text:
    A95A1815.
    DYER v. THE STATE.
    (463 SE2d 718)
   Johnson, Judge.

After a bench trial, Austin Dyer was found guilty of possession with intent to distribute an imitation controlled substance. He appeals from his conviction and the denial of his motion for new trial.

1. Dyer contends that the evidence was insufficient to authorize a finding of intent to distribute. We agree and reverse. Viewed in a light most favorable to the verdict, the evidence shows that police officer J. E. Fox was parked in front of a Waffle House restaurant in a known drug area at 12:30 a.m. Fox testified that three unidentified people approached him and reported that an African-American male on a bicycle had attempted to flag them down. None of them knew what he wanted. A person matching that description rode into the parking lot, went into the restaurant and came out with a garbage bag which contained ice. Fox knew from past experience that the man’s name was Dyer, although he did not say what type of prior contact he had with Dyer. Fox asked Dyer what he was doing out at that time of night, to which Dyer responded that he was getting some ice. Fox then patted Dyer down and felt several small, hard objects in his pocket, which Fox believed were pieces of crack cocaine. The substance was later determined to be small chips of marble rock. At Fox’s request, Dyer emptied his pockets, revealing one clear plastic bag, several empty small, green plastic bags and several white marble chips. Though Fox’s testimony is unclear on this issue, apparently some of the marble chips were loose in Dyer’s pocket and some were in the clear bag. The small bags were empty. There is no indication in the record that Dyer had any money or other objects in his possession.

As Dyer points out, “[t]o support a conviction for possession of [contraband] with intent to distribute, the State is required to prove more than mere possession. [Cits.]” (Punctuation omitted.) Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121) (1994). In James v. State, 214 Ga. App. 763, 764 (1) (449 SE2d 126) (1994), we surveyed recent cases in order to determine what type of evidence is needed to prove an intent to distribute. We noted that a scale, plastic bags, coin envelopes and large sums of cash indicated an intent to sell marijuana; division of cocaine between 30 packages authorized a finding of intent to distribute; scales, drug paraphernalia, baking soda, a large amount of cash and prior drug sales indicated intent and a prior possession with intent to distribute conviction along with expert testimony as to whether the amount of crack recovered would generally be for distribution amounted to proof of intent. Based on those cases, we held in James that the State failed to prove that the defendant, who dropped a plastic bag containing 1.2 grams of cocaine and in whose car officers found a pill bottle containing cocaine residue, intended to distribute the drugs. By comparison, in Palmer v. State, 210 Ga. App. 717 (437 SE2d 490) (1993), we held that a rational trier of fact was authorized to find intent to distribute where the defendant possessed nine rocks of crack cocaine, claimed to be smoking them himself though he had no smoking device in his possession, and where an expert testified that someone with that amount of crack cocaine had it for the purpose of distributing it.

In its brief, the State argues that it proved an intent to distribute by the fact that Dyer possessed several small plastic bags along with the contraband and that he attempted to flag down three cars. First, there is no competent evidence that Dyer attempted to flag down cars. The only testimony on that issue came from Fox, who stated that three unidentified people told him that someone had attempted to flag down their cars. Dyer made a hearsay objection to the testimony, and the trial court properly ruled that the testimony was admissible only for the purpose of explaining Fox’s conduct. It was not admissible as evidence that Dyer was attempting to flag down cars or as any other indicia of Dyer’s guilt. See Lynch v. State, 164 Ga. App. 317, 319 (3) (296 SE2d 179) (1982).

The only other evidence relied upon by the State, that Dyer possessed several small plastic bags along with the marble chips, is not sufficient to support a possession with intent to distribute conviction. Fox testified that there was a clear plastic bag, several small, green bags and several marble chips in Dyer’s pocket. Other than stating that there were “several” or “a few,” Fox did not specify how many marble chips or plastic bags there were. Only one bag had anything in it; the rest were empty. There was no cash, no drug paraphernalia, no expert testimony that the substance was intended for distribution and no testimony from anyone who saw Dyer do anything suspicious. Nor was there any evidence that Dyer had previously been arrested or convicted of any drug offenses. We note that the two cases relied upon by the State do not support its position, because in both of those cases there were stronger indicia of intent to distribute. See Wright v. State, 154 Ga. App. 400 (1) (268 SE2d 378) (1980), where police found two plastic bags containing two pounds of marijuana, a metric scale, small coin envelopes, plastic bags and large amounts of money stored in cans and boxes. And see Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991), where the cocaine was divided among more than 30 plastic packages. In the instant case, even viewing the evidence in the light most favorable to the verdict, we cannot conclude that it is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare Polke v. State, 203 Ga. App. 306, 310 (3) (417 SE2d 22) (1992); Womble v. State, 203 Ga. App. 107 (416 SE2d 148) (1992).

Decided November 1, 1995.

Scott C. Gladstone, for appellant.

Ralph T. Bowden, Jr., Solicitor, Cliff Howard, Bernard R. Ussery, Assistant Solicitors, for appellee.

2. In light of our holding in Division 1, we do not reach Dyer’s remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1289.
    HIRSCH et al. v. JOINT CITY COUNTY BOARD OF TAX ASSESSORS.
    (463 SE2d 703)
   McMurray, Presiding Judge.

Jack Hirsch (“the taxpayer”), one of 50 “tenants in common” who own commercial real estate known as the Collier Heights Apartments (“the property”), notified the Joint City County Board of Tax Assessors for Fulton County, Georgia (“the Board”), that he wished to appeal the 1993 assessment on the property, contending that the “current assessment exceeds the fair market value.” The Board proposed to assess the fair market value of the property at $2,952,500. Dissatisfied with this proposal, the taxpayer filed an appeal to the superior court. There, the issue of fair market value was tried de novo before the court, without the intervention of a jury. The superior court agreed with the Board that certain economic assumptions used in preparing the taxpayer’s property analysis were unwarranted. Specifically, the superior court found that the taxpayer’s market analysis of comparable sales “uses as comparables 6 sales in which the Federal Home Loan Mortgage Corporation is the grantor,” even though the taxpayer bought the complex in 1964 when it was substantially new, for $2,300,000. In the experience of Guy Wood, the Board’s expert appraiser, these proposed comparable sales of government-owned properties represented “properties that were probably foreclosed, and ... a foreclosure, in my opinion, would not be a very good comparable.” The superior court further concluded that the taxpayer’s use of a “capitalization rate of 16% for the subject property is excessive.” Rather, an “appropriate capitalization rate [namely, 12 percent] produces a fair market value of $2,952,500.00 using the income analysis prepared by the [taxpayer] ... in this case, without deducting [any] costs for deferred maintenance as [had been] urged by the [taxpayer].” This direct appeal followed. Held:

1. The taxpayer contends the superior court’s judgment is unsupported by sufficient probative evidence, arguing that the Board’s “only witness, [Guy] Wood, had no . . . opportunity to form a correct opinion,” as to the property’s fair market value. “The findings of trial courts in non-jury trials ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.’ OCGA § 9-11-52 (a). As the clearly erroneous test is, in effect, the same as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to support them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388).” Bellsouth Telecommunications v. Henry County Bd. of Tax Assessors, 217 Ga. App. 699, 700 (2) (458 SE2d 705). An appeal to the superior court from the county board of tax assessors is a de novo investigation. OCGA § 48-5-311 (f) (3). There, “ ‘neither party is entitled to any prima facie presumption regarding the correctness of its evidence of valuation, [although] the burden of proof in the superior court is on the party initiating the appeal to that court — in this case the taxpayer.’ ” Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499 (1), 500 (295 SE2d 170).

“ ‘Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.’ Schoolcraft v. DeKalb County, 126 Ga. App. 101, 103 (2) (189 SE2d 915) [(physical precedent only)]. Accord Apostle v. Prince, 158 Ga. App. 56, 57 (1) (279 SE2d 304).” Bryant v. Gen. Motors Acceptance Corp., 184 Ga. App. 323, 325 (3) (361 SE2d 529) (physical precedent only). “Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. Code [Ann.] §§ 38-1708, 38-1709 [now OCGA §§ 24-9-65 and 24-9-66]; [cit.]. Absent this foundation, the opinion as to value is inadmissible as it is nothing more than an ‘unsupported conclusion or guess of the witness.’ [Cit.]” (Emphasis supplied.) Sisk v. Carney, 121 Ga. App. 560, 563 (4) (174 SE2d 456). In the case sub judice, Guy Wood testified that his opinion of fair market value was derived from his training, experience, and familiarity with similar properties in the city. Even though he never personally inspected the taxpayer’s property, Guy Wood’s training and experience, applied to the undisputed physical facts as well as the variable economic assumptions, afforded him a substantial opportunity for forming a correct opinion as to the fair market value of the property. Any “lack of actual [or personal] knowledge goes to the weight of his opinion, a [credibility] question, and does not render the opinion inadmissible.” State Hwy. Dept. v. Peters, 121 Ga. App. 167 (1), 169 (173 SE2d 253). An adequate foundation was established for Guy Wood’s testimony, such that the superior court was not left to speculate based upon unsupported conclusions or guesswork. We find the evidence sufficient to sustain the superior court’s determination of fair market value. Bellsouth Telecommunications v. Henry County Bd. of Tax Assessors, 217 Ga. App. 699, 700 (2), supra.

2. In the second enumeration of error, the taxpayer contends the superior court erred “in adopting verbatim proposed Findings of Fact and Conclusions of Law submitted by [the Board] without giving serious consideration to or reviewing the proposed Findings and Conclusions it adopted.” Review of the record discloses that the superior court invited “each [party] to prepare ... a very short proposed order, with findings of fact, conclusions of law, and the order of the court.” Counsel for the Board served counsel for the taxpayer by facsimile with a copy of the Board’s proposed order. The taxpayer did not submit his own proposed order or file exceptions to the Board’s proposed order, for aught that appears of record. The superior court adopted the proposed findings of fact but did not adopt the proposed conclusions of law. The Board’s proposed “order in this case is well supported by . . . the record and was adopted by the [superior court] as [its] own. We decline [the taxpayer’s] invitation to accord the order less deference than mandated by OCGA § 9-11-52.” Jefferson v. Zant, 263 Ga. 316 (1), 317 (431 SE2d 110). This enumeration is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

On Motion for Reconsideration.

The taxpayer renews his objections to the Board’s expert opinion evidence of current valuation. In our opinion, these renewed grounds go to credibility and not competence vel non. OCGA § 24-1-1 (1). Consequently, the circumstance that the trier of fact chose to believe the Board’s experts over the evidence submitted by the taxpayer does not render the judgment unsupported by substantial evidence. This ground does not authorize reconsideration of Division 1 of this Court’s October 3, 1995, opinion and judgment. Court of Appeals Rule 37 (e).

Decided October 3, 1995

Reconsideration denied November 2, 1995

Scott E. Tinnon, for appellants.

W. Roy Mays III, for appellee.

Also, defendant has transmitted to this Court the October 13, 1995, order of the Fulton County Superior Court through which the parties attempted to apply OCGA § 5-6-41 (f) and stipulate for inclusion in the record on appeal the taxpayer’s proposed findings of fact and conclusions of law and final judgment. These documents had been submitted to the superior court but “were not filed with the Clerk of [the superior court] and should not be omitted from the record on appeal in this actionf.]” “OCGA § 5-6-41 (f), . . . under which the action originates in the trial court ... is not to be used after rendition of an appellate court’s decision as a vehicle to secure the grant of a motion for [reconsideration] or application for certiorari. Once the appellate court renders its decision, OCGA § 5-6-48, . . . under which the action originates in the discretion of the appellate court, becomes the exclusive method for supplementing the record.” State v. Pike, 253 Ga. 304, 307 (320 SE2d 355). We have exercised our discretion to consider these supplemental documents and find nothing therein to warrant any change in Division 2 of the opinion or any change in the judgment.

Judgment adhered to on motion for reconsideration.


author: Beasley, Chief Judge.

text:
    A95A0992.
    A95A1918.
    A95A2141.
    DeKALB COUNTY v. LENOWITZ. DeKALB COUNTY v. CITY OF ATLANTA. CITY OF ATLANTA v. DeKALB COUNTY.
    (463 SE2d 539)
   Beasley, Chief Judge.

Lenowitz, the owner of residential property in unincorporated DeKalb County, sued DeKalb County and the City of Atlanta, seeking damages because raw sewage leaked onto his property from a trunk line of the Metropolitan Sewer System. Both the city and county filed cross-claims, each asserting that the other is liable for plaintiff’s damages. The plaintiff obtained a recovery against the city through a settlement and against the county through a judgment entered on a jury verdict. In these appeals, the county maintains that the city is solely liable to plaintiff and that the court erred in ruling on a motion in limine filed by plaintiff; in addition, both the city and county claim error in the court’s disposition of their cross-claims.

Plaintiff’s complaint is that the trunk line leaked raw sewage onto his property in such manner as to kill vegetation and create an obnoxious odor, thereby lowering the value of his property and interfering with his peace and quiet enjoyment. Neither the city nor county disputes that the sewer leaked raw sewage onto the property. Plaintiff sought damages for a taking of property by inverse condemnation and for a continuing nuisance, as well as an award of attorney fees.

Prior to filing the complaint, plaintiff requested officials from both the city and county to repair or replace the sewer line. Each claimed that repair and replacement of the sewer line on plaintiff’s property was the other’s responsibility. Each of their positions is based upon the “Metropolitan Sewer Agreement.”

When the city and county entered into the agreement in 1968, the city owned and operated the Metropolitan Sewer System. The city agreed to construct various improvements to the system for the joint use of several entities, of which the county is one. The city agreed to finance the construction, and the county agreed to reimburse the city for the benefits to be conferred on the county.

The city also agreed to assume responsibility for the operation, maintenance, repair, and replacement of all portions of the system except those portions which serve only the county. The net operating costs related to these functions for the portions of the system which are the responsibility of the city are allocated among the parties served on the basis of beneficial use as determined by sewage flow.

The county agreed to include as part of the net operating costs “[a]ny sums the city is required to pay for claims of any persons arising out of the financing, construction, operation, supervision, management, maintenance, repair, replacement and expansion of the Metropolitan Sewer System, including payments by the city for workers’] compensation claims.”

The county also assumed responsibility, at its expense, for the construction, operation, maintenance, repair, and replacement of all sewers used solely by the county, of various metering facilities, and of sewers serving Gwinnett County which the county permits to be connected to sewers using the facilities of the Metropolitan Sewer System. The county has the right to make or permit connections to the Metropolitan Sewer System and to make charges for such connections.

The county submitted uncontroverted evidence that the portion of the sewer system on plaintiff’s property serves both the city and county (the allocation of sewage flow being 87.61 percent for the county and 12.39 percent for the city at this location). Based on the argument that the city thus has the responsibility for maintaining and repairing this portion of the system, the county filed a motion to dismiss or in the alternative for summary judgment.

Plaintiff filed a motion for summary judgment on issues of liability, arguing that the city and county operate the sewer line as a joint venture or enterprise and that they are both liable to him for maintenance of a nuisance irrespective of the division of duties and obligations as between the two of them in the agreement. The superior court granted plaintiff’s motion and denied the county’s, ruling that the sewer line is a joint venture of the city and county and that the agreement does not preclude either defendant’s liability to plaintiff, although it may be relevant to their cross-claims.

Shortly before trial, plaintiff and the city settled his nuisance claim for $55,000 and his attorney fee claim for $25,000.

At the commencement of trial, plaintiff sought through an oral motion in limine to bifurcate the trial of his inverse condemnation claim against the county from the city’s and county’s cross-claims. The court granted the motion and ruled that plaintiff’s settlement of his nuisance and attorney fee claims with the city could not be mentioned, but that the city’s involvement in this case otherwise could be introduced.

After presentation of plaintiff’s case, counsel for the city, who did not arrive at trial until after argument of counsel on the motion in limine was under way, asked for a clarification of the terms of the motion. Counsel for the city and plaintiff expressed their preference that evidence relating to the actions of the city not be presented until adjudication of the cross-claims. The court agreed to that and stated that the county would not be prejudiced in any way by waiting to present such evidence. The county’s counsel responded that the court’s initial ruling on the motion in limine was to exclude testimony about the settlement only and that testimony concerning how the city otherwise has been involved in the case had been presented. The court stated that such testimony had been admitted because there was no objection, but that it would sustain the objection then being raised.

The jury returned a $55,000 verdict against the county, and the parties agreed to have the cross-claims resolved through the submission of briefs or mediation. Finding no just reason for delay, the court directed entry of final judgment.

The court subsequently entered a final judgment which: (1) denied the county’s cross-claim seeking reimbursement for the $55,000 judgment in favor of plaintiff; (2) granted in part the city’s cross-claim and ordered the county to reimburse the city for 87.61 percent of the cost of repairing the sewer at issue and removing and replacing dead trees on plaintiff’s property; and (3) denied in part the city’s cross-claim and ordered that the county not reimburse the city for its settlement of $80,000 with plaintiff inasmuch as the city voluntarily entered into the settlement and was not required to pay it.

In Case No. A95A0992, the county appeals the judgment in plaintiff’s favor. In Case No. A95A1918, the county appeals the denial of its cross-claim. In Case No. A95A2141, the city cross-appeals the partial denial of its cross-claim.

Case No. A95A0992

1. The county contends that the court erred in denying its motion for summary judgment in light of evidence conclusively showing that the city and not the county is liable.

The county correctly states that under the Metropolitan Sewer Agreement, the city is solely responsible for making repairs and replacements to the part of the sewer system crossing plaintiff’s property and is the only party with legal access to the property by virtue of an easement. Plaintiff’s argument is that the county is jointly and severally liable for the tortious acts of the city by reason of the fact that the part of the sewer system traversing plaintiff’s property is operated by these defendants as a joint venture or enterprise.

The agreement shows that the city and county jointly own parts of the sewer system, that the city controls some of these parts, and that the county controls others. “On this evidence, a finding was authorized that [this is] a ‘joint enterprise,’ . . . notwithstanding the parties’ determination, as between themselves, how the control over the [enterprise] would be exercised. [Cit.]” City of Eatonton v. Few, 189 Ga. App. 687, 690 (2) (377 SE2d 504) (1988). Each party to a joint venture or enterprise is jointly and severally liable for the tortious acts of the other committed within the scope of the venture or enterprise. See OCGA §§ 14-8-13, 14-8-9; Block v. Woodbury, 211 Ga. App. 184, 186 (2) (438 SE2d 413) (1993); 46 AmJur2d, Joint Ventures, § 42 (1994). The city’s operation of the sewer system in an unincorporated area of the county was certainly within the scope of the joint enterprise.

The county argues that plaintiff has obtained a double recovery by being awarded damages on his inverse condemnation claim after settling his nuisance claim with the city. This argument is neither supported by citation of authority nor within the scope of the county’s enumeration of error. For the latter reason, the issue is not preserved on appeal. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649) (1993).

2. The county also contends that, in ruling on the motion in limine midway through the trial, the court abused its discretion in excluding any evidence regarding the city’s involvement in the case.

It is true that the plaintiff had already presented such evidence in his case-in-chief. The county argues that it was unfairly prevented from presenting rebuttal evidence, but the county did not advance this argument at trial and it does not state in either court what the rebuttal evidence would have shown. It has not carried its burden of showing that it was prejudiced by the court’s ruling on the motion in limine. See generally Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (1) (260 SE2d 20) (1979).

Case No. A95A1918

3. The county argues that it is entitled to reimbursement from the city for the sums it has been required to pay plaintiff, because under the agreement the city assumed responsibility for the repair and replacement of that portion of the sewer system traversing plaintiff’s property, and the damage to his property would have been mitigated if the city had complied with its contractual obligation to make the repairs within a reasonable time.

The city counters that it is not required to reimburse the county, because the agreement has no provision requiring the city to reimburse the county for claims the county is required to pay, although the agreement does contain a provision including as part of the net operating costs of the sewer system any sums the city is required to expend in payment of claims. The presence of the one provision and absence of the other is explained by the fact that under the agreement, the city is responsible for maintaining portions of the sewer system that serve both the county and the city, whereas the county is only responsible for maintaining those portions of the sewer system that serve only the county.

The county is not claiming any contractual right of reimbursement from the city. Rather, the county’s cross-claim is based on the city’s breach of its contractual duty to repair and replace those portions of the sewer system that serve both the city and county. While the agreement does not give the county a contractual right to be reimbursed for claims it must pay other persons, the agreement does not preclude the county from seeking such damages from the city if the county has been forced to pay such claims because of the city’s breach of contract. The court erred in denying the county’s cross-claim on the ground that it is barred by the agreement.

Case No. A95A2141

4. The city contends that the court erred in the partial denial of its cross-claim on the ground that the city voluntarily entered into the settlement with plaintiff and was not required to pay it.

The partial denial of the city’s cross-claim was not authorized on this ground. “ ‘By the enactment of (OCGA § 51-12-32 (c)) . . . the Legislature has expressly permitted a party to compromise or settle a claim in lieu of a lawsuit or judgment against the party without prejudicing that party’s right to seek indemnity from another.’ [Cit.] ‘(T)he right of indemnification is not lost or prejudiced by settlement or compromise of a claim.’ [Cit.]” U. S. Fidelity &c. Co. v. Sayler Marine Corp., 196 Ga. App. 850, 851 (397 SE2d 188) (1990).

Decided November 2, 1995

Johnson & Freeman, Clarence R. Johnson, Jr., for DeKalb County.

James S. Altman, for Lenowitz.

Clifford E. Hardwick IV, Romaine L. White, for City of Atlanta.

The claim settled was against the city for maintenance of a nuisance. In order for the city to have been held liable on such a claim, the defect or degree of misfeasance must have exceeded the concept of mere negligence, and there must have been a failure by the city to have acted within a reasonable time after knowledge of the defect. Earnheart v. Scott, 213 Ga. App. 188, 189 (1) (444 SE2d 128) (1994). Consequently, the city’s maintenance of the nuisance necessarily constituted both breach of a tort duty owed to the homeowner and breach of a contractual duty of repair owed to the county.

The provision in the agreement requiring the county to reimburse the city for sums the city is required to expend in payment of claims to others is in essence an indemnity clause. See 15 EGL, Indemnity, § 3 (1995 Rev.). Such clauses are to be strictly construed against the indemnitee, especially where, as here, indemnification is sought for tortious conduct rising to the level of a nuisance. See 15 EGL, Indemnity, § 5, supra. Strictly construing the clause in this case, we hold that it does not entitle the city to reimbursement by the county where the nuisance claim paid by the city arises as a result of the city’s breach of a contract with the county as well as a tort duty owed to the third party. Therefore, the court’s partial denial of the city’s cross-claim is affirmed under the “right for any reason” rule. Lemieux v. Blue Cross &c. of Ga., 216 Ga. App. 230 (453 SE2d 749) (1994).

Judgment affirmed in Case Nos. A95A0992 and A95A2141. Judgment reversed in Case No. A95A1918.

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


author: Smith, Judge.

text:
    A95A1147.
    FOREST LAKES HOME OWNERS ASSOCIATION et al. v. GREEN INDUSTRIES, INC.
    (463 SE2d 723)
   Smith, Judge.

We granted appellants’ application for discretionary review to address the procedural question of whether Uniform Superior Court Rule 6.2 applies to an OCGA § 9-15-14 motion for expenses and attorney fees made after dismissal of the main case. Additionally, we address the propriety of moving for attorney fees after settlement, as well as appellants’ contention that attorney fees were erroneously awarded.

The underlying dispute involved disgruntled homeowners living in Forest Lakes Subdivision in Tift County, Georgia, who complained that appellee Green Industries, Inc. (“Green”) was constructing a dwelling in violation of the subdivision’s restrictive covenants regarding such matters as dwelling sizes, garage locations, and setbacks. They later successfully moved to add Leonard Morris, the developer of Forest Lakes Subdivision, as a defendant. On February 3, 1994, a consent judgment was entered in which appellants agreed, among other things, to dismiss their complaint against Green. The parties to the judgment were appellants and Morris, but not Green. On the same date, appellants dismissed, with prejudice, their complaint against Green. Also on February 3, 1994, Green dismissed its counterclaim for costs and attorney fees without prejudice.

On March 18, 1994, Green timely filed an OCGA § 9-15-14 motion for attorney fees supported by several affidavits and a deposition as well as a lengthy brief detailing relevant facts and arguments. Appellants did not file a response to the motion. After a hearing on the issue of whether counsel for appellants could present evidence at the hearing on the OCGA § 9-15-14 motion, the trial court ruled that appellants were precluded from introducing evidence not already of record at the hearing because they failed to file a response within 30 days of the filing of the motion for attorney fees.

After oral argument on the motion for attorney fees, during which appellants were permitted to rely on evidence already in the record at the time of the hearing, Green was awarded attorney fees in the amount of $6,944.10.

Appellants enumerate as error the trial court’s ruling foreclosing them from presenting new evidence, as well as the ruling awarding attorney fees to Green.

1. Analysis of the issues raised by appellants would be incomplete without first examining the propriety of seeking attorney fees under OCGA § 9-15-14 after a dispute has been settled. In Hunter v. Schroeder, 186 Ga. App. 799 (368 SE2d 561) (1988) and Ingram v. Star Touch Communications, 215 Ga. App. 329 (450 SE2d 334) (1994), this Court reversed awards of attorney fees made after the parties had settled their claims. In Hunter, supra, after the parties entered a consent order mutually dismissing with prejudice their claims against each other, the trial court awarded attorney fees to defendants. Id. at 799. This Court concluded it was not a purpose of OCGA § 9-15-14 to permit recovery of attorney fees when a claimant had “induced,” via mutual dismissal, the dismissal of the opposing party’s claims or defenses. Id. at 800. There, the defendant had obtained plaintiff’s agreement to dismiss with prejudice “by consenting to and proclaiming by court order that the mutual dismissals [were] a fair and reasonable settlement of all claims . . . under all the facts and circumstances of [the] case.” (Punctuation omitted.) Id. Similarly, in Ingram, the claimant for attorney fees “induced dismissal with prejudice by settlement.” Id. at 330.

In this case, Green did not so induce dismissal of appellants’ case against it. Any “mutual dismissal” occurred between appellants and Morris, Green’s co-defendant. Regarding Green, the consent judgment entered by the court and signed by counsel for appellants and for Morris recites only that appellants agreed to dismiss their complaint against Green as a condition of settlement between appellants and Morris. Unlike Hunter, supra at 800, in which mutual dismissals eliminated “all claims . . . under all the facts and circumstances of [the] case,” Green’s claim for attorney fees was not eliminated by the consent judgment between appellants and Morris, and Green therefore was entitled to pursue its claim for attorney fees.

Green’s dismissal of its counterclaim on the same date that appellants dismissed their case with prejudice and the consent judgment was entered does not demand a contrary result. Nowhere does the record indicate that dismissal of the counterclaim was a condition of appellants’ dismissal with prejudice of their claim against Green. The counterclaim was dismissed because counsel for Green had correctly realized that a counterclaim was not the appropriate procedural vehicle for recovery of attorney fees under OCGA § 9-15-14. See McCullough v. McCullough, 263 Ga. 794, 795 (3) (439 SE2d 486) (1994); Hutchison v. Divorce & Custody Law Center of Arline Kerman & Assoc., 207 Ga. App. 421 (427 SE2d 784) (1993). Though Green benefitted from the negotiations between Morris and appellants, it was not a party to the settlement and did not induce appellants’ dismissal. To find otherwise could produce the inequitable result that the negotiations of two parties to a lawsuit could extinguish the right of a third party to seek attorney fees. Under these particular facts, therefore, Green was entitled to move for an award of attorney fees even though the underlying dispute had settled.

2. Having determined that Green properly moved for attorney fees, we address whether USCR 6.2 applies to a motion under OCGA § 9-15-14. Georgia courts have not addressed this narrow issue. USCR 6.1 by its terms applies to motions in civil cases made “prior to trial.” USCR 6.2, regarding reply, provides: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” Application of the latter rule to the response to the motion for attorney fees in this case presents a somewhat anomalous issue, as no trial ever occurred.

Though our appellate courts have not addressed application of Rule 6.2 to motions for attorney fees, the effect of the rule on other motions has been examined. In Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 597 (6) (448 SE2d 913) (1994), involving a motion for supersedeas bond, the court found that Rule 6.2 applied to pretrial motions “by its terms.” Id. at 597 (6). Rule 6.2 consequently did not “govern post-trial motions for supersedeas bonds. ...” Id. This case differs from Cloud in at least three respects. Here, unlike Cloud, there was no actual trial to use as a benchmark for determining which events were “pre-trial” and which “post-trial.” Also, though Green dismissed its counterclaim against appellants, the dismissal was “without prejudice”; the possibility of further litigation was contemplated. Finally, the motion in Cloud was a post-trial motion in which the trial court’s jurisdiction was limited, and the procedure to be followed was prescribed by OCGA § 5-6-46. See also OCGA § 5-6-35; Fulton Paper Co. v. Reeves, 212 Ga. App. 314, 315 (1) (441 SE2d 881) (1994). Under these circumstances, we are not bound by the ruling in Cloud.

A more nearly analogous situation was presented in Valhalla, Inc. v. O’Donnell, 199 Ga. App. 679 (405 SE2d 895) (1991). O’Donnell filed a motion to enforce settlement, and Valhalla waited until the day before the hearing, nearly five months after the motion was filed, to serve O’Donnell, by certified mail, with its opposing response and affidavit. Id. at 680. Valhalla filed the response and affidavit on the day of the hearing. The trial court refused to consider the late-filed evidence. Id.

In Valhalla, as here, no trial occurred. In both cases, the parties settled their underlying disputes. Nevertheless, in Valhalla, as in this case, post-settlement litigation followed. On appeal, the court in Valhalla did not rely solely on Rule 6.2 to affirm the trial court’s refusal to consider late-filed evidence. It looked to subsections .(c) and (e) of the summary judgment statute, OCGA § 9-11-56, regarding time of service of opposing affidavits and the filing of affidavits with the court. Valhalla, supra at 680. The court determined that these subsections “must be read in conjunction with” OCGA §§ 9-11-5 (d) and 9-11-6 (d), which directed that opposing affidavits be served and filed “not later than one day before the hearing” unless otherwise permitted by the court. Id. at 680. Relying on these provisions and stating that the trial court had discretion to determine whether to consider the affidavits, the court affirmed the trial court’s refusal to consider the late-filed evidence. Id. at 680-681.

Just as the trial court has discretion regarding admission of late-filed evidence, it has discretion regarding admission of oral testimony. OCGA § 9-11-43 (b) provides: “When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions; provided, however, that this provision shall not limit the right of parties to use depositions where they would otherwise be entitled to do so.” (Emphasis supplied.)

In Johnson v. Aetna Finance, 139 Ga. App. 452 (228 SE2d 299) (1976), plaintiff notified defendant that a hearing would be held on his motion for summary judgment, but the trial court did not direct that the motion would be heard on oral testimony. Id. at 453. Though no transcript of the hearing before the trial court was before this Court, it appears that oral testimony was admitted during the hearing. Id. at 452. On appeal, citing former Ga. Code Ann. §§ 81A-143 (OCGA § 9-11-43) and 81A-106 (d) (OCGA § 9-11-6 (d)), this Court noted that no notice or direction was given by the lower court that the case would be heard orally, and affidavits served later than one day before a summary judgment hearing are barred. Id. at 453. Because the defendant was not provided such notice, the trial court’s grant of summary judgment to plaintiff was reversed. Id. at 453-454.

As in Johnson, the trial court in this case did not direct that the motion be heard on oral testimony, “which is a requirement of Code Ann. § 81A-143 [OCGA § 9-11-43].” Id. at 453. There was “neither an agreement to hear this case on oral testimony nor an order of the trial judge notifying the parties . . . that this matter would be heard on oral testimony.” (Punctuation omitted.) Id. at 454. The trial court properly exercised its discretion: Green had filed its motion, complete with supporting affidavits and a deposition, and its argument was clearly set forth for appellants’ perusal. Appellants, benefitting from knowing the basis of Green’s argument, completely withheld their response. They gave Green no inkling of their position and arguments. If the oral testimony had been allowed, the principle of notice that lies at the heart of our system of pleading would have been violated. “Our notice pleadings provide that the opposing party be notified as to what is going on.” Johnson, supra at 453. Had appellants been allowed to present oral testimony and affidavits at the hearing, this conduct most certainly would have prevented Green from “knowing what was going on.” This would have been unfair to Green, since appellants had been thoroughly enlightened as to Green’s position.

Remedies under OCGA § 9-15-14 are now available not only after final disposition of an action but during the course of litigation; a motion may be filed “at any time during the course of the action but not later than 45 days after the final disposition of the action.” OCGA § 9-15-14 (e). A ruling that USCR 6.2 does not apply to motions for attorney fees under OCGA § 9-15-14 could yield inconsistent results: A respondent to a motion for attorney fees made prior to trial would have 30 days to respond, while a respondent to such a motion made after trial could ignore the deadline with impunity, as did appellants.

Appellants were not without opportunity to be heard. They had 30 days from the filing of the motion and accompanying evidence to respond. Moreover, counsel for appellants was allowed to make arguments based upon evidence already of record in the case. Accordingly, under the facts of this case, the trial court did not err in applying USCR 6.2 and refusing to permit testimony at the hearing on Green’s motion for attorney fees brought under OCGA § 9-15-14.

3. Appellants claim the evidence did not support an award of attorney fees. We disagree. OCGA § 9-15-14 (b) provides for assessment of attorney fees and expenses if the trial court “finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.”

By warranty deed recorded June 24, 1993, Morris conveyed eight tracts of property in Forest Lakes Subdivision to appellee Green. Appellants’ complaint for declaratory judgment against Green, filed after the conveyance by Morris to Green, alleged that a dwelling under construction by Green violated certain protective and restrictive covenants in that the structure did not meet minimum dwelling size and setback requirements and that the garage opened to the street side. A corrective warranty deed was drafted and filed on August 25, 1993, specifying that the restrictive covenants be amended in accordance with the “Plan Approval” dated July 23, 1993, and executed by Morris. The Plan Approval amended the covenants regarding dwelling size, setbacks, and garage entrances. Almost immediately upon the filing of the corrective warranty deed, appellants did not contest the validity of the deed but instead amended their complaint to add Morris as a defendant, alleging that he “established a general building scheme and development plan relating to the quality and size of homes to be built throughout Forest Lakes Subdivision, said general building scheme and development plan being outlined in the Protective Covenants applicable to plaintiffs’ properties.” They further contended that Morris made oral representations to them they had relied upon, along with “other evidences” of the general building scheme.

Decided November 2, 1995.

Reinhardt, Whitley & Wilmot, Robert C. Wilmot, for appellants.

Herbert W. Benson, for appellee.

The trial court’s award of attorney fees is supported by ample evidence. Evidence was before the court that several appellants also were in direct violation of the covenants which they contended applied to their properties; yet, they complained about the dwelling under construction by Green. Also, evidence showed that lots in the subdivision had been sold by Morris in a piecemeal fashion over the years. With a “minimum amount of diligence,” a review of public records, as well as their own deeds, would have revealed to appellants that no “general building scheme” existed, belying their contentions in their complaint. See Bankhead v. Moss, 210 Ga. App. 508, 510 (436 SE2d 723) (1993). Furthermore, appellants represented that Morris had led them to believe when they bought their property that the subdivision would be so developed, but many of the appellants did not even purchase their land from Morris.

There is evidence that appellants unnecessarily “expanded the proceedings.” They refused to attend a scheduled hearing on the issue of attorney fees, thereby causing Green to incur more fees through the filing of a motion. Appellants did not respond to this detailed motion and accompanying evidence and instead attempted to benefit from knowledge of Green’s arguments and evidence, while concealing their own positions until the hearing itself.

The record clearly supports the trial court’s award under the “abuse of discretion” standard applicable to OCGA § 9-15-14 (b) and the “any evidence” standard applicable to subsection (a) of the statute. The trial court’s award of attorney fees is therefore affirmed. See Bankhead, supra; Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

Judgment affirmed.

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

       OCGA § 9-11-56 (c) provides in part that the opposing party on a motion for summary judgment may serve affidavits “prior to the day of hearing.” Subsection (e) provides in part that affidavits “shall be filed with the court and copies thereof shall be served on the opposing parties.”


text:
    A95A1813.
    THE STATE v. GILMAN.
    (463 SE2d 720)
   Beasley, Chief Judge.

Gilman was indicted for possession of cocaine with intent to distribute. QCGA § 16-13-30 (b). Pursuant to OCGA § 5-7-1 (a) (4), the State appeals from the grant of his motion to suppress evidence seized in a search. The court ruled after hearing argument at the close of the State’s evidence, before Gilman presented any evidence.

A confidential informant telephoned Officer Watson of the Warner Robins Police Department at about 7:00 p.m. and told him Gilman would be traveling from his job at a car dealership to “Friends on the Hill,” a cocktail lounge, while in possession of a quantity of cocaine. The informant also said Gilman was wearing a yellow shirt, got off work at 8:00 p.m., and would possibly be driving a Camaro. Watson had known the informant for approximately four months and had spoken with him on at least ten occasions. The prior conversations had led to one incident that produced an arrest and the recovery of some marijuana and cash; the information the informant had given on the other occasions also concerned drug activity and had been verified by the police but had not produced arrests. The informant was facing criminal charges for non-drug offenses.

Watson and another officer drove to a location from which they could observe the car dealership and saw a man (Gilman) wearing a yellow shirt. He left the dealership driving a Camaro, proceeded onto the interstate, and exited onto a road that led to the cocktail lounge. While Gilman was in transit, Watson contacted Officer Roundtree, who stopped the Camaro before it reached the cocktail lounge. Roundtree asked Gilman to consent to a search of his person and the car, which Gilman did. Two plastic bags containing cocaine were found in his pocket, and Roundtree arrested him.

Gilman was taken to a Warner Robins police facility and interviewed. After being advised of his rights, he told the officers he had more cocaine at his home in Bleckley County. Watson and an agent from the Georgia Bureau of Investigation went with Gilman to the vicinity of his home where, to keep the fact of his arrest from his wife, he was allowed to go alone and retrieve the additional cocaine. He shortly returned to the officers with two more packages of cocaine. It is the indictment for possession of these last two packages which has resulted in this appeal.

During the hearing, the court questioned Watson about how the informant knew Gilman would have cocaine when he left the dealership. Watson answered that the informant had seen the cocaine at the dealership that day but to answer further would reveal the informant’s identity. The court, citing Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), ruled the State had not shown the police had probable cause to stop Gilman because no evidence was presented about how the informant knew Gilman would have cocaine in his possession. The court reasoned that the cocaine found in the search, and the cocaine later produced by Gilman, resulted from an illegal detention and must be suppressed. See Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988).

“In Illinois v. Gates, [supra], the United States Supreme Court replaced the “two-pronged” test of Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) with a more flexible ‘totality-of-the-circumstances’ test, under which the existence of probable cause is determined by whether, ‘given all the circumstances . . . , including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ Illinois v. Gates, supra, 462 U. S. at 238. [Cit.]” State v. Watson, 205 Ga. App. 313, 314 (422 SE2d 202) (1992). Here, the court focused on the State’s need to make a showing about the informant’s “basis of knowledge.” The court also expressed some concerns about the informant’s reliability, in light of the fact that ten communications had produced only one arrest.

In finding probable cause lacking, the court applied a more strict standard than the law requires. If the traffic stop was valid and Gilman’s consent freely and voluntarily given, the motion should have been denied. See State v. Holton, 205 Ga. App. 434, 435-437 (1) (422 SE2d 295) (1992). “[P]robable cause is not . . . necessary to justify a brief investigative stop of an automobile. ‘An individual’s freedom to use public highways is circumscribed by the state’s police power where the officer has specific and articulable facts which warrant a stop of the vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. [Cit.] “(W)hat is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. (Cit.)” [Cit.]’ [Cit.]” Watson, supra at 314.

The fact that Roundtree did not himself receive the information from the informant but acted on information Watson gave him does not prevent the composition of a reasonable articulable ground to support the stop. See Beck v. State, 216 Ga. App. 532, 534-535 (1) (455 SE2d 110) (1995). The officers had received information from an informant who was known to them and thus had more indicia of reliability than if he had been an anonymous tipster. Compare Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990). See Beck, supra at 535 (1); Bentley v. State, 214 Ga. App. 580, 582 (2) (448 SE2d 479) (1994); Burse v. State, 209 Ga. App. 276, 277 (433 SE2d 386) (1993). In fact, the informant’s previous information had led to a drug arrest. He had related that he had seen the cocaine that very day at the dealership. The police had confirmed his statements about Gilman’s attire, work place, time of leaving, and expected movements from the car dealership. See Éeck, supra; Bentley, supra; Watson, supra. Under these circumstances, the police were justified in making the investigatory stop of Gilman’s vehicle.

Decided November 2, 1995.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellant.

Franklin J. Hogue, for appellee.

The cases Gilman relies upon for a contrary conclusion do not apply. State v. Bryant, 210 Ga. App. 319 (436 SE2d 57) (1993), required probable cause to support the search warrant, not articulable suspicion. VonLinsowe v. State, 213 Ga. App. 619 (445 SE2d 371) (1994), was decided not on the basis of information given by the anonymous informant and verified by the police but upon the issue of consent to search.

In view of the recited circumstances, Roundtree’s uncontradicted testimony that Gilman had consented to the search, and Watson’s testimony that he voluntarily produced the additional cocaine, the court erred in granting Gilman’s motion to suppress.

Judgment reversed.

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

       Gilman’s motion stated he gave consent to search his car but did not specifically state he had consented to a search of his person.


author: Johnson, Judge.

text:
    A95A1042.
    INTERSTATE DEVELOPMENT SERVICES OF LAKE PARK, GEORGIA, INC. v. PATEL.
    (463 SE2d 516)
   Johnson, Judge.

Interstate Development Services of Lake Park, Georgia, Inc. (IDS), sued one of its founding partners and shareholders, Vijay Patel, for breach of a promissory note and breach of an agreement to make certain payments to IDS. Patel counterclaimed for, among other things, lost profits from IDS’s failure to erect billboard advertising on its land. The case went to trial before a jury, which awarded IDS $232,382 on its claims and also awarded Patel $232,382 on his lost profits counterclaim. The trial court entered final judgment on the jury verdict. IDS appeals.

IDS correctly asserts that there is no evidence supporting the verdict and judgment on Patel’s lost profits counterclaim. A business owner may recover lost profits only if the business has a proven track record of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have been. Empire Shoe Co. v. NICO Indus., 197 Ga. App. 411, 414 (2) (398 SE2d 440) (1990); Stern’s Gallery &c. v. Corporate Prop. Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). The evidence in the present case shows that IDS had no history of profits and had actually lost money for the few years it had been in existence prior to the trial. “Where, as here, the evidence shows the claimant was a new business with no history of profits and, in fact, was operating at a loss, the loss of prospective profits ... is too remote and speculative to support a recovery of damages. [Cit.]” Springwell Dispensers v. Hall China Co., 204 Ga. App. 245, 246 (419 SE2d 112) (1992).

Decided October 20, 1995

Reconsideration denied November 3, 1995

W. Orson Woodall, William A. Turner, Jr., for appellant.

Bennett, Wisenbaker & Bennett, Michael S. Bennett, Sr., Michael S. Bennett, Jr., for appellee.

Patel’s reliance on Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993), is misplaced because unlike the claimant in that case, Patel did not present any evidence of the exact cause and amount of his alleged lost profits. Because IDS had no track record of profits, the jury’s award of lost profits to Patel was entirely speculative and must be reversed. See Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223, 226-227 (5) (366 SE2d 826) (1988).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1629.
    DEPARTMENT OF HUMAN RESOURCES v. SIGGERS.
    (463 SE2d 544)
   Smith, Judge.

Sherwood Lamar Siggers brought an action in the Superior Court of Coweta County against June Kelly Siggers, seeking modification of child support. On November 3, 1993, after a hearing, the superior court set the amount of support to be paid by Mrs. Siggers at $10 per week. The superior court specifically found that the financial information submitted by Mr. Siggers was “not credible.”

Mr. Siggers apparently did not seek to appeal this order. Instead, only 15 days later, he requested review of the superior court order by the Georgia Department of Human Resources under OCGA § 19-11-12. DHR reviewed the superior court order, disregarded the court’s earlier findings, and ordered Mrs. Siggers to pay $425.41 per month in child support, based solely on the percentage guidelines set forth in OCGA § 19-6-15.

Mrs. Siggers filed a petition for judicial review to contest DHR’s decision. The superior court reversed, holding that DHR did not have the authority to establish child support because a court order already existed. The superior court also held that DHR’s decision must be reversed in the absence of a finding of need for additional support for the child. This Court granted DHR’s application for discretionary appeal. We affirm the decision of the superior court.

The statute governing judicial review of agency orders, OCGA § 50-13-19, permits the superior court to reverse or modify an agency decision if, among other things, the administrative findings are “(2) [i]n excess of the statutory authority of the agency; (3) [m]ade upon unlawful procedure.” OCGA § 50-13-19 (h). For several reasons, we conclude that the superior court properly reversed DHR’s decision in this case. DHR’s review and modification of the child support order were in excess of DHR’s statutory authority and based upon unlawful procedure.

DHR relies on OCGA § 19-11-12 (b) for the authority to modify all “IV-D” child support orders, whether originating in a parental request or on its own initiative. The Georgia Supreme Court has authorized DHR to bring a legal action in the superior court to modify child support obligations. Allen v. Ga. Dept. of Human Resources, 262 Ga. 521, 523 (1) (423 SE2d 383) (1992). We conclude, however, that OCGA § 19-11-12 does not authorize extrajudicial agency review of a court order, as DHR here contends. The relevant Code section clearly states: “The department shall implement a process for the periodic review and adjustment of IV-D child support agency orders.” (Emphasis supplied.) OCGA § 19-11-12 (b). This appears to authorize review and adjustment only of a “IV-D agency decision” as defined in Rule 290-7-1-.03 (n): “the administrative decision of the DHR, Office of Child Support Recovery,” and not a court order.

Other provisions of the Child Support Recovery Act, OCGA § 9-11-1 et seq., make this distinction clear. The definitive Code section explicitly identifies and defines a “[c]ourt order for child support,” OCGA § 19-11-3 (1), but that term is not used in OCGA § 19-11-12. OCGA § 19-11-10 (a) authorizes DHR investigation of a parent’s ability to support a dependent child and authorizes DHR to determine parental ability to support, using procedures described in OCGA § 19-11-12. OCGA § 19-11-10 (a) specifically provides, however, that such investigation shall be undertaken “[i]n cases in which a parent’s obligation to support has not already been established by a court order.” (Emphasis supplied.)

The extensive regulations governing agency review of existing court orders cited by DHR in support of its position are not persuasive in the absence of statutory authority. “[A]n administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid. [Cits.]” Dept. of Human Resources v. Anderson, 218 Ga. App. 528 (462 SE2d 439) (1995).

Moreover, allowing the DHR to review modification orders entered by the superior courts creates several major problems from the standpoint of public policy and orderly judicial administration. Because the statutory scheme for review of administrative decisions severely limits the power of the superior court to review agency findings, DHR’s position in effect gives it the power to overrule an existing superior court order by administrative fiat. Judicial review of a DHR decision under OCGA § 19-11-12 is limited by the terms of OCGA § 50-13-19 (g) to the record made before the agency, and the superior court is bound by the findings of fact of the agency: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). See also DHR Rule 290-7-1-.06 (5) (b). The effect of DHR’s proposed interpretation of OCGA § 19-11-12 is obvious: DHR may, as it did in this case, ignore the findings of fact of a superior court made only a few days before agency review was initiated and, in effect, substitute its judgment for that of the superior court.

DHR’s proposed interpretation of OCGA § 19-11-12 also creates conflicts with other statutory requirements. For example, OCGA § 19-11-12 (b) provides that DHR shall review IV-D child support agency orders no later than 36 months from establishment or from the most recent review. DHR contends this provision allows a parent or DHR to seek modification of an existing order at any time, even, as here, a few days after the entry of a modification order in a superior court. This interpretation, however, conflicts directly with the time restrictions placed upon modification actions by OCGA § 19-6-19 (a).

OCGA § 19-6-19 (a) provides in pertinent part: “No petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse.” At least one purpose of the two-year limitation in OCGA § 19-6-19 (a) is to protect parents from excessive litigation over the same issues. Griffin v. Griffin, 248 Ga. 743 (285 SE2d 710) (1982). Under OCGA § 19-6-19 (a), Mr. Siggers would not have been allowed to request another modification from the court until November 1995.

“It is well-established that all enactments are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts, and that we should look diligently for the intention of the General Assembly, keeping in view the old law, the evil, and the remedy. OCGA § 1-3-1 (a).” (Citations and punctuation omitted.) Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236, 237 (407 SE2d 464) (1991). The legislature cannot have intended OCGA § 19-11-12 to provide a method for parents to circumvent the time limitations of OCGA § 19-6-19 (a) for modifying a court order. Such an interpretation of OCGA § 19-11-12 would frustrate the goal of preventing excessive, repetitive, and harassing disputes over the sensitive and emotional issue of child support. In Taylor v. Taylor, 182 Ga. App. 412 (356 SE2d 236) (1987), this Court held that a juvenile court order modifying custody barred a petition for modification of child support for two years, citing the legislative intent of OCGA § 19-6-19 (a) set forth in Griffin and observing, “That purpose would be subverted if serial litigation were encouraged.” Id. at 413. A litigant may not be permitted to do indirectly what the law forbids him to do directly. Dept. of Human Resources v. Lewis, 217 Ga. App. 399, 400 (457 SE2d 824) (1995).

In its decision, DHR also failed to make a finding of a change in financial circumstances, as required by OCGA § 19-6-19 (a) and its own regulations. The proper purpose of a modification action is to decide whether the existing child support comports with the current financial circumstances of the parties involved; parents must demonstrate a change in financial circumstances in order to modify an award. Howard v. Howard, 262 Ga. 144, 145 (1) (414 SE2d 203) (1992); see also OCGA § 19-6-19 (a). If parents, through DHR, were allowed to modify a court order pursuant to OCGA § 19-11-12 at will without such a showing, they would never choose to proceed under OCGA § 19-6-19 where their burden is greater.

Additionally, DHR failed to abide by its own rules requiring a determination of “whether a change in circumstances exists necessitating modification of a IV-D order.” Rule 290-7-1-.06 (2). In DHR modifications of child support orders, like those brought under OCGA § 19-6-19, no need exists to modify an order unless there has been a change in financial circumstances. See, e.g., Allen v. Dept. of Human Resources, supra at 523-524 (2) (interpreting OCGA § 19-11-8 (b) to authorize DHR to file modification actions on behalf of children not receiving public assistance only when DHR can show child’s need for additional support).

Finally, DHR’s contention that it has the power to overrule a superior court modification order serves none of the stated purposes of the Child Support Recovery Act. “OCGA § 19-11-12 was enacted pursuant to congressional mandate that the states periodically examine existing child support orders to address any inequities in the establishment of support obligations.” Dept. of Human Resources v. An derson, supra. The purpose of DHR review is to ensure that public assistance to needy children is a supplement to parental support, to provide for a determination of parental ability to support, and to provide for enforcement of parental support. OCGA § 19-11-2 (a). None of these concerns is implicated here. The ability of Mrs. Siggers to support her child had already been determined by the superior court, no evidence was offered that the dependent child required public assistance, and the only evidence presented showed that Mrs. Siggers was current on her child support payments.

Decided November 3, 1995

Wood, Odom & Edge, Gus L. Wood III, Sara L. Mimbs, for appellee.

Construing OCGA § 19-11-12 in the manner urged by DHR would allow administrative decisions to contradict, interfere with, and delay the application of lawful court orders. It would allow parents to avoid both the change in financial circumstances requirement and the time limitations of OCGA § 19-6-19 (a) for modification of child support, and it would allow them to continue litigation on this issue indefinitely. Even after a superior court order was modified by DHR and once again reviewed in the superior court, a dissatisfied parent could return to DHR at once and begin the entire process anew. Those motivated by spite or the desire to win at all costs could embroil their former spouses in hearings before DHR forever, or at least until all children of the marriage attained majority. The waste of time, resources, and energy is apparent.

We conclude that DHR’s administrative modification of Mrs. Siggers’ court-ordered child support was in excess of DHR’s statutory authority and made upon unlawful procedure in violation of OCGA § 50-13-19 (h) (2) and (3). The decision of the superior court reversing the administrative findings of DHR is therefore affirmed.

Judgment affirmed.

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

       Under the original divorce decree, Mrs. Siggers was also required to maintain health and medical insurance for the benefit of the child of the marriage, now almost 16 years old.

       DHR Rule 290-7-1-.03 (m) defines a IV-D order, in pertinent part, as “any order or judgment of a court of this state ... or any final administrative decision of this state issued under O.C.G.A. § 50-13-1 et seq.”

       In Anderson, this Court declined to consider the validity of OCGA § 19-11-12. Id. at note 2.


text:
    A95A1873.
    THE STATE v. WHITFIELD.
    (463 SE2d 728)
   Smith, Judge.

The State appeals from the trial court’s grant of a motion to suppress in this DUI case. The basis for the motion was that the evidence failed to show the arresting officer had the required reasonable and articulable suspicion to make an initial investigative stop of the driver, Whitfield. See Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979); State v. Thomason, 153 Ga. App. 345, 346-347 (265 SE2d 312) (1980).

The only testimony at the suppression hearing was from the arresting officer, a member of a DUI task force. The officer testified he saw Whitfield’s vehicle weave, and he observed the body of Whitfield’s vehicle move completely over “the fog line,” the white solid line on the right side of the lane. After the officer activated his blue lights, Whitfield failed to stop immediately, made a right turn onto another road, and drove to his home where he parked in the yard. The officer testified that based on his experience and training, when he observes a vehicle that is unable to stay in its lane, such conduct alerts him that further investigation of the driver may be needed. He also indicated that prior to arresting Whitfield, he thought the manner in which Whitfield drove through his front yard to park his vehicle was “odd.”

Whitfield was arrested for failure to maintain lane, OCGA § 40-6-48, and DUI, OCGA § 40-6-391 (a). After granting Whitfield’s motion to suppress all the evidence obtained by the arresting officer, including the field sobriety tests and chemical tests, the court ordered the entire case dismissed.

The State’s sole enumeration of error is that the trial court improperly granted Whitfield’s motion to suppress because the officer had sufficient articulable suspicion to warrant stopping Whitfield’s vehicle. We agree and reverse.

An officer may conduct a brief investigatory stop of a vehicle if such stop is justified by “specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Evans v. State, 216 Ga. App. 21, 23 (2) (453 SE2d 100) (1995). The specific articulable suspicion must be based on the totality of the circumstances — objective observations, known patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel. See Cheatham v. State, 204 Ga. App. 483, 484 (419 SE2d 920) (1992). In this case, the officer was a specially trained and experienced DUI task force member assigned to a DUI suppression unit. He testified that he considered the maneuvering of Whitfield’s truck significant in light of his DUI experience and that Whitfield’s vehicle was not traveling entirely within its lane. The officer’s testimony is uncontested regarding Whitfield’s erratic driving. The officer stated he followed Whitfield for a total distance of approximately one mile and observed no other violation of the law. He further testified that after he flashed his blue lights, Whitfield failed to yield. However, the fact that Whitfield failed to stop after the officer flashed his blue lights is not relevant to the determination of whether the officer had specific and articulable facts to justify stopping Whitfield, since the objective facts must be present before the officer initially flashes his lights. Prouse, supra.

Decided November 3, 1995

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellant.

Albert B. Wallace, for appellee.

In Pupo v. State, 187 Ga. App. 765, 766 (371 SE2d 219) (1988), we determined that an officer’s observation of a motorist’s “weaving” could serve as sufficient reason to warrant an investigative stop for a possible DUI violation. See Ramirez v. State, 192 Ga. App. 255, 256 (384 SE2d 279) (1989). Based on the officer’s undisputed testimony that Whitfield failed to remain within his lane, we find the officer had specific and articulable facts on which to base a brief investigative stop.

The court questioned counsel regarding what conduct on Whitfield’s part was unsafe and implied that unless Whitfield were convicted of a crime or driving violation, the officer could not have properly stopped Whitfield for driving under the influence. We rejected a similar analysis in McConnell v. State, 188 Ga. App. 653, 654 (374 SE2d 111) (1988). “If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.” Id. Thus, even if Whitfield is acquitted of the failure to maintain lane charge, as long as the officer acted in good faith, his investigative stop is not rendered improper.

Because we are unable to conclude the officer’s investigative stop lacked a reasonable, articulable basis for suspicion that the driver might be under the influence of alcohol, we reverse. See State v. Adams, 186 Ga. App. 87, 88 (366 SE2d 326) (1988); State v. Noble, 179 Ga. App. 785, 786 (347 SE2d 722) (1986); State v. Peacock, 178 Ga. App. 96, 97 (342 SE2d 364) (1986).

Judgment reversed.

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

       The trial judge in this case also was the trial judge in Adams, Noble, and Peacock.


author: Blackburn, Judge.

text:
    A95A2509.
    VAUGHN et al. v. PLEASENT et al.
    (463 SE2d 548)
   Blackburn, Judge.

William A. Vaughn, Jr., an Atlanta police officer, and his wife appeal the defense verdict entered in their action for personal injury and loss of consortium, asserting that the trial court erred in making various evidentiary determinations and in charging the jury on assumption of the risk.

On August 3, 1991, Officer Vaughn responded to an emergency call, turning on his siren, blue roof lights and flashing headlights. As Officer Vaughn headed south on Sylvan Road, approaching its intersection with Victory Drive, he noticed that the traffic light facing him was green and that a pickup truck with a large, white trailer hitched to it was stopped at the intersection on the right side of the road. The trailer’s signal was not flashing so as to indicate an intent to turn. Officer Vaughn, upon seeing that all traffic was stopped and that his light was green, crossed the yellow centerline to go around the trailer and proceed through the intersection. By Officer Vaughn’s own admission, he accelerated for approximately ten seconds before entering the intersection and was traveling in excess of the speed limit.

At the time Officer Vaughn reached the intersection, defendant Henry Douglas Pleasent, the driver of the pickup truck pulling the trailer, began turning left directly into Officer Vaughn’s path. Officer Vaughn attempted to, but could not, avoid the collision that ensued. It was later learned that Pleasent had just purchased the trailer and that its rear lights, including turn signals, had not yet been hooked up and were inoperable. Vaughn sued both Pleasent and the party who sold him the trailer, advising Pleasent to drive it without hooking up the lights.

1. The Vaughns first assert that the trial court erred in not permitting or striking certain portions of testimony from an off-duty law enforcement officer who witnessed the accident. Deputy Walton Starling of the Gwinnett County Sheriff’s Department was heading north on Sylvan Road, approaching Victory Drive, when he saw Officer Vaughn approaching from the opposite direction. He pulled over to yield to Officer Vaughn’s emergency vehicle and witnessed the crash. Sustaining the objection that the evidence would be speculative, the trial court would not permit Starling, who was traveling from the opposite direction, to testify as to whether Officer Vaughn could have seen the taillights on the pickup truck pulling the trailer. The Vaughns assert that this testimony was permissible under Witt v. Robbins, 163 Ga. App. 182 (292 SE2d 894) (1982).

In Witt, we held that the trial court erred in refusing to allow a witness to a car crash to offer his opinion about the color of a traffic light that he could not actually see. The crash in Witt occurred at a complicated intersection with a delayed lighting scheme. The witness was a relay driver for a business. He lived near the intersection and drove through it daily for a period of years. Even though he was traveling in a direction different from that of the car causing the crash, he offered testimony about who had the right of way based on his observation of the collision and his familiarity with the intersection’s particular traffic light scheme. The trial court would not permit the testimony. On appeal we held that: “ [h] is knowledge and experience of driving and of the traffic pattern of this intersection removed the testimony from the merely conclusory speculative or hearsay field. It was error to exclude it.” Id. at 184.

The circumstances that led to the decision in Witt were unusual and are not present in the case at hand. Starling was not asked to testify about a condition he was intimately familiar with; he was asked to testify as to what another driver traveling from another direction could or could not have seen at a specific moment. Under these circumstances, it was not improper to exclude this testimony as speculative, especially in light of the fact that Starling could not describe with specificity the V-shaped angle of the trailer in relation to the truck.

Further, even if this evidence was proper, the Vaughns were not harmed by its exclusion as Officer Vaughn himself testified as to precisely when he first saw the truck. “We will not. . . reverse a case for error unless it is shown that the error is harmful, and evidence is harmless where evidence of the same fact has been admitted and is legitimately before the jury.” Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 709-710 (423 SE2d 387) (1992).

Similarly, we reject the Vaughns’ contention that the trial court erred in not permitting Starling to offer an opinion as to the appropriateness of Officer Vaughn’s speed and his decision to cross the centerline just prior to the collision. Our review of the record reveals that Starling testified as to these issues, stating that: “[b]ased on my experience and on my training, the degree of traffic that was present at the time, I don’t know of anything that Officer Vaughn could have or I would have done different [sic] than what he did.” Because the testimony in question would have been cumulative in nature, we find no harm was caused by the alleged error. Platt, supra.

2. The Vaughns assert that the trial court erred in charging the jury on the assumption of risk. “ ‘The defense of assumption of risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom; and (3) he voluntarily exposed himself to that risk.’ ” Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94 (449 SE2d 618) (1994). Officer Vaughn contends that because the trailer’s turn signal was not operable, he did not appreciate or assume the risk that the truck pulling the trailer would turn directly into his path. However, Officer Vaughn was aware of the risk involved in speeding through an intersection while traveling on the wrong side of the road. See McCrimmons v. Cornell-Young Co., 171 Ga. App. 561, 563 (320 SE2d 398) (1984) (injured plaintiff may not have been aware of the specific risk posed but “anticipated the risk inherent in the work he was doing and knowingly assumed that risk”); see also First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987) (“One cannot admit knowledge of the presence of a [minefield] but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it.”). As evidence supported the trial decision to instruct the jury on assumption of the risk, this enumeration is without merit.

Decided November 3, 1995

Robert Altman, for appellants.

Fain, Major & Wiley, Charles A. Wiley, Jr., Kim M. Jackson, Tittsworth, Grabbe & Spillers, John C. Grabbe IV, for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A0985.
    CHRISTENSEN et al. v. STATE OF GEORGIA et al.
    (464 SE2d 14)
   Johnson, Judge.

On May 20, 1994, Oda Christensen, Nora Sue Norris, and Kathyanne Piselli brought suit under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., against the State of Georgia, Department of Corrections (DOC), the State Board of Pardons & Paroles (“parole board”), the Department of Human Resources (DHR), and Georgia Mental Health Institute (GMHI). Christensen, Norris, and Piselli (to whom we will collectively refer as “plaintiffs”) alleged in their complaint that they were raped and assaulted, in separate attacks occurring in July and August 1991, by convicted rapist Gary Zachary, who was paroled on August 13, 1990. For the purposes of this opinion, we accept as true the allegations that Zachary committed these offenses against plaintiffs. In this complaint, the plaintiffs alleged gross negligence, recklessness, and wilful and wanton acts and omissions by the state entities. Specifically, they claimed that: (1) the parole board released Zachary without first placing him into a transitional program and then negligently supervised him during his parole; (2) DOC failed to provide Zachary with necessary medical, psychological, and psychiatric treatment and negligently supervised Zachary during his parole; and (3) DHR and GMHI denied Zachary’s request for emergency medical and psychiatric treatment. The State, the parole board, and DOC filed one motion to dismiss, and DHR and GMHI filed a separate motion to dismiss. The trial court granted both motions, concluding as a matter of law that the complaint should be dismissed in its entirety for failure to state a claim upon which relief may be granted.

1. Plaintiffs contend the trial court erred in denying their motion to strike the answer of DHR and GMHI. They also claim the court should have entered a default judgment against the same two entities. They base their argument on the fact that the complaint was filed on May 20, 1994, and DHR and GMHI did not respond until August 1, 1994. They insist that because the answer was not timely, they were entitled to a default judgment pursuant to OCGA § 9-11-55 (a). The trial court rejected this reasoning because it determined that plaintiffs could not show that the director of the Department of Risk Management had been served as required by OCGA § 50-21-35. Indeed, plaintiffs presented evidence that only the deputy administrator and not the director had been served. The trial court correctly concluded that because OCGA § 50-21-35 had not been satisfied, the time for DHR and GMHI’s answer had not commenced running and their answer and motion to dismiss filed on August 1, 1994, were timely.

2. Plaintiffs claim the court erred in ruling on their motions to strike the answer of DHR and GMHI and for entry of default judgment before the plaintiffs’ time to respond to DHR and GMHI’s response to said motions expired. Because, as discussed above, the court properly refused to strike the answer and enter default judgment, this enumeration is without merit.

3. Likewise, in light of our holding in Division 1 that DHR and GMHI’s motion to dismiss was timely, we reject plaintiffs’ arguments that the motion to dismiss was a nullity and that the trial court lacked authority to consider and rule on the motion.

4. Plaintiffs contend that because the trial court considered matters outside the pleadings in deciding DHR and GMHI’s motion to dismiss, it should have treated the motion as one for summary judgment and granted their request for a hearing before deciding the motion. Plaintiffs are partially correct. When the trial court considers matters outside the original pleadings, a motion to dismiss must be treated as a motion for summary judgment. Brooks v. Boykin, 194 Ga. App. 854, 855 (1) (392 SE2d 46) (1990). In converting a motion to dismiss into one for summary judgment, the court must give the parties an opportunity for a hearing as required by OCGA § 9-11-56. See Bonner v. Fox, 204 Ga. App. 666, 667 (420 SE2d 312) (1992). In the instant case, the trial court considered evidence submitted by DHR and GMHI with their motion to dismiss and found that Zachary had neither been evaluated nor admitted as a patient at GMHI. By considering this evidence, the court was required to treat the motion to dismiss as one for summary judgment, and it should have provided plaintiffs with the opportunity for a hearing. However, the error is not reversible absent a showing of harm. Sentry Ins. &c. v. Echols, 174 Ga. App. 541, 542 (1) (330 SE2d 725) (1985). “[Plaintiffs have] made no claim that there would have been any addition to the record or that a hearing would have changed the state of the record in any way. There has been no assertion that any briefs, affidavits, or other supporting documentation would have been filed . . . prior to the day of [the] hearing. Thus, even though [plaintiffs assert] harm as a result of the substantive ruling on [defendants’] motion, [they have] offered nothing to suggest that that ruling would have been any different if a hearing had been held.” (Citations and punctuation omitted.) Id. at 542-543 (1). Plaintiffs having shown no harm in being denied a hearing on the motion, no reversal is required. Premium Dist. Co. v. Nat. Dist. Co., 157 Ga. App. 666, 670 (2) (278 SE2d 468) (1981).

5. Plaintiffs assert that the trial court erred in deciding they lacked standing to challenge any alleged lack of mental health treatment or parole supervision given to Zachary by DOC, DHR, and GMHI. We agree with the trial court that plaintiffs lacked standing as to such claims.

As noted by the trial court, “a particular remedy is not available to a party who has no entitlement to the right sought to be secured.” Ragsdale v. New England Land &c. Corp., 250 Ga. 233, 234 (1) (297 SE2d 31) (1982). “[I]n order to maintain an action challenging ... an administrative action, . . . the plaintiff must show that interest or rights of such complaining party are affected by the . . . action of the agency. The simple existence of an adverse effect on the appellants is not in itself sufficient. Appellants must also show that it is the feature of the . . . administrative action which they seek to attack that was the direct cause of the injury.” (Citations and punctuation omitted.) Davis v. Jackson, 239 Ga. 262, 264-265 (236 SE2d 613) (1977). Plaintiffs cannot maintain an action challenging Zachary’s medical treatment by the named state agencies because they cannot show that the agencies’ acts or omissions in treating Zachary were the exact cause of their injuries. Instead, the uncontroverted evidence shows their injuries were caused by Zachary’s criminal acts.

Plaintiffs’ argument that they have standing under Swofford v. Cooper, 184 Ga. App. 50 (360 SE2d 624) (1987), is misplaced. Swofford does not even address the question of standing. Moreover, the plaintiffs in Swofford sued the psychiatrist, not the State or any of its agencies.

6. Plaintiffs assert that the trial court erred in concluding that regardless of whether anyone on GMHI’s staff ever evaluated Zachary, GMHI would be immune from liability. However, contrary to plaintiffs’ arguments, both GMHI and DHR indeed receive immunity under the assault and battery as well as the discretionary functions exceptions to the Georgia Tort Claims Act.

OCGA § 50-21-24 (7) provides: “The state shall have no liability for losses resulting from . . . [a]ssault [or] battery. ...” Plaintiffs argue that the assault and battery exception applies only where a state employee commits the assault or battery. But we rejected this construction of OCGA § 50-21-24 (7) in Ga. Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70 (456 SE2d 642) (1995), where a victim of a shooting by a juvenile who had been placed in the victim’s home by the state attempted to hold DHR responsible for her injuries. Hutchinson made plain that this immunity provision does not require that the state employee be the person committing the assault or battery. Id. at 71-73 (1). Likewise, OCGA § 50-21-24 (2) provides: “The state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” Even assuming that GMHI had wrongfully denied Zachary emergency medical or psychiatric treatment as plaintiffs allege, such conduct would be insulated by this section of the Georgia Tort Claims Act. A hospital employee’s decision in connection with admission or discharge of a patient is a discretionary act cloaked with immunity. See Roberts v. Grigsby, 177 Ga. App. 377, 379 (2) (339 SE2d 633) (1985). As we stated in Roberts, “[l]ike prison officials or probation officers, [hospital employees] clearly enjoy a qualified immunity” from liability to the public for claims arising from the performance of official governmental functions. Id. at 378 (1).

7. Plaintiffs contend the trial court erred in stating that the parole board’s decision to release Zachary was a quasi-judicial act immune from liability pursuant to OCGA § 50-21-24 (4) of the Georgia Tort Claims Act. We agree with the court’s conclusion that the parole board is immune, although not based upon the Tort Claims Act. Zachary was released on parole on August 13, 1990, before the Georgia Tort Claims Act was enacted. Therefore, the plaintiffs’ claims against the parole board must rely upon the provisions of the Georgia Constitution in force at that time and prior to the 1990 amendment to Art. I, Sec. II, Par. IX to Georgia’s Constitution. Under these standards, the State waived its sovereign immunity only to the extent of applicable liability insurance. It appears that the only liability insurance maintained by the State is a liability self-insurance trust fund which provides liability insurance for state employees. We have previously noted that a waiver of immunity “depends upon the presence of a claim in the action for which liability insurance protection has been provided and that if no employee is made a party defendant there will be no waiver.” (Citation and punctuation omitted.) Deaton v. Dept. of Corrections, 212 Ga. App. 612 (443 SE2d 8) (1994). Since plaintiffs failed to name any parole board employee as a defendant, there was no waiver of sovereign immunity, and the trial court properly dismissed all claims against that agency.

It is important to note that even if an employee had been made a party, we would find immunity. Even before the Georgia Tort Claims Act specified an exception for discretionary acts of public officials (OCGA § 50-21-24 (2)), this Court recognized such an exception. It was well established that “where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” (Citation, punctuation, and emphasis omitted.) Partain v. Maddox, 131 Ga. App. 778, 782 (1) (206 SE2d 618) (1974). Discretionary acts are those calling for the exercise of personal deliberation and judgment, which entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed, Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). “Absent evidence of malice, wilfulness, or corruption, a public officer is afforded immunity from liability to those who may be injured by the exercise of his discretion in the performance of his official duties. [Cit.]” McDay v. City of Atlanta, 204 Ga. App. 621, 622 (2) (420 SE2d 75) (1992). Decisions of the parole board officials concerning who should be paroled, when, and under what circumstances clearly involve the exercise of personal deliberation and judgment and fall within the ambit of discretionary acts. The parole board officials would, therefore, be afforded immunity.

8. Plaintiffs also claim the trial court erred in ruling that the state entities did not owe them any duty beyond the duty to protect the general public. They argue that the state agencies had a duty to exercise reasonable care to control Zachary so as to prevent him from harming others. However, they give no indication as to how the agencies reasonably could have controlled Zachary’s actions. Nor do plaintiffs cite any authority supporting their argument that DOC, the parole board, DHR, or GMHI has a duty to protect the public from parolees under their supervision. Even assuming, without deciding, that the agencies had such a duty, in addition to the standing and immunity problems addressed above, plaintiffs cannot overcome causation problems. Any breach of an alleged duty by state agencies was not the cause of the plaintiffs’ injuries. Their injuries were directly and proximately caused by the criminal acts committed by Zachary.

9. Because of our discussion in Divisions 5 and 6 that DHR and GMHI had immunity and the plaintiffs lacked standing to challenge Zachary’s treatment, we need not address the merits of the plaintiffs’ claim that the trial court erroneously considered DHR and GMHI’s evidence that Zachary had never been a patient or evaluated for treatment by GMHL

Decided November 3, 1995.

John F. Nebl, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Carol A. Cosgrove, John C. Jones, Daryl A. Robinson, Senior Assistant Attorneys General, for appellees.

10. Finally, the trial court’s dismissal of the State as a defendant was not error because following the dismissal of all the separate state agency defendants, no basis remained by which the State could have been held liable.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A2566.
    In re PITTS.
    (463 SE2d 550)
   Blackburn, Judge.

Joyce L. Rogers appeals the probate court’s dismissal of her petition to modify the guardianship of her elderly mother, Marian A. Pitts, an incapacitated adult.

Rogers sought to replace the Fulton County Department of Family & Children Services and Ann J. Herrera who had been appointed, respectively, as guardian of Pitts’ person and property. In her petition to modify guardianship, Rogers outlined her mother’s medical diagnosis and various health-care needs. The petition also reflected that Rogers had recently moved into her mother’s home and determined, without offering any specific figures, that the monthly allocation for her mother’s expenses was insufficient. Rogers’ petition also stated that her mother’s house needed “a significant amount of repairs and upgrades.” As her sole enumeration of error, Rogers asserts that the probate court erred in dismissing her petition without first conducting an evidentiary hearing.

Rogers’ petition was specifically premised upon OCGA § 29-5-9 (a) (3) which provides: “Upon the petition of any interested person ... a guardianship of the person or property of an adult ward may be modified or terminated, as appropriate, by the court. . . [b]y adjusting the guardianship order in the event of a significant change in the extent of the incapacity of the ward or the circumstances of the ward or the guardian.”

Decided November 3, 1995.

Richard G. Pechin, for appellant.

Russell & Herrera, Ann J. Herrera, William R. Jenkins, Ralph Mitchell, David S. Beale, for appellee.

The dismissal of Rogers’ petition was premised on OCGA § 29-5-9 (b) which empowers the probate court to dismiss, without conducting an evidentiary hearing, those petitions where the court determines “there is not probable cause to believe that there are grounds for modification or termination of the guardianship.” Rogers’ petition merely sets forth facts concerning the state of her mother’s health and finances. This factual recitation does not evidence a significant change in the extent of her mother’s incapacity or her circumstances since the appointment of her guardian.

As we agree with the probate court’s determination under OCGA § 29-5-9 (b) that Rogers’ petition failed to establish probable cause that the grounds necessary to seek a modification of guardianship exist, we find that the probate court did not err in dismissing Rogers’ petition without first conducting a hearing.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.