text:
    A99A0333.
    SMITH ADCOCK & COMPANY v. ROSENBOHM.
    (518 SE2d 708)
   Judge Harold R. Banke.

Smith Adcock & Company (“Smith”) brought suit against its former employee, Karl E. Rosenbohm, to enforce a restrictive covenant in an employment contract and for other relief. The trial court granted summary judgment to Rosenbohm on the ground that the covenant constitutes an unreasonable partial restraint of trade. Smith appeals.

Smith is a Georgia public accounting firm comprised of a partnership of professional corporations with its principal office in Atlanta and an additional office in Athens. Rosenbohm is a certified public accountant who became employed as a staff accountant and employee at will. Approximately five years later, Smith persuaded Rosenbohm to sign a “Mutual Non-Piracy Agreement.” A little over a year after that, Rosenbohm terminated his employment with Smith and began working for another accounting firm in Savannah. Smith now seeks to enforce paragraph 4 of the non-piracy agreement.

The stated purposes of the agreement are to protect confidential client information which the company has entrusted to the signing employee and to provide for the employee’s, other company employees’, and the company’s mutual non-interference and non-piracy of the others’ “book of business.” The company’s four partners required all staff accountants, totaling approximately eighteen in number, to enter into identical agreements as a condition of continuing their employment.

The term “book of business” is defined in paragraph 1 (B), which directs the company to assign each client account to the employee responsible for obtaining the account and permanently place such account on that employee’s book of business. “[A]ny client currently/ subsequently” receiving public accounting type services from the company other than those clients designated as being in the book of business of the employee who signs the agreement is defined under paragraph 1 (D) as a “company client.”

Under paragraph 3 of the agreement, the employee is prohibited from soliciting a company client to be the client of the employee for a period of two years after leaving the company’s employ, and the partners agree to abide by the same restriction with respect to clients within the employee’s book of business.

Under paragraph 4, an employee who terminates his association with the company and “continues to render public accounting type services to any company client or former company client or client of another company employee or partner” is required to pay Smith a royalty of 20 percent of the gross fees collected from such client each year for a period of five years commencing with the date of the former employee’s termination. The partners of the company determined that they were entitled to this compensation due to the great importance of employment-related client access in enabling a terminating employee to continue rendering accounting services to clients not within that employee’s book of business.

Paragraph 5 of the agreement makes provision for the company to purchase all or a portion of a departing employee’s book of business on the same terms set forth in paragraph 4, if both the employee and company so desire.

Smith’s evidence showed that its staff accountants have contact with, or are provided with access to confidential information concerning, “virtually every” client of the company. The payment of a 20 percent five-year royalty was chosen because this is one payment method generally used for accounting practice acquisitions in Georgia. Smith asserts that after leaving its employ, Rosenbohm continued to render accounting services to eight company clients who have become former company clients as a result. Smith claims that these clients should have been recorded in his book of business. Held:

Unlike a restrictive covenant ancillary to sale of a business or to a partnership agreement, a restrictive covenant entered into between a partnership and one of its employees incident to an employment contract receives strict scrutiny. Habif, Arogeti & Wynne v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998). Covenants ancillary to employment agreements are generally divided into two categories: covenants not to solicit and covenants not to compete. See Baggett, supra at 295.

To resolve the enforceability of paragraph 4, we must first determine how it is to be classified. Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352, 353 (1) (348 SE2d 919) (1986). Like the accounting firm in Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891, 892 (1) (447 SE2d 94) (1994), Smith argues that the provision of the agreement in issue does not constitute a covenant not to compete because it does not prohibit competition. This argument must be rejected for reasons given in Dougherty. “[AJbsent the terms of the agreement [Rosenbohm] would be free to compete without [paying for] the right to do so and without conditions.” Dougherty, supra at 893. Consequently, the agreement “has the effect of lessening competition.” Id.; see also William N. Robbins, P.C. v. Burns, 227 Ga. App. 262 (1) (488 SE2d 760) (1997). As such, it is in legal effect a covenant not to compete, which

is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a “helpful tool” in examining the reasonableness of the particular factual setting to which it is applied.

(Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

Singer v. Habif, Arogeti & Wynne, 250 Ga. 376 (297 SE2d 473) (1982), held unenforceable a restrictive covenant prohibiting an accountant from accepting employment from any clients of his former employer in the metropolitan Atlanta area or in any county in which such clients were located. The Singer plurality held that

[w]ithout the benefit of the trust and confidence built up through the professional-client relationship, [the accountant] does not have the ability to unduly influence clients for his own benefit; and therefore, he does not hold an unfair competitive edge over [his employer] in relation to those clients from which [the employer] would need protection.

(Footnote omitted.) Id. at 377-378.

The majority in Mouyal agreed that the covenant in Singer was unenforceable, but modified Singer in one respect. In this regard, Singer applied a “traditional test” requiring restrictive covenants in employment agreements to be strictly limited in time and territorial effect. 250 Ga. at 377. Mouyal concluded that in the modern business world the presence of an express geographic territorial description is not required in all cases involving covenants not to solicit. 262 Ga. at 467.

Mouyal held that there is no need for a territorial restriction in a restrictive covenant where the former employee is only prohibited from soliciting clients whom the employee contacted during his tenure with the employer. After citing Singer, Mouyal conversely concluded that

a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms because that restriction, which does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, is otherwise unreasonable and overbroad in its attempt to protect the employer’s legitimate interest in keeping the employee from taking advantage of the goodwill generated during his employment with the employer to lure employer customers away.

(Emphasis in original.) 262 Ga. at 467, n. 3; see Fuller v. Kolb, 238 Ga. 602 (234 SE2d 517) (1977). Chaichimansour v. Pets Are People Too, No. 2, 226 Ga. App. 69, 70 (1) (485 SE2d 248) (1997), later held a covenant such as the one described above to be enforceable where the territorial limitation was tied to where the employee actually worked for her employer.

Paragraph 4 of the present agreement is a non-competition covenant without territorial limitation. Although it does not apply to clients within a signing employee’s book of business, the trial court interpreted it as applying to clients with whom such employee had no contact during his employment. Under this interpretation, the covenant would appear unenforceable under cases previously cited. Smith does not challenge this interpretation, but rather seeks to uphold the covenant as reasonable on grounds that accountants employed by Smith have contact with, or are provided with access to confidential information concerning, virtually every client of the firm. But this means that there are some clients with whom the employee has had no contact and concerning whom the employee possesses no confidential information. Moreover, through its reference to “former company clients,” paragraph 4 would also apply to clients who had severed their relationships with the firm years before the employee’s termination.

In addition, the restrictions in the agreement are not “mutual.” Paragraph 4 contains a flat prohibition against a departing employee’s rendering competitive services to company clients without making the required payments. Paragraph 5 does not impose a corresponding obligation on Smith. It merely gives Smith an option to purchase all or part of such employee’s book of business.

Decided May 26, 1999.

James B. Ritchie, for appellant.

Duffy, Feemster & Lewis, Dwight T. Feemster, Matthew M. Bush, for appellee.

For the above reasons, the court did not err in holding that this covenant constitutes an unreasonable partial restraint of trade. Remaining issues are moot.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A0437.
    BAKER v. THE STATE.
    (518 SE2d 455)
   Blackburn, Presiding Judge.

Michael Baker appeals his conviction of aggravated assault following a jury trial. Baker contends that the trial court erred (1) in its handling of the State’s failure to adhere to the reciprocal discovery requirements of OCGA § 17-16-4 (a) (1); (2) by sending the jury a questionnaire prior to their verdict; and (3) by failing to charge on self-defense. Because the trial court abused its discretion in dealing with the State’s discovery failures, we reverse.

Viewing the evidence in the light most favorable to the verdict, it reveals that, on the night of the incident, Baker went to a night club called the Royal Peacock. Baker and the victim, a bouncer at the club, got into a fight at the entrance over whether Baker was required to pay the cover charge. Baker was eventually allowed into the club and was not searched for weapons, unlike all the other patrons who entered the club. A short time later, as the victim left by the back stairs, Baker ran after him. A security guard was unable to stop Baker from following the victim. The victim testified that he heard gunshots as he was descending the stairs with another person. When he turned around, he saw Baker coming at him firing a gun. The victim was shot three times in the back and once in the chest.

1. The record reveals that Baker elected to proceed under the discovery provisions of OCGA § 17-16-1 et seq. by serving written notice on the State, as required by OCGA § 17-16-2 (a). OCGA § 17-16-4 (a) (1) mandates disclosure to the defendant, “no later than ten days prior to trial,” of any “relevant written or oral statement made by the defendant while in custody, whether or not in response to interrogation.”

On the morning of Baker’s trial, the State served his counsel, for the first time, with notice that the arresting officer was going to testify that, upon Baker’s arrest, Baker stated that the shooting was in self-defense because the victim pulled a gun on him. Baker’s counsel moved for either a continuance or an order precluding the use of Baker’s statement. Counsel asserted that she had not previously heard of Baker’s alleged statement and that it contradicted her planned defense that Baker was not the perpetrator of the shooting.

A defendant who opts into the reciprocal discovery statute is entitled to, among other things, pretrial discovery of any witness statements in the State’s possession (OCGA § 17-16-7), certain statements of the defendant (OCGA § 17-16-4 (a) (1)), and the defendant’s criminal history (OCGA § 17-16-4 (a) (2)). The defendant is also entitled to review and copy any documents or other items in the State’s possession, including scientific reports, which the State intends to use as direct or rebuttal evidence (OCGA § 17-16-4 (a) (3) and (4)). In return for this entitlement, the defense is required, among other things, to provide reciprocal discovery of documents and items in its possession (OCGA § 17-16-4 (b)) and to provide discovery regarding any alibi defense (OCGA § 17-16-5).

OCGA § 17-16-1 (1) provides that “ ‘[possession, custody, or control of the [S]tate or prosecution’ ” means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.” (Emphasis supplied.) As the burden is on the prosecution to produce or assemble for review all discoverable evidence, it has an affirmative obligation to keep apprised of all discoverable items in its possession or in the possession of the police. The prosecution cannot avoid a finding of bad faith by merely claiming ignorance of the contents of the police file. See Marshall v. State, 230 Ga. App. 116, 118-119 (2) (495 SE2d 585) (1998).

OCGA § 17-16-6 gives the trial court discretion in fashioning a remedy where the State fails to perform its discovery obligations. The statute provides that

the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or .may enter such other order as it deems just under the circumstances.

In the present case, the State made several responses to Baker’s motion. The State contended that, because Baker’s trial counsel was not the attorney who opted into the discovery statute, the State did not have the burden to produce anything to her until she had adopted the previous public defender’s motions. The State then asserted that it had difficulty obtaining Baker’s counsel’s address, but that the statement was not available to the State when it did obtain her address. The State attempted to maintain that it was not under any obligation to reveal the statement because it was “discovered” when the witness was interviewed for the first time the weekend prior to trial. The State maintained that it furnished the statement to the defendant at the earliest possible opportunity after it was “discovered.” The State further argued that the witness was named in the arrest report (not a witness list) that had been furnished to the defendant several months prior to trial and that, therefore, the defendant’s counsel could have interviewed the witness herself. The State also argued that it was unaware “where that’s written, that the State is required to interview all witnesses [ten] days before trial.”

The reciprocal discovery statute clearly reflects two principal goals. First, and most important, any remedy fashioned by the trial court must be designed to restore to defendant all those rights which the legislature intended for the defendant to have, had the State met its burden under the statute, and to correct the prejudice to the defendant caused by the State’s failure to perform its mandatory discovery obligations, regardless of whether the State acted in bad faith. Second, the statute clearly contemplates the imposition of punitive sanctions, including the exclusion of evidence, to deter the State from violating its discovery obligations. This deterrent goal is important because, if the most serious consequence of a failure to perform is the mere grant of a continuance, the State would have little incentive to ensure that it fully complies with its discovery obligations.

In the present case, defense counsel specifically argued that the arresting officer’s testimony regarding her client’s statement contradicted her planned defense that Baker was not the perpetrator of the shooting. A primary purpose of requiring disclosure of evidence and witnesses well in advance of trial is to allow counsel time to reflect with deliberation upon such evidence, to consider how it could best be presented at trial and how it affects her overall strategy, and to seek to develop other evidence to corroborate or impeach the discovered evidence. When wrongfully withheld evidence is disclosed for the first time at the start of the trial, the defendant may be presumed to have been prejudiced, as his attorney has not had the opportunity to reflect upon such evidence and to determine what other investigation may be required as a result of its use and how it impacts the existing trial strategy and the subpoena and call of witnesses.

In the present case, the State clearly violated its obligations under the discovery statute. Nor can we find that such violation was harmless in light of the defense counsel’s statement regarding her newly contradicted defense. “While the range of remedies permitted by OCGA § 17-16-6 is wide, the trial court’s discretion is not unlimited, particularly when its exercise affronts [the statute’s] goals.” Marshall v. State, supra at 118. The trial court’s failure to, at the least, grant Baker’s motion for continuance was an abuse of discretion which requires the reversal of Baker’s conviction.

2. Baker contends that the trial court erred in sending a questionnaire to the jury prior to their verdict being announced. The record shows prior to the verdict being announced, the trial court clerk gave the jurors letters signed by the court indicating the dates each juror had served and questionnaires regarding the juror’s opinions of their jury experience. Baker’s counsel objected and moved for a mistrial arguing that it was improper for the jury to receive anything other than the evidence in the case before the pronouncement of the verdict.

“The granting or denial of a mistrial is within the sound discretion of the trial court, and we will not disturb his ruling in the absence of abuse of that discretion.” Griggs v. State, 181 Ga. App. 618 (353 SE2d 97) (1987). See also Anderson v. State, 183 Ga. App. 669, 672 (359 SE2d 688) (1987); Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991); Hall v. State, 177 Ga. App. 464 (339 SE2d 658) (1986).

Watts v. State, 223 Ga. App. 412, 417 (3) (477 SE2d 852) (1996).

The questionnaire related to jury service generally and was not specifically directed to any issue in the case under their consideration. Although the better practice would be to distribute the questionnaire after the verdict is pronounced in open court, its early distribution in this case does not require reversal. See Battle v. State, 234 Ga. 637 (217 SE2d 255) (1975) (where reviewing court found that the defendant was not affected by the communication).

3. In his final enumeration of error, Baker contends that the trial court’s refusal to give his oral request to charge the jury on self-defense was error. However, “[t]his court has held that where there has been no written request to charge, failure to give the charge is not error.” (Punctuation omitted.) Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991). See also Grady v. State, 212 Ga. App. 118, 119-120 (3) (441 SE2d 253) (1994).

Judgment reversed.

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

Decided May 26, 1999.

Steven E. Phillips, for appellant.

PaulL. Howard, Jr., District Attorney, Bettieanne C. Hart, Christopher M. Quinn, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.

text:
    A99A0500.
    EISELE v. THE STATE.
    (519 SE2d 9)
   Ruffin, Judge.

On March 13, 1998, a jury found Klaus Eisele guilty of theft by taking property in excess of $500. On March 20, 1998, the trial court sentenced Eisele to five years probation. On April 21, 1998, Eisele filed a motion for new trial which was untimely pursuant to OCGA § 5-5-40 (a), and on June 12, 1998, Eisele filed a request to file an out-of-time motion for new trial. On June 26, 1998, the trial court denied Eisele’s request for an out-of-time motion for new trial, finding no good cause was shown for the untimely filing. On July 15, 1998, Eisele filed a motion for permission to file an out-of-time appeal, and on July 23, 1998, the trial court denied that motion. Eisele challenges the trial court’s failure to hold a hearing prior to denying his motion for an out-of-time appeal. Because the trial court failed to make a determination regarding who bore the ultimate responsibility for the untimely appeal, we reverse and remand for an evidentiary hearing.

Because the accused enjoys the right to effective assistance of counsel on appeal from a criminal conviction, we “have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.” Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997). As we have stated, however,

a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.

(Citations and punctuation omitted.) Id. Where the record does not indicate that the trial court adequately addressed this dispositive issue, we will remand for a hearing to consider it. See Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996); Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994); Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985).

Eisele argues that the sole reason for the untimeliness of his initial motion for new trial was the negligence of his appellate (and present) counsel. In his motions for out-of-time new trial and out-of-time appeal, Eisele’s counsel stated that Eisele retained him on April 10, 1998, ten days before the expiration of the 30-day deadline in which to file a motion for new trial. Counsel stated that he mailed the motion for new trial via certified mail on April 17, 1998. However, the motion for new trial was not filed by the clerk’s office until April 21, 1998 — one day too late. On June 26, 1998, the trial court denied Eisele’s request for an out-of-time motion for new trial, finding that no good reason was shown for the untimely filing because “Defendant and his counsel knew that the day of sentencing was March 20, 1998.” In his motion for an out-of-time appeal, counsel stated that Eisele “in no way contributed to the untimeliness of this motion.” Without holding a hearing, and without comment, the trial court denied Eisele’s motion for filing an out-of-time appeal.

After a review of the record, we conclude that the trial court failed to conduct the requisite inquiry as to who ultimately bore the responsibility for the failure to file a timely appeal. Eisele argues that he did not “sleep on his rights,” as he timely retained counsel to file an appeal on his behalf. The State concedes that Eisele’s “enumeration of error appears to be valid,” but argues that the trial court “could have determined that [Eisele] contributed to the untimely Motion for New Trial” by not hiring an attorney within a sufficient time before the deadline for filing a motion for new trial or appeal. (Emphasis supplied.) We will not speculate about the trial court’s reasoning, however. Since the trial court erred in summarily denying Eisele’s motion for an out-of-time appeal, without further inquiry or hearing, we reverse and remand the case for an evidentiary hearing regarding who, in fact, bore the ultimate responsibility for the failure to file a timely appeal.

Judgment reversed and case remanded with direction.

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

Decided May 26, 1999.

Thomas J. Ford III, for appellant.

N Stanley Gunter, District Attorney, William W. Woody, Assistant District Attorney, for appellee.

       OCGA § 5-5-40 (a) provides that “[a]ll motions for new trial, except in extraordinary-cases, shall be made within 30 days of the entry of the judgment on the verdict.” Because Eisele’s motion for new trial was not filed within 30 days after the entry of his sentence, it was untimely. Howard v. State, 182 Ga. App. 403, 404 (1) (355 SE2d 772) (1987).

       As noted, the trial court did provide an explanation for the denial of Eisele’s request to file an out-of-time motion for new trial: that both Eisele and counsel were aware of Eisele’s sentencing date. Even if we were to assume that the trial court denied Eisele’s motion for out-of-time appeal for the same reason, the trial court still failed to address the issue of whether the late filings were the result of Eisele’s conduct.


author: Barnes, Judge.

text:
    A99A0654.
    BIBB COUNTY v. SHORT.
    (518 SE2d 484)
   Barnes, Judge.

Bibb County appeals a superior court decision granting Ricky Short’s workers’ compensation claim. Short sought benefits for a psychological impairment he attributed to a physical injury sustained on the job, and the administrative law judge (ALJ) and appellate division denied the claim on the ground Short failed to establish a compensable psychological injury. The superior court found otherwise and reversed. We granted Bibb County’s discretionary appeal to determine whether the superior court erred by substituting its factual findings for those of the State Board. We conclude the superior court erred and reverse.

Short was employed by the Bibb County Board of Commissioners in a security position at Lake Tobesofkee. On July 5,1994, because of flooding conditions in the Macon area, Short’s supervisor instructed him to go to the lake to help prevent flood damage. The assignment angered Short because of the increased risk of injury. While on the lake’s dam, a steel door fell on Short’s feet and fractured two toes of his right foot.

Short received workers’ compensation while recovering from the injury to his toes. He eventually recovered from his foot injury but became increasingly anxious and depressed, and he was hospitalized several times because of alcohol abuse and psychological problems. After his toes healed, Short returned to work but his attendance and performance were erratic. His relationship with his supervisor and coworkers became more confrontational, and eventually his supervisor obtained a temporary restraining order prohibiting Short from threatening him. Short then agreed to a voluntary injunction prohibiting bim from ever working at Lake Tobesofkee or threatening his former supervisor again.

On December 31, 1995, Bibb County granted Short’s application for a disability retirement. Short subsequently sought reinstatement of workers’ compensation benefits based on a change in condition, i.e., a psychological disability he attributed to the incident of July 5, 1994.

Decided May 26, 1999.

[A] claimant is entitled to benefits under the Workers’ Compensation Act for mental disability and psychic treatment which, while not necessarily precipitated by a physical injury, arose out of an accident in which a compensable physical injury was sustained, and that injury contributes to the continuation of the psychic trauma. The physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma.

Southwire Co. v. George, 266 Ga. 739, 741-742 (470 SE2d 865) (1996).

In finding Short’s psychological problem was not compensable, the ALJ and appellate division relied upon the independent medical examination of Short by a board-certified psychiatrist, who diagnosed mixed personality disorder with passive/aggressive features and depression, and who emphasized Short’s psychological profile was longstanding and preceded the July 5, 1994 accident. In concluding otherwise, the superior court relied upon other medical evidence attributing Short’s psychological disability in part to the anger he developed over the work assignment that led to his physical injury.

The 1994 amendment to OCGA § 34-9-103 (a) did not change the standard of review to be applied by the superior court in reviewing the findings of the appellate division. On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence or the credibility of the witnesses. [Cit.]

Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997).

In this case, as there was some medical evidence supporting the State Board’s decision that Short’s compensable foot injury did not precipitate or contribute to the continuation of his psychological disability, the superior court erred in not accepting that finding and in reversing the State Board’s decision.

Judgment reversed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.

Sell & Melton, John A. Draughon, Lauren L. Benedict, for appellant.

Dozier, Lee, Graham & Sikes, Joel M. Grist, Jr., for appellee.

Haynsworth, Baldwin, Johnson & Greaves, Melisa L. Bodnar, Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, Christopher T. Ross, amici curiae.


author: Smith, Judge.

text:
    A99A0121.
    DOEHLING v. THE STATE.
    (518 SE2d 137)
   Smith, Judge.

This is the second appearance of this case in this court. Barbara Joan Doehling was charged by accusation with D.U.I. and speeding. Following Doehling’s demand for trial, the case was placed on the trial calendar. At trial, during voir dire the trial court granted the State’s request to strike the jury panel after finding it had been tainted irreparably by Doehling’s counsel’s mention of her status as a single mother. Before voir dire began on a new panel, Doehling filed a plea in bar, contending the trial had been improperly terminated. The trial court denied the plea, Doehling appealed the denial, and in Doehling v. State, 225 Ga. App. 760 (484 SE2d 791) (1997), we affirmed the trial court.

Upon remittitur from this court, the case was again scheduled for trial. Doehling then filed a motion for discharge and acquittal, alleging that the State had failed to comply with her demand for trial under OCGA § 17-7-170. The trial court denied the motion and the trial proceeded. She was found guilty by a jury of D.U.I. and speeding, and she appeals from the judgments of conviction and sentence entered thereon. In her sole enumeration of error, she contends the trial court erred in denying her motion for discharge and acquittal. We find no error and we affirm the judgments below.

Fulton County State Court has six terms, beginning the first Monday of January, March, May, July, September, and November. Ga. L. 1983, pp. 4501-4502. The record shows that Doehling was charged on December 19,1995, which was during the November term of court. On March 1, 1996, the last day of the January term, Doehling filed a demand for trial under OCGA § 17-7-170. On April 22, 1996, the day before the case was scheduled to be tried, Doehling notified the court by letter transmitted by fax that she “hereby withdraws her statutory demand for a trial in this term and asks for personal reasons that the trial be continued until after the end of May.” The trial court denied the continuance and the voir dire began, but a trial on the charges was forestalled by Doehling’s appeal of the trial court’s denial of her plea in bar resulting from the replacement of the jury panel. This court issued its opinion affirming the trial court’s action in denying Doehling’s plea in bar on March 27,1997. Doehling, supra at 762. The remittitur issued on March 27, 1997 and was filed in the trial court on April 15, 1997, during the March term of court. The case was set for trial in August and was tried on August 14 and 15, 1997.

OCGA § 17-7-170 (b) provides that when an accused files a demand for trial,

[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he [or she] shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

Doehling contends that under this Code section and the holding in Henry v. James, 264 Ga. 527 (449 SE2d 79) (1994), the State was required to try her by the end of the May term of court. The Georgia Supreme Court held in Henry that “[a] defendant who timely filed a pre-appeal demand for trial is not required to file a second demand upon return of the case to the trial court after an appeal. [Cit.]” The Supreme Court in Henry also held that the period of time in which a defendant must be tried pursuant to such a demand is tolled while the appellate court has jurisdiction of the case, whether the appeal is pre-trial or post-trial, and that when OCGA § 17-7-170 governs the demand, the State has the remainder of the term in which the remittitur is filed and one additional term in which to try the defendant. Id. at 530-531 (1) (c).

But the underlying requirement remains that a valid demand for trial must exist. Absent such a demand, no right exists to be tried within a certain time frame. And in this case, Doehling had withdrawn her demand prior to the appeal. The issue for resolution in this case is therefore not, as Doehling contends, whether the State complied with OCGA § 17-7-170 (b), but whether Doehling complied with OCGA § 17-7-170 (a) by having in place a valid and timely demand for trial.

Doehling argues that her demand was still valid after both the withdrawal and the remittitur for several reasons. None of her arguments is persuasive.

(a) Relying upon State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984) and cases following that decision, Doehling argues that because her attempt to continue the trial in 1996 was unsuccessful, her demand for trial was not waived. It is true that a defendant is deemed to have waived the right to automatic discharge under OCGA § 17-7-170 if he or she takes any affirmative action that results in continuing the case to a time outside the period of the demand. Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994). But this principle is not applicable here. Although Doehling did ask for a continuance that did not result in delaying the case, we need not examine that action or its consequences to determine if it resulted in a waiver of her demand for trial, because she also made a separate and explicit withdrawal of her demand.

(b) Doehling argues that because her withdrawal was not absolute but was intended only to withdraw the demand for the March term, it was still valid upon the filing of the remittitur in the trial court. We cannot agree. Although defense counsel indicated at the motion hearing before trial that it was Doehling’s intention not to withdraw the demand unless a continuance was granted, the trial court carefully questioned defense counsel as to whether a “deal” had been worked out with the State that this was a contingent withdrawal, and defense counsel indicated “certainly not.”

The nature of law and the practice of law is such that counsel should be . . . careful and precise in the matter of semantics. . . . It is the lawyer’s responsibility to his client to select and employ words in the construction of [pleadings] that will accurately convey the meaning intended.

(Citation and punctuation omitted.) Kushner v. McLarty, 165 Ga. App. 400, 401 (1) (300 SE2d 531) (1983). Regardless of Doehling’s intention, the plain language of the letter clearly effects an unconditional withdrawal of the demand.

(c) We find disingenuous Doehling’s reliance upon cases such as State v. Grant, 217 Ga. App. 358 (457 SE2d 263) (1995). In Grant, we held that because the defendant filed a timely demand for trial before the trial resulting in his conviction and then appealed his conviction, which resulted in reversal, the State was required to retry him during the term in which the remittitur was filed or the following term, provided that juries were impaneled and qualified. Id. at 359. But the facts in Grant simply differ from those in this case, because the defendant in Grant did not explicitly withdraw his demand. We will not permit Doehling to manipulate the system by filing a demand, withdrawing it in an attempt to delay a trial, filing an appeal, and then insisting that her demand was somehow automatically revived upon remittitur. The trial court acted properly in denying her motion for discharge and acquittal.

Decided May 11, 1999

Reconsideration denied May 27, 1999 — Cert. applied for.

Chestney Hawkins Law Firm, Robert W. Chestney, for appellant.

Carmen Smith, Solicitor, Cynthia Strong-McCarthy, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

        Henry involved the provisions of OCGA § 17-7-171 (b), rather than those of OCGA § 17-7-170 (b), because the defendant in Henry was accused of a capital crime. But the Code sections are substantially similar, and the principle set forth in Henry certainly applies to OCGA § 17-7-170 as well.


text:
    A99A0381.
    FLANIGAN v. THE STATE.
    (517 SE2d 569)
   Smith, Judge.

Anthony Kevin Flanigan appeals his conviction on pleas of guilty to aggravated battery, theft by taking, and fleeing and eluding a police officer. He contends that his pleas were not freely, intelligently, and voluntarily entered and that his counsel was ineffective. Because Flanigan has failed to demonstrate error by the record or properly preserve his claims, we affirm.

1. A direct appeal from a judgment of conviction and sentence entered on a guilty plea lies only if the issues raised on appeal can be resolved by reference to facts in the record. Echols v. State, 231 Ga. App. 501 (498 SE2d 66) (1998). Here, Flanigan has failed to demonstrate error from the facts in the record. The transcript of the guilty plea hearing demonstrates that Flanigan was advised of his rights and the consequences of his plea. In open court, in the presence of Flanigan’s attorney and the judge, the prosecutor informed Flanigan of his right to trial by jury, the presumption of innocence, the right to confront and subpoena witnesses, the right to testify, and the right to counsel throughout the trial. 'The prosecutor at that time also informed Flanigan that he would waive those rights by pleading guilty. Flanigan acknowledged that he understood that he was giving up these rights, that he understood the maximum sentence that could be imposed by the trial court, that no one had used promises, force, or threats to cause him to plead guilty, and that he was satisfied with his attorney’s representation.

While Flanigan makes a number of contentions regarding his beliefs, understanding, and purpose in pleading guilty, he has not supported his contentions by reference to the record. His unsworn, self-serving statements in his appellate brief are not evidence and cannot be considered. Harris v. State, 230 Ga. App. 403, 405 (496 SE2d 277) (1998). Flanigan has failed to meet his burden of showing that this issue can be resolved by reference to the facts in the record. Echols, supra.

Decided May 11, 1999

Reconsideration denied May 27,1999.

William H. Clerke TV, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

2. In addition, Flanigan’s claim of ineffective assistance of counsel is barred by our recent decision in Obi v. State, 229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997). No appeal will lie on the grounds of ineffective assistance of counsel without a post-plea motion and hearing.

Accordingly, the defendant may not file a direct appeal where the only evidence in the record is the transcript of the guilty plea hearing. Rather, the defendant’s proper remedy is to file a motion to withdraw his guilty plea and appeal the denial of that motion. [Cit.]

Id.

As in Obi and the decisions it cites, the record in this case contains no motion to withdraw Flanigan’s guilty plea and only the transcripts of his guilty plea hearing and sentencing hearing. Accordingly, Flanigan cannot raise this issue in this direct appeal of his conviction. See Broadwell v. State, 224 Ga. App. 193, 194 (3) (480 SE2d 215) (1996). And the trial court’s jurisdiction over such a motion to withdraw the guilty plea expired at the end of the term of court in which the judgment of conviction was rendered. Id. Flanigan’s sole remaining remedy on this claim is habeas corpus, and remand of this case to the trial court for an evidentiary hearing on the ineffectiveness claim is therefore inappropriate. Obi, supra at 96.

Judgment affirmed.

Pope, P. J., and Eldridge, J, concur.


text:
    A99A0774.
    REED v. THE STATE.
    (517 SE2d 824)
   Blackburn, Presiding Judge.

Omar Reed appeals from his conviction of involuntary manslaughter, following a jury trial, contending that the trial court erred by failing to include on the verdict form charges of reckless conduct and pointing a pistol. Reed did not object to the trial court’s failure to charge the jury on reckless conduct and pointing a pistol. We affirm because the form of the verdict was consistent with the evidence and the jury charges.

“ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Reed] no longer enjoys a presumption of innocence.’ ” Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997). Viewing the evidence in the light most favorable to the verdict, on January 13, 1998, Reed and three other men drove a borrowed car to the home of Timothy Burley. Burley was in the yard, and Reed called him over to the car. When Burley asked Reed to drive him to the store, Reed asked for $3 to pay for gas. Burley did not immediately agree to pay. During this conversation, Reed found a gun under the driver’s seat and pointed it at Burley. Burley told Reed to move the gun. Thereafter, Reed pulled the hammer back on the gun, still pointing it at Burley. Burley again told Reed to move the gun and also slapped at the gun. While still pointing the gun at Burley, Reed tried to uncock the gun by pulling the trigger and slowly letting the hammer down. Burley slapped at the gun a second time. The gun fired, fatally wounding Burley.

The record shows that the trial court instructed the jury, in relevant part, on involuntary manslaughter and on reckless conduct and pointing a pistol at another as possible underlying misdemeanors for the involuntary manslaughter charge. Reed made a written request for the court to charge the jury on reckless conduct and pointing a pistol at another, as separate offenses, which the trial court denied. Reed did not except or reserve objection to the charges. The verdict form provided as to Count 1 murder or the lesser included offense of involuntary manslaughter and Count 2 felony murder or the lesser included offense of involuntary manslaughter. Reed was convicted on Count 2, involuntary manslaughter.

Since Reed did not except to the jury charges, under these facts, any error as to the charges is waived. Wright v. State, 232 Ga. App. 646, 648 (3) (502 SE2d 756) (1998). On appeal, Reed raises as the only error the trial court’s failure to include on the verdict form reckless conduct and pointing a pistol at another, as lesser included offenses of involuntary manslaughter. The form of the verdict was consistent with the jury charges. Furthermore, the verdict form was properly adjusted to the evidence. “[T]here was no evidence of [Reed’s] allegedly reckless conduct [or pointing a pistol] other than that directly related to the death of the victim. Thus, a charge on reckless conduct [or pointing a pistol] had to be in the context of involuntary manslaughter.” Simmons v. State, 266 Ga. 223, 229 (7) (b) (466 SE2d 205) (1996). See Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998) (failure to charge on lesser offense is not error where there is no evidence of the lesser offense). The trial court did not err as contended.

Decided May 14, 1999

Reconsideration denied May 27, 1999 — Cert. applied for.

Clarke & Anderson, Alan S. Clarke, James S. Anderson, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A99A0159.
    GEORGIA FARM BUREAU CASUALTY INSURANCE COMPANY v. SCHLIES et al.
    (520 SE2d 468)
   Blackburn, Presiding Judge.

Georgia Farm Bureau Casualty Insurance Company (GFB) appeals the jury’s verdict against it in the underlying declaratory judgment action. The jury determined that GFB’s insurance contract with Marvin Wright provided coverage for injuries suffered by Officer Mark Schlies who was attempting to stop Wright from fleeing in the insured vehicle. For the reasons set forth below, we affirm the jury verdict.

1. In its first enumeration of error, GFB contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict and new trial will not be disturbed.

(Punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

Viewing the evidence in favor of the verdict, it reveals that on the night of the incident, Wright broke into his estranged wife’s (Kalene Wright) house and raped her at gunpoint. The Wrights had been separated for two months, and Kalene had filed for divorce six weeks prior to the incident. Marvin left the house with Kalene, requiring her to drive her Chevrolet. Kalene thought Marvin was going to kill her. While driving, she spotted Officer Schlies’ police vehicle, pulled up beside it, and motioned for the officer to stop. Kalene stopped her car and got out but was unsuccessful in her efforts to obtain the car keys. She told Officer Schlies that she had been kidnapped and that Marvin had a gun.

Officer Schlies then attempted to detain Marvin while he was outside of the vehicle, but Marvin jumped into the car and started the engine in an effort to flee. Officer Schlies got into the passenger side of the car and told Marvin to stop the vehicle. At the same time, Kalene attempted to get Marvin to stop from the driver’s side. Eventually, Marvin got the car in gear, it began to travel forward, and Kalene jumped into the driver’s seat on top of Marvin. Thereafter, the car hit a building, and Officer Schlies was injured.

GFB issued the insurance contract at issue to Marvin and Kalene Wright, covering, among other vehicles, Kalene’s Chevrolet Cavalier. The insurance contract contained an exclusion to coverage which provided: “We do not provide Liability Coverage for any person: . . . [u]sing a vehicle without a reasonable belief that the person is entitled to do so.” GFB argues that at the time of this incident, Marvin was not using the insured vehicle with a reasonable belief that he was entitled to do so. GFB concludes, therefore, that coverage is excluded pursuant to the terms of the policy.

The exclusion at issue has been found to be ambiguous and interpreted to require “a mixed objective/subjective determination of the user’s state of mind — the reasonableness of the user’s subjective belief of entitlement.” Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 713 (1) (470 SE2d 659) (1996). Additionally, pursuant to the rules of contract interpretation, the insurance policy is construed against GFB, the drafter.

The Wrights were married at the time of the incident, and Marvin was a named insured on GFB’s insurance contract which insured the car. Marvin was making the car payments at the time of the incident. Marvin had actually used the car several times since the Wrights’ separation without asking for permission, and Kalene testified that Marvin did not have to ask for permission to use the car. She believed he had an ownership interest in the car at the time of the incident, although the car was actually titled in her name.

Under the facts of this case, the trial court did not err in denying GFB’s motion for a directed verdict. Rather, the trial court erred in denying Schlies’ motion for directed verdict. Under the facts of this case, there is no dispute that Wright was entitled to use the Chevrolet. His estranged wife, title holder to the vehicle, testified that he could use it without asking for permission.

Decided May 27, 1999 — Cert. applied for.

Fain, Major & Wiley, Charles A. Wiley, Jr., Kim M. Jackson, for appellant.

GFB essentially argues that because Wright was using the car for an illegal purpose, i.e., attempting to flee from Officer Schlies, that Wright could not have reasonably believed that he was entitled to use the vehicle. GFB’s argument is without merit. Our Supreme Court has determined that the exclusion at issue does not implicate whether the driver had a legal right to drive, but whether the non-owner driver had a reasonable belief that he had permission from the owner or apparent owner to use the vehicle. Hurst, supra at 716-717. In Hurst, the insurance company argued that the unlicensed driver could not have reasonably believed he was entitled to drive the car because he did not have a legal right to do so. The Court determined that a provision excluding unlicensed drivers was valid; however, the exclusion at issue did not distinctly exclude unlicensed drivers. Id. at 717 (5). Similarly, in the present case, the provision at issue does not exclude coverage for illegal acts. In fact, such an exclusion would not be enforced as against public policy. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985). By way of further example, any time an accident was caused by an insured driver under the influence of alcohol, the insurance company would exclude coverage because someone under the influence of alcohol is not entitled, by law, to drive a car. Such is not the law. See id. See also Hurst, supra at 715-716 (3).

Additionally, it was unnecessary for a jury to determine that issue because as a matter of public policy, GFB is estopped from contending that a named insured on its policy was not entitled to use a vehicle listed on that policy. Wright paid premiums to GFB for the policy which were ostensibly calculated with Wright as a specifically listed driver of the vehicle. GFB accepted those premiums and reaped the benefit from them. Therefore, as the trial court should have granted Schlies’ motion for directed verdict, it did not err in denying GFB’s motion for directed verdict. Any other error alleged to have occurred during trial is rendered moot by our decision herein.

2. In light of our holding in Division 1, GFB’s remaining enumerations of error are rendered moot.

Judgment affirmed.

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

Steven K. Leibel, for appellees.


text:
    A99A0411.
    BRASWELL v. CLAYTON et al.
    (518 SE2d 714)
   Blackburn, Presiding Judge.

Following a jury trial in her personal injury action, Donna Marie Braswell appeals the defense verdict in favor of Linda Sue Clayton and Michael Dennis Harvell, contending that: (1) the trial court erroneously charged the jury regarding the imputation of a driver’s negligence to a guest passenger and (2) the trial court erroneously charged the jury regarding comparative negligence and the apportionment of damages. For the reasons set forth below, we reverse.

The record shows that, on May 18,1993, Clayton was driving her truck and Braswell was her passenger. Braswell had agreed to accompany Clayton on a trip to visit one of Clayton’s friends. On the way, Clayton decided to make a stop to buy some chewing gum. While driving to the store, Clayton crested a hill and noticed Harvell’s car in the lane in front of her. Both Braswell and Clayton testified that Harvell was stopped in the road and that his left turn signal was on. As Clayton approached, she discovered that her brakes were malfunctioning. Braswell advised Clayton to pump the brakes and to turn right into a parking lot in order to avoid the collision. After looking to the right and judging for herself, Clayton attempted to turn into the parking lot. Clayton unequivocally testified that, although Braswell initially suggested the right turn into the parking lot, she made the ultimate decision on her own after looking to the right to see if the way were clear. Harvell also turned to the right, and the two cars collided. Braswell claimed that her shoulder and neck were injured as a result of the collision.

1. Braswell contends that the trial court improperly charged the jury regarding imputation of a driver’s negligence to a guest passenger. While the substance of the trial court’s charge was an adequate statement of the law, see Steedley v. Snowden, 138 Ga. App. 155, 156 (1) (225 SE2d 703) (1976), the charge was not adjusted to the facts in this case. There simply was no evidence in the record that Braswell committed any acts which affected Clayton’s driving and could, therefore, be imputed back to Braswell.

No duty devolves upon the guest passenger, who has no right or duty to control the operation of the automobile, unless the circumstances are such that he is afforded a reasonable opportunity to take appropriate action to avoid being injured. In every case we have found holding that a guest passenger had a duty to take some affirmative action such as to warn his host driver of a hazard, it appears from the facts and circumstances that the guest had actual knowledge of the hazard coupled with an opportunity to take appropriate action to avoid injury to himself or to warn the host driver of the hazard.

(Punctuation omitted.) Id. at 157.

By her own admission, Clayton testified that the decision to turn right into the parking lot, thereby precipitating the collision, was her choice, despite Braswell’s prior suggestion. As such, Clayton denied that the one act in the record supporting Braswell’s negligence had any effect on her driving decisions. Accordingly, the trial court erred in charging the jury on the law of imputed negligence because there was no evidence supporting such a charge at all, and it was not adjusted to the facts of this case.

2. Braswell also contends that the trial court improperly charged the jury with regard to Braswell’s comparative negligence and the apportionment of damages. Again,, we must agree.

The trial court charged:

If you find that a defendant was negligent and that the plaintiff was also guilty of negligence which contributed to the plaintiff’s injury and damages, and the plaintiff’s negligence was equal to or greater than that of the defendant’s, then the plaintiff cannot recover.
Now, if you find that a defendant was negligent so as to be liable to the plaintiff, and that the plaintiff was also negligent, thereby contributing to the plaintiff’s injury and damages, but that the plaintiff’s negligence was less than the defendant’s negligence, then the negligence of the plaintiff would not prevent the plaintiff’s recovery of damages, but would require that you reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendants.

As long as there is any evidence that a plaintiff was negligent, a comparative negligence charge will not constitute reversible error. See Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472 (433 SE2d 398) (1993). In this case, however, as pointed out in Division 1, above, Clayton admitted during trial that Braswell’s advice did not ultimately affect her driving decisions, thereby eliminating any inference that Braswell’s advice could have contributed to the accident with Harvell. Moreover, there is no other evidence that Braswell was negligent in any way which could have attributed to her injuries, such as impeding Clayton’s view of the road. As a result, the trial court erred by instructing the jury on the concepts of comparative negligence without limiting the application of such doctrine to the two drivers in this case.

Decided May 27, 1999.

Jack F. Witcher, Ana M. Rountree, for appellant.

Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, Glenn M. Jarrell, Downey & Cleveland, Russell B. Davis, for appellees.

As this instruction “could have led the jury into determining that the fault of the plaintiff[] and defendant [s] was equiponderant, resulting in a finding for the defendant [s],” it must be considered harmful error, and this case must be reversed. Snowden, supra at 158 (1).

Judgment reversed.

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


text:
    A99A0489.
    In the Interest of I. S. et al., children.
    (520 SE2d 470)
   Smith, Judge.

The mother of I. S. and G. S. appeals from the order of the Juvenile Court of Chatham County terminating her parental rights, alleging that the evidence was insufficient to support the termination. We find no error, and we affirm.

The record shows that I. S. and G. S., then aged four years old and ten months old, respectively, were placed in the custody of the Chatham County Department of Family & Children Services in September 1993, after DFACS received a report concerning injuries to G. S. That child was admitted to a local hospital because of severe burns to his feet, described as “stocking” or immersion burns. Following an investigation, the juvenile court entered an order finding G. S. and I. S. to be deprived. According to the order, the mother stated that she had left the two children in the bathtub for no more than two minutes, that she heard G. S. cry and returned to the bathroom to find G. S. “standing in the empty bath tub with skin hanging off his feet.” The juvenile court found more credible the testimony of medical personnel stating that G. S.’s burns were caused by immersion in hot water and that the burns “were consistent with the child having been held and his feet dipped deliberately into scalding hot water.” According to one caseworker, G. S. was required to undergo hydrotherapy, and he also was hospitalized because of a virus “attributed to eating bad food at the residence.” G. S. was temporarily placed with his maternal aunt and I. S. with his maternal grandmother, but the children were later placed into foster care and, at the time of the termination hearing in July 1998, had lived in several different foster homes. The mother pled guilty to the felony charge of cruelty to children arising out of the incident with G. S. and received a ten-year suspended sentence.

After DFACS took custody of the children, a reunification plan was developed for the mother requiring her to attend parenting classes, undergo a psychological evaluation, visit with the children regularly, and cooperate with DFACS. A supplemental order also required her to engage in counseling for the purpose of reducing “the risk of a recurrence of physical abuse.” The caseworker who developed the mother’s initial plan and worked with her for the first 30 days testified that she was hostile, defiant, and verbally abusive on several occasions and that she offered “no cooperation whatsoever.” He described her as “one of the most oppositional people that I’ve ever had to work with.” According to the caseworker who worked with the mother for the remainder of the proceedings, the mother was often hostile and uncooperative.

Evidence was presented that the mother completed parenting classes as required by the plan. The mother’s caseworker also testified that the mother visited with the children on a “fairly regular” basis and that family interaction went well, although the mother often was late despite her caseworker’s efforts to find a convenient time for the mother to visit. Even on her last visit with the children, the mother arrived late and left early. The caseworker also testified that the mother often seemed to give other activities, such as college, higher priority than the children.

Despite the caseworker’s testimony that the mother’s interactions with the children were usually positive, I. S.’s foster mother testified that his response to visits with the mother was “ [t] errible. When he comes back home, it takes us a few days to stabilize him again. He’s disruptive [and] oppositional.” The foster mother also testified that I. S. refused to discuss visits with his mother and that he was belligerent both before and after the visits. A family service worker who took I. S. to see the mother testified that he often did not want to visit.

With respect to the requirement that the mother obtain counseling, evidence was presented that from 1995 through 1997 she saw four different therapists. She first met with Dr. Bernard McGahee, beginning in February 1995, for a total of six out of ten scheduled sessions. He testified that she made no progress, that she denied “any responsibility” for the injuries to G. S., and that she “just quit showing up” for her sessions. He believed that she needed continued counseling. The mother then began seeing Dr. Mahesh Gupta, a therapist of her choice whom she paid a nominal fee, “off and on.” She saw Dr. Gupta for approximately ten sessions during 1996. The mother saw a third therapist, Ken Denny, from February 1997 through April 1997 for ten visits. Denny testified that the mother made some progress in the area of anger management and appropriate behavior when “dealing with authority figures,” but when scheduled therapy concluded after ten sessions, he believed further therapy was required. The mother did see Denny for five more sessions and then another therapist, who did not testify at trial. After 20 visits, however, Denny believed that additional counseling was needed for the mother “to be able to adequately parent the children.”

Although this shows that at least one of the mother’s counselors observed some progress toward the goal of anger and hostility management, evidence to the contrary was also presented. In September 1997, Officer Victor Jones of the Liberty County Sheriff’s Department was working in an off-duty capacity at a restaurant around 3:00 a.m, when he was summoned inside concerning “an unruly customer.” The waitress reported that the customer, the mother in this case, had been “verbally abusive” and “physically menacing” and that she had asked her to leave the restaurant because of her inappropriate dress. Officer Jones recognized the mother when he entered the restaurant because he had seen her earlier in the evening “involved in a verbal altercation” with a man. He asked the mother to leave until she was appropriately dressed, and she responded by cursing at him.

After Jones escorted the mother outside, she “continued to be belligerent and uncooperative.” Because of this conduct, Jones told her she was under arrest for disorderly conduct, but she walked away, refusing to comply with Jones’s commands to stop. He caught and began to handcuff the mother, and she struck him in the face. Jones stated that it took himself and three or four other officers to place her in a police vehicle “because she was belligerent and uncooperative and fighting.” The officers finally succeeded in placing her in the vehicle after spraying her with pepper spray, “which didn’t have a visible effect,” and she kicked out the window of the car. Jones stated he “could smell a strong odor of alcohol about her.” The mother pled guilty to charges of obstruction of an officer, damage to government property, and disorderly conduct arising out of this incident. She was apparently sentenced only to probation but served some time in jail because her probation was revoked on her sentence for the previous cruelty to children conviction.

Evidence was also introduced concerning other incidents of violence involving the mother. In August 1996, after G. S. and I. S. had begun overnight visits with their mother, her caseworker visited the mother’s home and saw stitches in the mother’s nose. She also observed two broken windows. The mother initially would not explain to the caseworker what happened, but later told her that she had been in a fight with three other women at a club and that the women came to her home and broke her windows. The mother told her caseworker that her children were not in danger after this incident, however, indicating that she carried a weapon in her purse. Also, once when G. S. and I. S. were visiting with the mother in her home, she and a man began what she referred to as horseplay, but the man became serious and began to threaten her. Eventually during this incident a window was broken.

Finally, we note that evidence was presented concerning problems experienced by both G. S. and I. S. After G. S. was placed into the custody of DFACS, a heart murmur was discovered. The mother did not attend a doctor’s appointment concerning this condition. As for I. S., at one point after being taken from the mother he was institutionalized at Georgia Regional Hospital. His foster mother testified that when she brought him from this institution, he was in “bad shape” and that it took “weeks to stabilize him.” He could not attend regular school because of behavior problems. According to his foster mother, I. S. fought, kicked, screamed, and butted his head. His behavior improved during his stay with this witness, however. The mother’s caseworker stated that she believed a suitable adoptive home for the children had been found.

Under OCGA § 15-11-81 (a), the decision to terminate a parent’s rights is a two-step process. The juvenile court must first determine whether clear and convincing evidence of parental misconduct exists, and if so, whether termination is in the best interest of the child, “after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a). A determination of parental misconduct or inability must be supported by evidence showing the following factors: the child is deprived; the parent’s lack of proper parental care or control caused the deprivation; the cause of deprivation is likely to continue; and continued deprivation will or may cause “serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (i)-(iv).

On appeal of a juvenile court’s decision to terminate parental rights, we view the evidence in a light most favorable to the juvenile court’s judgment, and we determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights have been lost. In the Interest of C. D. F., 222 Ga. App. 905 (1) (476 SE2d 654) (1996). So viewing the evidence presented below, we conclude that the evidence was sufficient to support the juvenile court’s findings and decision to terminate the mother’s parental rights.

First, sufficient evidence of the mother’s parental misconduct or inability was presented. The previous unappealed orders of the juvenile court, particularly the September 1993 order entered following the admission of G. S. to the hospital emergency room for severe burns, established that I. S. and G. S. were deprived. C. D. F., supra at 907. And the mother’s guilty plea to charges of cruelty to children arising out of the incident, although she continues to deny that she intentionally injured G. S., shows that her conduct was the cause of the deprivation, as required by OCGA § 15-11-81 (b) (4) (A) (ii). See generally In the Interest of R. M., 232 Ga. App. 727, 728 (503 SE2d 635) (1998) (“obvious link” between parents’ physical abuse of children and criminal convictions). Her conduct toward G. S. certainly was “egregious” and constituted substantial evidence that G. S.’s injury “resulted from parental neglect or abuse,” factors the juvenile court was authorized to consider when making its decision. See OCGA § 15-11-81 (b) (4) (B) (iv), (vi).

Lack of proper parental care or control by the mother also was shown by her failure to complete the goals of her reunification plan. See generally In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (b) (501 SE2d 259) (1998). She may have completed some of the goals, such as attending parenting classes and visiting with the children on a fairly regular basis, and her caseworker testified that she sometimes made progress toward completing the goals. We also note the mother’s testimony that she had career goals, as well as testimony by her caseworker that she attended college and was employed “off and on” throughout the five years between the time DFACS took custody of her children and the time of the hearing.

But evidence also was presented of the mother’s failure to make progress toward all goals of the plan. She did not, for example, attend all scheduled visitations and often was late, even for her last visit before the hearing. Her caseworker testified that other activities often seemed to take priority over the mother’s children. And although the mother did receive counseling as required by her case plan, evidence was presented that further counseling was necessary before she would be ready to care for her children. Furthermore, the mother was often uncooperative and hostile toward her therapists and caseworkers. In fact, the mother’s hostile attitude often manifested itself in violence, as shown by her interaction with Officer Jones several months before the hearing, her fight with other females, and the violence that occurred in her home involving a man when her children were present.

Decided May 27, 1999.

Darden & Moyers, Richard M. Darden, John D. Gatch, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Edith J. Gilbert, for appellee.

These same factors — the mother’s continued failure to comply with the reunification plan and especially her repetitive outbursts of violence — show that the deprivation is not likely to be remedied. OCGA § 15-11-81 (b) (4) (A) (iii). And the mother’s violent behavior shows that continued deprivation could cause serious physical harm to the children. OCGA § 15-11-81 (b) (4) (A) (iv). The juvenile court was not required to return the children to their mother until they suffer “the seemingly inevitable serious injury or death. [Cit.]” In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998).

Finally, the evidence was sufficient to show that termination was in the best interest of the children. The same factors showing the existence of parental misconduct or inability can support a finding that termination of parental rights would be in the child’s best interest. See, e.g., In the Interest of B. P., 207 Ga. App. 242, 245 (427 SE2d 593) (1993). The mother’s failure to comply with the terms of her reunification plan and her outbursts of violence clearly support the conclusion that termination would be in the best interest of the children. Furthermore, the mother’s caseworker testified that G. S. and I. S. needed a stable and permanent home and that they had been moved from home to home several times after DFACS took custody. It is well settled that when considering the best interest of a child or children the juvenile court is authorized to “consider their need for stability and the harmful effects of prolonged foster care.” (Citation omitted.) In the Interest of D. A. P., 234 Ga. App. 257, 260 (506 SE2d 438) (1998). In addition, the best interest of the children would be served by termination of the mother’s parental rights, as evidenced by I. S.’s belligerent and difficult behavior before and after his visits with the mother. After reviewing the evidence in the light most favorable to the mother, a rational trier of fact could have found clear and convincing evidence that her rights had been lost.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       This incident occurred approximately ten months before the mother’s termination hearing.


text:
    A99A0594.
    WILLIAMS v. THE STATE.
    (520 SE2d 466)
   Smith, Judge.

Leslie Williams was indicted on charges of entering an automobile with intent to commit a theft and violation of OCGA § 16-11-131, which makes it a felony for any person on probation as a first offender, see OCGA §§ 42-8-60 through 42-8-65, or any person who has previously been convicted of a felony, to possess a firearm. OCGA § 16-11-131 (b). Following a bifurcated jury trial, Williams was found not guilty of entering an automobile but guilty of violating OCGA § 16-11-131. He filed a motion for new trial* which was denied, and he now appeals. Because we conclude that the evidence was insufficient to convict Williams, we agree with Williams that reversal is required.

Williams does not dispute the material facts of the incident underlying his prosecution. On the night of January 31, 1995, the victim discovered that his Jeep, which was parked in his driveway, had been broken into. He saw the headlights on, the driver’s door open, broken glass on the ground and inside the vehicle, and the steering column damaged. A short time later, police arrested Williams and two juveniles, after stopping the car Williams was driving. During an inventory search of Williams’s car, police discovered a Lorcin .380 semiautomatic pistol and an RG .22 caliber revolver inside the car.

Williams argues that insufficient evidence existed to convict him of violation of OCGA § 16-11-131. That statute provides in relevant part: “Any person who is on probation as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or who has been convicted of a felony by a court of this state . . . and who receives, possesses, or transports any firearm commits a felony.” OCGA § 16-11-131 (b). Williams does not take issue with the finding inherent in the jury’s verdict that he possessed the guns found inside his car. He contends, however, that he was not “on probation as a first offender,” as required by OCGA § 16-11-131 (b). We agree.

The State did present evidence that Williams was convicted and sentenced as a first offender in 1992. Williams was subsequently convicted of another felony offense in 1993, however, and his first offender probation was revoked. Consequently, when he was arrested in 1995, he was no longer “on probation as a first offender.” OCGA § 16-11-131 (b). The evidence therefore was insufficient to convict Williams of violation of OCGA § 16-11-131 (b).

OCGA § 16-11-131 (b) also states that a convicted felon in possession of a firearm commits a felony, and Williams was a convicted felon at the time of his January 1995 arrest. But the indictment for the 1995 incident charged Williams with violation of OCGA § 16-11-131 in only one specific manner: possession of a firearm when he had been sentenced to a term of probation as a first offender. To uphold Williams’s conviction on the ground that the evidence also showed that he was a convicted felon in possession of a firearm would be unauthorized. “To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance.” (Citations and punctuation omitted.) Ross v. State, 195 Ga. App. 624, 625 (1) (394 SE2d 418) (1990). See also Legg v. State, 207 Ga. App. 399, 401 (4) (428 SE2d 87) (1993).

Decided May 27, 1999.

Anna Blitz, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

The State argues that the indictment charging Williams with violation of OCGA § 16-11-131 did not require proof that Williams was still on first offender probation in January 1995. Instead, according to the State, the indictment required only proof that Williams had previously been sentenced to a term of probation as a first offender. Because evidence was presented that Williams was indeed sentenced to probation as a first offender in 1992, the State maintains the evidence was sufficient to convict him, despite the fact that this probation had been revoked. We cannot agree. Merely having once been sentenced to a term of probation as a first offender is not an element of the crime defined in OCGA § 16-11-131 (b). The crime is committed when one who is currently on probation as a first offender possesses a firearm. The evidence presented at trial did not meet this definition.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       The indictment states in relevant part that Williams violated OCGA § 16-11-131 by possessing certain firearms, the “accused having been sentenced pursuant to Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated to a term of probation as a First Offender” in January 1992.


author: Judge Harold R. Banke.

text:
    A99A0621.
    HORTON v. WHITAKER.
    (518 SE2d 712)
   Judge Harold R. Banke.

Shirley Marie Horton sued Jerrie Whitaker for personal injuries allegedly caused by an automobile collision for which Whitaker was cited for running a stop sign. Horton lodged her suit solely against Whitaker individually and did not name any government entity as a party.

Whitaker responded that she was constitutionally entitled to immunity as a state employee. Whitaker asserted that the lawsuit was barred by the Georgia Tort Claims Act as well as by Horton’s failure to comply with OCGA § 50-21-26’s notice provisions. In a verified response to Horton’s interrogatories, Whitaker stated that for about nine years she had been an employee of the State of Georgia, Department of Human Resources.

Filing a “special appearance answer,” the State agreed with Whitaker and moved to dismiss the complaint. The State, on behalf of Whitaker, sought dismissal premised on Whitaker’s status as a State employee acting within the scope of her employment. Whitaker separately moved for dismissal and offered two affidavits to prove that at the time of the accident, she was acting within the scope of her employment as an employee of the Community Service Board of Middle Georgia (“Board”) while operating a Department of Human Resources van carrying mentally impaired clients of the Board.

Relying upon that testimony, the trial court converted the motions to dismiss to ones for summary judgment. Finding that Whitaker, as a State employee, was immune from suit and from tort liability and that Horton failed to provide the ante litem notice mandated by a subsection of the Tort Claims Act, the trial court granted summary judgment. Held:

In her sole enumeration of error, Horton contends that summary judgment was improperly granted because she was suing Whitaker in an individual capacity for injuries caused by Whitaker’s violation of State law occurring while Whitaker was performing a ministerial duty as a State employee.

Merely styling a suit against a public officer as one brought against such person personally does not deprive the officer of immunity to which she might otherwise be entitled under the Tort Claims Act. Coultas v. Dunbar, 220 Ga. App. 54, 58 (467 SE2d 373) (1996); Brooks v. Barry, 223 Ga. App. 648, 649 (1) (478 SE2d 616) (1996). Thus, the fact that Horton sued Whitaker as an individual would not preclude the assertion of the defense of immunity. Riddle v. Ashe, 269 Ga. 65, 66 (1) (495 SE2d 287) (1998). Moreover, before suit can be filed against the State, ante litem notice is an essential condition precedent. Howard v. State of Ga., 226 Ga. App. 543 (1) (487 SE2d 112) (1997). Strict compliance with the notice provisions of OCGA § 50-21-26 (b) is mandatory. McGee v. State of Ga., 227 Ga. App. 107 (1) (487 SE2d 671) (1997).

Here, the incident at issue occurred on May 31, 1996, and Horton did not file suit until nearly two years later. Inasmuch as the record contains no evidence showing that Horton provided timely notice of her claim to the State, the action is procedurally foreclosed provided that Whitaker was a State employee acting within the scope of her employment at the time of the accident. See McGee, 227 Ga. App. at 109 (2).

However, the State now requests that we vacate the trial court’s order due to the State’s recent discovery that Whitaker was not, in fact, an employee of the State at the time of the accident. The State contends, apparently for the first time, that the “legal conclusion” that Whitaker was a State employee was erroneous because Whitaker was an employee of a community service board and such boards are not agencies of the State. The State’s legal argument is correct.

By law, community service boards “shall not be considered agencies of the state, or any specific county or municipality. Such community service boards are public agencies in their own right and shall have the same immunity as provided for counties.” OCGA § 37-2-11.1 (c) (1). Thus, the immunity of such boards is co-extensive with that of counties. Cf. Coffey v. Brooks County, 231 Ga. App. 886, 888 (2) (500 SE2d 341) (1998) (official immunity inapplicable to county employees who negligently perform ministerial acts or who act with actual malice or an intent to injure).

In light of the disputed factual issue as to Whitaker’s employment status, we reverse. If the trier of fact determines that Whitaker was a State employee at the time of the collision, then the trial court should enter judgment for WTiitaker due to Horton’s failure to provide ante litem notice. If the trier of fact decides that Whitaker was not a State employee but was a Board employee at the time of the collision, then the trier of fact must resolve whether Whitaker’s actions arose from the use of a motor vehicle covered by an insurance policy. See, e.g., Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995).

A county’s sovereign immunity [is] waived pursuant to OCGA § 33-24-51 (b), but only “to the extent of the amount of liability insurance purchased for the negligence of (county) officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.” [Cit.]

Decided May 27, 1999.

Ken IE Smith, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Brenda A. Raspberry, Assistant Attorney General, Brown & Livingston, Becky D. Livingston, for appellee.

(Emphasis in original.) Id.; see Saylor v. Troup County, 225 Ga. App. 489 (484 SE2d 298) (1997); Blumsack v. Bartow County, 223 Ga. App. 392, 394 (1) (477 SE2d 642) (1996).

Judgment reversed and case remanded with direction.

Blackburn, P. J., and Barnes, J., concur.

       At a hearing, the State’s counsel informed the court that the proper party to the suit was the State. Counsel also said that the van was owned and insured by the State.


text:
    A99A0652.
    ARNOLD v. THE STATE.
    (518 SE2d 716)
   Blackburn, Presiding Judge.

Johnny Arnold appeals his convictions, following a jury trial, for armed robbery and possession of cocaine, contending (1) that the evidence was insufficient to support the verdict for possession of cocaine and (2) that the trial court erred by failing to instruct the jury on the lesser included offenses of robbery and robbery by intimidation. For the reasons set forth below, we affirm.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Arnold] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The record shows that, on the night of December 28, 1996, Arnold entered the Pit Stop convenience store, selected some beer, and approached the check-out counter. Arnold then opened his jacket and showed the clerk on duty, Gail Bergen, that he was carrying a holstered gun. Arnold then pointed the gun at Bergen and demanded money. A videotape from the store’s security was introduced showing Arnold approaching Bergen and Bergen handing over a large stack of money. Bergen identified Arnold as the perpetrator from a photographic lineup and at trial. The store owner also recognized Arnold from the videotape, and Arnold admitted that he was depicted on the tape. During a consensual search of the apartment in which Arnold was staying for the robbery weapon, police found crack cocaine under the cushions of a couch where Arnold was sitting. Arnold stated to one of the officers that the cocaine was for his personal use.

Decided May 27, 1999.

Faye E. Hays, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

This evidence is more than ample to support Arnold’s convictions. Although Arnold argues on appeal that the apartment was his mother’s, that the State was required to prove his constructive possession of the cocaine, and that his mother had equal access to the cocaine and could have put it there, such arguments are inapposite to this case. The simple fact is that Arnold’s mother died more than a month prior to the time the search was conducted, and Arnold was the only person inhabiting the apartment. Therefore, the equal access defense is inapplicable. Moreover, Arnold admitted that the cocaine was for his personal use. As such, his current effort to blame his dead mother for his crime is rejected.

2. Arnold contends that the trial court erred by refusing his written request to instruct the jury on the lesser included offenses of robbery and robbery by intimidation. Arnold argues that the surveillance tape does not show him carrying a gun, thereby providing some evidence that he committed the robbery without a weapon. The videotape, however, is partially obscured, and, although it does not show Arnold pointing a gun at Bergen, it does not conflict with Bergen’s testimony that Arnold was carrying a gun. As such, the only evidence before the court was that Arnold committed the robbery with a weapon or not at all. In this circumstance, it was not error for the trial court to refuse Arnold’s request for an instruction on robbery or robbery by intimidation. See, e.g., Lemattey v. State, 234 Ga. App. 889 (508 SE2d 215) (1998); Kirkland v. State, 173 Ga. App. 687 (2) (327 SE2d 808) (1985).

Judgment affirmed.

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


text:
    A99A0742.
    FRANK et al. v. FLEET FINANCE, INC. OF GEORGIA.
    (518 SE2d 717)
   Ruffin, Judge.

This case began as a dispossessory action filed by Fleet Finance, Inc. of Georgia against John and Connie Frank following Fleet’s foreclosure on the Franks’ residence in Henry County. In an amended answer, the Franks asserted a counterclaim, seeking punitive damages for intentional infliction of emotional distress. Fleet moved for partial summary judgment on the intentional infliction claim. The trial court granted summary judgment to Fleet, and the Franks appeal. We affirm.

Pursuant to OCGA § 9-11-56, summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. In order to prevail in a motion for summary judgment, a defendant must demonstrate “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [jury] issue as to any essential element of plaintiff’s claim.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In reviewing a trial court’s grant of summary judgment, our review is de novo, and we view the evidence in the light most favorable to the nonmovant. Taylor v. Gelfand, 233 Ga. App. 835-836 (505 SE2d 222) (1998).

We detailed the facts of this case in our opinion in Frank v. Fleet Finance, 227 Ga. App. 543 (489 SE2d 523) (1997). Succinctly stated, the facts are as follows: In 1988, the Franks financed the purchase of residential property through Griffin Federal Savings Bank. In 1990, the Franks obtained a second mortgage that was transferred to Fleet. After Griffin foreclosed on the property, Fleet purchased the property in January 1993. The Franks continued to live at the residence as tenants.

According to the Franks, in April 1993 Fleet offered to sell them the house. On May 7, 1993, the parties signed a contract in which Fleet agreed to sell John Frank the property for $192,000, with Frank putting $10,000 down and Fleet holding a first mortgage for the remaining $182,000 at ten and one-half percent interest for thirty years. According to the contract, the closing was to take place on or before May 31, 1993, unless both parties agreed, in writing, to extend the contract. Although the closing did not take place by May 31, 1993, John Frank asserts that he was told by a vice president of Fleet that Fleet would extend the date for closing and that it was not necessary to change the contract.

The Franks contend that all they had to do to close the contract was to tender the $10,000 down payment to Fleet. According to the Franks, they were ready, willing and able to tender the down payment, but Fleet failed to schedule a closing date. The Franks sent Fleet numerous letters and made multiple phone calls in an attempt to schedule the closing, but Fleet failed to respond.

In October 1993, the Franks sent Fleet a cashier’s check in the amount of $10,000, which Fleet deposited. Fleet subsequently attempted to return the money, but the Franks refused to accept the refund.

In May 1994, Fleet began dispossessory proceedings against the Franks and, through a police officer, served Connie Frank with a summons at the school where she worked. According to Connie Frank, she was embarrassed when the police officer appeared at the school and the experience made her cry. After learning of the dispossessory proceedings, John Frank went to Fleet’s offices where he met with a Fleet employee. Following this meeting, Fleet agreed to dismiss the dispossessory action.

Fleet recommenced dispossessory proceedings in February 1995. Once again, John Frank went to Fleet’s offices where he met with another Fleet employee who told him that the May 1993 contract was invalid. However, in view of the Franks’ interest in purchasing the property, the employee said that Fleet would continue the dispossessory action for 30 days to give the Franks time to obtain financing elsewhere to purchase the house. The Franks contend that, although Fleet decided in June 1993 not to honor the May 1993 contract, Fleet failed to inform them of its decision until March 1995, at John Frank’s second meeting with Fleet.

John and Connie Frank sued Fleet for intentional infliction of emotional distress, claiming that Fleet’s failure to close the sale of the house in accordance with the contract was upsetting to them. They claim that the uncertainty with regard to the status of their home caused them to become more reclusive. John Frank suggested that the stress from the lengthy lawsuit has caused his hair to turn prematurely gray. Connie Frank claims she has been “emotionally torn apart . . . since all of this has been going on on the house.” In addition, she claims that she has gained weight, has lost sleep, and is generally more nervous.

Although Fleet disputes the Franks’ version of the facts, for purposes of reviewing the trial court’s grant of summary judgment, we will treat their contentions as true. However, even if we give the Franks the benefit of all reasonable doubts and inferences, we agree that the trial court properly granted summary judgment to Fleet on the Franks’ claim of intentional infliction of emotional distress.

“Georgia has long recognized a cause of action for intentional infliction of emotional distress.” Thomas v. Ronald A. Edwards Constr. Co., 163 Ga. App. 202, 204 (2) (293 SE2d 383) (1982). However, “[t]he burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one.” (Punctuation omitted.) Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (1) (404 SE2d 802) (1991). To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242-243 (2) (503 SE2d 877) (1998). The defendant’s conduct “must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Punctuation omitted.) Martin v. North American Van Lines, 226 Ga. App. 187, 190 (2) (c) (485 SE2d 815) (1997). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Punctuation omitted.) Taylor, supra at 837 (3).

The Franks argue that Fleet’s conduct in entering into a contract to sell them the house only to leave them “dangling in an abyss of uncertainty and anguish” for almost two years constitutes extreme and outrageous conduct. We disagree. The gravamen of the Franks’ complaint against Fleet is that Fleet breached its contract with them. In doing so, Fleet may have acted in bad faith. However, Fleet’s conduct cannot be described as extreme, outrageous, atrocious, intolerable or beyond the bounds of decency. See Discovery Point Franchising v. Miller, 234 Ga. App. 68, 73 (4) (505 SE2d 822) (1998) (sharp business practices do not rise to level of outrageousness to support a claim for intentional infliction of emotional distress); Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 846-847 (3) (479 SE2d 180) (1996) (nursing home’s conduct in discharging a patient in violation of contract was not outrageous or egregious); Ingram, supra (summary judgment on intentional infliction claim affirmed where defendant’s conduct consisted of wrongfully foreclosing on plaintiff’s property).

To the extent that the Franks’ claim is premised upon Fleet’s conduct in instituting dispossessory proceedings against them, this claim also must fail. This Court has recognized that the swearing out of a dispossessory warrant does not constitute the kind of egregious conduct necessary to sustain a claim for intentional infliction of emotional distress. Thomas, supra at 205 (2) (b). Accordingly, the trial court did not err in granting summary judgment to Fleet on the Franks’ claim of intentional infliction of emotional distress.

Judgment affirmed.

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

Decided May 27, 1999.

Parker & Day, James A. Parker, Vallerina F. Day, for appellants.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, John G. Aldridge, Jr., Peter L. Lublin, for appellee.

       Griffin Federal Savings Bank is not a party to this action.

       In Frank v. Fleet Finance, supra, we affirmed the trial court’s ruling that the Franks were tenants on the property. Id. at 547 (1) (c).