author: Blackburn, Judge.

text:
    A94A0076.
    CURTIS v. THE STATE.
    (441 SE2d 776)
   Blackburn, Judge.

Appellant John Alexander Curtis a/k/a Alex Curtis was convicted by a jury of one count of child molestation. On appeal, Curtis asserts several enumerations of error.

1. In his first enumeration of error, Curtis argues that the trial court’s allowance of out-of-court statements made by children pursuant to OCGA § 24-3-16 violates his right to confront and cross-examine the witnesses against him as protected by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. I, Par. XIV of the Constitution of the State of Georgia, and to due process of law also guaranteed by the United States and Georgia Constitutions. We decided this issue adversely to Curtis in Fuller v. State, 211 Ga. App. 104 (438 SE2d 183) (1993). Curtis’ additional arguments under his first enumeration of error are improper attempts to enlarge the scope of his enumeration and are raised for the first time on appeal and, therefore, will not be addressed. See Watkins v. State, 206 Ga. App. 701 (3) (426 SE2d 238) (1992) and Dukes v. State, 205 Ga. App. 678 (1) (423 SE2d 295) (1992). Curtis’ first enumeration is without merit.

2. Curtis asserts that the trial court erred in overruling his motion for continuance based upon communications directed at potential jurors by State’s witnesses immediately prior to the trial. Curtis complains that an article published on November 1, 1992, in the Athens Daily News, regarding child molestation and containing anonymous interviews with the parents of the victims in the present case, was an impermissible communication with potential jurors. Curtis asserts the same argument against an unsigned letter to the editor written by the mother of one of the children testifying in this case which was published on December 3, 1992, in the Oconee Enterprise and the Athens Observer. However, Curtis’ allegations of intentionally timed attempts to present the State’s case to potential jurors and to “exhort the jurors to convict him” are wholly without supporting evidence. Furthermore, the prohibition is communication with jurors, not potential jurors. While Curtis’ argument is unique, it is also without merit.

The article on child molestation was written by Betsy Shearron, lifestyle editor for the Athens Daily News. In the article, the names of those interviewed were not revealed, nor was the name of the alleged perpetrator divulged. Furthermore, the article did not reveal specific facts about the cases described, but focused on the parents’ reaction to the realization that their child had been molested. The letter to the editor also was void of factual allegations or specifics regarding the present case; nor did it reveal the name of its author, the victim, or the alleged perpetrator. Furthermore, the jury in the present case was selected on December 14, 1992, approximately six weeks after the article was published and almost two weeks after the letter to the editor was published.

“The grant of a continuance or motion for change of venue based upon alleged pre-trial publicity rests within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse. [Cits.]” Stephens v. State, 196 Ga. App. 29 (1) (395 SE2d 353) (1990). The trial court reserved ruling on Curtis’ motion until after the voir dire of the venire panel. Our review of the voir dire indicates that the impaneled jurors were not affected by the publicity and were able to render Curtis a fair trial. Lemley v. State, 258 Ga. 554, 556 (372 SE2d 421) (1988). The trial court did not abuse its discretion in denying Curtis’ motion for a continuance.

3. In a related enumeration, Curtis next asserts that the trial court erred in refusing to excuse four specific jurors for cause after they were exposed to the publicity discussed above. However, the State determined that none of the jurors had formed an opinion regarding Curtis’ innocence or guilt and that they could be fair and impartial in evaluating the evidence presented. See Lemley, supra. This enumeration is equally without merit.

4. In Curtis’ fourth enumeration of error, he contends that the trial court erred in allowing the State to introduce evidence of similar transactions prior to introducing evidence directly relating to the allegations of the indictment. The record indicates that the first evidence of a similar transaction was introduced by the State without objection. The State’s first witness was an investigator with the Oconee County Sheriff’s Department. The investigator described his investigation, including allegations made by a child, other than the alleged victim in the present case. Curtis made no objection to the sequence of this testimony. The State’s second witness was an investigator with the Georgia Bureau of Investigation. He also described his investigation including evidence of a similar transaction. Furthermore, the GBI investigator presented evidence of his investigation of the allegations of the victim. Curtis made no objection to the sequence of this witness. Thereafter, as the State called its third witness, Curtis’ counsel objected to the sequence of witnesses, arguing that Gilstrap v. State, 261 Ga. 798 (2) (410 SE2d 423) (1991), required the introduction of evidence concerning the charges contained in the indictment prior to evidence of similar transactions.

In Gilstrap, the Supreme Court expressed concern that “the trial court’s decision to allow the State to introduce evidence of nine similar transactions from witnesses other than the victim before introducing any evidence concerning the crimes charged raised a substantial possibility that the jury could have settled upon the defendant’s guilt based solely on the similar transaction evidence.” Bailey v. State, 209 Ga. App. 390, 393-394 (433 SE2d 610) (1993). However, “the order of proof is [still] within the discretion of the trial court and will not be disturbed absent abuse.” (Citations and punctuation omitted.) Id. at 394. Furthermore, the Supreme Court expressly declined to determine the outer limits of the trial court’s discretion as to the order of the admission of evidence. See Gilstrap, supra at 799.

In the present case, the State presented evidence of one similar transaction and evidence of the crime charged in the indictment prior to any objection being raised by Curtis. Thereafter, the trial court allowed evidence of a second similar transaction and additional evidence of the first similar transaction prior to the introduction of further evidence on the crime charged in the indictment. However, as the GBI investigator had already presented evidence of the allegations which led to the charges contained in the indictment, Curtis’ Gilstrap objection was without merit with respect to the similar transaction evidence presented after the GBI investigator’s testimony.

Curtis failed to object to the State’s first witness who testified regarding the first similar transaction and “it is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. [Cits.] In this state, it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised. [Cits.]” (Punctuation omitted.) Glisson v. State, 165 Ga. App. 342, 343 (301 SE2d 62) (1983). Even if Curtis had not waived his objection to the introduction of the first similar transaction evidence, in Charo v. State, 206 Ga. App. 297, 298 (424 SE2d 900) (1992), we specifically held that the trial court did not abuse its discretion in allowing the State to present evidence of one similar transaction prior to introducing evidence of the offense charged.

Decided February 15, 1994

Reconsideration denied March 1, 1994

Hudson & Montgomery, David R. Montgomery, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

5. Curtis contends that the trial court erred in allowing the prosecutor to argue matters outside the evidence of this case. Specifically, Curtis argues that the prosecutor’s reference to a recent high-profile child molestation case in his closing argument was error. The State argues that its reference to another case, as an illustration that well-respected individuals have been convicted of child molestation, was proper pursuant to Cooper v. State, 260 Ga. 549, 550 (397 SE2d 705) (1990). In Cooper, the Georgia Supreme Court determined that the State’s reference to two unrelated cases involving other defendants who, like Cooper, were in their early teenage years, was within the very wide bounds permitted, id., and we are constrained to follow same. Furthermore, Curtis failed to request a mistrial at the time of the prosecutor’s remarks. See Johnson v. State, 197 Ga. App. 384 (2) (398 SE2d 432) (1990).

6. In Curtis’ last enumeration of error, he merely reasserts his previous enumerations and raises nothing new to review. Therefore, it is without merit.

Judgment affirmed.

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

       While we agree with the Gilstrap concern for prejudicing a jury with excessive similar transaction evidence, the harm results from the excess, not the sequence of such evidence. The jury may legally consider the case only upon the completion of the presentation of all the evidence, arguments of counsel, and the charge of the court. It makes little difference in the result, whether the toxin is poured into the cup before or after the coffee because, as a matter of law, the jury cannot “drink” until the pouring is complete. The excess similar transaction problem is addressed by the application of the balancing test provided in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The sole purpose of the balancing test is to protect the defendant from the use of unnecessary or excessive similar transaction evidence and that is why its application in similar transaction situations is mandatory on the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    A94A0103.
    DONALDSON et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (441 SE2d 473)
   Blackburn, Judge.

On February 22, 1987, the appellant, Billy Donaldson, Jr., was injured in a motor vehicle collision at an intersection maintained by the Department of Transportation (DOT). The trial court originally dismissed this personal injury action filed against the DOT and a DOT employee, on the grounds that under the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution, sovereign immunity had not been waived despite the DOT’s purchase of liability insurance. On appeal, the Supreme Court reversed, holding that the 1991 amendment was inapplicable to causes of action that accrued prior to the effective date of that amendment. Donaldson v. Dept. of Transp., 262 Ga. 49 (3) (414 SE2d 638) (1992).

The matter proceeded to trial and resulted in a jury verdict against the DOT only, in the amount of $230,000 (which was subsequently reduced by $80,000 due to a settlement between the plaintiffs and the drivers of the vehicles involved in the collision). However, the trial court set aside the verdict and entered judgment in favor of the DOT, on the grounds that the DOT’s sovereign immunity remained intact. This appeal followed.

Prior to the 1991 constitutional amendment, sovereign immunity was waived to the extent a state department or agency provided liability insurance. Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). In the instant case, the DOT maintained a liability insurance policy covering the acts of its employees.

In Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993), the Supreme Court reviewed insurance coverage identical, in pertinent part, to that provided by the DOT, and concluded that “the. insurance policy covers the individuals who comprise the department, and the department, not itself an ‘insured,’ is provided coverage to the extent it is vicariously liable for the actions of its personnel . . . Inasmuch as the department is insured only for its vicarious liability for the negligence of its personnel, that coverage cannot be invoked without a determination that department personnel were liable.” (Emphasis supplied.) Id. at 348-349.

In this case, it is apparent that the jury found the DOT at fault in maintaining the intersection where the collision occurred, else it would not have rendered its verdict against the department. However, notwithstanding that finding of fault, under Poss and the authorities cited .therein, the DOT could be held liable in tort only if the co-defendant DOT employee was determined to be liable. We are constrained to follow Poss, and find that the jury’s verdict not holding the employee liable was fatal to any vicarious claim against the DOT. Accordingly, the trial court properly entered judgment for the DOT on that basis.

The plaintiffs contend that the insurance policy in question could reasonably be read to include the DOT as a named insured, relying upon a policy provision that defines an insured as “[a]ny participating entity as authorized by OCGA § 45-9-1 now enacted or hereafter enacted.” However, this court has already decided that issue adversely to the plaintiffs, in holding that OCGA § 45-9-1 only authorizes the purchase of liability insurance covering agency officers, officials, and employees, and not for the agency itself. Davis v. State of Ga., 211 Ga. App. 285, 287 (439 SE2d 40) (1993).

Decided February 15, 1994

Reconsideration denied March 1, 1994

Rand & Ezor, Samuel S. Olens, Richard Kopelman, J. William Trunnell, Jr., for appellants.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Eric A. Brewton, Susan J. Levy, Assistant Attorneys General, for appellees.

The plaintiffs also suggest that the jury’s verdict against the DOT could be sustained under a theory of direct liability sounding in nuisance. However, actions for personal injury may not be maintained against governmental entities under such an eminent domain theory. Wilmoth v. Henry County, 251 Ga. 643 (309 SE2d 126) (1983).

Judgment affirmed.

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


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A1899.
    ALBANY OIL MILL, INC. v. SUMTER ELECTRIC MEMBERSHIP CORPORATION.
    (441 SE2d 524)
   Smith, Judge.

Sumter Electric underbilled Albany Oil Mill, Inc., for a ten-month period. The underbilling totaled $18,628.76. This underbilling was due to Sumter Electric’s reliance on incomplete information gathered in the field. Albany Oil Mill refused to pay the underbilled amount, and in turn Sumter brought suit to recover those sums. The trial court granted summary judgment to Sumter Electric with respect to the main claim, and Albany Oil Mill appeals.

1. The trial court observed, in dicta not prompted by either party, that Albany Oil Mill did not present a defense of estoppel as was presented in the factually similar case of City of East Point v. Upchurch Packing Co., 58 Ga. App. 829 (200 SE 210) (1938). “ ‘Estoppel may be used to prevent a party from denying at the time of litigation a representation that was made by that party and accepted and reasonably acted upon by another party with detrimental results to the party that acted thereon. . . .’ [Cit.]” Wilson v. Keheley &c., 177 Ga. App. 769, 770 (2) (341 SE2d 245) (1986).

However, estoppel is an affirmative defense, and must therefore be set forth affirmatively “[i]n pleading to a preceding pleading.” OCGA § 9-11-8 (c). “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver. [Cits.] Moreover, ‘failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed.’ [Cits.]” (Emphasis supplied.) Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 346 (173 SE2d 723) (1970).

In arguing that the elements of an estoppel defense were sufficiently stated even though the word “estoppel” was not used, appellant relies upon assertions not supported by evidence in the record that were made for the first time in its response to Sumter Electric’s motion for summary judgment. Specifically, no suggestion is made except in response to Sumter Electric’s motion for summary judgment that Albany Oil Mill detrimentally relied upon the utility’s underbilling in good faith when setting its own rates for the cold storage services it provides to its customers. No estoppel defense had been made out for Sumter Electric to meet at the time its motion for summary judgment was filed, and appellant does not suggest otherwise. Albany Oil Mill’s brief in response to Sumter Electric’s motion could not in itself serve to render the grant of that motion inappropriate by supplying the missing elements of an otherwise waived estoppel defense. We therefore find no error.

2. Albany Oil Mill argues that material issues of fact remain on the issues of negligence and lack of diligence on the part of Sumter Electric. However, in the absence of an affirmative defense of estoppel suggesting that Albany Oil Mill justifiably relied on the underbilling to its detriment, it is immaterial whether the underbilling is the result of the utility’s inexcusable failure properly to calculate appellant’s electricity usage in the first instance. “A dispute as to an immaterial fact or one which has no legal significance to the outcome of the case does not preclude summary judgment. [Cits.]” Daugherty v. MARTA, 187 Ga. App. 864, 867 (371 SE2d 677) (1988).

3. Albany Oil Mill asserts that the trial court erred in applying OCGA §§ 46-3-11 and 46-3-12 in granting summary judgment to Sumter Electric. Even assuming the trial court’s analysis is flawed in this respect, it was not crucial to the result reached. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. See, e.g., American Honda Motor Co. v. Williams &c., 208 Ga. App. 636, 642 (2) (431 SE2d 437) (1993). It is the grant itself that is to be reviewed for error, and not the analysis employed. See Fudge v. Colonial Baking Co. of Atlanta, 186 Ga. App. 582 (367 SE2d 814) (1988). This enumeration is without merit.

4. Appellant cites City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337 (277 SE2d 266) (1981), for the proposition that, even in cases of underbilling, “customers of a public electric utility who are not in a position to understand the utility’s complex and highly technical rate structure are entitled to assume that the utility is charging them at the most favorable rate available to them. [Cit.]” Id. at 339 (1). That case stands, at most, for the proposition that customers of a public utility have a right to assume that there is no lower rate available to them — in essence, that they are not being over-billed. We agree with the trial court that Duncan & Godfrey, Inc., supra, is therefore inapplicable under the facts presented.

Decided March 1, 1994.

Clayton A. Hall, for appellant.

Ellis & Easterlin, James C. Gatewood, Russ F. Barnes, for appellee.

Judgment affirmed.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

Appellee argues that even if estoppel had been properly pleaded, it is not a defense because OCGA §§ 46-3-11 and 46-3-12 prohibit it as an electric supplier from applying a rate “which unreasonably discriminates against or in favor of” users such as appellant. This, it argues, precludes the defense of estoppel from being asserted by a consumer who was charged the wrong amount and against whom an action is brought to recover the uncollected amount. It relies on such foreign authority as City of Wilson v. Carolina Builders, 94 N.C. App. 117 (379 SE2d 712) (1989); Chesapeake &c. Tel. Co. v. Bles, 218 Va. 1010 (243 SE2d 473) (1978); and Memphis Light, Gas &c. Div. v. Auburndale School System, 705 SW2d 652 (Tenn. 1986).

In City of East Point v. Upchurch Packing Co., 58 Ga. App. 829 (200 SE 210) (1938), a distinction was made between a governmental function, which would not be subject to the defense of estoppel, and a private or proprietary function, with respect to which such a defense was maintainable. The court considered it “well-settled” that the provision of electric service is a non-governmental function. Id. at 830. In the more recent case of City of Warner Robins v. Rushing, 259 Ga. 348 (381 SE2d 38) (1989), the Supreme Court distinguished the case of City of East Point as being one in which the governing entity was estopped by the official’s unauthorized method of exercising power; it would not be estopped if the official had no authority to take the action in the first place. Here, then, estoppel would be available as a legally assertable defense.


author: Smith, Judge.

text:
    A93A2153.
    RUFF v. THE STATE.
    (441 SE2d 534)
   Smith, Judge.

A jury convicted Richard Nelson Ruff of possession of cocaine with intent to distribute. He appeals from the denial of his motion for new trial. Ruff enumerates as error the court’s instruction as to reasonable doubt, asserting that the charge given failed to convey that concept accurately and that it likewise reduced the State’s burden of proof.

. The court charged on reasonable doubt as follows: “Every person is presumed innocent until proved guilty. No person shall be convicted of a crime unless each essential element of that crime is proved by the State beyond a reasonable doubt. The burden of proof never shifts to a defendant to prove his innocence, but the State, however, is not required to prove the guilt of the defendant beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that can be expected in a legal investigation.

“Now reasonable doubt means just what it says. It is the doubt of a fair-minded, impartial juror, honestly seeking the truth. It’s not an arbitrary nor capricious doubt, but it is a doubt arising from a consideration of the evidence, from a conflict in the evidence, or from a lack of the evidence. If after giving consideration to all the facts and circumstances of this case, your minds are wavering, unsettled, and unsatisfied, then that is the doubt of the law, and you should acquit him. If that doubt does not exist in your minds as to the guilt of the defendant, then you would be authorized to convict him.”

1. Ruff argues that the court erred in failing to charge that the State must prove each essential element of the crime not only “beyond a reasonable doubt,” but also to “a moral and reasonable certainty.” He claims that because of this omission, and also because of the later inclusion of the phrase in a “negative” charge describing the limitations of a legal investigation, the charge is actually more potentially misleading'than the charge criticized in Vance v. State, 262 Ga. 236, 237-238, nn. 4-5 (416 SE2d 516) (1992).

We recognize that the Vance charge is facially distinguishable from the charge given in the present case in that the Vance charge used the phrase “moral and reasonable certainty” both to describe the State’s burden as to each element of the crime as well as in describing the expected standard in a legal investigation. We find, however, that this is at most a distinction without a difference. Vance counsels that the inclusion of the phrase “moral and reasonable certainty” is unnecessary and might potentially suggest to a juror “a lesser standard of proof than guilt beyond a reasonable doubt.” (Emphasis in original.) Id. See also Daniels v. State, 207 Ga. App. 689 (428 SE2d 820) (1993). We find no merit in the suggestion that the single use of the term “moral and reasonable certainty” in the present case was actually more egregious than the usage criticized in Vance, supra. The charge as a whole accurately conveyed the concept of reasonable doubt to the jury. We find no reversible error.

Decided March 2, 1994.

Nina M. Svoren, for appellant.

Michael H. Crawford, District Attorney, for appellee.

2. As an apparent alternative to his argument in Division 1, Ruff enumerates as error the court’s charge that “[m]oral and reasonable certainty is all that can be expected in a legal investigation,” contending that it suggests a lesser burden of proof than the legal standard. This question has been addressed previously by this court and found to be without merit. Daniels, supra at 692 (5).

Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990), relied upon by Ruff, addresses a charge that is clearly distinguishable from the charge given to the jury in this case. Nevertheless, employing the standard of review enunciated in Cage, Ruff asserts that a juror could have interpreted the court’s instruction on the State’s burden of proof to allow a finding of guilt based on a degree of proof below that required by the due process clause. The United States Supreme Court, however, has since expressly disapproved the test employed in Cage, holding instead that the correct inquiry is whether there is a “reasonable likelihood” that the jury applied the instruction in a constitutionally impermissible manner. Estelle v. McGuire, 502 U. S. _, n. 4 (112 SC 475, 116 LE2d 385) (1991). See also Sullivan v. Louisiana, 508 U. S. _ (113 SC 2078, 124 LE2d 182) (1993) (question whether a charge “essentially identical” to that given in Cage was reasonably likely to have been unconstitutionally applied not considered since it was not previously argued). Considering the charge as a whole, we find no reasonable likelihood that the jury applied a standard of proof less stringent than that required by the state and federal due process clauses or other applicable law. See OCGA § 16-1-5.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2173.
    THE STATE v. CRANK.
    (441 SE2d 531)
   Smith, Judge.

Steve Crank was charged with possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1). His motion to suppress illegally obtained evidence was granted, and the State appeals. See OCGA § 5-7-1 (4).

On March 11, 1993, Deputy Chris Cannon of the Walton County Sheriff’s Department obtained a “no knock” warrant to search Crank’s person and his home premises and surrounding curtilage, described as “the entire residence, outbuildings, and vehicles located on the Monroe/Jersey Road[,] Walton County, Monroe[,] Georgia.” The purpose of the warrant was to look for marijuana; drug manufacturing paraphernalia, raw materials, or equipment; records of illegal drug transactions; moneys traceable to such transactions or found in close proximity to controlled substances; and “[o]ther property used, or intended for use, to facilitate the unlawful manufacture, distribution, dispensing, or possession of controlled substances.”

Cannon obtained the warrant based on his affidavit stating that within the previous 72 hours a reliable confidential informant told him he saw a quantity of marijuana packaged for individual sale at Crank’s home and observed Crank selling marijuana to individuals there. Cannon and other law enforcement officers also had received numerous anonymous complaints about Crank’s distribution of marijuana from his home. Cannon sought a “no knock” entry. This was based upon his belief and experience that “possession of weapons is often associated with illegal possession and trafficking in narcotics” and his concern “that there could be a number of persons at the residence capable of concealing or destroying contraband.”

At the beginning of the hearing on the motion to suppress, the State conceded — and offered to stipulate — that there was no probable cause to believe contraband would be found on Crank’s person. Later in the hearing, the State further conceded there was no probable cause to believe contraband would be found in Crank’s car. Deputy Travis Brown of the Walton County Sheriff’s Department participated in executing the warrant and was the only witness called at the hearing. He testified that officers from several different jurisdictions were involved in executing the warrant. Brown testified he knew Crank personally, was aware of his reputation as a karate expert, and had received information that Crank was a man with a temper who liked to fight with police officers. Confidential informants informed the officers that Crank was armed at all times and kept numerous firearms, including automatic weapons, shotguns, and handguns “within easy reach” at his home. One weapon was reputedly kept over the doorway and used to greet visitors. This information prompted a concern about safety, and the officers concluded it would be best if they detained Crank as he left his home, rather than executing the “no knock” warrant while Crank was at home.

However, the location of Crank’s home on a rural road and the nature of the surrounding terrain led the officers to fear that their presence near the residence would be detected readily, either by Crank or by prospective drug purchasers. Since the officers were familiar with Crank’s car, surveillance was set up at the closest intersection on either side of Crank’s house. If Crank left his house, either way he turned he would necessarily pass one of the surveillance teams. His vehicle was also monitored by officers in unmarked police cars, who drove by the house periodically to see if it was still there.

Brown, along with three other officers, was in a marked Walton County Sheriffs Department patrol unit stationed at the intersection on the Monroe side of Crank’s house. Two to three hours after the surveillance began, he observed Crank’s vehicle pass the intersection. However, before he could safely pull out to follow Crank, several other vehicles came between the patrol car and that of Crank. It was also difficult to pass on the winding road, so the officers were nearing the Monroe city limits, two or three miles away from Crank’s residence, before Brown was able to turn on his blue lights and stop Crank’s car. Just before the stop was made, Brown noticed there were two people in the car, and he later determined Crank was not driving.

When the car was stopped, a cursory search was performed on it, and the occupants of the car were patted down for weapons. Crank was then served with the search warrant, and Brown told him the officers would take him back to the house to execute it. Brown testified that he informed Crank they would have to get the car off the road. He asked Crank if he wanted to have the car towed or if he would prefer that one of the officers drive it back to his residence. Crank was given no other options. When Crank objected to the car being towed, Brown asked if one of the officers could drive the car, and Crank consented. In fact, he assisted the officers when they had difficulty starting the car.

The officers then returned Crank, the driver, and the car to Crank’s home. The search of the house turned up only marijuana seeds and a prescription drug not in its original container. However, a thorough search of the car after it was returned to the curtilage of Crank’s mobile home uncovered a plastic baggie with over 20 hand-rolled cigarettes containing a leafy material. In addition, when Crank was arrested and asked if any more drugs were in the house, he pulled from inside his clothing another plastic baggie containing additional leafy material and handed it. to the officers.

In his motion, Crank sought to suppress the marijuana found in his car and on his person and any statements made by him while in custody, arguing that they were obtained as a result of an illegal seizure of his person and his car. The State argued below, and contends on appeal, that because Crank had just left his home and those premises were the subject of a lawfully issued search warrant, Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), the officers were authorized to stop Crank miles away and return him to the premises. The trial court granted Crank’s motion to suppress on the ground that the seizure was authorized neither by the holding in Michigan v. Summers nor by probable cause or exigent circumstances. We affirm.

First, we agree with the trial court that the officers’ conduct here exceeded the authority given under Michigan v. Summers. In that case, as police officers were about to execute a search warrant for residential premises, they encountered the owner descending his front steps. Id. at 693. The Supreme Court held that in requiring the homeowner to re-enter his house and remain there while it was searched, the officers did not violate his right to be secure against an unreasonable seizure of his person.

The general rule, of course, is that “every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Id. at 700. The Supreme Court found that the detention in Summers was an exception to the general rule and was reasonable. Balancing the character of the intrusion against the reasons justifying it, the Supreme Court concluded that the justifications were great and the detention “surely less intrusive than the search itself.” Id. at 701. In Summers, however, the „ homeowner was both found and detained immediately outside his own home, where no public stigma was involved. A neutral and detached magistrate had found probable cause to believe the law was being violated on those premises, authorizing a far more severe intrusion. Id. at 701-702.

The contrary is true here. Crank was seized miles from his home, on a public road, in his car. The intrusion was far greater. No magistrate had authorized a search of Crank or the car at that location, and the State concedes it had no probable cause to believe Crank had contraband on his person or in his car. Moreover, the justification against which the intrusion must be weighed was not as great here as in Summers. Although it was possible that Crank could flee, the officers knew Crank had left the premises designated in the search warrant and therefore could not reasonably have feared for their safety during a search of those premises. These circumstances do not justify an exception under Summers to the general rule prohibiting warrantless searches and seizures.

Second, even assuming that Crank could have been returned to his home under the authority of Summers, no justification exists under these facts for the seizure and subsequent search of the car, where most of the evidence sought to be suppressed was found. It could not lawfully have been impounded as a result of Crank’s lawful arrest, as no probable cause existed to arrest him. Moreover, impoundment and an inventory search would not have been reasonably necessary. “Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).” Whisnant v. State, 185 Ga. App. 51, 53 (363 SE2d 341) (1987). The record shows that the driver of the car was licensed and driving under no disability. Impoundment is not permissible when, as here, another of the car’s occupants is present and is capable of safely removing it. State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989); see State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978). Crank was offered only two options when questioned regarding the disposition of the car, and both options required return of the car to Crank’s home. Here, as in State v. Darabaris, 159 Ga. App. 121 (282 SE2d 744) (1981), “ ‘[h]ad the officers allowed [Crank] to express his preference as to disposition of his vehicle, all three of the state interests in impounding and inventorying a vehicle (i.e., protecting the owner’s property, protecting the police from potential danger, and protecting the police from false claims of stolen or lost property) as well as the individual’s right of privacy would have been protected. There was no necessity to impound the vehicle and, consequently the rationale for [an] inventory search did not exist.’ ” Id. at 124.

Decided March 2, 1994.

Alan A. Cook, District Attorney, for appellant.

Dickinson, Noel & Peeples, Joseph S. Peeples, Scott P. Willis, for appellee.

Nor can search of the car be justified by the warrant to search vehicles within the curtilage of the residence. The car would not have been at the residence but for the officers’ unjustified actions in returning it. The trial court did not err in granting the motion to suppress.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       Brown testified he had personally observed Crank in the car “ten or twenty different times in the Monroe area.”


author: Cooper, Judge.

text:
    A93A2186.
    GREEN v. THE STATE.
    (441 SE2d 689)
   Cooper, Judge.

Defendant was indicted on three counts of aggravated child molestation. He was found guilty on one count of the lesser included offense of child molestation and appeals from the jury verdict and sentence.

At trial, the victim testified that the defendant, who is married to her mother, began fondling her breasts and vagina when she was approximately nine years old and that he first had sexual intercourse with her when she was about twelve years old. The victim told her mother about the abuse but her mother did nothing to stop it. She finally told a school social worker who contacted authorities.

1. In his first enumeration of error, defendant contends the trial court erred in admitting as similar transaction evidence testimony that defendant had similarly abused his daughter when she was 11 years old. The trial court admitted under OCGA § 24-3-16, the Child Hearsay Statute, testimony from a police investigator that defendant’s daughter told the investigator in an interview in 1985 that she had been in bed with the defendant when he tried to put his penis between her legs. Defendant contends admission of this testimony was error because the trial court did not make a finding of “sufficient indicia of reliability” as required by the statute. This enumeration of error is without merit. “[W]e have held that it is implicit in the [trial court’s] admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding [of sufficient indicia of reliability].” Calloway v. State, 202 Ga. App. 816 (415 SE2d 533) (1992); see also Windom v. State, 187 Ga. App. 18 (2) (369 SE2d 311) (1988). Moreover, defendant’s daughter testified at trial and admitted that the defendant’s penis had touched her leg while they were in bed and that it had scared her. To the extent the daughter’s testimony at trial was not entirely consistent with her former statements to the investigator, this presented a credibility question to be resolved by the jury. See Ware v. State, 191 Ga. App. 896 (2) (383 SE2d 368) (1989). We find the trial court properly admitted the investigator’s testimony.

2. The half-sister of defendant’s wife testified that when she was 14 years old the defendant came into her room and fondled her breasts and vagina. Defendant contends the trial court erred in admitting this testimony as similar transaction evidence because it was not sufficiently similar to the charged offense and because the half-sister could not be considered a child under the child molestation statute, OCGA § 16-6-4, since she was 14 at the time of the alleged molestation. We find this enumeration without merit. The evidence showed that defendant on a prior occasion had similarly abused a young girl of the same approximate age as the victim. “In a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Rash v. State, 207 Ga. App. 585, 586 (2) (428 SE2d 799) (1993); see also Self v. State, 208 Ga. App. 447 (1) (431 SE2d 126) (1993) (evidence defendant similarly abused 14-year-old victim admissible in trial for molesting 13-year-old).

Decided March 2, 1994.

James M. Barnes, for appellant.

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

3. Defendant’s final enumeration of error is that the trial court erred in not allowing a psychologist to testify that, based on a series of tests he had given the defendant, defendant did not fit the profile of a pedophile. The trial court excluded this testimony, relying on this court’s decision in Knight v. State, 206 Ga. App. 529 (426 SE2d 1) (1992), in which we held that the trial court properly excluded similar expert testimony because the expert could have stated only that the psychological testing did not prove the defendant was a pedophile. Id. at 530. The trial court excluded the psychologist’s testimony based on dicta in Knight that, even if the expert had been of the unequivocal opinion that the defendant was not a pedophile, such “profile testimony” would not constitute admissible expert testimony. See id. Pretermitting the issue of whether such profile testimony was admissible expert opinion evidence, inasmuch as defendant “presented no evidence on the scientific validity of the opinion testimony he sought to introduce, the trial court could have rejected the testimony on that basis. [Cits.]” Collar v. State, 206 Ga. App. 448 (2), 449 (426 SE2d 43) (1992); see also Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982). Accordingly, we find no error in the trial court’s exclusion of the proffered testimony.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2296.
    HAEHN v. ALHEIT.
    (441 SE2d 529)
   Cooper, Judge.

Defendant appeals the trial court’s denial of his motion for directed verdict in this case tried by the court without a jury.

Plaintiff brought suit against defendant seeking to recover money allegedly owed to him under an oral contract between plaintiff and the defendant. At trial, plaintiff testified that defendant orally promised to pay him $1,000 a month for 36 months beginning “around April of 1988” if plaintiff would guarantee financing for the floor plan of a motorcycle business defendant was'seeking to acquire. Plaintiff’s version of the oral contract was corroborated by the deposition testimony of one of his employees who was present during the parties’ conversations concerning the contract. A personal guaranty signed by plaintiff and his wife guaranteeing the debts of the motorcycle business was introduced into evidence. Plaintiff testified that he had to put up the entire assets of his junkyard business in order to give the guaranty. He further testified that the defendant sent him two checks for $500 each in July and October of 1988 but that he received no other payments under the agreement.

Defendant testified that the oral agreement he reached with plaintiff was that he would give plaintiff ten percent of the profits of the motorcycle business if plaintiff would guarantee the floor plan so that defendant could acquire the business. Defendant acknowledged that he could not have acquired the floor plan without such a guaranty since his own net worth was not sufficient to back the guaranty. He admitted that the business had turned a profit during March through June of 1988 but that he had not sent any money to plaintiff until July of that year. At the plaintiff’s request, defendant’s brother was substituted as guarantor in February 1989.

Defendant moved for directed verdict at the close of plaintiff’s case and again at the close of all the evidence. The trial court denied the motions, finding that the parties had entered into such an oral agreement and that plaintiff was entitled to $11,000 for the 11-month period he served as guarantor minus the $1,000 paid by defendant, plus prejudgment interest.

1. We first note that it was procedurally incorrect for defendant to move for a directed verdict in this bench trial since there was no jury; thus, the denial of the motion will be construed as one for involuntary dismissal under OCGA § 9-11-41 (b). Hertz Corp. v. McCray, 198 Ga. App. 484 (1) (402 SE2d 298) (1991). “Under Sec. 41 (b), a trial judge in a non-jury case expressly has the power to adjudicate the case on the merits at the conclusion of plaintiff’s case. If the trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a non-jury case, he must weigh the evidence. . . . Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Id. at 484-485.

2. Defendant first argues the trial court erred in denying his motion to dismiss because the evidence established that the plaintiff and defendant were partners in the motorcycle business and pursuant to the Supreme Court’s decision in Miller & Son v. Freeman, 111 Ga. 654 (36 SE 961) (1900), one partner cannot, prior to a final dissolution of the partnership, bring an action against a co-partner based on partnership transactions. However, the trial court found that the parties were not partners and that the plaintiff’s only participation in the defendant’s motorcycle business was as a guarantor.

Certain documentation introduced at trial indicated that the parties were partners in the motorcycle business. However, defendant testified at trial that the motorcycle business was currently operated as a sole proprietorship, and there is no evidence of any dissolution of the alleged partnership. Moreover, defendant testified that plaintiffs only role had been to serve as a guarantor and that his sole obligation to plaintiff ended when his brother was substituted as the guarantor. Defendant further admitted that the plaintiff had nothing to do with the daily operations of the business, that plaintiff was never consulted about any aspect of the business, and that plaintiff had never contributed any money to the business. Although the evidence was conflicting, because there was some evidence to support the trial court’s determination that the plaintiff was not a partner in the motorcycle business, we find this enumeration to be without merit. See Hertz, supra at 485.

3. Defendant next argues the trial court erred in denying his motion because oral contracts that are not to be performed within one year are not enforceable under the statute of frauds. OCGA § 13-5-30 (5). Plaintiff responds that the contract was enforceable because it was partially performed within the meaning of OCGA § 13-5-31 (3). Specifically, plaintiff contends that his execution of the guaranty agreement and his serving as guarantor for a period of 11 months was sufficient part performance of the oral contract as to take it out of the statute of frauds. “Partial performance which will vitiate the statute of frauds must be substantial and essential to the contract and which results in a benefit to one party and a detriment to the other.” (Citations and punctuation omitted.) White House v. Winkler, 202 Ga. App. 603, 607 (415 SE2d 185) (1992). Defendant benefitted by plaintiff’s execution of the guaranty agreement because his own net worth was not sufficient to enable him to acquire the floor plan for the motorcycle business without such a guaranty. Plaintiff suffered a detriment by virtue of putting up as collateral the assets of his junkyard business and taking on the risk of guaranteeing the debts of defendant’s motorcycle business if such were not paid by the defendant. Although plaintiff may not have suffered any monetary detriment since he was not required to pay any debts under the guaranty, he did, to his detriment, assume the risk of having to pay such debts by virtue of executing the guarantee. Furthermore, given defendant’s admission that plaintiff’s end of the bargain was to guarantee the floor plan so that defendant could acquire the motorcycle business, arguably, plaintiff fully performed his part of the agreement with defendant simply by virtue of executing the guaranty. See OCGA § 13-5-31 (2). Because there was some evidence of either full or part performance sufficient to take the oral contract out of the statute of frauds, the trial court did not err in denying defendant’s motion to dismiss on this issue. See Rose v. O’Brien, 191 Ga. App. 36 (2) (380 SE2d 730) (1989).

Decided March 2, 1994.

William H. Turner, Jr., for appellant.

Harry B. White, for appellee.

4. Finally, defendant asserts the trial court erred in denying his motion because plaintiff failed to show that he sustained any actual damages. We find this enumeration to be without merit. Plaintiff testified that, other than the two checks totalling $1,000 he received from defendant, he did not receive the $1,000 a month he was entitled to be paid under the terms of the oral contract during the eleven months he served as guarantor; thus, the trial court properly concluded that plaintiff suffered damages in the amount of $10,000. See OCGA § 13-6-6.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A94A0200.
    VADNER v. DICKERSON.
    (441 SE2d 527)
   Andrews, Judge.

Vadner sued Dickerson contending he maliciously prosecuted a felony charge against him in Fulton County for allegedly writing a bad check in violation of OCGA § 16-9-20. The trial court granted Dickerson’s motion for summary judgment on the basis that the criminal prosecution had not terminated in Vadner’s favor. Vadner appeals from the grant of summary judgment.

Termination of the underlying criminal prosecution in favor of the plaintiff-accused is an essential element of a claim for malicious prosecution. McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d 209) (1983). The trial court found the magistrate court judge dismissed the criminal warrant because “the prosecution was being prosecuted in the wrong county.” Based on this finding, the trial court concluded Dickerson was entitled to summary judgment because the prosecution had not terminated in Vadner’s favor. Vadner argues on appeal that dismissal of the warrant on the basis of improper venue was a termination of the criminal prosecution in his favor sufficient to support his cause of action for malicious prosecution.

The magistrate court’s dismissal of the criminal warrant on juris dictional grounds for lack of proper venue was without prejudice to subsequent recommencement of the prosecution before a court having proper jurisdiction. See Uniform Magistrate Rule 18. “[I]f a criminal prosecution has been dismissed with no intention of commencing it again, or if delay has been made in commencing the prosecution again, so as to lead the accused to believe that it has been finally terminated, and if he then and at once commences his action for a malicious prosecution, he might probably maintain the same. But, in all reason, he should not be allowed to maintain such an action when substantially the same criminal prosecution as the one upon which he founds his action is still in the courts undisposed of.” Hartshorn v. Smith, 104 Ga. 235, 237 (30 SE 666) (1898). In other words, if a criminal warrant is dismissed without prejudice on jurisdictional grounds and the prosecutor with due diligence reinstitutes the prosecution in a court having proper jurisdiction to try the case on its merits, this amounts to a continuation of the original prosecution. See Bailey v. General Apartment Co., 139 Ga. App. 713, 714 (229 SE2d 493) (1976); Restatement Torts, 2d, § 660 (d), comment g. However, if the prosecutor does not diligently take action to recommence the prosecution, it may be considered terminated in favor of the accused by reason of voluntary abandonment by the prosecutor. See Laster v. Star Rental, 181 Ga. App. 609 (353 SE2d 37) (1987).

Here, the affidavit supporting the arrest warrant states the felony bad check offense was committed on March 1, 1990, so the prosecution could be brought in a proper court within four years from that date. OCGA § 17-3-1 (c). It appears the magistrate court dismissed the warrant in February 1992, and Vadner filed his malicious prosecution action in November 1992. In June 1993, Dickerson moved for summary judgment on the basis that the criminal prosecution had not terminated in favor of Vadner. Dickerson’s motion was not supported by affidavit or any other evidence showing that the prosecution had been reinstituted or was otherwise not abandoned. Compare Bennett v. Fine Jewelers &c., 194 Ga. App. 377, 379 (390 SE2d 625) (1990). Although the dismissal of the warrant without prejudice for lack of venue was not a conclusive termination of the prosecution, under these circumstances it constituted prima facie evidence that the prosecution had terminated in favor of Vadner by reason of the prosecutor’s voluntary abandonment. See Bailey, supra at 715. The burden thus shifted to Dickerson to show in support of his motion that the prosecution had not ended. See Ayala v. Sherrer, 234 Ga. 112, 117 (214 SE2d 548) (1975). Given the lack of any evidence that the prosecution had been reinstituted or was otherwise not abandoned, the trial court erred by granting Dickerson’s motion and dismissing the action.

Decided March 2, 1994.

Alan C. Manheim, Lewis P. Perling, for appellant.

Dow, Lohnes & Albertson, Thomas M. Clyde, Mark Ford, for appellee.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

       Although Vadner agrees the underlying criminal charges were dismissed on jurisdictional grounds for improper venue, he also contends the magistrate court found a lack of probable cause. There is no support in the record for the latter contention.

       Even when a committing court dismisses a warrant on the merits, this does not necessarily terminate the prosecution, since it does not bar a subsequent indictment and trial of the accused on the same offense within the applicable statute of limitation. Wells v. Styncheombe, 231 Ga. 199, 201 (200 SE2d 745) (1973).

       We note that even if Dickerson had shown the prosecution was not ended, dismissal without prejudice pursuant to OCGA §§ 9-11-12 (d) and 9-11-43 (b) rather than summary judgment would have been the appropriate procedure. The defense that the prosecution has not terminated is one in abatement since the prosecution may subsequently terminate in favor of the accused. Primas v. Saulsberry, 152 Ga. App. 88, 89 (262 SE2d 251) (1979). Moreover, a malicious prosecution action brought prior to final termination of the underlying criminal offense remains subject to the peril of dismissal for lack of termination if the prosecution is subsequently recommenced prior to expiration of the statute of limitation for the offense. Ayala, supra at 115, n. 1.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A1794.
    PATTERSON v. THE STATE.
    (441 SE2d 414)
   Cooper, Judge.

Defendant was tried before a jury and found guilty of child molestation in violation of OCGA § 16-6-4. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant enumerates the general grounds. The evidence reveals that the victim, appellant’s five-year-old stepdaughter, told her mother, her aunt, a teacher, a DFACS investigator, and a police investigator that appellant pulled down the victim’s pants and rubbed his genitals across her vaginal region. Pursuant to OCGA § 24-3-16, these statements were admitted into evidence. Although the victim recanted from the stand, testifying that her prior accusations against appellant were false and had been induced by the jealous aunt, her prior inconsistent statements became substantive evidence that the molestation occurred as she had originally alleged. Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124) (1985). This evidence was sufficient to authorize a rational trier of fact to find proof of appellant’s guilt of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Weeks v. State, 187 Ga. App. 307 (1) (370 SE2d 344) (1988).

2. Appellant enumerates as error the denial of his motion in limine to exclude the results of a polygraph test. The record reflects that on October 9, 1990, after his formal arrest but while he was free on bond, appellant was questioned at home by Investigator Payne of the Fannin County Sheriff’s Department about the victim’s allegations. Appellant was orally advised of his right to remain silent and his right to have counsel present during any questioning, and orally waived those rights. During this interrogation, appellant and the investigator discussed the possibility of appellant taking a polygraph examination. Investigator Payne informed appellant that he did not have to take a polygraph and that the results of a polygraph would not be admissible in evidence unless he so stipulated in writing. Payne showed appellant the stipulation form, which included a waiver of the right to counsel but did not contain any notice or waiver of the right to silence or against self-incrimination. Nor did this form recite that the test results were inadmissible in evidence in the absence of the stipulation. Appellant declined to sign the stipulation form at that time, saying that he wanted time to think it over and to discuss it with his wife. On October 11, 1990, appellant appeared at the sheriff’s office and informed Investigator Payne that he would agree to take the polygraph. The form stipulation as to the admissibility of the results was signed at this time. The examination was given on October 15, 1990, and on that day appellant signed a notice and waiver of rights indicating that he had completed school through the 12th grade. Appellant also signed a written consent form which recited that he was voluntarily agreeing to take the examination and informed him of his right to terminate the examination at any time. In compliance with OCGA § 43-36-13 (e), the polygraph examiner read to appellant the questions he would ask during the interview before actually conducting the examination.

It is not required that the accused have counsel present or act only upon the advice of counsel in order to render a stipulation to the admissibility of the results of a polygraph examination valid and binding upon the accused. See Van Kleeck v. State, 250 Ga. 551 (3) (299 SE2d 735) (1983). After having been advised of his right to remain silent and his right to have counsel present during any questioning, an accused may validly waive those rights, and when the accused “makes a knowing waiver of his right to counsel and stipulates to the admissibility of the results of a polygraph examination, the results are admissible at trial.” Ivey v. State, 203 Ga. App. 886 (1) (418 SE2d 71) (1992). There is evidence that appellant knew and understood his rights before he waived counsel and stipulated to the admissibility of the polygraph results. Therefore, the determination of the trial court that appellant’s stipulation was knowingly and voluntarily entered into is supported by evidence and is not, therefore, clearly erroneous.

Judgment affirmed.

Smith, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur.

With respect to Division 2, it is incumbent on us to rule in this case separately on the admission of the polygraph test under the State Constitution, because appellant has raised such authority as an independent basis. Paragraph 14 of Georgia’s Bill of Rights guarantees that “Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel. . . ,” See Jones v. State, 57 Ga. App. 344 (195 SE 316) (1938), which, although it does not establish the outer limits of the right, points up its fundamental nature and some of the considerations of waiver.

The majority opinion cites Van Kleeck v. State, 250 Ga. 551 (3) (299 SE2d 735) (1983), and Ivey v. State, 203 Ga. App. 886 (1) (418 SE2d 71) (1992). In Van Kleeck, the court rejected appellant’s urging that the test results were inadmissible on the ground that she did not have counsel present when the examination was given, despite her request for counsel. No reference is made to the authority relied on by appellant in that case, and the court does not identify the authority upon which its decision is based. It simply concluded that appellant had “voluntarily, knowingly and intelligently” waived her “ ‘Miranda’” rights, which of course would have included the right to counsel under the Federal Constitution. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The court came to this conclusion based on what had transpired before the test was administered. Whether the holding was intended to embrace both constitutions is not clear, but the state constitutional provision was not independently applied.

No authority on the right to counsel aspect of the polygraph test is cited in Ivey. In fact, the court pointed out that defendant cited “no law in support of his argument” and had admitted to the trial court that he had found none. The contention was that the test results should not be admitted when defendant consented to the test and to its use as evidence “without the advice of counsel.” Id. at 887. In that case, defendant had signed a written “ ‘Miranda’ ” form a week before agreeing to the test and also, at the time of the test, had signed another document indicating he waived his right to consult with a lawyer and have one present during questioning. The court concluded that there was “a knowing waiver” of the right to counsel. On the face of it, this too seems to be based on federal constitutional law. No plain statement is made to the contrary. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983).

Decided January 27, 1994

Reconsideration denied March 3, 1994

Robert K. Ballew, David M. Rosenberg, for appellant.

Roger Queen, District Attorney, for appellee.

Here, defendant’s signature is affixed on the form consenting to the results being used as evidence at trial. The form states in part: “[T]he advice of counsel in this matter is hereby expressly waived.” Defendant had been told that he did not have to take the test, that the results would not be admissible unless he agreed in writing, and that he had a right to counsel with respect to these decisions. Although the rule regarding inadmissibility absent a stipulation should expressly appear on the written stipulation so there is no doubt that the defendant knows this important caveat, it is not required. See Dein v. Mossman, 244 Ga. 866, 870 (3) (262 SE2d 83) (1979), in which the stipulation itself was oral but nevertheless accepted.

Considering these circumstances, and including those recited in the majority opinion and particularly that defendant voluntarily went to the sheriff’s office at his own bidding for the purpose of taking the test after having the opportunity to consult anyone about it, I conclude that the state constitutional right has not been violated by the admission of the test results. Cf. People v. Zazzetta, 27 I11.2d 302 (189 NE2d 260) (1963); State v. Valdez, 91 Ariz. 274 (371 P2d 894) (1962); Conley v. Commonwealth, 382 SW2d 865 (Ky. 1964).

By our decision, we are rejecting the contention, made by appellant, that it cannot be a valid waiver unless the defendant knows the rules of evidence and is aware of the scientific ramifications and questionable reliability of such tests. See Brown v. State, 209 Ga. App. 314, 316 (1) (433 SE2d 321) (1993).

       The Sixth Amendment to the Federal Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the [assistance of [c]ounsel for his defense.”

       It is noted that there is no mention in that opinion of a stipulation for admissibility having been entered into as a precursor to the administration of the test, nor is there any reference to State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). Nevertheless, it is certain that such a stipulation, entered into by both sides, is still required in order for the results to be admissible. McGhee v. State, 253 Ga. 278, 281 (6) (319 SE2d 836) (1984).


text:
    A93A1876.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. MOBASSER.
    (441 SE2d 441)
   Cooper, Judge.

Appellants/condemnors, MARTA and Fulton County, condemned certain property owned by appellee/condemnee for MARTA’s rapid rail system. The jury awarded appellee $428,400 as just and adequate compensation for the property taken and an additional $35,016.40 as removal and moving expenses. The trial court entered judgment on the jury’s verdict, and appellants appeal, enumerating as error two of the court’s charges to the jury.

1. Appellee has moved to dismiss the appeal on the ground that appellants failed to pay into the registry of the court the difference between the amount originally paid into court and the amount of the judgment. “When private property is taken ... for public road or street purposes or public transportation purposes . . . just and adequate compensation therefor need not be paid until the same has been finally fixed and determined as provided by law.” Art. I, Sec. Ill, Par. I of the Ga. Constitution of 1983. “It is not a condition precedent that the increased compensation be paid before moving for a new trial or before appealing from the judgment on the verdict or from the denial of a new trial.” Dougherty County v. Snelling, 132 Ga. App. 540, 542 (208 SE2d 362) (1974), overruled on other grounds in Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358 (227 SE2d 362) (1976). Contrary to appellee’s argument, nothing in MARTA v. Funk, 206 Ga. App. 868 (426 SE2d 623) (1992), reversed by MARTA v. Funk, 263 Ga. 385 (435 SE2d 196) (1993), persuades us otherwise. In that case, we merely noted that the payment into the court registry of the difference between the amount originally paid in and the amount of the judgment did not subject the appeal to dismissal on the grounds of mootness. Accordingly, appellee’s motion to dismiss is denied.

2. Appellant first contends that the trial court erred in its recharge to the jury. Appellee testified that he incurred numerous relocation expenses totalling over $34,000, which amount included an expense of $23,905 to build out his new office space. In its charge to the jury, the trial court instructed that relocation and moving expenses were recoverable as part of the just and adequate compensation, but that relocation expenses were not recoverable unless the property involved in the condemnation was unique. The verdict form which went out with the jury included a space for the jury to award an amount for “removal and moving” expenses. During its deliberations, the jury sent a note to the judge which read, in relevant part, as follows: “For the second item, removal and moving expenses, what does removal mean? Does this include compensation for build-out cost?” The judge then re-charged the jury on relocation expenses but did not include in the re-charge that the property involved had to be unique in order to recover those expenses. Appellant argues that the court’s re-charge was incorrect and misleading because it did not inform the jury that the property had to be unique. “If the condemned real property is ‘unique,’ that ‘uniqueness’ is to be reflected in the owner’s recovery of just and adequate compensation for the taking thereof.” MARTA v. Funk, supra at 263 Ga. 386. “[Relocation expenses are awarded, as a separate element of just and adequate compensation, for the damages a condemnee incurs in the form of the cost of moving his existing business which was not taken in the condemnation but which was dispossessed thereby.” Id. at 385. We conclude that the issue of uniqueness is not related to the recovery of relocation expenses; therefore, the trial court’s re-charge was a correct statement of the law.

Decided February 10, 1994

Reconsideration denied March 3, 1994

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Susan B. Forsling, for appellants.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellee.

3. Appellant also contends that the trial court erred in charging the jury as follows: “Now, I charge you then that just and adequate compensation for the taking of a person’s property means putting the deprived property owner as nearly as possible back in the same monetary position as the property owner was before the condemnation of the property. In other words, trying to put the person — sometimes we say here to make the person whole again, putting them in the same position monetarily as they were before.” Appellant argues that the charge was erroneous and misleading to the jury. We disagree. In MARTA v. Funk, supra at 385, the Supreme Court stated that “[j]ust and adequate compensation for the real property that is taken is certainly intended to put a condemnee in substantially the same financial position that he was in prior to the taking.” We find no error with the trial court’s charge.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2008.
    FIREMAN’S FUND INSURANCE COMPANY v. DEAN et al.
    (441 SE2d 436)
   Blackburn, Judge.

The plaintiffs/appellees William Dean, Jr., and William deGolian, as co-administrators of the Estate of Thomas Kidwell, Sr. (collectively referred to as the Estate), brought this action to recover proceeds from the decedent’s homeowner’s insurance policy issued by appellant Fireman’s Fund Insurance Company (Fireman’s Fund). The jury returned a verdict in favor of the Estate. Fireman’s Fund appeals the trial court’s denial of its motions for directed verdict on several issues and asserts that other errors committed by the trial court require a new trial.

On May 7, 1990, Mr. Kidwell was bludgeoned to death with a blunt metallic object, wrapped in a blanket taken from the master bedroom of the insured residence, and stuffed into the trunk of his car. Thereafter, in the early morning hours of May 8, 1990, fire destroyed the insureds’ residence. It is undisputed that the fire was intentionally set. It is further undisputed that Mr. and Mrs. Kidwell were separated and that Mr. Kidwell no longer resided in the insured residence. Additionally, Joyce Kidwell (the decedent’s wife) arranged to spend the night of the fire with her son and his wife, Jeffrey and Lori Shields. Joyce Kidwell had also arranged for Lori Shields to pick up her dogs from the insured residence. The evidence was disputed as to whether it was unusual for Joyce Kidwell to take her dogs with her for an overnight visit.

On June 7, 1990, Joyce Kidwell gave a recorded statement, to an investigator representing Fireman’s Fund, in which she denied any knowledge concerning the fire or her husband’s death. On July 18, 1990, Joyce Kidwell filed a sworn statement in proof of loss with Fireman’s Fund seeking $330,594 in insurance proceeds. On February 22, 1991, Joyce Kidwell was indicted for the murder of her husband. Thereafter, she refused to submit to the examination under oath requested by Fireman’s Fund, asserting her Fifth Amendment right against self-incrimination. On May 15, 1991, Joyce Kidwell was tried and convicted for the murder of Thomas Kidwell. Joyce Kidwell’s claim with Fireman’s Fund was subsequently dropped.

On March 21, 1991, the Estate filed a proof of loss with Fireman’s Fund seeking insurance proceeds in the amount of $383,990. Thereafter, on May 2, 1991, the Estate filed this action. Fireman’s Fund answered and asserted several contractual defenses to the Estate’s claim.

1. Fireman’s Fund asserts that the trial court erred in failing to grant its motion for summary judgment and motion for directed verdict on the issue of whether the entire policy was void because Joyce Kidwell intentionally concealed material facts by refusing to submit to an examination under oath. The Estate responds that Thomas Kidwell was an innocent co-insured and that it should be allowed to recover, despite Joyce Kidwell’s actions, pursuant to the Georgia Supreme Court’s analysis in Richards v. Hanover Ins. Co., 250 Ga. 613 (299 SE2d 561) (1983).

The Richards court interpreted an insurance contract provision which excluded from coverage losses caused by the neglect of “the insured.” Although Mr. Richards was arrested for arson in connection with the burning of their house, Mrs. Richards was not implicated in the fire. Both Mr. and Mrs. Richards were listed as “named insured” on the policy. In Richards, the Court determined “that whether Mrs. Richards, as an innocent co-insured, [could] recover under her policy depend [ed] on whether the parties to the contract intended the obligations of the co-insureds to be joint or several.” 250 Ga. at 615. The Court employed the rules of contract construction and held that by the use of the term “the” in the exclusion, it was unclear whether the policy created joint or several obligations. Id. The Court interpreted the language against the drafter, the insurance company, and determined that Mrs. Richards was not automatically barred from recovery due to Mr. Richards’ alleged arson. Id. at 616. Richards did not address an OCGA § 33-32-1 (a) issue as hereinafter discussed.

In the present case, the insurance policy listed both Mr. and Mrs. Kidwell as “named insured.” Under the conditions of the policy, it provided that “[t]he entire policy will be void if, whether before or after a loss, an insured has: a. intentionally concealed or misrepresented any material fact or circumstance; b. engaged in fraudulent conduct; or c. made false statements; relating to this insurance.” (Emphasis supplied.) This language is not ambiguous. To the contrary, it is clear that the policy is voided if “an insured” conceals material facts. In Sales v. State Farm Fire &c. Co., 849 F2d 1383 (11th Cir.1988), the court, interpreting Georgia law, determined that an insurance policy provision voiding the policy when “any insured” intentionally concealed material facts clearly created joint obligations in the insureds. A simple comparison of the definitions of the words “the,” “an,” and “any” convinces this court that the phrase “an insured” as used in Fireman’s Fund’s policy creates the same expectation in an insured as the phrase “any insured” as interpreted in Sales, supra. Although this policy language creates a joint obligation between co-insureds (compare Richards, supra, with Sales, supra, and Meyers v. State Farm Fire &c. Co., 801 FSupp. 709, 717 (N.D. Ga.1992)), the Estate argues that such an attempt violates the mandate of OCGA § 33-32-1 (a). The Estate’s argument has not been presented previously to any Georgia court. See Richards, supra; Sales, supra; Meyers, supra.

OCGA § 33-32-1 (a) requires that fire insurance policies covering Georgia property contain “language at least as favorable to the insured as the applicable portions of the standard fire policy. . . .” The applicable portion of the Standard Fire Policy provides that “[t]his entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.” (Emphasis supplied.) Rules of Comptroller General, Insurance Department, § 120-2-19-.01.

Whether the application of OCGA § 33-32-1 (a) requires that the concealment provision in Fireman’s Fund’s insurance contract must be reformed, despite its lack of ambiguity, to conform with the fraud clause in the Standard Fire Policy, which was found to be ambiguous in Richards, is a question of first impression in this state. However, other jurisdictions addressing the same basic issue have determined that the Standard Fire Policy sets forth the minimum coverage upon which an insured can rely and insurance coverage must be conformed to that provided by the Standard Fire Policy. See Borman v. State Farm Fire &c. Co., 499 NW2d 419, 421 (Mich. App. 1993); FBS Mtg. Corp. v. State Farm Fire &c. Co., 833 FSupp. 688, 695 (N.D. Ill. 1993); and Ponder v. Allstate Ins. Co., 729 FSupp. 60 (E.D. Mich. 1990).

In Georgia, the clear mandate of OCGA § 33-32-1 (a) requires that the language of Fireman’s Fund’s insurance policy be as favorable to the insured as the language in the Standard Fire Policy. Under Richards, supra, the use of “the insured” in the fraud provision Standard Fire Policy must be construed to provide several obligations as to each co-insured. Therefore, the minimum coverage allowed in Georgia creates several obligations as to each co-insured and Fireman’s Fund’s insurance contract must be reformed to conform with the minimum coverage provided in the Standard Fire Policy. The trial court was correct in denying Fireman’s Fund’s motion for summary judgment and motion for directed verdict.

2. Fireman’s Fund next enumerates that the trial court erred in failing to grant its motion for directed verdict on the issue of bad faith. Fireman’s Fund contends that the Estate’s claim for bad faith and attorney fees pursuant to OCGA § 33-4-6, was technically deficient and without substantive merit. We agree that the Estate’s claim for bad faith lacked substantive merit and we do not reach its alleged technical deficiencies.

“To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.” (Citations and punctuation omitted.) Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 355 (395 SE2d 851) (1990). Furthermore, “our courts have consistently held that no bad faith exists where there is a doubtful question of law involved.” (Citations and punctuation omitted.) Schoen v. Atlanta Cas. Co., 200 Ga. App. 109, 111 (407 SE2d 91) (1991). This is especially true where the case presents issues of first impression. Id.

This is a case of first impression in which Fireman’s Fund presented a legal defense adopted by other courts. See Sales, supra; Meyers, supra; Spezialetti v. Pacific Employers Ins. Co., 759 F2d 1139, 1141-1142 (3rd Cir. 1985). Furthermore, the argument upon which this opinion is based was not presented prior to this appeal. See Division 1. Therefore, we find that the trial court erred in failing to grant Fireman’s Fund’s motion for directed verdict on the issue of bad faith and attorney fees.

3. In its fourth enumeration of error, Fireman’s Fund asserts that the trial court erred in failing to grant their motion for directed verdict on the Estate’s claim for personal property damages. Fireman’s Fund argues that the Estate failed to present any evidence as to the value of the subject property. The jury returned a verdict of $51,986.50 for damage to personal property. Fireman’s Fund complains that no evidence as to cost, age, or condition of the personal property was introduced.

“Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas. The items involved in this case were of a relatively common nature, so that the jury was not limited to consideration of expert opinion testimony in forming its own opinion of the property’s market value.” (Citations and punctuation omitted.) Atlanta Commercial Builders v. Polinsky, 148 Ga. App. 181, 182 (250 SE2d 781) (1978). In the present case, the Estate introduced a five-page list of personal property destroyed in the fire. The list was prepared by the decedent’s son from his memory of the items in his parents’ house. It contained entries such as “Pool table — standard size, slate top, high quality” and “Kitchen table with 4 chairs.” The value of the items claimed was within the general ken of a jury. Therefore, the trial court did not err in failing to grant Fireman’s Fund’s motion for directed verdict as to personal property damages.

4. Fireman’s Fund asserts that the trial court erred in allowing the Estate to present evidence that no insured was criminally convicted of arson. We agree that evidence of a criminal conviction or acquittal is not probative of the issues in a civil case regarding the same incident. However, in the present case, the introduction of testimony to the effect that no insured had been convicted of arson was harmless.

Decided February 7, 1994

Reconsiderations denied March 3, 1994

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Mary Beth Gibson, Dermer & Black, Stephen Dermer, for appellant.

Dean, Setliff & Smith, William T. Dean, Jr., Johnson & Ward, William D. deGolian, D. Lake Rumsey, Jr., for appellees.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, McKenzie, Martin, Taylor & McConnaughey, Michael A. McKenzie, Timothy A. Bumann, amici curiae.

Judgment affirmed in part and reversed in part.

Pope, C. J., concurs. McMurray, P. J., concurs in Divisions 1, 3, 4 and in the judgment. Johnson, J., disqualified.

       Mr. Kidwell’s car was found on May 11, 1990, parked in the Techwood Homes area of Atlanta. Mr. Kidwell’s body was found in the trunk of his car.

       Joyce Kidwell, Jeffrey Shields, and Lori Shields were later indicted on murder and conspiracy charges.

       Fireman’s Fund complains that the Estate failed to argue the provisions of OCGA § 33-32-1 (a) below and, therefore, we should not consider the Estate’s position. However, we can consider additional bases for upholding a trial court’s ruling or order under our “right for any reason” analysis. See Lyberger v. Robinson, 207 Ga. App. 845, 846 (429 SE2d 324) (1993).


text:
    A93A2101.
    HAWKINS et al. v. SKELLY.
    (441 SE2d 439)
   Cooper, Judge.

Plaintiff Richard Hawkins, John Skelly, and Kevin Bassinger, all minors under the age of 13, were playing baseball with a plastic bat in the back yard of Kevin’s house. John threw the ball to Kevin, who hit it with the bat into the bushes. While Richard was retrieving the ball, Kevin asked John to throw him a rock at which Kevin swung and missed. John threw Kevin another rock which Kevin hit. The rock ricocheted off a tree and hit Richard in the eye. Plaintiffs, Richard and his parents, brought a lawsuit against John III, Kevin and their fathers to recover damages for Richard’s injuries. John Ill’s father filed a motion for summary judgment which was granted by the trial court, and plaintiffs appeal from that order.

“It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship, when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” (Citation and punctuation omitted.) Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989). At the time of the accident, John III was playing baseball with two of his friends and was not engaged in any activity on behalf of his father. Since there is no issue of principal-agent or master-servant, defendant’s liability, if any, must be based on “some factual situation such as allowing [John III] to have unsupervised control of a dangerous instrumentality.” Jackson, supra.

In support of his motion for summary judgment, defendant submitted his own affidavit in which he stated that he gave his son permission to go to Kevin’s house, that he provided neither the bat nor the rocks used in the accident and that prior to the accident he had no knowledge that his son had ever engaged in any similar type activity involving playing baseball with rocks. In opposition to defendant’s motion for summary judgment, plaintiff Estrella Hawkins, Richard’s mother, submitted an affidavit in which she opined that children who do not receive adequate training and supervision in the game of baseball do not appreciate the dangers of hitting a rock instead of a baseball. Plaintiffs also submitted the affidavit of John Neff, one of defendant’s neighbors, who stated that prior to the accident involving Richard, John III had threatened to squirt Neff’s son with a “super soaker” squirt gun. Neff also stated that he had seen John III throw rocks like baseballs so that another child could hit them. “Although recovery is permitted where through parental negligence a child is permitted access to an instrumentality which, if not properly used, is foreseeably likely to cause injury to a third person, this does not make the parent liable for an injury negligently inflicted by a child where there is no dangerous proclivity known to the former and no reason to anticipate the injury which in fact occurred. ... In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child’s use of the instrumentality.” (Citations and punctuation omitted.) Saenz v. Andrus, 195 Ga. App. 431, 432-433 (2) (393 SE2d 724) (1990). Plaintiffs contend that Neff’s affidavit establishes that John III had engaged in the activity of playing baseball with rocks and further argue that defendant could have known of this activity if he had properly supervised John III. “The onus [of a parent’s] responsibility has been limited to such instances where the parent has taken some active part in the creation of the danger. A failure to supervise or regulate the play is not such an active part, because in our society strict control of children is today so rare that its absence is no indication of a lack of reasonable care.” (Citation and punctuation omitted.) Assurance Co. of America v. Bell, 108 Ga. App. 766, 774 (4) (134 SE2d 540) (1963). Defendant’s uncontroverted affidavit reveals that he furnished neither the baseball bat nor the rocks used to inflict the injury on Richard. Moreover, plaintiffs have produced no evidence that defendant knew of his son’s proclivity to engage in the activity which caused the injury. Accordingly, we conclude that under the applicable authority, the trial court properly granted summary judgment to defendant.

Decided February 8, 1994

Reconsideration denied March 3, 1994

0. Wayne Ellerbee, for appellants.

Young, Clyatt, Turner, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, William R. Folsom, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Johnson, Judge.

text:
    A93A2239.
    HULSEY v. HULSEY.
    (441 SE2d 477)
   Johnson, Judge.

Phyllis Hulsey filed a wrongful death action after her minor child was fatally struck by an automobile. Her former husband, Paul Hulsey, filed a motion to intervene as a party plaintiff in the action. The trial court denied the motion and we granted Paul Hulsey’s application for interlocutory appeal.

1. Paul Hulsey contends that the trial court erred in denying his motion because he has a right to intervene pursuant to OCGA § 19-7-1 (c) (2) (C), which provides “[i]f both parents are living but are divorced, separated, or living apart, the right [to proceed to recover for the wrongful death of a child] shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection.”

Our research does not reveal and neither party cites any cases in which Georgia courts have applied this statute to a case involving the right of a divorced parent to intervene as a party plaintiff in a wrongful death action. In interpreting this subsection, it is helpful to consider its history. Prior to 1980, the cause of action for recovery for the homicide of a child belonged solely to the parent with custody of the child if the parents were divorced. See Atkinson v. Atkinson, 249 Ga. 247 (290 SE2d 423) (1982). However, in 1980 the legislature amended the statute to provide a joint cause of action for all living parents, including divorced parents. Id. Thus, it was the intent of the legislature to protect the right of both parents to a cause of action for the wrongful death of their child regardless of marital status. Where the parents are divorced, “the statute creates a single cause of action vested in both parents, which may be brought by both parents together, or by one parent on behalf of both parents.” (Emphasis supplied; citation omitted.) Belco Elec. v. Bush, 204 Ga. App. 811, 813 (420 SE2d 602) (1992). Phyllis Hulsey’s action was not brought by both parents together or on behalf of both parents.

Moreover, the only instances in which the statute specifically authorizes a divorced parent to proceed without the other is where the other parent cannot be located or where he refuses to proceed. Neither is the case here. It must be noted that, because they share one cause of action, Paul Hulsey would be bound by an adjudication on the merits of Phyllis Hulsey’s case. Id. Because Phyllis Hulsey did not bring the action on behalf of both parents, we hold that Paul Hulsey has the right to intervene pursuant to OCGA § 19-7-1 (c) (2) (C) and protect whatever interest he has in the recovery. Any person who timely moves to intervene when a statute confers upon him an unconditional right to intervene must be permitted to do so. OCGA § 9-11-24 (a) (1). Thus, the trial court erred in denying Paul Hulsey’s motion to intervene.

Phyllis Hulsey argues that Paul Hulsey has no right to intervene because he failed to pay any child support following the couple’s divorce. The extent to which Paul Hulsey is entitled to share in any recovery is a separate issue from whether he has a right to intervene in the action. As discussed above, we construe the statute as giving him the right to intervene in the action. However, by holding that he has a right to intervene in the proceedings we do not imply that he has a right to share equally in any recovery. In fact, either parent may file a motion prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. OCGA § 19-7-1 (c) (6). It will then be the duty of the trial judge to hear evidence regarding each parent’s relationship with the child and to determine the percentage of the judgment to be awarded to each parent. Id.

We appreciate Phyllis Hulsey’s concern that, if allowed to intervene, Paul Hulsey will attempt to control the litigation and will make the trial of the case difficult. This court, however, will not prevent Paul Hulsey from intervening where the legislature has given him an unconditional right to do so. We also note that the trial court has the duty to control the trial of the case and to ensure a fair trial to all parties. Westerfield v. State, 176 Ga. App. 195, 197 (3) (b) (335 SE2d 702) (1985). The trial court also has the duty to provide for the orderly movement and disposition of all matters assigned to it. Ford Motor Credit Co. v. Williams, 194 Ga. App. 405, 406 (1) (390 SE2d 640) (1990). In exercising its discretion in handling these responsibilities, it is assumed that the trial court will require the trial to be conducted in such a way that ensures Phyllis Hulsey’s concerns do not become reality.

Decided February 16, 1994

Reconsideration denied March 3, 1994

H. Michael Dever, R. Andrew Fernandez, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Charles B. Tanksley, G. Robert Howard, for appellee.

2. Paul Hulsey contends that the trial court erred in declaring a forfeiture or termination of his parental rights in the deceased child. Contrary to Paul Hulsey’s claim, the trial court in its order does not terminate or declare a forfeiture of Paul Hulsey’s rights in his deceased child. The court merely states that, because Paul Hulsey has failed to support his child, he has forfeited his right to participate in this case. However, as discussed in Division 1 above, Paul Hulsey does have a right to participate in the proceeding. This issue is therefore moot.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1961, A93A1962.
    In the Interest of D. Q. H. et al., children.
    (441 SE2d 411)
   McMurray, Presiding Judge.

The State filed delinquency petitions against D. Q. H. and M. C. in the Juvenile Court of Hall County alleging they committed an act which, if it had been committed by an adult, would have constituted aggravated child molestation. D. Q. H. and M. C. moved to suppress statements they made to the police, as well as the results of medical tests that were performed upon them. The juvenile court granted the motions to suppress and the State appealed.

The juvenile court did not enter a final order in either case. To the contrary, the juvenile court continued these cases pending the outcome of these appeals. Moreover, the juvenile court did not certify its ruling for immediate review and the State did not pursue an interlocutory appeal. Rather, the State appealed directly. Held:

OCGA § 5-7-1 provides, in part: “An appeal may be taken by and on behalf of the State of Georgia from the superior courts and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases in the following instances: ... (4) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.” This provision is to be construed narrowly, against the State, and it is not to be extended by judicial construetion. State v. McIntyre, 191 Ga. App. 565 (382 SE2d 669); State v. Hollomon, 132 Ga. App. 304, 306 (208 SE2d 167).

Relying upon OCGA § 5-7-1, the State asserts it is entitled to appeal directly from the juvenile court’s suppression orders.

Narrowly construing OCGA § 5-7-1, we must conclude that it does not authorize the State to directly appeal in this case. Why? Because the statute only allows the State to appeal directly in criminal cases and this case is a delinquency case, i.e., a civil case. See Hampton v. Stevenson, 210 Ga. 87 (1) (78 SE2d 32); Whitman v. State, 96 Ga. App. 730, 732 (2) (101 SE2d 621). See also T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (212 SE2d 650) (juvenile court is civil court and adjudication of delinquency is not a conviction of a crime). If the legislature intended for the State to appeal directly in delinquency cases, it could have so specified; but it did not do so, and we are not empowered to extend the statute to cover cases of this kind. State v. Gribble, 169 Ga. App. 446 (313 SE2d 720).

“ ‘The order appealed from ... is not one of the instances in which the state is granted the right of appeal . . . The General Assembly having placed the specific conditions upon appeals by the state in criminal cases which are contained in [OCGA § 5-7-1], we will not by judicial construction extend the right of appeal beyond these instances . . .’ State v. Hollomon, 132 Ga. App. 304, 305-6[, supra].” State v. Gribble, supra.

Appeals dismissed.

Johnson and Blackburn, JJ., concur.

On Motion for Reconsideration.

Citing In the Interest of R. J. C., 210 Ga. App. 286 (435 SE2d 759), and In the Interest of S. B., 207 Ga. App. 60 (427 SE2d 52), the State points out that this court previously decided juvenile cases on the merits even though the State appealed directly pursuant to OCGA § 5-7-1 (4). In that vein, the State again asserts that this court has jurisdiction to entertain this appeal. We disagree.

The fact that this court previously determined the merits of appeals such as this counts for nought. As it is said: “[A]s against an attack on the judgments of this court as settling the rights of the parties, as there presented for adjudication, a presumption of law exists that in those cases this court of its own motion considered the question of its jurisdiction, and as between the parties the decisions became binding as the law of the case. But this presumption of law does not have the effect of clothing these judgments with the character of judicial precedents which, under the principle of stare decisis, bind this court in subsequent cases. . . . ‘The most that can be said is that the point was in the cases if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’ ” Albany Fed. Savings &c. Assn, v. Henderson, 198 Ga. 116, 134 (31 SE2d 20).

Decided January 25, 1994

Reconsideration denied March 4, 1994.

Lydia Sartain, District Attorney, Jessica V. Moss, Assistant District Attorney, for the State.

Adam & Talley, James M. Adam, for D. Q. H.

Thompson & Fox, David A. Fox, Robert A. Pinel, for M. C.

Motion for reconsideration denied.