text:
    A01A0803.
    COLLIER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (549 SE2d 810)
   Barnes, Judge.

Rachel A. Collier appeals the grant of summary judgment to State Farm Mutual Automobile Insurance Company. Collier sued State Farm, her insurer, after the company refused to pay her claim for the loss of her automobile. After discovery, State Farm moved for summary judgment, contending that the theft loss and sales agreement exclusions in her policy precluded recovery. Collier contended the exclusions were ambiguous, they did not apply because no sales agreement existed, and she owned the car at the time of the loss. After the trial court granted State Farm’s motion, Collier filed this appeal.

She contends the trial court erred by granting State Farm’s motion because the theft loss and sales agreement exclusions in her policy applicable to her loss are ambiguous and do not apply to her loss. She further contends that the trial court erred by finding implicitly that the loss occurred after she no longer owned the car. Because the trial court granted summary judgment without explanation, we cannot determine on which ground asserted by State Farm the court relied or whether the trial court reached the implied conclusions that Collier asserts.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the court should give the party opposing the motion the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the opposing party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (5) (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. In this state, “[insurance contracts are governed by the rules of construction applicable to other contracts, and words in the policy must be given their usual and common signification and customary meaning.” (Citations omitted.) Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 36-37 (2) (416 SE2d 105) (1992). “ [Construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” OCGA § 13-2-1. Further, whether a contract is ambiguous is a question of law for the court (Capital Ford &c. v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417-418 (1) (349 SE2d 201) (1986), rev’d on other grounds, 257 Ga. 77 (355 SE2d 428) (1987)), and insurance policies are construed in favor of the insured and against the insurance company. Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (380 SE2d 686) (1989).

3. Viewing the evidence in Collier’s favor and giving her the benefit of all inferences, conclusions, and reasonable doubts, the evidence shows that she owned a 240SX Nissan automobile that was insured under a State Farm automobile insurance policy. Collier traded this car as part of the purchase price of a Lincoln Continental in a transaction initiated by her next-door neighbor and friend, Rick Tinley.

Tinley said that all Collier had to do was trade her car by signing the power of attorney on the title and give him $480 as a down payment, pay an additional $5,000, and she could then drive the Lincoln. Her Nissan was to be sold, the existing loan on the Nissan paid off, and the balance applied to what she owed on the Lincoln. She made one $2,500 payment on the new car but then made no further payments because she learned the Lincoln was stolen. She never saw her Nissan again. Collier became concerned about the transaction when she did not receive the paperwork on the Lincoln and had to continue driving around on dealer plates. When Collier’s husband received the paperwork, it did not look right. After he discussed the matter with a friend in the automobile business, Collier’s husband called the police, and the police discovered that cars in Tinley’s driveway were stolen. About this time, Collier learned that the Lincoln was stolen and made her claim against State Farm under her comprehensive coverage. In her policy, that is coverage “D.”

The State Farm insurance policy covering the Nissan contained the following provisions: “When Coverages D, F, G, H, R, and R1 Do Not Apply THERE IS NO COVERAGE FOR: ... 3. LOSS TO ANY VEHICLE DUE TO: . . . d. CONVERSION, EMBEZZLEMENT OR SECRETION BY ANY PERSON WHO HAS THE VEHICLE DUE TO ANY LIEN, RENTAL OR SALES AGREEMENT.” (Emphasis supplied.)

Although Collier contends the exclusion is ambiguous because of the heading, “When Coverages D, F, G, H, R, and R1 Do Not Apply,” we find no ambiguity here. “[An ambiguity] is duplicity, indistinctness, an uncertainty of meaning or expression.” (Punctuation omitted.) Tarbutton v. Duggan, 45 Ga. App. 31, hn. 5 (163 SE 298) (1932). Thus, a word or phrase is ambiguous “when it is of uncertain meaning and may be fairly understood in more ways than one.” (Citation and punctuation omitted.) Kusuma v. Metametrix, 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). As the words in this exclusion are plain and obvious, however, we must give them their literal meaning. U S. Fire Ins. Co. v. Capital Ford &c., supra, 257 Ga. at 79. Giving this heading its literal meaning, it is easily understood as a heading for a section of the policy outlining the conditions under which the coverages specified do not apply. Collier’s argument that the exclusions apply only when those coverages do not apply is forced and an unreasonable reading of the policy.

When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties. Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage. [Cits.]

Decided June 5, 2001.

Benny M. Martin, for appellant.

Harper, Waldon & Craig, Hilliard V. Castilla, Trevor G. Hiestand, for appellee.

Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (1) (379 SE2d 188) (1989).

The evidence in this case shows that Collier delivered her Nissan to Tinley as part of the agreement through which Tinley would sell and she would buy the Lincoln. Giving the words “sales agreement” their usual and common meaning (OCGA § 13-2-2), the agreement between Collier and Tinley was a sales agreement. As no question exists but that Tinley gained possession of the car through that agreement and then embezzled or converted the car and the proceeds, policy provision (3) (d), excluding coverage for any loss due to conversion, embezzlement, or secretion by any person who has the vehicle due to any sales agreement, precludes coverage for Collier’s loss.

As this exclusion alone warrants the grant of summary judgment to State Farm, we need not consider the other exclusion or the claim that the trial court made erroneous implied findings. On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).

Judgment affirmed.

Smith, P. J, and Phipps, J, concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A1258. A01A1259.
    ELDER v. THE STATE. MOTEN v. THE STATE.
    (549 SE2d 825)
   Phipps, Judge.

Jason Elder and Julius Moten were tried jointly and convicted of armed robbery of a Best Inns motel. In this appeal of their convictions, they challenge the sufficiency of the evidence to support the verdicts and the trial court’s admission of similar transaction evidence. We find the evidence sufficient and do not find evidentiary error. Therefore, we affirm.

On the evening of May 10, 1998, Katherine Taylor was working as night manager for a Best Inns motel in Dalton. She testified that at approximately 11:20 p.m., three black males in their late teens to early twenties came into the motel and took United States currency belonging to it. According to Taylor, one of the men held a gun to her head and demanded a key to the safe, as the other two men went into the back office and took the money from a desk drawer. Taylor gave the police descriptions of the robbers and of the clothing they wore.

Angela Godwin and Jodie Guffey were working at a Golden Gallon convenience store in Trenton on the evening of May 10, 1998. According to them, three young black males robbed the Golden Gallon approximately one hour after the Best Inns robbery. Guffey testified that one of the robbers put a gun to her head. Godwin testified that another robber took approximately $2,000 from the store’s safe.

In her statement to police, Guffey gave a description of the clothing worn by the robbers which matched that given by Taylor for the clothing worn by the robbers of the Best Inns motel. Items of clothing recovered near the scene of the Golden Gallon robbery were identified by Godwin as having been worn by the Golden Gallon robbers and by Taylor as having been worn by the Best Inns robbers. Moreover, at trial, Taylor viewed a videotape which had captured the Golden Gallon robbery and testified that she was “absolutely certain” that the three robbers who appeared in that videotape were the same men who had robbed her. At a pretrial hearing in the Golden Gallon case and in the trial of this case, Taylor positively identified Elder and Moten as two of the Best Inns robbers. In pretrial identification procedures and at the trial below, Godwin and Guffey also identified Elder and Moten as two of the Golden Gallon robbers.

1. Elder’s and Moten’s contention that the evidence was insufficient to support the verdict is based primarily on a challenge to the credibility of the eyewitnesses’ identification of them. “When an eyewitness identifies a defendant, the eyewitness’ credibility is a matter for the jury to decide, not this court.” Viewed in a light most favorable to support the verdict, the evidence authorized a rational trier of fact to find Elder and Moten guilty of the crime charged beyond a reasonable doubt.

2. Evidence of the Golden Gallon robbery was properly admitted to show identity and course of conduct.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided June 5, 2001.

Michael A. Corbin, for appellants.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

        Thomas v. State, 247 Ga. App. 798, 800 (2) (545 SE2d 354) (2001).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991); Collins v. State, 273 Ga. 93, 94 (2) (538 SE2d 47) (2000).


author: Ellington, Judge.

text:
    A01A0138.
    CLAXTON ENTERPRISE v. EVANS COUNTY BOARD OF COMMISSIONERS.
    (549 SE2d 830)
   Ellington, Judge.

A newspaper, the Claxton Enterprise (“the Enterprise”), sued the Evans County Board of Commissioners (“the Board”) alleging violations of the Georgia Open Meetings Act, OCGA § 50-14-1 et seq. The Enterprise sought to enjoin future violations of the Act, to obtain meeting records, to void any action taken in violation of the Act, and to recover attorney fees and costs of litigation. Following an evidentiary hearing, the superior court ruled that one of two closed meetings was closed in violation of the Act and awarded the Enterprise $1,500 in attorney fees. The Enterprise appeals contending both meetings were improperly closed; the Board’s minutes and affidavits supporting its reasons for closing the meetings were improper, insufficient, or untimely filed; certain discussions pertaining to the decision to close the meetings were not held in public, as required by law; and the court’s award of attorney fees was both insufficient and contrary to law. For the reasons that follow, we affirm the judgment below in part and reverse in part and remand for further proceedings consistent with this opinion on the issue of attorney fees and costs of litigation.

A trial court’s factual findings in a nonjury trial shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a); Mut. Ins. Co. of N.Y. v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989). The “clearly erroneous” test is the “any evidence” rule. If there is any evidence to support the findings of fact by a trial court sitting without a jury, then the appellate court affirms without interference with or disturbing such factfindings. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 546 (382 SE2d 388) (1989). We construe the evidence in favor of the judgment. Mills v. Berlex Laboratories, 235 Ga. App. 873, 875 (510 SE2d 621) (1999). Viewed in this light, the record reveals the following facts.

On July 1, 1999, the Board held a budget meeting. The primary item on the agenda was the Evans County Recreation Commission budget for the fiscal year 2000. The budget included a line item allocation of $6,000, the first installment in a proposed payment plan to compensate Recreation Director Danny Swain for accrued leave benefits. Swain’s accrued leave had been listed as a liability against the county for many years and was a matter of public record. When this matter came before the Board, Chairman Marty Todd'invoked the attorney-client exception to the Open Meetings Act and closed the meeting to discuss “probable litigation concerning a recreation employee.” Enterprise publisher, Mitchell Peace, and other members of the public were present at the meeting. Peace objected to the closed session. Peace testified, and the Board concedes, that the county attorney was not present for the closed session. There is no evidence that Swain had undertaken any legal action against the county as of July 1, 1999. Further, Swain testified that as of that date he had not even consulted an attorney. He reportedly told the county administrator, however, that if the Board failed to pay him, he would use whatever legal means necessary to get compensated. The official minutes of this meeting and an affidavit identifying the reasons for closing it were not filed until August 3, 1999.

The Board’s next regularly scheduled meeting was held on July 6, 1999. During the time between this meeting and the July 1 meeting, the county administrator called each of the Board members to tell them the chairman had misstated his reasons for closing the July 1 meeting, that it should have been closed for personnel reasons rather than to discuss potential litigation, and that the chairman would be issuing a statement to that effect on July 6. At the July 6 meeting and without any discussion, Chairman Todd explained that the Board “mistakenly stated” that the July 1 meeting was closed to discuss potential litigation. “[W]e should have stated it [was] for personnel reasons.” At the end of the July 6 meeting, the Board released a signed affidavit stating that the July 1 meeting had been closed to discuss personnel matters pertaining to a “county officer or employee.” As the lower court found and as the Board now concedes, Swain, as an employee of the Evans County Recreation Authority, a separate governmental entity, is not an Evans County employee within the meaning of OCGA § 50-14-3 (6).

On July 6, 1999, with the county attorney present, the Board again entered a closed session to discuss whether or not to pay Swain. Prior to entering the closed session, Chairman Todd announced: “So at this time we need to go into executive session to discuss personnel concerning the recreation department.” Again, Peace objected, arguing that Swain’s compensation was not a personnel matter, but a budget matter. Commissioner Moore agreed, pointing out that Swain’s compensation had “been noted in the budget.” At that point, Chairman Todd called for a five-minute break. During that break, a few of the commissioners spoke with the chairman, and, according to the county administrator, the chairman “may have taken some advice” on whether to close the meeting. Immediately after the break, and without any further discussion, the chairman called for a motion to go into closed session. A commissioner made the motion, it was seconded, and the public was ejected from the meeting. In an affidavit dated July 12, 1999, the Board stated that this meeting was closed for two reasons: to discuss a personnel matter involving a county employee and to discuss potential litigation with the county attorney. The affidavit was not recorded until August 3, 1999.

Based upon this evidence, the trial court concluded that the July 1 meeting was improperly closed in violation of the Act. The Board does not contest this. Also, the trial court found that the July 6 meeting was properly closed because even though Swain was not a county employee, the matter for discussion fell within the attorney-client exception, OCGA § 50-14-2 (1). The court determined that the “statements and circumstances surrounding [Swain’s] controversy, when reasonably evaluated, did in fact present a realistic threat of litigation.” The court denied the Enterprise’s remaining claims without discussion. Following a separate hearing on sanctions, the court awarded the Enterprise $1,500 in attorney fees and costs of litigation. Although the Enterprise asked for $9,699.88 in fees and costs, the court declined to award that much because it determined the Board did not act in “bad faith” in closing the July 1 meeting.

1. As a preliminary matter, the Board argues this appeal is moot because it sent the Enterprise a check for $1,500 to satisfy the award of attorney fees and the Enterprise cashed it. The Enterprise later renounced the payment and mailed the funds back to the county.

An appeal may be dismissed “[w]here the questions presented have become moot.” OCGA § 5-6-48 (b) (3). “[T]he voluntary payment of the judgment by an appellant renders moot the issues sought to be determined on appeal.” (Citations omitted; emphasis supplied.) Imperial Body Works v. Nat. Claims Svc., 158 Ga. App. 241, 243 (2) (279 SE2d 534) (1981). Of course, here, the appellee made the payment, not the appellant. The Board argues that the Enterprise’s acceptance of the $1,500 shows its implied acceptance of the attorney fees award. As we have held:

As a general rule, any voluntary act by a party, with knowledge of the facts, by which he expressly or impliedly recognizes the validity and correctness of a judgment against him, will operate as a waiver of his right to bring error to reverse it, as where he receives affirmative relief under the judgment or takes a position inconsistent with his right of review.

(Citations and punctuation omitted.) J & F Car Care Svc. v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504) (1983). On appeal, the Enterprise asserts that the attorney fees award was inadequate and contrary to law. Under these circumstances, accepting the $1,500 payment neither expressly nor impliedly recognizes the court’s “correctness” when an equally likely alternate inference exists: the Enterprise was accepting a partial payment. See Crawford v. Andrew Systems, 39 F3d 1151, 1153 (11th Cir. 1994). Further, the attorney fees issue is collateral to the main judgment appealed: whether the court erred in ruling that the July 6 meeting was properly closed. Consequently, the Enterprise’s acceptance of the attorney fees payment does not render the appeal moot.

2. The trial court found that the Board’s July 6 meeting was properly closed to discuss “potential litigation” under OCGA § 50-14-2, the attorney-client exception to the Open Meetings Act. The trial court held that Swain’s promise to “take all legal means necessary” to recover the money the county owed him constituted a “realistic threat of litigation” warranting a closed meeting under that Code section. We disagree.

The Georgia Open Meetings Act requires, except as otherwise provided by law, that “all meetings as defined in [OCGA § 50-14-1 (a) (2)] shall be open to the public.” OCGA § 50-14-1 (b). This provision applies to all governmental agencies, including every county and every county or municipal department, agency, board, bureau, commission, or authority. OCGA § 50-14-1 (a) (1) (B), (C). The Act applies to all “meetings” of such entities and defines meeting to include: “the gathering of a quorum of the members of the governing body of an agency or of any committee . . . at a designated time and place . . . at which official action is to be taken.” OCGA § 50-14-1 (a) (2). A government entity may close such a meeting only if a specific statutory exception applies. See OCGA §§ 50-14-2; 50-14-3; 50-14-4. The Open Meetings law “was enacted in the public interest to protect the public — both individuals and the public generally — from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail.” Atlanta Journal v. Hill, 257 Ga. 398, 399 (359 SE2d 913) (1987). To further this purpose, the Act, including its default position that meetings be open, must be construed broadly, and any exceptions to the Act, including those pertaining to closed meetings, must be narrowly construed. Id.; Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (3) (405 SE2d 655) (1991).

The attorney-client exception to the Act provides as follows:

(1) The attorney-client privilege recognized by state law to the extent that a meeting otherwise required to be open to the public under this chapter may be closed in order to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee or in which the agency or any officer or employee may be directly involved; provided, however, the meeting may not be closed for advice or consultation on whether to close a meeting; and (2) Those tax matters which are otherwise made confidential by state law.

(Emphasis supplied.) OCGA § 50-14-2.

In this case, Swain only threatened to sue. In our litigious society, a governmental agency always faces some threat of suit. To construe the term “potential litigation” to include an unrealized or idle threat of litigation would seriously undermine the purpose of the Act. Such a construction is overly broad. Construing OCGA § 50-14-2 (1) narrowly, we hold that a meeting may not be closed to discuss potential litigation under the attorney-client exception unless the governmental entity can show a realistic and tangible threat of legal action against it or its officer or employee, a threat that goes beyond a mere fear or suspicion of being sued. A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors which may include, but which are not limited to, (1) a formal demand letter or some comparable writing that presents the party’s claim and manifests a solemn intent to sue, see Bd. of Ed. v. Freedom of Information Comm., 217 Conn. 153, 160-163 (585 A2d 82, 86-87) (1991); (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims, see Sutter Sensible Planning v. Bd. of Supervisors, 122 Cal. App.3d 813, 825-826 (176 Cal. Rptr. 342, 349) (1981); or (3) proof that a party has both retained counsel with respect to the claim at issue and has expressed an intent to sue, see Star Tribune v. Bd. of Ed., 507 NW2d 869, 872 (Minn. App. 1993). This list is not intended to be exhaustive but merely illustrative of circumstances that a trial court may consider, in the exercise of its discretion, that take the threat of litigation out of the realm of “remote and speculative” and into the realm of “realistic and tangible.”

In this case, Swain had not hired a lawyer, sent a demand letter, filed a lawsuit, or undertaken any of the traditional steps leading up to litigation or to the formal assertion of his claim. Swain’s comment that he would use whatever legal means available to him was an idle threat, a statement that, standing alone, was insufficient to justify closing a meeting under OCGA § 50-14-2. Finally, although the Board contends the meeting was closed to discuss potential litigation, the record does not even support this claim. Instead, the real substance of the closed meeting was whether Swain had actually earned 30 years of accrued leave under current personnel policies. See Floyd County Bd. of Ed. v. Ratliff, 955 SW2d 921, 924 (Ky. 1997). For these reasons, we must reverse the court’s determination that the Board properly closed this meeting.

3. The Enterprise also contends that the Board violated the Act when it met privately through a series of telephone calls to change the announced reason for closing the July 1, 1999 meeting and when it deliberated during a five-minute break to determine whether to enter a closed session on July 6, 1999.

The record shows that the county administrator, after speaking with the chairman, contacted each member of the Board over a period of time to discuss amending the stated reasons for closing the July 1, 1999 meeting and that none of the members objected to the amendment. During the July 6 meeting, without any public deliberation or vote, the commissioner issued a statement announcing that “we,” the Board, erred in stating the reasons for closing the July 1 meeting. Implicit in this set of facts is that sometime before the call of the July 6 meeting, a quorum of the Board discussed official business and agreed to take official action. It is clear to us that because the Board engaged in a deliberative process and voted on official business, a “meeting,” as that term is used in common parlance, occurred. However, because that meeting did not fall within the Act’s definition of a meeting, the Board did not violate the letter of the law. The legislature has chosen to define a meeting as one which occurs “at a designated time and place.” OCGA § 50-14-1 (a) (2). Because this meeting occurred between the county administrator and the commissioners individually, over a period of time, and at no particular place, the trial court properly found that the Board did not violate the Act by conducting a closed meeting to amend its reason for closing the July 1 meeting.

This holding is not intended to imply that a telephonic meeting can never violate the Act. Although a meeting is required to be open only when a quorum of a governing body or its agents have gathered at a designated time and place to take official action, such a gathering can be realized through virtual as well as actual means. The quorum does not have to be gathered in a physical space. In this digital age, we recognize that meetings may be held in ways that were not contemplated when the Act was initially drafted. The General Assembly passed the Open Meetings Act to ensure that the people’s business is conducted in an open and accessible manner. The Act is construed broadly to ensure public access to and input into the deliberative process and to foster confidence in our leaders and the decisions they make. Thus, a “meeting,” within the definition of the Act, may be conducted by written, telephonic, electronic, wireless, or other virtual means. See, e.g., Del Papa v. Bd. of Regents, 114 Nev. 388, 391-392 (956 P2d 770, 773) (1998) (mail poll constituted a meeting); 1985 Nev. Op. Atty. Gen. 90 (presence may be actual or constructive). A designated place may be a postal, Internet, or telephonic address. A designated time may be the date upon which requested responses are due.

Further, the evidence adduced below was insufficient to show that the Board conducted a meeting in violation of the Act during the five-minute break on July 6. We feel compelled, though, to reiterate that the Act does not permit a meeting to “be closed for advice or consultation on whether to close a meeting.” OCGA § 50-14-2 (1). Moreover, the procedure that an agency must follow to close a meeting is plainly set out in OCGA § 50-14-4. Although we cannot determine if a closed meeting took place in this case to discuss whether to conduct a closed session, we do find that the testimony adduced reveals a cavalier attitude on this issue. For example, the county administrator testified that the Board did not have a public discussion on whether to go into closed session on July 6 because “we feel like we have a — an issue of [being] able to close a public meeting . . . and not let the public, you know, discourage you from what you feel is the right thing to do.” It does not logically follow that the decision to close a meeting should be made in private just because closing a meeting is the “right thing to do” or because the public is strongly encouraging a position or action the agency believes is ill-advised. The Act was intended to hold governmental agencies and their members accountable to the public for the decision to enter a closed session, no matter how vocal, annoying, or discouraging that public may be.

4. The Enterprise also claimed the Board’s affidavits pertaining to the closed sessions were insufficient and untimely filed. OCGA § 50-14-4 (b), which became effective on July 1, 1999, provides that when a meeting is closed, the chairperson “shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception.” Id. The official minutes must be recorded and made available for public inspection as soon as they are officially approved, “but in no case later than immediately following the next regular meeting of the agency.” OCGA § 50-14-1 (e)(2).

In this case, the Board executed form affidavits that simply said “the subject matter of the closed portion of the meeting was devoted to the following matter(s) within the exceptions provided in the open meetings law.” That statement was followed by a checklist of the four potentially applicable statutory exceptions. Although the use of such pre-printed, multi-choice form affidavits does not violate the Act, courts should review form affidavits with heightened scrutiny because they conveniently leave open the possibility that an affiant could check every box that might apply and later say, “I inadvertently checked the wrong exception.” An affidavit should be treated with more solemnity and care, especially one which is used to inform the public in compliance with the Open Meetings Act.

Although the affidavits are legally sufficient, it does not appear that the Board timely recorded the affidavit and minutes from the July 1 meeting. The affidavit must be filed with the official minutes. OCGA § 50-14-4 (b). The Board waited to record the minutes until August 3, 1999, even though a regularly scheduled meeting was held on July 6. The Board argues that they did not have to record the minutes until August 3, 1999, because the minutes were not “made official” until then. However, the Board fails to note that under the plain language of OCGA § 50-14-1 (e) (2), the minutes must be recorded as soon as they are made official, “but in no case later than immediately following the next regular meeting of the agency,” which, in this case, means the July 1 minutes must have been filed by July 6. (Emphasis supplied.) The fact that the Board argues it made its affidavit available to the Enterprise earlier than the official filing date is of no consequence. The Act requires that the minutes and affidavits be timely recorded and made open to public inspection so that the general public knows when and where to find an official accounting of the business that transpired. The trial court erred in failing to find that the Board’s failure to timely file the affidavit and minutes pertaining to the July 1 meeting constituted an additional violation of the Act.

5. The court found that the Board closed the July 1 meeting without “legal justification” and that an award of reasonable attorney fees and costs of litigation was authorized under OCGA § 50-14-5 (b). The court awarded $1,500 of the $9,699.88 requested because “[although the evidence shows there was no bad faith on the part of the Commission, the fact remains that the public was wrongfully excluded in violation of the law.” Because the trial court’s analysis of the attorney fees issue does not comport with that required in OCGA § 50-14-5 (b), we vacate the award and remand this case for proceedings on this issue consistent with this opinion.

A court must award attorney fees under OCGA § 50-14-5 (b) only if it finds that an agency acted “without substantial justification” in failing to comply with the Open Meetings Act.

In any action brought to enforce the provisions of this chapter in which the court determines that an agency acted without substantial justification in not complying with this chapter, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney’s fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

Decided June 6, 2001.

Glen A. Cheney, for appellant.

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellee.

(Emphasis supplied.) OCGA § 50-14-5 (b).

It appears the court below awarded fees simply because the Board was in violation of the Act and then reduced the award based upon a finding of a lack of bad faith on the Board’s part. Upon remand, in determining whether to award fees, the court must first consider whether the Board’s noncompliance with the Act was without, or “lacked,” substantial justification. “Lacked substantial justification” has been defined in the attorney fees context as “substantially frivolous, substantially groundless, or substantially vexatious.” See OCGA §§ 9-15-14 (b); 9-15-15 (a); 43-1-19 (f); Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (2) (512 SE2d 347) (1999). If the court determines the Board’s noncompliance with the Act lacked substantial justification, it must award fees. The court may then reduce or eliminate the award completely, however, upon a finding of special circumstances that would, in the exercise of the court’s discretion, justify such a decision.

Judgment affirmed in part, reversed in part and remanded with direction.

Johnson, P. J., and Ruffin, J., concur.

       OCGA § 50-18-73 (b), a comparable attorney fees provision in the Open Records Act, did at one time permit an award of fees to the prevailing party for noncompliance with its provisions. Ga. L. 1982, p. 1791, § 1. However, the legislature has since retreated from that position in both the Open Records Act (OCGA § 50-18-73 (b)) and the Open Meetings Act (OCGA § 50-14-5 (b)), at first mandating an award of fees where noncompliance was “completely without merit as to law or fact.” Ga. L. 1988, p. 241, § 1; Ga. L. 1988, p. 250, § 4. Then, in 1992, the legislature modified both statutes to mandate fees only where the noncompliance was without substantial justification. Ga. L. 1992, p. 1063, § 4; Ga. L. 1992, p. 1067, § 9.


author: Blackburn, Chief Judge.

text:
    A01A0283.
    GARY v. STATE OF GEORGIA.
    (549 SE2d 826)
   Blackburn, Chief Judge.

Following a bench trial in a civil forfeiture proceeding, the court determined that a Ford F-250 wrecker and $2,164 in U. S. currency were forfeited to the State. The trial court, however, enjoined the State from enforcing the judgment until completion of the appellate process. Kirby Gary filed this appeal to contest the legality of the search of his truck during which plastic bags containing 68.4 grams of methamphetamines were discovered. For the reasons set forth below, we affirm.

In a civil forfeiture proceeding, the trial court sits as the trier of fact, and its findings will not be disturbed if there is any evidence to support them. See OCGA § 16-13-49 (o) (5), (p) (6); Lyon v. State of Ga. In this case, the evidence established that, while conducting a routine DUI/license checkpoint, police officers observed a white wrecker suddenly veer off into a private driveway located just short of the roadblock. According to Sergeant D. G. Thomas, as he heard a vehicle approaching and looked over to his left, “all of a sudden, it slammed on its brakes and made an abrupt stop. You could hear — I mean, it was obvious he was making a hard stop and turned into a driveway.” Deputy Sheriff Thomas Trudnak also saw the truck turn “sharply” and “very abruptly” into a driveway. From where he was standing, Trudnak was able to see that the driver did not use a turn signal and that the rear of the car being towed did not have any tow lights affixed. Based on his opinion that the wrecker was trying to avoid the traffic checkpoint, Trudnak decided to investigate further. After requesting to see Gary’s driver’s license and insurance card, Trudnak asked Gary why he had turned into the driveway. Gary said that he was going to see his father-in-law, who, in fact, lived there. After verifying Gary’s license, Trudnak called dispatch to check the insurance information because neither the wrecker nor Gary’s name appeared on the insurance card. Trudnak noticed that Gary seemed “very nervous” and acted like his truck was a “hot potato.” Trudnak explained, that in his experience, when a vehicle contains contraband, drivers will distance themselves from that vehicle and seem to want to disown it. Trudnak noted that Gary would neither look at his truck nor go near it. Although he had never previously met Gary, Trudnak testified that a week earlier, a confidential informant had “fingered Gary as the person supplying the drugs.” Based on his personal observations of Gary’s conduct, as well as all the information he had, Trudnak “suspected that something was wrong.”

After issuing a traffic citation, Trudnak asked Gary if he “would have a problem with me searching his vehicle.” When Gary refused to consent to a search, Trudnak’s supervising officer, Sergeant Thomas, called a nearby K-9 officer to the scene. Almost immediately, the drug dog alerted on the driver’s side door of the wrecker. A total of approximately 15 to 20 minutes had elapsed from the arrival of Trudnak to the arrival of the K-9 unit. After watching the dog give a positive alert, Sergeant Thomas informed Gary that his truck would have to be searched. Behind the driver’s seat was a black nylon bag containing methamphetamines. Investigators also discovered $2,164 in cash in Gary’s wallet.

1. Gary contends that the trial court erred by failing to conclude that the warrantless detention and search of his vehicle were impermissibly and unreasonably expanded without probable cause and without articulable suspicion.

To justify additional questioning of a driver and the search of a vehicle following a routine traffic stop, an officer must have reasonable suspicion of criminal conduct. Parker v. State. In order to meet the “reasonable suspicion” standard, an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Id. at 618. “Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.” State v. Causey. While this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination. See Parker, supra.

Here, uniformed officers manning a checkpoint observed a driver suddenly brake and turn his vehicle into a driveway just short of their checkpoint. Prior to the abrupt turn, the driver had not used a turn signal, and his rear vehicle lacked tow lights. After witnessing these traffic violations, Deputy Trudnak was plainly authorized to stop Gary. See Buffington v. State. Subsequently, during the investigatory stop, Trudnak noticed Gary’s nervousness. In addition, Trudnak knew that a confidential informant recently had identified Gary as a supplier of methamphetamines. Collectively, these facts, including Gary’s apparent effort to avoid the checkpoint, formed a sufficient, reasonable basis for Trudnak to believe that Gary was transporting illegal drugs or was otherwise engaged in criminal conduct of some sort that would warrant further investigation. See State of Ga. v. Montford. The period of detention while waiting for the drug dog was minimal. The officers were authorized to walk the drug dog around Gary’s truck to see whether the dog detected the odor of drugs. Edwards v. State.

Decided June 6, 2001.

Daniels & Rothman, Jeffery A. Rothman, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

2. Gary contends that the trial court erred in determining that based on the totality of the circumstances, probable cause existed to search his vehicle. On the contrary, the drug dog’s alert to the exterior of the vehicle established probable cause to search the truck. Roundtree v. State.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

        Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).

        State v. Causey, 246 Ga. App. 829, 831 (1) (540 SE2d 696) (2000).

        Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997).

        State of Ga. v. Montford, 217 Ga. App. 339, 340-341 (1) (457 SE2d 229) (1995).

        Edwards v. State, 239 Ga. App. 44, 46 (1) (518 SE2d 426) (1999).

        Roundtree v. State, 213 Ga. App. 793, 794-795 (446 SE2d 204) (1994).


text:
    A01A0303.
    COOPER v. THE STATE.
    (549 SE2d 829)
   Ellington, Judge.

A Fulton County jury convicted Kenneth Cooper of three violations of the Georgia Controlled Substances Act, OCGA § 16-13-30 et seq. Cooper filed a motion for new trial, as well as two amendments to the motion. As amended, the motion raised 14 alleged errors, including the trial court’s denial of various evidentiary motions, a motion for severance, and a motion for a directed verdict. The trial court scheduled a motion hearing for 9:30 a.m. on June 13, 2000. At 9:30 a.m. on the day of the hearing, trial counsel called the court and stated that he was running late and would be in court within ten minutes. After ten minutes, the trial court stated that it had reviewed the motion for new trial and the transcript, determined that the motion lacked merit, and denied the motion without conducting a hearing. The trial court’s order denying the motion addressed only the sufficiency of the evidence to support one of the charges. Cooper appeals from the trial court’s order, raising nine enumerations of error, including the trial court’s failure to conduct a hearing on his motion for new trial.

Although a party has a right to a hearing on his motion for new trial, this Court previously has held that a party desiring a hearing must affirmatively request one. OCGA § 5-5-40 (e); Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996). Pretermitting whether Cooper’s motion could be construed as a request for a motion hearing, however, the record clearly demonstrates that a hearing was, in fact, scheduled. Cooper was entitled to rely on this fact and was relieved of any additional need to formally request a motion hearing. Further, there was no evidence in the record to indicate Cooper waived or abandoned his right to a motion hearing. Cf. Wilkins v. State, 220 Ga. App. at 518 (3). Under these circumstances, the trial court’s failure to conduct a hearing on Cooper’s motion for new trial was error. We vacate the trial court’s order and remand this case for a hearing on the merits of Cooper’s motion for new trial.

Decided June 6, 2001.

Lagrant Anthony, Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, Advera A. Wheeler, Bettieanne C. Hart, Myrlin Earle, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

Johnson, P. J., and Ruffin, J., concur.

       In its responsive brief to this Court, the State concedes that Cooper is entitled to a hearing on his motion for new trial.


author: Smith, Presiding Judge.

text:
    A01A0728.
    REEVES v. SANDERLIN AGRICULTURAL SERVICES, INC.
    (549 SE2d 837)
   Smith, Presiding Judge.

C. Eugene Reeves appeals from the trial court’s denial of his motion to enjoin foreclosure proceedings brought by Sanderlin Agricultural Services, Inc. against property owned by Reeves after Reeves defaulted on a debt. The debt was secured by two parcels of property, one owned by Reeves and a smaller parcel owned by Reeves’s daughter, Tina Palmer, who voluntarily quitclaimed her parcel to Sanderlin. Reeves contends the debt was extinguished prior to foreclosure under the doctrine of merger of estates by the voluntary surrender of his daughter’s property. We agree with the trial court that the debt was not entirely extinguished when Palmer quit-claimed the property to Sanderlin. We therefore affirm the judgment below.

The record shows that in April 1993, Reeves borrowed $66,426.23 from Sanderlin and secured the debt with a 59.76-acre tract he owned. The note was renewed in 1996, by which time the debt was $360,598.61. That note was secured by the original 59.76-acre tract, crops grown on two other tracts, and a security deed to the five-acre tract Reeves had given to his daughter, Palmer, who had a home on it.

In December 1997, Sanderlin threatened to foreclose on the Palmer property, and Palmer executed a quitclaim deed to the property to Sanderlin, which Sanderlin accepted. In August 1999, Sanderlin sued Reeves on the note, alleging that he had defaulted on the note and the remaining balance due was $150,000 plus interest. Reeves was not present in Georgia, and he was served by publication. A default judgment was entered against Reeves on December 2, 1999. When Sanderlin began the process of foreclosing on Reeves’s 59.76-acre property, Reeves filed a motion to enjoin the foreclosure.

Reeves invokes the doctrine of merger of estates, which is codified at OCGA § 44-6-2. The statute provides: “If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.” Reeves relies upon Pitts Banking Co. v. Fenn, 160 Ga. 854 (129 SE 105) (1925) for his argument that when a merger of estates takes place, both the mortgage or security deed and the debt on which it is founded are extinguished. Id. at 854 (1). But Pitts Banking is distinguishable from this case. Pitts Banking involved a purchase money mortgage, and only one piece of property was given as collateral for the debt.

Moreover, Pitts Banking also holds that a lesser estate does not merge in the greater

when it appears that the holder of both intended that a merger should not take place. The intent controls. [Cit.] Such intention sometimes expressly appears from the writings. ... If such intention does not expressly appear from the writings, then it must be shown by aliunde proof. If two estates in the same property unite in the same person in the same capacity, and it is contended that no merger took place, the person making such contention, if entitled [to do so], must allege and prove facts negativing the existence of such merger. [Cits.]

Id.

While it is a general rule of law that when two estates in the same property unite in the same person in his individual capacity, the lesser estate is merged in the greater . . . , in equity there are exceptions to this rule. One of the exceptions is that the lesser is not merged in the greater when it appears that the person in whom the two estates meet intends that it shall not take place. . . . Wherever a merger will operate inequitably, it will be prevented. The controlling consideration is the intention, express or implied, of the person in whom the estates unite, provided the intention is just and fair, and a merger will not be permitted contrary to such intent. Where there is no expression of intention, it will be sought for in all the circumstances of the transaction, and may be gathered not only from the acts and declarations of the owner of the several independent rights, but from a view of the situation as affecting his interests. . . . The doctrine of merger of estates is designed primarily for the benefit of one who acquires an interest in the property greater than he possessed in the first instance, and will not be held to apply against his will to his disadvantage.

(Citations and punctuation omitted.) Fraser v. Martin, 195 Ga. 683, 687 (1) (25 SE2d 307) (1943).

It seems axiomatic that when more than one parcel is given as collateral, it is because each parcel individually is insufficient to secure the entire amount owed. It follows that unless a clear intent to the contrary is expressed, the existence of more than one piece of collateral is in itself evidence that the parties did not intend for the debt to be extinguished upon the foreclosure or voluntary surrender of less than all the collateral. In this case, the intention to preserve the debt after giving proper credit for the Palmer property is clear not only on Sanderlin’s part, but also on the part of Reeves. After his daughter surrendered her property, Reeves acknowledged the remaining debt. He also made a substantial payment on the remaining debt a year later. This was evidence that both Sanderlin and Reeves did not intend for the underlying debt to be extinguished when the Palmer property was quitclaimed. The debt was therefore not completely extinguished when Reeves’s daughter voluntarily surrendered her property, although credit was given on the debt. Because the debt still existed, and Reeves’s property secured that debt, the trial court did not err in denying Reeves’s motion to enjoin the foreclosure.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

Decided June 6, 2001.

Ellis, Gatewood, Skipper & Farr, George R. Ellis, Jr., for appellant.

Harper & Barnes, John V. Harper, for appellee.

       Reeves filed his appeal in the Supreme Court, which transferred it to this court, noting that any equitable issues are ancillary to those purely legal.

       The motion was joined with a motion to set aside the judgment for failure to personally serve Reeves, but that was denied and is not being appealed.


author: Andrews, Presiding Judge.

text:
    A01A0655.
    CALDWELL v. THE STATE.
    (549 SE2d 449)
   Andrews, Presiding Judge.

Kendall Caldwell appeals from the judgment of conviction entered on jury verdicts finding him guilty of two counts of aggravated assault and two counts of trafficking in cocaine. We find no error and affirm the judgment of conviction.

Caldwell was jointly indicted and tried with co-defendant Jason Tillman on charges that, during an attempted drug deal at Caldwell’s house involving over 200 grams of cocaine, Caldwell and Tillman assaulted and shot co-defendant Maurice Montgomery. Both counts of aggravated assault and one of the trafficking counts arose from those charges. The second trafficking count arose from charges that Caldwell and Tillman were jointly in possession of over 400 grams of cocaine found at a hotel room rented by Tillman.

In support of the two counts of aggravated assault and the trafficking count that occurred at Caldwell’s house, the State produced direct and circumstantial evidence showing that Montgomery went to Caldwell’s house to participate in a drug deal for over 200 grams of cocaine, but, during the course of the attempted deal, a fight erupted in which Caldwell and Tillman physically beat, pistol whipped, and shot Montgomery. Testimony from Caldwell’s neighbors established that, shortly after Montgomery arrived at Caldwell’s house wearing a black leather jacket, gunfire sounded from inside the house. After the gunfire, neighbors saw Montgomery trying to jump out a window and saw Caldwell and Tillman leave the house and drive off in separate cars. One of the neighbors testified that Montgomery appeared at his front door bleeding and wearing only boxer shorts and one shoe and pounded on the door attempting to get inside.

Police responded to 911 calls from the neighbors reporting the gunfire and describing the suspects and the cars they were driving. Based on the descriptions provided, police stopped Caldwell and Tillman as they were driving from the scene. Tillman’s clothing was bloody, and a handgun was found in the car he was driving. Caldwell also had blood on his clothing, and a spent shell casing fell out of his clothing when he exited the car. Caldwell had over $3,000 in cash on his person. Montgomery was found inside a neighbor’s house where he had forced entry and was lying inside bleeding from a gunshot wound to his leg and other wounds to his head and arms.

When Tillman was stopped, he told police that the incident was about “some dope” and said they would find a black leather jacket with drugs in it at Caldwell’s house. At Caldwell’s house police found blood splattered around the house, bloody pants, a bloody t-shirt, and a bloody black leather jacket. When an officer picked up the jacket, a bag containing a substance suspected to be cocaine fell out of the jacket. The substance was weighed and tested at the Georgia State Crime Lab and found to be 247.9 grams of a substance containing 61 percent cocaine.

Montgomery testified for the State that, after he arrived at Caldwell’s house, Caldwell accused him of stealing cocaine and a fight erupted. He said that Caldwell and Tillman beat him and ripped off his clothes and that Caldwell shot him in the leg.

The State also presented evidence in support of the second trafficking count charging that Caldwell had possession of over 400 grams of cocaine located in a room at the Guest House Inn which was rented by Tillman. When they were arrested, both Caldwell and Tillman were carrying card keys to Room 320 at the Guest House Inn. Police searched the room pursuant to a search warrant and found over 400 grams of a substance suspected to be cocaine along with cutting material for cocaine, thrée sets of electronic scales, plastic bags, and several guns. The substance was weighed and tested at the State Crime Lab and found to be over 400 grams of a substance containing at least 70 percent cocaine.

As similar transaction evidence, the State proved that Caldwell had a previous conviction under the Georgia Controlled Substances Act involving cocaine. Caldwell testified and denied that he was in possession of any of the cocaine. He claimed that Montgomery attacked him and that he shot Montgomery in self-defense. On cross-examination the State used Caldwell’s prior statement to the police to impeach him and show that he told police he had been selling cocaine for Montgomery and was keeping the cocaine at the room rented by Tillman at the Guest House Inn.

1. Caldwell does not contest the sufficiency of the evidence. Nevertheless, to the extent the State relied on circumstantial evidence, the evidence was sufficient to exclude every reasonable hypothesis save that of Caldwell’s guilt. OCGA § 24-4-6. The evidence both direct and circumstantial was sufficient to allow a reasonable trier of fact to find Caldwell guilty of the offenses for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Caldwell contends that, contrary to the requirements of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), the police obtained his pretrial custodial statement by continuing to interrogate him after he asked for his lawyer and that the trial court erred by denying his motion to suppress the statement.

When Caldwell was taken into custody and informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), including his right to counsel and to have counsel present during questioning, he told the police officer that he wanted to speak with his lawyer. At that point the officer stopped asking questions, informed Caldwell of the charges, and told him if he wanted to change his mind and give a statement, that was up to him. In response, Caldwell told the officer that he had changed his mind and wanted to give a statement. The officer reread Caldwell his Miranda rights, and Caldwell waived those rights and responded to questions posed by the officer.

Under Edwards v. Arizona, once an accused being held in custody requests counsel pursuant to Miranda, all police interrogation must stop and may not resume without counsel present, unless the accused initiates further conversation with the police and voluntarily waives the invoked right. Bailey v. State, 273 Ga. 303, 305 (540 SE2d 202) (2001); Connerly v. State, 207 Ga. App. 498, 499 (428 SE2d 408) (1993). Caldwell clearly invoked his right to counsel during the questioning. The issue is whether the subsequent questioning was the proper result of a conversation initiated by Caldwell or whether the officer improperly continued to interrogate Caldwell after he invoked the right to counsel. The State contends that after Caldwell invoked the right to counsel the officer ceased all questioning and that informing Caldwell of the charges against him and telling him he could change his mind and give a statement if he chose to do so were not a form of continued interrogation.

We agree with the State. Only words or actions that the police should have known were likely to elicit an incriminating response constitute interrogation. Shields v. State, 269 Ga. 177, 179 (496 SE2d 719) (1998); Walton v. State, 267 Ga. 713, 717-718 (482 SE2d 330) (1997); compare Allen v. State, 259 Ga. 63, 67 (377 SE2d 150) (1989). None of the statements made by the officer immediately after Caldwell invoked the right to counsel can be construed as interrogation under this standard. Caldwell initiated further conversation with the officer and waived the right he had invoked. Byrd v. State, 261 Ga. 202, 203 (403 SE2d 38) (1991). The trial court did not err by refusing to suppress the statement on this ground.

3. Caldwell also contends his statement was improperly induced by hope of a lighter sentence in violation of OCGA § 24-3-50 and that the trial court erred by denying his suppression motion on this ground.

The transcript of Caldwell’s recorded statement shows that the questioning officer urged Caldwell to tell the truth if he wanted “[the officer] to be in a position to do anything to say that you cooperated. . . .” The officer said he was “the one who would put in a word for you,” that “you can still help yourself... by telling us the truth,” and that “we can put you in touch with other people you can talk to that might be willing to help you . . . like [the Georgia Bureau of Investigation].” When Caldwell asked what the GBI could do for him, the officer said that he could not speak for the GBI.

Urging Caldwell to tell the truth did not create a hope of a lighter sentence or any other hope of benefit in violation of OCGA § 24-3-50. Lee v. State, 270 Ga. 798, 800 (514 SE2d 1) (1999). Although the hope of a lighter punishment is a “hope of benefit” to which OCGA § 24-3-50 refers, none of the officer’s additional statements to Caldwell amounted to a promise or statement that he would receive a lighter sentence if he told the truth. State v. Roberts, 273 Ga. 514, 516-517 (543 SE2d 725) (2001); compare State v. Ray, 272 Ga. 450, 452 (531 SE2d 705) (2000) and Turner v. State, 203 Ga. 770, 771 (48 SE2d 522) (1948). The trial court did not err by refusing to suppress the statement on this basis.

4. Contrary to Caldwell’s contention, the trial court did not err by denying his motion to suppress the key to the Guest House Inn room where police found over 400 grams of cocaine.

The key was found in Caldwell’s wallet after he was arrested during a standard inventory of his personal effects and was properly admitted into evidence. Loden v. State, 199 Ga. App. 683, 687-688 (406 SE2d 103) (1991).

5. Caldwell contends the trial court abused its discretion by refusing to allow him to pose a general question to the entire jury panel on voir dire as to whether anyone on the panel had ever been treated for any type of mental illness.

Whether a potential juror is competent to serve because of mental illness is a proper inquiry on voir dire. OCGA § 15-12-163 (b) (3); Najmaister v. State, 196 Ga. App. 345, 346 (396 SE2d 71) (1990). However, the fact that a person has been treated for mental illness does not render that person incompetent to serve as a juror. Bolick v. State, 244 Ga. App. 567, 570 (536 SE2d 242) (2000). Although the trial court prohibited the proposed general question to the entire panel, the record shows that the court agreed that defense counsel had the right during individual questioning to explore any concerns which might arise regarding the mental health of a potential juror. See Tucker v. State, 249 Ga. 323, 326-328 (290 SE2d 97) (1982).

The “scope of voir dire and the propriety of particular questions are left to the sound discretion of the trial court. . . .” Pace v. State, 271 Ga. 829, 836 (14) (524 SE2d 490) (1999). There is no evidence that the procedure adopted by the trial court prevented defense counsel from showing that a potential juror was incompetent to serve because of mental illness. We find no abuse of discretion.

6. There is no merit to Caldwell’s contention that the trial court improperly limited his cross-examination of a police officer.

The trial court refused to allow defense counsel to cross-examine a police officer on issues which had already been decided by the court in a ruling on Caldwell’s pretrial motion to suppress. Even if, as defense counsel claimed, he was attempting to develop new facts relating to the motion to suppress, this was not an issue for consideration by the jury which had no role in deciding factual issues for the motion to suppress. Bassford v. State, 192 Ga. App. 690 (386 SE2d 738) (1989). If defense counsel had new evidence to offer on the motion to suppress, he should have moved for the trial court to reconsider the motion and accept the new evidence outside the presence of the jury. Pickens v. State, 225 Ga. App. 792, 795-796 (484 SE2d 731) (1997); Chastain v. State, 158 Ga. App. 654 (281 SE2d 627) (1981).

7. The trial court did not err by allowing the State to use Caldwell’s statement to police to impeach him on cross-examination.

Defense counsel made repeated general objections that the State was not using the statement for purposes of impeaching Caldwell, apparently claiming that Caldwell had not given any testimony that was inconsistent with the statement. To the contrary, the record shows that Caldwell’s testimony was inconsistent with his prior statement on numerous points. For example, in his statement Caldwell admitted to police that he took cocaine to the Guest House Inn room where police found over 400 grams of cocaine, but at trial Caldwell said that he could not remember doing so, that he had only a vague memory of the hotel room, and that he had no knowledge of any cocaine at the hotel room. There was no error in allowing the State to impeach Caldwell with his prior inconsistent statement. Duckworth v. State, 268 Ga. 566, 567-569 (492 SE2d 201) (1997).

Decided May 16, 2001

Reconsideration denied June 7, 2001 —

Robert L. Mack, Jr., for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

8. Caldwell claims the trial court erred in admitting his prior drug conviction as similar transaction evidence because, instead of presenting testimonial evidence at the similar transaction hearing, the State relied on the prosecutor’s representations as to the evidence.

Since this objection was not raised in the trial court, it presents nothing for appellate review. Buckner v. State, 219 Ga. App. 71, 73 (464 SE2d 11) (1995). Nevertheless, it was not improper for the trial court to conduct the similar transaction hearing by allowing the prosecutor to state the evidence in her place rather than requiring production of testimonial evidence. Talmadge v. State, 236 Ga. App. 454, 457-458 (512 SE2d 329) (1999).

9. Caldwell waived his claim that the trial court’s contemporaneous limiting instruction on the similar transaction evidence was erroneous because no objection was made at trial. Jones v. State, 243 Ga. App. 374, 377 (533 SE2d 437) (2000).

10. Caldwell’s claim that the indictment against him was defective as to form was also waived because he failed to file a written pretrial objection raising this claim. Selley v. State, 237 Ga. App. 47, 50-51 (514 SE2d 706) (1999).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       Guilty verdicts on two additional counts of possession of cocaine were merged into the guilty verdicts on the traffic counts.

       Montgomery was charged in the same indictment with trafficking in cocaine, tried separately after his severance motion was granted, and found guilty. He subsequently testified for the State in the case against Caldwell and Tillman under a grant of use immunity. See OCGA § 24-9-28. Montgomery’s conviction was affirmed on appeal in Montgomery v. State, 249 Ga. App. 777 (549 SE2d 463) (2001).

       The State used portions of the statement on cross-examination of Caldwell to impeach him. The statement was admissible for impeachment purposes even if it was obtained in violation of Edwards v. Arizona. Hicks v. State, 256 Ga. 266, 268 (347 SE2d 589) (1986). However, as the trial court instructed the jury, the statement could be considered not only for impeachment purposes but as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). Accordingly, consideration of Caldwell’s Edwards v. Arizona claim is relevant to whether the statement was admissible as substantive evidence.


text:
    A01A0726.
    In the Interest of W. P. H., a child.
    (549 SE2d 513)
   Andrews, Presiding Judge.

The mother of a minor child appeals from a juvenile court order finding: (1) that her child, W. P. H., is deprived, and (2) ordering disposition by transferring temporary legal custody of the child to the child’s paternal grandmother. We conclude the evidence was sufficient to support the court’s finding that the child was deprived and affirm that portion of the order. We vacate and remand the disposition portion of the order, however, because it fails to include a finding of fact as to reasonable efforts made to preserve and reunify the family and lacks any provision specifying conditions for retransferring custody of the child to the mother.

1. Contrary to the mother’s contention, we conclude there was clear and convincing evidence to support the juvenile court’s finding that W. P. H. is a deprived child as defined by OCGA § 15-11-2 (8) (A). In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982); OCGA § 15-11-56 (a), (b) (1).

The definition of a deprived child, under OCGA § 15-11-2 (8) (A), focuses upon the child’s needs — not parental fault. The controlling factor is whether the child is provided with proper parental care or control or other care or control necessary for the child’s physical, mental, or emotional health or morals. Resolution of this issue is for the juvenile court. It is this Court’s duty to review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child. This Court neither weighs the evidence nor determines the credibility of witnesses. We instead defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations omitted.) In the Interest of D. A., 240 Ga. App. 561, 562 (524 SE2d 248) (1999). Furthermore, deprivation is established by showing parental unfitness upon “either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Punctuation omitted.) In the Interest of U. B., 246 Ga. App. 328 (1) (540 SE2d 278) (2000).

The child’s paternal grandmother brought the petition in this case alleging that the two-year-old child is deprived and seeking legal custody. See OCGA § 15-11-38. The record shows that the child’s father is presently incarcerated and unable to care for the child or provide for the child’s needs. The juvenile court found that evidence presented at the hearing established the following facts.

The mother has left the child to be cared for by various caretakers including the paternal and maternal grandmothers, and the child has lived most of his life with these various caretakers instead of with the mother. The child resided in the paternal grandmother’s home during the entire summer of 1999 and from January 2000 until the time of the hearing in this case in August 2000. During the latter period, the mother would see the child for a couple of hours on weekdays, but the child spent every night with the grandmother. The mother, who lived with her mother at the time, sometimes visited with the child on weekends, but not regularly. The child became seriously ill during this time and was cared for by the paternal grandmother. When the grandmother took the child to the doctor, the mother failed to respond to her request that she meet her at the doctor’s office. At least since January 2000, the paternal grandmother has provided for the child’s care and subsistence, and the mother has offered no assistance to the grandmother. On one occasion when the child’s father refused to allow the mother to take the child from the grandmother’s house, the mother took the child with the aid of a police officer, only to return the child to the grandmother a few days later.

Based on these facts, the juvenile court concluded that the child is deprived and that the mother’s actions during the child’s entire life, and particularly during the last seven months, showed a lack of commitment to provide proper parental care or control necessary for the day-to-day well-being of the child. We agree and conclude these facts, which are supported by the record, provide clear and convincing evidence that the child is deprived and that the deprivation was caused by the mother’s lack of fitness in neglecting or being incapable of caring for the child.

2. The mother is correct, however, in pointing out that the disposition portion of the order fails to comply with statutory requirements.

Having found the child is deprived, the juvenile court was authorized to transfer temporary legal custody of the child to the paternal grandmother or to another qualified person or entity pursuant to the provisions of OCGA § 15-11-55 (a). In fact, the court made the finding required by OCGA § 15-11-58 (a) that continuing custody in the mother would be contrary to the welfare of the child. However, the court did not address two other related statutory requirements.

Under OCGA § 15-11-55 (a) (2), the court was required to include in the conditions and limitations of the temporary transfer of custody, “a provision that the court shall approve or direct the retransfer of the physical custody of the child back to the parents, guardian, or other custodian either upon the occurrence of specified circumstances or in the discretion of the court.” Furthermore, OCGA § 15-11-58 (a) (2) requires that, except in circumstances not applicable here, “reasonable efforts shall be made to preserve and reunify families: (A) Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and (B) To make it possible for a child to return safely to the child’s home.” Accordingly, OCGA § 15-11-58 (a) provides that a disposition order transferring temporary legal custody of the child from the child’s parents shall determine as a finding of fact whether such reasonable efforts were made by the Division of Family & Children Services of the Department of Human Resources and any other appropriate agencies.

Decided May 24, 2001

Reconsideration denied June 7,2001.

Coppedge & Leman, David L. McGuffey, for appellant.

Waycaster, Morris, Johnson & Dean, Marcus R. Morris, Cynthia N. Johnson, for appellee.

Because the court’s order fails to address these statutory requirements, the disposition portion of the order is vacated, and the case is remanded to the juvenile court for consideration of these requirements in the disposition of the deprived child.

Judgment affirmed in part, vacated in part and case remanded.

Eldridge and Miller, JJ, concur.


author: Eldridge, Judge.

text:
    A01A0756.
    KENT v. A. O. WHITE, JR., CONSULTING ENGINEER, P.C.
    (553 SE2d 1)
   Eldridge, Judge.

In Kent v. A. O. White, Jr., Consulting Engineer, P.C., 238 Ga. App. 792, 796 (7) (520 SE2d 481) (1999) (“Kent v. White”) (see this case for facts), this Court held: “The judgment is affirmed in part as to the breach of contract and interest awards. It is also affirmed as to the findings of liability for fraud, punitive damages, and attorney fees. The judgment is reversed in part and the case remanded as to amount of the damages for fraud, attorney fees, and punitive damages.” Kent now seeks on this appeal to reverse the retrial of the damages on three grounds: (1) that the trial court erred in reading to the jury a portion of the opinion in explaining and limiting the issues that they were to decide on the retrial; (2) that the trial court erred in entering judgment on the punitive damages award; and (3) that the trial court erred by entering judgment on the attorney fees award. The instruction to the jury limiting the issues for jury determination as described by this Court in its opinion was not error. This Court previously held that Kent was liable in some amount of punitive damages, which is conclusive of the issue of liability for punitive damages in some amount and cannot be relitigated. We returned the case for jury determination of the amount of punitive damages to be awarded in the enlightened conscience of fair and impartial jurors. Also, this Court held that Kent was liable for attorney fees; the evidence supported the amount of attorney fees awarded on retrial of this issue, as was found in the first trial. We affirm the judgment of the trial court.

1. In this case, this Court on remand restricted the issues for jury determination to damages on retrial, because the affirmance of the judgment finding liability drastically restricted the issues for jury determination on subsequent retrial to damages only. Kent v. White, supra at 796.

Under the law of the case, neither Kent nor the jury could revisit the issues of liability for damages for fraud, punitive damages, or attorney fees; this is what the trial court properly instructed the jury using our opinion from the first appearance of this case before us. Crowell v. City of Eastman, 187 Ga. App. 891, 892 (1) (371 SE2d 667) (1988); see also Intl. Indem. Co. v. Robinson, 231 Ga. App. 236, 237 (2) (498 SE2d 795) (1998); Lowman v. Advanced Drainage Systems, 228 Ga. App. 182,183-184 (491 SE2d 427) (1997); Palm Restaurant of Ga. v. Prakas, 192 Ga. App. 74, 76 (383 SE2d 584) (1989); Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (299 SE2d 390) (1982). To charge the jury on the law, and even the facts, as affirmed on appeal is not reversible error where such facts have been precluded from relitigation under the law of the case.

Hudson v. Hudson, 90 Ga. 581, 587 (3) (16 SE 349) (1892), is distinguishable on the law and facts from this case; therefore, the case does not control. “Whenever it is necessary for this court to allude to or comment upon the facts of a case, we do so as they appear in the record then before us, but in another investigation the evidence may be, and often is, entirely different, and the case may present quite another complexion.” Id. The law of the case froze the facts as to liability as tried in the first trial, and for this reason, the trial court so charged the new jury as to these fixed, previously determined facts so that they would not be retried by this jury. In Hudson, the issue of law disapproved by the Supreme Court was that the trial lawyer read the law and facts from an opinion to the jury, because the jury was to receive the law exclusively from the trial court. In this case, the trial court read the law and facts to the jury from this Court’s prior opinion as determined applicable for this case and, thus, limited and defined this jury’s special duties and responsibility on retrial of damage issues only. The reading from this Court’s opinion defined for the jury what their limited role would be and did not involve facts that they were to decide in this new trial, which was unlike the situation in Hudson.

Similarly, Allen v. Hiwassee Land Co., 172 Ga. App. 814 (1) (324 SE2d 742) (1984), has no application to the facts of this case pertaining to liability, because unlike that case, which was tried de novo, in this case the charge went only to issues of fact and law that could not be tried again by this jury, i.e., matters that were the law of the case, because the findings of liability by the prior jury had been affirmed on appeal and had become the law of the case. Thus, the verdict of the prior jury resulting in a judgment of liability was affirmed by this Court as a matter of law.

2. Kent contends that the judgment for punitive damages was error for several reasons: it was excessive; it was a double recovery of damages in both tort and contract; and plaintiff made an election between contract damages and tort damages.

(a) OCGA § 51-12-5.1 made the standard of proof in cases for punitive damages clear and convincing evidence for determination of whether or not punitive damages in a case are appropriate prior to the determination of the amount of such damages in a bifurcated proceeding with the jury; the right to a bifurcated hearing separately on the appropriateness of punitive damages from aggravating circumstances and on the amount of damages is waived if the case goes to verdict without such procedure being followed, because such bifurcation is for the protection of the defendant. See OCGA § 51-12-5.1 (b), (d); Ga. L. 1987, p. 915, § 5; Martin v. Williams, 215 Ga. App. 649, 651 (2) (451 SE2d 822) (1994); MultiMedia WMAZ v. Kubach, 212 Ga. App. 707, 711 (3) (443 SE2d 491) (1994). Thus, the law of the case governs the issue of sufficiency of the evidence for the award of punitive damages, and this Court held that in this case the award of punitive damages was appropriate in an amount to be determined by a jury.

In such cases the award is not measured as compensation, but is fixed in an amount necessary to deter future acts. The rule which requires the amount of punitive damages to evidence a reasonable proportion to the extent of the injury applies to exemplary damages for wounded feelings. The amount, as measured by the enlightened conscience of an impartial jury, which would be required to deter future acts necessarily depends upon the facts of the particular case.

(Citations, punctuation and emphasis omitted.) Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 341 (7) (319 SE2d 470) (1984). In this case, the evidence showed that Kent had repeated the identical tortious conduct in the same case subsequently with another expert witness, Brown. The evidence was sufficient to support punitive damages in such amount. Id.

It is . . . true in considering excessiveness that an appellate court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses has approved the verdiet, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. The excessiveness of the verdict was raised below on motion for new trial and overruled by the judge who had presided over the trial. . . . And the Court trying the case, must receive more light on the question of excessive damages, than it can impart to any other Court. Considering all of the circumstances in this case, we do not find the trial court erred in declining to find the verdict excessive.

(Citations and punctuation omitted.) Id. at 341-342 (7).

(b) Kent complains that the amount of the punitive damages bears no proportionality to the fraud damages; however, the jury returned fraud damages in the amount of $18,407.75, which the trial court wrote off, and punitive damages of $750,000, which the trial court reduced to the statutory maximum of $250,000.

Kent relies upon Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) (1988). First, such case arose in 1982 and was decided prior to the 1987 amendment so that the law is not the same as applied here. Ga. L. 1987, p. 915, § 5. Secondly, the opinion was rendered by a divided majority of four, who concurred in the judgment only, because a three-judge opinion was joined by a special concurrence in the judgment only to create the majority, while three judges dissented; therefore, the opinion has physical precedence only. See Art. VI, Sec. VI, Par. VI of the Ga. Const, of 1983; Grantham Transfer Co. v. Hawes, 225 Ga. 436, 439 (2) (169 SE2d 290) (1969); McCurry v. McCurry, 223 Ga. 334 (155 SE2d 378) (1967); Southern R. Co. v. Parker, 194 Ga. 94, 102 (2) (21 SE2d 94) (1942); Supreme Court Rule 58. “Although it is true that the punitive damage award here is approximately 45.5 times higher than the actual damage award, punitive damages may be given even where recoverable, actual damages are small, and the amount of the punitive damage award is exclusively a question for the jury to determine.” (Citation and punctuation omitted.) McClure v. Gower, 259 Ga. 678, 684 (4) (385 SE2d 271) (1989); see also Tyler v. Lincoln, 272 Ga. 118, 121 (1) (527 SE2d 180) (2000).

This Court, after noting that the law of punitive damages had changed by statute from the purpose to compensate to deterrence and that it did not matter if punitive damages are disproportionate to the property damage, held:

Compelling punitive damage awards to be mathematically proportionate, except when given to compensate for wounded feelings, would create a judicial barrier to the achievement of these clear and legitimate legislative purposes. The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.

(Citation, punctuation and emphasis omitted.) Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301 (4) (b) (436 SE2d 14) (1993); see also Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991); Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989); Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 885 (8) (447 SE2d 302) (1994); Clarke v. Cotton, 207 Ga. App. 883-884 (1) (429 SE2d 291) (1993).

(c) The trial court eliminated the possibility of a double recovery for the same damages both in contract and fraud by setting off the contract damages against the fraud damages. Generally, “the election of remedies should occur before judgment is rendered [;] there is no reversible error in failing to require the plaintiff to do so where there is no risk of double recovery.” Efstathiou v. Reiss, 227 Ga. App. 735, 739 (10) (490 SE2d 426) (1997); see also All Risk Ins. Agency v. Belk, 191 Ga. App. 576-577 (1) (382 SE2d 361) (1989). This is not a case in which the plaintiff failed to prove damages for fraud; in fact, plaintiff proved damages resulting from the fraud, which were special damages identical to the special damages for breach of contract, which the trial court wrote off to prevent a double recovery. The jury returned a verdict for special damages arising from the fraud which were identical to the damages already recovered for breach of contract. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 322 (8) (291 SE2d 238) (1982).

However, Kent failed to preserve the issue of election of remedies prior to judgment between contract and tort damages and cannot do so for the first time on appeal now and has not pointed to that portion of the record demonstrating where such objection was made and ruled upon by the trial court. See Nairon v. Land, 242 Ga. App. 259, 261 (3) (529 SE2d 390) (2000); Mazdak Auto Towing &c. v. MidContinental Group, 231 Ga. App. 859, 860 (1) (501 SE2d 44) (1998); Long v. Marion, 182 Ga. App. 361, 362-363 (1) (355 SE2d 711) (1987).

3. Kent seeks to attack the award of attorney fees on the same basis that he attacks punitive damages, i.e., the fact that the trial court, on retrial, set off the fraud damages against the earlier award of contract damages so that there were tort damages awarded to support expenses of litigation. Under OCGA § 13-6-11, the same bad faith to establish fraud also establishes bad faith in a breach of contract action. See Ryland Group v. Daley, 245 Ga. App. 496, 499-500 (3) (537 SE2d 732) (2000). However, this Court sent back for reconsideration the award of attorney fees, because “the attorney fees award may have also been related to the fraud award,” which would require the retrial of such damages as well and not whether or not Kent was liable for such damages. Kent v. White, supra at 794. As a matter of law and fact, this Court determined that under either contract or tort theories, Kent was liable for attorney fees in some amount. Under the law of the case, it did not matter whether the attorney fees were recovered under a tort theory or a contract theory, because this Court had held such damages were recoverable and left open only the determination of how much. Id. Even under this state of the law and facts, the jury returned a verdict for fraud damages, which was sufficient to support the award of attorney fees. See Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 712 (2) (507 SE2d 493) (1998); Hines v. Good Housekeeping Shop, supra at 321-322. Here, plaintiff received a verdict for special damages for fraud, but the trial court set such damages off against the earlier award of contract damages for the same special damages.

Decided May 24, 2001

Reconsideration denied June 7, 2001

Christopher J. McFadden, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, for appellee.

This issue is controlled by Divisions 1 and 2, because Kent did not preserve the issue of election of remedies prior to entry of judgment, and we are governed by the law of the case as determined in Kent v. White, supra at 794.

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.


author: Johnson, Presiding Judge.

text:
    A01A0060.
    DRY STORAGE CORPORATION et al. v. PISCOPO.
    (550 SE2d 419)
   Johnson, Presiding Judge.

In May 1996, Tracy Piscopo was injured when the vehicle he was riding in was hit from behind by a vehicle driven by an employee of Dry Storage Corporation. Piscopo filed a claim for, and ultimately received, workers’ compensation benefits from his own employer. He began a course of treatment, primarily chiropractic, for a slipped disc in his back.

In January 1997, Piscopo’s chiropractor released him to perform light duty work. Piscopo’s employer made light duty work available. And Piscopo returned to work, but only for one day.

In February 1997, a doctor evaluated Piscopo on behalf of the workers’ compensation carrier. The doctor concluded that Piscopo’s back injuries were actually related to an injury that he had suffered in 1989 and thus pre-dated the 1996 accident. The doctor further concluded that Piscopo’s complaints of pain were inconsistent with the medical findings of his condition. The doctor therefore recommended that Piscopo be released to unrestricted activities with no further medication or treatment.

On March 9, 1997, less than a month after that independent medical evaluation, and more than nine months after the motor vehicle accident, Piscopo made a videotape of himself explaining to his family why he wanted to commit suicide and how his property was to be distributed after his death. On the tape, he said that he could no longer live with the pain and that he knew what he was about to do was a sin. Immediately after making the videotape, Piscopo killed himself.

His mother, Martha Piscopo, sued Dry Storage and Genesis Insurance Company, alleging that they are liable for her son’s wrongful death. Dry Storage and Genesis moved for summary judgment on the ground that the accident did not cause the suicide, which was an unforeseeable intervening act for which Dry Storage and Genesis cannot be held liable. In response to the motion, Martha Piscopo filed the affidavit of a psychologist who, based in part upon his review of Tracy Piscopo’s medical records and the videotape, opined that Tracy Piscopo killed himself because he was overwhelmingly depressed and angry about his injuries from the accident. The trial court found that this affidavit created a genuine issue of material fact as to whether the accident had caused the suicide and therefore denied the summary judgment motion.

Dry Storage and Genesis applied to this court for interlocutory review of the trial court’s denial of their summary judgment motion. We granted the application. Because the trial court erred in finding that there is a triable issue of fact, we reverse the court’s denial of Dry Storage’s and Genesis’ summary judgment motion.

The operative question for us is whether the motor vehicle accident was the proximate cause of Piscopo’s suicide or whether the suicide was an unforeseeable act that was not caused by the accident. As a matter of law, we must conclude that the accident was not the proximate cause of Piscopo’s taking of his own life.

It is true that on the videotape Piscopo makes an apparent connection between the accident and his suicide by stating that he can no longer live with the pain that he attributes to the accident. In spite of that connection, from a legal point of view, proximate cause means that the suicide must have been a foreseeable result of the negligence of the tortfeasor. “ ‘[N]egligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience.’ ”

Generally, suicide is an unforeseeable intervening cause of death which absolves the tortfeasor of liability. Although, there is an exception to this general rule: Where the tortfeasor’s wrongful act causes the injured party to kill himself during a rage or frenzy, or in response to an uncontrollable impulse, the wrongful act is considered to be the proximate cause of the suicide.

In the instant case, contrary to the trial court’s ruling, this exception does not apply. There is no evidence that Piscopo was in a rage or frenzy or had an uncontrollable impulse, when he committed suicide. Having studied the videotape, we understand how the psychologist determined that Piscopo was depressed and angry. His pain — whether physical, psychological or emotional — is obvious, and he does attribute his pain to the accident. But it is also apparent on the tape that Piscopo was calm and deliberate. He was not enraged, frenzied or under an uncontrollable impulse. On the contrary, he appears to have been in control of himself and to have known exactly what he was doing. Even though the psychologist’s affidavit states that Piscopo was depressed and angry, it does not provide that Piscopo killed himself some nine months after the accident due to a rage, frenzy or uncontrollable impulse caused by the accident.

We accordingly hold that the suicide was an unforeseeable intervening act for which Dry Storage and Genesis are not liable. Because there are no genuine issues of material fact on the issue of whether the traffic accident caused the unforeseeable intervening suicide, the trial court erred in denying Dry Storage’s and Genesis’ motion for summary judgment.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

Decided June 7, 2001.

Gorby, Reeves, Peters & Burns, Michael S. Reeves, Christine A. Carson, for appellants.

Drew, Eckl & Farnham, Katherine D. Dixon, Stephen W. Nicholas, Joe A. Weeks, for appellee.

       Martha Piscopo also filed the affidavit of a counselor who gave his opinion of Tracy Piscopo’s mental state, but the trial court struck this affidavit as being beyond the scope of the counselor’s expertise.

        Morris v. Baxter, 225 Ga. App. 186, 187 (483 SE2d 650) (1997).

        Appling v. Jones, 115 Ga. App. 301, 303 (1) (154 SE2d 406) (1967).

       Id. at 303.

       See Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (3) (305 SE2d 183) (1983).