text:
    A93A0669.
    BENNETT v. THE STATE.
    (433 SE2d 98)
   Johnson, Judge.

We granted Edward Bennett’s application for interlocutory appeal from the trial court’s denial of his motion to suppress evidence. The trial court was authorized to find the following: An officer with the City of Savannah Police Department was engaged in a surveillance operation in a known drug area in Savannah in connection with his investigation of a series of armed robberies which had occurred in the area. Each of the armed robberies had occurred when the victim had come into the area to purchase drugs and had then been robbed. While on this surveillance, the officer observed a car being driven by Bennett and occupied by a passenger enter the area and stop. When Bennett stopped his car, it was approached by an individual who was holding out his hand and who leaned into the car. Based upon his experience, the officer believed but could not be certain that a drug transaction had taken place. He followed as Bennett drove his car from the immediate area, and he observed that the passenger appeared to be drinking from a can. The can appeared to be a beer can, but the officer could not be certain. The officer also testified that he wanted to warn the occupants of the car about the armed robberies which had occurred in the area. Based upon all of these factors, the officer decided to stop Bennett’s car. Having made the stop he approached the car and was then able to see that the beverage can he had previously observed was indeed an open container of beer. He then asked for and obtained Bennett’s consent to search the car. When he opened the door, he saw a small, rocklike substance, which he believed to be cocaine, lying in the door opening near the floorboard of the car. He placed both Bennett and the passenger under arrest.

Bennett contends that the trial court erred in denying his motion to suppress the cocaine found in his car, arguing that the stop of the car was pretextual. We disagree.

“Although an officer may conduct a brief investigatory stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. . . . An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987).

Here, the officer had observed the exact pattern of activity that he was investigating. It appeared to him that Bennett had been involved in a drug transaction with the individual who had approached his car and he therefore had reasonable suspicion that criminal conduct had occurred. The officer had further reason to stop the car after observing the passenger drink out of what appeared to be an open canned beverage, believing that Savannah’s open-container ordinance was being violated. The desire to warn the occupants of the robberies was itself a valid reason for making a brief stop of the vehicle. Thus, any one of these three reasons would authorize a brief investigatory stop. Having made the stop and immediately confirmed that the passenger was in fact drinking from an open container of alcoholic beverage gave the officer probable cause to believe a crime was being committed.

Although Bennett does not specifically contend that his consent to the search was the tainted product of the alleged pretextual stop of his vehicle, we note that “(a) valid consent eliminates the need for either probable cause or a search warrant.” (Citation and punctuation omitted.) Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338) (1989).

It is well settled that a trial court’s ruling on questions of fact at a hearing on a motion to suppress will not be disturbed unless clearly erroneous. Hamil v. State, 198 Ga. App. 869, 870 (1) (403 SE2d 828) (1991). The trial court was authorized to deny Bennett’s motion to suppress.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

Decided June 22, 1993.

Karsman, Brooks & Callaway, Charles C. Brooks, for appellant.

Spencer Lawton, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

       Savannah has an “Open Container” ordinance which makes it unlawful for “any person to possess an open container of an alcoholic beverage while operating a vehicle in the city or while a passenger in or on a vehicle being operated in the City.” (Emphasis supplied.) Savannah City Code § 6-1218 (d).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A0724.
    WRIGHT v. THE STATE.
    (433 SE2d 99)
   Andrews, Judge.

Wright appeals from his conviction by a jury for the offenses of aggravated battery, kidnapping, and possession of a firearm during the commission of these offenses.

Evidence showed Wright asked an acquaintance, Clifford, to drive him to Wright’s sister’s house. Clifford agreed and began to drive, following Wright’s directions. During the trip, Wright asked Clifford if he had any money, and Clifford said no. Eventually Clifford stopped the car and got out, thinking he had arrived at Wright’s sister’s house, whereupon Wright shot him with a handgun, and took $45 from him. Bleeding and dizzy from the wound, Clifford asked Wright to take him to a hospital, and Wright helped him into the backseat of the car. Clifford thought Wright was taking him to a hospital, but after a short drive, Wright stopped the car, opened the door, and shot Clifford again as he was lying on the backseat. Wright dragged Clifford into nearby woods, covered him with branches, and left. Clifford survived, and awoke the next morning with no feeling in his body from the waist down. Over the next two days, he managed to crawl and rest periodically until he reached the side of a road, where he was found and taken to a hospital. As a result of the shooting, Clifford was paralyzed, and lost the use of both legs.

1. Wright claims he was denied effective assistance of counsel during the preparation for and trial of his case. These claims were not addressed in the trial court. Wright’s appellate counsel did not represent him at trial, or on motion for a new trial. Accordingly, the lack of any hearing before the trial court on these issues requires that we remand the case for an evidentiary hearing on the asserted claims of ineffective assistance of counsel. If the trial court finds Wright was denied effective assistance, he is entitled to a new trial. If the court finds counsel was not ineffective, Wright may appeal that order within 30 days. King v. State, 208 Ga. App. 77 (430 SE2d 640) (1993); Parrish v. State, 194 Ga. App. 760, 762 (391 SE2d 797) (1990).

2. Wright claims the evidence was insufficient to support his conviction for kidnapping because it failed to establish that Clifford was abducted or held against his will. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a).

After Clifford was shot the first time, he asked Wright to take him to a hospital. Although, with Wright’s assistance, Clifford cooperated in getting back into the car, the evidence permits the inference that Clifford got in the car and remained with Wright because he was badly wounded, and he believed Wright would take him to get medical attention. Obviously, he did not voluntarily accompany Wright with the expectation that he would be shot again, dumped in the woods, and left for dead. Even if we were to accept the untenable assumption that the first bullet wound inflicted on Clifford provided no evidence of forcible abduction, a forcible abduction is not required under the kidnapping statute. Fredrick v. State, 181 Ga. App. 600, 601 (353 SE2d 41) (1987). There was sufficient evidence for the jury to find that Clifford was abducted when he was induced by persuasion, enticement, or fraud to get back in the car so Wright could take him to get medical assistance. Id. at 601-602. Under these facts, the jury was also authorized to conclude that after he was abducted, Clifford was held against his will because: (1) he would not have willingly remained with Wright to be further harmed, or (2) he was so badly wounded that he had lost the capacity to make a voluntary choice to remain with Wright. Taylor v. State, 194 Ga. App. 871, 873-874 (392 SE2d 57) (1990). The evidence was sufficient for a rational trier of fact to conclude Wright was guilty of the offense of kidnapping beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Lastly, Wright claims that during closing argument the prosecutor improperly commented on his failure to testify or present evidence in his defense. In closing argument, the prosecutor stated: “The evidence in this case — and there were four witnesses — is really uncontradicted. ... In this case I ask you, what contradictions are there? There are none.”

The defense did not object or move for a mistrial when these comments were made so that the trial court could have taken any corrective action it found necessary. “The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” (Citations and punctuation omitted.) Tharpe v. State, 262 Ga. 110, 114 (416 SE2d 78) (1992).

Decided June 22, 1993.

Mable V. Booker, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn III, Assistant District Attorney, for appellee.

The present comments warrant no relief under this standard. Though a prosecutor may not comment on the failure of a defendant to testify, he may properly argue that the State’s evidence of guilt has not been rebutted or contradicted. Ingram v. State, 253 Ga. 622, 634 (323 SE2d 801) (1984). The argument made in this case does not show a manifest intention on the part of the prosecutor to comment upon the defendant’s failure to testify, nor were the remarks of such a character that a jury would naturally and necessarily construe them as a comment on the defendant’s failure to testify. Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982); Lowe v. State, 253 Ga. 308, 309-310 (319 SE2d 834) (1984); Martin v. State, 193 Ga. App. 581, 585 (388 SE2d 420) (1989). Accordingly, this enumeration has no merit.

Judgment affirmed and case remanded with directions.

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


text:
    A93A0031.
    BOWENS v. THE STATE.
    (433 SE2d 102)
   Andrews, Judge.

Bowens was convicted of distributing cocaine in violation of OCGA § 16-13-30 and appeals.

Detective J. K. Taylor testified at trial that on January 22, 1992, he and undercover detective Skinner told Bowens that they were looking for some “rocks,” street parlance for crack cocaine. Skinner negotiated a price of $80 for the drug. Bowens said that he would be right back; he left the area and returned three to four minutes later. When Bowens returned he asked Taylor if he was a cop, and Taylor said no. Bowens then handed Taylor four “rocks,” which Taylor showed to Skinner and then put in his pocket. Taylor testified that Skinner was handling his money as if he was getting ready to give it to Bowens. At that point, Bowens was arrested.

Detective Skinner also testified at trial. He was uncertain as to whether Bowens had handed the drug to Taylor at the time of the arrest, or if the drug was still in Bowens’ hand at the time of the arrest. Skinner stated that he was reaching into his wallet to bring out $80 to purchase the drug at the point that Bowens was arrested and that no exchange of money occurred.

Bowens’ defense was that he possessed, but did not distribute, the drug. Taylor testified that Bowens stated to him after arrest: “I’m not a dealer, I’m a user. ... I was only doing this to get some for myself.”

1. In his first enumeration of error, Bowens contends that the trial court erred in its charge to the jury by instructing that he could be found guilty of distributing cocaine if he were found to have attempted transfer from one person to another. In its initial instructions, the court instructed the jury regarding the charge against Bowens of distributing cocaine, and of the lesser included offense of possession of the drug. The court also instructed the jury regarding intent. During deliberations, the jury sent two written questions to the judge requesting clarification, which asked: “Does the law consider intent to distribute equivalent to distribution of a controlled substance within this indictment? Therefore, do the actual drugs have to change hands in order to have distributed the drugs?”

After a conference with the attorneys, the court recharged the jury that: “I charge you that the State is limited to the manner in which the defendant is charged in the indictment. The indictment charges that the defendant did distribute. Therefore, the answer to your question is no. You are not to consider the offense of possession with intent to distribute. That’s not a charged offense in this case. The charged offense is distribute. To distribute necessarily involves the lesser included offense of possession of cocaine.” Next, the court instructed the jury according to the definitions provided in OCGA § 16-13-21 (11). The court read that: “ ‘Distribute’ means to deliver a controlled substance, other than by administering or dispensing it.” The court then read subsection (7), which defines “deliver” and “delivery.” The court stated that these terms meant “the actual, comma, constructive, comma, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

The court informed the jury that by recharging this law, the jury was not to place undue emphasis on any section of it and that the entire charge should be received as one body of law. The court then stated: “So your question, therefore, do the actual drugs have to change hands in order to have distributed the drugs is a question for you to define under the definitions that I have given you and the charge of the court.” Then the court repeated the previous definitions from OCGA § 16-13-21.

Bowens argues that the law creates a separate crime with separate punishment for the attempted commission of any criminal offense and that the court’s charge here erroneously equated possession with an attempt to distribute with the completed offense of distribution.

We find no error in the court’s recharge. The court instructed the jury according to the definitions set forth in OCGA § 16-13-21. Included within the definition of “delivery,” is the “attempted transfer from one person to another.” Although Bowens correctly notes that an attempt to commit a violation of the Georgia Controlled Substances Act is prohibited under OCGA § 16-13-33, the statutory definition of distribution under OCGA § 16-13-30 also includes the “attempt to transfer.” The court’s charge was a correct statement of the law. See generally State v. Luster, 204 Ga. App. 156 (1) (419 SE2d 32) (1992); see also Manning v. State, 170 Ga. App. 721 (1) (318 SE2d 191) (1984).

Moreover, there was ample evidence presented from which the jury could have rationally decided that there was an actual transfer of crack cocaine. (For a discussion of appellant’s defense here that no money had changed hands, see Robinson v. State, 164 Ga. App. 652 (1) (297 SE2d 751) (1982); Jones v. State, 198 Ga. App. 881 (1) (403 SE2d 867) (1991).)

2. In his second enumeration of error, Bowens claims that the trial court erred in its recharge by failing to specifically respond to the question of whether intent to distribute is equivalent to distribution. Bowens claims that although the court opined out of the jury’s presence that the two offenses were different, this was not made clear to the jury.

We do not agree. The court explained to the jury that Bowens had not been charged with possession with intent to distribute and that they were not to consider that offense. Combined with the additional instructions regarding the offense charged, we find the court’s recharge proper.

3. In his final enumeration, Bowens claims that the trial court erred in its recharge in that by reading the definition twice and by reading the punctuation, undue emphasis to the subject charged was given. Further, he argues that the recharge was, if not erroneous, at least confusing to the jury.

This argument is without merit. The “[m]ere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.” (Citations and punctuation omitted.) Brown v. State, 182 Ga. App. 682, 683 (1) (356 SE2d 663) (1987). “[T]he court specifically instructed the jury not to unduly emphasize the instruction given on recharge, but to recall and apply the entire charge.” Walker v. State, 198 Ga. App. 422, 424 (2) (401 SE2d 613) (1991).

Decided June 23, 1993.

Nelson H. Turner, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The fact that Bowens was arrested while distributing the drugs distinguishes this case from cases involving charges of possession with intent to distribute. See generally Sams v. State, 197 Ga. App. 201 (1) (397 SE2d 751) (1990); Davis v. State, 200 Ga. App. 44 (2) (406 SE2d 555) (1991).


author: Smith, Judge.

text:
    A93A0074.
    CRISPENS ENTERPRISE, INC. v. HALSTEAD et al.
    (433 SE2d 353)
   Smith, Judge.

Pursuant to a written agreement, the Halsteads hired Crispens Enterprise, Inc. (CEI), to erect a garage on their residential property. CEI then subcontracted the pouring of a 15-foot-high concrete retaining wall to third-party defendant Con-Wall Construction Company (CCC). The following chronology appears without dispute: CCC poured the wall on October 27, 1989; the forms were removed on October 30, 1989; and on November 2, 1989, CEI ordered that the space against the retaining wall be backfilled with dirt. The concrete wall cracked, and when CEI was unable to repair the damage to the Hal-steads’ satisfaction, they filed this action alleging breach of contract as well as other theories of liability. CEI answered, denying the material allegations of the complaint and, in a third-party claim against CCC, alleging that CCC had negligently poured the retaining wall. After discovery, cross-motions for summary judgment were argued by CEI and the Halsteads. CEI appeals from the order of the trial court granting partial summary judgment in favor of the Halsteads as to CEI’s contractual liability for the negligent construction of the retaining wall.

1. Pursuant to the written agreement between the Halsteads and CEI, CEI undertook the contractual obligation to “erect a 30' by 40' garage — to include . . . [retaining wall as indicated by [CCC].” Appellant argues that this provision makes CCC solely responsible to appellees for any flaw in the walls. We disagree.

CCC was never a party to this written agreement with the Hal-steads, nor a party to any separate oral agreement with them. “The cardinal rule of [contract] construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. Under the express contract drafted by CEI, the scope of the work to be performed by CEI for the Halsteads included the construction of the retaining wall, with the understanding and permission of the owners that performance of that limited aspect would be delegated to CCC. This understanding would “not have the effect of changing the relationship of the parties [to the writing, nor would it] result in a direct contract between the [appellees as owners and CCC as the intended subcontractor].” McGinnis v. Milhollin, 64 Ga. App. 462, 463 (13 SE2d 591) (1941). The trial court correctly determined that CEI as the general contractor, not CCC as the subcontractor, was responsible to the Halsteads for the proper erection of a garage pursuant to the written agreement.

2. CEI nevertheless urges that it cannot be liable to the Hal-steads for the negligence of CCC, because CCC is an independent contractor. This contention is without merit.

CEI correctly notes that, pursuant to OCGA § 51-2-4, “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” However, even assuming that CCC is. an independent contractor within the meaning of this Code section, CEI would not necessarily be relieved of all liability to the Halsteads, with whom CEI has privity of contract and to whom it owes certain contractual obligations. “To the general rule [of the employer’s nonliability for the torts of independent contractors codified in OCGA § 51-2-4,] there are several exceptions.” Atlanta & Fla. R. Co. v. Kimberly, 87 Ga. 161, 165 (13 SE 277) (1891) (applying former Civil Code § 2962 (1882)). One of those exceptions, codified in OCGA § 51-2-5 (3), “is where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing, he cannot evade liability by employing another to do that which he has agreed to perform.” Atlanta & Fla. R. Co. v. Kimberly, supra at 166 (3). “The contract to build, with its attendant obligations, is between the buyer and builder, not the buyer and any independent contractor.” Hudgins v. Bacon, 171 Ga. App. 856, 862 (5) (321 SE2d 359) (1984). Toys R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195 (393 SE2d 44) (1990) relied upon by CEI is clearly distinguishable. There, unlike appellant in this case, the non-profit development corporation “was never obligated as a builder, nor did it hold itself out as such.” Id. at 197 (1A).

Even though CEI never poured a yard of concrete, it had made an express contractual undertaking with the Halsteads. That being so, the trial court correctly found that the exception to the general rule of an employer’s nonliability for the negligence of independent contractors applied.

3. In support of its own motion for summary judgment, CEI submitted the sworn affidavit of its vice president, Ron Crispens, who stated that a cracked retaining wall is unsafe and unsuitable as a foundation for the garage. Although this affidavit of CEI’s agent is couched in conclusory terms to the effect that CCC was negligent, Crispens clearly admits the fact that the wall, indisputably cracked, is not in compliance with the requirements of the contract in that it is unsuitable for its intended purpose of supporting a garage. This testimony was sufficient to bind CEI, Crispens’ principal. See OCGA § 24-3-33; Long Tobacco Harvesting Co. v. Brannen, 99 Ga. App. 541, 544-546 (2, 3) (109 SE2d 90) (1959).

Decided June 23, 1993.

Thompson, Fox, Chandler, Homans & Hicks, Joseph Homans, for appellant.

Boling, Rice, Bettis, Bottoms & Bagley, Jeffrey S. Bagley, Dean, Smith & Therrell, Connie H. Therrell, for appellees.

There is then, no genuine issue of material fact as to whether the contract was breached. We have already determined in Division 2, supra, that CEI is liable to appellees for a breach of contract, even if, as CEI alleges, the cause in fact of that breach is the negligence of the subcontractor, CCC. See Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (2) (395 SE2d 592) (1990) (movant entitled to summary judgment on basis of respondent’s own testimony). The partial grant of summary judgment as to CEI’s contractual liability to the Halsteads was correct.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A93A0437.
    WATSON v. UNIVERSAL CERAMICS, INC. et al.
    (433 SE2d 104)
   Blackburn, Judge.

This is the second appearance of this case before this tribunal. The appellant, James W. Watson, sustained a work-related injury to his left arm on November 13, 1981, which resulted in the amputation of the arm below the elbow. Thereafter, he was fitted for and used a prosthetic device. However, since his amputation, he has continued to experience a generalized pain syndrome involving the stump of the arm. Watson has been paid income benefits by the appellees, Universal Ceramics, Inc. (Universal), his employer, and Commercial Union Insurance Companies, Universal’s workers’ compensation insurance carrier, including a lump sum payment of permanent partial disability benefits based on a 90 percent physical impairment to the arm. Watson was last paid income benefits on March 11, 1986.

Shortly after the injury, Watson left the employ of Universal and worked as a security guard for employers during successive periods of time. He was last employed on August 9, 1989, at which time he was terminated as a result of his inability to perform his work duties with his right hand due to a developing arthritis condition. On September 15, 1989, Watson requested a hearing before an administrative law judge (ALJ) for a determination of whether he had undergone a change in condition, warranting the recommencement of income benefits, and the payment of attorney fees and penalties. On January 11, 1990, the ALJ, based upon his observations of Watson at the administrative hearing, found that Watson suffered a total amputation of his arm, resulting in a 100 percent impairment of the member, entitling him to an additional 10 percent in permanent partial disability benefits. The ALJ concluded that Watson’s claim for additional benefits was not barred by the two-year statute of limitation in OCGA § 34-9-104 (b) because Watson was due additional benefits at the time that he filed his claim on September 15, 1989. The award of the ALJ was appealed to the State Board of Workers’ Compensation (the Board), and a majority of the members of the Board reversed the decision of the ALJ, concluding that the claim was time barred. The superior court affirmed the decision of the Board, and we granted Watson’s application for discretionary appeal.

In his sole enumeration of error, Watson contends that the trial court erred in concluding that his claim for additional benefits was time barred under OCGA § 34-9-104 (b). He asserts that the two-year statute of limitation was tolled based upon the exception that this court enunciated in Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (338 SE2d 742) (1985). We disagree.

The statute in effect at the time of Watson’s injury, former Code Ann. § 114-709 (b), currently OCGA § 34-9-104 (b), provided that “any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more than two years have elapsed since the date of final payment of income benefits due under this chapter.” (Emphasis supplied.) See also Holt’s, supra at 159. Although Watson contends that he was potentially due additional benefits, and therefore the statute of limitation was tolled under Holt’s, in Justice v. R. D. C. Inc., 187 Ga. App. 198 (369 SE2d 493) (1988), we defined the term “potentially due” as enunciated in Holt’s, supra. “In determining what is meant by ‘potentially due’ under Holt’s Bakery, supra, this court held that ‘potential’ means ‘not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it.’ MARTA v. Ledbetter, 184 Ga. App. 518, 519 (361 SE2d 878) (1987).” Justice, supra at 200.

In the present case, the evidence supports the Board’s finding that the employee was not potentially due benefits at the time that he filed his claim for a change in condition in September 1989. In fact, the employee became unemployed approximately one month before the filing of his claim due to his admitted inability to perform his employment responsibilities due to the developing arthritic condition in his right hand. Although the employee has submitted evidence of a rating given by his treating physician as a result of a deposition held in response to the Board’s remand of the case for additional evidence, and after his subsequent amputation, there is no evidence showing that Watson suffered from a loss of use of the member at the time of the filing of the September 1989 claim. Contrary to Watson’s contentions, Dr. Alan Bowen, the physician who treated Watson following the accidental amputation and who performed the later surgical amputation on August 20, 1990, has indicated that the arm was functional after the first amputation. Although Watson had a second amputation of the arm above the elbow in August 1990, Dr. Bowen maintains that the arm is still functional, even after the above-the-elbow amputation, and that Watson does not have a 100 percent impairment in the use of the body member. However, we do recognize that Watson’s impairment rating has increased after the second amputation. Unlike Watson, the employee in Holt’s had been assigned a 20 percent permanent impairment rating at the time that she requested the change in condition hearing, and therefore, was potentially due additional benefits, warranting the tolling of the statute of limitation. It is undisputed that Watson was last paid income benefits in March 1986, and this claim for additional benefits was not filed until September 15, 1989, outside of the two-year time period provided in OCGA § 34-9-104 (b).

“The law is well established that a finding of fact by the (full board), when supported by any evidence, is conclusive and binding upon the court, and . . . neither the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.” (Citations and punctuation omitted.) Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684, 686 (420 SE2d 366) (1992). There is some evidence to support the Board’s finding that Watson was not potentially due additional benefits at the time that he filed his claim for benefits outside of the two-year time period provided in OCGA § 34-9-104 (b), and accordingly, we are bound to conclude that the decision of the Board was properly affirmed by the trial court.

Decided June 23, 1993.

Mundy & Gammage, Miles L. Gammage, for appellant.

Saveli & Williams, John M. Williams, for appellees.

Judgment affirmed.

Johnson and Smith, JJ., concur.

       In Universal Ceramics v. Watson, 177 Ga. App. 345 (339 SE2d 304) (1985), we remanded this case to the' State Board of Workers’ Compensation for the purpose of specifying the method used to provide the employer, Universal Ceramics, and its insurer, Commercial Union Insurance Companies, with credit for the overpayment of income benefits made to the employee, James Watson.


text:
    A93A0453.
    JONES v. THE STATE.
    (433 SE2d 106)
   Smith, Judge.

Onki Starvinsky Jones was convicted of armed robbery and other crimes. He raises the general grounds, arguing that the evidence was insufficient to convict for armed robbery because only one of several witnesses testified that he actually saw a gun on Jones’ person at the time of the robbery.

Four witnesses to the robbery at the Suwanee Swifty in Moultrie, Georgia, testified on behalf of the State. Cynthia Morris, an employee of the store, testified that during the robbery appellant put his hand in his jacket and claimed to have a gun. She also testified that when appellant came around the counter to take money from the register, she backed away because she “didn’t want to take a chance on getting shot.” Ms. Morris conceded that she did not see a gun.

David Morris, Cynthia’s husband, likewise did not see a gun. Mr. Morris stood next to his wife behind the counter during the robbery. He, too, testified that appellant put his hand in his jacket. He testified that he was afraid “because there could have been a gun.” Mr. Morris also testified that as appellant exited the store he warned, “Don’t try to follow me or this guy will shoot you,” referring to an apparent accomplice.

A third witness, Tony Thornton, testified that he was approximately 15 feet from the counter at the time of the robbery. He did not get a good look at the perpetrator, but did see that he had his hand in his abdominal area during the robbery. He also testified that as appellant left, he warned, “If anyone try [sic] to follow us we’re going to blow your fucking head off.”

The fourth witness, Ralph Williams, Jr., testified that he was directly in front of the counter during the robbery. Williams testified that he actually saw what appeared to be a gun in appellant’s jacket. He described the object as having a brown handle and silver barrel. Williams, like Thornton, testified that appellant warned, using colorful language, that his partner would “blow off” the head of anyone who tried to follow him.

Decided June 23, 1993.

Sam J. Gardner, Jr., for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

“ ‘The presence of a weapon during commission of a robbery, necessary to a conviction for armed robbery, may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.’ ” (Citations omitted.) Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987).

The evidence, viewed in a light most favorable to the jury’s verdict, shows that appellant looked and acted as if he were concealing a weapon in his jacket. None of the witnesses gave any indication that he or she doubted appellant’s assertions, both express and implied. Moreover, appellant threatened that his partner would shoot them if they followed. A jury would certainly be authorized under Hughes to infer the presence of a weapon, as well as a reasonable apprehension by the store clerk that such weapon might be used, based on these facts alone. See Moody v. State, 258 Ga. 818 (375 SE2d 30) (1989).

Appellant’s conviction clearly does not depend solely on whether a gun was actually seen by anyone in the store. Nevertheless, a jury could reasonably believe, based on Mr. Williams’ unique perspective opposite appellant at the counter, that he, and he alone, could actually see what appeared to him to be a handgun in appellant’s jacket. The evidence was sufficient for a jury to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Howard v. State, 201 Ga. App. 164, 166 (1) (410 SE2d 782) (1991). We find no error.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0577.
    HEFFERNAN v. JOHNSON et al.
    (433 SE2d 108)
   Birdsong, Presiding Judge.

J. A. Heffernan, Jr. sued Mitchell Johnson, individually and d/b/a Johnson Tile Company, for negligence and fraud arising from Johnson’s installation of tile at Heifernan’s house. Summary judgment was awarded to Johnson as the case was not filed within the period of limitations. Heffernan now appeals, contending the trial court erred by granting summary judgment and by refusing to “consider and apply the statutes and case law applicable to fraud raising a jury issue.” Held:

1. The record shows that Heffernan contracted with Johnson to install tile on a deck at his home; by February 1986, Johnson had installed the tile. Later, Heffernan discovered water was leaking into his house and concluded the cause of the leak was the tiled deck. Heffernan filed suit against Johnson on May 31, 1991, to recover for the damage to the house and for fraud based upon Johnson’s representations concerning his ability to perform the work and the manner of his performance.

Subsequently, Johnson moved for summary judgment contending that Heffernan’s claims were barred by the four-year statute of limitation in OCGA § 9-3-30: “All actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.” In these cases the right of action accrues at the time of substantial completion of the project. Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (368 SE2d 732). Because Heffernan’s fraud claim also is based upon damage to realty, it too is bound by OCGA § 9-3-30. Bowen & Bowen, Inc. v. McCoy-Gibbons, Inc., 185 Ga. App. 298, 301 (363 SE2d 827). The record shows that the project was completed substantially by February 1986, and the action was not filed until May 31, 1991. Therefore, the trial judge correctly ruled that this action was barred by the expiration of the four-year statute of limitation. In this regard, Heffernan did not respond to Johnson’s motion for summary judgment within the meaning of OCGA § 9-11-56 (e) and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), by pointing to facts in the record creating a jury issue as to the date the project was completed substantially.

Neither the discovery rule nor the continuing tort theory is applicable to actions involving only property damage. Corp. of Mercer Univ. v. Nat. Gypsum Co., supra. Further, subsequent repairs do not toll the statute of limitation. Bicknell v. Hearn Roofing &c., 171 Ga. App. 128, 130 (318 SE2d 729). Accordingly, the trial court did not err by granting summary judgment to Johnson.

2. In view of our holding in Division 1, Heffernan’s fraud claim was barred by the statute of limitation and, thus, any entitlement he might have had generally to a jury trial on his fraud claim is moot.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided June 23, 1993.

Hendrix & Sanders, John W. Hendrix, Robert J. Erb, for appellant.

Painter, Ratterree, Connolly & Bart, R. Clay Ratterree, Royal & Vaughan, J. Scott Vaughan, for appellees.


author: Johnson, Judge.

text:
    A93A0586.
    THE STATE v. ADAMS et al.
    (433 SE2d 355)
   Johnson, Judge.

Eighteen individuals and ten corporations were indicted for theft, forgery, false statements and racketeering. The trial court entered an order granting the defendants’ motion to quash the indictments and purporting to grant the defendants’ motion to suppress evidence obtained pursuant to improper grand jury subpoenas. The State appeals from the court’s order.

1. The State asserts that the trial court erred in quashing the indictments. The court quashed the indictments because the grand jury, which had been summoned, sworn, discharged and reconvened in the same term, had not been recharged as to its powers and duties before returning the indictments. The trial court based its ruling on Ward v. State, 205 Ga. App. 485 (423 SE2d 22) (1992), and State v. Byrd, 197 Ga. App. 661 (399 SE2d 267) (1990), in which we held that a grand jury which is discharged and reconvened in the same term must be recharged. In State v. Grace, 263 Ga. 220 (430 SE2d 583) (1993), the Supreme Court overruled both Ward u. State, supra, and State v. Byrd, supra, holding “that a grand jury properly summoned, sworn, and charged to serve during a particular term of the court, may recess and reconvene as it sees fit to conduct its business in the course of that term, and need not be resworn or recharged by the court during that term.” Here, the grand jury was properly summoned, sworn, charged, recessed and reconvened during the same term. The fact that the grand jury was not resworn or recharged before returning the indictments does not invalidate them. The trial court’s order quashing the indictments therefore must be reversed.

2. The State contends that the trial court erred in granting the defendants’ motion to suppress. The trial court, however, did not enter a specific ruling on the motion. Although the court concluded in its written order that evidence obtained by the state pursuant to improper grand jury subpoenas should be suppressed, it did not order the suppression of any specific evidence. The court stated, “In light of [the] order quashing the indictments on other grounds, it is unnecessary for the Court to determine at this time specifically what evidence was obtained in the manner complained of, but that determination can be made in any subsequent proceeding in which that determination becomes relevant.” Absent a specific ruling by the trial court as to the exact pieces of evidence to be excluded, there is nothing for us to review. “[T]his court does not render advisory opinions.” Chambers v. State, 204 Ga. App. 396 (420 SE2d 393) (1992). “We normally limit our rulings to the specific case or controversy decided by the trial court, and do not venture an opinion as to the legality of future actions which may or may not occur.” (Citations, punctuation and emphasis omitted.) Sentry Insurance v. Majeed, 194 Ga. App. 276, 277 (2) (390 SE2d 269) (1990). We cannot venture an opinion as to what future evidence the trial court may or may not suppress. The State’s appeal from the portion of the trial court’s order addressing the motion to suppress is premature.

Decided June 23, 1993.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Senior Assistant Attorney General, Patrick D. Peering, Assistant Attorney General, John E. Hennelly, Staff Attorney, Joseph L. Chambers, Charles C. Olson, Special Assistant Attorneys General, J. Tom Morgan III, District Attorney, Douglas C. Pullen, District Attorney, Lewis R. Slaton, District Attorney, Stephen F. Lanier, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellant.

Richard T. Bridges, Mullins & Whalen, Andrew J. Whalen III, Nancy A. Bradford, Groover & Childs, Denmark Groover, Jr., Cook & Palmour, Bobby Lee Cook, Jr., Barnes, Browning, Tanksley & Casurella, George T.. Smith, Cramer, Weaver & Edwards, Christopher C. Edwards, P. Benson Ham, Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Steven A. Westby, Arch W. Mc-Garity, Shepherd & Brown, Timothy N. Shepherd, W. Franklin Freeman, Jr., Crumbley & Crumbley, Wade M. Crumbley, for appellees.

3. The remaining arguments set forth by the parties are either without merit or moot because of our decisions in Divisions 1 and 2 of this opinion.

Judgment reversed.

Blackburn and Smith, JJ., concur.


text:
    A93A0675.
    COKER v. THE STATE.
    (433 SE2d 637)
   Smith, Judge.

Angelo Coker, along with three others, was indicted for murder. Tried separately in a bench trial, he was found guilty of voluntary manslaughter. He appeals from the judgment of conviction and sentence entered by the trial court on this finding of guilt.

Decided June 23, 1993.

Charles R. Sheppard, for appellant.

Daniel J. Craig, District Attorney, Stacey R. Kasten, Assistant District Attorney, for appellee.

In related enumerations, Coker urges only the general grounds. Viewed in the light most favorable to the trial court’s factual findings, the evidence showed that Coker lost a $300 wager. He drove to the home of the winner and demanded his money back at gunpoint. As he attempted to leave with a friend, gunfire erupted. Shots were exchanged between appellant and his friend on the one hand, and the winner and his companions on the other. A shot fired by someone other than Coker strayed and killed a bystander. “Where one shoots at another, intending to kill him, under such circumstances that the killing, if accomplished, would be voluntary manslaughter, but the shot misses him and accidentally kills an innocent third person, the homicide will be voluntary manslaughter. [Cits.]” Strickland v. State, 9 Ga. App. 552 (1) (71 SE 919) (1911).

Contrary to Coker’s assertion, the evidence does not demand a finding that he attempted to withdraw peaceably, nor does it demand a finding that he acted solely in self-defense. Instead, the evidence would authorize a rational trier of fact reasonably to conclude that Coker stood his ground to engage in mutual combat. Syms v. State, 175 Ga. App. 179, 180 (1) (332 SE2d 689) (1985). This is sufficient, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support his conviction for voluntary manslaughter as a party to the crime. OCGA § 16-5-2 (a).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0790.
    THE STATE v. FOSTER.
    (433 SE2d 109)
   Andrews, Judge.

The State appeals from the order of the trial court granting Foster’s pre-trial motion to suppress evidence. OCGA § 5-7-1 (4).

“ ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Cits.)’ ” Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).

At a hearing on the motion, law enforcement agents testified that the Drug Enforcement Agency received information describing Foster, and indicating that he would be arriving at Hartsfield International Airport in Atlanta on a cash, one-way ticket, reserved four hours before the flight, with no checked luggage, from a drug source city, Miami. No other information was provided as to possible criminal activity. Three plainclothes officers met the flight, and watched an individual matching Foster’s description leave the plane. Two of the officers approached Foster as he was walking to catch a connecting flight to Charleston. They identified themselves to Foster as police officers, and asked if they could speak with him. Foster said yes and stopped. The officers were armed, but their weapons were concealed. One officer asked if she could see Foster’s airline ticket, and he handed it to her. She confirmed the information on the ticket, handed the ticket back, and asked for his name. Foster replied, giving his correct name. When asked if he had any identification, Foster replied that he had none.

The officers then further identified themselves as narcotics officers looking for evidence of drugs coming through the airport, and asked Foster if he would allow them to search his person and a small shaving bag he was carrying. Evidence showed that as the conversation continued, the officers asked Foster on four or five occasions for permission to search his bag, and he refused to consent on every occasion. During this time, Foster became increasingly nervous. Finally, Foster agreed that the officers could search his person. To accomplish this, the third officer was signaled to come over, and he, along with the other male officer, accompanied Foster to a nearby men’s rest room, while the female officer remained outside. A pat-down search of Foster conducted in the rest room produced nothing.

The officer waiting outside testified she believed, but was not sure, that Foster still had the bag in his hand when he emerged from the rest room with the other two officers. The other officer testified that while in the rest room, the third officer “advis[ed] Foster he was taking the bag to give him a receipt for it,” and that when they left the rest room he was “pretty sure” the third officer had the shaving bag. Upon emerging from the rest room, the third officer announced that, “Mr. Foster is going to accompany us to the office to get a receipt for his bag.” The awaiting officer testified that she then asked Foster if he would allow a narcotics dog to sniff his bag, and after he consented, she told him he could accompany them to the DEA office at the airport for that purpose. The officers testified Foster was never detained, and was free to leave at any time. Evidence showed Foster was advised he did not have to consent to a search. There was no evidence Foster was told he was free to leave, nor was it made clear how the bag would be returned to him.

The officers had a dog at the airport trained to detect the presence of narcotics by smell. At the DEA office, the dog detected the presence of narcotics in Foster’s bag. Based on this additional information establishing probable cause, Foster was placed under arrest, and the officers obtained a warrant to search the bag. After the search revealed a quantity of cocaine in the bag, Foster was charged with trafficking in cocaine.

The officers did not claim they detained Foster or his bag for a stop and investigation pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Rather, the apparent thrust of their contentions was that the encounter was simply a communication involving no coercion or detention (see McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114) (1982)), and that Foster consented to his bag being detained and checked by a narcotics dog, and voluntarily accompanied the officers to the DEA office for this purpose. Nevertheless, the “drug courier profile” evidence presented at the hearing authorized the trial court’s determination in its order that the State had a right to briefly detain Foster for a Terry-type investigation. State v. Grant, 195 Ga. App. 859, 862 (394 SE2d 916) (1990); Bothwell v. State, 250 Ga. 573 (300 SE2d 126) (1983).

Having made this determination, the trial court concluded that once Foster clearly refused to consent to the search of his bag, the State had no right to further investigate, and that the actions taken by the officers subsequent to that point were an illegal seizure violative of the Fourth Amendment. This is an erroneous basis for granting Foster’s motion to suppress. If, as the trial court concluded, the officers had a reasonable basis to conduct a Terry-type detention of Foster, the fact that Foster refused to consent to a search of his bag is no basis to conclude that the bag could not be otherwise briefly detained without his consent for an investigation within the scope of the Terry stop. “ ‘(W)hen an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry (v. Ohio, [supra]) and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.’ United States v. Place, 462 U. S. 696, 706 (103 SC 2637, 77 LE2d 110). Thus, in cases involving the detention of luggage, a two-fold inquiry is in order: (1) Did the police have reasonable cause to detain the luggage? (2) Was the detention so minimally intrusive as to be justifiable upon reasonable cause? See United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605).” Grant, supra at 861. Using a dog to sniff for evidence of narcotics is not a search, and may, under proper circumstances, be utilized as part of the investigation conducted within the limited scope of a Terry stop. Place, supra at 707-710; Grant, supra at 862-864; O’Keefe v. State, 189 Ga. App. 519, 525-526 (376 SE2d 406) (1988); McSweeney v. State, 183 Ga. App. 1, 3 (358 SE2d 465) (1987).

Decided June 23, 1993.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

William E. Frey, for appellee.

Given that the trial court determined reasonable suspicion existed for an investigatory stop, the court failed to address the necessary issue of whether the detention of Foster’s bag exceeded the permissible limits of the stop. Grant, supra at 863. Since the trial court’s order was based on an erroneous legal theory, it must be reversed, and the case remanded for consideration of the relevant issue. See State v. Willis, 207 Ga. App. 76, 78 (427 SE2d 306) (1993).

Judgment reversed and case remanded.

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

       Based on the trial court’s determination that a brief detention was authorized, this is not a case where, without any reasonable suspicion to support a non-consensual investigation, officers initiated a permissible conversation requesting consent to search, but Fourth Amendment scrutiny was subsequently triggered when the encounter lost its consensual nature. See State v. Westmoreland, 204 Ga. App. 312, 313 (418 SE2d 822) (1992); Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989). As a practical matter, it appears the officers in this case, though having facts sufficient to support a brief detention, initially pressed for consent to search, and when no consent was given, initiated a non-consensual investigation pursuant to Terry, supra.

       Along with detention of the bag, detention of Foster’s person is also a relevant inquiry. See Brown, supra at 780.


text:
    A93A0872.
    In the Interest of G. L. H. et al., children.
    (433 SE2d 357)
   Birdsong, Presiding Judge.

The biological parents appeal the judgment terminating their pa: rental rights to G. L. H., J. L. H., and J. D. H. They contend the evidence is insufficient to establish by clear and convincing evidence that their parental rights should be terminated as ordered.

In January 1989, appellant mother called the sheriff’s department and reported that her children were being held hostage by appellant father who was threatening to kill them and had physically abused at least one of them. The father was found in the house with J. L. H., then age twenty-one months, and J. D. H., then age eight months. The father appeared “extremely disturbed,” and admitted that financial and employment pressures had caused him to physically abuse J. D. H. by repeatedly thumping the child’s forehead; the child’s forehead was bruised and the skin broken. Appellant mother informed a DFCS representative that the father “suffered some kind of mental breakdown” and had struck J. D. H. with his fist and had tried to suffocate him. Appellant father further admitted to the DFCS director that he had “snapped” and “just couldn’t deal with it anymore.” A girl child, G. L. H., who was with the mother, appeared very dirty, smelled of urine, was wearing no shoes, had matted hair, and scars and bruises on her body. J. L. H. and J. D. H. also were dressed inadequately for cold weather, were without shoes and coats, were dirty, and had dirty diapers. DFCS obtained an emergency temporary custody order the same day. Appellants entered a 30-day reunification case plan with DFCS. Subsequently, a doctor examined the children and found them fearful, withdrawn and nervous, consistent with having been subjected to physical abuse; however, J. L. H. exhibited no external signs of physical abuse.

In April 1989, G. L. H. who was born September 18, 1985, made complaints of abuse against her step-grandfather and appellant father. Physical examination revealed the child had a healed vaginal laceration probably caused by the insertion of a finger or small object. G. L. H. told the board-certified pediatrician that her father had touched her vaginal area and had hurt her. The board-certified pediatrician opined that J. D. H. had been physically abused, and that G. L. H. had been sexually abused. The record also reflects the child’s so-called step-grandfather also may have sexually abused G. L. H. and made her bleed.

In October 1989, a ten-day adjudicatory hearing was held wherein the parents consented to DFCS’ continuing custody of the children for eighteen months; also pursuant to the consent order, the children were found to be deprived, the father (and any other necessary family member) was to attend mental health counseling, and the parents were ordered to pay weekly child support. In August 1990, DFCS petitioned to terminate appellants’ parental rights.

In May 1991, a hearing on DFCS’ petition was held. The court gave the parents six months in which to comply with a new case plan; DFCS retained custody of the children. The foster parents and the board-certified pediatrician testified. G. L. H.’s foster mother testified, inter alia, that the girl had stated her so-called step-grandfather had hurt her real bad and made blood flow from her, and that her father also had touched her. The foster mother testified that G. L. H. ’s mother, Jackie, had admitted she knew of this event as Jackie’s mother had “verified . . . that [G. L. H.] was raped at two years old by her step-father [Papa Joe]. . . . She had blood all over her and they put her under the shower.” The foster mother also testified it was almost a year before J. L. H. “spoke anything.” The children’s father testified and admitted the forehead thumping incident; he claimed he could not attend mental health and parenting classes as required due to a lack of transportation and that he does not believe he needed to keep attending as he had corrected his own problems. He also denied sexually abusing his daughter; both parents claimed that they had not learned of the step-grandfather’s alleged conduct until they were at the courthouse for an earlier court appearance. Although sufficient evidence was found to terminate parental rights, final determination was delayed pending the outcome of a six-month review. During the proceedings, the associate juvenile court judge made it “absolutely clear” to the parents that if the resulting court order was not complied with they would lose custody of their children.

In July 1991, the juvenile court (associate juvenile court judge) entered an order finding by clear and convincing evidence that the children were deprived. The court also found the father had touched G. L. H.’s vagina but elected not to determine whether the incident constituted sexual abuse. Also, findings were entered that appellant father engaged in parental misconduct and physical abuse of J. D. H. by repeatedly thumping the child’s forehead with his finger, leaving fingernail and cut marks and bruises, and that there was an inability of both parents to provide for their children. The order further found that the parents, as of that date, had paid no weekly child support whatsoever since ordered to do so in October 1989. The court then extended DFCS temporary custody of the children for six months, ordered the parents to attend parenting classes regularly, ordered both parents to attend mental health counseling on a regular basis, increased weekly child support to $10 per child, and withheld determination of the parental rights issue for six months.

A six-month review hearing was held December 1991, and the juvenile court signed a written order in July 1992, nunc pro tunc for December 9, 1991, again finding the children deprived; it also was found that the parents had substantially failed to comply with the order issued in July 1991, by having made only one weekly child support payment in six months, having attended only four of six parenting classes, and having attended only three mental health counseling sessions while missing seven appointments. The court terminated appellants’ parental rights. Appellants appealed this order to the juvenile court judge requesting a de novo hearing.

On June 4, 1992, the juvenile court judge issued a detailed order terminating appellants’ parental rights; at the time of this order, the children had been in foster care for three years and four months and had only seen their parents once a month for the past year. The record reveals J. D. H. already has started to view his foster parents as his real parents and his real parents as strangers. In this order, the juvenile court judge documented the parents’ failure to comply substantially with the order for court-mandated mental health counseling, court-mandated parenting classes, court-mandated child support payments, the children’s needs for “a stable, permanent home environment,” and certain other indicia, including the parents’ lack of a high school education, relatively unstable employment records, and the physical limitations of their current residence. However, the order also acknowledges that in 1991 the couple had another child, and that DFCS’ subsequent inquiry revealed that “everything appears to be fine.” Held:

1. Ample evidence exists in the trial record to sustain the findings of fact of the juvenile court. In the disposition of appeals in parental termination cases, the reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met. The appropriate appellate review standard is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody were lost. In the Interest of E. P. N., 193 Ga. App. 742, 748 (2c) (388 SE2d 903).

2. Parental unfitness supporting termination of parental rights can be caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child. In the Interest of A. L. T., 198 Ga. App. 477 (402 SE2d 97). Determining the propriety of termination of parental rights is a two-step process pursuant to OCGA § 15-11-81 (a). First, the court shall determine if there exists clear and convincing evidence of parental misconduct or inability; secondly, if such evidence exists, the court then considers whether termination of parental rights is in the best interest of the child, “ ‘after considering the physical, mental, emotional, and moral condition and needs of the child,’ ” including the need for a stable home. In the Interest of S. H., 204 Ga. App. 135, 138 (1) (418 SE2d 454). With certain exceptions not here applicable, a judicial determination of parental misconduct or inability can be made subject to the following four findings: First, the child is deprived within the meaning of OCGA § 15-11-2. This finding was made previously and not timely appealed in this case; accordingly, the courts can take notice of the then controlling deprivation order. In the Interest of J. R., 202 Ga. App. 418, 422-423 (414 SE2d 540). Further, there exists in this case ample evidence to support the threshold finding that the children were deprived children within the meaning of OCGA § 15-11-2 (8) (A). Secondly, the lack of proper parental care is the cause of the child’s status as deprived. Third, such cause of deprivation is likely to continue or will not likely be remedied. In this regard, while past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court to determine whether such conditions of deprivation are likely to continue. In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903). Likewise, a parent’s failure to comply with the requirements of court-mandated mental health counseling or parenting education courses is a factor which may be considered to determine the likelihood of whether the deprivation is likely to continue or will not likely be remedied. Fourth, the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. In the Interest of S. if., supra.

Decided June 23, 1993.

Donald W. Singleton, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, J. Richard Neville, for appellee.

In addressing the “child’s best interest” prong of the test, “ ‘ “those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent[s] would be in the child’s best interest.” ’ ” Id. at 140. “It would be nothing short of draconian for this court to usurp the trial court’s lawful functions by re-weighing evidence and re-deciding witness credibility, when as a result we are subjecting these children to the likelihood of continuing emotional and moral harm. Our state constitution provides protection to persons and property is the paramount duty of government. Ga. Const, of 1983, Art. I, Sec. I, Par. II. This constitutional right of protection extends equally to children as well as adults. In the United States, the parens patriae function belongs with the states. We should not pay mere lip service to this grave obligation by preserving in legal fiction an already harmful and deteriorated parent-child relationship.” (Citations, punctuation and emphasis omitted.) Id.; In the Interest of E. P. N., supra at 749 (2c). The lower court did not err.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur. .


text:
    A93A0128.
    ENGLEHART et al. v. OKI AMERICA, INC.
    (433 SE2d 331)
   Johnson, Judge.

A. R. Weeks & Associates acted as general contractor on a project for the construction of a building owned by OKI America, Inc. During construction, there were several openings in the floors of the building where the heating, ventilation and air conditioning (HVAC) system was to be installed. As a protective measure, Weeks covered these holes with pieces of plywood. OKI assigned an employee, Thomas Spinks, to visit the construction site periodically to ensure that Weeks was conforming to the construction contract drawings and specifications. As part of his duties, Spinks measured the size and location of the HVAC openings; he removed the plywood pieces covering the holes, took the measurements and then replaced the plywood exactly as he had found it.

Thomas Englehart, an employee of the project’s sheet rock subcontractor, was working on the second floor of the building when he attempted to block the wind from his work area with one of the pieces of plywood. As Englehart lifted the piece of plywood, he stepped into the opening which the plywood had been covering and fell approximately 13 feet to the first floor of the building. Englehart and his wife filed a lawsuit against OKI seeking damages for personal injury and loss of consortium. The trial court granted summary judgment to OKI. The Engleharts appeal.

1. The Engleharts contend that the trial court erred in granting summary judgment to OKI because there are genuine issues of material fact as to whether OKI is vicariously liable for the alleged negligence of independent contractor Weeks in placing the plywood over the HVAC openings. Generally, a property owner who has surrendered full possession and control of the property to an independent contractor is not liable for any injuries sustained on the property. McClure v. Equitable Real Estate &c., 195 Ga. App. 54, 55 (392 SE2d 272) (1990); Towles v. Cox, 181 Ga. App. 194, 195 (1) (351 SE2d 718) (1986). OCGA § 51-2-5 provides six exceptions to this general rule. The Engleharts contend that three of these exceptions apply to the instant case.

(a) The Engleharts claim that OKI is liable for the alleged negligence of Weeks because OKI retained the right to direct or control the manner of executing the work. OCGA § 51-2-5 (5). This claim is without merit. The contract between OKI and Weeks gives complete control of the construction site to Weeks. Among other things, the contract provides, “The Contractor [Weeks] shall be responsible for furnishing the design and for the construction of the Project. . . . The Contractor will provide all construction supervision, inspection, labor, materials, tools, construction equipment and subcontracted items necessary for the execution and completion of the Project.”

The contract also makes Weeks solely responsible for the safety of its employees; Weeks was the statutory employer of subcontractor employee Thomas Englehart. OCGA § 34-9-8. “The Contractor shall take necessary precautions for the safety of its employees on the Work, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Project site. . . . The Owner [OKI] shall have no contractual obligation to the Contractor’s subcontractors and shall communicate with such Subcontractors only through the Contractor.”

OKI did retain the right to ensure that Weeks’ work conformed to the contract drawings and specifications. The retention of such a right, however, does not prove that OKI exercised control over the manner in which Weeks did the work. “(I)t is not enough that [the owner] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right does not mean that the contractor is controlled as to his methods of work. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” (Citations and punctuation omitted.) Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 196 (1) (A) (393 SE2d 44) (1990). OKI did not retain such a right of supervision that Weeks was not entirely free to do the work in its own way. Rather, OKI surrendered the premises to Weeks, OKI did not interfere with Weeks’ status as an independent contractor, Weeks had the duty of providing for the safety of its workers and OKI had no such duty. King v. Midas Realty Corp., 204 Ga. App. 590 (420 SE2d 62) (1992); Bryant v. Village Centers, 167 Ga. App. 220 (305 SE2d 907) (1983). Under these circumstances, the trial court did not err in granting summary judgment to OKI. Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986).

(b) The Engleharts argue that OKI ratified the alleged negligence of Weeks when OKI employee Spinks placed the plywood pieces back over the HVAC openings after taking measurements. OCGA § 51-2-5 (6). “Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer. The ratification must be, not of the contract, but of the unauthorized wrong. Ordinarily, in order to ratify an act, one must have knowledge of the act.” (Citations and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987). Here OKI did not accept the fact that Weeks had covered the HVAC openings with plywood simply because Spinks observed the plywood. Spinks, who stated at his deposition that he has no OSHA construction site training, was not responsible for checking on the safety of the work site maintained by Weeks; rather, he was there simply to ensure that Weeks conformed to the contract drawings and specifications. Although Spinks had not previously seen plywood used to cover HVAC openings as a safety procedure at other construction sites, he testified that he does not know whether it is an acceptable safety procedure. It is undisputed that Spinks never told anyone at OKI that Weeks was using the plywood to cover the holes. Under these circumstances, OKI did not ratify Weeks’ use of the plywood. Toys ‘R’ Us v. Atlanta Economic Dev. Corp., supra at 197 (1) (A).

(c) The Engleharts contend that OKI is liable for the alleged negligence of Weeks because OKI has a nondelegable duty, imposed by OCGA § 34-2-10 (b), to maintain a safe workplace. OCGA § 51-2-5 (4). This contention is wholly without merit as it is the longstanding rule in Georgia that a property owner can delegate the responsibility of maintaining a safe workplace by relinquishing possession and control of the property to an independent contractor. See, e.g., King v. Midas Realty Corp., supra; Towles v. Cox, supra; Bryant v. Village Centers, supra; Horton v. Ammons, 125 Ga. App. 69 (186 SE2d 469) (1971). The trial court did not err in granting summary judgment to OKI on the Engleharts’ claims that OKI is vicariously liable for the alleged negligence of Weeks.

2. The Engleharts contend that even if OKI is not vicariously liable for the acts of Weeks, there still exist genuine issues of material fact as to whether OKI itself committed affirmative acts of negligence. This contention is without merit because there is no evidence in the record that OKI breached any duty it may have owed to Thomas Englehart. Nonetheless, even if we hold OKI to the highest standard of care owed by a landowner, that owed to an invitee, OKI is still entitled to summary judgment.

“A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery. An invitee is under an equal duty with the owner to use his or her sight to discover any defect or dangers.” (Citations and punctuation omitted.) Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535, 536 (1) (414 SE2d 694) (1992). Englehart should have known of the existence of the HVAC opening through which he fell; he would have seen it if he had exercised ordinary care by simply watching his step. He is an experienced construction site worker who undertook to do what is obviously a dangerous thing, lifting a piece of plywood from the second floor of a building under construction and then stepping into the area it had covered without looking, thereby assuming the risks incident to his own actions.

Decided June 11, 1993 —

Reconsideration denied June 24, 1993 —

Phillips, Hinchey & Reid, George C. Reid, Gregory K. Morgan, for appellants.

Drew, Eckl & Farnham, James M. Poe, Mari L. Myer, for appellee.

“Assumption of risk in its simplest and primary sense means that the plaintiff has given [his] express consent to relieve the defendant of an obligation of conduct toward [him] and to take [his] chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. [Cits.]” Hackel v. Bartell, 207 Ga. App. 563 (1) (428 SE2d 584) (1993). Englehart had the opportunity to measure the risks, if any, and was under no compulsion to lift the plywood from the floor and step into the area it had covered without first checking that area. “Every adult is presumed to be endowed with normal faculties, both mental and physical. No person should conduct [himself] in an irresponsible manner when even ordinary prudence would protect [him] from the likelihood of possible injury. At some point the danger and likelihood of injury becomes so obvious that actual knowledge by the plaintiff is unnecessary.” (Citations and punctuation omitted.) Hackel v. Bartell, supra at 564 (1).

The intervening negligence of Englehart was the sole proximate cause of his own injury and therefore OKI has a valid defense to the Engleharts’ claims as a matter of law. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805 (415 SE2d 705) (1992). Because this is a case of plain, palpable and indisputable evidence that Englehart is guilty of such a lack of due care for his own safety as to bar him from recovery, the trial court properly granted summary judgment to OKI. See generally Hackel v. Bartell, supra at 564 (1); Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989).

Judgment affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0244.
    DEPARTMENT OF CORRECTIONS v. HICKS.
    (433 SE2d 64)
   Birdsong, Presiding Judge.

In October 1989, Charles W. Hicks pled guilty to attempted child molestation and was sentenced to ten years probation, one condition being, that probation supervision was not to be terminated before completion of the sentence. In 1992, the legislature enacted OCGA § 17-10-1, which at (a) (2) provides: “Probation supervision shall termínate in all cases no later than two years from the commencement of probation supervision unless specially extended or reinstated by the sentencing court... for good cause shown.” Proceedings were filed in Floyd Superior Court to determine- whether this new law applies to Hicks’ sentence. The court held that § 17-10-1 (a) (2) applies only to sentences imposed after its effective date. The Department of Corrections appeals. Held:

Decided May 12, 1993 —

Reconsideration denied June 24, 1993 —

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, Farless & Newton, Floyd H. Farless, for appellee.

The legislature did not dictate that OCGA § 17-10-1 (a) (2) applies retroactively to limit probation sentences imposed before its effective date. “Laws [generally] prescribe only for the future; they cannot . . . ordinarily, have a retrospective operation.” OCGA § 1-3-5. “ ‘The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires.’ ” Seaboard Air-Line R. Co. v. Benton, 175 Ga. 491, 497 (165 SE 593). The language of the new law does not “ ‘imperatively [require]’ ” retroactive application to sentences already imposed. The legislature could have so provided, but it did not. The legal presumption is against retroactively applying a statute to destroy vested rights and interests.. Id. at 498-499. The State of Georgia has a considerable interest in the fulfillment of criminal sentences lawfully imposed.

The Department of Corrections’ contention that public policy favors retroactive application of this law as a “remedy” for overloaded probation offices is not persuasive. The causé of excessive probation caseloads is not the lawful imposition of criminal sentences by the courts but is the high incidence of crime. To say that rather than tailor the probation supervision system to the actual incidence of crime, the legislature’s “remedy” for overloaded probation offices was to limit probation supervision of criminals, is like saying that the cure for increased crime is to stop building prisons. The Department’s argument, at bottom, thus imputes an inconceivable degree of ineptitude to the legislature. This new law severely limits the executive’s and judiciary’s right and power to punish or supervise convicted criminals, and requires the State, at additional trouble and expense, to show “good cause” to fulfill the lawful sentence. It would take more than legislative silence to induce us to apply this new law to criminal sentences imposed prior to its passage. The trial court ruled correctly.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0258.
    HOMICK v. AMERICAN CASUALTY COMPANY.
    (433 SE2d 318)
   Blackburn, Judge.

This matter was before this court previously in Homick v. American Cas. Co., 202 Ga. App. 831 (415 SE2d 669) (1992), wherein we set out the underlying facts and reversed the trial court’s order granting American Casualty’s motion for summary judgment on the issue of American Casualty’s liability for PIP benefits. We determined that American Casualty provided a liability surety bond to Independent Freightway pursuant to OCGA § 46-7-12 (a) and, was therefore, obligated to provide coverage under the bond for the minimum no-fault coverage required under OCGA § 33-34-4. Thereafter, American Casualty exhausted its right to appeal by filing a motion for reconsideration with this court, and an application for certiorari and motion for reconsideration with the Supreme Court. Within 30 days of the denial of American Casualty’s motions and application, American Casualty paid the $5,000 in PIP benefits due Homick. Next, American Casualty filed a motion for summary judgment on the issues of liability for bad faith penalties, attorney fees, and punitive damages. The trial court granted American Casualty’s motion and Homick appeals.

On appeal, Homick asserts that the trial court’s order granting American Casualty’s motion for summary judgment was contrary to law. We disagree. Former OCGA § 33-34-6 provides for the award of penalties, attorney fees, and punitive damages where an insurer fails to pay benefits due within the time allowed and fails to prove that its failure to so pay was in good faith. Georgia courts have consistently held that penalties for bad faith are not authorized where there is a disputed question of fact or doubtful question of law. Intl. Indem. Co. v. Collins, 258 Ga. 236, 238 (367 SE2d 786) (1988); Hanover Ins. Co. v. Striggles, 200 Ga. App. 812 (409 SE2d 664) (1991); Downer v. Ga. Farm Bureau Mut. Ins. Co., 176 Ga. App. 641 (337 SE2d 422) (1985); U. S. Fidelity &c. Co. v. Woodward, 118 Ga. App. 591 (164 SE2d 878) (1968).

“Ordinarily, the question of good or bad faith is for the jury, but when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. Good faith is determined by the reasonableness of nonpayment of a claim.” (Citations omitted.) Collins, supra at 238. American Casualty’s denial of the claim was reasonable, as is evidenced by the trial court’s original grant of summary judgment on the issue of liability for PIP benefits. Our reversal of the original grant of summary judgment to American Casualty on the underlying liability issues illustrates that the issue was a close one. Therefore, the trial court did not err in granting American Casualty’s motion for summary judgment on the issues of bad faith penalties, attorney fees, and punitive damages.

Decided June 8, 1993 —

Reconsideration denied June 24, 1993 —

W. Douglas Adams, for appellant.

Fendig, McLemore, Taylor & Whitworth, Philip R. Taylor, James B. Durham, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


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

text:
    A93A0325.
    PEEPLES v. CITIZENS & SOUTHERN COMMERCIAL CORPORATION. NATIONSBANC COMMERCIAL CORPORATION v. PEEPLES.
    A93A0326.
    (433 SE2d 319)
   Birdsong, Presiding Judge.

Shelby Peeples, Jr., appeals the verdict and judgment in favor of defendant NationsBanc Commercial Corporation (NBCC) f/k/a Citizens & Southern Commercial Corporation in his suit for libel and slander. NBCC cross-appeals.

Peeples is president and major stockholder of Textile Coating, Ltd. in Dalton, Georgia. NBCC is a factor and purchased accounts receivables from Mydrin, Inc., which supplied latex to Textile Coating. The evidence was disputed as to whether NBCC granted a $300,000 credit line to Textile Coating, or whether NBCC granted a credit line to Mydrin for shipments to Textile Coating. Peeples is a stockholder at Fidelity Savings Bank and has accounts there, but is neither an officer nor a director of the bank. He has never been arrested or convicted of a crime. However, rumors arose in Dalton in January 1991, that certain persons, including Peeples, had been or were to be indicted for improprieties at that bank. NBCC does not contend these rumors were true or had any substance.

An NBCC employee in Dalton, whose business it was to pass on rumors to the main office in Atlanta, heard the rumors on January 4, 1991, and called Gregory Farr, a credit officer with NBCC’s factoring accounts in the carpet industry. On the same day, Farr allegedly called credit managers of other businesses in the Dalton carpet industry and related that Peeples was going to be arrested or indicted; allegedly, Farr embellished the rumors. Farr also allegedly notified Mydrin by telephone that NBCC was rescinding its credit line from Mydrin for shipments to Peeples’ business. From January 4, news articles were published in local papers which apparently confirmed that the rumors were false. The NBCC employee who relayed the rumors to Farr learned the rumors were false but did not inform Farr. By letter of January 8, postmarked January 11, Farr wrote to Mydrin that the credit line on Textile Coating had been rescinded as of that date, and that the customer’s line had been pulled until NBCC could find out the fate of the company with regards to Shelby Peeples’ recent problems.

NBCC contends its employee’s actions and communications were privileged communications under OCGA § 51-5-7 (l)-(3), particularly (3): “The following communications are deemed privileged . . . Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned.” NBCC further contends the letter’s contents were true and therefore not libelous. NBCC disputed whether Farr imputed a crime to Peeples; who heard or passed any rumors; who believed or had heard them before; whether the rumors harmed Peeples; and whether Farr investigated the rumors before he relayed them in writing to Mydrin and verbally to others. Held:

1. In his appeal Peeples contends the trial court erred in charging the jury that to find libel in the letter to Mydrin, it must find that Farr acted with actual malice.

The trial court did not err in this charge. The conditional privilege under § 51-5-7 concerns itself with whether Farr acted with a “good faith intention” to protect his employer’s interest. Our cases have said, in accord with the statute, that the jury need consider only the speaker’s good faith intention (see Kennedy v. Johnson, 205 Ga. App. 220, 223 (421 SE2d 746); Elder v. Cardosa, 205 Ga. App. 144, 146-147 (421 SE2d 753); Layfield v. Turner Advertising Co., 181 Ga. App. 824, 826 (354 SE2d 14)), which necessarily requires an inquiry into the presence of malice. In Land v. Delta Airlines, 147 Ga. App. 738, 739 (250 SE2d 188), we held the communication was conditionally privileged, as “there [was] no slightest indication either that [the speaker] was motivated by malice or that there was publication beyond that approved by [LuAllen v. Home Mission Board &c., 125 Ga. App. 456 (188 SE2d 138), i.e., communication only to parties concerned in the matter].” In Melton v. Bow, 145 Ga. App. 272 (243 SE2d 590), aff’d 241 Ga. 629 (247 SE2d 100), a case not involving the media, we said: “ ‘[I]t must be proven that the libelous publication was made with actual malice. . . . The circumstances, all of the circumstances, must be considered, and from those circumstances ... a jury may properly conclude the publisher was motivated by malice.’ [Cit.]”

Accordingly, the trial court did not err in charging the jury that if it found a conditional privilege existed for Farr, actual malice must be found to support the claim for libel.

2. Assuming the trial court erred in refusing to give the charge that the jury could find no privilege existed if any of the elements constituting the conditional privilege were missing, we find no harm. To make the defense of privilege complete, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear. Kennedy, supra at 223. The jury construed the evidence in NBCC’s favor by finding no actual malice in Farr’s letter to Mydrin and we are bound to uphold that evidentiary finding; in that light, none of the elements of conditional privilege was lacking.

3. The trial court correctly granted summary judgment to NBCC on the issue of slander. See WMH, Inc. v. Thomas, 260 Ga. 654 (398 SE2d 196); Lepard v. Robb, 201 Ga. App. 41 (410 SE2d 160).

4. The trial court did not err in disallowing evidence of Farr’s personnel records, on the question of NBCC’s knowledge of his alleged propensity for relaying damaging information without proper investigation. This evidence was more prejudicial than relevant to the case, as the letter to Mydrin was found conditionally privileged, based on a good faith intention to protect NBCC’s interest in a matter in which it was concerned (OCGA § 51-5-7 (3)) and was communicated only to the party concerned. LuAllen, supra.

5. It is unnecessary to consider NBCC’s cross-appeal, as the jury’s verdict in its favor is affirmed.

Judgments affirmed.

Andrews, J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

“To make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.” (Citations and punctuation omitted.) Kennedy v. Johnson, 205 Ga. App. 220, 223 (421 SE2d 746) (1992). In that enumeration of error addressed in Division 2 of the opinion, plaintiff argues the trial court erred in failing to instruct the jury that if any of the five elements of a conditional privilege were not present, the privilege would not apply. No error is shown in the charge to the jury because the trial court properly instructed the jury that in order for the defense of privilege to be complete these five elements “must all appear.”

Decided June 8, 1993 —

Reconsideration denied June 24, 1993 —

Hine, Carroll & Niedrach, Edward Hiñe, Jr., John F. McClellan, Jr., for Peeples.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Kathryn S. Whitlock, for C & S and NationsBanc.


text:
    A93A0360.
    ROSE et al. v. RYAN.
    (433 SE2d 291)
   Andrews, Judge.

Mr. and Mrs. Rose were injured in an automobile accident with Richard James Ryan, Jr., on June 14, 1988. They appeal from the court’s entry of summary judgment on defendant Ryan’s motion to dismiss or for summary judgment based on the grounds of insufficiency of service and the statute of limitation.

1. Affidavits and deposition testimony were considered, converting the motion to one for summary judgment. Brooks v. Boykin, 194 Ga. App. 854, 855 (1) (392 SE2d 46) (1990).

Viewed in favor of the Roses, opponents of summary judgment, the evidence was that the complaint alleging personal injuries was filed on May 7, 1990, before the expiration of the two-year statute of limitation on June 14, 1990. OCGA § 9-3-33. At the time of the wreck, Ryan, a student at the University of Alabama, was staying with his parents for the summer and working a summer job. He gave their Cobb County address when asked by the investigating officer where he was living. He also presented his Alabama driver’s license at that time. In 1987, he had forfeited his Georgia driver’s license in order to get his Alabama license which he obtained in order to establish residency in Alabama. He had also registered to vote in Alabama and was paying in-state tuition at the university.

When service was attempted at the Cobb County address, the deputy was advised by defendant’s mother that Ryan was living at 48 University Lane in Tuscaloosa, Alabama and the sheriff’s entry of service reflected that he had moved to that address. On May 20, 1990, counsel for plaintiffs became aware of the entry of service and contacted Fulton County Deputy Sheriff Barfield to attempt to arrange with a Tuscaloosa County officer for service on Ryan. A copy of the complaint and summons was given to Ryan at that address by an Alabama officer on September 13, 1990.

On May 14,1991, plaintiffs added claims for loss of consortium to the complaint.

2. Service must be effected in compliance with the applicable statute. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). The fact that a defendant may have actual knowledge of a complaint by virtue of a process not in compliance with the statute is not adequate under the theory of “substantial compliance.” Id. at 419. Assuming, without deciding, that at the time of the accident, Ryan was a resident of Alabama, although sojourning in Georgia for the summer “[t]he appropriate method for serving a nonresident motorist is prescribed in OCGA § 40-12-2. The requirements of this Code section are in derogation of the common law and must be strictly construed and fully complied with before a court of this State may obtain jurisdiction over a nonresident motorist. [Cit.] In the case sub judice, it appears that plaintiffs could have served defendant under OCGA § 40-12-2 . . . before expiration of the [personal injury] statute of limitation.” Babb v. Cook, 203 Ga. App. 437, 439 (2) (417 SE2d 63) (1992). It is undisputed that plaintiffs here inappropriately attempted to serve defendant by out-of-state personal service under OCGA § 9-11-4 (e) (2) if he resided in Alabama at the time of the wreck.

Assuming without deciding that, as argued by plaintiffs below, Ryan was a Georgia resident at the time of the accident, it is without dispute that at the time of the filing of the complaint and attempted service in Georgia, he was an Alabama resident. In that case, he would have been subject to the jurisdiction of the Georgia court pursuant to the Long-Arm Statute. OCGA § 9-10-91 (2). “Nonresident” for purposes of that act is defined as “an individual . . . who, at the time a claim or cause of action arises . . . was residing ... in this state and subsequently becomes a resident . . . outside of this state as of the date of perfection of service of process as provided by Code Section 9-10-94.” OCGA § 9-10-90. See Bible, supra at 418, fn. 1; Denny v. Croft, 195 Ga. App. 871 (2) (395 SE2d 72) (1990).

OCGA § 9-10-94 provides that a person subject to the Long-Arm Statute “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state ... in which service is made •or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.”

Alabama Code § 36-22-3 does provide that it is the duty of the sheriff “[t]o execute and return the process ... of the courts of record of this state. . . .” ARCP 4.1 (b) (1) likewise authorizes service of process by the sheriff.

Decided April 30, 1993 —

Reconsideration denied June 24, 1993 —

Paul C. Munger, Penny M. Douglass, for appellants.

Mary P. Womack, Bauer, Deitch & Kline, Craig T. Jones, Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, J. Calhoun Harris, Jr., for appellee.

Alabama Code § 6-4-2 provides that all process “shall be executed instanter and, . . . shall be returned immediately upon the execution thereof by the officer executing the same. . . .”

OCGA § 9-11-4 (g) provides that “[t]he person serving the process shall make proof of service thereof to the court promptly and, in any event, within the time during which the person served must respond to the process. Proof of service shall be as follows: (1) If served by a sheriff . . . , or his deputy, the affidavit or certificate of the sheriff ... or deputy.”

Here, there has been no such return of service made with regard to the alleged Alabama service pursuant to OCGA § 9-10-94, even though a continuance was granted by the court for the express purpose of obtaining an affidavit from the Alabama sheriff’s deputy. Therefore, the record before us is devoid of any legal proof of service upon Ryan under any of the above procedures. Compare Coe v. Peterson, 172 Ga. App. 531, 533 (323 SE2d 715) (1984).

Therefore, the court was correct that valid service had not been obtained, but for the reasons set out herein. “[A] judgment right for any reason must be affirmed.” Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989); Bailey v. Hall, supra at 606 (2).

3. Appellees concede in their brief that the statute of limitation of four years for the loss of consortium claims had not expired at the time of the court’s dismissal of those claims on May 4, 1992. Babb v. Cook, supra at 438 (1). The four years would have expired on June 14, 1992. Since proper service could still have been effected under the Long-Arm Statute within that period, that portion of the judgment dismissing that claim is reversed and remanded to the trial court for consideration of this issue.

Judgment affirmed in part and reversed in part.

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

       The complaint named as defendant “James Ryan Richard.” Misnomer was one of the bases included in the motion for dismissal.

       Out-of-state residency at the time of the accident is a requirement for effecting service under the Nonresident Motorist Act. Bailey v. Hall, 199 Ga. App. 602, 603 (1) (405 SE2d 579) (1991).