text:
    A01A1611.
    SULLIVAN et al. v. FREDERICKS.
    (554 SE2d 809)
   Smith, Presiding Judge.

The trial court granted the motion to dismiss filed by Craig Fredericks, a defendant in a medical malpractice action. The motion was based on the failure of the plaintiffs, Harold and Linda Sullivan, to comply with the affidavit requirements of OCGA § 9-11-9.1. We agree that dismissal was warranted, and we affirm.

Fredericks, a neurosurgeon, performed three operations on Harold Sullivan. On May 20, 1998, Fredericks fused two of Sullivan’s lower vertebrae, and on June 10,1998, Fredericks inserted two metal screws in the same vertebrae. On June 11, Sullivan returned to surgery, where Fredericks, according to his records, performed “Reinsertion of pedicle screw fixation device with locking device.” In their complaint, filed May 18, 2000, the Sullivans alleged that the June 11 surgery was necessitated by Fredericks’s failure to put clamps on the ends of the screws he had inserted into Sullivan’s vertebrae on June 10. They alleged that Fredericks was negligent in his failure to insert the necessary screws during the first surgery, on May 20, and that he was further negligent in failing to put the necessary clamps on the ends of the screws when he inserted them during the June 10 procedure. An expert affidavit, as required by OCGA § 9-11-9.1 (a), was not filed contemporaneously with the complaint, and the complaint did not contain language required by OCGA § 9-11-9.1 (b), stating that because of time requirements, an affidavit could not be obtained.

On July 3, 2000, Fredericks filed a motion to dismiss based on the failure to comply with the affidavit requirement of OCGA § 9-11-9.1 (a). Also on that day, the Sullivans filed a faxed copy of the affidavit of Jeffrey Morris, M.D. In his affidavit, Morris did not appear to criticize Fredericks’s actions with regard to the May 20 surgery but instead addressed the June 10 procedure, stating that Fredericks deviated from the standard of care by failing to insure that all parts of the pedicle screws were properly inserted. On July 7, 2000, the Sullivans amended their complaint to substitute Morris’s original affidavit for the faxed affidavit but again did not allege the language required by OCGA § 9-11-9.1 (b).

Under OCGA § 9-11-9.1 (a), an expert’s affidavit must be filed with any complaint alleging professional malpractice. This contemporaneous filing requirement is not applicable, and a plaintiff has an automatic right to file the affidavit within 45 days of filing the complaint, however, in the following limited circumstances: (1) when the limitation period will expire within ten days of the date of filing the complaint; and (2) when the plaintiff alleges that because of the time constraints an expert affidavit could not be prepared. OCGA § 9-11-

9.1 (b). The second requirement must be alleged in the complaint; it cannot be implied. Keefe v. Northside Hosp., 219 Ga. App. 875, 876 (467 SE2d 9) (1996). This requirement is not simply a technicality; it “is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicability of the grace period.” (Citation and punctuation omitted.) Anderson v. Navarro, 227 Ga. App. 184, 185 (489 SE2d 40) (1997).

When the Sullivans filed their complaint for professional malpractice, they failed to file the affidavit required by OCGA § 9-11-9.1 (a). Further, they did not allege that because of time constraints, they could not file an expert affidavit, and as discussed above, this was a mandatory requirement. It is true that a complaint may be amended under OCGA § 9-11-15 to comply with OCGA § 9-11-9.1 (b). Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 751 (1) (533 SE2d 749) (2000). The Sullivans failed to take advantage of this avenue; although they amended their complaint, they did not make the allegation required by OCGA § 9-11-9.1 (b). Their complaint was therefore properly dismissed. See Keefe, supra; Anderson, supra.

Decided October 9, 2001

Allen & Forehand, Rodney L. Allen, for appellants.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, Edward F. Preston, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       South Georgia Anesthesia Associates was also named as a defendant in the complaint but was subsequently dismissed without prejudice. J

       In their opposition to Fredericks’s motion to dismiss, the Sullivans acknowledge “that only the acts of June 10,1998, constituted acts of medical negligence.”


source: Caselaw Access Project

author: Phipps, Judge. Smith, Presiding Judge,

license: Public Domain

text:
    A01A2256.
    DANIEL v. THE STATE.
    (555 SE2d 154)
   Phipps, Judge.

Abbe Daniel was convicted of trafficking in amphetamine, possession of methamphetamine, and obstruction of a law enforcement officer. Her motion for new trial was denied, and she appeals. She contends that the trial court erred in denying her motion for directed verdict of acquittal on the amphetamine trafficking charge. We agree and reverse Daniel’s conviction for that offense. Her remaining convictions are affirmed.

Under Schedule II of the Georgia Controlled Substances Act, “amphetamine” includes the drug itself as well as “its salts, optical isomers, and salts of its optical isomers.” Under OCGA § 16-13-31 (e), a person who knowingly possesses “28 grams or more of . . . amphetamine, or any mixture containing . . . amphetamine, as described in Schedule II” is guilty of trafficking in amphetamine. The amphetamine trafficking statute thus sets forth two methods of committing the crime of trafficking. One method deals with amphetamine itself (defined to include amphetamine chloride). The other method deals with any mixture containing amphetamine. A conviction is sustainable under the statute based on proof that the crime was committed by either method. Moreover, where the indictment charges that the crime was committed by both methods, a conviction is sustainable under the indictment based on proof that the crime was committed by either method. Where, however, the indictment alleges that the crime was committed by one method, the State is required by the indictment to prove commission of the crime by that particular method. The indictment in this case charged Daniel with trafficking in amphetamine by reason of having been “knowingly in possession of 28 grams or more of amphetamine.”

Daniel was the passenger in a vehicle that was the subject of a traffic stop. During the course of the stop, she attempted to flee the scene. While in flight, she discarded a bag which the police recovered. Inside the bag were 21 smaller bags. One of the smaller bags contained methamphetamine, and the remaining 20 bags contained amphetamine.

A forensic chemist for the State Crime Lab testified that the material in the 20 bags containing amphetamine weighed 28.8 grams. Although the chemist performed no quantitative analysis on the substance in the bags, he testified that the material was “most likely” composed of a “mixture of stuff.” He estimated that the mixture consisted of between 40 to 60 percent pure amphetamine and that “a fairly large percentage of the weight would be [amphetamine] hydrochloride.” According to the chemist, “[a]mphetamine is usually kept as a hydrochloride salt, because the freebase amphetamine is volatile. It would just evaporate off into the air if . . . they didn’t make the salt out of it.”

Because the above evidence is insufficient to show that Daniel was in possession of 28 grams or more of amphetamine or amphetamine hydrochloride, as opposed to a mixture containing these substances, Daniel was entitled to a directed verdict on the amphetamine trafficking count of the indictment. “However, as the evidence was sufficient, under a Jackson v. Virginia standard!,] ‘ “to support [Daniel’s] conviction for possession of [amphetamine], the case is remanded with direction that a conviction and sentence be entered for that offense.” ’ [Cit.]”

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

Barnes, J., concurs. Smith, P. J., concurs specially.

Smith, Presiding Judge,

concurring specially.

I agree with the result reached by the majority opinion. I write separately to point out that, on first reading, the facts of this case and those in Barnett v. State, 204 Ga. App. 491 (420 SE2d 43) (1992), on one hand, and the circumstances in Bellamy v. State, 243 Ga. App. 575 (530 SE2d 243) (2000), and Belcher v. State, 161 Ga. App. 442 (288 SE2d 299) (1982), on the other, seem to create some tension with one another. In my view, the narrow distinctions between these cases warrant some expanded discussion.

Decided October 9, 2001.

Donna A. Seagraves, for appellant.

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

As in Barnett, although the relevant trafficking statute describes two methods of committing the offense, the indictment here charged that the offense was committed in one specific manner. The State therefore was required to prove that the offense occurred as charged in the indictment. See Barnett, supra at 498. In Bellamy, supra, however, we made the broad statement that OCGA § 16-13-31 (e) “treats pure methamphetamine and a mixture containing methamphetamine equally.” Id. at 579 (2). I do not believe this statement materially conflicts with Barnett or our holding in this case. In Bellamy, unlike the facts here, the defendants were charged with trafficking in a mixture containing methamphetamine. The evidence showed that they were trafficking in pure methamphetamine. It would have been absurd to hold that a fatal variance between the indictment and proof at trial existed in such a circumstance.

Also, this case is distinguished from Belcher, supra. There, we stated that “[a] specific quantity of cocaine is not required to be present in the mixture in order to constitute a violation of’ the trafficking statute. Id. at 443 (1). But in Belcher, unlike this case and unlike Barnett, it appears that the indictment charged the defendant with violating the statute by either of two methods. Consequently, our statement that a specific amount of cocaine was not required was correct in that circumstance. The State could have drafted the indictment here to allege the crime of trafficking in a controlled substance by two different methods. It did not, and the proof at trial simply did not show that Daniel committed the crime as charged in the indictment.

       OCGA § 16-13-26 (3) (A).

       See Bellamy v. State, 243 Ga. App. 575, 579 (2) (530 SE2d 243) (2000).

       See Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982), as interpreted in Barnett v. State, 204 Ga. App. 491, 497 (3) (420 SE2d 43) (1992).

        Byers v. State, 204 Ga. App. 552, 554 (3) (420 SE2d 23) (1992); Barnett v. State, supra.

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

        Barnett v. State, supra at 498 (3).


author: Ruffin, Judge.

text:
    A01A1228.
    ESHENA v. THE STATE.
    (554 SE2d 814)
   Ruffin, Judge.

In April 1988, a jury found Anthony Eshena guilty of armed robbery, and the trial court sentenced him to life in prison. Eshena appealed his conviction, and we affirmed. In August 2000, Eshena filed “A Petition to Correct Void Sentence,” arguing that the trial court’s failure to conduct a presentencing hearing rendered his sentence void. The trial court denied Eshena’s petition, and this appeal ensued. For reasons that follow, we affirm.

As a general rule, a “trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered.” “However, an exception exists where a sentence is void, i.e., where the court has imposed punishment which the law does not allow.”

The term of court in which Eshena was sentenced expired years ago. Eshena nonetheless contends that the trial court has the authority to modify his sentence. According to Eshena, his sentence was void because the trial court imposed it without conducting a presentence hearing, to which he was entitled under OCGA § 17-10-2 (a). We disagree. As the Supreme Court concluded in Williams v. State, “a trial court’s failure to hold a presentence hearing in a non-death penalty case, such as the present one, does not render a sentence void.” Thus, the trial court had no authority to modify Eshena’s sentence, and it correctly denied his petition. .

Because the Supreme Court reached its decision in Williams v. State long after Eshena committed his crime, he argues that the application of this case to his situation violates the prohibition against ex post facto laws. Again, we disagree. An ex post facto law is one that was passed after a crime, which retrospectively alters the legal consequences of the act. Such ex post facto laws are constitutionally prohibited. However, “fw]hen the newly promulgated ‘law’ is a judicial decision, then retroactive application is favored.” Although there are exceptions to this general principle, Eshena fails to demonstrate how any such exception would apply to his case, and we fail to see why Williams should not be applied.

Decided October 10, 2001.

Anthony M. Eshena, pro se.

David McDade, District Attorney, for appellee.

Finally, Eshena argues that he received ineffective assistance of counsel based upon his trial attorney’s apparent waiver of Eshena’s right to a presentence hearing. It is well established that a claim of ineffective assistance must be raised at the earliest opportunity, and failure to do so procedurally bars a future claim. The record shows that Eshena was represented by one attorney at trial and by two new attorneys from the public defender’s office during his appeal. The new attorneys submitted an amended motion for new trial, but declined to add the ineffectiveness issue. Thus, Eshena, through his appellate counsel, had an opportunity to raise his ineffectiveness claim. By failing to do so, he has waived this issue on appeal.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Eschena v. State, 203 Ga. App. 621 (417 SE2d 214) (1992).

        McBee v. State, 239 Ga. App. 314 (521 SE2d 209) (1999).

       (Punctuation omitted.) Id.

       271 Ga. 686 (523 SE2d 857) (1999).

       Id. at 689 (2).

       See id.; McBee, supra.

       See Black’s Law Dictionary (4th ed. 1968), p. 662.

       See Ga. Const, of 1983, Art. I, Sec. I, Par. X.

       (Punctuation omitted.) Ellis v. State, 272 Ga. 763, 765 (1) (534 SE2d 414) (2000).

       See id.

        Wilcox v. State, 236 Ga. App. 235, 238-239 (4) (511 SE2d 597) (1999); Howard v. State, 233 Ga. App. 724, 730 (7) (505 SE2d 768) (1998).

       See id.


text:
    A01A1448.
    HORTON v. THE STATE.
    (554 SE2d 812)
   Ruffin, Judge.

DeWayne Horton was convicted of armed robbery and possession of a firearm during the commission of a felony. In Horton v. State,* we affirmed his convictions, but vacated his sentence and “remand[ed] the case with direction that the trial court consider first offender treatment.” On remand, the trial court sentenced Horton to serve ten years for armed robbery. Horton then instituted this appeal. For reasons that follow, we affirm.

1. In his first enumeration of error, Horton argues that the trial court erred in denying his motion to suppress. Horton made this same argument in his prior appeal, and the issue was decided adversely to him. Relitigation of the issue is barred by res judicata.

2. In his second enumeration of error, Horton challenges the constitutionality of the March 1998 amendment to OCGA § 17-10-6.1, which provides, in pertinent part, that “[n]o person convicted of a serious violent felony [such as armed robbery] shall be sentenced as a first offender.” We note, however, that this amendment was not applied to Horton. Indeed, the sole reason this Court vacated Horton’s sentence and remanded the case to the trial court was to afford Horton “the opportunity to be treated as a first offender.”

It is well settled that a prerequisite to attacking the constitutionality of a statute is a showing that the statute harmed the appellant. Since the allegedly unconstitutional amendment was not applied to Horton, he is unable to meet this prerequisite. It follows that he lacks standing to pursue this constitutional challenge.

3. In his third and final enumeration of error, Horton asserts that the trial court erred in denying him first offender treatment. According to Horton, the trial court’s refusal to exercise its discretion was tantamount to cruel and unusual punishment. We disagree.

Initially, we note that Horton’s ten-year sentence fell within the statutory limits for the offense of armed robbery. And, when a defendant is sentenced within the statutory limits, a presumption arises “that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.”

Horton implies that the trial court’s refusal to sentence him as a first offender demonstrates a mechanical policy of sentencing, which is inconsistent with its discretion. Indeed, this Court has held that “[a] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.”* That is not to say, however, that a trial court is required to treat a defendant as a first offender. To the contrary, trial courts retain discretion in granting first offender treatment. And we vacate and remand only when a trial court refuses to consider such option. Here, this Court has already vacated and remanded the case for the trial court to consider whether Horton should be given first offender treatment. The trial court considered giving Horton first offender status, but concluded it was not appropriate in this case. Thus, the record does not support Horton’s contention that the trial court failed to consider first offender treatment. “It merely reflects a decision not to sentence [Horton] under such discretionary sentencing provisions.” Accordingly, we affirm.

Decided October 10, 2001

Hilliard & Smith, Martin G. Hilliard, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       241 Ga. App. 605 (527 SE2d 254) (1999).

       Id. at 606 (3).

       For possession, of a firearm during the commission of a felony, the trial court sentenced Horton to five years, to run consecutively with the ten-year sentence. However, the trial court suspended the five-year sentence.

       See id. at 605 (1).

       See Parker v. State, 229 Ga. App. 217, 218 (2) (493 SE2d 558) (1997).

        Horton, supra at 606 (3).

       See Agan v. State of Ga., 272 Ga. 540, 542 (1) (533 SE2d 60) (2000).

       See King v. State, 273 Ga. 258, 262 (8) (539 SE2d 783) (2000).

       See OCGA § 16-8-41 (b).

        Burgos v. State, 233 Ga. App. 897, 902 (3), n. 2 (505 SE2d 543) (1998).

       (Punctuation omitted.) Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993).

       See Stinnett v. State, 214 Ga. App. 224 (447 SE2d 165) (1994).

       See Jones, supra.

        Moore v. State, 236 Ga. App. 889, 890 (514 SE2d 73) (1999).


text:
    A01A1495.
    RAY et al. v. SCOTTISH RITE CHILDREN’S MEDICAL CENTER, INC.
    (555 SE2d 166)
   Ruffin, Judge.

Randy Ray and Denise Ray, individually and as next friends and parents of Cody Ray, sued Scottish Rite Children’s Medical Center, Inc. d/b/a Scottish Rite Hospital (“Scottish Rite” or “the hospital”). Scottish Rite moved to dismiss the Rays’ complaint for failure to state a claim on the ground that it is time-barred. The trial court granted the motion, and the Rays appeal. For reasons that follow, we affirm.

A motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6) should “be granted only when it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his or her claim. Otherwise, the claim should be allowed to proceed, as all doubts pertaining to a motion to dismiss must be resolved in the nonmovant’s favor.”*

The record in this case reveals that the Rays’ claims stem from medical care provided to Cody Ray at Scottish Rite. According to the complaint, Cody Ray, who was bom on January 26, 1989, underwent medical procedures performed “primarily by Mary Johnson, M.D.” on four occasions between January 28, 1993, and July 28, 1993. The Rays alleged that Dr. Johnson’s “medical staff privileges were not renewed upon her application to [Scottish Rite] ... in 1991,” and that the hospital knew she “was incompetent to render surgical services to [Cody Ray].” The Rays claimed that Scottish Rite was negligent in retaining Dr. Johnson and allowing her to render care, that the hospital’s failure to disclose Dr. Johnson’s incompetence constituted fraud, and that this fraud resulted in a lack of informed consent, which makes the hospital liable for battery. The Rays also claimed that Scottish Rite is liable for Dr. Johnson’s negligence under respondeat superior.

This is not the first action that the Rays have filed based on the care rendered by Dr. Johnson. The Rays filed a medical malpractice complaint against Dr. Johnson, which they dismissed with prejudice on March 19, 1997. In addition, the Rays previously commenced an action against Scottish Rite on April 16, 1999, but dismissed that action on August 17,1999. The Rays filed the instant action on June 6, 2000.

The trial court granted the hospital’s motion to dismiss, finding that it is barred by the statute of limitation and statute of repose for medical malpractice actions. On appeal, the Rays assert that the trial court erred in relying on the medical malpractice statutes of limitation and repose because their cause of action against Scottish Rite for negligent retention is not an action for medical malpractice. We disagree.

Our Code defines “an action for medical malpractice” as

any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

The import of this definition is clear. An action against Scottish Rite for injuries which arose out of the care rendered by Dr. Johnson, acting within the scope of her employment, constitutes an action for medical malpractice. It does not matter that the Rays’ cause of action for negligent retention raises different factual issues concerning the hospital’s conduct as opposed to Dr. Johnson’s conduct — their claim nevertheless calls into question Dr. Johnson’s professional skills, or lack thereof, and their damages are predicated upon proof that Dr. Johnson’s substandard medical care caused Cody’s injuries.

We addressed this issue in Blackwell v. Goodwin, where the plaintiffs sued not only the health care professional, a nurse who was alleged to have improperly performed a medical procedure, but also her employer. The plaintiff claimed the employer was liable for negligent hiring, supervision, retention, and entrustment. We held that, although the claims against the employer were based on its own negligent employment practices, they nonetheless arose out of the medical services provided by its agent “in the exercise of her professional skill and judgment.” Likewise, although the Rays’ negligent retention claim in this case is based on Scottish Rite’s own negligence, the claimed damages still arose out of the care rendered by the hospital’s agent, Dr. Johnson.

The Rays argue that “[i]f Blackwell is upheld as the law of this state . . . then the effect is to debase and ignore the clear expression of the Georgia Supreme Court.” Their argument is presumably based on Mitchell County Hosp. Auth. v. Joiner, in which the Supreme Court recognized that the plaintiff could hold a hospital authority liable based on its “independent negligence in permitting the alleged negligent physician to practice his profession in the hospital, when his incompetency is known.” Although we agree with the Rays that the Court in Joiner recognized the validity of their cause of action against Scottish Rite, we cannot discern how our decision in Blackwell conflicts with that case. The Court in Joiner plainly did not address whether such a claim constituted a cause of action for medical malpractice. Furthermore, it appears from the Court’s opinion that the plaintiff’s claim for negligent retention was dependent, in part, on the “alleged negligente of the] physician.” Thus, we conclude that the trial court in this case did not err in finding that the Rays’ complaint for negligent retention constitutes an action for medical malpractice.

We must still determine, however, whether the claim is barred by the statutes of limitation and repose. Medical malpractice actions are governed by a two-year statute of limitation and a five-year statute of repose. Thus, subject to limited exceptions, “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” The only exception applicable to this case is for minors who are under five years old when the medical malpractice action accrues. Medical malpractice claims of such minors are subject to a statute of limitation of two years from the date of their fifth birthday and a statute of repose which bars any action brought “by or on behalf of . . . [the] minor . . . [a]fter the tenth birthday of the minor.”

In this case, the last alleged negligent act or omission occurred no later than July 28, 1993. Thus, any claims brought by Cody Ray’s parents in their individual capacity after July 28,1995, are barred by the two-year statute of limitation, and any such claims filed by the parents after July 28, 1998, are barred by the five-year statute of repose. The individual claims the parents assert in the instant complaint, filed June 6, 2000, are clearly barred by the statutes of limitation and repose.

The Rays’ claims filed on behalf of Cody Ray are likewise time-barred. The Rays’ complaint reveals that Cody, who was bom on January 26, 1989, was under five years old when he was allegedly injured by Dr. Johnson’s medical negligence. Cody turned five on January 26,1994. Thus, any claims brought on behalf of Cody by his parents after he turned seven on January 26, 1996, are barred by the statute of limitation, and any such claims filed by the parents after July 28, 1999, are barred by the statute of repose. The parents’ claims brought on behalf of Cody on June 6, 2000, are therefore barred by the statutes of limitation and repose.

To the extent the Rays seek to avoid this result on the ground that the instant action is a properly filed renewal action, we find no merit in their argument. Renewal actions are governed by OCGA § 9-2-61 (a), which provides that

Decided October 10, 2001.

Robert J. White, for appellants.

[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.

We find several obstacles to the Rays’ reliance on the renewal statute. First, the Rays did not commence their initial suit against Scottish Rite within the two-year statute of limitation. That statute expired on January 26, 1996, two years after Cody Ray turned five years old, and the Rays did not file the original action until April 16, 1999. Second, even if the first action was timely filed, the second action was not filed within six months of the first action’s dismissal. Finally,

the Supreme Court has held that the legislature never intended for the dismissal and renewal statutes to overcome the five-year statute of repose for medical malpractice actions. . . . The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. A voluntary dismissal terminates the action completely. An action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo. It logically follows that a new suit on a nonexisting cause of action cannot proceed.

Accordingly, the Rays’ contention that the instant complaint constitutes a properly filed renewal action is without merit. The trial court did not err in dismissing the complaint.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Alston & Bird, Dow N. Kirkpatrick II, Robert P. Riordan, Christopher A. Riley, for appellee.

       (Citations and punctuation omitted.) Lange v. Standard Tel. Co., 243 Ga. App. 301, 304 (3) (533 SE2d 162) (2000).

       Although the Rays did not address the malpractice action against Dr. Johnson in their complaint, it was raised by the hospital in pleadings before the trial court, recognized by the trial court in its order, and acknowledged by the Rays in their reply brief on appeal. Such acknowledgment constitutes a binding admission in judicio. See Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 780, n. 10 (542 SE2d 171) (2000).

       In their complaint, the Rays indicated that they dismissed the earlier action because prior “counsel raised allegations pertaining to medical malpractice but neglected to file an expert witness affidavit.”

       See OCGA §§ 9-3-71 (b), (c); 9-3-73 (c) (2).

       (Emphasis supplied.) OCGA § 9-3-70.

       See Knight v. Sturm, 212 Ga. App. 391, 392 (2) (442 SE2d 255) (1994); see also Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 855 (1) (467 SE2d 186) (1996) (stating “[w]ith reference to the issue of proximate cause, there can be no recovery by a plaintiff for the negligence of a defendant which was not the proximate cause of the injury. If the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof”) (punctuation omitted).

       236 Ga. App. 861 (513 SE2d 542) (1999).

       Id. at 865 (2).

       See id.

       229 Ga. 140, 141 (189 SE2d 412) (1972).

       (Emphasis supplied.) Id. at 141, 143.

       See id. at 141-143.

       See id. at 141.

       OCGA § 9-3-71 (a)-(c).

       OCGA § 9-3-71 (b).

       OCGÁ § 9-3-73 (b), (c) (2) (A).

       See OCGA § 9-3-71 (a)-(c).

       See id.

       See OCGA § 9-3-73 (b), (c) (2) (A).

       (Emphasis supplied.)

       See OCGA § 9-3-73 (b).

       (Citation and punctuation omitted.) Blackwell, supra at 863 (2) (citing Wright v. Robinson, 262 Ga. 844, 845-846 (1) (426 SE2d 870) (1993)).


author: Johnson, Presiding Judge.

text:
    A01A1527.
    FLOYD v. GORE et al.
    (555 SE2d 170)
   Johnson, Presiding Judge.

We granted G. William Floyd’s application for discretionary review of the trial court’s denial of his motion to set aside a judgment. For the reasons which follow, we reverse the judgment of the trial court.

Harold and Barbara Gore were majority stockholders in Acadia Manufacturing Corporation. In November 1986, Floyd loaned Acadia Manufacturing $250,000. Acadia Manufacturing executed a promissory note in favor of Floyd, and the Gores executed a guaranty, wherein they personally agreed to pay the note upon default. The guaranty was secured by a parcel of the Gores’ real property located in Rabun County, Georgia.

By November 1987, the loan was in default. In 1989, Floyd sued the Gores on their guaranty in the State Court of Fulton County, seeking to satisfy the indebtedness. Floyd chose not to foreclose on the collateral at that time, but he did file a notice of lis pendens on the property. In August 1996, when no further action had been taken to prosecute Floyd’s lawsuit against the Gores, the court dismissed his lawsuit for want of prosecution.

In May 1997, the Gores filed a petition in Rabun County Superior Court seeking to quiet title to the real property that had served as collateral for the loan guaranty. As part of the petition, the Gores moved to serve Floyd by publication pursuant to OCGA § 23-3-65 (b), alleging that Floyd’s last known address was “Suite 300, Equitable Bank Building, 10320 Little Patuxent Parkway, Columbia, Maryland, 21044,” and that “on information and belief,” he can no longer be found at that address. The Rabun County court granted the motion and allowed service by publication. The Gores mailed the lawsuit to Floyd at the Equitable Bank Building office address shown in the guaranty document. The court clerk also attempted to serve Floyd with notice of the petition by certified mail at that address, but the notice was returned to sender. Floyd did not receive the petition or notice thereof and did not respond.

In September 1997, the Rabun County court entered an order acknowledging that the Fulton County court had dismissed Floyd’s case for want of prosecution and that, because more than six months had passed without Floyd refiling the action, his suit against the Gores was effectively dismissed with prejudice. The Rabun County court found in favor of the Gores and ordered that Floyd’s claim be removed as a cloud upon the Gores’ title to the property.

Floyd learned of the dismissal and quiet title orders sometime in 1998. In September 2000, he moved to set aside the quiet title order pursuant to OCGA § 9-11-60 (d). Floyd appeals from the trial court’s denial of the motion.

On appeal, Floyd argues that the Rabun County Superior Court erred in denying his motion to set aside when, among other things, he was not properly served in the quiet title action. We agree with Floyd that he was not properly served and therefore reverse.

1. A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties that the action is pending and to afford them an opportunity to present their objections. In most circumstances, service must be made upon the defendant personally, or at his residence, or upon his agent.

The Gores argue that the method of service used in this case, i.e., service by publication, was sufficient pursuant to OCGA § 23-3-65 (b). They add that personal service was not required here because this was an in rem, rather than an in personam, proceeding. Regardless of whether the action is classified as in rem, quasi in rem, or in personam, service by publication was not authorized given the facts of this case.

OCGA § 23-3-65 (b), which applies to proceedings brought to remove a cloud upon title to land, provides:

Process shall be served upon known persons whose residence is ascertainable by the sheriff or his deputy as provided by law. In all cases where service by publication is permitted under the laws and where the respondent or other party resides outside this state or whose residence is unknown and it is necessary to perfect service upon such person by publication, upon the fact being made to appear to the judge . . . , the judge or clerk may order service to be perfected by publication.

(Emphasis supplied.)

Our first inquiry under OCGA § 23-3-65 (b) is whether service by publication is permitted under the laws of this State, given the situation presented here. We hold that it is not.

As our Supreme Court pointed out in Abba Gana v. Abba Gana, “regardless of whether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding.”

The Court observed further that: “Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.”

The circumstances are different in each case, and no sweeping rule applies to all determinations of whether reasonable diligence has been exercised. Our courts have a duty to determine whether the plaintiff has exercised due diligence in pursuing every available channel of information. And, while the trial court first passes upon the legality of notice, the appellate courts must independently decide whether if, under the facts of the case, the search for the interested party was legally adequate.*

The facts of this case lead to the conclusion that the Gores’ search for Floyd, if there was any search at all, was not legally adequate. In their motion to serve Floyd by publication, the Gores alleged only that it was their belief that Floyd could not be found at his last known address. They gave no basis for that belief and included no information suggesting that they even attempted to find Floyd.

Conversely, in support of his motion to set aside, Floyd presented an affidavit in which he testified that he relocated his office in December 1995, but that his home address has not changed in over 32 years. Floyd added that his home address has been listed in the Columbia, Maryland; Baltimore, Maryland; and Washington, D.C., phone directories the entire time he has resided at that address. Floyd stated that he communicated with the Gores regularly from before November 1986, when he made the loan, until sometime after May 1989 and, in Floyd’s opinion, the Gores knew he was a Columbia, Maryland, resident and also knew his attorney’s name and where his attorney’s office was located. Yet, the Gores did not inform Floyd or his attorney of the pending suit. Floyd’s statements are not contradicted by the record.

Thus, it does not appear that an attempt to locate Floyd would have been impractical or fruitless, since there were obvious channels of information available to the Gores. And despite the existence of these potential sources of information, the record does not show that the Gores made any reasonably diligent and honest efforts to find Floyd.

As recognized in In the Interest of J. B., “notice by publication in a local newspaper is virtually no notice at all to nonresidents and . . . ‘process which is a mere gesture is not due process.’ ” Certainly, our courts have approved of notice by publication in a class of cases where it is not reasonably possible or practical to give more adequate warning. The means employed must be such as one who desires to actually inform the absentee might reasonably adopt to accomplish that goal. We are not convinced that this was one of those cases in which it was not possible or practical to give more adequate notice. Nor are we convinced that a plaintiff equipped with the channels of information available to the Gores, and who actually wanted to notify the defendant of the pending action, would have adopted the means of service used in this case. Here, service by publication did not meet the constitutional requirements of due process and was not permitted under the law.

A second inquiry under OCGA § 23-3-65 (b) involves whether service by publication was necessary. As discussed above, the record reveals that reasonably available channels of information were open to the Gores, but that they apparently made no attempts to ascertain Floyd’s location. Because service by publication was not shown to be necessary, it was not authorized by OCGA § 23-3-65 (b).

We are not persuaded by the Gores’ contention that service by mail was sufficient based on a clause in the guaranty signed by the Gores. The Gores rely on the following provision: “All notices, demands, or requests provided for or permitted to be given pursuant to this Guaranty must be in writing and shall be deemed to have been properly given or served by personal delivery or by depositing in the United States Mail. . . and addressed to the addresses set forth below.”

Decided October 10, 2001.

Taylor W. Jones & Associates, Taylor W. Jones, Jenny E. Jensen, for appellant.

Cornelison & Ziolo, Rex P. Cornelison III, John A. Ziolo, for appellees.

While a defendant may, in certain cases, waive service of process by written agreement, there was no such waiver in this case. The clause at issue does not refer to actions brought in a court of law, only to notices, demands, or requests provided for in the guaranty. There is nothing in the guaranty which indicates that such “notices, demands, or requests” include service of a complaint and summons. Nor does the guaranty contain any express language that Floyd agrees to accept service of legal process by mail. The law will not infer the waiver of an important right unless the waiver is clear and unmistakable. The provision at issue does not express a clear, unmistakable intent to waive personal service of legal process. The attempted service upon Floyd by mail in this case was inadequate to confer jurisdiction.

Therefore, the trial court erred in denying Floyd’s motion to set aside the judgment quieting title.

2. In light of our holding that the trial court erred in denying Floyd’s motion to set aside based on insufficient service of process, we need not address his remaining arguments as to why his motion should have been granted.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       See OCGA § 9-2-61.

       It is not clear from the record how or where Floyd received notice of the orders.

        Bethco, Inc. v. Cinema ‘N’ Drafthouse Intl., 204 Ga. App. 143, 145 (2) (418 SE2d 467) (1992); see Johnson v. Mayor &c. of Carrollton, 249 Ga. 173, 175 (1) (288 SE2d 565) (1982).

       See generally former OCGA § 9-11-4 (d) (2), (7) (OCGA § 9-11-4 was amended effective July 1, 2000; the former version applies here).

       In an in rem or quasi in rem action, a judgment is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner. See Brown v. Rock, 184 Ga. App. 699, 700 (2) (362 SE2d 480) (1987).

       251 Ga. 340 (304 SE2d 909) (1983).

       (Emphasis supplied.) Id. at 343 (1); Johnson, supra.

       Id.

        Abba Gana, supra.

       Id.

       Id.; see Pierce v. Pierce, 270 Ga. 416, 417-418 (511 SE2d 157) (1999).

       See Abba Gana, supra at 344.

       140 Ga. App. 668, 671 (231 SE2d 821) (1976).

       Id.

        Bethco, supra.

       See Pierce, supra.

       See generally OCGA § 9-10-73.

       See generally Beverage Mgmt. Solutions v. Yankee Spirits, 218 Ga. App. 95, 97 (1) (460 SE2d 564) (1995).

       See Croxton v. MSC Holding, 227 Ga. App. 179, 183 (3) (489 SE2d 77) (1997); see generally Ashworth v. Busby, 272 Ga. 228, 229 (526 SE2d 570) (2000).

       Compare Lightsey v. Nalley Equip. Leasing, 209 Ga. App. 73, 74 (1) (432 SE2d 673) (1993).


text:
    A01A1564, A01A1566.
    A01A1565.
    ATLANTA JOURNAL-CONSTITUTION et al. v. JEWELL (two cases). JEWELL v. COX ENTERPRISES, INC. et al.
    (555 SE2d 175)
   Johnson, Presiding Judge.

These cases arise from coverage by the Atlanta Journal-Constitution of the 1996 bombing in Centennial Olympic Park and Richard Jewell’s involvement in that incident. The initial media coverage of the Olympic Park bombing portrayed Jewell as a hero for his role in discovering the bomb, alerting authorities, and evacuating bystanders from the immediate vicinity, no doubt saving lives. Subsequently, however, the Federal Bureau of Investigation (FBI) focused its investigation on Jewell. The resulting media coverage of the criminal investigation caused Jewell and his family considerable anguish, while converting Jewell’s status from hero to suspect. The investigation ultimately cleared Jewell of any involvement in the bombing. And through subsequent media coverage of the investigation, his role in these events has once again been depicted as the positive role it was originally believed to be.

In Case No. A01A1564, the Atlanta Journal-Constitution seeks review of a June 1999 trial court order holding two of its reporters in contempt and ordering them incarcerated indefinitely for failing to disclose the identities of confidential news sources who provided information regarding Jewell’s status in the Olympic Park bombing investigation. In Case No. A01A1565, Jewell seeks review of an October 1999 trial court order finding him to be a limited-purpose public figure for purposes of his defamation action. In Case No. A01A1566, the Atlanta Journal-Constitution seeks review of the trial court’s refusal to grant its motion for judgment on the pleadings and its motion for summary judgment.

Case No. A01A1564

Throughout this case, the Atlanta Journal-Constitution has consistently refused to provide Jewell with the names of confidential sources who allegedly provided its reporters with information concerning Jewell’s status in the investigation of the Olympic Park bombing. On February 26, 1998, Jewell filed a motion to compel discovery, specifically requesting the names of the Atlanta Journal-Constitution’s confidential sources. The trial court granted Jewell’s motion to compel, finding that no reporter’s privilege exists in Georgia for a reporter in a libel case, where the reporter is also a party to the case. Subsequently, counsel for the Atlanta Journal-Constitution instructed a deponent not to answer questions regarding the confidential informants. On May 8, 1998, the Atlanta Journal-Constitution filed a motion seeking a protective order precluding discovery of the reporters’ confidential sources. The trial court denied this motion.

Jewell filed a motion for sanctions, asking that the newspaper and its reporters be held in contempt of court based upon their knowing, wilful, conscious, deliberate, and public refusal to obey the trial court’s order requiring them to reveal their confidential sources. On December 15, 1998, and again on March 16, 1999, the trial court ordered the Atlanta Journal-Constitution to reveal information about its confidential sources. The Atlanta Journal-Constitution and its reporters refused to comply with the trial court’s orders. As a result of their “willful and continued disobedience,” the trial court held the Atlanta Journal-Constitution and the two reportérs in civil contempt on June 3, 1999, and ordered the incarceration of the two reporters until such time as they disclosed their confidentiál sources as required by the trial court’s discovery orders. This appeal followed. As to that portion of the appeal regarding defendant Kathy Scruggs, the matter is now moot. As to the remaining defendants, for the reasons discussed below, we vacate the orders requiring disclosure of the reporters’ confidential sources, as well as the contempt order, and remand the case to the trial court with direction that it revisit the issue in a manner consistent with this opinion.

1. In every case where a person is charged with contempt of court for alleged violations of a court’s order, the legal correctness of the underlying order may be challenged on appeal. However, “if the [trial] court has jurisdiction to make the order, it must be obeyed however wrong it may be” until the order is superseded or vacated. The thrust of the appeal in this case is a challenge to the correctness of the discovery orders compelling the defendants to disclose their confidential sources. Our determination that these underlying orders are erroneous and must be vacated also has the effect of dissolving the civil contempt order which is based upon the violation of these discovery orders.

During discovery Jewell sought the disclosure of certain confidential sources that the Atlanta Journal-Constitution and its reporters relied upon in publishing allegedly defamatory statements. The Atlanta Journal-Constitution argues that these communications are privileged and protected by the First Amendment and by statute. Thus, the first issue raised in this appeal is whether the Atlanta Journal-Constitution and its reporters have a privilege against revealing the identification of confidential informants in a case where they are parties. This does not present a new or novel question of law, as it is well settled in the jurisprudence of the United States Supreme Court and the Georgia appellate courts. It has been expressly addressed by an Act of the Georgia Legislature as well. The Atlanta Journal-Constitution and its reporters have no such privilege.

The United States Supreme Court has declined to recognize or create a testimonial privilege for journalists under the First Amendment to the United States Constitution:

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.

The Atlanta Journal-Constitution claims that such a privilege is necessary to maintain a free press, but this argument has been considered and rejected by the United States Supreme Court, where Justice White, in his assessment of such an argument, wrote for the Court:

We are admonished that refusal to provide a First Amendment reporter’s privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.

Georgia’s appellate courts have likewise found that the state constitutional right to a free press does not protect a reporter from disclosing the identity of a confidential source. Aside from the constitutional issues, both the Supreme Court of Georgia and this Court have consistently held that under Georgia law, there is no common law privilege protecting a reporter’s decision to refuse to disclose his or her confidential sources.

As for any statutory privilege, OCGA § 24-9-30 speaks directly to the issue. This statute establishes a qualified privilege for persons engaged in the gathering and dissemination of news. It provides that a reporter does not have to reveal his or her sources unless the privilege has been waived or it is shown that the information sought is material and relevant, cannot be reasonably obtained by other means, and is necessary to the proper presentation or preparation of the case of a party seeking the information, documents, or items.

The trial court correctly concluded, however, that the Atlanta Journal-Constitution and its reporters cannot rely on the qualified privilege established in OCGA § 24-9-30 because the language of the statute specifically provides that this qualified privilege applies only “where the one asserting the privilege is not a party.” The qualified privilege simply is not available to one asserting the privilege who is a party to the lawsuit. Since the Atlanta Journal-Constitution and its reporters are named defendants in this action, they cannot rely upon the qualified privilege afforded by OCGA § 24-9-30. In deciding this issue, the trial court properly declined to apply the three-part balancing test set out in the statute. However, as discussed below, other provisions of Georgia law require the trial court to balance the interests of the parties in virtually the same manner as the statute would require if it applied here.

2. Although the Atlanta Journal-Constitution and its reporters may not rely upon any privilege in refusing to reveal the identities of confidential informants in a case where they are parties, the trial court’s inquiry does not end there. For although there is no federal or state constitutional privilege, legislative act, or common law which protects against the disclosure of confidential sources, there is a strong public policy in favor of allowing journalists to shield the identity of their confidential sources unless disclosure is necessary in order to meet other important purposes of the law. This public policy is not only reflected in the statute creating the qualified privilege discussed above, but also in jurisprudence regarding the protection of all sensitive material under the protective order provisions of the discovery rules. Thus, the trial court must consider the general rules regarding protective orders in discovery disputes.

Under OCGA § 9-11-26 (b) (1), a party may obtain only discovery “which is relevant to the subject matter involved in the pending action” and “appears reasonably calculated to lead to the discovery of admissible evidence.” A trial court has wide discretion in entering orders to prevent the use of discovery directed to irrelevant or immaterial matter.

Under general discovery rules applicable to all parties, not only must a trial court determine whether the requested discovery is relevant and material, but when parties seek discovery of unprivileged but sensitive materials, the trial court must balance the requesting party’s specific need for the material against the harm that would result by its disclosure. Even where a privilege is unavailable, there is a strong public policy favoring the protection of the confidentiality of journalists’ sources consistent with that favoring the protection of other types of sensitive information during discovery. Thus, the trial court was obligated under OCGA § 9-11-26 to balance Jewell’s need for the identities of the confidential informants against the Atlanta Journal-Constitution’s interest in protecting the privacy of the confidential informants and the freedom of the press in general. The Atlanta Journal-Constitution correctly claims the court was obligated to apply this balancing test before requiring it to reveal the identities of its confidential informants.

Jewell claims the Atlanta Journal-Constitution did not properly raise this argument because it did not move for a protective order until after the trial court had ruled on Jewell’s motion to compel. However, because the Atlanta Journal-Constitution did assert that Jewell’s motion to compel should be denied, arguing that he was not entitled to the information he sought and that its interest in protecting the informants’ identities outweighed Jewell’s need for the information, we find that the issue is properly before us. The trial court was obligated to apply this balancing test to determine whether Jewell’s discovery requests sought irrelevant and unnecessary information or subjected the Atlanta Journal-Constitution to “annoyance, embarrassment, oppression, or undue burden or expense.”

The record shows the trial court recognized the parties’ competing interests and made an effort to balance these interests. In ruling upon the matter, the trial judge said:

As expressed in previous Orders, the Court is fully cognizant of the role which confidential sources play in the robust collection and reporting of the news and the vital functions which news-gathering entities perform in [a] free society. To the extent that compelling confidential sources may tend to deter other persons from revealing sensitive information, thereby reducing the information available to the public, that is a regrettable but unavoidable secondary effect of legal investigation; the object of which is also the discovery of the truth.

While it is clear that the trial court attempted to strike some balance between Jewell’s need for the information against the Atlanta Journal-Constitution’s desire to maintain the confidentiality of its informants, we do not believe the trial court properly considered all of the competing interests.

To properly perform this balancing test in a libel case, the trial court must require the plaintiff to specifically identify each and every purported statement he asserts was libelous, determine whether the plaintiff can prove the statements were untrue, taking into account all the other available evidentiary sources, including the plaintiff’s own admissions, and determine whether the statements can be proven false through the use of other evidence, thus eliminating the plaintiff’s necessity for the requested discovery. In other words, if Jewell cannot succeed on a specific allegation of libel as a matter of law, or if Jewell is able to prove his specific allegation through the use of available alternative means, then the trial court’s balancing test should favor nondisclosure of confidential sources. If, on the other hand, a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources either is relevant and material in and of itself or is the only available avenue to other admissible evidence, then the trial court’s balancing test should favor disclosure of the confidential sources.

We recognize that, in many respects, the application of this balancing test will involve legal analysis similar to, perhaps even identical to, that required in ruling upon a motion for summary judgment. This will inevitably thwart the trial court’s expressed desire to avoid piecemeal adjudication. However, since we cannot ascertain from the record whether the trial court properly applied the balancing test separately to each of Jewell’s precise allegations, we vacate the judgments holding the reporters in contempt of court, as well as the orders requiring disclosure of the reporters’ confidential sources, and remand this case to the trial court for the judge to perform the balancing test in accordance with this opinion. We suggest an analytical framework which would require Jewell to precisely identify by date, page, and line each published statement he alleges libels him. The trial court should then look to the entire record to determine if each particular claim is legally viable, and if it is, the trial court can then perform the necessary balancing test as to each legally viable allegation of libel. If, for example, a plaintiff in a libel case alleged that a certain statement was libelous while admitting in another statement that the fact was true, his burden of proving that the statement was false could not possibly be met. His libel action as to that statement would not be legally viable, and there should be no order requiring the defendant to disclose the confidential source of that statement.

Case No. A01A1565

Jewell moved for partial summary judgment, asserting the trial court should find that he is a private, versus a public, figure. Specifically, the trial court was asked to determine whether, by his public appearances, Jewell became a limited-purpose public figure prior to the Atlanta Journal-Constitution’s public disclosure that he was under investigation in connection with the bombing of the Olympic Park. The trial court determined that Jewell is a “voluntary limited purpose public figure” and thereby required him to meet the actual malice standard of proof set forth in New York Times Co. v. Sullivan in this defamation action. Jewell appeals this ruling.

In considering this issue, we repeat the basic facts of the case. At the time of the park bombing, Jewell was working as a security guard in the park. Shortly before the explosion, he spotted a suspicious and unattended package and reported its existence to the Georgia Bureau of Investigation. Around the same time, an anonymous 911 call informed police that a bomb had been placed in the park. After he reported the existence of the package, and at a time when police believed the package contained a bomb but did not know when it would explode, Jewell assisted police in moving park patrons away from the package. He also assisted in the evacuation of the five-story tower where the package was located.

Following the explosion of the bomb, but before he became a suspect, Jewell granted one photo shoot and ten interviews. He gave an interview with a reporter from the Boston Globe in which he was quoted regarding the events following his discovery of the package. He gave a live television interview with a CNN reporter which was rebroadcast several times, including on The Larry King Show. In this interview, Jewell related the events and praised the professionalism of emergency personnel. He also discussed his six years of law enforcement training and expressed his hope that following the Olympic Games he would be employed by a law enforcement agency in the Atlanta area. Jewell gave another interview with a CNN reporter in which he recounted the events surrounding the bombing. He reportedly said “that he hoped his efforts would help his career in law enforcement.” He granted a USA Today interview in which he was extensively questioned regarding the events surrounding the bombing and his personal actions after he found the package. He was quoted as saying that personnel performed their jobs properly and again remarked that he hoped to get a job in the Atlanta area after the Olympics. In the meantime, however, he said he would be back at his post, guarding the Olympic venues. He gave an interview with the Atlanta Journal-Constitution in which he was quoted regarding his efforts and the credit due other law enforcement officers. On another occasion Jewell submitted to a session with a photographer for the Atlanta Journal-Constitution. He appeared on television station WXIA-TV for an interview which was replayed every half-hour from 5:00 a.m. through 7:00 a.m., during which Jewell spoke of the professionalism and heroism of emergency personnel in acting promptly and saving lives. He gave a telephone interview on CNN’s Talk Back Live program in which he described the training he and other personnel received in preparation for the Olympic Games and spoke again of his six years in law enforcement in Georgia and of the professionalism of the security, law enforcement, and paramedic personnel. In this interview, Jewell praised the members of the public who continued to attend Olympic events and encouraged them “to show this person or persons that this type of activity would not be tolerated in this world.” He was interviewed by anchorwoman Katie Couric on NBC’s Today Show, where he spoke of his role in discovering the package, the training provided to security personnel regarding suspicious packages, and the response of security personnel. The real heroes, according to Jewell in this interview, were the emergency personnel who risked themselves to protect the safety of the people remaining in the vicinity of the bomb. Following his appearance on the Today Show, Jewell participated in another interview with an NBC reporter, though this interview was not broadcast. He was also interviewed by an unknown reporter following his appearance on the Today Show.

Four days after the bombing, the Atlanta Journal-Constitution published a front-page article headlined “FBI suspects ‘hero’ guard may have planted bomb.” Subsequently, Jewell alleges, approximately 19 articles portrayed him as an individual who was guilty or likely guilty of criminal involvement in the bombing, who had a motive for the bombing, and who had an aberrant personality and a bizarre employment history.

3. The central issue presented by this appeal is whether Jewell, as the plaintiff in this defamation action, is a public or private figure, as those terms are used in defamation cases. This is a critically important issue, because in order for a “public figure” to recover in a suit for defamation, there must be proof by clear and convincing evidence of actual malice on the part of the defendant. Plaintiffs who are “private persons” must only prove that the defendant acted with ordinary negligence. Jewell contends the trial court erred in finding that he is a “public figure” for purposes of this defamation action. We disagree.

The definitive case on how a private citizen becomes a public figure for purposes of a defamation action is Gertz v. Robert Welch, Inc., which held:

Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classified as public figures. . . . For the most part those who attain this status have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

The trial court held that Jewell is a voluntary limited-purpose public figure. Jewell argues that he is not because he did not assume a role of special prominence in the controversy over the safety of Olympic Park, he did not voluntarily thrust himself to the forefront of the controversy of the safety of Olympic Park, and he did not intentionally seek to influence the resolution or outcome of any public controversy surrounding the safety of Olympic Park. Jewell further claims that the alleged defamation in this case is not germane to his participation in the controversy over safety at Olympic Park.

In Silvester v. American Broadcasting Cos., the Eleventh Circuit adopted a three-prong test to determine whether a person is a limited-purpose public figure. Under this test, the court must isolate the public controversy, examine the plaintiff’s involvement in the controversy, and determine whether the alleged defamation was germane to the plaintiff’s participation in the controversy. Whether a person is a public figure, general or limited, is a question of law for the court to resolve.

(a) In isolating the public controversy, the court must look to those controversies that are already the subject of debate in the public arena. The trial court dismissed Jewell’s argument that the public controversy was “who bombed the Olympic Park,” finding this too narrowly defined the controversy. According to the trial court, the public controversy following the bombing and prior to the alleged defamatory statements included the broader question of the safety of the general public in returning to the Olympic Park area. Safety of the park and other Olympic venues after the bombing involved a real dispute. The outcome of that dispute would affect the general public or some segment of it in an appreciable way, and the ramifications of the dispute would be felt by persons who were not direct participants in the public discussion. Neither party argues on appeal that the trial court erred in reaching this conclusion.

(b) The trial court next examined Jewell’s involvement in the controversy. A plaintiff in a libel case must be deemed a public figure if he purposefully tries to influence the outcome of a public controversy or, because of his position in the controversy, could realistically be expected to have an impact on its resolution. A tangential involvement is insufficient. In examining the nature and extent of Jewell’s participation in the issue of Olympic Park safety, the court can look to Jewell’s past conduct, the extent of press coverage, and the public reaction to his conduct and statements. The court must examine these factors as they existed before the alleged defamation was published. An analysis of these factors shows that Jewell assumed a role of special prominence in the Olympic Park safety debate.

While Jewell asserts that his media role was limited to that of an eyewitness and that he did not attempt to shape the resolution of any controversy, Jewell’s participation in interviews and the information he related about the controversy was not so circumscribed. In fact, the extensive media coverage Jewell received as the individual who discovered the bomb and helped evacuate the public led one federal judge to describe him as a “media hero.” The Detroit News headlined its article about the bombing: “Hero: Keen eyesight, level head thrust guard into spotlight.”

While we can envision situations in which news coverage alone would be insufficient to convert Jewell from private citizen to public figure, we agree with the trial court that Jewell’s actions show that he voluntarily assumed a position of influence in the controversy. Jewell granted ten interviews and one photo shoot in the three days between the bombing and the reopening of the park, mostly to prominent members of the national press. While no magical number of media appearances is required to render a citizen a public figure, Jewell’s participation in the public discussion of the bombing exceeds what has been deemed sufficient to render other citizens public figures. Even Jewell commented that the number of interviews he gave — up to two or three within a fifteen-minute period — was so great that he still cannot remember them all. The fact is that Jewell was prominent enough to require the assistance of a media handler to field press inquiries and coordinate his media appearances.

“By publishing your views you invite public criticism and rebuttal; you enter voluntarily into one of the submarkets of ideas and opinions and consent therefore to the rough competition of the marketplace.” Jewell stated that he had spotted the bag after a group of rowdy, college-aged men had left the park. And he announced on CNN that he had matched one of the men to a composite sketch. These statements gave the impression that police had solid leads and the park was safe. Jewell also repeatedly offered assurances that his training had been sufficient to handle the situation, that other law enforcement personnel had received adequate training to handle the situation, and that law enforcement personnel did all they could in response to the situation. In addition, Jewell spoke with a television crew conducting interviews on whether the Olympic Games should continue and whether the park should reopen. He offered encouragement to members of the public who had continued coming to the Olympic Games.

Jewell should have known, and likely did know, that his comments would be broadcast and published to millions of American citizens searching for answers in the aftermath of the bombing. Clearly, his repeated comments regarding the adequacy of the law enforcement preparation, the appropriateness of the response to the bombing, and the safety of those returning to the park could realistically be expected to have an impact on the controversy’s resolution.

Jewell claims he gave the interviews only to accommodate the desires of his employer and that he never intended to have any influence on the matters. Whether a person has voluntarily injected himself into a public controversy in order to have an impact on its outcome cannot be determined solely by reference to the actor’s subjective motives. The court must ask whether a reasonable person would have concluded that Jewell would play or was seeking to play a major role in determining the outcome of the controversy. Viewed objectively, Jewell’s numerous media appearances in the days following the bombing reveal that he attempted to improve the public’s perception of security at the park. The media spokesman who facilitated many of the interviews told Jewell he was under no obligation to do any interviews, but Jewell nevertheless voluntarily made media appearances. This evidence was sufficient to support the trial court’s determination that Jewell was a voluntary limited-purpose public figure.

Furthermore, the United States Supreme Court has held the actual malice rule is applicable whenever “an individual voluntarily injects himself or is drawn into a particular public controversy.” The evidence in this case, at the very least, supports a finding that Jewell was initially drawn into the controversy unwillingly and thereafter assumed a prominent position as to its outcome. Jewell did not reject any role in the public controversy debate, was a prominent figure in the coverage of the controversy, and, whatever his reticence regarding his media appearances, encountered them voluntarily. “[I]t is no answer to the assertion that one is a public figure to say, truthfully, that one doesn’t choose to be. It is sufficient . . . that [Jewell] voluntarily engaged in a course that was bound to invite attention and comment.” The trial court did not err in finding that Jewell met the second prong of the Silvester test.

(c) The third prong of the Silvester test requires the court to ascertain whether the allegedly defamatory statements were germane to Jewell’s participation in the controversy. Anything which might touch on the controversy is relevant. Misstatements wholly unrelated to the controversy do not require a showing of actual malice to be actionable.

As recognized in Waldbaum, a publication is germane to a plaintiff’s participation in a controversy if it might help the public decide how much credence should be given to the plaintiff. Here, Jewell was on the scene in his role as a security guard, he found the bomb and reported its existence to authorities, and he helped evacuate people from the scene. During interviews, he discussed his participation in the events, his previous training, the training and reactions of other law enforcement personnel on the scene, and urged the public to show the bomber that this type of activity would not be tolerated.

Certainly, the information reported regarding Jewell’s character was germane to Jewell’s participation in the controversy over the Olympic Park’s safety. A public figure’s talents, education, experience, and motives are relevant to the public’s decision to listen to him. The articles and the challenged statements within them dealt with Jewell’s status as a suspect in the bombing and his law enforcement background.

4. Even if the trial court erred in finding that Jewell was a voluntary limited-purpose public figure, the record contains clear and convincing evidence that, at the very least, Jewell was an involuntary limited-purpose public figure. While, in general, a public figure voluntarily puts himself into a position to influence the outcome of the controversy, “[occasionally, someone is caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome. Unless he rejects any role in the debate, he too has ‘invited comment’ relating to the issue at hand.” The decision in Dameron v. Washington Magazine provides an excellent example of the types of circumstances in which an individual can become an involuntary public figure.

In Dameron, the plaintiff claimed defamation in connection with a magazine article that mentioned his role as the sole air traffic controller on duty at the time of a notorious airliner crash. Although the plaintiff had not availed himself of the media to speak on the public issues relating to the crash, he was nonetheless held to be an involuntary public figure. The plaintiff’s sole role in the controversy over the cause of the crash was that he was the air traffic controller on duty at the time of the crash and he subsequently testified at a National Transportation Safety Board hearing on the crash.

The same considerations that led the Dameron court to find the plaintiff in that case was an involuntary public figure require the same conclusion in this case. Even if we found that Jewell did not “inject” himself into the controversy, “[i]njection is not the only means by which public-figure status is achieved. Persons can become involved in public controversies and affairs without their consent or will.” Jewell, who had the misfortune to have a tragedy occur on his watch, is such a person.

Like the plaintiff in Dameron, Jewell was an ordinary citizen who was unknown to the public before the Olympic Park bombing, never sought to capitalize on the fame he achieved through his actions in events surrounding the bombing, and never acquired any notoriety apart from the bombing and the investigation which followed. However, there is no question that Jewell played a central, albeit possibly involuntary, role in the controversy over Olympic Park safety. Jewell happened to be the security guard on duty at the time of the bombing, happened to be the security guard who found the bomb, and happened to be involved in the evacuation of the public from the area where the bomb was located. He became embroiled in the ensuing discussion and controversy over park safety and became well known to the public in this one very limited connection. Whether he liked it or not, Jewell became a central figure in the specific public controversy with respect to which he was allegedly defamed: the controversy over park safety.

Case No. A01A1566

5. In this appeal, the Atlanta Journal-Constitution seeks review of the trial court’s refusal to grant its motion for judgment on the pleadings and its motion for summary judgment. The record shows that the Atlanta Journal-Constitution’s motion for judgment on the pleadings was filed on March 27,1997, but was withdrawn on August 21, 1998. Because it had been withdrawn, the trial court never ruled upon the merits of that motion, and there is no ruling for us to review. The withdrawal of the motion renders the matter moot, and mootness is a mandatory ground for dismissal of an appeal.

The Atlanta Journal-Constitution’s motion for summary judgment was filed on December 22, 1998. On March 16, 1999, based on the newspaper’s refusal to obey the trial court’s discovery orders, the trial court issued an order in which it ruled that a decision on the Atlanta Journal-Constitution’s motion for summary judgment would be deferred until discovery, including the newspaper’s compliance with Jewell’s discovery requests, was completed.

At the time this appeal was filed, the discovery issues raised in Case No. A01A1564 had not been resolved. Consequently, the trial court had not scheduled a hearing on the Atlanta Journal-Constitution’s motion for summary judgment.

6. Jewell has filed a motion to dismiss this appeal on the basis that this Court lacks jurisdiction to consider the appeal because there is no ruling by the trial court for us to review. As this Court recently explained in Waters v. Glynn County: “Where a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it.” This is particularly true when the record below shows that a trial court has not ruled on a motion for summary judgment.

We have noted that the Atlanta Journal-Constitution’s motion for judgment on the pleadings was rendered moot when it was withdrawn on August 21, 1998. Regarding the trial court’s refusal to grant the Atlanta Journal-Constitution’s motion for summary judgment, it is clear that any arguments in this regard are not ripe for review by this Court. Enumerations of error relating to a motion for summary judgment which have not yet been ruled upon are not ripe for appellate review because there has been no ruling below, and this Court may not address these issues in the first instance.

7. Even if we construe the Atlanta Journal-Constitution’s enumerations of error as appealing the trial court’s order deferring a ruling on the Atlanta Journal-Constitution’s motion for summary judgment, the argument fails. It was within the trial court’s discretion to defer a ruling in this case, especially in light of the Atlanta Journal-Constitution’s continued refusal to comply with the trial court’s orders concerning discovery. The Atlanta Journal-Constitution’s refusal to comply with the trial court’s orders compelling discovery directly resulted in the trial court’s refusal to rule on the motion for summary judgment. On appeal, one cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.

Moreover, it is beyond dispute that our decision as to the issues in Case Nos. A01A1564 and A01A1565 will have a direct and significant impact on the trial court’s ruling on the motion for summary judgment. Until it was determined with finality whether Jewell is to be considered a private or public citizen, the standard of proof necessary for Jewell to maintain his claim was unsettled. It has only now been finally determined that as a public figure, Jewell must show by clear and convincing evidence that false and defamatory statements were published with actual malice. Had we determined that Jewell acted as a private citizen, he would have been required only to show by a preponderance of the evidence that false and defamatory statements were negligently published. Thus, before the trial court could properly rule on the Atlanta Journal-Constitution’s motion for summary judgment, it had to know with finality whether Jewell is a private citizen or a public figure plaintiff, something the trial court could not know until the decision in these appeals was rendered. Since discovery in this case was ongoing, the trial court did not err in refusing to rule on the Atlanta Journal-Constitution’s motion for summary judgment.

Decided October 10, 2001

Dow, Lohnes & Albertson, Peter C. Canfield, Sean R. Smith, Thomas M. Clyde, James A. Demetry, for appellants.

L. Lin Wood, Jr., G. Watson Bryant, Jr., David B. Hornsby, Mahaley C. Paulk, for appellee.

Hull, Towill, Norman, Barrett & Salley, David E. Hudson, amicus curiae.

For these reasons, Jewell’s motion to dismiss this appeal is hereby granted.

Judgment vacated and case remanded with directions in Case No. A01A1564. Judgment affirmed in Case No. A01A1565. Appeal dismissed in Case No. A01A1566.

Ruffin and Ellington, JJ., concur.

       One of the two reporters named in the action, Kathy Scruggs, is now deceased. The appeal from the contempt order insofar as it applies to her is moot.

       Pursuant to OCGA § 5-6-34 (b).

        Pearson a George, 211 Ga. 18 (3) (83 SE2d 593) (1954).

       See Gilbert v. E & W Constr. Co., 181 Ga. App. 281, 284 (351 SE2d 523) (1986).

        Branzburg v. Hayes, 408 U. S. 665, 689-690 (92 SC 2646, 33 LE2d 626) (1972) (plurality opinion).

       Id. at 698-699.

        Howard v. Savannah College &c., 259 Ga. 795 (387 SE2d 332) (1990); Vaughn v. State, 259 Ga. 325, 326 (1) (381 SE2d 30) (1989).

       See Plunkett v. Hamilton, 136 Ga. 72, 81-84 (7) (70 SE 781) (1911); Ga. Communications Corp. v. Horne, 164 Ga. App. 227, 228 (1) (294 SE2d 725) (1982).

       OCGA § 24-9-30.

       See In re Paul, 270 Ga. 680, 684-685 (513 SE2d 219) (1999).

        Mead Carp. v. Masterack, 243 Ga. 213, 215 (253 SE2d 164) (1979).

        Ledee v. Devoe, 225 Ga. App. 620, 625 (2) (484 SE2d 344) (1997) (physical precedent only).

       OCGA § 9-11-26 (c).

       376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964).

       See id.

       See Gertz v. Robert Welch, Inc., 418 U. S. 323 (94 SC 2997, 41 LE2d 789) (1974); Triangle Publications v. Chumley, 253 Ga. 179, 180-182 (1) (317 SE2d 534) (1984).

        Gertz, supra at 342, 345.

       839 F2d 1491, 1494 (11th Cir. 1988).

        Waldbaum v. Fairchild Publications, 627 F2d 1287, 1293, n. 12 (D.C. Cir. 1980).

       Id. at 1297.

       Id.; Silvester, supra at 1494-1495.

        Silvester, supra at 1496.

       Id.

        Waldbaum, supra at 1297.

       Id. at 1295, n. 19.

        In re Four Search Warrants, 945 FSupp. 1563, 1564 (N.D. Ga. 1996).

       See Finkelstein v. Albany Herald Publishing Co., 195 Ga. App. 95, 97 (1) (392 SE2d 559) (1990) (one appearance on a local television program and quotes in one newspaper article criticizing district attorney sufficient to make plaintiff a limited-public figure).

        Dilworth v. Dudley, 75 F3d 307, 309 (7th Cir. 1996).

        Waldbaum, supra at 1298.

       (Emphasis supplied.) Gertz, supra at 351.

       See Silvester, supra at 1496.

       (Citation and punctuation omitted.) Id.

       Id. at 1497.

       See Waldbaum, supra.

       Id.

       Id.

       Id.

       Id.; Silvester, supra at 1496.

       779 F2d 736, 741-742 (D.C. Cir. 1985).

       Id. at 740-743.

       Id. at 741.

       OCGA § 5-6-48 (b) (3).

       237 Ga. App. 438, 441 (4) (514 SE2d 680) (1999).

       See Hardin v. Leitch, 232 Ga. App. 432, 433 (2) (502 SE2d 288) (1998) (a motion for summary judgment that has not been ruled upon is not ripe for review).

       Id. See also Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 508 (481 SE2d 246) (1997) (where issues are not ruled upon by the trial court, they are outside the jurisdiction of this Court); Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 836 (3) (479 SE2d 435) (1996) (trial court’s failure to grant or deny motion for summary judgment leaves this Court with no jurisdiction to consider the issues raised by the motion).

        Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga. App. 1, 3 (456 SE2d 71) (1995).

        St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262) (1968).

        Triangle Publications, supra at 180.

       See generally Barber v. Perdue, 194 Ga. App. 287 (390 SE2d 234) (1989).


author: Ellington, Judge.

text:
    A01A1573.
    PRESLEY v. THE STATE.
    (555 SE2d 156)
   Ellington, Judge.

A Barrow County jury convicted Dallas Lee Presley of conspiracy to commit aggravated assault, OCGA §§ 16-4-8; 16-5-21 (a), and delivery of a firearm to an inmate, OCGA § 42-4-13 (d) (1) (A). Following the denial of his motion for a new trial, Presley appeals, challenging the form of the indictment, the admission into evidence of his inculpatory statement, and the sufficiency of the evidence. Finding no error, we affirm.

1. Presley contends the trial court erred in admitting his custodial statement. A custodial statement is admissible only if it was made “voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. “To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances.” (Citation and punctuation omitted.) Gober v. State, 264 Ga. 226, 228 (2) (b) (443 SE2d 616) (1994). See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). “The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous.” (Citation omitted.) York v. State, 242 Ga. App. 281, 292 (6) (528 SE2d 823) (2000). A statement may be voluntary even where, as here, the suspect has a limited education. Rachel v. State, 247 Ga. 130, 132-133 (2) (274 SE2d 475) (1981); Gilham v. State, 232 Ga. App. 237, 239-240 (2) (501 SE2d 586) (1998); Newsome v. State, 180 Ga. App. 243, 244 (3) (348 SE2d 759) (1986).

We have reviewed the videotaped interview and the testimony of Presley and the investigator. Under the totality of the circumstances, the trial court’s conclusion that the custodial statement was made freely and voluntarily was not clearly erroneous. Selley v. State, 237 Ga. App. 47, 49 (3) (514 SE2d 706) (1999) (statement voluntary despite promise to tell the prosecutor that defendant cooperated); Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997) (statement voluntary despite suggestion that defendant’s girlfriend might otherwise be charged as an accessory to the crime). See Walton v. State, 152 Ga. App. 97, 98-99 (1) (262 SE2d 252) (1979) (evidence did not show that custodial statement was induced by a promise to release defendant’s wife).

2. In related enumerations, Presley attacks his conviction for conspiracy to commit aggravated assault.

(a) First, Presley contends that Count 1 of the indictment as to conspiracy to commit aggravated assault was fatalfy defective, in failing to identify a specific victim. Count 1 of the indictment charged Presley of conspiring with Emory Wayne Cochran, an inmate awaiting trial on a capital murder charge,

to commit the crime of aggravated assault on a peace officer by planning to take control of a Barrow County peace officer, using a handgun, a deadly weapon, and did commit an overt act to effect the object of the conspiracy, to wit: a) [Cochran] and [Presley] planned Cochran’s escape from the Barrow County jail; b) [Cochran] communicated with [Presley] after Presley was released from jail about placing a gun in the Barrow County Law library; c) [Cochran] requested to go to the Law library; d) [Presley] placed a gun in the Law library; e) [Cochran] checked the prearranged location for the gun at the Law library; f) [Cochran] possessed a homemade handcuff key on his person that would release his restraints.

Presley contends “[i]ndictments alleging crimes against persons, [including conspiracy to commit aggravated assault,] are required to name the intended victim,” citing Irwin v. State, 117 Ga. 722 (45 SE 59) (1903); Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000). Presley contends this requirement is the only check on “the imagination of the prosecuting attorney” who otherwise could have charged him with every crime that could be committed against a person with a weapon multiplied by as many counts of each charge as the number of people who conceivably could have been victimized.

We are not concerned, however, with the multiplicity of possible indictments the State’s attorney could have imagined, but with the indictment the State actually took to trial.

The purpose of the indictment is to allow the defendant to intelligently prepare his defense and protect him from double jeopardy. A post-conviction review of an allegation of a defective indictment is one of harmless error. A defendant who was not misled to his prejudice by any alleged imperfection cannot obtain a reversal of his conviction on this ground.

(Citation omitted.) Bullard v. State, 242 Ga. App. 843, 849 (9) (530 SE2d 265) (2000). See also Grant v. State, 227 Ga. App. 88, 91 (1) (488 SE2d 79) (1997). The indictment at issue here informed Presley that the State intended to prove that he placed a handgun in the law library with the intention that Cochran use it to take control of a Barrow County peace officer in order to escape from the jail. Because the conspiracy was not limited to assaulting a particular Barrow County peace officer, but extended to whoever stood between Cochran and freedom, the indictment did not need to specify a particular victim. Presley has not shown that the indictment failed to apprise him of the offense he had to defend against or that the language of the indictment leaves him open to future prosecutions for the same offense. Accordingly, the trial court did not err in denying Presley’s special demurrer. Franklin v. State, 243 Ga. App. 440, 441-442 (533 SE2d 455) (2000). See also Dennard v. State, 243 Ga. App. at 877 (2).

(b) Next, Presley contends that the evidence was insufficient to convict in that “[t]here was no evidence, other than pure speculation, that there was a plan to commit an aggravated assault against a peace officer or anyone else.” Viewed in the light most favorable to the jury’s verdict, the evidence showed that in February 2000 Presley was released from the Barrow County jail after spending two weeks sharing a cell with Cochran. Presley and Cochran exchanged letters and telephone calls. In March 2000, investigators learned that Cochran was planning to escape from jail before his murder trial and that he wanted someone to hide a loaded handgun in the courthouse law library for him to use. In the course of setting up a trap for Cochran, investigators found that someone had already hidden a loaded handgun in the law library. The investigators removed the loaded handgun and replaced it with a “dummy” gun. Cochran submitted a request to use the law library on the following Saturday. On March 31, 2000, investigators intercepted a telephone call in which a friend of Presley’s, at Presley’s request, told Cochran, “It is there. Everything is okay. We got it taken care of,” or words to that effect. The next day, two officers escorted Cochran to the law library. By hidden camera, investigators observed Cochran check the location where the loaded handgun had been hidden. Investigators found Presley’s name and address among Cochran’s possessions. After learning of a warrant for his arrest, Presley turned himself in and confessed to hiding the handgun in the law library in furtherance of Cochran’s plan to escape. The location where Presley said he placed the loaded handgun matched where the investigators found the gun.

The evidence was sufficient to enable a rational trier of fact to find Presley guilty beyond a reasonable doubt of the crime charged. Duffy v. State, 262 Ga. 249, 251 (3) (416 SE2d 734) (1992).

3. Presley contends the evidence was insufficient to convict him of delivery of a firearm to an inmate in that the crime was not completed. The record shows that the trial court amended the judgment by merging the conviction for delivery of a firearm to an inmate into the conviction for conspiracy to commit aggravated assault. See Buice v. State, 272 Ga. 323, 324-325 (528 SE2d 788) (2000) (a superior court has the inherent power, on its own motion, to revise, revoke, or vacate any of its judgments or rulings during the term of court at which the judgment is rendered). Because the trial court merged this count into the conspiracy count for sentencing, the delivery of a firearm to an inmate conviction stands vacated by operation of law, and Presley’s contentions as to this conviction are moot. Wilkins v. State, 246 Ga. App. 667, 670 (6) (541 SE2d 458) (2000); Miller v. State, 223 Ga. App. 453, 454 (2) (477 SE2d 878) (1996).

Decided October 10, 2001

William D. Healan III, for appellant.

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

Judgment affirmed.

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

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