text:
    A97A0557.
    PURVIS v. BALLANTINE et al.
    (487 SE2d 14)
   Blackburn, Judge.

Carol Purvis sued John Ballantine, Jim Klein, Vernon Payne, and Melanie James for defamation. Purvis, the former superintendent of the Clarke County school system, claims that the defendants made defamatory statements regarding his performance and administration as superintendent. The trial court granted the defendants’ motion for summary judgment, and we affirm.

1. Purvis contends the grant of the motion for summary judgment is null and void for two reasons. First, he contends the court’s ruling is void because it resulted from an abuse of discretion — the denial of his request for a continuance. Second, he contends the court was without jurisdiction to grant summary judgment, due to his voluntary dismissal of the action.

(a) The grant or denial of a request for continuance lies within the discretion of the trial court, see OCGA § 9-10-167 (a), and will not be disturbed on appeal absent an abuse of discretion. See Americani v. Sidky, 199 Ga. App. 823, 824 (2) (406 SE2d 259) (1991). The record indicates that due to the voluntary recusal of a Clarke County judge from the case, all motions were being heard in Gwinnett County. Just prior to the hearing on the motion for summary judgment, Purvis’ counsel called the judge’s office in Gwinnett County and requested a continuance, as he had apparently gone to the wrong courthouse. This request was denied, and Purvis contends the denial amounted to an abuse of discretion.

Assuming for purposes of argument that the continuance request met all the statutory requirements, see OCGA §§ 9-10-155 and 9-10-166, we find no abuse of discretion. The rule nisi setting the hearing clearly specified the location of the hearing as Gwinnett County, and both parties were notified of this fact. The judge also noted on the record at the summary judgment hearing that the court and all counsel had determined on a previous occasion that all motions would be heard in Gwinnett County.

The court further noted that upon the denial of his request for continuance, Purvis’ counsel stated that he would stand on his briefs. The court stated that because it had read and thoroughly considered Purvis’ briefs, he had been heard. The defendants presented no oral argument at the hearing, and the court based its decision upon the briefs. On these facts, we cannot say that the trial court abused its discretion in denying Purvis’ request for a continuance.

(b) Following the denial of his request for a continuance and the court’s oral pronouncement of summary judgment, but before the summary judgment was reduced to writing and filed with the clerk, Purvis voluntarily dismissed his action. For this reason, he claims the court was without jurisdiction to grant the defendants’ motion for summary judgment. However, “[a] plaintiff cannot dismiss an action between the time the court announces its judgment and the time the judgment is actually written and entered.” Lotman v. Adamson Contracting, 219 Ga. App. 898, 899 (467 SE2d 224) (1996). Since the court’s announcement of summary judgment preceded Purvis’ dismissal, the dismissal was null and void. Purvis’ argument that the court lacked jurisdiction to enter summary judgment is accordingly without merit.

Purvis’ reliance upon Jackson v. Bekele, 152 Ga. App. 417 (263 SE2d 225) (1979), is misplaced. Summary judgment was improperly granted in Jackson because it was entered at a hearing on a motion to compel in the absence of the nonmoving party, and without notice to that party that summary judgment would be heard. Id. at 421 (2). Inasmuch as Purvis had notice of the summary judgment hearing and an opportunity to be heard, see OCGA § 9-11-56 (c), Jackson provides no support for his position.

2. Purvis contends the trial court erred in granting two motions for protective orders made by nonparties. The record indicates that hearings were held on these matters. “However, because there is no transcript of the hearing[s] on the motion[s] for . . . protective order[s], this enumeration presents nothing for review.” Turner Advertising Co. v. Garcia, 251 Ga. 46, 49 (5) (302 SE2d 547) (1983).

3. Purvis alleges the trial court erred in granting the defendants’ motion for summary judgment on the merits.

The facts show that during July 1994, after Purvis had retired from the superintendency in 1991, an audit was conducted of the school system’s finances. The audit raised questions as to whether or not the school system had made all of its required payments to the Teacher’s Retirement System during Purvis’ administration. This issue was discussed at a Board of Education meeting on July 14, 1994. At the meeting Ballantine, Klein, and Payne all made statements which were reported in a newspaper article published on July 19, 1994. At the time, Ballantine was superintendent, and Klein and Payne were Board of Education members. Thereafter, Ballantine and James, who was the school district’s director of accounting, were interviewed for a July 24, 1994 newspaper article on this same issue.

Purvis’ defamation claims are twofold. First, he contends the statements made at the Board of Education meeting by Ballantine, Klein, and Payne and reported in the July 19 newspaper article were defamatory. Second, he argues that Ballantine’s and James’ statements contained in the July 24 newspaper article further defamed him. According to Purvis, all the statements were defamatory because they implied that his superintendency was so poor that his administration failed to make a required payment to the Teacher’s Retirement System, when in fact, all payments had been made. The defendants deny that their statements were defamatory.

In determining whether or not summary judgment was appropriately granted in this defamation case, we are bound by the United States Supreme Court’s decisions in this area. Among those cases are New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964) and Gertz v. Robert Welch, Inc., 418 U. S. 323 (94 SC 2997, 41 LE2d 789) (1974). Pursuant to the holdings oí Sullivan and Gertz, if Purvis was either a public official or a public figure, in order to prevail on his claim for defamation, he must show that the alleged defamatory statements were made with “actual malice — that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” (Citation and punctuation omitted.) Byers v. Southeastern Newspaper Corp., 161 Ga. App. 717, 718-719 (288 SE2d 698) (1982). Purvis argues that he was not a public official or figure, and therefore he need not show actual malice.

Whether an individual is a public official or figure is a mixed question of law and fact for the court’s determination. Brewer v. Rogers, 211 Ga. App. 343, 347 (439 SE2d 77) (1993). This determination is made on a case-by-case basis. Id. As to “public officials,” “[i]t is clear . . . that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U. S. 75, 85 (86 SC 669, 15 LE2d 597) (1966).

In this case, the evidence shows that Purvis was superintendent of the Clarke County school system from July 1982 through December 1991. As such, he was the school system’s chief executive and operating officer, and he kept the public informed about the operation of the school system. He was interviewed by the newspapers on nearly a weekly basis regarding the school system, and twice weekly he broadcast a radio program to the public about the status of the school system. He routinely made personnel, administrative, and budgetary decisions affecting the school system, which consisted of over 10,000 students, and dealt with all major problems in every aspect of the school district’s operation.

On these facts, we hold that Purvis, as superintendent of the Clarke County school system, was a public official. Relying upon the reasoning of New York Times Co. v. Sullivan, supra, in Ellerbee v. Mills, 262 Ga. 516, 517 (422 SE2d 539) (1992), it was noted that public officials are generally involved in the conduct of government, that they are policymakers, and that they have greater access to the media than do private individuals. As superintendent, Purvis met all of these criteria. He was an integral policymaker for the entire Clarke County school system, was involved in the conduct of that system, and as such, had greater access to the media than would a private individual. Under Baer, supra, Purvis had “substantial responsibility for or control over the conduct” of the Clarke County school system and its 10,000 students. Baer, supra at 85.

Our analysis is not changed by the fact that the allegedly defamatory statements were uttered three years after Purvis retired from the superintendency. In Baer, supra, the United States Supreme Court noted that the fact that the supervisor of a public recreation area was no longer employed in that capacity when he was allegedly defamed was not of decisional significance. Baer, supra at 87, n. 14. The Court stated, “[t]o be sure, there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times [v. Sullivan] rule. But here the management of the [recreation] [a]rea was still a matter of lively public interest. . . and public interest in the way in which the prior administration had done its task continued strong. The comment, if it referred to respondent, referred to his performance of duty as a county employee.” Id.

The same elements are present here. Because the school system was $4.4 million in debt at the end of 1991 when Purvis retired, its budget remained “a matter of lively public interest” even after his departure from the superintendency. Under the reasoning of Baer, at the time the statements concerning the alleged missed payment were made in 1994, “public interest in the way in which the prior administration had done its task continued strong.” Id. Additionally, the allegedly defamatory statements, to the extent they referred to Purvis, were related solely to his performance as superintendent of schools.

It is therefore incumbent upon Purvis to show that any of the defendants’ statements, whether made at the school board meeting or published in subsequent newspaper articles, were made with actual malice. In support of their motion for summary judgment, the defendants each presented affidavits which said that the statements made by them were made in good faith, and with a good faith belief that the statements were true and correct when spoken, and that none of them had ever made a false statement or charge concerning Purvis with actual malice or reckless disregard for the truth of such statement.

This evidence shifted the burden to Purvis to point to evidence of actual malice. “On summary judgment, a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. The nonmoving party cannot then rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This rule has equal force in defamation cases.” Stange v. Cox Enterprises, 211 Ga. App. 731, 732 (1) (440 SE2d 503) (1994).

Decided April 23, 1997.

Before Judge Fuller from Gwinnett County.

Lawrence S. McLarty, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Charles G. Ragsdale, for appellees.

Ellen L. Whitaker, amicus curiae.

Purvis has failed to point to any evidence of actual malice giving rise to a triable issue. “The public official in a defamation action must show actual malice with ‘convincing clarity.’ New York Times Co. v. Sullivan, supra. . . . The requirement of clear and convincing evidence of actual malice is equally applicable in ruling upon a motion for summary judgment.” Stange, supra at 733 (2). Contrary to Purvis’ assertion, the defendants’ depositions contain no evidence of actual malice. Nor is their refusal to retract their statements clear and convincing evidence that the statements themselves were made with knowledge of their falsity or reckless disregard for their falsity. In light of this evidence, summary judgment for the defendants was proper.

4. Due to our holding in Division 3, we need not address the parties’ arguments concerning privilege and the statute of limitation. See OCGA §§ 51-5-7 (9); 9-3-33.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The court orally announced its ruling on the summary judgment motion no later than 1:30 p.m. on September 5,1996, though this judgment was not reduced to writing until later. Purvis’ dismissal was filed at 2:27 p.m. on September 5.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0971.
    HUNTER v. CARTER et al.
    (485 SE2d 827)
   Eldridge, Judge.

■ Appellant Kendall Hunter challenges the trial court’s order granting visitation rights with her daughter, D. H., to the appellees, the child’s paternal grandparents. The appellees are the parents of appellant’s former husband and the child’s biological father. The biological father’s parental rights to the child had been surrendered previously. Appellant remarried and her new husband sought to adopt the child, D. H.; it was during those proceedings that appellees intervened to seek visitation rights with the child. After conducting a hearing on the visitation petition on September 3, 1996, the trial court awarded twice-monthly visitation privileges to the grandparents. Because we find that the evidence does not support the trial court’s conclusions of fact, we reverse.

1. In the first enumeration of error, appellant asserts that the trial court erred in finding that the child would be harmed if the court denied visitation rights to the appellees/grandparents. The standard for mandating visitation with grandparents in the absence of the parent’s consent is clearly outlined in OCGA § 19-7-3 (b); the court must find: (1) that the health or welfare of the child would be harmed unless such visitation is granted and (2) that such visitation is in the best interests of the child. See also Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995) (declaring a previous version of OCGA § 19-7-3 unconstitutional because it failed to require a showing of harm before authorizing state interference with parental control). Further, due process requires that evidence supporting mandated visitation rights must meet the clear and convincing standard of proof. Santosky v. Kramer, 455 U. S. 745, 769 (102 SC 1388, 71 LE2d 599) (1982).

There is extensive, compelling justification for requiring a judge to look so closely at the impact of forced visitation on a child and his immediate family. In Meyer v. Nebraska, 262 U. S. 390, 399 (43 SC 625, 67 LE 1042) (1923), the United States Supreme Court recognized that parents have a constitutionally protected right to raise their children without undue state interference. According to the Court, this “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, supra at 753; see also Brooks v. Parkerson, supra at 192 (parental rights are also derived from privacy rights inherent in the United States and Georgia Constitutions).

“The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances. . . . [S]tate interference with a parent’s right to raise children is justifiable only where the state- acts in its police power to protect the child’s health or welfare, and where parental decisions in the area would result in harm to the child.” (Citation and punctuation omitted; emphasis supplied.) Brooks v. Parkerson, supra at 192-193 (2) (a) and (b), and cases cited therein. “Allowing the government to force upon an unwilling family a third party, even when the third party happens to be a grandparent, is a significant intrusion into the integral family unit.” (Punctuation omitted.) Id. at 194, n. 6, quoting Herndon v. Tuhey, 857 SW2d 203 (Mo. 1993).

In the case sub judice, no evidence was presented to support the trial court’s finding that appellant’s child would be harmed if the grandparents were denied visitation rights. In fact, upon review of the record, the evidence clearly indicates that forcing the child to spend significant portions of every other weekend with her grandparents, over the objections of the child’s parents, would be detrimental and disruptive to the child and her parents.

The evidence establishes that no bond currently exists between appellees and D. H.; the grandparents have not seen the child since she was four years old, have not sent a birthday card or Christmas present in over two years, and have not provided any financial support since the child was an infant. As a result, the child, now six years old, knows the appellees only through photographs.

There is also extensive evidence in the record that the child’s mother, appellant, and the appellees have been estranged for at least two years and that their previous relationship was poor, at best. Appellant’s husband, the child’s prospective adoptive father, testified that the appellees had instructed the child not to call him “daddy,” but to call him by his first name. He also testified that the appellees had pressured him to keep the child’s surname as “Carter,” as opposed to changing it to “Hunter” following the upcoming adoption.

Further, both appellees admitted that they had called the sheriff’s department to report alleged misconduct by appellant, and admitted that they did not attempt to discuss their concerns regarding D. H. with appellant because “we didn’t have that kind of relationship.” Appellant also testified that appellee contacted the Georgia Department of Family & Children Services (“DFCS”) and requested that they investigate appellant; DFCS closed the case after finding no evidence of abuse or abandonment. Although reporting child abuse or neglect could be viewed as a natural, even admirable, response by concerned grandparents to legitimate concerns, there is no question that such allegations severely, perhaps irrevocably, damaged the relationship between the parties in the case sub judice. Under the circumstances, “the impact of a lawsuit to enforce [visitation] over the parents’ objection can only have a deleterious effect on the child,” thereby negating any potential positive impact resulting from visitation. Brooks v. Parkerson, supra at 194.

“It is irrelevant . . . that it might, in many instances[,] be “better’ or ‘desirable’ for a child to maintain contact with a grandparent.” Id. at 194. The trial court’s insistence that the “child is lucky to have them as grandparents” and that visitation would be “additive,” i.e., an additional benefit for the child, should not factor into the court’s consideration. Further, any detrimental impact to the grandparents through the loss of visitation opportunities with a grandchild, whether due to the death or divorce of a child’s parents, relocation of the family, or other unfortunate circumstances, is irrelevant to the court’s determination of whether or not to grant visitation rights to the grandparents. This Court recognizes that grandparents who are denied access to grandchildren sometimes suffer greatly from the loss. However, the trial court is strictly limited to considering only the child’s well-being, i.e., whether the child would be harmed if visitation is denied and whether visitation serves the child’s best interests. Absent clear and convincing evidence that the child would experience actual physical, mental, or emotional harm if visitation was denied, the trial court cannot justify mandating grandparent visitation over the objections of the parents. Since no evidence was presented showing potential harm to the child at issue in the case sub judice, the trial court’s order granting visitation rights must be reversed.

Decided April 23, 1997.

Before Judge Brown.

Rodney E. Davis, Gregory W. Holt, for appellant.

Anita M. Denley, for appellees.

2. Accordingly, appellant’s second enumeration of error is moot.

Judgment reversed.

Birdsong, P. J., and Ruffin, J, concur.


text:
    A97A0989.
    TAYLOR v. THE STATE.
    (485 SE2d 830)
   Eldridge, Judge.

Appellant, David Glenn Taylor, appeals his conviction following a jury trial on June 11 through 13, 1996, on the offenses of aggravated assault (OCGA § 16-5-21 (a) (2)), terroristic threats (OCGA § 16-11-37 (a)), and pointing a pistol at another (OCGA § 16-11-102), asserting that the evidence was insufficient to support such convictions. We disagree and affirm the convictions.

Appellant and the victim lived together for approximately two and one-half years, from July 1993 until September 1995. On October 17, 1995, appellant entered the trailer he had previously shared with the victim to reclaim some possessions; the victim was not at home. When the victim returned at approximately 8:00 p.m. with her daughter and a friend, appellant ran to the car, “hollering and screaming” at the victim. According to the victim, he was “real mad . . . upset. . . furious.” He slammed the car door against the victim, pinning her between the door and the car. The victim became so frightened that she “froze.” Appellant then went back into the trailer, returned to the victim, slammed a clock radio against the top of the car, pulled his .357 pistol from its holster, and pointed the gun at the chest and neck of the victim. The victim testified that the appellant told her that “he should just go ahead and kill me ... he was going to kill me.” The victim’s friend was standing only a few feet away when the encounter occurred, and she corroborated this version of the events in her testimony during trial, as well as in a prior written statement.

Decided April 23, 1997.

Before Judge Kilpatrick.

The victim’s friend and daughter went into the trailer, and as the victim attempted to go in, the appellant grabbed her jacket and “dragged” her into the bedroom. He refused to let the victim leave the bedroom and repeatedly said “I’m gonna kill you, I’m gonna kill you.” Shortly thereafter, two police cars arrived, and the officers instructed appellant to surrender his keys to the trailer and to leave. One officer testified that the victim appeared to be “very afraid” of the appellant, that “she felt that she was in harm’s way at that time, but she was afraid to press charges” because “he might come back and hurt her.” Appellant was arrested while at work the next day.

In his testimony, appellant presented a very different scenario regarding the evening of October 17, 1995. He admitted being at the trailer and confronting the victim, but testified that he did not point the pistol at the victim; he asserted that he only touched the pistol in order to replace it in its holster after the gun inadvertently had been removed when it brushed against the car. Further, appellant presented the testimony of other witnesses, who testified regarding the victim’s general bad reputation and her alleged admissions that she lied about the circumstances leading to the charges.

The jury had the opportunity to hear the testimony of the appellant, victim, and their respective witnesses. They obviously did not believe the version of events propounded by the appellant.

It is well established that “[o]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). “Conflicts in the testimony of the witnesses ... is a matter of credibility for the jury to resolve. [Cits.]” (Punctuation omitted.) Jones v. State, 220 Ga. App. 161, 162 (469 SE2d 300) (1996). The evidence in the case sub judice was more than sufficient for a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses of making terroristic threats, aggravated assault, and pointing a pistol at another. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Brian J Amero, Assistant District Attorney, for appellee.

       “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon. . . .”

       “A person commits the offense of a terroristic threat when he threatens to commit any crime of violence . . . with the purpose of terrorizing another.”

       “A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.”

       The trial court merged Count 3 into Count 1 for sentencing.


text:
    A97A1024.
    JACKSON v. THE STATE.
    (485 SE2d 832)
   Eldridge, Judge.

In December 1995, appellant, Russell Wayne Jackson, was charged with simple battery for allegedly spitting in his wife’s face during a domestic conflict. During the jury trial in October 1996, appellant’s counsel attempted to raise defenses that the alleged victim either failed to take prescribed medication for her manic depression and imagined the incident or that the victim was involved in a custody dispute with appellant and fabricated the alleged battery. When the trial court, in response to a motion in limine by the State, asked whether appellant’s counsel had evidence to support these assertions, she replied “I believe ... I can get [the victim] to admit to . . . what happens if she does not take the medication.” In addition, appellant’s counsel reported that one other witness would testify regarding the victim’s “erratic behavior” and about admissions allegedly made by the victim; she also stated that she could subpoena “several doctors” to testify regarding the victim’s mental illness, if necessary. Although the trial court reserved ruling on the motion in limine, he warned appellant’s counsel that he did not believe the assertions regarding the victim’s mental illness were relevant “because we don’t have anybody to explain it” to the jury.

However, during trial, appellant’s counsel proceeded to make repeated references to the victim’s mental illness, asserting that the victim failed to take her medication as prescribed and that, when not taking the medication, the victim became dysfunctional, incoherent, delusional, and violent. Appellant’s counsel also questioned the victim and another witness regarding alleged specific incidents of perjury, illicit drug use, and bizarre behavior, including an allegation that the victim communicated with her deceased mother.

The State repeatedly objected to these lines of questioning, asserting that appellant’s counsel had no evidence that the victim was not taking her medication at the time of the incident at issue in the trial, so that questioning the victim about the effects of failing to take medication was unfairly prejudicial and irrelevant. The State also asserted that there was no evidence of any of the alleged delusions or attacks being asserted by appellant, since the victim denied such allegations and appellant’s counsel had no eyewitnesses to testify regarding the alleged incidents. Such objections were sustained by the trial court, who repeatedly warned appellant’s counsel to avoid such arguments absent evidentiary support. The trial court also warned appellant’s counsel during opening statements that a mistrial might,become necessary if “she can’t sustain what she says she is going to do.”

• The trial court further instructed appellant’s counsel that she would need to secure an expert witness to testify regarding the effects of the failure to take lithium, the prescribed medication at issue. Appellant’s counsel told the court that she “was working on” getting a psychologist into court to testify the next morning. However, since appellant’s counsel had stated prior to trial that she had only two witnesses, neither being a psychologist, there was no indication that the anticipated “expert” witness had ever examined the victim’s medical file, had ever questioned or examined the victim, or had the necessary credentials to be considered an expert for the purpose of testifying.

After repeatedly sustaining objections by the State to questions by appellant’s counsel regarding the victim’s alleged failure to take prescribed medication and alleged delusional and/or violent episodes, for which there was no evidentiary foundation, the trial court sua sponte declared a mistrial based on prejudicial misconduct by appellant’s counsel. Appellant moved to bar the retrial based upon double jeopardy. The motion was denied, and appellant timely appealed. Held:

“The double-jeopardy clause of the Fifth Amendment, as applicable to the states through the due-process clause of the Fourteenth Amendment, does not bar retrial of a criminal defendant following declaration of a mistrial over his objection where there is ‘manifest necessity’ for declaration of the mistrial or the ‘ends of public justice’ would be defeated by allowing the trial to continue. Illinois v. Somerville, 410 U. S. [458 (93 SC 1066, 35 LE2d 425) (1973)].” Abdi v. State, 249 Ga. 827 (2), 828 (294 SE2d 506) (1982); United States v. Perez, 22 U. S. 579 (6 LE 165) (1824). In declaring a mistrial, the trial courts are to take “all the circumstances into consideration. . . . They are to exercise a sound discretion . . . and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; . . . [b]ut, after all, [the trial courts] have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id. at 580. “This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice. [Cit.]" Abdi v. State of Ga., 744 F2d 1500, 1503 (11th Cir. 1984).

The Perez test has been applied as “a standard of appellate review for testing the trial judge’s exercise of his discretion in declaring a mistrial without the defendant’s consent.” United States v. Jorn, 400 U. S. 470, 481 (91 SC 547, 27 LE2d 543) (1971); see also Arizona v. Washington, 434 U. S. 497, 511 (98 SC 824, 54 LE2d 717) (1978) (appellate courts must “accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected” by the improper comments). “This formulation abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated. . . . Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” (Citations and punctuation omitted.) Abdi v. State, supra at 828, citing Illinois v. Somerville, supra at 462. Therefore, “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments,” such when an impartial verdict cannot be reached. Wade v. Hunter, 336 U. S. 684, 689 (69 SC 834, 93 LE 974) (1949); see Illinois v. Somerville, supra at 470; Abdi v. State, supra at 828.

Further, in State v. Abdi, 162 Ga. App. 20 (288 SE2d 772) (1982), aff’d, Abdi v. State, supra, this Court “pointed out that mistrial does not bar retrial if the termination of the trial was not improper. . . . [S]ection (e) (2) (B) of OCGA § 16-1-8 declares that the termination of a trial is not improper if prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant. The State has just as much right to proceed to trial ‘without injustice’ as does the defendant. [State u] Abdi, [supra at 22], . . . Even if the trial court had erred in its decision to terminate the trial, . . . the defense injected the matter that resulted in the mistrial. . . . [Cits.] . . . The defendant does not have the right to force the State either to endure a prejudiced trial or forego prosecution entirely.” (Punctuation omitted.) McGarvey v. State, 186 Ga. App. 562, 563-564 (368 SE2d 127) (1988) (no bar to retrial following mistrial based upon the defendant’s counsel referring to the prosecutor’s political ambitions during opening statements); see also Abdi v. State, supra at 827 (double jeopardy does not bar retrial upon sua sponte declaration of mistrial based on defense violation of “rape shield” law).

Decided April 23, 1997

Before Judge Gober.

Strongwater & Cherniak, Leeza R. Cherniak, Suzanne M. White, for appellant.

In the case sub judice, appellant’s counsel repeatedly referred to incidents and allegations for which she clearly lacked evidentiary support or for which the possibility that evidence was forthcoming was speculative, at best. The trial court responded to these improper references by sustaining objections by the State; by giving curative instructions to the jury; by conducting side bars outside the presence of the jury; and by explaining to appellant’s counsel specifically what was lacking as a foundation for the testimony counsel was attempting to elicit from the State’s witness and how such foundation could be established. The trial court even allowed appellant’s counsel to question a defense witness in the middle of the State’s case-in-chief in an effort to establish a foundation for appellant’s cross-examination of the victim.

The trial court clearly gave appellant’s counsel a great deal of latitude in counsel’s attempt to present a defense, and in the process, the court exhausted the available options in dealing with the objectionable conduct of appellant’s counsel before determining that the jury had been prejudiced to the extent that they could no longer “separate fact from fiction,” and curative instructions would be futile. Cf. Stevens v. State, 215 Ga. App. 718, 719 (452 SE2d 176) (1994) (retrial barred because the single objectionable act by defendant’s counsel was not “flagrantly unfair,” and the trial court considered no other alternatives to mistrial); Dotson v. State, 213 Ga. App. 7, 8 (443 SE2d 650) (1994) (retrial barred because no alternatives to mistrial were considered after a single inadvertent admission was made by the defendant); Foody v. State, 205 Ga. App. 666, 667 (423 SE2d 423) (1992) (retrial barred because the trial court failed to consider alternatives to the immediate incarceration of the defendant’s counsel for contempt, which then necessitated a mistrial).

After reviewing the record and transcripts, we find that the repeated misconduct by appellant’s counsel, resulting in the jury’s exposure to extensive assertions that were irrelevant, immaterial, highly prejudicial, and wholly lacking in evidentiary support, made it impossible for an impartial verdict to be reached. See Abdi v. State, supra at 828-829. Therefore, the trial court did not abuse its discretion in declaring sua sponte a mistrial based on “manifest necessity,” and appellant’s retrial is not barred by the principles of double jeopardy.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

G. Channing Ruskell, Solicitor, for appellee.


author: Pope, Presiding Judge.

text:
    A96A0694.
    THE STATE v. PASTORINI.
    (486 SE2d 399)
   Pope, Presiding Judge.

Defendant Frank Pastorini filed a motion in limine and motion to suppress three field sobriety tests that were given to him at the scene of an accident. The three tests were the “one leg stand,” “walk and turn” and “horizontal gaze nystagmus.” Following a hearing on the motions, the trial court suppressed the introduction of all of the tests. The State appealed the trial court’s ruling, and we reversed the trial court with regard to the admissibility of the one leg stand and walk and turn tests. State v. Pastorini, 222 Ga. App. 316 (474 SE2d 122) (1996). The Supreme Court of Georgia granted Pastorini’s application for certiorari, and thereafter, remanded the case to us for a determination as to the State’s right to appeal the trial court’s ruling in light of Berky v. State, 266 Ga. 28 (463 SE2d 891) (1995).

In Berky, the Supreme Court, relying in part on our holding in State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994), reiterated the well established rule that the State may not appeal a trial court’s order suppressing evidence when the order is based only upon some general rule of evidence. 266 Ga. at 29. As acknowledged in Lavell, however, under OCGA § 5-7-1 (a) (4), the State is authorized “to directly appeal the grant of a motion to suppress whenever the trial court’s exclusion of evidence is based upon its determination that the state unlawfully obtained the evidence.” (Citation omitted.) 214 Ga. App. at 525; see State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278) (1991).

While it is true that the trial court’s order in the instant case concluded in part that the sobriety tests should be suppressed based on certain general rules of evidence, the order also expressly concluded as a matter of law that the field sobriety tests had to be suppressed because Pastorini was not read his Miranda warnings prior to administration of the tests. Accordingly, Pastorini’s motion at least in part was granted on the grounds that the evidence in question had been obtained in violation of law. Based on this fact, we conclude that the State was authorized to directly appeal the order pursuant to OCGA § 5-7-1 (a) (4). Therefore, we further conclude that this Court had jurisdiction to hear the appeal.

In light of the above and our original opinion in this case, we remand the case to the trial court for trial. During trial, evidence regarding the one leg stand and walk and turn field sobriety tests taken by Pastorini shall be admissible as set forth in the holding reached in our original opinion.

Decided April 24, 1997

Before Judge Fuller.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison L. Thatcher, Assistant Solicitors, for appellant.

William C. Head, for appellee.

Case remanded to the trial court with direction.

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


text:
    A97A0417.
    WELLS et al. v. VI-MAC, INC.
    (486 SE2d 400)
   Pope, Presiding Judge.

Steven Wells was seriously burned while “priming” his carburetor at a gas station owned and operated by Doug Miller, d/b/a Highway 29 Texaco. Vi-Mac, Inc. leased the station’s property and equipment to Miller, and also supplied Miller with Texaco gasoline. Steven Wells and his wife sued Vi-Mac in addition to Miller and Texaco, but the trial court granted Vi-Mac’s motion for summary judgment. We agree with the trial court that Vi-Mac cannot be held vicariously liable for Miller’s negligence as a matter of law, and therefore affirm.

Viewing the evidence favorably to plaintiffs, it appears that Steven Wells was having trouble with his truck and went to Miller’s Texaco station. After he put in gas, the truck would not start. With Miller at the steering wheel, Wells then “primed” the carburetor by pouring gasoline directly on it. Miller cranked the engine before Wells had reached a safe distance, and fire shot out of the carburetor and ignited Wells.

1. The Wells argue that Vi-Mac is liable for Miller’s negligence because Miller was acting as its agent or joint venturer. The undisputed evidence shows, however, that the relationship between Vi-Mac and Miller was purely a contractual one between two independent businesses. Vi-Mac was Miller’s lessor and supplier: Miller paid Vi-Mac a set fee to lease the property and equipment, and also paid for the Texaco gas Vi-Mac provided and delivered. The Wells’ assertion that Vi-Mac exercised a high degree of control over Miller’s business is not borne out by the record, which shows that Vi-Mac could require Miller to sell only Texaco products and comply with Texaco standards for cleanliness and appearance, but could not otherwise control Miller’s hours or manner of operation. Cf. McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 230 (2) (348 SE2d 748) (1986) (franchisor may exercise some degree of control to protect its national reputation, but still forego that degree of control which would subject it to vicarious liability for negligence of franchisee). As Vi-Mac did not control Miller’s hours or manner of operation, Miller was not its agent. See OCGA § 10-6-1; McMullan, 180 Ga. App. at 230 (2). And as Vi-Mac and Miller did not have mutual rights of control, there was no joint venture. See Pope v. Goodgame, 223 Ga. App. 672, 674 (2) (c) (478 SE2d 636) (1996). Accordingly, the trial court did not err in granting summary judgment on this ground.

2. The Wells also contend that Vi-Mac is vicariously liable for Miller’s negligence under OCGA- § 51-2-5 (2). This subsection provides that when a person employs another to do work which is inherently dangerous (i.e., it is dangerous no matter how carefully it is performed), the employer who wants the inherently dangerous work done is liable for the negligence of the worker, even though the worker is an independent contractor rather than an employee.

Contrary to the Wells’ contention, OCGA § 51-2-5 by its terms generally would not apply to chain-of-distribution scenarios such as the one presented here. Vi-Mac was Miller’s lessor and supplier — not his employer in any sense. It did not hire him to perform a service, but instead agreed to provide him with property and goods in return for payment.

Moreover, even if we could say Vi-Mac “employed” Miller to sell gas when it agreed to supply him with gas to sell, OCGA § 51-2-5 (2) still would not apply because the sale of gas is not inherently dangerous, but becomes dangerous only when done negligently. See Allen v. Cooper, 145 Ga. App. 555 (244 SE2d 98) (1978) (assuming arguendo that the direct seller of Standard Oil gas was the independent contractor of Standard Oil). The Wells suggest we focus on the dangerousness of priming carburetors rather than the dangerousness of selling gas. But even if we could stretch to accept the notion that Vi-Mac “employed” Miller to perform a service, we clearly could not accept the notion that it employed him to perform the service of priming carburetors rather than the service of selling its gas to the public; and that is what we would have to do to make this Code section apply.

3. Lastly, the Wells assert that Vi-Mac is liable based on its failure to warn that gas should not be used to prime carburetors in this manner. As a bulk supplier of gas to a knowledgeable distributor, however, Vi-Mac had no duty to warn of gasoline’s dangerous propensities. See Exxon Corp. v. Jones, 209 Ga. App. 373, 374-376 (433 SE2d 350) (1993).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided April 24, 1997

Before Judge Grant.

Thomas M. Strickland, Benjamin C. Free, for appellants.

Dermer & Black, Richard W. Brown, for appellee.


author: Blackburn, Judge.

text:
    A97A0527.
    WILLIAMS et al. v. BRITTON.
    (485 SE2d 835)
   Blackburn, Judge.

Plaintiffs Frances S. Williams and Lemuel E. Williams appeal from the trial court’s grant of summary judgment in favor of Walter Dexter Britton. Frances S. Williams was injured when the automobile she was driving collided with an automobile owned by Britton. Britton was not involved in the collision, but his brother, Kenneth Brando Britton (Kenneth), was driving the car when this incident occurred. Mr. and Mrs. Williams filed suit against both brothers for personal injury and property damage, and alleged causes of action for negligence and negligent entrustment against Britton. For the reasons set forth below, we affirm.

The facts show that on December 31, 1992, Britton parked his car in front of his family’s home, left the keys in the car, and went inside and fell asleep. Kenneth, who did not have a driver’s license, took the car that evening while Britton was sleeping. Kenneth did not have Britton’s permission to drive the car, and Britton had no knowledge that Kenneth had taken the car. Later that evening, Brit-ton was awakened by his sister, who informed him that Kenneth had taken the car. Kenneth deposed that he had in fact taken the car without permission, that he was intoxicated at the time, and that soon after taking the car, he was involved in the subject collision.

Plaintiffs allege that Britton was negligent because he should have foreseen that Kenneth, who he knew had an alcohol problem, would see the keys in the ignition of the car and drive it while intoxicated. They assert two separate arguments, to wit: (1) Britton negligently left the keys in the car, and (2) Britton negligently entrusted the car to Kenneth.

With respect to the contention that Britton negligently left the keys in the car, we have previously determined that “there is no liability arising from the fact of keys being left in a car.” (Punctuation omitted.) Willis v. Allen, 188 Ga. App. 390, 392 (373 SE2d 79) (1988). “In Georgia, it is not the duty of the owner or driver of an automobile, before leaving it parked, to render the vehicle impossible for it to be started by a third person.” (Punctuation omitted.) Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 855 (467 SE2d 186) (1996). Although in certain limited circumstances liability might arise from the leaving of keys in a car, see, e.g., Robinson v. Pollard, 131 Ga. App. 105, 107-108 (205 SE2d 86) (1974) (discussing how liability might have attached in Roach v. Dozier, 97 Ga. App. 568 (103 SE2d 691) (1958) and Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) (1967)), no such circumstances are present in this case. Viewing the evidence and all reasonable inferences therefrom in favor of plaintiffs, as the non-moving parties, they have therefore failed to present a genuine issue of material fact with respect to Britton’s negligence on this issue, and under the standard set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment was appropriately granted for Britton.

Decided April 24, 1997.

Before Judge Newton.

Roy E. Harkleroad, for appellants.

Joseph E. East, for appellee.

Plaintiffs also suggest that Britton negligently entrusted his car to Kenneth. “Under the theory of negligent entrustment, liability is predicated . . . on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.” (Punctuation omitted.) Willis, supra at 391. However, because the uncontroverted evidence shows that Kenneth took the car without Britton’s permission and knowledge, it cannot be said that Britton lent Kenneth the car or otherwise entrusted him with it. Although pláintiffs argue that Kenneth had Britton’s “implied consent” to drive the car, no evidence of such consent exists in the record. To the contrary, Kenneth testified that he had never been allowed to drive the car without Britton’s permission.

Britton has therefore shown an absence of evidence to support the plaintiffs’ case, and they have failed to counter this with specific evidence giving rise to a genuine issue of material fact. See Lau’s Corp., supra. Britton was also entitled to summary judgment on the issue of negligent entrustment, and the trial court did not err in granting same.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       Kenneth is not a party to this appeal.


text:
    A97A0617.
    PEOPLES v. CONSOLIDATED FREIGHTWAYS, INC. et al.
    (486 SE2d 604)
   Eldridge, Judge.

This is an ancillary action on a written contingent attorney fee contract between Frances Peoples and Stephen F. Carley, her first attorney. Carley filed a personal injury action in the State Court of Fulton County on behalf of Peoples against Consolidated Freight-ways, Inc. and Charles Clayton on April 1, 1992. The case went to verdict on July 12, 1995, and judgment for Peoples in the amount of $4,100 was entered on August 21, 1995, after a write-off for previously received personal injury protection benefits under no-fault motor vehicle protection. Prior to trial, Carley obtained a settlement offer of $50,000, as well as a separate offer of a high-low guarantee of a minimum recovery of $35,000 and a maximum recovery of $50,000, if tried; such recovery guarantee would allow the case to be tried, bring finality by settlement, but still allow the jury to render a verdict that would not bind the parties except between the floor and ceiling settlement guarantees. Peoples rejected both offers so that the case went to trial. Carley obtained a verdict of only $7,000, at trial, which had to be offset by the PIP benefits already received under the No-Fault Motor Vehicle Reparation Act. Peoples lost confidence in the ability of Carley to adequately represent her. Carley denied that he had been terminated; however, he did admit that Peoples told him that she had retained Gordon L. Joyner to represent her and that she agreed to pay Carley his legal fees. In July 1996, Peoples discharged Carley after the low verdict and judgment.

On August 31,1995, Joyner filed an entry of appearance as counsel for Peoples. On August 31, 1995, Joyner also filed a motion for new trial on Peoples’ behalf. After the discharge of Carley, Joyner negotiated a settlement with Consolidated Freightways, Inc. for an additional $25,900 above and beyond the judgment for $4,100. Carley objected to the settlement and would not cooperate in bringing the case to final disposition.

On May 1, 1996, Consolidated Freightways, Inc. made a motion to compel enforcement of the settlement and for approval of the payment of the settlement sum into court. The trial court on May 8, 1996, ordered the settlement sum paid into court and the dismissal of defendants, Consolidated Freightways, Inc. and Charles A. Clayton. On May 31, 1996, the defendants gave notice that they had paid the settlement sum into court. On June 27, 1996, Carley filed his written attorney’s lien with the trial court. On July 15, 1996, Joyner filed on behalf of Peoples a dismissal of her complaint with prejudice as part of the settlement. On July 16, 1996, the trial court filed an order granting defendants’ motion to enforce judgment and ordered the disbursement of funds: (1) $4,100 was ordered to be paid jointly to Peoples and Carley; and (2) $25,900 was ordered to be paid jointly to Peoples and Joyner. Carley filed his notice of appeal from the trial court’s “Order to Consummate Settlement Instanter and to Disburse Settlement Proceeds” on August 1, 1996.

1. Appellant Carley’s first enumeration of error is that the trial court erred in entering its order granting the motion for an order to consummate settlement in violation of appellant’s attorney’s lien, right to a trial by jury, and due process.

OCGA § 44-12-24 states: “A right of action for personal torts or for injuries arising from fraud to the assignor may not be assigned.” Under Georgia law, a right to bring or maintain a personal injury action cannot be assigned, because at common law such rights are not assignable. Carter v. Banks, 254 Ga. 550, 552 (330 SE2d 866) (1985); Central R. &c. Co. v. Brunswick &c. R. Co., 87 Ga. 386, 388 (1) (13 SE 520) (1891); American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 835 (278 SE2d 719) (1981); Wrightsman v. Hardware Dealers Mut. &c. Ins. Co., 113 Ga. App. 306, 307 (2) (147 SE2d 860) (1966); James v. Emmco Ins. Co., 71 Ga. App. 196, 200 (30 SE2d 361) (1944). Therefore, any purported assignment of any interest in the personal injury action in paragraphs 4, 6, and 11 of the contract, included in an attempt to survive the termination of the lawyer’s contract of employment and to give the lawyer an interest in the litigation separate from any statutory lien rights, is void as a violation of public policy as set forth by statute. See James v. Emmco Ins. Co., supra at 200. Therefore, whatever rights Carley has as an attorney must be derived either from the written employment contract or from OCGA § 15-19-14.

OCGA § 15-19-14 is in derogation of common law and must be strictly construed; the statute does not attach to property beyond the ambit of the statute. Woodward v. Lawson, 225 Ga. 261, 262 (2) (167 SE2d 660) (1969); White v. Aiken, 197 Ga. 29, 34 (28 SE2d 263) (1943), rev’g Aiken v. White, 69 Ga. App. 717 (26 SE2d 471) (1943), mandate conformed and prior opinion vacated, Aiken v. White, 70 Ga. App. 537 (29 SE2d 97) (1944); Law Office of Tony Center v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167) (1988); May v. May, 180 Ga. App. 581, 582 (349 SE2d 766) (1986).

“Counsel must be held to the strict language of the instrument he prepared.” May v. May, supra at 582; see generally Brown v. Welch, 253 Ga. 118, 119 (317 SE2d 520) (1984); Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186 (69 SE 119) (1910). Thus, the contingent fee contract came to an end upon the happening of the contingency, the condition precedent to recovery, a jury verdict and judgment. The contingent fee contract fixed the attorney fees due based upon “verdict” and “judgment” under paragraphs 1 (c) and 2 within the express terms of the contract, which were not as favorable as the subsequent settlement. The provision of paragraphs 1 (d), 3, and 5 dealing with expenses falls outside OCGA § 15-19-14 and would require Carley to bring a separate lawsuit against Peoples to enforce his contract rights; the only contract rights that a lawyer may enforce in an ancillary proceeding to the main suit are such rights as come within OCGA § 15-19-14, because the lawyer is not a party to the litigation and has not sought to intervene. The trial judge based the order on the judgment, the only amount from which Carley was entitled to have his contingent fee calculated; the contract did not state that counsel, if he felt the judgment was inadequate, had a right to seek a new trial or appeal on Peoples’ behalf. Peoples terminated Carley’s employment after the judgment was entered based on the disappointing results of trial. Because the subject of the contingent contract had been fully performed when judgment was entered, it was for Peoples to determine if she wished further representation by Carley beyond the fully performed contract. Peoples no longer felt that Carley could adequately represent her where the verdict was substantially less than the settlement offers.

After the contingency of a verdict and judgment took place and fixed the attorney fees at that point in time, Carley was entitled only to the percentage of the judgment that his efforts produced. See May v. May, supra at 582; Rasmussen v. Nodvin, 174 Ga. App. 203, 205 (2) (329 SE2d 541) (1985); Bearden v. Lane, 107 Ga. App. 424, 425-426 (1) (130 SE2d 619) (1963); see also Burnette v. Bradley, 190 Ga. App. 427, 428 (379 SE2d 225) (1989); Overman v. All Cities Transfer Co., 176 Ga. App. 436, 438 (336 SE2d 341) (1985); Hopkins v. Steele, 164 Ga. App. 527 (297 SE2d 528) (1982); Brookhaven Supply Co. v. Rary, 131 Ga. App. 310, 311 (4) (205 SE2d 885) (1974).

The settlement occurred only after Carley had been replaced by Joyner; the right to a specific amount as a contingent fee for Carley was fixed by the judgment. See Rasmussen v. Nodvin, supra at 205. Where Joyner filed an appearance for Peoples and made a motion for new trial and Carley did not object or inform the court that he continued to represent Peoples, such silence and the entry of appearance are evidence upon the record that Carley was no longer counsel of record and had been terminated by the client. Id. at 204-205; see also Rooke v. Day, 46 Ga. App. 379, 380 (167 SE 762) (1933). In the case sub judice, the contingent fee contract had been fully performed, and the specific amount of attorney fees due was established by such contract in a specific amount as a matter of law. Henson & Henson, P. C. v. Myszka, 160 Ga. App. 135 (286 SE2d 456) (1981); Dorsey v. Edge, 75 Ga. App. 388, 392 (43 SE2d 425) (1947). Carley had no right, under either his contract or OCGA § 15-19-14, to have the contingent fee calculated on the post-judgment settlement. See Burnette v. Brad ley, supra at 428; compare Morrow v. Stewart, 197 Ga. App. 689, 690 (399 SE2d 280) (1990).

A client has an absolute right to dismiss an attorney at any time for any reason, however arbitrary, and such action is not a breach of contract but the exercise of the client’s rights. White v. Aiken, supra, 197 Ga. at 34; Head v. Aycock, 116 Ga. App. 739 (158 SE2d 685) (1967); Dorsey v. Edge, supra at 392. Counsel’s refusal to cease acting in the name of the client and in holding himself out as counsel for the client does not negate the termination. See Gilbert v. Edmondson, 193 Ga. App. 593, 594 (388 SE2d 713) (1989). It is for the trial court to determine who represents a party in court, even if there is a dispute of fact, because representation and authority to act for a party in court go to the inherent powers of the court to orderly administer its cases. OCGA §§ 15-19-7; 15-19-8; 15-19-9; Felker v. Johnson, 189 Ga. 797 (7 SE2d 668) (1940); Howell v. Howell, 188 Ga. 803 (4 SE2d 835) (1939); Aycock v. Williams, 185 Ga. 585 (196 SE 54) (1938); Uniform Superior Court Rules 4.2, 4.3.

Carley raised no due process issue at the trial court, and the trial court did not pass on such issue, so that it was not preserved for review on appeal. Likewise, Carley raised no issue before the trial court as to any right to try a disputed issue of material fact. The only issue that is in dispute is whether or not the client terminated Carley and when, but such issue is a legal issue for the trial court’s determination. The trial court in the order of July 15, 1996, determined implicitly in the order that Carley had been terminated by Peoples prior to the settlement in October 1995.

We find that the trial court did not err.

2. The second enumeration of error is that the trial court erred in entering its order of May 8, 1996, less than 30 days after the motion to pay such funds into court was made.

The record shows that the motion to pay settlement funds into court was filed on May 1, 1996, and that the order directing such funds be paid into court was filed May 8, 1996. There is nothing in the record that shows Carley made a timely objection to preserve such alleged error for appeal or that the trial court ruled upon such issue. This Court cannot rule upon issues raised for the first time on appeal. Thomason v. State, 215 Ga. App. 189, 190 (4) (450 SE2d 283) (1994). Such alleged error was not preserved for review on appeal.

Decided April 2, 1997

Reconsideration denied April 28, 1997.

Before Judge Thompson.

Gordon L. Joyner, for appellant.

Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., for appellees.

Stephen F. Carley, pro se.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       While the contract had a provision that Carley be paid at his normal hourly rate in the event of termination prior to the contingency as in Morrow v. Stewart, supra at 690, there the contingency never occurred, but in the case sub judice the judgment was obtained but was inadequate. Nonetheless, the express language of the contract fixed the attorney fees based upon the percentage of the judgment, since the judgment occurred prior to termination and the subsequent settlement and no alternative method to compute the amount of fees owed would be appropriate with the occurrence of the contingency.


author: Birdsong, Presiding Judge.

text:
    A97A0168.
    TRAVELERS INSURANCE COMPANY v. HARRIS.
    (486 SE2d 427)
   Birdsong, Presiding Judge.

The Travelers Insurance Company appeals the grant of summary judgment to Robert A. Harris, an uninsured motorist, in its action to recover from Harris amounts paid to a H. K. Gillilan, a Travelers’ insured, under the uninsured motorist coverage of Gillilan’s policy of automobile insurance with Travelers. The record shows that on July 23,1992, Gillilan and Harris were in an automobile accident in which Gillilan was injured. Because Harris was uninsured, Gillilan made a demand upon Travelers under his uninsured motorist coverage for the damages he incurred and ultimately, pursuant to a trust agreement, Travelers paid him $85,000 for his general damages, medical expenses, and lost wages. Subsequently, on August 18, 1995, Travelers filed suit against Harris in its own name to recover the amounts paid under the uninsured motorist coverage.

Thereafter, Harris moved for summary judgment contending that Gillilan, not Travelers, was the proper party plaintiff, that Travelers lacked standing to pursue the action, and that even if Travelers was a proper party plaintiff, Travelers was not authorized to bring the action against Harris because he had not yet been adjudged legally liable to Gillilan. The trial court found that as Travelers’ payment was made before a judgment had been returned in favor of Gillilan against Harris, it was a voluntary payment for which Travelers was not authorized to seek subrogation against Harris. Travelers appeals from that decision. Held:

1. Travelers contends the trial court erred in ruling that by paying Gillilan’s claim before there was a legal determination of Harris’ responsibility for Gillilan’s damages, Travelers made a voluntary payment for which subrogation was not authorized. We agree. Whatever validity this argument may have had ended with our Supreme Court’s decision in Lewis v. Cherokee Ins. Co., 258 Ga. 839, 841 (375 SE2d 850). Lewis v. Cherokee Ins. Co. held that a judgment against the uninsured motorist was not a precondition to a demand against an insurer under OCGA § 33-7-11 and that the Code section does not permit an insurer to wait until there is a judgment against the uninsured motorist before considering the claim by its insured. Id. “Rather, an insurer is required to pay a valid claim within 60 days of its being made, and a valid claim may be made months and years before the plaintiff obtains a judgment against the uninsured motorist.” Id. at 840-841. Thus, under our Supreme Court’s interpretation of OCGA § 33-7-11, an insurer must consider and pay a valid claim made under the uninsured motorist coverage within 60 days of the demand, or face penalties. As further evidence of this intent, our Supreme Court stated that “[o]ur holding here is consistent with the statute’s purpose of encouraging insurers to make a good faith examination of claims and to promptly pay all valid claims.” Id. Under these circumstances, one can hardly say that Travelers’ payment in this case was merely voluntary. Accordingly, the trial court erred by granting summary judgment to Harris on this basis.

Decided April 28, 1997.

Before Judge Miller.

Thomas C. MacDiarmid, Keith D. Bodoh, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

2. Nevertheless, Travelers is not authorized to bring this action against Harris in its own name. Because this claim arose from damages incurred as a result of Gillilan’s personal injuries, his cause of action cannot be assigned to Travelers (OCGA § 44-12-24), and thus, any action must be brought in Gillilan’s name as the real party in interest. Generali-U. S. Branch v. Owens, 218 Ga. App. 584, 585 (462 SE2d 464); Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 32 (299 SE2d 76). Therefore, upon return of this case to the trial court, the trial court is directed to allow Gillilan a reasonable opportunity to join the action pursuant to OCGA § 9-11-17 (a), or be joined or substituted in accordance with OCGA § 9-11-19 (a). See Allianz Life Ins. Co. v. Riedl, 264 Ga. 395, 396-398 (444 SE2d 736).

Although Harris contends this procedure should not be followed in this case because the two-year period of limitations established in OCGA § 9-3-33 has expired, this issue was not ruled upon by the trial court. Thus, this issue is not ripe for our consideration. Moreover, this issue may not be as well settled as Harris contends. See, e.g., U. S. F. & G. Co. v. Ryder Truck Lines, 160 Ga. App. 650 (288 SE2d 1). We trust that, when again presented with this issue, the trial court will make an appropriate disposition at that time.

Judgment reversed with direction.

Ruffin and Eldridge, JJ., concur.


author: Ruffin, Judge.

text:
    A97A0519.
    BELL v. THE STATE.
    (486 SE2d 422)
   Ruffin, Judge.

Kenneth Bell was indicted on one count each of aggravated assault on a peace officer, possession of cocaine, and violation of the Habitual Violator Act (OCGA § 40-5-58). A jury found Bell guilty of aggravated assault on a peace officer and being an habitual violator and acquitted him of possession of cocaine. Bell appeals, enumerating 22 errors concerning (1) the sufficiency of the evidence, (2) the court’s charge, (3) the failure to administer an oath prior to testifying, (4) the effectiveness of trial counsel, and (5) various other rulings by the court. For reasons which follow, we affirm.

1. Bell challenges the sufficiency of the evidence on his conviction for aggravated assault on a peace officer.

Viewed in the light most favorable to support the verdict, the evidence shows that Bell was the subject of a reverse sting operation to apprehend individuals soliciting drugs in a known drug area. On the evening of the operation, Bell drove the cab to his semi tractor truck up to undercover police officers Rogers, Edge and Thomas, who were part of the operation. Sheila Johnson was a passenger in Bell’s truck. Both windows to the truck were down, and officers Edge and Rogers asked Bell what he needed. According to Officer Rogers, Bell responded that he wanted to “get a dime rock[,]” which Rogers explained was a $10 piece of crack cocaine. Officer Rogers stepped up onto the truck’s platform, gave Bell a piece of crack cocaine, and Bell handed him $10.

Immediately following the exchange, all three officers pulled out their badges, identified themselves as police officers, and instructed Bell and Johnson to exit the truck. Officer Rogers testified that he placed his badge “a matter of inches” from Bell’s face. Bell ignored the officers’ instructions and began driving away. Bell continued to drive away as a fourth officer jumped in front of the truck, identified himself as a police officer, and shouted for Bell to stop the truck.

Officer Rogers remained on the truck’s platform and shouted for Bell to stop as Bell sped away. Rogers testified that Bell was driving at a high rate of speed, swerving from side to side and into oncoming traffic, and that Bell’s driving caused him to fear for his life. Meanwhile, two officers in a marked patrol car pursued Bell with their siren and blue lights operating and eventually boxed him in at a nearby service station. After a struggle, Bell was taken into custody.

Bell testified that he never saw the officers’ badges and that he thought the officers were drug dealers who were trying to rob or kill him. Bell justified his erratic and perilous driving by stating that he “wanted to get to a public place where people was [sic].” He contends on appeal that the evidence was insufficient because Officer Rogers presented conflicting testimony. We disagree.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve.’ ” Porter v. State, 224 Ga. App. 276, 279 (2) (480 SE2d 291) (1997). The evidence presented in this case was sufficient for a rational trier of fact to find Bell guilty beyond a reasonable doubt of aggravated assault on a peace officer. See Jackson v. Virginia, supra; Butler v. State, 196 Ga. App. 706 (1) (a) (396 SE2d 916) (1990).

2. Bell asserts that the trial court erred in allowing Officer Rogers to demonstrate for the jury how he held his badge to identify himself to Bell. Bell argues that the demonstration “served only to mislead and confuse the jury. . . .” We disagree.

“Questions of the relevancy of evidence are for the court[,] . . . [and] it is within the sound discretion of the trial court to permit or refuse a deinonstration.” Burns v. State, 166 Ga. App. 766, 770 (6) (305 SE2d 398) (1983). In this case, Bell denied he ever saw the undercover officers display their badges to identify themselves. Accordingly, the demonstration was relevant to the issue raised by Bell of whether and how the officers displayed their badges. Under these circumstances, the trial court did not abuse its discretion in allowing the in-court demonstration. See id.; Willis v. State, 202 Ga. App. 447 (1) (414 SE2d 681) (1992).

3. Bell asserts that the trial court erred by instructing him, in the presence of the jury, that he was not obligated to testify. However, “[t]he statutory prohibitions upon comment on the defendant’s failure to testify [cit.], are applicable only where the defendant fails to testify.” Gosha v. State, 239 Ga. 37, 38 (235 SE2d 527) (1977). Because Bell testified in this case, we find no error. See id.

4. In two enumerations of error, Bell asserts that the trial court erred by allowing him to testify without being sworn in as a witness. The record does not reveal why no oath was administered and is similarly devoid of any discussion or argument concerning the failure.

OCGA § 24-9-20 (b) provides in part that “[i]f a defendant testifies, he shall be sworn as any other witness. . . .” “ ‘In this State an oath or affirmation is required of all witnesses, and unsworn statements are not treated as amounting to any evidence, except “in specified cases of necessity.” ’ [Cit.]” Belcher v. State, 173 Ga. App. 509 (1) (326 SE2d 857) (1985). It is clear that Bell should not have testified without being under oath. See Lee v. State, 223 Ga. App. 438 (1) (477 SE2d 872) (1996).

However, “[h]arm as well as error must be shown affirmatively by the record to authorize a reversal. [Bell’s contention that the jurors discredited his testimony] is mere speculation and conjecture unsupported by the record.” (Citations and punctuation omitted; emphasis supplied.) Kennedy v. State, 205 Ga. App. 152, 155 (4) (421 SE2d 560) (1992). The fact that the jury acquitted Bell of possession of cocaine shows that the jury did not give the lack of oath any consideration. Accordingly, because Bell has not shown that he was harmed, the error does not require a new trial. See id.; Lee, supra.

5. Bell asserts the trial court erred in failing to declare a mistrial after it discovered that, during a break, three jurors may have had a conversation with his mother, who was not a witness. The transcript shows that a group of jurors and the mother were standing on the courthouse steps smoking cigarettes when the purported conversation took place. The transcript further shows that the trial judge questioned both the mother and the three jurors separately concerning what they were talking about. The mother explained that they were only talking about cigarettes. The first juror stated that although she was present, the mother did not say anything to her but merely “came up and dunked her cigarette.” The second juror stated that “[i]t didn’t dawn on me who she was, and I walked up to her and I said, I thought I’d smoke one because we might be all afternoon, you know, without a cigarette, so.” The trial judge then asked the second juror whether anything happened that would affect his verdict, and the juror responded “[n]o.” The third juror denied that he said or heard anything and was only talking to another juror. Under these circumstances, we are satisfied that Bell was not injured by the “conversation” between the second juror and his mother. See Whitlock v. State, 230 Ga. 700 (1) (198 SE2d 865) (1973).

6. Bell asserts that the trial court erred in failing to charge the jury on mistake of fact, even though he did not request such a charge. We disagree.

Bell testified that his perilous driving was in self-defense from drug dealers who he thought were trying to kill or rob him. He further maintained in his appellate brief that the evidence showed his actions were justified. The transcript shows that the trial court charged the jury on the defenses of justification and self-defense. Under such circumstances, mistake was not Bell’s sole defense, and the trial court’s failure to give the charge was not error. See Collier v. State, 195 Ga. App. 380 (2) (393 SE2d 509) (1990).

7. In 15 enumerations of error, Bell asserts he was denied effective assistance of trial counsel. We disagree.

A defendant seeking to show that his counsel was ineffective must show that: 1) “ ‘trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; [and] 2). . . the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.)’ [Cit.]” Hearst v. State, 212 Ga. App. 492, 494 (2) (b) (441 SE2d 914) (1994). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citations and punctuation omitted.) Id.

(a) In six enumerations of error, Bell asserts that trial counsel was ineffective because he allowed Bell to testify without taking an oath and failed to request a jury instruction concerning the matter. We concluded in Division 4, however, that even though the failure to administer an oath was error, under the circumstances of this case Bell did not show it was harmful. Accordingly, we conclude here that it does not appear from the record that counsel’s deficient performance in this instance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Hearst, supra.

(b) We similarly find no merit in Bell’s assertion that trial counsel was ineffective for failing to request a charge on mistake. As we held in Division 6, the failure to give the charge, even if requested, would not have resulted in reversible error. Accordingly, trial counsel’s failure to request the charge did not constitute ineffective assistance. See Collier, supra; Hearst, supra.

(c) Bell asserts trial counsel was ineffective because he failed to request jury charges on lesser included offenses of the aggravated assault charge. At the hearing on Bell’s motion for new trial, Bell’s trial counsel testified that he fully explained to Bell the lesser included offense charges, that he made sure Bell understood the significance of such charges, and that Bell decided he wanted to pursue an “all or nothing” strategy. Such conduct does not amount to ineffective assistance of counsel. Rather, the hearing transcript establishes that the lesser included offense charges were declined pursuant to an informed strategic choice by trial counsel which comported with Bell’s strong feelings about pursuing an all or nothing defense. See Van Alstine v. State, 263 Ga. 1, 4-5 (426 SE2d 360) (1993).

(d) Trial counsel was not ineffective because “he failed to ensure that the trial court distinctly include a statement in the charges to the jury that ‘if the defendant was justified in his acts it was their duty to acquit.’ ” As we stated in Division 6, the trial court instructed the jury on the defense of justification. That charge “adequately covered justification and the State’s burden of proof.” Coleman v. State, 264 Ga. 253, 254 (3) (443 SE2d 626) (1994). Moreover, the trial court was not required to charge the jurors that they had a “duty” to acquit if they found Bell was justified in his actions. Id.

(e) Bell asserts trial counsel was ineffective in failing to submit any written requests to charge or properly reserve objection to the court’s charge. In the immediately preceding subdivisions, however, we addressed the only specific instructions which Bell argued should have been given. We concluded that the failure to request those specific charges did not render counsel’s performance ineffective. Inasmuch as Bell has cited no additional requests or objections that counsel should have raised, he has not shown how he was harmed by the deficiency. Accordingly, we find no error. See Hearst, supra; Peterson v. State, 212 Ga. App. 147, 152 (4) (441 SE2d 481) (1994) (physical precedent only).

(f) Bell asserts that trial counsel was ineffective because he failed to retain an expert witness to testify concerning Bell’s state of mind at the time the officers identified themselves. According to Bell, such testimony would have shown that he was justified in believing the officers were actually drug dealers and not police officers. However, such is not a proper use of expert testimony. Whether Bell reasonably believed the officers were drug dealers and not officers is an issue the jurors properly resolve on their own. See Palmer v. State, 186 Ga. App. 892, 899 (4) (369 SE2d 38) (1988). Accordingly, counsel’s failure to present such expert testimony did not constitute ineffective assistance. See Hearst, supra.

(g) Bell asserts that trial counsel was ineffective because he failed to object to Officer Rogers’ demonstration of how he displayed his badge to identify himself as a police officer. Because we concluded in Division 2 that the demonstration was relevant to show what measures the officer took to identify himself, we cannot conclude that trial counsel’s failure to object constituted ineffective assistance. See Hearst, supra.

(h) Bell’s remaining two enumerations of error are similarly without merit. We ruled in Division 3 that the trial court did not err by instructing Bell, in the presence of the jury, that he was not obligated to testify. Furthermore, in Division 5 we held that the trial court did not err in refusing to grant a mistrial due to a purported conversation between three jurors and Bell’s mother. Accordingly, counsel’s failure to request a mistrial in either instance did not constitute ineffective assistance of counsel. See Hearst, supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Decided April 28, 1997

Before Judge Culpepper.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Laura D. Hogue, Assistant District Attorneys, for appellee.


author: Beasley, Judge.

text:
    A97A0882.
    HALVERSON et al. v. MURZYNSKI.
    (487 SE2d 19)
   Beasley, Judge.

Murzynski sued Halverson, d/b/a Power Management, Inc., and others for tortious interference with her employment contract. We denied Halverson’s and Power Management’s application for interlocutory appeal from the denial of their original motions for summary judgment but granted their second application after the trial court denied their renewed motions based on additional evidence.

In May 1990, Mary Murzynski became employed as insurance coordinator for Health, Education & Research Services, Inc. (HERS), a company engaged in the business of providing physical therapy services. She was hired by Brenda Jones, the owner of HERS, under an oral employment contract for an indefinite period of time. Murzynski testified that she was hired because HERS was in dire financial straits as a result of numerous delinquent accounts, and that she was instrumental in improving collections and generating significant cash flow, resulting in her promotion to administrator by Jones in July 1990. Murzynski and another HERS employee testified that Murzynski helped improve staff morale, which was low because all employees had been ordered to attend seminars on the management technology of L. Ron Hubbard, learn the principles of the Church of Scientology, and set company policy accordingly or lose their jobs.

A few months later, Halverson appeared at HERS. He was affiliated with the Church of Scientology. Jones testified that she hired Halverson as a management consultant to evaluate the efficiency and performance of HERS’ personnel and make suggestions which might improve the performance level of the company; that when Halverson questioned her about Murzynski’s performance, she told him she had complaints concerning the way Murzynski dealt with customers; and that Halverson told her to document the complaints and advised that the best interest of the company was to terminate an employee who jeopardized future business because of customers’ complaints. Jones testified that in November 1990, in the presence of Halverson, she terminated Murzynski as a result of these complaints.

Murzynski testified that the ostensible reason for her termination did not involve customers or jeopardizing future business. According to Murzynski, Jones was aware of these incidents and did not express any dissatisfaction concerning the manner in which Murzynski handled them or any other aspect of her job performance, until Halverson appeared. Murzynski testified that Halverson questioned her about Hubbard and his management technology and church, and she expressed critical opinions.

A “knowledge report” written by Halverson stated that after Murzynski verbally attacked the Church of Scientology, he told Jones “to start documenting any situation that would warrant dismissal per the labor board.” The substance of the report would authorize an inference that Halverson instructed Jones to terminate Murzynski because of her verbal attack on the church, and that his reason for doing this related to payments by HERS of large sums of money to various Scientology-related organizations and not to the efficiency and performance of HERS’ employees.

1. The fact that employment is at will does not carry with it immunity to a third person who, without justification, causes the discharge of the employee. Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598) (1989). “The elements of a claim for tortious interference with employment include the existence of an employment relationship, interference by one who is a stranger to the relationship, and resulting damage to the employment relationship. [Cit.] In addition, it must be shown that the alleged intermeddler acted maliciously and without privilege. [Cits.]” Lee v. Gore, 221 Ga. App. 632, 634 (1) (472 SE2d 164) (1996). “Maliciously” means any unauthorized interference or any interference without legal justification or excuse. Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743) (1987). See also Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (2) (451 SE2d 87) (1994).

“ ‘ “The exercise of an absolute right or privilege is recognized as being closely akin to the question of justification, but it is inherently different therefrom in that such a right can be exercised without incurring liability regardless of the motive for so doing. It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right — that is, an act which a (person) has a definite legal right to do without any qualification.” (Cit.)’ [Cit.]” Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (4) (434 SE2d 716) (1993). Such would be an exercise of business judgment.

“To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. [Cit.]” Barnwell v. Barnett & Co., 222 Ga. App. 694 (476 SE2d 1) (1996).

Decided April 28, 1997.

Before Judge Westmoreland.

McKinney & Salo, Sonja L. Salo, for appellants.

Halverson contends that he and Power Management were entitled to summary judgment in that the undisputed evidence shows that Jones, owner of HERS, hired him as a management consultant to advise on the general operation of her business and evaluate the efficiency and performance of her personnel, that actions taken by him were within the scope of his authority, and that Murzynski was discharged because of her abusive behavior.

The record does not preclude a finding of fact that Halverson induced Jones to discharge Murzynski, not as a result of his evaluation of her job efficiency or performance, but rather because of her hostility toward the Church of Scientology and his concern with HERS’ continuing monetary payments to church-related organizations. Jones’ engagement of Halverson as a management consultant did not confer upon him a privilege to induce Jones to terminate an at-will employee for such reasons. See Restatement 2d Torts, Comment i, § 767, p. 36. Singleton, supra, is distinguishable. The court held that directors and an employee of a mutual insurance company were entitled to a directed verdict in a suit for tortious interference with plaintiff’s employment contract, where there was nothing to contradict the directors’ showing that, in participating in the discharge, they acted in what they believed to be the best interests of the business and without malicious intent, and the co-employee had only divulged truthful information and expressed critical opinions. A jury in the instant case could find that in instructing Jones to discharge Murzynksi, Halverson acted without legal justification or excuse and thus maliciously, thereby causing Murzynski’s termination on pretextual grounds.

2. In reliance upon McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174 (381 SE2d 126) (1989) (physical precedent only), Halverson also argues that under the First Amendment a secular court is prohibited from exercising its authority in this dispute because it would necessitate an impermissible intrusion into ecclesiastical matters. Unlike McDonnell, this case does not involve an internal dispute within a religious organization. It involves a claim that an employee of a for-profit corporation was terminated because of her rejection of certain religious beliefs.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

Nelson & Hill, Joseph C. Nelson III, Kesler T Roberts, for appellee.