text:
    A91A0110.
    WILLIAMS v. THE STATE.
    (406 SE2d 498)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment with one count of armed robbery, two counts of kidnapping, two counts of aggravated assault and five counts of possession of a firearm during the commission of a crime. The case was tried before a jury and the victim’s testimony revealed the following:

During the evening of January 27, 1990, defendant approached the victim in the parking lot of a convenience store as the victim and the victim’s four-year-old daughter were entering a pick-up truck. Defendant “tapped [the victim] on the shoulder and said hey. [The vietim] turned around and [saw that defendant] had a gun. . . .” The victim also noticed an unidentified accomplice standing at the front of the truck and he appeared to be “watching guard.” Defendant covered the victim’s mouth and ordered her to give up her “purse” and “to scoot over and let him in.” The victim gave defendant her purse, but refused him entrance to the truck. Defendant “pointed the gun at [the victim’s daughter] and . . . told [the victim that] he was fixing to kill her if [the victim] didn’t scoot on over and let him in.” The victim resisted and defendant “started hitting [the victim] with the gun.” Defendant’s accomplice then approached defendant and “said come on, man, don’t do her like that [and] he pushed him away from her and was kind of cussing at him.” A car then drove into the convenience store parking lot and defendant and the accomplice fled.

Defendant testified and admitted that he was at the crime scene when the victim was assaulted, but denied participation in the crime. More specifically, defendant testified that he heard the victim’s screams; that he walked to the front of the victim’s truck and that he saw his brother assaulting the victim. Defendant explained that he “grabbed” his brother’s arm in an attempt to break off the assault; that his brother “pushed” him away and that he then “walked away.”

Defendant was found guilty of armed robbery and not guilty on the remaining counts of the indictment. One of the counts of possession of a firearm during the commission of a crime had been dismissed. This appeal followed. Held:

1. Defendant first contends the trial court erred in denying his motion for directed verdict and his motion for mistrial, arguing the State’s closing argument led to the erroneous conclusion that defendant could be found guilty on facts not alleged in the indictment. More specifically, defendant asserts the State argued that defendant is guilty as either the actual perpetrator (the assailant) or as an aider and abettor to the crimes charged and contends the argument that defendant is guilty as an aider and abettor is at odds with the charge that defendant was the actual perpetrator of the armed robbery.

“In the absence of a transcript, we cannot consider enumerations of error concerning the evidence or proceedings at trial. Dean v. State, 188 Ga. App. 128 (372 SE2d 286) (1988).” Hasty v. State, 195 Ga. App. 427 (394 SE2d 800). In the case sub judice, there is no transcript or stipulation supporting defendant’s assertion that the State commented during closing argument that defendant is guilty as either the actual perpetrator (the assailant) or as an aider and abettor to the crimes charged. See Sizemore v. State, 195 Ga. App. 548 (395 SE2d 669). This enumeration therefore presents nothing for review. Nonetheless, we have considered defendant’s contention and find it to be without merit.

“ ‘Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he: . . . (3) (i)ntentionally aids or abets in the commission of the crime. . . .’ OCGA § 16-2-20 (Code Ann. § 26-801).” Carter v. State, 168 Ga. App. 177 (3), 178 (308 SE2d 438). In the case sub judice, the evidence authorized findings that defendant was either the assailant or the assailant’s accomplice. These circumstances support an argument that defendant was either the assailant or an aider and abettor to the crimes charged and that defendant would be guilty of committing the crimes under either circumstance. George v. State, 175 Ga. App. 229, 230 (3), 231 (333 SE2d 141); Jenkins v. State, 172 Ga. App. 715, 716 (4) (324 SE2d 491); Carter v. State, 168 Ga. App. 177 (3), supra. The trial court did not err in denying defendant’s motion for a directed verdict of acquittal and his motion for mistrial.

Decided May 28, 1991

Rehearing denied June 20, 1991

Blackburn, Bright & Edwards, J. Converse Bright, James G. Tunison, Jr., for appellant.

H. Lamar Cole, District Attorney, Catherine H. Helms, Brad-field M. Shealy, Assistant District Attorneys, for appellee.

2. In his second and third enumerations, defendant contends the trial court’s charge on parties to the crime, i.e., that defendant could be found guilty as an aider and abettor under OCGA § 16-2-20, is not supported by the evidence and is inconsistent with the allegation that defendant was the actual perpetrator (the assailant) of the armed robbery. This contention is without merit for the reasons stated in Division 1 of this opinion.

3. Defendant contends the trial court erred in denying his motion for mistrial after the State’s “burden shifting” closing argument, i.e., “You’ve heard from the defendant, what he had to say. You haven’t heard from any other witness. You haven’t heard any corroboration.”

We do not view the State’s comment as burden shifting, nor are the remarks an impermissible comment on defendant’s failure to testify. McGee v. State, 260 Ga. 178, 179 (4) (391 SE2d 400). “We view the remarks to be a permissible comment on defendant’s failure to adduce evidence rebutting the State’s evidence. Stephens v. State, 185 Ga. App. 825, 826 (3) (366 SE2d 211); Gardner v. State, 172 Ga. App. 677, 681 (10) (324 SE2d 535).” Griffin v. State, 191 Ga. App. 302, 304 (4) (381 SE2d 562). This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Sognier, Chief Judge,

license: Public Domain

text:
    A91A0415.
    TAYLOR v. ATLANTA CENTER LIMITED et al.
    (406 SE2d 506)
   McMurray, Presiding Judge.

Betty L. Taylor brought the instant action against Atlanta Center Limited, a Georgia Limited Partnership, d/b/a Atlanta Hilton and Towers (“Atlanta Center”) and others and alleged that she sustained serious injuries at defendant Atlanta Center’s hotel as a result of a failure to exercise the requisite degree of care and skill in keeping the hotel premises safe. More specifically, Betty L. Taylor, plaintiff, alleged that on January 1, 1986, she was seriously injured at defendant’s hotel when an inebriated hotel patron “threw or dropped a broom from the seventeenth floor of the atrium within the hotel which struck plaintiff in the head and shoulders as she stood in the hotel lobby with her husband.” Defendant Atlanta Center answered and admitted that “[o]n January 1, 1986, [David] O’Hare, while an occupant of the Atlanta Hilton and Towers, threw or dropped a broom from the seventeenth floor of the atrium within the hotel which struck plaintiff in the head and shoulders as she stood in the hotel lobby with her husband,” but denied the remaining material allegations of the complaint. Defendant Atlanta Center later filed a motion for summary judgment. The undisputed evidence reveals the following:

Plaintiff and her husband checked into defendant Atlanta Center’s downtown Atlanta hotel during the afternoon of December 31, 1985. At about 6:30 that evening, plaintiff left the hotel premises with her husband and another couple to attend a New Year’s eve dinner, dance and breakfast at the “Shrine Temple” on “Ponce de Leon.” Plaintiff and her husband returned to the hotel with the other couple at about 1:30 in the morning on January 1, 1986. The hotel lobby was then “crowded, [i.e., there were] lots of bodies just kind of jammed up against each other.” Plaintiff and the other couple made their way to an area in the hotel lobby near an elevator and waited while plaintiff’s husband made arrangements to park the car. Plaintiff’s husband soon joined his wife and the other couple in the hotel lobby and, within moments after his arrival, an object struck plaintiff’s head and “stunned” her. Plaintiff “grabbed” her bleeding head and became unsteady on her feet. Plaintiff’s husband then “sat [plaintiff] down on some steps in the lobby ...” and hotel security personnel approached plaintiff and attempted to comfort her. Plaintiff then heard a hotel security officer say, “ ‘she’s got to go to the hospital.’ ” Plaintiff was later taken to the hospital and treated for injuries.

The trial court granted defendant Atlanta Center’s motion for summary judgment and this appeal followed. Held:

Plaintiff contends the trial court erred in granting defendant’s motion for summary judgment, arguing that genuine issues of material fact remain as to the foreseeability of the dangerous/criminal conduct which caused her injuries. However, defendant argues that it is insulated from liability because plaintiff’s injuries were the result of an unforeseeable intervening criminal act.

“Although a business proprietor is not an insurer of the safety of its patrons, Washington Rd. Properties v. Stark, 178 Ga. App. 180, 181 (342 SE2d 327) (1986), a proprietor ‘has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct.’ Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 (165 SE2d 179) (1968). However, ‘unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor’s premises do not activate liability by the proprietor . . . (unless) it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur. (Cit.)’ Fowler v. Robertson, 178 Ga. App. 703, 704 (344 SE2d 425) (1986). ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.” (Cit.)’ Shockley, supra at 675 (1).” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69 (1 a) (378 SE2d 323).

In the case sub judice, there was no conclusive evidence that plaintiff’s injuries were not a foreseeable consequence of the New Year’s gathering at defendant’s hotel on January 1, 1986. On the contrary, there is evidence indicating that defendant is aware of greater danger to hotel patrons during New Year’s celebrations, e.g., there was evidence that defendant’s policy is to increase hotel security on New Year’s eve and that violent criminal acts had occurred at defendant’s hotel during another occasion in the early morning hours of New Year’s day, 1983.

“ ‘ “To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.” (Cit.)’ (Emphasis omitted.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (271 SE2d 1) (1980); Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986).” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (2) (392 SE2d 535).

In the case sub judice, defendant Atlanta Center failed to negate at least one essential element of plaintiff’s claim, i.e., that defendant failed to exercise the requisite degree of care and skill in keeping its hotel premises safe. Consequently genuine issues of material fact remain as to the foreseeability of the criminal conduct which caused plaintiff’s injuries and as to the adequacy and non-negligent utilization of defendant’s security. The trial court erred in granting defendant’s motion for summary judgment. See Atlanta Center Ltd. (A.B.V.I. Corp.) v. Cox, 178 Ga. App. 184 (341 SE2d 15). Compare Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69 (1, a and b), supra, where this Court held that the ordinary duty to protect business invitees from dangerous conduct of others does not require the proprietor to intervene to save a business invitee from an unforeseeable assault arising from the assailant’s personal malice toward the victim.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur specially.

Sognier, Chief Judge,

concurring specially.

Although I agree with the result reached by the majority, I cannot agree completely with the analysis therein, and write specially to set forth my reasons.

Appellant’s claim against appellee is premised on appellee’s alleged negligence in failing to protect appellant, an invitee, from a criminal assault occurring on appellee’s premises. Thus, appellee may be liable to appellant either if it had reasonable cause to believe such a criminal act would occur, or if it undertook to provide security but failed to discharge that duty with reasonable care. See Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (386 SE2d 415) (1989); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69-72 (1) (378 SE2d 323) (1989). To meet its burden as the defendant-movant on summary judgment, appellee was required to pierce an essential element of appellant’s claim for negligence. Since there is no evidence that appellant relied on protection from the security guards present in the hotel or that any guard increased the risk of harm to her, appellee has rebutted any claim of negligent provision of security. See Grandma’s Biscuits, supra at 818 (2); Adler’s, supra at 70-72 (1) (b).

The remaining basis for appellee’s liability, if any, arises from its responsibility as a proprietor to protect its patrons from reasonably foreseeable dangers. I agree that the statement of law quoted by the majority from Adler’s, supra at 69 (1) (a) concerning a proprietor’s liability for acts mala in se sets forth the law pertinent to this case, but I cannot agree with the majority’s application of the cited principles to the facts herein. “While the relevancy of other occurrences is ordinarily within the sound discretion of the court, it is necessary that the conditions of the things compared be substantially similar. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. To establish the existence of a dangerous condition at one place, it is generally not permissible to show conditions at other places [on the premises].” (Citations and punctuation omitted.) Cooper v. Baldwin County School Dist., 193 Ga. App. 13, 14 (386 SE2d 896) (1989). Accordingly, to pierce the remaining allegation of failure to protect against a dangerous condition known to exist, appellee was required to establish that no substantially similar incidents had occurred in the several years prior to the occurrence at issue. A general awareness of prior violent acts occurring elsewhere on the property under circumstances different from those at issue — e.g., evidence of prior assaults on patrons in their rooms or in the elevators — would not be sufficient to put appellee on notice of the danger to patrons from objects thrown from balconies. See Grandma’s Biscuits, supra at 817 (1); Nalle v. Quality Inn, 183 Ga. App. 119 (358 SE2d 281) (1987).

In support of its motion, appellee submitted the April 1989 deposition of its current director of security, Salvatore Caccavale, who testified that the hotel had experienced no other incidents of objects being dropped from balconies onto hotel patrons during his tenure. Caccavale, however, was not employed as security director until several months after appellant was injured. Appellee also proffered the 1984 affidavit testimony of Warren Beckham, the previous security director, but his affidavit detailed only the violent injuries to patrons that had occurred prior to January 1, 1983, which was three years before the incident at issue. Although Caccavale did testify that Beckham had told him there were no similar incidents or injuries prior to Caccavale’s tenure, that hearsay testimony is insufficient to demonstrate the absence of a genuine issue of material fact. See Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983). Accordingly, in the absence of testimony based on personal knowledge or properly authenticated hotel records indicating there had been no substantially similar incidents so as to place appellee on notice of the risk, I conclude the trial court erred by granting summary judgment to appellee. See id.

Decided May 30, 1991

Rehearing denied June 20, 1991

McNally, Fox, Mahler & Cameron, Patrick J. Fox, Philip P. Grant, for appellant.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., J. Wayne Pierce, for appellees.

David O’Hare, pro se.

I am authorized to state that Judge Andrews joins in this special concurrence.

       The only evidence of defendant’s hotel security measures is the deposition of a security director who was not employed at the hotel when plaintiff was injured and an affidavit of a security director who was in charge of defendant’s hotel security on January 1, 1983. These witnesses indicated no firsthand knowledge of the circumstances surrounding plaintiff’s injuries and no knowledge of hotel security during the 1986 New Year’s celebration. In fact, other than nonprobative hearsay in plaintiffs deposition, there is little evidence regarding the environment at defendant’s hotel on the night of plaintiffs injuries and no evidence regarding the circumstances surrounding the incident which led to plaintiffs injuries.

       Where security is provided in common areas of a hotel, the proprietor, “having undertaken that very duty, [is] required to perform it in a non-negligent manner. See Shirley Cloak &c. Co. v. Arnold, 92 Ga. App. 885, 892 (90 SE2d 622) (1955); Mixon v. Dobbs House, 149 Ga. App. 481, 483-484 (254 SE2d 864) (1979); Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 755 (266 SE2d 531) (1980); Cunningham v. Nat. Suc. Indus., 174 Ga. App. 832, 834-839 (331 SE2d 899) (1985).” Atlanta Center Ltd. (A.B.V.I. Corp.) v. Cox, 178 Ga. App. 184, 185 (341 SE2d 15).


author: McMurray, Presiding Judge.

text:
    A91A0440.
    AUSTIN v. THE STATE.
    (406 SE2d 500)
   McMurray, Presiding Judge.

Via accusation, couched in two counts, defendant was charged with driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and driving with unlawful alcohol concentration in violation of OCGA § 40-6-391 (a) (4). The jury returned a verdict of guilty on each count of the accusation but sentence was imposed on Count 2 only. This appeal followed the denial of defendant’s motion for a new trial. Held:

1. The arresting law enforcement officer testified that he responded to an accident call and came upon defendant’s vehicle “in the eastbound lane of traffic, facing westbound.” Defendant was outside of the vehicle, “changing his tire.” The officer detected a “pretty strong” odor of alcohol on the person of defendant. He observed that defendant’s eyes were “glassy and bloodshot,” his clothing was “soiled and messy,” and his demeanor was “combative.” Responding to the officer’s questions, defendant stated that “as he was operating his car he had a blowout which caused him to veer off the road, spun him around and that’s why he was changing his tire.” Defendant was unable to successfully perform field sobriety tests administered by the officer. Accordingly, the officer placed defendant under arrest. Following his arrest, defendant told the officer that “his car went into a puddle because it was raining that day. His car drove into a puddle where he lost control and it pulled his vehicle off the side of the road striking the curb.” Based on the mud on defendant’s tires and the skid marks on the grass, the officer opined that defendant’s vehicle had been driven shortly before he arrived at the scene. A breath test subsequently administered to defendant by another officer showed defendant’s alcohol concentration to be .18 grams.

The evidence was more than sufficient to show that defendant was guilty of driving a motor vehicle with an unlawful alcohol concentration in violation of OCGA § 40-6-391 (a).(4) beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). “Circumstantial evidence may be sufficient to authorize a finding that a defendant accused of driving a motor vehicle under the influence of intoxicants was guilty of the offense although no witness testified positively to having seen him operating the vehicle. Where a police officer comes upon a defendant standing beside his wrecked automobile which has skidded off the road and into a ditch, who admits he was the driver of the vehicle, is unsteady on his feet, talks incoherently, is unable to explain the details of the single-vehicle accident, and reeks of alcohol, such testimony is sufficient to support the conclusion that the defendant was driving while intoxicated. [Cits.]” Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60). Enumerations of error 5, 6, 9, 10 and 11 are without merit.

2. Defendant contends the trial court erred in refusing to exclude two inculpatory statements which the prosecution failed to deliver pursuant to OCGA § 17-7-210. The statements, made by defendant to the arresting officer, are set forth in Division 1.

We find no reversible error. The first statement was noncustodial and, therefore, it was not discoverable under OCGA § 17-7-210. Johnson v. State, 177 Ga. App. 705 (1) (340 SE2d 662). See Jordan v. State, 166 Ga. App. 417, 419 (2) (304 SE2d 522). Insofar as the second statement was inculpatory (in that it showed defendant operated the vehicle), it was merely cumulative of the first statement and cannot be said to have been harmful. Adams v. State, 190 Ga. App. 393, 396 (3) (379 SE2d 205). Enumerations of error 1 and 2 are without merit.

3. The trial court gave defense counsel an opportunity to interview the arresting officer prior to trial. Defendant complains that the trial court only permitted his counsel to interview the officer for five minutes in the presence of the assistant solicitor. Defendant’s complaint lacks substance. Assuming, arguendo, defendant was entitled to interview the officer, the trial court did not place a time limit on the interview. It advised defense counsel to “let [the trial court] know when you have talked enough.” Insofar as the assistant solicitor’s presence is concerned, the trial court directed “the officer not to be influenced by the presence of [the assistant solicitor] in any way. . . . He is just listening.” We fail to see how defendant was harmed (and defendant has not offered any suggestions of harm) in this regard. The third enumeration of error is meritless.

Decided May 28, 1991

Rehearing denied June 20, 1991

Richardson, Chenggis & Constantinides, George G. Chenggis, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, K. Eric Morrow, Assistant Solicitors, for appellee.

4. In his fourth enumeration of error, defendant contends his custodial statement should have been excluded because it was made in the absence of a Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) warning. This contention is without merit. Defendant objected to the introduction of his custodial statement on the ground that the State failed to provide the statement pursuant to OCGA § 17-7-210. Defendant did not urge the exclusion of his statement on constitutional grounds. He cannot assert such grounds on appeal. Mallory v. State, 230 Ga. 657, 658 (198 SE2d 677); Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891).

5. The trial court’s charge was clear, complete, apt and adjusted to the evidence. Enumerations of error 7, 8, and 12 are without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0456.
    BOWDISH v. JOHNS CREEK ASSOCIATES et al.
    (406 SE2d 502)
   McMurray, Presiding Judge.

Plaintiff Bowdish is a homebuilder. In 1986 plaintiff purchased five building lots in Stonehaven subdivision from defendant Johns Creek Associates for the purpose of constructing homes for sale thereon. As a condition of the purchase contracts for the lots, plaintiff was required to list the houses he constructed for sale with defendant Hyde Park Realtors. Plaintiff constructed five homes in the subdivision but sold none, resulting in foreclosure and other judgments against plaintiff.

Plaintiff filed this action for damages against defendants Johns Creek Associates, Hyde Park Realtors, both partnerships, and Chakrabandhu, a natural person who is a partner in each of the other defendants. The three counts of the complaint stated claims predicated on theories of breach of contract, negligence, and fraud. The breach of contract claim was resolved by the trial court’s grant of summary judgment in favor of the defendants. The negligence claim is predicated on the failure of Johns Creek Associates to properly maintain the subdivision or construct certain amenities and an entrance wall in a timely fashion, and on the failure of Hyde Park Realtors to properly market the subdivision or the homes constructed by plaintiff. The fraud claim is predicated on the misrepresentations concerning when an entrance wall and amenities for the subdivision, such as a clubhouse, swimming pool and tennis courts, would be constructed. Plaintiff attributed the failure to achieve sales of the homes he constructed and consequential collapse of his homebuilding business to the alleged wrongful acts of defendants.

Upon the trial of the case, at the close of plaintiff’s evidence and again at the close of all the evidence, defendants moved for a directed verdict and the trial court reserved ruling thereon until after the jury returned a verdict. The jury’s verdict awarded to plaintiff general damages of $305,000 and punitive damages of $250,000. Whereupon, the trial court granted defendants’ motion for a directed verdict as to the two remaining counts and judgment was entered in favor of defendants. Plaintiff appeals from the grant of defendants’ motion for directed verdict. Held:

1. Defendants’ motion to dismiss the appeal, predicated on plaintiff’s failure to strictly comply with the rules of this court, is denied.

2. “In Georgia, the standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. Speir v. Williams, 146 Ga. App. 880 (247 SE2d 549) (1978).” Department of Human Resources v. Montgomery, 248 Ga. 465, 466 (284 SE2d 263). “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50. ... In reviewing grant of a directed verdict . . ., we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981).” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554).

3. “ ‘ “It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. (Cits.) But in such cases the injury to the plaintiff has been ‘an independent injury over and above the mere disappointment of plaintiff’s hope to receive (the) contracted-for benefit.’ (Cit.) . . . ‘The duty, for a breach of which an action ex delicto lies, must be a duty imposed by law as to some relationship, general or special, as applied to that class of cases where the alleged duty arises out of a contract. For instance, if one promises to pay another a given sum of money by a named day, the contract creates a duty to pay; but a breach of that duty is not a tort.’ ” ’ Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123, 124-125 (253 SE2d 775) (1979).” Keys v. Enrichment Svcs. Program, 183 Ga. App. 8, 9-10 (357 SE2d 852). “We recognize the sound legal basis for the claim that ‘a single act or course of conduct may constitute not only a breach of contract but an independent tort as well. . . .’ Orkin Exter minating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587). However, this maxim is but one leg of a legal triad and cannot stand alone. The second portion of this trio is that a contractual violation is a tort only ‘ “if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.” ’ Travelers Ins. Co. v. King, 160 Ga. App. 473, 475 (287 SE2d 381).” Adair v. Baker Bros., 185 Ga. App. 807 (366 SE2d 164). See also Church v. SMS Enterprises, 186 Ga. App. 791, 793 (368 SE2d 554); Long v. Jim Letts Oldsmobile, 135 Ga. App. 293, 294 (2) (217 SE2d 602); Mauldin v. Sheffer, 113 Ga. App. 874, 878-880 (150 SE2d 150); and Leonard v. Firemen’s Ins. Co. of Newark, 100 Ga. App. 434, 436 (111 SE2d 773).

We find no evidence authorizing a judgment in favor of plaintiff on his negligence claim. While the contracts between the parties may be construed to contain implied duties on the part of defendants to expend and devote resources, for the purpose of maintaining, improving, and marketing the Stonehaven subdivision, the evidence shows, at most, simply failure to provide sufficient assets for these purposes. Such a breach of a promise to allocate resources to a business project is not a tort. Nor do we find any support for plaintiff’s contention that defendants violated various provisions of OCGA § 43-40-25 governing unfair trade practices by real estate brokers or salespersons.

4. Plaintiff’s fraud claim was predicated on alleged misrepresentation concerning future construction of amenities and an entrance wall for the subdivision. “ ‘While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, (the promisor) knows that the future event will not take place.’ Hayes v. Hallmark Apts., 232 Ga. 307, 308 (207 SE2d 197). ‘A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.’ Middlebrooks v. Lonas, 246 Ga. 720, 721 (272 SE2d 687).” Rogers v. deMonteguin, 193 Ga. App. 480, 481-482 (1) (388 SE2d 10).

Plaintiff testified that Hyde Park Realtors represented Johns Creek Associates as sales agent in regard to the sale of the building lots to him, and that Sparks, a Hyde Park Realtors partner and broker, had initially represented to him that construction of the amenities would begin as soon as the first houses were begun. After he had bought the lots, plaintiff was told that the amenities would be completed in the spring of 1987 and later told that construction would begin on the amenities in the spring of 1987. In fact, construction on the amenities did not begin until December of 1987, after plaintiff’s houses had been foreclosed and the ownership of the subdivision transferred. Plaintiff further testified that the amenity package was important to his decision to purchase the building lots since in his experience the presence of such facilities is necessary to the marketing of the homes constructed in the subdivision.

There was evidence that the financing acquired by Johns Creek Associates for Stonehaven subdivision did not include provision for funds for construction of the amenities at the subdivision. Sparks denied making any representation to plaintiff concerning when the amenities would be constructed and testified that he told the builders that there would be amenities which would be constructed as soon as the plans were ready and the money in place and permits obtained. Defendant Chakrabandhu testified that he was the developer of Stonehaven subdivision, that he had not authorized any statements by Sparks to prospective builders that the amenity package would be completed by the spring of 1987, and that funds were available for the construction of amenities at Stonehaven subdivision, but that he did not ever build amenity packages until there were people living in the subdivision that could use them.

In our view, there was sufficient evidence from which a jury could conclude that there was no intent to begin building the amenities for the subdivision at the promised time, when plaintiff began construction of his houses in the fall of 1986. The resolution of conflicts in the evidence being within the province of the jury, we must accept its finding, as evidenced by the verdict, that the misrepresentation was actually made to plaintiff. Under these circumstances this misrepresentation as to a future event supports an action for fraud. Rogers v. deMonteguin, 193 Ga. App. 480, 481 (1), 482, supra.

Furthermore, we reject the trial court’s conclusion that plaintiff failed to present any evidence authorizing an award of damages. As to compensatory damages, there was ample evidence as to the amount of plaintiff’s lost profits since the value of the houses built by plaintiff was in evidence and plaintiff testified that during his 17 previous years as a homebuilder, he generally made a 15 percent, but never less than a ten percent profit on the houses he built. Plaintiff’s business had a proven “track record” of profitability such as will support an award of lost profits. Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29). The profit record of plaintiff’s business would also aid in the determination of the value of plaintiff’s business. Additionally, there was ample evidence of such aggravating circumstances as would authorize an award of punitive damages. Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 896 (2) (376 SE2d 655); Henderson v. Glen Oak, 256 Ga. 619 (351 SE2d 640).

As there was no lack of proof concerning the remaining elements of an action for fraud, we hold that the trial court erred in granting defendants’ motion for directed verdict on plaintiff’s fraud claim. See generally Crawford v. Williams, 258 Ga. 806 (375 SE2d 223), and Southern Store & Restaurant Equip. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268).

Decided May 28, 1991

Rehearing denied June 20, 1991

R. Jeffrey Morrison, for appellant.

Thompson & McClure, Douglas R. Thompson, for appellees.

5. In summary, we note that the damages awarded by the jury are not apportioned between the negligence and the fraud claims. Thus, our reversal of the trial court’s grant of directed verdict as to the fraud claim, while we affirm the directed verdict as to the negligence claim, will necessitate a new trial since there is no way to determine which, if any, damages are attributable to the reinstated fraud claim. OCGA § 9-11-50 (b).

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A91A0598.
    BALES v. THE STATE.
    (406 SE2d 790)
   Andrews, Judge.

Bales was charged with and initially convicted of four counts of child molestation involving his three-year-old daughter.

Because he was on probation for another unrelated crime at the time of the commission of the acts, they were also used as the basis for revoking his probation. This hearing was held first and the judge, based on the preponderance of evidence standard, found that three acts (indicted as Counts 1, 2, and 3) were proven but did not so conclude regarding the act forming the basis of Count 4.

Thereafter, the same judge, sitting without a jury, made his determination of guilt beyond a reasonable doubt on all four counts based on the probation revocation hearing transcript. After the notice of appeal, enumerations of error and briefs were filed with this court, the trial court vacated the conviction on Count 4.

1. The first enumeration of error deals with Count 4 and is mooted by the court’s vacation of that conviction.

2. At the sentencing and in his second enumeration, Bales contends that, while he could be tried on all four counts, he could not be sentenced on all four because Count 1 merged into Count 3 and Count 2 merged into Count 4. He was sentenced to 15 years, to serve ten on all four counts, to run concurrently with his revoked probationary sentence and with each other.

Decided May 28, 1991

Rehearing denied June 20, 1991.

Amy A. Petulla, Christopher A. Townley, for appellant.

Ralph Van Pelt, Jr., District Attorney, Lowell K. Lawson, Assistant District Attorney, for appellee.

While all four counts alleged “on or about March 12, 1990,” the court found that all the acts occurred on March 12. All counts alleged child molestation, committed as follows: Count 1, by “touching the vaginal area of [the child] with intent to arouse and satisfy the sexual desires of [Bales]”; Count 3 by “placing] his penis against the vaginal area of [the child]”; Count 2 by “fond[ling] the rectal area of [the child]”; and Count 4 by “placing his penis against the rectal area of [the child].”

The argument as to Counts 2 and 4 is mooted by the vacation of the Count 4 conviction.

“ ‘[0]ffenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.’ [Cit.]” LeGallienne v. State, 180 Ga. App. 108, 111 (4) (348 SE2d 471) (1986). Here, the victim testified to several different acts committed by Bales and Count 1 was supported by evidence that he touched the child’s vaginal area with his hand, including penetration with his finger. Count 3 was supported by evidence he also placed his penis in her vaginal area. These were separate and distinct acts and supported separate convictions for two sequential but separate crimes against the same victim. Stroud v. State, 193 Ga. App. 82, 83 (4) (387 SE2d 37) (1989).

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A0001.
    WILSON v. TARA FORD, INC. et al. FICKLING et al. v. WILSON.
    A91A0002.
    (406 SE2d 807)
   Sognier, Chief Judge.

Merle Wilson, as executor of the estate of Robert Wilson, filed suit on March 27, 1990 against Tara Ford, Inc., William Fickling, Sr., William Fickling, Jr., and the other three directors of Southlake Ford, Inc., alleging, inter alia, breach of fiduciary duty and conspiracy arising out of the March 6, 1985 transfer of assets from Southlake Ford, a corporation in which her decedent owned stock, to Tara Ford, a corporation controlled by the Ficklings. The Ficklings answered and counterclaimed against Wilson, in her capacity as executor of the estate, seeking recoupment of over $200,000 allegedly misappropriated by Wilson’s decedent from Southlake Ford. On cross motions for summary judgment the trial court held that all claims were barred by the statute of limitation. These appeals ensued.

The basic facts are not in dispute. The transfer of the stock in issue occurred on March 6, 1985, and the parties stipulated that the causes of action asserted in Wilson’s complaint accrued on that date. Wilson’s decedent died on January 6, 1986, and it is agreed that as to claims on behalf of the decedent, the statute of limitation was tolled by the provisions of OCGA § 9-3-92 until January 17, 1986 (11 days later), when Wilson was appointed the legal representative of the decedent’s estate. After administering the estate for 24 months, Wilson petitioned the probate court asking to be discharged as executor of the estate. Letters of dismission were issued to Wilson by the probate court on March 7, 1988. In June 1989 Wilson petitioned the probate court to reopen the estate stating she had discovered 28,000 shares of common stock after the estate closed, and seeking to have the estate reopened so that the stock “may be properly endorsed and transferred to the beneficiaries of the estate.” That petition was granted on June 6,-1989. As noted above, Wilson filed the instant suit on March 27, 1990 asserting causes of action which the parties stipulate expired in March 1989 unless the statute of limitation on them was tolled.

1. In Case No. A91A0001, Wilson contends the trial court erred by granting the motion for summary judgment made by Tara Ford and the individual defendants (hereinafter referred to collectively as “Tara Ford”) because the trial court erroneously interpreted OCGA § 9-3-92 as not tolling the running of the statute of limitation during the 15 month period between March 7, 1988, the day the estate closed, and June 6, 1989, the day the estate was reopened, so as to render timely the filing of her complaint.

We affirm. Wilson was dismissed as executor of her decedent’s estate pursuant to OCGA § 53-7-145, which required her to file with the probate court “a verified petition for discharge, setting forth that [she] has fully administered the estate and fully executed the will.” OCGA § 53-7-145 (b). The grant of Wilson’s petition in this case resulted in an adjudication not only that Wilson’s administration was completed, but also that nothing remained in the estate to be administered. OCGA § 9-3-92 provides: “The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years.” An examination of the statutes in Article 6 of Title 53, Chapter 7 (OCGA § 53-7-140 et seq.), which sets forth the procedure by which administrators and executors can be discharged or executors dismissed, reveals that letters of discharge or dismission are not granted in contemplation of “the commencement of another” administration as referenced in OCGA § 9-3-92, but are granted when no further administration of the estate is required. Accordingly, we agree with the trial court that the language in OCGA § 9-3-92 tolling the running of the statute of limitation “between the termination of one administration and the commencement of another” is not addressed to those estates which have been adjudicated “fully administered,” see, e.g., OCGA §§ 53-7-145 (b); 140, but instead applies in situations where one administration has come to an end — is terminated — but the estate has not been fully administered due, e.g., to the death, removal, substitution, or renunciation of the administrator or executor.

Therefore, we find the trial court properly interpreted OCGA § 9-3-92 as not tolling the statute of limitation of Wilson’s claim between March 7, 1988 and June 6, 1989.

2. Wilson also contends questions of fact exist whether fraud tolled the running of the statute of limitation under OCGA § 9-3-96, which provides that “[i]f the defendant . . . [is] guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” In her complaint Wilson alleged that the individual defendants wrongfully found Southlake Ford to be insolvent and breached their fiduciary duties by transferring or influencing the transfer of Southlake Ford’s assets to Tara Ford. Although Wilson asserts that the asset transfer constituted fraud because the Ficklings, who control Tara Ford, were on Southlake Ford’s board, her own complaint reveals that the Ficklings’ presence on the Southlake Ford board was a matter of public information and that the Ficklings did not deliberate or vote on the asset transfer. However, appellant does not rely exclusively on this allegation as the fraud which “debarred or deterred” her from bringing her action. See generally Middleton v. Pruden, 57 Ga. App. 555 (196 SE 259) (1938). Rather, it appears that the fraud on which Wilson relies for purposes of OCGA § 9-3-96 is the alleged fraudulent concealment of the asset transfer based on the fact that it was accomplished without notice to her or her decedent, and that without such notice due diligence on her part would not have discovered the asset transfer.

“ ‘To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.’ [Cit.]” Middleton, supra at 560. In its answer to Wilson’s complaint, Tara Ford responded that no fraudulent concealment of the asset transfer occurred because the sale of Southlake Ford’s assets to Tara Ford was accomplished pursuant to former OCGA § 14-2-230 (a) (3) (A), which was in eifect at the time of the 1985 transaction. That statute provided that “[ujnless the articles of incorporation or bylaws otherwise provide, the board of directors may authorize any of the following transactions without any vote or consent of the shareholders: . . . [a]ny sale of all or substantially all the property and assets of the corporation if: . . . [t]he corporation is insolvent and a sale for cash or its equivalent is deemed advisable by the board to meet the liabilities of the corporation.” Tara Ford asserted that because Southlake Ford was insolvent at the time of the asset transfer, no notice to Wilson’s decedent was required. The record also contains the affidavit of Ed Chapman, Sr., the outside public accountant for Southlake Ford, who averred that based on his audits of Southlake Ford’s books, he determined that Southlake Ford owed the Ficklings $849,000 plus interest in March 1985, and that “[a]t all times since February, 1982 through and including March 31, 1985 [Southlake Ford] had a negative net worth and was insolvent in the sense that the corporation would not be able to pay all of its debts as they came due in the usual course of business and the corporation’s total assets were less than the sum of its total liabilities.” Wilson adduced no evidence regarding Southlake Ford’s financial status.

We find no error in the trial court’s finding that Tara Ford pierced Wilson’s allegation of fraud, and that in response Wilson set forth no evidence to create a genuine issue of material fact that for purposes of OCGA § 9-3-96 fraud existed to toll the running of the statute of limitation. “Concealment per se amounts to actual fraud [for purposes of tolling the statute of limitation under OCGA § 9-3-96] when for any reason one party has a right to expect full communication of the facts from another. [Cit.]” Comerford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980). Tara Ford’s evidence established that Southlake Ford was legitimately declared insolvent. Hence, the failure of the individual defendants to notify Southlake Ford’s shareholders, including Wilson’s decedent, of the asset transfer, was not by “trick or artifice” or the result of some fraudulent act, see Middleton, supra, but instead was the legal consequence of action taken under the authority of OCGA § 14-2-230 (a) (3) (A) and comported with statutory law.

3. Wilson contends the trial court erred by denying her motion for a continuance under OCGA § 9-11-56 (f) to allow her to complete discovery. “ ‘We have held “(t)he grant or denial of a continuance is a matter within the discretion of the trial judge and unless clearly abused will not be interfered with. [Cit.] This applies in summary judgment proceedings. [OCGA § 9-11-56 (f)].” [Cit.]’ [Cit.]” Patterson v. Lanham, 182 Ga. App. 343, 344 (1) (355 SE2d 738) (1987). OCGA § 9-11-56 (f) provides that “[s]hould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit. . . discovery to be had, or may make such other order as is just.” In the affidavit filed by Wilson’s attorney, it was averred that Wilson could not present facts essential to justify her opposition to the defendants’ motion for summary judgment because the defendants “have not provided documents in response to [Wilson’s] requests for production of documents.” However, the record also contains the reason the documents had not been produced: the defendants had filed a motion for a protective order more than two weeks before Wilson moved for a continuance. (We note that letters between counsel, which were placed in the record by Wilson, reveal that Wilson was allowed full access to Southlake Ford’s records.) Other than a brief urging the trial court to deny the motion for a protective order, the record fails to reflect any action by Wilson to obtain or expedite a ruling on that motion.

Decided June 20, 1991.

Martin D. Chitwood & Associates, Martin D. Chitwood, Craig G. Harley, for Wilson.

Hall, Block, Garland & Meyer, Benjamin M. Garland, J. Steven Stewart, for Fickling, Tara Ford, Inc. et al.

It thus appears that rather than expedite her access to the documents by invoking a ruling on the defendants’ protective order, Wilson sought to obtain a continuance on the basis that those documents were unavailable to her. Pretermitting the issue whether the affidavit filed with the motion complied with the requirements of OCGA § 9-11-56 (f), we find no abuse of the trial court’s discretion in denying her motion.

4. Consideration of the Ficklings’ cross appeal having been contingent upon a reversal of the trial court’s judgment in Case No. A91A0001, our holding therein renders the appeal in Case No. A91A0002 moot.

Judgment affirmed in Case No. A91A0001. Appeal dismissed in Case No. A91A0002.

McMurray, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A0334.
    JONES v. THE STATE.
    (407 SE2d 85)
   Pope, Judge.

Defendant Louis R. Jones, Jr. was convicted of molestation of a seven-year-old child and appeals. Although he filed two enumerations of error, he acknowledges in his brief that the argument for both enumerations is the same: He argues the trial court erred in failing to instruct the jury that the testimony of the victim failed to corroborate “to any acceptable degree” the hearsay testimony of two adult witnesses who testified concerning what the victim had told them about the defendant’s acts.

First, we note that defendant requested no such instruction and is thus precluded from raising this issue as error. See Cleveland v. State, 192 Ga. App. 659 (3) (386 SE2d 169) (1989). This is not a case in which the charge to the jury must be reviewed despite defendant’s failure to raise the issue below, pursuant to OCGA § 5-5-24 (c), because the charge as given did not contain substantial error and was not harmful as a matter of law.

The Child Hearsay Statute, OCGA § 24-3-16, creates an exception to the hearsay rule for statements made by a child under the age of 14 describing any act of sexual abuse “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony. See Reynolds v. State, 257 Ga. 725 (4) (363 SE2d 249) (1988).

This case was tried after the effective date of the child witness statute, OCGA § 24-9-5 (b). “OCGA §§ 24-3-16 and 24-9-5 must be construed together. . . . OCGA § 24-9-5 (b) expressly leaves credibility to the determination of the jury. So long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsive. The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility. . . . Her silence itself was evidence, as the jury could observe her demeanor as each question was posed. A witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.” (Indentions omitted.) Bright v. State, 197 Ga. App. 784, 785-786 (4) (400 SE2d 18) (1990). The trial court properly instructed the jury on the credibility of witnesses and the burden of proof. No duty existed to charge the jury that the victim’s own testimony must corroborate the testimony of others concerning her out-of-court statements.

Decided June 20, 1991.

Hobart M. Hind, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0359.
    WELLS v. THE STATE.
    (407 SE2d 86)
   McMurray, Presiding Judge.

An indictment charged defendant in Count 1 with impersonating an officer in that, on January 22, 1990, defendant did “falsely hold himself out to be a police officer to Jack Anderson and William Arnsdorf, with the intent to mislead said individuals into believing that he was actually such [an] officer. . . .” Additionally, the indictment charged defendant in Counts 2, 3, 4, 5 and 6 with five counts of public indecency. In this regard, the indictment charged that defendant lewdly exposed his sexual organ in a trailer park on five different dates: July 15, 1989, July 30, 1989, November 22, 1989, December 28, 1989 and January 22, 1990.

Following a jury trial, defendant was convicted of impersonating an officer and two counts of public indecency in Counts 2 and 6 (on July 15, 1989 and January 22, 1990). Defendant’s motion for a new trial was denied and defendant appealed. Held:

1. With regard to the offense of impersonating an officer, the evidence demonstrated the following: On January 22, 1990, a young girl saw a black male masturbating in an automobile which was parked in a trailer park. The girl ran home and told her father, brother and brother-in-law what she saw. The father called the police. The brother, brother-in-law and two friends, William Orsondroff (reflected as “Arnsdorf” in the indictment) and Jack Anderson, went looking for the perpetrator. They took separate cars.

Orsondroff and Anderson came upon defendant in the trailer park as he was attempting to make a left turn and they cut him off, pulling in front of him. Orsondroff got out of the car and approached defendant. Angrily, he accused defendant of showing his “thing” to little girls. The two men began to fight and Anderson joined the fray. Blows were exchanged until Orsondroff put a half-Nelson on defendant. At that point, defendant said he was a police officer. Fearing that they had stopped the wrong man, Orsondroff and Anderson let defendant go. Defendant got into his car and started to drive off when the police came. They arrested defendant immediately. Defendant told the police that the only reason he said he was a police officer was because he was in a fight and he wanted to get Orsondroff and Anderson off of him.

At trial, defendant testified that he sprayed his apartment on the night in question with an insecticide and that he decided to take a drive until the air was cleared of the fumes. He drove a short distance to the trailer park. Inside the park, defendant noticed that a car was following him. He tried to make a left turn but he was cut off. Two men jumped out of the car and approached defendant. They were “swinging at me, cussin’ at me and pulled me out of my car and had me subdued. ... I didn’t know who these people were. It was dark. These were white guys. I didn’t know what they were going to do to me. . . . They grabbed me and told the other guy, F[_] him up. He said, F[-] him up. And I don’t know what that means. It doesn’t sound that good to me so I felt like my life was in danger, you know. It seemed like they were going to do some kind of bodily harm to me or something so I [knew] I had to do something to get out of that situation. I mean I didn’t have nothing to defend myself and I didn’t know what they had. They could have guns, knives, bats, and I’ve always heard about situations like that. People getting killed, you know. ... I told them that [I was a police officer] because I felt like my life was in danger. ... I didn’t have any other way of defending myself. I used my head.”

In light of the evidence adduced at trial, defendant contends the trial court erred in failing to charge the jury on justification as a defense to the crime of impersonating an officer. We agree.

Defendant admitted telling Anderson and Orsondroff that he was a police officer. His sole defense to the crime of impersonating an officer was justification. OCGA § 16-3-20 (6). Nevertheless, the trial court did not so much as mention justification in its charge.

“It has been held many times that where the sole defense in a criminal case is not charged, even without a request, such failure constitutes reversible error. See Reed v. State, 15 Ga. App. 435 (1) (83 SE 674); Thompson v. State, 16 Ga. App. 832 (4) (84 SE 591); Henderson v. State, 95 Ga. App. 830 (99 SE2d 270).” McRoy v. State, 131 Ga. App. 307, 308 (3) (205 SE2d 445). See also Jackson v. State, 154 Ga. App. 867, 869 (270 SE2d 76). Inasmuch as the trial court failed to charge defendant’s sole defense to the crime of impersonating an officer, his conviction for that crime must be reversed.

2. During closing argument, the assistant district attorney said “Mr. Wells cannot give us any reason whatsoever why he was there.” Defense counsel interposed an objection, asserting the argument was “burden shifting.” The trial court overruled the objection.

In his second enumeration of error, defendant contends the trial court erred in permitting the assistant district attorney to “improperly shift the burden of proof” to defendant during closing argument. This contention is without merit. The assistant district attorney merely commented on defendant’s failure to give an adequate explanation for his presence in the trailer park. We fail to see how this comment shifted the burden of proof to defendant. See generally Tucker v. Francis, 723 F2d 1504, 1514 (11th Cir. 1984) (when a defendant testifies voluntarily to the merits, the prosecutor may comment on the defendant’s failure to explain incriminating evidence).

3. Defendant’s contention that the trial court erred in admitting in evidence a pre-trial photographic identification of defendant is without merit. No objection was lodged with respect to such evidence. See Davis v. State, 172 Ga. App. 787, 789 (4) (324 SE2d 767).

4. In view of our ruling in Division 1, defendant’s remaining enumeration of error (asserting trial counsel was ineffective because he failed to timely request a charge on justification) is moot.

5. In view of our holding in Division 1, defendant’s conviction for impersonating an officer in Count 1 is reversed. Defendant’s convictions on two counts of public indecency in Counts 2 and 6 are affirmed.

Judgment affirmed as to Counts 2 and 6; reversed as to Count 1.

Sognier, C. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I concur in the judgment, but write separately to elaborate on the underlying basis for applying the defense of justification as defined by OCGA § 16-3-20 (6).

The affirmative defense of justification is codified at OCGA § 16-3-20 and provides: “The fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed: (1) When the person’s conduct is justified under Code Section 16-3-21 [Use of force in defense of self or others], 16-3-23 [Use of force in defense of habitation], 16-3-24 [Use of force in defense of property other than a habitation], 16-3-25 [Entrapment], or 16-3-26 [Coercion] of this article; (2) When the person’s conduct is in reasonable fulfillment of his duties as a government officer or employee; (3) When the person’s conduct is the reasonable discipline of a minor by his parent or a person in loco parentis; (4) When the person’s conduct is reasonable and is performed in the course of making a lawful arrest; (5) When the person’s conduct is justified for any other reason under the laws of this state; or (6) In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.”

Subsection (6) applies when the otherwise criminal conduct at issue cannot be justified under the criteria set out in the other enumerated subsections of OCGA § 16-3-20, but a rational basis exists to assert that such conduct is justified because it stands “upon the same footing of reason and justice as those enumerated in this article.” Whether conduct is justified by fitting within the criteria of subsections (1) through (5), or whether it stands upon the same footing as these defenses is necessarily dictated by the facts of each case.

Here, there is evidence to support the defendant’s contention that he falsely held himself out as a police officer in an attempt to avoid an immediate and reasonably perceived threat of serious bodily injury to himself. Though this conduct is analogous to conduct justified under OCGA §§ 16-3-21 (Use of force in defense of self or others) and 16-3-26 (Coercion), it does not fit within the parameters of either. Self defense does not apply because the defendant used verbal deception rather than force to defend himself. Coercion does not apply because those threatening the defendant were not attempting to coerce or compel him to impersonate a police officer, rather he chose that conduct as a defense to the threat.

The defendant was entitled to a charge on justification under subsection (6) because the facts support a rational connection between his conduct and the defenses of self defense and coercion which places his conduct on the same footing of reason and justice as these defenses. Both the self defense and coercion defenses may be understood as justifying otherwise criminal conduct “on a common theme of ‘lesser of two evils.’ ” Kurtz, Criminal Offenses & Defenses in Ga. (2d ed.), pp. 250-252. The use of force in self defense, or undertaking criminal conduct in submission to coercion, may be justified as an acceptable alternative to suffering death or great bodily injury, if the force used or criminal conduct undertaken is a reasonably proportioned response to an immediate threat. Under the circumstances confronting the defendant, his single false statement that he was a police officer, made in an attempt to dissuade an immediate attack and escape serious bodily injury, stands on the same “lesser of two evils” footing. The conduct was arguably a reasoned and proportional response to the perceived threat, therefore the defendant was entitled to invoke the defense of justification under OCGA § 16-3-20 (6).

In coming to this conclusion, I am not unmindful of the difficulty created for trial judges in identifying and framing a charge on the defense of justification under OCGA § 16-3-20 (6). However, the alternative under the facts of this case is to hold that the section has no meaning, and I am unwilling to do that.

Decided June 20, 1991.

Christine A. Van Dross, for appellant.

Douglas C. Pullen, District Attorney, James C. Bernard, Assistant District Attorney, for appellee.


text:
    A91A0696.
    NATIONWIDE MUTUAL INSURANCE COMPANY v. GLACCUM.
    (407 SE2d 90)
   Sognier, Chief Judge.

This litigation arose out of an automobile collision. See Nationwide Mut. Ins. Co. v. Whiten, 179 Ga. App. 544 (346 SE2d 914) (1986). In a second appearance of these parties before this court, we were called upon to review the trial court’s ruling that Dr. Glaccum, a chiropractor who had treated the plaintiff in the original negligence action and testified at trial, was not required to pay Nationwide, the original plaintiff’s uninsured motorist carrier, four times the amount requested by him as his witness fee as a penalty, under OCGA § 24-10-4, for unjustly claiming more than he was due as a witness. Nationwide Mut. Ins. Co. v. Glaccum, 186 Ga. App. 148 (366 SE2d 772) (1988). The trial court had ruled that Dr. Glaccum was entitled to additional compensation for his testimony because he was an expert witness. The trial court had also declared moot the chiropractor’s motion to disqualify the insurance company’s counsel, made on the ground that counsel had submitted an affidavit in support of the insurer’s motion for the OCGA § 24-10-4 penalty, setting forth the facts upon which the motion was based, and in addition had averred that “ ‘if sworn as a witness . . . [counsel] could and would competently testify to [those facts] from personal knowledge.’ ” Glaccum, supra at 149.

We held in Glaccum, supra, that the uninsured motorist carrier was not liable for an expert witness fee because although the chiropractor was called to testify as an expert witness by the plaintiff, he did not fill any expert witness role for the carrier, but rather was subpoenaed as a fact witness. Accordingly, we reversed the trial court’s ruling and remanded the case to the trial court for reconsideration of the insurer’s motion for payment of the statutory penalty. We noted “that in order to reconsider Nationwide’s motion the trial court should of necessity first reconsider Dr. Glaccum’s motion to disqualify counsel which the trial court previously ruled as moot.” Glaccum, supra at 150 (2). On remand from this court, appellant moved for an order entering judgment in its favor on its motion for the penalty. The trial court did not rule on appellant’s motion, but instead entered an order expressing uncertainty as to the meaning of this court’s opinion in Glaccum, supra.

Decided June 20, 1991.

Murray, Temple & Dinges, William D. Strickland, for appellant.

Edward J. Walsh, for appellee.

OCGA § 5-6-34 (a) (1) provides that appeals may be taken from final judgments — that is, where the case is no longer pending in the court below. Because appellant’s motion is still pending in the trial court, the order entered by the trial court is not a final judgment, but a request by the trial court for clarification. Since it is not a final order, it is not directly appealable, and as the procedure for interlocutory appeal has not been complied with, the appeal must be dismissed. See generally International Svc. Ins. Co. v. Harter, 197 Ga. App. 481, 482 (398 SE2d 705) (1990).

We note that we have carefully reviewed our opinion in Nationwide, supra, and find no confusion therein, but find clear our direction to the trial court.

Appeal dismissed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1164.
    SCHOEN v. ATLANTA CASUALTY COMPANY.
    (407 SE2d 91)
   McMurray, Presiding Judge.

Plaintiff Atlanta Casualty Company was the insurer of an automobile owned by defendant Schoen. Someone broke into defendant’s automobile and stole the stereo system and the alarm system. Defendant submitted claims to plaintiff for both the property damage done to the vehicle and for the stolen equipment. Plaintiff paid defendant for the damage done to the vehicle but refused to compensate defendant for the value of the stolen equipment maintaining that it was not covered under the policy. After defendant continued to assert that the stolen equipment was covered and that he was entitled to insurance proceeds for that loss, plaintiff filed a declaratory judgment action. Defendant answered and counterclaimed for the claimed loss, and penalties and attorney fees pursuant to OCGA § 33-4-6.

On opposing motions for summary judgment, the superior court determined that the insurance policy covers both the stereo system and the alarm system stolen from defendant’s automobile. Defendant’s motion was granted and plaintiff’s motion was denied as to these issues. The superior court also concluded that plaintiff is not subject to an award of bad faith penalties and attorney fees on defendant’s counterclaim under OCGA § 33-4-6 and granted plaintiff’s motion for partial summary judgment on this issue. Defendant appeals from the grant of plaintiff’s motion for partial summary judgment rejecting his claim for bad faith damages and attorney fees. Held:

The insurance policy at issue contains the following provisions:

“COVERAGE FOR DAMAGE TO YOUR AUTO

“Subject to the exclusions hereinafter stated, we will pay for direct and accidental loss to YOUR COVERED AUTO, or any NON-OWNED auto, including its permanently attached equipment which is considered standard, ...”

Plaintiff’s motion for partial summary judgment as to defendant’s claims for bad faith penalties and attorney fees was predicated on the hypothesis that the construction of the insurance policy advanced by plaintiff presented a reasonable question of law. “Where the questions of law involved in a case are intricate and difficult of solution, the insurer has the right to contest payment of the claim and is not guilty of bad faith in refusing to pay it. [Cits.]” United States Fidelity &c. Co. v. Woodward, 118 Ga. App. 591, 594 (2) (164 SE2d 878).

In addition to other arguments, plaintiff maintained that the stereo system and alarm were not covered under the policy because they were not equipment which is “considered standard” within the meaning of the insurance policy. This raised an issue as to the meaning of “standard” as used in the insurance policy. Since the term was not defined, the superior court proceeded to seek its usual and common signification. OCGA § 13-2-2 (2).

Plaintiff argued that the term “standard” is related to the quality or nature of the equipment appropriate in relation to the price of the automobile. Defendant had purchased the insured automobile for approximately $14,200 and the stereo equipment and alarm for $2,880.40. Such an extraordinary and disproportionate expenditure for custom accessories was not within the meaning of “standard” which means regular, typical or ordinary, plaintiff argued. Indeed, the superior court found that as used in the policy, “standard” was ambiguous and that one of the alternative meanings was that it related to quality or nature as advocated by plaintiff. The superior court rejected this construction due to a lack of guidance in the policy for its application, and chose to adopt the construction which most favored the insured, that is, that “standard” refers to the type of equipment usually, ordinarily or regularly found in automobiles.

While plaintiff did not prevail, it presented a reasonable ground for contesting the claim. Since under OCGA § 13-2-2 (2) the usual and ordinary signification of “standard” was at issue, it was not unreasonable in such a first impression situation as the case sub judice to advocate that a commonly recognized definition of the term was intended. “[O]ur courts have ‘consistently held that no “bad faith” exists where there is a doubtful question of law involved.’ Brown v. Seaboard Lumber &c. Co., 221 Ga. 35, 38 (142 SE2d 842).” United States Fidelity &c. Co. v. Woodward, 118 Ga. App. 591, 594 (2), supra. “[T]his case is one of first impression in Georgia in its interpretation of the specific language . . ., and presented a close question as to the construction to be given this language.” Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204, 207 (2) (338 SE2d 687). The superior court did not err in granting plaintiff’s motion for partial summary judgment as to defendant’s claim for bad faith damages and attorney fees.

Decided June 20, 1991.

Cohen, Pollock & Merlin, Martin M. Pollock, Carla J. Dolce, for appellant.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Gary L. Seacrest, Manuel S. Campano, Dan J. Colley, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0750.
    BRENNEMAN v. THE STATE.
    (407 SE2d 93)
   McMurray, Presiding Judge.

Brenneman was indicted for burglary as a repeat offender and appeals his conviction and sentence.

At about 2:00 a.m. on August 12, 1986, a woman’s third floor apartment was entered by an intruder who cut through a screen door. When the woman awakened and turned on the light the intruder fled. Although the woman did not see the intruder’s face she described him as a white male with dark hair and wearing camouflage clothing. She immediately called the police, who arrived shortly thereafter. Appellant’s car was found before morning in a parking lot next to the apartment complex, with the engine still warm and a camouflage patterned shirt in the front seat. After the Cobb County police unsuccessfully attempted to find appellant at his residence to question him, Detective Larry Watkins left a note requesting appellant to contact him.

On September 8, 1986, appellant’s attorney, George Asinc, called Watkins to set up an interview and accompanied appellant to police headquarters. On Asinc’s advice, appellant admitted being in the apartment on the night in question, but claimed he thought it was occupied by a drug dealer named Carlos who had tried to recruit him as a drug runner and had obtained his name and address for that purpose. Appellant told Watkins he thought Carlos had entered his name and address in his laptop computer, and when he decided to back out of the arrangement he went to retrieve this information from the computer because he had an extensive criminal record. Asinc tried to arrange a deal whereby appellant would provide information about Carlos in return for a break on the charge, but subsequent investigation revealed that no one named Carlos lived in the apartment complex and the information given by appellant could not be verified. A warrant was taken out against appellant for burglary and he was indicted as a repeat offender. Appellant did not appear in court on the date scheduled for trial, but he delivered a letter to Asinc’s office addressed to “To Whom It May Concern” explaining to the court that he was leaving because with his past criminal history the cards were stacked against him.

Appellant was arrested again in 1989 and contacted Ray Gary, Jr., an attorney with whom Asinc had practiced in 1986. Although he was unable to pay Gary’s fee, Gary was appointed to represent him at trial. At trial, the State presented evidence consisting of the testimony of Detective Watkins, appellant’s statement to the police and the letter he left with Asinc in 1986. He was found guilty by the jury and sentenced to serve 20 years without parole. Through another appointed attorney appellant filed a motion for new trial, which was amended to allege ineffective assistance of counsel. He was also granted permission to represent himself and further amended the motion to set forth specific allegations of ineffective assistance. Upon denial of the motion this appeal ensued. Held:

1. Appellant contends that the trial court improperly allowed the State to introduce evidence of his prior statement because there was no showing that Detective Watkins apprised him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The trial court found, and the evidence supports its finding, that appellant came to the police station on his own accord accompanied by his attorney for the express purpose of “trading information” by inculpating himself in regard to the burglary and then providing evidence of Carlos’ drug dealing in exculpation; that it would not have been reasonable for appellant to believe that he was in custody when he made his statement until Watkins revealed he was not going to make a deal; and that appellant made no inculpatory statements after that point for the purposes of Miranda.

“ ‘It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with a formal arrest.” (Cit.)’ Berkemer v. McCarty, 468 U. S. 420, 440 (104 SC 3138, 82 LE2d 317). Short of that point, Miranda warnings need not be given. [Cit.] As it is said: ‘For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.’ [Cit.]” Riviera v. State, 190 Ga. App. 823, 824-825 (1) (380 SE2d 353). “Crucial is whether a statement results from a custodial interrogation. If an accused volunteers a noncoerced statement then it is not necessary to invoke the tests which only apply to information obtained as a result of interrogation. This was recognized in Miranda, [supra, at 478], where it was held: ‘. . . Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ Id. at 478.

“All statements obtained by the police after a person has been taken into custody are not to be considered the product of interrogation. Rhode Island v. Innis, 446 U. S. 291, 300 (100 SC 1682, 64 LE2d 297) (1980) explains: ‘It is clear . . . that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.’ ” Zubiadul v. State, 193 Ga. App. 235, 237 (387 SE2d 431).

Whether or not appellant was in custody or under interrogation was a question of fact to be resolved by the trial court, and we cannot say that the trial court abused its discretion under the circumstances. Davis v. State, 191 Ga. App. 566 (4) (382 SE2d 396). This enumeration of error is without merit.

2. Appellant complains that he received ineffective assistance of counsel prior to trial from his first attorney George Asinc because Asinc advised him to incriminate himself and brought him to the police department without determining beforehand if there was any possibility of working out a deal. He also suggests that Asinc was somehow responsible for his letter explaining why he was not going to appear at trial in 1986 ending up in the State’s possession. Asinc testified at the hearing on the motion for new trial that appellant had told him he was certain the victim could identify him because they had previously met on several occasions; and that based on this and the fact that appellant said he was unable to make bond, he advised appellant it would be in his best interest to voluntarily talk to the police rather than wait for them to run a photo line-up and have him arrested and placed under bond.

It is clear from the testimony of both appellant and Asinc that the decision to talk to the police was a tactical one arrived at by mutual agreement based upon Asinc’s professional judgment concerning the information supplied by appellant. Appellant concedes that he failed to prove that Asinc disclosed his letter to the State in violation of the attorney-client privilege. Also, as the trial court found, since the letter was addressed to “to whom it may concern,” and referred to the court in the second person and to his lawyer in the third person, it appears to have been intended for the court and thus was not a confidential attorney-client communication.

“ ‘ “To prove he has received ineffective assistance of counsel, ‘(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.’ (Cits.) ‘Thus counsel’s performance will not be found to be deficient if it falls within the range of “reasonably effective assistance.” ’ (Cit.)” (Cit.)’ [Cit.] ‘ “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ (Cit.) As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)” (Cit.)’ [Cit.] . . . ‘ “Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by [former] counsel does not require a finding that defendant’s original representation was inadequate. (Cits.)” (Cit.)’ [Cit.] Despite appellant’s dispute with portions of his attorney’s testimony, we find appellant’s allegations of ineffective assistance of counsel to be without merit.” Powell v. State, 198 Ga. App. 509 (1), 510-512 (402 SE2d 108).

3. Because of our ruling in the previous division it is unnecessary to consider appellant’s contention that his trial attorney, Ray Gary, Jr., erroneously failed to assert Asinc’s alleged ineffectiveness.

4. Appellant asserts that the letter explaining his flight from trial in 1986 was improperly allowed in evidence as a State’s exhibit, both because it violated the attorney-client privilege and because it impermissibly placed his character in evidence by referring to his prior criminal record. We have already determined that the letter was not privileged and likewise find that it did not constitute impermissible character evidence. “ ‘It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.’ [Cit.]” Berryhill v. State, 235 Ga. 549, 551-552 (6) (221 SE2d 185). Accord Wiley v. State, 192 Ga. App. 808 (1) (386 SE2d 523).

5. Appellant’s argument that the State’s cross-examination regarding his prior convictions improperly placed his character in evidence also must fail. Having introduced this topic in direct testimony appellant cannot complain that the State followed up on cross-examination. Mitchell v. State, 193 Ga. App. 214 (2) (387 SE2d 425). Furthermore, since no timely and specific objection was made at trial, it may be treated as a waiver on appeal. Seabrooks v. State, 251 Ga. 564, 566 (308 SE2d 160); Blanos v. State, 192 Ga. App. 835 (3) (386 SE2d 714).

6. Appellant’s final enumeration of error complains that the trial court erroneously sentenced him as a recidivist under OCGA § 17-10-7 (b) because the State did not prove that his prior out-of-state convictions would be felonies within this state as required by the recidivist statute. However, the trial transcript reveals that when appellant was questioned about these Virginia convictions, he readily acknowledged that they would be felonies under Georgia law. Moreover, appellant did not object to their admission at the sentencing hearing. “ ‘The time for a defendant to challenge the validity of the convictions on which a recidivism charge is made is when the [S]tate attempts to prove them at the sentencing. . . .’ [Cit.]” Aldridge v. State, 158 Ga. App. 719, 722 (4) (282 SE2d 189). Thus, this enumeration is also without merit.

Judgment affirmed.

Sognier, C. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I concur in the judgment and all the divisions of the opinion except Divisions 2 and 3.

In addressing appellant’s claims in Divisions 2 and 3 based on pre-charge, pre-trial, ineffective assistance of counsel, it is not necessary to reach the merits of the ineffective assistance allegation. Even if appellant’s pre-trial counsel provided ineffective assistance under these circumstances, no constitutional ineffective counsel question is presented because no adversary judicial proceedings had been initiated against appellant at that time. The appellant’s Sixth and Fourteenth Amendment right under the United States Constitution to be represented by counsel attached only after adversary judicial proceedings were initiated against him. United States v. Gouveia, 467 U. S. 180 (104 SC 2292, 81 LE2d 146) (1984); Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972); State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43) (1990); Houston v. State, 187 Ga. App. 335, 339 (370 SE2d 178) (1988). Since appellant had no constitutional right to be represented by counsel during the events of which he complains, he could not have been deprived of the effective assistance of counsel by any alleged deficiency in his attorney’s representation. Wainwright v. Torna, 455 U. S. 586, 587-588 (102 SC 1300, 71 LE2d 475) (1982); accord People v. Claudio, 453 NE2d 500 (N.Y. 1983) (Defendant confessed to police in non-custodial setting. No constitutional right to effective assistance of counsel attached. Despite ineffective counsel, defendant’s statements were not suppressed.)

Decided June 21, 1991.

Edwards & McLeod, Jennifer McLeod, for appellant.

Thomas J. Charron, District Attorney, Donald T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Banke, Presiding Judge.

text:
    A91A0093.
    SMITHERMAN v. MARY HOUSE MINISTRIES, INC.
    (407 SE2d 58)
   Banke, Presiding Judge.

Appellant Doris Smitherman brought suit against appellee Mary House Ministries, Inc., a non-profit charitable corporation, seeking damages for the alleged wrongful termination of her employment as supervisor of a day care center operated by the latter. She thereafter amended her complaint to add as defendants the individual members of the board of directors of the appellee corporation, based on allegations that they had failed to perform their duties as directors properly and had thereby contributed to the wrongful termination of her contract. The case is before us on appeal from the grant of the corporation’s motion for summary judgment and the dismissal of the amendment seeking to add the individual directors as additional defendants.

The appellant’s employment was governed by a written contract which specified that she would “oversee all operations and personnel connected with” the day care center and would “devote her entire time and efforts to the diligent and faithful discharge of her duties.” The contract was for a one-year term but specified that the employment could be terminated at any time if “in the opinion of the board of directors . . . the employee has failed to fully and faithfully perform her duties and obligations under this agreement.”

The record shows that by May of 1989, the board of directors was concerned about the appellant’s failure to develop and maintain certain administrative records and procedures which were necessary for the day care center to obtain subsidy certification from the Georgia Department of Human Resources. There is also evidence that the board had learned that the appellant had purchased and begun operating her own day care center. At a meeting of the executive committee and board of directors held on May 31, 1989, the appellant’s perceived failure to fulfill her administrative duties was discussed; and Gladys King, the chief executive officer, was directed to meet with her to clear up any misunderstanding concerning her responsibilities and to attempt to ascertain what progress the board might expect in the future with regard to the preparation of the DHR certification documentation. Ms. King did so, and because the assurances which the appellant provided at that meeting were not deemed satisfactory, she was notified of her termination on June 9, 1989. Held:

1. There exists no genuine issue of material fact concerning the parties’ rights and obligations under the contract, the terms of which were clear and unambiguous and therefore not subject to judicial construction. See Jones v. Barnes, 170 Ga. App. 762 (318 SE2d 164) (1984); Foshee v. Harris, 170 Ga. App. 394 (317 SE2d 548) (1984). The corporation had the immediate right to terminate the appellant at any time for failure “to fully and faithfully perform her duties and obligations” as supervisor of the day care center. The minutes of the board meetings held on May 24, 1989, and May 31, 1989, demonstrate that the corporation’s board of directors made the requisite determination; and the appellant’s contention to the contrary notwithstanding, there is no suggestion that she was terminated for any reason other than a bona fide dissatisfaction with her performance. While the appellant complains of the board’s failure to conduct a formal vote on the issue or to adopt a formal resolution discharging her for cause, no such formalities were required under the terms of the contract. The record establishes without dispute that the board discussed the issue of the appellant’s perceived failure to perform her duties before she was discharged, and there is no suggestion that a majority of the board did not agree with the decision to terminate her. Indeed, there appears to have been no dissent whatever on the issue.

2. The proposed amendment purporting to add the individual directors as defendants was properly dismissed, inasmuch as leave of the court to add new defendants was neither granted nor sought. See generally OCGA § 9-11-21; Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976). Furthermore, the amended complaint failed to state any claim against these defendants upon which relief could be granted. Although the appellant sought to hold the directors liable to her based on their alleged failure to adhere strictly to certain required formalities regarding the conduct of corporate business, she has not suggested how any such failure, assuming it occurred, could possibly be considered a breach of any duty owed to her. Nor has she suggested how the alleged failure to comply with these formalities resulted in harm to her, given the absence of any evidence suggesting that the decision to terminate her was based on anything other than a good-faith determination that she had failed to perform her duties as supervisor of the day care center fully and faithfully.

Decided May 28, 1991

Rehearing denied June 24, 1991

James V. Pleasants, for appellant.

William E. Dismer, Nightingale, Liles, Dennard & Jordan, Rita C. Spalding, for appellee.

3. Based upon our review of the record in the case and the briefs filed in this court, we find no basis upon which a reversal of the trial court’s judgment could reasonably have been anticipated. Acting pursuant to Court of Appeals Rule 26 (b), we accordingly assess against the appellant a penalty in the amount of $500 for filing a frivolous appeal. Accord Lamb v. U. S. Sales Corp., 194 Ga. App. 333 (390 SE2d 440) (1990).

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: Carley, Judge.

text:
    A91A0141.
    HEATH v. PEACHTREE PARKWOOD HOSPITAL, INC. et al.
    (407 SE2d 406)
   Carley, Judge.

Appellent-plaintiff brought suit against appellee-defendants, alleging claims for intentional torts and for breach of contract. Appellees answered and, after extensive discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellees as to all claims and appellant appeals.

1. The trial court’s order reflects that it “construe [d] the various allegations of [appellant’s] complaint to be generally ‘medical malpractice actions’ against [appellees], and thus, subject to the requirements of law applicable to such actions.” In this regard, the trial court erred. Appellant’s tort claims are clearly premised upon intentional torts, not upon negligent medical practices. However, the trial court’s erroneous construction of appellant’s complaint will not mandate reversal if the evidence of record, construed most favorably for appellant, demonstrates that no genuine issue of material fact remains and that appellees are entitled to judgment as a matter of law.

2. According to appellant, she was falsely imprisoned as a psychiatric patient by appellees Emory Hospital, Emory Clinic, Dr. Elizabeth Howell and Dr. Lisa Jones from September 19 until September 22, 1988. It is apparently undisputed that these appellees did detain appellant against her will during that period. However, these appellees introduced no evidence that their detention of appellant during that period was either pursuant to an application for voluntary admission as a psychiatric patient secured from her in compliance with OCGA § 37-3-20 et seq. or pursuant to valid procedural process for her involuntary mental treatment issued by them in compliance with OCGA § 37-3-40 et seq. “Where . . . the detention is not evidenced by some form of objective compliance by the physician with all applicable procedural process requirements, there is a viable claim for false imprisonment.” Williams v. Smith, 179 Ga. App. 712, 716 (2) (348 SE2d 50) (1986).

“The Code prescribes maximum time limits for the steps leading to treatment, but no minimums. If [a physician believes] that an individual needs involuntary treatment as contemplated by [OCGA § 37-3-40 et seq.], the elapsed time between the patient’s arrival at the . . . doctor’s office or at the hospital and the [transfer of the patient to an emergency receiving facility] could be no more than the time occupied by [the physician’s interview]. We consider that to be the outer limits of due process and are unwilling to reduce the procedural safeguards any further. . . . It is . . . apparent that we cannot permit even well intentioned departures from the statutory scheme for involuntary hospitalization.” Kendrick v. Metro. Psychiatric Center, 158 Ga. App. 839, 842 (282 SE2d 361) (1982). Thus, appellant could not be lawfully detained against her will during the entire three-day period for the purpose of determining whether she should eventually be certified for involuntary mental examination and treatment pursuant to OCGA § 37-3-40 et seq.

Since appellees Emory Hospital, Emory Clinic, Dr. Howell and Dr. Jones introduced no evidence that appellant’s three-day detention was authorized pursuant to either OCGA § 37-3-20 et seq. or OCGA § 37-3-40 et seq., it follows that the trial court erred in granting summary judgment in their favor as to appellant’s claim for false imprisonment.

3. The trial court likewise erred in granting summary judgment in favor of appellee Emory Hospital as to appellant’s claim for battery. If appellant was being unlawfully detained against her will, the employees of appellee Emory Hospital had no right to use physical force to prevent her escape and, if they did so, it was an unlawful touching constituting an actionable battery. See generally Irwin v. Arrendale, 117 Ga. App. 1, 5 (4) (159 SE2d 719) (1967).

4. The trial court did, however, correctly grant summary judgment in favor of appellees Peachtree Parkwood Hospital, Inc. and Dr. Berito Mena as to appellant’s false emprisonment claim. The evidence shows that, from September 22 to September 23, 1988, appellant was lawfully detained, for involuntary medical treatment, pursuant to valid procedural process issued in compliance with OCGA § 37-3-40 et seq. and that, from September 23 to September 28, 1988, she was lawfully detained pursuant to her application for voluntary admission secured in compliance with OCGA § 37-3-20 et seq. “The process being valid, and the detention pursuant thereto being lawful, it follows that [the] negligence and motives [of appellee Peachtree Parkwood Hospital, Inc. and its staff physician, appellee Dr. Mena], although [perhaps] relevant to [their] liability for other [possible] causes of action, were irrelevant to [their] liability for the tort of false imprisonment. [Cit.] The trial court did not err in granting [these] appellee [s] summary judgment as to [appellant’s false imprisonment claim].” Williams v. Smith, supra at 716 (2).

Decided May 15, 1991

Rehearing denied June 24, 1991

M. B. Schildmeyer, for appellant.

Allen & Ballard, William L. Ballard, Amy L. Teets, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, T. Jeffery Lehman, Webb, Carlock, Copeland, Semler & Stair, David S. Thomson, Sullivan, Hall, Booth & Smith, John E. Hall, Jr., for appellees.

5. The trial court likewise correctly granted summary judgment in favor of all appellees as to appellant’s claim for the intentional infliction of emotional distress. The only emotional distress suffered by appellant was in connection with her alleged false imprisonment and she has no separate and independent tort claim for emotional distress. As against those appellees who remain potentially liable for false imprisonment, appellant may seek to recover damages based upon the emotional distress she may have suffered as the result of their tortious conduct. See Stewart v. Williams, 243 Ga. 580, 582 (1) (255 SE2d 699) (1979).

6. The trial court also correctly granted summary judgment in favor of appellees Emory Hospital and Peachtree Parkwood Hospital, Inc. as to appellant’s contract claims. The only contention as to these appellees is that they exceeded their contractual authority by engaging in intentionally tortious conduct. Accordingly, appellant’s claims sound in tort rather than in contract.

7. Remaining enumerations of error need not be specifically addressed.

8. The trial court’s grant of summary judgment in favor of appellees is affirmed except as to appellant’s claim for false imprisonment against appellees Emory Hospital, Emory Clinic, Dr. Howell and Dr. Jones and as to her claim for battery against appellee Emory Hospital.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Beasley, J., concur.