author: Andrews, Presiding Judge.

text:
    A00A0435.
    HAMMOND v. LEE et al.
    (536 SE2d 231)
   Andrews, Presiding Judge.

At issue in this case is whether Travelers Insurance Companies, which paid workers’ compensation benefits to Schlanda Hammond for job-related injuries, is entitled to enforce a subrogation lien pursuant to OCGA § 34-9-11.1 (b) against lost wages and medical expenses recovered by Hammond in a suit against a third-party tortfeasor liable for the injuries! For the reasons which follow, we affirm the award of the lien against the amounts recovered in the suit for medical expenses and reverse the award of the lien against the amounts recovered in the suit for lost wages.

Travelers paid workers’ compensation benefits to Hammond for lost wages and medical expenses arising out of a job-related automobile accident which occurred on July 5,1994, in which a car driven by Hammond for her employer was struck from the rear by a car driven by Lee. Hammond sued Lee as a third-party tortfeasor for injuries she suffered in the accident, and Travelers, as the workers’ compensation insurer for Hammond’s employer, intervened in the suit to assert a subrogation lien pursuant to OCGA § 34-9-11.1 (b) against any recovery Hammond obtained from Lee.

Under OCGA § 34-9-11.1 (b), after an employer has paid workers’ compensation benefits to an injured employee, the employer or its workers’ compensation insurer is granted a subrogation lien for the benefits paid against the employee’s recovery from a third-party tortfeasor found liable to the employee for the injury. To assert the lien, the statute allows the employer or its insurer to intervene in the suit brought by the employee against the third party. Under the statute, the lien is limited to the amount of the workers’ compensation disability benefits, death benefits, and medical expenses paid to the employee, and the lien is recoverable only

if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under [the Workers’ Compensation Act] and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

OCGA § 34-9-11.1 (b).

Hammond’s suit against Lee in which Travelers intervened was tried before a jury and was bifurcated into two phases. In phase one, Hammond’s claim against Lee was tried before the jury under a ruling by the trial court to omit any reference to the fact that Hammond had been reimbursed for lost wages and medical expenses by workers’ compensation coverage. Utilizing a special verdict form, the jury found that Lee was liable to Hammond for damages resulting from the accident and awarded a verdict in favor of Hammond in the following amounts: (1) medical expenses of $3,343; (2) past lost wages of $2,165; (3) future lost wages of $0; and (4) past and future pain and suffering of $2,500.

In phase two, the issue was whether Travelers was entitled to a subrogation lien pursuant to OCGA § 34-9-11.1 (b) against the amounts recovered by Hammond in phase one. In this phase, the jury heard additional evidence that Hammond filed a workers’ compensation claim as a result of the accident and that Travelers paid Hammond in excess of $133,000 in workers’ compensation disability and medical benefits, including $74,651.11 as disability benefits for lost wages and $58,679.50 in medical expenses. Evidence also showed that, although Travelers paid Hammond benefits for lost wages in the amount of $254.96 per week from the time of the accident on July 5, 1994, through the start of trial on November 18, 1998, this was less than Hammond’s approximate weekly wage of $382.45 per week at the time of the accident. Although Hammond testified that she incurred $3,460.42 in medical expenses which were unreimbursed by workers’ compensation, she also testified that the total amount of the medical expenses she incurred as a result of the accident was $47,475.79. Based on the evidence and on instructions from the trial court on the legal requirements for awarding a subrogation lien under OCGA § 34-9-11.1 (b), the jury reached a verdict finding that Hammond had been fully and completely compensated for all economic and noneconomic losses she incurred as a result of the injury and finding that Travelers was entitled to recover on its subrogation lien.

Based on the jury verdicts, the trial court entered a judgment for Hammond on her claim against Lee in the amount of $3,343 in medical expenses, $2,165 in past lost wages, and $2,500 for pain and suffering. The judgment further provided that, because the jury determined that Hammond had been fully compensated, Travelers was entitled to a subrogation lien against all the sums recovered by Hammond against Lee.

After Hammond moved for a new trial, the trial court issued an order pursuant to OCGA § 51-12-12 (b) concluding that Travelers was not entitled to a lien against the sums recovered by Hammond for pain and suffering and ordering that a new trial would be granted unless Travelers released its lien against the $2,500 recovered for pain and suffering. Travelers subsequently released its lien against the pain and suffering award. The trial court then issued an amended judgment stating that the total verdict of $3,343 in medical expenses, $2,165 in past lost wages, and $2,500 in pain and suffering recovered by Hammond was distributed as follows: (1) $2,669 was awarded to Hammond’s attorney to satisfy an attorney fee lien of one-third of the total verdict; (2) $1,667 was awarded to Hammond representing two-thirds of the pain and suffering portion of the verdict after deduction of the attorney fee lien; and (3) Travelers was awarded $3,672 on its subrogation lien, which represented all of the verdict for medical expenses and lost wages after deduction of the attorney fee lien.

Hammond appeals from the amended judgment.

1. We agree with Hammond’s claim that Travelers was not entitled to a subrogation lien against her recovery of $2,165 in past lost wages. Considering the lost wage benefits she received under the Workers’ Compensation Act and the amount of lost wages she recovered in the third-party claim against Lee, the evidence shows that Hammond was not fully and completely compensated, as required by OCGA § 34-9-11.1 (b), for the wages she lost as a result of the disabling injury she suffered in the accident. The evidence showed that Hammond’s wages prior to the injury she suffered on July 5, 1994, averaged $382.45 per week and that Travelers paid wage benefits of $254.96 per week through the time of the trial which started on November 18, 1998. The difference in these figures amounts to over $28,000 in unreimbursed lost wages at the time of the trial. Accordingly, the Workers’ Compensation Act benefits paid by Travelers did not fully compensate Hammond for past lost wages, and the amount of past lost wages for which Hammond remained uncompensated at the time of trial exceeded the $2,165 she recovered for past lost wages in the third-party claim against Lee. Even if we assume, as Travelers claims, that it paid Hammond a total of $74,651.11 in lost wage benefits prior to trial, this sum still falls about $12,000 short of fully reimbursing Hammond for her past lost wages calculated at $382.45 per week from the date of the injury on July 5, 1994, through the start of the trial on November 18, 1998. It follows that there was no evidence to support the verdict in phase two finding that Travelers was entitled to a subrogation lien pursuant to OCGA § 34-9-11.1 (b) against Hammond’s recovery of past lost wages. North Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (513 SE2d 251) (1999).

2. As to the medical expenses in the amount of $3,343 recovered by Hammond in the suit against Lee, we find no error in the award of a subrogation lien to Travelers against this sum after deduction of the attorney fee lien. Although Hammond testified that she incurred $3,460.42 in medical expenses for which she had not been reimbursed, she also testified that the total amount of her medical expenses resulting from the injury was $47,475.79. Other undisputed evidence showed that Travelers paid a total of $58,679.70 in medical benefits to Hammond as a result of her injury. This evidence was sufficient to support the verdict in phase two finding that the workers’ compensation medical expense benefits paid to Hammond along with the medical expenses she recovered from Lee were more than sufficient to fully and completely compensate her for medical expenses she incurred as a result of the injury. North Bros., 236 Ga. App. at 841-842.

3. Travelers paid nothing to Hammond to compensate her for noneconomic losses like pain and suffering. Hammond’s only compensation for this loss was her recovery from Lee in the amount of $2,500. Since awarding a subrogation lien against the $2,500 recovery for pain and suffering would leave Hammond uncompensated for this noneconomic loss, the trial court correctly amended the judgment to reflect that Travelers had no subrogation lien against the amount recovered by Hammond for pain and suffering. North Bros., 236 Ga. App. at 841.

4. Contrary to Hammond’s contention, we find no error in the trial court’s decision to bifurcate the case into two phases and to try each phase before the same jury. In phase one, Hammond tried her claim against Lee and recovered a verdict for damages resulting from her injury in the accident. During this phase, the trial court properly excluded prejudicial references to the fact that Hammond had received collateral source benefits from workers’ compensation insurance. Denton v. Con-Way Southern Express, 261 Ga. 41, 43 (402 SE2d 269) (1991), overruled on other grounds, 262 Ga. 374, 376 (418 SE2d 27) (1992). In phase two, the issue of whether Travelers was entitled to a subrogation lien against Hammond’s recovery from Lee was tried. In order to enforce the lien, Travelers was required to show, without regard to the tort principles applied in Hammond’s claim against Lee, that Hammond had been “fully and completely compensated,” within the meaning of OCGA § 34-9-11.1 (b), for all of her economic and noneconomic losses incurred as a result of the injury. Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 196 (518 SE2d 194) (1999); Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 334-335 (494 SE2d 29) (1997). In this phase, the jury was authorized to consider evidence of Hammond’s economic and noneconomic losses incurred as a result of the injury, along with evidence of compensation received by Hammond for such losses from workers’ compensation benefits and the amounts recovered in the claim against Lee. See Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 354-355 (494 SE2d 82) (1997). It was then the duty of the jury to find the facts from the evidence, take the law from the trial court’s instructions, and apply the law to the facts proved by the evidence. Smoky, Inc. v. McCray, 196 Ga. App. 650, 656 (396 SE2d 794) (1990).

Decided June 22, 2000

Reconsideration denied July 10, 2000.

Bobby D. Simmons, for appellant.

Cooper & Makarenko, Gary M. Cooper, Donahue, Hoey, Rawls, Skedsvold & Richards, Craig R. White, for appellees.

5. There is no merit to Hammond’s claim that the trial court should have granted a new trial because the verdict awarded in her claim against Lee in phase one was less than the proved medical expenses. A verdict for less than the amount of the proved medical expenses is not so inadequate as to require a new trial where, as in the present case, there was evidence that Hammond’s complaints were at least partially related to her physical condition prior to the accident with Lee. Turpin v. Worley, 206 Ga. App. 341, 342 (425 SE2d 895) (1992). The question of damages was for the jurors who weighed the evidence and determined the credibility of the witnesses. Id. at 343; OCGA § 51-12-12.

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ, concur.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A0478.
    COOK v. REGIONAL COMMUNICATIONS, INC.
    (539 SE2d 171)
   Smith, Presiding Judge.

Sheila Cook appeals from the trial court’s grant of Regional Communications, Inc.’s motion to dismiss her Verified Petition for Judicial Dissolution and Interlocutory Injunction. We conclude that the trial court properly granted Regional Communications’s motion to dismiss. Because Cook was not a shareholder in Regional Communications at the time her petition was filed, she did not have standing to institute a petition for judicial dissolution. Her complaint therefore failed to state a claim upon which relief could be granted.

The record shows that Regional Communications was incorporated in July 1997 as a close corporation under OCGA §§ 14-2-901 through 14-2-943. Cook and Michael Jackson were the sole shareholders, with each holding 50 percent of the stock. After a dispute between Cook and Jackson, Jackson filed suit against Cook in April 1998, seeking damages and injunctive relief. The parties entered into an agreement in settlement of this action on April 20, 1998. Pursuant to the agreement, Cook tendered all of her shares in the corporation to Jackson. On May 22, 1998, Jackson changed the name of the corporation to Regional Communications, Inc. Contending that Jackson breached the agreement by continuing to pursue his legal action against her, Cook attempted to rescind the tender of her shares in the corporation and filed this petition seeking dissolution of the corporation.

Cook contended below and still contends on appeal that the agreement required Jackson to abandon legal action against her and that continuing to press the action breached their agreement, entitling her to the return of her shares in the corporation. Contending that she is still a shareholder in the corporation but did not receive notice of the amendment to the articles changing the name of the corporation or vote to change its name, Cook argues she is entitled to bring a petition for judicial dissolution under OCGA § 14-2-1430.

A motion to dismiss may be granted only when the complaint establishes that the plaintiff is not entitled to relief under any facts that could be proved. Croxton v. MSC Holding, 227 Ga. App. 179, 180 (489 SE2d 77) (1997). We review the trial court’s ruling de novo. Id.

OCGA § 14-2-1430 sets forth the grounds for judicial dissolution. It provides that a superior court may dissolve a corporation in a proceeding brought by the Attorney General of Georgia, a shareholder, or a creditor. As a threshold matter, since Cook is obviously not the attorney general and is not a creditor, her standing to bring a petition for judicial dissolution depends upon establishing her status as a shareholder. Cook admits she relinquished all her shares in the corporation. Her status as a shareholder therefore turns on the question of whether Jackson breached the agreement and is holding Cook’s shares unlawfully.

Cook contends that she delivered her shares in reliance upon the settlement agreement and that the agreement required Jackson to abandon the legal action against her. The agreement, however, does not recite that it is in settlement of any legal action or that Jackson is required to abandon such legal action. Further, it provides that the agreement, as written, is the entire agreement between the parties and that “no other agreement, oral or written, shall have any effect.” It is well established that such a merger clause precludes the admission of parol evidence to add to, take from, or vary the written contract. Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186-187 (1) (474 SE2d 56) (1996).

Decided June 21, 2000

Reconsideration denied July 10, 2000

Power & Westbury, ^Narren R. Power, Leanne P. Cooper, for appellant.

Harrison & Harrison, Stephen P. Harrison, for appellee.

Because the agreement does not bar legal proceedings or even mention them, we cannot conclude that Jackson breached the agreement by continuing his action against Cook. And since Cook relinquished her shares to Jackson under the agreement, he holds them lawfully and Cook is not a shareholder in the corporation. It follows that under no set of facts can Cook prove she meets the threshold statutory requirements for bringing a petition for judicial dissolution. The trial court did not err in granting Jackson’s motion to dismiss.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Cook’s original petition did not include a verification; it was included in her amended petition.


author: POPE, Presiding Judge.

text:
    A00A0007.
    ARMSTRONG v. THE STATE.
    (537 SE2d 147)
   POPE, Presiding Judge.

William Michael Armstrong appeals from his conviction on one count of false imprisonment.

Viewed in the light most favorable to the verdict, the evidence showed that Lisa Aldridge went to visit Armstrong at his brother’s house on the afternoon of August 3, 1997. Aldridge testified that she and Armstrong had been “friends and lovers” for about a year. After an evening spent drinking beer and smoking marijuana, both Aldridge and Armstrong were drunk. Aldridge decided to stay the night. The living room had two twin beds, and Armstrong told Aldridge to sleep on one of the beds, while his brother slept on the other. Armstrong decided to sleep outside in his car because he had hurt his back and the car seat was firmer than the bed.

The next thing Aldridge remembered was Armstrong pulling her out of the bed by her hair at around 2:00 a.m. He then dragged her out of the house, onto the porch, down a set of concrete steps and across a rocky yard. He began beating her head against the concrete and hitting her repeatedly. He then locked Aldridge in his garage. The next morning, Armstrong returned, and Aldridge was able to persuade him to let her drive him to a store for some coffee. Aldridge’s car was parked within a locked enclosure, and Armstrong had to open a padlock to let them out. She dropped Armstrong at the store and then drove to a police station to report what had happened. Aldridge suffered a dislocated shoulder, a black eye and numerous scrapes and abrasions. She missed two weeks of work as a result of her injuries.

1. To prove false imprisonment “all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” (Citation and punctuation omitted.) Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998). See also OCGA § 16-5-41 (a). Aldridge’s testimony established all of the elements of false imprisonment. Although Armstrong argues that Aldridge’s testimony was not credible and that his testimony regarding what happened that night was more “rational and logical,” the jury was not required to believe his version of events. Matters of witness credibility are entirely within the jury’s purview. Johnson v. State, 238 Ga. App. 677 (1) (520 SE2d 221) (1999). We find sufficient evidence in the record to sustain Armstrong’s conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Armstrong also asserts that the trial court erred in recharging the jury. During deliberations, the jury raised two questions: (1) “Please define ‘legal authority.’” and (2) “What does Georgia law state regarding a citizen’s obligation to constrain an impaired individual?”

In response, the trial court first repeated the jury’s questions and, in doing so, substituted the word “confine” for “constrain” in the jury’s second question. The court then reminded the jury that they should take into consideration the court’s entire jury charge in reaching a verdict, that the recharge operated together with the prior charge and that one was not any more important than the other. The judge then charged the jury as follows:

A person commits the offense of false imprisonment when in violation of the personal liberty of another he confines or detains such person without legal authority. Legal authority means without any authority to do so. Georgia law sets no mandate with regard to the constraint of an impaired individual.

Decided July 10, 2000.

Armstrong asserts three errors in this charge. He first argues that the trial court confused the jury by using the word “confine” instead of “constrain” in repeating the jury’s question. Second, he asserts that the recharge was misleading because the trial court did not include the word “arrest” in defining the offense of false imprisonment. And third, he contends that the last sentence of the charge misstated the law because it did not take into consideration Georgia’s dram shop law. OCGA § 51-1-40.

We find that the trial court’s interchanging of the words “confine” and “constrain” was not misleading or confusing as the two words are closely related in meaning. Indeed, American Heritage Dictionary (2nd college ed. 1991) states that “constrain” means “to keep within close bounds; confine.” “A mere verbal inaccuracy resulting from a slip of the tongue which does not clearly mislead or confuse the jury is not reversible error.” Matthews v. State, 268 Ga. 798, 805 (7) (493 SE2d 136) (1997).

Further, although the trial judge did omit the word “arrest” in recharging the jury regarding false imprisonment, we find no reversible error. The charge given was consistent with the language of the indictment and the evidence at trial where there was no assertion that an “arrest” had occurred. Thus we are satisfied that the jury could not have been misled or confused by the trial court’s slip of the tongue in this instance. See generally Caldwell v. State, 167 Ga. App. 692, 695 (4) (307 SE2d 511) (1983). Cf. Chadwick v. State, 236 Ga. App. 199, 201-202 (2) (511 SE2d 286) (1999).

Nor do we find error in the trial court’s statement that Georgia law does not mandate the constraint of an impaired individual. We can find no law in this state that places a legal duty on a private citizen to restrain or constrain someone who is drunk or otherwise impaired. Georgia’s dram shop legislation does address the duties of a provider of alcoholic beverages. That statute insulates the provider from liability to third persons except where he or she wilfully, knowingly and unlawfully provides such beverages to a minor or to someone in a state of “noticeable intoxication, knowing that such person will soon be driving a motor vehicle. . . .” OCGA § 51-1-40 (b). Therefore, the statute sets forth a basis for civil liability where an alcohol provider knowingly continues to serve alcohol to an intoxicated person. But nothing in that statute or any other provision of Georgia law mandates that a provider of alcoholic beverages must prevent an intoxicated person from driving.

Judgment affirmed.

Smith, P. J, and Miller, J., concur.

Frederick M. Scherma, for appellant.

Patrick H. Head, District Attorney, John C. Richter, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

       Armstrong originally was charged with false imprisonment and simple battery, but the jury acquitted him on the battery count.


text:
    A00A0014.
    HERNANDEZ v. THE STATE.
    (537 SE2d 149)
   Smith, Presiding Judge.

Arturo Hernandez appeals from the trial court’s denial of his plea in bar made on the ground of double jeopardy after the trial court declared a mistrial over the objection of Hernandez. We conclude that no manifest necessity existed for the mistrial and that Hernandez’s plea should have been granted. We therefore reverse the judgment below.

Hernandez was charged jointly with his cousins, Joshua Diaz and Otman Martinez, with entering an auto to commit theft, theft by receiving, and armed robbery. The day before all three were to be tried, Diaz and Martinez accepted negotiated guilty pleas to entering an auto, theft by receiving, and a reduced charge of robbery by force in exchange for reduced sentences. An express condition of the plea was that they both testify against Hernandez. Hernandez apparently was offered the same deal but refused it.

The record shows that the crimes all occurred on one evening and, according to Diaz and Martinez, were Diaz’s idea. Diaz alone entered the auto to commit the theft, after telling Hernandez to stop the car in which the three were riding. But Diaz testified that Hernandez helped carry the television set stolen from the car into Hernandez’s home. After checking to see that the television set worked, the three left again.

Diaz testified that while riding around, he got the idea to rob a store. At first, the others did not want to participate in the robbery, but after Diaz made fun of them, they eventually agreed. Diaz and Martinez entered the store, and Diaz asked Hernandez to wait in the car for them. After seeing Diaz emerge from the store with cigarettes in his hand, Hernandez told Diaz he was “wrong.”

Upon cross-examination of Diaz, defense counsel began exploring the deal Diaz had made with the prosecution. She questioned him about the benefits he gained by agreeing to testify against Hernandez, asking him if he knew that if he were convicted of armed robbery, he would face a possible sentence of life in prison. Proceeding with the cross-examination, the following colloquy ensued:

Q. And you also know that there was a potential that you could get ten to twenty years in prison?
A. Yes, ma’am.
Q. And you were aware that whatever you got you were going to serve every day if you got a ten to twenty years, isn’t that correct?
A. Yes, ma’am.
Q. There’s no parole on that, is there?

At that point, the prosecutor objected, asked to approach the bench, and requested a mistrial. He maintained that the defense could not ask about the possibility of parole, and a lengthy discussion then ensued outside the presence of the jury.

The prosecution believed the defense was attempting to create sympathy in the jury for Hernandez, whose lesser role in the crimes could now possibly result in a greater punishment than that imposed upon his accomplices. The prosecutor argued that this might cause the jury to acquit Hernandez altogether rather than have him subjected to sentencing without parole, which is mandated for armed robbery. OCGA § 17-10-6.1 (a) (2), (b), (c) (3). The prosecution insisted that case law completely prohibited any mention of parole.

The defense, on the other hand, asserted that it was not improper to question an accomplice who has negotiated a plea and is testifying against the defendant, in order to bring out the bias inherent in the witness’s testimony. And in this instance, the defense argued that it sought to show that Diaz had escaped an armed robbery conviction, with its mandatory imposition of a sentence with no parole possible.

The jury was sent home for the night. The trial resumed the next morning, and the discussion continued before the jury entered the courtroom. The State argued that the defense violated OCGA § 17-8-76 and that the State therefore had an absolute right to a mistrial. Nevertheless, the State informed the court it was “okay with the Court fashioning a remedy that doesn’t require a mistrial.” The prosecutor simply did not know what that remedy would be. The State felt it needed a mistrial to prevent the trial from being “unfair” to the citizens of Georgia. Defense counsel reiterated Hernandez’s constitutional rights to confront his accusers and to receive effective assistance of counsel. She insisted she had done nothing wrong and had not violated OCGA § 17-8-76. She maintained she had a right to cross-examine anyone who testified against Hernandez to reveal any bias, interest, or motive to lie. The trial court stated that it could not think of viable alternatives and declared the mistrial.

1. OCGA § 17-8-76 provides as follows:

(a) No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency, (b) If counsel for either side in a criminal case argues to or in the presence of the jury as provided in subsection (a) of this Code section, opposing counsel shall have the right immediately to request the court to declare a mistrial, in which case it shall be mandatory upon the court to declare a mistrial. Failure to declare a mistrial shall constitute reversible error.

Hernandez contends on appeal, as he contended below, that this Code section is clearly inapplicable to the circumstances present here and that the cross-examination of Diaz was a completely proper and constitutionally protected confrontation of an adverse witness, undertaken to demonstrate bias and motive. We agree.

(a) First, OCGA § 17-8-76 prohibits only argument that a defendant may not serve the full amount of his sentence; it does not prohibit even making argument in this regard concerning a witness. Lemay v. State, 264 Ga. 263, 266 (3) (443 SE2d 274) (1994).

(b) Second, in Cave v. State, 171 Ga. App. 22 (318 SE2d 689) (1984), the trial court denied a defense motion for a mistrial after the State asked a defense witness who was then serving a sentence whether the witness was aware that under parole policies he was almost finished with his sentence. The prosecution then argued this point in closing, as well. We held that the denial of a mistrial was not error, noting the Supreme Court’s holding in Gilreath v. State, 247 Ga. 814, 835 (15) (279 SE2d 650) (1981), that “the purpose of the statute [(OCGA § 17-8-76)] is to prevent prosecutors from arguing in essence that the jury should give a more severe sentence to compensate for possible pardon, parole, or other clemency.” (Citation and punctuation omitted; emphasis in original.) Cave, supra at 23 (1). Under current Georgia law, sentences in felony cases are imposed by the trial judge, not the jury, except in death penalty cases and cases in which a sentence of life without parole may be imposed. OCGA § 17-10-2. It follows that any remarks by the prosecuting attorney would not cause the jury to impose a more severe sentence. Such remarks, therefore, do not fall within the purview of OCGA § 17-8-76, because the jury was not authorized to impose sentence. Id.

(c) Finally, and perhaps most importantly, such cross-examination is proper because it is constitutionally protected. Delaware v. Van Arsdall, 475 U. S. 673, 680 (106 SC 1431, 89 LE2d 674) (1986) (criminal defendant shows violation of confrontation clause by showing he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias of witness); Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974) (partiality of witness subject to exploration at trial because Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination”).

It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness. Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.

(Citations and punctuation omitted.) Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982).

Defense counsel sought to show Diaz’s motive, bias, or interest in cooperating with the State and testifying against Hernandez. A crucial difference exists between this type of cross-examination and mere impeachment by showing contradictory facts or a general lack of trustworthiness because of a prior criminal conviction. The former is constitutionally protected, while the latter is not. See Matthews v. State, 268 Ga. 798, 802 (493 SE2d 136) (1997). A witness’s bias may be exposed by showing that he has benefitted or hopes to benefit from his cooperation with the prosecution in this case. Kinsman v. State, 259 Ga. 89, 91 (7) (b) (376 SE2d 845) (1989).

The prosecutor’s concern that revealing a sentencing differential would engender sympathy for Hernandez may well have been realistic. But any such reaction was inherent in the facts of the case. The evidence showed that Hernandez’s role in the crimes was more passive than those of the other two participants. The State was responsible for the sentencing disparity by offering reduced sentencing in exchange for testimony against Hernandez. Moreover, the State did not move in limine to limit cross-examination. If genuine concerns existed, they could have been addressed by establishing proper boundaries or by carefully instructing the jury.

Here, Hernandez simply exercised his constitutional right to confront witnesses against him by exposing their bias and motive to testify. Even when a prosecutor argues about a defendant’s possibility of release through probation or parole, this court has upheld the denial of a motion for mistrial, finding that curative instructions sufficed. See, e.g., Steele v. State, 181 Ga. App. 695, 696 (1) (353 SE2d 612) (1987). Because Hernandez did not violate OCGA § 17-8-76, and because his cross-examination was relevant and constitutionally protected, a mistrial was not necessary here.

Decided July 10, 2000.

Monica T. Myles, Jill L. Anderson, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Nancy J. King, James C. Bonner, Jr., amici curiae.

2. It follows that Hernandez’s plea in bar should have been granted. A defendant has been placed in jeopardy when the jury is impaneled and sworn. Hernandez was therefore entitled to be acquitted or convicted by that jury. Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994). If a mistrial is declared over the defendant’s objection, he may be retried only if a “manifest necessity” existed for the mistrial. Id. Because we have held that the cross-examination was proper and that the prosecutor’s concerns could have been alleviated short of a mistrial, no such manifest necessity existed here.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       The State offered as a possible remedy to inform the jury of all plea negotiations, including that Hernandez had been offered the same plea bargain and had refused.


author: Ruffin, Judge.

text:
    A00A0468.
    DEPARTMENT OF VETERANS SERVICES v. ROBINSON et al.
    (536 SE2d 617)
   Ruffin, Judge.

The issue in this appeal is whether the Georgia Department of Veterans Services (the “Department”) has a nondelegable duty to care for veterans in this state. If so, this Court must decide whether the Department may be held liable for the negligent acts of an independent contractor which breaches the State’s duty or whether such claim is barred under the doctrine of sovereign immunity. We conclude that the Department does not have a nondelegable duty to care for veterans and reverse.

William Robinson, a veteran, resided at the Georgia State War Veterans’ Home (the “Home”), a nursing home for veterans. Central State Hospital, a division of the Department of Human Resources, originally operated this Home for the Department. In April 1996, however, the Department contracted with Pruitt Corporation to manage and operate the Home. Pruitt, in turn, assigned the contract to its affiliate, Priva-Trends, Inc.

While Mr. Robinson was under Priva-Trends’ care, he suffered a broken hip as a result of a fall in January 1997. He also suffered a broken femur, but the cause of this injury is unknown. Following surgery for the broken femur, Mr. Robinson died. His wife, Norma Robinson, sued Pruitt, Priva-Trends, and the Department, alleging that Pruitt and Priva-Trends negligently, recklessly, or wilfully caused the death of her husband. Robinson alleged that the Department was liable because its duty to care for her husband was nondelegable. In its answer, the Department asserted that the complaint against the Department should be dismissed because any alleged negligent acts were committed by an independent contractor.

Robinson moved for partial summary judgment on the Department’s “independent contractor defense,” arguing that the Department has a statutorily imposed duty to care for veterans and could not escape liability for breaching that duty. The trial court agreed, ruling that the Department “had a non-delegable duty to care for and support the patients at the Georgia War Veterans Home.” Thus, the trial court granted summary judgment in favor of Robinson on the Department’s independent contractor defense, and this appeal ensued.

Under the Georgia Constitution, “sovereign immunity extends to the state and all of its departments and agencies.” This immunity may be waived only by a legislative act “which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Implied waivers of the State’s immunity are not favored.

In the Georgia Tort Claims Act (“GTCA”), the legislature expressly waived the State’s sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment.” However, the definition of state officer or employee “does not include an independent contractor doing business with the state.” Thus, the Department is not liable for the acts or omissions of Pruitt Corporation or Priva-Trends.

Robinson argues that a different rule applies if the State has a nondelegable duty. According to Robinson, the GTCA must be read in pari materia with general tort law under which an employer may be liable for the negligence of a contractor “[i]f the wrongful act is the violation of a duty imposed by statute.” Robinson asserts that the case of Williams v. Dept. of Corrections stands for the proposition that OCGA § 51-2-5 (4) creates such a waiver of immunity.

In Williams, a prisoner sued the Department of Corrections for injuries sustained in a tractor accident. Williams’ supervisor at the time of the accident was arguably an independent contractor. This Court held that,

Even if [the supervisor] was determined to be an independent contractor of the state, the Department [of Corrections] could still be responsible for his negligence. Generally, an employer is not liable for the negligence of an independent contractor; however, exceptions exist when the work to be done involves a nondelegable duty which is dangerous to others no matter how carefully performed, when the work is a violation of a duty imposed by statute, or in other limited instances.

Thus, if the Department had a nondelegable duty to care for veterans, Robinson argues that the Department is liable. We disagree.

As an initial matter, we are not persuaded that the State has a duty to care for its veterans. Although OCGA § 38-4-1 et seq. authorizes the Department to provide aid and assistance to veterans, we see nothing in the statutory framework that makes providing such aid and assistance a mandatory duty. Even if there is such a duty, it is delegable.

In finding the existence of a “nondelegable, affirmative duty to protect the health and safety of prisoners” in Williams, this Court cited OCGA § 42-2-11 (c), which provides that the Board of Corrections “shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training, and hospitalization of all inmates coming under its custody.” Although that statute does not expressly say that the State’s duty to care for its prisoners is nondelegable, we reasoned that it was against the public interest to allow the State to delegate its duty when it had restrained prisoners’ liberty and rendered them unable to care for themselves.

Decided July 10, 2000

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Richard N. Sheinis, Jennifer D. Roorbach, Assistant Attorneys General, for appellant.

Freeman, Mathis & Gary, T. Bart Gary, Jefferson M. Allen, Hall, Booth, Smith & Slover, Timothy H. Bendin, Karl M. Braun, Jonathan Mariglianó, for appellees.

Here, however, there is no reason why the State cannot delegate its duty to care for veterans. Robinson points to OCGA § 38-4-52, which provides that “[t]he facilities of the Georgia State War Veterans’ Home shall be under the control and administration of the Veterans Service Board.” But nothing in that statute prohibits the Department from delegating the day-to-day operation of the nursing home for veterans. Moreover, OCGA § 38-4-53 allows the Department to expend its funds “in any manner whatsoever for the care and support of disabled war veterans.” This broad grant of authority includes the power to contract with other entities to operate nursing homes. And, unlike in Williams, it is not against the public interest to allow the Department to delegate its duties to veterans because the Department is not confining veterans against their will and prohibiting them from obtaining care elsewhere.

Accordingly, the Department does not have a nondelegable duty to care for its veterans, and the trial court erred in concluding otherwise. It follows that the Department properly contracted with an independent contractor to run the nursing home. Although the State has waived its immunity for the torts of its officers and employees, this waiver does not extend to independent contractors doing business with the State. Thus, the trial court erred in concluding that the Department could not avail itself of the independent contractor defense.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       Although both parties and the trial court refer to the defense as the “independent contractor defense,” the defense, in fact, is that the State is immune from suit under the doctrine of sovereign immunity.

       Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

       Id.

        City of Atlanta v. Gilmere, 252 Ga. 406, 409 (314 SE2d 204) (1984).

       OCGA § 50-21-20 et seq.

       OCGA § 50-21-23 (a).

       OCGA § 50-21-22 (7).

       On appeal from a grant of summary judgment, we view the facts in the light most favorable to the nonmovant. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Thus, for purposes of our analysis, we assume that both Pruitt Corporation and PrivaTrends are, in fact, independent contractors.

       OCGA § 51-2-5 (4).

       224 Ga. App. 571 (481 SE2d 272) (1997).

       (Punctuation omitted.) Id. at 574-575.

       Id. at 575.

       (Emphasis supplied.)

       OCGA §§ 50-21-22 (7); 50-21-23 (a).


author: Pope, Presiding Judge.

text:
    A00A0563.
    WANLESS et al. v. TATUM et al.
    (536 SE2d 308)
   Pope, Presiding Judge.

On November 26, 1996, Juanita Wanless died in a single car collision on Norris Lake Road in DeKalb County. Sonjet Wanless and John Wanless, individually and as administrators of her estate, brought suit against Ford Motor Company, Mazda Motor Corporation, Mazda Motors of America, Charles Tatum and Benjamin Glover. At the relevant time, Charles Tatum was employed as a senior engineer in the Field Section of the DeKalb County Public Works Roads & Drainage Department. Benjamin Glover, also a senior engineer in the department, served as the traffic cut-through coordinator of the DeKalb County speed hump program. The Wanlesses filed a motion for summary judgment on the issue of whether Tatum and Glover had negligently performed ministerial functions in responding to public complaints about Norris Lake Road. Tatum and Glover filed a cross-motion asserting that they were protected by official immunity. The trial court denied the Wanlesses’ motion and instead granted summary judgment to Tatum and Glover finding that they were entitled to immunity. The Wanlesses appeal.

To determine if the Wanlesses’ claims against Tatum and Glover are barred by official immunity, we must first determine whether the actions of Tatum and Glover were ministerial or discretionary:

A suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991); [cit.]

(Emphasis in original.) Lincoln County v. Edmond, 231 Ga. App. 871, 874 (2) (501 SE2d 38) (1998). A determination of whether a public official’s acts are ministerial or discretionary turns upon the facts of each case. Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982).

We have defined a ministerial act as “commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” (Citation omitted.) Phillips v. Walls, 242 Ga. App. 309, 311 (1) (529 SE2d 626) (2000). A discretionary act, on the other hand, is one that requires “the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Id. Accordingly, we must examine the specific allegations against each defendant.

Charles Tatum

As a senior engineer in the Field Section of DeKalb County’s Roads & Drainage Department, Tatum is responsible for determining whether traffic control devices should be installed upon a stretch of road. In that position he generally assigns lower level engineers to investigate complaints received by the department and supervises them “in their determination of what, if any, traffic devices are necessary for a stretch of road.” Tatum sometimes investigates complaints himself. Tatum testified that when a citizen calls to complain about safety or traffic conditions on a stretch of road, it is the policy of his department to write up a complaint and it will be investigated by someone in the department.

Carroll Burns submitted an affidavit stating that she spoke with Tatum before the Wanless accident and complained that “traffic on Norris Lake Road was too fast and that DeKalb County needed to install either speed humps, guardrails, rumble strips or reflectors in the curve” where the accident occurred. The Wanlesses assert that Tatum breached DeKalb County policy by failing to follow up on that complaint.

Tatum denies receiving a call from Burns about Norris Lake Road prior to Juanita Wanless’ accident in November 1996. He did receive a call from her in May 1997, however, asking that recreational signs be installed because the county was building a recreation area off Norris Lake Road. Tatum personally investigated Burns’ request. At that time, he noticed that existing chevron signs near the site of Wanless’ accident had been knocked down. Chevron signs are installed to indicate a curve in the road. Tatum submitted a work order, and the signs were replaced.

The Wanlesses contend that Tatum breached a ministerial duty by failing to assign someone to investigate Burns’ complaint prior to Wanless’ accident. They assert that if it had been investigated earlier, someone would have noticed the broken signs and had them replaced, possibly preventing the accident. Tatum denies receiving the call but argues that even if he did, there was no requirement that it be investigated within any particular time frame. Therefore, he argues that it was in his discretion when to investigate and no ministerial duty was breached.

The record in this case demonstrates that the DeKalb County Roads & Drainage Department had an established policy regarding the handling of citizen complaints. If a citizen called in to make a complaint, the DeKalb County employee who took the call was required to write it down and it was forwarded to the appropriate section for investigation. If the complaint was about safety or traffic conditions on a particular stretch of road, according to Tatum’s testimony, it would be investigated by someone in his section, the Field Section.

We find that this policy established a ministerial duty on the department’s employees to record and investigate complaints: “While the act of establishing a policy in the first place is discretionary, the acts of following established policies of (writing up the complaint and investigating it) are ministerial.” Phillips v. Walls, 242 Ga. App. at 311(1). And the fact that an employee, such as Tatum, may have had discretion as to when to conduct an investigation does not change the ministerial nature of the task. “[T]he execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion.” Joyce v. Van Arsdale, 196 Ga. App. 95, 97 (395 SE2d 275) (1990). See also Lincoln County v. Edmond, 231 Ga. App. at 874 (2) (discretion in how a tree would be removed did not change the fact that the tree must be removed).

In this instance, a jury issue exists as to whether Tatum actually received a complaint from Burns prior to the Wanless accident. Burns states she talked to him before the accident, and he denies receiving a call until May 1997. And if he did receive the complaint, a separate jury issue exists as to whether Tatum properly followed up on the call. Burns states that she complained that the traffic was too fast and specifically mentioned that DeKalb County needed to install either speed humps, guardrails, rumble strips or reflectors in the curves where Wanless’ accident occurred. While the evidence shows that speed humps, guardrails and rumble strips were not within Tatum’s area of responsibility, his department is responsible for investigating complaints about traffic conditions and about signs or reflectors in curves. Therefore, a jury must decide whether Tatum properly followed department policy for investigating Burns’ complaint, including whether six months was a reasonable response time. In short, the jury must decide whether he negligently breached his ministerial duty to investigate. Accordingly, the trial court erred in granting Tatum’s motion for summary judgment on the ground of official immunity.

Benjamin Glover

In early 1995, Glover was a senior engineer and served as traffic cut-through coordinator for DeKalb County’s speed hump program. In that capacity, he received a call complaining of speeding and requesting speed humps on Norris Lake Road. In response to the complaint, Glover went out and drove the road. He determined that it was not eligible for speed humps under the DeKalb County program because it was a “collector” road. According to Glover, a collector road is one with the capacity to carry more cars than a residential street. He reported his findings back to the citizen but did not report back to his supervisors on his determination.

Decided July 10, 2000

Hertz & Link, Eric J. Hertz, Mark D. Link, Houston D. Smith III, for appellants.

Jonathan A. Weintraub, Joan E Roach, Hyen-Yeng Sung, Daniel S. Digby, for appellees.

The Wanlesses contend that Glover breached a ministerial duty by failing to provide a written report to his superiors. They base this argument on the deposition testimony of Carl Glover, Associate Director for the DeKalb County Roads & Drainage Department. Carl Glover testified regarding the procedures to be followed when a citizen complains about too many accidents occurring on a road. In that instance, the investigating employees are required to investigate and prepare a written report of their findings for their supervisors, even where they determine that no further action is required. The supervisors then review the report to determine if a further traffic study is required. But nothing in the record indicates that the same procedure applies to a request for speed humps. There is nothing to indicate that Benjamin Glover had the duty to prepare a written report of his conclusion that Norris Lake Road did not qualify for speed humps because it was a collector road. Accordingly, there is no evidence that he breached any duty at all, and the trial court properly granted him summary judgment.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Miller, J., concur.

       Although we find a jury issue exists as to whether any duty was breached, the panties do not address and we do not reach the issue of whether there is any evidence of the other elements of a negligence claim against Tatum.


text:
    A00A0575.
    LOMBARDO v. THE STATE.
    (537 SE2d 143)
   Ruffin, Judge.

Michael Anthony Lombardo appeals from an order of the trial court revoking his probation. For reasons discussed below, we agree that the trial court had no authority to revoke Lombardo’s probation because his probation sentence had not yet begun to run. However, it does not appear that Lombardo has fully served the prison sentence originally imposed. Accordingly, we reverse the probation revocation order and remand this case to the trial court for recalculation of the amount of credit Lombardo is entitled to on his original sentence.

The facts in this case are rather extraordinary. In January 1997, Lombardo pled guilty in Hall County to various offenses and was given sentences totaling three years of confinement (less approximately one year for credit for time served) followed by seven years of probation. Following his sentencing, however, Lombardo served less than a month in the Georgia prison system before being extradited to Pennsylvania on February 5,1997, to answer a charge of theft by taking a motor vehicle. Lombardo pled guilty to the Pennsylvania charge on April 18, 1997, and was sentenced to 18 months to serve. Shortly thereafter, however, he was released from custody in Pennsylvania to answer charges of making terroristic threats in New Jersey. In May 1997, a court in New Jersey for some reason allowed Lombardo to post bond, and he was apparently set free and given a court date of July 10, 1997. After he failed to appear for that court date, a bench warrant was issued for his arrest.

In July 1997, the Hall County Superior Court learned that Lombardo was not serving the sentence imposed in January. Rather than take action to have Lombardo apprehended as an escapee, however, the court for some reason entered an order stating that Lombardo’s “probation sentence in this case be considered as starting on the 5th day of February 1997.” Apparently, the court intended to eliminate the three-year prison sentence originally imposed in order to allow the probationary period to begin early, thus subjecting Lombardo to some form of supervision. On January 6,1998, the court issued another order stating that, because Lombardo could not be located or apprehended, his sentence was tolled until such time as he was incarcerated.

At some point, Lombardo was arrested and held in the Lumpkin County jail. On July 8, 1998, Lombardo signed a document in the Hall County case in which he waived his right to a probation revocation hearing and admitted that he had violated the conditions of his probation by failing to report after his release from confinement in New Jersey. The trial court then entered an order revoking Lombardo’s probation for a period equal to the time served in the Lumpkin County jail. Although Lombardo had not served the originally scheduled prison sentence and had disappeared after being sent to another jurisdiction for trial, the court then set him free, giving him 60 days to get his personal affairs in order, after which time he was to report to the Gainesville probation office for transfer to New Jersey. Lombardo agreed to these conditions and agreed to maintain contact with his probation officer during the 60-day period.

Lombardo was subsequently arrested in Union County for committing several offenses in August 1998, including driving with a suspended license, attempting to elude law enforcement officers, leaving the scene of an accident, reckless driving, having no proof of insurance, and obstruction of an officer. In November 1998, the State petitioned to revoke Lombardo’s probation in the Hall County case, alleging that he violated the terms of his probation by, among other things, committing the various offenses in Union County. At the revocation hearing, Lombardo admitted that he had pled guilty to these offenses. In an order dated December 16, 1998, the trial court found that Lombardo had violated his probation by committing subsequent “violent misdemeanors.” The court revoked Lombardo’s probation and ordered that he serve two years in confinement. Lombardo filed a motion for new trial on January 15,1999, and the trial court denied the motion on August 3,1999. We granted Lombardo’s application for discretionary appeal.

1. Under the original sentencing order, Lombardo’s probationary period was not to begin until January 1999, when his period of incarceration was to end. In its July 25, 1997 order, however, the trial court modified the sentence to provide that the probationary period started on February 5, 1997. Lombardo contends that this modification was invalid because the trial court had no authority to modify the sentence after the term of court in which it was entered. Thus, Lombardo argues that the trial court had no authority to revoke his probation, since the probationary period of his sentence had not yet begun to run.

Before considering whether the purported modification was valid, we must first determine whether a trial court has the power to revoke a defendant’s probation before the probationary period has begun. If it does, then the revocation order in this case would be valid even if the July 1997 modification was invalid and Lombardo’s probationary period had not yet started.

OCGA § 42-8-34 (g) (former Code Ann. § 27-2709) provides that

[t]he sentencing judge shall not lose jurisdiction over any person placed on probation during the term of his probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, to modify or change the probated sentence at any time during the period of time originally prescribed for the probated sentence to run

In several cases, we interpreted this statute to mean that a trial court could not revoke any probation sentence before the probationary period had begun to run. In Parrish v. Ault, however, the Supreme Court held that these cases did not consider the effect of Code Ann. § 27-2502 (the predecessor to OCGA § 17-10-1 (a)), which provided that

[t]he judge imposing said sentence is hereby granted power and authority to suspend or probate said sentence, under such rules and regulátions as he deems proper. Said judge shall also be empowered to revoke said suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court.

Construing this section in conjunction with Code Ann. § 27-2709 (now OCGA § 42-8-34 (g)), the court held that “a trial judge can revoke a probated sentence that is to begin at a future date.”

As the Supreme Court recently noted, “[t]he statutory language upon which Parrish relied remained unchanged until” 1992, when OCGA § 17-10-1 (a) was amended. Significantly, the 1992 amendments deleted that portion of OCGA § 17-10-1 (a) (1) relied upon in Parrish — i.e., the sentence authorizing the judge to revoke a probation for violation of rules and regulations prescribed by the court. Subsection (a) (1) was also amended to provide that the sentencing judge’s power to probate a sentence was “subject to the conditions set out in this subsection!, i.e., subsection (a)].” Subsection (a) (2) was redesignated as subsection (a) (5) (A) and was amended to state that, “[w]here a defendant has been sentenced to probation, the court shall retain jurisdiction throughout the period of the probated sentence as provided for in subsection (g) of Code Section 42-8-34.” A new subsection (a) (4) was added, stating that “[i]n cases of imprisonment followed by probation, the sentence shall specifically provide that the period of probation shall not begin until the defendant has completed service of the confinement portion of the sentence.”

Thus, as part of the 1992 amendments, the statutory language relied upon in Parrish to modify the limitations of OCGA § 42-8-34 (g) was removed. Moreover, the trial court’s jurisdiction over the probated portion of a sentence was expressly made subject to OCGA § 42-8-34 (g), which states that the court may modify or revoke a probation sentence “during the period of time originally prescribed for the probated sentence to run.” And the new statute clarified that the probationary period does not begin until completion of the confinement portion of the sentence. It thus seems clear that, following the 1992 amendments, the trial court no longer has the power to revoke a probation sentence that has not yet begun. Accordingly, the trial court’s order revoking Lombardo’s probation would be proper only if the July 1997 order modifying the sentence is valid.

It is well settled that, in the absence of statutory authority to the contrary, “a trial court is without jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered.” We applied this rule in Latham v. State to facts substantially similar to those in the present case. In Latham, a defendant was sentenced to seven years in prison followed by twenty-three years on probation. Because she was pregnant at the time, she did not immediately begin serving her prison sentence. After the term of court expired, but before she began serving her prison sentence, the defendant moved to eliminate the prison term from her sentence. We held that the trial court lacked authority to modify the sentence by eliminating the prison component. We noted that, although OCGA § 17-10-1 (a) (5) (A) gave the trial court jurisdiction over the probated portion of a sentence, “no similar language grants the trial court power to modify the term of incarceration.” In this case, the effect of the trial court’s July 1997 order was to eliminate the three-year prison sentence so as to allow the probationary portion to begin running early. As Lombardo correctly points out, the trial court was without authority to so modify the sentence.

Because the trial court lacked jurisdiction to modify Lombardo’s sentence after the term of court expired, the July 1997 order was void and of no effect, and the trial court’s order revoking Lombardo’s probation must be reversed. However, from the record before this Court, it does not appear that Lombardo has fully served the three-year prison sentence originally imposed. To the extent that any portion of that sentence remains unserved, Lombardo should of course be required to serve it, and his probationary period would begin running upon the completion of such service. On remand, therefore, the trial court should determine the amount of credit to which Lombardo is entitled for time served.

Decided July 10, 2000.

Fox, Chandler, Homans, Hicks & McKinnon, Graham McKinnon TV, for appellant.

Lydia J. Sartain, District Attorney, Deborah R. Mitchell, Assistant District Attorney, for appellee.

2. Due to our ruling above, it is unnecessary to consider Lombardo’s remaining enumerations.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Ellington, J., concur.

       We have previously held that, in certain circumstances, a motion for new trial may be an appropriate vehicle for challenging a probation revocation order. See Wells v. State, 236 Ga. App. 607-608 (512 SE2d 711) (1999). Because the motion for new trial was based partly on Lombardo’s claim that the trial court’s factual findings were not supported by the evidence introduced at the revocation hearing, the motion for new trial was an appropriate method of challenging the revocation order and thus extended the period for seeking discretionary review of such order.

       (Emphasis supplied.) The language of this section has changed slightly over the years but remains substantially the same. See Ga. L. 1958, pp. 15, 20, § 8; England v. Newton, 238 Ga. 534, 535 (233 SE2d 787) (1977).

       See Todd v. State, 108 Ga. App. 615, 616 (134 SE2d 56) (1963) and cases cited therein.

       237 Ga. 401, 402 (228 SE2d 808) (1976).

       (Emphasis supplied.)

       Id.

        Merneigh v. State, 271 Ga. 883, 884 (525 SE2d 362) (2000). See Ga. L. 1992, pp. 3221, 3222-3225, § 1. Merneigh did not expressly state whether the changes wrought by the 1992 amendments were sufficient to render Parrish no longer applicable but simply noted that in 1991, the trial court was “clearly authorized” to revoke a probated sentence that had not yet begun. Merneigh, supra at 884.

       OCGA § 17-10-1 (a) (1); Ga. L. 1992, pp. 3221, 3223, § 1.

       OCGA § 17-10-1 (a) (1); Ga. L. 1992, pp. 3221, 3223, § 1.

       (Emphasis supplied.) OCGA § 17-10-1 (a) (5) (A); Ga. L. 1992, pp. 3221, 3223, 3224-3225, § 1.

       OCGA § 17-10-1 (a) (4); Ga. L. 1992, pp. 3221, 3224, § 1.

       (Punctuation omitted.) Fox v. State, 241 Ga. App. 399 (527 SE2d 216) (1999).

       225 Ga. App. 147 (483 SE2d 322) (1997).

       Id. at 149.

       See Harrison v. State, 201 Ga. App. 577, 583 (5) (411 SE2d 738) (1991) (“A sentence or portion thereof that is unauthorized by law is a nullity and void.”); Dover v. State, 195 Ga. App. 507, 508 (393 SE2d 760) (1990) (physical precedent only) (sentence modified after expiration of term is void). Neither party discusses whether Lombardo, by acknowledging a previous violation of probation in July 1998, waived the right to challenge the validity of the 1997 modification order. However, the trial court’s lack of authority is an issue of subject matter jurisdiction, see Barber v. State, 240 Ga. App. 156, 157 (1) (b) (522 SE2d 528) (1999), and we are aware of no authority for the proposition that an order void for lack of subject matter jurisdiction may be rendered effective due to the actions of the parties. See Nicholson v. State, 261 Ga. 197, 199, n. 3 (403 SE2d 42) (1991) (“Parties may not give jurisdiction to a court by consent, express or implied,. . . [although] lack of jurisdiction of the person may be waived.”); Davis v. State, 197 Ga. App. 746, 747 (2) (399 SE2d 554) (1990) (right to attack judgment as a nullity for lack of subject matter jurisdiction “is not waived by the failure to attack it before”); Barber, supra (individual may attack void judgment “ ‘when it becomes material to the interest of the parties to consider it’ ”).


author: Ellington, Judge.

text:
    A00A0624.
    REMAX NORTH ATLANTA et al. v. CLARK.
    (537 SE2d 138)
   Ellington, Judge.

Regina Clark sued Rebecca and Dean C. Bryant and their real estate sales agents, ReMax North Atlanta, Inc. (“ReMax”) and Scheri Caldwell, for fraudulently misrepresenting the condition of and concealing material defects regarding the Cherokee County home she purchased in August 1994. The jury returned a verdict in Clark’s favor and awarded $40,000 in compensatory damages. Appellants ReMax and Caldwell contend the trial court erred in denying their motion for a directed verdict, their motion for new trial, or their motion for judgment notwithstanding the verdict because the evidence adduced against them was insufficient as a matter of law to establish the elements of fraud. We agree and reverse the judgment.

In reviewing a jury verdict after the denial of a motion for judgment n.o.v. or for new trial, we follow these well-established principles:

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.

(Citation and punctuation omitted.) Brown v. Mann, 237 Ga. App. 247-248 (1) (514 SE2d 922) (1999). Viewed in this light, the record reveals the following:

In late July 1994, Clark began looking for a home to buy. Because she had to vacate her old home within 30 days, she needed to find something quickly. Clark enlisted the aid of Denise McDonald, a real estate sales agent with ReMax Suburban Atlanta, Inc. McDonald told Clark about the Bryants’ home, which had just been listed with the Multiple Listing Service by Caldwell, a sales agent affiliated with ReMax North Atlanta. Caldwell had been retained by the Bryants on July 29, 1994, the same day the house was listed. Clark and her son immediately went to the house and knocked on the Bryants’ door. Mrs. Bryant admitted Clark into the house and allowed her to walk through it for about 15 minutes.

The next day, Clark returned to the house with her agent, McDonald. Clark testified that during this second visit, Caldwell was present and said the following to her: (1) the Bryants’ home was a “good buy” and was in “good condition”; (2) Mr. Bryant, who had added a room in the basement, was “real good at handy work and he did a lot of work for himself”; (3) Mr. Bryant “was good at fixing things”; and (4) Caldwell said she was “friends” with the Bryants and they were “really good people,” “nice people,” “honest,” and “she liked them.” Clark said she was not able to adequately inspect the house on this occasion because it was full of furniture and boxes and playing children.

On August 2, 1994, shortly after her second visit, Clark made an offer on the house, which was accepted on August 3, 1994. The contract set the closing for August 15, 1994. The real estate sales agreement contained a disclaimer in which the seller and buyer acknowledged they have not relied on the broker’s representations including, but not limited to, the structural condition of the home, the operating condition of the plumbing, and the resale value of the home.

After Clark made her offer, she received a copy of the Bryants’ disclosure statement, which the Bryants had filled out previously on July 29, 1994. There is no evidence from which the jury could infer that Caldwell counseled or assisted the Bryants in filling out the form. The form expressly states that it contains a disclosure of the “Seller’s knowledge of the condition of the property” and is not “a warranty or representation by the listing broker, the selling broker, or their affiliated licensees.” The Bryants disclosed no defects or problems with their home.

About a week after her second visit, Clark again walked through the house, this time accompanied by her parents. Caldwell was also present. Clark said it was difficult to assess the condition of the house because it was full of boxes and furniture and because the shades were drawn, making the home dark. She noticed the strong smell of air freshener. Clark also noted water damage on the ceiling next to the fireplace. Clark testified she was told, although not by whom, that the damage occurred when the Bryants put out a fire that started on their Christmas tree. Clark did not inspect the attic because Mrs. Bryant asked her not to since it was “a mess.” Finally, Clark noticed that the Bryants were in the process of painting the master bedroom, the hall, and the stairwell walls. Clark did not hire a professional to inspect the house before buying it, even though her agent wrote an inspection clause into the real estate sales agreement.

Within a few weeks after she bought the house, Clark discovered that the plumbing connection to her washing machine was inadequate. She also began to smell a foul odor coming from beneath the basement’s raised bathroom. And, when it rained, she found that the roof leaked. When she went into the attic, Clark saw that the wood was bowed and rotten and that water was flowing down the flashing the entire length of the house.

In September 1994, Clark hired a home inspector. The inspector testified that the house had the following problems: (1) an overflowing septic tank, (2) water damage and rotten wood in the ceiling and exterior siding of the house, (3) rotten lumber in the deck flooring, (4) water damage in the kitchen, and (5) inadequate plumbing in the laundry and bathrooms. The inspector opined that the ceiling had been leaking for a long time, well over a year, and that the residents would have known of it. He noted that the fresh paint in the house covered old water spots that were beginning to bleed through. And, several rotted deck boards had been turned over so that the rot was concealed. A home builder testified that the absence of gypsum sheathing throughout the house left it exposed to moisture damage. He believed the home was not sellable in its current condition and required between $13,000 and $15,000 in repairs. A former neighbor of the Bryants testified that the house had a history of water problems.

Caldwell testified that she did not know the Bryants before listing their home on July 29, 1994. Caldwell said she was in the home only three times. She testified that she was not trained to do home inspections, that she did not inspect the house, that she was unaware of the defects the Bryants concealed, and that she did not advise the Bryants to paint, use air fresheners, or conceal anything about the condition of the house.

The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages. Klusack v. Ward, 234 Ga. App. 178, 179 (1) (507 SE2d 1) (1998); OCGA § 51-6-2 (a). In this case, Clark contends that Caldwell knew about the defects in the Bryants’ house, that she concealed them, and that she made false representations about the condition of the home that induced her to buy it.

First, neither ReMax nor Caldwell made any written misrepresentations in the form disclosure statement Caldwell provided to Clark. The document plainly stated that the representations it contained were solely those of the seller. Simply relaying this information, without actual knowledge of the alleged falsity, is insufficient to form the basis for a claim of fraud. OCGA § 10-6A-5 (b). Second, Caldwell’s oral statements to Clark were not actionable misrepresentations because they were general statements of opinion, some of which did not even pertain to the condition of the house. Not every alleged misrepresentation can serve as the basis for a claim of fraud. Statements of opinion are not factual representations that are actionable as fraud. Buckner v. Mallett, 245 Ga. 245, 246 (1) (264 SE2d 182) (1980); R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966-967 (4) (214 SE2d 360) (1975); Wilkinson v. Walker, 143 Ga. App. 838-839 (1) (240 SE2d 210) (1977). General commendations about a property, that it is “in good condition” or “a good buy,” are considered “puffing” or mere statements of opinion. See Morris v. Budd, 226 Ga. App. 455, 456-457 (1) (486 SE2d 682) (1997). To the extent that Caldwell’s comments about Mr. Bryant being a good handyman can be construed to mean the home was well maintained, such statements are also a general expression of opinion. U-Haul &c. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983). Consequently, because there was no actionable misrepresentation, an action for fraud based upon a misrepresentation must fail. See id.

Also, Clark elected to affirm the real estate sales contract and sue for damages. In doing so, she is “bound by the contract’s terms and is subject to any defenses which may be based on the contract.” (Citation omitted.) Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (1) (448 SE2d 271) (1994). This contract contained both a merger clause and a disclaimer that specifically stated that the buyers did not rely on the broker’s representations pertaining to the structural condition of the property or the operating condition of certain enumerated systems, including the plumbing. Consequently, Clark is estopped from asserting reliance on alleged misrepresentations not contained within the contract. Id.; Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 118-119 (1) (517 SE2d 826) (1999).

Finally, Clark’s claim of fraud based upon an omission of a material fact must fail because there is no evidence that Caldwell had knowledge of the concealed defects. In all cases of fraud involving a concealment of a material fact, scienter, or knowledge of the alleged falsehood, is an essential element of the tort. OCGA § 51-6-2 (b); see, e.g., Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994). In fraudulent concealment actions “the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed.” (Citations, punctuation and emphasis omitted.) Webb v. Rushing, 194 Ga. App. 732, 733 (1) (391 SE2d 709) (1990). “There must be some evidence of the silent party’s actual knowledge that the defect exists at the time of the sale from which his moral guilt in concealing it can be inferred.” Id. However, because fraud is inherently subtle, slight circumstances may be sufficient to establish a proper case. OCGA § 23-2-57. As we have held:

Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.

Decided July 10, 2000.

Michael T. Thornton, for appellants.

Clifford H. Hardwick, for appellee.

Weissman, Nowack, Curry & Wilco, Seth G. Weissman, Vicki V. Mott, amici curiae.

(Citation and punctuation omitted.) Brown v. Mann, 237 Ga. App. at 249 (1) (a).

In this case, proof of Caldwell’s knowledge rests upon an assumption that because Caldwell said she was “friends” with the Bryants and because she was their listing agent, she must have known of the defects. Assuming that Caldwell was a friend of the Bryants, it does not logically follow that she spent time in their home and thus acquired actual knowledge of the defects. Also, there is no evidence that Caldwell, as the listing agent, spent any more time in the house than Clark or that she necessarily would have discovered the defects during those visits. Further, there is no evidence that Caldwell instructed the Bryants to paint the house or to use air fresheners to conceal the home’s defects.

To authorize a verdict, circumstantial evidence must not only support the conclusion for which it is offered, but also render all inconsistent conclusions less probable. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-781 (257 SE2d 186) (1979). Inferences must be based on probabilities rather than mere possibilities. Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331) (1986). And, although “fraud may be proved by slight circumstances, it must amount to more than mere speculation.” Clay v. Clay, 269 Ga. 527 (501 SE2d 208) (1998). In this case, there is no evidence from which the jury could reasonably infer that Caldwell knew about the defects in the Bryants’ home. In such a plain and indisputable case, the court should have directed a verdict for ReMax and Caldwell. Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538, 540 (1) (458 SE2d 481) (1995).

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       The jury awarded $40,000 in compensatory damages against the defendants jointly and severally. The final judgment was reduced by $7,500 to reflect payments to Clark from third parties. The jury also awarded $60,000 in attorney fees and $16,500 in punitive damages against the Bryants.


text:
    A97A0368.
    OGLETREE et al. v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
    (535 SE2d 545)
   Ellington, Judge.

This is the sixth appearance of this case before us and the second time our Supreme Court has remanded it here. In its most recent opinion, the Supreme Court succinctly summarized the factual highlights and procedural history of this case:

The owner of a fertilizer spreader truck backed it over Mrs. Jack Ogletree’s husband, causing his death. Mrs. Ogletree brought this wrongful death action, alleging that Navistar International Transportation Corporation (Navistar), as manufacturer of the truck’s cab and chassis, had negligently breached a duty to install an audible back-up alarm on the vehicle. At trial, the jury returned a verdict in favor of Mrs. Ogletree, but awarded damages for funeral and medical expenses only. Mrs. Ogletree made a motion for new trial on the issue of damages, and Navistar moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied both motions for new trial, but granted Navistar’s motion for judgment n.o.v. The case has a long appellate history: Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989) (Ogletree I); Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (405 SE2d 884) (1991) (Ogletree II); Ogletree v. Navistar Intl. Transp. Corp., 221 Ga. App. 363 (471 SE2d 287) (1996) (Ogletree III); Ogletree v. Navistar Intl. Transp. Corp., 227 Ga. App. 11 (488 SE2d 97) (1997) (Ogletree IV); Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443 (500 SE2d 570) (1998) (Ogletree V); Ogletree v. Navistar Intl. Transp. Corp., 236 Ga. App. 89 (511 SE2d 204) (1999) (Ogletree VI). In Ogletree IV, the Court of Appeals applied the “open and obvious danger” rule and affirmed the trial court’s grant of Navistar’s motion for judgment n.o.v. On certiorari in Ogletree V, this Court held that the open and obvious danger rule was no longer viable in design defect cases, in light of our adoption of the risk-utility analysis in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994). On remand, the Court of Appeals again affirmed the judgment n.o.v. in favor of Navistar, on the grounds that Navistar was not negligent in failing to install a back-up alarm and that the risk of the cab and chassis without the alarm did not outweigh the usefulness of the product in that unequipped condition. Ogletree VI, supra at 94 (2). We granted certiorari to consider the opinion in Ogletree VI. Because there was some evidence that the risk outweighed the utility of the cab and chassis without the alarm, the issue of negligent design cannot be decided as a matter of law and, therefore, we reverse the judgment of the Court of Appeals.

Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644-645 (522 SE2d 647) (1999).

1. Since our Supreme Court has resolved the issue of whether the trial court erred in granting Navistar’s motion for judgment n.o.v. on the issue of negligent design, we must address whether the trial court’s judgment is sustainable on any other basis. As we stated before,

the j.n.o.v. motion set forth three separate and independent grounds: (1) the law of the case rule no longer applied and thus the Weatherby [v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64) (1990)] ruling controlled; (2) there was no evidence that Navistar was negligent in its design and manufacture of the cab and chassis; and (3) any possible defect in the design was not a proximate cause of the damages sustained.

(Punctuation omitted.) Ogletree VI, 236 Ga. App. at 91 (1). We now turn to the third basis for judgment n.o.v. argued by Navistar: Whether under the circumstances of this case the plaintiffs presented evidence from which the jury could infer that Navistar’s failure to install an audible back-up alarm on Campbell’s truck caused Ogletree’s death.

When considering whether the trial court erred in granting Navistar’s motion for judgment n.o.v.,

we review and resolve the evidence and any doubts or ambiguities in favor of the verdict. . . . [judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a “one-way” verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.

(Citation and punctuation omitted.) Jakobsen v. Colonial Pipeline Co., 237 Ga. App. 441, 442 (1) (514 SE2d 851) (1999).

As a general rule, issues of causation are for the jury to resolve and should not be determined by a trial court as a matter of law except in plain and undisputed cases. Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 124-125 (460 SE2d 824) (1995). When reviewing whether the trial court erred in granting a motion for judgment n.o.v. on the issue of causation, we must be guided by these principles: “Negligence is not to be presumed, but is a matter for affirmative proof.” (Punctuation omitted.) Cagle v. Ameagle Contractors, 209 Ga. App. 712 (434 SE2d 546) (1993). “To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of [the] injury.” Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990); Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981). With respect to factual causation (often referred to as the causal “link” or “connection” between an act or omission and an event), we have held that “ ‘[t]he defendant’s conduct is not a cause of the event, if the event would have occurred without it.’ Prosser, Law of Torts (4th ed. 1971), 239.” Gen. Motors Corp. v. Davis, 141 Ga. App. 495, 496 (1) (233 SE2d 825) (1977). Although we view the evidence and any inferences which logically flow from the evidence in the light most favorable to Ogletree on the issue of causation, a reasonable inference sufficient to create a triable issue of fact cannot be based on mere possibility, conjecture, or speculation. Pafford v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Greene v. Jenkins, 224 Ga. App. 640, 644 (2) (481 SE2d 617) (1997). Consequently,

[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. . . . [W]hen a jury renders a verdict that is not supported by the evidence, but is based solely on conjecture, it becomes the duty of the court to issue a judgment n.o.v.

(Citation omitted.) Jakobsen v. Colonial Pipeline Co., 237 Ga. App. at 444-445 (1).

Viewed in the light most favorable to Ogletree, the record reveals the following evidence on the issue of causation: Richard Ogletree died as a result of injuries he sustained when his friend Frank Campbell accidentally backed his fertilizer spreader truck into him, crushing him between the truck and a dry fertilizer storage bin called a “Killebrew.” The evidence is disputed regarding whether Ogletree knew Campbell was backing up and whether, under the circumstances, he would have heard a back-up alarm had one been installed and operational. Consequently, we cannot say that the presence of a functioning back-up alarm, under these circumstances, would not, as a matter of law, have prevented the accident. The trial court’s grant of judgment n.o.v. was nonetheless correct, however, if the undisputed evidence established that even if Navistar had installed the back-up alarm, the alarm, through no fault of Navistar’s, would not have been present and operational on the date of the accident. See Gen. Motors Corp. v. Davis, 141 Ga. App. at 496 (1).

The following additional evidence is relevant to this inquiry: The truck involved in the accident was a 1978 Navistar medium-duty Loadstar 1700 incomplete cab and chassis with an 18-foot wheelbase and extra-long rear frame rail extensions. When the truck was manufactured, Navistar, like every other manufacturer of similar medium-duty trucks, offered a back-up alarm as a factory-installed option. The evidence was undisputed that Navistar was not required by any federal, state, or local law or industry standard to install as standard equipment alarms on the incomplete truck cab and chassis involved in this accident. If a back-up alarm had been installed, it is undisputed that Navistar would have installed it on the rear cross-member of the frame rail and wired it into the back-up lamp circuitry at the back end of the vehicle.

Penske Leasing bought the truck from Navistar in 1978 as part of a fleet of 11 identical cabs and chassis with the intention of fitting it with a 22-foot-long moving van body. Penske did not request the optional back-up alarm. There is no evidence that Penske was required by any local, state, or federal law or industry standard to operate the truck with an audible back-up alarm or to maintain such a device if it had been installed by Navistar. Penske modified the incomplete chassis, fitted it with a van body, used it for four years as a moving van, and put about 67,000 miles on it. The plaintiffs presented no evidence from Penske regarding its use and maintenance of the truck. Penske eventually sold the truck to McDonald Chevrolet, a retail car and truck dealership in Cornelia. The dealer removed the van body from the cab and chassis prior to reselling it. In August 1982, Campbell bought the used cab and chassis from the dealership.

Campbell took the cab and chassis to Bagwell Brothers in Royston to be modified to accommodate a fertilizer spreader body. Although it was foreseeable that Navistar’s trucks would be modified by their immediate purchasers to accommodate a variety of uses, it was undisputed that Campbell’s modifications were atypical. Navistar’s Products Integrity Group Manager testified that Bagwell Brothers significantly modified the chassis and “drastically altered” the truck’s wheelbase. Almost ten feet of frame rail up to and including where the rear axle was mounted was removed and the wheelbase was shortened by over five feet, a modification described as “extreme” and ‘Very unusual.” Typically, someone wishing to use a Navistar cab and chassis for a fertilizer spreader would purchase one with a short wheelbase and short frame rails. Campbell’s modifications resulted in the rear cross-members of the frame rail being completely cut off. Campbell had to replace the drive shaft and move the muffler and fuel tanks to accommodate the fact that the fertilizer spreader truck was agricultural equipment customarily driven in crop fields. After the chassis was modified, Campbell took it to Newton Crouch Company in Griffin, where the fertilizer spreader body Campbell had bought in 1977 was installed and “refabbed.” The truck’s rear signal lamps were removed, rewired, and reconnected at the top of the fertilizer spreader body; the wiring was not Navistar’s original wiring; and the rear back-up lamps were not moved and were left disconnected.

Ogletree’s and Navistar’s experts agree that the modifications Campbell did would have resulted in the disconnection and removal of the back-up alarm. Moreover, Ogletree’s expert admitted there exists generally a potential that a back-up alarm would be removed and discarded. Although Ogletree’s expert opined that the alarm, had it been installed, would have been reconnected, he cited no factual basis — either from witness testimony, his personal experience, or any empirical study — in support of that opinion. Instead, he suggested that if Navistar had put warnings on the alarm instructing all purchasers and subsequent users of the truck to maintain, repair, or reconnect the alarm if necessary, it “may have been reused” by someone. Navistar, on the other hand, presented substantial evidence demonstrating that Campbell would not have reinstalled the alarm after Bagwell Brothers removed it.

Indeed, every lay and expert witness who testified on the subject admitted that he had never seen a fertilizer spreader truck with a back-up alarm. No federal, state, or local law or industry standard requires that agricultural equipment, including a fertilizer spreader truck, be operated with an audible back-up alarm. Fertilizer spreader trucks are only infrequently operated in reverse because the fertilizer spreader operates only when the truck is going forward. Fertilizer spreader trucks are rarely operated on the street because the Killebrews are usually brought to the farmers’ fields. Very few people work around fertilizer spreaders. Typically, the only person near a fertilizer spreader truck while it is being used in the field is the driver.

When Newton Crouch rewired Campbell’s signal lamps at the top of the fertilizer spreader body, they did not move and reconnect the back-up lamps, the circuitry through which the alarm would have operated. Campbell has never requested that a manufacturer install a back-up alarm on any of his farm equipment. Campbell has never added a back-up alarm to his existing equipment, even though alarms are relatively inexpensive, easy to obtain, and simple to install. When Campbell bought another truck in 1992 to be used as a fertilizer spreader, he did not equip it with a back-up alarm.

As we stated above, the plaintiffs had the burden of proving the causal connection between Navistar’s alleged design defect and Ogle-tree’s injury. Plaintiffs’ expert’s opinion that Ogletree’s injury was attributable to Navistar’s alleged design defect is specifically premised on an assumption that the alarm would have survived Campbell’s modifications. Therefore, it was incumbent upon the plaintiffs to present some competent evidence from which the jury could reasonably infer that the alarm would have been retained and reinstalled by Campbell. Ogletree’s expert’s opinion testimony on that point, however, was founded solely upon the unsupported premise that a factory-installed alarm would tend to remain with the truck, or, in other words, that people generally tend to keep what they have been given. Such opinion testimony, at best, only gives rise to an inference that someone might have kept the alarm. However, because that inference is founded on speculation, it is without evidentiary value. See Grant v. Ga. Pacific Corp., 239 Ga. App. 748, 751 (2) (a) (521 SE2d 868) (1999). As we have held, “[n]o inference of fact may be drawn from a premise which is wholly uncertain.” (Citation and punctuation omitted.) Gwinnett Property v. G+H Montage GmbH, 215 Ga. App. 889, 892 (1) (453 SE2d 52) (1994). And, inferences must be based on probabilities rather than mere possibilities. Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331) (1986). Moreover, when a party relies on inferences to prove a point, not only must those inferences be factually based, they must tend in some proximate degree to establish the conclusion sought and render less probable all inconsistent conclusions. Page v. Atlanta Center Ltd., 219 Ga. App. 422, 424 (465 SE2d 456) (1995); see also Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-781 (257 SE2d 186) (1979). In this case, the inference that someone might have kept a factory-installed back-up alarm does not tend to prove that Campbell would have kept it under these circumstances, nor does it render less probable the inconsistent inference that Campbell would have discarded the alarm because he did not want it and was not required to keep it. Thus, the jury could not find that but for Navistar’s failure to install an alarm, Ogletree’s death would have been prevented because there was no competent evidence supporting a reasonable inference that the alarm would have been present and operational on the day of the accident.

Moreover, because the unrebutted evidence establishes that Campbell’s unforeseeable modifications would have resulted in Navistar’s alarm being removed, and there is no competent evidence establishing that an alarm would have been reconnected, Campbell’s actions would constitute an intervening and efficient cause explaining the absence of a back-up alarm. As we have held,

Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person, the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.

(Citation and punctuation omitted.) Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 87 (2) (479 SE2d 784) (1996). Under these circumstances, Navistar’s failure to install an alarm as standard equipment in all its trucks was too remote a factor to constitute a proximate or legal cause of Ogletree’s death. See, e.g., Talley v. City Tank Corp., 158 Ga. App. at 134-135 (3) (“[I]f the design of that product has been independently altered, eliminated and replaced by a third party after the sale and injuries then result, those injuries cannot be traced to or be the proximate result of the manufacturer’s original design which did not exist at the time of injury.”); McNeely v. Harrison, 138 Ga. App. 310, 313 (226 SE2d 112) (1976) (“The circumvention of the safety device, designed to prevent the type of injury which occurred, constitutes an unforeseeable intervening act sufficient to relieve [appellees] of negligence liability”).

For these reasons, the evidence adduced was insufficient as a matter of law to establish the requisite factual and proximate causal connection between Navistar’s failure to install a backrup alarm and the accident that resulted in Ogletree’s death. Consequently, we conclude that the trial court properly granted Navistar’s motion for judgment n.o.v.

Decided June 9, 2000

Reconsideration denied July 11, 2000

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Tara R. Simkins, for appellee.

2. Our holding in Division 1 renders all remaining enumerations of error moot.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.