author: Smith, Presiding Judge.

text:
    A00A1800.
    PENLAND v. CORLEW et al.
    (547 SE2d 306)
   Smith, Presiding Judge.

In this appeal, we consider whether the trial court was authorized to grant an interlocutory injunction. Attorney S. Perry Penland appeals a temporary restraining order enjoining him from proceeding with four pending cases filed in Florida state court, all relating to the disposition of funds interpleaded with the Superior Court of DeKalb County. We also review the grounds under which a judge may be disqualified under Uniform Superior Court Rule 25. Because we conclude that the trial court did not manifestly abuse its discretion in granting the injunction and that Penland’s motion to disqualify the trial judge failed to meet the timeliness requirement of USCR 25, we affirm.

While this litigation is in its early stages and the record is not fully developed, many facts are essentially undisputed, as set out in a federal district court order entered on an earlier remand from federal jurisdiction. The parties are involved in a dispute over attorney fees and costs in another lawsuit. In 1993, appellee Dr. Leonard Masters, a Florida physician, retained Eric S. Block of the Jacksonville, Florida, law firm of Penland & Penland to represent him in a medical malpractice action. Appellant Penland was also a member of that firm. In late 1993, Block contacted and retained Harold D. Corlew, a Georgia attorney, to serve as local counsel against several Atlanta defendants. Corlew agreed and filed the malpractice case in the Superior Court of DeKalb County.

In November or December 1996, Block and Corlew met with Pen-land in Atlanta to discuss financing of the Masters case. The three attorneys agreed that, in return for Penland’s assistance in trying the Masters case and advancing all expenses necessary to try the case, they would divide any fees earned in the Masters case evenly among themselves. Penland’s name was added to the pleadings as co-counsel at that time. The construction and enforcement of this agreement form the basis of this suit.

During the course of trial preparations, Penland became ill and was unable to participate in the trial, which was scheduled for the spring of 1999. On February 27, 1999, Block and Corlew wrote a letter to Penland offering to continue the prior fee arrangement provided Penland would continue to fund the trial’s expenses. Though the letter is from Block to Penland, Corlew’s handwritten comments to Penland appear on the signature page. Although Penland alleges that he accepted this offer, the record before us does not contain any evidence in support of that allegation, and Corlew denies that Pen-land ever responded to the proposal.

Block and Corlew successfully tried the case, resulting in the funds that form the basis of this action. Corlew claims that Penland did not pay the expenses as agreed and did not assist Block and Corlew in trying the case. Corlew contends that these facts require an adjustment to the previously agreed upon fee arrangement. Pen-land and Block disagree.

To settle this dispute, Corlew brought an action in interpleader in DeKalb Superior Court on June 18, 1999, and deposited the outstanding attorney fees and costs in the registry of the court. On July 20, Penland answered, admitting that he is subject to the jurisdiction of the DeKalb court. But on the same day, Penland removed the case to federal district court under the interpleader provisions of Rule 22 of the Federal Rules of Civil Procedure, alleging diversity of citizenship under 28 USC § 1332. Two days after filing for removal, Penland commenced the first of four actions in the Florida courts: Penland v. Corlew, Case No. 99-04374 CA, Division CV-A, in Duval County, Florida, alleging breach of contract and fraud arising out of the Masters case.

On December 8, 1999, Penland filed two more cases in Duval County, Florida: Penland v. Corlew, Case No. 99-12511 CC, Division K, and Penland v. Corlew, Case No. 99-12512 CC, Division G. Both cases concerned the dishonor of checks written by Corlew to Penland. The parties dispute whether these checks constituted a payment of a personal loan Penland made to Corlew or, as is written on the bottom of each check in question, funds related to the Masters case.

Penland then filed his fourth and final Florida suit, Penland v. Hould, Case No. 99-07245-CA, Division CV-B, in Duval County, Florida, seeking compensatory damages allegedly suffered by Penland during his attempts to settle the dispute over expenses in the inter-pleader as well as punitive damages.

On February 1, 2000, the federal district court in Georgia realigned the parties in the original suit, holding that no dispute existed between Corlew and Masters. This realignment destroyed the complete diversity of citizenship required under 28 USC § 1332 for a federal interpleader action, and the district court remanded the case to DeKalb Superior Court. Shortly thereafter, Block filed both a motion for reconsideration with the federal court and a motion in the superior court to abate the federal action. Penland filed a motion to abate with the superior court on February 11, 2000.

Faced with multiple lawsuits in separate jurisdictions, Corlew and Masters sought a temporary restraining order from the Superior Court of DeKalb County seeking to enjoin Penland from prosecuting the Florida lawsuits. After a hearing, the motion was granted, and Penland appeals.

1. Penland asserts that the trial court abused its discretion in enjoining the Florida actions, contending that Corlew’s action cannot be maintained because it was legally barred and unsupported by the evidence. But Corlew’s action for statutory interpleader is not barred by the subsequent filing of the Florida actions. The trial court’s interlocutory injunction is supported by evidence that the funds in dispute are subject to conflicting claims and that disputed facts require preservation of the status quo until those claims are resolved.

The purpose of an interlocutory injunction “is to preserve the status quo of the parties pending a final adjudication of the case.” (Citations and punctuation omitted.) Bailey v. Buck, 266 Ga. 405-406 (1) (467 SE2d 554) (1996). “The granting of injunctive relief lies in the sound discretion of the trial judge.” (Citations and punctuation omitted.) Wright v. Power Indus. Consultants, 234 Ga. App. 833, 834 (1) (508 SE2d 191) (1998). And it is clearly settled in Georgia that “the appellate courts will not disturb the trial court’s exercise of its discretion unless a manifest abuse of discretion is shown or there was no evidence on which to base the ruling. [Cit.]” Chambers v. Peach County, 268 Ga. 672, 673 (1) (492 SE2d 191) (1997). We find no abuse of discretion here, for several reasons.

(a) We first note that Penland contends Corlew’s DeKalb County action is inappropriate because statutory interpleader requires a preexisting legal action. But this is not the law in Georgia. When a stakeholder finds himself in the possession of funds that are possibly subject to claims by others, an action in interpleader is appropriate. See generally Johnson v. Mayor &c. of Carrollton, 249 Ga. 173 (288 SE2d 565) (1982) (city holding cash seized from criminal brought interpleader action to resolve conflicting claims of bank, hospitals, and police). Statutory interpleader under the Civil Practice Act has “ “broadened and liberalized the rules relating to the remedy of inter-pleader so as to render the technicalities . . . associated with the equitable remedy of a strict bill of interpleader no longer applicable to complaints tried under that section.’ [Cit.]” Stone v. Davis, 242 Ga. 17, 19 (247 SE2d 756) (1978). “Interpleader provisions . . . should be liberally construed in order that their utilitarian purposes may be best effectuated. [Cit.]” Algernon Blair, Inc. v. Trust Co. &c. Bank, 224 Ga. 118, 120 (160 SE2d 395) (1968). The right to statutory inter-pleader depends “merely upon the stakeholder’s good-faith fear of adverse claims, regardless of the merits of those claims or what the stakeholder bona fide believes the merits to be.” Id. at 121.

(b) Here, the record clearly shows Corlew’s “good-faith fear of adverse claims.” Penland’s initial Florida suit against Corlew allegedly arises out of the division of fees in the Masters case and, as such, involves the funds deposited with the Georgia trial court. Similarly, Penland’s fourth Florida suit seeks damages allegedly suffered by Penland in his attempt to settle expenses with Masters. Since the funds deposited with the trial court consist in part of $54,712.77 in litigation expenses related to the Masters case, this suit concerns that fund as well. Allowing these suits to proceed unabated clearly subjects Corlew and Masters to the hazard of inconsistent determinations in separate suits.

With regard to Penland’s second and third Florida suits, the facts are disputed as to whether the checks were for repayment of unrelated personal loans allegedly made by Penland to Corlew or for expenses or fees incurred in the Masters case. Each check appears, from notations on its face, to be related to the Masters case, but testimony on the record indicates that a personal loan was connected in some manner with at least one check. When conflicts exist involving issues of material fact, a trial court’s grant of an injunction is not a manifest abuse of discretion. Norfolk Southern R. Co. v. Dempsey, 267 Ga. 241, 242-243 (1) (476 SE2d 577) (1996).

(c) Finally, Penland argues that the trial court abused its discretion in enjoining his Florida actions because it had been divested of jurisdiction by Penland’s filing of an action at law. He contends that Corlew’s interpleader is actually a declaratory judgment action and therefore is an action in equity subject to a loss of jurisdiction through the filing of an action at law, relying on Merrills v. Horace Mann Ins. Co., 214 Ga. App. 142 (447 SE2d 112) (1994). This is an incorrect statement of Georgia law.

We have held that Merrills does not, as Penland contends,

stand for the sweeping proposition that a declaratory judgment action always becomes moot after the filing of a suit for damages related to the same dispute. In fact, in appropriate circumstances, we have approved the granting of an injunction to restrain the prosecution of a subsequently filed suit for damages. [Cit.]

J. M. Huber Corp. v. Ga. Marble Co., 239 Ga. App. 271, 275-276 (2) (520 SE2d 296) (1999). Even if Corlew’s action had been brought explicitly under the Declaratory Judgment Act, “[a] petition for declaratory judgment is an action at law, and it is not converted into an equitable action simply because a temporary restraining order is granted in order to maintain the status quo pending adjudication. [Cits.]” Hobgood v. Black, 144 Ga. App. 448, 450 (2) (241 SE2d 60) (1978).

2. Penland also contends that the trial court erred in failing to make a proper determination on his motion to disqualify the trial judge as required under USCR 25. USCR 25.3 requires that a trial judge presented with such a motion temporarily cease to act upon the merits of the matter and make a three-part determination as to the . sufficiency of the motion. The court must consider the timeliness of the motion, the legal sufficiency of the accompanying affidavit, and whether recusal would be warranted if some or all of the facts alleged in the affidavit are true. Id. “If all three conditions precedent set forth in USCR 25.3 are not met, the trial judge shall deny the motion on its face as insufficient.” (Emphasis supplied.) Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998).

We do not reach the merits of Penland’s motion to disqualify because it was not filed in a timely manner. USCR 25.1 requires that the filing and presentation of a motion to disqualify “shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification . . . unless good cause be shown for failure to meet such time requirements.” Penland filed his motion on February 16, 2000. In his motion, Penland acknowledged that it was not timely and asserted as good cause for delay that he had filed a motion for rehearing or reconsideration of the federal district court’s remand order and that the DeKalb County court therefore did not have jurisdiction at an earlier time. Penland’s contention is incorrect.

The federal court remanded this case on February 1, 2000, for lack of subject matter jurisdiction due to incomplete diversity. Under 28 USC § 1447 (d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” except in certain civil rights cases. “[T]he district court had no jurisdiction to review the remand order. . . . Unquestionably, § 1447 (d) not only forecloses appellate review, but also bars reconsideration by the district court of its own remand order.” (Citations and punctuation omitted.) Harris v. Blue Cross/Blue Shield of Ala., 951 F2d 325, 330 (II) (B) (11th Cir. 1992).

Section 1147 (d) applies to cases removed for lack of subject matter jurisdiction such as failure of diversity. As the Eleventh Circuit observed,

[r]emoval in [a] diversity case, to the prejudice of state court jurisdiction, is a privilege to be strictly construed, and the state court proceedings are to be interfered with once, at most. This is not only in the interest of judicial economy, but out of respect for the state court and in recognition of principles of comity. The action must not ricochet back and forth depending upon the most recent determination of a federal court.

Harris, supra at 330 (II) (B). Penland’s argument that the five-day limit for filing his motion to disqualify did not begin to run until his motion for reconsideration was ruled upon by the federal court is without merit, since the federal court had no jurisdiction to consider such a motion. And Penland’s affidavit testimony regarding an alleged statement by an unidentified federal court employee that the motion for reconsideration was being held “waiting for a response from opposing counsel” is merely hearsay and will not be considered. Orr v. Culpepper, 161 Ga. App. 801, 804 (288 SE2d 898) (1982).

The time for filing a motion to disqualify began to run with entry of the order to remand on February 1, 2000. Penland’s motion to disqualify, filed February 16, 2000, was filed far beyond the five-day limit, and he did not demonstrate good cause for delay. The trial court therefore properly denied his motion “on its face.” Gibson, supra at 166.

In summary, we find that the trial court did not err in staying the Florida actions. Those actions did not divest the Georgia trial court of its jurisdiction to consider the interpleader action. Since disputed issues of fact affected the distribution of the funds on deposit in the registry of the trial court, the court did not manifestly abuse its discretion in granting the interlocutory injunction to preserve the status quo of the parties until adjudication of the case. Further, as appellant’s motion to disqualify was not timely brought, the trial court did not err in denying the motion.

Decided March 13, 2001.

S. Perry Penland, pro se.

Harold D. Corlew, pro se.

Gail A. Mackinson, Cynthia L. Montgomery, for Masters.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       During the pendency of the Masters trial, Penland & Penland dissolved, and Block and attorney Penland began practice as Penland & Block, P.A. The firm subsequently ceased practice, and Block began a solo practice as Eric S. Block & Associates. Throughout this time, Block and Corlew continued to represent Masters.

       While the parties do not dispute the agreement, it is unclear from the record whether it was oral or in writing.

       Although Corlew and Masters sought a temporary restraining order, it is clear that the order issued by the trial court was an interlocutory injunction intended to remain in effect until final disposition of the case. See Anderson v. Dowd, 268 Ga. 146, 148 (3) (485 SE2d 764) (1997).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A2090.
    In the Interest of A. T. H. et al., children.
    (547 SE2d 299)
   Ruffin, Judge.

Following S. S.’s conviction and life sentence for felony murder and armed robbery, the Athens-Clarke County Department of Family & Children Services (DFCS) petitioned to terminate her parental rights to her three children, D. L. S. (age eight), A. T. H. (age seven), and J. D. E. (age six). Following a hearing, the trial court terminated S. S.’s parental rights with respect to A. T. H. and J. D. E., but not with respect to D. L. S. S. S. appeals, challenging the sufficiency of the evidence and contending that the court erred in admitting certain documents. For reasons discussed below, we affirm.

1. In order to terminate parental rights, the trial court must follow a two-step process:

First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

On appeal, we view the evidence in the light most favorable to support the trial court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.

In its order, the trial court noted that the children were originally adjudicated deprived on July 16, 1992. Except for a brief period in 1994, the children have been in foster care since the July 1992 order. S. S. has never provided financial support to the children while in foster care.

The July 1992 order set forth a number of goals that the mother had to comply with for reunification: (1) she had to submit to a psychological evaluation; (2) she had to obtain suitable housing for herself and her children; (3) she had to obtain employment; (4) she had to visit with the children; and (5) she could not violate the laws of Georgia or any other jurisdiction. These goals were incorporated into case plans developed by DFCS, and S. S.’s compliance with the goals was monitored by a citizens review panel that met every six months. In May 1996, S. S. was convicted of felony murder and armed robbery and was sentenced to two life sentences. She will not be eligible for parole until 2006, at the earliest.

The court noted that even before her conviction and imprisonment, S. S. had failed to achieve the goals set forth in the reunification plans. The court found that S. S.’s felony conviction and sentence had a “demonstrable negative effect on the quality of the parent-child relationship” and that S. S. had “rendered herself physically, emotionally, mentally, and financially unavailable to these children and unable to assist in their rearing.” The court stated that the children suffer emotionally because of their experience with S. S. and her imprisonment, and it concluded that “there is only a slight possibility that [S. S.3 will be available to them in the year 2006, when she will be eligible to be considered for parole.”

With respect to J. D. E., who lives in foster care with his paternal grandmother, the court noted that S. S. had not seen him since 1995 and that he

has formed no parental bond with the mother. During times of visits with his mother at [DFCS] early in his sojourn in foster care, the child would be upset by being around the mother. This child seldom talks about his mother but does say that he does not like her. He does not refer to her as “Mother” but refers to her [by her first name].

The court also noted that J. D. E. had to see a psychologist for treatment after briefly returning to S. S.’s custody in 1994.

The court further found that except for a short period of time in 1994, A. T. H. has been in his aunt’s custody since he was 17 months old. The court stated that a strong parental bond has developed between A. T. H. and the aunt, whom he refers to as “Mother,” and that the aunt desires to adopt him.

On appeal, S. S. does not deny that the children are deprived or that termination is in their best interests. Instead, she contends there was insufficient evidence that the deprivation was likely to continue or would result in serious harm to the children. We disagree.

“Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” Such aggravating circumstances may be found, for example, where a parent “has not visited regularly with the children or established a parental bond, has failed to contact DFCS or refrain from criminal activity as required by the case plan, and has no present prospects for employment, income, or a stable home.” In addition, the length of a parent’s incarceration, and thus the length of time the child must stay in foster care before any reunification is possible, is a factor that may be considered in determining whether termination is appropriate.

In this case, there are several aggravating factors supporting termination. First, S. S.’s convictions of felony murder and armed robbery were violations of a reunification goal established by the court. Second, S. S. had approximately four years before her imprisonment in which to develop a parental bond with her children, but failed to do so. Indeed, although she was offered DFCS’ rehabilitation services, S. S. failed to attend several of the citizens review panel meetings held every six months. On numerous occasions from 1993 to 1995, S. S. also failed to show up for scheduled visitations with J. D. E. Such failure to appear for scheduled visitations has often been cited as a factor supporting termination, since it demonstrates a lack of parental commitment and thus a likelihood that the deprivation will continue. The record further shows that S. S. never established a parental bond with her children in the first place, that her current incarceration prevents her from forming one now, and that the children have developed such bonds with their foster parents.

The length of S. S.’s detention is another factor supporting termination, particularly considering the absence of any present parental bond with her two children. S. S. is currently serving two life sentences and will not be eligible for parole until 2006, at the earliest. By that time, J. D. E. and A. T. H. will be 14 and 15 years old, respectively, and each will have spent nearly his entire life in foster care. The trial court was authorized to consider the detrimental effects of such a prolonged stay in foster care, and the consequential decrease in the likelihood of adoption, as factors supporting termination.

Although S. S. claims that she has made progress while in prison, by attending a parenting class, by trying to write or call her children, and by pursuing cosmetology training, “[w]hat weight to give recent improvements is a question for the trier of fact.”* In considering a parent’s claims of recent improvement, “the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” Regardless of her current good intentions, S. S. does not now have a parental bond with her children and has no chance of establishing a parental relationship for several years, at which time J. D. E. and A. T. H. will be near the age of majority. Under these circumstances, the juvenile court had ample grounds to conclude that the children’s deprivation was likely to continue and to cause them serious harm.

2. During the termination hearing, DFCS offered into evidence certain records of the citizens review panel meetings held over the years. S. S. objected on hearsay grounds, arguing that the documents “contain conclusions and opinions of persons who are not before the Court.” The trial court overruled the objection and admitted the documents “for whatever weight and credit I may give them.” On appeal, S. S. contends that the trial court erred in admitting the documents over her hearsay objection. This contention is without merit, since OCGA § 15-11-56 (c) provides that

[i]n dispositional hearings under subsection (b) of this Code section and in all proceedings involving custody of a child, all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.

Thus, the trial court did not err in allowing the documents to be introduced into evidence for whatever they were worth, which is exactly the purpose for which it stated it was admitting them.

To the extent S. S. suggests the trial court erred in relying on hearsay contained within the documents, such suggestion goes beyond the scope of her enumeration, which relates to the admissibility of the records as a whole. Moreover, S. S. makes no real argument to support such a suggestion, but simply implies that the trial court somehow relied on the reports in concluding that she had failed to meet her case plan goals. S. S. does not specify what statements within the documents the trial court allegedly relied upon or how such statements constituted hearsay lacking in probative value. It is not the function of this Court to cull the record in search of error on behalf of a party, and it is even less so when the purported error is not supported by argument and goes beyond the scope of the enumeration. Furthermore, we note that S. S.’s noncompliance with her case plan goals is shown by competent evidence other than the objected-to citizens review panel reports. For example, her convictions for felony murder and armed robbery violated the court-ordered requirement that she not violate the law. In addition, the children’s DFCS caseworker testified without objection that S. S. failed to complete required counseling sessions. This caseworker also testified from DFCS records about S. S.’s frequent failure to attend scheduled visitations, and after a belated hearsay objection by S. S.’s attorney, the trial court indicated that the testimony was admissible under the business records exception. S. S. herself testified that she could not comply with the case plans between 1993 and 1995 because she had two jobs and no transportation. Even apart from any hearsay in the panel reports, therefore, sufficient evidence demonstrated S. S.’s noncompliance with the reunification plan goals.

Decided March 13, 2001.

Kristopher Shepherd, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, for appellee.

Judgment affirmed.

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

       The court noted that D. L. S. “suffers from emotional and mental health handicaps and maladies which have not been delineated to the Court by treating and evaluating experts.” It noted that D. L. S. had “a strong emotional attachment to his mother” and that there was no evidence regarding how termination would affect the child. Accordingly, although it considered the mother unfit, the court could not find that termination would be in D. L. S.’s best interest based upon “no more than a lay person[’]s bias respecting the impact that such termination may have on a child whose mental and emotional health are significantly impaired and unstable.”

       (Footnote omitted.) In the Interest of V. M. T., 243 Ga. App. 732, 735-736 (3) (534 SE2d 452) (2000).

       See In the Interest of S. H. P., 243 Ga. App. 720, 721 (534 SE2d 161) (2000).

       Although the trial court’s order states that S. S. will be eligible for parole in 2006, S. S. testified that her tentative parole date is actually in November 2008.

       Testimony from the termination hearing indicates that the individual caring for A. T. H. is actually his great-aunt.

       (Punctuation omitted.) In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991).

        In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).

       See In the Interest of R. M., 232 Ga. App. 727, 728-729 (503 SE2d 635) (1998).

       See, e.g., In the Interest of J. L. T., 241 Ga. App. 464, 470-471 (524 SE2d 740) (1999).

       See In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987); In the Interest of R. M., supra at 728-729.

        In the Interest of L. S. D., 243 Ga. App. 626, 628 (534 SE2d 109) (2000).

       (Punctuation omitted.) Id.

       See id. (noting that mother “would not be able to care for the children [during their minority], as her probation forbade her from having unsupervised contact with them”).

       This section was formerly OCGA § 15-11-33, but was redesignated by Ga. L. 2000, p. 20, § 1.

       See also In the Interest of M. L. P., 236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999). Although this statute may not authorize a court to consider hearsay in making factual findings regarding the threshold issue of deprivation, see In the Interest of J. C., 242 Ga. 737, 740-741 (251 SE2d 299) (1978); In the Interest of D. S., 212 Ga. App. 203, 204 (441 SE2d 412) (1994), overruled in part on other grounds, In the Interest of J P, 267 Ga. 492 (480 SE2d 8) (1997), it certainly authorizes a court to receive written reports in termination hearings and to consider such reports to the extent of their probative value. See Powell v. Dept. of Human Resources, 147 Ga. App. 251, 253-254 (4) (248 SE2d 533) (1978).

       See Enchanted, Valley RV Park Resort v. Weese, 241 Ga. App. 415, 422 (3) (526 SE2d 124) (1999).

       See In the Interest of M. L. P., supra at 511 (2).


text:
    A00A2338.
    MAGUEUR v. DEPARTMENT OF TRANSPORTATION.
    (547 SE2d 304)
   Ruffin, Judge.

While driving on County Road 92 in Decatur County, Shirley Magueur was allegedly injured when she lost control of her car on a 90-degree curve in the roadway. Although the road was owned, built, and maintained by the county, Magueur sued the State Department of Transportation (DOT), alleging that it negligently approved the road’s design. The trial court granted the DOT’s motion to dismiss, holding that it “had no duty to plan, design, improve, manage, control, construct or maintain County Road #92.” We agree that dismissal was proper, but for a different reason, and so affirm the trial court’s ruling.

In considering a motion to dismiss for failure to state a claim, “all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.”* The motion should be granted only if

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

In her complaint, Magueur contends that the roadway was improperly designed and maintained in that (1) there were no signs or other warning devices alerting drivers to the impending 90-degree turn, and (2) there were no guardrails or barricades at the curve. Although DOT did not design the roadway and was not responsible for its maintenance, Magueur asserts that it can be held liable for negligence because it had a contract with the county to provide funds for the road’s construction. In connection with this contract, DOT allegedly reviewed and approved the construction plans and inspected the site upon completion before releasing the funds. Magueur contends that such review and approval subjected DOT to liability under § 324A of the Restatement (Second) of Torts, which provides that

[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Magueur claims that DOT “undertook the duty to use due care when it required that the plans for the construction be submitted to the DOT for approval.” She argues that DOT can be held liable for breaching this alleged duty because it failed to alert the county to defects in the construction plans.

In its motion to dismiss, DOT contended the county had sole responsibility for designing, building, and maintaining County Road 92. In addition, DOT asserted that it was entitled to sovereign immunity pursuant to OCGA § 50-21-24 (8), which provides that the state shall have no liability for losses resulting from

[inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.

The trial court granted the motion to dismiss on grounds that DOT had no duty to design, build, or maintain the road, and thus did not address DOT’s sovereign immunity defense. Because a judgment that is right for any reason must be affirmed, we first consider DOT’s sovereign immunity argument.

In determining whether OCGA § 50-21-24 (8) applies, the threshold question is whether this case involves an “inspection power or function,” as that phrase is used in the statute. Although the statute does not define this phrase, it does offer an illustration, stating that the phrase includes an inspection to determine whether property “complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.” In the present case, the basis of Magueur’s claim is that DOT violated a duty to notify the county that the road, as designed and as constructed, contained safety hazards. Even assuming that DOT had such a duty, however, the duty involved an “inspection power or function” within the meaning of the statute. Contrary to Magueur’s assertion, we see no principled distinction between an inspection of physical property to determine whether it complies with accepted safety standards and an inspection of construction plans to determine whether the property, once constructed, will comply with such standards.

Magueur asserts, without any citation to authority, that the statute applies only to “inspection powers and functions” imposed by the legislature and includes no inspection duty voluntarily assumed by the state pursuant to a contractual relationship. We do not agree that the statute should be so limited. Under the Tort Claims Act, the state waives its sovereign immunity for the torts of state officers and employees “acting within the scope of their official duties or employment.” OCGA § 50-21-24 (8) operates as an exception to this waiver and must be understood in that context. Thus, the phrase “inspection powers and functions,” as used in that statute, refers to those inspection powers and functions undertaken by state officials in the performance of their official duties or employment. Such action comes within the scope of the exception, notwithstanding the source of the alleged duty to inspect.

Decided March 13, 2001.

Robert M. Beauchamp, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Allyson G. Krause, Jennifer D. Roorback, Assistant Attorneys General, for appellee.

Because the duty allegedly breached by DOT — i.e., a duty to inspect the construction plans and/or the property and to advise the county of any safety hazards — falls within OCGA § 50-21-24 (8), DOT is entitled to sovereign immunity. Accordingly, the trial court did not err in granting DOT’s motion to dismiss.

Judgment affirmed.

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

        Jones v. Bowen, 244 Ga. App. 300, 303 (535 SE2d 501) (2000).

       Id.

       (Punctuation omitted.) Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980) (adopting theory of liability set forth in § 324A).

       See Johnson v. Equicredit Corp., 238 Ga. App. 380, 381 (1) (517 SE2d 353) (1999).

       OCGA § 50-21-24 (8).

       Although the complaint itself is rather ambiguous, Magueur’s attorney clarified the alleged theory of liability at the hearing on the motion to dismiss, describing it as follows:
      [T]he funding that was used to build this county road was funding made available to the county by the State. The County takes a set of plans to the State and says, we’re going over here and making some improvements on certain roads, and the State looks at it and says, you’ve got to submit a plan for us to review to see if we’re going to fund this. The State looks at those plans and then says, okay, we will approve it. Then before they ever take a draw-down or give the County the money, they send an inspector out to make sure that the plan as executed met the State’s DOT standards. . . . [A]nd our position is good engineering practice when you oversee this or approve a set of plans like that, and you see that it’s got that obvious defect in it[, i.e., lack of warning signs or other safety devices], then they should have warned the County that, you know, this isn’t something you ought to go implement, you need the proper signage.

       OCGA § 50-21-23 (a).

       Magueur does not dispute that DOT officials acted in the performance of their official duties or employment in this case; indeed, the state would have no possible liability otherwise. See OCGA § 50-21-23 (a) (“The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment”).


author: Johnson, Presiding Judge.

text:
    A01A0025.
    ALDREDGE et al. v. SYMBAS.
    (547 SE2d 295)
   Johnson, Presiding Judge.

While working at an off-duty security job, Atlanta police sergeant Jerald Aldredge heard a police radio transmission that individuals had just abandoned a stolen car at a nearby intersection. He was asked to abandon his off-duty job and help retrieve the stolen automobile. While en route, Aldredge saw a car run a red light and began following the car. The car drove into the front yard of Philip and Helen Shayne’s home, and the driver jumped out and began to run.

The driver ran through the Shaynes’ yard and onto the neighboring property owned by Nicholas Symbas, where he disappeared into a row of bushes and ivy. Aldredge abandoned his motorcycle and began running after the driver. When Aldredge approached the bushes, he stopped, allowed his eyes to adjust to the dark, drew his weapon, and proceeded into the dimly lit wooded area between the Shaynes’ property and Symbas’ property. Although Aldredge concedes he could not see into the brush, he took one or two steps into the dark and fell into a seven-foot drainage ditch. Aldredge fractured his left wrist and his pelvis in the fall.

Aldredge and his wife sued the Shaynes and Symbas. Symbas moved for summary judgment, which the. trial court granted. The Aldredges appeal from that order. In their appeal, the Aldredges list nine enumerations of error, all of which argue that the trial court erred in granting summary judgment to Symbas. We address the enumerations of error together and find that summary judgment was proper.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The moving party may carry this burden either by (1) presenting evidence negating an essential element of the nonmoving party’s claim; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party’s claim. If the moving party discharges this burden, the nonmoving party cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

The claim against Symbas relies on establishing liability between Symbas as a landowner and Aldredge as a person injured on the land. However, ownership alone is not sufficient to establish the liability of a landowner; the court must determine the parties’ relation to each other to determine any duty owed. Contrary to the Aldredges’ argument, Symbas has never conceded that Aldredge was an invitee, and Georgia courts have established that a police officer acting in the course of his official duties is a licensee by law. The basis for classifying police officers as licensees is that “policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in looking after the premises, and in preparation for the visit, cannot reasonably be looked for.” Thus, Aldredge’s legal status on the premisés was that of a licensee.

The standard for determining what duty an owner has to a licensee varies depending on the type of condition on the land. The Aldredges contend that the drainage ditch constitutes a mantrap or pitfall. If the condition constitutes a mantrap or pitfall, a landowner must refrain from wantonly and recklessly exposing a licensee to hidden perils. This standard has been defined as follows:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved. . . .

We need not decide whether Symbas is subject to liability under this standard, however, because the Aldredges have failed to point to any evidence showing that the drainage ditch or surrounding foliage constitutes a mantrap or pitfall.

“The doctrine of mantrap or pitfall rest[s] upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to cause him injury.” Examples of mantraps or pitfalls include spring guns, traps deliberately set to do injury, or other perils which have been hidden by an owner intending to inflict injury. If a peril is not so close to a traveled path to pose a danger to those accidentally stepping off that path, it is not a mantrap.*

In the present case, the record is devoid of any evidence showing that Symbas constructed, controlled, or maintained the drainage ditch and surrounding area with the intent of harming trespassers or licensees. In fact, the record shows that although the drainage ditch is located on Symbas’ property, it is subject to an easement granted in favor of the City of Atlanta by Symbas’ predecessors in title. The easement gives the City of Atlanta the “right to construct and maintain over and upon my/our land abutting on and adjacent to Wesley Drive, any required drainage structures, or ditch within the easement area.” Thus, the City of Atlanta actually constructed and maintains the drainage ditch. And, while the foliage and wooded area surrounding the drainage ditch were planted by Symbas, presumably to obscure the view of the drainage ditch, there is no evidence that it was planted with any intent to injure or with any conscious indifference as to infer an intent to injure. The evidence further shows that the drainage ditch and foliage are located 35 feet from the street and 25 feet from the edge of the public sidewalk.

The location of the shrubbery near the drainage ditch is not a mantrap or pitfall, but a static condition on Symbas’ land. The duty an owner has to a licensee regarding a static or passive condition on his property is only for wilful or wanton, injury. This is true even where the presence of a licensee is actually known. We agree with the trial court that the planting of shrubbery beside a drainage ditch does not evidence the requisite level of intent for wilfulness or wantonness. It is not reasonable to contend that Symbas should have foreseen that an officer would chase an alleged criminal far from the city street and sidewalk, at night, into foliage located on his property and then into the drainage ditch.

The Aldredges contend that Symbas had a duty to keep his property safe for licensees by restricting access to the ditch, lighting the area surrounding the ditch, or erecting a barrier or fence around the ditch. Once again, as to a licensee, “no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character,” which we have already determined were not present on Symbas’ property.

So long as it is not so close to the traveled way as to constitute a peril to those who may accidentally step aside from the traveled way, a party may excavate upon his land or have holes thereon and this right is not subject to abridgement by parties happening to go out of their way and receiving injuries.

Symbas did not owe a duty to Aldredge to inspect the property or to prepare a safe place for his reception.

In the present case, the record contains nothing but unsubstantiated allegations that Symbas acted wilfully or wantonly toward Aldredge. The passive and static condition of the foliage surrounding the drainage ditch fails to evince wilful or wanton conduct, especially since Aldredge was not obliged or induced to step into it by any act of Symbas. Although Aldredge did not see the drainage ditch prior to his fall, he testified that if it had been daylight, there was a good possibility that he might have seen it. In fact, the drainage ditch rims visibly under Wesley Drive, and there is no walking path anywhere near the ditch. Because no evidence was introduced of wilful or wanton conduct, the trial court correctly granted Symbas’ motion for summary judgment.

Decided March 13, 2001

Ted Marcus, Timothy I. McEwing, E Renee Rockwell, for appellants.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Joan G. Crumpler, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Parks v. Multimedia Technologies, 239 Ga. App. 282, 286 (2) (520 SE2d 517) (1999).

       Id.

       Id. at 286-287.

       See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512-513 (317 SE2d 853) (1984).

       See Martin v. Gaither, 219 Ga. App. 646, 651 (466 SE2d 621) (1995); Powell v. Watson, 176 Ga. App. 559 (337 SE2d 403) (1985).

       (Citations and punctuation omitted.) London Iron &c. Co. v. Abney, 245 Ga. 759, 760 (1) (267 SE2d 214) (1980).

       Id. at 761 (2).

       (Citation and punctuation omitted.) Id.

       (Citations and punctuation omitted.) Hawkins v. Brown, 228 Ga. App. 311, 313 (2) (491 SE2d 423) (1997); Crosby v. Savannah Elec. & Power Co., 114 Ga. App. 193, 198 (150 SE2d 563) (1966).

        Hawkins, supra; Crosby, supra at 198-201.

        Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 799 (1) (a) (522 SE2d 739) (1999).

       OCGA § 51-3-2 (b).

        Hawkins, supra at 312.

         See Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392-393 (4) (394 SE2d 345) (1990).

       (Citation and punctuation omitted.) Hawkins, supra at 313.

       Id. at 313-314; see also Moore-Sapp Investors, supra at 800.

        Crosby, supra at 202.

        Hawkins, supra at 314.

       Compare Wilbanks v. Echols, 209 Ga. App. 210 (433 SE2d 134) (1993) (physical precedent only) (firefighter fell into 18-foot pit used to dispose of building debris; we found a question of fact regarding whether the owner negligently placed the pit on or near the public right-of-way).


author: Ellington, Judge.

text:
    A00A2325.
    THE STATE v. DYMOND.
    (546 SE2d 69)
   Ellington, Judge.

The trial court granted Julie Anne Dymond’s motion to suppress, and, subsequently, under OCGA § 17-7-170 (b), it also granted Dymond’s motion for discharge and acquittal of her pending DUI charge. In so doing, the trial court found that the State failed to timely try the case in compliance with Dymond’s demand for a speedy trial. In this appeal, the State contests the rulings on both motions. Because the trial court misconstrued and overlooked the applicable law, we reverse.

The underlying case arose from a single misdemeanor DUI charge against Dymond. The evidence shows that at 1:30 a.m. on July 8, 1999, DeKalb County law enforcement officers stopped Dymond at a traffic checkpoint and, ultimately, cited her for DUI. The State filed a single-count accusation on September 22, 1999, charging Dymond under OCGA § 40-6-391 (a) (1) with driving under the influence of alcohol to the extent it was less safe for her to drive. On October 5, 1999, Dymond filed a motion to suppress, contending that the roadblock was unlawful and that all evidence obtained therefrom should be suppressed. Dymond argued that the traffic stop was pretextual, arbitrary, unreasonable, and violative of her federal and state constitutional rights to due process and equal protection. Asserting that an illegal search and seizure had occurred, Dymond sought the exclusion of all evidence. See OCGA § 17-5-30. Two months later, on December 7, 1999, Dymond filed a speedy trial demand.

On March 27, 2000, before the start of the scheduled trial, the court considered Dymond’s motion to suppress. To attempt to satisfy its burden of establishing the propriety of the roadblock at issue, the State offered the testimony of Sergeant Mester. Mester, a unit supervisor of the Strategic Traffic Accident Reduction (“STAR”) team testified that the placement of the roadblock or safety checkpoint had been his decision, executed at all times under the direct supervision of his superior, Lieutenant Mosley, the on-duty watch commander. Mester testified that between midnight and approximately 3:18 a.m., he and other members of his STAR team stopped every vehicle traveling in one direction on Chamblee Tucker Road, including taxis and MARTA buses. Mester explained that he lacked sufficient manpower to stop all traffic in both directions. The checkpoint was delineated by police vehicles using flashing blue lights, large green reflective signs advising “safety check ahead,” and orange traffic cones. In addition, uncontradicted testimony indicated that the selection of the site was based on the occurrence of prior accidents and DUI arrests in that area.

According to Mester, the purpose of the safety checkpoint was “to identify impaired drivers and to get them off the road if they are impaired.” Mester testified that the members of the STAR team had completed special training in the detection of impaired drivers. He noted that the officers also verified that drivers had valid driver’s licenses and that most checks lasted less than 30 seconds. Mester testified that Lt. Mosley, the precinct commander, not only had been present during the operation but also had participated in it. During the three-hour period, the STAR team arrested Dymond and three other drivers for DUI. No one was arrested on any charge other than DUI.

In contesting the legality of the procedure, Dymond contended that since the roadblock was a sobriety checkpoint, the State had to prove the effectiveness of the roadblock in deterring drunk driving through the collection and maintenance of statistics. Dymond also argued that the roadblock was unlawful because the STAR team did not comply with certain written protocol in DeKalb County’s employee handbook for traffic law enforcement. Section (h) of the handbook provides:

(1) A [DUI] roadblock will only be used when a specific need or public concern can be documented. For instance, a D.U.I. roadblock could only be established at locations which can be shown to have a higher than normal incidence of D.U.I. arrests or a higher D.U.I. accident rate. (2) Precinct Commanders authorizing roadblocks for the purpose of D.U.I. enforcement will document the need and supporting data for a roadblock at a specific location. Subsequent enforcement data (i.e., number of arrests, tickets) will be maintained and stored with the authorization at the precinct. This information will be maintained for a period of one year.

Mester, however, identified the handbook at issue as an employee manual and testified that it did not set forth “our standard operating procedure.” No testimony showed otherwise.

Dymond asserted that the State failed to offer statistical or empirical data to prove the legality of the roadblock. When Mester was asked on cross-examination, “[a]nd in choosing this location, isn’t it true that you did not use any type of known statistics for this area being a particularly problematic area for DUI drivers,” Mester conceded he did not have specific numbers. Later, when asked if he had selected the site, “without the availability to you of any statistics about DUI arrests and accidents at that location,” Mester responded, “I — like I said, I didn’t have statistics, but I know there was [sic] lots of wrecks in that area and DUI arrests.”

In granting Dymond’s motion to suppress, the trial court relied upon guidelines appearing in the employee handbook. The trial court decided: “[s]ince there were guidelines in place for the roadblock for purposes of checking for DUI drivers and those guidelines were not met, this Court concludes that the roadblock was not reasonable under the circumstances in this case.” The trial court also found the roadblock violated the Georgia Constitution.

1. The State contends that the trial court erred in granting Dymond’s motion to suppress by incorrectly relying upon nonbinding provisions in a county employee handbook instead of following the applicable law of this State. We agree.

When reviewing a ruling on a motion to suppress, if the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we do not defer to the trial court’s legal analysis or its application of law to undisputed facts. State v. Stearns, 240 Ga. App. 806, 807 (524 SE2d 554) (1999). Rulings involving solely legal issues are reviewed de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

In examining the propriety of roadblock stops, the issue is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was “otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was ‘reasonable’ under the Fourth Amendment. [Cits.]” LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367) (1998). When there is evidence of unfettered discretion by field troopers, a showing that the roadblock was arbitrary or oppressive to motorists or indications that field officers created an arbitrary scheme to single out a motorist, routine traffic checks may fail to pass constitutional muster. Id. at 253 (3).

On the other hand,

[a] roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the screening officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation omitted.) Brent v. State, 270 Ga. 160, 161-162 (2) (510 SE2d 14) (1998). Since the roadblock at issue in this case comported with the five-factor test adopted in LaFontaine and Brent, the detention and subsequent arrest of Dymond were not unconstitutional. Brent v. State, 270 Ga. at 162 (2).

The trial court, however, implemented a different legal standard forjudging the legality of roadblocks. In finding the roadblock unlawful, the trial court scrutinized it under the provisions of an employee handbook. But Dymond cites no authority and we know of none which requires consideration of that handbook in deciding the propriety of the roadblock. The trial court’s ruling was error.

2. The State contends that the trial court erred in granting Dymond’s motion for discharge and acquittal because the trial court granted Dymond’s motion to suppress and the State had a statutory right to appeal the ruling.

A defendant who has made a proper demand for a trial is entitled to an automatic discharge without further motion if he is not tried on the second term of court, provided that a jury is present at each term and is qualified to try him. Parker v. State, 135 Ga. App. 620, 621 (3) (218 SE2d 324) (1975). However, a defendant may waive his right to automatic discharge and acquittal by some action on his part or on the part of his counsel. Id. at 621 (4). “Any affirmative action” by a defendant which results in a continuance of the case or a failure to try it within the time fixed by statute after the filing of a speedy trial demand under OCGA § 17-7-170 has the effect of tolling the time. Letbedder v. State, 129 Ga. App. 196, 197, n. 1 (199 SE2d 270) (1973).

In State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984), this Court held:

Thus, by taking “affirmative action” on the issue of admissibility of certain evidence against him, a defendant who files a motion to suppress must be deemed to invoke the entire procedure applicable to that issue including the State’s right to a direct appeal if the motion should be granted. In other words, by filing a motion to suppress, a defendant effectively consents to a delay of his trial pending final resolution of the issue of evidentiary admissibility, if the motion is granted and the State elects to have that appellate determination made.

See also State v. Smalley, 138 Ga. App. 747 (1) (227 SE2d 488) (1976) (OCGA § 5-7-2 authorizes the State to file a direct appeal from the grant of a motion to suppress).

Dymond’s speedy trial demand was filed during the October 1999 term of court, and the call of the case to trial was timely. Under OCGA § 17-7-170, a trial should have begun no later than March 31, 2000. But, on March 27, 2000, the trial court orally granted Dymond’s motion to suppress. Although a written order to that effect was not entered until April 14, two weeks beyond the end of the term, by filing the motion, Dymond consented to a delay of her trial pending final resolution of the admissibility issue, including the period needed to complete the appellate process. See State v. Waters, 170 Ga. App. at 508 (3); see also Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994). Clearly, Dymond would have been tried in compliance with her demand for a speedy trial but for her own action of filing a motion to suppress, the grant of which triggered the ensuing delay. See Letbedder v. State, 129 Ga. App. at 197 (1); see also Jackson v. State, 172 Ga. App. 359, 360 (1) (323 SE2d 198) (1984).

Citing Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994), Dymond argues that since the order granting her motion to suppress was filed outside the expiration of the second term of court, she was entitled as a matter of law to discharge and acquittal. See Ringo v. State, 219 Ga. App. 753, 754 (466 SE2d 660) (1996) (motion hearing argued after second term of court), overruled in part, Price v. State, 245 Ga. App. 128, 134 (2) (b) (535 SE2d 766) (2000). But Ballew neither authorizes nor requires that result. In Ballew, unlike here, the trial court denied the motion to suppress, and no tolling of the time requirements of OCGA § 17-7-170 occurred. Id. at 673. Therefore, the State’s failure to timely try Ballew was not attributable to a grant of a motion to suppress and the ensuing time for appeal.

We reject Dymond’s argument that the State must be held responsible for the delay by the trial court in entering its order. After the trial court made an oral pronouncement that the roadblock was unlawful, both defense counsel and the State sought clarification of the legal basis of the court’s ruling, and the prosecutor voiced the State’s intent to appeal. The prosecutor asked, “[m]ay I ask the Court to place on the record how this stop violated [OCGA §] 17-5-30 [?]” The trial court complied, noting “any evidence obtained as a result of the roadblock would by its very nature be improperly seized.” Then, this colloquy occurred:

DEFENSE COUNSEL: Does the Court want either of us to draft that or do you want to have your staff draft it? How do you want to proceed on that?
PROSECUTOR: I’d prefer the Court do it. I don’t think that we will ever agree with it if you leave it to us.
THE COURT: What the Court will do is just ask the court reporter to transcribe the court’s pronouncement and prepare the order from that.

The prosecutor then inquired, “[y]our Honor, the case is continued pending appeal?” The trial court responded affirmatively. The proceeding concluded with the trial court stating,

[t]he Court will make a concerted effort to have the order — there’s one other order in another case that the Court needs to prepare for the State’s announcement of its intention to appeal. So the Court will place that as well as this on its priority list for completion by the end of this week.

Although the week ended on Friday, March 31, the order was not entered until April 14, 2000. The State filed its notice of appeal on May 10, 2000. On June 30, 2000, the trial court granted Dymond’s motion for discharge and acquittal under OCGA § 17-7-170. In its order, the trial court noted:

At the end of the hearing on Defendant’s Motion to Suppress, the Court granted the motion. When Defense counsel volunteered to prepare the written order of the Court’s ruling, the State’s attorney objected and requested that the Court prepare the Order and asked that the case be continued for ten days pending the State’s filing of the Notice of Appeal. The Order was prepared and filed by the Court on April 14, 2000. The State filed its Notice of Appeal on May 10, 2000.

Decided February 28, 2001

Reconsideration denied March 14,2001

Gwendolyn R. Keyes, Solicitor, Lawrence A. Silverman, Thomas E. Csider, Assistant Solicitors, for appellant.

William C. Head, for appellee.

In granting Dymond’s motion for discharge and acquittal, the trial court observed, “[i]t is evident that any delay that occurred in this case was not the fault of Defendant.” But consideration of fault or blame begs the question of whether OCGA § 17-7-170 was tolled by Dymond’s filing of a motion to suppress and the trial court’s unequivocal oral pronouncement that the motion was granted. By filing the motion to suppress which elicited the favorable ruling, Dymond invoked the “entire procedure applicable to that issue including the State’s right to a direct appeal.” State v. Waters, 170 Ga. App. at 508 (3). The trial court erred in granting Dymond’s motion for discharge and acquittal.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       It appears that the prosecutor was merely seeking clarification that the case was, in effect, halted pending the resolution of the State’s appeal. See Fletcher v. State, 213 Ga. App. at 403 (1) (demand statute applies to “ ‘outright dereliction by the State in failing to provide a speedy trial where one could have been had’ ”).


author: Blackburn, Chief Judge.

text:
    A01A0137.
    OUTLAW v. THE STATE.
    (546 SE2d 327)
   Blackburn, Chief Judge.

Following a bench trial, Billy Outlaw appeals his conviction for driving under the influence of alcohol, alleging that the trial court erred by denying his motion in limine in which he sought to exclude the results of the alco-sensor test given to him by the arresting officer, contending that the State could not impeach its own witness.

Officer Ken Eubanks had erroneously testified that he read Outlaw the implied consent warning for commercial motor vehicle driver suspects contained in OCGA § 40-5-67.1 (b) (3). Outlaw, who had a commercial driver’s license, was driving a noncommercial vehicle at the time of the incident. It was Eubanks’ custom to read the implied consent warning for commercial drivers under such circumstances, even though that is clearly contrary to the requirements of OCGA § 40-5-67.1.

After all evidence had been submitted to the court by the parties at the motion in limine hearing, the State moved to reopen the evidence. The State had reviewed the videotape of the stop, and it established that Eubanks had, in fact, read the correct implied consent warning required by law, notwithstanding his intention to read the wrong implied consent warning.

The court allowed the State to reopen the hearing and, at the conclusion, denied Outlaw’s objection to the evidence submitted, contending that the State should not be allowed to impeach its own witness. For the reasons that follow, we affirm.

On appeal from the denial of a motion in limine,

an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing. However, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

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

At the hearing on the motion in limine, Officer Eubanks testified that he stopped Outlaw’s vehicle because he had been weaving in and out of the traffic lines on the interstate for about a mile. Outlaw smelled of alcohol, had red, watery eyes, and admitted to having drunk two beers. After performing some field sobriety tests and concluding that Outlaw was intoxicated, Eubanks arrested Outlaw.

Unbeknownst to Eubanks, he erroneously testified that he then read Outlaw the implied consent warning in OCGA § 40-5-67.1 (b) (3), which is applicable to “commercial motor vehicle driver suspects,” informing him that Georgia law requires that he submit to a State-administered chemical test, having thought he had done so. Outlaw, who had a South Carolina commercial driver’s license, initially refused to take the test, but later changed his mind at the police station.

In a supplemental brief in support of the motion in limine, Outlaw argued that the results of the alco-sensor test should be excluded from trial because, although he carried a commercial driver’s license, he was not operating a commercial vehicle at the time he was stopped. Outlaw insisted that Eubanks should have instead read him the implied consent warning in OCGA § 40-5-67.1 (b) (2), which is applicable to all “suspects age 21 or over.”

Before the trial court ruled on the motion, the State, conceding that the warning in OCGA § 40-5-67.1 (b) (3) applies only to a person that is actually driving a commercial vehicle regardless of the type of license they possess, filed a motion to reopen the evidence, requesting that it be allowed to tender a videotape of the traffic stop. The State argued that the video would demonstrate that Eubanks gave incorrect testimony at the hearing and that he actually gave Outlaw the correct warning, which is contained in OCGA § 40-5-67.1 (b) (2). The State asserted that Eubanks would testify that it was his practice, albeit incorrect, to read the warning in OCGA § 40-5-67.1 (b) (3) to all drivers with commercial licenses. Essentially, Eubanks “mistakenly” read Outlaw the correct warning. Following a second hearing, the trial court denied the motion in limine.

On appeal, Outlaw argues that, by reopening the evidence, the trial court violated the rule against impeaching one’s own witness. The rule states that, “[a] party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.” OCGA § 24-9-81. Although our Supreme Court “has removed the requirements of surprise and prejudice from the element of entrapment in the statute, the statute’s plain language still requires as a threshold matter a showing that the witness made a statement inconsistent with the witness’s testimony.” (Citations omitted.) Jones v. State Also, the Supreme Court has previously noted that “the rationales underlying extraordinary circumstances before allowing one to impeach his own witnesses were no longer valid and that no good reason for the rule existed any longer.” Davis v. State.

In Davis, the Court stated that
[i]f, at the time of the questioning, a party has knowledge of a prior statement by one of his witnesses which contradicts testimony that witness has just given, that party has been sufficiently entrapped so that he may impeach his witness by use of the prior inconsistent statement.

Davis, supra at 314. Outlaw asserts that, under Davis, the State had to know “at the time of questioning” that the witness made a prior inconsistent statement. We disagree.

The statement in Davis, read in context, is not the exclusive method of entrapment. For example, in Mitchell v. State the witness, on direct examination, contradicted a previous statement, but the State did not realize that the witness had done so until the witness had been excused. The State then recalled the witness and used the previous statement to impeach him. Our Supreme Court, having found no violation of Davis, upheld the trial court’s decision to allow the State to recall the witness. Mitchell, supra.

Decided February 22, 2001

Reconsideration denied March 14,2001

Grayson P. Lane, Newell M. Hamilton, Jr., for appellant.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., George C. Turner, Jr., Assistant District Attorneys, for appellee.

Here, too, we find no violation of the prohibition against impeaching one’s own witness. Indeed, the requirement that the witness make a statement inconsistent with the witness’s testimony, see Jones v. State, supra, is met because Eubanks read the warning for all drivers over 21, which was inconsistent with his testimony that he read the warning for drivers of commercial vehicles.

Judgment affirmed.

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

        State v. Burks, 240 Ga. App. 425 (523 SE2d 648) (1999).

        Jones v. State, 270 Ga. 25, 27 (3) (505 SE2d 749) (1998).

        Davis v. State, 249 Ga. 309, 313 (3) (290 SE2d 273) (1982).

        Mitchell v. State, 254 Ga. 353, 354 (2) (329 SE2d 481) (1985).


text:
    A01A0385.
    BAUGH-CARROLL v. HOSPITAL AUTHORITY OF RANDOLPH COUNTY.
    (545 SE2d 690)
   Blackburn, Chief Judge.

We granted this discretionary appeal to review whether the superior court erred by reversing a workers’ compensation award. At issue is whether the superior court failed to defer to an explicit factual finding that the employer/self-insurer had waived a possible defense to its former employee’s claim for disability income benefits. After review, we find that the employer/self-insurer waived any defense that could otherwise have been asserted under OCGA § 34-9-104, and, therefore, we reverse.

Felicia Baugh-Carroll was employed by the Hospital Authority of Randolph County d/b/a Joe-Anne Burgin Nursing Home from 1987 until 1998. In 1992, she sustained a compensable injury to her right knee, underwent arthroscopic surgery, and obtained temporary total disability benefits from January 29, 1992, through March 21, 1992. Baugh-Carroll, a nurse’s aide, went back to the nursing home to do a light-duty assignment, which was largely sedentary. She remained under the care of an orthopedic surgeon who performed a second right knee arthroscopic procedure in June 1997. Baugh-Carroll returned to an approved light-duty position on July 14,1997, and did not receive temporary total disability benefits after that date. In March 1998, for personal reasons, she resigned from the nursing home and relocated to Florida.

In September 1998, Baugh-Carroll began working for a mental hospital in Florida as an observer of patients, again doing primarily sedentary tasks. After being employed at the mental hospital for about ten months, she resigned, claiming that she could no longer work due to “unbearable pain” in both knees. Subsequently, BaughCarroll sought workers’ compensation benefits from the Hospital Authority of Randolph County (“Hospital Authority’ or “employer/ self-insurer”).

In awarding benefits, the administrative law judge (“ALJ”) found that Baugh-Carroll’s medical records documented that she had begun experiencing problems with her left knee in 1996 while still working at the nursing home. While recognizing the conflicting notations entered in certain medical reports, the ALJ determined that the “problems with her left knee were at least aggravated, if not caused, by her original on-the-job accident and injury.” Deciding that the evidence showed a causal relationship between the original injury to her right knee and her later problems with her left knee, the ALJ found Baugh-Carroll had sustained “a superadded injury as a result of her on-the-job accident and injury of January 29, 1992.” The ALJ further found that Baugh-Carroll was totally disabled from working since April 26, 1999, when she resigned from her employment at the mental hospital in Florida. The ALJ expressly noted that in defending the claim, the employer/self-insurer had failed to assert the appropriate statute of limitation. The ALJ found:

The only statute of limitations defense was one raised by [her] employer in their brief that the statute of limitations in OCGA § 34-9-82 barred Ms. Baugh-Carroll’s claim for disability benefits as she did not file a claim in a year of resigning her duties March 31, 1998. However, this is not the applicable statute as Ms. Baugh-Carroll has undergone a change in condition. Further, Ms. Baugh-Carroll was not disabled as a result of this injury until April 26, 1999.

The ALJ decided that Baugh-Carroll was entitled to disability benefits from April 26, 1999, and continuing and also to medical treatment for her left knee. The ALJ found, however, that Baugh-Carroll was not entitled to temporary total disability benefits from March 30, 1998, to September 23, 1998, because she had been capable of performing the light-duty job offered to her by the nursing home.

The Hospital Authority appealed to the State Board of Workers’ Compensation (“Board”). In conducting its review, the Board noted that only two errors were being asserted: “(1) the employee’s left knee is a super-added injury, and (2) the provision of medical treatment by the employer/self-insurer for the employee’s left knee injury.” Finding a preponderance of competent and credible evidence in the record to support the award, the appellate division adopted it. An amended attorney fee approval was also incorporated into that award.

The Hospital Authority appealed to the superior court, which upheld the part of the award relating to medical benefits for BaughCarroll’s left knee but vacated the portions that awarded temporary total disability benefits. In reversing part of the award, the superior court noted that Baugh-Carroll’s “superadded injury” constituted a change in condition and that as such the “claim for reinstatement of temporary total disability benefits is, therefore, precluded by OCGA § 34-9-104 (b).” Although the ALJ had entered a finding that “BaughCarroll began making complaints with respect to her left knee in 1996,” the superior court decided that “the first indication of the left knee problem did not manifest until more than two years after the last payment of indemnity benefits.” The superior court concluded that Baugh-Carroll’s claim for temporary total disability benefits was untimely since more than two years had elapsed since July 14, 1997, the date of the last payment of benefits by the Hospital Authority and the filing of the claim on July 28, 1999.

1. Baugh-Carroll contests the reversal of the award of temporary total disability benefits, contending that the employer/self-insurer waived its right to assert the two-year statute of limitation defense by first raising that defense in its appeal before the superior court. We agree. When reviewing a workers’ compensation award, the superior court is authorized only to affirm, reverse, or under certain circumstances, to remand to the Board for further proceedings. Willis v. Holloway. See OCGA § 34-9-105 (c). When a finding of fact made by the full Board is supported by any evidence, it is conclusive and binding upon the superior court. Wesleyan College v. Mains Issues not raised at the Board level cannot be considered by the superior court. Craig v. Red Lobster Restaurant

The threshold issue is a factual question — whether the Hospital Authority timely raised the applicable statute of limitation defense to the claim. The bar of the statute of limitation is a privilege to the defendant, the benefit of which it may elect to take advantage of or to waive as it pleases. Davis v. Betsill. A defendant may not avail itself of an affirmative defense which it failed to present. Id. In a workers’ compensation case, unless asserted no later than the first hearing, an employer or its insurer waives a statute of limitation defense. St. Paul Mercury Indem. Co. v. Oakley. See Maryland Cas. Co. v. Smith

Here, the Hospital Authority relied solely upon the one-year statute of limitation defense set forth in OCGA § 34-9-82 (a) which, with certain exceptions, bars claims not filed by an employee within one year after injury. On the other hand, OCGA § 34-9-104 (b) generally precludes untimely claims for temporary disability benefits predicated upon a change in condition when such claims are not filed within two years after the last receipt of disability income benefits. See Ga.-Pacific Corp. v. Arline. While the one-year limitation period in OCGA § 34-9-82 applies to “all issues” cases, an altogether different statutory framework set forth in OCGA § 34-9-104 governs change in condition cases where disability payments were previously made. See Watson v. Universal Ceramics, The provisions of the “all issues” statute of limitation contained in OCGA § 34-9-82 do not apply to “change in condition” actions filed subsequent to the payment of disability benefits. Old Colony Ins. Co. v. Bennett. See Automatic Sprinkler Corp. v. Rucker. Thus, when a previous award has been made which awarded income benefits, as here, the case is not an “all issues” case within the ambit of OCGA § 34-9-82. See Wier v. Skyline Messenger Svc. See also Kissiah, Ga. Workers’ Compensation Law (1997), §§ 9-4 through 9-6 (d), pp. 312-339.

The record unambiguously shows that the Hospital Authority failed to assert a defense under OCGA § 34-9-104, in its brief directed to the ALJ or in its appellate brief addressed to the Board. Nor did the Hospital Authority challenge the timeliness of the claim as one of the two issues it raised before the Board. Instead, the Hospital Authority repeatedly asserted that the claim was barred by the one-year limit in OCGA § 34-9-82 because more than a year had passed from the date of the original compensable injury. No other time limitation provision was argued, cited, or advanced until the Hospital Authority appealed to the superior court. By not asserting this defense in a timely manner, the Hospital Authority waived it. See Davis v. Betsill, supra.

The Hospital Authority now argues that it did not receive sufficient notice that Baugh-Carroll was filing a claim for a change in condition and contends that Baugh-Carroll was limited to the relief sought in the WC-14. At the start of the hearing, however, BaughCarroll’s counsel plainly stated, “[y]our honor, we seek surgery for the left knee, payment of certain medical bills, and there may be some disability issues also.” By not objecting, the Hospital Authority waived any right it would otherwise have had to object to the sufficiency of notice or to the scope of the hearing. See Maddox v. Elbert County Chamber of Commerce.

Decided February 22, 2001

Reconsideration denied March 14, 2001

Vansant, Corriere & McClure, Alfred N. Corriere, for appellant.

Bowles & Bowles, Jesse G. Bowles III, for appellee.

2. Baugh-Carroll contends that the superior court contravened the “any evidence” standard of review when the court vacated the award of disability benefits from April 26, 1999, and continuing, and the attorney fees pertaining thereto. We agree.

An employee sustains a compensable superadded injury when, as a result of a work-related disability to one part of the body, the employee suffers a disabling injury to another part of the body. ITT Continental Baking Co. v. Comes. Such superadded injuries are generally considered compensable because they constitute either a change in the employee’s condition or a new accident. Paideia School v. Geiger. Here, the Board found the left knee problems constituted a change in condition. Because the record contains some evidence to support that finding, under the “any evidence” standard of review, that award and the Board’s affirmance of it must be upheld. See Winn Express Co. v. Hall. Accordingly, the superior court erred by substituting its own finding that Baugh-Carroll’s left knee problems were first manifested on a much later date than determined by the Board. See Guarantee Mut. Ins. Co. v. Wade Investments. Because the evidence supports the factual finding of a change in condition and the law authorizes that finding, the superior court erred in reversing the award. See id.

Judgment reversed.

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

        Willis v. Holloway, 154 Ga. App. 3 (267 SE2d 795) (1980).

        Wesleyan College v. Mains, 207 Ga. App. 562 (428 SE2d 577) (1993).

        Craig v. Red Lobster Restaurant, 214 Ga. App. 829, 830 (449 SE2d 307) (1994).

        Davis v. Betsill, 178 Ga. App. 730, 732 (3) (344 SE2d 525) (1986).

        St. Paul Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 101-102 (35 SE2d 562) (1945).

        Maryland Cas. Co. v. Smith, 122 Ga. App. 262, 263 (1) (176 SE2d 666) (1970).

        Ga.-Pacific Corp. v. Arline, 225 Ga. App. 800, 801 (484 SE2d 678) (1997).

        Watson v. Universal Ceramics, 209 Ga. App. 135, 136 (433 SE2d 104) (1993).

        Old Colony Ins. Co. v. Bennett, 108 Ga. App. 499, 500 (1) (133 SE2d 415) (1963).

        Automatic Sprinkler Corp. v. Rucker, 87 Ga. App. 375, 380 (1) (73 SE2d 609) (1952).

        Wier v. Skyline Messenger Svc., 203 Ga. App. 673, 676 (417 SE2d 693) (1992).

        Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 480 (1) (a) (382 SE2d 150) (1989).

        ITT Continental Baking Co. v. Comes, 165 Ga. App. 598, 599 (1) (302 SE2d 137) (1983).

         Paideia School v. Geiger, 192 Ga. App. 723, 724 (2) (386 SE2d 381) (1989).

        Winn Express Co. v. Hall, 202 Ga. App. 45, 47 (413 SE2d 505) (1991).

        Guarantee Mut. Ins. Co. v. Wade Investments, 232 Ga. App. 328, 330 (499 SE2d 925) (1998).