text:
    A97A1756.
    BUFFINGTON v. THE STATE.
    (492 SE2d 762)
   Birdsong, Presiding Judge.

Thomas Buffington II appeals his conviction of possession of LSD, possession of methamphetamine, suspended license, driving without a license, and no insurance. Appellant’s sole enumeration is that the trial court erred in denying appellant’s motion to suppress, because the arresting deputy did not have an articulable suspicion to conduct a traffic stop of appellant’s vehicle.

Shortly before 4:00 a.m., the Gilmer County Sheriff’s Office received a call complaining about a vehicle causing a disturbance at Carter’s Lake. A radio dispatch was transmitted to Deputy Sheriff Daves who was informed that the anonymous phone call had been received from someone at the Carter’s Lake Marina reporting that an older model white pickup truck with a noisy exhaust was causing a disturbance and squealing tires in the marina parking lot. The dispatch call was also transmitted to Deputy McArthur who testified he was informed that the older model, white pickup had loud mufflers and was “running up and down the highway [in the marina area] making a lot of noise” and causing a disturbance. At the time of the call, Deputy Daves was about five or six miles from the marina parking lot; it took him seven to ten minutes to get there. Both deputies responded to the call arriving at the marina at approximately 4:00 a.m. Deputy Daves testified that traffic in this area was “almost zero.” Deputy McArthur recalled no other vehicles being on the road. The deputies remained at the marina area for approximately five minutes. They then proceeded to the dam area; the dam was one mile from the marina. Two or three minutes later, Deputy Daves, who was traveling toward the dam on a one-lane Corps of Engineers’ road, stopped so an approaching vehicle could pass. The approaching vehicle was about one-half mile from the marina when it passed. It was the only other vehicle being operated in that vicinity. The approaching vehicle was an older, white pickup truck; it appeared to be a pre1980 model and its exhaust was so loud that it caused the floor panel of the patrol car to shake as it passed. Deputy Daves pursued and conducted a traffic stop of the white pickup truck. The main reason he stopped the truck was because it was a white, late-model pickup truck; however, he also stopped the vehicle because it had loud exhausts “[L]oud exhausts is one reason for a traffic stop”; however, he did not charge appellant for an exhaust violation. Deputy Daves further testified that he probably would have stopped any older model, white truck he saw in the area, as it would match the description of the dispatch call. Appellant was determined to have been driving the truck which at the time of the stop was being operated on a public road crossing over Carter’s Lake Dam. The results obtained from the forthcoming investigative detention resulted in appellant’s arrest and subsequent conviction. The traffic stop occurred in a rural area. Held:

“Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. A Terry stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 643-644 (484 SE2d 743). “[T]he existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials”; a detaining officer is “entitled to rely on the information given him by a fellow officer in the formation of an articulable suspicion.” Fritzius, supra at 646.

“It is a well-established appellate rule that on appeal the evidence must be viewed in the light most favorable to support the verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Thus, in determining whether the State met its burden of proof that the search and resulting seizure were legal, this Court must view the evidence of record in accordance with the dictates of Grant, supra. In determining the legality of a search, this Court can consider all evidence of record, including that found in pretrial, trial and post-trial proceedings.” Fritzius, supra at 645.

Appellant cites various cases, including Vansant v. State, 264 Ga. 319 (443 SE2d 474), where the Supreme Court or this Court has found insufficient evidence, resulting from information supplied by an anonymous caller, to support a finding of articulable suspicion. These cases are distinguishable from the facts of this case and are not controlling.

Construing the evidence in the light most favorable to the verdict as we are required to do (Grant, supra), the record establishes that the detaining deputy had probable cause to believe that the pickup had committed a traffic violation in his presence by having a faulty exhaust. OCGA § 40-8-71 (a) pertinently provides that “[e]very motor vehicle shall at all times be equipped with an exhaust system, in good working order and in constant operation. . . .” Violation of this provision constitutes a misdemeanor. OCGA § 40-8-221. The detaining officer testified that, although he primarily stopped the vehicle because it matched the vehicle description provided by the dispatcher, it was also a factor in his stopping of the vehicle that it had loud exhausts. It is immaterial whether the traffic stop was made mainly because the truck matched the radio dispatch description. In Whren v. United States, 517 U. S. _ (116 SC 1769, 135 LE2d 89), the United States Supreme Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the vehicle absent some additional law enforcement objective. Compare Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) and State v. Holler, 224 Ga. App. 66, 70 (2) (a) (479 SE2d 780) (physical precedent only). The Whren rule applies in Georgia. See, e.g., Jackson v. State, 267 Ga. 130, 131 (5) (a) (475 SE2d 637). Even if the stopping of appellant for the exhaust violation had been pretextual, the stop still would not have violated constitutional principles as appellant committed the exhaust violation in the officer’s presence thereby providing the officer with probable cause for the traffic stop. Whren, supra. (Although Whren, supra, was decided after the date of the incident in this case, we apply the law as it exists at the time of our judgment in the disposition of appeals of this nature. Cheeley v. Henderson, 261 Ga. 498 (1) (405 SE2d 865).)

Additionally, even without applying the principles of Whren, supra, the result remains the same. “ Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future'behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.’ ” Easterlin v. State, 216 Ga. App. 112, 113 (452 SE2d 801). While the description of the color and type of vehicle was per se too general, the officers were also informed that the vehicle had a very loud exhaust system and was causing a disturbance by its noise when running up and down the highway. This description provided a basis for predicting future conduct of the suspect driver. The detaining officer personally observed that appellant’s vehicle had a very noisy exhaust system and that the vehicle, which matched the general description provided by the dispatcher, was being driven less than a mile from the marina area. This factual observation, confirming the reported predictable behavior, formed an adequate basis to confirm the anonymous tipster’s reliability. Further, the time of the morning, the rural nature of the area, and the lack of any other traffic whatsoever in the vicinity were additional factors properly considered by the detaining officer in the formulation of a reasonable articulable suspicion. Nor does it matter that appellant was not charged with the exhaust violation. The fact that the officer did not charge defendant with the observed traffic offense but only with the more serious offenses revealed after the traffic stop is immaterial. State v. Adams, 186 Ga. App. 87, 88 (366 SE2d 326); State v. Wright, 221 Ga. App. 202, 205 (3) (470 SE2d 916) (physical precedent only). It was in the detaining officer’s discretion which offenses, if any, he would cite appellant for violating. Id.

Decided October 14, 1997.

Steven A. Cook, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

The trial court did not err in denying the motion to suppress. Whren, supra; compare Easterlin, supra; State v. Butler, 224 Ga. App. 397 (480 SE2d 387).

Judgment affirmed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A1144.
    SEMELIS v. THE STATE.
    (493 SE2d 17)
   Ruffin, Judge.

A jury found Frenel Semelis guilty of trafficking in cocaine and misdemeanor possession of marijuana. Semelis appeals, challenging the denial of his motion to suppress and the sufficiency of the evidence. For reasons which follow, we affirm.

1. “ ‘In reviewing a trial court’s decision on a motion to suppress^] . . . our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we ... consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.’ [Cits.]” (Emphasis omitted.) State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

Viewed in this light, the evidence of record shows that Camdén County Deputy Sheriff Jason Merrow was “running radar” on Interstate 95 when he stopped Semelis for speeding. Deputy Merrow asked Semelis for his license and registration and to exit the car. Semelis complied, and Deputy Merrow explained the reason for the stop. In response to Deputy Merrow’s questioning, Semelis, who is a migrant farm worker, explained that “he was headed to New York to pick apples.” After finding Semelis’ license was valid and that Semelis had no outstanding warrants on him, Deputy Merrow returned the paperwork to Semelis, gave him a verbal warning, and “told him he was free to go.”

According to Merrow, however, due to Semelis’ excessive nervousness, he asked him “if he wasn’t in a big hurry, could [he] run something by him real quick.” Merrow explained to Semelis that they had a problem on Interstate 95 with people trafficking various items of contraband and asked Semelis if he had any such items in his vehicle. Semelis told Deputy Merrow he possessed no such contraband, but Merrow asked Semelis for his “verbal consent to search the vehicle and the contents of the vehicle.” Deputy Merrow testified that he “made sure [Semelis] understood what the vehicle and the contents of the vehicle meant, that [he] wanted to search all the compartments inside the vehicle.” According to Merrow, Semelis stated that he understood and consented to the search. When a backup Deputy arrived, Deputy Merrow began the search.

During the search, Deputy Merrow noticed that one of the door vents was missing some screws, and that the only screw holding the vent did not appear the same as other screws in the vehicle. Merrow suspected that something might be concealed behind the vent and obtained a screwdriver to remove the vent. Upon removing the vent, Deputy Merrow discovered a black garbage bag inside the vent cavity. Merrow pulled the bag from the cavity and looked inside where he found numerous clear bags containing an off-white, chunky substance that was later determined to be 472.6 grams of cocaine. The bag also contained a green, leafy substance that tested positive for marijuana.

Prior to trial, Semelis moved the court to suppress evidence of the cocaine found in the search. Semelis argued that the consent was invalid because Deputy Merrow never informed him that he could refuse to consent or terminate the search at any time, and that in any event, the search exceeded the scope of any consent that was given. He asserts as error the trial court’s denial of his motion.

(a) The evidence showed that Semelis’ consent to search the vehicle was valid under the Fourth Amendment. Contrary to Semelis’ contention, Deputy Merrow was not required to inform him that he had a right to refuse the request to search or terminate the search. While the giving of such information “ ‘is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.’ [Cit.]” Ohio v. Robinette, 519 U. S. _ (117 SC 417, 136 LE2d 347) (1996). “The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘(v)oluntariness is a question of fact to be determined from all the circumstances!.]’ [Cit.]” Id. at _. These circumstances include “ ‘the age of the accused, his education and intelligence, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors. Schneckloth v. Bustamonte, 412 U. S. 218, 229 (93 SC 2041, 36 LE2d 854) (1973); [cit.].’ [Cit.]” State v. Jackson, 201 Ga. App. 810, 815 (2) (412 SE2d 593) (1991).

In this case, the evidence shows that Semelis was a 28-year-old migrant farm worker who immigrated to the United States from Haiti approximately 11 months prior to the traffic stop. There is no direct evidence showing Semelis’ education level, but the record shows he is illiterate, speaks Creole and has some problems speaking and understanding English. In fact, the trial court ordered the appointment of an interpreter to assist counsel in his defense of Semelis. There is nothing indicating that the initial traffic stop was abnormally long or that Semelis was subjected to any prolonged questioning or physical punishment. Finally, although Deputy Merrow did not inform Semelis of his constitutional rights, after he returned the license and other documentation to Semelis, he told Semelis that “he was free to go.”

Although we are seriously troubled by the fact that the trial court found that Semelis required the use of an interpreter at trial, and yet was deemed by the trial court to understand Deputy Merrow’s statements during the traffic stop, we are constrained by the “any evidence” standard to adopt the trial court’s factual finding that Semelis voluntarily consented to a search of his vehicle and all its compartments. Despite Semelis’ apparent difficulty understanding English, as stated above, Deputy Merrow unequivocally testified that he “made sure [Semelis] understood what the vehicle and the contents of the vehicle meant, that [he] wanted to search all the compartments inside the vehicle.” Deputy Merrow also testified that Semelis stated that he understood the request to search when he consented to the search. As the factfinder on the motion to suppress, the trial judge was uniquely situated to observe Deputy Merrow’s demeanor and to judge the credibility of the testimony presented. See Tate v. State, 264 Ga. 53, 57 (3) (440 SE2d 646) (1994). In light of this evidence, in combination with the other factors discussed above, we conclude that the trial court did not clearly err in finding that Semelis voluntarily consented to Deputy Merrow’s search of the vehicle. See id.; Robinette, supra; Brodie, supra; Jackson, supra.

(b) We also find that the search did not exceed the scope of Semelis’ consent. In Lopez v. State, 184 Ga. App. 31 (1) (360 SE2d 722) (1987), we reviewed similar circumstances where the defendant consented to a search of his car, and the investigating officer removed an interior component during the ensuing search. In Lopez, as in this case, a trooper removed a vent by extracting a screw. We ruled that in light of the trial court’s discretion in determining fact questions, we could not say as a matter of law that the search was overly intrusive. Id. at 32. Similarly, in Garcia v. State, 207 Ga. App. 653 (1) (428 SE2d 666) (1993), the defendant consented to let police search his car, and during the search an officer removed a loosely connected radio panel from the dashboard. We found it significant that the defendant “did not limit [his] consent merely to looking inside without authorizing the touching or moving of any of the interior components thereof.” Id. at 656. In light of the broad nature of the consent and the minimal force used to remove the panel, we found that the removal did not exceed the reasonable parameters of the consent as a matter of law. Id.

Decided October 15, 1997.

Clyde M. Urquhart, for appellant.

As we found in Division 1 (a), there is evidence in this case showing that Semelis consented to a search of all the compartments inside his vehicle. There is no evidence that the deputy did anything more than extract the screw and remove the vent cover before locating the bag containing the cocaine and marijuana. Accordingly, we cannot say as a matter of law that the search was overly intrusive or that the trial court erred in denying Semelis’ motion to suppress on this ground. See Lopez, supra; see also United States v. Flores, 63 F3d 1342, 1362 (5th Cir. 1995) (extracting two screws and removing vent covers from interior panel did not exceed scope of consent to “search the ‘vehicle’ including the ‘containers and contents.’ ”). Compare Amato v. State, 193 Ga. App. 459 (1) (388 SE2d 54) (1989) (officer’s action in pulling off and breaking vent cover exceeded scope of consent for officer to look in passenger compartment (physical precedent only)).

2. Viewed in a light most favorable to support the verdict, the evidence presented was sufficient for a rational trier of fact to find beyond a reasonable doubt that Semelis was guilty of the charged offenses. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although Semelis seemingly argues that the car dealer from whom he purchased the car approximately three months prior to the stop had equal access to the vehicle, it was for a jury to decide whether these circumstances created a reasonable doubt. See Moon v. State, 194 Ga. App. 777 (2) (392 SE2d 19) (1990).

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

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


author: Smith, Judge.

text:
    A97A1655.
    FRANKLIN COUNTY v. AYERS.
    (493 SE2d 28)
   Smith, Judge.

The central issue in this appeal is whether the trial court in a condemnation action erroneously permitted the jury to consider evidence concerning consequential damages. We conclude that this issue was raised by the evidence presented, and we affirm the jury’s verdict in favor of the condemnee, Henry Randolph Ayers.

Franklin County filed a petition to condemn a 7.54 acre parcel of land owned by Ayers to expand a landfill adjoining the property. Following a hearing before a special master, Ayers was awarded $21,000 as actual market value of the property and $79,000 as consequential damages to the remaining property. Franklin County appealed this award to superior court. The case proceeded to trial, and the jury awarded Ayers $15,000 as present market value of the property condemned and $67,000 as consequential damages. In four enumerations of error Franklin County contends the trial court erroneously refused to strike the testimony of Ayers’s expert concerning consequential damages and erroneously instructed the jury on this issue.

Resolution of these contentions turns on whether the issue of consequential damages was raised by the evidence. In this case, whether the jury was authorized to consider evidence of consequential damages depends on whether the 7.54 acres sought to be condemned was contiguous to other property owned by Ayers. See generally Seckman v. Ga. Power Co., 155 Ga. App. 204, 205 (270 SE2d 328) (1980).

Franklin County contends the 7.54 acre tract was not contiguous to the remainder of Ayers’s property and therefore consequential damages were not authorized. “The word contiguous when applied to ownership of land means ‘to touch,’ as where tracts of land corner one another. [Cit.]” Id. at 205. The evidence was in conflict as to whether the 7.54 acres sought to be condemned “touched” other property owned by Ayers. Two of Franklin County’s witnesses, a county commissioner who previously worked as a land surveyor, and the county surveyor both testified that the 7.54 acres did not touch any other property belonging to Ayers. But Ayers testified that the 7.54 acres adjoined the remainder of his property. He stated that “it’s always been one piece, one parcel. ... It all joins.” He stated that the 7.54 acres was purchased two years after the remainder of the land ánd “was all made one tract.” We note the testimony of Franklin County’s appraiser that, until told otherwise by Franklin County’s attorney outside the courtroom, he initially believed that the 7.54 acres touched a portion of property owned by Ayers.

The jury heard the evidence and, during deliberations, asked to view the property, specifically with the aim of determining whether two parcels or only one existed. After viewing the land sought to be condemned, the jury returned its verdict which is at issue here. We cannot say that the issue of whether the 7.54 acres touched other property owned by Ayers was so undisputed as to require the court to withhold from the jury consideration of consequential damages. It is true that Franklin County presented testimony from experienced, trained surveyors stating their opinions as to the boundaries of the landfill, the 7.54 acres, and the remainder of the property. It is obvious that Ayers was not so trained. But it was the jury’s province to weigh the evidence and assess witness credibility. Regardless of whether Franklin County’s witnesses gave their opinions as lay or as expert witnesses, the jury was entitled to give little or no weight to their testimony and to believe that of Ayers. See generally Adsitt v. State, 248 Ga. 237, 239 (2) (282 SE2d 305) (1981) (jury not obligated to accept opinion evidence of surveyors and reject opinion evidence of law enforcement officials concerning location of county line); Ford Motor Co. v. Hanley, 128 Ga. App. 311, 315 (2) (196 SE2d 454) (1973). Because some evidence was presented that the 7.54 acres adjoined another portion of land owned by Ayers, the trial court was authorized to permit the jury to hear evidence from Ayers of consequential damages and to charge the jury on this issue. See generally Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991) (trial court’s duty to charge jury on applicable law to issues where any evidence presented on which to support the instruction).

Judgment affirmed.

Beasley, J, and Senior Appellate Judge Harold R. Banke concur.

Decided October 15, 1997.

Green & Ashworth, Douglas G. Ashworth, for appellant.

Andrew J. Hill, Jr., Charles D. Strickland, for appellee.

       Franklin County moved to strike the testimony of Ayers’s appraiser concerning consequential damages after his testimony was completed. Franklin County ignores the fact that it too introduced evidence concerning consequential damages before Ayers presented his evidence. Although Franklin County presented evidence that consequential damages were zero, while Ayers presented evidence that the remainder of his property suffered substantial damages, Franklin County cannot be heard to complain when it introduced evidence on the same issue.


author: Birdsong, Presiding Judge.

text:
    A97A2240, A97A2241.
    BOARD OF COMMISSIONERS OF EFFINGHAM COUNTY et al. v. FARMER; and vice versa.
    (493 SE2d 21)
   Birdsong, Presiding Judge.

This suit arises from the termination of appellee/cross-appellant, William A. Farmer, as the County Administrator of Effingham County. Following his termination, Mr. Farmer brought suit averring violation of his rights to procedural due process, a state law breach of contract claim, and state law slander claims against two of the individual commissioners.

In Case No. A97A2240, appellants/cross-appellees Board of Commissioners of Effingham County et al. appeal from the order of the superior court granting partial summary judgment to appellee Farmer on his federal due process claim (42 USC § 1983), specifically from its holding that Farmer’s procedural due process rights were violated between June 7, 1994 and July 25,1994, and from the denial of appellants’ motion for summary judgment on Farmer’s due process claim. In Case No. A97A2241, cross-appellant Farmer appeals from the order granting cross-appellees’ (Board and individual Commissioner’s) motion for summary judgment in part and denying cross-appellant’s motion for summary judgment in part; specifically cross-appellant Farmer appeals from the grant of summary judgment in behalf of cross-appellees as to the slander claims and as to the Board’s lack of liability for his termination subsequent to July 25, 1994. Held:

Case No. A97A2240

1. Appellants contend the trial court erred in granting partial summary judgment to appellee Farmer and denying summary judgment to appellants on the federal procedural due process claim brought pursuant to 42 USC § 1983. We agree.

The parties are in agreement that appellee Farmer was vested with a property interest in continued employment, under Georgia law, because his employment status could only be terminated for cause. Jones v. Chatham County, 223 Ga. App. 455, 456, n. 1 (477 SE2d 889). Where it is established that a protected property interest exists, federal law governs what minimal due process requirements exist under the existing situation. See Shaw v. Oconee County, 863 FSupp. 1578, 1581 (6) (M.D. Ga.). Farmer, as county administrator, could only be terminated for cause; he thus enjoyed a federally protected property interest in his employment. Jones, supra.

Appellee Farmer was employed as county administrator for Effingham County, Georgia, from June 8, 1993 until June 7, 1994 (the date his employment was terminated). This termination was accomplished notwithstanding the advice of the assistant county attorney to give appellee three days’ oral or written notice of termination.

On June 7, 1994, the Board of Commissioners passed a motion to abolish the position of county administrator, effective in 30 days, however, this motion was rescinded and a motion was spontaneously made and passed to terminate Farmer’s employment as county administrator. In response, Farmer stated that he considered the action inappropriate and did not desire to comment further. A motion was then made and passed to give Farmer 30-days’ salary.

On June 16, 1994, the Board voted to uphold Farmer’s termination. Subsequently, the county attorney sent Farmer a notice of final disciplinary action listing five reasons for the termination. The notice confirmed Farmer’s termination effective June 7, 1994, and informed him of his right to appeal to the Board pursuant to the personnel policy. On June 20, 1994, Farmer filed notice of appeal. On July 11, 1994, the Board met in special session to hear Farmer’s appeal. Farmer was accorded a public hearing and the opportunity to present witnesses and other evidence. At Farmer’s request, the Board then met in executive session to discuss the charge that Farmer was unable to communicate effectively with other county officials. The Board took the matter under advisement. On July 25, 1994, the Board reaffirmed in writing its decision to terminate Farmer.

The type of § 1983 claim here at issue is a claim brought for a violation of procedural due process. See generally McKinney v. Pate, 20 F3d 1550 (11th Cir.). Procedural due process in cases of this nature requires oral or written notice of the charges and some type of pre-termination hearing which provides an explanation of the employer’s evidence and an opportunity for the employee to present his side of the story before employment termination. See generally Jones, supra at 456 (2); Shaw, supra at 1581 (9)-(12).

However, in adjudicating procedural due process violation claims, “the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U. S. 113, 125 (119 SC 975, 108 LE2d 100). That is, “[t]he constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” (Emphasis supplied.) Id. at 126; accord McKinney, supra at 1557 (6) and 1560.

Procedural due process generally requires some type of hearing and some type of notice before termination of employment. Zinermon, supra at 127. In some situations, however, such as those where quick action by the State is necessary or where it is otherwise impractical to provide any pre-deprivation process, due process is satisfied where the State’s procedures provide for a post-deprivation hearing, or provide a common-law tort remedy for erroneous deprivation. Zinermon, supra at 128. Pre-deprivation hearings are not required, for example, where the deprivation suffered is the result of a random and unauthorized act by a State employee, as in these cases, the deprivation is “not a result of some established state procedure and the State cannot predict precisely when the loss will occur.” Id. at 129. In this case, the deprivation appellee sustained was the result of a random, unauthorized act by the Board. A random, unauthorized action can result from negligent or intentional acts by individual government officials, so long as the officials are not “acting pursuant to any established state procedure.” Zinermon, supra at 130. There existed no way for the State or County to predict the events leading to the maverick termination action that occurred in this case and, in this particular instance, to provide for a meaningful hearing procedure that would preclude such type of deprivation action. The Commissioners’ action was random and unauthorized as opposed to action resulting from adherence to established governmental procedure. In this context, the individual Commissioner’s ability to foresee the deprivation is of no consequence; the proper inquiry is whether the state is in a position to provide for predeprivation process, under the attendant situation (id. at 130), and we find it was not. Thus, an adequate post-deprivation remedy would provide the requisite procedural due process in this situation thereby precluding the ripening of a procedural due process violation. Id.; compare Bell v. City of Demopolis, Ala., 86 F3d 191 (11th Cir.); Narey v. Dean, 32 F3d 1521 (11th Cir.); McKinney, supra. (Burch v. Apalachee Community &c. Svcs., 840 F2d 797 (11th Cir.) and Fetner v. City of Roanoke, 813 F2d 1183 (11th Cir.), which pre-date McKinney, supra, are distinguishable and not controlling.) It is within this legal framework that we examine this termination procedure for constitutional adequacy. Zinermon, supra at 126 (examine procedural safeguards of termination procedure and any post-deprivation remedies provided by statute or tort law).

The policy pertaining to notice of proposed disciplinary action pertinently provides for a mandatory three-day oral or written notice of the proposed disciplinary action; the right to respond orally, in writing, or both, to the pending charges to the reviewing officials; and additional investigation may be conducted by the reviewing official. If the adverse personnel action continues, the policy provides for notice of final disciplinary action and an appeal procedure. Under this procedure the reviewing authority issues final notice of determination of final action which includes, inter alia, notice of final disciplinary action to be taken; the specific charges or reasons for the adverse action; the effective date on which final action is taken; advice to the employee of right to request a hearing, within ten working days after the effective date, before the Board of Commissioners, or to a committee appointed by them, by filing a written appeal; advice to employee as to his right to be present and to have a representative present at the hearing, to present testimonial and documentary evidence, and to cross-examine persons testifying against him. This procedure is facially adequate to provide Farmer with the requisite procedural due process, that is, adequate notice and opportunity for some form of hearing providing an opportunity to be heard. See generally Zinermon, supra at 127; Shaw, supra at 1581 (6) & (8) (these safeguards are all that is required to provide adequate procedural due process, as the Fourteenth Amendment Due Process Clause is not a guarantee against incorrect or ill-advised personnel decisions).

Pretermitting whether Farmer was denied a meaningful pre-termination hearing before an unbiased reviewing authority is whether his failure to follow existing state judicial review remedies prevents his claim of a procedural due process violation from becoming actionable. We hold that it does. A procedural due process right violation is not shown unless and until the State fails to provide due process. Zinermon, supra at 123; Merritt v. Brantley, 936 FSupp. 988, 991 (S.D. Ga.) (flaw is not the failure to exhaust but the failure to show absence of an adequate state remedy). The burden is on the plaintiff to plead and prove that the State did not provide him with an adequate post-deprivation remedy. Merritt, supra at 991.

OCGA § 5-4-1 (a) pertinently provides: “The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers,” except in certain cases not here applicable. The trial court, however, erroneously concluded that certiorari would not lie in this case, because the Commission implemented the personnel policy in such a way that Farmer did not receive a hearing before a disinterested adjudicator. “In determining whether a writ of certiorari is the appropriate method of review we must decide whether the hearing officer whose order is being reviewed exercised judicial or quasi-judicial powers”; the particular function performed at the hearing must be evaluated. Mack II, Inc. v. City of Atlanta, 227 Ga. App. 305, 307 (1) (489 SE2d 357). Applying the Mack II test in its totality and considering all factors therein deemed relevant, we find that the hearing authority exercised quasi-judicial power. Basically, “[t]he hearing [body] engaged in a decision-making process, which is ‘akin to a judicial act.’ ” Id. at 310 (1). “In entertaining [Farmer’s] appeal the [Board of Commissioners] clearly ‘performed the function of a civil service board. It has been generally held that the rulings of such tribunals are quasi-judicial in nature.’ ” Salter v. City of Thomaston, 200 Ga. App. 536, 537 (409 SE2d 88), citing Raughton v. Town of Fort Oglethorpe, 177 Ga. App. 171 (338 SE2d 754); but compare Ga. Farm &c. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 578 (1) (306 SE2d 924) (hearing regarding liability for business taxes). Further, procedural “ ‘due process (does not) require the state to provide an impartial decisionmaker at the pre-termination hearing. The state is obligated only to make available “the means by which (the employee) can receive redress for the deprivation.”’” McKinney, supra at 1562 (18); compare Swafford v. Dade County Bd. of Commrs., 266 Ga. 646, 647 (2) (469 SE2d 666); Southeastern Greyhound Lines v. Ga. Public Svc. Comm., 181 Ga. 75 (181 SE 834) (revocation of a certificate of public convenience) is distinguishable. The state courts of Georgia provided an adequate post-deprivation remedy to Farmer; his claims of lack of timely and specific notice, lack of an adequate pre-termination hearing and opportunity to be heard, and lack of a disinterested and unbiased decisionmaker all could be addressed before a court of this state had appellant chosen to utilize this available post-deprivational judicial remedy. The trial court erred in granting Farmer summary judgment in part and denying appellant Board complete summary judgment on the § 1983 claim. Mack II, supra; compare Atlanta City School District v. Dowling, 266 Ga. 217 (466 SE2d 588); Jones, supra; Salter, supra; Narey, supra; McKinney, supra.

2. In view of our holding in Division 1, above, the individual defendants were entitled to summary judgment as to the § 1983 claims.

Additionally, the trial court erred in denying the individual defendants’ motion for summary judgment on grounds of qualified immunity. “In all but the most exceptional cases, qualified immunity protects government officials performing discretionary functions from the burdens of civil trials and from liability for damages. [Cit.] Public officials are entitled to qualified immunity from ‘liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Cit.] Therefore, in order to succeed, the plaintiff in a civil rights [§ 1983] action has the burden of proving that a reasonable public official could not have believed that his or her actions were lawful in light of clearly established, law. [Cit.]” (Emphasis supplied.) Harris v. Bd. of Ed. &c., 105 F3d 591, 595 (11th Cir.) The test for determining whether a defendant is protected from suit by reason of qualified immunity is the objective reasonableness of the defendant’s conduct as measured by reference to clearly established law; in this regard, a reasonably competent public official should know the established law governing his conduct. Gardner v. Rogers, 224 Ga. App. 165, 167 (480 SE2d 217). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter v. Alabama A & M Univ. &c., 28 F3d 1146, 1149 (8) (11th Cir.). “ ‘General propositions have little to do with the concept of qualified immunity.’ [Cit.] ‘If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.’ [Cits.] . . . For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” (Emphasis supplied; last emphasis in original.) Lassiter, supra at 1150 (10-11). At the time of this incident, there existed no law in concrete and factually defined context that would have compelled the Board to conclude that its actions violated federal law in the existing circumstances; particularly as adequate post-deprivation remedies appeared to exist and the Board, although terminating Farmer, voted at the time to give him 30-days’ salary though he was to be relieved of duties immediately. Thus, we conclude that appellee failed, inter alia, to carry its burden under Harris, supra.

Case No. A97A2241

3. In view of our holding in Division 1, above, cross-appellant’s first enumeration of error is without merit. Cross-appellees/appellants were entitled to a grant of summary judgment as to cross-appellant’s § 1983 claim for wrongful termination.

4. The trial court did not err by granting Commissioner Allen’s and DeLong’s motion for summary judgment as to cross-appellant’s slander claims. The statements attributed to the two commissioners “were not defamatory because they were expressions of opinion concerning plaintiff’s professional abilities.” Fuhrman v. Eds Nanston, Inc., 225 Ga. App. 190 (2) (483 SE2d 648). “The expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not slanderous. The relative abilities of [a county administrator] is patently such a matter, wholly subjective and not capable of proof or disproof. [Cross-appellees] here are- entitled to express such opinions. An assertion that cannot be proved false cannot be held slanderous. A speaker cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be.” (Citations and punctuation omitted.) Elder v. Cardoso, 205 Ga. App. 144, 145 (1) (421 SE2d 753). Moreover, the mere fact that one of the commissioner’s statements to the effect that Farmer was hurting the county as a whole, was made to a newspaper under unestablished circumstances does not change this rule. Not only are commissioners expected to publicly account for their official actions, the statement itself clearly was not capable either of being proved or disproved. Compare Furhman, supra; Elder, supra; Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745 (337 SE2d 770). The trial court did not err in granting crossappellees’ motion for summary judgment as to the slander claims.

Decided October 15, 1997.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Gregory T. Carter, for appellants.

Buchsbaum & Lowe, Alan S. Lowe, for appellee.

Judgment affirmed in Case No. A97A2241. Judgments affirmed in part and reversed in part in Case No. A97A2240.

Ruffin and Eldridge, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A97A1297.
    THE STATE v. JEWELL.
    (492 SE2d 706)
   McMURRAY, Presiding Judge.

Defendant Jewell is charged with a violation of the Georgia Controlled Substances Act (possession of cocaine); driving while the alcohol concentration in his blood was more than .10 grams; two counts of driving under the influence; driving without proof of insurance; weaving over roadway (OCGA § 40-6-48 (1)); and driving while license suspended. When stopped on December 24, 1995, defendant was read the implied consent warning found in OCGA § 40-5-67.1 (b) (2) and defendant submitted to a blood test which was positive for benzoylecgonine, a metabolite of cocaine. Defendant filed a motion to suppress the test results with regard to the charge of possession of cocaine on the theory that the use of this information to support the possession charge was beyond the scope of the consent he had given. Defendant’s motion to suppress evidence was granted and the State appeals. Held:

We affirm. The scope of the consent granted by a defendant to a test to determine alcohol or drug content of blood, as well as the legislative intent embodied in the implied consent statutes, may be derived from the wording of the implied consent warning read to a defendant. See in this regard State v. Gerace, 210 Ga. App. 874 (1) (437 SE2d 862), where a defendant was read the then current implied consent warning asking him to submit to a blood test “for purposes of determining alcohol or drug content” and was held to have not consented to use of the blood sample for a deoxyribonucleic acid (DNA) test.

Since the decision in Gerace, the implied consent warning has been amended so that defendant Jewell was requested to submit to a test “for the purpose of determining if you are under the influence of alcohol or drugs.” OCGA § 40-5-67.1 (b) (2). Such representations concerning the nature of the test to be performed or the use to which the test results will be applied are binding upon the State. The decision in Gerace rests upon Beasley v. State, 204 Ga. App. 214, 216-217 (1) (419 SE2d 92), in which a person was charged with possession of cocaine after testing of urine given pursuant to a consent for the purpose of determining bond. “This court held that consent for one purpose does not mean consent for ANY purpose, and therefore the consent was not the product of an essentially free and unrestrained choice.” State v. Gerace, 210 Ga. App. 874, 875 (2), supra. This reasoning also governs the case sub judice. The trial court did not err in granting defendant Jewell’s motion to suppress.

A number of cases cited by the State do not involve a consent premised on the incomplete and thus deceptively misleading information such as received by defendant Jewell, as well as by the defendants in Gerace and Beasley. In Green v. State, 260 Ga. 625, 626 (2), 627 (398 SE2d 360), a defendant was charged with possession of cocaine after providing a urine sample, which tested positive for cocaine metabolites, pursuant to a condition of probation which required that a urine sample be provided to law enforcement officers upon request. The holding in Green is addressed to that defendant’s contention that use of the urine sample against him violated his state constitutional right against self-incrimination and does not involve any issue related to the voluntariness of consent for the taking of the urine sample.

The defendant in Gadson v. State, 223 Ga. App. 342, 345 (4) (477 SE2d 598) signed a broadly worded consent to the taking of a sample of blood after his arrest for assaulting a woman. He later claimed that officers should have explained to him that his blood could be used against him in prosecutions involving other victims of which there were three. This Court rejected this argument, distinguishing Beasley on the basis of the limited consent therein and rejecting an argument that Beasley required an officer to explain all charges which could result from a search in order for the search to be the product of free and voluntary consent. While the Gadson decision referenced a number of consensual statement cases as supporting authority, it may also be distinguished from Beasley and from the case sub judice by reference to the breadth of the consent granted by that defendant, a consent which was totally inclusive and in no respect misleading.

Decided October 2, 1997

Reconsideration denied October 16, 1997

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

Kathleen J. Anderson, for appellee.

Also inapposite on the facts is Jackson v. State, 208 Ga. App. 391, 392 (2) (430 SE2d 781), where the defendant complained that blood test results from her stillborn fetus revealing metabolite of cocaine should have been suppressed. This Court held that no search warrant or consent was required from that defendant for the medical examiner to conduct a blood test on the fetus due to the absence of a privacy claim of constitutional dimensions and also due to the compelling interest of the State in investigating the death of the fetus in light of the defendant’s report that she had been severely beaten prior to the stillbirth.

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A97A2030.
    BRASSELL v. COVENTRY HOLDING GROUP, INC.
    (492 SE2d 687)
   Johnson, Judge.

In Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694 (431 SE2d 712) (1993), this Court held: “[W]hen the garnishee fails or refuses to claim a notice by certified mail given under OCGA § 18-4-91, the 60-day period in which the garnishee may move for modification of a default judgment begins to run on the date of the first attempted delivery of such notice, provided the notice is correctly addressed and contains adequate postage.” Id. at 696-697. In granting this discretionary appeal, we look again at OCGA § 18-4-91 and hold that the 60-day period in which the garnishee may move for modification of a default judgment also begins to run on the date an agent of the addressee signs for the certified mail notice.

Roberta Brassell obtained a judgment against Coventry Holding Group, Inc. and Daniel Willis, jointly and severally, for actual and punitive damages in a malicious prosecution case. The judgment was affirmed on appeal. See Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996). In an effort to collect her judgment, Brassell filed two garnishment actions. This appeal arises out of a garnishment action filed against Coventry Holding Group, naming Coventry, Ltd., as garnishee.

On November 20, 1996, a default judgment was entered in the amount of $91,026 against Coventry, Ltd. On that same day, the Clerk of the DeKalb State Court sent, by first class mail, a copy of the judgment to Brassell’s counsel and to Coventry, Ltd. in care of its registered agent, Michael Cress. Cress’ registered address with the Georgia Secretary of State’s office is 2625 Cumberland Parkway, Suite 400, Atlanta, Georgia 30339. This address is also that of the accounting firm of Gross, Collins & Cress. Cress was a partner in that firm, but is now retired. While he no longer maintains an office at that location, Cress is aware that mail comes to him at that address, and he continues to pick up mail addressed to him there.

On November 22, 1996, Brassell’s counsel sent, by certified mail, a copy of the default judgment to Cress. The envelope was incorrectly addressed to Cress at “625 Cumberland Parkway” instead of “2625 Cumberland Parkway.” The address error had no effect on delivery, however, and on November 25, 1996, the certified letter was picked up and signed for by a courier service and delivered to Cress’ address. Cress received the default judgment when he picked up his mail on December 16, 1996.

On February 13, 1997, within 60 days of December 16, 1996, but not of November 25,1996, Coventry, Ltd. filed a motion to modify the default judgment. In modifying the default judgment, the trial court found that because there was no evidence that Cress refused delivery of the certified letter containing the default judgment or that he otherwise avoided receipt of the letter, the Five Star Steel case cited above was inapplicable. It further ruled that the 60-day period did not begin to run until Cress personally picked up the letter on December 16, 1996. The trial court also found that Coventry, Ltd. held no property of Coventry Holding Group and, therefore, would have owed no money in connection with the garnishment proceeding but for the default judgment.

Although, as the trial court noted, there is no evidence that Cress was attempting to avoid receiving notice of the default, the trial court’s decision ignores the rationale behind the Five Star Steel opinion. Specifically, “OCGA § 18-4-91 is clearly a remedial statute. It provides a second chance for a garnishee who, having been personally served with a summons of garnishment, ignored its call for an answer. A limited window of opportunity is afforded such a garnishee through which it can reduce a debt imposed by its initial inaction. . . . We conclude that it was not the legislature’s intention to allow such a garnishee to unilaterally enlarge the statutory window simply by repeating its failure to act and ignoring the notice. Such a construction would make the certified mail method of notice dependent on a defaulting garnishee’s diligence in retrieving the mail. It would also penalize a plaintiff who has faithfully followed the procedure for notice set forth in the statute. The procedure, having been rejected by the garnishee, would have to be abandoned and another more costly method utilized. Delay would work to the garnishee’s advantage.” (Emphasis supplied.) Id. at 696. In this case, Cress’ failure to check his mail on a regular basis should not be rewarded with an extension of the statutory window within which Coventry, Ltd. can seek to modify the default. We note that Coventry, Ltd. had more than a month from the date Cress picked up the letter in which to timely file its motion, but it failed to do so. Brassell obtained a judgment, filed a garnishment, obtained a default judgment in the garnishment proceeding, and gave proper statutory notice thereof. Accordingly, the facts of this case are controlled by this court’s ruling in Five Star Steel, supra. The trial court erred in considering the motion to modify the default judgment.

Decided October 1, 1997

Reconsideration denied October 16, 1997

Cashin, Morton & Mullins, Harry L. Cashin, Jr., James M. Sherman, O’Neal, Brown & Sizemore, Manley F. Brown, John C. Clark, for appellant.

Mitchell & Shapiro, Kenneth A. Shapiro, for appellee. .

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1694.
    In the Interest of A. D. C., a child.
    (493 SE2d 38)
   Birdsong, Presiding Judge.

Appellant A. D. C. appeals from the judgment of delinquency entered by the juvenile court. The petition for delinquency averred appellant’s commission, as a party to the crime, of manufacturing, distributing, dispensing, or possessing marijuana in, on or near public or private schools in violation of OCGA § 16-13-32.4, by unlawfully possessing with intent to distribute marijuana in, on, or within 1,000 feet of Lovejoy High School, a public school.

Appellant enumerates two errors: the trial court’s failure to grant a motion for directed verdict due to the state’s failure to carry its burden of proof, as mere presence at the crime scene is insufficient to prove appellant was a party to the crime; and the trial court’s failure to acquit appellant since the state failed to carry its burden in a circumstantial evidence case, because a reasonable hypothesis of innocence remained due to lack of evidence and following appellant’s unrebutted testimony. Held:

On appeal the evidence must be viewed in a light most favorable to support the findings and judgment. An appellate court determines sufficiency of the evidence; and it does not weigh the evidence or determine witness credibility. In the Interest of C. T., 197 Ga. App. 300, 301 (2) (398 SE2d 286). Where a juvenile is charged with an offense which would constitute a crime if committed by an adult, the standard of proof in the lower court is “beyond a reasonable doubt.” Id., citing In the Interest of C. D. L., 184 Ga. App. 412 (1) (361 SE2d 527). To warrant an adjudication of commission of such an offense based “on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. However, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769).

Examining the evidence in this case, we find that there exists only a mere suspicion of appellant’s participation as a party in the alleged offense. Marijuana was found on the presence of another boy who refused to testify at appellant’s hearing. Appellant was in the same dressing room with the other boy and departed the area just before the marijuana was discovered on the other boy. However, appellant was not observed standing next to the other boy while he was in the dressing room. Appellant was subsequently searched and found to have $269 in his possession; he was not found to be in possession of any controlled substances. Appellant and his mother testified and offered a reasonable, unrebutted explanation for appellant’s lawful possession of this amount of money. Mere presence at the scene of a crime will not support a finding that a person is a party to a crime. See Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788). Moreover, when a reasonable, unrefuted explanation is tendered for the possession of a significant amount of cash, mere possession of such cash, while being in the general vicinity of another person who has drugs in his possession, will not standing alone establish beyond a reasonable doubt that the party possessing the cash was also a party to the drug offense. Compare Paden, supra at 190 (1). At most the evidence in this case creates a “suspicion” that appellant was involved in the drug offense. It is well-settled that “[a] bare suspicion of the defendant’s guilt is not sufficient.” Diggs v. State, 90 Ga. App. 853, 857 (1) (84 SE2d 611). The evidence in this case was circumstantial; and “[t]he circumstances in this case are certainly reconcilable with the hypothesis of the defendant’s innocence. Circumstances which would authorize a bare conjecture of guilt are not in any case sufficient to warrant a conviction.” Hammond v. State, 15 Ga. App. 471, 473 (83 SE 860).

Decided October 16, 1997.

Jeffrey W. Cofer, for appellant.

Robert E. Keller, District Attorney, Elizabeth N. Scarbrough, Assistant District Attorney, for appellee.

Moreover, the State has conceded “its failure to meet the burden of proof beyond a reasonable doubt.” We commend the State, for its candid assistance to this Court.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A2095.
    In the Interest of J. E. E., a child.
    (493 SE2d 34)
   Birdsong, Presiding Judge.

Appellant minor child, J. E. E., by and through his attorney appeals the order of the Juvenile Court of Cobb County denying the petition to terminate the parental rights of his mother, Barbara Ellen Rowe, to J. E. E.

On January 24, 1994, Ms. Rowe who was then pregnant with J. E. E. was arrested for possession of cocaine and marijuana. She subsequently was convicted for these offenses and was sentenced on November 14, .1995, to ten years incarceration with three years to serve and the remainder on probation.

J. E. E. was born on July 27, 1994; four days after his birth, he was removed from his mother and placed in protective custody because both he and his mother tested positive for cocaine. On August 2, 1994, a hearing was held before the juvenile court and J. E. E. was found to be deprived because of his testing positive for cocaine, his mother’s extensive drug history, her previous incarceration for drug abuse, and her current lack of a verifiable residence. Pursuant to this finding, the juvenile court ordered that J. E. E. remain in the temporary custody of the Cobb County DFCS. On September 21, 1994, a final deprivation hearing was held and it was ordered J. E. E. continue to remain in temporary custody of DFCS; it was also ordered that a comprehensive case plan be prepared. Ms. Rowe was incarcerated in the Cobb County Womens’ Detention Center at this time. J. E. E. has never been returned to his mother’s custody and currently remains in the temporary custody of DFCS. At the September 21, 1994 deprivation hearing, the court ordered Ms. Rowe to (a) undergo alcohol and drug treatment, (b) submit to periodic drug testing and remain drug free for at least one year, (c) undergo psychological evaluation, (d) maintain a stable residence, (e) pay child support in the amount of $200 per month for J. E. E. and his sibling, and (f) consistently visit the child and his sibling. Ms. Rowe did not timely complete any of these ordered conditions. Since August 1994 when J. E. E. was placed in DFCS temporary custody, Ms. Rowe has not worked and has only visited J. E. E. four times. Although asserting a willingness to pay the court ordered child support in full, as of the date of the termination hearing, Ms. Rowe was $3,000 in arrears. On November 1, 1995, Ms. Rowe was also found to be an unfit parent as to another of her children, J. E. R., and her parental rights were terminated as to that child.

Ms. Rowe has the following drug convictions: (a) possession of cocaine with intent to distribute on January 24, 1994, (b) conviction for cocaine possession on November 22, 1994, and (c) cocaine possession on January 17, 1996. Ms. Rowe tendered in evidence a chemical evaluation which identified these additional criminal incidents: (a) possession of drug paraphernalia and bad check writing in 1976, (b) possession of methamphetamine in 1980, (c) stolen and forged checks in 1980, (d) possession of heroin, cocaine and methamphetaxnine in 1980, (e) public drunk and prostitution in 1980, (f) child endangerment and DUI in 1993, and (g) DUI in 1993. During 1980, Ms. Rowe was also involved in several probation and parole violations. In 1994, she was charged with a simple battery involving her 19-year-old daughter. Ms. Rowe was incarcerated from June 1, 1995 through mid-December 1995. In mid-December 1995, she was erroneously released, and within two days she used cocaine daily until her re-arrest on January 17,1996. She has been incarcerated since January 17, 1996; her maximum confinement date is March 3, 1998.

Ms. Rowe commenced drinking at age 11 and has a 27-year history of excessive alcohol and drug abuse. A detailed chemical dependency evaluation of Ms. Rowe, completed in December 1994 and updated July 1, 1996, concludes that she “is in the chronic and advanced stage[s] of alcoholism and drug dependence”; and “[w]ithout a treatment intervention being administered and monitored over a long duration of time, Ms. Rowe will continue use.” However, the evaluation recognizes that Ms. Rowe has taken a “superb first step” by completing certain residential therapeutic courses while incarcerated. Her prospects for rehabilitation are considered good, provided certain long-term residential and outpatient treatment recommendations were made a mandatory condition of her parole. Since January 1996, Ms. Rowe has completed the following classes, which are part of the prison’s Substance Abuse Treatment Program: (a) substance abuse class 101, (b) substance abuse treatment program phase one, (c) substance abuse treatment program phase two, and (d) substance abuse treatment program phase three. During her 27-year history of drug and alcohol abuse, these are the only classes which Ms. Rowe has completed; her chemical dependence evaluation recommends a minimum treatment period of six years from her release from incarceration.

The termination hearing was held on April 23,1997; J. E. E. was then two and one-half years old. Subsequently, the juvenile court entered its order denying the petition for termination. In its order the court found inter alia that: “On [Ms. Rowe’s] release from incarceration, which will occur no later that March 1998 she will enter the Comprehensive Addiction Rehabilitation Program ... for which she has already been accepted and at which she will have the possibility of having the child. This is voluntary on her behalf. After the CARP program she will, voluntarily, enter the Georgia Recovery Centers Inc. outpatient program.” The court also found that: “[W]hile the child is currently deprived because of the [m]other’s incarceration the evidence presented does not show that the deprivation is likely to continue on the [m]other’s release. The State is providing to the [mjother various programs designed to integrate inmates with and help them have custody of their children. The [m]other . . . has freely and voluntarily undertaken every program available to her to this end. She has never been involved in such programs before. Her involvement in these programs has lasted continuously for over one year, and she is still involved. It cannot be assumed that these State [p]rograms will fail, and there is no evidence to show that they will. The [m]other has valid plan for the care of the child on her release. . . . The [m]other has an annuity of over $700.00 per month and stands ready to purge herself of her contempt by paying the sum of $3000.00 and child support of $100 per month.” Held:

1. Appellant has not established that the trial court failed to apply a clear and convincing legal standard. On appeal the burden is on the appellant to show both harm and error affirmatively by the record. Baker v. Baker, 194 Ga. App. 477, 489 (390 SE2d 892); accord Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901). In re R. L. Y., 181 Ga. App. 14 (351 SE2d 243), where the trial court terminated the natural father’s parental rights, is distinguishable; moreover, although a whole court case, In re R. L. Y., supra, constitutes physical precedent only as five judges did not fully concur in the legal analysis therein employed.

2. “Pursuant to OCGA § 15-11-81 (a) there exists a two-step process in considering the propriety of termination of parental rights. First, the court shall determine whether there exists clear and convincing evidence of parental misconduct or inability; secondly, if such clear and convincing evidence exists, the court shall then consider whether termination of parental rights is in the best interest of the child, ‘after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home. . . .’” In the Interest of S. H., 204 Ga. App. 135, 138 (1) (418 SE2d 454). With certain exceptions not here applicable, the court may terminate parental rights if the court determines parental misconduct or inability by finding inter alia that: (a) a decree has been entered by a court of competent jurisdiction of this state ordering the parent to support the child, and the parent has wantonly and willfully failed to comply with the order for a period of 12 months or longer; or, (b) the court determines parental misconduct or inability by finding that (i) the child is a deprived child, as such term is defined in Code Section 15-11-2, (ii) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived, (iii) such cause of deprivation is likely to continue or will not likely be remedied (note: while past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903)), and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (2) & (4). In determining whether the child is without proper parental care and control, the court shall consider, inter alia, without being limited to, the following: excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotics or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; or physical, mental, or emotional neglect of the child or of another child by the parent. OCGA § 15-11-81 (4) (B) (ii), (iii), (iv) & (v). Where, as in this case, the child is not in the custody of the parent, as an additional consideration in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) to communicate or to make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner; (ii) to provide for the care and support of the child as required by law or judicial decree; and, (iii) to comply with a court ordered plan designed to reunite the child with the parent or parents. OCGA § 15-11-81 (C). “ ‘ “If there is clear and convincing evidence of [statutorily required] parental misconduct or inability, the court shall then consider . . . whether termination is in the best interest of the child, after considering the physical, mental, emotional and moral condition and needs of the child, including the need for a secure and stable home.” ’ ” In the Interest of S. H., supra at 139 (4). “ ‘ “[T]hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” ’ ” Id. at 140 (4).

On appeal of the denial of a termination petition, an appellate court’s role is to determine if there is sufficient evidence to authorize the trial court’s judgment; it is not to give a de novo opinion as to the weight of the evidence. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met. See In the Interest of E. C., 225 Ga. App. 12, 19 (482 SE2d 522). However, a juvenile court is required in termination proceedings to follow strictly the provisions of OCGA § 15-11-81 and to make the determinations therein required. In reaching its determinations, a juvenile court must be protective of the constitutional rights of both parent and child. See, e.g., In the Interest of E. P. N., 193 Ga. App. 742, 749 (2) (c) (388 SE2d 903).

The juvenile court’s order on its face reveals that the trial court erroneously limited its finding of current deprivation to a deprivation arising solely from the mother’s incarceration. (Of course, incarceration can under certain conditions support a termination of parental rights. In the Interest of S. K. L., supra at 733 (1); OCGA § 15-11-81 (b) (4) (B) (iii); compare In the Interest of D. T., 221 Ga. App. 328 (471 SE2d 281).) The record establishes, however, that the child had been found to be deprived due to the mother’s extensive drug use history and her transient lifestyle. This order was not appealed. A fair risk exists that if the trial court had also considered the child’s current deprivation due to these circumstances, it would not have found the evidence insufficient to show that “deprivation is likely to continue on the Mother’s release.” Moreover, the trial court failed to affirmatively determine in its order whether there exists present evidence of parental misconduct or inability. OCGA § 15-11-81 (a) & (b). (It cannot be held that the trial court reached this determination by implication as its deprivation determination was tainted and because parental misconduct or inability can also be established under certain circumstances by failure to comply with an order to provide child support. OCGA § 15-11-81 (b) (2).)

Decided October 16, 1997.

Betty R. Blass, for appellant.

Sanders B. Deen, Garland C. G. Moore, Bobby G. Adkins, Jr., for appellee.

The trial court’s order is vacated and the case remanded for reconsideration and affirmative determinations in accordance with OCGA § 15-11-81. At the remand hearing both parties shall be given an opportunity to present any additional evidence relevant to this matter. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.

Judgment vacated and case remanded with direction.

Ruffin and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A97A2236.
    SEAY v. CLEVELAND et al.
    (493 SE2d 30)
   Eldridge, Judge.

Defendant John Seay, Sheriff of Cherokee County, appeals the trial court’s grant of a directed verdict to plaintiffs Arthur J. Cleveland and Annie Cleveland, and the court’s denial of his own motion for a directed verdict. We affirm.

On October 1,1991, the Clevelands successfully bid at a Sheriff’s sale to purchase a home in Woodstock, Cherokee County, for $58,000. The sale was conducted by Shelley Laughhunn, Deputy Sheriff of Cherokee County, pursuant to a judgment and fieri facias. Following the sale, an administrative clerk in the Sheriff’s office deducted the county’s costs of the sale and paid the balance of the proceeds directly to the attorney for the plaintiff in execution, Peachtree Mortgage, Inc. The attorney then failed to use the proceeds to satisfy existing, superior liens on the property, subjecting the Clevelands to an obligation to pay off the loans or lose both the property and their $58,000 investment.

On September 30, 1992, the Clevelands filed suit against Seay in his official capacity as Sheriff of Cherokee County for conversion, fraud, misrepresentation, and negligence, asking for compensatory damages in the amount of $54,803.41 in principal and interest; they also named Cherokee County, Peachtree Mortgage, Inc., and the attorney as co-defendants. Seay moved for a directed verdict at the end of the plaintiffs’ case and at the end of trial; both motions were denied. However, the trial court granted the plaintiffs’ motion for a directed verdict after finding that the official actions of Seay’s employees were ministerial in nature, so that Seay was not entitled to the protection of sovereign immunity. Seay timely appealed. Held:

1. (a) Seay asserts that the trial court erred in granting the plaintiffs’ motion for a directed verdict, claiming that he was entitled to the sovereign immunity in the same manner as Cherokee County, which previously had been granted summary judgment by the trial court upon its finding that the county was entitled to sovereign immunity under a 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983. See Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d 476) (1994); see also OCGA § 50-21-22 (5); Woodard v. Laurens County, 265 Ga. 404 (456 SE2d 581) (1995); Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (414 SE2d 638) (1992) (amendment became effective on January 1, 1991); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) and cases cited therein.

This amendment reads as follows: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” (Emphasis supplied.) A “ministerial” function has been defined as “one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. [Cits.]” Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991). Further, the term “official function” has been interpreted to mean “any act performed with the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under [these] definition[s], the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure.” (Emphasis supplied.) Gilbert, supra at 753.

In Gilbert, supra at 754, the plaintiff sued a sheriff in his official capacity for injuries received when a sheriff’s deputy negligently performed a discretionary function as a peace officer, i.e., responding to an emergency call in such a manner as to cause a collision with the plaintiff. The Supreme Court of Georgia held that, “[s]ince deputy sheriffs are employed by the sheriff rather than the county, sheriffs may be liable in their official capacity for a deputy’s negligence in performing an official function” under the doctrine of respondeat superior. Id. at 754. In so finding, the court held that the deputy’s personal, official immunity did not protect the sheriff from liability, but that the sheriff was protected by the county’s sovereign immunity for discretionary acts by his employees to the extent that the county had not waived its immunity by securing liability coverage. Id.

While this Court has concerns about whether or not a county’s sovereign immunity protects a sheriff from liability and whether or not the requirement that the sheriff post a fidelity bond acts as a waiver of sovereign immunity, see Division 1 (b), infra, we are bound by the Supreme Court’s holding in Gilbert, supra, that the county’s immunity extends to a sheriff in his performance of discretionary acts.

However, this case is distinguishable from Gilbert, supra, in that the trial court specifically found that defendant Seay, through his employees, had negligently performed statutorily-defined administerial functions. As such, Seay was not entitled to the protections of sovereign immunity under the 1991 constitutional amendment. We agree.

OCGA § 9-13-60 (c) specifically mandates certain procedures for performing a sheriff’s sale of property. It requires that “[t]he proceeds of the sale [of the subject property] be applied first to the payment of liens superior to the claims taken up by the plaintiff in execution, next to the payment of principal advanced by the plaintiff in execution to put title in defendant, with interest to date of sale, and the balance to the execution under which the property was sold, and to other liens according to priority, to be determined as provided by law.” OCGA § 9-13-60 (c). This statutory mandate allows no discretion on the part of the sheriff or his employees regarding how to disperse the funds acquired during a sheriff’s sale. The act is mandatory and not directory.

“Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. [Cit.]” Woodard, supra at 407. “Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is made on a case-by-case basis. [Cit.]” Crisp County School System v. Brown, 226 Ga. App. 800, 803 (487 SE2d 512) (1997). The evidence presented in this case supports the conclusion that Seay, through his deputy, negligently violated the provisions of this mandate by failing to satisfy superior liens on the property and, instead, by paying the proceeds of the sale directly to the plaintiff in execution after subtracting the county’s costs of the sale. As such, there was no error in the trial court’s finding that Seay negligently performed an official ministerial function by failing to perform the procedures mandated by statute, which is negligence per se. Therefore, Seay forfeited the protections of sovereign immunity, and the plaintiffs were entitled to a directed verdict on this issue.

(b) Further, we note that this suit involves a breach of the sheriff’s statutory duty toward the Clevelands, i.e., a duty to ensure that the funds paid at the sheriff’s sale are distributed as required by statute so that the Clevelands, as purchasers of the property, gain title free and clear of any existing, superior liens. See Alexander Investment Group v. Jarvis, 263 Ga. 489, 491 (435 SE2d 609) (1993). As such, the sheriff’s relationship to the Clevelands was imposed by statute as either a bailee or fiduciary. The Code imposes this duty directly on the sheriff’s office, as opposed to the county, and the duty runs specifically to the Clevelands, thereby protecting them from liability for the outstanding loans. Booth v. Firemen’s Ins. Co., 223 Ga. App. 243, 246-247 (477 SE2d 376) (1996). Under this statutory duty, Seay was precluded from releasing the funds prior to satisfying the liens without incurring the loss of his own protection from suit by the Clevelands or by those holding liens on the property. Alexander Investment Group, supra at 491. Following such breach of his duty, Seay was subject to suit on his Sheriff’s bond, an action which is ex contractu and therefore outside of the protection of sovereign immunity.

In Georgia, sheriffs are required to secure and maintain a fidelity bond in the amount of $25,000, “conditioned for the faithful accounting for all public and other funds or property coming into the sheriffs’ or their deputies’ custody, control, care, or possession.” OCGA § 15-16-5. “The twin public policies recognized by the requirement that bonds be obtained are: (1) the county law enforcement officer should be held liable for tortious activity, even where connected with his official duties; and (2) he should be required to obtain insurance lest his liability should be rendered meaningless by his poverty.” Thompson v. Spikes, 663 FSupp. 627, 641 (S.D. Ga. 1987). In addition, “[sjheriffs are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties, and are liable on their official bonds for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers.” (Citations and punctuation omitted.) Bd. of Commrs. of Richmond County v. Whittle, 180 Ga. 166 (178 SE 534) (1935).

“A suit on a [sheriff’s] bond is an action in contract for the tortious acts of the [sheriff’s] deputy in the performance of his official duties. Thompson v. Spikes, supra.” (Emphasis supplied.) Booth, supra at 246; see also Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401 (163 SE2d 834) (1968); Powell v. Fidelity &c. Co. of Maryland, 48 Ga. App. 529 (173 SE 196) (1934). The written contract at issue is between the sheriff, the surety, and the county for the use and benefit of persons whose injuries proximately resulted “(1) because of the failure of the sheriff to perform a duty imposed upon him by law, (2) because of the improper or neglectful performance of such a duty, [or (3) because of] any wrongful act committed under color of [the sheriff’s] office.” Goforth v. Fidelity &c. Co., 80 Ga. App. 121, 122-123 (55 SE2d 656) (1949); OCGA § 45-4-24; see also Booth, supra at 247; Fidelity-Phenix Ins. Co., supra at 403-404; Culpepper v. United States Fid. &c. Co., 199 Ga. 56, 58 (33 SE2d 168) (1945).

In OCGA § 50-21-1 (a), the General Assembly expressly waived the defense of sovereign immunity “as to any action ex contractu for the breach of any written contract . . . entered into by the state, departments and agencies of the state, and state authorities.” See also Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c). Since recovery in an action on a sheriff’s bond is limited by the contractual amount of coverage, the General Assembly specifically provided for the extent of the waiver of sovereign immunity, as required by Art. I, Sec. II, Par. IX (e) of the 1991 constitutional amendment. See Division 1 (a), supra. Therefore, this Court finds that the defense of sovereign immunity is expressly waived as to any action premised on the breach of such bond, up to the limits of the bond coverage or an insurance policy in lieu of the bond. OCGA § 50-21-1; cf. Crisp County School System, supra at 802 (recognizing that the dictum in Gilbert, supra at 751, regarding an express statutory waiver of sovereign immunity through the purchase of automobile liability insurance, is limited to the facts of that case); Blumsack v. Bartow County, 223 Ga. App. 392, 396 (477 SE2d 642) (1996) (finding that the purchase of liability insurance for the operation of a vehicle does not waive immunity for actions based on negligent maintenance); Coffee County School Dist., supra at 295 (finding that OCGA § 20-2-991, concerning the purchase of general liability insurance by a school district, does not provide for a waiver of sovereign immunity as contemplated by the 1991 amendment).

Decided October 16, 1997

Smith, Howard & Ajax, Harvey S. Gray, Michael D. St. Amand, for appellant.

Baker & Whitaker, Elliott R. Baker, William E. Whitaker, William G. Hasty, Jr., Jonathan A. Pope, for appellees.

2. Seay’s remaining enumeration of error is rendered moot by our holding in Division 1, supra.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       The attorney, Thomas L. Washburn III, P.C., subsequently pled guilty to a violation of OCGA § 9-13-16 and was sentenced to serve one year in prison; his license to practice law in Georgia was also suspended.

       The State Tort Claims Act, OCGA § 50-21-20 et seq., does not apply to counties. OCGA § 50-21-22 (5); Woodard, supra at 405.

       Both this Court and the Supreme Court of Georgia refused to consider an interlocutory appeal on this issue.

       A bailee is defined as “one to whom goods are bailed; one to whom goods are entrusted by a bailor; the party to whom personal property is delivered under a contract of bailment,” express or implied. Black’s Law Dictionary, 6th ed., p. 141. “The bailee is responsible for exercising due care toward the goods.” Id. at 142.

       “One is said to act in a ‘fiduciary capacity1 . . . when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Black’s Law Dictionary, 6th ed., p. 635.

       “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX(e).


author: Pope, Presiding Judge.

text:
    A97A1627.
    BARFIELD et al. v. ROYAL INSURANCE COMPANY OF AMERICA et al.
    (492 SE2d 688)
   Pope, Presiding Judge.

Plaintiffs Royal Insurance Company of America (“Royal”) and its named insured, Single Source Roofing Corporation (“Single Source”) brought this declaratory judgment action to determine their liability for damages arising from an automobile accident involving Single Source’s employee, defendant Andrew Fisher. Fisher was driving a company-owned pickup truck when he collided with four vehicles occupied by Billy Barfield and several other individuals named as defendants in this action. Barfield and the other defendant occupants either filed personal injury suits or made personal injury claims against Fisher and Single Source, which carried an automobile liability policy with Royal. In this action, Royal and Single Source allege that Fisher was not a “permissive driver” covered under the Royal policy because he drove the truck after drinking alcohol, in violation of company policy. They also argue that Single Source is not liable for any injuries because Fisher was not acting within the scope of his employment when the collision occurred. The trial court granted summary judgment to Single Source and Royal on both issues. We affirm in part and reverse in part.

Viewed in a light most favorable to the defendants, the record shows Fisher worked as a traveling technician based at Single Source’s Atlanta office. His only vehicle was the company-provided pickup truck. On Friday, October 27, 1995, Fisher left Atlanta in the truck to visit an old friend on Tybee Island, Georgia. Work was not going well, he testified, and his supervisors told him to take the weekend off. Fisher was also considering moving, and he planned to look for housing on Tybee Island. Hoping Single Source would hire his friend, Fisher also took along job applications for him and any other people he met who might be interested in the roofing trade. After arriving at his friend’s house Friday night, Fisher drank until the early morning hours. He arose the next day and had part of a beer before spending Saturday afternoon helping his host’s friend move a trailer.

Single Source had provided Fisher a camera to use in his work. That camera broke while Fisher used it to take personal photos Saturday afternoon. Fisher had earlier told a supervisor the camera was not working well, and the supervisor had instructed him to replace it “at your convenience.” Because he needed the camera for work Monday, Fisher decided to use the hour before dinner to drive to WalMart in Savannah and purchase a new one.

Fisher drove the company pickup towards Savannah but turned around before he reached the store. He explained, “[F]or one thing, [Wal-Mart] was farther than I thought, [and] another thing, I forgot to bring my old camera and I wanted to buy the exact same kind since I was replacing one of the company’s. ... I was running out of time [for dinner] and I was freezing. ... I got really chilly.” On the way back to Tybee Island, the collision occurred. Fisher was charged with and later pled guilty to driving under the influence and serious injury by vehicle.

When asked whether he had abandoned his camera-purchasing errand or planned to finish it later that night, Fisher gave unclear responses. He testified that when he turned around, “I decided that I could leave a little bit earlier [Sunday] and get a camera in Atlanta before work Monday.” But he also stated he “was going to get that camera and maybe go to the shopping district in Tybee Island. ... I was going to look and if worst came to worst I was going to use a disposable camera.” He later testified he was only trying to “use up” the hour before dinner and “just wanted to come back and eat.”

1. Barfield and the other injured defendants claim the trial court erred in finding that Fisher is not insured under the Royal policy, which provides liability coverage for Single Source and “anyone else while using with [Single Source’s] permission a covered auto [Single Source] own[s]. ...” A company rule stated that “[possession and consumption of alcoholic beverages ... in company vehicles is prohibited.” Fisher was aware of this rule and understood it to mean he “was not supposed to use the vehicle while [he] was drinking or under the influence of alcohol.” He knew of no exceptions to the rule. The trial court ruled that Fisher exceeded the scope of his permission by driving the vehicle while under the influence of alcohol and, therefore, was not a “permissive driver” entitled to coverage under the Royal policy. We affirm the trial court’s ruling.

“Permissive use” clauses such as the one in Royal’s policy are valid, even where the named insured can limit the scope of the permission through instructions, rules, or regulations. See Massachusetts Bay Ins. Co. v. Wooten, 215 Ga. App. 386, 387 (1) (450 SE2d 857) (1994). On several occasions, this Court has held that where a driver uses a vehicle with permission, but violates the scope of the permission granted by engaging in activity the named insured has expressly forbidden, the driver is not an “insured” under the permissive use clause of a policy such as Royal’s for any collision occurring during the driver’s unauthorized use. See, e.g., Wooten, 215 Ga. App. at 387-388; Select Ins. Co. v. Register, 192 Ga. App. 145, 147 (384 SE2d 238) (1989).

Both Wooten and Register involved drivers who used the insured vehicle for a purpose forbidden by the owner. Here, although Fisher used the truck in an unauthorized manner by driving it while under the influence of alcohol, we find the rationale of the prior cases applicable. “[T]here is an absence of permission within the meaning of the policy if the vehicle is being driven at a time or a place or for a purpose not authorized by the insured.” (Citation and punctuation omitted.) Register, 192 Ga. App. at 147. The test of permission under the provision at hand is an objective one, and does not involve the question of whether Fisher “reasonably believed” he had permission to drive the truck. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 713 (1) (470 SE2d 659) (1996). Because the uncontradicted evidence shows Single Source told Fisher he could not drive the vehicle when he was drinking, his use of the vehicle at a time he was admittedly under the influence of alcohol was unauthorized and nonpermissive.

Although no Georgia case is directly on point, decisions from other jurisdictions support this holding. In a case with very similar facts, a Pennsylvania appellate court found a roofing laborer was not an insured under a permissive use clause in Gen. Accident Ins. Co. of America v. Margerum, 544 A2d 512 (Pa. Super. 1988). Although the roofer’s employer allowed him to drive a company van because he had no other transportation, the employer specifically forbade him to drive after drinking. When the roofer was involved in an alcohol-related accident, he could obtain no coverage under the employer’s liability policy, which extended coverage to persons “using with [the employer’s] permission a covered auto you own. . . .” Id. at 513. The court reasoned that “[b]y driving under the influence of alcohol, [the employee] violated an express specific restriction on his use of the van. . . . [H]is deviation in use from [the employer’s] express permission was a substantial deviation.” Id. at 514. See also Warner Trucking v. Hall, 653 NE2d 1057, 1061 (Ind. App. 1995), in which the court construed an identical policy provision and found coverage did not extend to a driver who violated the employer’s policy that he not use the truck for personal reasons or after consuming any alcohol.

2. The trial court erred, however, when it found that Fisher was outside the scope of employment merely because he violated Single Source’s rule against drinking and driving. ‘Where a servant disobeys instructions of his master, the fact of disobedience alone does not insulate the master from liability for the servant’s negligence.” Huddle House v. Burke, 133 Ga. App. 643 (1) (211 SE2d 903) (1974). The trial court’s order relies on a workers’ compensation case for the principle that a master may, by establishing rules, limit the scope of the servant’s employment. See Parker v. Travelers Ins. Co., 142 Ga. App. 711, 713 (4) (236 SE2d 915) (1977). That rule does not apply in tort actions by third parties, because “[t]he law does not' allow a principal to insulate and absolve himself of liability by private instructions to his agent. [Cit.]” Dixon v. Phillips, 135 Ga. App. 161 (217 SE2d 331) (1975), aff’d, 236 Ga. 271 (223 SE2d 678) (1976).

Because a judgment right for any reason must be affirmed, we determine whether the record otherwise shows Single Source entitled as a matter of law to the finding that Fisher was not acting in the scope of his employment when the collision occurred. See State Farm Fire &c. Co. v. American &c. Ins. Co., 224 Ga. App. 789, 794 (4) (b) (482 SE2d 714) (1997). We agree with Single Source that the sworn statements Fisher gave prosecutors and the court which accepted his guilty plea, in which he averred that he was acting within the scope of his employment at the time of the accident, have no probative value. Fisher made these statements after Single Source terminated him and many months after the accident. Because they were not made during his employment and are not part of the res gestae, they are not admissible against Single Source. See de la Gonzales v. Krystal Co., 173 Ga. App. 574, 576 (3) (327 SE2d 546) (1985); OCGA §§ 10-6-64; 24-3-33.

Decided October 1, 1997

Reconsideration denied October 17, 1997.

Montlick & Associates, Alan Y. Saltzman, Killian & Boyd, Robert P. Killian, Ranitz, Mahoney, Coolidge & Mahoney, John F. M. Ranitz, Jr., Michael H. Graham, for appellants.

Brennan & Wasden, Marvin IK McGahee, Hunter, Maclean, Exley & Dunn, Lee C. Mundell, for appellees.

Fisher was driving Single Source’s truck; therefore, a presumption arose that he was acting within the scope of his employment when the collision occurred. Viau v. Fred Dean, Inc., 203 Ga. App. 801, 802 (2) (418 SE2d 604) (1992). “Once this presumption arises the burden then shifts to the employer to rebut the presumption by evidence that is clear, positive and uncontradicted and that shows the servant was not in the scope of his employment.” Gordy Constr. Co. v. Stewart, 216 Ga. App. 882, 883 (456 SE2d 245) (1995).

Single Source has not met its burden. Fisher’s testimony shows his supervisors told him to obtain a new camera for the company’s business “at [his] convenience.” From his unclear testimony, at the time of the collision Fisher was either returning from an aborted mission to purchase the camera or was going back to obtain the broken camera and find another place to purchase a replacement. Although Single Source cites the rule that an employee going to or returning from work is not acting in the scope of employment, that rule does not apply where the employer has provided the employee a vehicle which enables the employee more conveniently to perform a duty for the employer. Chappell v. Junior Achievement &c., 157 Ga. App. 41, 42-43 (276 SE2d 98) (1981). Construing this potentially corroborating evidence in favor of the nonmovants, a jury could determine Fisher was engaged in an errand required by his employer and was acting within the scope of his employment. See id. at 44; Viau, 203 Ga. App. at 802. The grant of summary judgment on this issue is reversed.

3. Under our holdings in Divisions 1 and 2, in the event a jury finds Fisher solely liable for damages resulting from the collision, the Royal liability insurance policy would not provide coverage for those damages. The Royal policy may, however, cover damages resulting from the collision if a jury finds Single Source vicariously responsible for Fisher’s actions.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.

       None of the defendants raised any issue regarding the propriety of a declaratory judgment on the scope of employment issue, which would presumably be at issue in any personal injury case arising from this collision. This issue is unrelated to the “permissive use” insurance issue. See Register, 192 Ga. App. at 147-148.