text:
    A99A0503.
    In the Interest of C. D. P., a child.
    (519 SE2d 37)
   Andrews, Judge.

Vanita Michelle Drumwright and Michael Charles Parker appeal from the judgment of the juvenile court terminating their parental rights to C. D. R, age six at the time of the termination. Their sole contention is that there was insufficient evidence before the court to establish by clear and convincing evidence that their lack of proper parental care and control was likely to continue or would not likely be remedied, as required by OCGA § 15-11-81 (b) (4) (A) (iii).

On appeal, this Court determines only whether, after viewing the evidence in a light most favorable to the lower court’s judgment, any rational trier of fact could have found by clear and convincing evidence that the parents’ rights to custody have been lost. “This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. [Cit.]” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

So viewed, the evidence was that, when C. D. P. was bom in December 1991, he had cocaine in his system due to Drumwright’s drug abuse. He was placed in the custody of the Department of Family & Children Services at that time. Although Parker was involved with Drumwright, had another child with her, and did legitimate C. D. P., he denied at the termination hearing that he was, in fact, the biological father of C. D. P. He had previously attempted to revoke his legitimation of the child.

Drumwright was incarcerated when C. D. P. was six months old, and C. D. P. was placed in a foster home for a period of time. Then, Parker took the child and cared for him until he was injured in an accident. He contacted the Department, told them he was unable to care for the child and did not know the whereabouts of Drumwright. C. D. P. was found to be deprived in June 1993 and again placed in foster care. In February 1995, C. D. P. was placed with his maternal grandmother for over a year. The Department removed C. D. P. from the grandmother’s care in July 1996 because she was frequently extremely intoxicated and C. D. P. was not being cared for. He had developed ringworm and a bacterial infection due to his surroundings. He was returned to his previous foster family.

In December 1996, the commitment order regarding C. D. P. was extended, with Drumwright’s stipulation to the extension. Shortly thereafter, Drumwright was again incarcerated for nine months. Although she got out of jail in March or April 1998, she did not contact Pickney, C. D. P.’s caseworker for almost a month after her release.

From January 1995 until July 1998, Drumwright had at most five visits with C. D. P, according to the caseworker. At least two of these visits were within the month before the termination hearing. Neither she nor Parker paid any child support. C. D. P. gave no indication of having bonded with either parent and, in fact, did not appear to know who Parker was. C. D. P. is very close to his foster parents, who wish to adopt him, and there is a good bond between him and them.

The caseworker made a home study of Drumwright’s residence in September 1997, finding it dirty, cluttered, and unsafe. He described it as “just in shambles.” Although Drumwright’s three older children reside with her and have not been removed by the Department, they were the subject of a child protective services case assigned to a separate caseworker. That caseworker testified that he had not filed petitions on these children because two of them resided either with Parker or the grandmother at various times. He stated that if all of the children were to attempt to reside with Drumwright in the one room in a five-bedroom home she shared with numerous other relatives, he would be concerned about the health conditions there and whether the children would be properly cared for.

While Drumwright acknowledged her prior drug addiction, her inattentiveness to C. D. R, and that he had been deprived most of his life, she contended that she had straightened her life out, gotten a job as a freight handler, and had completed a parenting class.

“Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Punctuation omitted.) In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995).

In the Interest of R. N., supra at 204 (1) (c).

Here, although some improvement in Drumwright’s drug addiction and employment status had occurred, that alone does not constitute conclusive evidence of parental fitness in light of the family’s history. In the Interest of J. S., 232 Ga. App. 876, 879 (502 SE2d 788) (1998); In the Interest of M. L., 227 Ga. App. 114, 117 (1) (488 SE2d 702) (1997).

“[J]udging the credibility of her good intentions was a task for the juvenile court. The decision as to [a child’s] future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of R. N., supra at 205. Further, this Court has held that “(t)he trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court. (Cit.)” In the Interest of J. R., 201 Ga. App. 199, 200 (410 SE2d 458) (1991).

In the Interest of A. H., 226 Ga. App. 279, 284 (1) (486 SE2d 412) (1997).

Here, the juvenile court was authorized to infer from the evidence of past conduct that the improvements in Drumwright’s situation were not sufficient to justify maintaining C. D. P. in foster care limbo in hopes that Drumwright could achieve stability and provide an adequate home for her child. In the Interest of J. M. C., 201 Ga. App. 173, 175 (410 SE2d 368) (1991).

There was no error in terminating the rights of Drumwright and Parker.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

Decided June 2, 1999.

Hassett, Cohen & Goldstein, Daniel S. Glickman, for appellants.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, R Brian Campbell, James W. Blount, for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A0527.
    MEZQUITA v. CAMPBELL.
    (519 SE2d 27)
   Pope, Presiding Judge.

We granted the discretionary application in this child custody action to review the Liberty County Superior Court’s judgment awarding custody to the child’s father, appellee Joseph Campbell. Upon review of the record, we conclude that the Georgia court lacked jurisdiction, and we reverse.

Appellant Yolanda Mezquita is the mother of the minor son, who was born on August 12, 1996, in Hinesville, which is in Liberty County, Georgia. Mezquita and Campbell did not marry each other. On January 7, 1998, Campbell filed a petition for custody against Mezquita, a resident of Florida, in Liberty County Superior Court. In the custody petition, Campbell acknowledged that although he previously had filed a petition for legitimation of the child in Effingham County, the matter had not been resolved at the time he filed the custody petition. In fact, in the custody petition Campbell admitted that the petition for legitimation had not been successfully served on Mezquita. The custody petition alleged that Campbell was attempting to serve Mezquita by publication.

On the same date as the filing of the custody action, the court issued an order directing that Mezquita be served with the custody petition by publication. The order also directed that the clerk send a copy of the complaint to two addresses which Mezquita previously had maintained, both of which were in Florida.

On March 12, 1998, the Effingham County Superior Court entered an order in which it declared the child to be Campbell’s legitimate son.

On April 3, 1998, the Liberty County Superior Court issued an order awarding Campbell custody of the child. In so doing, the court concluded that the appropriate service procedures of OCGA §§ 19-9-45 (a) (3) and (4) and 9-11-4 had been followed. The court found that Campbell had established paternity and that the child had been legitimated. The court found that Mezquita had moved at least seven times since the child’s birth and that she had abandoned two residences in deplorable conditions.

Four days after judgment was entered, Mezquita filed a motion to set it aside. The court held an extensive hearing on the matter and entered an eight-page order in which it vacated its prior order. The court concluded that under OCGA § 19-7-25 Campbell did not have standing to bring the custody suit until after the order of legitimation; the court therefore allowed Mezquita 30 additional days in which to file defensive pleadings. The court also found that Mezquita moved from Georgia to Florida in July 1997; that the child was conceived, born and christened in Georgia; that Mezquita maintained substantial connections to a church in Georgia; and that she received child support from a Georgia agency. Furthermore, the court recounted its interactions with the Florida Department of Children & Family Services and Mezquita’s “evasive and uncooperative” behavior with an investigator from that agency. The court found that Mezquita admitted that she received notice that she had certified mail to claim, and that she simply failed to claim it. Accordingly, the court concluded that it had jurisdiction under OCGA § 19-9-43 (a) (2) and that Mezquita had refused to accept service of the notice. The court ordered that the custody of the child would be with the Georgia Department of Family & Children Services until further order of the court.

On May 28, 1998, Mezquita filed an answer to the custody petition in which she moved the court to dismiss Campbell’s action. On the same day, the court held another hearing on the matter.

On August 3, 1998, the court entered an order in which it again awarded custody to Campbell. The court concluded that it had jurisdiction of the matter; that Mezquita was unfit to have custody of the child; and that Campbell was entitled to custody. From that determination, Mezquita filed the discretionary application.

1. Mezquita first argues that the Georgia court lacked jurisdiction. We agree and reverse.

Evidence before the court showed that Mezquita and Campbell began their relationship in south Florida in 1994 when they were both living there. They lived together for more than a year. In the summer of 1995 Campbell moved to Georgia and Mezquita remained in south Florida. On a visit to see Campbell in Georgia in 1995, Mezquita became pregnant with the child; she moved to Hinesville, Georgia, in December 1995. The child was born on August 12, 1996, in Hinesville.

Six days after having the baby, Mezquita returned to Florida for a visit with the infant for three months. After three months, Mezquita returned to Georgia with the child, and she and the child lived in Hinesville, Georgia, for the next eight months. Mezquita and the child returned to Florida on July 12, 1997, when the child was 11 months old. Mezquita and the child lived in Florida for the following nine months until the child was removed by the court from Mezquita in April 1998.

There was evidence that Mezquita had worked at the same job in a Florida accounting office from August 1997 until the May 28, 1998 hearing. There was evidence that the child had a babysitter who was in Florida and that Mezquita had recently enrolled the child in a daycare center. The evidence showed that the child’s most recent medical treatments were in Florida and that the child had been issued a Florida Certificate of Immunization. There was evidence that Mezquita’s two older children lived in Florida and that Mezquita had a grandmother and aunts and uncles residing in Florida. One of the witnesses at trial was a Florida caseworker who had become involved in the case at the behest of the court after the April 3 hearing. That witness testified that Mezquita had been investigated by the same Florida agency in 1996.

Campbell filed his custody action on January 7, 1998 — within six months of July 12, 1997, the date Mezquita moved with the child from Georgia. OCGA § 19-9-43 (a) (1) (B) provides that a Georgia court which is competent to decide child custody matters has jurisdiction if Georgia was the child’s home state within six months before commencement of the proceeding and the child was removed by one parent while another parent remained in Georgia. Ordinarily, under OCGA § 19-9-43 (a) (1) (B), jurisdiction in Georgia would be proper.

Nevertheless, in this case, Campbell lacked standing in January to file the custody suit because he had not legitimated the child. OCGA § 19-7-25 provides: “[o]nly the mother of a child born out of wedlock is entitled to his custody, unless the father legitimates him as provided in Code Section 19-7-22.” “Upon legitimation the father stands in the same position as any other parent as to custody of the child. Sims v. Pope, 228 Ga. 289, 291 (185 SE2d 80) [(1971)].” Kennedy v. Adams, 218 Ga. App. 120 (1) (460 SE2d 540) (1995) (physical precedent only). This Court previously has held that “custody issues may be adjudicated in a legitimation proceeding — but only with the consent of the parties. In the absence of the mother’s consent, if the father wishes to petition for a change in physical custody, he must do so in a separate proceeding after the judgment of legitimation is entered.” Palmer v. Pinkston, 228 Ga. App. 514, 515 (2) (492 SE2d 285) (1997). See also Gregg v. Barnes, 203 Ga. App. 549, 550 (1) (417 SE2d 206) (1992) (physical precedent only).

The superior court concluded, and we agree, that the filing date of the complaint for custody was not dispositive of the jurisdictional inquiry because Campbell did not have standing on that date to file the complaint. We therefore analyze the jurisdictional basis from the date on which the order legitimating the child was entered — March 12, 1998. This date was outside the six-month period provided for in OCGA § 19-9-43 (a) (1) (B).

Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian, and one of the purposes of the . . . UCCJA [Uniform Child Custody Jurisdiction Act] is to assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; and the UCCJA shall be construed to promote its general purposes. [(Citations and punctuation omitted.)] Lightfoot v. Lightfoot, 210 Ga. App. 400, 402 (2) (436 SE2d 700) (1993). In other words, the UCCJA favors the hearing of custody matters in a child’s home state, “the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months.” OCGA § 19-9-42 (5).

Rozier v. Berto, 230 Ga. App. 427, 428 (496 SE2d 544) (1998).

In the order in which it vacated the award of custody to Campbell, the trial court concluded that jurisdiction was proper under OCGA § 19-9-43 (a) (2). That section states that a Georgia court which is competent to decide child custody matters has jurisdiction to make the custody determination if

[i]t is in the best interest of the child that a court of this state assume jurisdiction because: (A) The child and his parents or the child and at least one contestant have a significant connection with this state; and (B) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. . . .

“[I]n considering whether the trial court properly assumed jurisdiction over this case under OCGA § 19-9-43 (a) (2), we must consider that Code section in light of the stated purposes of the act.” Lightfoot v. Lightfoot, 210 Ga. App. at 402.

Decided June 2, 1999 — Cert. applied for.

Gary A. Bacon, for appellant.

Lloyd D. Murray & Associates, Dena W. Gardner, for appellee.

Although under OCGA § 19-9-43 (a) (2), the residence of the father is relevant, in this case, Campbell’s status as the father was not established until March 1998. Thus, the significance of his Georgia residence in our determination is minimized and the importance of Mezquita’s and the child’s home state, Florida, becomes more important. Campbell’s argument that the availability of evidence in Georgia regarding his fitness as a parent justifies jurisdiction here is akin to the “bootstrapping” attempts which the court rejected in Williams v. Goss, 211 Ga. App. 195, 197 (438 SE2d 670) (1993). In that case, the court stated that “[s]uch ‘bootstrapping’ would not appear to be consistent with the overall spirit and purpose of the UCCJA, which seeks to assure that custody proceedings take place in the state with which the child and his family have the closest connections.” (Citations and punctuation omitted.) Id.

In this case Florida is the state with the closest connections to the child and his family. While we recognize that Campbell paid child support for four months through a Georgia agency, and that Mezquita had some contacts with Georgia, the greater contacts were with Florida. The evidence is undisputed that the child’s and the mother’s home state was Florida and Florida was the appropriate forum for this dispute. Compare Mock v. Smith, 233 Ga. App. 36 (503 SE2d 319) (1998). Accordingly, the court erred in concluding that it had jurisdiction and in denying Mezquita’s motion to dismiss.

2. Because of our resolution of the jurisdictional arguments, we need not address Mezquita’s other arguments.

Judgment reversed.

Smith and Eldridge, JJ, concur.

       Campbell, a resident of Rincon, Georgia, which is in Effingham County, properly filed the petition for legitimation in the county of his own residence. See OCGA § 19-7-22.


author: Andrews, Judge.

text:
    A99A0625.
    In the Interest of C. D. A., a child.
    (519 SE2d 31)
   Andrews, Judge.

Ruby Key appeals from the juvenile court’s order terminating her parental rights to C. D. A., a boy born on August 25, 1995. Key challenges the sufficiency of the evidence supporting this order. Because there is clear and convincing evidence supporting the termination of rights, we affirm.

On appeal, we must determine

whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact. could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. [T]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

Before terminating a parent’s rights, a juvenile court, pursuant to OCGA § 15-11-81 (a), must employ a two-step procedure. In the Interest of C. L. R., supra.

First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

(Citations and punctuation omitted.) Id.

The evidence at trial, viewed in the light most favorable to the juvenile court’s judgment, was as follows. A clinical psychologist testified that Ruby Key had an IQ of 61, which placed her in the mentally deficient range. The psychologist stated that Key was “actively psychotic at the time of testing,” and met the criteria for nine different mental illnesses. The test scores further indicated that Key could be chemically dependent, and the record shows that Key admitted that she'drank beer every day. As a result of the interview and tests, the psychologist diagnosed Key with probable paranoid schizophrenia and alcohol abuse. The psychologist stated that Key was not capable of parenting children at that time. In response to questions from the court, the psychologist said there were medications that could probably help with the auditory and visual hallucinations and mental confusion; however, it was not likely that the medicine could alleviate all these problems to the extent that Key could function normally.

A nurse testified that when Key was in the hospital after the birth of another baby, she became angry and started screaming and throwing things. When the nurse tried to talk to her, Key got up from her bed, causing the newborn baby to roll over, face down. The nurse said Key saw the baby lying there, but made no move to pick it up. The nurse then took the baby back to the nursery.

Another hospital worker testified that Key came to the hospital for pre-term labor and tested positive for cocaine and alcohol. When the social service worker tried to discuss this with her, Key denied using drugs and said she drank two or three beers every day and it had not caused problems for her other child and would not cause any problems for this child.

The director of the Henry County Building Department testified that the home where Key was living was unsafe. He said there were gas pipes going into the house, but there were no appliances attached to them; they were just open lines. He further stated that the electrical wiring was old and not connected to any public utility, but rather, was connected by extension cords to a piece of cable running from another house. The building inspector also said he saw no evidence of running water in the house.

A Department of Family & Children Services (hereinafter “DFCS” or “Department”) caseworker testified that C. D. A. was first placed with DFCS on September 13, 1995. DFCS returned the child to Key under a protective order. This order provided for weekly visits to Key’s home to ensure that the child’s needs were being met and required Key to attend parenting classes and notify DFCS if she moved. Key did not attend parenting classes and moved without notifying DFCS. DFCS found C. D. A. after receiving a referral concerning the child and took C. D. A. back into custody on January 5, 1996.

Another caseworker testified that DFCS developed three reunification plans for Key and Key failed to make any significant attempt to take the steps necessary to achieve the goals outlined in the plans. The goal of the fourth and last plan was the termination of Key’s parental rights. Key did maintain contact with the child and with DFCS during this time, and she attended some parenting classes. She also apparently worked before she became pregnant with another child, but she did not pay any of the required child support.

1. In her first enumeration of error, Key argues there was insufficient evidence to support a finding of parental misconduct or inability. Key does not argue that the child is not deprived, nor that her inability to care for the child is the cause of the deprivation. However, Key claims that because she has not had the opportunity for psychological treatment, it is not reasonable to conclude that her condition will not improve.

“A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination.” In the Interest of L. H., 236 Ga. App. 132, 135 (511 SE2d 253) (1999). The DFCS caseworker testified that she discussed the psychological evaluation with Key and went over the psychologist’s recommendations as a result of the evaluation. The caseworker said she told Key there was a mental health center next door to the DFCS office and Key could go there and the Department would make referrals, provide transportation and help with parenting classes. Key never followed up on the recommendation that she get further psychological evaluation and counseling.

Key also argues that DFCS, after becoming aware of her mental disability, did not do enough to accommodate that disability when setting up the reunification plans. For instance, she argues that the problems with her housing were not explained to her and therefore it was unreasonable to expect her to remedy conditions when she was “unaware of what the problems are.”

The DFCS caseworker testified that the Department makes the necessary referrals to clients and assists them in carrying out the reunification plans. The caseworker said she discussed the steps and goals in the plans with Key and Key told her she understood those steps and goals. Further, the caseworker stated that Key did not ask for any help in attaining those goals. A caseworker also testified that the changes necessary to make the home safe were pointed out to Key after one of the home visits.

“The past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of L. H., supra at 136. Therefore, given the fact that Key did not complete the case plans or make the necessary effort to get help so that she could complete the case plans, there was sufficient evidence from which the judge could find that the deprivation was likely to continue.

2. Key also claims there is insufficient evidence to show that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. We disagree. The unsafe conditions at the home and the psychologist’s testimony that Key was actively psychotic and incapable of parenting a child were sufficient clear and convincing evidence from which the juvenile court could conclude that the deprivation could cause serious physical, mental, and emotional harm to the child.

Decided June 2, 1999.

Brown & Gill, Angela Y. Brown, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Ernest D. Blount, for appellee.

3. Key argues there was insufficient evidence to show termination was in the best interest of the child. After a finding of parental misconduct or inability, the trial court must determine whether termination is in the best interest of the child, taking into consideration the physical, mental, emotional and moral condition and needs of the child, including the need for a secure and stable home. OCGA § 15-11-81 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” In the Interest of E. C., 225 Ga. App. 12, 18 (482 SE2d 522) (1997). Additionally, the juvenile court is authorized to consider the child’s need for a stable home and the detrimental effects of prolonged foster care. In the Interest of M. L., 227 Ga. App. 114, 117 (488 SE2d 702) (1997).

The facts set out above and our review of the entire record show that there was clear and convincing evidence to support the juvenile court’s finding that termination of Key’s parental rights would be in the best interest of the child.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

       The caseworker explained that a “referral” is a call to the Department concerning the abuse or neglect of a child.


author:
McMurray, Presiding Judge.
      Andrews, Judge,

text:
    A99A0649.
    SUPAN v. GRIFFIN et al.
    (519 SE2d 22)
   McMurray, Presiding Judge.

Joey D. Griffin and Karen Griffin, on behalf of their nine-year-old son, Bo Griffin, brought an action against Lavern Supan for injuries Bo Griffin sustained when he was attacked by Lavern Supan’s “Rottweiler and Chow mix” dog. Supan moved for summary judgment under Georgia’s so-called “first bite” rule on the basis that he had no prior knowledge of this dog’s propensity to bite. The trial court denied this motion, and this Court granted Supan’s application for interlocutory appeal. We affirm because evidence of Supan’s statement to a neighbor, who was menaced by four or five of Supan’s dogs, including the dog that bit young Bo Griffin, less than a month before the attack on this child, “to do whatever was necessary ... to keep the dogs from attacking” raises genuine issues of material fact as to Supan’s prior knowledge of his dogs’ tendency to attack humans. See McBride v. Wasik, 179 Ga. App. 244 (345 SE2d 921).

Joey D. Griffin testified during his deposition that he and his two minor sons, Bo and Troy, were driving on a road adjacent to the Supan home place when they came upon a motor vehicle collision involving Lavern Supan’s 14-year-old son, Eddie Supan. Joey D. Griffin discovered that a car was “straddling a motor cycle [and that] Eddie [Supan] was right on the side of the road, on the edge of the road.” Joey D. Griffin observed that Eddie Supan had been driving the motorcycle and that his leg was “messed up.” Joey D. Griffin placed Eddie Supan in his truck and asked Eddie Supan if he “want[ed Joey D. Griffin] to take him down to his [Supan’s] house [and] he said yes, please.” They then set out for Supan’s home. As the Griffin truck approached the Supan residence, several dogs (four or five) came outside and began barking. Eddie Supan informed Joey D. Griffin that the dogs would not bite, so Joey D. Griffin exited his truck and began walking Eddie Supan to the house. Young Bo Griffin followed in his father’s footsteps.

Meanwhile, Eddie Supan’s mother came out of the house and assured Joey D. Griffin that the dogs would not bite. She said, “don’t worry about the dogs.” Joey D. Griffin then turned and instructed young Bo Griffin to return to the truck and sit with his three-year-old brother, Troy Griffin, who was crying at the time. Bo Griffin turned to comply, but was immediately attacked by Lavern Supan’s “Rottweiler and Chow mix” dog. This animal “charged at him [Bo Griffin] and attacked him from the back[,] biting him in his leg, pushing] him across the ground and was shaking him.” Joey D. Griffin forced the attacking dog off his son and rushed the injured child to a hospital emergency room.

Lavern Supan’s affidavit indicates that the attack on Bo Griffin was the first knowledge he had of his dog’s propensity to bite. The-Griffins challenged this statement with an affidavit from Steven Lee Keller, Lavern Supan’s neighbor. Keller deposed that, about three months before Lavern Supan’s dog bit Bo Griffin, a number of Supan’s dogs (four or five in all) came onto his (Keller’s) home’s front porch, including the “Rottweiler and Chow mix” that bit Bo Griffin, “viciously attacked [Keller’s] small dog,” and threatened him (Keller) with “bared fangs, vicious growls and attack behavior.” Keller deposed that he was “able, by opening and closing his screen door, to finally get the Supan dogs to leave his residence.” Keller further deposed that, “because they [the dogs] were so vicious, he followed the dogs and they went back to the home of Lavern Supan.” Keller explained that he then

approached Mr. Lavern Supan and told Mr. Supan of the incident with the dogs and that they were vicious and should be locked up[; that] Mr. Supan acknowledged that the dogs were a problem and told [Keller] that if the dogs ever came back on [Keller’s] property, to do whatever was necessary ... to keep the dogs from attacking and off of [Keller’s] property.

Held:

Steven Keller’s report regarding Supan’s dogs’ prior vicious and aggressive behavior on Keller’s property brings the case sub judice within this Court’s holding in McBride v. Wasik, 179 Ga. App. 244, supra. In McBride v. Wasik, supra, which this Court determined was governed by OCGA § 51-2-7, that defendant pet owner’s prior statement concerning a desire for his dog to attack that plaintiff, without proof that the dog had ever bitten anyone, raised genuine issues of material fact as to that defendant’s liability for his dog’s subsequent attack on that plaintiff based on that defendant’s prior knowledge of his dog’s propensity to attack people. Id. at 244-245 (2). Applying the same logic in the case sub judice, we find that Lavern Supan’s statement to Steven Keller, about three months before Supan’s dog bit Bo Griffin, for Keller “to do whatever was necessary ... to keep the dogs from attacking” raises genuine issues of material fact as to Supan’s prior knowledge of his dogs’ tendency to attack humans. This proof distinguishes the case sub judice from the recent whole court decision in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120), where this Court narrowly held that a dog’s aggressive and menacing behavior remains insufficient, despite legislative revision of Georgia’s dog bite liability statute (OCGA § 51-2-7) in 1985, to show the animal’s propensity to bite.

Evidence that Bo Griffin was on Lavern Supan’s property as a “Good Samaritan” invitee, rather than as a visitor-licensee, also distinguishes this case from dog bite cases based on simple negligence. With proof regarding Lavern Supan’s prior knowledge of his dog’s vicious tendencies, the true test of liability in the case sub judice is Lavern Supan’s superior knowledge of his dog’s temperament. See Pickard v. Cook, 223 Ga. App. 595, 596 (2) (478 SE2d 432); Sutton v. Sutton, 145 Ga. App. 22 (1), 25 (243 SE2d 310). Accordingly, under the authority of OCGA § 51-2-7 (1985), the trial court was absolutely correct in denying defendant Lavern Supan’s motion for summary judgment and allowing this case to be resolved by a jury.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Smith, Ruffin and Eldridge, JJ., concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Because there is no evidence in the record sufficient to infer that the owner of the dog, Supan, knew or should have known of the dog’s propensity to bite a human being, the trial court erred by denying Supan’s motion for summary judgment.

For the Griffins to recover damages from Supan resulting from the dog bite suffered by Bo Griffin, they were required to prove under the “first bite” rule that Supan knew or should have known of his dog’s propensity to do the particular act which caused the complained of injury. Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998); Durham v. Mooney, 234 Ga. App. 772, 773 (507 SE2d 877) (1998). The particular act which caused injury in this case was biting a human being. This does not mean it was necessary to prove that Supan knew or should have known of his dog’s propensity to do the exact same act that caused the injury at issue, “but in order to infer the requisite knowledge there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” Id. at 773; Torrance v. Brennan, 209 Ga. App. 65, 67-68 (432 SE2d 658) (1993). Although the prior incident known to the owner need not have been exactly like the incident at issue, it nevertheless must be of the same type as the incident at issue before the requisite knowledge of the incident which caused the injury will be ascribed to the owner. Id. at 68. “[T]his Court consistently has held that the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action.” Hamilton, 235 Ga. App. at 635. For example, where a dog was known to chase people, but had never chased a car or motorcycle, there was a lack of evidence to support an inference that the owner knew or should have known that the dog had a propensity to chase a motorcycle and cause it to crash. Id. at 635. Similarly, where a dog was known to display menacing or aggressive behavior toward human beings, but had never bitten a human being, knowledge of the dog’s propensity to bite a human being will not be ascribed to the owner. Banks v. Adair, 148 Ga. App. 254, 255 (251 SE2d 88) (1978); Hamilton, 235 Ga. App. at 636; Durham, 234 Ga. App. at 773.

In support of his motion for summary judgment, Supan filed an affidavit stating that he had no knowledge of the dog’s propensity to bite a human being. In opposition to summary judgment, the Griffins filed an affidavit from Steven Keller, a neighbor of Supan, who stated that three months prior to the day Bo Griffin was bitten, four or five of Supan’s dogs (including the dog that bit Bo Griffin) came to his residence, attacked his dog, and threatened him with “bared fangs, vicious growls and attack behavior.” Keller further stated that, on the day this incident occurred, he told Supan of the incident and told Supan that his dogs were vicious and should be locked up. Keller said that Supan “acknowledged that the dogs were a problem and told [him] that if the dogs ever came back on [his] property, to do whatever was necessary in [his] opinion to keep the dogs from attacking and off [his] property.” Keller did not claim that the dogs actually attacked or bit him, and there is no evidence that this occurred.

The majority concludes that Keller’s statement that Supan told him “to do whatever was necessary in [his] opinion to keep the dogs from attacking” creates a jury issue “as to Supan’s prior knowledge of his dogs’ tendency to attack humans.” There is absolutely no evidence in this case to support an inference that Supan knew or should have known that the dog at issue had a propensity to attack or bite a human being. The dog did not attack or bite Keller during the incident described by Keller in his affidavit, nor is there any evidence that the dog had attacked or bitten anyone prior to biting Bo Griffin. Supan’s statement to Keller that the dogs were a problem and that Keller should do whatever was necessary to keep them from attacking showed nothing more than Supan’s acknowledgment of the incident which Keller had just described to him in which the dogs attacked Keller’s dog and displayed menacing behavior toward Keller by baring their fangs and growling in what Keller characterized as “attack behavior.”

At most, Supan’s statement to Keller showed that Supan knew the dogs had displayed menacing behavior which Keller characterized as a threat to attack him and showed Supan knew the dogs had actually attacked Keller’s dog. To interpret Supan’s statement as evidence that he had knowledge of the dog’s propensity to attack or bite a human being — without any evidence that the dog had previously attacked or bitten anyone — is sheer sophistry. It creates an inference based on pure speculation, conjecture or possibility, which this Court has recognized is insufficient to create a genuine issue of fact. Heinsimer v. Wellington Leisure Products, 231 Ga. App. 579, 582 (500 SE2d 7) (1998). Moreover, in opposition to the inference drawn by the majority, Supan gave positive, unrebutted testimony that he had no knowledge of the dog’s propensity to bite a human being. In considering a motion for summary judgment, a fact which may be inferred, but is not demanded, by circumstantial evidence has no probative value against positive, unrebutted evidence that no such fact as sought to be inferred exists. Id. at 582; Beeson v. Crouch, 227 Ga. App. 578, 580 (490 SE2d 118) (1997).

The only other basis for the inference drawn by the majority that Supan had knowledge of his dog’s propensity to attack a human being is the evidence that Supan knew his dog had displayed menacing behavior toward Keller, characterized by Keller as attack behavior, and had attacked Keller’s dog. But to draw the inference on this basis contradicts long-standing “first bite” precedent in which this Court has held that neither a dog’s known menacing behavior toward human beings nor its known attacks on other animals are sufficient to allow an inference that the owner had knowledge of the dog’s propensity to attack or bite a human being. A dog’s attacks on other animals are insufficient to put an owner on notice that his dog has a propensity to bite or attack a human being. Hamilton, 235 Ga. App. at 636. This Court has also consistently held that an owner’s knowledge that his dog has previously displayed menacing or aggressive behavior toward human beings is not sufficient to support an inference that the owner knew or should have known that the dog had a propensity to attack, bite, or injure a human being. Banks, 148 Ga. App. at 255; Hamilton, 235 Ga. App. at 636; Durham, 234 Ga. App. at 773; compare Johnson v. Kvasny, 230 Ga. App. 162, 163 (495 SE2d 651) (1998) (where the dog owner admitted after the bite at issue that she “knew that something like this would happen”). For example, in Starling v. Davis, 121 Ga. App. 428, 429 (174 SE2d 214) (1970), despite known incidents in which the dog had chased but not bitten people, and an incident in which one person had taken refuge on a car to escape the dog, we concluded this was not evidence that the dog owner had knowledge that the dog had a propensity to bite a human being. In Wells v. Beach, 169 Ga. App. 736, 737 (315 SE2d 23) (1984), evidence showed that the dog had never bitten anyone, but had displayed menacing behavior toward a child, that the child had slapped the dog to keep it from biting him, and the dog pawed at the child, causing the child to fall down and suffer a concussion. Nevertheless, we concluded this known behavior was insufficient to establish the dog owner’s knowledge of the dog’s propensity to bite a human being. In Hamilton, 235 Ga. App. 635, and Durham, 234 Ga. App. 772, although the dogs at issue had growled, barked and displayed threatening and menacing behavior toward people, they had never bitten anyone, and we found under the “first bite” rule that this known behavior was not sufficient to support an inference that the owners knew or should have known that the dogs had a propensity to bite a human being. Moreover, the majority’s repeated references to the fact that the dog was a “Rottweiler and Chow mix,” apparently in an effort to bolster the inference that Supan knew or should have known of the dog’s propensity to bite, are completely irrelevant. This Court has held that a dog’s breed and size provide no evidence that the owner had knowledge of the dog’s propensity to bite. Stanger v. Cato, 182 Ga. App. 498 (356 SE2d 97) (1987).

The majority cites McBride v. Wasik, 179 Ga. App. 244 (345 SE2d 921) (1986) as controlling authority in support of the inference that Supan knew or should have known that his dog had a propensity to bite a human being. In McBride we concluded there was evidence that the dog owner had knowledge of his dog’s propensity to bite a human being even though there was no evidence that the dog had previously bitten anyone. We reached this conclusion, however, on facts that bear no resemblance to the facts in the present case. Although the dog which bit the victim in McBride had never previously bitten or attacked a person, it was a “trained attack dog.” Id. There was evidence that the dog’s owner had previously commanded the dog to attack the victim’s wife, yelling, “Kill the bitch!” and that the dog charged on this command but was called off by the owner before it reached the victim’s wife. Id. Additional evidence showed that, shortly before the victim was bitten, the owner had said that “he hoped that dog got out and went over there and killed [the victim].” Id. at 245. The dog had also previously charged and leaped upon numerous small children, knocking them to the ground. Id. at 244. The evidence in McBride showed far more than an owner who, like Supan, knew only that his dog had attacked another animal and engaged in menacing or aggressive behavior toward a person. It showed an owner who knew his dog was specifically trained for and had the ability and willingness to attack and injure a human being. This was enough, without a previous bite or attack on a human being, to support an inference that the owner knew or should have known that the dog had a propensity to bite a human being. Id. at 245. See also Sanders v. Bowen, 196 Ga. App. 644, 645-646 (396 SE2d 908) (1990) (a reasonable inference could be made that an owner of a dog trained to be vicious, aggressive and attack-oriented so it could fight for money, knew or should have known of the dog’s propensity to bite a human being even though it had not previously bitten anyone); Torrance, 209 Ga. App. at 66-67 (where the dog had previously put its mouth completely around a person’s arm leaving red marks, had jumped on another person and used its teeth to rip the person’s pants, and had “nipped” another person on the buttocks, this was sufficient, without a previous bite, to support a verdict finding that the owner had knowledge of the dog’s propensity to bite a human being). Unlike these cases, Supan’s dog was neither a trained attack or fighting dog, nor had the dog previously grabbed people with its mouth, “nipped” people, or ripped people’s clothes with its teeth. Supan knew only that his dog had attacked Keller’s dog and had engaged in aggressive and menacing behavior toward Keller.

Finally, the majority delivers a coup de grace to the “first bite” rule in the context of a premises liability claim against a dog owner. The majority concludes that the victim, Bo Griffin, who was bitten at Supan’s residence, was a “Good Samaritan” invitee (as opposed to a visitor-licensee) at the residence. The majority then holds that: “With proof regarding Lavern Supan’s prior knowledge of his dog’s vicious tendencies, the true test of liability in the case sub judice is Lavern Supan’s superior knowledge of his dog’s temperament.” This test discards the long-standing “first bite” rule, which required evidence of the owner’s knowledge that, on a prior occasion, the dog had bitten a human being or done the same type of act before liability could attach for the second bite. In its place, the majority’s new test allows liability to attach for the first bite based on the owner’s prior superior knowledge of the dog’s “vicious tendencies” or “temperament.” In other words, dog owners like Supan, whose dogs have never bitten or attacked anyone, but who know their dogs have displayed menacing or aggressive behavior toward a person — behavior which might be subjectively characterized as a display of a vicious tendency or temperament — are now subject to liability for the first bite.

The majority opinion has the effect of implicitly overruling longstanding “first bite” precedent. Under the “first bite” rule, regardless of whether the Griffins’ claim is construed as made under the “dog bite” statute, OCGA § 51-2-7, or under the premises liability statute, OCGA § 51-3-1, the result is the same. Under OCGA § 51-2-7, there is no evidence to support a finding that Supan knew or should have known that his dog had a propensity to bite a human being. Durham, 234 Ga. App. at 773; Hamilton, 235 Ga. App. at 635. Under OCGA § 51-3-1 (applying the “superior knowledge” rule in conjunction with the “first bite” rule), there is no evidence to support a finding that Supan knew or should have known his dog had a propensity to bite a human; therefore, Supan had no superior knowledge making it foreseeable to him that the dog would bite a human being. Stanger, 182 Ga. App. at 499; Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 444 (382 SE2d 180) (1989). In the absence of evidence to support a cause of action under either statute, Supan was entitled to summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The rule under which dog owners are protected from liability for their dog’s “first bite” sets a reasonably clear standard by which owners can gauge the risk of second bite liability posed by owning a dog known to have engaged in prior acts of biting or like conduct. The test of liability set forth in the majority opinion creates a vague standard under which first bite liability may be imposed on dog owners whose dogs had never previously engaged in biting or like conduct, but whose dogs had engaged in known conduct which might be subjectively characterized as indicative of a vicious tendency or temperament. Under the majority opinion, every dog owner in the State whose dog has growled and bared its fangs may now be subject to first bite liability based on a claim that the dog has a known vicious tendency or temperament. This test dramatically increases the risk of liability arising from dog ownership while making it virtually impossible for dog owners to determine when their dog’s conduct has placed them at increased risk. For these reasons, I dissent.

Decided June 2, 1999 — Cert. applied for.

Tisinger, Tisinger, Vance & Greer, Glenn M. Jarrell, Kenneth B. Crawford, for appellant.

Patrick J. Araguel, Jr., for appellees.

       The analysis would be the same under the facts of this case whether the victim is considered to be a licensee or an invitee. Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998); see Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 393-394 (506 SE2d 910) (1998).


author: Johnson, Chief Judge.

text:
    A99A0875.
    NICHOLS v. THE STATE.
    (519 SE2d 20)
   Johnson, Chief Judge.

Thomas Nichols was convicted of aggravated assault upon a police officer, two counts of felony obstruction of police officers, possession of a knife during the commission of a crime and carrying a concealed weapon. He appeals, challenging the sufficiency of the evidence supporting the aggravated assault and the two felony obstruction convictions.

Viewed to support the verdict, the evidence shows that a police officer stopped his patrol car to talk with Nichols and another man. When the officer asked to see identification, Nichols said he did not have any and patted his pocket. As Nichols moved his arm, the officer saw that, beneath his coat, Nichols had a knife in a leather holder attached to his belt. The officer told Nichols to raise his arms so he could remove the knife for safety purposes. When the officer began to remove the knife, Nichols reached down and grabbed the officer’s hand. The officer was able to grasp the knife and throw it away from Nichols, who then ran from the scene.

A backup officer arrived in time to see Nichols flee. The backup and the original officer chased after Nichols. When the backup officer caught him, Nichols tried to strike the officer with his fist and wrestled with him. Eventually the two officers were able to subdue and handcuff Nichols. In addition to the knife initially taken from Nichols, the officers found a dagger clipped to Nichols’ boot and two knives in his pockets.

1. Nichols’ claim that there is insufficient evidence to support the convictions of felony obstruction is without merit. Felony obstruction of a police officer is committed when a person knowingly and wilfully resists, obstructs, or opposes any law enforcement officer in the lawful discharge of his official duties by offering or doing violence to the officer. OCGA § 16-10-24 (b); Pearson v. State, 224 Ga. App. 467, 468 (1) (480 SE2d 911) (1997); Alex v. State, 220 Ga. App. 754, 757 (3) (470 SE2d 305) (1996).

Here, the evidence that Nichols fought, struggled with and ran from the officers is sufficient to support the jury’s finding, beyond a reasonable doubt, that Nichols committed felony obstruction against them. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 213 Ga. App. 520 (444 SE2d 875) (1994). The two felony obstruction convictions are therefore affirmed.

2. Nichols correctly asserts that there is no evidence to support the aggravated assault conviction. The aggravated assault charge is based on Nichols’ struggle with the first officer who removed the knife from Nichols’ belt. The indictment alleges that Nichols assaulted the officer with the knife. The evidence, however, does not show that Nichols committed such an assault.

Under the Code, aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon.

(Footnote omitted; emphasis in original.) Smith v. Hardrick, 266 Ga. 54, 55 (2) (464 SE2d 198) (1995). See OCGA § 16-5-21 (a).

In the instant case, we assume without deciding that the first aggravated assault element is met by the officer’s testimony that he felt threatened by Nichols’ grabbing of his hand as it was on the knife. There is, however, no evidence of the necessary second element that the assault was aggravated by use of the knife. In the cases of aggravated assault with a knife that we have found, the defendant actually used the knife offensively in a threatening manner against the victim. See, e.g., Reeves v. State, 233 Ga. App. 802, 803-804 (1) (505 SE2d 540) (1998) (defendant stabbed and cut victim with knife); McSears v. State, 226 Ga. App. 90, 92 (3) (485 SE2d 589) (1997) (defendant swung knife at victim); Littleton v. State, 225 Ga. App. 900, 902 (2) (485 SE2d 230) (1997) (defendant held knife to victim’s neck); Nash v. State, 222 Ga. App. 766, 767 (2) (476 SE2d 69) (1996) (defendant chased and tried to stab victim with knife).

Unlike those cases, Nichols did not use the knife offensively against the officer. Nichols never actually touched the knife or threatened the officer with it. At most, the officer’s testimony can be construed as showing that Nichols unsuccessfully reached for the knife and briefly struggled with the officer over it. But absent any evidence that he actually used the knife against the officer, we cannot find that he committed an aggravated assault. To make such a finding would improperly expand the Code’s definition of the crime of aggravated assault.

Decided June 2, 1999.

Gale & Henley, Teddy L. Henley, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

We note that this opinion in no way justifies the actions of Nichols, nor is it a condemnation of the officer’s conduct. We have no doubt that the officer, as he testified, felt threatened by Nichols’ actions. But that apprehension does not support an aggravated assault conviction without some evidence that the apprehension was aggravated by Nichols’ use of the knife. Rather, the proper crime charged under these facts was the felony obstruction of an officer for which Nichols was, in fact, convicted. See Miller v. State, 226 Ga. App. 133, 134-135 (2) (486 SE2d 368) (1997) (defendant who had a tire iron and a knife while struggling with police officers convicted of felony obstruction). Because there is no evidence that Nichols used the knife offensively against the officer, the aggravated assault conviction must be reversed. See generally Phillips v. State, 250 Ga. 336, 338 (3) (297 SE2d 217) (1982).

Judgment affirmed in part and reversed in part.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A0331.
    BENNETT et al. v. McDONALD et al.
    (518 SE2d 912)
   Pope, Presiding Judge.

Francine C. McDonald died intestate on January 3, 1997. Her son-in-law, Charles S. Bennett, filed an application for letters of administration with the probate court after having been selected by a majority of the deceased’s heirs at law. The deceased’s husband, Homer W. McDonald, Jr., filed a caveat and objection to Bennett’s application and filed his own application for letters of administration. The deceased’s children, C. L. Pritchett and Harold Pritchett, filed a caveat and objection to McDonald’s application. The probate court appointed Bennett the administrator of the estate and McDonald appealed to the superior court.

In the superior court, McDonald filed a motion for summary judgment seeking to be appointed administrator of the estate. Bennett and the deceased’s children (hereinafter Bennett) responded to McDonald’s motion by filing their own summary judgment motion seeking to have Bennett appointed administrator of the estate. Bennett also filed a separate request for oral argument pursuant to Uniform Superior Court Rule 6.3, and a hearing date was set for November 2, 1998. However, on August 26,1998, without holding a hearing, the trial court granted McDonald’s motion for summary judgment and appointed him administrator of the estate. On September 15, 1998, the trial court issued on order dismissing Bennett’s motion for summary judgment as moot.

Bennett argues that the trial court erred by granting summary judgment to McDonald without first hearing oral argument. Bennett relies on Carroll Anesthesia Assoc., P. C. v. Anesthecare, 230 Ga. App. 269 (495 SE2d 897) (1998), in which we held that it is not necessary for a party to file a separate request for oral argument if the other party has already filed a request. Applying that logic to this case, Bennett argues that filing a separate request for oral argument on McDonald’s motion was unnecessary because the issues of law and fact raised in the parties’ respective motions were inextricably intertwined. Thus, Bennett argues, filing separate requests on each motion in this case would be a “useless act.” Id.

We agree that reversal for failure to hold the requested hearing is required under the facts of this case. The summary judgment motions could not be considered and decided separately. The grant of summary judgment to one party in this case resulted in an automatic denial of the others party’s motion. The trial court dismissed Bennett’s motion after finding it had been rendered moot by the granting of McDonald’s motion. Obviously, Bennett’s request for oral argument was also rendered moot when summary judgment was granted to McDonald. But under Uniform Superior Court Rule 6.3, the trial court was required to conduct oral argument once Bennett filed a timely written request.

Having timely requested a hearing, a litigant should not have summary judgment granted against him without having had the opportunity to convince the trial court to the contrary and a trial court should not grant summary judgment against him without having availed itself of the opportunity to interrogate counsel.

Dixon v. McClain, 204 Ga. App. 531 (1) (420 SE2d 66) (1992). Since the motions in this case could not be considered separately, the trial court erred by granting summary judgment to McDonald without first hearing oral argument.

Moreover, we have consistently refused to apply a harmless error test to the failure to hold oral argument. Carroll Anesthesia, 230 Ga. App. at 270, fn. 8. “To hold that a failure to conduct the timely requested hearing can nevertheless constitute mere harmless error would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.” Dixon v. McClain, 204 Ga. App. 531.

Decided June 3, 1999.

Hulsey, Oliver & Mahar, R. David Syfian, for appellants.

Christopher W. Duncan, Timothy R Healy, for appellees.

Although Bennett urges that we consider the merits of this appeal,

[w]here the trial court has not had the opportunity to consider the arguments of counsel at a timely requested hearing, appellate review of the record is premature. Indeed, oral argument may illuminate issues obscured by the record or result in admissions by counsel that affect the summary judgment analysis. Accordingly, we decline to address the merits of [this appeal] in the interest of promoting judicial economy and remand this case to the trial court for further proceedings.

Howard v. McFarland, 233 Ga. App. 286 (503 SE2d 900) (1998).

Judgment reversed.

Smith and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A99A0471.
    FRANK MAYES & ASSOCIATES, INC. et al. v. MASSOOD.
    (518 SE2d 903)
   Smith, Judge.

We granted this interlocutory appeal to consider the trial court’s denial of motions for summary judgment by defendant-appellants Frank Mayes & Associates, Inc., Frank D. Mayes, F. Chip Mayes (collectively “Mayes”), Malón D. Mimms, Malón D. Mimms, Jr., Mimms Family, L.R, Malón D. Mimms Family, L.P., and Mimms Enterprises, Inc. (collectively “Mimms”). Because plaintiff-appellee Louis E. Massood was either a trespasser or licensee on appellants’ property at the time of his injury and he has shown no breach of the limited duty owed to him, we reverse and direct that the trial court enter summary judgment in appellants’ favor.

The relevant facts of this case are not in dispute. Mayes leased a commercial building from Mimms to carry on its sound and light production business. The building was a warehouse with offices in the front section and a lowered ceiling over the office area. The attic or loft formed by the office ceiling was floored with plywood and used for the storage of old equipment. It had no permanent means of access such as steps or a fixed ladder; it was reached, when necessary, with a folding ladder.

Defendant Shawn Martin, not a party to this appeal, is a sound engineer who worked for Mayes as an independent contractor, working on sound equipment and preparing it for concerts and events. At the time of the incident, Massood had no connection with Mayes other than friendships with several people who worked for Mayes, including Massood’s roommate David Creed. Massood once painted a stage for Chip Mayes, but that was the only time he had ever been on the premises for a business purpose. He testified that he had been in the attic area on two earlier occasions visiting with his friends when they were “on break”; according to Massood, they just sat up there and talked. He did not know if Mayes was aware that he had been up in the attic.

On Saturday, August 12, 1995, Massood came to Mayes’s business to meet Martin for lunch. Martin was the only person on the premises at the time. When he arrived, Massood immediately told Martin that he suspected Creed had stolen money and property from his house and had hidden them somewhere in the warehouse. Massood acknowledged that he was “mad”; Martin testified that Massood was “very heated” and “on a mission to find his stolen property.” Massood went through the office area and through a closed door marked “employees only” into the warehouse to look for the items. While Massood contends Martin gave him permission to enter the warehouse, Martin testified that he did not stop Massood because he did not want a confrontation.

Massood searched the warehouse briefly and then climbed up on a table or shelves to get into the attic area. As he walked toward the back of the attic, he stepped off the plywood flooring and between the ceiling joists. He fell through the ceiling below into a bathroom, injuring himself.

1. We must first consider Massood’s legal status while on the premises, because the duty of an owner or occupier of land to a person injured there depends upon the injured person’s status as an invitee, licensee, or trespasser. The duty owed to an invitee on land is established by statute:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

OCGA § 51-3-1. In contrast,

(a) A licensee is a person who: (1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interest, convenience, or gratification.
(b) The owner of the premises is liable to a licensee only for willful or wanton injury.

OCGA § 51-3-2.

But “[a] trespasser is one who, though peacefully or by mistake, wrongfully enters upon property owned or occupied by another. [Cits.]” Barber v. Steele, 133 Ga. App. 290, 292 (1) (211 SE2d 133) (1974). An owner or occupier of real property owes no duty to keep the premises safe for a trespasser present without his knowledge, even if the owner or occupier generally knows that it is customary for trespassers to enter his property. Once the trespasser’s presence becomes known, the only duty is to refrain from wilfully and wantonly injuring him. Id.

The evidence presented here shows that Massood entered Mayes’s premises, went into a warehouse area marked “employees only,” and used a piece of furniture to climb up into a normally inaccessible attic to look for his personal property. At the time he fell through the bathroom ceiling, Massood clearly was not an invitee.

Massood testified that Martin gave him permission to search the warehouse and the loft, and he contends this gave him the status of a licensee. Martin denies this allegation, but the factual dispute is immaterial to our decision here. Whether the standard for liability to a licensee or to a trespasser is applied to the facts here, Massood cannot recover.

2. When an alleged injury is caused by a static condition, as opposed to dangerous active operations or active negligence, “no duty arises with reference to the licensee of keeping the usual condition of the premises up to any standard of safety, except that they must not contain a pitfall, a mantrap, or other things of that character.” (Citations and punctuation omitted.) Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998). See also Hawkins v. Brown, 228 Ga. App. 311, 312-313 (2) (491 SE2d 423) (1997).

“The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury.” (Citations and punctuation omitted.) Id. at 313. It is a “contrivance so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.” (Citations and punctuation omitted.) Id. See, e.g., McKinsey v. Wade, 136 Ga. App. 109 (220 SE2d 30) (1975) (vending machine booby-trapped with dynamite to discourage theft). Such hazards as excavations, open manholes, and the like maintained “so close to the traveled way as to constitute a peril to those who may accidentally step aside from the traveled way,” are considered to fall within this definition. Hawkins, supra at 313.

Massood contends the condition of the attic floor constituted a mantrap or pitfall, but every case cited by Massood is distinguished by the close proximity of the alleged mantrap or pitfall to a well-traveled area where people reasonably could be expected to step accidentally aside and into the hazard. In Central of Ga. R. v. Ledbetter, 46 Ga. App. 500 (168 SE 81) (1933), the defendant cut away and left unguarded a large opening in a plank walkway used for access to moored vessels. Harvill v. Swift & Co., 102 Ga. App. 543 (117 SE2d 202) (1960), involved an invitee, not a licensee, who fell into an open manhole eight to ten inches from the edge of the defendant’s loading dock. In MacKenna v. Jordan, 123 Ga. App. 801 (182 SE2d 550) (1971), the front steps of a home led directly to a 12-foot-deep hole where the uncompleted porch should have been. In Mathis-Akins Concrete Block Co. v. Tucker, 127 Ga. App. 699 (194 SE2d 604) (1972) (physical precedent only), a night watchman fell into an open pit between two railroad tracks that was ordinarily concealed by a rail-car. Wilbanks v. Echols, 209 Ga. App. 210 (433 SE2d 134) (1993) (physical precedent only), involved the excavation of an 18-foot deep pit adjoining and partially in the public right-of-way and the injury of a volunteer firefighter who fell into it while answering a call.

In contrast, the attic from which Massood fell was virtually inaccessible by ordinary means and was located far from any area that passersby or casual visitors reasonably could be expected to traverse. And this passive and static condition in an ordinarily inaccessible attic does not demonstrate wilful or wanton conduct, since Massood “was not obliged or induced to step across it by any act of defendants.” Hawkins, supra at 314.

In summary, Massood came to appellants’ business on a weekend while the building was occupied only by an independent contractor. Then, on a personal errand wholly unconnected with Mayes’s business, he went into a warehouse restricted to employees, used a piece of furniture to gain access to an ordinarily inaccessible area, and then walked to the rear of that area, where he fell. His status at the time of his injury was that of a trespasser or at best a licensee, and appellants were obligated only to refrain from wilfully or wantonly inflicting injury or knowingly allowing him to be injured by a mantrap or pitfall. No evidence was presented that appellants wilfully injured Massood or maintained a mantrap or pitfall in an area where he could have been expected to travel, and the trial court consequently erred in failing to grant appellants’ motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided June 3, 1999.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Brian J. Amero, for appellants.

Stevens & Associates, Ronald S. Stevens, James B. McClung, for appellee.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       Mayes argues that Martin’s knowledge or permission cannot be imputed to Mayes because the evidence is uncontroverted that Martin was an independent contractor and not Mayes’s agent or employee. But we do not reach this issue.

       Cases of injuries occurring on land immediately adjacent to a public way involve a different standard. See Intl. Paper Realty Co. v. Bethune, 256 Ga. 54, 55 (344 SE2d 228) (1986).


text:
    A99A0552.
    STRAITE v. THE STATE.
    (518 SE2d 914)
   Smith, Judge.

Eric Straite was indicted on a charge of trafficking in cocaine. OCGA § 16-13-31 (a) (1). He moved to suppress the contraband, and after a hearing his motion was granted. The State moved for reconsideration of the trial court’s order suppressing the evidence, and the trial court granted the State’s motion. The case was then tried before a jury, which found Straite guilty. His motion for new trial, as amended, was denied, and he brings this appeal. We find no error and affirm.

1. Straite first raises the general grounds. At trial, Straite testified that he was a North Carolina resident. According to Straite, he and a friend, Douglas Adams, decided to drive to Atlanta in the summer of 1996. Straite testified he wanted to visit friends in Atlanta and Adams wanted to sightsee and see the Olympic village. Straite testified he used his mother’s credit card to rent a car for the trip, and he and Adams drove to Atlanta on July 10th. En route, they were stopped on 1-85 in South Carolina at about 1:00 p.m. for speeding, and Straite was issued a warning citation. The officer asked if he could search the car, Straite consented, and the car was searched. Nothing was found. When Adams then asked to use the restroom, the officer patted him down and discovered marijuana on his person. Adams was fined over $300, and Straite paid part of the fine, leaving him with only six dollars. They then continued driving to Atlanta.

They arrived at the home of Straite’s friend, where “five or six” people were gathered, including James Gilmore, who was known to Straite. Straite and his friend remained at the apartment while Adams and Gilmore left in the rental car to see the Olympic village. Straite estimated they were gone “maybe an hour, hour and a half.” When they returned, Straite borrowed $20 from his friend for the return trip, and he and Adams prepared to leave, although they had been in the Atlanta area for only a few hours. Gilmore asked if he could ride with them to North Carolina, and Straite agreed. Straite handed him the car keys so he could place his belongings in the car, and Gilmore left with a black tote bag. When Gilmore returned, Gilmore changed his mind about riding with Straite and Adams.

Straite and Adams left Atlanta about 7:30 p.m., and they were stopped in Gwinnett County by Deputy Myron Walker of the Gwinnett County Sheriff’s Department at approximately 8:00 p.m. for failure to maintain lane. Both Walker and Straite testified that Straite was informed he would be given a warning and would be free to go. As Straite was about to leave, Walker asked him if he had anything illegal in the car. When Straite answered no, Walker asked if he would consent to a search, and Straite consented.

While Walker was filling out the written consent form, another Sheriff’s Department officer, Sgt. Robert Rapien, arrived. Walker told Rapien in the presence of Straite that consent had been obtained, and Rapien began the search of the rental car. When he searched the trunk, he pulled back the soft panels inside the trunk liner and saw a brown paper sack on top of the fender well. The package was tied with a knot, which Walker cut, and upon opening the package the officers discovered white material wrapped in cellophane. Straite and Adams were then both arrested and handcuffed. Rapien field tested the white substance, and it proved positive for cocaine. A GBI forensic chemist testified that the contraband consisted of 35.9 ounces of cocaine with a purity of 80.7 percent. Straite maintained his innocence, claiming he knew nothing of the cocaine in the trunk.

Straite argues that the evidence was entirely circumstantial, and that the State failed to eliminate all other reasonable hypotheses save his guilt. We do not agree. Even assuming that the evidence presented was entirely circumstantial, the question of whether to believe Straite’s protestations that he knew nothing of the cocaine and whether the evidence excluded every reasonable hypothesis save Straite’s guilt were for the jury. Cantrell v. State, 230 Ga. App. 693, 695 (498 SE2d 90) (1998). Straite had no luggage or personal items on the trip, and he was in Atlanta only a few hours, based upon the time of the stops in South Carolina and Gwinnett County. The State showed that the credit card Straite used to rent the car had been used to rent 22 or 23 vehicles for Straite within the fourteen-month period prior to this stop, at a cost of over $70,000. Straite testified he earned between $24,000 and $26,000 a year. Straite claimed he rented cars frequently to go to various car races in South Carolina, and he sometimes rented cars for customers of his auto detailing business. But these rental vehicles had been driven a total of almost 25,000 miles. The evidence presented was sufficient to authorize the jury to find Straite guilty of trafficking in cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Straite asserts the trial court erred in denying his motion to suppress because the search of the car exceeded the consent granted. We do not agree.

In its original order granting the motion to suppress, the trial court relied upon Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989), finding that the search had exceeded the scope of the consent. But the facts surrounding both the consent given and the search were different in Amato. In that case, the officer merely asked if the driver objected to opening his trunk and requested permission only to “look in” a cooler and other items in the trunk. Id. at 459. Consent was given, but no contraband was located in those items, prompting the officer to inquire whether he could look in the passenger compartment and the “things” therein. Consent was again obtained, but when the officer again found nothing he pried off a vent cover attached to the doorframe and broke it. He found a package that later proved to contain cocaine. This court held in Amato that the search exceeded the scope of the consent given, because the consent did not authorize the officer to disassemble the car. Id. at 460 (1).

The consent in this case was broader. In addition to giving verbal consent, Straite signed a written consent form authorizing officers “to conduct a complete search of my vehicle and the contents within it” and “to take from the above described vehicle any property or contraband that is present, which violates State and Federal law.” The search, on the other hand, was narrower. Straite’s car was not “disassembled.” Rapien testified that he merely pulled back some carpet panels that were attached with velcro. The search of Straite’s trunk did not exceed the scope of the consent, and the trial court properly granted the State’s motion for reconsideration and denied Straite’s motion to suppress. Caster v. State, 210 Ga. App. 809, 810-811 (3) (437 SE2d 608) (1993). See also Semelis v. State, 228 Ga. App. 813, 815-816 (1) (b) (493 SE2d 17) (1997).

3. Straite alleges the trial court erred in finding that the newly discovered evidence on which his motion for new trial was based was insufficient. We find no merit in this enumeration.

The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

(Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

In support of the motion for new trial, Straite proffered the “newly discovered” testimony of Adams. Adams did not testify at trial. He was arrested with Straite, but the charges against him were dismissed at a preliminary hearing and he returned to North Carolina. He was subsequently re-indicted, and when he did not appear, a warrant was issued in Gwinnett County for his arrest. By the time Adams testified at the hearing on Straite’s motion for new trial, he had pled guilty to a lesser offense and received a reduced sentence. Adams testified at the hearing that Gilmore placed the cocaine in the trunk and that Straite had no knowledge of the cocaine. He stated he had not come forward earlier because no one asked him about it.

This evidence does not meet all the requirements outlined in Timberlake. Straite failed to show due diligence in obtaining Adams’s testimony at trial. He and Adams were lifelong friends, and he failed to show that he could not locate Adams. In fact, Straite’s trial testimony indicates that he did talk to Adams before trial and that Adams told him he would not return to Georgia and Georgia authorities “were going to have to come and get him.” Further, Straite testified himself at trial that he had no knowledge of the cocaine, so at least a portion of Adams’s testimony was clearly cumulative. And although Adams testified that he would have given the testimony at trial had anyone asked him, this statement conflicted with Straite’s testimony that Adams would not come to Georgia.

Given Adams’s silence while it was possible for him to receive a greater punishment, his post-trial testimony is completely lacking in credibility, and it is not probable that his testimony at trial would have produced a different verdict. Similar situations, in which co-defendants have pled guilty and then made post-trial offers to exculpate their co-defendants, have been disapproved by this court. See, e.g., Ansell v. State, 172 Ga. App. 89 (1) (321 SE2d 819) (1984); Highfield v. State, 163 Ga. App. 599, 600 (1) (295 SE2d 350) (1982). When a co-defendant who was available to testify at trial offers to exculpate the defendant after the co-defendant has removed himself from further jeopardy, the evidence does not qualify as “newly discovered.” Highfield, supra at 600 (1). The trial court did not err in denying the motion for new trial.

Decided June 3, 1999.

Henderson & Lipscomb, Lyle K. Porter, for appellant.

4. In his final enumeration, Straite contends the trial court erred in ruling that he received effective assistance of counsel at trial.

A trial court’s finding that a defendant has received effective assistance of counsel must be affirmed unless clearly erroneous. Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457) (1993). The burden was on Straite to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). A strong presumption exists that representation has been effective, and trial strategy and tactics do not establish ineffective assistance. Davis v. State, 209 Ga. App. 755, 757 (1) (434 SE2d 752) (1993). “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. [Cit.]” Earnest v. State, 262 Ga. 494, 496-497 (5) (422 SE2d 188) (1992).

Straite claims his trial counsel was ineffective in several ways, none of which is persuasive. His claim that counsel failed to consult with him is belied by the undisputed testimony of trial counsel that he met and talked with Straite on several occasions. His principal contention is that his trial counsel was ineffective in failing to contact or find his co-defendant, Adams. But trial counsel testified without contradiction that the decision not to use Adams was a trial strategy formed in consultation with and with the approval of Straite. Straite’s defense depended upon his claiming innocence and attempting to shift blame to Adams.

Adams’s failure to appear at trial and continued flight from justice lent credibility to this theory. This was clearly trial strategy and did not constitute ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A99A0563.
    LUNDGREN v. THE STATE.
    (518 SE2d 908)
   Judge Harold R. Banke.

Clifford Lundgren appeals his conviction for disorderly conduct for which he received a year’s probation and a $1,000 fine.

The underlying case arose while Lundgren was attending classes at the Federal Law Enforcement Training Center (“FLETC”). Late one Friday night after returning from an evening out, Lundgren became embroiled in a minor scuffle with three fellow students. Lundgren and the others were transported to a FLETC security office but were not placed under arrest. Although Lundgren declined an offer for medical treatment, EMT’s were called anyway. While awaiting the arrival of the EMT’s, notwithstanding his somewhat intoxicated condition, Lundgren acted respectfully toward the officers, repeatedly stated that it was all his fault, and apologized to the others. Despite holding his arm as though in pain, he continued to insist that he was okay.

When EMT Ginger Fernandes arrived, Lundgren again refused treatment. While sitting hunched over on a bench, Lundgren told her at least three times that he did not want any medical treatment. Unbeknownst to Lundgren, Fernandes wanted to obtain his name so that she could complete a refusal form. When Fernandes yet again asked for his name, he responded, “I don’t think so.” When she repeated that question, and was leaning directly over him, Lundgren mumbled, ‘You have nice tits.” When she asked him, “What did you say?” he again mumbled, ‘You’ve got nice t — s.” According to Fernandes, after she informed Lundgren, ‘You know, I don’t appreciate that,” he repeated the comment. Fernandes complained to a security officer that Lundgren was harassing her and that she wanted to press charges for sexual harassment. Upon overhearing that news, Lundgren then said, “Oh, well, no, I said you had ugly t — s.” According to the closest security officer standing just a few feet away, he did not hear Lundgren use any loud, boisterous or profane language. Nor did the evidence indicate that anyone other than Fernandes heard Lundgren’s comments.

Fernandes testified that she informed the FLETC that she wanted an apology from Lundgren when he was sober. Lundgren, in fact, sent her a note and flowers, and telephoned her to apologize. She testified that Lundgren’s “rude and unbecoming language” offended and “disgusted” her.

Lundgren explained that he meant no harm by his remark and intended it as a compliment. According to Lundgren, it was a “triggered response” to his noticing her breasts. He testified, “It was more or less that she was leaning over and all of a sudden I noticed, I went, gee and it just turned on [a] switch. I said something that in normal sobriety I never would have said, but in that particular moment in time, it just came out. . . .” When he reversed his “compliment,” he was “trying to make humor out of the whole situation.”

A videotape captured the entire exchange. Although some of the conversation is inaudible, Lundgren’s actions and demeanor do not exhibit an effort to provoke an immediate breach of peace. Nor does Fernandes appear to be outraged or incited. No yelling, no spectacle, no confrontation occurs. Nor does Lundgren address his apparently private remarks to others in the room. After this brief conversation, the video shows Fernandes calmly leaning on a counter, filling out some paperwork with her back to Lundgren who remains seated. Held:

In his sole enumeration of error, Lundgren contends that the trial court erred by denying his motion for directed verdict of acquittal. Lundgren was charged under subsection (a) (3) with disorderly conduct by: (1) without provocation, (2) using to another in such person’s presence, (3) opprobrious or abusive words, which by their very utterance tend to incite an immediate breach of the peace. OCGA § 16-11-39 (a) (3). This subsection of the statute is designed to punish “fighting words” which by their very utterance tend to incite an immediate breach of peace. Rozier v. State, 140 Ga. App. 356 (231 SE2d 131) (1976). To ensure no abridgment of constitutional rights, the application of OCGA § 16-11-39’s proscription on “fighting words” must necessarily be narrow and limited. Williamson v. State, 249 Ga. 851 (295 SE2d 305) (1982).

Here, at issue is whether Lundgren’s vulgar comments also constituted language so opprobrious or inherently abusive as to be “fighting words” within the meaning of the law. Crolley v. State, 182 Ga. App. 2, 3-4 (354 SE2d 864) (1987); see Brooks v. State, 166 Ga. App. 704, 705-706 (305 SE2d 436) (1983) (gesturing at a police officer and yelling to a large crowd of 150 to 200 people that “cops are dogs,” constituted “fighting words”).

State law no longer criminalizes the use of unprovoked language threatening an immediate breach of peace, which is obscene, vulgar, or profane, that is directed to a person older than 14 years of age, unless such language also constitutes “fighting words.” Crolley, 182 Ga. App. at 4; see OCGA § 16-11-39 (a) (4). The remarks at issue, although certainly rude, crude, and socially unacceptable, were not “sufficiently belligerent to incite an immediate breach of the peace.” City of Macon v. Smith, 244 Ga. 157, 159 (259 SE2d 90) (1979); compare Johnson v. State, 143 Ga. App. 826-827 (240 SE2d 207) (1977). While we do not condone these remarks, they cannot fairly be characterized as “fighting words” in the circumstances and context in which they were said. Therefore, Lundgren’s conviction cannot stand. City of Macon, 244 Ga. at 159; Crolley, 182 Ga. App. at 5; Rozier, 140 Ga. App. at 356 (conviction reversed because uttering “[h]ow about some pussy?” to a 16-year-old female did not constitute “fighting words”).

Disorderly conduct is a crime against the public order and is codified as such. It is not a private, personal tort. For that reason, we are perplexed by the vagueness of the statutory definition of “fighting words” in OCGA § 16-11-39 (a) (3). What might be fighting words to one person might not be to another person. It is not inconceivable that someone might consider the words at issue here to be complimentary rather than offensive. Compare Tucker v. State, 233 Ga. App. 314, 316 (2) (504 SE2d 250) (1998) (evidence of Tucker’s hostile, loud, and argumentative conduct, coupled with his utterance of abusive and opprobrious phrases like “f — in,” “fu-you,” “d-n,” and “g-d-n,” “f-ing c-nts,” supported jury’s finding of “fighting words”); compare Nunn v. State, 224 Ga. App. 312 (1) (a) (480 SE2d 614) (1997) (defendant’s “defiant, violent, and profane conduct” while using “disgustingly profane words which disparaged the dignity of motherhood, childhood, and the intellect of law enforcement officers” constituted “fighting words”). As written, this subpart of the statute is in the same vein as the old vagrancy law which created constitutional problems. To avert similar unwarranted prosecutions, we are hopeful that the Legislature and the Supreme Court will carefully examine this definition and craft one that is more specific, less vague, and less susceptible to misapplication.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

Decided June 3, 1999.

Lane & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

       Fernandes remarked several times, “I want to make sure he’s home for the Easter bunny.” The events occurred on the day before Easter and her wish apparently came true. Lundgren was immediately dismissed from the FLETC and was sent on the first available flight back to his home in Alaska.

       “[W]ords which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words.’ ” OCGA § 16-11-39 (a) (3).