text:
    A00A0569.
    COLDEN et al. v. STATE OF GEORGIA.
    (536 SE2d 820)
   Smith, Presiding Judge.

This appeal from a judgment in favor of the State in a property forfeiture case presents a procedural quagmire, combining the loss of all or part of the file, an indefinite stay of the proceedings, a motion to suppress filed by appellants Douglas Colden and Valerie Knowles, and a single omnibus hearing combining evidence and argument on the motion to suppress, a motion to dismiss, a motion for summary judgment, and the State’s case for forfeiture. Colden and Knowles appeal, enumerating as error the denial of their motion to suppress and the stay of proceedings. We do not reach the issue of the motion to suppress because we conclude that the trial court erroneously conducted the omnibus hearing without lifting the stay of proceedings. We therefore vacate the trial court’s judgment and remand for further proceedings consistent with this opinion.

This action commenced with the State’s complaint for forfeiture in October 1997. In January 1998, the State moved for a stay of proceedings pending the outcome of the related criminal prosecution. At the time of the hearing on the State’s motion to stay, it was discovered that the file was missing. At the conclusion of that hearing, the trial court granted the motion and stayed the civil forfeiture proceedings until the completion of the criminal prosecution. Neither the motion to stay nor the order granting the motion to stay appears in the record, but this may well be due to. the loss of the file. Moreover, the existence of the stay is apparent from the conduct of the parties and the court in abiding by the court’s ruling for over a year.

After 16 months, the case inexplicably appeared on a trial calendar. At that time, the file apparently still had not been found. Moreover, according to the statement of appellants’ counsel at the omnibus hearing, the related criminal matter was not yet resolved. No charges had been brought against Knowles, the original accusation against Colden had never been pursued, and Colden had never been indicted. The State itself acknowledged at the hearing that this characterization of the status of the criminal matter was accurate, saying that “the very reason that the motion for stay was originally granted still remains a valid reason.” But nothing in the transcript or the record indicates that the trial court considered the continuing pendency of the criminal matter in the context of the stay, or the continuing pendency of the stay itself.

The hearing nevertheless proceeded without any order from the trial court lifting the stay of proceedings. After hearing all the testimony, the trial court did not expressly deny the motion to suppress, ruling simply that “the state has made out a proper case.” In a written order, the trial court denied appellants’ motion to dismiss and for summary judgment and entered judgment in favor of the State.

But just as notice and an opportunity to be heard are required before a stay is imposed, “such notice and opportunity to be heard [are] likewise required on an interlocutory hearing had to revoke such a stay already granted.” Howard v. Howard, 203 Ga. 782, 784 (3) (48 SE2d 451) (1948). In Howard, the order revoking a stay under the Soldiers’ & Sailors’ Civil Relief Act, 50 USC § 521, was taken ex parte. The Supreme Court held that a judgment entered after the improper lifting of the stay was void on its face and that the prejudiced party was entitled to have it set aside. Id. Similarly, a judgment entered in violation of the automatic bankruptcy stay of 11 USC § 362 was “void ab initio, was without effect, and was an absolute nullity.” Jennings Enterprises v. Carte, 224 Ga. App. 538, 540 (1) (481 SE2d 541) (1997).

Here, one thing — perhaps the only thing — that is clear in the chaotic and incomplete record presented for this court’s review is that the stay of proceedings was never lifted despite the continued and acknowledged lack of resolution of the related criminal prosecution. Moreover, to rule on the issue of a stay of proceedings in a case without any notice to the parties or opportunity to be heard presents significant due process concerns. See City of Cedartown v. Pickett, 194 Ga. 508, 512 (3) (22 SE2d 318) (1942). The judgment taken without an order lifting the stay and without notice and an opportunity for the parties to be heard on the issue of the stay was void and without effect. We therefore vacate the trial court’s judgment and remand for further proceedings consistent with this opinion. On remand, the trial court must first determine whether the stay remains appropriate, particularly in light of the lapse of time and the apparent non-prosecution of the underlying criminal matter. If the stay is lifted, the remaining issues in this litigation may be considered after adequate notice and the opportunity for all parties to be heard.

Judgment vacated and case remanded with direction.

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

Decided July 5, 2000

Herbert Shafer, for appellants.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

       The motion to suppress presents numerous problems of its own. The search warrant and affidavit in support apparently were contained in the lost file, because the State did not present them or introduce them into evidence. The testimony of the arresting officer may well have been inadequate to substitute for the missing warrant and affidavit, particularly with regard to facts supporting the reliability of an anonymous informant. And despite appellants’ request, the trial court never entered a ruling on the motion to suppress. We also note with disapproval the State’s material misstatements in its original brief to this court regarding the whereabouts of the warrant and affidavit and its filing of an “amended brief” without explanation or excuse after appellants challenged the State’s version of the facts. But we do not reach any of these issues.


source: Caselaw Access Project

author: Blackburn, Presiding Judge. Eldridge, Judge,

license: Public Domain

text:
    A00A0778, A00A0779.
    DAVIS v. EMMIS PUBLISHING CORPORATION et al.; and vice versa.
    (536 SE2d 809)
   Blackburn, Presiding Judge.

In this libel action, Dave Davis appeals the trial court’s grant of summary judgment to defendants Emmis Publishing Corporation d/b/a Atlanta Magazine and Scott Freeman. Davis contends that the trial court erred by finding that the complaint failed to state a claim for invasion of privacy (intrusion upon seclusion) and by finding that his claims for defamation and false light invasion of privacy were barred by the statute of limitation. We affirm the trial court’s ruling on these issues.

In a cross-appeal, Emmis and Freeman appeal the trial court’s determination that the failure of Davis to timely file verifications of the complaint as required by Georgia’s Anti-Strategic Litigation Against Public Participation (SLAPP) Statute, OCGA § 9-11-11.1, was an amendable defect. While the trial court erred in this ruling, this procedural issue is rendered moot by the proper grant of summary judgment to defendants.

These cases arise out of an article written by Freeman entitled “Buckhead Burning” and published in the December 1997 issue of Atlanta Magazine, but which was mailed to subscribers in November 1997. The article concerned the death of a Buckhead resident and the subsequent murder investigation. Davis’ son, Scott Davis, was arrested for the murder. Davis, a forensic psychiatrist, alleges that the article asserts that he called in favors from the Fulton County prosecutors and stalled the investigation to prevent his son’s prosecution. He further alleges that the article accuses him of obstructing justice and interfering with a murder investigation.

On December 1, 1998, Davis filed the original complaint asserting claims for libel, false light invasion of privacy, and tortious interference with business relations. The defendants timely answered on January 13, 1999, raising as defenses that the complaint failed to state claims upon which relief could be granted; that the complaint failed to comply with OCGA § 9-11-11.1; and that the libel and false light invasion of privacy claims were barred by the statute of limitation. Thereafter, the defendants filed a motion to dismiss. On March 10, 1999, almost two months after the defendants raised the lack of verifications of plaintiff’s complaint in the answer, Davis filed an amendment to the complaint adding a claim for invasion of privacy (intrusion upon seclusion) and for intentional infliction of emotional distress. Additionally, Davis attached verifications by him and his counsel as required by OCGA § 9-11-11.1.

After a hearing on the motions to dismiss, the trial court found that: (1) the Georgia Anti-SLAPP Statute, OCGA § 9-11-11.1, did apply in this case; (2) Davis’ failure to verify his complaint as required by OCGA § 9-11-11.1, was an amendable defect; (3) the libel and false light invasion of privacy claims were time barred; and (4) Davis had failed to state a claim for invasion of privacy (intrusion upon seclusion), tortious interference with business relations, or intentional infliction of emotional distress. The motions to dismiss were converted to motions for summary judgment pursuant to the extent that the trial court considered evidence outside the pleadings.

Case No: A00A0778

1. With respect to the trial court’s finding that the claims of defamation and false light invasion of privacy were barred by the statute of limitation, Davis’ sole contention on appeal is that the trial court erred in so ruling because he was prohibited from engaging in discovery by the stay provisions of the anti-SLAPP statute, OCGA § 9-11-11.1. Davis argues that because of his inability to conduct discovery, he was unable to counter the affidavit filed by Emmis and Freeman which established the publication of the article in November 1997. For the purpose of analysis of this enumeration of error, we will assume, but not decide, the applicability of the anti-SLAPP statute to this case.

OCGA § 9-11-11.1 (d) provides, “[a]ll discovery ... in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section.” In this case, Emmis and Freeman did file motions to dismiss pursuant to subsection (b), thus triggering a stay. However, the statute offers the opportunity for relief from such a stay: “The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.” Thus, Davis could have sought the aid of the trial court to lift the stay for the limited purpose of conducting necessary discovery, which he failed to do. He cannot now raise this issue on appeal where he has failed to avail himself of this remedy in the trial court.

Emmis and Freeman presented uncontradicted evidence that the subject article was published in November 1997. Consequently, Davis’ claims for defamation and false light invasion of privacy were time barred, and the trial court properly granted summary judgment as to said claims. OCGA § 9-3-33.

2. In addition to his claim for false light invasion of privacy, Davis contends that he alleged a claim for invasion of privacy by intrusion upon his seclusion or solitude. The trial court properly determined that the allegations of the complaint do not support such a claim.

“In reviewing a trial court’s order dismissing a complaint for failure to state a claim, [the appellate] court construes the pleadings in the light most favorable to the losing party with the doubts resolved in [that party’s] favor.” Coleman v. Coleman, 265 Ga. 568, 569 (1) (459 SE2d 166) (1995). Davis has not alleged or shown that he was subjected to “a physical intrusion analogous to a trespass, as would be required to recover for an intrusion upon seclusion. Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (305 SE2d 183) (1983).” Cox Communications v. Lowe, 173 Ga. App. 812, 814 (2) (328 SE2d 384) (1985); Cabaniss v. Hipsley, 114 Ga. App. 367 (1) (151 SE2d 496) (1966).

Case No. A00A0779

3. Emmis and Freeman enumerate as error the trial court’s holding that Davis’ failure to verify his original complaint as required by OCGA § 9-11-11.1 was an amendable defect.

If Davis’ claim fell within the scope of the anti-SLAPP statute, it was clearly subject to the procedural requirements thereof:

To prevent such abusive litigation, the legislature imposed several procedural safeguards. Any [such] complaint . . . must be accompanied by a verification, based on belief formed after reasonable inquiry, that the suit is well grounded in fact and law or represents a good-faith argument for the extension of existing law. OCGA § 9-11-11.1 (b). The plaintiff and her counsel must also verify the act forming the basis , of the suit is not a “privileged communication” under OCGA § 51-5-7, and that the suit is not filed for any improper purpose such as to suppress a person’s right of free speech or right to petition government. OCGA § 9-11-11.1 (b).

(Punctuation omitted.) Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997).

The statute further provides: “If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim.” OCGA § 9-11-11.1 (b).

In interpreting the statute, “we must first look to the statute’s literal meaning, and if the language is plain and does not lead to any absurd or impracticable consequences, we will simply construe the statute according to its terms without conducting further inquiry.” World Trade Business v. Amit, Inc., 239 Ga. App. 383, 385 (1) (521 SE2d 40) (1999). Generally, the failure to verify a complaint is an amendable defect, and a reasonable time is allowed for a defective pleading to be amended. See Harvard v. Walton, 243 Ga. 860 (1) (257 SE2d 280) (1979); Wall v. Mills, 126 Ga. App. 149 (1) (190 SE2d 146) (1972). However, the anti-SLAPP statute, by its own terms, sets ten days as a reasonable time to allow for the late filing of the verifications: “If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim.” (Emphasis supplied.) OCGA § 9-11-11.1 (b). Compare this express language with other Code sections which set forth a verification requirement but set no time limit for late filing: OCGA §§ 19-5-5; 23-3-22; 23-3-62; 23-3-91.

In this case, it is undisputed that Davis failed to file the verifications with his complaint and that the omission was raised by the defendants in their answer. It is also undisputed that Davis filed the verifications with his amended complaint more than ten days (approximately two months) after the failure to file was first brought to his attention. We are bound to follow the express language of the statute. Applying that language, Davis was not free to amend the complaint after the ten-day period for the remedy of such failure had already expired.

Furthermore, the statute explicitly mandates that the claim “shall be stricken” if the verification is not filed timely. “ ‘Shall’ ordinarily denotes command and not permission.” Ring v. Williams, 192 Ga. App. 329, 330 (2) (384 SE2d 914) (1989). Thus, the trial court erred in holding that Davis’ failure to verify his complaint as required by law was an amendable defect.

4. It is unnecessary to reach the applicability of the anti-SLAPP statute, OCGA § 9-11-11.1, to this case for several reasons. The direct issue of its applicability has not been expressly raised by either party on appeal. See Post-Tensioned Constr. v. VSL Corp., 143 Ga. App. 148 (237 SE2d 618) (1977). Further, even if said statute did apply, it would not change the results in this case, as under this holding, Davis’ claim would be stricken for failure to comply with the verification requirements thereof. Also, as we have affirmed the trial court’s grant of summary judgment to Emmis and Freeman, the applicability of OCGA § 9-11-11.1, a statute which simply provides procedural safeguards at the initiation of certain litigation, Emmis and Freeman’s enumeration of error is rendered moot.

Judgment affirmed in Case No. A00A0778. Appeal dismissed as moot in Case No. A00A0779.

Phipps, J., concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

While I fully concur in the opinion, I write to clarify that OCGA § 9-11-11.1, the anti-SLAPP statute, had no application to this case and that such statute must further only the intent of the General Assembly by statutory construction. OCGA § 1-3-1 (a); City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). Where the meaning of a statute is clear, plain, and unambiguous, the courts must construe it according to its terms. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); Atlanta &c. R. Co. v. Wise, 190 Ga. 254, 255 (1) (9 SE2d 63) (1940). Statutes in derogation of common law must be strictly construed against the party asserting the right under the statute. Corner v. State, 223 Ga. App. 353, 355 (477 SE2d 593) (1996); Hester v. Chalker, 222 Ga. App. 783, 784 (476 SE2d 79) (1996). Thus, this statute shall not be broadened to extend the privilege of tort immunity that abrogates a common law cause of action by judicial construction.

This tort case for libel, invasion of privacy, and intentional infliction of emotional distress arose out of a publication for profit of an article in Atlanta Magazine regarding a Buckhead murder investigation as a garden variety defamation action. This article did not deal with a petition in the public interest before a regulatory agency, legislative body, authority, county or municipal quasi-judicial agency or publication urging legislative change. The article did not even purport to seek any legislative action by petition or urge such action.

The title of the Act, “Claim Arising From Act of Defendant Which Could Reasonably Be Construed as Act in Furtherance of Free Speech or Petition to Government for Redress of Grievances; Communications Deemed Privileged With Regard to Libel and Slander,” clearly distinguishes this action from the subject of the privileged area under the Act. The legislative caption describing the Act states that the purpose of the Act was “to encourage continued participation by citizens of Georgia in matters of public significance; to encourage the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances.” The caption of an Act clearly expresses the intent of the General Assembly. Moore v. Ray, 269 Ga. 457, 459 (499 SE2d 636) (1998); Moore v. Robinson, 206 Ga. 27, 40 (6) (55 SE2d 711) (1949); Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131-132 (105 SE 629) (1921).

The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia farther finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process.

OCGA § 9-11-11.1 (a) (Ga. L. 1996, pp. 260, 261, § 1).

As used in this Code section, “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

OCGA § 9-11-11.1 (c) (Ga. L. 1996, pp. 260, 262, § 1). The rule of construction, noscitur a sociis, that the meaning of a word is derived from other words in association so that they have the similar contextual meaning applies in this case as to the type of free speech and petition entitled to protection. Mott v. Central R., 70 Ga. 680 (1883); Haddon v. Shaheen & Co., 231 Ga. App. 596, 597 (1) (a) (499 SE2d 693) (1998); Saleem v. Bd. of Trustees &c. of Atlanta, 180 Ga. App. 790, 791 (2) (351 SE2d 93) (1986); Royal Indem. Co. v. Agnew, 66 Ga. App. 377 (18 SE2d 57) (1941). The free speech under the Act involves public debate and petition for redress of grievances involving significant public interest as opposed to freedom of the press in general.

This Act was intended to prevent suits or countersuits by developers seeking zoning changes from intimidating homeowners from opposing their zoning application or suing to overturn zoning changes granted. It also was intended to prevent parties seeking to maintain the status quo as to matters of significant public interest from using lawsuits to intimidate interest groups petitioning the redress of grievances from legislative or executive entities. In the past, developers, which had homeowner opposition, sued the leaders of civic associations and homeowners who opposed them to silence them by such economic threat. It was this abuse of judicial process that the General Assembly sought to prevent. McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972). It was never intended to protect the media from tort liability, which already enjoy extensive statutory and constitutional protections from tort liability. Providence Constr. Co. v. Bauer, 229 Ga. App. 679 (494 SE2d 527) (1997). See also Kent & Isenberg, Georgia’s New Anti-SLAPP Statute, Ga. Bar J. (June 1997), p. 26.

Decided July 5, 2000.

Neal H. Howard, for appellant.

Arnall, Golden & Gregory, Robert L. Rothman, Frank N. White, Roger A. Chalmers, for appellees.


author: Johnson, Chief Judge.

text:
    A00A0398.
    A00A0399.
    MEDICAL ASSOCIATION OF GEORGIA et al. v. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. AMERICAN MEDICAL ASSOCIATION v. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC.
    (536 SE2d 184)
   Johnson, Chief Judge.

Doctors Joe Stubbs, Neal Kahn, Janice Johnston and Anthony Costrini entered into contracts with health insurance provider Blue Cross & Blue Shield of Georgia, Inc. The doctors contracted to provide medical services to Blue Cross members in exchange for reimbursement by Blue Cross of the usual, customary and reasonable fees for the services. The contracts provide that Blue Cross has authority to determine usual, customary and reasonable fees and that when the doctors’ charges exceed the usual, customary and reasonable allowance, the doctors shall abide by Blue Cross’ rules and regulations. The first paragraph of those rules and regulations confirms that a doctor’s participation in the Blue Cross plan indicates an agreement to abide by such rules and regulations.

According to the rules and regulations, the usual, customary and reasonable fee program may be changed or supplemented when deemed advisable by Blue Cross in order to reflect changing conditions. The rules further provide:

Reimbursement programs are subject to change, both generally, as to methodology, and specifically for certain customers, geographic areas, services or supplies. Participating Physicians will be notified of changes in reimbursement programs at least 30 days prior to the effective date of any change.

In 1997, Blue Cross notified physicians of such a change to its usual, customary and reasonable fee reimbursement program. At that time, Blue Cross changed the meaning of “usual, customary and reasonable” from the fee that doctors usually charge for a particular service to the fee that doctors in a given geographic area usually receive for a particular service.

Stubbs, Kahn, Johnston and Costrini, along with the Medical Association of Georgia, filed a declaratory judgment action against Blue Cross, claiming that it had improperly modified the definition of usual, customary and reasonable. The parties filed opposing motions for summary judgment. The trial court granted summary judgment to Blue Cross and denied summary judgment to the doctors and the Medical Association, finding that pursuant to the contracts and the rules Blue Cross had the authority to change the way it defined “usual, customary and reasonable” fees. The court also found that a motion to intervene filed by the American Medical Association was moot.

The doctors and the Medical Association of Georgia appeal from the trial court’s summary judgment rulings in Case No. A00A0398, and the American Medical Association appeals from the denial of its motion to intervene in Case No. A00A0399. Although the American Medical Association filed a separate notice of appeal, it has not filed a separate brief but has joined in the brief filed by the doctors and the Medical Association of Georgia. Because the appealing parties have combined their appeals in a single brief, we will consider the appeals together.

1. The doctors and the Medical Association of Georgia claim that the trial court should have found that Blue Cross — by changing the definition of usual, customary and reasonable — breached its duty to perform under the contracts in good faith. The claim is without merit.

As the trial court noted in its ruling, there can be no breach of an implied covenant of good faith where a party to a contract does what that contract expressly allows it to do. In this case, the contracts and the rules expressly give Blue Cross the authority to change its usual, customary and reasonable fee reimbursement program. Specifically, the rules provide that Blue Cross can change its methods of determining reimbursements under the program. By changing its method of determining usual, customary and reasonable fees from those fees usually charged to the fees usually received, Blue Cross did nothing more than what the contracts and rules expressly allowed. By doing merely what the contracts allowed, Blue Cross did not breach its duty to act in good faith. The doctors and Association’s claim of a breach of good faith provides no basis for reversing the trial court’s summary judgment rulings.

2. The doctors and the Medical Association of Georgia argue that the court erred in denying them summary judgment and in granting summary judgment to Blue Cross because the payment terms under the 1997 amended rules are unascertainable and thus unenforceable. The doctors assert that they cannot determine if they are being properly compensated under the reimbursement plan because Blue Cross refuses to give them either a fee schedule or the precise methodology that it uses to determine the usual, customary and reasonable fees received for a particular service. Blue Cross admits that it refuses to give doctors its fee schedule.

We agree with the doctors that Blue Cross’ refusal to provide participating physicians with a fee schedule and the precise methodology used to determine the usual, customary and reasonable fees for services is improper. A promise of future compensation must be for an exact amount or based upon a formula or method for determining the exact amount, and that amount or formula should be ascertainable from the contract. Here, the exact method used by Blue Cross for determining payment amounts is not ascertainable from the contracts or from the rules and regulations. Without such fee information, there is no way for doctors to calculate for themselves whether they have been fully paid for a particular service under the plan. While the doctors agreed to abide by Blue Cross’ rules and regulations, and while they agreed to allow Blue Cross to make changes to the reimbursement plan rules, the doctors never agreed to allow Blue Cross to keep its fee schedules and methods for determining fees secret. Such information is critical to the doctors so that they can ensure that Blue Cross is fulfilling its obligations under the contracts.

Because there exists a method for determining the fees to be paid, we do not agree with the doctors that the trial court should have declared the 1997 rules invalid and unenforceable. Rather, we believe the court should have ordered Blue Cross to make that information available to the doctors so they can protect their rights under the agreements. Accordingly, the trial court’s failure to order such relief was error. We therefore reverse as to that judgment and remand the case with direction that the trial court order Blue Cross to provide the doctors with its fee schedule and the precise methodology that is used for determining payments.

Decided June 19, 2000

Reconsiderations denied July 6, 2000

Epstein, Becker & Green, Richard H. Vincent, Kenneth G. Menendez, Gerald K. Domescik, for appellants.

Long, Aldridge & Norman, Bruce P. Brown, James A. Washburn, for appellee.

3. The appellants’ remaining arguments are unpersuasive, and they have shown no reversible error in the trial court’s ruling that the American Medical Association’s motion to intervene was moot.

Judgment affirmed in Case No. A00A0399. Judgment affirmed in part and reversed in part and case remanded with direction in Case No. A00A0398.

Pope, P. J., and Phipps, J., concur.

        Greenwald v. Columbus Bank &c. Co., 228 Ga. App. 527, 529 (492 SE2d 248) (1997); Whisenant v. Fulton Fed. Sav. &c. Assn., 200 Ga. App. 31, 33 (406 SE2d 793) (1991).

        Arby’s, Inc. v. Cooper, 265 Ga. 240, 241-242 (454 SE2d 488) (1995).


author: Blackburn, Presiding Judge.

text:
    A00A0528.
    VANDERPOOL v. THE STATE.
    (536 SE2d 821)
   Blackburn, Presiding Judge.

Samuel Vanderpool appeals his convictions for aggravated assault on a police officer, hijacking a motor vehicle, kidnapping with bodily injury, armed robbery, and felony obstruction of an officer, contending that he was insane at the time these crimes occurred. For the reasons set forth below, we affirm.

After committing the criminal acts listed above in a crime spree across Banks County and into Gwinnett County during a time span of approximately one hour, Vanderpool claimed that he was not guilty for his actions by reason of insanity. Vanderpool was first tried, without a jury, in Gwinnett County for the crimes committed there, and the trial court found him to be not guilty by reason of insanity. Subsequently, Vanderpool received a jury trial for the earlier crimes committed in Banks County, and he was convicted of aggravated assault on a police officer, hijacking a motor vehicle, kidnapping with bodily injury, armed robbery, and felony obstruction of an officer.

In the Banks County trial, which is the subject of the present appeal, Vanderpool contends that the trial court erred by: (1) denying his motion for a directed verdict of not guilty by reason of insanity; (2) denying his written request to charge the jury that he was entitled to a presumption of insanity based on the earlier adjudication by the Gwinnett County court; and (3) by denying his plea in bar to find him not guilty by reason of insanity based on the principle of collateral estoppel. For the reasons set forth below, we affirm.

1. Vanderpool contends that the trial court erred by denying his motion for a directed verdict of not guilty by reason of insanity. We disagree.

[Vanderpool] may be found “not guilty by reason of insanity at the time of the crime” if he meets the criteria of Code Section 16-3-2 (lacked mental capacity to distinguish between right and wrong in relation to the crime) or 16-3-3 (acted because of a delusional compulsion which overmastered defendant’s will to resist committing the crime) at the time of the commission of the crime. OCGA § 17-7-131 (c) (1).

Rodriguez v. State, 271 Ga. 40, 42 (1) (518 SE2d 131) (1999).

The appropriate standard of appellate review ... is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that [Vanderpool] failed to prove by a preponderance of the evidence that (he) was insane at the time of the (crimes). (Cit.)

Lawrence v. State, 265 Ga. 310, 311 (1) (454 SE2d 446) (1995).

Construed in this light, the record shows that, on February 17, 1995, Officer Pat Patterson found Vanderpool stranded on the side of the highway after one of his tires had blown out. Patterson instructed Vanderpool that his car, which was blocking the road, would have to be towed. Vanderpool agreed, removed the tag from his vehicle, and then waited with Patterson in his patrol car. When the tow truck arrived, Patterson inspected Vanderpool’s blown tire, and, while Patterson was doing so, Vanderpool snuck behind him and stole his gun. Vanderpool then disabled Patterson’s radio, forced Patterson to sit in the passenger’s side of the patrol car, and drove away, firing a warning shot at the tow truck driver.

As he was speeding down the highway, Vanderpool abruptly hit the brakes, causing the vehicle to slide into a ravine on the side of the road. While they were stopped, Vanderpool began to pull a ski mask over his face. At that point, Patterson removed a small pistol hidden in his pocket, and he shot Vanderpool several times. Vanderpool, however, was not subdued, and he attempted to fire back at Patterson. When the gun malfunctioned, Vanderpool began hitting Patterson in the head with it, causing both men to fall out of the car. Vanderpool then got to his feet, entered the patrol car, and sped away.

With the help of a passing motorist, Patterson reported Vanderpool’s actions to the Banks County Sheriff’s Department. Meanwhile, Vanderpool drove the stolen police car through Banks County and into Gwinnett County, where it broke down. Afterward, Vanderpool hijacked a blue minivan at gunpoint and drove it until it broke down as well. Vanderpool was then taken into custody, and he subsequently claimed that his actions were the product of paranoid delusions of persecution.

During trial, Patterson testified that Vanderpool appeared to be lucid, coherent, and perfectly normal at the time he kidnapped him and absconded with his patrol car. Patterson explained that, when he initially approached Vanderpool’s car, Vanderpool was able to clearly and succinctly communicate with him. During the approximately twenty minutes Patterson and Vanderpool waited for the tow truck to arrive, the two men carried on a normal conversation which included nothing out of the ordinary.

Based on this evidence, the jury had some basis on which to conclude that Vanderpool failed to prove by a preponderance of the evidence that his actions were the result of delusions of persecution and that the evidence was sufficient to support his convictions under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Rodriguez, supra at 43 (1).

Contrary to Vanderpool’s arguments, the fact that two specialists opined that Vanderpool was under delusional impulses at the time of the crimes does not change this result.

[JJurors are not bound by the opinions of expert witnesses regarding a defendant’s sanity; instead, they may rely on the presumption of sanity in OCGA § 16-2-3 unless the proof of insanity is overwhelming. Keener v. State, 254 Ga. 699, 701 (1) (334 SE2d 175) (1985).

(Emphasis in original.) Rodriguez, supra at 42-43. Although there was evidence supporting Vanderpool’s claim that he was insane, there was also direct testimony from Patterson that Vanderpool acted normally at the time that Patterson was kidnapped. Moreover, the experts in this case indicated that it was possible for Vanderpool to phase in and out of delusional episodes. The trial court appropriately denied Vanderpool’s motion for a directed verdict of not guilty by reason of insanity.

2. Vanderpool argues that the trial court erred by denying his written request to charge the jury that he was entitled to a presumption of insanity based on the earlier adjudication by the Gwinnett County court. This argument is misplaced.

As a general rule, “[e]very person is presumed to be of sound mind and discretion but the presumption may be rebutted.” OCGA § 16-2-3. Furthermore, a mental condition, once proved to exist, is presumed to continue. OCGA § 24-4-21. See also Nagel v. State, 262 Ga. 888, 889 (1) (427 SE2d 490) (1993). For example, an individual who has been proven to be insane is presumed to remain so in the future.

Here, Vanderpool contends that the Gwinnett trial court’s determination that he was insane at the time he committed the latter crimes in Gwinnett County raises a presumption that he was also insane when he committed the earlier crimes in Banks County. He argues that the presumption of insanity should apply retroactively. This argument, however, directly contradicts OCGA § 24-4-21 which indicates that the mental state of insanity, once proven, continues to cover actions of the defendant occurring after the behavior which resulted in a finding of insanity. A presumption of continuing insanity applies prospectively to future acts of the defendant, not retroactively to past behavior.

The adjudication of insanity in Gwinnett County would raise a presumption that crimes committed by Vanderpool subsequent to those occurring in Gwinnett County were the result of his insanity. It would not, however, raise such a presumption regarding crimes committed prior to those committed in Gwinnett County. Therefore, Vanderpool was not entitled to a presumption of insanity in Banks County.

Contrary to Vanderpool’s argument, Butler v. State, 252 Ga. 135 (311 SE2d 473) (1984) does not change this result. In Butler, a probate court, which was familiar with the defendant’s long history of mental illness, found the defendant to be in need of immediate psychiatric treatment and granted a motion for an involuntary commitment. Later that day, the defendant stabbed an officer to death as he tried to take her to a mental institution. Based on these facts, our Supreme Court held that the defendant was entitled to a presumption of insanity at her murder trial based on the probate court’s finding of insanity. Thus, the presumption of insanity applied to the defendant’s criminal act which occurred after the point at which her mental state of insanity had been proven. Butler, therefore, has no application to the case at hand because the acts for which Vanderpool was tried occurred prior to the point in time at which he was proven to be insane.

3. Finally, Vanderpool contends that, based on the doctrine of collateral estoppel, the State should have been prevented from relitigating the question of his insanity in Banks County because that issue had already been determined in Gwinnett County. Again, this enumeration lacks merit.

Decided July 6, 2000

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Pursuant to the doctrine of collateral estoppel, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Punctuation omitted.) Hunter v. State, 191 Ga. App. 769, 771 (382 SE2d 679) (1989). “[T]he application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” (Punctuation omitted.) Mims v. State, 191 Ga. App. 628, 631 (3) (382 SE2d 414) (1989). Furthermore, collateral estoppel proscribes relitigation of only those issues that were “necessarily resolved in the defendant’s favor at the first trial.” (Punctuation omitted.) Id.

At the outset, it must be noted that sanity may ebb and wane like a mental tide. A defendant who is perfectly lucid at one moment may be maniacal at the next. This fact is borne out by the Banks County jury’s verdict in this case in which it was found that Vanderpool was guilty but mentally ill as to one count and guilty as to the others. Accordingly, we cannot say that the trial court in Gwinnett County necessarily considered Vanderpool’s mental state at the time he initiated the kidnapping of Patterson in Banks County in reaching his decision. Moreover, the crimes committed in Gwinnett County were against different victims from those crimes committed in Banks County. Therefore, to determine that Vanderpool was insane while he was in Gwinnett County was not necessary to a finding that he was insane in Banks County, and collateral estoppel does not apply.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

       Vanderpool was found guilty but mentally ill for one count of aggravated assault on a police officer and guilty for a second count.


author: Pope, Presiding Judge.

text:
    A00A0630.
    HUMPHREY v. THE STATE.
    (537 SE2d 95)
   Pope, Presiding Judge.

Daniel Humphrey appeals his convictions for driving under the influence, attempting to elude an officer, and driving on the wrong side of the road. He asserts the trial court made four errors.

1. Humphrey contends the court erred in granting the State’s motion for mistrial when the case was first tried and that, therefore, he should not have been tried a second time. After the jury had been impaneled, the State moved for a mistrial on the grounds that it could not get a fair trial because two necessary witnesses who were under subpoena did not appear at trial. Humphrey objected to the motion, and he filed a plea in bar before the second trial arguing that the second trial violated the constitutional prohibition against double jeopardy on the grounds that there was no manifest necessity for the mistrial. See Illinois v. Somerville, 410 U. S. 458 (93 SC 1066, 35 LE2d 425) (1973); Abdi v. State, 249 Ga. 827, 828 (2) (294 SE2d 506) (1982); Terrell v. State, 236 Ga. App. 163, 165 (511 SE2d 555) (1999); Banks v. State, 230 Ga. App. 258 (1) (495 SE2d 877) (1998).

The trial court’s decision to grant a mistrial and reject lesser alternatives is entitled to great deference. Terrell v. State, 236 Ga. App. at 165; Cooke v. State, 230 Ga. App. 326, 328-329 (496 SE2d 337) (1998). But, because of the “opportunity for overreaching, . . . [i]f the prosecutor proceeded to trial aware that a key witness was not available to testify and a mistrial was granted for that reason, a second prosecution is barred.” Spencer v. State, 192 Ga. App. 822, 823-824 (1) (386 SE2d 705) (1989). In Davis v. State, 170 Ga. App. 748 (318 SE2d 202) (1984), we held that there was a manifest necessity for a mistrial where the victim ran away from an unsecured juvenile shelter the night before she was to testify and after the jury had been impaneled. See also Spencer, 192 Ga. App. at 824 (subpoenaed witness appeared at morning session but not at afternoon session).

Here, there was no evidence that the prosecutor knew prior to trial that the two necessary witnesses would refuse to obey the subpoena. Both witnesses were under subpoena, both had appeared in court two days earlier, and both were still under subpoena on the morning of the trial. When the two witnesses failed to appear, a deputy sheriff was sent to find them. He eventually found one at about 10:30 a.m. but could not locate the second. The court declared a mistrial. The second witness was not found until several days later. Both witnesses were subsequently ordered to show cause why they should not be held in contempt. One of the two was sanctioned. Both witnesses were necessary to identify Humphrey as the defendant and to rebut Humphrey’s defense that he was not driving the truck that was involved in the incident. We find no abuse of discretion.

2. Humphrey argues that the court should have disqualified the prosecutor, Ben Eirbo, who worked part-time as the State Court Solicitor-General in Decatur County. Eirbo also maintains a general civil practice.

In June 1998, during a preliminary hearing in this case, Ben Eirbo announced to the court that he was disqualified “because of a civil conflict; other members of my firm represent Mr. Humphrey in some other matters.” The case was continued so as to allow Eirbo a reasonable opportunity to arrange special, i.e., alternative, prosecution.

In February 1999, when the case was again called for trial and Ben Kirbo was still assigned as the prosecutor, Humphrey objected. He explained that Bruce Kirbo, one of Ben’s law partners, represented him in divorce proceedings that had ended in September 1998 and in real estate transactions in December of the same year. Humphrey argued that not only had Ben Kirbo already disqualified himself, but he should be disqualified because he could have learned something about Humphrey from the client file or from Bruce. Further, the divorce and the criminal case both involved Humphrey’s alleged drinking habits. Humphrey, however, had no direct evidence of any communication between the two partners.

Ben Kirbo denied any knowledge of the divorce except being aware that Bruce represented Humphrey. And he denied discussing the criminal matter with his partners or other members of the firm. The court held that Kirbo was not disqualified primarily because Humphrey had no evidence that the two Kirbos ever discussed either matter.

This case raises concerns about both multiple representation as regulated by Canon 5 and Directory Rule 5-105 of the Canons of Ethics of the State Bar of Georgia and successive representation as regulated by Canon 4. Each has a different focus and a different standard for disqualification. The primary focus of the rules against multiple representation is to ensure that a lawyer exercises independent professional judgment on behalf of his clients. See Canon 5. The primary focus of rules against successive representation is the preservation of client confidences and secrets. See Canon 4.

A lawyer, is required to decline multiple representation, i.e., representation of a second client where the representation may affect his or her representation of an existing client, unless it is “obvious that he can adequately represent the interest of each.” Directory Rule 5-105 (C). And, even then, where there is any possible effect on the other, he must secure from each client their consent after “full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” Directory Rule 5-105 (C). A lawyer breaches this duty by taking a second client if his independent judgment may reasonably be affected; “there is no requirement of actual harm.” In re Allison, 267 Ga. 638, 645, n. 13 (481 SE2d 211) (1997). Finally, “[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or her firm may accept or continue such employment.” Directory Rule 5-105 (D).

A lawyer is required to decline successive representation, i.e., representing a party in a matter adverse to a former client, where the second matter is “substantially related” to the lawyer’s representation of the former client. Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 721 (1) (373 SE2d 749) (1988). This rule is based on an irrebuttable presumption that confidences have been disclosed. “If such a substantial relationship between the cases is shown, the court will then irrebuttably presume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.” (Citations omitted.) Summerlin v. Johnson, 176 Ga. App. 336, 338 (1) (335 SE2d 879) (1985). See also Carragher v. Harman, 220 Ga. App. 690, 691-692 (1) (469 SE2d 443) (1996). The party seeking disqualification is not required to point to specific confidences revealed to his attorney that are relevant to the pending case; rather, his burden is only to show a substantial relationship between the two cases. Summerlin, 176 Ga. App. at 338 (1).

In this case, Kirbo was faced with both types of representation problems. The criminal case was pending at the same time as the divorce case, i.e., multiple representation, and Humphrey pointed that out to the court. Indeed, Kirbo knew he had a multiple representation problem while the divorce case was pending; he told the court so when the case first came up for trial. There can be little doubt that it is improper for one attorney in a firm to prosecute his partner’s client when both matters are pending. At a minimum, Humphrey would have had to give his fully informed consent before Kirbo could have prosecuted him under those circumstances. Directory Rule 5-105. The State does not contend that this happened. Thus, at the time of the February 1999 hearing, Kirbo rightly recognized that he was disqualified from prosecuting Humphrey.

After Humphrey’s civil matters were resolved, Kirbo was still faced with the possibility of a successive representation problem, which required determining whether the criminal action and bis firm’s prior representation of Humphrey were substantially related. Humphrey argues that because his divorce involved allegations that he drank too much at or about the same time that he was arrested for DUI, the criminal prosecution was substantially related to the divorce.

We find that the two matters are substantially related. We are guided by the reasoning of Summerlin where the Court discussed several hypotheticals that served “to prove the wisdom of not allowing a party’s previous attorney to represent another against that party” where the two matters are substantially related. Summerlin, 176 Ga. App. at 340-341 (1). Both matters involved Humphrey’s drinking at or about the same time. If Ben Kirbo learned the simple fact that Humphrey’s wife claimed that he drank excessively, it could have influenced his decision to prosecute Humphrey on the DUI charge. Knowledge of Humphrey’s actual drinking habits or his credibility with regard to them could further affect Kirbo’s prosecutorial decisions and his tactics trying the case. Also, Humphrey’s own behavior could be affected. As stated in Summerlin,

if a person knows he might face his lawyer in another lawsuit where something he has said or done, however insignificant it seemed at the time, could be used against him, can we expect him to repose the full confidence in his lawyer as the law anticipates he should?

Id. at 340 (1).

The lower court was concerned that a finding of disqualification would mean that a defendant in Humphrey’s position could simply retain Kirbo’s firm and thereby disqualify Kirbo from prosecuting any criminal matter against him including a pending matter. But law firms are expected to screen prospective clients for possible conflicts and decline representation where one exists. A statement in the State’s brief reveals the root of the problem in this case, “At the time [Humphrey employed the firm for the divorce], [Bruce Kirbo] did not know of the pending charges, and the Solicitor did not know of the divorce matter.” The firm was in the best position to avoid'this problem. Further, nothing in our opinion prevents Kirbo from prosecuting Humphrey in the future in matters unrelated to his firm’s representation of Humphrey.

Contrary to the State’s contentions, imputed or vicarious disqualification of a government employee is not at issue here. See Frazier v. State, 257 Ga. 690, 694 (9) (362 SE2d 351) (1987); Billings v. State, 212 Ga. App. 125, 128-129 (4) (441 SE2d 262) (1994). In this case, the imputed disqualification, from Bruce Kirbo to Ben Kirbo, is within a private firm. See Directory Rule 5-105 (D). Compare Standard of Conduct 38.

The court erred in refusing to disqualify Ben Kirbo from prosecuting Humphrey in this case.

3. Humphrey contends that the court improperly limited cross-examination of the two witnesses who failed to appear at the earlier trial. He urges that cross-examination about their absence from court and the court’s actions requiring them to show cause were relevant to their motives in testifying against him. We agree. Although the scope of cross-examination is within the discretion of the court, cutting off all inquiry on a proper topic of cross-examination was an abuse of discretion. See Byrd v. State, 262 Ga. 426, 427-428 (2) (420 SE2d 748) (1992). On retrial, cross-examination should be allowed.

Decided July 6, 2000.

Gilbert J. Murrah, for appellant.

Ben Kirbo, Solicitor, for appellee.

4. Finally, Humphrey urges that the jury charge on presumption of innocence, the burden of proof and reasonable doubt was insufficient. Having reviewed the charge as a whole we find no merit to this enumeration.

Judgment reversed.

Smith, P. J., and Miller, J., concur.

       Furthermore this case raises the issue of whether an attorney with a multiple representation problem can solve that problem by simply waiting for one of the cases to resolve itself. This situation presents a slightly different problem from a case of mere successive representation. But, we need not address this issue here because of our holding that Kirbo’s prosecution of this case violated the rules of both multiple and successive representation.


text:
    A00A0848.
    JAMES v. SAFARI ENTERPRISES, INC.
    (537 SE2d 103)
   Pope, Presiding Judge.

The sole issue in this case is. whether the statute of frauds applies to the parties’ nonjudicial foreclosure sale. We conclude that it does apply under the facts of this case and reverse the trial court’s denial of appellant Amy James’ motion for summary judgment.

On May 5, 1998, James was the high bidder at a foreclosure sale on two parcels of land. Safari Enterprises, Inc. was conducting the sale pursuant to a power of sale contained in a security deed. Michael Safari, an owner and officer of Safari Enterprises, had also bid on the properties, but James outbid him. The parties did not execute any memorandum of sale on the transaction, and James denies that the parties entered into a binding sales contract.

James testified that at the time she placed her bid, she was unaware that the security deed reflected a second mortgage on the property and that the property was subject to a first mortgage. She first learned of this fact when Safari Enterprises’ attorney told her after the fact. She told the attorney that if she had bid on a second mortgage, she was not interested in purchasing the properties. She then left to check the records. Once she confirmed that a large first mortgage existed, she immediately returned to the attorney and told him she did not wish to consummate the deal.

Safari Enterprises’ lawyer acknowledged that following the sale, he did tell James that the deeds were not first mortgages, but he says that James did not voice any hesitation about the transaction. Instead, the lawyer said that she told him she had to leave for about 30 minutes to get the money for the purchase from her bank. He relayed this to Michael Safari, who then left, anticipating that the deal with James would close. According to the lawyer, it was only when James returned that she told him she did not wish to close on the transaction.

Safari Enterprises sued James for specific performance of the transaction. James moved for summary judgment on several grounds, including the statute of frauds. The trial court denied the motion, stating that it found no authority for James’ argument that the statute of frauds applied to a foreclosure sale. And even assuming that the statute did apply, the trial court found that Safari Enterprises reasonably relied upon James’ high bid “as evidence of her intent to purchase the property, thus removing the sale from the ambit of the Statute” under OCGA § 13-5-31 (2). Following the trial court’s certification of this issue for immediate review, we granted James’ application for interlocutory appeal.

Under Georgia’s statute of frauds, “[a]ny contract for sale of lands, or any interest in, or concerning lands” must be in writing and signed by the party to be charged. OCGA § 13-5-30 (4). And in an early opinion, our Supreme Court held that the statute of frauds applies to nonjudicial foreclosure sales made pursuant to a power of sale in a security deed. Seymour v. Nat. Bldg. & Loan Assn. &c., 116 Ga. 285 (42 SE 518) (1902). Accordingly, the statute of frauds applies to the sale in this case unless it falls into one of the recognized exceptions.

The trial court found that Safari Enterprises’ reliance upon James’ high bid removed the transaction from the statute of frauds under OCGA § 13-5-31 (2). That section provides that the statute of frauds does not extend to a situation “[w]here there has been performance on one side, accepted by the other in accordance with the contract.” We find, however, that this case is controlled by OCGA § 23-2-131, which states:

The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.

OCGA § 23-2-131 (a). See also R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 582-583 (1) (b) (451 SE2d 812) (1994) (physical precedent only) (OCGA § 23-2-131 applies in equitable actions for specific performance).

Here, James denies the contract. But an award of specific performance may still be made under OCGA § 23-2-131 where the contract is partially performed. Dobbs v. Dobbs, 270 Ga. 887, 888 (1) (515 SE2d 384) (1999). The statute defines what constitutes partial performance: (1) full payment, (2) partial payment and possession, or (3) possession and valuable improvements. OCGA § 23-2-131 (b); Coleman v. Coleman, 265 Ga. 568, 569 (1) (459 SE2d 166) (1995).

Decided July 6, 2000.

Stanley E. Kreimer, Jr., for appellant.

Richard E. Thomasson, for appellee.

Here, none of these factors are present. James simply made a bid for the property, which Safari Enterprises accepted. No partial performance of the contract occurred. The transaction, therefore, stays within the confines of the statute of frauds. And in the absence of a writing signed by James detailing the terms of the transaction, James is not bound. Accordingly, she is entitled to summary judgment on Safari Enterprises’ claim.

Judgment reversed.

Smith, P. J, and Miller, J., concur.

       The statute of frauds does not apply, however, to judicial sales. OCGA § 9-13-169.

       Moreover, we note that once Safari Enterprises learned that James would not be honoring her bid, it had the option of reselling the property and thus it was not left without a remedy. See, e.g., Moody v. Mendenhall, 238 Ga. 689, 690 (234 SE2d 905) (1977); Little v. Fleet Finance, 224 Ga. App. 498, 499, n. 2 (481 SE2d 552) (1997).


text:
    A00A0689.
    GOLDMAN v. VINSON.
    (535 SE2d 305)
   Johnson, Chief Judge.

Marshall Goldman filed a declaratory judgment action to determine whether his tenant, Robert Vinson, had the right to renew a real estate lease agreement and, if so, whether Vinson complied with the contract’s requirements for exercising the renewal option. The trial court found that Vinson did have the right to renew and that he exercised that option in accordance with the terms of their agreement. Goldman appeals from that judgment. We affirm.

The relevant, undisputed facts are as follows: Goldman owns a parcel of real estate which he leased to Green Brothers Nursery, Inc. in August 1984 for a 25-year term. On July 15,1987, Green Brothers entered into a sublease with Vinson in which Vinson would lease a small strip of the property through August 31, 1999. The Green Brothers/Vinson sublease provided that Vinson had the right to renew the sublease for three further five-year periods by sending notice of his intent to renew to Green Brothers via certified mail within 120 days of the lease termination date. On July 21, 1987, Vinson entered into an agreement with an advertising company to rent the strip to the advertising company for use as a billboard location.

On July 28, 1987, Vinson and Goldman entered into an agreement regarding the same strip of property. In the agreement, Vinson stated that he wished to sublease the property from Green Brothers on the terms set forth in the Green Brothers/Vinson sublease and that he wished to preserve his rights under that sublease in the event the Green Brothers/Goldman lease was terminated for any reason before the end of the latter’s stated term. Vinson and Goldman agreed that, as consideration for Goldman’s promise, Vinson would pay Goldman $100 each month during the term of the sublease and that if the Green Brothers/Goldman lease was terminated for any reason, Goldman would lease the property to Vinson through August 31, 1999, under the terms set forth in the Green Brothers/Vinson sublease.

In June 1990, the lease between Goldman and Green Brothers was terminated. At that time, Vinson began renting the strip directly from Goldman as provided in the Goldman/Vinson agreement. This continued for nine years.

On April 27, 1999, Vinson sent a letter to Goldman by regular mail acknowledging that the Goldman/Vinson agreement would terminate on August 31, 1999. In the letter, Vinson referred to letters he previously wrote regarding renewal, threatened to remove the billboard if a new agreement with more favorable terms was not reached within 30 days, and said he enclosed a proposed renewal agreement for Goldman’s review.

On May 1, 1999, Vinson sent another letter to Goldman, also by regular mail, notifying Goldman of his intention to exercise his option to renew the lease pursuant to the renewal provision contained in the Green Brothers/Vinson sublease. On May 11,1999, Vinson sent Goldman a facsimile notifying Goldman that Vinson’s offer to negotiate a new agreement was being withdrawn and that he would rely on the renewal provision contained in the Green Brothers/ Vinson sublease.

Goldman, contending he was not obligated to renew the sublease, filed a complaint seeking a declaratory judgment regarding his and Vinson’s rights under the agreement and also seeking to enjoin Vinson from removing the billboard; if the billboard remained in place and Goldman was not obligated to renew his agreement with Vinson, Goldman might be free to enter into a lease agreement directly with the advertising company. The trial court found that the Goldman/Vinson agreement incorporated the renewal option terms of the Green Brothers/Vinson agreement, that Vinson complied with the renewal option requirements, and that a proper renewal had been accomplished. The trial court denied Goldman’s petition for injunctive relief. Goldman appeals from the trial court’s entry of judgment in favor of Vinson regarding the validity of the renewal option.

1. Goldman contends the trial court erred in holding that the option to renew contained in the sublease between Green Brothers and Vinson is incorporated into the Goldman/Vinson agreement, when the latter agreement specifies an expiration date of August 31, 1999, and does not mention an option to renew. We disagree.

Paragraph 2 of the Goldman/Vinson agreement provides that if the Green Brothers/Goldman lease is terminated for any reason, Goldman shall lease the property to Vinson “through August 31, 1999, under the terms set forth in the [Green Brothers/Vinson] Sublease.” (Emphasis supplied.) The Green Brothers/Vinson sublease contains the following provision:

18. Option to Renew: Provided that [Vinson] is not in default under the terms and conditions of this lease and provided [Green Brothers] decides to exercise its option period(s), [Vinson] is hereby granted the right and privileges of renewing the within lease for Three (3) further periods of Five (5) years upon the same terms and conditions as herein contained. Each renewal option is contingent upon notice given by [Vinson] to [Green Brothers] of [Vinson’s] intention to renew not less than 120 days prior to the expiration of the then current term of lease.

Paragraph 14 of the Green Brothers/Vinson sublease provides that all notices required under the agreement shall be given by certified mail, return receipt requested.

As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where the provision to which reference is made has a reasonably clear and ascertainable meaning. By its express terms, the Goldman/Vinson agreement specifically incorporates the Green Brothers/Vinson sublease; the former even attaches and refers to the latter as Exhibit A. The renewal language in the Green Brothers/Vinson sublease has a clear meaning — Vinson may renew the sublease for three five-year periods after its stated termination date of August 31, 1999.

We are not persuaded by Goldman’s argument that because the Goldman/Vinson agreement specifies a termination date of August 31, 1999, the agreement must end on that date. The sublease being incorporated also contains that termination date but allows for renewal in spite of the specified date. Goldman expressly agreed to lease the property to Vinson under the terms set forth in the sublease. One of those provisions gives Vinson the option to renew the lease. We note that as a general rule, where there is any uncertainty as to renewal provisions, the tenant is to be favored. The trial court did not err in finding the new agreement incorporated the renewal provision.

2. Goldman also argues that even if Vinson had the option to renew, he failed to comply with the requirements for exercising the option. Goldman’s sole complaint is that Vinson sent the notice of renewal by regular, rather than by certified, mail. We hold that under the circumstances here, the notice was sufficient.

As Goldman points out, in some situations, sending notice of intent to renew by regular mail when the contract states that notice is to be made by certified mail constitutes invalid notice. In Atkinson v. Cook, the Supreme Court of Georgia held that a buyer who purported to exercise an option by sending notice via regular mail, when the contract required notice by registered mail, failed to give valid notice. However, in reaching its decision that strict compliance was required, the Supreme Court stated that there was no evidence that the seller waived his right to strict compliance with the option contract’s terms or that the seller learned that the option had been purportedly exercised within the option period. The Supreme Court noted that it might have reached a different result if the seller had accepted the buyer’s improper notice within the option period or if he had proceeded to a closing based on the improper notice.

In this case, Goldman waived his right to demand strict compliance with the option contract’s certified mail requirement, and he learned of Vinson’s purported exercise of the option within the option period. In his verified amendment to his complaint, Goldman admits: “as the end of the term of the [Goldman/Vinson agreement] began to draw near, the parties engaged in negotiations regarding the possible renewal of the Agreement”; that on April 27, 1999, Vinson sent him a letter acknowledging that the agreement would terminate in August and threatening to remove the billboard if no agreement was reached; and that on May 1, 1999, Vinson sent him a letter notifying him of his intent to renew the agreement pursuant to the option to renew in the Green Brothers/Vinson sublease.

From these events, we conclude that Goldman waived the certified mail requirement. Although Vinson could have sent the notice by certified rather than regular mail, he had no reason not to rely on the notice he sent by first-class mail which Goldman agrees was sent (and which Goldman attached to his amended complaint) and to which Goldman responded with negotiations as to the terms of an extension. There is no allegation or evidence in the record indicating that Goldman did not receive any notice or that he objected to the manner in which notice was given before the option period expired. It was too late, when time had run out, for Goldman to raise the objection that notice should have been sent by certified mail. Furthermore, the evidence shows that Goldman learned within the option period that the option had been purportedly exercised. Under these circumstances, the notice was valid.

Decided May 31, 2000

Reconsideration denied July 7, 2000

Krevolin & Horst, Michael D. Flint, for appellant.

Mark B. McManus, for appellee.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

        Town Center Assoc. v. Workman, 227 Ga. App. 55, 57 (1) (487 SE2d 624) (1997).

        Felder v. Oldham, 199 Ga. 820, 826 (2) (35 SE2d 497) (1945).

        Atkinson v. Cook, 271 Ga. 57, 58 (518 SE2d 413) (1999).

       Id.

       See id. at 59, n. 8.

        Storey v. Austin 221 Ga. 692, 695-696 (1) (146 SE2d 728) (1966).

        Atkinson, supra.


text:
    A00A0752.
    CAMPBELL et al. v. BREEDLOVE.
    (535 SE2d 308)
   Johnson, Chief Judge.

Sylvia Campbell and her husband David Campbell sued Sylvia Campbell’s obstetrician for medical malpractice and battery after their child died in útero. The jury returned a verdict for the physician. The Campbells appeal from the judgment entered on the verdict, contesting certain evidentiary rulings. Because we have determined that either no error or no reversible error occurred, we affirm.

The record shows that on April 2,1996, when Mrs. Campbell was 34 weeks pregnant, the obstetrician told her that the baby was in breech presentation and that he would attempt to turn the fetus by an external cephalic version procedure. This procedure is one in which the physician manipulates the outside of the mother’s abdomen to turn the baby from a breech presentation to a vertex or headfirst presentation. The obstetrician, Dr. David Breedlove, attempted the procedure in his office that day, on April 16, 1996, and again on April 23, 1996. He was unsuccessful on each occasion.

According to Mrs. Campbell, before the first attempt to turn the fetus, she asked Dr. Breedlove whether the procedure was safe, whether the procedure would cause premature labor or bleeding, and whether it would harm the baby. Dr. Breedlove responded that he had been successful in the past in performing the procedure and that there was “nothing to worry about.” Mrs. Campbell testified that before the second and third attempts she again questioned Dr. Breed-love about the safety of the procedure. At trial, Dr. Breedlove denied that Mrs. Campbell had asked questions about any risks and denied that he had told her that there was no need to worry. It is, however, undisputed that Dr. Breedlove never disclosed any of the risks associated with the procedure.

On May 4, because she no longer felt fetal movement, Mrs. Campbell went to the hospital, where Dr. Breedlove determined that her baby had died in útero. During the delivery of the stillborn baby, Dr. Breedlove observed that the umbilical cord was wrapped tightly three times around the baby’s neck and told Mrs. Campbell that the cord entanglement was a likely cause of her child’s death.

The Campbells sued Dr. Breedlove for medical malpractice, alleging that he breached the standard of care when he attempted the procedure without using certain screening and monitoring devices. The Campbells amended their complaint to include a claim for battery based on the theory that Mrs. Campbell’s consent to the procedure was obtained by fraud. They alleged that Dr. Breedlove failed to inform them of the general terms of the procedure and that he failed to disclose the material risks in response to Mrs. Campbell’s inquiries.

Before trial, Dr. Breedlove moved in limine to exclude evidence of informed consent, arguing that informed consent did not apply in this case. The trial court determined that this case did not involve any of the specific surgical or diagnostic procedures set forth in OCGA § 31-9-6.1 and so excluded evidence regarding informed consent to prove a violation under that Code section. However, the trial court ruled that evidence of informed consent would be permitted to prove a violation of OCGA § 31-9-6, which sets out more general requirements for establishing valid consent to medical treatment.

After the close of evidence, the trial court directed a verdict against the Campbells with respect to their fraud claim. The jury returned a verdict for Dr. Breedlove as to the malpractice claim, and the trial court entered judgment on the verdict. The Campbells appeal, claiming that the trial court improperly excluded their medical expert’s testimony regarding their battery claim. We are not called upon to address, in this case, the issue of whether the physician had a legal duty to warn of the risks of this particular procedure under OCGA § 31-9-6.1.

As an initial matter, we note that the Campbells’ brief does not comply with this Court’s rules. All enumerations of error are argued collectively and with the arguments intermingled.

Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; ... a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

1. The Campbells contend that the trial court erred by precluding their medical expert from testifying about Dr. Breedlove’s failure to disclose the known risks of the external cephalic version procedure. They argue that the expert should have been allowed to describe the risks, to testify that such risks are well known in the obstetrical community, and to opine that Dr. Breedlove was untruthful when he responded to Mrs. Campbell’s inquiries.

At the outset, we note that under current law in Georgia, a physician does not have an affirmative duty to warn of risks; however, where he undertakes to do so in response to the patient’s inquiry, he must be truthful. In this case, we do not consider whether the defendant had or should have had an affirmative duty to warn of the risks absent an inquiry, as the Campbells do not raise that issue. The only issues raised regarding the physician’s duty to warn here concern the patient’s inquiry, the truthfulness of the physician’s response thereto, and the evidence allowed in regard to these issues.

Although the trial court’s order on Dr. Breedlove’s motion in limine appears not to have excluded evidence to prove the battery claim, during the trial the court stated, “[The Campbells’ medical expert] may not testify as to the failure to inform concerning risks of treatment or the risk of the procedure, or testify as to what those risks are. ... He can’t testify as to the failure to warn.” But the record shows that the Campbells’ medical expert testified extensively of risks associated with the procedure, including premature birth, premature rupture of membranes, a prolapsed cord, cord entanglement, a dislodged placenta, and fetal death. The Campbells’ expert stated that the risks were well known and appreciated in the obstetrical community. Their medical expert named additional considerations — such as medical illnesses, patient’s weight, fluid volume, placenta location, cord location, and any anomaly with the baby — which could make the procedure more dangerous for a particular patient. Finally, he opined that Dr. Breedlove breached the standard of care by not using certain monitoring devices to make sure that the procedure was safe for the baby and the mother. Thus, the Campbells’ assertions that their medical expert was precluded from testifying about the risks and whether Dr. Breedlove breached the standard of care is belied by the record.

We turn to the Campbells’ assertion that their medical expert was erroneously precluded from opining that Dr. Breedlove’s responses were untruthful. Mrs. Campbell claims that Dr. Breed-love’s statement that there was no need to worry amounted to a misrepresentation and that her reliance on such misrepresentation negated her consent to the procedure.

“A cause of action for battery exists when treatment is performed by a physician without the consent of, or after withdrawal of consent by, the patient.” Consent is not valid if it was obtained by fraudulent misrepresentations of material facts. Here, there was evidence of the risks, of Mrs. Campbell’s inquiry, and of Dr. Breedlove’s response. A factfinder could decide the issues of whether Mrs. Campbell asked questions about the risks and whether Dr. Breedlove’s response that she need not worry, if made, was truthful. This was not a proper subject for opinion testimony. Therefore, the trial court did not err in disallowing the witness to give an opinion about the truthfulness of Dr. Breedlove’s alleged statements.

2. The Campbells contend that the trial court erred by permitting the defense to question Dr. Breedlove as to the known risks of the procedure, when the court did not allow their medical expert to testify as to the procedure’s risks. However, as discussed above, the Campbells’ expert did testify as to the risks and that they were well known in Dr. Breedlove’s area of practice. Thus, we see no harm. Moreover, the Campbells have failed to show this Court where in the record the complained-of testimony may be found or that they objected below to the testimony of which they now complain. Indeed, Dr. Breedlove urges that he gave no such testimony. This contention presents nothing for review.

Decided May 31, 2000

Reconsideration denied July 7, 2000

Ford Law Firm, James L. Ford, Sr., Jeffrey M. Gore, for appellants.

Forrester & Brim, Weymon H. Forrester, for appellee.

3. The Campbells contend that the trial court erred by precluding their medical expert from testifying about Dr. Breedlove’s failure to disclose the known risks of the external cephalic version procedure and then charging the jury:

If you find that the patient made inquiry about the risks or safety of the procedure and that the defendant failed to truthfully disclose the known risks of the external cephalic version procedure to the plaintiff, then you could find that any consent the defendant obtained from the plaintiff to carry out the external version procedure was not authorized.

Again, the record shows that the Campbells’ medical expert testified about the known risks of the procedure. While the evidence conflicts as to whether Mrs. Campbell asked about the risks associated with the procedure, it is undisputed that Dr. Breedlove did not disclose the risks to her. The charge contained a correct statement of Georgia law and was applicable to the issues being tried. Moreover, the record reflects that the Campbells requested this charge. The trial court did not err in giving it.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

       See Court of Appeals Rule 27 (c) (1).

       (Citation omitted.) Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996).

       See Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296 (528 SE2d 777) (2000); Spikes v. Heath, 175 Ga. App. 187, 189 (2) (332 SE2d 889) (1985).

       (Citation and punctuation omitted.) Kaplan v. Blank, 204 Ga. App. 378 (1) (419 SE2d 127) (1992).

        Smith v. Wilfong, 218 Ga. App. 503, 507 (2) (462 SE2d 163) (1995); see OCGA § 31-9-6.

       See OCGA § 24-9-80; Johnson v. Knebel, 267 Ga. 853, 857 (485 SE2d 451) (1997); Rose v. Figgie Intl., 229 Ga. App. 848, 857 (3) (a) (495 SE2d 77) (1997) (Georgia does not allow witnesses to opine that a party is lying or telling the truth); Spikes, supra at 189-190 (2) (question of whether physician made wilful misrepresentations of risks involved in procedures is for the jury).

        Monroe v. Kersey, 207 Ga. App. 108 (3) (427 SE2d 80) (1993).

       See Moody v. Dykes, 269 Ga. 217, 219-220 (3) (496 SE2d 907) (1998); Efstathiou v. Reiss, 227 Ga. App. 735, 737 (2) (490 SE2d 426) (1997); Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991).


author: Ruffin, Judge. ANDREWS, Presiding Judge,

text:
    A00A0078.
    SIMS v. THE STATE.
    (537 SE2d 133)
   Ruffin, Judge.

A Houston County jury found Kalvin Sims guilty of burglary. On appeal, Sims contends that the trial court erred by (1) permitting the State to introduce evidence of an impermissibly suggestive photo lineup and subsequent in-court identification; and (2) granting the State’s reverse Batson challenge. Sims also challenges the sufficiency of the evidence. For reasons that follow, we reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. So viewed, the record shows that on June 4, 1998, housekeeper Bonnie Rhoden arrived at her employer’s house between 9:30 and 9:45 a.m. As she parked her car in the driveway, she heard a noise that sounded like a tool being dropped. Because the house was being remodeled, Rhoden assumed the noise had been made by someone working on the house. Rhoden noticed that the front door was closed.

As Rhoden walked around to the side door, she saw that a window had been broken. Initially, she attributed the break to the remodeling effort, but when she looked through the window and saw that the front door had been opened, she became suspicious. Rather than entering the house, she walked back to her car. As she reached her car, she saw a man leaving the woods behind the house and walking toward her. When she was approximately ten feet away from the man, she looked him in the face and said “hello.” The man responded, “hello,” and he continued walking toward a moped that was parked next to the garage. Rhoden, who was afraid to open her car door, walked past her car to the street corner. The man got on the moped and drove away.

Rhoden called her employer, Ann Clark, who called the police. Centerville Police Officer Ronald Coley responded to the call. Upon entering the house, Coley and Clark discovered that Clark’s purse, which had contained between $10 and $20 in change, had been spilled on a countertop and that most of the change had been taken. Nothing else was missing from the house.

Rhoden described the man’s race and said that he had a muscular build, was 5’6” or 5’8”, and was wearing blue shorts, a white shirt tied around his waist, and white tennis shoes. She said the moped he had been riding was white and had a black seat with “POSH” written on the back. Coley, who remembered answering a call about a young girl riding a moped near Valencia Circle, broadcast the suspect’s description and suggested that police look near Valencia Circle.

Police Officer Michelle Snyder began looking for the suspect. She spoke with Clark’s neighbor, who reported seeing a man riding eastbound on a moped. Snyder drove around looking for the suspect before parking her patrol car in a store parking lot. At approximately 10:00 a.m., while Snyder was sitting in the parking lot, she saw Sims walking across a field toward the store. Sims wore a grayish-white T-shirt, long blue shorts, and white tennis shoes. Snyder also noticed a fresh scrape on the side of Sims’ calf. Snyder and another officer stopped Sims and obtained his name, Social Security number, address, and the name of his employer. Snyder thanked Sims for the information, and he continued on his way.

Snyder gave the information to Centerville Police Lieutenant Joseph Pardo, who told her to go to Sims’ home on Valencia Street, where she found Sims in his neighbor’s yard helping her plant a rose bush. Pardo joined Snyder at Sims’ house, and Pardo began asking Sims additional questions. A short time later, Coley drove Rhoden to Sims’ house to see if she could identify him. He drove slowly past Sims, who was standing next to Pardo, and Rhoden said that “it looks like him,” but that she could not be sure. She was unsure whether the shirt Sims was wearing was the same shirt she had seen earlier, and she thought the man she had seen earlier had been wearing a different pair of shorts. Coley then told Rhoden that they had enough information to arrest Sims.

Pardo conducted a pat-down search of Sims for safety purposes, and he found a $1 bill and $6.90 in change in Sims’ pocket. Pardo searched for the moped but never found it.

Approximately one week after the burglary, Rhoden was asked to look at a photo lineup. Officer Pardo, who conducted the lineup, told Rhoden, “We’ve got the person in this lineup that we think did the burglary.” Rhoden was then told to identify the person she saw “[a]t the house and at the drive-by,” and she picked Sims. Rhoden asked Pardo whether she had picked the right person, and Pardo responded affirmatively. Sims was then charged with burglary.

At trial, Rhoden was asked, “Both based on [your] description [of Sims] and based on your recall of the events of June 4th can you identify the person that you ran into coming around [your employer’s] house . . . ?” She pointed to Sims and said that she was “positive” he was the man she had seen leaving her employer’s house.

1. In his first enumeration of error, Sims contends that the trial court erred in allowing evidence of the photo lineup, claiming that it was impermissibly suggestive. Sims also asserts that the trial court erred in failing to exclude Rhoden’s in-court identification of him as the perpetrator, arguing that it was tainted by the pretrial identification procedures. We agree.

In determining whether identification evidence should be excluded, the threshold inquiry is whether the identification procedure was impermissibly suggestive. If so, then the court should consider whether there was a very substantial likelihood of irreparable misidentification. In the recent case of Clark v. State, the Supreme Court held that “An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or ... is the equivalent of the authorities telling the witness, ‘This is our suspect.’ ”

That is essentially what happened in this case. Based on a general description of the perpetrator, the police identified Sims as a suspect. The police then led Rhoden to their suspect for her to identify him one-on-one, a practice which has been widely condemned. Rhoden was unable to positively identify Sims as the perpetrator despite seeing him shortly after the crime was committed. Notwithstanding Rhoden’s tepid identification of Sims, the police told her that they had enough information to arrest him, which is, in essence, tantamount to telling the only eyewitness, “This is our man.”

A week later, the police had Rhoden look at a photo lineup, and she was asked to identify the man she had seen at the house and at the drive-by. Rhoden picked Sims. She then asked the police whether she had gotten “the right one,” and the police responded affirmatively.

Pretrial identification procedures must “comport with certain minimum constitutional requirements in order to insure fairness.” Where the police tell the eyewitness who their suspect is, tell that witness the suspect is in the lineup, and then confirm that the witness chose the right person, we cannot say that the lineup comports with minimal constitutional standards. Thus, we find the pretrial lineup was impermissibly suggestive.

We also believe that the identification procedures employed were so suggestive as to give rise to a substantial likelihood of irreparable misidentification. In determining whether such substantial likelihood of irreparable misidentification exists, we look to the totality of the circumstances. The factors we consider include:

(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation.

In this case, Rhoden testified that she was afraid when she saw the man walking toward her and that she tried to avoid staring at him. Although she did look at his face while saying “hello,” she then averted her eyes. The details she gave to the police — the man’s race and attire — were not particularly distinctive. Moreover, when she was taken to see Sims, she thought he was. wearing different clothes than the perpetrator. And although she saw Sims less than an hour after the burglary, she only “thought” he might be the perpetrator, but she could not be certain. In view of Rhoden’s inability to positively identify Sims shortly after the crime combined with the police officers’ actions during both the showup and the photo lineup, we find that there was a substantial likelihood of irreparable misidentification.

We also agree that Rhoden’s in-court identification of Sims was tainted. Whether an improper pretrial identification taints a subsequent identification depends on all the circumstances of a case. Here, Rhoden’s in-court identification of Sims was tainted for the same reasons the photo lineup was improper. Moreover, after Rhoden identified Sims in the pretrial lineup, the police told her that she was right, further tainting the in-court identification.

Even if a pretrial identification is tainted, however, an in-court identification may be admissible if it has an independent basis. At trial, Rhoden was asked “both based on [your] description and based on your recall of the events of June 4th, can you identify the [perpetrator]?” As the showup took place on June 4, it is unclear whether Rhoden was being asked whether she could recognize Sims based upon her recollection of the crime or the showup. Accordingly, we are unable to conclude that Rhoden’s in-court identification of Sims had an independent origin.

Even if the trial court erred in admitting the pretrial identification, we will affirm the conviction if such error was harmless beyond a reasonable doubt. Given the dearth of evidence supporting Sims’ guilt, however, we cannot conclude that the error was harmless. Other than Rhoden’s testimony, the only real evidence linking Sims to the crime was the fact that he had change in his pocket. This evidence is not particularly incriminating given the fact that the amount of change did not correlate with the amount allegedly taken. Accordingly, we reverse.

2. In view of our holding in Division 1, we need not address Sims’ remaining enumerations of error.

Judgment reversed.

Ellington, J., concurs. Andrews, P. J., concurs specially.

ANDREWS, Presiding Judge,

concurring specially.

Although I agree that the preindictment one-on-one identification procedure used in this case crosses the line and was impermissibly suggestive and created a likelihood of irreparable misidentification, Clark v. State, 271 Ga. 6 (515 SE2d 155) (1999), I cannot concur with all that is said in the majority opinion concerning one-on-one showups.

While Banks v. State, 216 Ga. App. 326, 328-329 (3) (454 SE2d 784) (1995), does state that the “practice of showing suspects singly to a witness for identification purposes has been widely condemned, Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979),” the remainder of that paragraph is:

our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.) [Cits.] Nevertheless, our court has recognized the inherent suggestibility of one-on-one showups. [Cit.]

(Punctuation omitted.) Banks, supra at 329.

Therefore, the mere use of a one-on-one showup does not equate with “impermissible” suggestibility but requires examination of the totality of the circumstances surrounding it.

In fact,

“ ‘(P)rompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, (nevertheless) are permissible in aiding a speedy police investigation and . . . where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. (Cit.)’ [Cit.]”

Decided July 7, 2000

Angela M. Coggins, for appellant.

Kelly R. Burke, District Attorney, for appellee.

Smith v. State, 235 Ga. App. 134, 137 (1) (508 SE2d 490) (1998) (one-on-one showup upheld even though conducted four days after the crime).

        Dunn v. State, 238 Ga. App. 579 (1) (519 SE2d 503) (1999).

        Barber v. State, 236 Ga. App. 294, 295-296 (1) (512 SE2d 48) (1999).

       271 Ga. 6 (515 SE2d 155) (1999).

       (Citation omitted.) Id. at 12 (7) (b).

       See Banks v. State, 216 Ga. App. 326, 328-329 (3) (454 SE2d 784) (1995).

       We note that “[i]t is not a good practice to indicate to a witness that [she] has chosen the ‘right’ person as it could lead to an improper tainting of a subsequent identification in a questionable case. . . . This practice of confirming the choice as correct is also disapproved.” Garner v. State, 201 Ga. App. 574, 576 (1) (411 SE2d 503) (1991).

       (Punctuation omitted.) Sherman v. State, 225 Ga. App. 869, 871 (2) (485 SE2d 557) (1997).

        Massaline v. State, 234 Ga. App. 35, 36 (1) (506 SE2d 181) (1998).

       (Punctuation omitted.) Id.

        Garner, supra.

        Huff v. State, 239 Ga. App. 83, 86 (1) (519 SE2d 263) (1999).

       Compare Dennard v. State, 241 Ga. App. 794, 797 (527 SE2d 884) (2000) (defendant found with exact amount of food stamps and almost exact amount of money stolen from store).