE2d 536) (1986) (acquiescence in a ruling deprives an appellant of the right to raise a claim of error on appeal). Further, if there is a reasonable probability that the jury convicted Taitón of an offense in a manner not averred in the indictment, the “error is sufficiently egregious to preclude a finding that it was waived,” and a plain error analysis under OCGA § 5-5-24 (c) would be appropriate. Levin v. State, 222 Ga. App. 123, 127 (6) (473 SE2d 582) (1996).

       Although the court’s final charge is to be read “as a whole,” we believe a limiting instruction cannot always be inferred from disparate instructions discussing various principles of law, e.g., burdens of proof, reasonable doubt, and that portion of the charge which simply recounts the indictment. When reviewing the charge “as a whole,” the critical issue is whether the charge adequately presents the issues in a way not likely to confuse a jury of average intelligence. See, e.g., Herrin v. State, 229 Ga. App. 260, 262 (2) (493 SE2d 634) (1997). In this context, a limiting instruction is, by definition, meant to direct the jury to limit its consideration of the crime based upon a comparison of two particular things: the jury instruction defining the crimes and the crimes as averred in the State’s indictment. Consequently, the limiting instruction ideally should come after the instruction the court intends to limit, and it should direct the jury to compare that instruction with the crime averred in the indictment. Although we have found no cases explaining exactly when a limiting instruction is sufficient, we believe these principles are implicit in previous case authority. See Chapman v. State, 273 Ga. at 868-869 (2) (“Although the court. . . read the charge ... in the indictment, under these circumstances [(no specific remedial instruction given)], we cannot conclude that doing so prevented the jury from being misled by the instructions.”); Lumpkin v. State, 249 Ga. at 836 (2) (“This remedial charge effectively cured any possible prejudice to the appellant arising from the earlier, more general charge.”) (emphasis supplied); Williams v. State, 185 Ga. App. 633 (1) (365 SE2d 491) (1988) (“[T]he trial court did follow that portion of the charge dealing with the offense with specific instructions that the jury would be authorized to convict only if it found beyond a reasonable doubt that the defendant was guilty of aggravated assault as charged in the indictment.”) (citation and punctuation omitted; emphasis supplied).


author: Ruffin, Judge.

text:
    A01A1913.
    NORRIS v. EMANUEL COUNTY et al.
    (561 SE2d 240)
   Ruffin, Judge.

Augustine Norris was a passenger in a truck driven by her grandson, Travis Evans, in Emanuel County. When Evans pulled the truck over on the shoulder of the road, the shoulder collapsed, causing the truck to tip over, injuring Norris. Norris sued Emanuel County, five county commissioners, the county road superintendent, and a road crew supervisor (collectively “the defendants”), alleging that the defendants’ negligence caused her injuries. The defendants moved for summary judgment, asserting that they were immune from suit. The trial court granted their motion, and this appeal ensued. For reasons that follow, we affirm in part and reverse in part.

In reviewing the grant of a motion for summary judgment, we conduct a de novo review of the evidence. We affirm only if the undisputed facts, viewed in the light most favorable to the nonmov-ant, demonstrate that the movant is entitled to judgment as a matter of law.

So viewed, the record shows that Emanuel County experienced heavy rains in February and March 1998. Rainwater filled a ditch that ran along Ohoopee Road, a dirt road. The water spilled out of the ditch where Ohoopee Road intersected with Meeks Road, a paved thoroughfare, and washed out the intersection. The county brought in dirt, repaired the washout, and placed blocks in the ditch to slow the water flow. However, a subsequent storm washed the dirt away, and a local resident used his tractor to bring in more dirt. That same day, county workers attempted to grade the intersection. Evidently, however, these remedial efforts did not repair the intersection, which remained “badly eroded.” According to James Woods, who lives near the intersection, Emanuel County Road Superintendent Samuel Van Arsdale inspected the damaged intersection.

On March 22, 1998, two to three weeks after the inspection, Evans and Norris were driving down Meeks Road. As Evans approached the intersection with Ohoopee Road, he was met by an oncoming vehicle. Evans pulled over to the shoulder of the road, at which point the pavement under the truck gave way, causing the truck to tip over. Norris injured her neck in the accident. The next day, Woods noticed that a sign had been placed at the intersection warning of the washout.

Norris sued Emanuel County, Van Arsdale, five county commissioners, and Franklin Glisson, grade crew supervisor, alleging that the defendants’ failure to repair the intersection and/or warn of the dangerous condition caused her injuries. In her complaint, Norris further asserted that the failure “to correct this dangerous condition constitute [d] negligent performance of ministerial functions.”

The defendants moved for summary judgment, asserting that the decision regarding which roads to repair following the flooding was discretionary rather than ministerial. Thus, the defendants maintained that they were immune from suit under the doctrine of official immunity. The trial court agreed, finding, “as a matter of law, that determining the extent of the work to be performed is a discretionary function requiring the allocation of limited resources.” This appeal ensued.

1. In her first enumeration of error, Norris argues that the trial court erred in granting summary judgment on a basis that was not raised on motion for summary judgment — sovereign immunity. The defendants, on the other hand, contend that “[w]hether called ‘official immunity’; ‘sovereign immunity’; or ‘public immunity5; all of these [doctrines] refer to the same principle and defense.” Thus, the defendants reason, they raised the issue of sovereign immunity by raising the issue of official immunity. We disagree.

Contrary to the defendants’ contention, “sovereign immunity” and “official immunity” are not synonymous, but are separate, related doctrines. Sovereign immunity, also referred to as “governmental immunity,” refers to the immunity traditionally granted governmental entities, such as the state or its counties. Official immunity, on the other hand, “is applicable to government officials and employees sued in their individual capacities.”

Here, the only officers sued in their individual capacities were Van Arsdale and Glisson. Thus, the doctrine of official immunity relates only to those two actors. The remaining defendants’ immunity from suit, if any, stems from sovereign immunity, an issue not raised by defendants in their motion for summary judgment. “The issues tbat must be rebutted on motion for summary judgment are those raised by the motion.” Because the defendants did not raise the issue of sovereign immunity in their motion for summary judgment, Norris was not required to rebut this issue. And, in ruling in favor of the defendants based upon an argument that was not raised in the motion for summary judgment, the trial court deprived Norris of her opportunity to respond to that issue. It follows that the trial court erred in granting the defendants’ motion for summary judgment on this basis.

2. In three additional, but related, enumerations of error, Norris contends that the trial court erred in granting summary judgment to Van Arsdale and Glisson. Again Norris contends that the trial court improperly based its ruling on issues that were not raised in the motion for summary judgment. According to Norris, the trial court erred in basing its ruling on: (1) lack of causation; (2) the discretionary nature of Van Arsdale’s repairs to the intersection; and (3) plaintiffs failure to present evidence that the Department of Transportation (DOT) regulations are binding on the county.

As discussed above, a trial court should not grant a motion for summary judgment on an issue that has not been raised, as such ruling deprives the nonmovant of a full and fair opportunity to present evidence on that issue. Contrary to Norris’ contention, however, the trial court did not err in granting Van Arsdale’s and Glisson’s motion for summary judgment.

Norris correctly states that, as a general rule, a trial court may not grant summary judgment based upon an issue that the nonmov-ant has not had a chance to address. What Norris fails to acknowledge, however, is that the trial court based its ruling on its conclusion that Van Arsdale and Glisson were immune from suit — an issue that was clearly raised. Indeed, the issue was raised at the outset. In Norris’ complaint, she alleges that the defendants’ liability is predicated upon their negligent performance of ministerial duties, which is the linchpin of any claim against a government officer or employee. Accordingly, as already stated, the issue presented is whether the trial court correctly concluded that the officers are immune from suit.

“Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty.” “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” As a general rule, ministerial acts are “simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Discretionary acts, on the other hand, call “for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”

Here, the undisputed evidence shows that Emanuel County experienced extreme rainfall in February and March 1998, which damaged several roads. Van Arsdale testified that he had to “exercise his judgment and discretion in determining how to allocate his work forces, equipment, and time” to repair the damage. Van Arsdale further testified that there were no guidelines or procedures in place for determining how to allocate county resources. Where a decision is left to the personal judgment of government officials, such decisions are properly characterized as discretionary.

The case cited by Norris does not require a different result. In Joyce v. Van Arsdale, the DOT inspected bridges in Emanuel County. Following the inspection, DOT ordered the county to close a specific bridge. The task was allegedly performed in a negligent manner, and a woman was injured when her car collided with a barricade, which had been dismantled. Because the duty to close the bridge arose from a specific directive from the DOT, this Court concluded that the act was ministerial rather than discretionary. In this case, however, there is no such specific directive.

Norris suggests that the directive is found in OCGA § 32-6-50 (c), which requires counties to install traffic-control devices. We disagree. The statute provides that the county shall place such devices “as are necessary to regulate, warn, or guide traffic.” And, as the trial court noted, “[t]he ‘as necessary5 language connotes discretion.” Indeed, this case underscores the purpose behind granting immunity to county officials. Emanuel County, having sustained widespread damage as a result of storms, was a county in crisis. Van Arsdale and Glisson were placed in the unenviable position of having to allocate limited resources to repair the damage. And the allocation of limited resources requires discretion. It follows that the acts of Van Arsdale and Glisson were discretionary, and the trial court properly granted their motion for summary judgment.

Decided March 5, 2002.

Right & Baggett, Billy R. Right, Jones, Hilburn, Claxton & Sanders, Eric L. Jones, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellees.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Phipps, J., concur. Ellington, J., not participating.

       See Phillips v. Walls, 242 Ga. App. 309, 310 (529 SE2d 626) (2000).

       See id.

       Although Norris enumerates four errors, she does not argue them separately or sequentially, as required by Court of Appeals Rule 27 (c) (1).
      Rule 27 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Norris] has hindered the Court’s review of [her] assertions and has risked the possibility that certain enumerations will not be addressed.

        John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1) (489 SE2d 527) (1997). Nonetheless, to the extent we are able to discern which enumerations are supported by authority and/or argument, we will address them. Id.

       See Gilbert v. Richardson, 264 Ga. 744, 749-750 (4) (452 SE2d 476) (1994).

       Id. at 749.

       (Punctuation omitted.) Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998).

       See id. at 887-888 (1).

        Wynn v. Arias, 242 Ga. App. 712, 715 (1) (531 SE2d 126) (2000).

       See id.

       See Hodge v. SADA Enterprises, 217 Ga. App. 688 (458 SE2d 876) (1995).

       In her brief, Norris argues that the trial court erred in granting the motion as to all defendants. Based upon our ruling in Division 1, however, the only defendants that may be entitled to summary judgment on the issue raised — official immunity — are Van Arsdale and Glisson. Accordingly, we address Norris’ remaining enumerations of error only as to these two defendants.

       Id. at 690 (1).

       See Brock v. Sumter County School Bd., 246 Ga. App. 815, 819 (2) (542 SE2d 547) (2000).

       Id.

       (Punctuation omitted.) Kordares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996).

        Brock, supra.

       Id.

        Kordares, supra.

       196 Ga. App. 95 (395 SE2d 275) (1990).

       Id. at 96-97.

       OCGA § 32-6-50 (c) (1).

       See Stone, supra.


author: Miller, Judge.

text:
    A01A2279.
    RIDDLE v. GEO-HYDRO ENGINEERS, INC.
    (561 SE2d 456)
   Miller, Judge.

This case involves the enforceability of restrictive covenants found in an employment agreement prohibiting the employee from performing certain services and from soliciting the company’s clients for any purpose during a two-year period after termination and within a four-county area. The trial court upheld the covenants as enforceable. Since the nonsolicit covenant is unenforceable, the non-compete covenant is also unenforceable, requiring that we reverse.

Michael Riddle was an employee with Geo-Hydro Engineers, Inc. for more than ten years when in 1997 he entered into an employment agreement containing certain restrictive covenants. The post-employment covenants provided:

(a) For and during a period of two years commencing immediately following Termination, the Employee shall not within [a defined] Territory: (i) individually or for or on behalf of any other person engage, directly or indirectly, in the business of providing, performing or rendering [certain soil-testing] Services; (ii) directly or indirectly for himself or on behalf or in connection with any other person solicit, divert, or attempt to take away any of the clients of the Company with whom the Employee had Material Contact during the twelve (12) month period preceding Termination. . . .

In November 2000, Riddle left employment with Geo-Hydro and, along with another former employee, started a business providing geotechnical and environmental engineering and construction materials testing services. In response to Geo-Hydro’s complaint for injunc-tive relief alleging that Riddle was in violation of the restrictive covenants, Riddle counterclaimed for a declaratory judgment that the covenants were unenforceable. Riddle now appeals the trial court’s ruling that the covenants were in fact reasonable and enforceable.

“A contract in general restraint of trade or which tends to lessen competition is against public policy and is void.” (Footnote omitted.) Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289, 292 (2) (498 SE2d 346) (1998). A restrictive covenant in an employment contract, whether a noncompete covenant or a nonsolicit covenant, is considered in partial restraint of trade and will be enforced if reasonable, founded on valuable consideration, reasonably necessary to protect the interest of the party in whose favor it is imposed, and if it does not unduly prejudice the interest of the public. Kuehn v. Selton & Assoc., 242 Ga. App. 662, 663 (1) (530 SE2d 787) (2000); Sysco Food Svcs. &c. v. Chupp, 225 Ga. App. 584, 585 (1) (484 SE2d 323) (1997).

Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

(Punctuation and footnote omitted.) Habif, supra, 231 Ga. App. at 292 (2).

“The first step in considering the enforceability of restrictive covenants is to determine the level of scrutiny to be applied.” (Footnote omitted.) Advance Technology Consultants v. RoadTrac, 250 Ga. App. 317, 319 (1) (551 SE2d 735) (2001). Covenants ancillary to an employment contract receive strict scrutiny and cannot be blue penciled. Habif, supra, 231 Ga. App. at 289 (1).

We need only address the covenant not to solicit, which prohibits Riddle from soliciting any clients of Geo-Hydro with whom Riddle had “Material Contact” during the 12 months preceding his termination. This covenant is overbroad in that it does not limit the purpose for which Riddle may not solicit Geo-Hydro clients. “As this prohibits [Riddle] from contacting these clients to sell them unrelated products such as soap or banking products, the covenant[ ] clearly [goes] beyond what is necessary to protect [Geo-Hydro’s] business interests.” (Footnote omitted.) RoadTrac, supra, 250 Ga. App. at 322 (4). Accordingly, we hold that the nonsolicit covenant is overbroad and unenforceable.

Decided March 6, 2002.

McArthur & McArthur, John J. McArthur, for appellant.

Fortson, Bentley & Griffin, John B. Parker, Roy E. Manoll III, for appellee.

Since the nonsolicit covenant is unenforceable, the noncompete covenant is also unenforceable, as Georgia does not employ the “blue pencil” doctrine of severability to restrictive covenants in employment contracts. RoadTrac, supra, 250 Ga. App. at 320 (2). Thus, the court erred in finding Riddle’s post-employment covenant not to compete and covenant not to solicit enforceable.

Judgment reversed.

Andrews, R J., and Eldridge, J., concur.

       Riddle does not challenge the covenant of no-hire.


author: Blackburn, Chief Judge.

text:
    A01A2445.
    GEORGIA DERMATOLOGY CLINIC, P.A. et al. v. NESMITH et al.
    (561 SE2d 459)
   Blackburn, Chief Judge.

Georgia Dermatology Clinic, RA. d/b/a Georgia Dermatology & Skin Cancer Center (“Georgia Dermatology”) and Orlando Gilbert Rodman, M.D., sought appellate review of the denial of their motions to dismiss that were filed on procedural grounds. We granted this interlocutory appeal to clarify the statutorily mandated requirements of OCGA § 9-11-9.1. After review, we find that the statutory provisions at issue are neither ambiguous nor susceptible to the strained construction that is being advocated. Accordingly, the trial court properly denied their motions to dismiss.

The application of OCGA § 9-11-9.1 (b) arose during litigation brought by Deby Dianne Nesmith, individually, and as the parent of Corey Bateman, deceased, and as the personal representative of her son’s estate, against Georgia Dermatology, Rodman, Roche Laboratories, Inc., Hoffman-La Roche, Inc. and ABC Corporation, Inc. on several theories, inter alia, wrongful death, medical negligence, product liability and breach of warranty. Teenager Bateman, then age 16, inflicted a single gunshot wound to his head on March 27, 1998, and died the following day. At the time of his suicide, Bateman was under the professional care of Rodman who had prescribed the acne drug Accutane which allegedly precipitated Bateman’s depression and suicidal ideation.

The complaint was filed on March 27, 2000, and availed itself of OCGA § 9-11-9.1 (b). Paragraph 15 of the complaint provided:

Plaintiff alleges that this Complaint insofar as it sets forth causes of action against Defendants RODMAN and GEORGIA DERMATOLOGY that sound in medical negligence is being filed within ten (10) days of the expiration of the statute of limitations, and as such an affidavit of a qualified expert could not be prepared for simultaneous filing with the Complaint. Pursuant to OCGA § 9-11-9.1, Plaintiff will file in this case an affidavit from a qualified expert within forty-five (45) days of the filing of this suit.

Within 45 days, Nesmith amended the pleadings and filed a supplemental complaint and the expert affidavit of Stephen Presser, M.D., a board-certified dermatologist. In her supplemental complaint, Nesmith added that “because of time constraints, the affidavit of an expert as required by OCGA § 9-11-9.1 (a) could not be prepared before the filing of Plaintiff’s Complaint.”

But before Nesmith filed the expert’s affidavit and the supplemental complaint, Georgia Dermatology and Rodman filed answers and motions to dismiss. Their motions to dismiss were premised upon “Plaintiff’s failure to comply with the Affidavit/Pleading requirements set forth [at] OCGA § 9-11-9.1.”

At the hearing on the defendants’ motions, counsel for Nesmith filed an affidavit in which he testified that “[a]s an officer of this Court I state without reservation that the allegations set forth in Paragraph 15 of the Plaintiff’s Complaint are true and correct.” In refusing to dismiss the complaint, the trial court noted that it “accepts Plaintiff’s assertions about the affidavit as true and declines to allow any further inquiry of Plaintiff’s attorneys on the subject.”

In three interrelated enumerations of error, Georgia Dermatology and Rodman contend that they have a right to attack the veracity of Paragraph 15 of the complaint. They claim that they have evidence to prove that Nesmith sought legal counsel well before the statute of limitation ran and that the statement that the expert affidavit could not be filed contemporaneously with the complaint is incorrect. In the alternative, they contend that having raised a “good faith issue in this regard,” they should be permitted to conduct limited and relevant discovery to determine the correctness of the pleading in Paragraph 15.

OCGA § 9-11-9.1 (b) provides in pertinent part:

The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.

Thus, implicitly recognizing the burden of obtaining an expert affidavit, the legislature authorized an additional 45 days to file that affidavit when these criteria are met. In easing the contemporaneous filing requirement set forth in OCGA § 9-11-9.1 (a), subsection (b)

gives a plaintiff an automatic right to file such a supporting affidavit within forty-five days of filing the complaint when two requirements are met: (1) when the limitation period will expire within ten days of the date of filing the complaint; and (2) when the plaintiff alleges that because of the time constraints an expert affidavit could not be prepared. The second requirement must be alleged in the complaint. “This is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicability of the grace period.”

Cabey v. DeKalb Med. Center.

Here, it is undisputed that the original complaint was filed within ten days of the expiration of the applicable statute of limitation as set forth in OCGA § 9-3-71 (a), and the complaint was supplemented to allege that because of time constraints the required affidavit could not be prepared. Compare Cabey, supra at 314. Thus, the complaint as amended comports with the statutory procedural requirements and so automatically triggered the extended filing period. See Peterson v. Columbus Med. Center Foundation.

Notwithstanding Nesmith’s full compliance with the statutory procedural requirements, Georgia Dermatology and Rodman contend that they should be able to ascertain whether Nesmith was truly unable to procure the expert affidavit and to have filed it contemporaneously with the original complaint. As purported legal authority for their proposition that they should be able to attack the veracity of Paragraph 15, Georgia Dermatology and Rodman cite four cases. Two of the four cases are devoid of precedential value, and the remaining cases offer no support for their argument. Works v. Aupont (physical precedent only under Court of Appeals Rule 33 (a)) has no precedential value, and the only pertinent portion of Vester v. Mug A Bug Pest Control, rev’d in part, Mug A Bug Pest Control v. Vester, was later vacated. The other two cases, Glisson v. Hosp. Auth. of Valdosta &c. and Keefe v. Northside Hosp., do not address the issue of discovery relating to the statutory pleading requirements imposed upon a plaintiff.

In Glisson, the plaintiff failed to specifically plead in the original complaint that because of time constraints an affidavit could not be prepared and filed at the time the original complaint was filed. But the plaintiff later properly amended the complaint under OCGA § 9-11-15 to include the language required by OCGA § 9-11-9.1 (b). Glis-son, supra at 654-655. In deciding that the complaint could be amended, we found that the provisions of OCGA § 9-11-9.1 “are intended to be procedural.” (Emphasis in original.) Id. at 654. We held that “[t]he statute does not prohibit other amendments of the body of the pleadings in the complaint and, therefore, should be liberally construed in pari materia with OCGA § 9-11-15 with regard to any other amendments to the pleadings. [Cits.]” (Emphasis in original.) Glisson, supra at 654 (1).

Keefe v. Northside Hosp., upon which Georgia Dermatology and Rodman also rely, is readily distinguishable. In Keefe, no effort was made to amend the complaint to add the allegation that because of time constraints an expert affidavit could not be prepared as required by OCGA § 9-11-9.1 (b), resulting in a complaint that was procedurally defective. See Sullivan v. Fredericks.

In essence, Georgia Dermatology and Rodman ask this Court to usurp the legislature’s prerogative and to rewrite the statutory pleading rules in subsection (b) of OCGA § 9-11-9.1 to impose two additional requirements: that a plaintiff must demonstrate that she acted in “good faith” to avail herself of the automatic extension and that a plaintiff must show that the inability to contemporaneously file an expert affidavit was not unjustifiable. But to engraft these additional requirements onto the statute and to permit “limited discovery” would needlessly muddle litigation and would likely engender problems with the attorney/client privilege and the attorney/ work product doctrine. Permitting such “limited discovery” would inevitably trigger an additional layer of needless motion practice by encouraging motions to compel and for protective orders. The ensuing morass would result in unnecessary litigation and thereby contravene the legislative purpose of OCGA § 9-11-9.1 of curtailing frivolous and unwarranted litigation. See 0-1 Doctors Mem. Holding Co. v. Moore Accordingly, we also find when OCGA § 9-11-9.1 (b) applies, neither plaintiffs nor their counsel in such actions need to file an additional affidavit to aver, as here, that an expert affidavit could not be prepared for contemporaneous filing with the original complaint.

Decided March 6, 2002

Cobb, Grabbe, Spillers & Irwin, R. Chris Irwin, Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Terrell W. Benton III, Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, for appellants.

Adams & Jordan, Virgil L. Adams, Donald J. Jordan, for appel-lees.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Cabey v. DeKalb Med. Center, 252 Ga. App. 313, 314 (1) (555 SE2d 742) (2001).

        Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 751 (1) (a) (533 SE2d 749) (2000).

        Works v. Aupont, 219 Ga. App. 577 (465 SE2d 717) (1995).

        Vester v. Mug A Bug Pest Control, 231 Ga. App. 644, 647 (2) (500 SE2d 406) (1998).

        Mug A Bug Pest Control v. Vester, 270 Ga. 407, 409 (509 SE2d 925) (1999). Division 2 of the original opinion was vacated in its entirety in Vester v. Mug A Bug Pest Control, 236 Ga. App. 554 (512 SE2d 681) (1999).

        Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649, 652 (481 SE2d 612) (1997).

        Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996).

        Sullivan v. Fredericks, 251 Ga. App. 790, 791 (554 SE2d 809) (2001).

        0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989).


author: Mikell, Judge.

text:
    A02A0079.
    HARRIS v. THE STATE.
    (561 SE2d 467)
   Mikell, Judge.

After a jury trial, Mark O’Neal Harris was convicted of two violations of the Georgia Controlled Substances Act, selling cocaine and possessing cocaine with intent to distribute. On appeal, he challenges the sufficiency of the evidence as to each conviction. We affirm.

As recognized in cases such as Shabazz v. State, on appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case.

Decided March 6, 2002.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

Viewed in the light most favorable to the verdict, the evidence shows that Investigator Cleo Atwater of the Gwinnett County Drug Task Force was working as an undercover officer on March 11, 1999. That evening, Atwater met Timothy Brazelle, another defendant, who led him to a hotel room, where he met defendant Angela Adgers. Atwater later met Harris when he came to the hotel room after Adgers called him. Atwater told Harris he wanted to buy five $10 rocks of crack cocaine. In response, Harris produced three $20 rocks of cocaine, which Atwater purchased. The rocks of cocaine were introduced into evidence.

Atwater told Adgers and Brazelle that he wanted to purchase more crack cocaine but needed to go downstairs first. Atwater met another officer downstairs, and they returned to the hotel room and arrested Adgers, Brazelle, and Harris. When conducting a pat-down of Harris, Atwater discovered 23 grams of crack cocaine on Harris’s person. The additional cocaine was also introduced into evidence.

On appeal, Harris argues that the evidence was insufficient because there was no testimony offered to corroborate Atwater’s version of the events. Harris’s argument fails as it is a well-established rule that “[t]he testimony of a single witness is generally sufficient to establish a fact.” Furthermore, “[s]o long as there is some competent evidence to support each element of the offenses as charged, the jury’s verdict will be upheld.” The state introduced the three rocks of cocaine to prove the sale and the additional twenty-three grams to prove the possession with intent to distribute charge. Thus, we find the evidence sufficient to support Harris’s conviction of both crimes.

Judgment affirmed.

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

       OCGA § 16-13-30 (b).

       229 Ga. App. 465 (1) (494 SE2d 257) (1997).

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

        Brown v. State, 237 Ga. App. 761, 762 (516 SE2d 810) (1999).

       Adgers and Brazelle were not tried with Harris.

       OCGA § 24-4-8; Walker v. State, 251 Ga. App. 479, 482 (1) (553 SE2d 634) (2001). The exceptions to the rule are not applicable here.

       (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) (548 SE2d 78) (2001).

       See Hamrick v. State, 197 Ga. App. 89, 92 (5) (397 SE2d 503) (1990).


text:
    A02A0248.
    PILKENTON v. THE STATE.
    (561 SE2d 462)
   Ellington, Judge.

Cynthia Pilkenton appeals from her conviction in the State Court of Spalding County of driving under the influence of alcohol while having a blood alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5). Because the trial court erred in denying Pilkenton’s motion to suppress, we reverse.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and the court’s findings on disputed facts and witness credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997). But “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).

The trial court denied Pilkenton’s motion to suppress the results of a blood test based on the following undisputed facts: on August 17, 2000, the arresting officer responded to a two-car accident and found both drivers were injured. The driver of the other car had “visible bleeding” and was treated by paramedics and taken to the hospital by ambulance. Pilkenton complained of pain in her wrist. The officer read Pilkenton her implied consent rights and advised her that because of the serious injuries from the accident she was required to submit to a blood test. The officer drove Pilkenton to a hospital where she submitted to having blood drawn. Pilkenton received one stitch to her thumb and was treated for a sprained ankle; she received no treatment for any wrist injury.

1. Pilkenton contends the trial court erred in denying her motion to suppress because the officer misled her with regard to her implied consent rights by telling her she was required to submit to a blood test because of the severity of the accident. At trial the officer testified, “The State classifies any visible bleeding or broken bones as a serious injury.”

The implied consent law presumes consent to a blood, breath, or urine test by any driver “involved in any traffic accident resulting in serious injuries or fatalities.” OCGA § 40-5-55 (a). The statute defines a “traffic accident resulting in serious injuries or fatalities” as “any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe bums, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.” OCGA § 40-5-55 (c). Based on the record developed at trial, there was no evidence any person “suffered a fractured bone,” although the officer believed Pilkenton’s wrist might be broken based on her complaints of pain. Nor was there evidence supporting a finding that Pilkenton or the other driver suffered “disfigurement.” Miller v. State, 219 Ga. App. 496 (466 SE2d 67) (1995) (a dislocated shoulder is not disfigurement). We have defined “disfigurement” as “that which impairs or injures the appearance of a person,” even if only temporarily. (Punctuation omitted.) Lewis v. State, 215 Ga. App. 796, 797 (452 SE2d 228) (1994). In this case, the officer, who provided the only evidence of the drivers’ appearance, testified that Pilkenton complained of pain and that the other driver was bleeding. There was no evidence, for example, that Pilkenton’s wrist was deformed or significantly swollen or discolored, nor that the other driver’s bleeding resulted from a disfiguring laceration. Cf. id. at 796 (accident resulted in disfigurement where the passenger’s leg appeared broken and “deformed,” where “the top side of the leg was turned completely to the outside while the inside part of the leg was still straight, straight up, the way it would normally be,” and there was a 12-inch knot across the thigh, and where one of the driver’s ankles was swollen to “about the size of a softball”) (punctuation omitted).

Because there is insufficient evidence that [Pilkenton or the other driver] suffered a serious injury so as to invoke implied consent to the tests under OCGA § 40-5-55 (a), the trial court erred in failing to suppress the test results. Accordingly, the blood . . . test results constituting the only evidence at trial which would support a verdict of guilty of the offense charged, [Pilkenton’s] conviction must be reversed.

Miller v. State, 219 Ga. App. at 497. See State v. Leviner, 213 Ga. App. 99, 102 (3) (c) (443 SE2d 688) (1994) (where information given to a defendant contains substantial misleading, inaccurate, or extraneous information such that the defendant was confused as to her implied consent statutory privileges, the results of any test obtained pursuant to the implied consent statute must be excluded).

2. In light of our holding in Division 1, Pilkenton’s remaining enumeration of error is moot.

Judgment reversed.

Smith, P. J, and Eldridge, J., concur.

Decided March 6, 2002.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Griffin E. Howell III, Solicitor-General, for appellee.

       The incident occurred on August 17, 2000, before the legal limit was reduced to 0.08 grains. See Ga. L. 2001, p. 208, § 1-5.