text:
    A00A1056.
    CITY OF ATLANTA v. ARNOLD.
    (542 SE2d 181)
   Ruffin, Judge.

The City of Atlanta appeals a judgment affirming an award of workers’ compensation benefits to Neal Arnold, a former police officer who voluntarily retired on disability. The City contends that it was entitled to credit for amounts it paid into an employer-funded disability retirement plan. The City further asserts that voluntary retirement, without more, does not prove the occurrence of a change in condition. After review, we agree only with the City’s latter contention. We therefore affirm in part and reverse in part.

While on duty and operating a motorcycle, Arnold sustained injuries in an accident on October 25, 1995, and received workers’ compensation benefits. About six months later, in April 1996, Arnold’s authorized treating physician released him to light duty work, and Arnold returned to work at the police department. Initially, Arnold was assigned to a day shift position involving limited administrative duties. Later, Arnold was reassigned to an office position for the evening shift. His job duties included checking reports, manning the radio room at the beginning of the shift, and distributing reports and walkie-talkie batteries to fellow police officers. At times, his responsibilities entailed some walking when he needed to inventory police vehicles or to retrieve files from a back room.

In November 1996, while still working the day shift, Arnold applied to the City for disability retirement. On July 15, 1997, the City approved Arnold’s pension application. Three days later, Arnold quit working for the police department altogether. Arnold testified that it was his preference to go out on disability pension rather than to work any kind of light duty position for the City. Under the disability pension plan, Arnold received his full salary until February 7, 1998, at which time he sought the resumption of workers’ compensation temporary total disability benefits.

On May 1, 1998, Arnold filed a request for a hearing on the issue of income benefits. The City then sought to obtain credit for the amount it had paid toward Arnold’s disability retirement benefits. At the hearing, the City and Arnold stipulated that under the City’s disability pension plan under which Arnold obtained coverage, an employee could qualify for a disability pension despite the availability of a light duty position at the time of the approval of the employee’s pension application. The record confirms that Arnold never sought a different position within the police department or a transfer.

The administrative law judge (“ALJ”) concluded that Arnold was entitled to a resumption of workers’ compensation income benefits from February 8, 1998, and continuing. The ALJ expressly determined: “I find that because the employee voluntarily quit his job with the employer following the approval of his retirement pension based on his disability, that availability or suitability of the employer’s light duty job at that time need not be considered.” The ALJ denied the City’s request for reimbursement. The award was subsequently affirmed by the appellate division of the State Board of Workers’ Compensation and by the superior court. The City filed this appeal.

1. The City asserts that the superior court erred in concluding that it could not take credit under OCGA § 34-9-243 (b) for benefits paid under the employer-funded disability retirement pension plan. The Supreme Court of Georgia, however, recently decided this exact issue adversely to the City. The Supreme Court held that while OCGA § 34-9-243 (b) allows credit for a disability plan, it does not allow credit for a disability retirement plan. The Court determined that OCGA § 34-9-243 (b) was not meant to allow credit for retirement benefits, regardless of whether they are paid in the ordinary course of retirement, or for early retirement brought about by disability. Therefore, the City was not entitled to any credit.

2. The City contends that the superior court erred in affirming an award recommencing workers’ compensation income benefits after Arnold voluntarily retired.

In all claims for compensation under the State Workers’ Compensation Act, “the employee must carry the burden of proof and show that he sustained a disabling injury arising out of and in the course of employment entitling him to compensation.” When an injured worker seeks the resumption of benefits, that worker must prove that he has undergone a change in condition. When the record contains some evidence to support a finding that a claimant has undergone a change in condition, that finding will not be disturbed on appellate review.

A change in condition means “solely an economic change in condition occasioned by the employee’s inability to work or to continue to work for the same or any other employer, which inability is proximately caused by the accidental injury.” In Maloney v. Gordon County Farms, the Supreme Court instructed that

[i]n order to receive workers’ compensation benefits based on a change in condition, a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury, continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure employment following termination.

The City argues that the record lacks evidence that Arnold satisfied the first and third requirements set forth in Maloney. The City contends that Arnold did not prove that any loss in his earning capacity was the result of his work-related injury and not the result of his decision to retire. Further, the City asserts that the record is devoid of any evidence to establish that, after termination, Arnold made a diligent but unsuccessful effort to secure employment.

In affirming the award of benefits, the State Board apparently concluded that when an employee retires because of a work injury, that employee is automatically entitled to a resumption of income benefits even if, at the time of retirement, the employee is capable of earning his full wage. Arnold has not offered and we have not found any legal support for this proposition. Thomaston Mills, Inc. v. Kierbow, upon which Arnold relies, is factually and legally distinguishable. In Kierbow, this Court noted that the statutory framework does not require that “payment of weekly wage benefits be terminated upon retirement from the work force.” Although the law does not preclude the receipt of weekly wage benefits after retirement, that does not negate a claimant’s burden of proving a change in condition within the meaning of Maloney and its progeny. While Arnold’s decision to retire from the police force may well have been based upon his injury, the fact remains that Arnold was earning his regular full wage at the time he elected to retire.

Decided November 13, 2000.

Susan P. Langford, Bruce P. Johnson, for appellant.

Todd K. Maziar, for appellee.

In Wal-Mart Stores v. Harris, this Court found that an injured worker who rejected her employer’s offer for light duty work at her pre-injury wage and instead chose to accept lower paying work elsewhere was not entitled to workers’ compensation income benefits. Absent a diminution of earning capacity caused by the work-related injury, an employer is not liable for a wage loss. We see no reason why Arnold’s situation should be treated in a different manner.

It is undisputed that Arnold was capable of performing light duty work, that the police department offered him such work at his pre-injury wage, and that the City never withdrew that offer. In fact, Arnold was actually employed in such work at the time he opted to retire. Because the record does not contain evidence to support each of the three requirements needed to establish a change in condition as promulgated in Maloney, Arnold was not entitled to the resumption of workers’ compensation income benefits. Therefore, we find that the superior court erred in affirming the State Board’s determination that Arnold was entitled to income benefits.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

       As one physician noted, “[h]e is, of course, capable of desk work and limited physical activities but would be unable to participate in a full and unrestricted level of police activity.”

       In October 1998, Arnold began working part-time for a different employer. For that reason, he was awarded temporary total disability benefits in the amount of $275 per week from February 8,1998, through October 1, 1998, but temporary partial disability benefits in the amount of $192.50 from October 2, 1998, and continuing.

        City of Way cross v. Holmes, 272 Ga. 488, 489 (532 SE2d 90) (2000).

       Id.

       Id.

        Dasher v. City of Valdosta, 217 Ga. App. 351, 352 (1) (457 SE2d 259) (1995).

        Maloney v. Gordon County Farms, 265 Ga. 825, 826 (462 SE2d 606) (1995).

       Waycross Molded Products v. McKelvin, 234 Ga. App. 46, 47 (1) (505 SE2d 826) (1998).

       (Punctuation omitted.) Maloney, supra at 826-827.

       (Emphasis supplied.) Id. at 828.

       The award granted income benefits to Arnold as of February 8,1998, despite Arnold’s admission that he did not start looking for work until March 1998.

       185 Ga. App. 57 (363 SE2d 276) (1987).

       Id. at 59; see Brannon v. Ga. Bureau of Investigation, 146 Ga. App. 524, 525 (246 SE2d 511) (1978) (although pension benefits may be subject to deduction of workers’ compensation payments where so agreed by contract, receipt of a pension does not automatically foreclose the receipt of income benefits under the Act).

       234 Ga. App. 401, 402 (506 SE2d 908) (1998).

       See id.

       At the hearing, no evidence was offered to show that Arnold ever notified his immediate supervisor, Sergeant Robert G. Adams, or anyone else that the position provided to him by the police department was inconsistent with his light duty limitations.

       See Burkhart v. Argonaut Ins. Co., 239 Ga. 608 (238 SE2d 400) (1977) (change in condition in economic status of employee that is occasioned by inability to work must be proximately caused by the accidental injury).

       See Waycross Molded Products, supra at 48.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A1141.
    CRIDER v. THE STATE.
    (542 SE2d 163)
   Blackburn, Presiding Judge.

Jeffrey A. Crider was convicted by a Muscogee County jury of aggravated assault and aggravated sodomy. The trial court sentenced him to 20 years to serve on each count, to run consecutively. Crider appeals the order denying him a new trial. Crider contends that the trial court erred in (1) admitting child hearsay testimony, (2) failing to charge the jury on simple battery, and (3) inaccurately charging the jury on the law of aggravated assault. He also claims ineffective assistance of counsel. For reasons that follow, we affirm Crider’s convictions.

Viewing the evidence in the light most favorable to the verdict, Crider was drinking early in the morning of March 1, 1998, and began arguing with his girlfriend. Crider became violent, and he hit her with his fists and choked her. He then dragged her by the hair to the bedroom and put his penis in her mouth. A neighbor called the police, and they arrived to find the victim badly bruised, bloody, and with a swollen face. The doctor who treated the victim testified that her injuries were consistent with repeated blows from a fist or open hand. She had a lacerated lip, marks on her neck consistent with choking, and a possibly broken facial bone. She was treated at the hospital and released without stitches.

Crider ran out the back door when the police first arrived, but was in his apartment when the police returned to question him. Crider refused to answer the door, so the police got a warrant, entered the apartment through an unlocked window, and found him hiding in a closet with a bottle of liquor. Crider struggled with the police and claimed that they gave him a black eye. The police took him to the hospital. At the hospital, Crider informed the staff that he had “beat his girlfriend’s ass and that every woman needed a good ass whipping every once in a while.”

1. At trial the State called Officer McMinnaman, with the Opelika, Alabama, Police Department, to give similar transaction evidence of sexual abuse by Crider. Officer McMinnaman testified that on August 22, 1992, he responded to a report made by M. C., Crider’s I 12-year-old daughter. She told Officer McMinnaman that Crider entered her bedroom nude, fondled her breasts and vagina, and inserted a finger in her vagina. She kept pulling his hand away, but Crider asked her, “Are you going to be like your, mother and make me fight you?”

Although Crider does not appeal the admissibility of the prior act as a similar transaction in general, he does argue that McMinnaman’s testimony was inadmissible hearsay. The State claims his testimony was admissible under OCGA § 24-3-16, the Georgia Child Hearsay Statute, which allows certain statements made by children under 14 to be admitted into evidence through the testimony of the person to whom the statement was made. The statement must describe sexual contact or physical abuse, the child must be available to testify, and the trial court must find that the circumstances under which the statement was made provide sufficient indicia of reliability. The prosecutor stated M. C. was available to testify, and there is nothing in the record to contradict this. The trial court did not make an express finding with respect to the reliability of the statement. A finding of reliability, however, is not a condition precedent to the admissibility of the statement. The question is whether, after both parties have rested, the record contains evidence which would support a finding of reliability. Gregg v. State.

The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same[,] and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Gregg, supra at 240 (3) (b).

McMinnaman testified that M. C. left her residence and reported the molestation immediately after it occurred and that he spoke with her the same evening. The officer saw no evidence that M. C. was coached, and he did not lead her in making her statement. Applying the factors enumerated in Gregg, we find there was sufficient evidence of reliability of M. C.’s statement to satisfy the requirements of OCGA § 24-3-16. Accordingly, McMinnaman’s testimony regarding M. C.’s statement was not inadmissible hearsay.

2. Crider argues that the trial court erred in failing to charge the jury on the lesser included offense of simple battery. Counsel asked the court to charge the jury on simple battery, but failed to make the request in writing. Our Supreme Court has established that it is not error for a trial court to fail to charge a lesser included offense if not requested in writing. State v. Stonaker. Accordingly, the trial court did not err in refusing to charge the jury on simple battery.

3. Crider reserved objection on the jury charges and argued in his motion for new trial that the trial court erred in inaccurately charging the jury as to aggravated assault. After reading Count 2 of the indictment, which charged Crider with aggravated assault, the trial court then charged the jury as to aggravated assault. When doing so, the trial court charged inter alia:

Aggravated 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 violent injury. A person commits the offense of aggravated assault when that person assaults another person with any object which when used offensively against a person is likely to result in serious bodily injury. 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 on another person coupled with the apparent ability to commit the injury or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.

See record, vol. 2, p. 124; record, vol. 3, p. 9. This charge, when considered as a whole, adequately states the law of aggravated assault under OCGA § 16-5-21, applicable under the facts of this case.

As is herein relevant, the offense of aggravated assault requires that an assault, as defined in OCGA § 16-5-20, was committed on the victim and that such assault was aggravated by either (a) an intention to murder, to rape, or to rob, or (b) involved the use of a deadly weapon or any object, device, or instrument which, when used offensively against a person is likely to or actually does result in serious bodily injury. See OCGA § 16-5-21 (a); King v. State; Harrison v. State.

In this case, the indictment charged Crider under OCGA § 16-5-21 (a) (2), serious bodily injury resulting from the use of Crider’s hands, to choke the victim. Under such indictment, the State is not required to also indict the defendant under OCGA § 16-5-21 (a) (1) or to prove that the defendant intended to murder, to rape, or to rob the victim, even though the facts of the case might well have supported such a contention.

The use of hands to choke a victim satisfies the deadly weapon or dangerous object element of the aggravated assault statute. See Richards v. State. In an indictment alleging that a defendant assaulted the victim “by kicking her in the head and shoulder area and by striking her with his hands and feet,” it was unnecessary to further allege that defendant used his hands and feet as deadly weapons or that there was an intent to injure. See Gafford v. State. An indictment charging that defendant’s fists were likely to result in serious bodily injury was sufficient, and no reference to deadly weapons was required. See Jay v. State. The trial court did not err as contended by Crider in this Division.

4. Crider maintains that he received ineffective assistance of counsel.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.]” Warren v. State.

The burden was on [Crider] to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. A strong presumption exists that representation has been effective, and trial strategy and tactics do not establish ineffective assistance. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

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

(a) Officer McMinnaman testified that he believed M. C. was being truthful when she told him that Crider abused her. Crider argues that defense counsel rendered ineffective assistance by not objecting to this testimony. It is well settled that the credibility of a witness cannot be bolstered by the opinion of another. See Lagaña v. State. Although OCGA § 24-3-16 allows a child’s statement to be introduced through the testimony of another, it does not open the door for opinion testimony regarding the child’s truthfulness. See Roberson v. State. McMinnaman’s opinion testimony here was improper. Assuming, without deciding, that counsel’s failure to object amounted to ineffective assistance of counsel, the failure to object would nevertheless not warrant a reversal. M. C.’s statement was introduced to establish a similar transaction, and not the crime for which Crider was being tried. Furthermore, the prosecution introduced independent evidence of Crider’s sexual abuse of M. C. through the introduction of his conviction in connection with the incident. The prosecution also elicited testimony from McMinnaman regarding the circumstances surrounding M. C.’s statement that provided a context, apart from his opinion testimony, that would help the jury make an informed judgment regarding the truthfulness of M. C.’s statement. See, e.g., Stamey v. State (physical precedent only). There is no reasonable likelihood that the results would have differed absent the improper testimony, and the trial court did not err as alleged.

Decided November 13, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Eddie B. Bassett, Robert B. Bicker staff II, Assistant District Attorneys, for appellee.

(b) Crider argues that his counsel was ineffective because counsel failed to object to the admissibility of Crider’s statements that he beat the victim, and because counsel failed to request a jury charge regarding the voluntariness of Crider’s statements. Before Crider’s statements were introduced, the court held a Jackson-Denno hearing. Evidence showed that Crider was read his Miranda warnings twice before making the statements which he sought to suppress. In any event, his statements were made to hospital personnel, in response to their inquiry, and not in response to police questioning. Crider’s statements were admissible.

Counsel’s decision not to request a jury charge regarding the voluntariness of Crider’s statement can be characterized as a matter of trial strategy. Counsel may have chosen not to focus the jury’s attention upon Crider’s inculpatory comments.

Crider’s convictions are affirmed.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991).

        State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976).

        King v. State, 178 Ga. App. 343 (343 SE2d 401) (1986).

        Harrison v. State, 60 Ga. App. 610 (1) (4 SE2d 602) (1939).

        Richards v. State, 222 Ga. App. 853 (476 SE2d 598) (1996).

        Gafford v. State, 240 Ga. App. 251 (523 SE2d 336) (1999).

        Jay v. State, 232 Ga. App. 661 (503 SE2d 563) (1998).

        Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

        Straite v. State, 238 Ga. App. 420, 424 (4) (518 SE2d 914) (1999).

        Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995).

        Roberson v. State, 241 Ga. App. 226 (526 SE2d 428) (1999).

        Stamey v. State, 194 Ga. App. 305, 306 (1) (a) (390 SE2d 409) (1990).


author: Ruffin, Judge.

text:
    A00A1178.
    McCALL v. McCALL.
    (542 SE2d 168)
   Ruffin, Judge.

We granted Deborah McCall’s application for discretionary appeal to determine whether the trial court exceeded its authority by entering an order within the context of a contempt proceeding which had the effect of modifying custody. We find that it did and reverse.

Deborah McCall and Nathan McCall divorced in 1989. Under the terms of the final judgment and decree, Deborah McCall obtained sole custody of the couple’s two minor children, and Nathan McCall, as the noncustodial parent, had visitation rights on alternate weekends. After Nathan McCall relocated to the Washington, D.C., area and obtained a lucrative book contract, Deborah McCall filed a complaint for modification of child support. In December 1992, a jury found in her favor. Nathan McCall was thereafter ordered to make increased monthly child support payments and to provide health insurance. Nathan McCall was granted summer visitation rights for six weeks conditioned on providing two weeks prior written notice.

Nathan McCall remained in the Washington, D.C., area for nearly ten years until late August or early September 1998, when he relocated to Atlanta. Shortly after his arrival, he began picking up the children directly from school on alternate Fridays and spending weekends with them. Despite having access to and visitation with the children, in October 1998, Nathan McCall applied for a contempt citation against his ex-wife for purportedly violating court orders. McCall alleged that his former spouse had wilfully refused to cooperate in the scheduling and exercise of visitation periods, had failed and refused to facilitate his receipt of information about the children’s school work, and had refused to cooperate in ensuring reasonable phone access with the children. He also complained that she had thwarted efforts to refinance the mortgage on the former marital residence.

After a hearing on Nathan McCall’s contempt petition, the trial court found “the mother in contempt of the visitation provisions and in contempt of the spirit of the March 23,1989 Judgment.” The court altered the original judgment to allow visitation by the father on alternate weekends from the “close of school on Friday until Sunday night at 5:00 p.m.” The court directed both parents to “allow the children reasonable access to the other party by telephone while the children are in that party’s care and control.” In addition, the court authorized direct access by Nathan McCall to schools, health care providers, tutors, or therapists to obtain any information, reports, or records that he desired. The court ordered:

The father shall have equal right to visit with the children at their school, doctor’s office, therapist’s office or tutor’s office so long as such visits are not disruptive to the children’s visits or activities. The father shall have equal right to individually consult with the children’s teachers, doctors, therapists, tutors or coaches. The mother shall make no objection to these activities and shall execute whatever documents that are necessary to inform these institutions of the father’s right to receive such documentation and to release such documentation to him.

Additionally, the court granted to Nathan McCall the sole right to select a psychologist for the children ostensibly to improve the parent-child relationship.

1. Deborah McCall contends that the trial court abused its discretion by granting rights to a noncustodial parent that had not been conferred to him in the final divorce decree. She claims that the trial court lacked authority to modify the respective legal rights of the parents in an action seeking a contempt citation. We agree.

In a contempt proceeding, as here, the trial court has authority to interpret the meaning of a divorce decree. In such action, the trial court does not have authority to modify a final judgment and divorce decree. The trial court, however, can modify visitation rights. But the trial court cannot effect a change in custody under the guise of modifying visitation rights. Since a prior final custody award cannot be modified in a contempt action, if the order at issue here modified custody as opposed to merely changing visitation, then the trial court erred in entering that order.

By law, to obtain a change of custody, the noncustodial parent is required to file a new action for that specific purpose. According to the clear and unequivocal language of OCGA § 19-9-23 (a), a contempt proceeding and a change of custody proceeding must be instituted as two separate actions. Moreover, to prevail in a custody action, the noncustodial parent must show a change of condition materially affecting the welfare of the children and must prove that a modification of the original award would be in the children’s best interests and welfare. But here, no such action was ever filed. Nathan McCall sought merely to have his ex-wife cited for contempt. A separate and independent suit to modify custody was not instituted as required by OCGA § 19-9-23 (a).

2. Deborah McCall contends that the trial court exceeded its authority by extending to her former husband rights reserved to her as the sole legal custodian of the minor children. She claims that by granting new rights and entitlements to the noncustodial parent, the trial court effectively granted a change in custody equivalent to “joint legal custody.” Again, we agree.

“A parent who has been awarded custody pursuant to a divorce [action] has a prima facie right to retain such custody.” Without question, the 1989 judgment awarded custody of the two children to Deborah McCall only. By statutory definition, “sole custody” means “a person . . . awarded permanent custody of a child by a court order.” OCGA § 19-9-6 (4). As the person awarded permanent custody of the children under the final judgment in the divorce, Deborah McCall obtained authority to: “the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training.” Joint legal custody means that both parents have equal rights and responsibilities for major decisions concerning the children including education, health care, and religious training. Thus, “!j]oint legal custody allows both parents’ involvement in making major decisions concerning the child [ren].”

It is undisputed that under the 1989 final judgment, Nathan McCall obtained only visitation rights. But within the context of a proceeding for contempt, and notwithstanding the terms of the final judgment, the trial court not only altered visitation rights but also directed that Nathan McCall “shall have equal right to individually consult with the children’s teachers, doctors, therapists, tutors or coaches.” The trial court also gave him the right to select a counselor for their children. By granting rights equal to the sole legal custodian to consult with teachers, doctors, and other professionals, and by empowering the noncustodial parent to decide the need for a psychologist and to select that person, and by ordering that the custodial parent, Deborah McCall, “shall not object to these changes and shall execute all documents necessary to give effect to these [new] rights [of Nathan McCall],” the court transformed the final judgment rendered in the 1989 divorce into a hybrid custodial arrangement or a mutation of “joint legal custody.” In so doing, the trial court exceeded its authority. We, therefore, reverse all portions of the judgment except the revisions made to the visitation schedule.

Decided November 13, 2000.

Pilar J. Penn, for appellant.

Warner, Mayoue & Bates, Robert D. Boyd, for appellee.

3. In light of our holding, we need not address whether Deborah McCall’s due process rights were abrogated by undue interference with her legal and constitutional rights to parent the children without intrusion by the State.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       The precipitating event occurred on a Friday afternoon. When McCall came to pick up the children, they refused to leave with him because their mother was not at home and she did not know about the unexpected change of plans. Five days after this apparent mix-up, McCall filed a petition for contempt against his ex-wife.

       Although we have not been able to find any evidence that Deborah McCall violated any portion of the final judgment entered in the divorce including the modifications of December 1992, our decision hinges on a matter of legal error. See Gay v. Gay, 268 Ga. 106, 107 (1) (485 SE2d 187) (1997) (contempt order should contain sufficient facts to support a finding that the party is in contempt of court).

        Millner v. Millner, 260 Ga. 495, 497 (2) (397 SE2d 289) (1990).

        Harper v. Smith, 261 Ga. 286 (404 SE2d 120) (1991).

       OCGA § 19-9-1 (b); Blalock v. Blalock, 247 Ga. 548, 550 (2) (277 SE2d 655) (1981); Sampson v. Sampson, 240 Ga. 118, 119 (239 SE2d 519) (1977) (visitation rights may be altered in a contempt proceeding upon motion by either party or on motion by the trial court).

        Martin v. Buglioli, 185 Ga. App. 702, 703 (365 SE2d 866) (1988).

        Groover v. Simpson, 234 Ga. 714, 715 (217 SE2d 163) (1970); Hammontree v. Hammontree, 186 Ga. App. 819, 821 (368 SE2d 575) (1988).

       OCGA § 19-9-23 (a).

        Hammontree, supra, 186 Ga. App. 819.

        Johnson v. Hubert, 175 Ga. App. 169, 170 (1) (333 SE2d 21) (1985).

        Sanchez v. Pritchard, 247 Ga. 26 (273 SE2d 613) (1981) (“trial court had no authority in the contempt proceedings to modify and condition the terms of the original judgment”); see Everett v. Everett, 256 Ga. 632, 633 (2) (352 SE2d 370) (1987).

       See OCGA § 19-9-6 (2).

        Daniel v. Daniel, 235 Ga. App. 184 (1) (509 SE2d 117) (1998) (physical precedent only); see Ormandy v. Odom, 217 Ga. App. 780 (1) (459 SE2d 439) (1995).

       OCGA § 19-9-6 (4).

       OCGA § 19-9-6 (2).

        Scott v. Scott, 227 Ga. App. 346, 350 (2) (489 SE2d 117) (1997).

       OCGA § 19-9-6 (2).

        Sanchez, supra, 247 Ga. 26; Parker v. Parker, 242 Ga. 64, 66 (247 SE2d 862) (1978).

        Martin, supra, 185 Ga. App. 702.


author: Barnes, Judge.

text:
    A00A1427.
    VILLEDROUIN v. THE STATE.
    (542 SE2d 160)
   Barnes, Judge.

Sean Shari Villedrouin appeals her conviction of one count of forgery in the first degree (OCGA § 16-9-1) for forging her ex-husband’s name on a check made payable to CITGO Speedy Stop in the amount of $34.20. The check was drawn on a special custodial account for her benefit, but only her ex-husband was authorized to sign checks drawn on her account.

Villedrouin was sentenced to four years confinement to be served on probation, a fine of $1,000, plus $50 pursuant to OCGA § 15-21-73, plus $100 pursuant to OCGA § 15-21-90, plus $50 for the Crime Victims’ Assistance Program pursuant to OCGA § 15-21-130, plus restitution in the amount of $34.20, plus a monthly probation supervision fee in the amount of $23. The court allowed the fine and fees to be paid at $25 per week. Further, as a special condition of probation, the court also ordered Villedrouin to “submit to mental health and/or drug/alcohol evaluation and/or treatment as directed by the Probation Department” and “that the defendant request and authorize unlimited disclosure of treatment to the Probation Department and that periodic reports be made by Georgia Mental Health Services at any time upon request by the Probation Department.”

After her sentence was imposed, Villedrouin moved for reconsideration of her sentence to reduce or eliminate the fine, reduce the rate of payment, and waive the probation fee. She asserted that she had “limited employment potential and suffers from schizoaffective disorder and bipolar disorder” and she had no assets and no income, except for her “small monthly [Supplemental Security Income] check,” if that was reinstated after her incarceration. Additionally, she was obligated to pay her ex-husband $60 per week in child support. The trial court denied the motion.

Villedrouin then filed this appeal. She contends the trial court erred by denying her motion for a new trial because, under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence is insufficient to sustain her conviction. She further contends the trial court erred by failing to give her request to charge on jury deliberations. As we find that the evidence was not sufficient to prove that Villedrouin committed the type of forgery with which she was charged, we must reverse her conviction.

1. On appeal the evidence must be viewed in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence and neither weigh the evidence nor judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Viewed to support the verdict, the evidence showed that the Villedrouins were married in 1988, the year their daughter was born, and they were divorced in 1990. Mr. Villedrouin received custody of the daughter in the divorce, and Mrs. Villedrouin moved to Louisiana. Later, she returned to the family home in Georgia and resumed living with her former husband and daughter. Although the Villedrouins did not remarry, they lived as husband and wife and had twins in 1996.

In 1997, Mrs. Villedrouin was diagnosed as suffering from bipolar and schizoaffective disorder; she had poor reading skills, poor concentration levels, and could follow only simple instructions. As a result, she was found to be entitled to monthly SSI benefits of $329 from the Social Security Administration. Because of Mrs. Villedrouin’s mental problems and problems handling money, a special bank account was set up for the disability payments and her husband was made custodian of the account. The disability checks were made payable to him as custodian, the special account was in his name, and he was the only one authorized to sign on the account.

In September 1998, Mrs. Villedrouin took the family van, the three children, and two books of checks for her special account without telling her husband. Although the oldest child returned that night, Mrs. Villedrouin did not return with the twins for almost a week.

When Mr. Villedrouin learned that Mrs. Villedrouin had taken the checks, he called the police and also stopped payment on the missing checks. He also reported his ex-wife’s return to the police and told them that he believed his ex-wife had cashed one of the checks at a grocery store. The police learned that Mrs. Villedrouin also used one of the checks at a CITGO Speedy Stop.

The evidence was uncontroverted that Mrs. Villedrouin wrote the check in front of the CITGO clerk, signed her ex-husband’s name in front of the clerk, wrote her own name and address on the back of the check, and showed the clerk her own ID:

[Prosecutor:] Did you watch — Did she execute, write out the check in your presence?
[Clerk:] Yes. She wrote it on my presence.
[Prosecutor:] The whole check?
[Clerk:] Whole check.
[Prosecutor:] Did she — What is the name that she signed on that check?
[Clerk:] John Villedrouin.
[Prosecutor:] But she represented that the name — Did she represent that her name was Sean Shari Davidson? . . .
[Clerk:] I don’t recall personally, but there was ID behind the check.
[Prosecutor:] That was the ID that she presented to you, had the name Sean Shari —.
[Clerk:] Yes.

The clerk also testified that he wrote down the woman’s name, “Sean Shari Davidson,” her address, and the vehicle tag number on the check. Mrs. Villedrouin did not testify at the trial.

By statutory definition, forgery in the first degree can be committed in any of three ways by knowingly and with intent to defraud uttering a writing: (1) in a fictitious name; (2) in such a manner that the writing purports to have been made by another person, at another time, with different provisions; or (3) in such a manner that the writing purports to have been made by the authority of one who did not give such authority. OCGA § 16-9-1. See McBride v. State, 202 Ga. App. 556, 557 (415 SE2d 13) (1992).

Here, Mrs. Villedrouin was indicted for forgery in the first degree in that she, in Gwinnett County,

on the 13th day of September, 1998, did then and there unlawfully with intent to defraud, knowingly possess a certain writing,... in such a manner that the writing as made purports to have been made by another person, to wit: John Villedrouin and did deliver said writing, contrary to the laws of said State, the peace, good order and dignity thereof.

This indictment alleges a violation under the second form of forgery in the first degree because it asserts that the check was made by another person, John Villedrouin. The evidence set forth above, however, is uncontroverted that Mrs. Villedrouin wrote the check in front of the CITGO clerk, signed John Villedrouin’s name in front of the clerk, wrote her own name and address on the back of the check, and showed the clerk identification in her own name. The evidence further shows that she told the clerk that the check belonged to her husband and the check itself was introduced into evidence with Mrs. Villedrouin’s name and address on the back.

The essence of the second form of forgery in the first degree with which Mrs. Villedrouin was charged is that the “writing must purport to be the writing of another than the person making it.” (Punctuation omitted.) Pope v. State, 179 Ga. App. 739, 741 (347 SE2d 703) (1986). See Barron v. State, 12 Ga. App. 342, 343, hn. 7 (77 SE 214) (1913). The prosecution, however, presented no evidence whatsoever that the check “as made purports to have been made by another person, to wit: John Villedrouin. . . .” Under the actual evidence in this case, the State indicted Mrs. Villedrouin under the wrong form of forgery in the first degree. She should have been indicted under the third form, i.e., “the writing . . . purports to have been made by [the] authority of one who did not give such authority.” OCGA § 16-9-1 (a). And that was the form argued by the prosecutor at trial.

If the indictment sets out the offense as done in a particular way, the proof must show it, or there will be a variance. In this case, though other allegations against the defendant could have been charged in additional indictments, the only allegations actually set forth in the indictment stated that [she] uttered writings [purportedly made by another]. The proof did not correspond to these allegations. Consequently, the evidence was insufficient to support the convictions because a rational trier of fact could not have found beyond a reasonable doubt that the defendant was guilty of the crimes as charged in the indictment.

(Citation and punctuation omitted.) McBride v. State, 199 Ga. App. 527, 529 (1) (405 SE2d 345) (1991).

Accordingly, Mrs. Villedrouin’s conviction must be reversed because the evidence is insufficient to sustain her conviction within the meaning of Jackson v. Virginia, supra, 443 U. S. 307.

Decided November 13, 2000.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

2. As we have reversed Mrs. Villedrouin’s conviction, we need not consider her second enumeration of error asserting an error in the trial court’s refusal to give the charge she requested on jury deliberations. See, however, Havron v. State, 234 Ga. App. 413, 415 (3) (506 SE2d 421) (1998).

Judgment reversed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A1501.
    A00A2304.
    ANTHEM CASUALTY INSURANCE COMPANY v. MURRAY. ANTHEM CASUALTY INSURANCE COMPANY v. MURRAY et al.
    (542 SE2d 171)
   Ruffin, Judge.

Anthem Casualty Insurance Company asserts a subrogation lien against a $1.5 million jury verdict recovered by its insured, Barry Murray, against General Manufactured Housing, Inc. (“GMH”). Anthem sued both Murray and GMH for reimbursement of workers’ compensation benefits Anthem paid to Murray. The trial court granted summary judgment in favor of both defendants. Anthem appeals the grant of summary judgment in favor of Murray in Case No. A00A1501 and in favor of GMH in Case No. A00A2304. As both cases involve the same operative facts, we have consolidated them on appeal. We now affirm in part and reverse in part for reasons which follow.

The relevant facts are not in dispute. Murray was injured on July 21, 1994, when he fell through a skylight on the roof of GMH’s manufacturing plant during the course of his employment with Murray Plumbing Company. His employer’s workers’ compensation insurance carrier, Anthem, began paying him workers’ compensation benefits. Murray and his wife sued GMH for personal injuries and loss of consortium. Murray then entered into an agreement with Anthem under which he recognized that Anthem would have a subrogation lien pursuant to OCGA § 34-9-11.1 if he recovered from GMH, and he agreed not to settle his claims without Anthem’s approval. In return, Anthem agreed not to intervene in the lawsuit.

At trial, Murray and his wife sought $5 million in damages, including past and future medical expenses, lost wages, and pain and suffering. The jury returned a general verdict in favor of Murray for $1.5 million, plus interest. The trial court then gave the jury a special interrogatory form asking whether it had found any contributory negligence on the part of Murray and, if so, what percentage. The jury found that Murray was 20 percent negligent.

GMH satisfied the judgment against it. Neither GMH nor Murray paid any amount of the judgment to Anthem. Anthem sued Murray, seeking recovery of the $391,820 it had already paid him in workers’ compensation benefits, as well as any future benefits it might pay. Anthem also named GMH as a defendant, alleging that GMH was on notice of Anthem’s lien and was therefore obligated to reimburse Anthem. Anthem and Murray filed cross-motions for summary judgment. Murray argued that Anthem had no lien because he had not been fully and completely compensated, as required by OCGA § 34-9-11.1. GMH also moved for summary judgment. The trial court granted summary judgment to both defendants without opinion.

Case No. A00A1501

1. Under OCGA § 34-9-11.1 (a), an employee who is entitled to workers’ compensation benefits may bring an action for damages against a third-party tortfeasor. OCGA § 34-9-11.1 (b) provides that the employer — or its workers’ compensation insurer — “has a subrogation lien for any benefits paid the employee and may intervene in such an action to protect and enforce such a lien.” This lien is limited

to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

Thus, the insurer “cannot seek subrogation unless and until its insured has been completely compensated for his or her losses.” The insurer bears the burden of proving that the insured has been so compensated, and whether the insurer has carried that burden is a question for the trial court. The statute does not indicate how to determine whether the insured has been “fully and completely compensated.”

We have noted the difficulty of determining whether the employee has been fully and completely compensated when a general verdict form is used. If the jury awards more than the amount of proven economic losses, but less than the amount of total damages claimed, “reference to the general verdict alone is likely to be inadequate because of the impossibility of determining what portion of the award applied to economic losses and what portion applied to noneconomic losses.” As the lien is available only against recovery for economic losses, the insurer must show that the employee has been fully and completely compensated as to each category of noneconomic loss for which the insurer seeks subrogation and that no portion of the hen is taken against recovery for noneconomic losses. “It is the responsibility of the workers’ compensation provider to protect its interest by intervention and special verdict requests.”

Here, Anthem opted not to intervene in Murray’s lawsuit, and the jury was not asked to itemize its damages award. Moreover, Anthem’s counsel conceded in oral argument before the trial court that it was impossible to calculate how much of the jury award was intended as compensation for economic losses and how much for noneconomic losses. Ordinarily, under these circumstances, it would be extremely difficult for an insurer to prove that its insured received full and complete compensation within the meaning of the statute.

But in this case, Murray admitted in his briefs in this Court and in the trial court that the amount of the jury verdict plus 20 percent, or $1.875 million, would constitute “a full and complete recovery,” and he made a similar statement in a complaint in a separate action for declaratory judgment against Anthem. Although this admission is not a binding admission in judicio, as Anthem asserts, it is nonetheless some evidence of the amount needed to fully and completely compensate Murray. According to Anthem, the total of the benefits it has already paid to Murray plus Murray’s $1.5 million tort recovery now exceeds $1,875 million. Thus, Anthem contends that it is entitled to reimbursement for all workers’ compensation benefits it has paid already and will be obligated to pay in the future above $375,000 ($375,000 plus $1.5 million equals $1,875 million).

As noted, deciding whether the insurer has shown that the insured has been fully and completely compensated is a task for the trial court. By granting Murray’s motion for summary judgment on this issue and denying Anthem’s, the trial court essentially ruled that, as a matter of law, there was no evidence that Murray had been fully and completely compensated. But Murray’s admission constitutes evidence of the amount needed to fully and completely compensate him, as does the transcript of Murray’s trial against GMH, in which Murray sought $5 million in damages and which is a part of the record in this case. Thus, there was conflicting evidence as to whether Murray was fully and completely compensated. In light of this conflicting evidence, the trial court could not resolve the question via summary judgment, but was required instead to weigh this evidence and make a factual determination as to whether Anthem carried its burden. Accordingly, we reverse the trial court’s grant of Murray’s summary judgment motion, affirm the trial court’s denial of Anthem’s summary judgment motion, and remand for further proceedings consistent with this opinion.

Case No. A00A2304

2. In its motion for summary judgment, GMH argued, among other things, that it owed Anthem no duty of reimbursement. Anthem contends that GMH had actual notice of Anthem’s subrogation lien and was therefore obligated to pay the judgment to Anthem, rather than Murray. We agree with GMH.

The right of an employer or insurer to seek subrogation under OCGA § 34-9-11.1 is not absolute. Because that right “arises solely by operation of statute,” the insurer must follow the specific procedures set forth in the statute in order to protect its subrogation lien. The statute provides that an insurer “may intervene” in a lawsuit by the injured employee against a third-party tortfeasor to “protect and enforce” its subrogation lien against the tort recovery. If the injured employee does not sue the third-party tortfeasor within one year of the date of injury, then the insurer may “assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” In either case, the insurer’s right of action against a third party is derivative of the injured employee’s claim; the insurer “has no right to pursue its own independent action against the third partly].”

Anthem did not intervene in Murray’s lawsuit against GMH. Instead, Anthem voluntarily relinquished its right to participate in the action to protect and enforce its subrogation lien. Nothing in OCGA § 34-9-11.1 gives Anthem the right to now file an independent action against GMH for failing to pay the tort judgment to Anthem, rather than to Murray, the plaintiff.

Anthem relies upon Rowland v. Dept. of Administrative Svcs., but that case is distinguishable. In Rowland, the injured employee (Young) settled with the third-party tortfeasor (Rowland) without the knowledge of his employer (DOAS), who had been paying him workers’ compensation benefits. DOAS then brought suit against Rowland, asserting its subrogation rights under OCGA § 34-9-11.1. Rowland, who was unaware that DOAS had been paying workers’ compensation benefits and had a subrogation lien, “contended that her settlement with Young extinguished any subrogation lien against her.” We agreed, reasoning that DOAS was statutorily authorized to sue Rowland only on claims that Young had against Rowland and that Young’s settlement with Rowland had erased those claims. We noted in dicta, however, that DOAS’s subrogation lien remained viable and that the result would be different “[h]ad Rowland settled with Young despite having knowledge of the workers’ compensation claim and DOAS’s right of subrogation.”

Decided November 13, 2000

Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, for appellant.

Gibson & Spivey, Douglas L. Gibson, Hawkins & Parnell, Blanche R. Miller, Swift, Currie, McGhee & Hiers, Joan P. Shaker, Kopp & Conner, Neal L. Conner, Jr., for appellees.

In this case, Murray did not settle his claims without Anthem’s knowledge, thereby extinguishing Anthem’s cause of action against GMH. Rather, Anthem chose not to assert its claim against GMH in the manner prescribed by the statute — by intervening in the tort action to protect its rights. Accordingly, Rowland does not apply here. Moreover, while GMH may have known before it paid Murray that Anthem asserted a subrogation lien on Murray’s recovery, we cannot conclude that GMH knew that Anthem’s asserted lien was, in fact, viable and enforceable. As discussed in Division 1, the viability of that lien remains undetermined. It would be unjust to charge GMH with knowledge “of the existence of a potential claim so uncertain under the law.”

As GMH owed no duty to Anthem, the trial court correctly granted summary judgment in favor of GMH.

Judgment affirmed in part, reversed in part, and remanded.

Andrews, P. J., and Ellington, J., concur.

       See Gen. Manufactured Housing v. Murray, 233 Ga. App. 382 (504 SE2d 220) (1998).

       The jury also awarded $100,000 to Murray’s wife on her loss of consortium claim.

        Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 334 (494 SE2d 29) (1997).

         (Emphasis supplied.) OCGA § 34-9-11.1 (b).

        Ray, supra at 335.

        Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 340-341 (2), (3) (535 SE2d 511) (2000).

        Ray, supra.

       See North Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (513 SE2d 251) (1999); Hammond v. Lee, 244 Ga. App. 865 (536 SE2d 231) (2000).

        North Bros., supra at 841.

       Parties may “make admissions in judicio in their pleadings, motions, and briefs.” (Citations and punctuation omitted.) Froelich v. State, 210 Ga. App. 647, 648, n. 1 (437 SE2d 358) (1993). Such admissions are binding and estop the party who made them from introducing any evidence to controvert them. Id. This rule applies, however, only to admissions of fact, not to opinions or conclusions of law or fact. See Howell Mill/Collier Assoc. v.

        Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990). As the question of whether an insured has been fully and completely compensated within the meaning of OCGA § 34-9-11.1 is a mixed question of law and fact, Murray’s statement does not have the effect of a judicial admission.

       See Liberty Mut, supra.

       Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

       Presumably, Murray could argue to the trial court that the evidence in the tort case could have supported a much greater damages award and that the jury verdict, therefore, did not fully and completely compensate him.

       See Liberty Mut., supra.

       We note that, for purposes of remand, any reimbursement of benefits to which Anthem may be entitled is statutorily limited to the amount of Murray’s tort recovery. See OCGA § 34-9-11.1 (b); Rowland v. Dept. of Administrative Svcs., 219 Ga. App. 899-900 (466 SE2d 923) (1996) (lien lies “against the worker’s tort recovery”). Put another way, in no event may Anthem recover more than $1.5 million from Murray, no matter how much it pays him in workers’ compensation benefits.

        Ga. Star Plumbing v. Bowen, 225 Ga. App. 379, 382 (484 SE2d 26) (1977).

       (Punctuation omitted.) K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (1) (401 SE2d 5) (1991).

       OCGA § 34-9-11.1 (b); see generally Dept. of Administrative Svcs. v. Brown, 219 Ga. App. 27 (464 SE2d 7) (1995) (discussing parameters of right of intervention).

       OCGA § 34-9-11.1 (c).

        Brown, supra at 28.

       Supra.

       Id. at 900.

       Id. at 901.

       Id. at 902.

       Id. at 903.


author: POPE, Presiding Judge.

text:
    A00A1519.
    MALAVE v. ALLSTATE INSURANCE COMPANY.
    (541 SE2d 420)
   POPE, Presiding Judge.

This case raises a question regarding service on an uninsured motorist carrier in a renewal action under OCGA § 9-2-61. Following Stout v. Cincinnati Ins. Co., 269 Ga. 611 (502 SE2d 226) (1998), we hold that service on an uninsured motorist carrier (UMC) in a valid renewal action filed after the running of the statute of limitation is valid even though the carrier was not served in the original action.

On June 8, 1997, Orlando Malave was in an automobile accident with Amy Sue Lescrynski. On June 7, 1999, one day before the expiration of the statute of limitation, Malave filed suit against Lescrynski. Lescrynski’s summons was returned without service on June 7, 1999. Malave eventually served Lescrynski five months later.

Malave had automobile liability insurance coverage, including uninsured motorist coverage, with Allstate Insurance Company. The accident report stated that Lescrynski had no insurance. Further, on November 2, 1999, counsel for Malave spoke with Lescrynski and admits he learned she did not have insurance coverage for the accident. Although Allstate received a letter regarding the suit, it was never served with a copy of the summons and complaint in that case. Allstate made a special appearance and requested dismissal from the suit on the grounds that it had never been served. Malave finally served Lescrynski, but shortly thereafter, on November 5, 1999, Malave dismissed his original case without prejudice. On November 12, 1999, he refiled his suit and this time served Allstate. Allstate again moved to dismiss, and the court granted the motion.

The trial court granted Allstate’s motion on the grounds that Allstate was not served within the applicable two-year statute of limitation nor at anytime during the first lawsuit and Malave knew the defendant was uninsured while the first case was pending. Malave contends that because he served Allstate in the renewal action, service on Allstate was proper.

Service on the UMC has been the subject of some debate, and Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989), attempted to resolve the debate by creating a bright-line rule requiring plaintiffs to serve the UMC in every case. However, the Supreme Court established a new rule in Stout v. Cincinnati Ins. Co., 269 Ga. 611, and that decision controls here.

OCGA § 33-7-11 (d) provides that in cases where there is a reasonable belief that the vehicle is uninsured, “a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant.” But, as stated in Stout, “OCGA § 33-7-11 (d) does not require service for the purpose of making the UMC a party to the underlying tort action.” Stout, 269 Ga. 611. Rather, “service is intended only to give the UMC ‘notice of the existence of a lawsuit in which it ultimately may be held financially responsible.’ [Cit.]” Id. at 611-612. Accordingly, in Stout, the Supreme Court held, “a plaintiff can wait to serve a UMC until he files a valid renewal suit after the running of the statute of limitation.” Id. at 611. Thus, Malave served Allstate in a timely manner.

The trial court distinguished Stout on the ground that in that case the plaintiff did not learn that the defendant’s carrier was insolvent and therefore that the defendant was uninsured, until after the running of the statute. But, a review of the reasoning of Stout and U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432 (491 SE2d 50) (1997), upon which Stout relies, shows that the trial court’s distinction in this case is not supported.

Stout held that Stout’s service on the UMC in the renewal action after the statute of limitation had run was valid even though she had not served the UMC in the original action. The defendant had been properly served in the original action. The Supreme Court reasoned that the UMC could not assert a statute of limitation defense that would not have been available to the named party defendant. Id. at 612. In the high court’s words: “it is the validity of the service of the underlying lawsuit on the defendant which must necessarily control.” Id. To allow the UMC to assert a statute of limitation defense when the defendant could not would put the UMC in a better position than the tortfeasor: “Although the UMC should not be placed in a worse position than the alleged tortfeasor for whose negligence it may ultimately be held financially responsible, it likewise should not be placed in a better position.” Id.

The same applies here. There is no indication or ruling in the record that service on Lescrynski was improper in the original or renewal actions. Compare Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313-314 (1) (529 SE2d 439) (2000) (case properly dismissed on UMC’s motion where defendant was not properly served). To allow Allstate to obtain a dismissal in the renewal action when Lescrynski herself could not would put Allstate in a better position. The fact that Malave knew that Lescrynski was uninsured while the first action was pending does not change this reasoning.

Allstate contends the original action was void because Allstate was not served and that therefore the renewal was not proper. It is true that “the privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable.” (Citations and punctuation omitted.) Reid, 268 Ga. 432. But as pointed out in Reid, in determining whether the UMC was validly made a party to the renewal action, the issue is not whether the previous suit was void or voidable as to each entity served in the renewal suit. “Instead, the issue is whether the previous suit itself was or was not ‘wholly void.’ ” Id. Like in Reid, the original suit in this case was not wholly void because the defendant was served and the trial court did not enter an order of dismissal. Id. Nothing in Reid indicates that the plaintiff’s knowledge that the defendant is uninsured affects this reasoning.

Decided October 27, 2000

Reconsideration denied November 14, 2000

Clark & Clark, Fred S. Clark, Shari L. Smith, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, William T. Johnson, for appellee.

Thus, following Stout and Reid, we hold that Allstate has been properly served in accordance with OCGA § 33-7-11 (d). Accordingly, the trial court’s order dismissing Allstate was erroneous.

Judgment reversed.

Miller and Mikell, JJ., concur.

       Malave has failed to support his appeal with any citations to the record as required by Court of Appeals Rule 27 (a) (1) and (c) (3) (i). “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995). However, the record is short and the appellee’s brief contains thorough references to the record.


text:
    A00A1229.
    A00A1461.
    CASEY v. THE STATE. JONES v. THE STATE.
    (542 SE2d 531)
   Barnes, Judge.

In a joint trial, a jury found Anthony Casey and Kevin Jones guilty of aggravated assault and possession of a firearm in commission of a felony. Casey was also convicted of possession of a firearm by a convicted felon. Casey and Jones appeal, both challenging the sufficiency of evidence and the admissibility of certain evidence. Their separate appeals are consolidated for disposition in a single opinion. Having determined that the evidence sufficiently supports the verdicts and that no reversible error occurred, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997). This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Patterson, supra, 225 Ga. App. 515. Conflicts in the evidence are for the jury to resolve. Id.

The record shows that on March 15, 1998, Casey, Jones, Joseph Williams, Gabriel Wallace, and several others attended a basketball game at the Georgia Dome. Afterward, Casey, Jones, Williams, and Wallace got into a Ford Thunderbird and took Wallace to his home in Cobb County. Casey, Jones, and Williams left Wallace’s apartment at approximately 7:45 p.m. Wallace testified that Jones, who was wearing a brown leather coat, was driving; Casey, who was wearing a blue, black, and white jacket, was seated in the backseat; and Williams was seated in the front passenger seat.

Approximately 30 minutes later, a motorist found Williams’s body on an Interstate 285 exit ramp that connects to 1-85 North in south Fulton County. He had died of a gunshot wound to the back of the left side of his head. The forensic pathologist who examined the body testified that the wound would have bled significantly.

At approximately 11:52 that evening, a Tennessee state trooper stopped Casey and Jones in Knoxville for speeding. Hours later, at 4:10 a.m. on March 16, Police Officer Ponichtera of Dayton, Ohio, stopped the men for traveling 76 mph in a 55-mph zone.

The officer asked Jones, who had been driving the car, for his driver’s license and proof of insurance and asked Casey, who was seated in the front passenger seat, for his name, date of birth, and Social Security number. The officer then asked Jones “some general questions about where they were coming from, where they were going, that sort of thing.” Jones responded that they had left Alabama at 11:00 the previous night and were headed to Detroit and that “Jerry” owned the car. When the officer asked Jones for his consent to search the car, Jones refused. When the officer asked Casey about their travel itinerary, Casey stated that they had left Alabama at 11:00 the previous morning, then added that they had stopped in Atlanta. Deciding that Jones should post bond for the citation, the officer put Jones in the backseat of his patrol car for transport to the county jail.

Lieutenant Welsh, who arrived as backup, went to the Ford Thunderbird where Casey remained seated and instructed him to sit in the backseat of his cruiser. When Lt. Welsh opened Casey’s car door, he saw “a large quantity of blood on the rocker panel and the seat he was sitting in.” The officer testified that he became suspicious and that after placing Casey in the back passenger seat of his patrol car, he asked Casey “a series of questions.” Casey responded that they had been to Alabama, that they had left at approximately 11:00 the previous morning, and that they were headed to Detroit. When the officer asked him about the blood, Casey stated that the blood must have been in the car when they borrowed it in Detroit. The officer testified that he observed that Casey would not look at him when responding and that he was wringing his hands and wiping his palms on his pants.

After talking to Casey, Lt. Welsh walked to Officer Ponichtera’s patrol car, leaned into it, and asked similar questions to Jones, who was seated in the back of the car. Jones told the lieutenant that they had been to Alabama, that they were going to Detroit, and that they had borrowed the car from “Jerry.” In response to the officer’s question concerning the blood in the car, Jones asked, “What blood?” Lt. Welsh testified that Jones would not look at him but instead would look out the side windows. Officer Ponichtera transported Jones to post bond.

Meanwhile, Lt. Welsh requested a canine unit with a dog trained to alert to the odor of narcotics. The canine unit arrived at the scene at the same time as Officer Ponichtera, who was taking Jones back to the Ford Thunderbird after he had posted bond. When the drug dog alerted, police drove the car to a safer, well-lit area to search it. The police also transported Casey and Jones there. During the search, officers found a marijuana pipe, the remainders of marijuana cigars, a brown leather jacket, a blue and black jacket, and a gun. One of the searching officers saw a “large quantity of what appeared to be blood, tissue.” He stated that the ceiling “looked like somebody had been — like blood had been sprayed.” They also saw what appeared to be blood and body tissue on the brown leather jacket. At this point, Lt. Welsh halted the warrantless search, placed the items back in the car, called the homicide squad, and sought a search warrant.

After obtaining a search warrant for the vehicle, the officers found a bloodstained floor mat in the front passenger area. Blood samples were taken from the car.

An expert in blood spatter analysis, who found blood throughout the front passenger area of the car and in the area of the right arm of the driver, testified that based upon his examination of the blood pattern, the victim was sitting in the passenger’s seat of the vehicle when he was shot. He determined that a high-velocity spatter of blood came back toward its source of energy, finding that point to be an area above the front passenger’s seat. Reconstructing the crime scene, he concluded that the person wearing the blue and black jacket was situated such that the blood hit the upper front area of the jacket and that the person wearing the brown leather jacket was the driver because the bloodstains on it were consistent with someone holding a steering wheel. An expert in forensic serology identified blood on the right sleeve of the brown leather jacket and on the sleeves and front of the blue and black jacket. A DNA expert testified that the DNA from both jackets and from the molding of the Ford Thunderbird contained the deceased’s DNA profile.

Case No. A00A1229

1. Casey contends that the evidence, which was circumstantial, was insufficient to allow a rational trier of fact to find him guilty beyond a reasonable doubt as the perpetrator of the offenses or as a party thereto. We disagree.

Circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law.

(Citations and punctuation omitted.) Robinson v. State, 203 Ga. App. 759, 760 (1) (417 SE2d 404) (1992). The jury’s conclusion that Casey was guilty of aggravated assault and possession of a firearm in the commission of a felony cannot be said to be unsupportable as a matter of law. See OCGA § 16-2-20, which defines when a person is a party to a crime. Applying the standard of Jackson v. Virginia, supra, we hold that the evidence was sufficient.

2. Casey contends that the trial court erred in refusing to suppress his pretrial statements, urging that the statements were obtained in violation of his right to remain silent under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

But Miranda does not apply to a “general on-the-scene investigation.” Shy v. State, 234 Ga. 816, 820 (1) (218 SE2d 599) (1975).

So long as the interrogation is not aimed at obtaining information to establish a suspect’s guilt but is instead aimed at determining the nature of the situation upon the arrival of the law enforcement officer on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given.

(Citations and punctuation omitted.) Toth v. State, 213 Ga. App. 247, 249 (2) (444 SE2d 159) (1994). Here, after Officer Ponichtera stopped the men for speeding, they remained seated in the Ford Thunderbird as each responded to the officer’s questions concerning their travel. Casey and Jones were not in custody at that time; thus, no Miranda warnings were required. Manchester v. State, 226 Ga. App. 653, 655 (1) (487 SE2d 449) (1997). As this evidence was properly admitted, any error in admitting cumulative evidence regarding Casey’s and Jones’s subsequent statements made to Lt. Welsh while seated in the backseats of patrol cars was harmless. Both men denied knowing anything about the blood in the car when Lt. Welsh questioned them. The lieutenant was not then aware of any homicide; rather, the circumstances reveal that his questions were part of an initial on-the-scene investigation. The trial court did not err.

3. Casey contends the trial court erred in admitting the items seized from the vehicle, arguing they are the fruits of an illegal warrantless pretextual search.

(a) Because Jones was exceeding the posted speed limit, the initial stop was proper. See Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997) (if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress arguing that the stop was pretextual fails). Casey does not argue that he was unlawfully detained; rather, he argues that the officers conducted a warrantless search without an exception to the warrant requirement. The United States Supreme Court has held that exposure of personal effects located in a public place to a trained canine does not constitute a search within the meaning of the Fourth Amendment. United States v. Place, 462 U. S. 696, 707 (103 SC 2637, 77 LE2d 110) (1983); O’Keefe v. State, 189 Ga. App. 519, 525 (3) (376 SE2d 406) (1988) (officer’s use of a trained canine’s olfactory sense cannot convert a sniff of the air around the exterior of a car into an unreasonable search of the interior of the car). Here, the drug dog was in a place where he was authorized to be; the drug dog did not intrude into the interior of the car; and the airspace around the car is not an area protected by the Fourth Amendment. See id. Once the drug dog alerted to the car, the officer had probable cause to believe that contraband was contained somewhere therein, authorizing the warrantless search of the automobile. Pennsylvania v. Labron, 518 U. S. 938, 940 (116 SC 2485, 135 LE2d 1031) (1996) (per curiam); United States v. Ross, 456 U. S. 798, 809 (102 SC 2157, 72 LE2d 572) (1982); Benton v. State, 240 Ga. App. 243, 245-246 (2) (522 SE2d 726) (1999). Therefore, the trial court did not err in denying the motion to suppress the evidence found during the search.

(b) Casey further contends evidence of the marijuana pipe, the marijuana cigar remnants, and gun should have been suppressed, arguing that the items bore no connection to the crimes charged and only served to portray him and Jones as “bad men.” But clearly the gun was relevant in proving the charge of possession of a firearm by a convicted felon against him. Further, where the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless the admission of the same evidence over objection. Cherry v. State, 230 Ga. App. 443, 446 (4) (496 SE2d 764) (1998). The record shows that Wallace testified, without objection, that on the way to the game on March 15, 1998, he, Casey, Jones, and the deceased had been having “a great time . . . laughing, smok[ing] [marijuana], drink[ing] a few drinks.” Any alleged error was harmless.

4. Casey contends that the trial court erred in refusing to suppress evidence seized pursuant to the search with the warrant, asserting that the evidence was derivative of and tainted by the unlawful warrantless search and constituted fruit of the poisonous tree.

Relying on Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963), Casey states that the exclusionary rule prohibits the admissibility of evidence obtained in violation of the Fourth Amendment. But in Division 3, supra, we determined that the search of the Ford Thunderbird did not violate the Fourth Amendment.

Casey further argues that the search warrant was not based upon independent probable cause but was based upon his statements obtained in violation of Miranda. He contends that therefore the items of evidence retrieved from the search were obtained as a result of his statements and were “fruits of the poisonous tree,” which should have been suppressed. But even if this is so, this contention is without merit. The exclusionary rule does not apply to the “fruits” of a voluntary statement obtained after a violation of Miranda’s procedural rules but not a violation of the constitution. Wilson v. Zant, 249 Ga. 373, 376-378 (1) (290 SE2d 442) (1982), overruled on other grounds, Morgan v. State, 267 Ga. 203, 204-205 (2) (476 SE2d 747) (1996); Cotton v. State, 237 Ga. App. 18, 20 (513 SE2d 763) (1999).

Case No. A00A1461

5. Jones contends that the evidence, which was circumstantial, was insufficient to allow a rational trier of fact to find them guilty beyond a reasonable doubt as the perpetrators of the offenses or a party to the offense. For the reasons discussed in Division 1, supra, this contention is without merit. Robinson v. State, supra, 203 Ga. App. at 760; OCGA § 16-2-20; Jackson v. Virginia, supra.

6. Jones contends that the trial court erred in failing to suppress the statements he made while seated in the back of the patrol car because the police questioned him in violation of Miranda. For the reasons discussed in Division 2, supra, this contention is without merit.

7. Jones contends that the trial court erred in refusing to suppress the fruits of what he claims was an illegal warrantless search of the vehicle. For the reasons discussed in Division 3, supra, this contention is without merit.

8. Jones contends that the trial court erred in refusing to suppress evidence seized pursuant to the search with a warrant, urging that such evidence was derivative of and tainted by the unlawful warrantless search and constituted fruit of the poisonous tree. For the reasons discussed in Division 4, supra, this contention is without merit.

Decided November 14, 2000.

Tony L. Axam, for appellant (case no. A00A1229).

Herbert Adams, Jr., Gwendolyn Johnson, for appellant (case no. A00A1461).

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

Judgments affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       The gun was not found to be connected to the shooting of Williams.


author: Johnson, Chief Judge.

text:
    A00A1846.
    DAVIS-REDDING v. REDDING.
    (542 SE2d 197)
   Johnson, Chief Judge.

In this case, we decide where venue lies when the husband who is the respondent in a family violence case has left the marital home and is living in a relative’s home in another county. We also decide whether the trial court was authorized to decide on its own motion that venue was improper. Under the circumstances presented in this case, we hold that venue was proper in either county and that the trial court erred in deciding sua sponte that venue was not proper in the county in which the petition was filed.

Stacey Davis-Redding and Jefferson Redding married in July 1993. They lived together in Clayton County until July 1999, when Redding began staying at his brother’s home in Henry County. During the separation their two children, ages six and nine, have lived primarily with Davis-Redding.

On October 30, 1999, Davis-Redding drove to Redding’s brother’s residence to give the children their Halloween costumes. When she arrived, the children came out and gave her a hug. She claims that when Redding saw them do this, he came outside, grabbed the children by their arms and took them toward the front door. He let go of them and told them to go to the door. According to Davis-Redding, Redding then turned around and grabbed her by the arms. She wrestled herself away from him and ran for her car. As she started driving away, Redding punched her car window and ripped the side mirror off the car.

On November 1, 1999, Davis-Redding filed a petition for a temporary protective order in Clayton County Superior Court. Without holding a formal hearing or serving Redding, the court found that Redding was a resident of Henry County and dismissed the petition.

Davis-Redding then went to the Henry County courthouse to file a petition for a protective order. According to Davis-Redding, the judge there refused to consider the petition because Redding had not indicated an intent to remain in Henry County and so was still a resident of Clayton County.

On November 17, Davis-Redding was served with a verified complaint for divorce. In it, Redding swore that he was a resident of Clayton County. On December 1, based on this new evidence showing Redding as a Clayton County resident and her inability to get relief in Henry County, Davis-Redding moved the Clayton County court to reconsider the November 1 order or to grant a new trial. The motion was denied on December 7, 1999. We granted Davis-Redding’s application for discretionary review of the November 1 and December 7 orders denying her initial petition for a protective order and motion for reconsideration.

1. Davis-Redding contends the trial court misapplied OCGA § 19-13-2, arguing that venue was proper in both Clayton and Henry Counties. We agree that venue was proper in either county.

The venue provision of the Family Violence Act provides, in pertinent part, that “the superior court of the county where the respondent resides shall have jurisdiction over all proceedings under this article.” The Act does not define the term “resides.” Nor have we found any cases defining “resides” in a family violence context. However, issues involving a defendant’s legal residency for purposes of filing suit have arisen in other contexts.

In general, one’s legal residence for the purpose of being sued in Georgia is the same county as his or her domicile. Under OCGA § 19-2-1:

(a) The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state. If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile, (b) The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence. Declaration of an intention to change one’s domicile is ineffectual for that purpose until some act is done in execution of the intention.

Thus, under OCGA § 19-2-1, the court could have found that Redding is a resident of either county. Under subsection (a), since Redding’s family permanently resides in Clayton County, that county could be considered his place of domicile. At the same time, if Red-ding’s separation from his family requires that he be treated as though he has no family, his domicile is in Henry County, since that is where he generally lodges.

Under subsection (b), Redding changed his domicile to Henry County if he actually moved and made known his intention to remain at the new location. While the record shows he moved, it does not indicate whether Redding made known any intention to remain in his brother’s Henry County home. Thus, it does not show that he changed his domicile.

This is a case where the respondent’s place of residence for venue purposes is not exactly clear. In such a case, it is particularly important to consider the purpose of the Family Violence Act. The Act seeks to bring about an end to acts of family violence. In order to achieve this purpose, the Act gives the trial court authority to order temporary relief as it deems necessary to protect a person from violence, even if that means giving the respondent no notice and no opportunity to be heard before the order is issued.

Considering the Act’s important purpose, as well as the language of OCGA §§ 19-2-1 and 19-2-2, we hold that, in a family violence case in which the respondent has left the family home but has not avowed an intention to remain in his new location, venue is proper both in the county of the family’s residence and in the county to which the respondent has relocated. We agree with the rationale behind this Court’s opinion in Corbett v. Corbett. “divorce cases are different from other cases, requiring some flexibility in the application of our jurisdictional and venue rules.” We realize this is a family violence case rather than a divorce case; however, even more flexibility may be required in cases filed to bring about an end to family violence.

Although the trial court would also have been authorized to find that venue was in Henry County, the trial court erred in holding that venue did not lie in Clayton County. Accordingly, the trial court’s judgment dismissing the petition must be reversed.

2. Davis-Redding correctly argues that the trial court erred in dismissing the petition based on improper venue on its own motion. A defense of improper venue may be waived, and Redding did not raise the issue himself. The trial court was not authorized to dismiss the petition on its own due to improper venue.

Decided November 14, 2000.

Ana-Beatriz P. Kennedy, Deborah A. Johnson, David A. Webster, for appellant.

Jefferson H. Redding, pro se.

3. Based on the foregoing, we need not consider Davis-Redding’s remaining arguments.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       OCGA § 19-13-2 (a).

        Sorrells v. Sorrells, 247 Ga. 9, 11 (3) (274 SE2d 314) (1981); see In the Interest of B. G., 238 Ga. App. 227, 228 (518 SE2d 451) (1999).

       See OCGA § 19-13-4 (a); Duggan v. Duggan-Schlitz, 246 Ga. App. 127 (539 SE2d 840) (2000).

       OCGA § 19-13-3 (b); Duggan, supra.

       (Punctuation omitted.) 236 Ga. App. 299, 301 (511 SE2d 633) (1999).

       Id.

       See Williams v. Fuller, 244 Ga. 846, 850 (5) (262 SE2d 135) (1979); Harbin Enterprises v. Sysco Corp., 195 Ga. App. 694, 695 (1) (394 SE2d 618) (1990).

       See Brown v. Rock, 184 Ga. App. 699, 701 (2) (362 SE2d 480) (1987); Hubbert v. Williams, 175 Ga. App. 393, 396 (3) (333 SE2d 425) (1985).


author: MIKELL, Judge.

text:
    A00A2321.
    DAWKINS et al. v. CITY OF VILLA RICA et al.
    (542 SE2d 193)
   MIKELL, Judge.

This is an appeal from the grant of summary judgment to the City of Villa Rica and three of its police officers (“city defendants”) arising out of a business dispute between the plaintiffs, Marlene Dawkins and Carter Linn, and their purported lessors, defendants Charles and Peggy Bynum. Plaintiffs asserted claims against the city defendants under 42 USC § 1983 alleging that the police department acquiesced in preventing the plaintiffs from reentering the premises and so deprived them of their property without due process. Holding that the police officers are entitled to qualified immunity and that no viable claim exists against the city, we affirm.

A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that on May 13, 1998, Dawkins executed a letter of intent to buy a variety store in Villa Rica from Charles and Peggy Bynum. On that day, the Bynums gave Dawkins the keys to the store, and she began operating it immediately. Within two days Dawkins had paid the Bynums $10,400, representing half of the $20,000 purchase price plus one month rent. Disputes not relevant to this appeal quickly developed between the plaintiffs and the Bynums.

Ten days later, on the morning of May 23, 1998 — the Saturday before Memorial Day — Peggy Bynum delivered the final proposed contract to the plaintiffs. Believing the proposal did not reflect the terms set out in the letter of intent, the plaintiffs closed the store around 1:00 p.m. and tried to contact an attorney to review the proposal. Shortly after the plaintiffs left, Charles Bynum, who owned and operated the store next door, tried to gain access to the variety store. Bynum deposed that he was concerned about protecting the remaining inventory.

Bynum could not get in because Dawkins had changed the locks. Bynum summoned a locksmith, who refused to rekey the lock without police consent. Bynum called the police, and Officer S. W. Sea-graves responded. Upon learning that money had changed hands between the plaintiffs and the Bynums, Seagraves explained that the police could not get involved because the dispute was a civil matter. He warned the locksmith that rekeying the lock would constitute burglary. Bynum then requested permission to place a padlock on the door. Seagraves deposed:

[Bynum] was worried about their stock in the store. He said, is there any problem with me putting a lock on over there. I said, I don’t see any problem with that. They can contact you and you can sit down and get a mediator to handle the matter. ... I didn’t give him [permission]; I just told him that there was nothing criminal or illegal that I knew about that.

Seagraves left, and Bynum padlocked the door.

Dawkins deposed that Peggy Bynum called her around 2:00 p.m. and informed her that the police had padlocked the store. Plaintiffs proceeded to the Villa Rica Police Department, where they spoke with Sgt. W. A. Teal. He explained that the police had not padlocked the business. Sgt. Teal also reiterated that the dispute was a civil matter which would have to be handled through civil process. Finally, Sgt. Teal stated that no one would be allowed to enter the store until the matter was settled. Plaintiffs deposed that Linn requested permission to cut off the padlock, but Sgt. Teal threatened to arrest Linn if he did so. Sgt. Teal deposed that he did not recall Linn’s request. Linn deposed that upon the advice of the Georgia Bureau of Investigation, he called Police Chief Dean Maddox, and the following transpired:

I identified myself to the chief of police and [said] that I was calling about the business. The first words out of his mouth were, I thought a black man bought that business. And I said, I don’t understand what that has to do with anything. That’s my wife. He goes, oh, oh, well, I didn’t — I didn’t mean anything. That, in my mind, set a tone right there.

Chief Maddox made an appointment for the plaintiffs to come in and speak with an investigator. Upon arriving at the police station, plaintiffs filed a complaint alleging theft by deception. The complaint was referred to Captain T. Johnson, who investigated the incident and determined that no crime had been committed.

When Captain Johnson went to the Bynums’ store to inform them that no charges would be filed, he saw the Bynums inside the previously padlocked variety store. Johnson asked what the Bynums were doing, and they replied that they were inventorying the property. Captain Johnson also telephoned Dawkins to inform her that the police were closing the investigation. He could not recall whether he did so before or after seeing the Bynums, but Johnson did not inform her that the Bynums had been inside the variety store. Captain Johnson deposed that the dispute between the plaintiffs and the Bynums was a civil matter over which the police lacked jurisdiction.

Linn deposed that Chief Maddox informed him that if the Bynums removed and sold merchandise that they did not own, they would be arrested for theft by conversion.

Ultimately the plaintiffs sued the Bynums, the City of Villa Rica, Chief Maddox, Sgt. Teal, and Officer Seagraves, asserting that the police permitted the Bynums to reenter the variety store, thereby enabling the Bynums to appropriate the plaintiffs’ property. Plaintiffs claim the police unlawfully dispossessed them without a warrant and thus violated 42 USC § 1983. The city defendants moved for summary judgment, and the plaintiffs moved for partial summary judgment as to the city defendants’ liability. The trial court granted the city’s motion and denied the plaintiffs’ motion. The plaintiffs appeal.

1. 42 USC § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .

Accordingly, to survive summary judgment in a § 1983 action, a plaintiff must demonstrate the existence of genuine issues of material fact showing that the defendants’ acts or omissions, performed under color of state law, resulted in the deprivation of a right, privilege, or immunity protected by the United States Constitution or the laws of the United States. Here, plaintiffs contend that the police deprived them of their property without due process, thereby violating the Fourteenth Amendment.

Plaintiffs correctly assert that 42 USC § 1983 provides a cause of action to an individual who has been deprived of a property right by a government official without due process. However, the statute also provides qualified immunity from personal liability to government officials performing discretionary functions as long as the officials’ conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” “Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.” “In all but the most exceptional cases, qualified immunity protects government officials performing discretionary functions from the burdens of civil trials and from liability for damages.” This is not an exceptional case. It is apparent from the evidence in the record before us that the actions of the police amounted to a good faith effort to keep the peace and maintain the status quo while the plaintiffs and the Bynums pursued civil process. Both Chief Maddox and Officer Seagraves advised the parties to sit down with a mediator. Similarly, Sgt. Teal advised the plaintiffs to contact an attorney and settle the matter. Plaintiffs’ testimony that Sgt. Teal instructed them not to break the padlock Bynum had placed on the door evinces an attempt to keep the peace, not to deprive the plaintiffs of their property.

Nor can we conclude that Officer Seagraves’ failure to prevent Bynum from padlocking the store was tantamount to a warrantless dispossession, as plaintiffs argue. Although the better practice may have been to refrain from responding to Bynum’s inquiry about placing a padlock on the door, the remark cannot be construed as a dispossession. Officer Seagraves did not permit the Bynums to rekey the lock or to enter the premises. In any event, Bynum’s deposition testimony reveals that Officer Seagraves made the comment in the context of explaining that the police enforce criminal laws, but have no jurisdiction in civil matters.

Decided November 14, 2000.

Herald J. A. Alexander, for appellants.

McCullough Sherrill, Kirk R. Fjelstul, Michael H. Hilliard, Caryl Sumner, for appellees.

Finally, the plaintiffs’ allegation that the police permitted the Bynums to reenter the variety store and appropriate the plaintiffs’ property is belied by Linn’s deposition testimony that Chief Maddox said the Bynums would be arrested if they took the plaintiffs’ property. Accordingly, plaintiffs have failed to sustain their burden of showing that genuine fact issues remain regarding whether the police deprived them of a constitutionally protected right, and the police are entitled to qualified immunity.

2. Plaintiffs’ claim against the city under 42 USC § 1983 is likewise without merit. It is only “when execution of a government’s policy or custom is responsible for inflicting the injury, and thus is the moving force of the constitutional violation can a governmental entity be held liable.” “What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.” “A plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity.”

Here, not only have plaintiffs failed to demonstrate any injury causally related to their interaction with the police department, “the record is [devoid] of any evidence of implementation of an intentionally corrupt or impermissible policy by any of the [city] defendants so as to authorize a cause of action against [Villa Rica] under 42 USC § 1983.”

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Watts v. Promina Gwinnett Health System, 242 Ga. App. 377, 379 (1) (530 SE2d 14) (2000).

       Linn is white. Dawkins is black.

        Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 156-157 (98 SC 1729, 56 LE2d 185) (1978); Wideman v. Shallowford Community Hosp., 826 F2d 1030, 1032 (11th Cir. 1987); Epps v. Gwinnett County, 231 Ga. App. 664, 668-669 (7) (a) (499 SE2d 657) (1998).

       U. S. Const. Amend. 14; Ga. Const. 1983, Art. I, Sec. I, Par. I.

        Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 707 (1) (487 SE2d 478) (1997).

       (Citations and punctuation omitted.) Thomas v. Holt, 221 Ga. App. 345, 347-348 (1) (471 SE2d 300) (1996).

        Maxwell, supra at 707 (1).

       (Citation and punctuation omitted.) Bd. of Commrs. of Effingham County v. Farmer, 228 Ga. App. 819, 823 (2) (493 SE2d 21) (1997).

       Cf. Owens v. BarclaysAmerican/Mtg. Corp., 218 Ga. App. 160 (460 SE2d 835) (1995) (agent of owner removed plaintiff’s possessions and changed the locks).

       (Punctuation omitted.) Epps, supra at 669 (7) (a), citing Monell v. Dept. of Social Sues. &c., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978).

       (Citation and punctuation omitted.) Kilgo v. Dept. of Corrections, 202 Ga. App. 50, 51 (413 SE2d 507) (1991).

        Colle v. Brazos County, Texas, 981 F2d 237, 245 (5th Cir. 1993).

        Epps, supra at 669 (7) (a).