text:
    A96A0553.
    COOK v. ROWLAND.
    (472 SE2d 444)
   Birdsong, Presiding Judge.

O. Jackson Cook appeals the finding of the trial court holding him in contempt because he wilfully refused to comply with a previous order of the court, dated November 9, 1993, which required Cook to submit to a post-judgment deposition, to respond to Rowland’s post-judgment interrogatories, to respond to Rowland’s request for production of documents, and to pay Rowland’s attorney fees and costs in connection with the motion to compel. This order followed a previous order of the court, dated October 9, 1993, which also compelled discovery, imposed sanctions, and notified Cook that “failure to comply with this order subjects you to the contempt power of this court which could result in a fine being imposed, a term of imprisonment, and/or such other sanctions as the court deems appropriate.”

The trial court, having found that Cook was in wilful contempt of the order of November 9, 1993, which directed him to answer Rowland’s post-judgment discovery, ordered Cook to report to the Cobb County jail on weekends, beginning at 6:00 p.m., Friday, September 8, 1995, and remaining incarcerated until 7:00 a.m., Monday, September 11, 1995, and so long as Cook remained in contempt to report to jail for weekend incarceration until Cook purged his contempt by responding to the post-judgment discovery, submitting to a post-judgment deposition, and paying Rowland’s attorney fees in the amount of $8,135.82. The trial court found the attorney fees were warranted because Cook, “a licensed attorney at law in this State, has consistently refused to make discovery in this action without any justification, and has engaged in conduct which is frivolous, groundless, and substantially vexatious.”

This is an action based upon a note for $40,000 that Cook signed on January 9, 1989, in which he promised to pay J. H. Rowland, Jr., with ten percent interest by February 1, 1990. After Cook defaulted on the note and made no effort to reduce the debt, Rowland filed suit on April 25, 1991. The action shows that despite Rowland’s repeated efforts to conduct discovery, Cook refused to answer the discovery or submit to a deposition, even though the trial court had granted an earlier motion to compel discovery. Then, with a motion to compel pending, Cook consented to judgment in the amount of $63,522.67 plus interest at 12 percent.

Subsequently, Rowland served post-judgment discovery, but again Cook simply failed to answer until the trial court again ordered him to do so. Finally, on November 30, 1993, Cook served his response to the post-judgment discovery. Rowland found these answers to be less than forthcoming and moved for contempt. Cook never sat for a deposition in this case even though his deposition, pre- and post-judgment, has been noticed several times.

On the day that this motion was first scheduled to be heard, Cook filed for Chapter 13 Bankruptcy. Although this gained the automatic stay of proceedings in this case, thereafter the bankruptcy court dismissed Cook’s petition because the bankruptcy court found that Cook did not file numerous required schedules, failed to appear for his meeting with creditors or failed to request that the meeting be rescheduled, failed to appear at any hearings in the bankruptcy case, filed his petition with knowledge that he was ineligible for relief under Chapter 13, provided false information to the bankruptcy court under penalty of perjury, filed his petition in bad faith for purpose-of delay or harassment of his creditors, and failed to cooperate with the bankruptcy court.

When the hearing on the contempt motion was next scheduled, Cook failed to appear allegedly because he had a medical emergency. Additionally, even though Cook submitted proposed orders to the trial court, he never -responded to the motion for contempt. Finally, the hearing was conducted and the trial court issued the order leading to this appeal. Cook now contends the trial court abused its discretion in finding him in contempt. Held:

1. Cook contends the trial court erred by finding him in contempt. This is a matter committed to the discretion of the trial court which appellate courts will not disturb unless there has been a clear abuse. Moore v. Moore, 235 Ga. 512, 513 (220 SE2d 133); Berman v. Berman, 232 Ga. 342, 343 (206 SE2d 447). Based upon the record in this case, the only conclusion that can be reached is that Cook has wilfully refused to comply with the orders of the trial court, and has repeatedly displayed his contempt for the court. Accordingly, the enumeration of error is without merit.

Decided May 21, 1996

Reconsideration denied June 24, 1996.

Barnes, Browning, Tanksley & Casurella, George T. Smith, Brookins & Cook, Kyle A. Pearson, for appellant.

Patter & Starkey, Carl A. Crowley III, for appellee.

2. Rowland’s motion for sanctions under OCGA § 5-6-6 is granted. “This Code section authorizes sanctions for frivolous appeals which are taken up only for purposes of delay. This is just such a case.” Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704 (463 SE2d 152). “Delay can be assumed where an appeal lacked merit. If an appellant knew or should have known that an appeal was ill-founded, sanctions should issue.” (Citations omitted.) Id. at 704-705. Therefore, we grant an award for damages for delay against Cook in the amount of $813.58, and that Cook be required to pay interest at the legal rate on that award from the date this decision is published. The trial court is directed to enter judgment in favor of Rowland for damages in the amount of ten percent of the judgment. OCGA § 5-6-6; Stringer v. Harkleroad & Hermance, supra at 705.

Judgment affirmed with direction.

Beasley, C. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Per curiam. Pope, Presiding Judge,

license: Public Domain

text:
    A96A0300.
    THE STATE v. HUNTER.
    (473 SE2d 192)
   Per curiam.

Heather Ann Hunter was arrested and charged with driving under the influence of alcohol on November 11, 1994. After being read implied consent rights at the scene of the arrest, Hunter consented to a State-administered test of her breath for the purpose of determining whether she was under the influence of alcohol. The test was conducted on an Intoximeter 3000 machine which registered an alcohol concentration of 0.10 grams. On July 13, 1995, the trial court granted Hunter’s motion seeking exclusion of the results of the breath test. The State appeals pursuant to OCGA § 5-7-1.

1. The first basis given by the trial court for excluding the breath test results was that the State administered the test on an Intoximeter 3000 machine which was operated without all of its components prescribed by the manufacturer in good working order. The trial court concluded that this violated the validity requirements of OCGA § 40-6-392, as amended in April 1995, and that these requirements were retroactively applicable to Hunter’s pending case.

In April 1995, the legislature amended provisions of OCGA § 40-6-392. The amended statute provided in part that for the State-administered test to be considered valid it must be conducted “on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order . . Ga. L. 1995, pp. 1160, 1163, § 4. Section 5 of the April 1995 act, which was not codified, provided that it “shall apply to all cases pending at the time of its approval by the Governor. . . .” Ga. L. 1995, p. 1164, § 5. The act was approved by the Governor on April 21, 1995.

It is undisputed that Hunter’s State-administered breath test was given on the date of the arrest on an Intoximeter 3000 machine on which a component prescribed by the manufacturer known as the Taguchi cell had been disabled or overridden. Accordingly, the trial court correctly concluded that the test given by the State was not valid under the requirements of OCGA § 40-6-392 (a) (1) (A), as amended April 21, 1995. The trial court also correctly concluded that the requirements imposed under the April 1995 amendment applied to Hunter’s pending case. The plain and unequivocal language of Section 5 of the April 1995 act makes the act retroactively applicable to all pending cases. See State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996) (recognizing that, pursuant to Section 5, the April 1995 act “was expressly made applicable to pending cases by the Legislature”). The State argues that, based on the legislative history surrounding the enactment of the requirement at issue, we should disregard the plain language of the act and conclude the legislature did not intend a retroactive application to all pending cases. Although the legislative history which culminated in the present act may create some doubt as to the legislature’s intention regarding the effective date of this requirement, we have no authority in this case to construe the act contrary to its plain language. Since we are unable to conclude that application of the plain language of the act would ascribe to the legislature a wholly unreasonable intention or would lead to absurd or wholly impracticable results, we have no authority to construe the act differently and are bound to follow the plain language as the sole evidence of legislative intent. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). The trial court correctly granted Hunter’s motion and excluded the results of the breath test.

2. The second reason given by the trial court for excluding the breath test results was that the implied consent warning given to Hunter in November 1994 when she was arrested was not sufficient because it was not identical to the implied consent warning required by OCGA § 40-5-67.1 (b), as amended by Ga. L. 1995, pp. 1160-1161, § 1, effective April 21, 1995. The trial court concluded in its July 13, 1995 order that the warning given to Hunter failed to comply with the mandatory language of the April 1995 amendment to OCGA § 40-5-67.1 (b) and that Section 5 of the April 1995 enactment expressly made the amended language applicable to Hunter’s pending case. Martin, supra; Ga. L. 1995, p. 1164, § 5.

However, after the trial court reached its decision, the legislature amended OCGA § 40-5-67.1 during the 1995 Extraordinary Session by enacting Ga. L. 1995, Ex. Sess., p. 5, effective August 18, 1995. The August 1995 amendment retained the new implied consent warning contained in the April 1995 amendment to OCGA § 40-5-67.1 (b) and added subsection (b.l) to the statute. New subsection (b.l) provided that the April 1995 amended version of OCGA § 40-5-67.1 (b) applies only to cases in which the offense was committed on or after April 21, 1995, and that, for offenses committed prior to that date, the provisions governing the content of warnings of former Code sections 40-5-67.1 and 40-6-392 in effect at the time the offense was committed apply.

Accordingly, the August 1995 amendment rendered the new April 1995 warning requirements inapplicable to the November 1994 charge against Hunter. In Howard v. State, 219 Ga. App. 228 (465 SE2d 281) (1995), we applied the August 1995 amendment to OCGA § 40-5-67.1 to facts similar to those presented in this appeal. We determined that the implied consent warning given in that case to Howard in December 1994, which was the same warning given to Hunter in the present case, was sufficient because it complied with the warning requirements in effect at the time. In construing the August 1995 amendment to OCGA § 40-5-67.1, the Supreme Court reached the same conclusion on similar facts in Martin, supra. See also State v. Holcomb, 219 Ga. App. 231, 232-233 (464 SE2d 651) (1995); Park v. State, 220 Ga. App. 215 (469 SE2d 353) (1996).

Although the trial court’s order concluding that the implied consent warning was not sufficient was correct when entered on July 13, 1995, it is erroneous under existing law. The above decisions applying the August 1995 amendment to OCGA § 40-5-67.1 make clear that the warning given to Hunter was sufficient because it complied with the requirements in effect at the time of the offense in November 1994. Nevertheless, pursuant to the ruling in Division 1, the trial court correctly excluded the results of the breath test.

Judgment affirmed.

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

Decided June 24, 1996.

Ralph T. Bowden, Jr., Solicitor, Michael A. Penn, Assistant Solicitor, for appellant.

John G. Cicala, for appellee.

Pope, Presiding Judge,

concurring specially.

I am forced to agree that the plain language of the Act compels this undesirable result. See Ga. L. 1995, p. 1164, § 5. Only the General Assembly can correct it, as it had to correct the language making the new implied consent warning requirements retroactively applicable to all pending cases. See Division 2. Clearly, retroactive application of laws imposing new requirements on arresting officers has a devastating effect on the prosecution of otherwise viable criminal cases. Now that'this situation has arisen twice in the DUI context alone, perhaps the General Assembly will consider making new requirements applicable to all arrests on or after the law is signed, rather than all cases pending at that time.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong, Judge Johnson, Judge Blackburn and Judge Smith join in this special concurrence.


author: Blackburn, Judge.

text:
    A96A0515.
    A96A0516.
    LOPEZ-APONTE et al. v. COLUMBUS AIRPORT COMMISSION. PHILLIPS v. COLUMBUS AIRPORT COMMISSION.
    (473 SE2d 196)
   Blackburn, Judge.

In Case No. A96A0515 Antonio Lopez-Aponte and Catherine E. Lopez appeal, and in Case No. A96A0516 Rosie Mae Phillips appeals the trial court’s orders denying their motions to dismiss the condemnation petitions filed against them by the Columbus Airport Commission (CAC). The issues raised in these two appeals are identical, and we refer to the appellants in both cases collectively as the condemnees.

The trial court referred CAC’s petitions to condemn aviation or air easements over the condemnees’ residences to a Special Master. Condemnees filed substantially similar motions to dismiss CAC’s condemnation petitions for failure to state a claim upon which relief could be granted, alleging, inter alia, that CAC lacked the authority to condemn their property and that even if CAC had been empowered to condemn property, CAC had failed to obtain permission to condemn the subject property from the City of Columbus, the entity which had constitutional authority to exercise the power of eminent domain over said property, pursuant to OCGA § 6-3-22. The Special Master denied their motions.

Exceptions to the Special Master’s ruling were filed by the condemnees, and their motions to dismiss were renewed on appeal to superior court. After a hearing that was not transcribed, the superior court denied the condemnees’ motions to dismiss. We granted the condemnees’ applications for interlocutory appeal.

1. The condemnees’ motions are properly characterized as motions to dismiss for failure to state a claim upon which relief could be granted due to the petitions’ failure to allege the facts establishing CAC’s right to condemn, in violation of OCGA § 22-2-102.2 (1). That section provides, in part, that a petition to condemn “shall set forth: (1) The facts showing the right to condemn.” (Emphasis supplied.)

Although the hearing on the condemnees’ motion to dismiss was unreported, we are not precluded from reviewing the petitions to determine if they complied with the statutory requirements of OCGA § 22-2-102.2 because this is a question of law. See Cobb County v. Jones Group, P.L.C., 218 Ga. App. 149, 153 (460 SE2d 516) (1995) (review of denial of motion to dismiss de novo).

“Taking private property for the benefit of the public is an exercise of high power, and all the conditions and limitations provided by law must be closely followed. Too much caution cannot be observed to prevent oppression and abuse.” Sims v. City of Toccoa, 256 Ga. 368, 369 (349 SE2d 385) (1986).

(a) The condemnation petitions cite CAC’s enabling legislation as amended and the 1968 constitutional amendment creating the Muscogee County Airport Commission as granting to CAC the power of eminent domain to condemn property necessary for airport purposes. Contrary to CAC’s conclusion, the enabling legislation grants CAC only the power to “acquire, own, lease, and to hold title [in] its own name to all lands and improvements now owned by Muscogee County for airport purposes . . . whether within or without the limits of Muscogee County. . . . Said ownership is to include . . . any other lands or improvements which may hereafter be acquired for airport use by Muscogee County [now Columbus].” (Emphasis supplied.) Ga. L. 1968, p. 1657. It is clear that the power of eminent domain was not expressly granted to CAC by the legislature, but remained with Muscogee County (now Columbus). All other methods of acquiring property were expressly granted to CAC by the legislature.

CAC ignores the failure of the legislature to expressly include the power of eminent domain or right of condemnation in the enabling legislation and relies upon the right to “acquire” certain property contained therein as bestowing the authority to condemn property by necessary implication, citing Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 698 (10 SE2d 375) (1940) (power of eminent domain may be given by necessary implication). The facts here do not authorize or require the application of this theory in the present case.

Essentially every citizen of Georgia enjoys the right to acquire property, but no one would contend that therefore they have the right to condemn property. The Georgia Supreme Court has previously recognized the distinction between the right to “acquire” property and the right to “condemn” property. See Howard v. City of Atlanta, 190 Ga. 730, 741 (10 SE2d 190) (1940). In Howard, our Supreme Court held that although the 1927 amendment to Atlanta’s city charter granted to it the authority to acquire land in an adjoining municipality, it did not grant to it the authority to condemn land therein.

Had the legislature intended to grant directly to CAC the power of eminent domain, it could easily have done so expressly, as it did in the establishment of the Thomaston-Upson County Office Building Authority (TUCOBA). The enabling legislation in that instance provided: “[TUCOBA] shall have the powers: To acquire in its own name by purchase . . . or by condemnation . . . real property.” (Emphasis supplied.) The preamble to the enabling legislation in that instance further provided, in part, that its purposes are “ ‘to provide the right and power for [TUCOBA] to condemn property of every kind and character . . . (and)... to provide that this amendment shall be liberally construed.’ ” (Emphasis supplied.) Savage v. Thomaston-Upson County Office Bldg. Auth., 205 Ga. App. 634, 637 (422 SE2d 896) (1992).

In Savage, the power to condemn private property for airport purposes was granted directly to TUCOBA by the enabling legislation, which provided for its liberal construction. The absence of a similar direct grant of the power to condemn private property in the enabling legislation in the present case, coupled with the inclusion therein of references to “\p\ther lands . . . which may hereafter be acquired for airport uses by Muscogee County [now Columbus],” makes clear the intention of the legislature that such authority not be granted to CAC, and thereby precludes the finding that such was intended by necessary implication.

(b) CAC also contends that as an independent political subdivision of the State of Georgia, created by the legislature, it has the authority to condemn property for airport purposes pursuant to OCGA § 6-3-22. CAC did not rely on nor refer to OCGA § 6-3-22 in its petitions below. However, its reliance thereon on appeal is misplaced in any event.

OCGA § 6-3-22 does not independently grant the power of eminent domain to any entity. It simply provides that condemnation may be used to obtain title to property for airport purposes where such action is otherwise authorized by the entity seeking title.

OCGA § 6-3-22 provides in pertinent part: “Private property needed by a county, municipality, or other political subdivision for an airport . . . may be acquired by [agreement with the owner thereof] and otherwise by condemnation in the manner provided by the law under which the . . . political subdivision is authorized to acquire real property for public purposes.” (Emphasis supplied.)

While it is true that counties and municipalities have the constitutional right to exercise the power of eminent domain for any public purpose, see Ga. Const. 1983, Art. IX, Sec. II, Par. V, other entities have no such constitutional right, and such authority may be exercised by such entities only if the legislature grants such right to them, directly or by implication.

The right of a county or municipality to exercise the power of eminent domain arises from their constitutional authority to do so, not from OCGA § 6-3-22. Absent any direct or implied legislative authority to exercise the power of eminent domain in the enabling legislation, CAC is not authorized to condemn property “by the law under which [CAC] is authorized to acquire real property for public purposes” under OCGA § 6-3-22.

2. The condemnees correctly contend that the trial court erred in failing to dismiss CAC’s petitions for failing to state a claim upon which relief could be granted based on petitioner’s failure to allege that it had obtained the consent of the City of Columbus to this extraterritorial condemnation as required under OCGA § 6-3-22. Even if CAC had been authorized to exercise the power of eminent domain, which it was not, its failure to comply with OCGA §§ 6-3-22 and 22-2-102.2 would require a reversal of these cases. OCGA § 6-3-22, provides, in part, that “the power of condemnation may be exercised extraterritorially only with the consent of the governing authority of the [municipality] wherein the property is located.”

The property is located in Columbus, which entity has the constitutional right to exercise the power of eminent domain. CAC’s petition contains no allegation that it has obtained the permission required by OCGA § 6-3-22. In Savage, supra, this Court noted that both the City of Thomaston and Upson County passed resolutions requesting TUCOBA to acquire, by purchase or through the exercise of the power of eminent domain, certain property required for the development of an airport.

Decided June 24, 1996.

James D. Patrick, Jr., for appellants.

Rothschild & Morgan, W. Donald Morgan, Jr., Grogan, Jones, Rumer & Gunby, Thomas M. Jones, for appellee.

These resolutions met the requirements of OCGA § 6-3-22 and were required even though TUCOBA had previously been directly granted the power of eminent domain by the legislature in its enabling legislation. It is clear that the consent requirements in extraterritorial condemnations were intended to be independent of the underlying requirement of the authority of the condemnor to exercise the power of eminent domain. Accordingly, the trial court erred in denying the condemnees’ motion to dismiss CAC’s petitions for failure to state a claim upon which relief could be granted.

Judgments reversed.

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

       The Muscogee County Airport Commission became CAC in 1971 when the City of Columbus and Muscogee County governments were consolidated into a single entity known as Columbus, Georgia. Ga. L. 1971 Ex. Sess., pp. 2011, 2058-2059. The powers granted to the airport commission in the 1968 constitutional amendment continued in unimpaired force and effect. Id. at 2058; Ga. L. 1993, p. 5009.

       The petition states: “Condemnor is the Columbus Airport Commission, a body corporate and politic of the State of Georgia (hereinafter referred to as the ‘Commission’) created and existing pursuant to an Amendment to the Constitution of the State of Georgia (Ga. Laws 1968, page 1655 et seq.), duly ratified and proclaimed and Acts of the General Assembly of the State of Georgia (Ga. Laws 1971, page 2058 et seq.; Ga. Laws 1973, page 2016 et seq.; Ga. Laws 1986, page 3776 et seq.; and Ga. Laws 1994, page 3699 et seq.) for the purpose of administrating the improvements, maintenance and operation of Columbus Metropolitan Airport. The commission . . . has the power to condemn property necessary for airport purposes.”


author: Judge Harold R. Banke.

text:
    A96A0527.
    RHODEN et al. v. DEPARTMENT OF PUBLIC SAFETY et al.
    (473 SE2d 537)
   Judge Harold R. Banke.

In this civil rights action, Carmen Rhoden and George Huff sued Officers J. W. Knox and W. H. Mays of the Atlanta Police Department, several unnamed deputies, the City of Atlanta, and the Georgia Department of Public Safety, alleging Fourth Amendment violations as well as state law claims of malicious prosecution, false imprisonment, invasion of privacy, malicious arrest, assault and battery, intentional infliction of emotional distress, and negligence. After the trial court dismissed the claim against the Department of Public Safety on sovereign immunity grounds and the jury returned a defendants’ verdict, this appeal ensued.

The underlying action arose during a football game at the Georgia Dome. As the 49ers crushed the Falcons, the crowd lost interest and began throwing paper airplanes, cups, and other materials. During the third quarter, after Huff and Rhoden tossed some airplanes and Huff threw a cup stuffed with beer and rags, Officer Knox attempted to take Huff into custody. Rhoden, who was seated next to Huff, interfered with the arrest. Ultimately Knox, Mays, and others arrested Huff on charges of disorderly conduct while intoxicated and Rhoden on charges of interfering with Huff’s arrest. Huff was transported to the hospital after his arrest with complaints of lower back pain, but chose arraignment over treatment. He ultimately was released without prosecution. Rhoden paid a fine, thereby pleading guilty. Huff and Rhoden claim the officers beat and arrested them without probable cause. Held:

1. Huff and, Rhoden attempt to circumvent the General Assembly’s specific refusal to waive the State’s sovereign immunity for the intentional torts enumerated under OCGA § 50-21-24 (7) by alleging negligence on the part of the Department of Public Safety. Their complaint alleged that the law enforcement officers were negligent for (1) making unlawful arrests without probable cause; (2) using excessive force; and (3) failing to prevent the use of excessive force.

Assuming, as we must in the procedural posture of this case, that one or more of the unnamed defendants who committed the purported negligence worked for the Department of Public Safety, under the facts alleged, it defies logic to classify the decision to effectuate the arrests or use excessive force as negligence, thereby denoting unintentional acts. Lutz v. Foran, 262 Ga. 819, n. 1 (427 SE2d 248) (1993); see English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (1) (421 SE2d 286) (1992). Any alleged losses arising from these actions were caused by the intentional acts alleged, not negligence. The State has no liability for such losses. Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-72 (1) (456 SE2d 642) (1995).

Although the officers’ alleged failure to interfere with the use of excessive force may state a cognizable negligence claim, such a claim as framed in the complaint is barred by sovereign immunity. The Georgia Tort Claims Act (the “Act”) excludes from its waiver of sovereign immunity “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.” OCGA § 50-21-24 (2). The alleged failure to interfere cannot be characterized as anything but discretionary. The Act defines the term discretionary as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2). The alleged decision not to interfere with the arrests at issue called for such consideration. See Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119 (3) (376 SE2d 861) (1989); see McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) (443 SE2d 505) (1994) (responses to emergencies are discretionary in official immunity analysis); see Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990) (distinguishing between ministerial and discretionary acts in official immunity analysis). Because Huff and Rhoden failed to satisfy their burden of establishing that the Department of Public Safety waived its sovereign immunity, we affirm the trial court. McLemore, 212 Ga. App. at 864 (2) (c).

Decided June 24, 1996.

Smith, Wallis & Scott, Christopher B. Scott, for appellants.

Michael J. Bowers, Attorney General, Mary B. Westmoreland, Deputy Attorney General, Neal B. Childers, John C. Jones, Senior Assistant Attorneys General, Jesse L. Echols, for appellees.

2. The trial court did not commit reversible error when instructing the jury on joint and several liability. The record shows that the court’s initial instruction properly tracked OCGA § 51-12-31 and was provided to the jury in writing. The jury then interrupted its deliberations to inquire whether the arresting officer (Knox) could be held responsible for the abuses committed by his fellow officers. When the court responded by referring the jury to the portion of the charge it had given on joint and several liability and stating that the officers whose actions were at issue were Knox and Mays, Huff and Rhoden failed to object. They now argue that the court should have instructed that the unnamed defendants were joint tortfeasors. In the absence of an objection, however, the issue is waived. OCGA § 5-5-24 (a); see Crawford v. Presbyterian Home, 216 Ga. App. 54, 55 (2) (453 SE2d 480) (1995).

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

       Rhoden and Huff do not appeal the dismissal of their intentional tort claims or their action under 42 USC § 1983.


author: Smith, Judge.

text:
    A96A0815.
    KELLER v. THE STATE.
    (473 SE2d 194)
   Smith, Judge.

Drue A. Keller was indicted on one count of cruelty to children, OCGA § 16-5-70 (b). He was found guilty by a jury, his motion for new trial was denied, and he appeals. He contends that the evidence against him was insufficient, that certain testimony was erroneously admitted, and that the rule of sequestration was violated. Finding no merit in any of these contentions, we affirm.

1. Keller asserts the general grounds. His sole defense at trial was that the State made an insufficient showing that he inflicted “cruel or excessive physical or mental pain” on the child within the meaning of the statute. Because the child’s mother also whipped the child, Keller contends no evidence established that any of the bruises or other marks inflicted on the child were caused by Keller’s whipping bim with a belt. This contention has no merit.

The director of the county office of the Department of Family & Children Services testified that she interviewed the child and observed eight bruises on the backs of his legs that in her opinion resulted from excessive force. The child told the DFACS director that his mother hit him with a coat hanger and Keller hit him with a belt. The child’s mother testified that Keller, suspecting the child had taken his wallet, urged her over a period of about two hours .to discipline the child and that she ultimately “gave into him” and whipped the child with the broad side of a wooden coat hanger. Keller then took the child into the bathroom, stating that the mother “didn’t discipline him hard enough.”

The mother testified she heard six or seven blows and crying from inside the bathroom, and she entered the bathroom to find Keller with the belt in his hand and his arm raised “fixing to swing at him again.” A Dade County sheriff’s deputy who examined and photographed the child’s injuries testified that the bruises were inflicted with a large flexible object that curved around the inside of the child’s legs. The photographs were in evidence, and the jury was authorized to conclude on the basis of this testimony that a belt, rather than a rigid object such as the side of a wooden coat hanger, inflicted the bruises discovered on the child. This constituted sufficient evidence authorizing a rational finder of fact to conclude that Keller was guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Strickland v. State, 212 Ga. App. 170, 171 (1) (441 SE2d 494) (1994).

2. Keller enumerates as error the admission of certain testimony given by the child’s father. Asked by the State about the child’s ■demeanor after the incident, the witness gave the nonresponsive answer, “[H]e speaks of hurting Drue hisself.” The trial court overruled Keller’s hearsay objection, and the prosecutor then rephrased the question, explaining that by “demeanor” he meant the child’s feelings. Keller contends this testimony was inadmissible hearsay and that a new trial should be granted on this basis. We disagree.

Decided June 24, 1996.

John R. Emmett, for appellant.

Ralph Van Pelt, Jr., District Attorney, John P. Webb, Assistant District Attorney, for appellee.

This nonresponsive answer does not fall within the hearsay rule. Evidence that the child wished to harm Keller was not hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). The proffered testimony was not offered to prove the truth of the child’s statement. The statement’s value derives not from the veracity and competency of the child, but from the credit of the witness himself. It was simply a verbal act demonstrating the child’s state of mind and demeanor. “It was, therefore, original evidence. [Cits.]” Hodges v. State, 265 Ga. 870, 874 (4) (463 SE2d 16) (1995).

Moreover, to the extent that Keller complains of testimony regarding the child’s demeanor, that complaint has no merit. Demeanor is one of the factors used to determine the reliability of a child’s statement under OCGA § 24-3-16. See Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991). See also Knight v. State, 207 Ga. App. 846, 847 (1) (429 SE2d 326) (1993) (testimony regarding child’s demeanor part of “observable physical criteria” which an expert witness can testify are consistent with child’s statement); Harris v. State, 164 Ga. App. 597 (298 SE2d 301) (1982) (child’s demeanor immediately after alleged rape corroborative of her statement).

3. Finally, Keller complains the rule of sequestration was violated when the trial court permitted the State to recall a witness for rebuttal testimony after she had been excused and had remained in the courtroom. This contention is controlled adversely to Keller by this Court’s decision in Bigby v. State, 184 Ga. App. 94, 96 (6) (360 SE2d 751) (1987). “Violation of the rule of sequestration goes to the credibility of a witness, not to his competency to testify. [Cits.]” Id.

Judgment affirmed.

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

       The record reveals that the child’s mother pleaded guilty to a criminal offense arising out of the same incident, but the specific nature of that offense is not stated.


text:
    A96A0525.
    PLUMLEE v. DAVIS et al.
    (473 SE2d 510)
   Smith, Judge.

Bambi Plumlee appeals from the grant of summary judgment to attorneys Guy Davis, Jr. and William Gardner in this legal malpractice action.

The record reveals that Plumlee signed a contract in March 1988 retaining Davis as counsel to represent her in a possible medical malpractice action. Gardner had law offices in the same building and had experience in such cases, and Davis asked him to attend the initial interview. Apparently, it was then agreed that Gardner would assume primary responsibility for Plumlee’s case, which he did. Gardner moved his offices in May 1989, and he took Plumlee’s file with him at her request.

Plumlee’s cause of action arose out of an incident in January 1988 in which she presented at the emergency room at Physicians and Surgeons Hospital. She was examined by Dr. Severo Steves, assisted by Joseph Akin, R.N. She presented with moderate tachycardia, but a heart monitor established she was in no acute danger. Following his examination, Dr. Steves intended to release Plumlee, but Nurse Akin suggested that a dose of Benadryl be administered prior to her release; Dr. Steves agreed. Instead, Akim surreptitiously injected a dose of epinephrine, further stimulating Plumlee’s heart and causing cardiac arrest. Plumlee was resuscitated, admitted to the hospital, and also hospitalized subsequently at Emory University Hospital. Fortunately, she suffered no lasting physical ill effects. The cause of the cardiac arrest was not specifically known until shortly before the expiration of the statute of limitation on Plumlee’s medical malpractice cause of action, when an expert offered his opinion that epinephrine had been injected into Plumlee’s arm, possibly intentionally, by Akin.

Because of the difficulty in determining the exact cause of the problem and finding an expert affidavit, Plumlee’s lawsuit against the hospital, Akin, and others was filed by Gardner on Monday, January 29, 1990, which was the last possible day (the limitation period having expired on Sunday, January 28). Gardner was listed as lead attorney, and the names of Davis and another attorney also appeared on the pleadings. The hospital was served on January 31, 1990, but never filed an answer. No service was perfected on Akin or Dr. Steves. On his deposition, Gardner testified that Plumlee, a licensed practical nurse, volunteered to help locate Akin. Gardner asserted that both he and Plumlee made efforts to locate Akin, telephoning various hospitals, nursing associations, and state boards, and following leads given by friends and associates. These efforts were unsuccessful because Akin was fairly itinerant at the time, working primarily for temporary agencies. Gardner testified that he stopped his efforts about a month after the action was filed because he felt that a reasonable time had elapsed and the statute of limitation “had quite well run.”

In February 1991, the default case against the hospital came up on the trial calendar. Davis testified on his deposition that he was called by the court clerk, who was unable to locate Gardner; the clerk apparently contacted Davis because his name was also on the pleadings. Davis presented the evidence in a bench trial and on February 28, 1991, obtained a default judgment in Plumlee’s favor against the hospital in the amount of $750,000. This judgment was uncollectible, however, because the hospital was insolvent and had no assets or insurance.

In August 1991, Akin was arrested in Alabama in connection with other, similar incidents, some of which resulted in patients’ deaths. Although his whereabouts were known, no attempt was made by either Davis or Gardner to serve Akin at that point.

On January 27, 1992, Davis filed a complaint for loss of consortium on behalf of Phillip Plumlee against Akin and Steves, but Phillip Plumlee discharged Davis as his attorney by letter dated January 23, 1993. That case was eventually settled for $12,000.

In January 1992, Davis was also served with Akin’s answer and motion to dismiss based upon failure to perfect service, expiration of the statute of limitation on the claim alleged, and laches. Davis did not file a response to the motion, but in March 1992, he voluntarily dismissed Plumlee’s claims against the remaining defendants, including Akin. Davis testified on his deposition that he did so because he "was not going to attempt to defend frivolously a motion to dismiss, a motion for summary judgment on a dead case.” He performed no further investigation, because “when I learned nothing had been done by the time of the taking of the default judgment, which was February of ’91 . . ., that no effort had been made for nearly a year to get these people served or any kind of due diligence, . . . there was no way to justify that even if [Akin] was in another state and could have been found. . . . [T]here was no evidence that it had been [served] and nothing to support serving somebody six months to a year after the statute of limitations had run. Nothing to justify the failure to do so.”

Plumlee’s complaint for legal malpractice was filed on March 3, 1994. In that complaint, she alleged that Davis and Gardner acted wantonly and recklessly in handling her claim against Akin and in their conduct toward her, failed to exercise due diligence in perfecting service on Akin, abandoned her case, failed to secure her permission to voluntarily dismiss or to inform her that her case had been dismissed, and in fact, fraudulently concealed from her that her case had been lost through their negligence. The trial court granted the motions of Davis and Gardner for summary judgment, concluding that the action was barred by the statute of limitation and further concluding that the defendant attorneys had pierced Plumlee’s pleadings and the affidavit submitted by Plumlee failed to create an issue of fact.

1. The trial court correctly concluded that the statute of limitation on Plumlee’s cause of action against her attorneys commenced to run on January 29, 1990. The court reasoned that because Akin was never served, the doctrine of “relation back” of service could not apply. OCGA § 9-11-4 (c) provides that “[w]hen service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” It is undisputed that no service was ever attempted upon Akin. It follows that no valid suit was instituted against Akin. Gaskins v. A. B. C. Drug Co., 183 Ga. App. 518, 519 (2) (359 SE2d 364) (1987). Relation back is, indeed, irrelevant. Id. at 519, n. 1. The limitation period on any cause of action Plumlee had against Davis and Gardner must therefore have commenced running at the time the statute of limitation expired on Plumlee’s cause of action against Akin without a valid suit being filed against him, on January 29, 1990.

2. The trial court also concluded that Plumlee’s action for legal malpractice against Davis and Gardner was barred by the applicable statute of limitation.

The court’s order recites that the statute of limitation in a legal malpractice action “derives from the underlying action.” Because the underlying action in this case was for personal injury and the statute of limitation in a personal injury action is two years, the trial court found as a matter of law that the statute of limitation applicable to this legal malpractice action was also two years. We do not agree.

A legal malpractice action may sound either in tort or in contract, depending on the circumstances. “It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency).” Hamilton v. Powell, Goldstein &c., 167 Ga. App. 411, 412 (1) (306 SE2d 340) (1983), aff’d 252 Ga. 149 (311 SE2d 818) (1984). Such an action, however, may also sound in tort. Hamilton, supra at 413-414. The circumstances on which it depends, however, are those involving the attorney-client relationship, the duty involved, and the breach thereof, not those involving the nature of the underlying action for which the attorney was consulted or retained. A cause of action against an attorney sounding in contract arises from the breach of a legal duty imposed by the contract of employment. Long v. Wallace, 214 Ga. App. 466, 467 (2) (448 SE2d 229) (1994). It is governed by the four-year statute of limitation in OCGA § 9-3-25. Id. The tort cause of action for legal malpractice arises because the law imposes upon attorneys a duty to act with a certain degree of skill in performing their contractual duties to their clients. Hamilton, supra at 414. The statute of limitation applicable to a cause of action against an attorney sounding in tort is two years, pursuant to OCGA § 9-3-33. Id.

3. Nevertheless, we agree with the trial court that under either statute of limitation, Plumlee’s action was barred. The statute of limitation on Plumlee’s tort action expired on January 28, 1992; the limitation period on her contract action expired on January 28, 1994. Plumlee did not institute this action until March 3, 1994, over one month after the expiration of the contract limitation period.

We cannot agree with Plumlee that OCGA § 9-3-24, the six-year statute of limitation for simple contracts in writing, should be applied here. First, Gardner is not a signatory to the attorney employment contract between Plumlee and Davis; the statute of limitation for simple contracts in writing therefore may not be applied to the cause of action against him.

Second, we do not agree that Buchanan v. Huson, 39 Ga. App. 734 (148 SE 345) (1929), cited by Plumlee, is applicable here. In Buchanan the six-year statute of limitation for written contracts was applied in a legal malpractice action to govern a written contract of representation. That contract, however, included a provision in which the lawyer agreed to file suit “immediately.” His failure to do so therefore constituted a breach of a duty created by the written contract itself. The circumstances in Buchanan were highly unusual, as demonstrated by the fact that Plumlee has cited no other cases applying the six-year statute of limitation to a legal malpractice case, and we have found none.

Even as to Davis, the two-page employment contract executed by Plumlee did not constitute the entire agreement between the parties. It created the attorney-client relationship and covered certain issues such as Davis’s fee, payment of expenses, and his authority. It did not specify the manner in which the attorney was to carry out his duties, when suit was to be filed, or numerous other material portions of the contract between Plumlee and Davis. Instead, as in most attorney employment contracts, those matters were subject to the duty imposed upon Davis by law and implied in his contractual relationship with Plumlee. This situation is distinguished from that in Buchanan. It is analogous to the situation in Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 SE2d 871), aff’d 246 Ga. 804 (273 SE2d 16) (1980), where this Court held that the attorney employment contract was not wholly written. “ ‘When a contract is not wholly in writing, but is partly in writing and partly in parol, the entire contract is considered as one in parol.’ [Cit.]” Jankowski, supra at 754-755 (2). We held in Jankowski that the four-year statute of limitation applicable to oral contracts must be applied in such cases. Id. at 755 (3).

Decided June 11, 1996

Reconsideration denied June 25, 1996

David W. Hibbert, Thomas E. Maddox, Jr., for appellant.

Guy E. Davis, pro se.

William W. Gardner, pro se.

Monte K. Davis, for appellees.

The trial court correctly found that Plumlee’s action was barred by the statute of limitation, albeit for the wrong reason. Because a trial court’s judgment right for any reason will be affirmed, we affirm the trial court’s grant of summary judgment to Davis and Gardner. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

4. Because our holding in Division 3 affirms the grant of summary judgment to Davis and Gardner on the ground that Plumlee’s action against them was barred by the applicable statute of limitation, we need not address the remainder of Plumlee’s enumerations of error.

Judgment affirmed.

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

       Akin is currently serving a life sentence in an Alabama prison for similar actions that resulted in deaths of patients.


author: Johnson, Judge.

text:
    A96A0619.
    METROMONT MATERIALS CORPORATION v. CARGILL, INC.
    (473 SE2d 498)
   Johnson, Judge.

Cargill, Inc., contracted with Henschien, Johnson & Crombie, Inc. (“HJC”), for the construction of a poultry processing plant on Cargill’s property. In turn, HJC contracted with Metromont Materials Corporation to provide concrete for the project. HJC immediately assigned its general contractor role to Henschien, Johnson & Crombie of Georgia, Inc. (“HJC-Georgia”). Metromont provided the materials as agreed. When neither HJC nor HJC-Georgia paid as agreed, Metromont filed a claim of lien against Cargill’s property. Cargill filed an interpleader and declaratory judgment action against Metromont. On February 14, 1995, Metromont filed an answer and counterclaim wherein it sought to foreclose on its lien claim against Cargill and asserted a cross-claim against HJC-Georgia to recover the amount of its lien claim. Although required by statute to do so, Metromont did not file a notice that it commenced the lien action within 14 days of asserting the cross-claim. See OCGA § 44-14-361.1 (a) (3). In July 1995, after being notified that the lien claim was defective because the notice was not timely filed, Metromont dismissed and refiled its cross-claim against HJC-Georgia and also filed a cross-claim against HJC. This time, Metromont filed notices of the commencement of the actions within 14 days. Despite the refiling and notice, Cargill moved for partial summary judgment on Metromont’s lien claim, arguing that Metromont forever lost its right to enforce the lien by failing to file notice of the action within 14 days of commencing the first action. Metromont appeals from the trial court’s grant of that motion. For the reasons that follow, we affirm.

For a materialman’s lien to be enforceable, it must be created and declared in accordance with the provisions set forth in OCGA § 44-14-361.1; on failure of any of the provisions, the lien is not effective or enforceable. OCGA § 44-14-361.1 (a). Those provisions require that (1) the materialman substantially complies with the contract; (2) he files his claim of lien within three months after completing the work; and (3) he commences an action for the recovery of the amount of his claim within 12 months after it becomes due and he files a notice of the action with the clerk of court within 14 days after commencing the action. “The lien comes into potential existence only when the statute is satisfied,” and if there is a failure to satisfy the statute, the lien is inoperative. L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680, 681 (399 SE2d 272) (1990). It is undisputed that no notice was filed within 14 days after Metromont filed its initial action against HJC-Georgia. Because filing notice is a prerequisite to enforcing a lien, Metromont’s right to enforce the lien based on that action was lost as of the fifteenth day after it commenced its action against HJC-Georgia. See Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 (1) (339 SE2d 406) (1986). The filing of the subsequent actions did not revive Metromont’s lien rights.

In Palmer v. Duncan Wholesale, 262 Ga. 28 (413 SE2d 437) (1992), the Supreme Court addressed a very similar issue. In that case, Duncan sought to enforce a materialman’s lien against Palmer, the property owner, pursuant to OCGA § 44-14-361.1. Duncan complied with the statute in terms of filing a claim of lien and filing a suit against the contractor, but failed to file the notice required by subparagraph (a) (3). Palmer filed for bankruptcy protection, and Duncan then filed an in rem action pursuant to OCGA § 44-14-361.1 (a) (4) in order to enforce its lien directly against the property. The court held that Duncan could not attempt a second time to enforce the lien because its failure to follow the notice requirement set forth in the lien statute the first time rendered the lien ineffective and unenforceable. When it missed the notice filing deadline, u[a\t that moment, Duncan lost its ability to ever enforce its claim of lien against the improved property. The contractor’s subsequent filing for bankruptcy protection did nothing to revive Duncan’s ability to enforce its claim of lien directly against the improved property.” (Emphasis supplied.) Id. at 30. The court held that the failure to comply with the statute extinguished the materialman’s right to a lien against the property and that the subsequently filed action “could not breathe new life into the extinguished right to a lien so as to give the materialman another bite at the apple it had missed on its first bob. . . . Duncan’s failure to comply with the notice provisions of subparagraph (a) (3) was a defect fatal to its right to ever enforce its claim of lien against the real estate.” (Emphasis supplied.) Id. at 31. Similarly, by failing to file the required notice within 14 days of the action, Metromont lost its right to enforce its lien.

Decided June 4, 1996

Reconsideration denied June 25, 1996

Morris, Manning & Martin, Bruce C. Smith, William J. Sheppard, for appellant.

Smith, Currie & Hancock, James F. Butler III, Raymond L. Mann III, Griffin, Cochrane & Marshall, Robert D. Marshall, Sha piro, Fussell, Wedge, Smotherman & Martin, Herman L. Fussell, for appellee.

Metromont’s attempts to distinguish Palmer are unpersuasive. Although the lien claimant in Palmer did not dismiss and refile the action, and then give the required notice, this distinction is insignificant. As the Supreme Court pointed out in Palmer, the lien claimant’s rights to enforce the claim of lien were extinguished when the notice requirement went unmet. Thus, any action Metromont took to enforce the lien after the notice period expired was ineffectual. Having determined that its lien enforcement rights were extinguished as a result of Metromont’s failure to comply with the notice requirement, we need not reach the issue of whether HJC and HJC-Georgia were alter egos of one another.

This result may seem harsh, but it is consistent both with the requirements of the lien statute, see OCGA § 44-14-361.1 (a), and with the longstanding principle that statutes involving material-man’s liens must be strictly construed in favor of the property owner and against the materialman. D & N Elec. v. Underground Festival, 202 Ga. App. 435, 439 (4) (414 SE2d 891) (1992); see Meco of Atlanta v. Super Valu Stores, 215 Ga. App. 146, 149 (1) (449 SE2d 687) (1994). Inasmuch as no genuine issues of material fact remain as to whether Metromont can enforce its claim of lien against Cargill’s property, the trial court did not err in granting Cargill’s motion for partial summary judgment.

Judgment affirmed.

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


author: Andrews, Judge. .

text:
    A95A0056.
    HURST v. GRANGE MUTUAL CASUALTY COMPANY.
    (473 SE2d 594)
    Decided June 25, 1996.

      Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., William J. Sizemore, for appellant.

      Simpson, Gray & Cross, Joseph B. Gray, Jr., for appellee.
   Andrews, Judge. .

We affirmed the trial court’s grant of summary judgment in favor of Grange Mutual Casualty Company in an unpublished opinion in Hurst v. Grange Mutual Cas. Co., 217 Ga. App. XXX (1995). In Hurst v. Grange Mutual Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996), the Supreme Court reversed the judgment of this Court. Accordingly, our original judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s grant of summary judgment in favor of Grange Mutual Casualty Company is reversed.

Judgment reversed.

McMurray, P. J, and Blackburn, J., concur.


text:
    A96A0865.
    SOLON AUTOMATED SERVICES, INC. v. CORPORATION OF MERCER UNIVERSITY.
    (473 SE2d 544)
   Smith, Judge.

In this dispute involving the termination of a lease agreement between the Corporation of Mercer University and Solon Automated Services, Inc., Solon appeals from the trial court’s grant of summary judgment to Mercer. Solon brought this appeal in the Supreme Court, which transferred it to this Court because any equitable claims are ancillary to the main issues involved. Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

Mercer leased its student laundry facilities to Solon for a ten-year term beginning on December 21, 1984. Solon furnished the coin laundry equipment. The lease provides for automatic renewals for successive five-year periods unless either party gives notice of termination. It also grants to Solon a “right of first refusal” should Mercer decide to lease to a competitor instead.

Mercer was dissatisfied with Solon’s performance and decided not to renew Solon’s lease. Paragraph 2 of the lease agreement recites that notice of termination must be given “within the first month of the final year of lessee’s occupancy.” This notice period fell between December 21,1993, and January 20,1994. Mercer, however, mistakenly relied upon an earlier, unsigned version of the lease providing for a lease term that began and ended earlier, and it attempted to terminate the lease on December 1, 1993.

After the date on which it (mistakenly) believed Solon’s lease expired, Mercer solicited other proposals for operating the laundry facilities. Mercer apparently believed that if it waited until after Solon’s lease term expired, it could enter into a lease with a Solon competitor without honoring Solon’s right of first refusal. Regardless of the correctness of this belief, the lease term had not, in fact, expired when Mercer solicited the proposals. Mercer received several proposals, and it notified Web Services, a Solon competitor, in mid-December that it intended to enter into a contract with Web in accordance with Web’s previously submitted proposal for operating the laundry rooms. Web then informed Solon of the intended contract, and Solon informed Mercer it insisted upon enforcing its right of first refusal.

After learning of its mistake, Mercer reversed its decision to enter into a contract with Web, deciding instead to operate the student laundry facilities itself. The Solon lease expired on December 20, 1994, but Solon refused to vacate. Mercer continued to accept rent from Solon, and on May 26, 1995, it filed this dispossessory action. The trial court granted Mercer’s motion for summary judgment, finding that Mercer’s notice was sufficient to terminate the lease, that Mercer’s actions did not trigger Solon’s right of first refusal, and that Solon was a tenant at sufferance despite Mercer’s acceptance of rent.

1. Solon contends the trial court erred in concluding that Mercer’s exercise of its option to terminate the lease was valid.

The trial court concluded that the notice was effective because the purpose of the lease provision requiring notice within a specific time period was “to provide the receiving party with sufficient notice to take such action as needs to be done for the termination of the lease.” Although the notice in this case was clearly untimely, its untimeliness consisted in its being given too early, rather than too late. The receiving party in this case, Solon, therefore had more time to take the necessary action, and the purpose of the requirement was served.

Further, the lease does not contain a provision making time of the essence. Such a term is not generally implied in contracts, although Solon correctly notes that it is implied in option contracts. See, e.g., Bowden v. Mews Dev. Corp., 247 Ga. 546, 547 (2) (277 SE2d 653) (1981). In option contracts, the provision is inferred in order to mitigate the fact that such contracts are generally weighted in favor of the optionee. “[B]ecause of the singular one-sidedness of an option contract in creating, for a stated duration, an irrevocable offer of the optionor, the law requires that the optionee perform all of its obligations under that contract with particular timeliness.” Barkley-Cupit Enterprises v. Equitable Life Assurance Society &c., 157 Ga. App. 138, 141 (276 SE2d 650) (1981).

Even assuming, without deciding, that the right of first refusal in this lease was, in fact, an option contract and a provision that time is of the essence should be inferred, such a term requires only that the optionee perform timely. The notice in issue here was given by Mercer, who would not be the optionee but the optionor. Moreover, the notice given here does not pertain to the right of first refusal. It was given to initiate a different event: the intent to terminate the lease. Mercer’s notice was given only a matter of days outside the period specified in the lease; the lease contains no term making time of the essence in terminating the lease, and we may not infer one. We hold, therefore, that Mercer substantially complied with the applicable lease provision. The trial court did not err in concluding that Mercer’s notice, although early, constituted an effective notice of lease termination under the requirements of paragraph 2 of the lease.

2. In two enumerations, Solon contends the trial court erred in denying its claim for specific performance.

The trial court concluded that the mere termination of Solon’s lease did not trigger Solon’s right of first refusal; under the lease provisions, this right was triggered only if Mercer contracted with another company for the services formerly provided by Solon. We agree with this conclusion.

Solon argues that Mercer in fact intended to contract with a competitor, an event from which Solon is protected by the right of first refusal, and that Mercer changed its course of action only because of Solon’s insistence upon its contractual right of first refusal. Regardless of Mercer’s intentions or reasons for acting, however, the fact remains that Mercer has not at this point entered into a lease agreement with a competitor. Mercer presented sworn testimony that it does not now intend to contract with another company to provide these services but plans to provide the service and operate the laundry rooms itself.

It is clear that if the university had not first solicited proposals from other outside contractors but instead had elected to terminate Solon’s lease in order to operate its own student laundry rooms, Solon’s right of first refusal under the lease would not apply. It is also plain that the lease agreement does not give Solon the right to “match” contract terms when no new contract exists or is intended. As applied to lease agreements, “[t]he general, majority, view is that a ‘first right of refusal’ grants the lessee no right or assurance of a new term of lease, but constitutes only an offer to lease conditioned upon the lessor’s decision to lease to anyone. It does not bind or obligate the lessor to lease the premises at all, and the lessor retains the privilege of withholding the property from the rental market altogether.” U. S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416 (297 SE2d 290) (1982).

That Mercer did not immediately decide upon its present course of action regarding the student laundry facilities is immaterial. Mercer’s initial exploration of other possibilities does not change the fact that, as of now, Mercer is not leasing or intending to lease the facilities to any other outside contractor or service provider. It is withholding the properties from the rental market. We therefore agree with the trial court’s ruling that Solon’s right of first refusal does not apply. We also note and agree with the trial court’s careful specification in its order that the ruling on this issue was “not intended to cover . . . potential future negotiations to contract, which Mercer may enter into for these services, nor [does the ruling] preclude [Solon] from any future right of action in such event.”

3. In its final three enumerations, Solon addresses the issue of whether it was a tenant at will rather than one at sufferance after the termination of the lease. A tenant at will must be given 60 days notice before a demand for possession is made. OCGA § 44-7-7.

(a) Solon first contends the trial court erred in considering this issue because Mercer did not raise it in its motion for summary judgment. We do not agree.

A party opposing a motion for summary judgment is not required to respond to issues not raised in the motion. Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). But because Solon raised this issue in responding to the motion for summary judgment in this case, and because Georgia law permits a trial court to grant a motion for summary judgment sua sponte, we find no error. Solon raised this issue and the trial court considered it; all parties had notice that the issue was being considered. Compare Hodge, supra (respondent on motion for summary judgment had no notice issue not raised in motion would be considered or opportunity to respond).

(b) The trial court did not improperly resolve an issue of fact regarding the tenancy. Contrary to Solon’s contention, the issue of whether it was a tenant at will or a tenant at sufferance is an issue of law, not one of fact. The material facts were undisputed.

(c) Finally, Solon asserts that the trial court erred in concluding that the tenancy remained one at sufferance despite Mercer’s acceptance of rent after the expiration of the lease. We do not agree.

Decided June 25, 1996

Weiner, Yancey, Dempsey & Diggs, Thomas C. Dempsey, for appellant.

John P. Cole, for appellee.

If a landlord has terminated a tenant’s lease and the tenant holds over, he becomes a tenant at sufferance. The landlord is estopped from treating the tenant as one at sufferance and evicting him without notice, however, if the landlord has given the tenant permission, expressly or impliedly, to remain in possession. We recognize that “[i]t takes little to convert a tenancy at sufferance into a tenancy at will. Anything that indicates the permission of the landlord for the tenant to remain in possession will have this effect. [Cit.]” Carruth v. Carruth, 77 Ga. App. 131, 135 (48 SE2d 387) (1948). But Mercer did not terminate Solon’s lease for nonpayment of rent. It exercised its right to terminate the lease for other reasons, and Solon was holding over beyond the lease termination. “Under such circumstance, acceptance of the . . . rent did not estop [Mercer] from pursuing recovery of the premises. [Cit.]” Main Station v. Atel I, 190 Ga. App. 205, 207 (2) (378 SE2d 393) (1989). The trial court did not err.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A96A0949.
    WHITE v. THE STATE.
    (473 SE2d 539)
   Birdsong, Presiding Judge.

Willard Frank White appeals his conviction of rape, aggravated sodomy, and two counts of child molestation of his 33-month-old granddaughter and enumerates three errors. For prior appellate history, see White v. State, 211 Ga. App. 694 (440 SE2d 68). Held:

1. Appellant’s first enumeration “is that hearsay was continuously and erroneously admitted concerning statements which the two-and-one-half-year old child made to various [persons] which they interpreted . . . to be allegations of sexual abuse because no hearing was conducted to ascertain whether there was sufficient indicia of reliability to admit the statements which were substantially the evidence against the accused. . . . This was an abuse of discretion . . . even though the defense attorney did not object at trial . . . [and] was certainly harmful error because the defendant would not have been convicted but for the admission of improper evidence which was highly unreliable and contained no indication of reliability.” This single enumeration asserts, at least, three separate errors: the erroneous admission of hearsay, the lack of a hearing on child hearsay statement admissibility, and insufficient indicia of reliability for admission of child hearsay statements. OCGA § 5-6-40 requires that enumerations shall set out separately each error upon which relied. “When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 [cit.] or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820); accord Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383). We elect in our discretion to review none of these multiple assertions of error.

Additionally, the issue of lack of indicia of reliability of the victim’s statements was adversely determined against appellant in White v. State, supra at 694-695 (1). Further, appellant concedes in his enumeration that no timely objection on the specific grounds enumerated was made at trial by appellant’s defense counsel to the evidence at issue. Accordingly, the errors asserted in appellant’s first enumeration were not preserved on appeal. Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691); Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

2. Appellant contends that one of his jurors knew that appellant had been tried and found guilty in 1992, but nevertheless failed to answer affirmatively when the trial court asked the jurors on voir dire: “Do any of you know any reason you would have formed any opinion about the guilt or innocence of Mr. White before we begin the trial of the case? Would you know of any bias or prejudice you might have for or against the accused before we begin the trial? Is your mind perfectly impartial between the State and the accused before we begin?” Appellant contends that the juror’s failure to respond affirmatively when asked about any bias or prejudice toward the accused deprived appellant of his right to select an impartial jury and constituted prejudicial error. In denying the new trial motion, the trial court ruled inter alia that the juror in question “testified that at the time of the trial of [appellant] in January of 1995, that she did not know any facts about the case and did not form any opinion about the guilt or innocence of the [appellant].” This ruling was made following a post-trial hearing on appellant’s new trial motion.

At the post-trial hearing, the niece and sister of appellant testified as to certain conversations allegedly occurring between the juror and appellant’s sister after appellant’s conviction and before his sentencing in the 1992 trial. However, the juror testified and denied that any such conversations occurred and also unequivocally denied any knowledge of the 1992 trial of appellant until approximately two weeks after his second trial. The trial court determined the credibility of the three witnesses and denied the motion. In doing so, the court considered the relationship of the witnesses to appellant and the nature of their testimony, and expressly ruled that “I just choose to believe [the juror’s] version of the case.” An appellate court cannot judge witness credibility or weigh conflicts in testimony. See Webb v. State, 187 Ga. App. 348 (1) (370 SE2d 204); Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228). By its determination that the juror’s version of events was credible, the trial court inherently found as a question of fact that the juror did not possess any knowledge of appellant’s prior 1992 conviction until after appellant’s second trial. The denial of appellant’s new trial motion on this particular ground involved both a mixed question of law and fact; first, the trial court determined the fact whether the juror had knowledge of the 1992 conviction at the time of appellant’s second trial and, after determining witness credibility and per force finding that such knowledge did not exist, then applied the applicable law to deny appellant’s motion as to this ground. “We will not reverse the trial court’s fact findings which underpin its legal conclusion made at a [motion for new trial hearing], unless they are clearly erroneous.” Whatley v. State, 196 Ga. App. 73, 78 (5) (395 SE2d 582) (findings as to mixed question of law and fact made at a suppression hearing). We also find de novo that the evidence at the pretrial hearing is sufficient to support the findings of fact of the trial court inherent in its determination that the juror’s version of events were credible.

“ Tn order to obtain a new trial, [appellant] must show that the juror[ ] failed to answer honestly a material question and that the correct response would have provided a valid basis for a challenge for cause.’ ” Maxwell v. State, 218 Ga. App. 780, 781 (1) (463 SE2d 517). As appellant failed to prove that the juror was in fact aware of the prior 1992 conviction at appellant’s second trial, he has not carried his burden of showing that the juror failed to answer honestly a material question on voir dire.

3. Appellant asserts in his enumeration of error that he was denied effective assistance of counsel on three specific grounds: (a) failed to challenge numerous contradictions of testimony and to impeach the witnesses, (b) failed to discredit the interview with the child, and (c) failed to renew the motion for change of venue at the start of trial. Under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674), “[t]o establish ineffective assistance of counsel, [appellant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284). “A strong presumption exists that trial counsel’s performance, in any given case, falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered strong trial strategy.” Rachell v. State, 210 Ga. App. 106, 108 (2) (a) (435 SE2d 480).

At the hearing on the new trial motion, appellant’s appellate counsel argued those points which appellant contended would support his inadequacy of counsel claim; appellant elected not to call his trial defense counsel as a witness and presented no other witness testimony in support of his claim. At the hearing, appellant asserted that his trial defense counsel could have impeached prosecution witnesses with several alleged prior inconsistent statements made by them at his 1992 trial. However, appellant has failed to include a transcript of the 1992 trial in the appellate record, or to move timely for leave to supplement the record with such transcript. We have already granted appellant one opportunity to supplement the record belatedly by addition of the new trial motion hearing transcript; yet at no time has appellant timely moved for permission to supplement the record with the 1992 trial transcript. The absence of the 1992 trial transcript compels this Court to presume that trial defense counsel’s conduct was not deficient in failing to utilize evidence in that transcript in an attempt to impeach prosecution witnesses. See Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 165 (3) (464 SE2d 259); Jackson v. State, 213 Ga. App. 170, 171 (2) (a) (444 SE2d 126); Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418). Additionally, appellant has failed to overcome the presumption that his election not to use the transcript was based upon sound trial strategy; the strategic desirability of not alerting the jury to appellant’s prior 1992 trial for the same offense is obvious. Appellant has failed to show that his trial defense counsel’s failure to use the 1992 trial transcript in an attempt to impeach witnesses was professionally deficient conduct within the meaning of Strickland, supra.

Regarding appellant’s enumeration of ineffective assistance in that trial defense counsel failed “to discredit the interview with the child,” appellant’s sole argument in support of this claim is that “his counsel failed to attack the interview with the child in regards to the numerous leading questions that were used by the investigators.” Other issues, if any, which might have been advanced to support a claim of professional deficiency by failing “to discredit the interview with the child” are deemed to be abandoned on appeal. Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 158 (1) (447 SE2d 122). “ ‘The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with [the] client.’ ” Hudson v. State, 218 Ga. App. 671, 672 (462 SE2d 775). Appellant has failed to overcome the presumption that counsel’s election not to attempt to discredit the child’s statements on the grounds that leading questions were utilized in the interview techniques of the witnesses was based upon sound trial strategy. In this regard, the record reveals that the child was present and available to testify had either side elected to call her to the stand. The strategic desirability of not attacking the admissibility of the child’s pretrial statements on the mere claim that leading questions were employed, and thereby run a risk that the State would elect to call the child to the stand to testify in person, also is too obvious to require detailed analysis. Appellant has failed to carry his burden of showing that his trial defense counsel was professionally deficient in failing to discredit the child’s pretrial statements, on the grounds that leading questions had been employed during the interview process, within the meaning of Strickland, supra.

Appellant’s final contention is that trial defense counsel engaged in inadequate representation by failing to renew her motion for change of venue before trial notwithstanding that one member of the jury stated that she had served on a jury in 1992. The trial court immediately conducted a bench conference with counsel and the potential juror outside the hearing of the other jurors. The juror then stated she believed she had sat on the jury in 1992 as appellant’s name and the case were familiar. The juror was forthwith excused without further comment being uttered by her within the hearing of the other jurors, and the bench conference was concluded. OCGA § 17-7-150 (a) (1) provides the statutory standard for granting change of venue based on a claim that an impartial jury cannot be obtained to try the case. “To prevail on a motion for change of venue pursuant to OCGA § 17-7-150 (a), a defendant must show either that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” Cheeks v. State, 203 Ga. App. 47, 49 (3) (b) (416 SE2d 336). The record contains no evidence which would support a change of venue on either of the above grounds, and appellant can but speculate, based on contents of the record, that the trial court would have granted a change of venue had the motion been renewed. The filing of frivolous motions is not condoned, let alone required of competent counsel. See Pendleton v. State, 184 Ga. App. 358, 359-360 (1) (361 SE2d 663). It is not deficient to fail to file a frivolous motion. Williams v. State, 219 Ga. App. 167, 169 (464 SE2d 404).

Moreover, the decision whether or when to file or renew a motion for change of venue, as with other motions, is a matter of trial strategy or tactics within the meaning of Hudson, supra. Appellant has failed to overcome the presumption that trial defense counsel’s failure to renew the motion for change of venue might be a decision based upon sound trial strategy; he “has failed to overcome the broad presumption of effective assistance of counsel.” Rachell v. State, supra at 108 (3) (a). “Under the circumstances in this case, and relying on the ‘strong presumption’ that counsel’s performance was not deficient” (Luallen v. State, 266 Ga. 174, 176 (3) (a) (465 SE2d 672)), we find appellant has failed to establish that counsel’s failure to renew the motion for change of venue constituted conduct that was professionally deficient within the meaning of Strickland, supra.

Decided June 25, 1996.

White & Choate, Harold J. Choate III, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Additionally, the trial court expressly found “as a matter of fact and law that [appellant’s trial defense] attorney . . . was not ineffective.” “ ‘The trial court’s determination that [appellant] has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ ” Hudson, supra at 672 (1). The trial court’s finding was not clearly erroneous.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


text:
    A96A0019.
    A96A0020.
    ROBINSON v. THE STATE. SMITH v. THE STATE.
    (473 SE2d 519)
   Judge Harold R. Banke.

Co-defendants Robert Joseph Smith and Ricky Leslie Robinson, both white former Hapeville police officers, were convicted of voluntary manslaughter after shooting a black man in a parking lot at the Hertz Corporation’s repair shop. The shooting occurred while both were on duty, responding to a report that the man had threatened a Hertz worker with a knife. The evidence showed that when Robinson arrived at the scene he initially spoke to several Hertz employees who pointed out the man and stated he had a knife. The defendants collectively assert ten errors, but because one is dispositive, we need not reach them all. Held:

1. The trial court erred in refusing to give a jury instruction tracking the language of OCGA § 17-4-20 (b) on the use of deadly force by police officers. Because this omission created a “substantial error in the charge which was harmful as a matter of law,” we must reverse notwithstanding the fact that the charge was verbally requested after the jury began deliberating. OCGA § 5-5-24 (c).

At the heart of this case is the fact that the shooting occurred while the defendants were acting in the line of duty, responding to a citizen’s complaint that the decedent had threatened to kill him. The requested charge addresses this fact, delineating when officers may use deadly force. The requested statute states in pertinent part: “Sheriffs and peace officers who are appointed or employed in conformity with Chapter 8 of Title 35 may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.” OCGA § 17-4-20 (b). This statute provides specific guidelines on the use of deadly force by law enforcement officers, the situation extant here.

The justification charge given was wholly inadequate to inform the jury of the applicable law. The charge given applied to ordinary citizens, not to law enforcement officers acting in the line of duty. It did not allow for the use of deadly force on the reasonable belief that the suspect possessed a deadly weapon. The undisputed evidence showed that the officers were responding to a report that the decedent had threatened a man with a knife. The entire defense was based on the premise that the defendants’ actions were justified because of their unique position as law enforcement officers, yet the charge given failed to contemplate that status in any way.

Furthermore, the charge given failed to inform the jury that “when the affirmative defense of justification is raised by a defendant, the state has the burden of proving the absence of the elements of that affirmative defense,” which is reversible error in itself. Nelson v. State, 213 Ga. App. 641, 643 (3) (445 SE2d 543) (1994). In addition, the court failed to charge the jury that if they believed the defendants were justified, their duty was to acquit. Id. It is not “plain from the charge as a whole that if the jury determined the shooting to be legally justified, it had to acquit.” Id. at 644. Because the justification charge given was inadequate and the requested charge went to the core of the defense with sufficient evidence to support it, a new trial is required. Printup v. State, 217 Ga. App. 495, 496 (3) (458 SE2d 662) (1995).

Decided June 11, 1996

Reconsideration denied June 26, 1996

Michael E. Bergin, for appellant (case no. A96A0019).

Lee Sexton, for appellant (case no. A96A0020).

Lewis R. Slaton, District Attorney, Willliam C. Akins, Carl P. Greenberg, Assistant District Attorneys, for appellee.

2. Robinson and Smith argue that the loss of transcripts and tapes from certain pretrial proceedings during a move entitled them to a new trial. Although this loss is deeply troubling and impugns the recordation requirements of both OCGA §§ 5-6-41 (a) and 17-8-5 (a), we are bound by Supreme Court precedent which requires defendants to prove harm arising from the loss. Smith v. State, 251 Ga. 229, 230 (2) (304 SE2d 716) (1983). We cannot find reversible error on this ground because they failed to show harm.

3. Because the following issues may arise on retrial, we will address them. Marital privilege justified the exclusion of suicidal statements the decedent allegedly related to his wife on the day this incident occurred. White v. State, 211 Ga. App. 694, 695-696 (3) (440 SE2d 68) (1994); Ga. Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575 (1), 576 (228 SE2d 731) (1976); OCGA § 24-9-23. Inasmúch as the record established that the communications were confidential, the wife’s testimony was not compellable. Wilcox v. State, 250 Ga. 745, 754-755 (3) (301 SE2d 251) (1983). Absent a sufficient showing that the defendants’ right of confrontation necessitated the abrogation of the marital privilege, this argument lacks merit. Brown v. State, 261 Ga. 66, 71 (5) (401 SE2d 492) (1991); compare Bobo v. State, 256 Ga. 357, 359 (3) (349 SE2d 690) (1986).

4. We reject Robinson’s argument that the indictment should have been quashed because the State may not have properly administered the statutory oath to the grand jury witnesses. Assuming that the requisite oath was not administered in accordance with OCGA § 15-12-68, this would not entitle Robinson to a new trial. Gossitt v. State, 182 Ga. 535 (1) (186 SE 417) (1936).

Judgments reversed.

Johnson, J., concurs. Ruffin, J., concurs in the judgments only.

       Although the court charged on the burden of proof as to affirmative defenses, it never characterized justification as such.

       On retrial, we advise the trial court to evaluate the final sentence of OCGA § 17-4-20 (b) in light of Tennessee v. Garner, 471 U. S. 1, 11 (105 SC 1694, 85 LE2d 1) (1985).

       The record shows that the statutory requisites of OCGA § 5-6-41 were satisfied with regard to the pretrial motion proceedings at issue. The parties could not agree on their recollection of the proceedings, and the court issued an order in which it stated it could not recall what transpired.