author: Pope, Presiding Judge.

text:
    A96A2096.
    BRASWELL v. FOODMAX OF GEORGIA, INC. et al.
    (484 SE2d 86)
   Pope, Presiding Judge.

Plaintiff Joann Braswell filed suit against defendants FoodMax of Georgia, Inc., Clean Serve, Inc. and Universal Cleaning Service, Inc. after she slipped and fell in one of FoodMax’s grocery stores. The trial court granted summary judgment to FoodMax and Clean Serve, and plaintiff appeals. We reverse the grant of summary judgment to FoodMax, but affirm the summary judgment granted to Clean Serve.

Construed most favorably to plaintiff, the evidence shows that on January 12, 1993, at approximately 12:35 a.m., plaintiff and her four-year-old son went to one of FoodMax’s stores. After entering the store, plaintiff walked down a large center aisle to the frozen foods section, which branched off to the left of the center aisle. After allowing her son to get a popsicle and picking up a frozen dinner for herself, plaintiff went to get popcorn, which was located on an aisle to the right of the center aisle. There, plaintiff spoke to a FoodMax employee who was stocking or straightening shelves.

After picking up some popcorn, plaintiff, with her son walking some distance in front of her, left the popcorn aisle and walked down the left side of the center aisle toward the cash registers at the front of the store. As she was walking, plaintiff slipped and fell forward, allegedly injuring herself. Seeing plaintiff fall, the employee on the popcorn aisle came to plaintiff’s assistance. The employee and plaintiff then looked for the cause of the fall, but from a standing position, were unable to locate anything on the center aisle’s light colored tile. Upon further inspection from a stooped position, they saw a clear liquid substance on the tile. During deposition, plaintiff admitted that she was not looking directly at the floor when she fell, but claimed that even if she had been, she would not have seen the liquid.

After the liquid was discovered, the employee informed the store’s assistant manager, Charles Howard, about the fall. Upon arriving at the scene, Howard told plaintiff that people were mopping and cleaning the floors in the area, and apparently left the liquid on the floor. It is undisputed that no warning signs were posted in the area before the fall, and in an incident report, which was written within approximately ten minutes of the fall, Howard specifically stated that the “floor crew had water on the floor[,]” but “no wet floor signs were in place.”

FoodMax has admitted that at the time of the incident, it had a contract with Clean Serve to provide floor cleaning services at the store. It is undisputed that Clean Serve had subcontracted with Universal to actually provide the service.

1. Plaintiff contends that the trial court erred in granting summary judgment to FoodMax because there are genuine issues of fact regarding FoodMax’s liability in the case. We agree.

“[A]n owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. Accordingly, an owner who has either actual or constructive knowledge of defects or dangers on the premises has a [nondelegable] duty to warn others coming on the premises who do not have knowledge of the defects and/or dangers and who through the exercise of ordinary care would not discover them. Liability does not extend from ownership) alone, but only from the breach of this duty.” (Citations omitted.) Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 857 (3) (429 SE2d 530) (1993). In cases such as this, where the owner of the premises has authorized the application of substances to the floor in an effort to clean the floor, the owner is presumed to have knowledge of the existence of the substance on the floor. Alterman Foods v. Ligón, 246 Ga. 620, 623-624 (272 SE2d 327) (1980); Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994). And in such cases, “the plaintiff may make out a cause of action by showing an act or omission on the part of the [owner or occupier] which was the proximate cause of [the plaintiff’s] injury [so long as that injury] could not have been avoided by the plaintiff through the exercise of ordinary care. [Cit.]” Alterman Foods, supra.

In the instant case, Howard specifically stated in his incident report that “the floor crew had water on the floor.” According to his affidavit, the statements found in the incident report were based on his investigation of the accident and his own personal knowledge. As such, when construed most favorably to plaintiff, Howard’s statement regarding the presence of a floor crew in the store must be regarded as a statement of fact. This is especially true in light of the fact that Howard told plaintiff almost immediately after she fell that someone had been cleaning the floors. Because it is undisputed that the cleaning crew was authorized to clean the store pursuant to Food-Max’s contract with Clean Serve, and because there is at least an inference created by Howard’s statements and investigation that the crew was using water to accomplish the cleaning, under Alterman Foods and Lindsey, FoodMax is deemed to have had knowledge of the application of water to its floor. In light of such knowledge, and Food-Max’s policy that the store manager inspect the entire premises every 20-30 minutes, there is a question of material fact as to whether FoodMax fulfilled its duty to invitees of using ordinary care to ensure that its premises remained safe during the cleaning process. This is true because a question of material fact exists regarding whether Howard exercised ordinary care, pursuant to implementation of the above-mentioned policy, in either disregarding or failing to notice the undisputed fact that no signs were posted warning customers of the potential danger posed by the wet floor. See Feggans v. Kroger Co., 223 Ga. App. 47, 51 (2) (476 SE2d 822) (1996).

There also is clearly an issue of material fact in this case regarding whether plaintiff failed to use ordinary care for her own safety. While it is true plaintiff admitted that nothing obstructed her view of the center aisle before the fall, and that she was not looking at the floor at the time of the fall, plaintiff also specifically deposed that the substance on the floor was clear and invisible from a standing position. The duty to exercise ordinary care to discover and avoid a hazardous condition does not require a customer to continuously scan the floor for any such condition, but instead requires only that the customer use their eyesight to avoid plainly visible hazards in their path. See Vermont American Corp. v. Day, 217 Ga. App. 65, 66 (456 SE2d 618) (1995); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994). In this case, it cannot be said as a matter of law that the liquid on the floor was plainly visible.

Accordingly, we conclude the trial court erred in granting summary judgment to FoodMax.

2. Plaintiff next contends that the trial court erred in granting summary judgment to Clean Serve. Specifically, plaintiff argues that by contracting with FoodMax, Clean Serve undertook an express duty to conduct any supervision necessary to complete the contract. This argument, however, is unfounded. Although it is undisputed that Clean Serve had an agreement with FoodMax to provide floor cleaning services for the store in question, Clean Serve’s president, Christopher Powers, testified by affidavit that under the terms of the agreement, Clean Serve was not responsible for providing training, oversight or supervision for the floor cleaning operations. And plaintiff has failed to present any competent evidence to rebut Powers’ testimony.

Decided March 13,1997.

Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, for appellant.

Drew, Eckl & Farnham, Hall F. McKinley III, Douglas G. Smith, Jr., Jennings & Sparwath, Stephen H. Sparwath, Long, Weinberg, Ansley & Wheeler, Frank F. Middleton TV, for appellees.

Additionally, it is clear from the record that Clean Serve had hired Universal as an independent contractor to actually perform any cleaning operations at the store. Clean Serve did not have any of its own employees performing work at the store in question and, unlike FoodMax, does not have a statutory nondelegable duty to exercise ordinary care to keep FoodMax’s premises and approaches safe for invitees. See Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744 (2) (470 SE2d 270) (1996). Under its contract with Universal, Clean Serve did not retain any right to control the time or manner in which Universal performed its cleaning operations. In this state, the employer of an independent contractor is generally not responsible for the torts committed by the independent contractor absent the reservation of the right to control the time and manner of the execution of the independent contractor’s work. OCGA §§ 51-2-4; 51-2-5 (5); see Feggans v. Kroger Co., 223 Ga. App. at 48 (1); Kraft Gen. Foods v. Maxwell, 219 Ga. App. 211, 212 (1) (a) (464 SE2d 639) (1995). Thus, in the instant case, Clean Serve is not liable for any negligent acts on the part of Universal.

Plaintiff’s claim that Clean' Serve is not entitled to summary judgment merely because it will have to indemnify FoodMax under the terms of the contract it had with FoodMax is meritless. There is simply no credible record evidence to support such a claim. Moreover, whether Clean Serve is obligated to indemnify FoodMax under the terms of their contract does not present an issue of material fact and has absolutely no bearing with regard to plaintiff’s purported claim against Clean Serve for failing to supervise the cleaning of the Food-Max store.

In light of the above, we conclude the trial court did not err in granting Clean Serve’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Andrews, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A2172.
    WHITE et al. v. ROLLEY.
    (484 SE2d 83)
   Andrews, Chief Judge.

We granted the application of White, his former partners, and partnership to determine whether they were entitled to summary judgment in former client Rolley’s malpractice action against them based on Rolley’s failure to show White’s negligence proximately caused Rolley’s claimed damages. We conclude summary judgment was appropriate and reverse the trial court’s denial of the motion.

Rolley was injured on November 14, 1987, in an automobile accident with a truck driven by Simpson. He retained White to pursue his personal injury suit, and the complaint was filed on November 13, 1989, just prior to expiration of the statute of limitation. Named as defendants were Simpson, Favors, and C & H Hauling, alleged to be a dump trucking business formed by Favors and Woods and employer of Simpson. Favors was served on November 29, 1989, Simpson on March 14, 1990, and C & H, through Favors, on August 1, 1990.

Prior to the complaint being filed, Rolley had declined an offer to settle for $7,500.

In May 1990, Favors filed a motion for summary judgment contending that he was an improper party because he had not hired Simpson, nor did he have any connection with the truck being driven, although he and Woods were the named insureds on the policy issued on the truck. After White discussed with Rolley the fact there had been difficulty in serving Simpson and C & H and that, after taking Favors’ deposition, it appeared that C & D Dump Truck, not C & H, was the proper party, Rolley fired White and the firm in August 1990. On September 18, 1990, the trial court granted White permission to withdraw from the pending case. At that time, no order had yet been entered on Favors’ motion.

On August 24, 1990, Rolley retained new attorney Belcher to pursue the litigation. On October 15, 1990, Simpson and C & H filed their motions to dismiss and/or for summary judgment, contending that service on them was insufficient. After a hearing on December 18, 1990, the court granted summary judgment to all three defendants on December 26, 1990, finding that Favors and C & H were not proper parties and that service was insufficient on Simpson because it was not effected with due diligence. Although Belcher filed a notice of appeal from this order, a settlement was thereafter entered into for $2,500 by Belcher and Rolley, and the appeal dismissed on June 5, 1991.

Rolley alleges that his settlement was greatly reduced by White’s failure to timely serve the defendants and to develop evidence sufficient to keep Favors and C & H in the suit. White’s motion for summary judgment was premised on lack of proximate cause.

1. In addition to showing that the attorney accused of malpractice was employed by the client and failed to exercise the requisite care, the client must show that such negligence was the proximate cause of damage to the plaintiff. Perry v. Ossick, 220 Ga. App. 26, 29 (467 SE2d 604) (1996).

“ A claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation [but for the act of the attorney charged with malpractice].’ (Citation and punctuation omitted.) Nix v. Crews, 200 Ga. App. 58, 59 (2) (406 SE2d 566) (1991).” Houston v. Surrett, 222 Ga. App. 207, 209 (2) (474 SE2d 39) (1996).

2. To satisfy the burden of proof on summary judgment, White was required to point out by reference to the record that there was an absence of proof adduced by Rolley on the issue of proximate cause. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994). This he did by pointing out that, at the time Belcher was retained, the suit against Simpson and his employer, by way of respondeat superior, was still viable and any deficiency in service on Simpson would be no defense in a renewal action brought within six months after dismissing the pending suit.

In opposition to White’s motion, Belcher’s affidavit was submitted by Rolley. Belcher stated that he was of the opinion that “any attempt to avail this cause of action of the renewal statute [OCGA § 9-2-61] would have been futile. First of all, C & D Dump Truck Company was never make [sic] a party to the lawsuit, therefore, the renewal statute with regard to C & D Dump Truck Company would have been of no value. Secondly, there was no clear case law that existed at the time that would have put counsel on notice that such action would have been of any benefit.”

“The ‘viability’ of a given claim in the present context refers only to the question of whether further litigation of that claim may lead to a favorable result as of the time prior counsel was dismissed from the case. . . .” Huntington, supra at 30, fn. 2.

As of September 18, 1990, when the order was entered allowing White to withdraw from the case, only Favors’ summary judgment motion was pending. Therefore, we consider the “viability” of the case at that point with regard to the effect of White’s negligence in timely serving Simpson and C & H.

“The renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits. [Cits.] ‘The “privilege” of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable.’ Patterson v. Douglas Women’s Center, 258 Ga. 803, 804 (3) (374 SE2d 737) (1989). The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [Cits.] A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” (Emphasis supplied.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). After reviewing longstanding principles of Georgia law concerning renewal suits, the Supreme Court reiterated that “inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” (Footnote omitted.) Id.

While Hobbs was not decided until 1994, all of the authority cited regarding the above principles, with the exception of Granite State Ins. Co. v. Nord Bitumi U. S., 262 Ga. 502 (422 SE2d 191) (1992), was decided before 1990. See also Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204 (477 SE2d 369) (1996); Weddington v. Kumar, 149 Ga. App. 857, 858 (256 SE2d 141) (1979).

While it can be argued that White’s failure to effect service within the statutorily mandated five days was a cause in fact of the eventual decision by Rolley and Belcher to not avail themselves of the renewal statute and to accept a settlement, this does not determine whether White’s act was a proximate cause of the damage. “The concept of proximate cause acts as ‘a limitation on what would otherwise be the unlimited liability of a negligent tortfeasor for all the immediate and the eventual consequences of his negligence.’ [Cit.] Applying this concept to limit recovery necessarily involves a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability. [Cit.] While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. [Cit.]” Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 807 (415 SE2d 705) (1992) (physical precedent); Finney v. Machiz, 218 Ga. App. 771, 772 (463 SE2d 60) (1995).

Decided March 13,1997.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Kirwan, Parks, Chesin & Miller, Marni K. Brown, for appellants.

Jeffrey H. Dover, for appellee.

We find that the intervening decisions by Belcher and Rolley render White’s negligence too remote to satisfy the proximate cause requirement for a legal malpractice claim. Mauldin v. Weinstock, 201 Ga. App. 514, 518 (4) (411 SE2d 370) (1991), citing Rogers v. Norvell, 174 Ga. App. 453 (330 SE2d 392) (1985); compare Huntington, supra.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       At that time White was working for the other named defendants, all of whom are hereinafter referred to as “White.”

       Although Rolley correctly points out that there were divergent opinions in this Court concerning this point for a period of time, this divergence did not begin until after Jones v. Cropps, 197 Ga. App. 313 (398 SE2d 295) (1990), decided October 18,1990, and culminating with Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748) (1993). See Wells v. Faust, 206 Ga. App. 818 (426 SE2d 655) (1992); Collier v. Marsh, 203 Ga. App. 322 (416 SE2d 849) (1992); andFine v. Higgins Foundry &c. Co., 201 Ga. App. 275 (410 SE2d 821) (1991).


author: Ruffin, Judge.

text:
    A96A2364.
    NOBLE v. THE STATE.
    (484 SE2d 78)
   Ruffin, Judge.

John Noble appeals his convictions for possession of cocaine and possession of a firearm during the commission of a felony In two enumerations of error, Noble asserts the trial court erred in denying his motion for directed verdict and that the evidence was insufficient to support the verdict. We affirm.

“ ‘The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.’ . . . [Cit.]” Hogan v. State, 210 Ga. App. 122, 123 (1) (435 SE2d 494) (1993). Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . [Cit.]” (Emphasis in original.) Id.

Viewed in this light, the evidence shows that Noble was riding as a passenger in a pickup truck driven by co-defendant Cheryl Webb. A police officer pulled Webb over after observing her speeding. When the officer approached the pickup truck, Noble stated he had a gun. After the officer searched both occupants and found no weapons, Noble informed the officer that the gun was lying in the middle of the seat. The officer testified that he walked up to the passenger’s side of the truck, where he “observed the handle of a gun sticking out from under a white pillow.” The officer stated that the pillow was lying in the middle of the seat. When the officer lifted the pillow to retrieve the gun, a clear plastic bag containing marijuana and a brown bottle containing cocaine fell from the pillowcase. According to the officer, “[tjhey just fell out of the end, the open end of the pillowcase, toward the dash. When I lifted up the rear of the pillow to pull the weapon out, the stuff just fell out.” After arresting Noble and Webb, the officer found a partially smoked marijuana cigarette in Webb’s pocketbook. An officer who questioned Webb following her arrest testified that she admitted the marijuana belonged to her, but denied knowing anything about the cocaine. Neither defendant testified at trial.

The court charged the jury on both actual and constructive possession and stated that constructive possession may be sole or joint. The jury subsequently found Noble guilty of possessing cocaine and possessing a firearm during the commission of a felony. The jury found Webb guilty of possessing marijuana, but not guilty of possessing cocaine. Noble argues that the State’s evidence was insufficient to show he possessed the cocaine. We disagree.

“A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citation and punctuation omitted.) Jackson v. State, 216 Ga. App. 842, 844 (1) (456 SE2d 229) (1995) (physical precedent only). “[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Reid v. State, 212 Ga. App. 787, 788 (442 SE2d 852) (1994). And, where as in this case, the conviction is based “ ‘on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter [of] law.’ . . . [Cit.]” Byers v. State, 212 Ga. App. 110, 111-112 (1) (b) (441 SE2d 290) (1994).

In Jackson, supra, we found the evidence was sufficient to support the jury’s verdict where it showed that cocaine was discovered on a car floorboard next to a can of beer linked to the defendant. Jackson, supra at 844. Likewise we find in this case that there was additional evidence linking Noble to the cocaine. Not only was Noble seated directly next to the pillow containing the bottle of cocaine, but his handgun was partially concealed under the pillow. Furthermore, the jury heard uncontradicted evidence that Webb denied any knowledge of the cocaine. Such evidence excludes the hypothesis that the cocaine belonged to Webb. Cf. Reid, supra at 789 (the fact that the defendant “never saw [his passenger] with drugs does not exclude the hypothesis that the drugs belonged to [the passenger]; it is inconsistent only with a theory that relies upon [defendant] having seen [the passenger] with drugs, and it therefore excludes only such a theory”). (Emphasis in original.) The only other reasonable hypothesis was that the cocaine belonged to Noble.

Decided March 13,1997.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Dar risaw, Assistant District Attorney, for appellee.

Accordingly, the evidence, although circumstantial, was sufficient to allow the case to go to the jury and to authorize the jury’s finding that Noble was guilty, beyond a reasonable doubt, of possession of cocaine and possession of a firearm during the commission of a felony. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson, supra; Allen v. State, 200 Ga. App. 326, 328 (2) (408 SE2d 127) (1991).

Judgment affirmed.

McMurray, R J., and Johnson, J., concur.

       Although Webb was charged with other offenses, they are not relevant to this appeal and will not he discussed.


author: Smith, Judge.

text:
    A96A2482.
    LEARY v. JULIAN.
    (484 SE2d 75)
   Smith, Judge.

This appeal requires us to harmonize two lines of precedent to determine whether the open court announcement of a settlement agreed to by the parties prevents a plaintiff from exercising the right to voluntarily dismiss a claim under OCGA § 9-11-41 (a). For the reasons stated below, we find that it does, and we therefore affirm the trial court.

The facts of this case are not in dispute. In February 1993, appellant Dennis Leary filed a complaint alleging fraud and deceit against appellee Sara Julian. The parties reached a settlement before trial, and the attorneys for both sides announced the terms of the agreement before the court. The trial court did not reduce the settlement to a written order until February 26, 1996, nunc pro tunc to October 2, 1995. Three days before the order was filed, however, Leary filed a voluntary dismissal without prejudice in apparent contravention of the settlement arrangement.

On April 2, 1996, Julian filed a contempt action, alleging that Leary was in violation of the terms of the court-ordered settlement. Leary responded, relying on his voluntary dismissal and contending that it rendered the order null and void. After a hearing, the trial court found Leary in wilful contempt.

Leary appeals, asserting error on the part of the trial court for two reasons. He contends that his voluntary dismissal under OCGA § 9-11-41 (a) deprived the trial court of jurisdiction, which consequently rendered the trial court’s settlement order a nullity. The effect of this, he also contends, is that he lacked sufficient notice of the substance of the contempt charge against him. We disagree on both counts. Analyzing the law governing voluntary dismissals together with that governing settlements in open court, we conclude that the trial court’s adoption of the parties’ settlement in open court was valid and enforceable and provided Leary with sufficient notice.

1. Pursuant to OCGA § 9-11-41 (a), a plaintiff may voluntarily dismiss a claim before resting his or her case. Such a dismissal, however, is precluded as soon as the trial court announces a finding, judgment, or decision that serves to terminate the litigation. Jones v. Burton, 238 Ga. 394, 396 (233 SE2d 367) (1977); see also Hannula v. Ramey, 177 Ga. App. 512 (339 SE2d 735) (1986). When a judicial determination is made in open court, there is no requirement that its substance be memorialized in writing or reduced to an order to be effective against the parties or the plaintiff’s right to dismiss the claim. Jones, supra; Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469) (1987). As the Supreme Court emphasized in Groves v. Groves, 250 Ga. 459 (298 SE2d 506) (1983), knowledge of the actual, as opposed to possible, conclusion of the litigation precludes filing a voluntary dismissal. Id.

A finding, judgment, or decision will terminate a given case when it is “the equivalent of a verdict.” Bytell v. Paul, 173 Ga. App. 83, 84 (325 SE2d 451) (1984). The Georgia courts have found preclusive: a trial court’s oral announcement that it had decided to grant defendant’s motion for directed verdict, although a written order was not filed until after plaintiff attempted to voluntarily dismiss, Mixon v. Trinity Svcs., 176 Ga. App. 679 (337 SE2d 362) (1985); an automatic third-time dismissal with prejudice under OCGA § 9-11-41 (a), even though not yet reduced to writing by the court, Zohoury v. Zohouri, 218 Ga. App. 748 (463 SE2d 141) (1995); and a statement by the trial court that summary judgment “likely would be granted,” Guillebeau v. Year gin, 254 Ga. 490, 491-492 (1) (330 SE2d 585) (1985). Compare Lakes v. Marriott Corp., supra at 478 (failure properly to file a demand for trial under local arbitration rules not knowledge of actual, as opposed to possible, result of case); Muhanna v. O’Kelley, 185 Ga. App. 220 (363 SE2d 626) (1987) (plaintiff’s entitlement to summary judgment not preclusive if no announcement by court). The question presented here is whether participation in an agreed-upon, open court settlement is “the equivalent of a verdict” in a given case.

In Georgia, “settlement agreements are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits. [Cit.]” Schafer Properties v. Tara State Bank, 220 Ga. App. 378, 380-381 (469 SE2d 743) (1996). In general, an oral settlement reached between the parties is enforceable if the parties’ attorneys are vested with the power to enter into such agreements and do so before the court on behalf of the litigants, “absent fraud, collusion, or express prohibition of such an agreement.” White v. Owens, 172 Ga. App. 373, 374 (323 SE2d 167) (1984). When it is undisputed that a settlement agreement is “definite, certain, and unambiguous,” the court is obligated to put an end to the litigation by making the settlement its own judgment. See, e.g., Dover Realty v. Butts County Bd. of Tax Assessors, 202 Ga. App. 787, 788 (2) (415 SE2d 666) (1992). Given the finality accorded to the open court disclosure of an undisputed settlement agreement, we conclude that a voluntary dismissal under OCGA § 9-11-41 (a) may not be filed after all parties to a dispute announce a settlement agreement in open court and the trial court adopts the terms of the agreement in an oral order, even if that order is not reduced to writing until a later time.

This rule applies here because the terms of the settlement agreement are not questioned by the parties. Compare Reichard v. Reichard, 262 Ga. 561 (423 SE2d 241) (1992) (agreement not enforceable when parties do not agree it was accurate or complete). Although Leary challenges the general validity of the settlement on the basis of his voluntary dismissal, he has not challenged its terms; in his counterclaim he complained only of Julian’s subsequent conduct in relation to the agreement. Because no genuine issue exists relative to the terms or enforceability of the settlement, the order of the lower court was plainly valid, and its decision to hold Leary in contempt despite the voluntary dismissal therefore was proper.

2. Leary also argues that the decision to hold him in contempt was erroneous because, by referencing only the allegedly defective order, Julian’s application for contempt failed to alert him to an order requiring compliance. This argument is groundless. It depends upon a total denial of the existence of the order ultimately entered by the trial court and the references to it in the contempt application. Because the order entered by the trial court following the agreed-to settlement was proper, Leary’s mere denial of its existence is insufficient to support this enumeration. The trial court, therefore, did not err in holding Leary in wilful contempt.

Decided March 13,1997.

Lloyd E. Hall, for appellant.

Steinberg & Vrono, Charles J. Vrono, for appellee.

Judgment affirmed.

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

       This Code section has been amended to change the latest time at which a plaintiff can dismiss an action, Ga. L. 1985, pp. 546-547, Ga. L. 1986, pp. 816-817, but this does not affect the rule at issue here. Lakes v. Marriott Corp., 264 Ga. 475, 476, n. 4 (448 SE2d 203) (1994).


author: Blackburn, Judge.

text:
    A97A0742.
    FINDLAY v. GRIFFIN et al.
    (484 SE2d 80)
   Blackburn, Judge.

Margaret Griffin and Burch Griffin filed the underlying action to collect damages for injuries Mrs. Griffin suffered in an automobile collision with Susan Findlay. Mr. Griffin asserted a loss of consortium claim. The jury awarded the Griffins $200,000. Findlay appeals contending the trial court erred in allowing improper questions, allowing improper remarks during closing argument, and in failing to give certain requested jury charges.

1. Findlay contends the trial court erred in failing to charge on Mrs. Griffin’s duty to maintain a proper lookout, after the court had indicated such charge would be given.

“It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. Further, it is well established an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it.” (Citations and punctuation omitted.) Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991).

In the present case, the Griffins alleged that the accident occurred when Findlay failed to yield the right-of-way as she was making a left-hand turn across the lanes in which Mrs. Griffin traveled. Findlay asserted the defenses of comparative negligence, avoidance, and Mrs. Griffin’s failure to keep a proper lookout. Mrs. Griffin testified that she saw Findlay’s car in her lanes of travel, but she thought Findlay was moving. By the time Mrs. Griffin realized that Findlay was stopped, it was too late to avoid the collision. Findlay’s testimony supported her defense that Mrs. Griffin would have known she was stopped if Mrs. Griffin had been looking. The trial court agreed to charge on Mrs. Griffin’s duty to maintain a proper lookout, but inadvertently failed to give the charge. After the failure to give the charge was brought to the trial court’s attention, the court decided that the failure to give it was not significant enough to recharge the jury. The Griffins contend the charge was encompassed in the trial court’s charge on negligence. We cannot agree.

The trial court had agreed to charge as follows: “A driver has no right to assume that the road ahead is clear and has a duty to maintain a lookout for potential hazards.” This is a correct statement of the law applicable to this case. See Brown v. Shiver, 183 Ga. App. 207, 208 (358 SE2d 862) (1987). Although the trial court charged that the plaintiff had a duty to exercise ordinary care, such a charge does not encompass the specific duty to maintain a lookout for potential hazards.

In the present case, Findlay’s attorney, under the impression that the trial court would give the requested charge, discussed it during closing arguments. The trial court’s failure to give the requested charge and later failure to correct its omission must be considered harmful when it could have confused the jury and undermined the credibility of Findlay’s closing argument. Furthermore, upon proper instructions, the jury could have determined that Mrs. Griffin did not maintain a proper lookout. Therefore, the judgment must be reversed as Findlay is entitled to a new trial with proper jury instructions.

. As Findlay’s additional enumerations of error raise issues which may occur upon a retrial of this case, we address them below.

2. Findlay contends the trial court erred in failing to charge the jury regarding Mrs. Griffin’s duty to mitigate damages. As some evidence was introduced which indicated that Mrs. Griffin may have stopped treatment for some physical problems, Findlay was entitled, upon proper request, to a charge on mitigation of damages. See Southern Bell, supra at 518.

3. Findlay asserts the trial court erred in allowing the Griffins’ attorney to question her as to whether the physical damage to the cars was consistent with their version of the accident. Findlay contends that such a question requires an accident reconstruction expert and was beyond her expertise. The question called for Findlay’s opinion, and we cannot say that the trial court abused its discretion by allowing it.

4. Findlay contends the trial court erred by allowing the Griffins’ counsel to remark during closing argument that if evidence existed to contradict his client’s testimony, Findlay could have produced it. Findlay argues that this improperly shifted the burden of proof. The Griffins’ counsel also argued that the Griffins had the burden to prove their damages and that he did not want Findlay to prove the Griffins’ damages.

Decided March 13,1997.

Fain, Major & Wiley, Charles A. Wiley, Jr., for appellant.

“Where a witness is known, competent, and compellable to testify as to material facts of which he is cognizant, counsel may properly comment in his argument before the jury on the failure of a party to whom the witness is accessible to produce the witness’ testimony. Floyd v. Colonial Stores, 121 Ga. App. 852 (6) (176 SE2d 111) (1970). . . . Thompson v. Colter, 242 Ga. 784 (3) (251 SE2d 526) (1979).” (Punctuation omitted.) Vaughn v. American Freight System, 164 Ga. App. 786, 787 (2) (298 SE2d 284) (1982). Findlay’s enumeration is without merit.

5. Findlay contends the trial court erred by allowing the Griffins’ counsel to link State Farm and Findlay together during closing argument. During his closing argument, Griffins’ counsel stated: “Maybe I missed something. I didn’t think I fell off the turnip truck on this case. And if I did, I don’t think I hit my head too hard. They want to come up here and suggest that poor Ms. Findlay is getting ganged up on by us and State Farm. Who is State Farm helping? Who did State Farm sit over there with and help strike the jury? Who did State Farm sit over there with and whisper in their ear ideas all throughout the trial? Who does State Farm get up here and ridicule and criticize?” The trial court overruled Findlay’s objection to this argument.

“Counsel should have ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of the trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of counsel, the discretion of the trial judge will not be controlled.” (Citations and punctuation omitted.) Dictograph Products v. Cooper, 85 Ga. App. 421, 425 (4) (69 SE2d 821) (1952).

As the Griffins’ counsel indicated, Findlay’s counsel did attempt to elicit sympathy during his closing argument by stating that, “Mrs. Findlay is being sued by Ms. Griffin and also being sued — I mean, under the uninsured motorist coverage from State Farm, Mrs. Find-lay is being sued by them, too. So she’s kind of getting it from both sides.” The Griffins’ counsel’s comments were merely responding to Findlay’s counsel’s arguments. We cannot say that the trial court abused its discretion in allowing the comments objected to by Find-lay.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

Andersen, Davidson & Tate, Gerald Davidson, Jr., William M. Ray II, Cooper & Associates, Craig C. Avery, for appellees.


author: McMurray, Presiding Judge.

text:
    A97A1004.
    SERPENTFOOT v. SALMON et al.
    (483 SE2d 927)
    Decided March 13,1997
    Serpentfoot, pro se.

      Tamhra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, Wade C. Hoyt III, for appellees.
   McMurray, Presiding Judge.

Serpentfoot, a county prisoner formerly known as Anne Clay Otwell, filed a petition entitled, “Motion and Citation for Contempt,” against a trial court judge and an assistant district attorney and a county attorney (defendants), seeking to have defendants charged with criminal offenses and held in contempt for treating her present name as an alias in an unrelated criminal proceeding. A different trial judge dismissed Serpentfoot’s petition, pursuant to OCGA § 9-15-2 (d), finding it insufficient to present any justiciable issue of law or fact. This direct appeal followed. Held:

The Prison Litigation Reform Act of 1996 provides that “[ajppeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.” OCGA § 42-12-8. The case sub judice is subject to this provision because Serpentfoot filed her “Motion and Citation for Contempt” and her notice of appeal while a county prisoner. See OCGA § 42-12-3 (4). Since Serpentfoot has not followed the discretionary appeal procedure provided in OCGA § 5-6-35, we have no jurisdiction to consider this appeal. Botts v. Givens 223 Ga. App. 139 (476 SE2d 816); Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57). Accordingly, we must dismiss Serpentfoot’s appeal.

Appeal dismissed.

Beasley and Smith, JJ, concur.


text:
    A96A2417.
    In re WILLIAM M. PHILLIPS.
    (484 SE2d 254)
   Andrews, Chief Judge.

William M. Phillips, an attorney, appeals from the trial court’s order finding him in direct contempt for actions taken during the course of a civil jury trial.

1. This Court is compelled, on review of an appeal of a criminal contempt conviction, to utilize the standard of whether, after reviewing the evidence in the light most favorable to the prosecutor, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See In re Irvin, 254 Ga. 251, 254 (2), 256 (328 SE2d 215) (1985). The application for contempt accused Phillips of orally misrepresenting that his Exhibit P-12 was the complaint filed in the matter and of intentionally altering the original complaint in a material way, i.e., changing the amount of damages claimed.

Addressing his third enumeration regarding the sufficiency of the evidence of contempt, the evidence, so viewed, was that Phillips represented Mr. and Mrs. Collins in their negligence suit against Mays arising from an auto accident. Also involved in the litigation as the uninsured motorist carrier was Allstate Insurance Company, represented by Kreitzer. In the original complaint filed with the court, the claim for medical and special damages was stated as in “excess of $5,000” and Allstate Insurance Company was specifically named as a party. Thereafter, in the Consolidated Pretrial Order, this figure was changed to in “excess of $9,000.”

At trial, Kreitzer elected to appear in the name of defendant Mays instead of allowing Allstate to be mentioned before the jury. Kreitzer had made Phillips aware that the references to Allstate in the complaint were improper, both in his answer and by a motion to strike the references. During questioning of his client, Mrs. Collins, Phillips had marked as P-12 (marked as S-4 at the contempt proceeding) a “cleaned up” complaint from which the Allstate references had been removed. In addition to that change and others not germane to this proceeding, however, the amount claimed as damages had been changed to in “excess of $10,000 ” Kreitzer had not seen P-12 prior to the time it was shown to Mrs. Collins, nor had he ever seen any other copy of the “cleaned up” complaint prior to P-12 being tendered into evidence. Phillips asked Mrs. Collins “to look at what has been marked as P-12. P-12 is a copy of your complaint you filed in court? ... A. Yes. Q. And, of course, that’s the request for all the damages and your facts as you know them and what went on? A. Yes, sir. Q. The request for relief? A. Yes.”

Phillips then moved the document’s admission into evidence, and Kreitzer requested that the changes be addressed later, which was done. At that time, the court referred the matter to the district attorney who initiated the contempt proceeding.

Also, at the Collins’ trial, Phillips tendered P-10 (S-5), headed “Summary of Medical Expenses,” which reflected a “Total To Date [of] $11,000.” Because the pharmaceutical expenses listed as $1,200 were not proven, the court sustained Kreitzer’s objection to P-10. Since there were no supporting documents for this item, the court directed Phillips to “remove the coversheet [containing the summary and total] and let the jury add them up. The jury can do that. We’ll get them an adding machine, Mr. Phillips.” During his closing argument, Phillips used a blowup of this summary and total as demonstrative evidence and displayed it to the jury, for which he was admonished in front of the jury. Phillips contended that because he had removed the “exhibit” to the summary, he had complied with the court’s direction.

At the time of the Collins’ trial, Phillips employed both a secretary and a paralegal. During the Collins’ trial, when asked by the court how the change to “$10,000” had happened, Phillips responded “I think that was unintentional. . . . The Court: . . . How did it physically happen? Mr. Phillips: When we cleaned it up, ... , we inserted the ten instead of the five because — The Court: We, who is we? Mr. Phillips: My secretary and I.”

Assistant District Attorney Webb testified that, in the criminal trial of McBee, Phillips, his former attorney, testified regarding the Collins’ trial. When asked about altering the complaint, Phillips said that his secretary put the “amount of medicals that existed at the time of trial and that was all that was done.” During his contempt hearing, Phillips testified that his paralegal had asked if she should clean up the complaint “and I said, yes, clean it up and that was what was done. . . . [A]s to actually physically typing it in, I didn’t. And my paralegal was in charge of getting all the documents and I was there too.”

Neither Phillips’ secretary or now former paralegal was called to testify regarding the complaint’s alteration.

The primary issue to be decided by the court in this fact situation was Phillips’ intent in having the alteration made. Having reviewed the evidence, we find it sufficient for any rational trier of fact to conclude that the alteration was made with the intent to defraud the court. In re Washburn, 219 Ga. App. 428, 429 (465 SE2d 459) (1995).

2. Phillips’ first enumeration is that the “trial court erred, in an Application for Attachment for Contempt brought against the appellant ... in denying the appellant’s motion to recuse the trial judge at whose instance the application for contempt was instituted.”

The motion to recuse Judge Wood was referred to Judge Joe Tucker who held a hearing and entered the order denying the motion, in which he concluded that the affidavits submitted “set forth mere conclusions rather than facts demonstrating a lack of impartiality.”

“In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment. To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Under Canon 2 of the Georgia Code of Judicial Conduct, a judge must avoid all impropriety and appearance of impropriety. Canon 3.C. (1) provides that ‘Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer. It is not necessary that there be shown any actual impropriety on the part of the trial court judge. The fact that his impartiality might reasonably be questioned suffices for his disqualification.” (Citations and punctuation omitted; emphasis in original.) Birt v. State, 256 Ga. 483, 485-486 (350 SE2d 241) (1986). See In re Shafer, 215 Ga. App. 520 (451 SE2d 121) (1994).

Here, Phillips submitted his own affidavit and those of Mr. and Mrs. Collins. The Collins’ affidavits, which are verbatim of each other, deal mainly with incidents during their trial where the judge either sustained or denied evidentiary objections which the Collins interpreted as indicating he did not like them or their attorney. Such trial rulings do not exhibit the required bias. See Bevil v. State, 220 Ga. App. 1, 3 (6) (467 SE2d 586) (1996). The alleged incident involving the judge’s court reporter proves nothing about the judge.

Phillips’ affidavit is likewise deficient. A great deal of the affidavit consists of Phillips’ complaints about legal and evidentiary rulings made by Judge Wood in other cases tried by Phillips as well as the Collins’ case. It contains hearsay information allegedly provided to Phillips by unidentified parties, which proves nothing. See Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995). Nothing contained in this affidavit gives any factual basis to indicate any of Judge Wood’s rulings or actions were premised on personal bias. Compare Houston v. Cavanagh, 199 Ga. App. 387 (405 SE2d 105) (1991) and Strayhorn v. Staley, 177 Ga. App. 458 (339 SE2d 740) (1986).

That the contempt matter was referred by the trial court to the district attorney for his evaluation and action likewise does not provide the necessary bias nor does it indicate that the trial judge was a party to the contempt proceeding so as to be disqualified from hearing it. Dowdy v. Palmour, 251 Ga. 135, 142 (2) (c) (304 SE2d 52) (1983).

Decided February 25,1997

Reconsideration denied March 14,1997

Larry D. Ruskaup, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

There was no error in denying the motion.

3. Finally, Phillips complains that the court erred in failing to find the facts specially and state separately conclusions of law pursuant to his request under OCGA § 9-11-52.

As repeatedly held, this is not required in a contempt proceeding. See Brown v. King, 266 Ga. 890, 891 (2) (472 SE2d 65) (1996); In the Matter of Cook, 259 Ga. 595 (384 SE2d 870) (1989); In re Jones, 198 Ga. App. 228, 231 (7) (401 SE2d 278) (1990).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       See Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202) (1987); Grantham v. Universal Tax Systems, 217 Ga. App. 676, 677 (2) (458 SE2d 870) (1995).

       The jury returned a verdict for $1,688.96.


author: Birdsong, Presiding Judge.

text:
    A96A2330.
    ADAMS et al. v. ATLANTA CASUALTY COMPANY.
    (484 SE2d 302)
   Birdsong, Presiding Judge.

Willie A. Adams, Sr., Willie A. Adams, Jr., and General Accident Insurance Company of America appeal the grant of summary judgment to Atlanta Casualty Company in Atlanta Casualty’s declaratory judgment action. Appellants contend the trial court erred by finding that a “Named Driver Exclusion” in the Atlanta Casualty policy of automobile insurance issued to Willie A. Adams, Sr., excluded liability coverage for Willie A. Adams, Jr., and also erred by granting summary judgment before appellants could depose certain Atlanta Casualty officials.

It is not disputed that with her husband’s express authorization, Theresa Adams secured an Atlanta Casualty automobile insurance policy from an independent insurance agent to cover their cars. In the process of doing so, Mrs. Adams decided to exclude their son and daughter, Willie.A. Adams, Jr., and Theresa Adams, from the coverage of the policy so they could secure less expensive premiums. Although Mrs. Adams told her daughter Theresa that she was no longer covered, she did not tell Willie Adams, Jr., that he was not covered. Thereafter, Willie Adams, Jr., while driving a covered car with the permission of his father, was involved in an auto accident with Adonia Earl McDaniel on July 21, 1992. After McDaniel filed suit, the Adamses claimed coverage under the Atlanta Casualty policy.

The record shows that on receiving the request for coverage from the Adamses, Atlanta Casualty, on August 4, 1992, advised the Adamses that because Willie Adams, Jr., was driving the car, it was investigating to determine whether there was coverage. Thereafter, by letter of August 13, 1992, Atlanta Casualty informed the Adamses that as the investigation showed that Willie Adams, Jr., who was an excluded driver under the policy, was operating the vehicle, “in accordance with the Named Driver Exclusion Agreement, there is no coverage afforded by this policy for this loss.” Then on August 14, 1992, Atlanta Casualty advised the Adamses that coverage was denied because false and misleading information was provided in the application for insurance. Nevertheless, on August 26, 1992, Atlanta Casualty informed the Adamses that the letter dated August 14, 1992, was sent in error and that a letter dated August 13, 1992, was the proper disclaimer of insurance. The action by McDaniel against the Adamses proceeded toward trial with General- Accident involved as the uninsured motorist carrier, but with no involvement by Atlanta Casualty.

In June 1994, however, Atlanta Casualty wrote the Adamses advising them that Atlanta Casualty had assigned the defense of the case to a law firm and that Atlanta Casualty would pay the attorney fees and cost of defense unless the Adamses were notified to the contrary. For whatever reason, however, these attorneys did not enter an appearance on the Adamses’ behalf and did not participate in the trial.

Then on September 12, 1994, Atlanta Casualty filed this petition for a declaratory judgment. Although the petition for a declaratory judgment sought an injunction staying the proceedings between McDaniel and the Adamses, no stay injunction was issued.

All the defendants in the declaratory judgment action filed answers and counterclaimed against Atlanta Casualty. These defendants also initiated discovery against Atlanta Casualty regarding the policy provisions in question and the premiums charged the Adamses. Atlanta Casualty objected to this discovery and also moved for a protective order.

Thereafter, a verdict in favor of McDaniel for $1,105.18 was returned on January 25, 1995, and judgment was entered for that amount on January 30, 1995. General Accident paid that judgment and has paid the expenses of defending the action.

Finally, almost a year after the judgment was entered, Atlanta Casualty moved for summary judgment in the declaratory judgment action. The motion contended that no coverage and no duty to defend existed, as a matter of law, because of the named driver exclusion. The defendants initially did not respond to the motion for summary judgment directly, but instead sought an extension of time in which to answer and a motion to compel Atlanta Casualty to answer the discovery directing that certain company officials sit for deposition. Although the defendants may have responded to the motion for summary judgment, no such pleading appears in the record.

On May 9, 1996, the trial court granted the defendants’ motion to compel, and directed Atlanta Casualty to produce designated witnesses to be deposed. This order also reserved ruling on Atlanta Casualty’s motion for summary judgment. The same day and without explanation, however, the trial court granted Atlanta Casualty’s motion for summary judgment. This appeal followed. Held-.

1. Pretermitting the other issues asserted by appellants, our initial consideration is whether this was an appropriate case for a declaratory judgment. See Dept. of Corrections v. Brown, 198 Ga. App. 862 (403 SE2d 452). Appellants contend Atlanta Casualty waived its right to seek a declaratory judgment because it earlier had denied coverage under the policy and was in no need of judicial guidance. We agree.

A declaratory judgment is available when “interested parties are asserting adverse claims upon a state of facts wherein a legal judgment is sought that would control or direct future action.” Darnell v. Tate, 206 Ga. 576, 580 (58 SE2d 160). Although a question about an insurance company’s duty to defend its insured is ripe for judicial determination when an action has been filed against the insured (Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450)), that does not mean that Atlanta Casualty is entitled to a declaratory judgment under these facts. When a declaratory judgment cannot guide and protect the petitioner regarding a future act, no declaratory judgment is authorized. Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 SE2d 567). This case is different from Atlanta Cas. Co. v. Fountain, supra, because in that case Atlanta Casualty did not deny coverage before seeking a declaratory judgment. 262 Ga. at 17. Further, that case involved an insured’s claim for proceeds under the policy, while this case concerns a coverage dispute in which Atlanta Casualty not only denied coverage, but all rights under the policy had vested before Atlanta Casualty moved for summary judgment. Therefore, Atlanta Casualty no longer faced any uncertainty; it had made its decisions. Moreover, this is not a case in which insureds were making a claim directly against Atlanta Casualty on their own insurance policy. See Atlanta Cas. Co. v. Fountain, supra. This case is more analogous to Chastain v. U. S. Fidelity &c. Co., 190 Ga. App. 215 (378 SE2d 397), which was distinguished in Atlanta Cas. Co. v. Fountain. In Chastain, this Court affirmed the dismissal of a declaratory judgment action because we found all rights had vested and USF&G was merely seeking an advisory opinion on its defenses should an action be filed against it. Id. at 217. By distinguishing the circumstances in Atlanta Cas. Co. v. Fountain from that in Chastain v. U. S. Fidelity &c. Co. we believe the Supreme Court showed no intention to overrule the line of cases holding that a party is not entitled to a declaratory judgment to test its defenses in a potential later action, when the insurer has previously denied coverage.

Moreover, the Supreme Court listed four factors it considered in deciding that a declaratory judgment action was appropriate: (1) a demand for payment had been made; (2) the company had not yet acted to deny the claim; (3) legitimate questions existed about the validity and applicability of the policy clause; and (4) Georgia law did not provide a clear answer. Atlanta Cas. Co. v. Fountain, supra at 18. In this case, as Atlanta Casualty previously had denied the claim for coverage, all of these factors were not present.

Consequently, the grant of a declaratory judgment was not authorized. “A declaratory judgment may not be granted in the absence of a justiciable controversy. ‘The plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.’ . . . Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992).” Mikart, Inc. v. Marquez, 211 Ga. App. 209 (1) (438 SE2d 633). When, as here, the company denies coverage before it seeks guidance under the declaratory judgment, it has no need for direction from the court. Sentry Ins. v. Majeed, 194 Ga. App. 276, 278 (390 SE2d 269), aff’d, 260 Ga. 203 (391 SE2d 649). “[Declaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act — as where an insurance company has already denied a claim.” Atlanta Cas. Co. v. Fountain, supra at 18. “For example, if the insurer has received a demand for coverage from its insured and denies that such coverage is available under the terms of the policy, the insurer may not then seek declaratory judgment as to its duties under the policy. Having thus denied coverage, the insurer removes any doubt as to its duties under the contract of insurance and the insurer’s firm decision is that it has no duty and, thus, is not met with uncertainty as to future acts. Declaratory judgment, therefore, would not lie in this case.” (Footnote omitted.) Jenkins & Miller, Ga. Auto. Ins. Law Including Tort Law (1996 ed.), p. 70, § 7-4.

Accordingly, as the trial court was without jurisdiction to render a declaratory judgment, the summary judgment rendered on Atlanta Casualty’s petition for a declaratory judgment is nugatory and must be set aside. Dept. of Corrections v. Brown, supra; Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287).

2. Because both appellants have filed counterclaims against Atlanta Casualty, however, the coverage issue between the parties is not moot. See Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16, 19 (1) (276 SE2d 78), perhaps overruled on other grounds; see Standard Guaranty Ins. Co. v. Hulsey, 204 Ga. App. 508, 510 (420 SE2d 54). Therefore, Atlanta Casualty is free to raise its contentions regarding its exclusion as a defense to the Adamses’ and General Insurance’s counterclaims, and by this ruling we express no opinion on that issue. Because the trial court granted those parties time in which to conduct discovery of representatives of Atlanta Casualty and the issues are not presented fully before us, however, we cannot reach the merits of Atlanta Casualty’s arguments at this time. Accordingly, the case is remanded to the trial court for further proceedings.

Decided March 14,1997.

Clark & Clark, Fred S. Clark, for appellants.

Brennan, Harris & Rominger, Richard A. Rominger, Edward R. Stabell III, Gabrielle M. Mann, for appellee.

Judgment vacated and remanded.

Beasley and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A0151.
    SWAFFORD v. BRADFORD et al.
    (484 SE2d 300)
   Judge Harold R. Banke.

A freehold petition was filed by 131 individuals in superior court under OCGA § 48-5-296, seeking to remove from office Bessie Bradford, Howard Massey and Frank Winans, three of the four members of the Dade County Board of Tax Assessors. One respondent, board member Howard Massey, filed a notice of intent to seek damages for abusive litigation against each petitioner. Massey’s counterclaim provided that any petitioner who withdrew would not be subject to his counterclaim. Subsequently, 63 of the petitioners withdrew. Massey successfully moved to add as a party petitioner, Joseph D. Swafford, the appellant. Although Swafford prepared, circulated, and filed the petition for removal, he did not sign the petition. Massey admits that Swafford was added as a party petitioner for purposes'of the counterclaim for frivolous litigation.

The trial court addressed the merits of the freeholders’ petition focusing on three grounds: (1) whether the respondents through their employee (the chief appraiser) complied with OCGA § 48-5-263 (a) [sic] (11); (2) whether the respondents complied with their duty to properly investigate and approve assessments of real and personal property and properly notify those affected; and (3) whether the respondents improperly reported the status of any real property classified as agricultural or otherwise.

The petitioners showed a possible statutory violation of the requirement that a county’s appraisal staff “furnish to the tax collector or tax commissioner a periodic list of those mobile homes to which a decal is not attached.” OCGA § 48-5-263 (b) (11). Tax commissioner Jane Moreland testified without contradiction that from January 1, 1994 through July 28, 1995, she had not been furnished with any lists of mobile homes for which the decal had not been attached. Moreland’s testimony was corroborated by Diane Burnett, the chief appraiser, who testified that “[t]here are no lists” because “[w]e don’t have the proper manpower to keep a running total on most kinds of lists.” Moreland admitted that after the filing of the underlying petition, the assessors and appraiser had begun to furnish that information to her office. Moreland testified that information on 180 mobile homes, having an assessed value of $294,385, generating about $5,000 to $6,000 in taxes, had been turned over to her after commencement of the removal petition.

The petitioners’ evidence also appeared to indicate a possible statutory violation of the requirement that county tax appraisers “[p]repare and mail assessment notices after the county board of tax assessors has determined the final assessments.” OCGA § 48-5-263 (b) (5). It is undisputed that the 1995 tax assessments, including notices of assessment changes, were mailed on or about April 18, 1995, despite the failure of the Board of Assessors to approve them until June 6, 1995.

The chief appraiser testified that she did not believe that respondents failed to execute their responsibilities or failed to keep proper records. Herbert Dyer of the Georgia Department of Revenue, Property Tax Division, explained that an office having limited personnel would experience difficulty in keeping assessments current.

Following the evidentiary hearing, the court concluded that the petitioners failed to prove any allegations that would justify the respondents’ removal from office. The court found that the petition was filed without substantial justification, was groundless, vexatious, and was “filed by Joseph Swafford in a spirit of revenge for his recent removal as a board member by the Dade County Commissioners.” The court ruled in favor of Massey’s counterclaim for abusive litigation against Swafford but denied Massey’s counterclaim for the same against the original named petitioners. The court awarded Massey $367.75 in expenses and costs and $2,310.90 in attorney fees.

Raising 12 enumerations of error, Swafford challenges the judgment. Held,-.

1. In eight enumerations, Swafford attacks the trial court’s judgment in favor of the respondents. Findings of fact made by a trial court in a nonjury trial may not be set aside unless they are clearly erroneous. Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 282 (1) (466 SE2d 855) (1996).

Notwithstanding the petitioners’ evidence, even breach of a duty imposed by statute does not necessarily mandate removal from office. Allen v. Norris, 151 Ga. App. 305, 306 (259 SE2d 701) (1979). Moreover, it is within the trial court’s discretion to remove the members from office. Thompson v. Queen, 198 Ga. App. 627, 628 (402 SE2d 361) (1991). We are not able to find that the trial court abused its discretion in determining that the removal of the board members was not warranted under the evidence presented. Accord Allen, 151 Ga. App. at 306; OCGA § 48-5-296.

2. In several enumerations, Swafford challenges the judgment against him for attorney fees, expenses, and costs. Pretermitting consideration of the propriety of assessing these fees against only one party petitioner and consideration of whether the award of attorney fees is permissible under OCGA § 48-5-296, we find the trial court erred as a matter of law in awarding judgment against Swafford.

When no damages other than costs and expenses of litigation and reasonable attorney fees are claimed, as here, the procedures provided by OCGA § 9-15-14 must be followed. OCGA § 51-7-83 (b). Under OCGA § 9-15-14, a litigant is not authorized to seek an award until after the case is concluded, and such an award may not be sought by counterclaim filed prior to the final disposition of the action. Hutchinson v. Divorce & Custody Law Center, 207 Ga. App. 421 (427 SE2d 784) (1993). See, e.g., Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482) (1994); Marshall v. Ricmar, Inc., 215 Ga. App. 470 (451 SE2d 515) (1994). Because Massey could not bring an action against Swafford under the statutory tort for abusive litigation, the trial court erred in permitting Massey to add Swafford as a party for the purpose of a counterclaim under OCGA § 51-7-80. Hutchinson, 207 Ga. App. at 424.

Inasmuch as Swafford was improperly added as a party, it follows that the court could not award attorney fees against him because under OCGA § 9-15-14, “the legislature specifically authorized award of litigation costs and attorney fees against parties and parties’ attorneys, and no others.” (Emphasis in original.) Allstate Ins. Co. v. Reynolds, 210 Ga. App. 318 (436 SE2d 56) (1993). The trial court’s award of attorney fees, costs and expenses is accordingly reversed.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ, concur.

Decided March 14,1997.

Hatcher, Johnson & Meaney, James A. Meaney III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellees.

       Board member Bessie Bradford resigned from office approximately one month before the hearing.

       See Swafford v. Dade County Bd. of Commrs., 266 Ga. 646 (469 SE2d 666) (1996).


text:
    A97A0233.
    SAYLOR v. TROUP COUNTY.
    (484 SE2d 298)
   Judge Harold R. Banke.

Joseph Saylor filed a personal injury action against Troup County (“County”). Saylor appeals the trial court’s grant of summary judgment based on the County’s sovereign immunity.

The salient facts are undisputed. Saylor was injured while working as an inmate on a prison work detail. At the time of the incident, Saylor was sharpening a swing blade on a vise attached to the bumper of a van for which the County had obtained liability insurance. As Saylor was sharpening the blade, another inmate was using a tractor to mow the grass on the right-of-way. The tractor slightly bumped Saylor, allegedly causing him to lose his balance and fall across the swing blade. Saylor sued the County contending it was liable for the negligence of his fellow inmate and for the negligent supervision by Officer Donald V. Osborne, the County employee in charge of the prison work detail.

The County moved for summary judgment based on its defense of sovereign immunity. OCGA § 36-1-4. Assistant County Manager Michael Dobbs testified that both of the County’s liability insurers had denied coverage of Saylor’s claim. Dobbs further attested that the County had no other policy of insurance available which could provide coverage. Held:

Saylor’s sole enumeration is that the trial court erroneously granted summary judgment. He contends that a jury must determine whether his injuries arose out of the “ownership, use or maintenance” of the van at issue so as to trigger liability insurance coverage.

A county is not required to purchase liability insurance and is entitled to sovereign immunity in the absence of insurance. OCGA § 33-24-51 (a); Ward v. Bulloch County, 258 Ga. 92, 93 (365 SE2d 440) (1988). The purchase of insurance coverage waives a county’s sovereign immunity only to the extent of such insurance coverage. See OCGA § 33-24-51 (b); Dugger v. Sprouse, 257 Ga. 778, 779 (364 SE2d 275) (1988). Further, a county’s sovereign immunity is waived only when its insurer satisfies a claim under the coverage provided. Ward, 258 Ga. at 93.

Decided March 14,1997.

Robert M. Beauchamp, L. Chandler Vreeland, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., Mark L. Degennaro, for appellee.

It is undisputed that no liability insurance coverage was available for the tractor and that the County had no general liability or public officials’ insurance coverage either. The only possible coverage was under the liability insurance policy for the van. That policy provided coverage for bodily injury caused by an accident “resulting from the ownership, maintenance, or use” of a covered vehicle. Although under such a policy the injury need not be the proximate result of “use” in the strict sense, the meaning of “use” cannot be extended to something distinctly remote. Leverette v. Aetna Cas. &c. Co., 157 Ga. App. 175, 176 (276 SE2d 859) (1981). “‘ “The question to be answered is whether the injury ‘originated from,’ ‘had its origin in,’ ‘grew out of,’ or ‘flowed from’ the use of the (motor vehicle as a) vehicle.” ’ [Cit.]” Id.

When the tractor bumped Saylor, the van was inoperative, parked off the roadway with its engine not engaged. Saylor was merely using the bumper of the van for placement of the vise, and the van itself was only remotely related to the accident. Saylor’s injury did not “originate in” or “flow from” the use of the van as a motor vehicle. Leverette, 157 Ga. App. at 176. Compare Northbrook Property &c. Ins. Co. v. Merchant, 215 Ga. App. 273, 275 (1) (450 SE2d 425) (1994); see also Crider v. Zurich Ins. Co., .222 Ga. App. 177, 179 (2) (474 SE2d 89) (1996); Daniels v. Decatur County, 212 Ga. App. 378, 380 (2) (441 SE2d 790) (1994). Because the County showed it had no applicable liability insurance, it was entitled to summary judgment as a matter of law. Dugger, 257 Ga. at 779.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A0251.
    FERGUSON v. THE STATE.
    (484 SE2d 296)
   Judge Harold R. Banke.

George E. Ferguson was convicted of armed robbery, criminal attempt to commit armed robbery, and three counts of aggravated assault. Following the denial of his motion for new trial, Ferguson challenges the sufficiency of the evidence and one jury instruction.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Ferguson no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. While walking alone down a street, Marcus Johnson was robbed at gunpoint by several men who suddenly left a dark colored van. With a gun held to his head, Johnson complied with their demands, giving up his black Orlando Magic Starter jacket, wallet, two gold chains and Nike tennis shoes.

Less than an hour later, three infantry soldiers were accosted in a similar manner as they left a nightclub. While they were calling a taxi from a phone booth, a dark colored van pulled up nearby, and three young males exited. Acting as the spokesman, Ferguson initially requested directions, then threatened to kill the soldiers if they did not give up their wallets. Ferguson was flanked by two other black males wielding handguns. One of the assailants held a gun close to Sergeant Ricky Pugalee’s temple, and the other shot Sergeant Noah Steere three times, wounding him in his arm, elbow, and hip, after Steere refused to surrender his wallet. Sergeant DeWayne Cox and Pugalee relinquished their wallets.

Responding to a radio broadcast, Officer Phil Matteo stopped a dark colored van that night. Police recovered an Orlando Magic Starter jacket, one Nike shoe, a pistol, a revolver, a gold chain, and an ATM receipt belonging to Cox. Two officers testified that at the time of his arrest, Ferguson was wearing one of Johnson’s stolen Nike shoes.

Shortly after Ferguson’s arrest, Johnson went to the police station and identified some of the items recovered from the van and its occupants. Johnson was also able to identify Ferguson’s two co-defendants as perpetrators. At trial, Johnson identified his Starter jacket, jewelry, and tennis shoes.

Ferguson was convicted of the armed robbery of Cox, the criminal attempt of armed robbery of Steere and the aggravated assault of all three victims. Ferguson’s two co-defendants pleaded guilty. Held:

1. In two enumerations of error, Ferguson asserts the verdict is contrary to and against the weight of the evidence. We disagree. The State presented both direct eyewitness testimony and circumstantial evidence. Testifying that there was “no doubt in his mind whatsoever,” Steere identified Ferguson as the man who threatened his life and demanded his wallet. Steere verified that Cox’s and Pugalee’s wallets had been forcibly taken at gunpoint. Pugalee identified Ferguson as the person giving the orders, and Pugalee testified that one of the assailants pointed a pistol straight at his head. In light of the evidence, a rational trier of fact could have found Ferguson guilty of the crimes within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 14,1997.

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, LoriL. Canfield, Assistant District Attorney, for appellee.

2. Ferguson claims that the trial court’s erroneous instruction on reasonable doubt requires the reversal of his convictions. We disagree. The court’s charge on reasonable doubt deviated slightly from the pattern charge. The court apparently misspoke when charging part of the pattern instruction on reasonable doubt, stating “you can acquit the defendant” instead of “you should acquit the defendant.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, D, p. 8. In light of the instruction on reasonable doubt as a whole, and in light of the overwhelming evidence of Ferguson’s guilt, even if the charge was error, it is highly probable that it did not contribute to the verdict. Moak v. State, 222 Ga. App. 36, 40 (4) (473 SE2d 576) (1996); Wheat v. State, 205 Ga. App. 388, 389 (2) (422 SE2d 559) (1992).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Authorities did not pursue criminal charges against Ferguson in the Johnson case.


author: Johnson, Judge.

text:
    A97A0264.
    In the Interest of B. G. et al., children.
    (484 SE2d 293)
   Johnson, Judge.

The mother of B. G. and R. G. appeals the decision of the juvenile court terminating her parental rights in these children.

1. In her first enumeration of error, the mother contends the juvenile court erred in excluding her from the courtroom while her children testified against her. Even though the mother had apparently not arrived at the time the children began testifying, the guardian ad litem requested the mother be excluded because her presence might affect the children’s testimony. The trial court agreed without hearing any evidentiary basis for this request and specifically ruled that the mother would be barred from the courtroom while the children testified. The mother’s attorney objected to this procedure, claiming it would violate his client’s right to confront the witnesses against her.

The record is unclear as to when the mother arrived at the hearing. When the hearing began, the mother’s attorney stated he had notified his client to attend but did not know where she was. On cross-examination in the termination hearing, the mother admitted she had arrived 45 minutes late but stated she tried to arrive on time. The record does not show whether she was present at the courthouse during any of the children’s testimony or whether she tried to enter the courtroom but was prevented from doing so. But if she did arrive in time to hear the children testify, the trial court’s ruling would have prevented her from entering the courtroom.

The children testified regarding their visitation with their mother, including their conversations with her, and each child stated he would prefer not to live with his mother. Both of the children testified that their mother forced them to write letters to the juvenile court complaining about their guardian ad litem, and to a licensing board complaining about a psychologist who had evaluated them.

This Court’s decision in In the Interest ofM. S., 178 Ga. App. 380, 381 (343 SE2d 152) (1986) requires us to find the trial court’s exclusion of the mother from the courtroom during this testimony was error because it prevented the mother from assisting her attorney in propounding questions to the children. See also OCGA § 15-11-31 (a), granting a party to a termination proceeding the right to cross-examine adverse witnesses.

Although M. S. is distinguishable on its facts, it recognizes that there is no more serious legal proceeding than an action to terminate a parent’s rights and that such a proceeding must be conducted in a manner designed to protect the fundamental due process rights of the parent. Id.; see Watkins v. Watkins, 266 Ga. 269, 270 (1) (466 SE2d 860) (1996). In this case, the juvenile court prevented the mother from effectively assisting her attorney in countering allegations that she had forced them to make unfounded complaints. The mother was also prevented from assisting her attorney in challenging the children’s versions of their conversations with her. In light of the court’s reference to the children’s testimony in its findings of fact, its ruling must be reversed and this matter remanded for a new hearing.

The state contends the mother had not yet appeared for the hearing when the children testified and, therefore, waived any right to be present. We agree that the juvenile court could conclude the mother had waived her right to be present when the proceedings began, as the evidence indicates she knew of the proceedings and failed to arrive on time without giving a reason for her absence. See generally Winfield v. State, 210 Ga. App. 849, 850 (1) (437 SE2d 849) (1993). However, the record does not clearly show the mother was absent during the entire testimony of her children. Because the record shows the trial court specifically excluded the mother from the courtroom and does not show she waived her right to confront the children once she arrived, we cannot say the error was harmless. See generally In re J S. C., 182 Ga. App. 721, 724 (1) (356 SE2d 754) (1987) (physical precedent only).

A juvenile judge may take steps to accommodate a child witness’ fears in testifying, as many courts have determined. See Maryland v. Craig, 497 U. S. 836, 851-852 (III) (110 SC 3157, 111 LE2d 666) (1990) (child abuse-victim may be protected from facing defendant); In the Matter of the Adoption of J. S. P. L, 532 NW2d 653, 660-661 (N.D. 1995) (child may testify outside parent’s presence in case involving termination of parental rights); In re Michael C., 557 A2d 1219, 1221 (R.I. 1989) (trial judge has discretion to limit confrontation to prevent trauma to child witness in custody case). In such cases, however, the trial court must make an evidentiary finding that the child would be substantially traumatized by the event and that the child’s welfare compels a limitation on the party’s right to confront the child witness. See Craig, supra at 855-856 (III); accord J. S. P L., supra. Any procedure which limits the party’s ability to confront the child witness must also be tailored to protect the right of confrontation to the greatest extent possible. See Craig, supra at 857 (III). As in M. S., supra, the trial court erred by completely excluding the mother from the courtroom without a showing of necessity and without using procedures which would accommodate her ability to hear the testimony and consult with her attorney.

2. Because the issue may surface on remand, we address the mother’s contentions that this termination action is barred by collateral estoppel or double jeopardy. The children were originally determined to be deprived based on evidence that they were living in unsanitary conditions and that the mother chased one of the children around the house with a maul. The mother was also convicted of reckless conduct and cruelty to children based on those facts. On appeal, however, this Court reversed the reckless conduct conviction based on an improper jury charge. Brewton v. State, 216 Ga. App. 346 (454 SE2d 558) (1995). The Supreme Court granted certiorari and held that proof of an unsanitary house cannot, by itself, support a conviction for cruelty to children under OCGA § 16-5-70 (b). Brewton v. State, 266 Ga. 160 (465 SE2d 668) (1996). The mother contends that the reversal of her criminal convictions estops the state from finding that her children were deprived and contends that further “punishment” for the incidents giving rise to the criminal charges would constitute double jeopardy.

(a) Collateral Estoppel. A termination proceeding is primarily a civil matter and is decided on a lesser standard of proof than that found in criminal actions. See In the Interest of S. L. W., 221 Ga. App. 509 (471 SE2d 579) (1996) (clear and convincing standard); Ray v. Dept. of Human Resources, 155 Ga. App. 81, 84 (1) (270 SE2d 303) (1980) (action civil in nature). Therefore, an acquittal or conviction in a criminal case does not prohibit a subsequent civil action arising from the same incident. See Halligan v. Consolidated Mgmt. Svcs., 258 Ga. 471 (369 SE2d 745) (1988). Moreover, collateral estoppel could not apply in this case because no factfinder has determined the incidents giving rise to the deprivation charges and criminal charges did not occur; rather, this Court reversed one conviction based on an error of law, and the Supreme Court merely held that the proven facts did not constitute a violation of OCGA § 16-5-70 (b). See Brewton, supra, 266 Ga. 160, 162 (2); 216 Ga. App. 346, 351 (6). “[CÍollateral estoppel applies where an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment.” (Emphasis omitted.) Kent v. Kent, 265 Ga. 211 (1) (452 SE2d 764) (1995). Here, neither this Court nor the Supreme Court reversed the jury’s determinations that the alleged incidents occurred, nor did the Supreme Court determine these facts could not support a finding of deprivation.

(b) Double Jeopardy. An action to terminate parental rights is primarily a civil action. See Ray, supra. For double jeopardy to bar a civil proceeding, clear proof must show that “the proceeding is so punitive in fact that it may not legitimately be viewed as civil in nature despite the intent that it be so. [Cit.]” Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996). As OCGA § 15-11-1 makes clear, the laws allowing termination of parental rights are designed to protect children. They are remedial, and actions under them do not expose to double jeopardy the parent whose rights are sought to be terminated. See In re Interest of Theodore W., 545 NW2d 119, 129 (Neb. App. 1996) (parental rights termination action is remedial in nature and does not expose parent to double jeopardy); see also Pennyman v. State, 222 Ga. App. 779, 780 (476 SE2d 71) (1996) (purpose of action to terminate police officer’s employment is to protect the department’s reputation, the public, and other officers and is, therefore, remedial).

3. Our holding in Division 1 renders moot the mother’s remaining enumerations of error.

Judgment reversed and case remanded for new hearing.

Pope, P. J., and Blackburn, J., concur.

Decided March 14,1997.

Clark & Towne, David E. Clark, Lenzer & Lenzer, Robert W. Lenzer, Thomas R Lenzer, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, Grantland G. King III, Deborah A. Stone, for appellee.

       Although the children’s testimony regarding their activities and conversations with the mother may be relevant to show the future prospects of the parent-child relationship, it is unclear how the children’s feelings about living with their mother relate to her legal right to be their mother.


author: Eldridge, Judge.

text:
    A97A0881.
    MAYORGA v. THE STATE.
    (484 SE2d 292)
   Eldridge, Judge.

Appellant Raul Michael Mayorga challenges his conviction for false imprisonment, asserting that there was insufficient evidence to support the verdict. We affirm the conviction.

On December 20, 1995, the victim went to the appellant’s motel room; the victim and appellant had met three weeks before, had been out together several times, and were friends. Shortly after the victim entered the motel room, appellant began making sexual advances toward her. The victim twice told him to stop and then attempted to leave. Appellant put his foot in front of the door and refused to let her leave. The victim became frightened and screamed; appellant put his hand over her mouth. Following this altercation, appellant and the victim had sexual intercourse; it is disputed whether or not the victim consented to such contact. After intercourse, the victim took the appellant to a Waffle House restaurant, where she secretly notified a waitress that she had been raped and asked the waitress to call 911. Police officers arrived shortly thereafter and talked to the victim and appellant separately. The officers then took the victim to the hospital for a rape examination.

Appellant was questioned by a police detective and was charged with false imprisonment and rape. A jury trial was held June 24 through 26, 1996, and the jury reached a verdict of guilty on Count 2 of the indictment, false imprisonment. The jury deadlocked on the rape charge, a mistrial was declared, and the state subsequently nolle prossed the charge. Appellant was sentenced to ten years imprisonment, and he timely appealed his conviction.

When reviewing a conviction, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). A person is guilty of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41.

Decided March 14,1997.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Rita B. Jackson, Assistant District Attorney, for appellee.

In the case sub judice, the victim testified that she attempted to leave the room and that appellant stopped her and threw her to the bed. She also testified that the appellant forcibly pulled down her pants so that she was “trapped,” and later held her down during intercourse. Further, the state presented testimony from several witnesses, all of which supported the victim’s testimony that appellant forcibly prevented her from leaving the motel room. The appellant, himself, admitted that he stopped the victim from leaving by putting his foot in front of the door and that, in response, the victim “cowered” and became frightened. He also admitted that the victim screamed and that he covered her mouth with his hand. This evidence is more than sufficient to support appellant’s conviction for false imprisonment.

Appellant’s assertion that the conviction is inconsistent with the fact that the jury deadlocked on the rape charge is meritless. The two outcomes are not mutually exclusive and are based on entirely independent crimes. See Wilkes v. State, 210 Ga. App. 898, 899 (437 SE2d 837) (1993). Further, appellant waived any such assertion by failing to object to the form of the verdict at the time it was rendered. Id.

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.