author: Judge Harold R. Banke.

text:
    A96A0254.
    VOYLES et al. v. SASSER et al.
    (472 SE2d 80)
   Judge Harold R. Banke.

Pam Sasser and her business, Regal Insurance Agency, Inc. (“Regal”), sued C. E. Voyles, J. B. Voyles, W. F. Voyles (collectively “Voyles”), and Edward Bell White for breach of contract, promissory estoppel, and tortious interference with contract and business relations. We granted White’s and the Voyles’ application for interlocutory appeal from the trial court’s denial of their motion for summary judgment.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that this action arose after Sasser purchased Regal from the Voyles, who also owned and operated Ed Voyles Oldsmobile, Inc. and Ed Voyles Companies. As part of the sales transaction, the parties agreed that Regal would continue to service the Voyles’ insurance needs as it had prior to the sale. Several years later, Ed Voyles Companies began handling its insurance needs in-house instead of through Regal. Sasser and Regal then commenced this action. Held'.

1. The trial court erred in denying the Voyles’ motion for summary judgment on the breach of contract claim because the provision at issue was for an indefinite period and was thus terminable at either party’s will. Morris v. Park Newspapers &c., 149 Ga. App. 674, 675 (1) (255 SE2d 131) (1979); see Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985). In fact, Sasser acknowledged the indefinite nature of the agreement in her deposition, admitting that the parties never discussed its duration and that nothing lasts forever.

2. The Voyles were also entitled to summary judgment because the doctrine of promissory estoppel has no application to this case. “ £[E]stoppel applies to representations of past or present facts and not to promises concerning the future, especially where those promises concern unenforceably vague future acts.’ [Cit.]” Bridges v. Reliance Trust Co., 205 Ga. App. 400, 403 (2) (422 SE2d 277) (1992); see Loy’s, 174 Ga. App. at 702. Moreover, even if the doctrine had some application to these facts, the promise at issue was not sufficiently definite in time to justify Sasser’s reliance on it. See Fidelity & Deposit &c. v. West Point Constr. Co., 178 Ga. App. 578, 580 (344 SE2d 268) (1986).

Decided April 19, 1996

Reconsideration denied May 7, 1996

Downey & Cleveland, Joseph C. Parker, William C. Anderson, for appellants.

Gregg Loomis, for appellees.

3. No issues remain to be tried on the tortious interference with contract or business relation claims against White. In the absence of a valid and enforceable contract, summary judgment is appropriate. Hylton v. American Assn. for Vocational Instructional Materials, 214 Ga. App. 635, 638 (2) (488 SE2d 741) (1994); Stahl Headers, Inc. v. MacDonald, 214 Ga. App. 323, 324 (447 SE2d 320) (1994). Proof that White was no stranger to the business relations at issue is fatal to Sasser’s claim of tortious interference with business relations. Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 336 (2) (b) (444 SE2d 814) (1994). Under these circumstances, the Voyles and White were entitled to summary judgment.

Judgment reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A96A0652.
    SMITH v. THE STATE.
    (471 SE2d 227)
   Judge Harold R. Banke.

Mark Anthony Smith was convicted of three counts of selling crack cocaine (OCGA § 16-13-30) and sentenced to three consecutive life sentences. On appeal, Smith enumerates four errors and for the following reasons, we affirm in part and reverse in part.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Smith no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. On December 16, 1993, Georgia Bureau of Investigation Agent Deborah Cox Garner and her partner went to JJ’s Detail Shop with their confidential Informant to purchase crack cocaine. Mark Anthony Smith, a/k/a JJ, did not sell directly to the agents and used the confidential informant as an intermediary to transact the deal with the agents. Garner testified that she observed Smith give the confidential informant an object which later was confirmed to be crack cocaine. Afterwards, Garner also observed Smith receive a $100 cash payment from the confidential informant. Garner acknowledged that the agents had not searched the informant prior to the drug deal, that they lost sight of him when he went inside the detail shop and that the agents’ location inside their vehicle was beyond earshot and about 20 feet away.

Garner provided the details of Counts 3 and 4, two other drug transactions, both at JJ’s Detail Shop, one occurring on January 12, 1994, where Garner directly purchased $100 worth of crack cocaine from Smith, and another on January 22, 1994, where Garner witnessed her partner purchase $100 worth of crack cocaine from Smith. Garner observed Smith use a razor blade to cut off a $100 size portion of cocaine from a substantially larger piece. On the latter occasion, the confidential informant was not present.

After his arrest, Smith indicated to Special Agent Gregory A. Ramey that he wanted to cooperate by naming his suppliers. Ramey contacted the agent who was investigating a related federal case and was not present during the subsequent interrogation. Shortly after the conclusion of his state trial, Smith testified as a government witness in the federal trial.

During Smith’s motion for new trial hearing, the court admitted a certified copy of the federal transcript of Smith’s testimony. The record shows that during the federal trial, Smith testified that he had committed perjury during the proceedings of the instant state trial from which he now appeals his convictions. Held:

1. The trial court did not err in denying Smith’s motion for new trial as to Counts 3 and 4, but we reverse the denial as to Count 1. In his pretrial motion, Smith moved for the State to reveal both the identity of the confidential informant and “any promises, understandings, explicit or implicit, or other inducements or threats.” Although the State provided the identity of the confidential informant, Billy Smith, Smith’s stepbrother, the State failed to disclose all the requested information, by claiming on the record that no deals were made with the informant and that he was strictly a paid informer receiving $25 on a per case basis. Under cross-examination, when Smith’s counsel tried to explore the possibility of a deal with the State, Ramey testified, “He [the confidential informant] didn’t have any charges pending or anything.”

Ramey’s trial testimony was flatly contradicted by Dale Blalock, chief probation officer, who testified at the motion for new trial hearing that at the specific request of Ramey, he held and did not serve an outstanding warrant on Billy Smith. Blalock explained that Ramey and he had an agreement that as part of Billy Smith’s undercover work, Blalock would continue to hold the warrant while Ramey gave him periodic reports as to whether Billy Smith was properly performing the expected undercover work. In its appellate brief, the State inexplicably ignores the serious contradictions of its witnesses.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963). This Court has previously determined that “ ‘[disclosure could be material to the defense where the informant is a witness or a participant, or entrapped a defendant into committing a crime he would not otherwise have committed.’ [Cit.]” Roden v. State, 181 Ga. App. 287, 290 (351 SE2d 713) (1986).

Although the informant had no involvement in Count 4 and his participation in Count 3 did not rise to the level of a participant, in Count 1, the informant was responsible for introducing the parties, acted as an intermediary, and had a crucial role in the drug transaction. Compare Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972) (reversible error for trial court to refuse to compel revelation by State of deal made with prosecution witness whose credibility was at issue); and Hayes v. State, 203 Ga. App. 143, 145 (3) (416 SE2d 347) (1992) (defense counsel permitted to cross-examine witness regarding problems informant had with violating his probation and any deal with police). Here, unlike Hayes, 203 Ga. App. at 145, Smith was not permitted to effectively cross-examine Ramey about the informant’s probation or any deal with the informant because Ramey deliberately misled the jury into believing the informant had no charges pending and testified the informant was “working for the money.” By failing to disclose fully the State’s relationship with the informant and by offering Ramey’s untruthful testimony, the State offended the due process principles of Brady. By failing to address these serious matters in its appellate brief, the State further undermined its position. Accordingly, we reverse.

2. The trial court correctly allowed the agent to testify about Smith’s confession. The trial court conducted a hearing outside the presence of the jury pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), during which Ramey testified that without receiving any coercion or inducements, Smith admitted to selling cocaine. Smith then contradicted Ramey’s testimony and claimed that Ramey told him if he cooperated they would help him with the drug charges. Having reviewed the hearing transcript, we are unable to find clearly erroneous the trial court’s determination that Smith knowingly and voluntarily waived his rights. Cox v. State, 248 Ga. 713 (1) (285 SE2d 687) (1982).

Decided April 5, 1996

Reconsideration denied May 7, 1996

Ronald G. Shedd, for appellant.

Mark A. Smith, pro se.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

3. Having considered the evidence in the light most favorable to the verdict, we find that it was sufficient to sustain Smith’s convictions as to Counts 3 and 4 within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. We find no error in the trial court’s sentencing of Smith to consecutive life sentences. Less than two years before this trial, Smith had been convicted of two counts of possession of cocaine and two counts of sale of cocaine. Accordingly, the trial court was authorized to impose a separate life sentence for the conviction on each separate count. See McCoy v. State, 210 Ga. App. 672, 673 (437 SE2d 366) (1993).

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Birdsong, P. J., concur.

       The jury acquitted Smith of Count 2 in which the State alleged that Smith was a party to a sale of cocaine.


author: McMurray, Presiding Judge.

text:
    A96A0360.
    PITTS et al. v. THE STATE.
    (471 SE2d 270)
   McMurray, Presiding Judge.

Defendants Terry Roberts and Aubrey Pitts were tried before a jury on an indictment which charges them, as well as co-defendant Stanley Davis, with trafficking in cocaine. At trial, Deputy William Brad Todd of the Camden County Sheriff’s Department testified that he stopped a rental van traveling north on Interstate Highway 95 at about 2:00 in the morning on April 21, 1994. Deputy Todd explained that he stopped the van because its driver failed to lower the vehicle’s headlights in response to oncoming traffic. Deputy Todd testified that co-defendant Davis was driving the van; that defendant Roberts was in the front passenger seat and defendant Pitts was seated behind defendant Roberts. Deputy Todd testified the suspects appeared unusually tense; that co-defendant Davis and defendant Roberts gave conflicting versions of their travel itinerary and that he asked co-defendant Davis and defendant Pitts (because they were listed as authorized drivers on the van’s rental agreement) for their consent to search the vehicle. Deputy Todd testified that defendant Pitts refused to give his consent so he decided to conduct a “free air search” outside the van employing the services of his canine patrol partner, “Pedro.” Deputy Todd explained that Pedro is a “German Shepherd” with acute senses for detecting the presence of “marijuana, hash [and] cocaine.”

Deputy Todd testified that he searched the van’s interior after Pedro “alerted” outside the van’s “sliding door” and that he found over five pounds of suspected cocaine stashed behind “the [interior] rear quarter panel.” A crime laboratory chemist confirmed that this substance was 73.1 percent pure cocaine. Co-defendant Davis testified that he and defendants, along with another accomplice, purchased the cocaine in Miami, Florida; that he and defendants were on their way back to Georgia with the contraband when Deputy Todd stopped them and that he and defendants went to Miami for the sole purpose of purchasing cocaine. Co-defendant Davis admitted that he was pleading guilty and testifying against defendants in exchange for the promise of lighter punishment.

The jury found defendants guilty of trafficking in cocaine. Defendants Roberts and Pitts later filed a joint notice of appeal. Held:

1. Defendants challenge the sufficiency of the evidence, arguing that co-defendant Davis’s testimony was not sufficiently corroborated. We disagree. “ ‘Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. (Cit.) The necessary corroboration may be by circumstantial evidence. (Cit.)’ Harris v. State, 180 Ga. App. 56, 57 (348 SE2d 476).” Sheats v. State, 211 Ga. App. 317 (1), 318 (439 SE2d 102). In the case sub judice, co-defendant Davis’s testimony was corroborated by testimony regarding defendant Roberts’ admission that he, defendant Pitts and co-defendant Davis were traveling from Miami, Florida. Co-defendant Davis’s testimony was also corroborated by proof that defendant Roberts and co-defendant Davis gave Deputy Todd conflicting versions of their travel itinerary and the fact that Deputy Todd found a large quantity of cocaine stashed in the rental van in which defendants were traveling. This evidence is sufficient to authorize the jury’s findings that defendant Pitts and defendant Roberts are guilty, beyond a reasonable doubt, of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Bennett v. State, 202 Ga. App. 699 (415 SE2d 310).

2. Defendants contend the trial court erred in denying their joint motion to suppress, arguing that Deputy Todd went beyond the permissible scope of a routine traffic investigation by questioning the van’s passenger (defendant Roberts) about his travel itinerary and then conducting a “free air search” using Pedro, the drug-sniffing dog. Specifically, defendants assert that Deputy Todd’s investigation was no different from the traffic stop in Smith v. State, 216 Ga. App. 453 (454 SE2d 635), where this Court reversed the denial of a motion to suppress because the investigating officer unlawfully detained a driving under the influence suspect for questioning about possession of narcotics after the driver had given the officer a reasonable explanation for the conduct which gave rise to the traffic stop. The followup narcotics investigation in Smith was based solely on the officer’s “hunch” that narcotics were in the suspect vehicle. Id. at 455.

The case sub judice is distinguishable from Smith v. State, 216 Ga. App. 453, supra, because Deputy Todd did not call for Pedro’s “free air search” based solely on a “hunch” that defendants’ rental van contained narcotics. The deputy testified that he called for the “free air search” because defendants and co-defendant Davis appeared unusually anxious and because co-defendant Davis and defendant Roberts gave conflicting accounts of their travel itinerary. Also, unlike Smith, the questions Deputy Todd asked co-defendant Davis and defendant Roberts did not relate to a narcotics investigation. The deputy merely asked these suspects about their travel itinerary in a manner which was “not extensive or prolonged, and [was] not unconstitutionally intrusive when balanced against the widespread clear danger of drug peddling from Florida via the roads of this state. See Radowick v. State, [145 Ga. App. 231, 236 (244 SE2d 346)].” Moon v. State, 194 Ga. App. 777 (1), 778 (392 SE2d 19). Deputy Todd was therefore not only justified in questioning defendant Roberts about his travel itinerary during what defendants concede was an authorized traffic stop, but Pedro’s unobtrusive “free air search” of the van’s exterior was supported by an articulable suspicion which arose when co-defendant Davis and defendant Roberts gave conflicting accounts of their travel itinerary. See Moon v. State, 194 Ga. App. 777 (1), 778, supra. Probable cause for a full-blown search arose when these circumstances combined with Pedro’s signal that an illegal odor was emanating outside the van’s “sliding door.” See O’Keefe v. State, 189 Ga. App. 519, 524 (3), 526-527 (376 SE2d 406).

The trial court did not err in denying defendants’ joint motion to suppress.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided May 7, 1996.

Clyde M. Urquhart, Stephen G. Scarlett, for appellants.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

       Co-defendant Davis informed Deputy Todd that the suspects had been vacationing for a “couple of days” at Daytona Beach, and defendant Roberts responded that the suspects had been in Miami, Florida, for a week.


author: Birdsong, Presiding Judge.

text:
    A96A0600.
    A96A0601.
    MUTUAL LIFE INSURANCE COMPANY OF NEW YORK et al. v. CHURCHWELL et al. W. K. BARBER CONSTRUCTION COMPANY v. CHURCHWELL et al.
    (471 SE2d 267)
   Birdsong, Presiding Judge.

These two interlocutory appeals are from the orders of the trial court denying appellants’ motions for summary judgment against appellees/plaintiffs Margie Jane Churchwell and Charles Church-well. Appellants/defendants in Case No. A96A0600 are Mutual Life Insurance Company and Ares Development Company; appellant/ defendant in Case No. A96A0601 is W. K. Barber Construction Company.

Appellee Mrs. Churchwell, a former employee of Sun America Mortgage Company, slipped and fell on ice which had accumulated in front of the entrance door of a building owned by appellant life insurance company, managed by appellant development company, and in which Sun America had its offices. At the same time and location, appellant construction company was refinishing the approach (sidewalk) in front of the building.

The incident occurred on Sunday, December 26, 1993, when the office buildings on the premises were closed over the holiday weekend and no management personnel were on duty. Mrs. Churchwell had elected voluntarily to return to the Sun America office for personal reasons not connected with the scope of her employment; she was expecting to meet a friend there to obtain a Christmas package for her son. The engineering staff also was not present to perform inspections or maintenance work; however, one building engineer was “on call” for emergency situations. No reports of ice or snow had been made to appellant development company, which was unaware that ice had accumulated on the premises. Employees of the development company had conducted a daily inspection of the entranceway area on Friday, December 24, and found the approach to be dry and clear. As a former employee of Sun America, Mrs. Churchwell was aware the buildings would be closed and no management personnel would be present either to let her into the office or to perform maintenance. However, she expected to gain admission by knocking until her former co-worker, whom she expected to be working there, would open the door.

Mrs. Churchwell exited her car directly in front of the main entranceway to Sun America’s office building; at the time, she observed a substance on the entranceway which she erroneously believed to be water. Although she was aware that wet surfaces could be slippery and dangerous and that in cold weather a surface not exposed to sunlight could freeze and become icy, she nevertheless stepped onto the entranceway and fell after slipping on the icy substance. No caution signs, orange cones, or other warning devices had been placed in the vicinity of the slippery area.

Although the entranceway was under construction, no employees of appellant construction company were working on the premises over the holiday weekend. An irrigation system also was being installed in the area by appellant development company; however, the system was not operational at the time and had not yet been connected to the main water line and had no water running through its system when Mrs. Churchwell fell.

Mrs. and Mr. Churchwell brought suit for damages, respectively, for injuries sustained when the former fell and for the latter’s lost wages and loss of consortium. They contend appellants negligently failed to maintain adequately the building entranceway and to warn them the approach was unsuitably slippery and dangerous. Held,-.

1. In order for appellants/defendants to prevail on their respective motions for summary judgment, the summary judgment standards of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) must be met. At summary judgment a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential élement of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id. A movant/defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Id.

2. As a general rule, the determining question whether a visitor is an invitee by implication is whether the owner or occupant of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit. D. J. Powers Co. v. Hendry, 190 Ga. App. 297, 298 (379 SE2d 1). Thus, “ ‘[t]he accepted test to determine whether one is an invitee or a licensee is whether the party-coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier.’ ” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535). Appellee was a mere licensee at the time of the incident; she was on the premises solely for her own convenience and for no purpose beneficial to any of the appellants.

OCGA § 51-3-2 (b) provides that “[t]he owner of the premises is liable to a licensee only for willful or wanton injury.” See generally Evans v. Parker, 172 Ga. App. 416, 417 (1) (323 SE2d 276). As appellee was not on the premises in the status of an invitee, appellants “owed [her] no duty to use reasonable care to keep the premises and approaches safe, and thus owed [her] no duty to inspect the premises to discover dangerous conditions of which [they] did not yet have actual knowledge.” D. J. Powers Co., supra at 298.

There exists no evidence from which it could be inferred that appellants had actual knowledge of appellee’s presence on the premises; neither is there sufficient evidence from which it reasonably could be inferred that appellants reasonably should have expected appellee to be within the range of a dangerous condition on the premises. However, assuming arguendo that a genuine issue of material fact exists as to such knowledge, appellants still would not be liable under the circumstances here attendant, as appellee had knowledge of the dangerous condition at least equal to that of any appellant. Appellee admitted in her deposition that before she reached the Six-to eight-foot spot which she thought was water, she actually saw the water in front of her covering the entrance to the premises. She further admitted that, had she stopped and thought about it, she knew that water on a sidewalk can create a slippery or dangerous condition. Appellee knew that water can be slippery, that standing water on a cold sidewalk can freeze, and that a wet sidewalk in cold weather and not exposed to sunlight could be icy. Although it is usually wilful or wanton not to exercise ordinary care to prevent injuring a licensee who is actually known to be or reasonably is expected to be, within range of a dangerous condition on the premises, where a licensee has equal knowledge of the dangerous condition or the risks involved, there is no wilful or wanton action on the part of the respective premise owner, manager, or tenant, and there is no liability to the licensee. Evans, supra at 417. “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner, or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee [or licensee who is known to be on the premises] knows of the condition or hazard, there is no duty on the part of the proprietor to warn the [person] and there is no liability for resulting injury because the [person] has as much knowledge as the proprietor does.’ ” Trillet v. Vulcan Materials Co., 199 Ga. App. 583, 584 (405 SE2d 572); compare Johnson v. Autozone, 219 Ga. App. 390, 392-393 (465 SE2d 463).

Decided May 7, 1996.

Carter & Ansley, Michael A. Coval, for appellants (case no. A96A0600).

Johnson & Benedict, Noel H. Benedict, for appellant (case no. A96A0601).

Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, Christopher W. Daly, for appellees.

Construing the evidence most favorable to appellee, her knowledge of the slippery conditions which caused her fall, regardless of the source from which such water originated, was at least equal to that of appellants. In the absence of any question of fact as to any wilful or wanton action on the part of the appellants, the trial court erred by denying appellants’ motions for summary judgment. Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (invitee slipped on ice that was concealed under a visible puddle of water); compare Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280 (430 SE2d 86); McIntyre v. Corporate Prop. Investors, 160 Ga. App. 868 (288 SE2d 584). Quiktrip Corp. v. Childs, 220 Ga. App. 463 (469 SE2d 763) is distinguishable factually from this case and is not controlling as to the issue of superior knowledge.

Judgments reversed.

Beasley, C. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A96A0726.
    GARRETT et al. v. LIFE INSURANCE COMPANY OF GEORGIA et al.
    (471 SE2d 262)
   Blackburn, Judge.

James E. Garrett and Mary L. Whatley, individually and as administratrix of the estate of Anita Ann Garrett (collectively referred to as the plaintiffs) appeal from the trial court’s grant of summary judgment to Life Insurance Company of Georgia, Terrell M. Shields, and Thomas Hines (collectively referred to as the defendants).

This is the second appearance of several of these parties before this Court. See Garrett v. Life Ins. Co. of Ga. (Case No. A95A0812, decided June 1, 1995, unpublished opinion). In their first appearance, Mr. Garrett and Whatley, as potential beneficiaries, had filed a breach of contract claim against Life Insurance Company of Georgia (Insurance Company) seeking the proceeds of a life insurance policy applied for by Ms. Garrett. We affirmed the trial court’s grant of summary judgment in favor of the Insurance Company finding that no contract of insurance existed.

On January 13, 1995, Mr. Garrett and Whatley filed the present action against the Insurance Company based on tort, rather than contract, principles. Both actions, however, hinge on the same facts surrounding the same insurance policy application. In the present lawsuit, however, Whatley, in her capacity as the administratrix of the estate of Ms. Garrett, was added as a plaintiff, and Shields and Hines were added as defendants. The other parties remain the same as in the previous action. The trial court granted summary judgment to all defendants based upon res judicata, collateral estoppel, and the merits. The facts of both lawsuits are as follows.

On May 6, 1993, Ms. Garrett submitted an application for life insurance through Shields, an agent of the Insurance Company, and attached her first premium payment. Ms. Garrett named her brother, Mr. Garrett, and her sister, Whatley, as beneficiaries. In return, Ms. Garrett received a receipt stating that, except in limited circumstances which we held did not exist in the first lawsuit, “NO LIFE INSURANCE MAY TAKE EFFECT EARLIER THAN THE POLICY DELIVERY DATE.” In addition, the application provided: “I agree that ... no agent has the authority ... to accept risks or determine insurability . . . and . . . only the President, Vice President, and Secretary, or an Assistant Secretary of the [Insurance Company] can make or change a contract.”

The application was forwarded to the Insurance Company. Because a credit agency retained by the Insurance Company to perform routine background checks could not locate Ms. Garrett, her application was rejected. On July 7, 1993, the Insurance Company issued a refund check for the premium which was mailed to the address Ms. Garrett provided on her application.

In October 1993, concerned that the policy had yet to be delivered, Whatley went to the Insurance Company office to inquire as to the status of her sister’s application. Whatley alleges that Shields and Hines informed her that Ms. Garrett’s policy was in full force and effect and that they requested a second premium payment.

On October 20, 1993, a second application, purportedly containing Ms. Garrett’s signature, was submitted, although the authenticity of Ms. Garrett’s signature is in dispute. In addition, a second premium payment was made on November 1, 1993. Although the plaintiffs maintain that they believed that the second premium was being paid on the first application, the receipt for the second premium payment bore the policy number of the second application. Ms. Garrett died on November 11, 1993.

1. In their first enumeration of error, the plaintiffs contend that because the two cases arose from separate and distinct transactions the trial court erred in holding that res judicata and collateral estoppel precluded the present action.

“[Res judicata] will bar a plaintiff’s action if the plaintiff has brought another action based on the same subject matter, the plaintiff had a full and fair opportunity to litigate the other action, the other action resulted in an adjudication on the merits, and the other action was against the same defendant or its privy.” Sorrells Constr. Co. v. Chandler Armentrout &c., P.C., 214 Ga. App. 193, 194 (447 SE2d 101) (1994). Collateral estoppel, on the other hand, “ ‘precludes relitigation of issues actually litigated and necessary to the outcome of the first action.’ ” (Citation omitted.) Id.

In support of their argument, the plaintiffs contend that the first lawsuit was based on whether a binding contract existed, whereas the second lawsuit is based on: (1) the negligence and/or fraud of the defendants in failing to notify the plaintiffs that Ms. Garrett’s application had been rejected; (2) advising the plaintiffs that the insurance policy was in full force and effect when the same was not true; and (3) the submission of a second application without approval or authorization. However, a comparison of the first and second lawsuits reveals that they are not so distinct.

Mr. Garrett and Whatley argued in the first lawsuit that they were entitled to the proceeds of the insurance policy because they were never notified that Ms. Garrett’s application had been rejected. Moreover, in the first lawsuit, Mr. Garrett and Whatley specifically alleged that they had been assured by an agent of the Insurance Company that the May 6, 1993, policy was in full force and effect. Finally, during the first lawsuit, Mr. Garrett and Whatley also specifically denied that the signature on the second application was that of Anita Garrett. “Res judicata bars subsequent actions as to all matters put in issue or which under the rules of law might have been put in issue in the original action. OCGA § 9-12-40. . . . The adding of additional claims for relief which grow out of the same factual situation do not amount to the adding of a new or different cause of action,” thereby escaping the bar of res judicata. (Punctuation omitted.) McIver v. Jones, 209 Ga. App. 670, 673 (434 SE2d 504) (1993); see also Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685, 686 (391 SE2d 412) (1990) (plaintiff seeking the proceeds of a life insurance policy may not initially sue the insurance company under a contract theory and, after an unfavorable outcome, seek to sue the insurance company under a tort theory if the plaintiff could have asserted both theories in a single action). Because the facts supporting the second lawsuit were also used to support the initial lawsuit, the trial court did not err in holding that the two lawsuits arose from the same transactions. Accordingly, the claims of Mr. Garrett and Whatley, in her individual capacity, filed against the Insurance Company in the second lawsuit are barred by res judicata.

2. In their second enumeration of error, the plaintiffs argue that the trial court erred in holding that Shields and Hines were in privity with the Insurance Company, and thus the claims against them were barred by res judicata as well.

(a) “Although a master has privity with his servant and can claim the benefit of an adjudication in favor of the servant, a servant is not in privity with the master so as to be able to claim the benefit of an adjudication of the master.” (Citation omitted.) Gilmer v. Porterfield, 233 Ga. 671, 674 (212 SE2d 842) (1975); see also Hunter v. Embree, 122 Ga. App. 576, 577 (178 SE2d 221) (1970). The defendants argue, however, that McNeal v. Paine, Webber, Jackson &c., 249 Ga. 662 (293 SE2d 331) (1982), created an exception to Gilmer which is applicable in the instant case. In McNeal, the Supreme Court of Georgia held that where the master is sued under the doctrine of respondeat superior for actions of the servant within the scope of the servant’s authority, and the defenses available to the master and the servant do not vary, the action adjudicating the master’s liability bars a subsequent action against the servant. Id. at 664. The defendants’ reliance on McNeal and its progeny is misplaced, however, because the McNeal exception applies only in cases involving collateral estoppel. See Sorrells, supra at 194-195 (privity rules between res judicata and collateral estoppel distinguished); see also Block v. Woodbury, 211 Ga. App. 184, 185-186 (438 SE2d 413) (1993). Collateral estoppel is not applicable in the instant case because, the tort issues raised in the second lawsuit were not necessarily decided in favor of the Insurance Company in the first lawsuit. See Sorrells, supra at 194. As a result, Shields and Hines were not in privity with the Insurance Company. Under these facts, the court erred in holding that the claims filed against Shields and Hines were barred by res judicata.

(b) This does not end our discussion, however, because “a summary judgment right for any reason will be affirmed. [Cit.]” Smith v. Housing Auth. of Athens, 212 Ga. App. 503, 504 (441 SE2d 847) (1994). As a result, it is appropriate to determine if the plaintiffs’ claims have any merit.

(1) The plaintiffs allege they have a cause of action against the defendants because Shields and Hines negligently, recklessly, and/or fraudulently informed Whatley that the policy applied for on May 6, 1993, was in full force and effect. However, in order to recover in tort for a misrepresentation, the hearer must have reasonably relied on the misrepresentation. Thompson v. Pate, 193 Ga. App. 418, 419 (388 SE2d 30) (1989). An applicant for insurance cannot reasonably rely on a soliciting agent’s statements assuring coverage or effectiveness when, as in the instant case, the application makes clear that the agent has no authority to bind the company. Id. at 419; see also Fowler v. Prudential Property &c. Ins. Co., 214 Ga. App. 766, 767-768 (449 SE2d 157) (1994) (insured not justified in relying on agent’s misrepresentation that a grace period for payment of premiums existed); Hyde v. Acceleration Life Ins. Co., 211 Ga. App. 153, 154-155 (438 SE2d 385) (1993) (applicant for health insurance not justified in relying on insurance agent’s misrepresentation that he would be insured in light of statements on application that no agent had authority to waive conditions listed on the application and that only the company could approve coverage). Because Ms. Garrett, as the applicant of the life insurance policy, could not have reasonably relied on the alleged misrepresentation, it follows that neither could her beneficiaries. In addition, there is no evidence that Whatley even informed Ms. Garrett of the statements made by Shields and Hines, negating any possibility of reliance on Ms. Garrett’s behalf. Therefore, this cause of action is without merit.

(2) The plaintiffs allege they have a cause of action against the defendants because a second application for insurance coverage was negligently, recklessly, and/or fraudulently submitted in Ms. Garrett’s name without her approval. It is undisputed that this second application was never accepted by the Insurance Company. Even if it had been accepted, it would have been to the plaintiffs’ advantage, rather than to their detriment, because Ms. Garrett would have been covered. Because the plaintiffs would have benefited from the alleged fraud if it had succeeded, they have no right to complain unless it somehow prevented Ms. Garrett from seeking other coverage which she could have obtained. See James, Hereford &c. v. Powell, 198 Ga. App. 604, 606 (402 SE2d 348) (1991). The plaintiffs, however, alleged that they had no knowledge of the second application until after Ms. Garrett’s death. Clearly Ms. Garrett was not prevented from seeking other coverage because, by the plaintiffs’ own admission, neither they nor Ms. Garrett was aware of the second application prior to Ms. Garrett’s death. Therefore, this cause of action is without merit.

(3) The plaintiffs allege they have a cause of action against the defendants because the defendants negligently, recklessly, and/or fraudulently failed to timely notify Ms. Garrett that her application for life insurance had been denied. We have previously held, however, that there is no common law duty for an insurance company to promptly notify an applicant for insurance coverage if they have been accepted even in those instances where premiums have been paid in anticipation of receiving coverage and those premiums were not returned until after the applicant’s death. Watkins v. Coastal States Life Ins. Co., 118 Ga. App. 145, 148-149 (162 SE2d 788) (1968).

While, in light of the above, we find no common law duty for an insurance company or agent to notify an applicant when coverage is denied, the plaintiffs maintain that such a duty is imposed by statute. OCGA § 33-39-11 (a) (1) provides that “[i]n the event of an adverse underwriting decision the insurance institution or agent responsible for the decision shall. . . provide the applicant. . . with the specific reason or reasons for the adverse underwriting decision in writing or advise such person that upon written request he or she may receive the specific reason or reasons in writing.” Pretermitting the issue of whether a violation of OCGA § 33-39-11 even occurred, we find the plaintiffs’ attempt to recover monetary damages for such a violation to be without authority. OCGA § 33-39-21 (a) and (e) limit any recovery in a private cause of action for violations of OCGA § 33-39-11 to equitable, as opposed to monetary, relief. Thus, because the plaintiffs are not seeking equitable relief, the plaintiffs’ third and final cause of action is also without merit.

Accordingly, the trial court did not err in granting summary judgment to Shields and Hines.

3. In their third enumeration of error, the plaintiffs contend that the trial court erred in holding that there were no genuine issues to be tried with respect to the claims brought by the estate of Ms. Garrett.

In light of our holding in Division 2 (b) as to the merits of the plaintiffs’ claims, this enumeration of error is without merit.

Decided May 7, 1996.

Gammon & Anderson, Joseph N. Anderson, for appellants.

Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., Meryl C. Maneker, Burkhalter & Stephens, Terri B. Stephens, for appellees.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J, concur.

       This refund check was allegedly never received by Ms. Garrett. A new refund check was issued on November 22, 1993 — after Ms. Garrett died but before the Insurance Company was notified of her death.

       Although Mr. Garrett and Whatley contend that they were not aware of the second application until after the first lawsuit was filed, and thus could not have asserted this claim in the first lawsuit, the record reveals that their counsel received notice of the second application on or about April 12, 1994, prior to the filing of the first lawsuit. In any event, as discussed more fully in Division 2, any cause of action based on the validity of the second application is without merit.

       Although actual ownership of the policy is in dispute, putting into question whose reliance is relevant, we hold that none of the plaintiffs could have justifiably relied on the agents’ alleged misrepresentations.


text:
    A96A0077.
    RIVIERA FINANCE v. McBRIDE.
    (471 SE2d 233)
   Judge Harold R. Banke.

Riviera Finance (“Riviera”), an accounts receivable factor, sued Verna LaRundu Staggers (“Staggers”), Rundu Productions, Inc. (“Rundu”) and Cornell McBride, Jr. d/b/a McBride Research Laboratories, Inc. (“McBride”) for conspiracy to defraud. McBride moved for summary judgment and to strike certain portions of a key affidavit. Finding the affidavit contained inadmissible hearsay and that no genuine issue of material fact remained, the trial court granted summary judgment to McBride. Riviera appeals.

To prevail at summary judgment under OCGA § 9-11-56, McBride, the movant, must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Riviera, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record and testimony reflect the following.

In March 1993 at Staggers’ behest, Riviera purchased a Rundu invoice, the terms of which required McBride to pay Rundu $41,000 in May 1993 for 10,000 calendars. Prior to Riviera’s purchase of this invoice, account executive Mary Crenshaw verified the calendar order and McBride’s intent to pay the outstanding balance. Riviera claimed that based on the account debtor McBride’s assurances that he had received the calendars and planned to pay the full purchase price within 60 days, Riviera agreed to factor Rundu’s invoice and proceeded to pay $36,900 to Staggers and Rundu. Riviera sent McBride confirmation that it had purchased the invoice from Staggers and Rundu and directed McBride to make payment directly to Riviera.

After Riviera purchased the invoice and factored it, McBride subsequently disclosed that the calendars were defective, and eventually he rejected the entire order. Rundu later issued McBride a credit memo, stating, “order never corrected, original units returned.”

Riviera’s sole enumeration is that the trial court erred in granting summary judgment in favor of McBride because material issues of fact remain. Held:

To avoid summary judgment, Riviera had to present evidence of the elements of its fraud claim: a false representation by McBride, scienter, an intention to induce Riviera to act in reliance, justifiable reliance and damages. See Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (1) (270 SE2d 249) (1980); OCGA §§ 51-6-1, 51-6-2. Riviera presented evidence that as part of its customary business practice, it routinely relies upon account debtors’ statements before it purchases invoices and factors them. Riviera’s evidence showed that it agreed to factor the Rundu account because it relied on McBride’s representations to Crenshaw about that account. Lloyd v. Tyson, 195 Ga. App. 48, 49 (2) (392 SE2d 551) (1990).

Part of Riviera’s evidence was deemed inadmissible, pursuant to McBride’s motion to strike certain portions of Crenshaw’s affidavit as inadmissible hearsay. However, we find that parts of the challenged sentences are not hearsay but are probative evidence admissible to explain conduct under OCGA § 24-3-2. Moreover, Crenshaw’s affidavit, taken as a whole, contains sufficient admissible evidence to demonstrate the existence of material disputed facts. In an unchallenged section, Crenshaw testified, “If Mr. McBride had advised me on March 10, 1993, that the calendars delivered to him by Rundu were not satisfactory Riviera would not have factored the $41,000 Rundu invoice.” Although it is undisputed that prior to Riviera’s purchase of the invoice, Riviera telephoned McBride to verify the order and McBride’s intent to pay, whether McBride, at the time of this conversation, deliberately misinformed Crenshaw that he had already received conforming calendars raises a disputed issue of material fact.

Also, in another uncontested portion of Crenshaw’s affidavit, Crenshaw testified that during a telephone conference call which included her manager, McBride made an admission against interest when he admitted knowing that Riviera was relying on his assurances that the calendars were satisfactory in deciding whether or not to factor Rundu’s invoice. See Colbert v. Doe, 164 Ga. App. 618 (1) (298 SE2d 592) (1982) (inconsistent prior statement by opposing party admissible as exception to hearsay rule); and OCGA § 24-3-31, admission by party to the record. Thus, Riviera’s evidence showing that McBride knowingly made a false representation upon which Riviera relied to its detriment was sufficient to , preclude summary judgment.

Decided April 18, 1996

Reconsideration denied May 8, 1996

Michael J. Reily, for appellant.

Schnader, Harrison, Segal & Lewis, Anne E. Patrick, James M. Hunter, C. Wilson DuBose, for appellee.

We reject McBride’s contention that any reliance by Riviera on his statements was unjustifiable and that Riviera failed to exercise due diligence. Whether Riviera’s reliance was justifiable under these circumstances is a jury question, as is the materiality of McBride’s misrepresentations. See King v. Towns, 102 Ga. App. 895 (118 SE2d 121) (1960). Similarly, “[w]hether a party exercised due diligence to ascertain the truth is also for jury resolution.” Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164 (1), 166 (397 SE2d 720) (1990). Although one may fail to exercise due diligence as a matter of law, in this case, it is not clear what additional action Riviera could have undertaken to protect its interests. Compare, e.g., Jung v. Cheoun, 216 Ga. App. 490, 492 (455 SE2d 310) (1995) (failure to request or examine financial records of business prior to its purchase not due diligence). Because genuine issues of material fact remain unresolved, summary judgment must be reversed. OCGA § 9-11-56 (c); Lau’s Corp., 261 Ga. at 495.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

       A consent judgment was entered against Staggers and Rundu.

       Although both sides raise numerous UCC and contract law arguments, the complaint alleges only fraud and not breach of contract or a claim under the UCC.


text:
    A96A0564.
    LANIER BANK & TRUST COMPANY v. NIX.
    (471 SE2d 229)
   Blackburn, Judge.

Lanier Bank & Trust Company (Lanier Bank) appeals the trial court’s order dismissing its foreclosure confirmation proceeding. On appeal, Lanier Bank contends the trial court erred in finding that filing a confirmation petition with the clerk of court was insufficient to meet the mandates of OCGA § 44-14-161 (a).

OCGA § 44-14-161 (a) provides, “[w]hen any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.” (Emphasis supplied.)

Citing Hernandez v. Resolution Trust Corp., 210 Ga. App. 538 (436 SE2d 534) (1993) and Cornelia Bank v. Brown, 166 Ga. App. 68 (303 SE2d 171) (1983), Lanier Bank contends that the reporting requirement of OCGA § 44-14-161 is a ministerial function of the court which may be delegated. We cannot agree. In Hernandez, supra, we held that the reporting required by the statute did not have to be made to the specific judge to whom the case was assigned because the statute required only that the report be made to “a judge of the superior court of the county in which the land is located.” Id. at 538. In Cornelia Bank, we determined that the bank’s presentation of its petition to the judge’s secretary whom the judge had previously authorized to accept such petitions was sufficient to meet the mandates of OCGA § 44-14-161 (a). Contrary to Lanier Bank’s arguments, our holdings in Hernandez, supra, and Cornelia Bank, supra, do not support its contention that filing with the superior court clerk is sufficient to meet the mandates of OCGA § 44-14-161 (a).

In the present case, it is clear that Lanier Bank did not attempt to present its petition to the judge or even to the judge’s office. Instead, Lanier Bank relies on its filing with the clerk of court by asserting that OCGA § 15-6-61 (a) (3) provides a basis for the superior court clerk’s acceptance of the petition in place of the judge. OCGA § 15-6-61 (a) (3) provides that it is the superior court clerk’s duty “[t]o issue and sign every summons, writ, execution, process, order, or other paper under authority of the court and attach seals thereto when necessary. The clerk shall be authorized to issue and sign under authority of the court any order to show cause in any pending litigation and any other order in the nature of a rule nisi, where no injunctive or extraordinary relief is granted.”

A clerk’s authority to accept papers under the authority of the court does not in any way implicate the process by which a foreclosure sale is confirmed. The Georgia Supreme Court has previously determined that an application for confirmation of a foreclosure is initiated only upon filing the creditor’s report with a superior court judge. “It is clear . . . that an application for confirmation is not a ‘complaint’ which initiates a ‘civil action’ in the superior court. . . . Indeed, entirely unlike a ‘civil action’ which is initiated by the filing of a ‘complaint’ with the clerk of the court, a confirmation proceeding can only be initiated by the creditor’s report of the sale to the superior court, judge.” Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (430 SE2d 732) (1993).

Furthermore, Lanier Bank’s assertions that this is a case of first impression are without merit. In Cornelia Bank, supra at 69, we found that “[i]n previously ruling that presentation of a confirmation petition to the clerk of the superior court does not meet the reporting requirement, this court emphasized the literal language of the statute, ‘report the sale to the judge.’ Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977). See also Dukes v. Ralston Purina Co., 127 Ga. App. 696 (194 SE2d 630) (1972).”

Decided April 12, 1996

Reconsideration denied May 8, 1996

Banks & Stubbs, Rafe Banks III, for appellant.

David C. Butler, for appellee.

The trial court correctly determined that Lanier Bank failed to comply with the reporting mandates of OCGA § 44-14-161 (a).

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J., concur.


author: Beasley, Chief Judge.

text:
    A96A0575.
    FORT HOWARD PAPER COMPANY et al. v. HALLISEY
    (471 SE2d 231)
   Beasley, Chief Judge.

We granted Fort Howard Paper Company’s application for discretionary appeal in order to review the award of workers’ compensation disability benefits to Hallisey.

Hallisey was employed by Fort Howard when he slipped while working. His body twisted, and he pulled something in his lower back. He described it as feeling as though a muscle was snapping like a rubber band. He testified that this caused a severe burning sensation with an immediate onset of pain.

He reported the incident to his supervisor and asked for ibuprofen, which his supervisor provided, but he did not seek medical treatment. He worked the remainder of his shift even though his back was “pretty painful” and he developed a limp. He worked his full shift the next day but omitted doing things he knew would aggravate his back pain.

The following day was his day off. He did not do anything but lie around the house, apply a heating pad to his back, and take aspirin. Although this made him feel a lot better, he was still “pretty sore.” Nonetheless, he decided to play a regularly scheduled golf match the next day. He described his golf game as “Terrible. Terrible. The worst round I had played in ages. I couldn’t swing the club. The more I played the worse it hurt. It seemed like I was steady [sic] making it worse as the day went on.” After making his tee shot on the 24th hole, his back pain became so painful that he had to discontinue the game. He had difficulty walking from the tee to the cart, and he had to have the assistance of a golf course employee in loading his golf bag into his car.

When he arrived at home, he sought treatment from a doctor. The next day, he reported that he would not be coming to work because he had injured his back while playing golf. The orthopedic surgeon who treated him testified that in his opinion the golf game aggravated the work injury.

Hallisey subsequently filed a claim for temporary total disability and medical benefits. Fort Howard defended on the ground that Hallisey’s disability was caused by an injury he sustained while playing golf rather than by his slip at work. The administrative law judge awarded benefits based upon his finding that the golf activity did not cause his disabling injury but rather “temporarily aggravated and accelerated the symptoms from the injury.” The Appellate Division of the State Board adopted the ALJ’s award and was affirmed by the superior court.

This case presents for decision the question of whether there is or may be a bar to the recovery of workers’ compensation benefits where the employee’s initial accidental injury took place in the course of employment but the aggravation of it was due to his own negligent conduct outside of the workplace.

In workers’ compensation law, “an accident arises ‘in the course of the employment’ if it is an aggravation of an injury which took place in the course of employment or if it is the end product of a force or cause set in motion in the course of employment. [Cits.]” U. S. Asbestos v. Hammock, 140 Ga. App. 378 (1), 379 (231 SE2d 792) (1976). It is firmly established that an employee’s negligence in sustaining a work-related injury is not a bar to compensation. See Terry v. Liberty Mut. Ins. Co., 152 Ga. App. 583 (2), 584 (263 SE2d 475) (1979); Merry Bros. Brick &c. Co. v. Neely, 103 Ga. App. 616 (120 SE2d 137) (1961); Lumbermen’s Mut. Cas. Co. v. Lynch, 63 Ga. App. 530 (2) (11 SE2d 699) (1940); OCGA § 34-9-17. However, an employee’s conduct in negligently aggravating a work-related injury outside of the workplace may be a bar.

As Professor Larson explains, “[a] distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, . . . the employee’s own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of ‘direct and natural results,’ and of claimant’s own conduct as an independent intervening cause.” (Footnotes omitted.) Larson, The Law of Workmen’s Compensation, p. 3-502, § 13.11 (1995); see City of Buford v. Thomas, 179 Ga. App. 769, 773-774 (3) (b) (347 SE2d 713) (1986). Coverage for the initial work-related injury does not relieve the employee of all responsibility for subsequent conduct relating to the cause of the injury.

Decided April 17, 1996

Reconsideration denied May 8, 1996

Brennan & Wasden, Marvin W. McGahee, for appellants.

Donaldson, Herndon, Bell & Metis, Thomas R. Herndon, for appellee.

Cases such as Peachtree Plaza Hotel v. Haynes, 163 Ga. App. 831 (296 SE2d 147) (1982), and Atkinson v. Home Indem. Co., 141 Ga. App. 687 (234 SE2d 359) (1977), are examples of the general rule that “if a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment.” Wilson v. Workers’ Compensation Commr., 328 SE2d 485, 490 (6) (W. Va. 1984).

“If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant’s customary activity in light of his condition, then such aggravation is not compensable.” Wilson, supra. “ ‘If a claimant, knowing of certain weaknesses, rashly undertakes activities likely to produce harmful results, the chain of causation is broken by claimant’s own negligence. . . .’” Johnnie’s Produce Co. v. Benedict & Jordan, 120 S2d 12, 13-14 (Fla. 1960).

In this case, the uncontradicted evidence shows that Hallisey became disabled after aggravating his receding work-related back injury by choosing to play some 23 holes of golf, even though he was still recovering from the injury and his back pain became steadily worse as the game progressed. As a matter of law, such negligence broke the chain of causation between Hallisey’s initial injury and his resulting disability. Therefore, the court below erred in affirming the award of benefits to him.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A0152.
    In the Interest of D. T., a child.
    (471 SE2d 281)
   McMurray, Presiding Judge.

After a hearing, the Gwinnett County Juvenile Court terminated the parental rights of appellant, the natural mother, in the minor child, D. T. The child was born on February 18, 1990. Pursuant to a consent order entered on June 11, 1991, D. T. has been in the temporary custody of the Gwinnett County Department of Family & Children Services (“DFACS”), and in foster care with the same family since June 6, 1991. Appellant has a long history of drug addiction. She has been incarcerated for her repeated possession of marijuana and cocaine, and “was unable to participate in [reunification] planning due to [that] incarceration.” Upon her release, “she was to begin drug treatment.” Appellant was also to “remain drug free and [to] . . . maintain contact. . .” with the child. Appellant was released in “December of 1993.” In January 1994, she consented to an extension of custody with the Gwinnett County DFACS, because “she did not have stable housing or employment and . . . she agreed that she could not care for the child at that time.” Appellant found employment and her own apartment “and seemed to be following all of the goals . . .” of the latest reunification plan. She petitioned for a modification of physical custody so she could have unsupervised visitation with D. T. But in July 1994, appellant “relapsed and used drugs again . . . [because] the pressure was too much[;] that she had been asked to do [too] much [too] fast.” Appellant “immediately checked herself into a drug treatment center.” Although that clinic recommended inpatient treatment, appellant elected “to do out-patient treatment so she could keep her job[.]” Out-patient treatment was, however, unsuccessful. Appellant told Kim Crawford, of the Gwinnett County DFACS that, “when she left the Fulton County Drug Rehab Center that she used drugs the day that she left that center.” Appellant again agreed to a temporary extension of custody with the Gwinnett County DFACS, because she “was unable to remain drug free and . . . [because] she could not offer the child a stable living environment.” In August 1994, the Gwinnett County DFACS “added a goal for our agency ... to pursue termination of parental rights.” Since D. T. had, by then, been in foster care for almost three years, Kim Crawford was convinced that “foster drift” was “[v]ery much . . .” an issue in this case. Appellant entered another rehabilitation program. However, “she had not completed the program but chose to leave the program in December [1994].” For this, “she was incarcerated . . .for violation of parole.” At this time, appellant was already “three months behind in her child support,” of $50 per month.

Other evidence showed that, when D. T. “first came into care, he was real clingy and real withdrawn [whereas] at this time [after three years of foster care], he is very outgoing. He’s very bright[.]” D. T. is “very bonded to [his foster mother]. He looks to her to meet his needs[, . . . and] calls her mom.” D. T. “loves to visit with [appellant, . . . but he] easily separates from her[,]” without sadness or crying. Kim Crawford affirmed that she had “considered a relative placement,” with appellant’s aunt. In 1991, appellant informed Kim Crawford that “her aunt’s number was unlisted and that she would have her aunt contact us. Two months later, we still had not heard from her aunt. . . . [W]e finally got her aunt’s number [from the foster mother]. . . . We contacted [the aunt], she said that she was a single parent and that she worked out of the home and that she was not, at that time, able to care for [D. T] and that she felt it was better for him to stay where he was.” In August 1994, Kim Crawford “asked [the aunt] if she wanted to be considered for placement of [D. T.] and she stated that she felt that he needed to be where he was. ...” A psychological evaluation of D. T. indicated that “it would be extremely detrimental to move [D. T] from the placement he was in[, even to the aunt’s]. He’s extremely bonded to his foster parent and [he had] been in her home for almost four years at [that] point.”

The juvenile court determined that D. T. was deprived owing to a lack of proper parental care and control, as well as due to parental misconduct; that such deprivation was likely to continue; that termination of appellant’s parental rights was “in the best interests of this child”; and that family placement with appellant’s aunt was not in the best interests of the child. This direct appeal followed. Held:

1. Appellant first contends the juvenile court erred in terminating her parental rights, arguing there was insufficient clear and convincing evidence that the deprivation caused by appellant was “likely to continue or will not likely be remedied; and that the continued deprivation ... is likely to cause serious physical, mental or emotional harm to the child,” as required by OCGA § 15-11-81 (b) (4).

The same factors which show the existence of parental misconduct or inability, such as appellant’s repeated inability in the case sub judice to overcome her drug addiction, with its consequent incarceration and loss of employment, can also support a finding that the termination of parental rights is in the best interests of the child. In the Interest of S. L. B., 214 Ga. App. 802, 805 (449 SE2d 334). “The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the judgment of the juvenile court, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. The factfinding and weighing of evidence is to be done in the juvenile court under the clear and convincing evidence test. The reviewing court is to defer to the juvenile court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met. When we apply that test here we note the conflicting evidence presented to the juvenile court and conclude that a rational factfinder could have found by clear and convincing evidence present parental inability which is likely to go unremedied, as is required by OCGA § 15-11-81 (b). The general grounds are without merit.” (Citations and punctuation omitted.) In the Interest of G. T. S., 207 Ga. App. 187 (1) (427 SE2d 572).

Decided May 8, 1996.

Julie A. B. Prokopovich, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Kathryn C. Reeder, Edgar J. Perkerson III, Karen S. Davenport, for appellee.

2. Appellant next contends the juvenile court erred in its placement of the child, arguing that the “statutorily required exhaustive and thorough search was not made and that there was a family member of the child who was ready, willing and able to take the child[,]” namely, appellant’s aunt.

“If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage. An exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement.” OCGA § 15-11-90 (a) (1). “If no placement of the child is effected under paragraph (1) of this subsection, the court may make any of the [legislatively authorized] dispositions^ including commitment of] the child to the custody of the Department of Human Resources. . . .” OCGA § 15-11-90 (a) (2).

Appellant does not contend that the Gwinnett County DFACS overlooked any possible family candidate except her aunt. But both times when this aunt was interviewed, she told Kim Crawford that the child was better off in foster care or otherwise in the custody of the agency. Since the aunt declined to accept the responsibility for custody of D. T, we cannot say the juvenile court abused its broad discretion in placing permanent custody of D. T. with the Georgia Department of Human Resources, through the Gwinnett County DFACS. This enumeration is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A96A0290.
    THE STATE v. HENDRIX.
    (471 SE2d 277)
   McMURRAY, Presiding Judge.

Defendant was charged in an accusation with two counts of violating the Georgia Controlled Substances Act, and also with recidivism under OCGA § 17-10-7. He filed a motion in limine and motion to suppress “certain statements [he made] and . . . evidence [he provided] as a result of. . . interrogation . . . [conducted, although the] police did not obtain a qualified interpreter of the deaf as required by [OCGA §] 24-9-103.” At the hearing on this motion, Sergeant Stanley Sutton of the Rome/Floyd Metro Task Force Drug Unit testified that he went to defendant’s place of employment to interview defendant about some marijuana defendant’s son had at school and which the son allegedly told school officials “came from his father and his father’s home.” Sergeant Sutton explained to defendant’s supervisor that he “needed to talk to [defendant] concerning about marijuana that was in his home and that we wanted to retrieve that marijuana.” “[T]hey informed [Sergeant Sutton] that [defendant’s] hearing was impaired, meaning that he was deaf.” Sergeant Sutton had taken “three months of the sign language at Floyd College many years ago and . . . can do a little bit of signing, but. . . not as sharp or [expert] as [defendant] or other people that have a hearing . . . (impairment).” Sergeant Sutton signed to defendant “that [he] was a policeman.” Sergeant Sutton further signed to defendant: “That his b-o-y (Sergeant Sutton indicate[d] with hands) boy was arrested in school for pot (Sergeant Sutton indicate[d] with his hands). And the b-o-y, boy, said pot was daddy’s — his (Sergeant Sutton indicate[d] with his hands).” When defendant indicated to Sergeant Sutton that “he wanted to see the pot, ... I asked him to come down to the police station — ... s-t-a-t-i-o-n — station to see pot that — you know, dad or him — not arrest. He understood.”

“Once at the police station, [they] signed notes. . . . [Defendant] would write down notes on a piece of paper.” At the task force office, defendant “[c]ame in and he looked at the pot and he just made that sound, yeah, my pot — my pot. But he talked about a container that the pot was in; that that was not his container; that the pot was his.” Sergeant Sutton “got a consent form, basically talked to him — to read his consent form, if he would give us permission to go to his home to get the pot.” Defendant signed this form after Sergeant Sutton explained “if he didn’t give us permission or if he didn’t sign this that we would have to talk to a judge and try to obtain a search warrant; there were two ways that we could go about, you know —.” Thereafter, Sergeant Sutton, “along with [defendant] and Investigator Barry McElroy rode down to [defendant’s] residence in Cave Spring.” Although defendant was not under formal arrest at that time, Sergeant Sutton “explained to him why [sic] we were en route there in leaving the office that if — talking about the police officer got the pot that he would be under arrest,” that is, contingent upon finding marijuana in defendant’s home. Defendant “showed [Sergeant Sutton] the pot on the dresser in the master bedroom.” The police also “got others that were growing in the bathroom in little trays. . . .” Sergeant Sutton took defendant out of the home and “back to the [unmarked police] car because [defendant’s] wife was really upset and so once [Sergeant Sutton] got to the car, [he] told [defendant] he was under arrest for the pot and he understood.”

Sergeant Sutton affirmed that he is “not certified as a sign language interpreter[; . . . that he has not] kept up with the development of sign language and the changes in signs . . .[; and that he has not] had any other courses in it [since 1972 or 1973].” Sergeant Sutton also confirmed that he made no attempt to call or locate a certified interpreter for the deaf at any time.

The trial court denied defendant’s motion to suppress in part but concluded that, once defendant made an incriminating statement at the police station, admitting to the possession of less than one ounce of marijuana, “he was in custody . . . and Defendant could not have believed he was free to leave. . . . Custody having been established, Defendant, a hearing impaired person as contemplated and defined by [OCGA §] 24-9-101 (2), [should have been] afforded the procedural protections of [OCGA §] 24-9-103.” Since the “arresting law enforcement agency did not immediately request a qualified interpreter for the hearing impaired . . . before undertaking . . .” its investigation, the trial court suppressed any evidence obtained after defendant’s initial incriminating statement. The State brings this direct appeal from that order, pursuant to OCGA § 5-7-1 (a) (4). Held:

1. The State first contends the trial court erred in its construction of the statutory language “taken into custody,” as employed at OCGA § 24-9-103 (a), for purposes of determining when the arresting law enforcement agency must provide a qualified interpreter for a deaf suspect. The State argues that the trial court failed to follow applicable case law. Specifically, the State objects to a purported conclusion that, as a matter of law, Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) “and its progeny are not relevant to the facts before [the trial court] in the interpretation and application of O.C.G.A. § 24-9-103[.]” The record does not support this contention.

OCGA § 24-9-103 (a) provides: “The arresting law enforcement agency shall provide a qualified interpreter to any hearing impaired person whenever the hearing impaired person is taken into custody for allegedly violating any criminal law. . . .” That Code section further directs that the law enforcement agency shall immediately request a qualified interpreter and provides: “No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no answer, statement, admission, or other evidence acquired from the hearing impaired person shall be admissible . . . unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter.” OCGA § 24-9-103 (b) (1).

“Under Miranda v. Arizona, 384 U. S. 436[, supra], persons must be advised of their rights with respect to interrogation after being taken into custody or otherwise deprived of their freedom of action in any significant way. [Cit.]” Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333). A reasonable test of whether a person has been “taken into custody” for purposes of invoking the privilege against self-incrimination under the Fifth Amendment and Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution “recognizes the possibility of a more limited type of detention in which the defendant is not Tree to go’ but [where] the Miranda warnings are not required at the initial contact.” (Emphasis supplied.) Shy v. State, 234 Ga. 816, 818 (I), 819 (218 SE2d 599). “In making the distinction between custodial and noncustodial interrogation^ Georgia law] has outlined several criteria: These include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.’ [Cit.] These all point to attempts by the police to gather incriminating information. [Cit.] All of these factors are significant elements to be weighed in determining the ‘custody’ issue. Of course, the police may not delay the [formal] arrest of a suspect or use a Terry rationale [Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)] as a subterfuge to coerce the suspect into incriminating himself without the benefit of Miranda warnings. [Cit.]” Shy v. State, 234 Ga. 816, 818 (I), 821, supra. This distinction between custodial and noncustodial interrogation has been recognized in the application of OCGA § 24-9-103. See Allen v. State, 218 Ga. App. 844 (463 SE2d 522); State v. Woody, 215 Ga. App. 448 (449 SE2d 615); State v. Webb, 212 Ga. App. 872 (443 SE2d 630).

At the conclusion of the suppression hearing, the trial court made the following observation before orally announcing its decision to grant defendant’s motion in part: “I believe [once defendant reasonably felt he was not free to leave] that triggers the applicability of [OCGA §] 24-9-103. [OCGA §] 24-9-103 is not analogous to Miranda. Miranda goes to the pressure of someone being interviewed by the police while in custody. It is judicially made law. It is not the product of the statutes of the State of Georgia, and I am not free to give the same interpretation of the statute as the Court is to flesh out the requirements of Miranda on a case-by-case basis.” In our view, this observation correctly characterizes OCGA § 24-9-103 (b) (1) as a statutory exclusionary rule rather than a judicial exclusionary rule. Moreover, the trial court’s order recognizes that if the circumstances require Miranda warnings to a non-hearing impaired suspect, then OCGA § 24-9-103 (a) requires the immediate request for a qualified interpreter in the case of a hearing impaired suspect. Otherwise, “no answer, statement, admission, or other evidence acquired from the hearing impaired person shall be admissible in any criminal or quasi-criminal proceeding. . . .” OCGA § 24-9-103 (b) (1). The trial court’s order in the case sub judice shows that the trial court correctly looked at the totality of the circumstances, including the four factors itemized in Shy v. State, 234 Ga. 816, 818 (I), 819, supra, to determine whether defendant was in custody at the police station after he admitted to possessing marijuana, despite the fact that he was not formally arrested until much later, i.e., after he took the police to his home and showed them marijuana in his bedroom. Since the trial court’s interpretation of the statutory language “taken into custody” is entirely consistent with the constitutional distinction between custodial and noncustodial interrogation, we find this enumeration to be without merit.

2. Next, the State contends the trial court erred in “ruling that as a matter of law, a person is in custody once he makes an admission which incriminates him. . . .” This contention is without merit.

In the case sub judice, the trial court was authorized to conclude that, notwithstanding Sergeant Sutton’s subjective intent, defendant was the focus of the investigation due to the report that his son implicated him as the source of marijuana. The veracity and basis of knowledge of the son’s report are a substantial basis for probable cause to believe that defendant still had marijuana in his home. See, e.g., Futch v. State, 178 Ga. App. 115, 116 (1) (342 SE2d 493). In the case sub judice, the trial court made an express finding that a reasonable person in defendant’s situation would reasonably conclude that he was not free to leave. This is the proper inquiry under the constitutional test to determine whether routine questioning has evolved into a custodial detention and interrogation for the purpose of gathering incriminating evidence, where there has been no formal arrest. Shy v. State, 234 Ga. 816, 818 (I), 819, supra. “Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629). See also Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474).

3. The State’s third enumeration, that the trial court erred by “failing to recognize . . . [an] implicitly established . . . custodial requirement for O.C.G.A. § 24-9-103,” has been considered and found to be without merit for the reasons discussed in Divisions 1 and 2. Since it is undisputed that Sergeant Sutton never sought the assistance of a qualified interpreter for this hearing impaired defendant, “no answer, statement, admission, or other evidence acquired from the hearing impaired person shall be admissible in any criminal or quasi-criminal proceeding. . . .” OCGA § 24-9-103 (b) (1). See Allen v. State, 218 Ga. App. 844, 846 (1), 847, supra; State v. Woody, 215 Ga. App. 448, 450, supra.

Decided May 8, 1996.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellant.

Lloyd C. Burton, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0554.
    HIGGINS v. THE STATE.
    (471 SE2d 275)
   Birdsong, Presiding Judge.

Almond Higgins was convicted of one count of burglary in violation of OCGA § 16-7-1. He enumerates two errors, arguing that the trial court erred in allowing the introduction of (1) an incriminating statement he made after invoking his right to counsel and (2) testimony by the victim placing his character into evidence.

The State’s evidence revealed that this case arose just after the victim broke up with Higgins and demanded that he move out of her home and return her key. Upon receiving her key from Higgins, the victim left for Florida. She returned a few days later to find her kitchen window broken, the back door open, and tools which were subsequently valued at $10,000 missing from her attic. She contacted the police. The victim testified that Higgins telephoned her the next day and admitted he had broken into her house and taken some tools. The victim also testified that Higgins apologized and stated he was on drugs. During a subsequent telephone call, Higgins purportedly asked the victim whether she would consider getting back together with him, if he could retrieve the tools. After this, the victim swore out a warrant on Higgins and began contacting the police detective investigating her case each time Higgins called her.

Higgins turned himself in to authorities and was arrested and incarcerated. Higgins testified that after his arrest, an officer demanded that he sign a waiver of rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). Although Higgins signed the waiver, he refused to make a statement outside his attorney’s presence.

Subsequently, the victim informed the detective that Higgins desired to talk with him. The detective then retrieved Higgins from his cell, had Higgins sign a second waiver of his Miranda rights, and asked Higgins whether he wished to talk. The detective testified that Higgins answered in the affirmative but refused to reveal the location of the tools.

Prior to trial, the trial court held a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) to determine the admissibility of Higgins’ refusal to reveal the tools’ location to the detective. The court decided that Higgins’ statement was admissible. Higgins also moved in limine to exclude the victim’s testimony that he had admitted to a drug problem. The court denied the motion, reasoning that the testimony revealed the motive for the burglary. Held:

1. The trial court did not err in allowing the admission of the detective’s testimony that Higgins refused to tell him the tools’ location. “[0]nce a suspect invokes his fifth amendment right to counsel, not only must the interrogation cease, but the police cannot reinterrogate or otherwise initiate contact designed to produce incriminating statements.” Wilson v. State, 264 Ga. 287, 289 (2) (444 SE2d 306). This rule remains in force until counsel is made available “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S. 477, 485 (101 SC 1880, 68 LE2d 378). “If police initiate questioning after the invocation of the right to counsel, any uncounseled waiver of that right is invalid.” Roper v. State, 258 Ga. 847, 849 (1) (375 SE2d 600).

After hearing evidence and argument, the trial court determined that Higgins himself initiated contact with the police through the victim. Although Higgins denies that he told the victim he wished to talk to authorities, the trial court’s factual finding on this issue is not clearly erroneous. Pierce v. State, 209 Ga. App. 366 (1) (433 SE2d 641). Accordingly, we affirm the decision to admit the statement.

2. The trial court did not err in admitting the victim’s testimony that, in the course of the phone conversation during which he admitted breaking into her home and taking some of her tools, Higgins told her he was on drugs. Evidence which incidentally places the accused’s character in issue is admissible where its relevance to show such matters as motive or bent of mind outweighs its prejudicial impact. Barnes v. State, 196 Ga. App. 797 (397 SE2d 70). “[S]uch evidence is not admissible if its only effect is to place the defendant’s bad character before the jury.” Brown v. State, 197 Ga. App. 155 (398 SE2d 34). Because the evidence at issue was relevant to Higgins’ bent of mind and motive in taking the expensive tools, its admission was not improper. Moreover, “it is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.” (Citations and punctuation omitted.) Frazier v. State, 257 Ga. 690, 696-697 (14) (362 SE2d 351).

Decided May 8, 1996.

Devon A. Orland, for appellant.

J. Tom Morgan, District Attorney, Richard S. Moultrie, Jr., Desiree S. Peagler, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


author: Smith, Judge.

text:
    A96A0650.
    HAMELBERG v. NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
    (471 SE2d 283)
   Smith, Judge.

Linda Hamelberg appeals the denial of her motion for default judgment against the National Association of Government Employees (NAGE).

Hamelberg initially filed a complaint against Jonathen Oden and the International Brotherhood of Police Officers (IBPO) alleging that she was sexually exploited by Oden and that Oden was employed by IBPO. After both Oden and IBPO answered and denied that Oden was employed by IBPO, Hamelberg filed a motion to add NAGE, Oden’s employer, as a defendant. Without ordering that NAGE answer the complaint, the trial court granted Hamelberg’s motion. An amended complaint naming NAGE as a defendant was filed and served on NAGE on November 15, 1994. Second and third amended complaints were also filed. Hamelberg filed the third amended complaint on February 13, 1995 and a motion for default judgment on March 15, alleging that no defensive pleadings had been filed by NAGE. The trial court denied the motion for entry of default judgment; it concluded, among other things, that a motion to dismiss filed by NAGE was an adequate responsive pleading precluding default.

We do not reach the issue of whether the motion to dismiss constituted an appropriate responsive pleading, nor do we reach any of the other conclusions of the trial court, because no answer was necessary. The order allowing Hamelberg to add NAGE as a party defendant did not require an answer, and OCGA § 9-11-7 (a) does not require an answer to an amended complaint; answers need be filed only to complaints or third-party complaints. Consequently, NAGE was never in default, and it was not error for the trial court to deny Hamelberg’s motion for entry of default judgment. Gordy v. Sumner, 151 Ga. App. 430 (260 SE2d 384) (1979). See also Chan v. W-East Trading Corp., 199 Ga. App. 76, 77-78 (4) (403 SE2d 840) (1991); Diaz v. First Nat. Bank &c., 144 Ga. App. 582, 583 (2) (241 SE2d 467) (1978).

Decided May 8, 1996.

David L. Whitman, for appellant.

James C. Brown, for appellee.

Judgment affirmed.

Pope, P. J., and Andrews, J, concur.

       NAGE filed a response to the motion as well as an answer on April 21, 1995. The response simply recited that an answer to the third amended complaint was being filed subsequently therewith.


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0653.
    WILLIAMS v. STEPLER et al.
    (471 SE2d 284)
   Birdsong, Presiding Judge.

Appellee Sharon Stepler filed a petition under the Family Violence Act (OCGA § 19-13-1 et seq.) against Williams, contending he committed an act of “family violence” against the parties’ child, age 11 years. At the hearing on the petition, defendant Williams expressly asked that any interview of the child in chambers be recorded, under Uniform Superior Court Rule 24.5 (B). The trial court interviewed the child in chambers, but those proceedings were not recorded. The trial court issued an order granting temporary protective custody to Stepler. We granted this discretionary appeal. Held:

1. Although the trial court’s temporary protective custody order entered on September 25, 1995, may be moot in terms of the time of effectiveness of the direction stated in the order, we retain jurisdiction of the case under Court of Appeals Rule 40 (b) for purposes of the ruling made in Division 3 of this opinion, so that other issues which may arise from the trial court’s order will not be deemed adjudicatory.

2. We deny appellee’s motion to dismiss this discretionary appeal on grounds that the custody order was “temporary” and therefore subject to appeal only by interlocutory application. The fact that the duration of the effectiveness of the order was “temporary” does not make it a non-final order; this is the court’s final order on this action for protective temporary custody, and nothing remains pending below in this action. Accordingly, the order was subject to appeal by discretionary application under OCGA § 5-6-35. See, e.g., R. J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292, 293 (427 SE2d 810).

3. The trial court erred in refusing to allow its in-chambers consultation with the child to be recorded. USCR 24.5 (B) specifically provides that when child custody is in dispute in domestic relations actions, at any consultation between the court and the child, both the attorneys may be present and “[u]pon request, the proceedings in chambers shall be recorded.” Appellant specifically requested that the in-chambers consultation with the child be recorded, but Stepler, acting pro se, objected, saying she was concerned the child would not talk to the judge; that if he did talk to the judge, it would be necessary to ask him leading questions; that it would be less threatening if the “parties” were absent, and “as far as the court reporter being present, I don’t see what purpose that would serve. As I understand it, this is more of an informal interview; it’s not the presentation of evidence. He’s not going to be either directly examined or crossexamin[ed] by either party. And I’m not sure in those circumstances that having the court reporter present is appropriate. And . . . I’m afraid that would add to the intimidation factor.” The judge agreed he would not interview the child with the court reporter present. Appellant’s counsel duly objected to this procedure.

The trial court erred in following Sharon Stepler’s legal advice and reasoning. USCR 24.5 (B) plainly requires that where custody of a child is involved and recordation is requested, “the proceedings in chambers shall be recorded.” (Emphasis supplied.) Stepler’s assertion that recordation was unnecessary because the child would not be questioned by the parties was illogical: the point of recordation is not merely to preserve the parties’ questioning of the child but to preserve the court’s interview with the child and the child’s statements to the court. Notwithstanding the mother’s and the court’s fears about intimidating the child, the defendant father had a right to have those proceedings recorded, especially in a case such as this where criminal allegations may be made upon the private confiding of a child to a judicial factfinder.

We find unpersuasive appellee’s argument that a “family violence action” is not a “domestic relations action” within the meaning of USCR 24. USCR 24.1 merely lists those actions which the term domestic relations actions “shall include” (Emphasis supplied.) The rule does not provide that domestic relations actions shall include only those named; it does not attempt to name all conceivable forms of domestic relations actions; and it does not exclude an action under the Family Violence Act.

Moreover, “child custody” is one of the actions named, and that is what this petition for temporary protective custody was, regardless of the law under which it was authorized to be drawn.

Decided May 8, 1996.

John T. Williams, Sr., pro se.

Sharon J. S. Stepler, pro se.

The trial court erred in issuing an order containing findings based in part on an interview with a child which was not recorded, despite request pursuant to USCR 24.5. The proceedings were fatally flawed, and the order of the court, even though it may now be moot in terms of time, is vacated as being without any legal force whatever.

4. As the trial court’s order of temporary protective custody is vacated, we find it unnecessary to consider appellant’s second enumeration, and we find that issue to be moot.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

1. The opponent parents are both members of the State Bar of Georgia, and each is pro se on appeal. Neither of them nor the father’s attorney was present for the court’s consultation with their son, although Uniform Superior Court Rule 24.5 (B) states: “At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court.” The refusal of the court to record what the court characterized as a “private conversation” with the child left the father with no means of knowing the basis for any findings the court might make. Yet the court found as fact and concluded as the law of the case, reciting both in its order, that the father committed an act of simple battery as defined in the criminal code, OCGA § 16-5-23 (a) (1). Not only was the rule violated which requires that the proceedings in chambers be recorded upon request, so was due process.

2. Because the “Scope of Domestic Relations Actions” as described in USCR 24.1 does not expressly include actions under the Family Violence Act, the Council of Superior Court Judges should consider recommending to the Supreme Court the addition of this category so it is readily apparent. Ga. Const. 1983, Art. VI, Sec. IX, Par. I.