text:
    A94A2833, A94A2834.
    FARMER v. THE STATE (two cases).
    (455 SE2d 297)
   Birdsong, Presiding Judge.

This is a discretionary appeal from a probation revocation and denial of supersedeas bond. In 1987, Tanya D. Farmer was indicted for three counts of writing bad checks for which she was given present consideration by First Federal Savings & Loan. At the sentencing hearing in 1988, it appeared Farmer had paid two checks but a check for $875 remained unpaid. The court gave Farmer first offender status with two years probation, directed the probation officer to find out from the bank what amount had not been paid, and orally ordered Farmer to “pay it back.”.

The sentencing transcript shows the judge did not order Farmer to report to a probation officer or do anything other than “pay restitution . . . pay it back.” The sentence form contains blocks next to certain conditions but none of the blocks is checked. Neither the court nor the sentence form specified to whom Farmer was to “pay it back.”

A warrant issued in January 1989 alleged Farmer “fail[ed] to report and pay as directed. Mov[ed without] notifying probation officer.” The warrant was not served. In 1994, Farmer became involved in a dispute in a multi-million dollar estate and the trustee had her arrested on a civil warrant for failing to sit for a deposition. The 1989 warrant surfaced and these proceedings ensued. Farmer has thus been in jail since May 1994.

At the first revocation hearing, the proceedings were not recorded. The probation officer evidently had not verified whether Farmer had paid full restitution, and the proceedings were continued. At the continued hearing on May 26, 1994, there was no transcript of the 1988 sentencing. The case was prosecuted by probation officer Anne Day rather than by a State’s attorney. Officer Day stated in the record that the 1988 sentencing court ordered Day “to check with the bank and verify the exact amount of restitution.” However, the only evidence Day produced to show that Farmer had failed to pay restitution was a letter dated the day of sentencing (February 12, 1988) from First Federal stating that the $875 check was unpaid. Farmer’s counsel said Farmer had paid the $875 in 1988; he sought a continuance to get such evidence and to get a transcript of the 1988 sentencing. He also stated that Day had told him the boxes on the form do not have to be checked and the form does not have to state whether a defendant must report.

A third revocation hearing was held June 23, 1994. Day announced that the previous week a bond hearing was held, that Farmer was not present at that bond hearing and was not represented by an attorney as it was not a scheduled hearing, and that bond was denied. Day stated that at the last revocation hearing “it was further noticed to obtain a copy of a letter from Bank South stating that [Farmer] had paid the [$875]” and that “Your Honor had directed me, before you left town for your conference, to contact the bank to verify any information,” (emphasis supplied) but she had not done so.

Day offered no evidence at the June 23, 1994 hearing that she contacted the bank to verify whether the $875 had been paid. Again she produced only the February 12, 1988 letter from the bank saying the $875 had not been paid as of February 12, 1988, and again she produced no evidence to contradict Farmer’s testimony that the $875 was paid to the bank in 1988. Officer Day stated that her notes showed she told Farmer on February 12, 1988 that she would have to pay $75 per month restitution, apparently to the probation office. Farmer’s counsel produced a notarized letter from Bank South dated June 7, 1994, confirming “that when the account of Tanya Farmer with First Federal [n/k/a Bank South] was closed, there were no outstanding debits or credits.” The judge said this letter did not prove when the account was closed, and, further, that a warrant had issued in 1989 for failure to pay and nothing indicated the warrant was improper. He then demanded that Farmer prove when the $875 was paid. Farmer testified she paid it in 1988. Farmer’s counsel stated he could verify this with the bank in two minutes, but the judge demanded of him: “Why hasn’t it been verified before. . . . Instead of having non-lawyers going to the probation department and browbeating the probation department and intimidating the probation department and harassing the probation department from what I understand, all that was necessary was that we find out whether restitution [was] made in a timely manner.” The judge did not give Farmer’s counsel a chance to get that information. The transcript of the 1988 sentencing was produced at this June 23, 1994 revocation hearing. Farmer’s counsel repeatedly alerted the judge that neither the sentencing court nor the sentence form required Farmer to do anything except pay restitution. Officer Day stated that her notes showed she had orally explained to Farmer that she had to report and pay $75 per month, beginning March 1988. The judge stated that the boxes on the sentence form do not have to be checked, that the probation department carefully explains probationers’ obligations to them, and that “Ms. Day has always done it very well in this court.”

The judge then erroneously stated that Farmer “signed [a] sheet which states she has to report either by mail or by phone.” Although it was pointed out that Farmer signed no such paper, the judge revoked Farmer’s probation and sentenced her to serve two years in jail. On July 1, 1994, Farmer filed a motion for reconsideration with a June 29, 1994 letter from Bank South stating: “Our records indicate that Tanya Farmer’s account . . . was closed in 1988. Therefore, any transactions regarding this account must have occurred before this time.” The trial court did not rule on the motion for reconsideration.

On August 24, 1994 we granted Farmer’s application for appeal and directed that “in light of Grant v. State, 195 Ga. App. 463 (2), 464-465 (393 SE2d 737), the appeal . . . shall be expedited, and the case is remanded ... for expedited consideration of bond.” On August 26, 1994, Farmer moved for supersedeas bond, alleging that she is the mother of five children, has no other criminal convictions, has lived mostly in Atlanta since 1987, has a trust fund governed by Fulton County Probate Court in excess of hundreds of thousands of dollars for a handicapped child and is thus very unlikely to flee, and is in fear of losing her handicapped child because of her imprisonment.

On September 1,1994 the trial court denied supersedeas bond on grounds that Farmer “poses a risk of flight and . . . her appeal is frivolous.” Despite appellant’s direction in her notice of appeal that all transcripts were to be filed, the court below did not transmit the supersedeas bond hearing transcript until February 17, 1995. In January 1995, Farmer filed in this court a pleading alleging that the juvenile court has sought to take custody of her handicapped child as a result of her continued imprisonment. Held:

1. The appeals from the revocation and denial of bond are consolidated; the State’s motion to dismiss the appeal from denial of bond (Case No. A94A2834) is denied. OCGA § 5-6-34 (d).

2. The delay in appellate consideration is caused by failure of the court below to include the order granting discretionary appeal in the revocation appeal record (Case No. A94A2833) and to transmit the supersedeas bond hearing transcript as directed by Farmer in her notice of appeal in A94A2833.

3. Farmer appeals the denial of supersedeas bond. The supersedeas bond hearing commenced: “[TANYA FARMER]: Your Honor, I was just notified of this hearing today last night, and I didn’t have a chance to be properly represented. And I would like to make a motion to have this reset to next week to give me time to have my attorney present, because he was out of town today. THE COURT: Well, you filed this [bond application] pro se. There is not an attorney who is representing you on this action, and we have instructions from the Court of Appeals, who has accepted the appeal, to expedite consideration of the bond, and that’s why we did it. Your husband, on your behalf, has been calling my office . . . three or four times every day . . . asking for a hearing, and saying when is the hearing going to be held. We tried to schedule this ... on your behalf so that we could do this quickly and expeditiously, as directed by the Court of Appeals. ... So I would deny your motion. . . . Do you wish to add anything as far as evidence, or call any witnesses? . . . [FARMER]: Well, I didn’t have time to notify them. That’s the reason I’m requesting this. I was just notified of this, my husband and I, yesterday evening toward the end of the day, so we haven’t had time to do this. THE COURT: Who would you call if you had had [sic] to call them? [FARMER]: I would call my pastor. I would call my daughter’s doctors, and some of the teachers of my children. THE COURT: And they would be . . . character witnesses for you? [FARMER]: Yes, they would. . . . THE COURT: Ms. Keel, would you like to present anything on behalf of the State? . . . MS. KEEL: Your Honor, I have one witness on the issue of the potential for the defendant to flee the jurisdiction.”

The State produced, as witness, an assistant to attorney Louis Levenson, guardian of the property of Farmer’s handicapped child. The witness testified, with hearsay and conclusion, that Farmer committed certain acts found offensive or inconvenient by Levenson; that Levenson’s investigator could not locate her in the summer of 1993; that Levenson filed a deprivation petition as to the child whose trust he controls; and that the Fulton Juvenile Court on May 9, 1994 awarded temporary custody of the child to Farmer’s husband’s mother (who apparently has kept Farmer’s other children while Farmer is in jail). (The record and transcripts show attorney Levenson had Farmer imprisoned on or about May 1 or May 3, 1994 on a civil warrant or probate court contempt citation for failing to sit for a deposition; on May 6, 1994 this revocation petition was filed.) Farmer was unsuccessful in her effort to cross-examine the trustee’s assistant; although he had made detailed hearsay allegations about her misdeeds, when Farmer tried to contradict him as to those facts he said he did not know, did not remember, and could not speak for others. Farmer argued that because of her children she would not flee. The State’s attorney stated that Farmer was a flight risk and in her appellate experience Farmer’s appeal would not be successful and is therefore frivolous. Bond was denied.

(a) The trial court erred in conducting the hearing without giving Farmer adequate notice of it. The trial court abused its discretion in denying Farmer’s motion for continuance, particularly under the guise that she had asked for a hearing and that the Court of Appeals had directed that the hearing be expedited. The court must give a supersedeas bond applicant “notice of the hearing and a chance to appear and be heard.” Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350). This includes the right to meaningful notice and the meaningful right to appear and be heard.

(b) The trial court erred in concluding Farmer was at risk to flee based on hearsay and conclusion which Farmer, being denied the right to have her attorney present, was helpless to contradict.

(c) When this court has granted a discretionary appeal under OCGA § 5-6-35, the trial court is without authority to find such appeal to be frivolous. The denial of supersedeas bond on that ground was an abuse of discretion as a matter of law and fact. The denial of bond was a manifest abuse of discretion.

4. The record shows conclusively that another bond hearing was held in June 1994 without notice to Farmer or her attorney, and without her presence. The State now asserts there was no such bond hearing. This is a misrepresentation of fact. The June 23, 1994 transcript shows the probation officer and the judge made these statements for the record: “[T]here was a bond hearing on Friday that was held before Judge Fryer. Bond was denied. THE COURT: . . . This was held in front of Judge Fryer because I was out of town, correct? MS. DAY: That’s correct. . . . THE COURT: Who was representing Ms. Farmer? . . . MS. DAY: There was no attorney there. . . . THE COURT: Was [Farmer] brought over? . . . MS. DAY: No, she was not present. It was not a scheduled hearing. I was just notified from Judge Fryer’s office to come over there. THE COURT: And he was presiding at the time. MS. DAY: That’s correct.”

The misrepresentation of these facts by the State and the precipitate conduct of that hearing invite scrutiny.

5. The trial court erred in revoking Farmer’s probation.

(a) Service of probation is a privilege; “[t]his does not mean, however, that a defendant’s liberty is something that can be the subject matter of whim or fancy of the trial judge.” Cross v. Huff, 208 Ga. 392, 396 (67 SE2d 124); Williams v. State, 162 Ga. 327 (3) (133 SE 843). “[T]o deprive a defendant of his liberty upon the theory that he has violated rules and regulations prescribed in his sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence would deprive the defendant of ‘due process of law.’ . . . [T]he judge only has authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court." (Emphasis supplied.) Cross, supra at 398; see Stephens v. State, 245 Ga. 835, 837 (268 SE2d 330); Lillard v. State, 156 Ga. App. 54, 56 (274 SE2d 96). Criminal sentences shall be certain, definite and free from ambiguity, and the benefit of any doubt shall be given the accused. Buice v. Bryan, 212 Ga. 508 (93 SE2d 676); Parker v. State, 188 Ga. App. 738 (374 SE2d 230); Grant, supra.

A written sentence controls over the trial court’s oral pronouncements (Curry v. State, 248 Ga. 183 (4) (281 SE2d 604); Davis v. State, 172 Ga. App. 787, 791 (324 SE2d 767)); so, the trial court’s oral pronouncements and the written sentence control over a probation officer’s notes or instructions. “Where no rules or regulations are prescribed in the . . . probated sentence, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that he has violated the terms and conditions of a probation sentence.” (Emphasis supplied.) Cross, supra at 392-393; Morgan v. Foster, 208 Ga. 630 (2) (68 SE2d 583). See Huff v. McLarty, 241 Ga. 442 (246 SE2d 302).

Farmer “did not violate the conditions of [her] probation, since no conditions were imposed” (Cross, supra at 397) except payment of restitution. The assertions of the probation officer and judge that the sentence form need not set out conditions of probation and that the probation office advises persons of the conditions of probation amount to an assertion that if the court imposes no conditions or only certain conditions, a probation officer may then impose any condition or may add conditions. That is contrary to the long line of authority cited here and in Grant, supra. If the trial court can ignore the written record of sentencing in favor of the probation officer’s testimony, any probation is at the whim of a probation officer.

(b) The trial court erred in casting the burden of proof on Farmer. The burden is on the State to prove a violation of probation terms by a preponderance of the evidence. OCGA § 42-8-34.1 (a); Anderson v. State, 212 Ga. App. 329 (442 SE2d 268).

(c) The State produced no evidence Farmer did not “pay back” the $875 as prescribed and no evidence contradicting her testimony that she paid it six years ago. Prior to commencing these revocation proceedings, probation officer Day evidently did not verify with the bank whether the $875 had been paid to the bank, and she did not abide by the revoking court’s direction to “contact the bank” to verify the matter. To compound these abuses, on appeal the State implies the victim was not First Federal but was the bank which refused to pay the check (Hinesville Bank), even though the indictment specifically averred that First Federal was the victim bank. The State then artfully asserts that Farmer’s “irrelevant” proof that she paid restitution to First Federal “sheds no light” on whether she paid First Federal “to redeem” the bad check. Thus the State now implies there was some other unpaid victim, and that although Farmer paid restitution to First Federal she never “redeemed” the bad check. This misrepresentation of evidence and creation of confusion about which bank was the victim (see State Bar Regulations, EC 7-24 and DR 7-102) is the more serious because the State still cannot point to one iota of evidence that the actual victim was not paid in 1988.

Further, after we granted discretionary appeal, the trial judge ordered Hinesville Bank to “inform [that] court if and when [the $875] was ever tendered ... to cover the balance due on this dishonored check.” Since Hinesville Bank dishonored the check, however, there was never a “balance due” to Hinesville Bank; it was not the victim. The record omits Hinesville Bank’s reply to that order, but shows First Federal’s 1987 letter notifying Farmer that her $875 check had been dishonored by Hinesville Bank and that she therefore owed $875 to First Federal. Evidence that Farmer still owed the $875 on the day of sentencing is obviously not evidence that she never paid it.

No reason appears why the probation office could not have contacted the bank to verify whether Farmer paid restitution to First Federal. The State produced no evidence Farmer failed to pay restitution as prescribed by the court. The trial judge never required the State to prove it.

The supersedeas bond hearing was improperly and unlawfully held without adequate notice to Farmer and an opportunity to be heard fairly, and the denial of supersedeas bond was based on prejudicial evidence arising out of that unfair hearing and on a finding that Farmer’s appeal is frivolous, when our grant of discretionary appeal established as a matter of fact and law that her appeal is not frivolous. Farmer has thus been kept in jail for nearly a year without factual or legal basis and without bona fide controversy. The revocation is reversed, the denial of supersedeas bond is reversed, and Farmer’s first offender status is reinstated.

Judgments reversed with direction.

Blackburn and Ruffin, JJ., concur.

On Motion for Reconsideration.

1. In a brief in response to Farmer’s motion for supersedeas bond after we reversed the revocation, the State produces evidence which was not before the revoking court. This evidence consists of letters from First Federal in 1987 which, according to the State, prove Farmer had no personal account at the bank and that she wrote the account number of her daughter’s trust account on the back of the $875 check. The State’s purported purpose is to show “the account of Tanya Farmer” was her daughter’s trust account, the status of which does not prove Farmer paid restitution to the bank.

We reversed the revocation because the State produced no evidence Farmer violated the terms of probation prescribed by the court. The burden was on the State to prove Farmer did not pay restitution, not on Farmer to prove she paid it. Evidence that Farmer did not pay $75 per month to the probation office is not evidence she failed to pay restitution to the bank. The new issues created by the State on appeal are a smokescreen. There is no evidence in the record as to the details of the bad check transaction, and none from which it can be inferred she did not pay the money back. There is no evidence Bank South’s 1994 letters were incorrect in saying that the “account of Tanya Farmer” was closed in 1988 with no debits outstanding; no evidence that “the account of Tanya Farmer” referred to those letters was in fact her child’s trust account; no evidence from which it can be inferred that the status of “the account of Tanya Farmer” is “irrelevant” to whether she repaid $875.

This entire controversy is created on appeal out of the State’s failure to produce any evidence that Farmer did not pay back the money and the judge’s refusal to make the State prove it while forcing Farmer to try to prove she did pay it. The State does not bear its burden of proof in a revocation case by forcing a defendant to prove her innocence and then, on appeal, attempting to rebut her evidence with new evidence which was not in the record below. What these tactics prove most clearly is that if there had been any evidence to support the revocation, the State would not have to resort to creating new issues and new evidence on appeal.

The letters now produced by the State to bolster an argument that Farmer had no personal account at First Federal are evidence outside the record. It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court. See Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 351 (411 SE2d 75). The reasons for this are too obvious to require exposition. The production on appeal by a party of evidence outside the record, or misrepresentation of evidence in the record, is a misrepresentation of fact and a violation of State Bar Rules & Regulations including Standard 45; it subjects the offender to a finding of contempt and it may amount to fraud or other tort in violation of due process rights.

2. On consideration of ethics, we will address some of the State’s misrepresentations in its motion for reconsideration but for lack of space we cannot address all.

(a) The State misrepresents the opinion by saying we held that the State produced no evidence Farmer “did not pay the required restitution, as determined by the probation office.” In fact, we held the State produced no evidence Farmer did not pay restitution as prescribed by the court.

(b) In the same vein, the State insists it produced evidence this court “chose to ignore,” viz., the probation officer’s testimony that Farmer “did not pay any restitution to the probation office as directed” by the probation officer. We specially addressed the probation officer’s testimony that she instructed Farmer as to such terms. We held the written record controls over a probation officer’s notes or instructions, and where the court imposes no conditions or only certain conditions a probation officer may not impose or add conditions.

(c) The State misrepresents the record to support a false version of the procedural facts of the case.

The State says we erred in stating that Anne Day announced at the June 23, 1994 revocation hearing that a bond hearing was held at which Farmer was not present and was not represented by counsel. The State’s assertion that there was no such bond hearing is addressed in Division 4 of the opinion.

Further, the State says we erred in stating the revoking court “ ‘directed [Anne Day] ... to contact the bank to verify any information.’ ” (Emphasis supplied.) The State asserts as fact that “Hildred Shumake (a former State Senator) and [Farmer’s] husband were present and were requesting a bond for [Farmer]. They had with them the letter confirming that when the First Federal account was closed there were no outstanding debits or credits. Since the trial court had instructed Officer Day to attempt to verify any information indicating the bad check had been paid, Shumake and [Farmer’s] husband were to follow Officer Day to the trial court’s chambers so she could make a copy of the letter and verify its contents. Shumake and [Farmer’s] husband never appeared and Officer Day . . . thus could not verify its contents.” (Emphasis supplied.)

The evidence of record is this: “[ANNE DAY] Last week there was a bond hearing on Friday that was held before Judge Fryer. Bond was denied. . . . After that discussion with Judge Fryer, they were to follow me to . . . [Your Honor’s] office so that we could make a copy of this letter from Bank South, because Your Honor had directed me, before you left town for your conference, to contact the bank to verify any information. . . . They were supposed to follow me down to your chambers so I could make a copy of the letter to call this woman to verify it and they never appeared.” (Emphasis supplied.) This evidence shows beyond any remote possibility of dispute that the portion of the record pointed to by the State to prove Day was not directed by the revoking judge to “contact the bank” but was merely instructed to “verify any information,” e.g., in a letter possessed by Farmer’s husband, in fact proves specifically that Day was directed by the revoking judge to contact the bank.

Decided February 2, 1995

Reconsideration denied March 8, 1995.

Steven J. Strelzik, for appellant.

Tanya Farmer, pro se.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

The immediate effect of these misrepresentations is to underscore the State’s recognition that there is no evidence of record that Farmer failed to pay restitution to the bank.

3. The State contends Cross v. Huff, 208 Ga. 392 (67 SE2d 124) refers only to ambiguous sentences, and Farmer’s sentence was not ambiguous but was merely “incomplete” so that the probation office simply “completed” it. Cross v. Huff speaks to the rule that “conditions of probation” are conditions prescribed by the court and when the terms of a sentence are in dispute the “written record” controls over oral pronouncements of the court; so the written record controls over a probation officer’s notes or instructions. To say that when a court fails to impose conditions the sentence may be “completed” by the probation office is to arrogate powers to probation officers never dreamed of by the General Assembly or the courts.

The revocation is reversed and the denial of supersedeas bond is reversed. Further, this court hereby grants supersedeas bond to Farmer under Court of Appeals Rule 50 (c) as amended in Rule 40 (b) pending further appeal. The Clerk of the Court of Appeals is directed to issue this opinion and the remittitur together and to deliver the same immediately by hand to the trial court, which shall release Tanya Farmer immediately.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A0511.
    HOWARD v. ALAMO CORPORATION.
    (455 SE2d 308)
   Blackburn, Judge.

The appellant, Roland Howard, commenced the underlying action against appellee, the Alamo Corporation (Alamo), to recover damages in tort for personal injuries sustained as a result of being beaten while registered as a guest at the Alamo Plaza Hotel, a property belonging to Alamo. In his complaint, Howard averred that Alamo, knowing that the Alamo Plaza Hotel was in a high crime area, failed to warn Howard, to provide proper lighting, or take other appropriate precautions to ensure his safety or the safety of other hotel patrons. Additionally, he complained that the hotel rented rooms to criminal elements having the propensity for violence and allowed criminal activities on its premises. The trial court granted partial summary judgment to Alamo with respect to Howard’s prayer that he be awarded $5,000,000 in punitive damages, and this appeal followed.

The record reflects that Howard checked into the Alamo Plaza Hotel in Atlanta, representing himself as a preacher performing a ministerial tour for the purpose of collecting money to feed the homeless. Archie Clark, a guest at the hotel and witness to the incident about which Howard complains, deposed that Howard appeared to support himself by panhandling and that James Dixon, a local cocaine distributor, paid him to store his inventory of crack cocaine, termed a “bomb,” in Howard’s hotel room. Howard also allowed others to smoke crack cocaine in his hotel room, accepting crack cocaine as payment. Clark further deposed that Howard’s addiction to crack cocaine ultimately led him to begin personally using portions of the crack cocaine Dixon stored with him, substituting a look-alike powdery substance to avoid detection. In Clark’s words, Dixon pistol-whipped Howard in his hotel room because Howard “messed with the bomb.”

In his sole enumeration of error, Howard contends that the trial court erred in granting Alamo’s motion for partial summary judgment as to his claim for punitive damages. We disagree.

OCGA § 51-12-5.1 (b) pertinently provides that “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

“Under [OCGA] § 51-12-5, punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award.

Decided February 21, 1995

Reconsideration denied March 8, 1995.

Curtis A. Thurston, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, for appellee.

“Under [OCGA] § 51-12-5.1 (b), it remains the rule that something more than the mere commission of a tort is always required for the imposition of punitive damages. Mere negligence, although gross, will not alone authorize the recovery of punitive damages.” (Citations and punctuation omitted.) Troutman v. B. C. B. Co., 209 Ga. App. 166, 168 (433 SE2d 73) (1993).

It is uncontroverted in the record before us that the Atlanta Police responded to numerous incidents at the Alamo Plaza Hotel. Hotel management employed two off-duty police officers as security personnel to protect the premises from persons not registered at the hotel. In doing so, it believed it was responding to a hotel security problem principally associated with domestic disputes and drunkenness, rather than drugs. In particular, it was unaware of any incident similar to the one herein involved. In this regard, Dixon had pistol-whipped the appellant a week to two weeks prior to the incident in question; however, there is no indication in the record that the incident was reported to the police or otherwise. Additionally, the Atlanta Police regularly patrolled the premises, and the hotel cooperated with the police in establishing undercover sting operations on it premises.

A summary judgment movant not having the burden of proof at trial may prevail by establishing “that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). There is an absence of evidence creating a jury issue as to punitive damages. The trial court’s grant of summary judgment to Alamo was not error.

Judgment affirmed.

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

       Clark defined a “bomb” as a package containing approximately ten stones of crack cocaine.


author: McMurray, Presiding Judge.

text:
    A94A2004.
    AMWEST SURETY INSURANCE COMPANY v. RA-LIN & ASSOCIATES, INC. et al.
    (455 SE2d 106)
   McMurray, Presiding Judge.

Plaintiff Amwest Surety Insurance Company (“Amwest”) brought this contract action against defendant RA-LIN & Associates, Inc. (“RA-LIN”) and RA-LIN’s insurer, St. Paul Fire & Marine Insurance Company (“St. Paul”), alleging that RA-LIN “refused to proceed with the completion . . .” of a construction project (hereafter “the Completion Contract”) for low-income housing owned by the Housing Authority of the City of Grantville, Georgia (“Housing Authority”). As a result of RA-LIN’s alleged breach of the Completion Contract, “Amwest was forced to contract with the next lowest bidder.” A separate count asserted a claim in the amount of five percent of RA-LIN’s total bid price against a bid bond issued by St. Paul. In its answer, RA-LIN admitted that it submitted a bid and that it “was chosen as the low bidder . . . ,” but denied all other material allegations and asserted, inter alia, that no enforceable contract was ever reached or else Amwest itself breached any agreement by rejecting RA-LIN’s tender of performance.

After discovery, RA-LIN moved for partial summary judgment and Amwest filed a cross-motion for partial summary judgment against both RA-LIN and St. Paul. The evidence adduced in support of these motions showed the following material facts: Amwest, as surety, issued a payment bond and performance bond to Dennis Welding Construction Company, Inc., the original contractor on a construction project for the renovation of certain low-income housing units owned by the Housing Authority. This original contractor was declared to be in default of its contractual obligations and the Housing Authority called on Amwest as surety to make good performance. Amwest determined to re-let the project for completion by another contractor. Alvin G. Rowe, a “Senior Consultant” with Surety & Construction Consultants, Inc., testified that “Amwest asked us [Surety & Construction Consultants, Inc.,] to . . . inspect the project, prepare our estimate of the cost to complete, and make recommendations on how to proceed to meet any obligations [Amwest] might have regarding the performance aspects of the bond.” Amwest undertook to procure a “Relet Contractor to perform all work remaining to be completed in accordance with the terms and conditions of the original contract. . . .”

Mr. Rowe “prepared the [re-bid] documents . . . [and submitted] them to Amwest for [its] approval. . . .” “[A]ll five potential bidders were mailed those documents [, which contain an invitation to attend a] pre-bid conference.” On Tuesday, May 28, 1991, Mr. Rowe held the pre-bid conference to go over the re-bid documents and to answer any questions for the potential bidders. Mr. Rowe “understood prior to the pre-bid conference that the Housing Authority would not accept a [completion] contract in which they were named as a party.” A representative of the Housing Authority informed Mr. Rowe “that per HUD regulations they [the Housing Authority] would not be in a position to accept — or to enter into a contract [directly] with the contractor. . . .” Hugh Palmer, a project manager for RA-LIN, attended the pre-bid conference. There, he questioned Mr. Rowe as to the identity of the other contracting party to the Completion Contract. Specifically, he expressed concern on the part of RA-LIN about contracting with Amwest. Due to ongoing litigation between Amwest and RA-LIN over an unrelated contractual dispute, RA-LIN preferred to contract directly with the Housing Authority. By affidavit, Mr. Palmer deposed: “In response to my question, Mr. Rowe told me that the successful bidder would contract with the Grantville Housing Authority.” Mr. Rowe testified that he referred Mr. Palmer to the re-bid documents themselves, explaining “we can’t finish the completion contract until we get an agreement with the owner [Housing Authority] because ... it could go either way.”

The “Invitation to Bid” contained in part the following two provisions relating to time: “The successful bidder will be notified no later than five (5) days after the bid opening and will be expected to immediately enter into the construction contract. The successful bidder will only begin operations upon receipt of a notice to proceed. The notice to proceed will set the date at which the contract time will commence. ... All bids will be regarded as valid and in full force for 60 calendar days after receipt of bids.” This latter provision is restated in the form bid proposal immediately above the place for the bidder’s signature in the following language: This bid shall remain valid and “available for acceptance” for 60 calendar days from the bid date. (Emphasis supplied.) The “Scope of Work” provided that the successful bidder will be completing a “contract for Amwest Surety Insurance Company and the Housing Authority for the City of Grantville, Georgia. . . .” The re-bid documents further contained a proposed “Form of Agreement,” i.e., the form of that “agreement which Amwest and the Housing Authority are anticipating entering into with the successful bidder as the Completion Contractor.” The re-bid instructions stated that the successful bidder “may be required to enter into an agreement with Amwest only, or with the Housing Authority only.” However, in either case, the form of agreement “shall not be grounds for the Completion Contractor to . . . refuse to enter into a contract as long as the actual completion contract used . . . conforms in principle to the form agreement. . . .” This suggested form agreement named Amwest and the completion contractor as the only parties to the completion agreement.

Defendant RA-LIN was one of only two firms to submit bids. Hugh Palmer “came to the bid opening . . .” on June 4, 1991, where Mr. Rowe opened the bids and determined that RA-LIN’s bid was for the lowest dollar amount. Mr. Rowe told Mr. Palmer “as soon as I get an answer back from Amwest we’ll be sending you a proposed completion agreement to sign. . . . [T]hat’s our standard procedure. . . .” Mr. Rowe affirmed that he (or Amwest) “[was not] obligated to accept the low bidder. . . .” Nevertheless, Amwest “[decided] to accept RA-LIN as the successful bidder[.]” On June 7, 1991, Mr. Rowe “faxed a draft completion agreement to RA-LIN for review and consideration.” RA-LIN did not execute and return this completion agreement. When Mr. Rowe contacted James R. Fulford, president of RA-LIN, to inquire about execution of the contract, Mr. Fulford advised that RA-LIN was unwilling to contract directly with Amwest but would deal directly with the Housing Authority. Under cover of a letter dated June 26, 1991, Mr. Rowe forwarded “three more copies of the completion contracts to RA-LIN for its execution.” On July 24, 1991, Mr. Rowe received from James R. Fulford of RA-LIN a facsimile communication, advising as follows: “In response to your request for a signed agreement between RA-LIN & ASSOCIATES, INC. and Amwest Surety Insurance Company for the completion of the work on the [Grantville Housing Authority] project, RA-LIN believes that due to current ongoing litigation between RA-LIN and Amwest that it is not in the best interest of either RA-LIN or Amwest to enter into a completion agreement. However, RA-LIN is willing to sign a contract with the Grantville Housing Authority for the completion of all work remaining on the stated job. . . . We also believe that during the pre-bid conference as a result of a question raised by our Hugh Palmer as to who RA-LIN would be signing a contract with, [sic] It was understood that RA-LIN would be signing a contract for completion with the Grantville Housing Authority. If that is the case, RA-LIN & ASSOCIATES, INC. is ready to sign a contract with the Grantville Housing Authority and begin work immediately.”

The trial court found the two provisions relating to time created an ambiguity, to be construed strictly against Amwest as the drafter of the proposal documents. The trial court then concluded that RA-LIN’s bid required acceptance within five days after the bid-opening ceremony, and that Amwest did not make a timely acceptance of RA-LIN’s bid. Consequently, the trial court held that RA-LIN was entitled to summary judgment because no contract resulted. This appeal followed. Held:

1. In its first enumeration, Amwest contends the trial court erred in granting RA-LIN’s motion for summary judgment, arguing that its acceptance of RA-LIN’s offer to perform certain construction work for Amwest at a fixed price was timely. Specifically, it is urged that “Amwest had sixty days in which to accept RA-LIN’s bid.”

“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” OCGA § 13-3-2. “This is true even where the [offer] provides that it remain[s] open for a stated time. State Hwy. Dept. v. MacDougald Constr. Co., 54 Ga. App. 310 (1) (187 SE 734) (1936).” Greene v. Keener, 198 Ga. App. 565, 566 (402 SE2d 284). “Where for a consideration an option is given, or offer made, which it is agreed shall remain open and subject to acceptance for a specified time, the party who thus grants the right to accept during such specified time can not withdraw the right of the other party to accept or assent within that time. ... If without consideration a continuing offer is made, although the person making it may state a time within which it may be accepted, there is no binding contract, and he may withdraw the offer before acceptance. ... A mere offer or proposition, until accepted, may be withdrawn. ... If no time is prescribed for accepting an offer, it must be done within a reasonable time. Civil Code (1910), § 4230 [now OCGA § 13-3-2]; [cits.].” Prior v. Hilton &c. Lumber Co., 141 Ga. 117, 118 (1) (80 SE 559). In the case sub judice, there is no contention that the 60-day period for acceptance provided in the documents prepared for Amwest by Mr. Rowe is supported by any consideration. Accordingly, there is no option for the benefit of Amwest, and RA-LIN’s bid was revocable at will before acceptance.

Amwest next argues that a binding contract was formed when “A1 Rowe initially transmitted to RA-LIN by telefacsimile a proposed completion contract form, based on the form included in the Rebid Documents, on June 7, 1991, for RA-LIN’s review.” That communication would have been made within the five-day period from the bid opening during which the successful bidder was to be notified. For purposes of this appeal we assume, without deciding, that Amwest assented to RA-LIN’s bid price by “fax[ing] a draft” (not signed by Amwest) of the Completion Contract which the surety “[anticipated] entering into with the successful bidder. ...” But see Holbrook v. City of Atlanta, 139 Ga. App. 510, 511 (2) (229 SE2d 21). Nevertheless, the trial court’s grant of summary judgment to RA-LIN was correct. No contract was formed between Amwest and RA-LIN by that June 7, 1991, telefacsimile communication because the parties did not mutually agree on the identity of one of the contracting parties.

“The concept of a contract requires that the minds of the parties shall meet and accord at the same time, upon the same subject-matter, and in the same sense. In the absence of this meeting of the minds, there was no contract between the alleged contracting parties. Jones v. Ely, 95 Ga. App. 4 (1) (96 SE2d 536); Ga. S. & F. R. Co. v. Adeeb, 15 Ga. App. 831 (1) (84 SE 323) (1915).” Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 291 (1) (241 SE2d 256). “In determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. [Cits.]; Verdery v. Withers, 30 Ga. App. 63, 72 (116 SE 894). ... In some instances, the only conduct of the parties manifesting intent is the express language of the [purported] agreement. In other instances, the circumstances surrounding the making of the [alleged] contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence. [Cits.]” Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733).

In the case sub judice, Alvin G. Rowe had reason to know (if not actual knowledge) from the time of the pre-bid conference that RA-LIN intended to contract with the Housing Authority and not with Amwest. This was confirmed by the post-bid telephone conferences between Mr. Rowe and James R. Fulford, the president of RA-LIN, as well as by the July 24, 1991, letter of James R. Fulford. However, according to the express language of the re-bid documents prepared by Mr. Rowe for Amwest, the successful bidder “may be required to enter into an agreement with Amwest only or with the Housing authority only.” Doubtless, Amwest intended that this option was to be exercised by itself, in its sole discretion, and not by RA-LIN. However, the document is silent on this point and may reasonably be construed as giving that choice to the completion contractor. A writing which is “capable of being construed two ways . . . will be construed against the preparer and in favor of the non-preparer. OCGA § 13-2-2 (5).” Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692). That is also a permissible construction of Mr. Rowe’s equivocal response to Hugh Palmer’s query as to the identity of the other party to the Completion Contract. See also OCGA § 13-3-3. “When parties to a [purported] contract, as in this case, know that they have different intents with respect to certain language before they enter into the contract, there can be no meeting of the minds upon the same subject matter and in the same sense and no agreement on that issue. See Fonda Corp. [v. Southern Sprinkler Co., 144 Ga. App. 287, 291 (1)], supra[; cits.]” Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 396, supra. See also Restatement, 2d, Contracts, § 20 (1) (b). “[A] judgment right for any reason must be affirmed. Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2) (1986).” Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

2. Amwest’s remaining enumeration, regarding the denial of its own motion for partial summary judgment against RA-LIN and St. Paul, has been considered and found to be rendered moot by our determination in Division 1.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided March 8, 1995.

Thompson & Slagle, Jefferson B. Slagle, David J. Merbaum, for appellant.

Smith & Diment, Dana G. Diment, for appellees.


author: Andrews, Judge.

text:
    A94A2140.
    BECK v. THE STATE.
    (455 SE2d 110)
   Andrews, Judge.

Beck was charged with possession of cocaine and marijuana. He was tried and convicted of possession of cocaine, acquitted of the other charge, and appeals.

On January 15, 1993, Beck filed a motion to suppress. A hearing on that motion was held on February 26, 1993. Detective Key of the Dalton Police Department testified that on May 28, 1992, shortly before noon, he received a phone call from a paid confidential informant whom he had known for about three years. This informant had previously provided information to Key that resulted in ten separate felony arrests, convictions and seizures of large quantities of illegal drugs.

On this occasion, the informant told Key that he had observed Bonnell Beck and Merle Bradley on Straight Street and that they had cocaine in their possession. The informant told Key that the men had driven off to pick up more cocaine and that they were traveling in an older model black Firebird. He told Key that they had cocaine with them when they left. Key admitted that the informant did not provide many specifics as to the packaging or amount of the cocaine. Key stated that he was acquainted with Beck as being a drug offender.

Key related this information to Detective Leonard and asked him to follow up on it. He stated that there was a “be-on-the-lookout” for Beck issued over the telephone to the police officers in the area. Key stated that prior to the informant’s call, he knew Beck as a drug offender involved with cocaine.

Sergeant Hammad El-Ameen of the Dalton Police Department testified that on May 28, 1992, he received notice from the dispatcher to be on the lookout for a black Firebird. The dispatcher stated that the vehicle would be driven by Beck and that Bradley would be the passenger; that the vehicle would be coming back from Calhoun; and that the men would have cocaine in their vehicle. El-Ameen stated that he previously knew Beck and knew that he drove a dark Fire-bird.

El-Ameen testified that he saw the vehicle on Blue Ridge Street. He motioned for Beck to stop. When Beck stopped, El-Ameen told him that he needed to talk to him. El-Ameen and Beck got out of their vehicles. El-Ameen stated at trial that based on his experience as a law enforcement officer, the fact that Beck got out of his car so quickly was an indication to him that he did not want El-Ameen near his vehicle. El-Ameen told Beck that he had received information that Beck might have drugs in his car. Beck appeared nervous at this suggestion and denied having drugs in his car. El-Ameen asked for permission to search Beck’s car, and Beck denied this request. Then Officer Keener pulled up and Beck got “real irritated and began cursing, and he made a move to get back in his car and he cranked the car with some kind of gadget.” El-Ameen urged Beck not to leave. Beck insisted on leaving and tried to drive off, whereupon El-Ameen got back in the patrol vehicle and positioned it to block passage of Beck’s vehicle.

El-Ameen saw that Beck had a plastic bag in his hand, which he was holding behind his back. El-Ameen stated that when Beck saw him coming toward him, he put the whole bag in his mouth and started chewing it. El-Ameen stated that he and Officer Keener grabbed Beck’s jaws and told him to spit it out.

When Beck would not spit the bag out of his mouth, Officer Keener sprayed some Cap Stun — an aerosol chemical irritant — in Beck’s face and the officers handcuffed him and put him in the patrol car. Detective Leonard obtained a search warrant to search Beck’s stomach contents and his urine.

El-Ameen took Beck to the hospital in his patrol car. In Leonard’s presence, the hospital employees obtained a urine sample from Beck and pumped his stomach. Leonard stated that the stomach contents were placed in two bottles, which were sealed with paraffin. The urine sample was sealed with a screwtop. Leonard placed the three containers in an evidence locker at the police station.

Upon returning to the police station, El-Ameen searched the back seat of his patrol car where Beck had been during the drive to the hospital. No one other than Beck had been in that seat since El-Ameen’s search at the beginning of his shift. The search revealed a chewed-up plastic bag that was wet and chalky. Inside the bag was a dried pink paper which also appeared to have been chewed by Beck. The bag and chalky substance were also placed in an evidence locker.

Officer Stewart, the property and evidence custodian at the Dalton Police Department, retrieved the items from the evidence lockers and placed them in the evidence hold at the Dalton Police Department. The items remained in Stewart’s custody until he transported them to the Georgia Crime Lab. There was no evidence that the items were tampered with.

The pink paper from the plastic bag tested positive for cocaine and marijuana. The urine sample tested positive for both cocaine and marijuana. One vial of stomach contents tested positive for a significant amount of cocaine; the other vial of stomach contents tested negative for the presence of cocaine. The vial which contained the cocaine indicated that the contraband had been recently ingested.

1. In his first enumeration of error, Beck contends that the court committed harmful error in failing to grant his motion to suppress all evidence seized from him after the illegal stop and detention of him. Beck contends that the initial stop was invalid and that there was no reason for the police to pull him over; he argues that any evidence seized was the result of an illegal search. He also argues that the State failed to meet its burden at the hearing on the motion to suppress under OCGA § 17-5-30 of showing that the seizure of his bodily fluids was proper and that the State failed to establish that the warrant was properly obtained.

“On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citations and punctuation omitted.) Thomas v. State, 203 Ga. App. 529, 534 (3) (417 SE2d 353) (1992).

The standard for a Terry stop has been set forth repeatedly. “ ‘Although an officer may conduct a brief investigative stop of a vehicle, [cit.], such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); [cit.].’ ” Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987). “ ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]’ ” Tarwid, supra at 854.

The issue to resolve is whether the stop was justified under these standards, given that El-Ameen himself did not receive the information from the informant. Beck argues that the information from the dispatcher was nothing more than an anonymous tip and that El-Ameen had no reason apart from the information he received from the dispatcher to stop Beck. “Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. [Cits.] In cases where an informant supplies the information to one officer who then relays it to a fellow officer, the question has revolved around the reliability of the informant. Where the informant is found to be reliable, probable cause for the non-receiving officer to search exists. [Cits.]” Parker v. State, 161 Ga. App. 37 (3, 4) (288 SE2d 852) (1982). There is no requirement that the officer making the stop have all the information the original officer had about a suspect and the informant. Parker, supra at 39. In other words, “the searching officer need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the searching officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the ‘information requisite to support an independent judicial assessment of probable cause.’ [Cit.]” Parker, supra at 40; see generally Waldrip v. State, 205 Ga. App. 864 (424 SE2d 31) (1992).

El-Ameen’s stop of Beck was based on “a chain of information-sharing” set off by a paid confidential informant. See generally Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986); Hite v. State, 206 Ga. App. 245 (1) (424 SE2d 885) (1992). “Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

In the instant matter, El-Ameen had reasonable grounds for stopping the vehicle based on his founded suspicion that Beck had cocaine in his possession. This case differs from Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), in several particulars. In contrast to the situation in Moreland, the tip here was not an anonymous one, it was provided by a paid confidential informant and then transmitted through the channels of police communication. Thus, the tip had more indicia of reliability than an anonymous tip. See Bentley v. State, 214 Ga. App. 580 (2) (448 SE2d 479) (1994). The tip made a prediction about future behavior and gave specifics regarding the men’s activity. See generally Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990). Moreover, El-Ameen was acquainted with Beck prior to the stop and corroborated information from the tip prior to stopping the vehicle. We find no error in the court’s denial of the motion to suppress based on Beck’s arguments regarding the initial stop. See generally Brooks v. State, 208 Ga. App. 680 (1) (431 SE2d 466) (1993); State v. Ball, 207 Ga. App. 729 (429 SE2d 258) (1993); compare State v. Sapp, 214 Ga. App. 428 (448 SE2d 3) (1994).

Next, we address Beck’s argument that the trial court erred in denying his motion to suppress since the State failed to meet its burden of proof under OCGA § 17-5-30 of showing that the search and seizure was lawful. Although at the hearing Beck argued that the State had failed to meet its burden of proof, he did not raise any specific arguments alleging that the warrant was illegal or not supported by probable cause. Though the search warrant which was obtained on May 28, 1992 was not made part of the record of the hearing, it was identified by Officer Leonard at trial.

Further, Leonard testified that he wrote his portion of the warrant and that the judge signed it. The warrant before us contains Leonard’s affidavit in which he recites the information known about Beck and his activities prior to the stop. He also stated that El-Ameen saw Beck eat a small plastic bag and that Beck stated to El-Ameen that he had swallowed marijuana. Leonard swore that it was his experience that drug offenders swallow crack cocaine and that cocaine is a powerful narcotic, which consumed in quantity may cause death or serious illness. He stated that he feared for the physical well-being of Beck.

In considering the denial of the motion to suppress, we may consider both the transcript on the hearing and the trial transcript. Rowe v. State, 184 Ga. App. 437, 438 (1) (361 SE2d 705) (1987). Given the facts of this case, the fact that the State did not introduce the warrant and affidavit at the hearing was immaterial. See Russell v. State, 181 Ga. App. 624 (1) (353 SE2d 820) (1987). We find no error in the denial of Beck’s motion to suppress evidence.

2. Secondly, Beck argues that the court erred in overruling his objection to evidence of the stomach and urine contents since the State failed to connect the chain of custody and failed to establish to a reasonable degree of certainty that the evidence was the same as that seized and that there had been no tampering with it. Beck contends that Officer Leonard is not trained in medicine and that it was necessary for the State to produce a medical technician to describe the procedures which were done and to verify from whence the bodily fluids came.

We do not agree. “In order to render admissible testimony concerning expert analysis of an essentially fungible item such as a blood sample or a drug, the prosecution must have various persons who had custody of the item testify to their receipt and retention of the substance until delivery to some other person. This is referred to as the chain-of-custody requirement, and its purpose is, of course, to ensure that the drug or blood sample is in fact that taken from the person in question.” (Citations and punctuation omitted.) Lane v. State, 210 Ga. App. 738, 740 (3) (437 SE2d 479) (1993). “The officer taking immediate custody of the . . . sample [s] in this case was present and watched as the sample was drawn from [Beck]. The identity and testimony of the person physically taking the sample is therefore irrelevant to the limited purpose of ensuring that the sample offered was in fact drawn from [Beck].” Lane, supra at 740.

Decided March 8, 1995.

Bates, Kelehear, Starr & Toland, James E. Toland, Jr., for appellant.

Jack O. Partain III, District Attorney, for appellee.

The fact that one of the vials tested negative for cocaine does not alter this conclusion. The evidence established a clear chain of custody from the time the samples were taken from Beck until they were tested. There was no evidence that the items had been tampered with and the evidence was properly admitted.

3. Finally, Beck contends that the court erred in failing to grant his motion for a directed verdict of acquittal. The standard of reviewing the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). Here, we find that a rational trier of fact could find from the evidence adduced at trial proof of Beck’s guilt beyond a reasonable doubt.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: Beasley, Chief Judge.

text:
    A94A2424, A94A2425.
    BAGLEY v. FULTON-DeKALB HOSPITAL AUTHORITY et al.; and vice versa.
    (455 SE2d 325)
   Beasley, Chief Judge.

On July 14, 1984, Tammy Bagley entered Grady Memorial Hospital, operated by the Fulton-DeKalb Hospital Authority (“Grady”), and gave birth to a son. Her son died November 2, 1986. Bagley sued Grady, along with physicians Miller and Bunch, and nurse Mongiello, contending that malpractice on the part of the medical professionals caused her son’s death, and that Grady was liable under the theory of respondeat superior. Grady and the individual defendants filed a motion for summary judgment based upon the doctrine of charitable immunity. On March 31, 1994, the court granted summary judgment to Grady on this ground but ruled that the doctrine of charitable immunity does not extend to individuals.

Bagley appeals from the grant of summary judgment to Grady (Case No. A94A2424). Grady and the individual defendants appeal from the denial of their motion for summary judgment (Case No. A94A2425).

Case No. A94A2424

1. Bagley asserts that the doctrine of charitable immunity is unavailable to Grady, but the Supreme Court has held otherwise. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (353 SE2d 515) (1987): “It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ [Cit.]” Id. at 834 (1). We have applied this ruling on a number of occasions, recognizing that “[a]s a charitable institution Grady is generally entitled to the defense of charitable immunity. [Cits.]” Fulton-DeKalb Hosp. Auth. v. Fanning, 196 Ga. App. 556, 557 (1) (396 SE2d 534) (1990). See also Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750, 751 (2) (409 SE2d 529) (1991); Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517, 519 (3) (385 SE2d 436) (1989); and Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205) (1989). In addition, Grady produced evidence in this case of its status as a charitable institution.

Bagley contends the immunity has been waived. Ponder specifically addressed the question of whether Grady’s self-insurance plan constituted a waiver of charitable immunity. The Court analyzed Grady’s “self-insurance” plan to determine whether it was to be likened to a commercial insurance policy, thereby waiving Grady’s ability to assert the charitable immunity defense, or whether it was to be likened to a “reserve fund created to protect against contingencies,” which would preserve Grady’s ability to assert the protection of charitable immunity. Ponder, supra at 835 (2). The Court held that immunity had not been waived by the self-insurance plan, stating that “[t]he Grady plan better fits into the mold of a reserve fund created to protect against contingencies. An important effect of the fund is the protection of the charitable assets. The policy considerations behind our holdings of immunity waiver to the extent of liability insurance coverage may be stated thusly: the premium has been paid, the coverage has been extended, so it must have been intended that the benefits be paid. No such policy considerations exist here.” Id. at 835 (2). There is no suggestion that Grady has now secured liability coverage.

Bagley contends that in 1987, after the decision in Ponder, Grady changed its plan from a “self-insurance plan” to a “contingency reserve fund,” and that the new plan does constitute a waiver of the immunity. The change in the designation of the plan occurred after both the 1984 treatment of the child and his 1986 death. Bagley does not indicate where in the record a copy of the 1987 plan may be found, but the evidence to which she does cite, and which she contends shows a change in the plan to her benefit, actually indicates that the 1987 change was intended to have only prospective application. As Ponder has specifically held that the plan in effect at the time of the injuries did not waive charitable immunity, and the only indication in the evidence is that the post-Ponder change had only prospective application, there has been no waiver of charitable immunity that could affect this case. Whether the post -Ponder change constitutes a waiver of charitable immunity is not implicated.

2. Bagley contends that charitable immunity is inapplicable because she falls into an exception for paying patients. “[A] charitable institution may not assert the immunity against a person who ‘(1) enters the hospital under an agreement to pay for services, (2) is able to pay for services, and (3) does pay for services.’ ” Walker v. Fulton-DeKalb Hosp. Auth., supra at 751 (2). When the defendant hospital produces evidence that the patient is the recipient of its charity, the patient who claims she is a paying patient and is not the recipient of charity has the burden of proving that status. Fulton-DeKalb Hosp. Auth. v. Fanning, supra at 559-560 (1).

Grady produced the affidavit of its chief executive officer who averred that Bagley had paid $2 for care that cost over $20,000. Bagley asserts it was error for the trial court to consider the records accompanying the affidavit because the affidavit did not state that the attached records were “true and correct copies” of Grady’s business records. The affidavit did state that “the business records attached hereto” were kept in the regular course of business. See OCGA § 24-3-14. An affidavit need not recite the words “true and correct copies” before the accompanying business records will be admissible. Questions about the accuracy of business records go to their weight, not their admissibility. Don Howard’s Music Mart v. Southern Bell Tel. &c. Co., 154 Ga. App. 648, 649 (2) (269 SE2d 506) (1980). Thus, Grady “ ‘produced [admissible] evidence that it had extended its charity to (the patient, so that) the burden shifted to [the patient] to produce evidence showing that (the patient) came within the exception to the charitable immunity doctrine and that. . . [she] was . . . a “paying patient” with a secondary source for paying the balance.’ [Cit.]” Fulton-DeKalb Hosp. Auth. v. Fanning, supra at 559 (1). Bagley had to show that she entered the hospital under an agreement to pay, had the ability to pay, and that there was payment in fact. Walker v. Fulton-DeKalb Hosp. Auth., supra.

We need not address every element of the test; Bagley points to no evidence that she or any secondary source paid for the services received on July 14 and 15, 1984. It is these services she contends were performed negligently and ultimately caused her son’s death. She does contend in her brief that the Medicaid system paid Grady for her son’s medical expenses, but her only reference to evidence of this is a statement allegation in deposition that Medicaid paid for other medical expenses after his birth. As she has not demonstrated that she came within the “paying patient” exception to charitable immunity, the court was bound to grant Grady’s motion for summary judgment.

Case No. A94A2425

3. Grady and the individual defendants contend that charitable immunity applies to the individual defendants. The court denied summary judgment to them, relying upon Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517, 519 (3) (385 SE2d 436) (1989). Grady urges that the decision should be overruled. In Cutts, we held that the protection of the doctrine did not extend to employees of the charitable hospital because individual professionals have a duty to exercise a reasonable degree of care and skill when providing medical treatment and that “[i]nsulating them from liability for breaching this duty simply because they were employed by a charitable hospital would not further the purpose of the charitable immunity doctrine. ‘By design the charitable immunity doctrine protects the funds of the charitable institution from depletion in order that these funds may be (preserved) to carry out the charitable purpose of the institution for the benefit of its beneficiaries.’ . . . [Cit.]” Id.

We are not persuaded that extending the immunity to the individual physicians would be within the purpose of the doctrine in that Grady will be “obligated” to use its assets to pay any judgment against the individual defendants. It appears that Grady considers itself bound to indemnify professionals who serve there based on an agreement between Grady and the medical teaching institution which furnishes those professionals. Assuming such an agreement, it cannot extend the charitable immunity to the individuals. While charitable immunity, and the public policies behind it, protect Grady’s charitable assets, it is not within the doctrine, nor within public policy, to allow Grady to enter into private agreements to spread the protection of a public policy doctrine over private parties who commit malpractice. While Grady may privately enter an indemnification agreement, any commitment on its part to use its assets to indemnify others is not protected by the doctrine.

Decided March 8, 1995.

Bird, Ballard & Still, William Q. Bird, for appellant.

Alston & Bird, Robert P. Riordan, for appellees.

Cutts properly determined that the purpose of the doctrine is to protect the charitable assets of the hospital, not the assets of the professionals who work there. The trial court’s reliance on it is sound.

Judgments affirmed.

Andrews and Johnson, JJ., concur.

       Again, we are not informed whether the record contains a copy of any indemnification agreement. However, neither party suggests that an indemnification agreement is only a recent addition to the self-insurance plan examined in Ponder and Cutts, supra. As such, its existence could not affect our analysis of Grady’s ability to assert the protection of the charitable immunity defense addressed in Division 1.


text:
    A94A2614.
    JOHNSON et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (455 SE2d 91)
   Beasley, Chief Judge.

Johnson was injured in an automobile accident. She and her husband sued Gresham, who drove the other car, and served a copy of the action upon her uninsured motor vehicle insurance carrier, State Farm, pursuant to OCGA § 33-7-11 (d). A jury awarded Johnson a total of $190,043.10: $21,643.10 for medical expenses, $3,400 for lost wages, and $165,000 for pain and suffering. It also awarded her husband $1,000 for loss of consortium. State Farm moved to reduce the verdict by $21,643.10 to reflect Johnson’s medical expenses it had already paid. Johnson appeals from an order granting that motion.

State Farm’s motion was based upon a non-duplication of benefits clause in the uninsured motor vehicle policy which states that “[a]ny expense paid or payable under the medical payments coverage will not be paid for again as damages under this [uninsured motorist] coverage. This does not reduce the [$300,000] limits of liability of this coverage.” Johnson argues that this contractual provision violates the statutory requirement that policies of uninsured motor vehicle coverage undertake “to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits [not less than specified amounts].” OCGA § 33-7-11 (a) (1). She contends that she would be entitled to recover the full amount of the verdict against a tortfeasor, without reduction, and that the statute requires her uninsured motor vehicle policy to allow her to recover the same from State Farm. It is true that policy provisions that violate statutory requirements are not enforceable. See Travelers Indem. Co. v. Williams, 119 Ga. App. 414 (167 SE2d 174) (1969).

State Farm argues that the non-duplication of benefits clause does not violate the statute, that OCGA § 33-7-11 (a) (1) does not require recovery beyond actual damages, and that the contractual provision should be honored. Johnson does not dispute that she has already received $21,643.10 in medical payments and that her interpretation would result in a recovery greater than her actual damages. Upon first examination, therefore, it appears the non-duplication provision results in Johnson receiving the full $190,043.10 awarded by the jury and that the provision complies with the statutory requirement that the policy pay “all sums which [s]he shall be legally entitled to recover as damages.” OCGA § 33-7-11 (a) (1).

In earlier interpretation of the Uninsured Motorist Act, it has been stated that “[t]he statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.” State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714 (177 SE2d 257) (1970). Although the statute requires that the insured be made whole within the limits of the policy, “the insured would not be legally entitled to recover amounts beyond his actual damages no matter how many policies he was the beneficiary of.” Id. These considerations are apparent when cases that have addressed the enforceability of setoff provisions in uninsured motorist policies are examined.

In Murphy, supra, the insureds were the beneficiaries of two uninsured motorist policies, both with limits of $10,000, which was then the statutory minimum. After a $5,000 settlement under one policy, the insureds sought to recover under the second policy. The insurer sought declaratory judgment and an injunction against any attempt to recover under the second policy. Not only were the insureds permitted to recover under the second policy, a clause in the policy that sought to declare the second policy’s coverage excess and limit the total amount of liability under both primary and excess coverage to $10,000 (effectively making the coverage under the second policy only $5,000 because of the payment under the first policy) was declared unenforceable. Such a clause prevented the insureds from being made whole within the policy limits and from recovering “all sums” to which they were legally entitled.

Similarly, in State Farm Mut. Auto. Ins. Co. v. Johnson, 126 Ga. App. 45, 47-49 (1) (190 SE2d 113) (1972), the uninsured motor vehicle policy provided $5,000 for medical expenses for each person and contained a clause to the effect that payments made under the medical benefits provision could be deducted from the $10,000 coverage available under the uninsured motorist provision. Johnson, supra at 46. The opinion in Johnson does not recite the language of the clause, but it appears the insurer interpreted it to allow a total recovery for one plaintiff under the policy of $10,000 at most; $5,000 paid under the medical provision, and $5,000 under the uninsured motorist provision. The $5,000 under the uninsured motorist provision was apparently calculated by accepting the $10,000 required minimum and deducting the $5,000 already paid. The court rejected the insurer’s argument, held that a clause with such an effect would be unenforceable under the statute, and declared that benefits available under the medical provision and under the uninsured motorist provision could “stack.” Id. at 47-48 (1). Johnson repeated the statement that an insured’s recovery would be limited to actual damages within the limits of the policy. Id. at 49.

In State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 699-700 (2) (188 SE2d 813) (1972) (physical precedent only as to Division 3, which does not figure here), the court upheld a clause providing that amounts payable under the uninsured motorist provision would be reduced by any amount previously paid under medical coverage. Uninsured motor vehicle coverage under the two policies was $40,000, while damages shown by the judgment were $32,500. The court determined that the judgment should have been reduced by $2,000 that had previously been paid under the medical coverage provisions, citing the principle that the insured should not receive more under his insurance policies than his actual damages and noting that such a recovery was contrary to the public policy behind the Uninsured Motorist Act. Enforcement of the contract provision did not contravene public policy. The court in Harper distinguished a federal case that declared a similar clause unenforceable, Phillips v. State Farm Mut. Auto. Ins. Co., 437 F2d 365 (5th Cir. 1971), on the ground that the insured in Phillips had actual damages greater than his coverage. Harper, supra at 700 (2); see Phillips, supra at 370 (III). Enforcement of the contract provision in that case would have contravened public policy.

The policy considerations behind the statute are also seen in the recent decision of Northbrook Property &c. Ins. Co. v. Merchant, 215 Ga. App. 273 (450 SE2d 425) (1994) (cert. pending). In Northbrook Property, the uninsured motor vehicle policy included a clause that allowed the insurer to take a setoff against medical expenses for workers’ compensation benefits already paid. Id. at 275 (2). Although the opinion did not specifically address whether the clause was contrary to the requirements of OCGA § 33-7-11 (a) (1), it did note that the purpose of the statute is to protect insureds as to actual losses, id. at 275, and concluded that the clause was “not precluded by statute or contrary to the public policy of this State.” Id. at 276 (2).

When faced with various facts, the cases examined have sought to make the insured whole within his policy limits, yet have confined recovery to actual losses. The clauses disallowed in Murphy, Johnson, and Phillips sought to reduce the limit of coverage available under the uninsured motorist provisions when there was an additional insurance payment. The clause at issue here specifically states that “[t]his does not reduce the limits of liability of this coverage.” It does not operate to bar stacking of coverage; it is only a non-duplication of benefits provision that addresses the concern of double recovery. See McCombs v. State Farm Mut. Auto. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991). The sole effect is to prevent double recovery when the insured has already received medical payments and the balance of the judgment will be within the uninsured policy limit.

The statutory interpretation Johnson advances would result in the double recovery of the medical benefits disapproved in Murphy, supra. Appellant’s case resembles that of Harper, the insured will recover actual damages under the policy and cannot use the language of the Uninsured Motorist Act to collect more than actual damages. This case is distinguished from Murphy, Johnson, and Phillips, in that in each of those cases the actual damages were greater than the policy limits. It is that difference which explains why the setoff clauses were unenforceable in those cases, yet enforceable in Harper and here.

Because of the amount of damages ($190,043.10), the amount of the policy limit ($300,000), and the amount of the medical payments made and deducted from the uninsured motorist liability ($21,643.10), Johnson is receiving “all sums” she is entitled to. This is so because the uninsured motor vehicle coverage meets, and in this case exceeds, the actual damages. In such circumstance, the non-duplication clause operates to preclude double recovery, not to reduce the recovery of all sums for which the tortfeasor is liable. The rule that emerges from examination of the statute and the cases applying it is that a non-duplication of benefits clause providing for setoff of medical benefits paid is enforceable when damages are equal to or below the uninsured motor vehicle policy limits because in such circumstances the clause only reduces the uninsured motorist payment by the amount of the prior medical payment without reducing recovery of all damages. This is consistent with the public policy considerations behind uninsured motor vehicle coverage. Such a clause is not enforceable when actual damages are greater than the policy limits because it would then operate to reduce recovery to an amount below the judgment, violating the requirement that uninsured motor vehicle insurance contracts undertake “to pay the insured all sums which he shall be legally entitled to recover as damages . . . within limits [of the policy].” OCGA § 33-7-11 (a) (1).

Johnson argues that allowing State Farm to insert the non-duplication clause does allow it to reduce the coverage available, regardless of the language of the clause itself. To the contrary, State Farm will be obligated to pay the entire amount of the judgment (barring any recovery from Gresham) and Johnson will receive her full judgment. As that amount is well within the coverage limit of $300,000 available to her, she will suffer no reduction in her coverage limit.

Decided March 8, 1995.

Edgar L. Crossett III, Samuel P. Pierce, Jr., for appellants.

Cooper & Allen, Gary M. Cooper, Crim & Bassler, Mitchell S. Evans, for appellee.

Johnson also contends that to allow State Farm to have the verdict reduced by the amount State Farm has already paid for medical expenses would violate the collateral source rule. “The collateral source rule has never applied so as to require an insurance company to pay ‘duplicate damages’ to a claimant. [Cit.]” Orndorff v. Brown, 197 Ga. App. 591, 592 (1) (399 SE2d 77) (1990). Neither OCGA § 33-7-11 nor the collateral source rule requires that Johnson receive double recovery. The court correctly enforced the contract clause limiting Johnson’s recovery to her actual damages.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Gresham did have minimum liability coverage. State Farm does not dispute that its uninsured motor vehicle coverage applies.


text:
    A94A2749.
    BLAIR v. THE STATE.
    (455 SE2d 97)
   Beasley, Chief Judge.

At a bench trial, Blair was convicted of loitering and prowling, OCGA § 16-11-36, and possession of less than one ounce of marijuana. OCGA § 16-13-2 (b).

Cobb County Police Sergeant Carter testified that she was doing a security check of an industrial park at night when no businesses in the park were open. The area is patrolled frequently, because stolen cars are found there on occasion and juveniles gather there.

On the night in question, Carter observed a car with the lights out in the parking lot, where authorized vehicles do not remain at night. It was occupied by Carnes in the driver’s seat and Blair in the passenger seat. When the officer approached the car, she smelled the odor of burning marijuana. She asked Carnes what they were doing there, and he stated they had been to a movie and had parked to try to decide what to do next.

Carter returned to her patrol car to request another police car. After Officer Sullivan arrived, both officers approached the car in which Carnes and Blair were seated. Sergeant Carter asked Carnes to step out of the car and asked what he and Blair were doing. He admitted they were smoking marijuana and both were arrested.

She then asked Carnes if he had any more marijuana in the car. He said he did, and she found it after he told her it was in a black bag behind the passenger seat. Officer Sullivan also found a baggie with marijuana under the passenger seat. A water pipe was found between the passenger seat and the door, and what appeared to be its bowl was found on the dash.

Although Sergeant Carter did not speak to Blair, she observed his face to be flushed, his eyes to be extremely glassy, and his appearance to be intoxicated or under the influence of drugs. She is specifically trained in marijuana detection. Officer Sullivan, who is trained in drug identification, testified that Blair had the odor of marijuana about him and that his eyes were very glassy and bloodshot, as though he had been smoking marijuana.

Sergeant Carter seized the green leafy material in the bags and the suspected marijuana pipes. The material tested positive for marijuana, but the other items were not tested.

Blair testified that his eyes were red because his contact lenses were irritated by the marijuana smoke. He maintained that only Carnes was smoking the marijuana and that he, Blair, was not participating. He admitted that he placed the pipe next to the passenger door after Carnes handed it to him.

1. Blair contends that the trial court erred in overruling his motion for directed verdict of acquittal and finding him guilty of possession of marijuana. There is no verdict in a bench trial; the issue is whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In the Interest of L. D. H., 213 Ga. App. 297, 298 (2) (444 SE2d 387) (1994).

In applying the test, we take into account OCGA § 24-4-6. It prohibits a conviction on circumstantial evidence unless the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis save that of the guilt of the accused.

“ ‘This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.’ [Cit.] [Emphasis in original.] ‘Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the [factfinder].’ [Cit.] Because the [factfinder] has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law. [Cits.] If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the [conviction] will be sustained. [Cits.]” Singleton v. State, 194 Ga. App. 5, 6 (389 SE2d 496) (1989); see Johnston v. State, 178 Ga. App. 219, 220 (1) (342 SE2d 706) (1986); Russell v. State, 174 Ga. App. 436, 437 (1) (330 SE2d 175) (1985).

Decided March 8, 1995.

Sandy E. Scott, for appellant.

It was a question for the factfinder as to whether Blair was merely present in the car in which marijuana was being smoked or whether he was participating in the smoking of the marijuana and thus in possession of it. There was evidence of a connection between him and the contraband other than spatial proximity and physical presence. See Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) (1991); Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986); compare Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983); Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979).

In sum, there was clearly sufficient evidence from which a rational trier of fact could find appellant guilty of marijuana possession beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Blair also contends that the court erred in finding him guilty of the loitering and prowling charge.

Under OCGA § 16-11-36 (a), “[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” Under OCGA § 16-11-36 (b), “[u]nless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct.” OCGA § 16-11-36 (b) further states that “[n]o person shall be convicted of an offense under this Code section if . . .it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.”

Although Blair argues otherwise, any rational trier of fact could have found beyond a reasonable doubt that he and Carnes were in a place at a time and in a manner not usual for law abiding individuals; that the circumstances warranted a justifiable and reasonable alarm or immediate concern for the safety of property (the closed business and buildings) in the vicinity; and that Carnes’ explanation that he and Blair were smoking marijuana did not dispel the alarm or concern.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Cindi Yeager, Assistant Solicitors, for appellee.


author: Smith, Judge.

text:
    A95A0015.
    CROMER v. HODGES et al.
    (455 SE2d 94)
   Smith, Judge.

Cathy Cromer brought this wrongful death action jointly against Barbara Hodges, Norika Wyatt and Bennie Wyatt alleging that the negligence of Hodges and Wyatt proximately caused the death of her husband Nolan Glenn Cromer from injuries he sustained in an automobile collision. Following presentation of the plaintiff’s case, the defendants’ motions for directed verdict were granted by the trial court as to all defendants.

The evidence at trial showed it was raining and dark on the evening of November 12, 1992, when Nolan Cromer’s vehicle began to “fishtail” as he lost control while traveling south on Highway 49 in Sumter County. Approaching from the opposite direction, Barbara Hodges reduced her speed when she saw Cromer’s oncoming vehicle swerving out of control, but the vehicles collided in the northbound lane and came to rest off the roadway. Before the collision or at impact, Nolan Cromer was ejected through the driver’s door of his automobile and was hit by Hodges’ vehicle, his body coming to rest in the middle of the roadway. At the time of the collision, Cromer’s vehicle was in disrepair: the rear tires possessed minimal tread, the accelerator was known to stick on occasion, and the driver’s side door could open without the latch being lifted. Nolan Cromer’s blood-alcohol concentration was subsequently found to be .14 grams. After the collision, Hodges stood beside Cromer’s motionless body in the roadway and tried to warn oncoming motorists. Norika Wyatt approached from the south, passed the scene, and pulled over. The evidence is in conflict as to whether or not Wyatt’s vehicle struck Cromer. A witness testified that Wyatt’s vehicle was traveling “fast,” but the record contains no other evidence of her rate of speed. The parties stipulated that Nolan Cromer’s death resulted from injuries sustained in the course of these events.

1. Cathy Cromer enumerates as error the grant of a directed verdict to Hodges. She argues the jury should have been allowed to determine whether Hodges negligently failed to stop when she realized Nolan Cromer’s vehicle was “fishtailing” and out of control.

We review the grant of a directed verdict to determine whether it was demanded by all the evidence. Johnson v. Ellis, 179 Ga. App. 343 (346 SE2d 119) (1986). “To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ [Cit.]” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). However, “[i]t is axiomatic that the mere fact that an accident happened and the plaintiff may have sustained injuries or damages affords no basis for recovery against a particular defendant unless the plaintiff carries the burden of proof and shows that such accident and damages were caused by specific acts of negligence on the part of that defendant.” (Citation and punctuation omitted.) Smith v. Morico, 166 Ga. App. 737 (305 SE2d 465) (1983).

Cathy Cromer failed to establish the elements of negligence and thereby to make out a prima facie case against Hodges. Even if the jury found that Hodges negligently failed to stop when she saw Nolan Cromer’s oncoming, out-of-control vehicle, no evidence shows that such a breach of duty proximately caused Nolan Cromer’s injuries. The parties’ pretrial stipulation that death resulted from injuries sustained in the November 12 incident does not obviate the need for proof on the issue of causation, especially in a case involving allegations of contributory negligence. Whether Nolan Cromer died from injuries sustained when he hit the pavement, or when Hodges’ vehicle hit him, or if and when Wyatt’s vehicle hit him is a matter that cannot be left to the jury’s speculation. There was no evidentiary basis for the jury to determine the extent to which Nolan Cromer’s injuries resulted from his own conduct as opposed to that of the defendants. Accordingly, the trial court correctly directed a verdict for Hodges.

2. Cathy Cromer contends a directed verdict for Wyatt was not authorized because a jury could have found her negligent even if it found Hodges was not at fault. Relying on Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984), she argues that the jury should have been allowed to determine whether Wyatt could and should have seen Nolan Cromer in the roadway in time to avoid hitting him. Moreover, she maintains conflicts in the evidence as to whether or not Wyatt’s car struck her husband preclude directing a verdict for Wyatt.

“The mere existence of conflicts in the evidence does not render the direction of a verdict erroneous if it was demanded, either from proof or from lack of proof on the controlling issue or issues.” Carr v. Jacuzzi Bros., 133 Ga. App. 70, 74 (7) (210 SE2d 16) (1974); Wagner v. Timms, 158 Ga. App. 538, 539 (1) (281 SE2d 295) (1981); OCGA § 9-11-50 (a). Plaintiff’s reliance on Fountain, supra, in which the Supreme Court held that a person “lying prone in the highway in a drunken condition ... is owed a duty of care where he is lying in the open on a flat road, even though undiscovered,” id. at 257, begs the question at issue here. While Fountain involved a pedestrian who negligently fell drunk in the roadway, his negligence did not bar recovery under the circumstances of the case. Nolan Cromer, however, fell drunk into the roadway after he lost control of a car whose tires, accelerator, and driver’s door latch were defective. Even if a jury could find that Nolan Cromer’s conduct did not bar recovery for his death, Cathy Cromer may not recover from Wyatt without proof that her failure to see and avoid hitting Nolan Cromer in the roadway, if negligent, proximately caused his injuries. While there is evidence that Wyatt was traveling “fast” and the evidence is conflicting as to whether or not Wyatt’s car struck Nolan Cromer, the record contains no proof of the extent to which his injuries resulted from Wyatt’s conduct. The trial court did not err in directing a defendants’ verdict.

Decided March 8, 1995

Beauchamp & Associates, Robert M. Beauchamp, Alexander R. Nemajovsky, for appellant.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Charles W. Byrd, for appellees.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.