text:
    A99A1315.
    CHIAKA v. RAWLES et al.
    (525 SE2d 162)
   Smith, Judge.

A disgruntled former graduate student, Bennett O. Chiaka, instituted litigation against Clark Atlanta University (“Clark Atlanta”) and two of its officials, Clifton B. Rawles and Larry L. Earvin. Claiming that Clark Atlanta had misled him into believing that it offered a doctoral degree in African and African-American studies within its College of Arts and Sciences, Chiaka sought to recover damages for breach of contract, promissory estoppel, fraud, negligence, as well as punitive damages. The trial court granted a defense motion for summary judgment against all of Chiaka’s claims, and Chiaka filed this appeal. Because Clark Atlanta successfully pierced the pleadings, we affirm. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

On summary judgment, we must construe the evidence and all reasonable inferences and conclusions in favor of the non-movant, Chiaka. Medley v. Boomershine Pontiac &c., 214 Ga. App. 795, 798 (4) (449 SE2d 128) (1994). Viewed in that light, the evidence shows that in early 1994, Chiaka applied for admission at Clark Atlanta seeking to obtain a degree in “Afro-American Studies.” In a May 3, 1994 letter, Clifton B. Rawles, the Director of Admissions at Clark Atlanta, advised him: “[i]t is my pleasure to inform you that the Committee on Graduate Admissions has approved your application to our graduate program. You have been admitted to the Doctor of Arts degree program in African and African American Studies, commencing in the Fall semester, 1994.”

For personal reasons, Chiaka sought to defer his acceptance for more than two years. Due to this delay, Clark Atlanta required that he reapply for admission. During the interim, almost a year before Chiaka finally enrolled, Rawles notified him that:

Dr. Charles Duncan, Chair of the Humanities Department, has requested that you be advised that you will be required to successfully complete twelve semester hours of prerequisite graduate courses in African and African American Studies. You may contact Dr. Duncan at [phone number] if you have any questions.

When Clark Atlanta reaccepted Chiaka, it did so provisionally. In the acceptance letter of November 25, 1996, Dean Larry L. Earvin notified Chiaka that “our Committee on Graduate Admissions has provided a conditional approval for you to pursue the Doctor of Arts program in African and African American Studies commencing the Spring Semester, 1997.”

Although Chiaka finally enrolled at Clark Atlanta in January 1997, he dropped out several weeks later. According to Chiaka, only after enrolling and attending classes did he discover that Clark Atlanta did not offer a doctoral degree in African and African-American studies within its College of Arts and Sciences. Instead, he learned that Clark Atlanta offered only a Doctor of Arts in Humanities with a specialty in African-American studies. In suing Clark Atlanta, Chiaka asserted, among other things, that Clark Atlanta induced him to matriculate at Clark Atlanta by failing to disclose that it lacked the program of study that he desired to pursue. Chiaka claimed that he left his employment in Philadelphia, declined admission to two other doctoral programs in other cities, incurred student loan indebtedness, and relocated to Atlanta, only to discover that Clark Atlanta did not offer the program to which he had been admitted.

In support of Clark Atlanta’s motion for summary judgment, Dr. Charles Duncan, Director of the Doctor of Arts in Humanities Program since 1991, attested that the Doctor of Arts in Humanities Program at Clark Atlanta is an interdisciplinary degree specializing in one of four areas: African-American studies, English, history, and romance languages. Dr. Duncan testified that “[u]pon completion of the degree requirements, a student receives a Doctor of Arts in Humanities degree with his/her particular specialty area noted. The doctoral level African American Studies program is and always has been a component of the Doctor of Arts in Humanities Program.” Clark Atlanta also tendered copies of its application package and other school documents.

In granting summary judgment to the defendants on Chiaka’s breach of contract claim, the trial court found that no contract was formed between the parties because there was no meeting of the minds. The court concluded that Clark Atlanta’s offer of admission was simply a notification of acceptance and not a legal and enforceable contract. The court also noted, “the evidence of record demonstrates that Plaintiff knew or should have known that he applied to the Doctor of Arts in Humanities Program to pursue the Doctor of Arts in Humanities degree with a specialty in African American Studies.”

In granting summary judgment on the fraud count, the court found:

Plaintiff has failed to provide any evidence to show that any representations made by defendants were made with the intention and purpose of deceiving him. Further, plaintiff has failed to demonstrate that he reasonably relied on the alleged misrepresentations. The Court concludes that plaintiff’s failure to review the University’s Graduate Catalog, the Program Brochure or to otherwise obtain specific program information (as the application booklet instructs applicants to do) is fatal.

Employing the same logic, the court also granted summary judgment on Chiaka’s claim for negligent misrepresentation.

1. Chiaka contends the trial court erred in finding there was no meeting of minds between him and Clark Atlanta with regard to his breach of contract claim. He asserts that Clark Atlanta breached an enforceable contract requiring that Clark Atlanta afford him the opportunity to obtain a Doctor of Arts degree in African and African-American studies. Clark Atlanta, however, counters that there was “no meeting of minds” as to this degree program and that, instead, “[pjlaintiff entered into a valid contract with Clark Atlanta to pursue the Doctor of Arts degree in Humanities with a specialization in African American Studies.”

Without reaching the issue of what doctoral degree would have been denoted on some future diploma, the record demonstrates indisputably that Chiaka did not satisfy a mandatory pre-enrollment condition. Chiaka’s acceptance in the doctoral program was conditioned upon his successful completion of 12 semester hours in certain specified courses at Clark Atlanta. But Chiaka withdrew from the university before complying with this mandatory condition. Since Chiaka failed to satisfy this prerequisite, he never obtained regular admission status and cannot enforce a purported agreement to provide a particular degree to him. See Blaine v. Savannah Country Day School, 228 Ga. App. 224, 226-227 (491 SE2d 446) (1997) (by violating school honor code, student, not school, breached contract); Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 607-608 (1) (337 SE2d 45) (1985) (college entitled to summary judgment on breach of contract claim due to student’s misconduct in violating standards). See also Burke v. Emory Univ., 177 Ga. App. 30, 32 (338 SE2d 500) (1985) (judicial intervention in the academic process is to be generally avoided).

2. Chiaka asserts that the trial court erred in finding the requisite elements of fraud were lacking. He contends that Clark Atlanta admitted him into a program that it knew was not available and it did so intending to defraud him.

The elements essential to an action in tort for fraud are: (1) false representations made by the defendant, (2) which the defendant knew were false, (3) made with an intent to deceive the plaintiff, (4) justifiable and detrimental reliance by the plaintiff on such representations, and (5) damages suffered by the plaintiff as a result. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989); Lister v. Scriver, 216 Ga. App. 741, 745 (1) (a) (456 SE2d 83) (1995).

To survive a defense motion for summary judgment on a fraud claim, a plaintiff must offer some evidence from which a jury could find each of these elements. Reeves v. Edge, 225 Ga. App. 615, 618 (2) (484 SE2d 498) (1997). Here, no evidence was presented that Clark Atlanta intended to deceive Chiaka by the wording of its letter of acceptance or by any representations made by Clark Atlanta in its application booklet or otherwise. See Miller v. Economy Trading &c., 193 Ga. App. 344, 346 (2) (387 SE2d 620) (1989).

While ordinarily the question of fraud requires jury determination, when a party completely fails to exercise reasonable diligence to ascertain the truth, his or her claim cannot survive summary judgment. See Reeves, supra at 618-619 (2). “[0]ne can not close his eyes but must show some fraud perpetrated by the other party which actually prevented him from knowing the provisions of the contract. [Cits.]” Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 431 (1) (193 SE2d 885) (1972).

Here, notwithstanding the potential for confusion possibly engendered by the letter of acceptance, it is undisputed that Chiaka received an application booklet from Clark Atlanta. Part of the application booklet unquestionably indicates that the highest degree offered by Clark Atlanta in African-American studies or in African studies is a Master of Arts degree. The application booklet plainly discloses that the College of Arts and Sciences offers a Doctor of Arts degree with a concentration in African-American studies only through its Humanities Department.

In Chiaka’s letter of intent directed to the admission committee, Chiaka explained that one reason “why I chose Clark Atlanta University is because of the richness of the program as outlined in the school brochure.” Yet, the university’s brochure entitled “Doctor of Arts in Humanities,” explains plainly that the degree sought by Chiaka is part of the humanities program. According to the brochure:

[T]he program entails 48 hours beyond the master’s degree and fulfillment of general University requirements for all doctoral degrees including a comprehensive examination, an oral presentation of research results to the department seminar, a dissertation or its equivalent appropriate to the degree and a final examination. The 48 course credit hours are: 12 hours of interdisciplinary core courses; 12 hours of the pedagogy core, including a 6-hour internship; 24 hours in a field of specialization: African American Studies, English, History, French or Spanish.

The same brochure describes in some detail the interdisciplinary courses, pedagogy courses, and areas of concentration.

Chiaka, who had already earned two master’s degrees from another university, admitted that he did not contact any official at Clark Atlanta to ascertain the precise contents or requirements of the doctoral program for which he enrolled. In light of Chiaka’s apparent failure to make reasonable inquiries into the contents and requirements of the doctoral program, he cannot demonstrate that he exercised reasonable diligence to discover the true facts or that he justifiably relied upon the representations in Clark Atlanta’s acceptance letter. Reeves, supra at 619 (when plaintiff blindly relies upon representations that could have been readily verified, plaintiff cannot demonstrate due diligence); Maxwell, supra.

3. Chiaka contends that the trial court erred in finding that the requisite elements of his claim for negligent misrepresentation were lacking. We disagree.

Because Chiaka failed to offer any evidence to show that he reasonably relied on information that was false and that such false information was given for the purpose of inducing his reliance thereon, Clark Atlanta was entitled to judgment as a matter of law. Williams v. Fallaize Ins. Agency, 220 Ga. App. 411, 413-414 (1) (469 SE2d 752) (1996); see generally Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983).

4. The record belies Chiaka’s assertion that the trial court failed to “deal with” his claim for negligence.

The court’s order specifically found: “[d]efendants are entitled to summary judgment on plaintiff’s negligence claim.” The record indicates that Chiaka’s allegation of negligence, as set forth in his complaint, and as argued on summary judgment, was founded on misrepresentations allegedly made by Clark Atlanta. Chiaka did not object to this claim being treated as one for negligent misrepresentation. Although Chiaka now attempts to recast the count for negligence as being a claim for a breach of duty arising from the violation of a special duty flowing from the parties’ relationship as created by contract, Chiaka neither amended his complaint nor sought clarification and a ruling from the trial court on that issue. This court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal. Peavy v. Goodroe, 237, Ga. App. 36, 37 (1) (514 SE2d 699) (1999); Saffar v. Chrysler First &c., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994).

Judgment affirmed.

Pope, P. J, and Eldridge, J., concur.

Decided November 15, 1999.

Cyprian T. Okonkwo, for appellant.

Lance P. Dunnings, Michael A. Baskin, for appellees.

       This letter further stated, “[y]our admission to Clark Atlanta University is based on the condition that you complete 12 hours graduate course [s] in African and African American Studies (may be taken concurrently with required humanities courses). Once this condition has been met, you will be accorded regular admission status.”


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A2455.
    RENDER v. THE STATE.
    (525 SE2d 368)
   Blackburn, Presiding Judge.

Adrian Render appeals his conviction, following a jury trial, for selling cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b), contending that his conviction must be reversed because the State failed to prove venue. Render raised this issue during trial by making a motion for a directed verdict and, later, during his motion for a new trial. For the reasons set forth below, we affirm.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county where the crime is alleged to have been committed. Venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. Only when the evidence is not conflicting and when no challenge to venue is raised at trial will slight evidence be sufficient to prove venue. When there is insufficient evidence of venue, the verdict rendered is contrary to law and without sufficient evidence to support it.

(Footnotes omitted.) Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). “Further, circumstantial as well as direct evidence may be used to establish venue. Venue is a question to be decided by the jury[,] and its decision will not be set aside as long as there is any evidence to support it.” (Citation omitted.) Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980).

Because Render challenged venue during his trial, the slight evidence rule is not applicable in this case. The evidence adduced at trial, however, is enough to establish venue beyond a reasonable doubt. Viewed in the light most favorable to the verdict, the record shows that Render was found guilty for selling cocaine to undercover officers on February 9, 1998, in Meriwether County. Agent Donnie Winfield, a member of the Haralson County Drug Task Force, testified that he was assigned to work in Meriwether County on February 3, 1998. Winfield further testified that, on that date, he traveled to a residence off Highway 85 where Render participated in a sale of iocaine to him. There were several houses on the same piece of property where the sale took place, including a gray house and a tan house. On cross-examination, Render’s attorney asked Winfield where in Meriwether County he had seen Render, and Winfield replied that he had seen him at the tan house where the drug sales took place. This testimony supports the jury’s determination that venue was appropriate in Meriwether County beyond a reasonable doubt, and, as such, the trial court appropriately denied both Render’s motion for directed verdict and motion for new trial on this issue.

Decided November 15, 1999.

Joseph W. Jones, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Smith, Judge.

text:
    A99A0918.
    A99A0919.
    MOORE-SAPP INVESTORS v. RICHARDS. CITY OF BRUNSWICK v. RICHARDS.
    (522 SE2d 739)
   Smith, Judge.

We granted the applications of Moore-Sapp Investors and the City of Brunswick, Georgia, for interlocutory appeal in this premises liability case to review the trial court’s denial of their motions for summary judgment. We conclude that their motions should have been granted, and we reverse the judgments below.

The record shows that while walking across property owned by Moore-Sapp to reach a grocery store, the plaintiff, John Richards, stepped into a hole where a City of Brunswick water meter either was or had been at one time. It was dark, and Richards did not see the hole. Richards admitted he was on Moore-Sapp’s property purely for his own convenience, because it offered a shorter route to the grocery store. He did not have permission to be there. A public sidewalk leading to the store was available for Richards’s use, and it was at least nine and one-half feet from the hole. Further, a tree stood between the sidewalk and the hole. Richards was injured in the fall and brought suit against Moore-Sapp and the city, seeking compensatory and punitive damages. The complaint alleged that both defendants were negligent. Both defendants answered, and both moved for summary judgment.

The motions were based upon the defendants’ allegations that Richards was, at best, a licensee, if not a trespasser, on Moore-Sapp’s land when he fell and was owed only the duty not to injure him wantonly or wilfully. Both defendants alleged they had no knowledge of his presence, and no evidence was presented of wilful or wanton conduct. The trial court nevertheless denied the defendants’ motions for summary judgment. The court found that because the city was not the property owner, it owed Richards the duty of ordinary care. The court further found that although Moore-Sapp’s duty was not to injure Richards wantonly or wilfully, “it is usually willful or wanton not to exercise ordinary care to prevent injuring a person who may reasonably be expected to be within range of a hidden peril on one’s premises.”

1. Both appellants enumerate as error the trial court’s ruling that they could be held liable for failing to exercise ordinary care. We agree that the trial court erred.

(a) Richards’s status determines the duty of care owed him by the landowner, Moore-Sapp. Brooks v. Logan, 134 Ga. App. 226, 227 (1) (213 SE2d 916) (1975).

The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier. [Cits.]

Savage v. Flagler Co., 185 Ga. App. 334, 337 (2) (364 SE2d 52) (1987), rev’d on other grounds, 258 Ga. 335 (368 SE2d 504) (1988). Because no dispute exists that Richards had no business on Moore-Sapp’s property, but walked across it merely for his own convenience, he was not an invitee. A landowner is under no duty to keep premises in a safe condition for the benefit of trespassers or bare licensees. Brooks, supra at 228 (1). “To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.” (Citation and punctuation omitted.) Hawkins v. Brown, 228 Ga. App. 311, 313 (491 SE2d 423) (1997). The doctrine of mantrap rests on the theory that the landowner was expecting the trespasser or licensee and prepared his premises to injure the visitor. If a peril is not so close to a traveled way to pose a danger to those accidentally stepping off that path, it is not a mantrap. Id. at 313-314.

The principle relied upon by the trial court in holding that “it is usually willful or wanton not to exercise ordinary care” has some validity. But it applies only when the injured person “is actually known to be or may reasonably be expected to be[ ] within range of a dangerous act being done or a hidden peril on one’s premises.” (Citation and emphasis omitted.) Brooks, supra at 228 (1). It is simply an application of the duty not to injure wantonly and wilfully, and it does not apply when the alleged negligence arises from static or passive conditions. In those cases, the only duty owed is not to injure wilfully or wantonly. Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (1992).

A distinction exists between cases in which the negligence is active and those involving a static condition or passive negligence. The principle underlying the distinction is the same as that of mantrap, and a landowner may have a static condition on his land if it is not so close to a well-traveled path that it presents a danger to those who might accidentally step off that path. Brooks, supra at 229 (2).

In this case, the hole was neither mantrap nor active negligence; it was a static condition. It was at least nine and one-half feet from the paved path and not so near the public sidewalk as to constitute a peril to a person accidentally stepping off the sidewalk. The trial court erred in finding that Moore-Sapp could be held liable for failing to exercise ordinary care. Because no evidence was introduced of wanton or wilful conduct, Moore-Sapp’s motion for summary judgment should have been granted. Frank Mayes & Assoc. v. Massood, 238 Ga. App. 416, 420 (518 SE2d 903) (1999).

(b) We similarly cannot agree with the trial court’s determination that because the city was not the landowner, its duty to Richards was to exercise ordinary care. Richards argues that because he had no relation whatsoever with the city, it owed him a heightened duty of care. In cases such as Lewis v. Ga. Power Co., 182 Ga. App. 375 (355 SE2d 731) (1987) and Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193 (150 SE2d 563) (1966), children were injured by contact with high-voltage wires when they climbed power poles. Although the poles were owned by the defendant power companies, they were located on land owned by others. Id. at 197. We determined that the defendants were not liable under the principles discussed above pertaining to landowners. Although we agree with Richards that some distinctions exist between those cases and this one, we find those distinctions immaterial. If Richards had no permission to cross the land on which the hole was located and was owed no duty of exercising ordinary care by the owner of that land, it defies logic to find that he was owed a greater duty by the city, which did not own the land. Because we have determined that the hole was not a mantrap and no evidence was introduced that the city acted wantonly or wilfully, the trial court erred in denying the city’s motion for summary judgment.

2. The city also enumerates as error the trial court’s failure to address its arguments that no punitive damages were awardable against it. It argues that such an award “against a governmental entity is against public policy and is thus impermissible as a matter of law.” (Citations and punctuation omitted.) City of Lafayette v. Morgan, 220 Ga. App. 543, 545 (2) (469 SE2d 532) (1996). We need not address this issue, because we have determined that no compensatory damages are awardable, and “[plunitive damages are awardable only when other damages, compensatory in nature, are awarded. [Cit.]” Durham v. Mooney, 234 Ga. App. 772, 774 (4) (507 SE2d 877) (1998).

Decided September 24, 1999

Reconsideration denied November 16, 1999

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Bradley J. Watkins, for appellant (case no. A99A0918).

Gilbert, Harrell, Gilbert, Sumerford & Martin, Lisa G. Wood, Carlton A. DeVooght, for appellant (case no. A99A0919).

James A. Yancey, Jr., for appellee.

Judgments reversed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1188.
    HALDI et al. v. WATSON.
    (522 SE2d 696)
   Smith, Judge.

Glenville Haldi, an attorney, and his professional corporation, Glenville Haldi, PC. (collectively “Haldi”), brought suit against William Watson, M.D., a former client, for payment for legal services. The complaint alleged claims for breach of contract and quantum meruit. Watson answered and moved for summary judgment. The trial court granted Watson’s motion, and Haldi appeals. We find no merit in Haldi’s contentions on appeal, and we affirm.

The record shows that Watson retained Haldi to represent him in a dispute with his former partners and that Haldi filed suit on behalf of Watson. Haldi and Watson agreed that Haldi’s fee would consist of a retainer of $15,000 plus a contingency fee of one-third of any amount recovered by way of settlement and/or judgment. They also agreed that the $15,000 retainer would be deducted from any recovery, making Haldi’s fee “in essence . . . either $15,000 or one-third of any amount of recovery, whichever is the greater sum.” This agreement was memorialized in a letter to Watson. Watson paid Haldi the $15,000 retainer. Before trial, Watson discharged Haldi and retained other counsel. The case was subsequently tried, and iVatson recovered nothing.

1. We agree with the trial court that under the clear terms of the contract, Haldi may not recover because Watson has paid all sums due under the contract. The contract provided that Haldi was to be paid the greater of $15,000 or one-third of the amount recovered. Watson paid Haldi $15,000, and he “recovered” nothing. The contract terms were satisfied.

2. Relying on Yetman v. Greer, Klosik & Daugherty, 225 Ga. App. 397 (483 SE2d 878) (1997), Haldi contends that even if he cannot recover an additional sum under the contract, he may do so under a theory of quantum meruit.

It has been pretty generally held in those States where a client is permitted to discharge his attorney with or without cause, even where the attorney has a contingent fee, that nevertheless, before this can be done, it must be not only by consent of the court on a proper proceeding for that purpose, but also with a proviso that the client either pays to the attorney, or secures to him the fees he has already earned and to which he is rightfully entitled. The discharge of the attorney by the client does not defeat the attorney’s right to be paid; the right to receive compensation comes, not under the contract of employment which is at an end, but under quantum meruit which is protected by the attorney’s lien statute.

(Citations and punctuation omitted.) Id. at 399 (1).

It is true, as argued by Watson, that an express and an implied contract for the same thing cannot exist at the same time between the same parties. Gilbert v. Edmonson, 193 Ga. App. 593, 594 (1) (388 SE2d 713) (1989). But in this case, unlike Gilbert, the contract did not include post-termination provisions. And when the parties have not expressly agreed, “the law interposes and raises a promise.” (Citations and punctuation omitted.) Id. A recovery under quantum meruit is theoretically possible here.

The trial court recognized Haldi’s theoretical right to recover the value of his services. But the trial court also recognized the distinction between the situation in Yetman and that here. In Yetman, unlike this case, the attorney tried the client’s case and procured a verdict and judgment for the client, which were upheld on appeal. Although the contingent fee contract provided that the attorney fee would be a portion of the recovery, and the client did not recover on the judgment in that case, the favorable judgment “led directly to favorable settlements.” Id. at 400 (1). We held in Yetman, therefore, that the attorney was entitled to a reasonable fee for his services rendered under a theory of quantum meruit.

Unlike the client in Yetman, Watson recovered nothing, and the value of Haldi’s services must be measured by their worth to Watson. If the services have no value to the client, the client has no obligation to pay for them. Id. Otherwise, as the trial court noted, the anomalous result would be that attorneys would be in a better position with regard to their fee than if the contract had not been terminated. Haldi’s speculation that a recovery might have resulted had he not been terminated is just that — mere speculation. The trial court correctly ruled that Haldi could not recover in this case under quantum meruit.

Decided September 20, 1999

Reconsideration denied November 16, 1999

Glenville Haldi, pro se.

Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Richard G. Tisinger, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1599.
    POPE v. THE STATE.
    (522 SE2d 291)
   Smith, Judge.

Gus L. Pope, Jr. was found guilty of burglary after a jury trial in 1995. A motion for new trial was filed, raising only the general grounds. At the hearing on the motion, defense counsel attempted to raise his own ineffectiveness, but was prevented from doing so by the trial court. The motion for new trial was denied, and defense counsel filed a notice of appeal. After the notice of appeal was filed, Pope filed a pro se motion in the trial court requesting that new counsel be appointed to raise the issue of ineffective assistance. This motion was denied without a hearing. The appeal raised the issue of ineffective assistance of trial and appellate counsel. Relying upon DeLoach v. State, 198 Ga. App. 880, 881 (403 SE2d 866) (1991), this court remanded the case to the trial court for a hearing on Pope’s request for new counsel. We instructed the trial court that if the motion to replace appointed counsel was granted, a hearing should also be conducted on the issue of whether trial counsel had provided effective representation. We allowed Pope 30 days from the date of the trial court’s final order on these issues to appeal his conviction and any other rulings adverse to him.

Without holding a hearing on Pope’s pro se motion, the trial court appointed new counsel. A hearing was then conducted on the issue of effectiveness of trial counsel. Pope and his trial counsel both testified. The trial court then entered an order finding that trial counsel rendered effective assistance. Pope filed this timely appeal, raising the general grounds and challenging the trial court’s finding of effectiveness. We find no error and affirm.

1. Pope raises the general grounds. Construed to support the verdict, the evidence presented at trial showed that the victim, who was Pope’s uncle, and his wife were away on a trip from July 7 to July 10, 1993. After returning from their trip, they discovered that their home had been broken into and jewelry worth over $4,500 had been stolen, along with some cash and coins. The victim testified that Pope was present when plans for the trip were discussed. Several witnesses testified that they either observed Pope with a large amount of jewelry or purchased jewelry from him on or about the date of the burglary.

Investigator Barbara Irby of the Monroe County Sheriff’s Office testified that when the victim reported the crime, he told her he received information that Pope had been selling the stolen jewelry in a public park and gave her the names of several individuals who had bought jewelry from Pope. Based on that information, Irby located most of these people, interviewed them, and recovered a number of pieces of jewelry. She identified State’s Exhibit 2 as jewelry she recovered from those individuals. She showed the jewelry she recovered to the victim, who identified the pieces as belonging to his wife.

This evidence was sufficient to authorize the jury to find Pope guilty of burglary under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Pope correctly points out that recent, unexplained possession is not automatically sufficient to support a burglary conviction. Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). But it is probative evidence that must be considered, along with other evidence presented, to determine whether the jury was authorized to find Pope guilty of burglary beyond a reasonable doubt. Slater v. State, 209 Ga. App. 723-724 (1) (434 SE2d 547) (1993). Like Slater, “[t]his was not a case in which the sole evidence of guilt rests upon the inferences that may be drawn from the recent possession of stolen goods.” Id. at 724. Pope was present when the victim decided to leave on a trip; he was seen selling the jewelry immediately after the burglary; and his statements to various persons about the origins of the jewelry were in conflict with each other and with those of the victim that the items belonged to his wife. One witness testified that Pope told her he obtained the jewelry from his brother, who worked at a jewelry store. Another witness testified that Pope said the items came from Griffin. Even if the State’s evidence is characterized as entirely circumstantial,

a jury issue was formed and we will not substitute our judgment for that of the jury. The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of [his] innocence. On appeal we must view the evidence in a light favorable to the verdict, and we find that the evidence is sufficient to enable any rational trier of facts to find the existence of the offenses charged beyond a reasonable doubt.

Decided September 9, 1999

Reconsideration denied November 16, 1999

Richard G. Milam, for appellant.

Gus Pope, Jr., pro se.

(Citation and punctuation omitted.) Hanson v. State, 232 Ga. App. 352, 353-354 (2) (a) (501 SE2d 865) (1998).

2. Pope maintains the trial court erred in finding that his trial counsel rendered effective assistance. We do not agree.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency. We need not address both prongs of this test if the showing on one prong is insufficient.

(Citations and punctuation omitted.) Brown v. State, 225 Ga. App. 49, 51 (1) (b) (483 SE2d 318) (1997). In this case, although Pope alleges several specified instances of alleged ineffective assistance rendered by his trial counsel, we need not address these specifically. Many of the allegations made by Pope concern trial tactics and strategy, and several were disputed or explained by trial counsel. But most importantly, seven different witnesses testified to observing Pope carrying or selling jewelry that was identified by the victim as belonging to his wife almost immediately following a burglary at the victim’s home. Even assuming that trial counsel’s performance was deficient, it is therefore clear that Pope cannot show a reasonable probability that the outcome of his trial would have been any different but for that alleged deficiency. Id. A new trial was not warranted.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.


author: Phipps, Judge.

text:
    A99A1750.
    THE STATE v. STEARNS.
    (524 SE2d 554)
   Phipps, Judge.

Police set up a roadblock north of a cluster of nightclubs and bars as they were closing. Only vehicles driving north were stopped. Stearns was charged with DUI as a result of evidence obtained by police after he was detained. Because only vehicles proceeding in one direction were stopped, the trial court determined that the roadblock was unconstitutional and granted Stearns’s motion to suppress. The trial court’s decision turns on a misapplication of law to undisputed facts. Therefore, we reverse.

DeKalb County police officers established the roadblock near the Cherokee Plaza shopping center in Atlanta. Numerous drinking establishments are located south of the roadblock in the Buckhead area. All northbound drivers were asked to produce driver’s licenses and proof of insurance. Stearns’s vehicle was stopped by Officer Fox. Fox testified that when DeKalb County police establish roadblocks along multi-lane thoroughfares such as Peachtree Road, only vehicles traveling in one direction are stopped because of concerns for officer safety. He testified that there was an insufficient number of officers to stop vehicles going in both directions. Fox explained that roadblocks such as the one in this case are established during evening hours, because traffic is light and all vehicles traveling in one direction can be stopped without creating traffic congestion. Fox testified unequivocally that all vehicles traveling northward on Peachtree Road were being stopped on the night in question, although he acknowledged that he was not observing the roadblock while performing field sobriety evaluations on Stearns. He further acknowledged that the officers at the roadblock were looking for drunk drivers.

Because there were at least eight officers on the scene, numerous marked police cars, cones lining the roadway, and very light traffic, the trial court found that there were more than enough officers to stop vehicles traveling in both directions. The court found that the purpose of the roadblock was to stop potentially intoxicated drivers leaving the bar scene, and the court concluded that the officers violated the Fourth Amendment by stopping vehicles traveling in only one direction. The court reasoned that, “[allowing officers to stop traffic traveling in only one direction gives the police the authority to target particular groups such as Hispanics, Vietnamese, and African Americans which is clearly unconstitutional.” Held:

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

In Delaware v. Prouse, the United States Supreme Court determined that a police officer’s random stop of an automobile to check the licensing of the driver and registration of the vehicle constitutes an unreasonable seizure under the Fourth Amendment. Distinguishing Prouse, the Supreme Court in Michigan Dept. of State Police v. Sitz approved sobriety checkpoints established at pre-selected sites at which all vehicles passing through are stopped and their drivers briefly examined for signs of intoxication.

Relying on Michigan Dept. of State Police v. Sitz, and State v. Golden, the Supreme Court of Georgia in LaFontaine v. State adopted Golden’s five factors to determine when a roadblock stop is reasonable within Fourth Amendment requirements. As stated in LaFontaine, a roadblock is satisfactory where (1) the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; (2) all vehicles are stopped as opposed to random vehicle stops; (3) the delay to motorists is minimal; (4) the roadblock operation is well identified as a police checkpoint; and (5) the screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication. These five factors have not been viewed as absolute requirements, but rather as factors to be taken into consideration in deciding whether, under the totality of the circumstances, there was a valid routine roadblock or the kind of isolated vehicle stop rejected by Prouse.

The trial court found that the roadblock in this case satisfied the first, third, fourth, and fifth factors. The question is whether the one-way roadblock failed to meet the second factor.

In answering this question, we begin by noting that the failure to stop “all” vehicles does not necessarily render the stop of remaining vehicles the kind of random exercise of officer discretion condemned in Prouse. This is illustrated by comparing State v. Manos with Led-ford v. State. Manos recently found a roadblock constitutionally impermissible in view of unfettered discretion of field officers to allow some vehicles to pass based on vague and undocumented articulation of public safety. Ledford did not find it fatal to a roadblock’s reasonableness that officers did not stop 18-wheel commercial vehicles and non-commercial vehicles which had been stopped previously. The difference between Manos and Ledford is that the procedure in the former case but not the latter enabled officers in the field to exercise unregulated discretion in deciding which vehicles to stop. Here, supervisory officers decided to stop all vehicles traveling north on Peachtree Road, Officer Fox testified that all such vehicles were in fact stopped, and the trial court did not find otherwise. This case is more akin to Ledford than to Manos. The failure to stop vehicles going southward was not fatal to the roadblock’s reasonableness. “This is especially true in light of the fact that there is no evidence this roadblock was initiated as a pretext or subterfuge to catch [Stearns]. [Cits.]”

Nor can the roadblock be considered “unreasonable” and “unconstitutional” because it was conducted at a time and place conducive to stopping potentially intoxicated drivers. A valid purpose of roadblocks

is to locate and arrest those who are abusing the privilege of driving on public roads by driving while they are intoxicated. It further serves to deter such abuse. It is not unreasonable that such roadblocks would be located where such drivers would be expected to be at a time they might be expected to be there.

Allowing supervisory personnel to establish one-way roadblocks does not create any significantly greater potential for the improper targeting of ethnic or racial minorities than empowering them to select the sites for two-way roadblocks. The question is whether such targeting actually occurred in a given case. Because there is no evidence in the record to support a finding that it did here, the court erred in granting the motion to suppress.

Decided November 4, 1999

Reconsideration denied November 16, 1999

Gwendolyn R. Keyes, Solicitor, David M. Zagoria, Thomas E. Csider, Assistant Solicitors, for appellant.

Monte K. Davis, for appellee.

Judgment reversed.

Johnson, C. J., and McMurray, P. J., concur.

       (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979).

       496 U. S. 444 (110 SC 2481, 110 LE2d 412) (1990).

       171 Ga. App. 27 (318 SE2d 693) (1984).

       269 Ga. 251, 252 (3) (497 SE2d 367) (1998).

        Brent v. State, 270 Ga. 160, 161 (2) (510 SE2d 14) (1998).

       269 Ga. at 253.

        Ledford v. State, 221 Ga. App. 238, 240 (2) (470 SE2d 796) (1996).

       237 Ga. App. 699, 700 (516 SE2d 548) (1999).

       221 Ga. App. at 240.

        Christopher v. State, 202 Ga. App. 40, 41 (1) (413 SE2d 236) (1991); accord Brimer v. State, 201 Ga. App. 401, 402 (2) (411 SE2d 128) (1991).

       (Citations and punctuation omitted.) 202 Ga. App. at 41.


author: McMurray, Presiding Judge.

text:
    A00A0090.
    MANN v. THE STATE.
    (524 SE2d 763)
   McMurray, Presiding Judge.

Defendant Calvin Mann was tried before a jury and found guilty of violating the Georgia Controlled Substances Act for possessing cocaine with the intent to distribute. As a recidivist, Mann received a life sentence without parole under OCGA §§ 17-10-7 (c) and 16-13-30 (d). After an evidentiary hearing, Mann’s motion for new trial was denied, and this appeal followed. Held:

In three related enumerations of error, Mann contends the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of counsel. Because the conflicting evidence adduced at the evidentiary hearing authorized the trial court’s ultimate conclusion that Mann failed to show a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different, we affirm.

1. The State offered Mann a plea bargain with a sentencing recommendation of seven years, to serve two, and the balance on probation. This plea was rejected. Mann concedes he was informed by defense counsel that the sentence he faced after trial ranged from ten years to life and that, as a recidivist, he would have to serve every day of any sentence. He nevertheless argues he was denied effective assistance of counsel because he rejected the negotiated plea agreement without being informed that the only sentence he could receive was life without parole.

(a) It is not correct that the only sentence Mann could have received for this trafficking offense, his ninth felony conviction, was life without parole. Any person who “upon conviction for [a] fourth [felony] offense or for subsequent offenses [must] serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” (Emphasis supplied.) OCGA § 17-10-7 (c). For a second or subsequent violation of OCGA § 16-13-30 (b), the sentencing judge must impose a sentence of “not less than ten years nor more than 40 years or life imprisonment.” OCGA § 16-13-30 (d). Consequently, the sentencing judge retains the discretion either to impose any sentence within the statutory mandatory minimum and maximum sentence range or else to impose a life sentence. See Mikell v. State, 270 Ga. 467 (510 SE2d 523). Thus, Mann’s factual predicate for this enumeration is not well-taken.

(b) Defense counsel did not provide ineffective assistance by failing to inform Mann of his ineligibility for parole from any authorized sentence.

Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.

(Footnote omitted.) Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1). But eligibility or ineligibility for parole is not a consequence of a plea of guilty, but rather is a matter of legislative grace or a consequence of the withholding of legislative grace. Williams v. Duffy, 270 Ga. 580, 581 (513 SE2d 212). Thus, the requirement of OCGA § 17-10-7 (c), that Mann serve the maximum time provided in the sentence of the judge for this conviction, would have only a collateral effect on Mann’s sentence for possessing cocaine with the intent to distribute, in no way lengthening the sentence itself, but merely conditioning satisfaction of that sentence upon Mann’s incarceration for the rest of his natural life as designated in that sentence. Williams v. Duffy, 270 Ga. at 581, supra. There is no constitutional requirement that a defendant be advised of such collateral consequences for his decision to reject or accept a plea bargain to be valid. Id. Under these circumstances, the trial court’s conclusion that Mann was not denied effective assistance of counsel is not clearly erroneous and will not be disturbed. Taylor v. State, 239 Ga. App. 329, 330 (521 SE2d 375). Accord Whitehead v. State, 211 Ga. App. 121, 123 (438 SE2d 128).

2. Exhibit S-2, a certified copy of defendant’s prior guilty plea to felony possession of cocaine with intent to distribute, was admitted as a similar transaction without objection. Thereafter, Mann took the stand and told the jury his version of events leading to his arrest for the instant offense of possessing cocaine with intent to distribute. In closing argument, the State’s attorney admonished the jury that:

in order to acquit you have to believe that this defendant is telling the truth. You must believe that this convicted drug dealer is telling the truth. You have to believe that this convicted drug dealer who still does not want to be held accountable for the guilty plea he already entered is telling the truth.

Mann’s second enumeration urges that trial counsel was ineffective in failing to interpose a timely objection to this argument, because it was improper to use similar transaction evidence to impugn a defendant’s credibility. We disagree.

The failure to make a meritless objection cannot be any evidence of ineffective assistance of counsel. Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d 886); Mency v. State, 228 Ga. App. 640, 645 (2) (b) (492 SE2d 692). It is quite true that, at the time defendant’s prior cocaine conviction was tendered, it was admissible only as a similar transaction. But thereafter, Mann elected to testify in his own behalf. Since defendant took the stand, he was subject to impeachment for his prior conviction for possessing cocaine with intent to distribute because that conviction represented both a felony and a crime involving moral turpitude. Lewis v. State, 243 Ga. 443, 446 (254 SE2d 830). Accord Kyler v. State, 270 Ga. 81, 84 (10) (508 SE2d 152). The State’s attorney was entirely within her rights to comment on that prior conviction for purposes of impeachment in her closing argument. It follows that trial counsel was not ineffective by failing to interpose a timely character objection to this argument.

3. In a related enumeration, Mann contends trial counsel was ineffective because he submitted a request to charge on impeachment by conviction of a felony. Although this request was withdrawn by counsel, Mann argues this withdrawn request invited the State’s allegedly improper character argument. Because we have previously ruled in Division 2 that the State’s attorney properly argued the similar transaction also amounted to impeachment (once defendant took the stand), we conclude there was no causal relation between the initial submission of the withdrawn request to charge and the permissible argument. We further hold that Mann sustained no legal harm as a result of that permissible argument. The trial court’s denial of Mann’s motion for new trial on the special ground of ineffective assistance of trial counsel is supported by evidence and is not, therefore, clearly erroneous and is affirmed. Smith v. State, 256 Ga. 483 (351 SE2d 641).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Decided November 5, 1999

Reconsideration denied November 16, 1999

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.


text:
    A99A1193.
    McKINNEY v. THE STATE.
    (525 SE2d 395)
   Smith, Judge.

William Connors McKinney appeals from the order of the Gwinnett County Superior Court revoking the probation to which he was sentenced under the First Offender Act. In his enumeration of errors he raises issues involving double jeopardy and violation of the First Offender Act in sentencing. We find no implication here of double jeopardy principles and no error in the length of the sentence. Because we cannot discern from the record whether the trial court granted McKinney credit for the time he served on probation, we affirm the judgment but vacate McKinney’s sentence and remand the case to allow the trial court to resentence McKinney if he in fact was not credited with time served on probation.

The record shows that after a negotiated plea of guilty to a burglary charge, McKinney was sentenced in 1995 under the First Offender Act, OCGA § 42-8-60, to five years probation, with 90-120 days of that term to be served in a probation boot camp. McKinney also was required to pay a $1,000 fine in addition to restitution. He was held in custody in the county jail while awaiting placement in boot camp. Because McKinney could not meet the medical eligibility requirements for placement in boot camp, his sentence was amended to allow him to serve 90-120 days at a probation detention center followed by intensive supervision. While at the detention center, McKinney violated the conditions of his probation. He signed a waiver of revocation hearing, and 60-120 days of his probation were revoked. But the trial court left McKinney’s first offender status intact.

McKinney then completed the incarceration portion of his sentence and the program of intensive supervision, as ordered. In December 1997, after McKinney pled guilty in DeKalb County to the offenses of DUI and failure to maintain lane, his probation officer petitioned the Gwinnett County Superior Court for an adjudication of guilt and imposition of sentence, alleging McKinney had violated the conditions of his probation. The court did not enter an adjudication of guilt but revoked a portion of McKinney’s probation, requiring him to serve six months in the Gwinnett County Correctional Institution. Again his first offender status remained intact.

In May 1998, the Georgia Bureau of Investigation’s Georgia Crime Information Center notified the Gwinnett County Superior Court that in accordance with OCGA § 42-8-65 (b), McKinney’s record had been changed from first offender treatment to a conviction on the original offense of burglary because McKinney had been arrested and convicted of another crime while on probation as a first offender.

In October 1998, McKinney was again charged with violating his probation for committing the offense of DUI and other traffic offenses in DeKalb County, as well as being in arrears on payments toward his fines and fees. After a hearing, McKinney was adjudicated guilty and sentenced to six years, with the first two years in confinement in the state penal system and the remaining time to be served on probation. He was ordered to serve this sentence in addition to time previously served on probation. The probation portion of the new sentence included the new conditions that he pay the balance of fines and restitution within 30 days of release from confinement and that he submit to a mental health evaluation and treatment.

1. McKinney first contends that the GCIC’s modification of his record by administrative action under the authority of OCGA § 42-8-65 (b) was an “adjudication” and punishment that placed him in jeopardy. He argues that because the GCIC “stripped him of his first offender status and publicly announced the imposition of a conviction against him,” the later adjudication of guilt by the Gwinnett County Superior Court constituted a violation of double jeopardy principles. We do not agree.

The GCIC’s action was not an adjudication. “[A] defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn. [Cit.]” Fletcher v. State, 213 Ga. App. 401, 404 (2) (445 SE2d 279) (1994). Only a court that imposed first offender probation has authority to revoke that status; it is the only legal authority that can formally adjudicate the offender. See 1980 Op. Atty. Gen. No. 80-79 (first offender probation may be revoked only by judicial circuit imposing sentence).

Neither was the GCIC’s action a punishment for purposes of double jeopardy. The United States Supreme Court has held that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. [Cit.]” United States v. Halper, 490 U. S. 435, 448 (109 SC 1892, 104 LE2d 487) (1989). But this does not necessarily mean that a civil sanction incidentally serving a punishment purpose constitutes punishment for purposes of double jeopardy. Nolen v. State, 218 Ga. App. 819, 821 (463 SE2d 504) (1995). A civil sanction may constitute punishment if its only purpose is punitive or if it does not bear a rational relation to a nonpunitive purpose. Thompson v. State, 229 Ga. App. 526, 528 (494 SE2d 306) (1997).

In Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993), the Supreme Court of Georgia held that a statute designed primarily to serve remedial purposes but also having an incidental punitive effect does not result in punishment for double jeopardy purposes. Id. at 64. It is apparent that the purpose of OCGA § 42-8-65 (b) is not to punish the offender but to maintain an accurate statewide record of offenders for a variety of reasons, including preventing courts from inadvertently offering first offender status to those who are not first offenders within the meaning of OCGA § 42-8-60.

Being listed in GCIC records as a first offender is a privilege. Like the administrative suspension of a driver’s license, GCIC’s modification of its records is merely “the revocation of a privilege voluntarily granted, a traditional attribute of a remedial action.” (Citations and punctuation omitted.) Nolen, supra at 822. It does not constitute punishment for purposes of double jeopardy analysis. See also Pennyman v. State, 222 Ga. App. 779 (476 SE2d 71) (1996) (termination from police department not punishment for purposes of double jeopardy); Clark v. State, 220 Ga. App. 251 (469 SE2d 250) (1996) (high school suspension after arrest for armed robbery not punishment for double jeopardy purposes). Because the GCIC’s action was neither an adjudication nor a punishment, the trial court’s later adjudication of guilt did not offend double jeopardy principles.

2. McKinney contends the trial court erred by imposing a sentence longer than his original sentence. Under OCGA § 42-8-60, two options exist in first offender sentencing. Under OCGA § 42-8-60 (a) (1), without entering a judgment of guilty, the court may defer further proceedings and place the offender on probation as provided by law. Under subsection (a) (2), again without entering a judgment of guilty, the court may sentence the offender to a term of confinement, also as provided by law. If the first option is used in sentencing, it is clear that the defendant may then be given the maximum sentence for that offense. Tallant v. State, 187 Ga. App. 138, 139 (369 SE2d 789) (1988). McKinney argues that he was sentenced under the second option and that under the holding in Tallant, when he was adjudicated guilty of burglary and his probation was revoked, he could be sentenced to serve only the remainder of the original sentence. We need not address the possible effect of sentencing under subsection (a) (2), because McKinney in fact was sentenced under subsection (a) (1).

McKinney’s sentence was a five-year sentence of probation, with, the requirement that 90-120 days be served in a probation boot camp, later modified to a probation detention center. A trial court has broad discretion to decide the terms and conditions of probation. OCGA § 42-8-35.1 provides for confinement in probation boot camp as a condition of probation. And in Penaherrera v. State, 211 Ga. App. 162 (438 SE2d 661) (1993), this court held that a trial court has the discretion to condition probation upon limited confinement in a detention or diversion center or in the defendant’s own home. Such limited confinement does not constitute incarceration, which “refers to continuous and uninterrupted custody in a jail or penitentiary. [Cit.]” Id. at 163. It therefore is the nature of the facility, as well as the length of the term, that determines whether the sentence is permissible. This distinguishes Pitts v. State, 206 Ga. App. 635 (426 SE2d 257) (1992), relied upon by McKinney, from this case. In Pitts, the defendant was sentenced to serve 48 months in a county correctional institution as a condition of probation. Id. at 637 (3). We held that this sentence was not within the limits fixed by law.

[T]he trial court can, in accordance with law, sentence appellant to a fully probated sentence upon such conditions as it is authorized to impose, including either confinement in a local jail for intermittent periods, such as weekends, or limited confinement, other than in a jail or penitentiary, for a continuous period. However, the trial court will not be authorized to make a term of continuous and uninterrupted incarceration in a jail or penitentiary a condition of that probation.

Id. at 639.

Because McKinney was originally sentenced under OCGA § 42-8-60 (a) (1), when his probation was revoked, the trial court could have sentenced him to the maximum penalty for burglary, which is 20 years for a first offense. OCGA § 16-7-1 (a). The trial court sentenced him to six years, which was entirely permissible.

3. The trial court’s order, however, provides: “This sentence is in addition to any time previously served on probation.” “[W]hen a probationer is sentenced to serve time in a penal institution for the offense for which he has spent time on probation, that probation time must be credited to any sentence received, including cases involving first offender probation.” Stephens v. State, 245 Ga. 835, 837 (268 SE2d 330) (1980).

Decided November 16, 1999.

Stephen D. Pereira, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

OCGA § 42-8-60 (b) provides that when a first offender violates probation or is convicted for another crime during the probationary period, “the court may enter an adjudication of guilt and proceed as otherwise provided by law.” The law requires that McKinney receive credit for time served on probation. OCGA § 42-8-38 (c). The State recommended that McKinney be sentenced to eight years, with two to serve. The trial court sentenced McKinney to six years, with two to serve, and noted that it was “in addition to any time previously served on probation.” We cannot tell from the record whether the trial court actually gave McKinney credit for the time he served on probation. Franklin v. State, 236 Ga. App. 401, 402 (1) (512 SE2d 304) (1999). We therefore remand this case to the trial court. Upon remand, the trial court is directed to ensure that whatever sentence is imposed, McKinney receives credit for the time he served on probation.

Judgment affirmed. Sentence vacated and case remanded with direction.

Pope, P. J., and Eldridge, J., concur.

       We note that the time McKinney spent initially in the Gwinnett County Correctional Institution awaiting a place in special alternative incarceration was not part of his sentence and does not qualify as “incarceration.” Penaherrera, supra at 164 (1). Compare Jones v. State, 224 Ga. App. 340, 341 (1) (480 SE2d 618) (1997) (sentence may not provide that defendant be confined in jail until reporting to boot camp).


author: Miller, Judge.

text:
    A99A1205.
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. ERWIN et al.
    (525 SE2d 393)
   Miller, Judge.

Nationwide Mutual Fire Insurance Company brought this declaratory judgment action seeking a determination as to its duty to defend its insured Carole Erwin in a tort action filed against her by Neal Weinberg and his professional corporation. Nationwide argued that its homeowner’s insurance policy with Erwin did not obligate it to cover the defense because the “business pursuits” provision of the policy excluded coverage. When all parties moved for summary judgment, the trial court granted Erwin’s motion and denied Nationwide’s, which rulings Nationwide appeals. Because Erwin’s alleged wrongful actions were not logically connected to her business pursuits, we affirm.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

Viewed in this light, the record shows that Weinberg and his professional corporation contracted with Erwin to manage his law practice. Weinberg later terminated the arrangement, and both parties filed suits to divide the business assets. As part of their suit and as a counterclaim in the Erwin suit, Weinberg and his professional corporation sought recovery for libel, slander, and invasion of privacy, all of which allegedly occurred after Erwin’s termination. At the time of the acts, Nationwide insured Erwin under a homeowner’s policy that provided coverage for personal liability for personal injury.

“Where the terms and conditions of an insurance contract are clear and unambiguous, they must be given their literal meaning.” The policy defined personal injury to include injury resulting from libel, slander, defamation of character, or invasion of privacy rights. But it excluded injuries “arising out of business pursuits of an insured.” Nationwide argues that the “business pursuits” exclusion prevents coverage here because the dissolution of the Weinberg-Erwin business relationship was the precipitating cause of Erwin’s acts.

Exclusions are to be narrowly construed against the insurer. When determining whether an insurance policy exclusion covered certain conduct, Jefferson Ins. Co. &c. v. Dunn reiterated that the exclusionary phrase “arose out of” focused on the genesis of the plaintiff’s claim. If the claim arose out of the excluded culpable conduct, the insurance company did not have to provide coverage. Weinberg’s claims at issue are based on slander, libel, and privacy invasion acts, all of which occurred during the year after the termination of Erwin’s business relationship with Weinberg when Erwin was looking for another job. Not until a year and a half after the termination did Erwin become employed, when she opened her own business auditing medical bills.

The question is whether any of the alleged acts arose out of business pursuits of Erwin. The policy defines “business” as including “trade, profession, or occupation.” After termination from Weinberg’s firm, Erwin had no trade or profession until she began her medical auditing company. Her occupation (i.e., the principal activity of her life to make a livelihood) was to find a new job. None of the alleged tortious acts arose out of or was logically connected with her looking for a job or her opening a medical bill-auditing business. Because the claims did not arise out of a business pursuit of Erwin, the exclusionary clause of the insurance policy did not apply.

Decided November 16, 1999

Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, Susan H. Sumner, for appellant.

Gomez Law Group, Bernadette C. Crucilla, Richard A. Childs, for appellees.

Nationwide counters that the motivation for Erwin’s actions was revenge for perceived unfair treatment in the termination of her former business relationship with Weinberg. Personal vendettas, however, do not constitute the pursuit of business, even if motivated by bitterness from a former business relationship. The focus must be on the acts themselves and on their logical connection to furthering the insured’s business at the time of their commission. The absence of such a connection here means that the policy covered the claims asserted.

“Where an insurance company seeks to invoke an exclusion contained within its policy, it has the burden of showing that the facts came within the exclusion.” Under the undisputed facts, Nationwide failed to meet this burden, and the court did not err in denying its motion for summary judgment. Nor did the court err in granting summary judgment to Erwin.

Judgment affirmed.

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

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citation omitted.) Adams v. Atlanta Cas. Co., 235 Ga. App. 288, 289-290 (1) (509 SE2d 66) (1998).

        United Svcs. Auto. Assn. v. Lucas, 200 Ga. App. 383, 384 (1) (408 SE2d 171) (1991).

       269 Ga. 213, 215 (496 SE2d 696) (1998).

        Eady v. Capitol Indem. Corp., 232 Ga. App. 711, 714 (502 SE2d 514) (1998).

        Larson v. Ga. Farm &c. Ins. Co., 238 Ga. App. 674, 675 (520 SE2d 45) (1999); see State Farm &c. Ins. Co. v. Seeba, 209 Ga. App. 328, 329 (433 SE2d 414) (1993); Brown v. Peninsular Fire Ins. Co., 171 Ga. App. 507, 508 (320 SE2d 208) (1984).

        Eady, supra, 232 Ga. App. at 714.

       (Citations and punctuation omitted.) Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 764 (3) (206 SE2d 672) (1974).


text:
    A99A1220.
    A99A1221.
    FORSYTH COUNTY et al. v. CHILDERS. GOBER v. CHILDERS.
    (525 SE2d 390)
   Miller, Judge.

Marie Childers was the juvenile intake officer for the Blue Ridge Judicial Circuit until Judge Gober (the chief juvenile court judge) terminated her for violating departmental work rules. She challenged her dismissal and agreed to a hearing before the Forsyth County Civil Service Board, which upheld her termination. As authorized by the agreement, Childers petitioned for certiorari to the superior court, which reversed the Board’s decision on the grounds that there was no evidence to justify the Board’s findings. On appeal, the Board and Cherokee and Forsyth Counties enumerate as error (1) the Board’s lack of authority to review Childers’ termination and (2) the trial court’s substitution of its judgment for that of the Board. Judge Gober reiterates the second enumeration of error and also claims the trial court erred in failing to determine whether Childers was a state or county employee.

Because the parties agreed to have the Board review the case and render a decision, the Board had the authority to review the termination. As the Board’s decision was supported by some evidence, the trial court erred in reversing the decision. Therefore, we reverse the trial court’s judgment and affirm the Board’s decision to uphold Childers’ termination.

1. Appellants claim that because Judge Gober (who they argue was a state employee) had the authority to fire Childers, she was not a county employee entitled to the protections, hearings, and due process guarantees of the Forsyth County Civil Service System. They argue, therefore, that the Board did not have the authority to review Childers’ termination. Regardless of the merits of this argument, we hold that since the litigants contracted to allow the Board to resolve their dispute, the Board had the authority to do so. .

After Childers appealed her dismissal, she and the appellants disputed whether she fell under the Forsyth County Civil Service System. Following negotiations, all parties voluntarily agreed to have the Board hear the merits of the termination. The agreement provided that after the hearing, the Board would serve as the factfinder and render a decision on the issues including (i) the procedural and substantive matters of Childers’ suspension without pay, and (ii) her discharge from employment. The parties specifically agreed that “this hearing shall satisfy all post-suspension and post-termination administrative due process to which Plaintiff may be entitled under local, state or federal law, and that the decision of the Board will be binding on the parties. . . .” They also agreed that the losing party could petition for certiorari for review by the superior court as authorized by law.

The first issue is whether the counties could agree to this contract. The Georgia Constitution states that “[e]ach county shall be a body corporate and politic with such governing authority and with such powers and limitations as are provided in this Constitution and as provided by law.” Also, local governments may contract only where they have the express or implied authority to do so. Therefore, counties can exercise only powers conferred on them by law.

The question here is not whether the counties had the power to add Childers to their civil service system; this was neither the intent nor the import of the agreement between the parties. Rather, the agreement merely chose the Board as the neutral tribunal to hear and resolve the dispute. The counties voluntarily chose to resolve their dispute with Childers by allowing the Board to serve as the factfinder. They further agreed that the only appeal would be by petition for certiorari to the superior court. The contract authorized the Board to hear the dispute. The question, therefore, is whether the counties had the power to agree to have the dispute heard before the Board. Because the evidence did not demand a finding that the agreement was ultra vires, the counties had the discretion to designate the Board as the neutral party to resolve the dispute.

Moreover, Forsyth County created the Board specifically to conduct hearings and render decisions on employment matters. The enabling statute authorized the county to designate when certain employees would become part of the system. It is not ultra vires for the counties to designate the Board as the decision-maker in an employment matter involving a judicial clerk whose status under the civil service system was hotly contested.

2. Appellants also argue that the trial court erred in reversing the Board’s decision and substituting its discretionary judgment for that of the Board. The parties agreed that Georgia law on writ petitions would control. The scope of review of a writ for certiorari to the superior court is “limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” City of Atlanta Govt. v. Smith affirmed that the substantial evidence standard is the functional equivalent of the “any evidence” standard. On appeal to this Court, our duty is not to review whether any evidence in the record supported the trial court’s decision, but whether the record supported the initial decision of the Board.

Decided November 16, 1999.

Barnhart, O’Quinn & Williams, Michael A. O’Quinn, Donald A. Cronin, Jr., Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Christopher D. Balch, Robert M. Mahler, for appellants (case no. A99A1220).

Evidence showed that prior to her termination, Childers underwent surgery and allegedly returned to work. Shortly thereafter, she was terminated for (i) failing to report sick leave, (ii) failing to obey orders, (iii) poor work attitude, and (iv) insubordination. Following a hearing, the Board issued a decision upholding Childers’ termination.

Evidence supported the Board’s decision. Following Childers’ surgery, she remained at home, performing the majority of her intake work telephonically. She conducted only two or three intake visits and allowed her co-worker to perform the rest of the intake tasks. She did not attend court to schedule juvenile work assignments, and when Judge Gober scheduled a meeting with Childers to discuss the situation, she did not attend the meeting and referred him to her attorney.

As there was some evidence to support the Board’s decision, the trial court erred in reversing the decision. Therefore, we reverse the trial court’s judgment and affirm the decision of the Board to uphold Childers’ termination.

3. Because of our decisions in Divisions 1 and 2, Judge Gober’s remaining enumeration of error is moot.

Judgments reversed.

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

Harry M. Moseley, for appellant (case no. A99A1221).

Ted B. Herbert, for appellee.

       Until 1998, the Blue Ridge Judicial Circuit consisted of Cherokee and Forsyth Counties. See Ga. L. 1998, p. 220, § 1.

       The agreement was signed by Childers’ counsel, Judge Gober’s counsel, and counsel for the Forsyth County Civil Service Board and Cherokee and Forsyth Counties. Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client, and the agreement is enforceable against the client by other settling parties. Clark v. Perino, 235 Ga. App. 444, 448 (2) (509 SE2d 707) (1998).

       Ga. Const. of 1983, Art. IX, Sec. I, Par. I.

        Bagwell v. Cash, 207 Ga. 222, 223 (3) (60 SE2d 628) (1950).

        DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 513 (2) (186 SE2d 732) (1972); see McCray v. Cobb County, 251 Ga. 24, 27 (2) (302 SE2d 563) (1983).

       See Faulk v. Twiggs County, 269 Ga. 809, 811 (504 SE2d 668) (1998).

       See OCGA § 36-1-21.

       OCGA § 36-1-21 (b).

        Faulk, supra, 269 Ga. at 811.

       OCGA § 5-4-12 (b).

       228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997).

        Hanrahan v. City of Atlanta, 230 Ga. App. 67 (495 SE2d 324) (1997).


author: Barnes, Judge.

text:
    A99A1364.
    JAGAT v. THE STATE.
    (525 SE2d 388)
   Barnes, Judge.

Rajpaul Jagat appeals his convictions for one count of stalking (OCGA § 16-5-90) and two counts of aggravated stalking /OCGA § 16-5-91) of his ex-wife. Jagat contends that the State failed to prove beyond a reasonable doubt that he violated a pretrial release order and that the State also failed to prove beyond a reasonable doubt that he was near his ex-wife’s house to harass or intimidate her. Jagat further contends the trial court erred by denying his motion for a new trial which was based on these allegations. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence showed that in 1969 Jagat and the victim married in South America and that it was an arranged marriage. Within three weeks after their marriage, Jagat began beating and abusing the victim. In her trial testimony, the victim described numerous incidents of physical abuse and violence by Jagat during their 25-year marriage.

After enduring years of mistreatment, the victim sought a divorce, notwithstanding Jagat’s threats to kill her if she ever left him. Although expressly prohibited from doing so by their divorce decree, Jagat continued to contact his ex-wife; he repeatedly came by her home and telephoned her at work. Further, even though the victim left the area for about a year, Jagat resumed the harassment when she returned.

After Jagat knocked on her car window as she was in her own driveway, the victim obtained a warrant for stalking. Jagat was arrested and when he was released, a special condition of his bond stated:

The defendant shall stay away, absolutely, directly or indirectly, by person, telephone, messenger or any other means of communication from [name of former spouse] hereinafter referred to as victim. That includes, but is not limited to, the victim’s home, school, and place of business or routes of travel to or from those locations.

When Jagat returned to her house yet again, the victim called police, who then arrested Jagat outside her home.

Notwithstanding these two arrests and the conditions of the bond, Jagat continued to call the victim, visit her home and ring the doorbell or try to open the garage door. Often Jagat would drive by or sit in his vehicle and watch the house. The victim also testified that she was afraid of Jagat.

Decided November 16, 1999.

Sharon L. Hopkins, for appellant.

Although Jagat was again released on a bond with the same special conditions as stated above, Jagat was taken into custody near the victim’s home when a police officer responded to a suspicious person call from a neighbor and arrested Jagat who was sitting in a parked car near his ex-wife’s home. Jagat admitted to the officer that he had been to the house and peeked inside the garage looking for her car. As Jagat’s enumerations of error concern only his conviction for this offense, his other convictions are not affected by this appeal.

1. The applicable essential elements of aggravated stalking are: (1) violation of a bond posted pursuant to OCGA § 17-6-110, (2) which prohibits following, placing under surveillance, or contacting another person, (3) without the consent of that person, and (4) for the purpose of harassing and intimidating that person. OCGA § 16-5-91 (a). See Durant v. State, 222 Ga. App. 872, 873 (1) (476 SE2d 641) (1996). The terms harassing or intimidating mean “ ‘a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to . . . herself . . . and which serves no legitimate purpose.’ ” Id. at 873-874 (1); see Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994). Overt threats of bodily harm are not required. Fly v. State, 229 Ga. App. 374, 376 (1) (494 SE2d 95) (1997).

The evidence presented was sufficient to prove that Jagat violated the terms of the release order, and that he did so intending to harass or intimidate the victim. Although the victim was unaware of Jagat’s presence when he was arrested near her home, he admitted that earlier that day he was on her property looking in the garage windows. That evidence was sufficient to prove that he violated the release order and was also sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to sustain Jagat’s conviction for aggravated stalking. See OCGA § 16-5-91 (a).

2. The motion for new trial based upon the alleged insufficiency of the evidence was properly denied. Clay v. State, 214 Ga. App. 160, 161 (1) (447 SE2d 156) (1994).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

Daniel J. Porter, District Attorney, Annette S. Malena, Assistant District Attorney, for appellee.


author: Andrews, Presiding Judge.

text:
    A99A1514.
    BRAND v. UNIVERSITY HOSPITAL.
    (525 SE2d 374)
   Andrews, Presiding Judge.

Christine Brand appeals from the trial court’s grant of University Hospital’s motion for summary judgment on her false imprisonment claim. Because we find Brand submitted sufficient evidence to create a jury issue on this claim, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592 (472 SE2d 140) (1996).

Brand claims that she was admitted to the Behavioral Health Unit of University Hospital around 2:30 a.m. on Thursday, October 28, 1993, and was not released until about 5:30 p.m. on Friday, October 29, 1993. She argues that even though she demanded to be released, the doctors and nurses would not allow her to leave.

Viewing the evidence in the light most favorable to Brand as nonmovant, the record shows that this case arose on October 27, 1993, when Brand, who was out of town on a business trip, pulled into a gas station because she was not feeling well. Before she could stop the car she suffered a seizure and blacked out. She was taken to the hospital in Thomasville where the doctor gave her the option of staying the night and seeing the neurologist the next day or going home to see her own doctor.

Mary Buchanan, a co-worker, testified that after Brand’s accident, two other employees went to get her at the hospital in Thomas-ville because Brand could not drive. They got back to Augusta with Brand around 2:00 a.m. on Thursday, October 28, and met Mary Buchanan who had told them she would take Brand to the hospital. Buchanan said she took Brand to the Behavioral Unit of the hospital instead of to the emergency room because she assumed Brand had a drug problem. Buchanan said she was an ex-drug addict herself and she recognized the symptoms. Buchanan did not tell Brand she was taking her to the Behavioral Unit — just that she was taking her to the hospital. Buchanan testified that Brand was shaking and trembling to the extent she was almost convulsing and also was disoriented. But, Brand admitted that she signed the consent to treatment form and the “Patient Rights” form when she was admitted.

A nurse did a psychiatric nursing assessment just after Brand was admitted, and this showed no problems beyond “anxiety” and “ineffective coping.” Nevertheless, Brand was put on a suicide watch, and the doctor who saw her on Thursday morning recommended she be admitted for further evaluation. His diagnosis was that she was suffering from a panic attack with at least mild depression.

Brand testified that when she awakened Thursday morning and realized where she was, she began requesting a transfer to the main hospital, and the medical records bear this out. The doctor who saw her on the morning of October 28 noted that she called him several times that day and “asked to go home.” The doctor said he told her to wait until he could see her. The nurses’ notes for October 29 state that Brand was concerned about being in the psychiatric unit and wanted to have her seizures checked out and said she did not need to be in a psychiatric unit for that. The nurse noted that Brand talked to the doctor about being admitted to the main hospital but the doctor said he preferred to keep her in the psychiatric unit.

Brand said that on Thursday she was still trying to be “polite” while requesting a transfer. She said the doctor told her he would return later that day and release her. He did not. When asked if she had ever tried to just walk out, Brand replied that she had, but all the doors were locked. Brand stated that she was locked in the entire time she was on the ward; however, University Hospital points out that Brand left the Behavioral Unit for additional diagnostic procedures such as a chest x-ray and a CT head scan.

Brand’s mother said that when she went to take Brand home on the night of October 28, the nurse would not allow her to do so, saying the doctor must release her. Mrs. Brand asked for the doctor’s name, but the nurse would not give it to her, and when she asked the nurse to call the doctor, the nurse refused.

Brand’s father was also at the hospital on the evening of October 28 and testified that the nurses said they could not release Brand without the doctor’s permission and they would not call the doctor.

Mrs. Brand said she and her husband went home and the next day Christine called her crying and asked her to come get her. She said she went to the hospital and waited, but Christine did not come out. She said she could see Christine standing on the other side of the locked glass doors, but the nurses would not open them. After Christine began crying and violently shaking the doors and yelling for the nurses to let her out, one of the nurses finally “buzzed” the door open.

After leaving the hospital, Brand called her own doctor who had her admitted to the diabetic ward of another hospital for treatment of her physical symptoms. Her treating physician stated that Brand suffered from sleep deprivation and anxiety attacks but was otherwise emotionally and mentally stable and had no physical problems other than her tremors.

Brand then filed suit against University Hospital claiming she was falsely imprisoned. The trial court granted University Hospital’s motion for summary judgment on Brand’s claim, finding “that there is no evidence that University Hospital acted intentionally to cause Plaintiff’s confinement or detention.”

“False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. University Hospital contends that Brand was never involuntarily detained, but rather that she voluntarily entered the Behavioral Unit and agreed to stay there for the period during which she was hospitalized and, when she decided to leave, was discharged at her request. The hospital did not dispute that Brand wanted to leave, but rather argues that after “consultation with physicians and University Hospital staff, voluntarily chose to remain in the Behavioral Health Unit.” Therefore, the hospital does not claim that it followed the statutory procedure outlined in OCGA § 37-3-22 which provides for the discharge of a voluntary patient.

As the trial court correctly noted, the tort of false imprisonment is an intentional tort. Stewart v. Williams, 243 Ga. 580, 581 (255 SE2d 699) (1979). But, the trial court erred when it found that there was no evidence that University Hospital acted intentionally to cause Brand’s confinement.

First, there was evidence that Brand never voluntarily admitted herself to the Behavioral Health Unit. Even though Brand admits signing the consent to treatment form, she states, and this evidence is undisputed, that she had a seizure, was in a traffic accident, was trembling so hard she could barely walk, had not slept in over 26 hours, and thought she was being admitted to the emergency room when she arrived at the hospital. See Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 631 (431 SE2d 427) (1993).

Even assuming Brand voluntarily admitted herself to the Behavioral Health Unit, there was evidence that she was held there after demanding to be released. As soon as Brand awakened the next morning and realized where she was, she began questioning why she was in the Behavioral Health Unit. She asked to be admitted to the regular hospital, but the doctor put her off, told her he would come back later that day, but never did.

Decided November 16, 1999.

John P. Batson, for appellant.

Kilpatrick Stockton, Joseph H. Huff, Raymond G. Chadwick, Jr., for appellee.

Brand’s parents both stated that they came to get her the evening of October 28 but the nurses would not release her, would not call the doctor, and refused to give them the name of the doctor who could order her release. Further, Brand states that the next day, even after the doctor told the nurses she could be released to her parents, they still would not allow her to leave until after she screamed and yelled and banged on the locked door.

Therefore, Brand has submitted sufficient evidence to create a jury issue as to whether University Hospital intentionally caused her confinement or whether she voluntarily submitted to her detention in the Behavioral Health Unit. Accordingly, the trial court erred in granting University Hospital’s motion for summary judgment.

Judgment reversed.

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

       She had just started taking Prozac, and she and her doctor surmised that this could have caused the seizure.


text:
    A99A1554.
    In the Interest of S. P., a child.
    (525 SE2d 403)
   Barnes, Judge.

S. P., a minor, appeals from his adjudication of delinquency and placement in restrictive custody for committing aggravated assault, a designated felony under OCGA § 15-11-37. In this appeal, S. P. claims there is insufficient evidence to support a finding that he committed aggravated assault and that the trial court failed to make the written findings required by OCGA § 15-11-37 before placing him in restrictive custody. Although sufficient evidence supports the minor’s delinquency adjudication, we must vacate the judgment and remand this case for the trial court to make the specific written findings of fact required by OCGA § 15-11-37 (b).

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juveniles committed the acts charged.

In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the record shows that the victim was shot after a fight with one of S. P.’s friends, C. W. The victim testified that when he believed the fight was over, he turned away from C. W. to pick up his coat. When he turned back around, he saw C. W. pointing a shotgun at his face. S. P. then told C. W., “Give me the gun, let me shoot him.” While S. P. was taking the gun from C. W., the victim started to run away, but he was shot two times before he could do so. After falling to the ground, the victim saw S. P. standing over him with the gun still pointed at him.

1. We find this evidence sufficient to support S. P.’s adjudication of delinquency for committing aggravated assault.

2. In S. P.’s remaining enumeration of error, he claims the trial court erred by failing to make the specific written findings required by OCGA § 15-11-37 (b). This Code section mandates that in cases where

a juvenile is found to have committed a designated felony act, the order of disposition . . . shall include a finding based [upon the] preponderance of the evidence as to whether . . . the juvenile does or does not require restrictive custody . . . , in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular juvenile.

(Emphasis supplied.) See also In the Interest of C. T., 197 Ga. App. 300, 302 (3) (398 SE2d 286) (1990). The five “elements” about which the trial court must make specific written findings, as related to the particular juvenile, are:

(1) [t]he needs and best interest of the juvenile; (2) [t]he record and background of the juvenile; (3) [t]he nature and circumstances of the offense, including whether any injury involved was inflicted by the juvenile or another participant; (4) [t]he need for protection of the community; and (5) [t]he age and physical condition of the victim.

OCGA § 15-11-37 (c) (1)-(5).

In this case, the trial court’s written disposition order stated only the following with regard to these elements:

At a dispositional hearing held on 12-07-98, after hearing evidence, the court carefully reviewed the Social History and its accompanying documents, the evidence presented in open court, the prior background and record of the youth, and the nature and circumstances of the offense. Based on this evidence, the court further finds that the needs and best interests of the child and the need of the community for protection can best be served by ordering that the child be placed under restrictive custody as ordered by OCGA § 15-11-37 (b).

Decided November 16, 1999.

Ralph N. Jackson, for appellant.

Ralph M. Walke, District Attorney, Judson Green IV, Assistant District Attorney, for appellee.

Although the trial court stated, in a very general manner, that it had considered four of the five elements, it failed to make any statement in writing with regard to the fifth element, “[t]he age and physical condition of the victim.” OCGA § 15-11-37 (c) (5). This omission alone mandates that we vacate the judgment against S. P. We are also troubled, however, by the lack of specificity with regard to the four elements the trial court did mention in its order. As a result, we remand this case to the trial court with the direction that the trial court make a specific finding of fact as to each of the five elements set forth in OCGA § 15-11-37 (c) as they relate to S. P. See In the Interest of C. T., supra, 197 Ga. App. at 304.

Judgment vacated and case remanded with direction.

Blackburn, P. J, and Ellington, J., concur.