author: Birdsong, Presiding Judge. Smith, Judge,

text:
    A95A0226.
    FERNANDEZ et al. v. BANK OF DAHLONEGA.
    (459 SE2d 424)
   Birdsong, Presiding Judge.

Eusebio J. Fernandez, as trustee and in his individual capacity as participant under the Ellijay Medical Center, P.C. Money Purchase Pension Plan and Ellijay Medical Center, P.C. Profit Sharing Plan (the plans), appealed to the Supreme Court of Georgia from the superior court’s order, which granted the motion for summary judgment of the Bank of Dahlonega (Dahlonega bank) and denied Fernandez’s motion for summary judgment. The Supreme Court transferred the case to this court.

In 1990 and 1991, Dr. E. J. Fernandez, as trustee for the plans, purchased two certificates of deposit from the Bank of Ellijay (Ellijay bank); also, Dr. Fernandez, individually and as president of the P.C., executed a promissory note for a loan of approximately $1,230,000 from Dahlonega bank to finance the purchase of securities from Ellijay bank. In November 1991, Dr. Fernandez filed in his individual capacity an action against Ellijay bank, Dahlonega bank, Glen Marshall, and Paul Nealey (securities case), alleging that defendants had committed fraud in the sale of securities. Defendants answered; defendant Dahlonega bank also filed a counterclaim against Dr. Fernandez for breach of contract, breach of a promissory note, and fraud in procuring a loan from Dahlonega bank. In March 1992, the trial court granted Dahlonega bank’s motion for summary judgment on Count II of its counterclaim. A nunc pro tunc order was filed documenting this grant; the grant also was reaffirmed in the order here being appealed.

In December 1991, Ellijay bank filed an interpleader action in superior court. In February 1992, Judge Story of the Lumpkin County Superior Court entered an order (Judge Story’s order) which included the following conclusions and findings: (a) Defendant Fernandez, the Ellijay Medical Center, and the plans were all represented by attorney John Longino, and this was known to Ellijay bank; (b) on November 20, 1991, Mr. Longino requested Ellijay bank to notify his office when a cashier’s check payable to Ellijay Medical Center would be ready; (c) Ellijay bank acted with proper authority from the trustee, Dr. Fernandez, when it redeemed two certificates of deposit held by the plans, by preparing cashier’s checks payable to Ellijay Medical Center, P.C.; (d) Mr. Longino was acting as an agent for Dr. Fernandez when he requested the certificates of deposit be redeemed and that Ellijay bank issue the cashier’s check; (e) at the time Ellijay bank issued the cashier’s checks there was a distribution from the plans, so that the anti-alienation provisions of the Employee Retirement Income Security Act (ERISA) ceased to afford any protection to the funds; and (f) no demand for the funds of the plans was made of Ellijay bank by defendant Fernandez between the time the cashier’s checks were issued and the time the lien of Dahlonega bank attached, and accordingly, Ellijay bank did not wrongfully withhold the checks. The Ellijay Medical Center, P.C., was dismissed from the action. Additionally, Judge Story dismissed all remaining parties to the action except Dahlonega bank, and transferred the remaining claim of Dahlonega bank based on its lien on the funds and the claim of Dr. Fernandez against the funds as participant to the Gilmer County Superior Court, after finding that all these claims arose out of transactions which are the subject of the security suit pending in the Gilmer County Superior Court and initiated prior to the filing of the interpleader action. Appellee contends this transfer action was taken so that the Gilmer County Superior Court could determine whether Dr. Fernandez was entitled to any set-off as a result of his claims in the security case. Prior to transferring the case Judge Story ordered that the proceeds of the cashier’s checks, with the exception of amounts owed to beneficiaries of the plans other than Dr. Fernandez (as to which Dahlonega bank had waived any claim), be held in an account at Dean Witter pending further court order as to fund distribution.

In March 1992, the plans filed notice of appeal of Judge Story’s order with the Supreme Court of Georgia. On March 27, 1992, Dr. Fernandez and his wife filed a petition for relief under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court. On June 4, 1992, the Supreme Court of Georgia dismissed the plans’ appeal without prejudice to refile upon lifting of the bankruptcy stay. On January 8, 1993, while the bankruptcy proceedings were pending, the plans filed two adversary proceedings in bankruptcy court asserting various claims against Dahlonega bank and Ellijay bank; all these claims were based on the facts as asserted and considered in the interpleader action in Lumpkin County Superior Court. On June 30, 1993, the bankruptcy court entered an order abstaining from hearing the two adversary proceedings.

On April 7, 1993, the Chapter 7 Trustee for debtors Dr. Fernandez and his wife entered a general release pursuant to an order of the bankruptcy court approving the trustee’s motion to settle and compromise the claim of Dahlonega bank; on July 23, 1993, the Chapter 7 Trustee for debtor Ellijay Medical Center, P.C., entered a general release for the same purposes. On November 10, 1993, the United States Bankruptcy Court entered an order approving the filed proof of claim of Dahlonega bank which acknowledged, inter alia, the lien of Dahlonega bank to the funds then held by Dean Witter and setting forth the indebtedness of Dr. Fernandez to Dahlonega bank in a specified amount.

On January 8, 1993, Dr. Fernandez filed an action in the United States District Court for the Northern District of Georgia asserting, inter alia, that Judge Story lacked jurisdiction to determine if the funds had been distributed out of the plans and requesting the court to determine the interpleader claims. On September 16, 1993, the District Court dismissed this action. The plans subsequently withdrew their appeal to this ruling and the matter was dismissed in the Eleventh Circuit, United States Court of Appeals.

On April 22, 1993, Dr. Fernandez, as trustee of the plans, refiled the appeal of Judge Story’s order in the Supreme Court of Georgia. The Supreme Court affirmed the order without opinion on November 1,1993, and forwarded remittitur to the Superior Court of Gilmer County. On March 15, 1994, the Superior Court of Gilmer County entered its order regarding summary judgment, judgment on remittitur, and to disburse funds. In this order, the superior court concluded that (a) Dahlonega bank has a valid and perfected lien to the funds held by Dean Witter, (b) no party has a claim thereto superior to that of Dahlonega bank, and (c) Dahlonega bank is entitled to the funds and income thereof held at Dean Witter up to the full amount of its lien, but less certain funds and income to which Dahlonega bank had waived imposition of its lien (amounts held on behalf of persons other than Dr. Fernandez). The superior court ordered, inter alia, that Dahlonega bank’s motion for summary judgment be granted, the order granting Dahlonega bank’s motion for summary judgment in the securities cases be reaffirmed, and that Dr. Fernandez’ motion for summary judgment (filed as trustee and in his individual capacity as a participant) be denied. The order also identified the amount of Dahlonega bank’s lien, identified those funds subject to Dahlonega bank’s waiver of lien, and directed disbursement of a stated amount of the fund held by Dean Witter to Dahlonega bank. Appellants appeal, enumerating ten errors. Held:

1. Appellee Dahlonega bank’s motion to dismiss appeal is denied; in the interest of judicial economy, we will dispose of this appeal on the merits.

2. The transfer of this appeal to the Court of Appeals by the Supreme Court is tantamount to a ruling eliminating and resolving any equitable and injunctive issues which lie only within the jurisdiction of that court to determine. Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 330 (2) (444 SE2d 578).

3. In his order, Judge Story made certain factual determinations with regard to the merits of the claims of the parties to the interpled funds; his order, which included perforce the factual determinations therein made, was affirmed without opinion by the Supreme Court. We agree with appellee that under the circumstances of this case those matters therein put in issue and determined by Judge Story are res judicata; the determinations made in Judge Story’s order thus are conclusive between the parties and their privies. OCGA § 9-12-40; cf. Rushing v. Sikes, 175 Ga. 124 (1) (165 SE 89). Gunby v. Harper, 216 Ga. 94 (114 SE2d 856), which involved the mere overruling of a general demurrer, is distinguishable, and appellants’ reliance thereon is misplaced.

Accordingly, both the determination that Fernandez effected a consensual distribution of his portion of the funds in the plans and the determination that, upon issuance of the cashier’s checks, the plans’ assets were then limited to the funds which the lower court released to the trustee (and to which Dahlonega bank had waived any lien claim) were res judicata. Dr. Fernandez, in the legal capacity of trustee of the plans, was without authority over or fiduciary responsibility for those monies placed in the interpled funds; the interpled funds were no longer a part of the plans — it having been determined by Judge Story’s order, and being res judicata, that the monies in the interpled funds had been distributed from the plans and were no longer protected by the anti-alienation provisions of ERISA, 29 USC 1101 et seq. Cf. Joseph v. New Orleans Elec. Pension &c. Plan, 754 F2d 628 (5th Cir.), cert. den., 474 U. S. 1006 (106 SC 526, 88 LE2d 458). We also independently find that once the certified checks were issued, pursuant to the order of Dr. Fernandez’s agent who was then acting within the scope of his authority, the funds of the plan were as a matter of law actually distributed and received by Dr. Fernandez, although said funds were not within his actual physical possession at the time Dahlonega bank tendered its claim of lien to Ellijay bank. See OCGA § 11-3-411 (1); Harris v. Hill, 129 Ga. App. 403, 406 (1) (199 SE2d 847) (cashier’s check is a bill of exchange and is accepted in advance by the act of its issuance). Likewise, Dr. Fernandez cannot in his individual capacity recover the funds based on an ERISA claim. Once ERISA plan benefits have been actually distributed, particularly where actual acceptance is, as in this case, presumed as a matter of law (OCGA § 11-3-411 (1)), the participant(s) or former participant(s) cannot maintain a suit, grounded on an ERISA claim, to recover the distributed funds. Compare Kuntz v. Reese, 785 F2d 1410, 1411 (1) (9th Cir.) with NCNB Financial Svcs. v. Shumate, 829 FSupp. 178, 180 (1) (W.D. Va.); cf. Simmons v. Southern Bell &c. Co., 940 F2d 614 (1, 2) (11th Cir.); Joseph v. New Orleans Elec. Pension &c. Plan, supra; Tenneco, Inc. v. First Virginia Bank &c., 698 F2d 688 (4th Cir.); Lowe v. Telesat Cablevision, 837 FSupp. 410 (1) (M.D. Fla.).

4. Appellant contends that in addition to claims grounded on ERISA, he has asserted a state law claim of money had and received and also a state law claim based on a purchase money resulting trust. Pretermitting whether any such claims grounded on state law would be preempted by ERISA is whether appellant can assert such claims in this case.

(a) “A resulting trust is based on the presumed intention of the parties ... it is the burden of the party claiming to be the beneficiary of a resulting trust to prove its existence by clear and convincing evidence.” (Citations omitted.) Lee v. Lee, 260 Ga. 356, 357 (2) (392 SE2d 870). The record fails to support appellant’s claim of resulting trust or even to provide any genuine issue of material fact thereof.

(b) Additionally, by conduct, appellant has waived any state law claims of any type which are directly or indirectly based on a contention that the subject money from the plans was improperly disbursed and subsequently distributed to Dahlonega bank. Dr. Fernandez directed his agent, Mr. Longino, to cause Ellijay bank to disburse the funds money by bank checks. Ellijay bank, in reliance on this order, complied and issued certified checks. Dahlonega bank, in reliance on the issuance of the cashier’s checks thereby disbursing the funds from the account, asserted their claim of lien to those monies pertaining to Dr. Fernandez. Appellant by his conduct waived any state law claims based in whole or in part on the contention that the funds at issue had not been legitimately distributed from the ERISA plans either to the Ellijay Medical Center or to Dr. Fernandez individually, or that Dahlonega bank had asserted its valid lien against any funds which had not been so distributed. See generally Johnson v. Rogers, 214 Ga. App. 557, 560 (5) (448 SE2d 710) and cases cited therein.

(c) The dissent makes numerous assumptions in support of the conclusions therein reached. In doing so, it appears the dissent has failed to apply the well-established appellate rule that: “On appeal, it is not the function of the appellate court to weigh the evidence, but to look instead to the trial record.” Jones v. City of Atlanta, 257 Ga. 727, 729 (363 SE2d 254).

We are compelled to disagree strongly with the statement in the dissent that Judge Story did not make a decision that Dr. Fernandez had a claim against the fund as a participant and Dahlonega bank had a claim against the funds based on its lien.

In his order Judge Story expressly states: “The court finds that Dr. Fernandez has a claim against the funds as the participant. The Bank of Dahlonega has a claim against the funds based on its lien.” This language on its face reflects that the court was making a formal finding.

We also disagree with the dissent’s inherent conclusion that neither Judge Story’s order nor the bankruptcy proceedings preclude consideration of the state law claims. By offering without opinion and refusing motion for reconsideration, everything in Judge Story’s order becomes res judicata. See Kellos v. Parker-Sharpe, 245 Ga. 130 (263 SE2d 138); State v. Slater, 214 Ga. App. 119, 120 (446 SE2d 771); Stirling v. State, 199 Ga. App. 877 (406 SE2d 282); Liner v. North, 194 Ga. App. 175, 178 (390 SE2d 263).

We further disagree with the dissent’s reasoning as to the bankruptcy court. Mr. Nasuti who served as trustee, said in his affidavit he would not assert the rights reserved to him as trustee because the funds were subject to a state court lien in favor of Dahlonega bank because the net result would pay the vast majority of them to Dahlonega bank on its allowed claim.

Moreover, the bankruptcy court approved Dahlonega bank’s claim in the amount of $1,336,735.15 excluding Ellijay bank’s claim and Ellijay bank’s claim for $680,000 excluding Dahlonega bank’s claim.

Once a claim has been approved by the bankruptcy court, it verifies and establishes that the party whose claim is approved has a lien but the bankruptcy court does nothing further toward collecting the lien.

Finally, while the dissent does not agree with our application of the “waiver” doctrine to achieve a just disposition of this matter, no precedent is cited in defense of its position. Dr. Fernandez set in motion by his conduct the disbursement of these funds by his agent, who was acting under Dr. Fernandez’s authority; Dr. Fernandez having caused the funds to be distributed cannot now profit from the effect of his own manipulative business strategy.

Appellant’s enumerations of error and various contentions in support thereof are without merit.

Judgment affirmed.

Beasley, C. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., Pope, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

In my view, the trial court erroneously granted summary judgment in favor of the Bank of Dahlonega. I do not agree with the majority that either Judge Story’s order or the bankruptcy settlement precluded consideration of the various state law claims asserted by Fernandez against the funds; that none of the claims is meritorious; or that they were waived.

1. (a) I certainly agree that the issues decided in Judge Story’s order are res judicata. Unlike the majority, however, I find no factual determinations in Judge Story’s order regarding the merits of the competing claims. Judge Story made a determination that ERISA no longer afforded protection to the funds once the cashier’s checks were issued because a “distribution” had been effected. I agree that the principle of res judicata compels acceptance of that determination.

In his order in the interpleader action, Judge Story decided that “Dr. Fernandez has a claim against the funds as the participant. The Bank of Dahlonega has a claim against the funds based on its lien.” That does not appear to me to be a decision, having res judicata effect, resolving the warring claims to the funds under state law. Judge Story’s order appears to be simply a determination that the Ellijay bank did no wrong because it did as instructed, and that determination of the remaining dispute — the competing claims to the funds — should proceed in the Gilmer County action. As such, the principle set forth in Gunby v. Harper, 216 Ga. 94 (114 SE2d 856) (1960) is applicable despite the fact that Gunby involved the overruling of a demurrer, as the majority correctly points out. That is, Judge Story’s order “ ‘merely determine [d] the right of the stakeholder to maintain [its interpleader] petition, and [did] not establish the superiority of [one or] the other claim as the law of the case.’ [Cit.]” Id. at 97.

(b) Neither did the bankruptcy court decide this question. At the time of the bankruptcy settlements, the trustees in bankruptcy did not know whether the interpled funds would be the property of either bankruptcy estate; no court had as yet ruled in the interpleader action. The bankruptcy stay was, in fact, lifted specifically so that the interpleader litigation could continue. Moreover, the bankruptcy releases, executed in the context of the settlements, released only the claims of Fernandez against the Dahlonega bank (presumably those arising from the allegations of securities fraud). As discussed infra, the claim involved in this case is not Dr. Fernandez’s claim against the Dahlonega bank but the pension plans’ claim to the interpled funds.

2. Since I believe neither Judge Story’s order nor the bankruptcy proceedings precludes consideration of the state law claims, I turn to the merits of those claims.

First, the U.C.C. claim, in my view, is meritorious. The cashier’s checks that are the interpled funds were issued in the name of the P.C. The Dahlonega bank admits they became assets of the P.C. The P.C., however, did not purchase the checks for value; the checks represent funds that belonged to the pension plans, rather than to the P.C. They became assets of the P.C. only because of Longino’s mistaken instructions to the Ellijay bank. As a result, although the Ellijay bank was blameless because it followed Longino’s instructions, the P.C. was never a holder in due course. OCGA § 11-3-302. Although the Dahlonega bank may have had a lien on those funds by virtue of the guaranty, it could satisfy that lien by taking only whatever interest the P.C. had in the checks, subject to the valid claims of any person and the defenses available to any party in a contract action, such as mistake of fact. OCGA § 11-3-306 (a), (b). Such a defense is available here.

Second, I cannot agree that the record fails to support Dr. Fernandez’s claim under state law of resulting trust. Because of the unique facts in this case, I believe the funds were impressed with an implied trust for the benefit of the pension funds. This implied trust could be either a resulting trust or a constructive trust, as it fits the circumstances described in both OCGA § 53-12-92 (a) and OCGA § 53-12-93 (a). The record amply supports this allegation. The affidavits of the office manager of the P.C. and a principal in the firm that had responsibility for administering the retirement plan show there was no intent to make a distribution; the intent was to transfer the funds and keep them in the plans. Although some of the content of these affidavits is hearsay, it is also part of the res gestae in this case; it is therefore admissible. OCGA § 24-3-3; see Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (1) (317 SE2d 222) (1984). Compare Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a), 66 (2) (c) (397 SE2d 576) (1990).

3. Finally, I do not agree with the majority that any of these state law claims were waived by Dr. Fernandez through his conduct. Because the majority does not specify the conduct relied upon to reach this conclusion, it is difficult to rebut. But, assuming the conduct is that of Longino in instructing the Ellijay bank incorrectly, it does not indicate waiver; together with the affidavits discussed supra in Division 2, it forms part of the rationale for concluding that the state law claims are meritorious. A mistake was made that resulted in the P.C. acquiring legal title to funds to which it was not entitled. The funds belong to the pension fund. Although the Dahlonega bank may have a lien on assets of the P.C., it may not satisfy that lien by attaching funds to which the P.C. has no entitlement.

Decided June 13, 1995

Reconsideration denied July 10, 1995

Stewart, Melvin & Frost, J. Douglas Stewart, Steven A. Cornelison, for appellants.

Peterson, Dillard, Young, Self & Asselin, Susan W. Housen, J. Douglas Parks, Mazursky & Hiner, E. Lindsay Hiner, Thomas P. Stamps, for appellee.

I would reverse the trial court’s grant of summary judgment to the bank.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Pope join in this dissent.

       I express no opinion regarding the merits of this determination. However, even if it was correct, the distribution was made to the P.C., not to Dr. Fernandez.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A95A0475.
    JEFFERSON v. THE STATE.
    (459 SE2d 173)
   Smith, Judge.

In 1990, Eddie Jefferson was arrested for rape, and he subsequently was convicted for three rapes and related offenses. His arrest followed the third offense, which occurred in Turner County, Georgia, during the early morning hours of the day of Jefferson’s eventual arrest. One of the other rapes also occurred in Turner County in late December 1989. This appeal involves the first of these incidents, which also occurred in December 1989, but in Irwin County.

Jefferson was first tried and convicted for the Turner County rapes and several factually related offenses. He appealed from those convictions, but raised no meritorious claims of error. See Jefferson v. State, 206 Ga. App. 544 (425 SE2d 915) (1992) (Jefferson I). After his unsuccessful appeal in Jefferson I, Jefferson was tried and convicted for the Irwin County rape as well as factually related offenses of burglary and possession of a knife during the commission of a felony. The same judge presided over both the Turner and Irwin County trials, and Jefferson was represented by the same counsel at both trials and in the appeal in Jefferson I. With the assistance of substituted counsel, Jefferson moved for a new trial following his conviction in the Irwin County case. He alleged, among other things, that he received ineffective assistance of counsel at trial because of trial counsel’s failure to suppress the fruits of what he contends was an illegal arrest without probable cause. The motion was denied following a hearing in which both Jefferson and his trial counsel testified. Jefferson subsequently brought this appeal from his conviction in the Irwin County case. We reverse.

The background surrounding Jefferson’s apprehension and formal arrest is as follows. The “1990 victim” referred to in Jefferson I was raped at knifepoint during the early morning hours of August 2, 1990. Early that same morning witnesses saw Jefferson attempting to remove his truck from a ditch less than half a mile from the scene of the crime. Although police did not consider Jefferson a suspect at the time, they “were looking for him in regard to” their investigation. Jefferson was seen later that day in neighboring Worth County. Police pulled him over by flashing their “blue lights.” With weapons showing, they approached Jefferson and told him that there was “an investigation underway from Turner County” and that they wished to talk to him about it at the police station. Jefferson complied and was subsequently driven to the Worth County Sheriff’s office. Jefferson’s truck and his two children were driven to his mother’s house.

No Miranda warnings were read to Jefferson before he was “interviewed” because, according to police, the questioning was merely “exploratory” in nature and they had no information that would authorize them to detain Jefferson should he decide to leave the police station at any time. During this questioning, Jefferson’s voice was identified by the victim of the rape under investigation, and Jefferson was formally arrested based on this identification. Other inculpatory evidence gathered at or near that time included the shoes Jefferson was wearing and, pursuant to a search warrant issued a few days later, samples of his head and pubic hair. Jefferson’s photograph was also taken at that time and was subsequently used in a photographic lineup. This evidence was later used in presenting the State’s respective cases against Jefferson in both the Turner and Irwin County trials.

A Jackson v. Denno hearing was held during the Turner County trial to determine the voluntariness of the statements Jefferson made to police immediately prior to his formal arrest. The trial court obviously did not accept the State’s theory that there was no need to read Jefferson his Miranda warnings because the statements were not the product of a custodial interrogation. To the contrary, the trial court observed that “[t]here is no question in the court’s mind but that he was in custody from the time that he was stopped with the blue lights. And I think the law backs that up wholeheartedly.” Nevertheless, the trial court went on to observe that Jefferson “was not the target of the investigation . . . until the probable cause arose from the reaction of the victim. . . .With that type of thing, I overrule the objection to the testimony on the ground that it was not — while it was an in-custody [statement], there was nothing inculpatory said in it. Now, if there was something inculpatory, I think the court will be committing a grievous error.”

Jefferson, through substituted counsel, argues that the court’s ruling during the Turner County trial suggested a substantial issue regarding whether police subjected him to a custodial interrogation following an illegal arrest rather than a purely “consensual” police station interview at the time Jefferson’s statements were taken. If so, Jefferson contends, then even though he made no inculpatory statement at that time for the purposes served by a Jackson v. Denno hearing, the voice identification made during the statements originally at issue, the shoes taken from Jefferson, and other inculpatory evidence acquired as a result of that illegal arrest were suppressible fruits of that arrest; he asserts his trial counsel therefore was ineffective in failing to take appropriate steps to exclude such evidence at trial.

1. “Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). [Cit.]” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988). Applying that familiar standard to this case requires us to consider first whether Jefferson was illegally seized prior to his formal arrest, and if so, whether the evidence at issue was gathered as the direct result of that illegal seizure. If both questions are answered in the affirmative, we must then consider whether the impact of the evidence admitted without proper objection was such that there is a reasonable possibility that Jefferson may have been acquitted had that evidence been excluded from trial. Since we find each of these questions must be answered in the affirmative, we are constrained to conclude that Jefferson did not receive effective assistance of counsel in this case.

(a) “The purpose of a Jackson v. Denno hearing is to allow ‘the trial court in the first instance, as, a matter of law, and the jury, ultimately, as a matter of fact, to assure themselves of the voluntariness of a statement. . . .’ [Cit.]” Hart v. State, 193 Ga. App. 834, 835 (389 SE2d 400) (1989). We may safely assume that purpose was served during the Turner County trial with respect to the admissibility of Jefferson’s statements to police since that issue is not now before us. But by arguing that Miranda warnings were not given to Jefferson before “interviewing” him because he was not then a suspect, the State has essentially acknowledged that Jefferson was indeed illegally seized “from the time that he was stopped with the blue lights,” just as the trial court observed.

At first blush, the facts of this case and the contentions of the parties are similar to the underlying facts and points of view espoused in Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979). In Dunaway, as in the present case, the police brought the petitioner in for questioning purely for investigatory purposes without probable cause to arrest him. Finding a Fourth Amendment violation, the majority in Dunaway observed that “[t]he mere facts that petitioner was not told he was under arrest, was not ‘booked,’ and would not have had an arrest record if the interrogation had proved fruitless . . . obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry [] and its progeny. Indeed, any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Id. at 212-213.

The dissenters in Dunaway apparently differed only with the majority’s factual analysis, concluding that the petitioner voluntarily accompanied the police to the station and that his Fourth Amendment rights therefore were not implicated. The State essentially urges that same position here, arguing that Jefferson voluntarily accompanied the officers to the police station in an apparent spirit of cooperation. We do not reach the State’s argument since we must conclude that Jefferson, unlike the petitioner in Dunaway, had already been subjected to an illegal seizure before he “consented” to accompany police to the station for questioning.

“Although an officer may conduct a brief investigative stop of a vehicle [cit.], such a stop must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ [Cits.] The U. S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ [Cit.] ‘This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.’ [Cit.]” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

Here, there is simply no legitimate dispute as to whether Jefferson was stopped based on a reasonable suspicion of criminal activity. According to prior arguments and testimony offered by the prosecution in the Turner County case, Jefferson was not Mirandized prior to his “exploratory interview” with police because he simply was not a suspect until his voice was identified by the victim of the 1990 rape. Indeed, even after Jefferson admitted during questioning to being in the area near the time of the rape, the interrogating officer claimed he did not consider that an inculpatory statement because “[i]t’s not a crime to be near something.”

Despite the testimonial evidence to the contrary and without citing to the record, the State now contradicts the position taken at the Turner County Jackson v. Denno hearing, arguing that “[Jefferson’s] initial stop in Worth County, Georgia on August 2,1990, was justified by specific, articulable facts giving rise to a reasonable suspicion that [Jefferson] was the perpetrator of the rape of [the 1990 victim].” The State makes no attempt to offer an explanation for this patent and disturbing departure from its original position that Jefferson was not a suspect at the time he was stopped, and we can conjure none.

At most, the State shows that it had evidence which, if known to the officers at the time Jefferson was stopped in Worth County, would have constituted reasonable suspicion that Jefferson was engaged in criminal activity several hours earlier. But all of the testimony in the record before us contradicts the State’s position in this appeal regarding what the arresting officers knew and did not know at the time they stopped Jefferson’s truck. It therefore follows that any purported consent Jefferson may have given to being transported to the police station after being stopped was tainted by his prior illegal arrest. It likewise follows that Jefferson’s trial counsel should have pursued a motion to suppress based on the illegal stop regardless of whether Jefferson indicated to him that he indeed consented to be interviewed at the police station thereafter.

Even if the stop were not per se a violation of Jefferson’s Fourth Amendment rights under Vansant, supra, and the authorities cited therein, the facts here differ greatly from those in Dunaway, supra. The “request” for Jefferson to accompany the police to the station to assist in an investigation came under circumstances far more coercive than the situation described by the dissenters in Dunaway. Jefferson was forcibly stopped by armed police officers who, without probable cause or even reasonable suspicion, “requested” that Jefferson assist in their investigation by accompanying them to the police station for an interview. Under any circumstances such a request “ ‘may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen.’ ” Dunaway, supra at 207, n. 6. But under the circumstances presented in this case, we agree “wholeheartedly” with the skepticism expressed by the trial court on the issue of Jefferson’s purported consent to be “interviewed.”

(b) That the items of evidence at issue here would not have been gathered but for the fact that Jefferson was subjected to an illegal arrest does not alone decide whether they should be suppressed. “The question then is whether the evidence sought to be suppressed is the result of exploitation of the illegality or is sufficiently attenuated from the illegality to be purged thereof. [Cits.]” Burnham v. State, 265 Ga. 129, 131 (3) (453 SE2d 449) (1995). But the burden on this issue rests squarely with the prosecution, id., and the State has made no showing that the evidence at issue was not obtained by exploitation of Jefferson’s illegal arrest. Compare Ruffin v. State, 201 Ga. App. 792, 793 (2) (a) (412 SE2d 850) (1991). Our own review of the evidence shows that the patently illegal arrest and the subsequent acquisition of the incriminating evidence at issue were closely connected in time and that during that brief period, no intervening event served to purge the taint of Jefferson’s illegal seizure. Moreover, we cannot ignore the fact that the State has essentially argued in various proceedings that the police reasonably suspected that Jefferson committed the rape when they stopped him, yet he was not a suspect at all once he agreed to be “interviewed.”

We conclude that Jefferson’s trial counsel erred in failing to pursue a motion to suppress or otherwise object to the admission of the 1990 victim’s voice identification made the day of the rape, the samples of Jefferson’s head and pubic hair, Jefferson’s photograph, and the shoes taken from him the day of his arrest based on the illegality of that arrest. Trial counsel’s stated belief that Jefferson consented to be interviewed does not suffice to explain this omission, since that consent (even if otherwise valid) was obtained only as the result of the illegal seizure of Jefferson’s person without reasonable suspicion that Jefferson was engaged in illegal activity. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (Citations and punctuation omitted.) Vansant v. State, 264 Ga. at 321 (quoting Terry v. Ohio, supra at 9). That right was not sufficiently guarded by Jefferson’s trial counsel in this case.

(c) The remaining question is whether there is a reasonable likelihood that Jefferson would have received a more favorable verdict but for trial counsel’s failure to suppress evidence tainted by the illegal seizure of Jefferson’s person. Thompson v. State, supra. Jefferson contends that without the tainted evidence the State would have been limited to the in-court identification of him by the victim and the similar transaction witnesses. Jefferson further contends this identification was “attacked vehemently” by the defense and was clearly not the sole basis upon which the jury reached its conclusion.

The State presents no response to Jefferson’s contentions, apparently conceding the substantial evidentiary value of the items at issue. We cannot conclude under these circumstances that the outcome would necessarily have been the same despite trial counsel’s professional errors. Jefferson has shown that he was deprived of his right under the Sixth Amendment to effective assistance of counsel at the Irwin County trial, and we therefore reverse and remand for retrial.

2. For purposes of retrial, we agree with Jefferson that photographs depicting the beating received by one of the Turner County rape victims should not have been introduced as similar transaction evidence in this case because the victim in this case was not beaten in a similar fashion. In Jefferson I, we found no error in the introduction of the same photographs at issue here because we concluded that the “photographs were necessary to fully depict the extent of [the 1989 victim’s] injuries” despite their tendency to “inflame and prejudice the jury.” Id. at 548-549.

Decided June 23, 1995

Reconsideration denied July 10, 1995

Landrum & Eidson, L. Clark Landrum, Timothy L. Eidson, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

Jefferson has already been convicted of the aggravated assault depicted in the photographs at issue, and it is a crime dissimilar to any alleged in the present case. Any probative value such photographs might have had in showing that an offensive weapon was used during the 1989 Turner County rape as well as the other two rapes was far outweighed by its prejudicial impact on the jury. See generally Roose v. State, 182 Ga. App. 748, 749 (1) (356 SE2d 675) (1987) (physical precedent only). There was no error in allowing the 1989 Turner County victim to testify regarding the circumstances surrounding the rape committed against her under the standard of Williams v. State, 261 Ga. 640, 641-643 (2) (409 SE2d 649) (1991), but it was clearly improper to emphasize a wholly dissimilar and inflammatory aspect of that event by photographic evidence.

3. Jefferson’s remaining enumeration is without merit.

Judgment reversed and remanded.

Birdsong, P. J., and Johnson, J., concur.

       Specifically, following his conviction, Jefferson’s trial counsel filed a timely motion for new trial, which was initially denied. Jefferson then moved pro se for substitution of appointed counsel and for an evidentiary hearing to determine the effectiveness of his trial counsel. Trial counsel facilitated the hearing of Jefferson’s motion by filing a motion for extension of time to file Jefferson’s notice of appeal, which was granted. OCGA § 5-6-39 (a) (1). Within the period of the extension, the trial court entered an order substituting appointed counsel and, on its own motion, staying its previous order denying Jefferson’s original motion for new trial. See Austin v. Carter, 248 Ga. 775, 776-777 (1) (285 SE2d 542) (1982). Jefferson’s substituted counsel filed an amended motion for new trial, and a hearing on the matter followed.

       Although neither the State nor Jefferson suggests otherwise, we note that the issues presented in this case would have applied with equal force had they been presented for review in Jefferson I. But the question of whether Jefferson received effective assistance of counsel during the Turner County trial was not raised in Jefferson I, and it is now beyond this court’s scope of appellate review.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

         “In this case three police officers were dispatched to petitioner’s house to question him about his participation in a robbery. According to the testimony of the police officers, one officer approached a house where petitioner was thought to be located and knocked on the door. When a person answered the door, the officer identified himself and asked the individual his name. . . . After learning that the person who answered the door was petitioner, the officer asked him if he would accompany the officers to police headquarters for questioning, and petitioner responded that he would. . . . Petitioner was not told that he was under arrest or in custody and was not warned not to resist or flee. No weapons were displayed and petitioner was not handcuffed. Each officer testified that petitioner was not touched or held during the trip downtown; his freedom of action was not in any way restrained by the police.” Id. at 222-223 (Rehnquist, J., dissenting).

       As the trial court observed at the Turner County Jackson v. Denno hearing: “Well, let me shy this: I can see how friendly a fellow might become if he saw someone with a .44 magnum on the side and say, I’d certainly appreciate it for the donation of the contents of your cash drawer to me. I’m sure that you’re perfectly, you know, willing — I’m willing for you not to accede to my request — this courteous request — I’m making. I can see how I might just say, well, yes, sir, you can have it, with my blessings even though he didn’t pull the gun on me when I wasn’t armed.”


author: Beasley, Chief Judge.

text:
    A95A0866.
    ALLEN et al. v. BELINFANTE.
    (458 SE2d 867)
   Beasley, Chief Judge.

Plaintiffs Mr. and Mrs. Allen appeal from the grant of final summary judgment to defendant, oral surgeon Belinfante, in this suit filed against him and E. I. Du Pont de Nemours & Company and Dow Corning Corporation on June 7, 1994. It began with the doctor’s June 19, 1986, surgical implantation of Vitek Proplast implants in Mrs. Allen’s jaws to correct her temporomandibular joint dysfunction. The suit alleged, as to Dr. Belinfante, medical negligence in failing to notify Mrs. Allen of the serious health risks associated with her implants; improper business purpose/unnecessary treatment; breach of express and implied warranty; and intentional concealment. Mr. Allen claimed loss of consortium. The trial court granted final judgment to Dr. Belinfante on the grounds that plaintiffs’ claims against him were barred by the two-year statute of limitation, OCGA § 9-3-71 (a), and the five-year statute of repose, OCGA § 9-3-71 (b).

Plaintiffs focus only on their claims involving medical negligence and concealment. Any challenge to judgment on their remaining theories of recovery is considered abandoned. Even if the additional claims were pursued, the analysis is the same because “[t]he medical malpractice statute of limitation applies to malpractice actions founded upon either tort or contract theories of liability. [Cits.] It applies to all claims arising out of a medical malpractice cause of action. [Cit.] A suit is a medical malpractice action where, ... , it calls into question the conduct of a professional in his area of expertise. [Cit.]” Knight v. Sturm, 212 Ga. App. 391, 392 (2) (442 SE2d 255) (1994).

Plaintiffs’ principal contention is that the statutes of limitation and ultimate repose were tolled until June 1993, the date Mrs. Allen alleges she found out from another dentist about her problems, by Dr. Belinfante’s constructive fraud in failing to disclose his probable knowledge of problems with the implants. OCGA § 9-3-96. They also urge that the failure to warn is a continuing tort, tolling the statute of limitation; that their affidavits submitted in conjunction with their supplemental brief in opposition to the doctor’s motion to dismiss were improperly excluded; and that any question as to whether the expert affidavit filed with their complaint complies with OCGA § 9-11-9.1 is frivolous.

1. First, plaintiffs’ expert affidavit was sufficient.

In his original motion to dismiss, Dr. Belinfante maintained that the Allens’ affidavit was defective because it failed to specifically identify at least one negligent act or omission and the factual basis for it.

The affidavit of dentist Sommercorn stated that Dr. Belinfante failed to exercise the minimum degree of care and skill by failing in a timely manner to provide Mrs. Allen with notice of the serious health risks and known problems associated with the interpositional implants. This was based on Sommercorn’s examination of Mrs. Allen’s medical records and her finding no indication that Dr. Belinfante had ever provided Allen with such notice, including an FDA public health alert. Since the gist of the alleged tort was omission, the failure to find affirmative evidence of notice provided sufficient factual support for the alleged negligent act. See Crook v. Funk, 214 Ga. App. 213, 214 (447 SE2d 60) (1994), which discusses the purpose of the OCGA § 9-11-9.1 affidavit and proper construction to be given to it.

2. The court erred in granting Dr. Belinfante’s motion to strike from consideration the Allens’ supplemental brief in opposition to his motion to dismiss and the opposing affidavits of Mrs. Allen and expert Captline on the basis that they were untimely filed. The documents, which were filed the Friday afternoon before the Monday morning hearing, were timely. In Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988) a response filed the day before the hearing date was held to be timely without consideration of the time of day of the filing, that is, whether or not the period of time was 24 hours.

3. Dr. Belinfante failed to show that plaintiffs’ suit was time-barred.

Plaintiffs argue that their suit is timely due to a tolling of the period of limitation because of alleged actual or constructive fraud occurring within two years of the surgery or, alternatively, that there was a continuing tort. Survival of their cause does not rest upon either a tolling of the two-year time frame following the surgery or application of the doctrine of a continuing tort, the viability of which has been questioned in light of legislative changes. See Parker v. Vaughan, 124 Ga. App. 300 (183 SE2d 605) (1971), which adopted the theory of a continuing tort when a foreign object is left in the body; see also Clark v. Mem. Hosp., 145 Ga. App. 305 (243 SE2d 695) (1978); Crawford v. Spencer, 217 Ga. App. 446 (457 SE2d 711) (1995).

Plaintiffs’ cause is the failure to warn or give notice of the danger of the implants. This tort is alleged to have occurred at three specific times: the time of surgery in 1986, the time of the FDA alert in December 1990, and the time of examination of Mrs. Allen in 1992 or 1993. See Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993), which involved separate alleged tortious acts occurring during a course of treatment.

Plaintiffs maintain that the doctor’s affidavit testimony and his subsequent deposition testimony provide a reasonable inference that the doctor “may have had knowledge” of the problems with the implants before 1990. The deposition testimony plaintiffs point to is not supportive. At most, Belinfante stated in his deposition that he was aware of some “corridor talk” or “anecdotal information” but that he also knew that numbers of doctors were not having any problems with the implants. Even this knowledge of rumor appears not to have occurred before 1990.

Nor can plaintiffs impute knowledge to Belinfante by their documentary evidence and expert opinion that he should have earlier known or suspected the problems. The affidavit of plaintiffs’ expert, Dr. Captline (D.M.D. and J.D.), which was improperly excluded by the trial court, does not accomplish this. Dr. Captline’s affidavit states that serious questions regarding the effectiveness and safety of the implants were generally known to oral surgeons in June 1986; he cites in support an article appearing in a professional journal. The date on the article is August 1987, i.e., after Mrs. Allen’s surgery. Secondly, although the article discusses certain problems with the implants, it concludes that a high percentage of cases were considered by both patient and surgeon to be essentially successful, and it does not suggest that utilization of the implants is professionally negligent.

Captline states that Belinfante “almost certainly” received information by mail in 1987 regarding serious questions about the inappropriateness of the synthetic implant procedure, but does not reference any specific document or provide any factual support for this speculation. There is a document of record dated October 1986 from the president and chairman of Vitek and generically addressed to “dear doctor” which discusses certain findings involved with the implant procedure, but it does not contraindicate its use. Captline also states that in June 1986, the standard of care for oral surgeons required Belinfante to offer Mrs. Allen, as then a prospective implant recipient, conservative treatment. The evidence shows that Mrs. Allen underwent considerable conservative treatment prior to her surgery. There is no evidence that at the time of the surgery on Mrs. Allen or until the FDA alert in 1990, Belinfante knew or had reason to know of the potential for problems which would make the surgical procedure or the failure to warn of it an act of medical negligence.

The complaint of failure to warn at the time of the December 28, 1990, FDA alert fails as well. First, Belinfante testified that he notified his patients. Second, in Mrs. Allen’s affidavit she refers to post-surgical visits through 1990 but gives no indication whether or not the last visit was after the time of the FDA alert. Giving plaintiffs the benefit of all favorable inferences and assuming it was, the evidence arguably raises a question of negligence but does not raise an issue of fraud such as would have tolled the time for filing suit until 1994.

Nevertheless, it was error to dismiss the suit, because of Dr. Belinfante’s admitted examination of Mrs. Allen in 1993 and the disputed evidence about the treatment and information given at that time. Belinfante testified that during this examination he took X-rays, saw no gross pathology, advised that Mrs. Allen needed her bite adjusted, gave her information on the implants, and told her to return every three or four months to be checked. In contradiction, Mrs. Allen averred that in spite of her continuing problems with infections and jaw joint pain, at no time, including examinations in 1992 or 1993, did Dr. Belinfante advise her of any known or suspected health problems or hazards associated with the implants. The factfinder must determine whether or not, during the 1993 examination or examinations of Mrs. Allen, Dr. Belinfante breached the required professional standard of care by failing to warn of the then known dangers associated with Mrs. Allen’s implants.

Decided June 26, 1995

Reconsideration denied July 10, 1995

Alexander J. Repasky, David M. Toolan, for appellants.

Smith, Gambrell & Russell, Matthew S. Coles, for appellee.

Summary judgment to Dr. Belinfante on the Allens’ claims based upon his alleged medical negligence in 1993 was not authorized.

Judgment affirmed in part and reversed in part.

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


text:
    A95A1109.
    LEWIS v. THE STATE.
    (458 SE2d 861)
   Smith, Judge.

John L. Lewis was convicted of child molestation and sentenced in July 1993 to eight years probation. In August 1994, he filed a motion requesting first offender treatment. The trial court denied the motion, concluding it had no authority to grant such treatment after the term in which Lewis was sentenced. Lewis appeals, contending the trial court’s conclusion was erroneous because his sentence was probated and OCGA § 42-8-34, which governs probated and suspended sentencing, gives a sentencing judge broad discretion to modify probated sentences during the term of the sentence.

We have found no cases addressing the question of whether a sentence may be modified after the term of court during which the sentence was imposed but during the term of probation. Lewis correctly points out that the legislature amended OCGA § 17-10-1 (a), deleting language in the former statute prohibiting suspension, probation, modification, or change of sentence (“except as otherwise provided by law”) after the term of court, or 60 days from the sentencing date, whichever time is greater.

He also finds support for the modification he requested in OCGA § 42-8-34 (g), which provides that a sentencing judge does not lose jurisdiction over an offender placed on probation during the term of his probated sentence; the judge has authority to revoke, rescind, or modify any or all of the probated sentence at any time during the term originally prescribed for the probated sentence.

In addressing the issue presented by this case, however, we need not address either the meaning of the omission of the restrictive language in OCGA § 17-10-1 (a) or the parameters of a sentencing judge’s retained jurisdiction under OCGA § 42-8-34 (g) during a sentence of probation. We conclude that Lewis’s motion in this case was properly denied because the particular modification he requested — first offender treatment — was prohibited under the terms of the first offender act itself. OCGA § 42-8-60 et seq.

Decided June 21, 1995

Reconsideration denied July 10, 1995

Macklyn A. Smith, Sr., for appellant. Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assis-

tant District Attorney, for appellee.

The use of first offender treatment allows the defendant to be placed on probation without an adjudication of guilt in order to afford one who successfully completes such probation “protection against the stigma of a criminal record.” Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990). Under OCGA § 42-8-60 (a), first offender treatment may be granted to a defendant who has not been previously convicted of a felony, “[u]pon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt.” (Emphasis supplied.) Such treatment defers further proceedings, including sentencing. O’Ree v. State, 172 Ga. App. 51, 52 (322 SE2d 89) (1984). It follows that it may not be granted after a defendant has been sentenced. The trial court did not err in denying Lewis’s motion.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: Ruffin, Judge.

text:
    A95A0203.
    ADAMS v. THE STATE.
    (458 SE2d 918)
   Ruffin, Judge.

Micheál Angie Adams appeals from her conviction on four counts of forgery.

The evidence at trial showed that on November 13, 1993, Adams purchased furniture from J. D. Kinder’s Furniture Store. Adams paid for the furniture by writing checks purported to be drawn on a NationsBank account of Ace Trucking & Storage for $1,454.96 and the account of Micheál Angie Adams for $238.16. Both checks were later returned by the bank stamped “UNABLE TO LOCATE ACCT.” On February 1, 1994, Adams paid for groceries she purchased from Pub-lix grocery store with a check purported to be drawn on a Nations-Bank account of Micheál Angie Adams in the amount of $247.51. The store manager subsequently learned the check was written on a nonexistent account, and when Adams returned to Publix a few days later attempting to cash another check, the manager contacted the police.

At trial, an investigating police officer testified that the phone number printed on the personal checks was a nonexistent number and that he could not locate any business called Ace Trucking. A representative from NationsBank testified that the bank never had any accounts in the names of Ace Trucking & Storage or Micheál Angie Adams; that there had never been any accounts at the address listed on the checks; and that Adams used these checks without Nations-Bank’s authority.

1. Adams contends the trial court erred in failing to give her requested jury charge on negotiating fictitious checks. Adams contends that negotiating fictitious checks is a lesser included offense of forgery and therefore the charge should have been given.

Negotiating fictitious checks is a lesser included offense of forgery if “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [forgery,] the crime charged.” See OCGA § 16-1-6 (1). Under OCGA § 16-9-1 (a), Adams could be convicted of forgery in the first degree if, with the intent to defraud, she possessed the checks knowing that while they were purportedly made with the authority of NationsBank, the bank never gave such authority, and with this knowledge Adams uttered or delivered the checks. Under OCGA § 16-9-21, Adams could be convicted of negotiating a fictitious check if she negotiated a check knowing that the information printed on the check was fictitious.

After comparing the two offenses, we conclude that the offense of negotiating a fictitious check under OCGA § 16-9-21 can be established by less than all the facts required to establish forgery under OCGA § 16-9-1. Negotiation within the context of OCGA § 16-9-21 generally requires proof of the transfer or delivery of the check. See generally OCGA § 11-3-202. Similarly, proof of uttering or delivery is required as an element of forgery under OCGA § 16-9-1. The only other proof required to establish the commission of negotiating a fictitious check under OCGA § 16-9-21, is that the defendant knew that the information on the check was fictitious. “Fictitious” is defined by Black’s Law Dictionary (5th ed. 1979) as pretended, counterfeit, feigned, imaginary, false, not genuine and nonexistent. Forgery under OCGA § 16-9-1 (a) requires proof that the check “purports to have been made ... by authority of one who did not give such authority. . . .” While the forgery statute does not use the term “fictitious,” it is clear that any information on a check that purports authority where none exists must by definition be fictitious information.

Accordingly, we conclude that the offense of negotiating a fictitious check is a lesser included offense of forgery. Thus, since there is evidence to support Adams’s written request to charge on negotiating fictitious checks, and “[s]ince ‘a written request to charge a lesser in-eluded offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense,’ State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990), the trial court’s failure to give the charge requested by the defendant constitutes reversible error.” Reinhardt v. State, 263 Ga. 113, 114 (2) (428 SE2d 333) (1993).

Decided July 10, 1995.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Tom Woodward, Assistant District Attorney, for appellee.

2. Adams further asserts the trial court erred in refusing to give her requested charge on issuing bad checks, which she contends is also a lesser included offense of forgery. However, since the offense of issuing bad checks under OCGA § 16-9-20 requires additional proof that the check was delivered “in exchange for a present consideration or wages . . . ,” it cannot be established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of forgery. OCGA §§ 16-1-6; 16-9-1 (a). Because issuing bad checks is not a lesser included offense of forgery, we find no error.

3. Having concluded in Division 1 that the trial court committed reversible error, it is unnecessary to address Adams’ remaining enumerations of error concerning improper cross-examination by the State and the trial judge, improper closing argument by the State and the court’s failure to give her requested charge on hearsay evidence.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A0435.
    PAYNE v. SHERRER et al.
    (458 SE2d 916)
   Ruffin, Judge.

Joseph Payne sued Dr. Jack Sherrer for violating his right to privacy and confidentiality after Dr. Sherrer provided copies of Payne’s medical records to his employer, Columbus Packaging Company, Inc. (“Columbus”). The complaint alleged that Columbus required Payne to undergo a medical examination regarding back strain he suffered when he was in the United States Army. The complaint further alleged that Columbus would not allow Payne to return to work until he was evaluated by Dr. Sherrer, a company appointed physician, and that Dr. Sherrer requested that Payne provide him with copies of his Army medical records which Payne did. Payne alleged that, without his consent and in violation of his rights to privacy, Dr. Sherrer then provided copies of his medical records to Columbus.

The trial court granted Dr. Sherrer’s motion to dismiss the complaint for failure to state a claim upon which relief could be granted and Payne appeals from that order.

“When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” (Citations and punctuation omitted.) Time Ins. Co. v. Fulton-DeKalb Hosp. Auth., 211 Ga. App. 34, 35 (1) (438 SE2d 149) (1993).

1. While in earlier cases we held that there was no confidential relationship between a doctor and his patient, those rulings were based on our former Code which did not recognize such a relationship. See Elliott v. Ga. Power Co., 58 Ga. App. 151 (1) (197 SE 914) (1938) (confidential communications under former Code Ann. § 38-418 did not include those made by a patient to his physician); Collins v. Howard, 156 FSupp. 322 (1) (S.D. Ga. 1957) (followed common law rule because no statute creating relationship existed). In 1978 however, our legislature amended former Code Ann. § 38-418 to provide for a confidential relationship between doctors and their patients. See Ga. L. 1978, p. 1657. Subsequently, “[t]his court ruled in Orr v. Sievert, 162 Ga. App. 677, 679 (292 SE2d 548) (1982), that a physician has a duty to protect the privacy of his patients and that a breach of that duty will give rise to an action for damages.” Jones v. Thornton, 172 Ga. App. 412, 413 (1) (323 SE2d 217) (1984). However, the plain language of this court’s opinion in Jones and the language in OCGA § 24-9-40 assume the existence of a physician-patient relationship before such a duty arises. We believe, as in classic medical malpractice actions, that “doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty [for the physician] to conform to a standard of conduct.” (Citations and punctuation omitted.) Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988). Accordingly, in order for the complaint in this case to state a claim upon which relief could be granted, it must at a minimum set forth the possibility of a physician-patient relationship between Dr. Sherrer and Payne.

A physician-patient relationship exists “where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.” (Citation and punctuation omitted.) Id. We have held in medical malpractice actions, and it is generally the law of other jurisdictions, that when an employer retains a physician to examine an employee, no physician-patient relationship exists between the employee and the physician. Id. See also Collins, supra; 70 CJS 448, Physicians & Surgeons, § 58. This is because in such a situation, the physician has “neither offered nor intended to treat, care for, or otherwise benefit the individual. ...” Peace, supra.

Decided July 10, 1995.

John G. Wolinski, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., C. Morris Mullin, for appellees.

Applying that requirement to this case, we find that the complaint discloses with certainty that there was no physician-patient relationship between Dr. Sherrer and Payne. Payne’s complaint clearly alleges that Dr. Sherrer was a company appointed physician retained by Columbus to give Payne a return to work physical. Accordingly, under Peace, supra, no physician-patient relationship existed and Dr. Sherrer owed no duty to Payne that would arise out of such a relationship. Under these circumstances, Dr. Sherrer did not violate Payne’s rights to privacy and confidentiality in releasing the records to Columbus, even though it was done without Payne’s consent. The trial court did not err in granting Dr. Sherrer’s motion to dismiss the complaint.

2. Payne’s other contention that Dr. Sherrer’s release of the records violated his right of confidentiality under the Americans with Disabilities Act, was not raised below and accordingly may not be considered for the first time on appeal. See In the Interest of W. R. S., 213 Ga. App. 616 (1) (445 SE2d 367) (1994).

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


author: Pope, Presiding Judge.

text:
    A95A0603.
    DEPARTMENT OF HUMAN RESOURCES v. LONG.
    (458 SE2d 914)
   Pope, Presiding Judge.

After David Long was indicted for rape, the Superior Court found he was not competent to stand trial and not likely to become competent in the foreseeable future. Based on Long’s extensive history of suicide attempts as well as sexual misconduct and other dangerous behavior, and with the consent of both the State prosecutor and Long’s counsel, the Superior Court then determined that Long met the criteria for civil commitment and ordered that he be committed to the care of the Department of Human Resources (DHR). The DHR appeals this order, arguing in its sole enumeration of error that the Superior Court exceeded its jurisdiction because only a probate court has the authority to determine whether a pretrial detainee meets the criteria for civil commitment. We conclude the Superior Court did not exceed its jurisdiction and therefore affirm.

Once a person is found to be mentally incompetent to stand trial and not likely to attain competency in the foreseeable future, “[i]f the person meets the criteria for civil commitment, he shall thereupon be civilly committed to a state institution pursuant to Chapter 3 ... of Title 37.” OCGA § 17-7-130 (c). Chapter 3 of Title 37 provides procedures for commitment of patients for involuntary treatment, see OCGA §§ 37-3-62 and 37-3-81, and establishes criteria for involuntary commitment: the patient must be mentally ill and present a substantial risk of harm to himself or others, or be so unable to care for his health and safety as to create an imminently life-endangering crisis. See OCGA § 37-3-1 (12) and (9.1). OCGA § 37-3-1 (4) (A) further provides that as a general matter, references to the “court” in this Chapter mean the probate court of the patient’s county of residence. See also OCGA § 15-9-30 (a) (9) (“Probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction of all matters as may be conferred on them by Chapter 3 of Title 37”).

Because the probate courts will generally have original and exclusive jurisdiction to make determinations regarding mentally ill persons under OCGA § 37-3-1 et seq., the DHR contends that only the probate courts can make the determination under OCGA § 17-7-130 (c) on whether an incompetent pretrial detainee meets the criteria for civil commitment and thus should be committed “pursuant to Chapter 3 ... of Title 37.” This argument ignores the context of the civil commitment determination with respect to an incompetent pretrial detainee, however. Where the question of civil commitment arises in the course of a criminal felony case over which a superior court has. exclusive jurisdiction, it would be inefficient and cumbersome to require the superior court to transfer the case to the probate court to have the question answered; and nothing in the language of OCGA § 17-7-130 requires this or suggests that the legislature contemplated such a transfer.

Moreover, we know the legislature considers the superior courts capable of making the determination regarding civil commitment, since it clearly gave them the responsibility to determine whether the criteria for civil commitment are met in cases where a defendant is found not guilty by reason of insanity. See OCGA § 17-7-131 (e) (4). We see no reason why a superior court, as the court with exclusive jurisdiction over a criminal felony case, should be able to make a decision regarding civil commitment when a defendant is found not guilty by reason of insanity but not when the defendant is found incompetent to stand trial. Notably, the Code section providing that a patient may petition for a writ of habeas corpus to question the cause and legality of his commitment treats patients committed under OCGA § 17-7-130 (incompetent to stand trial) and those committed under OCGA § 17-7-131 (not guilty by reason of insanity) the same: for patients committed under either of these statutes, “a copy of the petition along with proper certificate of service shall also be served upon the presiding judge of the court ordering [the patient’s] detention and the prosecuting attorney for such court” (Emphasis supplied.) OCGA § 37-3-148 (a). Probate courts, of course, do not have prosecuting attorneys.

For these reasons, we conclude that the legislature’s pronouncement that the detainee should be committed “pursuant” to Chapter 3 of Title 37 simply means he should be committed in accordance with the procedures and criteria set forth in that chapter; it does not mean that the case must be transferred to the probate court because of that court’s jurisdiction over civil commitments as a general matter. See American Heritage Dictionary, p. 1006 (2d college ed.) (“pursuant” means conforming to or in accordance with).

The DHR further posits that under federal constitutional law, the civil commitment of a pretrial detainee must be exactly like that of any other individual, or it will violate his equal protection and due process rights. See Jackson v. Indiana, 406 U. S. 715 (92 SC 1845, 32 LE2d 435) (1972). Thus, the DHR argues, the constitution requires that if the probate court has exclusive jurisdiction to civilly commit a non-pretrial detainee, it must also have exclusive jurisdiction to civilly commit a pretrial detainee. But the DHR misses the point of Jackson by focusing on who makes the decision rather than the procedures and criteria utilized to make it. The commitment does not have to be identical, as long as the process used to commit the pretrial detainee is at least as protective of his rights as the process used to commit the non-pretrial detainee is protective of his. Cf. Skelton v. Slaton, 243 Ga. 426 (254 SE2d 704) (1979) (as long as criteria for civil commitment are applied, civil commitment of patient acquitted by reason of insanity need not be absolutely identical to civil commitment in other contexts). Certainly a pretrial detainee’s rights are not compromised by having a higher court of general jurisdiction make the decision regarding his commitment, and the DHR does not suggest any way in which they are.

Decided July 10, 1995.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, B. Patricia Downing, Assistant Attorney General, for Department of Human Resources.

Lewis R. Slaton, District Attorney, Donald P. Geary, Assistant District Attorney, for the State. Paul H. Kehir, Susan Wardell, for Long.

In this case, the Superior Court made its decision to commit based on a record replete with evidence of Long’s dangerousness towards himself and others. The record also shows that Long is unable to take care of himself: he does not understand money and gives away whatever money he has, and he cannot perform even basic tasks of personal hygiene. Moreover, both Long and the State agreed to the committal order. It is not clear from the record that all of the procedures for involuntary committal in Chapter 3 of Title 37 were followed. It is clear, however, that Long waived his right to these procedures by consenting to the order committing him. See OCGA §§ 37-3-62 and 37-3-81 (patient may waive procedures required for his protection).

In summary, we hold that a superior court has authority to civilly commit a pretrial detainee who is incompetent to stand trial, as long as it utilizes the criteria and procedures set forth in Chapter 3 of Title 37 in making its decision. (It may also transfer the case to the probate court if it chooses to do so.) Here, thé trial court did not exceed its authority in ordering civil commitment of Long, as it utilized the criteria of Chapter 3 and Long waived any procedures which were not followed.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       The DHR has called our attention to a proposed amendment to OCGA § 17-7-130 which would “clarify” the legislature’s intent that probate courts make the decision about civil commitment of pretrial detainees, even in the context of a felony case over which superior courts have exclusive jurisdiction. As the proposed amendment was not passed and apparently did not even come up for a vote in the most recent legislative session, it does not affect our analysis. But its existence does reassure us that if we have misinterpreted the legislature’s intent, that body will be aware of our action and should act to correct it in the not-too-distant future.

       The DHR doctor opined that Long did not meet the criteria for civil commitment. Long’s own doctor stated that he did meet the criteria for civil commitment, however, and the Superior Court agreed. In light of the record in this case, it did not err in doing so.


author: Pope, Presiding Judge. Beasley, Chief Judge,

text:
    A95A0656.
    HUGHES v. THE STATE.
    (458 SE2d 911)
   Pope, Presiding Judge.

Kenneth Hughes was charged with burglary, aggravated assault and rape. He was convicted of aggravated assault and rape and appeals.

Viewing the evidence in the light most favorable to the verdict, the victim, Ms. Smith, and Hughes were involved in an erratic romantic relationship for about 14 years. During the course of the relationship, they lived together and had a daughter. The relationship ended around August 1993.

On October 11, 1993, Smith returned home after 6:00 p.m. She went to her bedroom to undress, heard a noise in the kitchen and went to investigate. She saw Hughes, who no longer had a key to the residence, standing in the kitchen at the back door. Smith grabbed the phone and tried to dial 911, but Hughes snatched the phone out of the wall. He pushed Smith against the sink and grabbed a knife. He held the knife over Smith and told her that he would kill her.

Hughes, while still holding the knife, then pulled Smith back to the bedroom. Once in the bedroom, Hughes told Smith to take off her clothes. She took off everything except her bra; during the time she was disrobing, Hughes again stated that he would kill her. After her clothes were off, Hughes pushed Smith down on the bed, tore off her bra and raped her. During the rape, the knife was on the side of the bed. At one point, Hughes held the knife over Smith’s heart and told her he would stab her in the heart. When Hughes left, Smith, who was hysterical, called the police and several family members.

Smith received a letter, postmarked five days after the rape, from Hughes. The letter was not read to the jury, although it was admitted into evidence. In the letter, Hughes apologized for all that he had done to hurt Smith. He stated that he was in a drug rehabilitation program and that when he last saw Smith he was “high.” He wrote that he had also been in pain, because he did not want to break up. He stated that he “was not saying that the drugs made him act that way,” but that he had just acted stupid and crazy. Hughes then told Smith to relay his apologies to her family.

Hughes’ defense was consent. He testified that he and Smith had argued over money Hughes owed her. Hughes recalled that he and Smith had also argued about his plan to move to California. Hughes explained that his letter to Smith was an apology for his general treatment of her, not an apology for a specific incident.

1. Hughes argues that the aggravated assault count merged into the rape count. He contends that the charges were not based on separate acts and that the evidence used to prove the rape was required to prove the aggravated assault.

We disagree and find that there was no merger of the offenses. The evidence authorized the finding that both an aggravated assault and a rape were committed. See generally Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983). “As in Hughes v. State, 239 Ga. 393, 397 (3) (236 SE2d 829) (1977), the evidence required to convict [defendant] of aggravated assault was unnecessary to prove the rape.” (Punctuation omitted.) Taylor v. State, 202 Ga. App. 671, 673 (415 SE2d 483) (1992).

2. Hughes also argues that the court erred in allowing the letter he wrote Smith to go out with the jury during deliberations. Citing Royals v. State, 208 Ga. 78 (2) (65 SE2d 158) (1951), and Davis v. State, 178 Ga. App. 760, 763 (3) (344 SE2d 730) (1986), Hughes argues that the letter incriminates him and should not have been allowed into the jury room.

The general rule is that “[w]ritten documents . . . that substitute for testimony may not be taken into the jury room when the jury retires.” (Citations omitted.) Johnson v. State, 244 Ga. 295, 296-297 (260 SE2d 23) (1979). This court explained this rule in Thomason v. Genuine Parts Co., 156 Ga. App. 599, 601 (275 SE2d 159) (1980): “[Wjritten statements such as interrogatories, dying declarations, confessions of guilt, depositions, etc., should be allowed in evidence by reading same to the jury and presented in evidence in that form but not allowed to be in the possession of the jury during their deliberations. In other words, the jury heard the testimony from the witness stand but same should not be unduly emphasized by giving the jury an opportunity to read them one or more times after hearing them read in the courtroom, whereas oral testimony from the stand is heard only once. Where any such papers are delivered to the jury over timely objections, a new trial is in order.” (Citations omitted.) Nevertheless, in certain cases, letters have been allowed to go out with the jury. Vinyard v. State, 177 Ga. App. 188 (338 SE2d 766) (1985); Moore v. State, 191 Ga. App. 911 (383 SE2d 355) (1989).

It is unnecessary to resolve whether the letter was properly allowed to go out with the jury since any error was harmless. First, we note that the letter was never read to the jury, and thus, the document was not duplicative of testimony. Moreover, “[u]nder the standard established in Proctor v. State, 235 Ga. 720 (221 SE2d 556) (1975), and Lane v. State, 247 Ga. 19 (273 SE2d 397) (1981), it is not reversible error for a written statement to go out with the jury if that statement is consistent with the theory of the defense. If written evidence is not consistent with the theory of the defense, the trial court’s error in permitting it to go out with the jury may nonetheless be harmless if it is highly probable that the error did not contribute to the judgment. Owens v. State, 248 Ga. 629 (284 SE2d 408) (1981).” Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984).

Applying the foregoing principles to the instant case, we find that the letter was consistent with Hughes’ theory of defense. Hughes testified that during the relationship with Smith he had cheated on her and sometimes been difficult. He explained that the letter was an apology for his general treatment of Smith. He explained that the drug treatment program he had enrolled in after October 11, 1993, was a “spiritual” program and that part of that program was to apologize to people you had wronged.

Hughes testified that the letter was also an apology for the argument he and Smith had on October 11. He stated that the letter’s statement that “I’m not saying that the drugs made me act that way, I was just stupid and dumb and crazy,” was a denial that drugs were responsible for his behavior since he was drunk on that date. Because the letter was consistent with Hughes’ defense, we find no harmful error in allowing it to go out with the jury.

3. Hughes claims that the trial court erred in allowing the State to ask a witness who testified as to his good reputation if he had heard that Hughes had been arrested for other offenses. Assuming that this argument was properly preserved, it has been decided adversely to appellant. Whatley v. State, 131 Ga. App. 320 (2) (205 SE2d 517) (1974); Nassar v. State, 253 Ga. 35, 36 (4) (315 SE2d 903) (1984); Montgomery v. State, 173 Ga. App. 570, 572 (3) (327 SE2d 770) (1985).

4. Hughes next contends that the trial court erred in failing to excuse two prospective jurors for cause. Hughes made no motions to excuse the jurors for cause and has waived any alleged error. OCGA § 15-12-167; Sullens v. State, 239 Ga. 766 (1) (238 SE2d 864) (1977).

5. Finally, Hughes contends that the court erred in refusing to allow his attorney to further question a prospective juror concerning his ability to be fair. Hughes made no objection or motion with regard to the alleged error, and the issue was waived. State v. Graham, 246 Ga. 341 (271 SE2d 627) (1980). Moreover, the trial court did not abuse its discretion in controlling the scope of the voir dire. See generally Curry v. State, 255 Ga. 215 (2) (336 SE2d 762) (1985).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.

Beasley, Chief Judge,

concurring specially.

I concur fully in all divisions of the majority opinion except Division 2. As to it, the letter which the defendant wrote to the victim after the assault was admissible as such. It was demonstrative evidence, a written communication that was not given orally and memorialized in writing. It was not written testimony, a statement recorded for the judicial process, as are depositions, interrogatories, recorded confessions, and written dying declarations. It was not “a paper calculated to influence a jury.” Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1905). “The reason given for not allowing [depositions] to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” Id.

Decided July 10, 1995.

William M. Traylor, for appellant.

J. Tom Morgan, District Attorney, Desiree L. S. Peagler, Assistant District Attorney, for appellee.

Instead, the letter constituted part of the activity between the defendant and the victim. As in Vinyard v. State, 177 Ga. App. 188, 190 (338 SE2d 766) (1985), “[i]t was the best evidence of the writing which the state sought to prove and higher proof of its contents [and of what the victim saw when she opened it] than oral evidence thereof. OCGA § 24-5-4.” The letter constituted part of the activity between the defendant and the victim.

I am authorized to state that Judge Ruffin joins in this special concurrence.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A0807.
    PRIMERICA LIFE INSURANCE COMPANY v. HUMFLEET.
    (458 SE2d 908)
   Blackburn, Judge.

This is an appeal of the trial court’s denial of Primerica Life Insurance Company’s (Primerica) motion for summary judgment opposing the imposition of bad faith civil penalties pursuant to OCGA § 33-4-6.

The evidence viewed in the light most favorable to the nonmovant, appellee Constance Humfleet (Humfleet), shows Humfleet is the widow of decedent Charles Humfleet. On or about October 2, 1992, Primerica issued a policy of life insurance to Charles Humfleet for a face amount of $150,000. Humfleet was listed on the policy as the primary beneficiary, and a number of Charles Humfleet’s other relatives were listed as contingent beneficiaries. On September 23, 1993, Charles Humfleet was killed in an armed robbery. It is undisputed that the policy in issue was in effect at the time of his death.

On September 25, 1993, two days after her husband’s death, Humfleet informed Primerica of her claim and requested disbursement of the proceeds as quickly as possible in order to pay her husband’s burial expenses. Apparently in response to Humfleet’s call, Primerica forwarded her a claim form that required, among other things, a certified copy of her husband’s death certificate. Humfleet submitted her completed claim form and corresponding documents to Primerica on October 18, 1993. By letter of October 25, 1993, Primerica acknowledged receipt of Humfleet’s claim and notified Humfleet of its intent to conduct an investigation into the circumstances of her husband’s death. This investigation was permitted under the general provisions of the policy.

The investigation revealed that while the police had no evidence tying Humfleet to her husband’s death, she had not been ruled out as a suspect. On November 29,1993, after payment was not forthcoming, Humfleet commenced the instant action for the face amount of the policy and for civil penalties under OCGA § 33-4-6. In seeking the penalty, Humfleet asserted that Primerica’s failure to promptly pay her the policy’s proceeds was motivated by bad faith. Particularly, Humfleet averred that Primerica had no evidence that she was associated with her husband’s death and that the investigation was merely a ruse designed by Primerica to delay or forego payment of the insurance proceeds.

Primerica answered the complaint, asserting that if Humfleet were involved in her husband’s death, the contingent beneficiaries would be entitled to the proceeds, and, accordingly, immediate payment of the proceeds to Humfleet without further investigation could place the company at risk of receiving conflicting claims. Shortly after responding to the present suit, Primerica filed an interpleader action in the United States District Court for the Middle District of Georgia and deposited the proceeds of the policy into the court’s registry. Pursuant to a consent order entered in the interpleader action between Humfleet and the contingent beneficiaries, Humfleet was paid the proceeds of the policy.

After payment of the proceeds to Humfleet, Primerica moved for summary judgment in the underlying action on the remaining issue of its bad faith. Primerica asserted that no proper demand had been lodged as required by the statute and that its failure to pay the claim was motivated, not by bad faith, but rather by Humfleet’s status as a suspect in her husband’s death and by the potential claims of the contingent beneficiaries.

Following oral arguments, the trial court denied the motion, finding that genuine issues of material fact remained for jury resolution. We subsequently granted Primerica’s application for interlocutory review.

In order to prevail on a claim for an insurer’s bad faith, the insured must prove two conditions: (1) that a demand for payment was lodged against the insurer at least 60 days prior to filing suit and (2) that the insurer’s failure to pay was motivated by bad faith. As the statute imposes a penalty, it is strictly construed. Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (448 SE2d 275) (1994).

1. Primerica asserts that 60 days did not elapse from the time it received a proper demand and the filing of the suit. A close review of the record reveals that the only verifiable communication to predate the complaint by sixty days was the telephone call placed to Primerica by Humfleet two days following her husband’s death. It has long been the law that in order to serve as a bad faith demand, the demand must be made at a time when immediate payment is due. Napp v. American Cas. Co. of Reading, PA, 110 Ga. App. 673, 675 (139 SE2d 425) (1964) citing American Nat. Ins. Co. v. Brantley, 38 Ga. App. 505 (144 SE 332) (1928). In the present matter, at the time Humfleet lodged her demand, Primerica had yet to receive any formal evidence of Humfleet’s loss, including the death certificate. Also, Primerica had no opportunity to commence an investigation of the death as it was permitted to do under the policy. As no payment was immediately due at the time of Humfleet’s demand, no bad faith penalties can arise by virtue of OCGA § 33-4-6.

Moreover, even if immediate payment had been due, Humfleet’s demand was insufficient. Clearly, the purpose of the statute’s demand requirement is to adequately notify an insurer that it is facing a bad faith claim so that it may make a decision about whether to pay, deny or further investigate the claim within the 60-day deadline. While Georgia law recognizes that no particular language is required to constitute a demand, the language must be sufficient to alert the insurer that bad faith is being asserted. See Cotton States Mut. Ins. Co. v. Clark, 114 Ga. App. 439, 447 (151 SE2d 780) (1966) (court action threatened when insurer refused to pay loss). In the present matter, Humfleet’s “demand” consisted of a request to receive payment of the policy’s proceeds as quickly as possible, a sentiment commonly expressed by those making an insurance claim. Nothing in Humfleet’s statement raises the additional specter of bad faith necessary to put Primerica on notice.

Due to the inadequacies of Humfleet’s demand, we find that the trial court erred in denying Primerica’s motion for summary judgment.

2. Based upon our decision in Division 1, we need not address the issue of whether Primerica’s decision to not immediately pay the claim was based on bad faith.

Judgment reversed.

McMurray, P. J., concurs specially and in the judgment only. Andrews, J., concurs.

McMurray, Presiding Judge,

concurring specially and in the judgment.

I concur specially and in the judgment because I agree that Constance Humfleet’s telephonic demand for payment of benefits was premature because it was asserted before Primerica had proof of the insured’s death, i.e., a condition for payment under the policy. I do not agree, however, with the majority’s conclusion that the demand “must be sufficient to alert the insurer that bad faith is being asserted.” Georgia law has never required such specificity, Hanover Ins. Co. v. Hallford, 127 Ga. App. 322, 323 (1a) (193 SE2d 235). And contrary to the majority’s reliance, Cotton States Mut. Ins. Co. v. Clark, 114 Ga. App. 439, 446 (8), 447 (151 SE2d 780), does not provide otherwise. In fact, even though the insured in Clark said nothing about statutory damages when he requested payment under a fire insurance policy, this Court held that the insured’s verbal threat of court action against his insurance carrier was sufficient to invoke the 60-day period prescribed by OCGA § 33-4-6.

Decided July 10, 1995.

Drew, Eckl & Farnham, Maureen M. Middleton, Theodore Freeman, for appellant.

Calvin A. Rouse, for appellee.

       At the time of the filing of the interpleader action, two of the contingent beneficiaries resided outside the State of Georgia.