text:
    A93A0469.
    ZUMBADO v. LINCOLN PROPERTY COMPANY. ALLSTATE INSURANCE COMPANY v. ZUMBADO.
    A93A0613.
    (433 SE2d 301)
   Andrews, Judge.

Zumbado appeals the grant of summary judgment to Lincoln Property Company d/b/a Woodland Apartments (Lincoln) and Allstate, her uninsured motorist carrier, cross-appeals the denial of its motion for summary judgment.

Viewed with all favorable inferences and reasonable doubts in favor of Zumbado, the opponent of summary judgment, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that Lincoln built Woodland Apartments in 1983. Lincoln asked the City of Smyrna to investigate the traffic flow near the entrance to the complex and provide some type of traffic regulation for the intersection created by the entrance and the four-lane roadway. In response, Smyrna installed a vehicle approaching signal device across the street from the entrance. As one exited the complex, the device, consisting of two yellow lights, would flash when traffic was approaching from the left. The approach from the left was uphill and included a dip in the roadway where traffic was not plainly visible to one exiting the complex. Because Smyrna’s 1984 budget was insufficient to fund the device that year, the city requested and Lincoln paid a fee to cover the cost of installation. Lincoln did not make any recommendations concerning the nature of the device to be installed or its location and did not assist in the installation. Lincoln did not own or have any legal interest in the property where the device was installed. Lincoln’s maintenance staff had no duties or responsibilities regarding the device. One of the maintenance men had noticed that, on some occasions, the device would not flash when traffic was approaching, although he did not report this to his superiors.

On October 31, 1989 about 7:00 a.m., Zumbado, was driving to work with Koski as a passenger. She used the exit daily, turning left on her way to work and was familiar with the intersection. There was an alternative exit to the complex and she could also get to work by turning right and using an alternate route. As related by her, she remembered getting to the front of the entrance, “checking my right, being sure that there were no vehicles approaching, looking at the [signal device], it wasn’t flashing, checking my right a second time, looking at the sign again, it still was not flashing, and proceeded to make my left hand turn.” Koski was looking to the right during the exit..

Everett, coming from the left, hit Zumbado at the driver’s door, causing her serious injuries. Everett, in the curb lane, veered to his left while he was braking, and the point of impact was in the left lane near the centerline. Everett left approximately 100 feet of skid marks.

The original complaint alleged that Lincoln failed to notify Zumbado of the malfunctioning of the device, even though it had knowledge of the malfunctioning through its agents. The complaint was amended to add counts alleging negligent placement of the entrance, creation of an unreasonable risk to those exiting, and maintenance of a nuisance by virtue of an inadequate sight line to the left.

On Lincoln’s motion, the court concluded that Lincoln owed no duty to the users of the signal device; there was no evidence that Lincoln exerted any control over the public street so as to have a duty to warn of the dangerous line of sight condition; and Zumbado had equal knowledge of the hazardous condition.

On Allstate’s motion, based on Zumbado’s claimed failure to exercise ordinary care for her own safety, the court concluded that genuine issues of material fact remained regarding Everett’s speed at the time of the crash and the adequacy of Zumbado’s lookout before pulling into the street.

Case No. A93A0613

1. With regard to Allstate’s motion, the issue of the comparative fault of Zumbado and Everett is not subject to summary adjudication on the record before us. The speed limit in the area was 40 or 45 mph and the length of the skid marks left by Everett provide evidence from which a jury could conclude that his excessive speed could have contributed to the accident, as well as the fact that he could have missed Zumbado if he had swerved to the right instead of the left. These matters create issues for the jury’s resolution. OCGA § 51-11-7; Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810) (1992).

Case No. A93A0469

2. Zumbado contends the court erred in finding that Lincoln fulfilled its duty to maintain safe approaches to the complex, as required by OCGA § 51-3-1.

(a) The trial court correctly concluded that Lincoln had no responsibility for installing or maintaining the traffic signal device. That duty is vested in the City of Smyrna by OCGA § 32-6-50 (c). See Crouch v. CSX Transp., 203 Ga. App. 618, 619 (417 SE2d 216) (1992); Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 597, n. 2 (402 SE2d 346) (1991). It is in fact unlawful for anyone other than those governmental entities listed in OCGA § 32-6-50 to erect traffic control devices. OCGA § 32-6-51 (a).

(b) Further, there was no evidence that Lincoln had exercised any control over the roadway so as to have assumed the duty to warn of any dangers associated with it.

“ ‘If the approach is a public way(, the occupier’s) duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. (The occupier’s right) in the public way may be quite limited but nonetheless exist(s).’ Todd [v. F. W. Woolworth Co., 258 Ga. 194, 196 (1) (366 SE2d 674) (1988)]. In other words, the duty over a public way is circumscribed by the rights in it the occupier has exercised.” Reed, supra at 597. There was no evidence that Lincoln or its agents and employees used the public road in a manner different from the general motoring public. Id.

Decided June 2, 1993 —

Reconsideration denied June 24, 1993 —

Downey, Cleveland, Parker, Williams & Davis, Russell B. Davis, Lance T. McCoy, for Allstate.

Carter & Ansley, Robert A. Barnaby II, Rebecca J. Schmidt, for Lincoln.

Murray & Temple, William D. Temple, Sr., for Zumbado.

(c) Finally, Zumbado’s equal knowledge of the condition of the exit and the dangers presented by going out there instead of using one of the alternative exits mandated the summary judgment to Lincoln.

Zumbado had repeatedly used the exit and was fully cognizant of the “blind spot” and the danger of approaching traffic, yet she voluntarily chose to exit there. “ ‘This is a “plain, palpable, and indisputable” case not calling for resolution by a jury.’ ” Moore v. Service Merchandise, 200 Ga. App. 463, 464 (408 SE2d 480) (1991). See, e.g., Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991); Roth v. Wu, 199 Ga. App. 665, 666 (405 SE2d 741) (1991).

Judgments affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0517.
    SAFECO INSURANCE COMPANY OF AMERICA v. SHAWNEE MECHANICAL CONTRACTORS, INC. et al.
    (433 SE2d 66)
   Johnson, Judge.

Clifford Slaven and Michael Anderson, both under the legal age to purchase alcoholic beverages, were involved in a single car accident after allegedly purchasing alcohol from Shawnee Mechanical Contractors, Inc. d/b/a Kennesaw House of Spirits and Two Guys 101 Package Store. Safeco Insurance Company of America filed a declaratory judgment action against Shawnee, Slaven, his parents and Anderson, contending that an insurance policy it issued to Shawnee does not cover any personal injury or property damage claims arising out of the accident because of a “liquor liability exclusion” in the policy. The exclusion provides, “This insurance does not cover . . . ‘Bodily injury’ or ‘property damage’ for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.” The trial court denied Safeco’s motion for summary judgment. We granted Safeco’s application for interlocutory review of the court’s denial of the motion for summary judgment.

Decided May 26, 1993 —

Reconsideration denied June 24, 1993 —

Bovis, Kyle & Burch, Steven J. Kyle, Stuart S. Busby, for appellant.

Adkins & Robertson, Russell L. Adkins, Jr., W. Anthony Moss, for appellees.

Appellees Shawnee, the Slavens and Anderson contend that the liquor liability exclusion is ambiguous, that it is against public policy and that Safeco is estopped from denying liability based on alleged oral representations of its agent. These contentions have recently been decided adversely to the appellees. In Hartford Ins. Co. &c. v. Franklin, 206 Ga. App. 193 (424 SE2d 803) (1992), we held that a liquor liability exclusion almost identical to the one in the instant case is not ambiguous, that it is not contrary to public policy and that the insurance company is not estopped from asserting the exclusion based on the alleged misrepresentations of its agent. Applying that holding to the instant case, we are compelled to find that the appellees’ contentions are without merit. Because of the unambiguous language of the exclusion, the policy does not cover the property damage or personal injury claims of the Slavens and Anderson for which Shawnee may be liable. There are no genuine issues of material fact and Safeco is entitled to judgment as a matter of law. The trial court erred in denying Safeco’s motion for summary judgment.

Judgment reversed.

Blackburn and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A93A0519, A93A0520.
    TROUTMAN v. B. C. B. COMPANY, INC. et al.; and vice versa.
    (433 SE2d 73)
   Andrews, Judge.

This appeal by Troutman and cross-appeal by B. C. B. Company Inc. (“B. C. B.”) and Beers Construction Company (“Beers”) arise following our partial reversal and remand of this case in B. C. B. Co. v. Troutman, 200 Ga. App. 671 (409 SE2d 218) (1991). The facts are set out therein and will be supplemented here only as needed. We there determined that the companies could not be liable under the doctrine of respondeat superior for the intentional torts of employee Bennett which were outside the scope of his employment.

The trial court granted summary judgment to B. C. B. and Beers on Troutman’s claim for punitive damages based upon B. C. B.’s negligent hiring and retention of Bennett who is alleged to have sexually harassed Troutman and other women employees on construction jobs. The court also denied the companies’ motion for a bifurcated trial in which Bennett, the employee, and the companies, the employer, would be separately tried.

Case No. A93A0519

1. We consider first the issue of the denial of the motion for bifurcated trial, made pursuant to OCGA § 9-11-42 (b).

That section provides that the court “in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or of any separate issue, or of any number of claims, [etc.].” The motion presented below was premised on the companies’ contention that trying the sexual harassment claim against Bennett with the negligent hiring/retention claim against them would unduly prejudice Bennett because the issue of his character was inadmissible as to the former but relevant and admissible as to the latter.

Pretermitting the issue of whether the companies have standing to raise the issue of prejudice to Bennett as a basis for their motion for bifurcation, “[s] ever anee of issues for trial pursuant to OCGA § 9-11-42 (b) is generally within the discretion of the trial judge and will not be reversed on appeal absent clear and manifest abuse of that discretion. [Cit.]” Jackson v. Intl. Harvester Co., 190 Ga. App. 765 (1) (380 SE2d 306) (1989). Here, since the claimed prejudice is to another defendant, there has been no harm shown by the companies. There was no error.

Case No. A93A0520

2. Troutman appeals the trial court’s grant of the companies’ motion for summary judgment regarding her claim for punitive damages. The only claim for liability remaining against the companies is that of negligent hiring by B. C. B. of Bennett from Beers and retaining him because Bennett “had a reputation for ten years of abusive behavior toward women.” Troutman contends that the hiring and retention were “wilful, malicious, wanton and oppressive and lacked entire want of care and [the companies] were consciously indifferent to the consequences.”

Troutman was hired in 1986 and continued her employment until November 1988. In 1987, OCGA § 51-12-5.1 went into effect and that was the statute cited and relied upon by the companies below, while Troutman argued that the earlier version applied because she was hired in 1986. Whether the issue is considered under OCGA § 51-12-5 or the new one, however, summary judgment was appropriate.

Under § 51-12-5, “[p]unitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3b) (365 SE2d 827) (1988) .

Under § 51-12-5.1 (b), it remains the rule that something more than the mere commission of a tort is always required for the imposition of punitive damages. Tower Financial Sucs. v. Smith, 204 Ga. App. 910, 918 (5) (423 SE2d 257) (1992); Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “ ‘ “Mere negligence, although gross, will not alone authorize the recovery of punitive damages.” (Cit.)’ [Cit.]” Stolle Corp. v. McMahon, 195 Ga. App. 270, 273 (393 SE2d 52) (1990).

On summary judgment, a defendant who does not have the burden of proof at trial may prevail by showing an absence of evidence in the record as to one essential element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). As acknowledged in this case’s first appearance here, there is “a question of fact . . . as to whether those persons [in charge of Bennett], based upon information previously provided to them from Robinson and Seaman, in the exercise of ordinary care, could have reasonably discovered that Bennett was acting in a sexually harassing manner toward Trout-man.” B. C. B., supra at 673.

Even assuming, however, that the companies should have known about Bennett’s reputation for sexual harassment, “there was no evidence of an entire want of care on [their part] which would raise the presumption of a conscious indifference to consequences. [Cits.]” Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (1) (389 SE2d 355) (1989) ; Powell v. Ferreira, 198 Ga. App. 465, 466 (402 SE2d 85) (1991); compare J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 256 (3) (427 SE2d 499) (1993).

Decided June 2, 1993 —

Reconsideration denied June 24, 1993 —

John H. Ridley, Robert Stein, for appellant.

Alston & Bird, Robert H. Buckler, Robert P. Riordan, for appellees.

Judgments affirmed.

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

       Beers is the union organized construction arm of the Beers’ construction organization and B. C. B. is the non-union arm.

       Compare City of Monroe v. Jordan, 201 Ga. App. 332, 334 (3) (411 SE2d 511) (1991), discussing bifurcation of the punitive damage issue from the liability issue under OCGA § 51-12-5.1.


author: Blackburn, Judge.

text:
    A93A0610.
    McMICHEN v. STATE OF GEORGIA.
    (433 SE2d 92)
   Blackburn, Judge.

The state filed the instant forfeiture action pursuant to OCGA § 16-13-49 to recover a 1978 Chevrolet Custom Deluxe pickup truck and two tires seized by the Villa Rica Police Department and owned by the appellant, Kenneth Orlando McMichen, alleging that the property was used to facilitate a violation of the Georgia Controlled Substances Act. The appellant responded and denied that the pickup had been used to facilitate such a violation. Following a hearing, the trial court declared that the pickup truck was forfeited to the Villa Rica Police Department, but ordered the return of the tires to the appellant. The appellant subsequently entered a plea of guilty to possession of cocaine. This appeal followed the trial court’s forfeiture of the appellant’s truck.

At the hearing on the appellant’s motion to suppress, Officer Kevin Bearden with the Villa Rica Police Department testified that on October 21, 1991, while patrolling a known drug area in Villa Rica, he saw the appellant driving the pickup truck in question. The appellant was accompanied by a man known as “Doodle Bug” who had been suspected of selling drugs in the area. Officer Bearden had previously received information from a reliable, confidential informant and a concerned citizen on Doodle Bug’s drug activity as well as the techniques that he used to sell drugs. According to the confidential informant and the concerned citizen, the buyers of the drugs would pick up the dealer, drive to one of two locations within a mile of the suspected drug area, and after the completion of the transaction, the buyer would return the dealer to the original location. As predicted, the officer observed the appellant and Doodle Bug leave the area in the pickup truck, and approximately five minutes later, the two men returned. Doodle Bug subsequently exited the truck. Officer Kevin Phillips also observed the two men leave and return to the known drug area. Thereafter, Officer Bearden proceeded to follow the appellant out of the drug area, and stopped the appellant’s vehicle based upon the suspected drug activity that he had observed. The officer checked the appellant’s driver’s license and insurance card, and requested that the appellant consent to a search of the truck. After the officer informed the appellant of his observations and the basis for his stop, the appellant verbally consented to the search of the truck. Officer Phillips, who was also present after the appellant was stopped, completed a consent to search form and obtained the appellant’s written consent to search the truck. During the search, Officer Bearden found 19.9 grams of cocaine. At no time did the appellant withdraw his consent to the search of the truck.

During his testimony, the appellant stated that he was not aware that he had a right to refuse to consent to the search of his vehicle and was not informed of such right. He admitted that he signed the consent form, but he did not read the contents of the form. However, he was informed that if he did not sign the consent form, he would have to wait until a search warrant was issued.

1. In his first enumeration of error, the appellant contends that the trial court erred in denying his motion to dismiss the state’s forfeiture complaint for the state’s failure to have the complaint verified by an authorized agent at the time of the initial filing. We disagree.

In actions seeking the forfeiture of property, “[t]he complaint shall be verified on oath or affirmation by a duly authorized agent of the state. . . .” OCGA § 16-13-49 (o) (1). Although the initial complaint filed by the state did not contain a verification of an authorized agent of the state, the state subsequently amended its forfeiture complaint to include the verification of a representative of the Villa Rica Police Department. In State of Ga. v. Jackson, 197 Ga. App. 619, 623 (2) (399 SE2d 88) (1990), this court concluded that “[s]ince OCGA § 16-13-49 does not declare a penalty for lack of strict compliance, nor otherwise prohibit the procedure followed by the State, the statute is regarded as directory under these circumstances and substantial compliance is sufficient. [Cits.]” See also Lang v. State, 168 Ga. App. 693 (4) (310 SE2d 276) (1983). Further, subsection (z) of this Code section specifically provides that the Code section “must be liberally construed to effectuate its remedial purposes.” Inasmuch as the state amended its complaint to include the requisite verification, and therefore, substantially complied with the statute, we conclude that the trial court did not err in failing to grant the appellant’s motion to dismiss.

2. In his second enumeration of error, the appellant asserts that the trial court erred in failing to conclude that the search and the seizure of the contraband was unlawful. “It is clear, however, that merely approaching an individual and requesting that he give his consent for a search does not constitute a seizure. . . . ‘(E)ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, (cits.); ask to examine the individual’s identification, (cits.); and request consent to search. . . .’ [Cit.]” State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). It is undisputed that the appellant provided the officers with both verbal and written consent to search the truck. Since the contraband was discovered during a consensual search of the truck, this enumeration is without merit.

Decided June 11, 1993 —

Reconsideration denied June 24, 1993.

Thomas E. Maddox, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: McMurry, Presiding Judge.

text:
    A93A0611.
    MURPHY v. SEARS ROEBUCK & COMPANY et al.
    (433 SE2d 325)
   McMurry, Presiding Judge.

Danny Murphy (plaintiff) was injured on January 6, 1990, while working in Phoenix, Arizona, and recovered workers’ compensation pursuant to Arizona law. On June 24, 1991, plaintiff filed a products liability action in Georgia against Sears Roebuck & Company, Emerson Electric Company, and Western Forge Corporation (defendants), alleging his injuries were caused by a defective tool placed in the market by defendants. Defendants denied the material allegations of the complaint and moved for summary judgment, asserting the one-year limitation period prescribed in Arizona Revised Statute § 23-1023. This Code section permits an injured worker to sue a third-party tortfeasor, but limits the right by providing assignment of the claim to the compensation carrier if the worker does not pursue his “remedy against such other third person by instituting an action within one year after the cause of action accrues. ...” The Arizona statute also provides that a third-party claim “may be reassigned [by the compensation carrier] in its entirety to the employee or his dependents.” Plaintiff responded by filing a document evidencing the compensation carrier’s reassignment of third-party claims to plaintiff. The reassignment is dated August 19, 1992, over two years after plaintiff’s claims against defendants accrued.

The trial court dismissed the complaint, reasoning that plaintiff “did not have the right to bring this action [under Arizona law] at the time he brought it, and that the proper party did not bring this action within the statute of limitations period.” This appeal followed. Held'.

1. Plaintiff contends the trial court erred in applying Arizona law and dismissing his complaint.

In Howard v. Alfrey, 697 F2d 1006 (11th Cir. 1983), two Tennessee employees were killed in an on-the-job automobile accident in Georgia. The employer voluntarily paid death benefits pursuant to Tennessee law, but the survivors later obtained slightly higher benefits via an award under Georgia’s Workers’ Compensation Act. (The Georgia award credited the employer for all voluntary payments made under Tennessee law.) The survivors then filed a wrongful death action against the third parties allegedly responsible for the fatal collision and the compensation carrier intervened seeking subrogation pursuant to Tennessee law. (No such right of subrogation then existed in Georgia.) Upon opposing motions for summary judgment, the United States District Court ruled that Georgia courts would recognize subrogation rights vested pursuant to Tennessee law and allowed the compensation carrier’s intervention. However, the United States Court of Appeals reversed, holding that Georgia law controls since all compensation benefits were paid under the Georgia Workers’ Compensation Act. Id. at 1009-1011.

The result reached by the United States Court of Appeals in Howard v. Alfrey, supra, is the majority rule, i.e., the compensation laws of the state where a worker elects recovery control the worker’s rights against third parties. 4 Larson, The Law of Workmen’s Compensation, § 88.23. We adopt this rule and hold that Arizona law controls plaintiffs third-party claims against defendants. To hold otherwise ignores the adjustment of rights plaintiff brought on himself by accepting compensation benefits in another state. Thus, it follows that the trial court did not err in relying on Arizona law to assess plaintiff’s third-party claims against defendants.

2. In Moore v. Toshiba Intl. Corp., 772 P2d 28 (1989), the Arizona Court of Appeals applied Arizona Revised Statute § 23-1023 and held that a worker who filed a products liability action more than one year after injury without taking reassignment from the carrier lacked standing to assert the third-party action because the claim was automatically assigned to the compensation carrier one year after the claim arose. The Arizona court further held that the carrier’s reassignment of the products liability claim did not relate back to the complaint (filed less than two years after the injury) since the reassignment was executed after expiration of the two-year statute of limitation. The Arizona court reasoned that the reassignment amounted to no more than an assignment of an expired claim. Id. at 30-32. The case sub judice is indistinguishable.

Plaintiff filed this products liability action more that one year after his work-related injury, but within the two-year statute of limitation. OCGA § 9-3-33; Smith, Miller & Patch v. Lorentzson, 254 Ga. 111 (1) (327 SE2d 221). However, plaintiff did not acquire reassignment of the third-party claims until after expiration of the statute of limitation. Under these circumstances, Arizona law precludes plaintiff’s third-party claims against defendants. Consequently, the trial court did not err in dismissing plaintiff’s complaint with prejudice. Moore v. Toshiba Intl. Corp., supra; Stephens v. Textron, Inc., 619 P2d 736 (1980).

Decided June 10, 1993 —

Reconsideration denied June 24, 1993 —

Friedman, Donaldson & Phillips, Robert P. Phillips III, for appellant.

Brennan & Wasden, Joseph P. Brennan, Mary R. Piette, for appellees.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0641.
    COPELAND v. HOME SAVINGS OF AMERICA, F. A. et al.
    (433 SE2d 327)
   Blackburn, Judge.

On October 31, 1989, the appellant, Delia Copeland, purchased a house from the appellee Home Savings of America, F. A. (Home Savings). In May 1991, Copeland commenced this action against Home Savings, the real estate broker and agent who represented Home Savings, and the surveying company and actual surveyor who surveyed the property in question before the closing of the sale, alleging fraudulent misrepresentation or concealment of the fact that the house was situated in a flood hazard area. The trial court granted summary judgment for the defendants, and Copeland appeals.

In the spring of 1989, Copeland began her search for a home, which culminated in her purchase of the subject property from Home Savings in late October 1989. During that period of time, she had occasion to inspect the property five to ten times. Others who viewed the property at Copeland’s request included her brother, roommate, a plumber, and an individual who checked structural items and estimated costs of repairs. Copeland’s own inspection of the property revealed several water-related conditions. First and foremost, she observed a creek adjacent to the lot, which prompted her to ask the real estate agent if there had been any problem with flooding. She also noticed some dankness about the dug-out basement; she did not find it to be “super wet,” but it smelled like “an old mushroom bin.”

Copeland made no inquiry about any incident of flooding beyond that with the real estate agent, and she was satisfied by the agent’s alleged denial of any problem in that regard. She also had assumed that the bank which loaned her the purchase money had confirmed that the property was not in a flood hazard area, because she was under the impression that the bank would not have made the loan if the property was situated otherwise. Copeland acknowledged that she could have discovered that the property was in a flood hazard area from information that was obtainable from the DeKalb County records or from her insurance agent.

Heavy rains came in February 1990, and the property flooded. Copeland then referred to the DeKalb County records and contacted her insurance agent, and was informed that her home was located in a flood hazard area. Her proffer to rescind the sales contract was rejected, and this tort action ensued.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. In deciding whether the evidence presented is sufficient to raise a triable issue as to each element, the court must resolve all disputes of fact and indulge all reasonable inferences therefrom in favor of the nonmoving party. [Cit.]” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).

In granting summary judgment for the defendants, the trial court concluded as a matter of law that Copeland could not establish the element of justifiable reliance on any representation made by the defendants. Even resolving all disputes of fact and indulging all reasonable inferences in favor of Copeland, we agree.

Regardless of whether or not the real estate agent falsely denied any problem with flooding on the property in response to Copeland’s inquiry regarding such, it is uncontroverted that Copeland did absolutely nothing to investigate that risk. After observing the creek adjacent to the property, she specifically inquired about any problem with flooding, but she was satisfied merely by the agent’s denial. She had multiple opportunities to inspect the property, and nothing prevented her from checking with the DeKalb County records or her property insurance agent about the possibility of a flood hazard.

“ ‘The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. “When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations.” (Cit.)’ [Cits.]” Miller v. Clabby, 178 Ga. App. 821, 823 (344 SE2d 751) (1986).

Decided June 10, 1993 —

Reconsideration denied June 24, 1993 —

Slaughter & Virgin, Frank W. Virgin, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, R. Teresa Perrotta, Rachelson & Associates, Ira L. Rachelson, Jeffrey H. Schneider, Dermer & Black, Stephen F. Dermer, for appellees.

In the instant case, as in Miller v. Clabby, supra, the possibility of a risk of flood hazard was patent, inasmuch as the property was situated adjacent to a creek. Because of Copeland’s failure to make any attempt to discover the reality of that risk despite the opportunity to do so, she cannot be said to have justifiably relied upon any representation by the defendants regarding the matter. Cf. Crawford v. Williams, supra. Accordingly, the trial court properly granted summary judgment for the defendants.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0718.
    SECURITY SERVICES, INC. v. JOHN H. HARLAND COMPANY.
    (433 SE2d 324)
   Blackburn, Judge.

The appellant, Security Services, Inc., formerly known as Riss International Corporation (Riss), commenced this action against the John H. Harland Company (Harland), seeking to recover alleged freight undercharges. The trial court granted summary judgment for Harland, and Riss appeals.

Riss was a motor common carrier, which, from November 1986 to September 1988, entered into a series of 68 contracts to transport goods for Harland. After Riss filed a Chapter 11 petition under the United States Bankruptcy Code, an audit revealed that Riss had undercharged Harland a total of $41,307.84 for those shipments. When Harland refused Riss’s demand for payment of those alleged undercharges, this action ensued.

The pertinent Interstate Commerce Commission (ICC) tariff filing regulations are contained in Part 1312 of Title 49 of the Code of Federal Regulations. 49 CFR 1312.30 generally provides that when a motor common carrier publishes mileage rates rather than rates stated in cents per 100 pounds, it may either (a) publish the distances between all points for which mileage rates are published, (b) attach a map to the tariff, or (c) refer to a distance guide filed with the ICC.

49 CFR 1312.27 (e) requires carriers who choose to incorporate a third party’s tariff to participate in that tariff, and under 49 CFR 1312.10 (a) such participation is accomplished by executing a power of attorney. Lastly, 49 CFR 1312.4 (d) provides in part that “a carrier may not participate in a tariff issued in the name of another carrier or an agent unless a power of attorney or concurrence has been executed. Absent effective concurrences or powers of attorney, tariffs are void as a matter of law.”

Motor common carriers authorize agents to publish tariffs on their behalf, by executing the requisite powers of attorney. When an agent is so authorized to publish a tariff on behalf of a carrier, it identifies the carrier as a participating carrier in that tariff. Household Goods Carriers’ Bureau (HGCB) is such an agent, and the distance-based rate tariff claimed by Riss in this case purported to refer to or incorporate the HGCB mileage rate, i.e., the ICC HGCB 100 series. However, it is uncontroverted that Riss’s power of attorney authorizing the HGCB to publish mileage tariffs on its behalf was terminated, and that Riss’s participation in the HGCB tariff was cancelled, effective February 19, 1985, well before the alleged undercharges in this case.

On appeal, Riss contends that the HGCB mileage guide is not a tariff, and that even if that mileage guide is a tariff, voiding the tariff charged to Harland because of its failure to participate in the HGCB tariff would constitute an impermissible retroactive rejection of a tariff. These same issues were raised by a motor common carrier seeking undercharges in Freightcor Sucs. v. Vitro Packaging, 969 F2d 1563 (5th Cir. 1992).

In Freightcor, the court held that the HGCB mileage guide constituted a tariff, based upon the definition provided in 49 CFR 1312.1 (b): “(35) ‘Tariff’ means a publication containing rates, classification ratings, rules, regulations, and other provisions as amended, filed in the carrier’s or an agent’s name.” Inasmuch as the motor common carrier referred to the HGCB mileage guide, but did not participate in it by executing the requisite power of attorney, the carrier’s tariff was void under 49 CFR 1312.4 (d). As a result, the carrier could not recover any alleged undercharges.

With regard to the issue of retroactive rejection of a tariff, the Freightcor court distinguished between rejecting a tariff and determining when a tariff is effective. 49 CFR 1312.4 (d) defines when a tariff is effective or void, through either the action or inaction of the carrier, and thus actually does not involve rejection of a tariff. Nevertheless, under Interstate Commerce Comm. v. American Trucking Assns., 467 U. S. 354 (104 SC 2458, 81 LE2d 282) (1984), an ICC regulation is valid if it furthers a specific statutory mandate of the ICC, and is directly and closely tied to that mandate. Even if finding a tariff void pursuant to 49 CFR 1312.4 (d) constitutes retroactive rejection of a tariff, that regulation meets the criteria delineated in American Trucking Assns., supra.

Decided June 9, 1993 —

Reconsideration denied June 24, 1993 —

Arthur B. Seymour, for appellant.

Mitchell & Jones, Bruce E. Mitchell, Thomas L. Smith, Jr., for appellee.

In the instant case, the trial court found Freightcor on point and persuasive. We agree, and conclude that the trial court properly granted summary judgment for Harland.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0727.
    BRENNAN v. CHATHAM COUNTY COMMISSIONERS et al.
    (433 SE2d 597)
   Johnson, Judge.

Edward T. Brennan was appointed county attorney for Chatham County by the Chatham County Board of Commissioners on July 13, 1989. On September 1, 1989, the parties executed an agreement setting the level of compensation to be paid for one year. On September 28, 1990, a second agreement was signed, ratifying the first agreement and setting the level of compensation at a rate of $78,000 per year, payable in monthly installments of $6,500. By its terms the agreement was to remain in effect until December 31, 1992. On May 15, 1991, the county commissioners, meeting in executive session, voted to dismiss Brennan from the position of county attorney. This action was affirmed at a May 24, 1991 meeting of the full board of commissioners. After he was discharged, Brennan provided additional legal services to the county during June 1991 and was paid $5,264. In August he submitted a supplemental bill for $1,235 which the county did not pay. Brennan filed suit for that amount in magistrate court. After a trial, the magistrate court awarded Brennan the fees, finding that even though he had been legally removed from office, he was still entitled to be paid for work done on behalf of the county. The county appealed to the superior court. In Brennan’s second amended complaint, he asserted a claim for $118,280 allegedly due pursuant to the agreement with the county. Cross-motions for summary judgment were filed, the county’s motion was granted and Brennan’s was denied. Brennan appeals.

1. Brennan argues that the trial court erred in holding that the action taken in executive session by the county commissioners removing Brennan from office was effective because the commissioners violated the Open Meetings Law. OCGA § 50-14-1 et seq. The Open Meetings Act is not applicable when the dismissal of a public officer is under consideration. OCGA § 50-14-3 (6) provides that “[T]his chapter shall not apply to . . . [meetings when discussing or deliberating upon the appointment, employment, hiring, disciplinary action or dismissal, or performance of a public officer or employee.” We note that an amendment to that section now requires that any vote affecting any of the issues contained in § 50-14-3 (6) be taken in public and minutes of the meeting made available. This amendment, which became effective April 6, 1992, was not in effect at the times relevant to this litigation. Accordingly, the vote taken on May 15, 1991 was proper.

Section 19 of the Chatham County Enabling Act (Ga. L. 1984, p. 5050 et seq.) provides that the county attorney may be removed at any time by a two-thirds vote of the total membership of the board of commissioners. Id. at 5068. The record reveals that the requisite percentage voted in favor of Brennan’s removal.

2. In his second enumeration of error, Brennan asserts that the trial court erred in finding that the contract between Brennan and the county was void as against public policy.

Brennan argues that OCGA § 36-60-13, which authorizes counties to contract for “necessary services, outside professionals and business entities” should control, rather than the Chatham County Enabling Act. OCGA § 36-60-13, however, applies to “multiyear lease, purchase, or lease purchase contracts” and is inapplicable to the provision of legal services. Section 20 of the Enabling Act authorizes the board to fix the compensation of the county attorney but it does not authorize the board to appoint an attorney for a fixed term. The contract was void as against public policy in that both under the Enabling Act and the law generally, a county attorney is an appointed public official who serves at the pleasure of the governing body. Madden v. Bellew, 260 Ga. 530, 531 (2) (397 SE2d 687) (1990). Incident to the power to appoint is the power to discharge. Bailey v. Dobbs, 227 Ga. 838, 839 (1) (183 SE2d 461) (1971).

We believe that the trial court correctly applied the law as construed by this court in Andrews v. Richardson, 32 Ga. App. 687 (124 SE 378) (1924). In Andrews, Fulton County appointed Andrews for a term of four years as a deputy tax collector. He was fired after one year and sued for the remainder due over the next three years. This court held that the contract was void. Brennan argues that the Andrews case, supra, is antiquated and overlooks modern realities, such as the need to hire additional staff in contemplation of performance of the agreement, and therefore the county should be estopped from now claiming that the contract is void. We disagree. A governmental body cannot be estopped from denying the validity of a void agreement. “The mere fact that the city may have operated under some form of agreement with appellant for a period of time does not change the result.” (I.e., that the contract was unenforceable.) (Citation omitted.) Simmons v. City of Clarkesville, 234 Ga. 530, 531 (216 SE2d 826) (1975). As county attorney at the time he drafted the contract, Brennan knew or should have known that it was unenforceable. The trial court correctly granted summary judgment to the defendants.

Decided June 8, 1993 —

Reconsideration denied June 24, 1993.

Duffy & Feemster, Dwight T. Feemster, Jo Beth Gosdeck, for appellant.

Chamlee, Dubus & Sipple, George H. Chamlee, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., for appellees.

Judgment affirmed.

Blackburn and Smith, JJ., concur.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0189.
    McCANN v. KELLEY et al.
    (433 SE2d 130)
   Cooper, Judge.

Appellant brought an action against appellees alleging medical malpractice and negligence. The jury returned a verdict in favor of appellees and a judgment was entered thereon. Appellant filed a motion for new trial on the ground that one of the jurors failed to truthfully respond to one of the questions posed during voir dire. The trial court denied the motion and this appeal followed.

The trial of appellant’s case commenced on February 24, 1992 and concluded the following day. During voir dire, appellant’s counsel asked the following questions to the jury panel: “Are there any of you who have strong feelings or opinions one way or the other about lawsuits over personal injuries caused by acts of negligence on the part of a doctor? Some people have resistance in their minds to awarding monetary damages for pain and suffering, disability and loss of ability to enjoy life. Do any of you have any philosophical opposition to the award of damages in a case of this nature?”

The juror in question, Gary Scobee did not respond to either of the questions and was ultimately selected as one of the jurors and elected foreperson. On February 26, 1992, Scobee was a member of another jury panel. Although there is no transcript of the voir dire in that case, appellant contends that the panel of jurors was asked the following question: “Is there any prospective juror who feels that a person is not entitled to, or should not bring a lawsuit against another individual?”

Appellant further contends that Scobee stated that he was personally opposed to lawsuits because of his beliefs as a Christian. In support of her motion for new trial, appellant submitted the affidavits of two persons from the jury pool who were in the courtroom during appellant’s trial and who were on the same jury panel with Scobee during the second case. Both persons stated that the panel in the second case was asked a question similar to the questions posed by appellant’s attorney concerning bias against lawsuits and that Scobee responded that as a Christian he was opposed to lawsuits. In opposition to appellant’s motion for new trial, appellees submitted the affidavit of Scobee who averred therein that during the voir dire in appellant’s case, he understood all of the questions asked by appellant’s attorney and answered those questions truthfully; that during the voir dire on February 26, 1992, he stated that although he did not personally believe in suing people, his personal opinions would not cause him to treat the parties to a lawsuit unfairly; and that he believed that the law providing for compensation to victims of medical malpractice or professional negligence is good and just. The record reflects that Scobee was also selected as a juror in the February 26 case.

In two enumerations of error, appellant contends that the trial court erred in finding that Scobee’s failure to respond to the questions posed during voir dire was truthful and in finding that it was unlikely that bias ensued from Scobee’s failure to answer the question. OCGA § 15-12-133 provides that in civil cases, the attorneys for either party have a right to question the individual jurors about “any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.” “A juror has a duty to truthfully answer any question posed to him on voir dire and a concomitant duty to be attentive to the questions and to speak up when he does not understand a question.” Falsetta v. State, 158 Ga. App. 392, 393 (280 SE2d 411) (1981). Citing Hummel v. Gainesville Radiology Group, 205 Ga. App. 157 (421 SE2d 333) (1992) appellant argues that her counsel’s questions required Scobee to reveal any opposition he had to lawsuits and his failure to explain his feelings constituted an untruthful response. In Hummel, we held that a juror’s silence during voir dire was commensurate with giving an untruthful answer and could not be construed as harmless error. Consequently, we reversed the trial court’s denial of appellant’s motion for new trial. However, in Gainesville Radiology Group v. Hummel, 263 Ga. 91 (428 SE2d 786) (1993), the Supreme Court of Georgia reversed our decision in Hummel. The Supreme Court noted that a juror’s duty to give truthful answers does not mean “that any discrepancy between the response of a juror (or the lack of same) elicited on voir dire and the truth as counsel may subsequently discover it, is alone sufficient to support the grant of a motion for a new trial.” Gainesville Radiology, supra at 93. The Supreme Court of Georgia held that new trials shall not be granted “unless the movant can demonstrate that: ‘a juror failed to answer (or to answer) honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.’ [Cit.] ” Id. at 94. Scobee stated in his affidavit that because of his personal beliefs, he would be reluctant to file a lawsuit against another person but that he had no bias against any individual who might choose to bring a lawsuit. Another juror who served on appellant’s jury stated that Scobee never displayed any bias against either party and did not attempt to impose his will on the other jurors. Appellant has failed to make the requisite showing of bias or prejudice resulting from the juror’s failure to respond. Therefore, we conclude that the trial court did not err in denying his motion for new trial. Gainesville Radiology, supra.

Decided June 24, 1993.

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Myles E. Eastwood, Linda R. Greer, for appellant.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Patricia M. Peters, for appellees.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because we are bound by the Supreme Court’s decision in Gainesville Radiology Group v. Hummel, 263 Ga. 91 (428 SE2d 786) (1993). However, the purpose of the voir dire, burdened with exposing biases often encased in subtleties, is undermined. To relegate the warrant of new trial only to instances where truthfulness would have supported a challenge for cause eliminates the effectiveness of peremptory jury strikes. They cannot be knowledgeably exercised if based on false information. The jury selection process is thereby weakened.


author: Cooper, Judge.

text:
    A93A0202.
    JAMES v. THE STATE.
    (433 SE2d 132)
   Cooper, Judge.

Appellant was indicted for murder following the shooting death of the victim. The jury convicted appellant of voluntary manslaughter, and appellant appeals from the judgment of conviction and sentence. His two enumerations of error relate to the trial court’s admission of similar transaction evidence.

The record reflects that in November 1990, appellant shot and killed the victim with a .410 gauge shotgun. More than one year prior to his trial, appellant filed a motion in limine seeking an order instructing the State to refrain from making any reference to appellant’s prior conviction for involuntary manslaughter. During a hearing on the motion in limine, the prosecutor informed the court that appellant’s prior conviction also resulted from appellant’s shooting a man with a .410 gauge shotgun. The trial judge ruled that due to the great similarity between the offense for which appellant was on trial and the prior offense, the prior offense would be admissible to show “motive, opportunity, preparation, plan, all those sorts of things.”

1. In his first enumeration of error, appellant contends that the trial court erred in admitting evidence relating to appellant’s prior conviction for involuntary manslaughter because the State failed to comply with the notice requirements of Rule 31.3 of the Uniform Superior Court Rules. It is undisputed that the State did not file a notice pursuant to Rule 31.3. However, the State argues that it did not have to file a notice pursuant to Rule 31.3 because appellant had sufficient notice of the facts surrounding the prior conviction and because the trial court determined the admissibility of the evidence at the hearing on appellant’s motion in limine more than one year prior to the trial. Thus, the State argues that it substantially complied with the requirements of Rule 31.3 and that no harm resulted from the technical failure to file the Rule 31.3 notice.

The purpose of Rule 31.3 “is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.” Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987). “The rule clearly presupposes that the State’s failure to comply with the rule will result in harm to the defendant by failing to give him adequate notice of the similar transactions sought to be used by the State. Consequently, non-compliance with the rule puts the burden on the State to prove that its violation of the rule’s requirements did not harm the defendant. However, the State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State’s failure.” Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988). Although the State did not comply with the rule by filing written notice of its intention to introduce similar transaction evidence, the transcript from the hearing on appellant’s motion in limine reveals that a showing was made as to the similarities between the two offenses and that the judge made a finding before the trial that there was sufficient similarity between the two offenses and ruled on the purposes for which the similar transaction evidence would be admitted. Thus, we conclude that appellant had the requisite notice to satisfy the purpose of the rule and the trial court did not err in ruling that the evidence was admissible in the absence of the Rule 31.3 notice.

Decided June 24, 1993.

J. Philip Carr, for appellant.

2. In his second enumeration of error, appellant contends that the trial court erred in allowing the similar transaction evidence to be admitted during the rebuttal phase of the trial. Although the trial court ruled that the similar transaction evidence was admissible, the State did not introduce the evidence during its case in chief. However, after appellant had rested his case, the prosecutor informed the court that in rebuttal, he intended to introduce appellant’s prior conviction for involuntary manslaughter. Appellant objected on the grounds that the State had not given notice pursuant to Rule 31.3 and because the evidence should have been introduced during the State’s case in chief. The State contended the evidence was admissible in rebuttal because appellant opened the door by presenting evidence of the victim’s prior conviction for murder and the evidence of appellant’s prior conviction was to rebut appellant’s claim that he killed the victim in self-defense. The trial court admitted the State’s rebuttal evidence and subsequently allowed appellant to testify in surrebuttal. “ ‘[W]hether the State should be permitted to introduce . . . evidence after the defendant has closed his testimony, even if it wTas not strictly in rebuttal, (is) a matter resting in the sound discretion of the court.’ [Cit.] ” Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991). Having reviewed the facts of this case, we cannot conclude that the trial court abused its discretion in admitting appellant’s prior conviction as rebuttal evidence.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.


author: Pope, Chief Judge.

text:
    A93A0209.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. MAG MUTUAL INSURANCE COMPANY.
    (433 SE2d 112)
   Pope, Chief Judge.

The issue in this case is whether a distinction should be made between primary and derivative liability for purposes of determining the pro rata share of contribution among named defendants in a medical malpractice action. The facts of this case are not in dispute. In 1989 Max Foley III brought a medical malpractice action against Piedmont Hospital, Inc., John C. Garrett M. D. and Resurgens, P. C., a professional corporation in which Garrett was a shareholder. The jury awarded Foley $2,500,000 on his claim and the parties ultimately agreed to settle the case for $2,300,000. Piedmont Hospital’s insurance carrier, St. Paul Fire & Marine Insurance Company (“St. Paul”), the defendant/appellant in the present case, paid one-third of the settlement amount ($766,666.66) on behalf of its insured, and MAG Mutual Insurance Company (“MAG Mutual”), the plaintiff/appellee, paid two-thirds ($1,533,334) on behalf of its insureds, Garrett and Resurgens. However, pursuant to a consent agreement, St. Paul and MAG Mutual agreed that after the settlement was paid the trial court would determine the pro rata share each defendant should pay of the settlement amount.

MAG Mutual subsequently filed suit against St. Paul seeking contribution for $383,333.34, the difference between 50 percent of the total settlement amount paid to plaintiff and the amount St. Paul paid towards the settlement. Both parties filed motions for summary judgment. The trial court granted MAG Mutual’s motion for summary judgment and entered judgment in its favor for $383,333.34, finding that the contributive shares of the parties should be one-half for Piedmont Hospital and a combined one-half for Garrett and Resurgens. St. Paul then timely filed its appeal to this court. We affirm the judgment of the trial court.

St. Paul argues that the correct measure of contribution among joint tortfeasors should be determined by dividing the judgment or settlement amount by the number of joint tortfeasors without regard to the character of each tortfeasor’s negligence and that, therefore, in this case each defendant should pay one-third of the total amount paid in settlement to the plaintiff. On the other hand, MAG Mutual argues that the trial court correctly determined the contributive shares of the parties in this case because a defendant such as Resurgens who is liable to an injured party solely because of negligence imputed to it by virtue of its relationship with another party and that actively negligent defendant (here Dr. Garrett) should be treated as one party for the purpose of measuring the pro rata share of contribution of multiple defendants.

It is true that ordinarily the total amount of the judgment is divided equally among those liable to the injured person. However, this court has also held that a party cannot seek contribution from other defendants “simply because they are jointly liable to plaintiffs.” Flynn v. Reaves, 135 Ga. App. 651, 653 (218 SE2d 661) (1975). “The legal concept of ‘joint tortfeasors’ is classically understood to mean those individuals whose ‘separate and distinct acts of negligence concur to proximately produce an injury. (Cits.)’ Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 461 (3) (231 SE2d 399) (1976). The law recognizes that such individuals are jointly and severally liable to the injured party for the full amount of his damage and that they have, as among themselves, the right of contribution, which right exists independently of their joint and several liability. See OCGA § 51-12-32. . . . The law also recognizes that there are ‘ “cases in which a person who has suffered loss or damage may have the right to sue two persons as if they were joint wrong-doers, without their being, as among themselves, joint wrong-doers.” ’ (Emphasis supplied.) Travelers Indem. Co. v. Liberty Loan Co., supra at 461-462 (3). Thus, a negligent employee and his vicariously liable employer are not ‘joint tortfeasors’ in the classic sense, in that the employer has committed no separate and distinct act of negligence and the employee has no right of contribution against his employer.” Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 176-177 (358 SE2d 468) (1987).

In Flynn v. Reaves, the issue was whether a partner who is sued individually by a plaintiff injured by the partner’s sole negligence could seek contribution from his co-partners when the negligent act occurred in the course of the partnership business. This court held that the partner had no right to seek contribution from his co-partners, reasoning that an actively negligent party cannot seek contribution from those to whom his negligence is imputed. “Here, the co-partners and defendant are not joint tortfeasors as among themselves. For the co-partners are subjected to liability only by the doctrine of respondeat superior. Thus, defendant whose negligence, if any, was actual, cannot seek contribution from his co-partners, who are merely constructively negligent. Of course, had defendant alleged that his co-partners were actual tortfeasors, a third party action for contribution would lie. But such is not the case.” 135 Ga. App. at 654. See also Conyers Toyota v. Southern Bell Tel. &c. Co., 198 Ga. App. 90 (1, 4) (400 SE2d 662) (1990) (in which this court held that partners or joint venturers who have committed no separate and distinct negligent acts or omissions, should be “treated as a single unit” when determining the contributive share of another tortfeasor, id. at (4)) and Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 206 (78 SE2d 612) (1953) (holding that it would be “unjust and inequitable to prorate the amount required to satisfy the judgment according to the number of members of the partnership” when none of the partners were “charged with active negligence, and their negligence was derivative upon the basis of the negligence of the partnership’s servant, ...” Id. at 206)!

It is clear from the foregoing that this court previously has made a distinction between active and constructive negligence when determining a party’s right to seek contribution. However, it appears that the precise issue presented in this case is one of first impression in this state. Other jurisdictions which have considered this issue have concluded that the actively negligent party and that party who is vicariously or derivatively liable for the negligence of the active tortfeasor should be treated as one party when considering the apportionment of a judgment among multiple defendants. “Where there are multiple tortfeasors, distinct acts of each which directly cause the damages must be independently considered to determine the number of tortfeasors who are liable for contribution. Where one or more of such defendants is liable solely on the basis of negligence imputed to him by virtue of his relationship with one of the other tortfeasors, the one guilty of negligence and the one to whom that negligence is imputed are to be treated as one party for the purpose of measuring the pro rata share of contribution due to the others. [Cits.]” Reese v. Henke, 174 NW2d 690, 693 (Minn. 1970). Chilcote v. Von Der Ahe Van Lines, 476 A2d 204, 212 (Md. 1984); Larsen v. Minneapolis Gas Co., 163 NW2d 755 (Minn. 1968); Zeglen v. Minkiewicz, 191 NE2d 450, 451 (N.Y. 1963).

We find these decisions to be persuasive. We hold therefore, that when there are multiple defendants and one or more of them is liable to the injured party solely on the basis of negligence imputed to it by virtue of its relationship with one of the other defendants, the one guilty of the negligent conduct and the one to whom the negligence is imputed are to be treated as one party when determining the pro rata share of the verdict or settlement each defendant must pay. Accord Harris v. Hanna Creative Enterprises, 208 Ga. App. 549 (430 SE2d 846) (1993) (in which this court held that the release of the employee acts as a release of the principal for the principal’s vicarious liability for the acts of the employee). The judgment of the trial court is thus affirmed.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Decided June 24, 1993.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Mark E. Robinson, for appellant.

Allen & Peters, Hunter S. Allen, Jr., Gary R. McCain, for appellee.


text:
    A93A0233.
    DAVIS v. THE STATE.
    (433 SE2d 366)
   Blackburn, Judge.

The defendant, Harold Davis, was charged with aggravated assault and aggravated battery. Following a trial by jury, he was convicted of both offenses, and sentenced to 20 years’ imprisonment to serve concurrently. The trial court allowed the defendant to file an out-of-time motion for new trial, and the motion was subsequently denied by the trial court. This appeal followed.

On May 7, 1989, the defendant was taken to his residence by a local taxi driver where a dispute subsequently arose as to the fare due the driver. The driver notified his dispatcher of the dispute and thereafter, the dispatcher requested the assistance of the police department to resolve the dispute. Upon arrival to the scene, Officer R. K. Straut saw the driver in front of the defendant’s home and proceeded to question him about the incident. After questioning the driver, the officer went to the defendant’s door and asked the defendant to step outside of his home for questioning. The officer frisked the defendant for safety reasons, and asked the defendant why he refused to pay the driver. The defendant informed the officer that he had paid the $5.20 taxi fare to the driver. The officer asked the defendant to put his hands behind his back as the officer intended to handcuff the defendant and place him in the back of his car. However, the defendant grabbed the officer’s arm and a struggle ensued. During the altercation, the defendant continuously struck the officer in the head. As the officer reached for his weapon, the defendant seized the gun and shot the officer on the right side of his head. The defendant subsequently seized another gun from the officer. During the incident, a bullet hit the wall and a tile particle hit the officer in the eye, impairing his vision. As a result of the altercation, the officer has experienced paralysis on his left side.

1. In his first enumeration of error, the defendant contends that the trial court erred in failing to merge his aggravated assault with the aggravated battery conviction. We agree.

OCGA § 16-1-7 (a) specifically provides, in part, that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other. . . “In other words, ‘a felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person. . . . This provides for broader protection to an accused than does the Federal Constitution.’ [Cit.]” Mills v. State, 187 Ga. App. 79, 80 (4) (369 SE2d 283) (1988). In Mills, we vacated the conviction for the aggravated assault, the lesser included offense, and held that the aggravated assault conviction merged into the aggravated battery conviction because “[t]he facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the aggravated battery charge, as it was set forth in the indictment, with the additional element being the victim’s loss of use of her eye.” Id. at 81. As a result, we determined that the defendant in Mills should have been sentenced only for the aggravated battery offense and not for the aggravated assault.

In the case sub judice, according to the indictment for the aggravated assault charge, the defendant “did unlawfully and knowingly commit an assault upon the person of R. K. Straut, a peace officer employed by the City of Atlanta Bureau of Police Services as a police officer, who was, at the time of said assault, engaged in the performance of his official duties as such peace officer; said assault being committed by accused shooting him with a pistol, the same being a deadly weapon.” The language in the indictment for aggravated battery indicated that the defendant “did unlawfully commit an assault upon the person of R. K. Straut, a peace officer employed by the City of Atlanta Bureau of Police Services as a police officer, who was, at the time of said assault, engaged in the performance of his official duties as such peace officer; said assault being committed by accused rendering a member of his body useless, to wit; his legs.” Although the indictment does not indicate what specific action of the defendant rendered the officer’s legs useless, the facts in this case indicate that the officer became paralyzed as a result of the bullet wound to his head during the altercation. Inasmuch as the facts in this case were the same facts used to support the indictments on both offenses, we agree with the defendant that the trial court erred in sentencing him on the aggravated assault charge. Accordingly, his sentence on the aggravated assault charge is vacated.

2. In his second enumeration of error, the defendant asserts that the trial court erred in giving an overbroad charge to the jury on aggravated assault. We disagree.

The trial court specifically charged the jury that “a person commits aggravated assault when he assaults another person, one, with intent to murder, rape or rob; or, two, with a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The language of the charge by the court specifically tracked OCGA § 16-5-21 (a) which defines the offense. “First, [defendant] made no contemporaneous objection to the instruction. A criminal defendant is not relieved ‘of the obligation to make timely objection throughout the trial. This obligation is essential to the court’s trying the case with as few errors as possible.’ [Cits.]” Hambrick v. State, 204 Ga. App. 668 (1) (420 SE2d 308) (1992). Moreover, “ ‘ [i]t is not usually cause for new trial that an entire Code section be given. (Cits.) This is so even though a part of the charge may be inapplicable under the facts in evidence. (Cits.)’ [Cit.] The indictment was read to the jury as part of the court’s instruction and was provided to them during deliberations. The targeted instruction was a correct statement of the law and, considering the entire charge, could not have misled the jury into convicting defendant of a manner not charged by the grand jury.” Id. at 671. Considering the correctness of the charge, and the failure of the defendant to object to the charge before the jury retired, we conclude that the instruction was not erroneous.

3. In enumeration of error 3, the defendant contends that the trial court erred in failing to instruct the jury to disregard the prosecutor’s improper closing argument and failed to provide curative instructions. Under OCGA § 17-8-75, “[w]here counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. . . .” However, “[i]n order to secure appellate review of a purported violation of OCGA § 17-8-75, it is necessary to object in the trial court to the allegedly prejudicial comment at the time it is made. [Cit.]” Johnson v. State, 198 Ga. App. 316, 317 (7) (401 SE2d 331) (1991). This was not done in this case. Consequently, there is nothing for this court to review.

4. In enumerations 4 and 5, the defendant contends that the trial court erred in failing to charge the jury on self-defense and an accused’s right to resist an illegal arrest. However, the record shows that the defendant did not request that the trial court charge the jury on these defenses and the defendant did not object to the trial court’s failure to do so at trial. Having failed to pose an objection or exception to the trial court’s failure to give these charges, we conclude that the defendant has waived his right to assert a charging error on appeal. Grissett v. State, 199 Ga. App. 547 (1) (405 SE2d 542) (1991). However, contrary to the defendant’s contentions, the trial court did in fact charge the jury on self-defense, specifically charging that “[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself against the other’s imminent use of unlawful force.” Consequently, these enumerations are without merit.

5. The defendant next argues that the trial court erred in quashing his subpoena for the victim’s personnel file. However, the defendant does not point to a specific document within the personnel files which may cast doubt upon the victim’s credibility or show the victim’s propensity for violence. As we have previously held in Taylor v. State, 182 Ga. App. 494, 496 (1) (356 SE2d 216) (1987), “ ‘[t]he officer’s . . . file can have no relevance to the guilt or innocence of the defendant in this case and the trial judge was absolutely correct to deny defendant access to it, the more so because it was to be a fishing expedition and defendant did not know what he hoped to find therein, except his own complaint against the officer. (Cit.)’ [Cit.]” Pretermitting the issue of whether the defendant has shown that the victim is a person of violent nature, “the victim’s violent character may not be established by proof of specific acts of violence. . . . [Cit.]” Hill v. State, 259 Ga. 655, 657 (4) (386 SE2d 133) (1989), overruled on other grounds, Edge v. State, 261 Ga. 865, 867 (414 SE2d 463) (1992). Inasmuch as the defendant subpoenaed the victim’s personnel record in search of specific acts of violent misconduct, which evidence is inadmissible, we conclude that the trial court’s refusal to order the production of the victim’s personnel file was not erroneous.

6. Lastly, the defendant contends that he was denied effective assistance of counsel. Specifically, he maintains that trial counsel failed to object to charges given by the trial judge, failed to request that specific instructions be given to the jury, and failed to object to improper statements made by the prosecution in its opening statement and closing argument. The defendant further contends that this deficient performance contributed to his conviction. However, this issue has been decided adversely to the defendant. Accordingly, we must reject the defendant’s contentions.

In Abreu v. State, 206 Ga. App. 361, 362 (1) (425 SE2d 331) (1992), we held that “[t]rial counsel’s failure to object does not demonstrate his ineffectiveness, because there was no reversible error.” “ ‘The fact that defense counsel made no . . . objections to the charge obviously establishes no lack of effectiveness on his part absent some deficiency or impropriety in the charge which was harmful to the [defendant].’ [Cit.]” Id. at 362-363. In the case sub judice, the defendant did not show that the charges in question were erroneous, that trial counsel’s failure to object to statements made in the prosecution’s opening statement and closing argument or failure to request that specific charges be given to the jury, prejudiced his defense. Although the defendant maintains that counsel did not fully investigate his case, this is not supported by the record. Contrary to the defendant’s contentions, “ ‘[a] defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.’ (Citations, punctuation, and emphasis omitted.) [Cit.]” Watkins v. State, 206 Ga. App. 575, 576 (2) (426 SE2d 26) (1992). Considering the totality of the representation provided by defendant’s trial counsel, we conclude that the trial court’s denial of his motion for new trial based upon ineffective assistance of counsel was not clearly erroneous.

Decided June 24, 1993.

Pearl P. Keng, Steven J. Jackson, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Patsy Y. Porter, Assistant District Attorneys, for appellee.

Judgment affirmed in part and vacated in part.

Johnson and Smith, JJ., concur.


text:
    A93A0310.
    HICKS v. McLAIN’S BUILDING MATERIALS, INC.
    (433 SE2d 114)
   Cooper, Judge.

In this action for the “filing of fraudulent materialman’s liens” and fraudulent misrepresentation, appellant appeals from the trial court’s grant of summary judgment for appellee.

Appellant and her husband were building a new home, using Jerel Bartlett as their builder. Appellee supplied some of the materials used in the home. Although deliveries of supplies by appellee were supposed to be on a C. O. D. basis, there is undisputed evidence that appellee’s deliverymen would sometimes leave supplies at the work site even if Bartlett was not there or did not have a check from appellant and her husband ready. In that event, Bartlett would go by appellee’s office to pay the next day. In November 1990, appellant fired Bartlett. A dispute subsequently arose between appellant and appellee regarding two amounts appellee said appellant and her husband owed. The first was $2,520.93 for standard building supplies appellee says Bartlett ordered and it delivered; the second was $19,858.60 for an alleged special order of non-standard doors and windows which appellant and her husband contend they never authorized. This special order was refused prior to delivery, and the materials were not used in the home. On December 11, 1990, appellee filed two liens against appellant’s house, one for each of the amounts allegedly owed, without notifying appellant. In January 1991, appellant paid the bill for $2,520.93, but the lien based on that claim was not cancelled. Appellant discovered the liens in the course of a title search in March 1991. However, she did not ask appellee to release the liens. Instead, she filed this action seeking punitive as well as actual damages and attorney fees. Appellee released the liens before answering the complaint, but appellant persisted with her action. Appellee’s motion for summary judgment was granted, and appellant appealed.

1. In two enumerations of error, appellant argues that she is entitled to recover damages from appellee because appellee failed to cancel the first lien after she paid the underlying $2,520.93 obligation and because appellee never had the right to file the second lien since the special order materials covered by the underlying $19,858.60 claim were never used in the house. Although appellant framed her first two causes of action as the “filing of fraudulent liens,” there is no such tort in Georgia; thus, the trial court treated these counts as claims for defamation concerning title to land. See Daniels v. Johnson, 191 Ga. App. 70 (2) (381 SE2d 87) (1989); Harmon v. Cunard, 190 Ga. App. 19 (378 SE2d 351) (1989); OCGA § 51-9-11. In order to sustain such an action, a plaintiff must prove, among other things, that she sustained special damage as a result of the alleged defamatory words. Daniels, supra; Harmon, supra. As in Daniels and Harmon, the generalized allegations of appellant and her husband that they might have been hindered in obtaining credit as a result of the liens are insufficient to establish special damage. Appellant and her husband testified that the only actual costs incurred as a result of the liens were the costs of this litigation, including attorney fees. We agree with the trial court that costs of litigation and attorney fees cannot constitute the required special damage, as such costs and fees will be present in any suit and treating them as special damage would render the special damage requirement meaningless. Accordingly, the trial court properly concluded that a cause of action for defamation of title could not be maintained as a matter of law.

Appellant contends that her first two causes of action are based on her statutory rights under OCGA § 44-14-360 et seq. rather than § 51-9-11. With respect to her claim based on the lien for $2,520.93, appellant relies on OCGA § 44-14-362, which provides that upon payment of the underlying claim, a person who has filed a preliminary notice of lien rights pursuant to OCGA § 44-14-361.3 must cancel the preliminary notice within ten days or be liable to the owner for all actual damages, costs, and reasonable attorney fees. However, appellee filed a claim of lien pursuant to OCGA § 44-14-361.1 rather than a preliminary notice of lien rights pursuant to OCGA § 44-14-361.3, so OCGA § 44-14-362 does not apply. With respect to the lien based on the $19,858.60 claim, appellant contends that she is entitled to damages under OCGA § 44-14-361.1 because appellee filed a lien without the legal right to do so and then failed to notify appellant, as is required by OCGA § 44-14-361.1 (a) (2). OCGA § 44-14-361.1 does not provide for an action for damages for its violation, however; instead, it explicitly states that failure to comply with its provisions will result in the unenforceability of the lien. Accordingly, appellant’s reliance on this Code section is misplaced, and the trial court did not err in granting summary judgment for appellee with respect to appellant’s first two causes of action.

2. Appellant further argues that genuine issues of material fact exist regarding her claim of fraudulent misrepresentation. See OCGA § 51-6-2. Specifically, appellant, asserts that appellee fraudulently misrepresented how much appellant owed appellee on earlier invoices already paid by appellant. Appellant points to evidence that appellee bills customers from the original order form rather than from the delivery slip without checking to make sure everything ordered was actually delivered. Based on appellee’s inability to produce documentation establishing delivery of many of the items she paid for, she alleges that she was billed for items ordered but not actually delivered. Appellant also points to documentation which she contends shows that she did not receive full credit for certain undelivered items and that the credit she did receive was in Bartlett’s name rather than her own. “ * “To support an action for deceit, the misrepresentation must be either known at the time to be false, or recklessly made with the intention of deceiving the opposite party.” ’ [Cit.]” Community Fed &c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (1) (348 SE2d 326) (1986). While appellant may have shown sloppy business practices on the part of appellee, she has not presented evidence from which either knowledge of falsity at the time of the alleged misrepresentation or intent to deceive may reasonably be inferred. See generally Windjammer Assoc. v. Hodge, 246 Ga. 85 (269 SE2d 1) (1980). Appellant’s suggestion that the alleged overcharging combined with Bartlett’s name on the credit slip may give rise to the inference that the supplier and contractor were engaged in a fraudulent kickback scheme is fanciful and without merit. Thus, summary judgment was properly granted on the fraud count also.

3. Because we have concluded that summary judgment for appellee was properly granted, we need not address appellant’s argument that she should have been granted partial summary judgment.

4. Requests for attorney fees or penalties by both parties are denied.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.

Decided June 24, 1993.

Clifford H. Hardwick, for appellant.

James B. Gurley, for appellee.


text:
    A93A0329.
    In the Interest of K. M. H., a child.
    (433 SE2d 117)
   Cooper, Judge.

Appellant, the natural father of K. M. H., appeals from a judgment of the Cobb County Juvenile Court terminating his parental rights.

Appellant and appellee, the mother of K. M. H., were never married. Appellant has a history of alcohol and drug abuse with several unsuccessful attempts at rehabilitation. He admitted at the termination hearing that he was still “a very abusive drinker” and has “trouble controlling [himself] around drugs.” Appellant also has an extensive criminal record, including convictions for forgery, financial transaction card fraud, possession of a firearm by a convicted felon, violation of the Georgia Controlled Substances Act, DUI and speeding as a habitual violator, and simple battery against appellee. During the five-and-one-half years of the child’s life prior to the hearing, appellant was in jail more than he was out. For a while after K. M. H. was born, appellee voluntarily allowed appellant to visit with the child, generally at the home of appellant’s mother. During one of these visits, the child broke her leg. Appellant was drunk but drove her to the hospital despite his intoxicated state. Once there, he realized that his intoxication, if noticed and reported, might result in revocation of his parole. He therefore left the hospital with his daughter before she was treated. As the result of this and other incidents, appellee stopped allowing visitation. Appellee testified that appellant never provided any child support; appellant testified that he paid $85 per month for child care for five months.

In 1988, appellant filed a petition for divorce in the Superior Court of Paulding County. The Paulding court denied the divorce on the ground that the parties were never married, awarded custody of the child to appellee, and ordered appellant to pay $35 per week in child support. In April 1991, after a hearing at which appellant had counsel but appellee did not, the same court held appellant in contempt for failing to pay child support but found that he was a “fit father and should have visitation rights with his daughter,” with the first two months of visitation to be supervised by Cobb County DFACS. Appellant testified at the termination hearing that he tried once to send appellee a payment of back child support but made no further attempts when the check was returned. He also attempted to set up visitation through the Cobb County DFACS but was unable to do so before he was again incarcerated on forgery charges seven weeks after the issuance of the Paulding County order. Appellant remained incarcerated from then until the termination hearing, and additional charges were still pending against him at that time. Although the Paulding court suggested in its order that appellant file a petition to legitimate K. M. H., he never did so.

1. Appellant argues that the evidence presented at the termination hearing was not sufficient to support the termination order. A trial court is authorized to terminate a parent’s rights with respect to a child if there is clear and convincing evidence that the child is deprived due to the parent’s misconduct, that the deprivation is likely to continue, and that the continued deprivation is likely to harm the child. OCGA § 15-11-81 (a), (b) (4) (A). The appropriate standard of review of the trial court’s ruling is whether, viewing the evidence in a light most favorable to the appellee, a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. See Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982); In the Interest of Y. P., 188 Ga. App. 554, 555 (373 SE2d 657) (1988). The facts recited above, established at the termination hearing by clear and convincing evidence, are more than sufficient to meet this standard.

2. Citing Harvey v. Wright, 80 Ga. App. 232 (2) (55 SE2d 835) (1949), appellant next contends that because his fitness as a father was conclusively established by the April 1991 Paulding County order, it was improper for the court in this case to consider evidence of appellant’s misconduct prior to that time. However, the issue of whether appellant was a fit parent in April 1991 is not the same as the issue of whether the child was deprived as the result of parental misconduct in June 1992, so the doctrine of judicial estoppel discussed in Harvey does not apply. Our review of the record shows that the trial court gave due deference to the April 1991 finding of parental fitness. It primarily focused on appellant’s misconduct subsequent to the issuance of the April 1991 order, including appellant’s failure to comply with that order as well as his reincarceration due to his continued criminal activities. The court denied appellant’s motion in limine to exclude all evidence of incidents prior to April 1991, reasoning that evidence of appellant’s earlier criminal and irresponsible behavior which alone might not have rendered him unfit as a parent might nonetheless support a finding of parental misconduct when viewed in conjunction with evidence showing that his earlier criminal and irresponsible behavior continued. We agree with this reasoning. Moreover, the challenged evidence was relevant to whether appellant’s misconduct and the resulting deprivation of the child were likely to continue, an issue unique to the termination proceeding. See In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991). Accordingly, the trial court did not err in failing to exclude this relevant evidence.

Decided June 24, 1993.

Michael H. Saul, for appellant.

Jane P. Manning, James K. Knight, Jr., for appellee.

3. Appellant further argues that the trial court erred in failing to state in its order how the continued deprivation of K. M. H. resulting from appellant’s misconduct is likely to harm the child. See In the Interest of H. T., 198 Ga. App. 463 (402 SE2d 83) (1991); OCGA § 15-11-81 (b) (4) (A) (iv). Contrary to appellant’s assertion, the trial court explicitly found that because of the continuing incarcerations of appellant, no meaningful relationship could develop between the father and child and “there is no likelihood the child would ever receive any financial or emotional support from the father.” The trial court also found it likely that appellant would “place the interest of the child second to his own” due to his “fear of parole violations if and when he is ever released.” It then went on to state, in the context of explaining the determinations it made pursuant to OCGA § 15-11-81, that appellant’s convictions and incarcerations had “a demonstrable negative effect on the quality of the parent-child relationship.” These findings and statements were sufficiently explicit to support termination. See In the Interest of G. T. T., 199 Ga. App. 706 (2) (405 SE2d 750) (1991).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur but am compelled to point out that conviction of crime and incarceration alone, even repeated, would not be sufficient in and of itself to warrant termination of parental rights. Legal termination of the parent-child relationship cannot be used as additional punishment or as conclusive evidence that termination is in the best interest of the child, under OCGA § 15-11-81. See In the Interest of H. L. T., 164 Ga. App. 517 (298 SE2d 33) (1982).


author: Smith, Judge.

text:
    A93A0390.
    THE STATE v. BROWNING.
    (433 SE2d 119)
   Smith, Judge.

Pursuant to OCGA § 5-7-1 (4), the State appeals from the order of the trial court granting Browning’s motion to suppress marijuana found in her purse during a warrantless search. The sole ground of justification argued below by the State was that the purse had been abandoned.

1. The uncontradicted evidence showed that police went to an apartment at 1:45 a.m., responding to a complaint of noise and loud music. When a young man opened the door, the police could see a total of four other persons inside, only one of whom was female. One of the males was smoking a pipe. The officers were assured that the music would be turned down, and the door at which the officers stood then was closed. As that door closed, they believed there was an odor of marijuana coming from the apartment, so the police knocked on the door again. Three people left the living room, and the police heard a back door close. The two persons remaining in the living room were arrested for possession of marijuana and handcuffed. A third person was discovered in a bedroom and placed under arrest. Various drug paraphernalia was in plain sight in the living room. Also in plain sight was a woman’s purse, “open” on the floor.

The arrestees, all male, disclaimed ownership in the purse and denied knowing whose it was. One of the officers examined its contents “to determine who the purse belonged to to make sure that nothing else — no other illegal activity had taken place.” The first item examined was a “small white pouch with a snap top. . . .” Inside this closed container was a pipe and a small amount of what appeared to be marijuana. The officer set this aside and continued looking. A driver’s license with Browning’s name and photograph was found and the purse was then seized. During this process, the officer admittedly knew he was searching the personal effects of a visitor. Some moments later, another officer approached three persons at a pay telephone near the apartment complex. The three, Browning included, broke into a run but were apprehended. Browning was shown the purse seized from the apartment, and she identified it as hers, at which point she was arrested for possession.

“There is nothing unlawful in the government’s appropriation of abandoned property, which does not constitute a search or seizure in the legal sense. [Cits.]” Green v. State, 127 Ga. App. 713, 714-715 (194 SE2d 678) (1972). The question of abandonment for Fourth Amendment purposes turns on whether under the totality of the circumstances, the investigating officer reasonably believed at the time of the search that the accused had relinquished his interest in the property to such an extent that he no longer had a reasonable expectation of privacy in it. See Bloodworth v. State, 233 Ga. 589, 590 (2) (212 SE2d 774) (1975); Young v. State, 190 Ga. App. 775, 776 (380 SE2d 309) (1989). “The issue of abandonment vel non . . . is a factual issue to be resolved by the trior of fact — the judge hearing the motion. [This] finding on a motion to suppress must not be disturbed by this court if there is any evidence to support it. [Cit.]” Vines v. State, 142 Ga. App. 616, 617 (237 SE2d 17) (1977).

Decided June 24, 1993.

Kenneth W. Mauldin, Solicitor, Anne M. Templeton, Assistant Solicitor, for appellant.

We therefore are required to view the evidence in the light most favorable to the trial court’s determination. From that perspective, the evidence shows only that Browning had been a guest in the apartment, that she placed her purse on the floor there, and that she was not present at the time the police arrested the tenants. She was taken into custody near the apartment and did not disclaim her interest in the bag upon questioning. Where the police have notice, as admitted here, that they are searching the personal effects of a visitor, such a search is illegal absent independent justification for a personal search. State v. Brassell, 144 Ga. App. 279 (241 SE2d 57) (1977). “ ‘A person does not lose the protection of the Fourth Amendment by entering the apartment of another. (Cits.)’ ” Hayes v. State, 141 Ga. App. 706, 708 (234 SE2d 360) (1977) (physical precedent). “ ‘[T]he visitor has [a substantial interest] in the privacy of all his possessions, wherever located.’ ” Childers v. State, 158 Ga. App. 613, 614 (281 SE2d 349) (1981). Personal belongings brought by their owner on a visit to a friend’s house retain their constitutional protection until their owner meaningfully abdicates control or responsibility.

The evidence here authorized the trial court’s determination that Browning had not abandoned her purse. Since the State failed to establish the lawfulness of the warrantless search and seizure of the purse, the trial court correctly granted the motion to suppress the marijuana found therein. Compare Blount v. State, 181 Ga. App. 330, 334-336 (4) (352 SE2d 220) (1986) (no indication that woman’s pocketbook, searched by police during premises search pursuant to a warrant, belonged to a visitor).

2. Although the state argued below only abandonment as justification for the warrantless search of Browning’s purse, it now argues that a warrantless search nevertheless was authorized by exigent circumstances. This enumeration will not be addressed. Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court. Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Ralph J. Hunstein, for appellee.