author: Johnson, Presiding Judge.

text:
    A01A0097.
    VAN NORT v. THE STATE.
    (550 SE2d 111)
   Johnson, Presiding Judge.

Peter Van Nort was convicted of speeding. He appeals, challenging the admission into evidence of the results of a laser speed detection device. His challenges are without merit.

On April 27, 2000, Georgia State Patrol Sergeant J. S. Blackmon saw Van Nort driving his Jeep Wrangler faster than the speed limit of 55 mph. Sergeant Blackmon used a laser device to measure Van Nort’s speed at 81 mph. Based on the laser reading, Sergeant Blackmon stopped Van Nort and cited him for speeding.

Van Nort pled not guilty to the speeding charge. Before trial, his attorney filed a motion to suppress the laser results on the ground that laser devices have not reached a scientific stage of verifiable certainty. At the start of the trial, the court denied the motion.

The state then presented Sergeant Blackmon, who testified that he is certified to operate a laser speed detector, that on the day he stopped Van Nort he was using a Kustom ProLaser II detector, that this model of laser detector is approved by the Georgia Department of Public Safety, that the particular laser device he was using had been calibrated and checked for accuracy before he used it, and that using that device he determined Van Nort’s speed of 81 mph. The state also introduced various documents into evidence, including a certified copy of a Department of Public Safety order specifying the Department’s approval of the Kustom Signals, Inc. ProLaser II speed detection device.

Van Nort’s attorney then cross-examined Sergeant Blackmon, after which the state rested. Van Nort did not present any evidence. The court found Van Nort guilty of speeding and assessed a $240 fine.

Van Nort appeals from the conviction, arguing that the court erred in admitting the laser evidence because the state failed to prove its scientific reliability and that, even if laser evidence is considered scientifically reliable, it should not have been allowed in his trial because the state otherwise failed to lay the foundation for its admission. Because the arguments are without merit, we affirm Van Nort’s conviction.

1. In support of his argument that laser speed detection devices are inadmissible because they have not reached a stage of scientific reliability, Van Nort cites Izer v. State. It is true that in Izer we held that a trial court erroneously admitted laser evidence because the state failed to establish by expert testimony that laser speed detection devices have reached a scientific stage of verifiable certainty.

But shortly after Izer was decided in February 1999, the state legislature passed OCGA § 40-14-17, effective March 25, 1999. That Code section expressly provides that evidence based on a laser speed detector model approved by the Department of Public Safety is admissible in court. OCGA § 40-14-17 states:

Evidence of speed based on a speed detection device using the speed timing principle of laser which is of a model that has been approved by the Department of Public Safety shall be considered scientifically acceptable and reliable as a speed detection device and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state. A certified copy of the Department of Public Safety list of approved models of such laser devices shall be self-authenticating and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state.

While the Izer opinion was correct under the law as it then existed, the subsequent legislative enactment now controls the issue of the admissibility of evidence from approved laser detector models. So long as the state provides a certified copy of the Department of Public Safety’s list of approved models of laser devices, then evidence of speed based on an approved model shall be considered scientifically acceptable.

In the instant case, the state fully complied with the statute. It introduced, without objection, a certified Department of Public Safety order listing the approved models of laser detection devices. And that list included the Kustom ProLaser II device used to measure Van Nort’s speed. Consequently, under OCGA § 40-14-17, the evidence of speed based on that device is considered to be scientifically acceptable and reliable. Van Nort thus has failed to show that the trial court erred in admitting the laser evidence of his 81-mph speed.

2. Van Nort’s second enumerated error — even if the laser is scientifically reliable, the state failed to lay the proper foundation for admitting the laser device’s results — was not preserved for appellate review. On appeal, Van Nort argues that the state did not prove that Sergeant Blackmon is certified to operate the laser device, that the laser device met certain performance specifications, that the State Patrol possesses a license in compliance with Federal Communications Commission rules, and that the laser device used was certified by a technician.

Decided June 7, 2001.

Mumford, Myers & Mooney, T. Kevin Mooney, for appellant.

Joseph J. Drolet, Solicitor-General, Ebony A. Phillips, Katherine Diamandis, Assistant Solicitors-General, for appellee.

At his trial, however, Van Nort raised none of these specific arguments either during or after the state’s presentation of its evidence. And in the absence of such objections, he of course invoked no rulings by the trial court on any of these issues. Nevertheless, Van Nort contends that he may still raise these issues on appeal based on Johnson v. State , which held that a defendant in a speeding case could raise the admissibility of radar test results on appeal even though he had failed to object to them at trial.

But Van Nort’s reliance on Johnson is misplaced because that case has been overruled. Now, as with other issues of evidence admissibility, a defendant must invoke a ruling from the court on the admissibility of radar evidence in order to preserve the issue for appeal. Likewise, any specific objection to the admissibility of laser evidence must be made in, and ruled upon by, the trial court in order for the issue to be subject to review on appeal. Because Van Nort failed to invoke a ruling by the trial court on the issues he now seeks to raise, there is nothing for us to review.

3. Because of our holdings in Divisions 1 and 2, we need not address Van Nort’s argument that if the court had suppressed the laser evidence of speed, there would not have been enough evidence to convict him.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       236 Ga. App. 282 (511 SE2d 625) (1999).

       See Johnson v. State, 146 Ga. App. 277, 279-280 (2) (246 SE2d 363) (1978) (legislature has power to modify the rules of evidence).

       OCGA § 40-14-17.

       189 Ga. App. 192 (375 SE2d 290) (1988).

       See Carver v. State, 208 Ga. App. 405, 406 (1) (430 SE2d 790) (1993), overruled in part on other grounds, Felix v. State, 271 Ga. 534, 540 (523 SE2d 1) (1999).

        Nairon v. State, 215 Ga. App. 76, 77 (2) (449 SE2d 634) (1994); Carver, supra.

       See Turner v. State, 236 Ga. App. 592, 594 (1) (512 SE2d 699) (1999).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0340.
    HILL v. THE STATE.
    (550 SE2d 422)
   Miller, Judge.

After the occurrence of a fatal hit and run incident, Geovanne Hill was convicted of homicide by vehicle in the first degree. Following the denial of a motion for new trial, Hill filed this appeal in which he contends that a jury charge that defined self-defense was not adjusted to the facts and also challenges the sufficiency of the evidence. After review, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Hill is no longer entitled to a presumption of innocence. When so considered, the evidence established that Hill agreed to give Joanna Cuenca a ride home from a nightclub. At about 3:30 a.m., Hill decided to detour to purchase some drugs. While in a neighborhood described by Cuenca as “bad,” Hill’s tow truck broke down, and two men robbed him of $200 to $300. Cuenca described Hill as angry because “he supposedly knew these people.” Arming himself with a stick, he told Cuenca to watch his back while he tried to fix his truck. Hill provided Cuenca with a knife, telling her “[i]f someone tries to come, just slice them.”

After adjusting the fuel pump, Hill resumed cruising, looking for drugs. When a woman approached Hill’s truck and opened her hand to show him the drugs she had for sale, Hill refused to buy from her, saying, “it is not a dime. It is a nickel.” After the woman walked away, Hill reconsidered and called her back. Displaying a $20 bill, Hill told her he wanted to see the drugs again. Hill did not give her any money. Instead, according to Cuenca, “when she opened her hands, he just snatched it. And then shé got ahold of the window, okay, the driver’s side window because it was half cracked. And then she grabbed onto the sideview mirror because he was pressing on the gas.” Hill, as Cuenca described the scene, drove off with the victim holding on tight with her right hand on the window and her left hand on the mirror. Despite the victim’s repeated pleas to stop and her warning to “stop the truck or I’ll kill you,” Hill accelerated, running two stop signs. According to Cuenca’s testimony, Hill was driving 35 to 40 mph and screaming at her to “get off my truck.” Cuenca implored him to stop, saying he was crazy. When Cuenca tried to yank the truck out of gear, Hill slapped her hand away. To dislodge the woman, Hill began driving side to side across the road. Cuenca testified, “he was holding onto her hand, for a while, and then he started peeling her fingers off the truck and pushed her off and [ran] her over.” Feeling the impact as the wrecker ran over the victim, Cuenca looked back and saw her lying in the road. Cuenca testified that “after he ran over that lady I told him the least he can do is call an ambulance for the lady.” Hill refused to do so, telling Cuenca, “[y]ou didn’t see nothing,” and instructing her not to tell anyone.

Forensic and eyewitness testimony corroborated Cuenca’s version of events. Angelo Jones, a friend of the victim, testified that while he was standing next to her, a man driving a black wrecker stopped and asked her, “[s]ay where [can] I get me something to smoke at.” According to Jones’s testimony, she took a step up on the wrecker, “and the next thing I know ... he grabbed her arm or something and hit the gas pedal. He flew down the street, he went over this bump, hit the bump, then ran that stop sign, hit another bump, ran that stop sign, and drug her all the way down the street.” Jones testified that he overheard his friend saying, “let me go, let me go. But he wouldn’t let her go.” Scuff marks on the victim’s boots corresponded with being dragged against the pavement. An autopsy established that the decedent sustained severe compression injuries to her ribs, heart, and liver. A forensic pathologist determined the victim’s massive cranial cerebral trauma and “crushing compression” of the chest cavity were injuries consistent with a person “dropping away from a moving vehicle” and being run over by it.

Hill was tried under an indictment for murder, felony murder, and aggravated assault. The jury, however, acquitted Hill of those charges and found him guilty of homicide by vehicle in the first degree.

1. Hill contends that the trial court erred in its charge by defining self-defense in a manner not adjusted to the facts of the case.

The charge at issue appears in the midst of a multi-page, detailed instruction on self-defense, justification, and the proper use of justifiable force to protect oneself or another person from imminent danger. The trial court charged:

A person has the right to defend himself, but a person is not justified in deliberately assaulting another person not to prevent any impending wrong but solely in revenge for a past or previous wrong, regardless of how serious the past or previous wrong might have been, when the episode involving the previous wrong has ended. Such person is not justified in revenge by deliberately seeking out and assaulting the alleged wrongdoer.

Hill contends that this charge may have misled the jury into thinking that what occurred was not an isolated incident. He claims that the error was compounded by instructing the jury that a deliberate assault upon a person based on revenge for a previous wrong is not justified. Hill argues that since he and the victim had never previously met, this charge was inapt, confusing, and not adjusted to the evidence.

Hill, however, repeatedly tried to justify, explain, and excuse his behavior. In a custodial statement entered in evidence, Hill claimed the victim had been the aggressor. By his recitation of events,

that lady came up and jumped in and she had something in her hand, I had just gotten beat up and robbed, she had something in her hand, I couldn’t tell what. I took off, I slowed down and told her to get off the truck, she just kept trying to grab my money. I tried slowing down and told her to just go away. I wasn’t going that fast. She fell off the truck. I didn’t know I hurt anybody.

At trial, Hill explained that after the woman jumped onto his truck, he became fearful that she or her friends might hurt him. Hill testified, “I’d already been jumped once, you know, that night. I didn’t know what was going to happen to me, but I knew it was going to be something bad.” Under the defense’s theory, while Hill was trying to leave a crime-infested area, he “just panicked,” and a woman, who was threatening to kill him, fell off his truck and hit the pavement.

Hill sought and obtained extensive instructions on justification. However, “[a]s a matter of law, it is an essential element that, for justification to apply, the act must be committed under the fears of a reasonable man and not committed in a spirit of revenge.” To legally justify the use of force, an accused must truly have acted under the influence of the degree of fear reasonably appropriate to the circumstances and not to have acted in revenge. Here, whether Hill was acting in a retaliatory or vengeful manner attributable to spitefulness for being robbed earlier, or for being overcharged for drugs, or for having the victim try to grab his last $20 bill, or whether Hill was acting in reasonable apprehension of being seriously harmed by the decedent or her friends were questions for the jury to resolve. Notwithstanding Hill’s contention to the contrary, the charge at issue is adjusted to the facts and does not appear misleading. In any event, having considered this charge in the context of the instruction as a whole, we find no error.

2. Hill contends that the evidence was not sufficient to sustain the verdict of conviction for homicide by vehicle in the first degree. We disagree. The applicable essential elements of this offense are: (1) causing the death of another, (2) without malice aforethought, (3) by driving any vehicle, (4) with a reckless disregard for the safety of persons or property. Here, the evidence established that Hill caused the death of the victim, without malice aforethought, by operating his truck in a manner exhibiting a reckless disregard for the safety of others. This evidence was sufficient under the standard of Jackson v. Virginia to sustain the jury’s verdict.

Decided June 7, 2001.

Luana K. Walsh, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Ward v. State, 242 Ga. App. 246 (529 SE2d 378) (2000).

       See Brown v. State, 232 Ga. App. 787, 790 (1) (d) (504 SE2d 452) (1998).

        Jack v. State, 245 Ga. App. 216, 218 (3) (536 SE2d 235) (2000), citing Lackey v. State, 217 Ga. 345, 347 (122 SE2d 115) (1961).

        Jack, supra, 245 Ga. App. at 217-218 (3).

       See Shelley v. State, 239 Ga. App. 841 (1) (521 SE2d 855) (1999).

        Overand v. State, 240 Ga. App. 682, 684 (2) (523 SE2d 610) (1999).

       See Foote v. State, 265 Ga. 58, 59-60 (2) (455 SE2d 579) (1995).

       OCGA § 40-6-393 (a); Johnson v. State, 170 Ga. App. 433 (317 SE2d 213) (1984).

        See Abernathy v. State, 191 Ga. App. 350, 351 (2) (381 SE2d 537) (1989).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Phipps, Judge.

text:
    A01A0890.
    MOONEY v. THE STATE.
    (550 SE2d 421)
   Phipps, Judge.

A jury found Douglas Mooney guilty of two counts of forgery. On appeal, he argues that the State named the wrong victim in the accusation, resulting in a fatal variance. Because Mooney failed to raise this challenge in a timely manner and because the variance was merely a misnomer, we affirm.

The relevant counts of the accusation charged Mooney with forgery by knowingly making two checks that were drawn on the account of “the Bonnell Group, Inc.” and purportedly signed by Clint Williams, “but the signature thereon was not his and not signed with his or the Bonnell Group, Inc.’s authority.” The accusation specified that the checks were numbered 2388 and 2389 and were in the amounts of $366 and $345, respectively.

The evidence at trial showed that Mooney and a co-defendant went to the drive-up window at a Newnan bank and presented a check numbered 2389 in the amount of $345 drawn on the account of “The Bonnett Group, Inc.” and made payable to Keith Peters. After cashing the check, the teller notified the police because the men were acting suspiciously and because the name “Keith Peters” recently had appeared on other stolen checks. The police stopped the men’s car and saw Mooney, who was in the passenger seat, shoving papers inside the door panel of the car. A search of the door panel revealed a check numbered 2388 in the amount of $366 drawn on the account of “The Bonnett Group, Inc.” and made payable to Carl Tucker. Thé president of the Bonnett Group later identified the checks as some that had been stolen from his company. He testified that no one from his company had signed them or authorized anyone else to sign them. The jury found Mooney guilty of forgery in the first degree with respect to check number 2389 and forgery in the second degree with respect to check number 2388.

Mooney contends that the accusation listed the wrong victim — “the Bonne/Z Group, Inc.” instead of “the BonneZZ Group, Inc.” — and that this discrepancy is reversible error. Mooney raised this issue for the first time in a motion for directed verdict at trial. However, a contention that an accusation improperly identifies the victim is a challenge to the form of the accusation, and such challenges must be made before trial. Thus, Mooney has waived his challenge.

But even if the challenge had been timely made, we would reject it because the variance in this case was not fatal. We have held that “a variance . . . between the victim’s name as alleged in the indictment and as proven at trial... is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.” Here, although Mooney argues that there is a business in Newnan known as the Bonnell Company, nothing in the record indicates that the accusation’s reference to the “Bonnell Group” was anything other than a misnomer. Moreover, Mooney has failed to show that he was confused to his prejudice by the misnomer. The accusation provided ample specific information — including the date of the alleged offense and the numbers and amounts of the checks in question — to apprise Mooney of the crimes with which he was charged. This specificity also was sufficient to ensure that Mooney could not be prosecuted again for the same offense.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided June 7, 2001.

Sanders, Haugen & Sears, Walter S. Haugen, for appellant.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, for appellee.

       See Dennard v. State, 243 Ga. App. 868, 876-877 (2) (534 SE2d 182) (2000).

       OCGA § 17-7-113.

       See McKay v. State, 234 Ga. App. 556, 558-559 (2) (507 SE2d 484) (1998).

        Cockrell v. State, 248 Ga. App. 359, 362 (2) (545 SE2d 600) (2001), quoting Harrison v. State, 192 Ga. App. 690, 691 (1) (385 SE2d 774) (1989); see also Parks v. State, 246 Ga. App. 888, 889 (1) (543 SE2d 39) (2000); Harris v. State, 197 Ga. App. 695-696 (1) (399 SE2d 284) (1990).

       Compare Harrison, supra at 692 (1) (fatal variance existed where indictment alleged that defendant robbed owner of service station, but evidence established that victim was actually an employee; hence “[i]t is apparent without dispute . . . that the person identified as the victim in the indictment was not in fact the person against whom the robbery was committed”).

       See Cockrell, supra.


author: MlKELL, Judge.

text:
    A01A0039.
    LEDEE v. DEVOE.
    (549 SE2d 167)
   MlKELL, Judge.

William A. Ledee appeals the trial court’s denial of his motion for judgment notwithstanding the verdict. Bertha Devoe filed this action against Ledee and two co-defendants, Martin Findley and James L. Gray, alleging fraud, breach of contract, breach of fiduciary duty, negligence, negligence per se based on the unauthorized practice of law, conspiracy, and negligent and intentional infliction of emotional distress. The court entered summary judgment in favor of Gray, and the case proceeded to trial against Ledee and Findley. The jury returned a general verdict in favor of Devoe, awarding $10,000 in compensatory damages and $100,000 in punitive damages against Ledee. The court denied Ledee’s motion for j.n.o.v. We affirm.

It is well settled that the standard of appellate review of the denial of a motion for j.n.o.v. is the any evidence test. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (2) (496 SE2d 546) (1998).

The question before this court is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded. A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.

(Citations and punctuation omitted.) Id. See also Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867 (490 SE2d 536) (1997); Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

Viewed in the light most favorable to the jury’s verdict, the evidence shows that in June 1993, believing Ledee to be an attorney, Devoe hired him to represent her in a premises liability case against A&P Food Stores, Inc. (“A&P”). Devoe was referred to Ledee by Findley, whom Devoe met while she was employed as a janitor in his office building. Findley was a lawyer at the time he made the referral; however, he was suspended from the practice of law on February 21, 1994. According to Devoe, Findley told her that he could not handle her case, but that he knew a lawyer who was “like a daddy” to him who would help her. Findley told Devoe that Ledee had won a $50,000 verdict in a similar case and wrote down Ledee’s name and telephone number for her. It is undisputed that Ledee is not and has never been a licensed attorney.

When Devoe met Ledee at his office, he told her that he was her lawyer and presented her with an attorney-client agreement to sign. The agreement Devoe signed actually belonged to Gray, a licensed attorney who operated his practice out of Ledee’s office. Devoe cannot read; therefore, she did not realize that the agreement had Gray’s name on it. Devoe testified that “[Ledee] said that he was my lawyer.” Devoe further testified that she believed that Ledee represented her as her attorney and that she did not hire Gray or Findley.

Devoe further testified that she attempted to contact Ledee regarding the status of her case on numerous occasions; however, he was consistently unavailable. She testified that on one occasion when she was actually able to reach him, Ledee handed the telephone to Findley, who told Devoe not to call “Lawyer Ledee” so often because he was very busy.

The complaint against A&P was filed by Findley on February 23, 1994, approximately eight months after Devoe met with Ledee for the first time and one day prior to thé expiration of the statute of limitation. Service was never perfected on A&P, and the case was dismissed on August 3, 1994, for want of prosecution, with costs to be taxed against the plaintiff. Devoe did not learn that her case had been dismissed until more than 30 days later, when her son contacted the court clerk’s office. Devoe attempted to reach Ledee and Findley; however, neither would accept her calls. At the time, Devoe was working as a maid in Findley’s home, so she was able to contact him that night, and he informed her that “[Ledee] just didn’t do his job.” Devoe could not refile her action because the statute of limitation had expired.

Richard Isbill, a claim supervisor for an independent adjusting firm retained by A&P to handle the Devoe claim, testified that Ledee presented himself as Devoe’s attorney. A June 8, 1993 entry in the claim file states: “Attorney Bill Liddi [sic] of Gray & Associates called [and] said he will now be representing Bertha Devoe.” Ledee admitted that he told the adjusting firm that he was with the firm of Gray & Associates. He explained that “Martin [Findley] told me to lie.” Isbill testified that his firm had offered to settle Devoe’s claim against A&P for $5,500. He further testified that because the statute of limitation expired on Devoe’s claim, no money would be offered or paid to her in the future. Devoe testified that she did not know about the settlement offer.

There was additional evidence presented at trial that Ledee held himself out as a licensed attorney and that he exhibited a pattern of misleading behavior. For instance, the name of Ledee’s business was “Ledee & Associates,” and his listing in the business section of the Atlanta telephone directory read “Ledee, William, atty” from 1992 through 1999. Ledee admitted using the fictitious name “Jim Reynolds” in the course of his business. Furthermore, Ledee was convicted of six counts of causing to be transported in interstate commerce falsely made and forged securities, in violation of 18 USC § 2314.

The precise relationship between Ledee, Findley, and Gray was less than clear. Ledee admitted that Findley was an employee of Ledee & Associates at the time Devoe’s complaint was filed, and that Findley took direction from Ledee. The evidence also shows that Ledee provided office space and support staff to Gray free of charge, and that the telephone number on Gray’s letterhead was the same as that of Ledee & Associates. Ledee admitted at trial that Gray, the only licensed attorney in their office, never represented Devoe and that Gray did not give Ledee the authority to use his name or letterhead. Several letters were sent to Devoe’s health care providers on Gray’s letterhead, and one appeared to have been signed by Gray; however, Ledee admitted that they were not sent by Gray.

1. First, Ledee argues that the court erred in denying his motion for j.n.o.v. because Devoe failed to establish the elements of fraud. We disagree and find that there was an evidentiary basis for the jury’s verdict on this claim.

The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages. ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000); Klusack v. Ward, 234 Ga. App. 178, 179 (1) (507 SE2d 1) (1998); OCGA § 51-6-2. We conclude that there was evidence to support each element of Devoe’s fraud claim against Ledee.

First, there was evidence that Ledee falsely represented to Devoe and others that he was an attorney who was handling her case against A&P. Specifically, Devoe testified that Ledee told her that he was her attorney and that he had successfully handled a similar case. Additionally, Isbill testified that Ledee presented himself as Devoe’s attorney in their discussions regarding her claim.

Next, the requirement of scienter was satisfied, as the record demonstrated that Ledee knew that he was not an attorney at the time that the false representations were made. Scienter is rarely evidenced by direct proof, and here Ledee admitted that he was not a licensed attorney. See Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 596 (10) (533 SE2d 136) (2000). Therefore, there was some evidence from which the jury could find that Ledee made a misrepresentation to Devoe that he knew was false.

Third, the record demonstrates Ledee’s intention to induce Devoe to act or refrain from acting. Specifically, there was evidence that Ledee intentionally induced Devoe to sign an attorney-client contract to retain his services, which caused her, to her detriment, to refrain from hiring a licensed attorney.

Fourth, there was an evidentiary basis for the finding of justifiable reliance, based on the representations of Ledee and Findley that Ledee was an attorney who had successfully pursued a similar case. Considering evidence that Devoe was illiterate and unsophisticated, the jury could reasonably conclude that her reliance on the assurances of Ledee and Findley was justifiable.

Finally, there was evidence that Devoe suffered damages as a result of Ledee’s fraudulent conduct. Specifically, Devoe was damaged by the dismissal of her claim against A&P. Furthermore, Isbill testified that there was actually an insurance “reserve” of $7,500 that would have been available to settle Devoe’s claim against A&P; however, that money was no longer available to her because the statute of limitation had expired on the premises liability claim. Additionally, the costs of the underlying action were taxed against Devoe in the trial court’s order of dismissal of the claim against A&P. There was also evidence that Devoe suffered emotional distress.

Accordingly, because there was an evidentiary basis for the jury’s verdict as to all five elements of the fraud claim, we affirm the court’s denial of Ledee’s motion for j.n.o.v.

2. Next, Ledee argues that a j.n.o.v. should have been entered because Devoe failed to prove that she could have recovered in the underlying premises liability case against A&P. We disagree and find that Devoe presented adequate evidence to support the viability of her underlying claim.

In order to prove negligence in a slip and fall premises liability case, a plaintiff must demonstrate that “(1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was [prohibited] from discovering it.” (Footnote omitted.) Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (1) (527 SE2d 36) (1999).

Contrary to Ledee’s argument, there was adequate evidence to support both elements of the underlying premises liability claim. The record shows that on February 24,1992, Devoe slipped while walking through the deli department of an A&P store. Irvin Steerman, who was employed by the store from 1961 until May 24, 1999, testified that he was walking behind Devoe and actually saw her slip. Devoe testified that she did not see the substance before she slipped. There was evidence that A&P had actual knowledge of the foreign substance, as Steerman testified that Devoe slipped on something that “looked like grease, or a little water, or something that was kind of greasy.”

Furthermore, there was ample evidence that A&P had constructive knowledge of the hazard. Constructive knowledge may be demonstrated by showing that a store employee “was in the immediate area of the hazard and could have easily seen the substance” or that “the foreign substance remained long enough that ordinary diligence by [A&P] should have discovered it.” (Footnote omitted.) Shepard, supra at 747. In the case sub judice, there was evidence to establish constructive knowledge by either method. First, Steerman testified that he was in the immediate area of the hazard and actually saw Devoe slip on the foreign substance. Additionally, there was evidence that A&P did not have a specific inspection procedure in place at the time of the accident. “Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.” (Punctuation and footnote omitted.) Id. at 748 (1). Accordingly, the court did not err in denying the motion for j.n.o.v. on this ground.

3. Ledee also contends that the court erred in denying his motion for j.n.o.v. because there was no evidence of a causal connection between his acts and omissions and Devoe’s damages. He first argues that the proximate cause of the dismissal of Devoe’s underlying case was Findley’s failure to perfect service on A&P. According to Ledee, even if Devoe hired him as her attorney, Findley became her substituted counsel following the filing of the complaint.

We reject Ledee’s argument and find his reliance on Meiners v. Fortson & White, 210 Ga. App. 612 (436 SE2d 780) (1993), to be misplaced. In Meiners, a legal malpractice case, the plaintiff actually fired her first lawyer and hired a second one, and the attorneys in the case were licensed to practice law. In the case sub judice, Devoe hired Ledee as her lawyer and never believed that Findley represented her. Additionally, Ledee admitted that Findley was actually an employee of Ledee & Associates at the time Devoe’s complaint was filed, and that Findley took direction from Ledee. Therefore, we do not agree that Findley became Devoe’s substituted counsel.

Next, Ledee argues that Devoe’s own acts and omissions somehow caused the dismissal of her case against A&P. This argument is patently without merit. We conclude that there was an evidentiary basis for the jury’s determination that Ledee’s acts and omissions were the proximate cause of the dismissal of Devoe’s underlying claim against A&P.

4. Ledee argues that j.n.o.v. was appropriate because there was no evidence to support Devoe’s conspiracy claim. We disagree.

“A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” (Citation and punctuation omitted.) First Fed. Sav. Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). See also Rose v. Zurowski, 236 Ga. App. 157-158 (1) (511 SE2d 265) (1999). In order to recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct which constitutes a tort. Savannah College of Art &c. v. School of Visual Arts of Savannah, 219 Ga. App. 296, 297 (464 SE2d 895) (1995). We conclude that there was an evidentiary basis for the jury’s determination that Ledee and Findley engaged in tortious conduct in concert, as shown by the facts summarized above and the extensive record. Accordingly, the court properly denied Ledee’s motion for j.n.o.v. on the civil conspiracy claim.

5. Next, Ledee argues that the trial court should have granted a j.n.o.v. because any judgment against A&P in the underlying case would not have been collectible. We reject this argument.

First, Devoe could have recovered at least $7,500 from A&P, as evidenced by the adjuster’s testimony that his firm held that amount in reserve to settle Devoe’s claim on A&P’s behalf. Furthermore, because the jury returned a general verdict, it is possible that the award of damages was actually based on the fraud claims against Ledee and Findley, which would not be affected by the solvency of A&P. See Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 356 (2) (514 SE2d 691) (1999).

6. Likewise, we reject Ledee’s argument that Devoe failed to present evidence warranting the award of punitive damages. OCGA § 51-12-5.1 (b) provides: “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” The facts summarized above and the extensive record provide clear and convincing evidence to support the jury’s award of punitive damages.

7. Ledee contends that the court erred in accepting the jury’s general verdicts, because the jury awarded compensatory damages in the amount of $5,000 against Findley and $10,000 against Ledee. Ledee argues that the inconsistent verdicts arose out of the same conduct and were based on the same evidence; therefore, the court should have refused to accept them and directed the jury to continue its deliberations. We do not agree.

It is well settled that a strong presumption exists in favor of the validity of jury verdicts. NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344, 347-348 (2) (223 SE2d 732) (1976). “The verdict[s] may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . [I]f possible a construction will be given which will uphold them.” (Punctuation omitted.) Harrison v. Martin, 213 Ga. App. 337, 344 (1) (444 SE2d 618) (1994), citing West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 869-870 (3) (198 SE2d 420) (1973). Accord Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297) (1967).

As in the case at bar, when two or more verdicts “do not manifest that the jury reached conflicting opinions on the same evidence or the same witnesses,” we will not disturb them. John D. Robinson Corp. v. Southern Marine &c. Co., 196 Ga. App. 402, 406 (5) (395 SE2d 837) (1990). Compare Bagwell v. Sportsman Camping Centers, 130 Ga. App. 888, 890-891 (204 SE2d 794) (1974). Additionally, when a jury does not “specify upon which count . . . the verdict was rendered,” the verdict will not be subject to attack if it was “authorized by the evidence under [any of the] counts.” Whitaker v. Creedon, 99 Ga. App. 228, 233 (4) (108 SE2d 335) (1959). The fact that the jury found Ledee to be more culpable than Findley and thus awarded a larger portion of the compensatory damages against him did not render the verdicts inconsistent. Accordingly, the court did not err in receiving the verdicts.

8. Finally, Ledee argues that it was error for the court to charge the jury on negligence per se. He contends that there was no evidence in the record demonstrating a causal connection between his unauthorized practice of law and Devoe’s loss. This argument has no merit.

Decided May 10, 2001

Reconsideration denied June 8, 2001

Cauthorn & Associates, Thomas E. Cauthom III, Melissa M. Nohr, Awtrey & Parker, Harvey D. Harkness, for appellant.

Slappey & Sadd, James N. Sadd, William A. Dupre IV, Charles A. Evans, for appellee.

OCGA § 15-19-51 (a) (3) provides: “It shall be unlawful for any person other than a duly licensed attorney at law . . . [t]o hold himself out to the public or otherwise to any person as being entitled to practice law.” It is well settled that the violation of a state statute that results in the injury of another person constitutes negligence per se. Edmond v. Roberson, 207 Ga. App. 101, 102-103 (2) (427 SE2d 74) (1993); Green v. Gaydon, 174 Ga. App. 796, 798 (3) (331 SE2d 106) (1985).

There is ample evidence in the record that Ledee’s unauthorized practice of law was the direct cause of Devoe’s injuries. Furthermore, “[i]t is the duty of the court to charge the jury on the law as to every controlling, material, substantial [,] and vital issue in the case.” Pritchett v. Anding, 168 Ga. App. 658, 663 (6) (310 SE2d 267) (1983). Accordingly, the court did not err in charging the jury on negligence per se.

Judgment affirmed.

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

       The jury also awarded $5,000 in compensatory damages and $50,000 in punitive damages against Findley, but he has not filed an appeal.

       Findley had been suspended from the practice of law prior to filing the complaint on behalf of Devoe.

       Ledee’s conviction was affirmed in United States v. Ledee, 549 F2d 990 (5th Cir. 1977).

       Devoe slipped but recovered her footing and did not actually fall. She testified that her foot and ankle were injured when she slipped.


author: Mikell, Judge.

text:
    A01A0970.
    McKINNEY v. THE STATE.
    (549 SE2d 164)
   Mikell, Judge.

Randolf McKinney appeals the trial court’s denial of his motion for discharge and acquittal, contending that his Sixth Amendment right to a speedy trial was violated. For the reasons set forth below, we affirm.

McKinney was arrested on April 12, 1998, and indicted on June 23, 1998, on four counts of armed robbery. The trial court on July 17, 1998, entered an order granting bond. McKinney was released and presently remains on bond. On July 21, 2000, McKinney filed his motion for discharge and acquittal, contending that the 27-month delay between the date of his arrest and his trial date violated his Sixth Amendment right to a speedy trial. McKinney’s motion was heard and denied on August 28, 2000.

In his sole enumeration of error, McKinney argues that the 27-month delay violated his Sixth Amendment right to a speedy trial. McKinney’s claim must be analyzed under the test prescribed in Barker v. Wingo, in which the U. S. Supreme Court identified four factors for consideration: “(1) the length of the delay, (2) the reason for delay, (3) the defendant’s assertion of the right[,] and (4) the prejudice to the defendant.” In analyzing the fourth factor, we are required “to consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.” We review the trial court’s denial of McKinney’s motion under an abuse of discretion standard.

We have previously held that a 27-month delay is presumptively prejudicial; thus, no analysis of the first factor is required. As to the second factor, McKinney argues that although the state did not intentionally delay the trial, the delay was caused by its negligence in handling the case. Specifically, three different assistant district attorneys have been assigned to the case. Additionally, in March 2000, the trial court erroneously placed the case on a plea and arraignment calendar when it should have been on a trial calendar. Though we note that the record is devoid of evidence that the state intentionally dragged its feet to impact McKinney’s defense, the delay is a negative factor that must be attributed to the state. The third factor, however, must be weighted against McKinney because he did not assert his constitutional right to a speedy trial until July 21, 2000.

The remaining factor, prejudice to McKinney’s defense, “is the factor weighed most heavily in determining whether the constitutional right to a speedy trial has been violated.” As stated earlier, when analyzing this factor we must consider whether the delay caused the defendant to suffer oppressive pretrial incarceration, undue anxiety and concern and whether it impaired his defense. There is no evidence in the record that requires us to balance any of these interests in McKinney’s favor. He did not suffer oppressive pretrial incarceration because he has been on bond since July 1998. McKinney has not offered evidence that he suffered undue anxiety and concern. McKinney’s only argument is that his defense was prejudiced by the delay because he cannot locate defense witnesses from whom he previously obtained affidavits. “[A]ny prejudice which results merely from the passage of time cannot create the requisite prejudice. The possibilities that memories will dim, witnesses become inaccessible, . . . are not in themselves enough to demonstrate that [McKinney] cannot receive a fair trial.” Thus, this factor, too, must be weighted against McKinney.

Decided May 9, 2001

Reconsideration denied June 8, 2001

Dwight L. Thomas, Jo Ann C. Fields, for appellant.

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Law-ton W. Scott, Ferdinand M. Viscuse, Assistant District Attorneys, for appellee.

Balancing all four factors, we conclude that McKinney’s Sixth Amendment right to a speedy trial was not violated; thus, the trial court did not abuse its discretion when it denied McKinney’s motion for discharge and acquittal.

Judgment affirmed.

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

       The case was scheduled to be tried on the August 21, 2000 trial calendar.

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       (Citation omitted.) Hall v. State, 240 Ga. App. 356, 357 (3) (523 SE2d 409) (1999).

       (Citation omitted.) Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997).

        Thomas v. State, 233 Ga. App. 224, 225-226 (2) (504 SE2d 59) (1998).

        Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994).

        Thomas, 233 Ga. App. at 226 (2).

       See Johnson, 268 Ga. at 416, 418 (2).

       (Citation omitted.) Nealy v. State, 246 Ga. App. 752, 754 (3) (542 SE2d 521) (2000).

       See Simpson v. State, 150 Ga. App. 814, 816 (258 SE2d 634) (1979).

       (Citations and punctuation omitted.) Wooten v. State, 262 Ga. 876, 880 (3) (426 SE2d 852) (1993).


author: Blackburn, Chief Judge.

text:
    A01A0081.
    HOLLAND v. THE STATE.
    (550 SE2d 433)
   Blackburn, Chief Judge.

Paul M. Holland appeals the trial court’s denial of his ineffectiveness of counsel claim arising out of his criminal conviction. A jury convicted Holland of homicide by vehicle in the second degree and improperly backing his vehicle into a roadway. In Holland v. State, this Court found sufficient evidence to support those convictions but remanded the case solely for an evidentiary hearing on Holland’s ineffective assistance of counsel claim. Subsequently, the trial court rejected the ineffectiveness claim, and we affirm that determination.

A defendant asserting ineffectiveness of counsel must prove that his counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that but for counsel’s unprofessional conduct, the result of the proceeding would have been different. Jones v. State. A trial court’s determination that a defendant was not denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Bevil v. State.

To attempt to establish his ineffective assistance claim, Holland offered only the testimony of Daniel A. Summer, a criminal defense attorney, who was not present at trial and who reviewed only a portion of the trial transcript. In arriving at his conclusions, Summer focused his attention on the trial testimony of one particular prosecution witness, a State trooper. Summer was particularly critical of trial counsel’s failure to object to remarks by Trooper Mark Perry that Summer felt were speculative, mere conjecture, or invaded the province of the jury as to the ultimate issue, the cause of the collision between the decedent’s vehicle and Holland’s wrecker. Summer thought the cross-examination of Perry was “good,” so Holland’s ineffectiveness claim essentially hinged on his trial counsel’s “failures” to object to the admission of the accident report and to the content of Perry’s testimony on direct. Summer concluded that “the cumulative effect [of trial counsel’s multiple errors during the trooper’s testimony] would be to deprive Mr. Holland of his Sixth Amendment right to effective assistance of counsel.”

Summer admitted, however, that he did not review the entire trial transcript. He conceded that he had not read the defendant’s testimony or seen the videotape shown to the jury or reviewed closing arguments. Summer testified, “I was given the direct and cross of the trooper and that’s what I read.”

After the hearing and additional briefing by the parties, the trial court denied Holland’s second amended motion for new trial, finding that trial counsel’s purported deficiencies were matters of trial strategy and tactics. The trial court expressly noted: “Having been present at the trial of this matter, and having reviewed the record of this proceeding, the Court finds that failure of trial counsel to raise objections to certain testimony and the choice not to call certain witnesses were a matter of trial strategy and as such do not constitute a constitutionally infirm defense.”

We will not reverse on the basis of an ineffective assistance claim unless conduct by trial counsel so undermined the proper functioning of the adversarial process that the trial could not have produced a just result. Mency v. State.

Whether an attorney’s trial tactics are reasonable “is a question of law,” not fact. The test for reasonable attorney performance has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . . [W]e are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

(Citations omitted.) Jefferson v. Zant.

Conflicting testimony was presented at trial on the issue of whether the decedent could have avoided the collision which took place near dusk. Holland hinged his defense primarily on the theory that the decedent had not been paying attention, or had been reading, or was otherwise distracted just before her car collided with his wrecker. In other words, the decedent’s failure to fulfill her duty of maintaining a proper lookout while driving was the proximate cause of the accident. At the motion hearing, trial counsel explained, “[fit was a long straight-of-way and she had every opportunity to avoid this accident and for whatever reason she just ran into his truck.”

Eyewitness Franklin Andrew Brock testified that just before the impact, he noticed that she was not paying attention, was looking down into her lap, and did not brake at all. Brock, who was approaching from the opposite direction, stopped his car when he saw that a heavy-duty wrecker had backed out into the other lane of traffic.

One of three investigators at the scene, Deputy Wes Anderson, testified that the wrecker lacked side lights or reflective markers, implying that such lights could have helped to prevent the collision. Sergeant Dykes Dalrymple, of the Georgia Public Service Commission Enforcement Division, inspected the wrecker that same night. He determined that the wrecker did not have the side reflectors and side clearance lamps required by State law.

Trooper Perry, the chief investigator, videotaped the scene shortly after the incident occurred. Walking toward the wrecker from the victim’s direction of travel, Perry taped the scene. Perry testified that the wrecker’s rear axle along with its boom and tow bar projected out from a driveway into the roadway and that the victim’s car plowed underneath the tow bar. Perry testified that he did not see anything on the truck to indicate its presence from the victim’s direction of travel. This videotape filmed less than an hour after the fatal incident was viewed by the jury. A videocamera equipped with a time and date stamp and located in Trooper Mike Fortson’s patrol car also filmed the accident scene. The victim’s death was attributed to massive head injuries sustained in the collision.

1. Holland contends that his trial counsel’s performance was deficient because the State was allowed to introduce without objection a blown-up version of the accident report. But deficiency without prejudice is not enough to establish an ineffective assistance claim since Holland had to show a reasonable probability that but for the deficiency the result of his trial would have been different. Johnson v. State. In any event, the report at issue may actually have benefitted Holland. Certain details on the report meshed with Holland’s defense that the decedent had been inattentive or was not paying close attention to her driving. According to that report, “[f]or some unknown reason, the driver of Vehicle 2 failed to see Vehicle 1 and struck it in the rear.” The incident report also noted, “[t]here was no evasive maneuver by the driver of Vehicle 2.” In these circumstances, Holland failed to show the requisite deficiency and prejudice. See Jones, supra.

2. Holland contends that his counsel failed to present evidence supporting notions that the deceased had not been taking her diabetes medication and may have lapsed into a diabetic coma. The decedent’s medical history, including her diabetic condition and mental history, was addressed at the first motion for new trial hearing. Whether the victim was experiencing any symptoms relating to diabetes or to any other medical condition is speculative at best, especially since the collision occurred while the victim was able to maintain her car in a straight line and within her proper lane of travel. Regarding this allegation of ineffective assistance, Holland has not carried his burden of proving both the defect in his counsel’s performance and the resulting prejudice to this case. See Johnson, supra.

3. Holland faults his counsel for not requesting a Jackson-Denno hearing as to comments he made at the scene. Even assuming arguendo that Holland had been in custody at the time he answered the investigator’s questions, the transcript indicates that Holland provided only routine information. See Knapp v. State. Holland was asked to give his name, date of birth, license, and insurance and to describe what happened. Holland did not admit fault, and nothing Holland said incriminated him any more than the scene, inasmuch as the rear end of Holland’s heavy-duty wrecker was still in the street with the victim’s car partly crushed underneath it.

4. Holland delineates 14 occasions occurring during Trooper Perry’s testimony where Holland claims that his trial counsel should have posed objections. He claims that the trooper’s testimony is replete with legal conclusions, opinion, and speculation and even invades the province of the jury as to deciding the ultimate issue.

Decided June 8, 2001.

H. Bradford Morris, Jr., for appellant.

Jerry Rylee, Solicitor-General, Michael K. Biglow, Larry A. Baldwin II, Assistant Solicitors-General, for appellee.

Defense counsel interjected six separate objections during Perry’s testimony. Counsel’s decision not to assert additional objections must be considered as part of trial strategy and tactics, and even if that decision was unwise, it did not constitute ineffective assistance of counsel. Luallen v. State. Although Holland’s expert testified about the cumulative effect of allowing objectionable testimony and the impossibility of “unring[ing] the bell,” our law does not recognize that theory. See Carl v. State. Because the so-called cumulative error doctrine is inapplicable, each claim of inadequacy must be examined independently of other claims, using the two-prong standard of Strickland v. Washington. See Johnson v. State. While Holland points out multiple instances where his counsel could purportedly have posed objections to the trooper’s testimony, he failed to show how any one of these would satisfy both prongs of the Strickland standard. Since the trial court’s determination that Holland received effective assistance of counsel was not clearly erroneous, we affirm. See Jones, supra at 67.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Holland v. State, 240 Ga. App. 169 (523 SE2d 33) (1999).

        Jones v. State, 230 Ga. App. 65 (495 SE2d 327) (1997).

        Bevil v. State, 220 Ga. App. 1 (467 SE2d 586) (1996).

        Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997).

        Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993).

        Johnson v. State, 214 Ga. App. 404, 405 (1) (447 SE2d 711) (1994).

        Knapp v. State, 229 Ga. App. 175, 178 (4) (493 SE2d 583) (1997).

        Luallen v. State, 266 Ga. 174, 177 (3) (b) (465 SE2d 672) (1996).

        Carl v. State, 234 Ga. App. 61, 65 (2) (g) (506 SE2d 207) (1998).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Johnson v. State, 236 Ga. App. 61, 66 (3) (e) (510 SE2d 918) (1999).


text:
    A01A0142.
    H. J. RUSSELL & COMPANY v. JONES.
    (550 SE2d 450)
   Johnson, Presiding Judge.

A Fulton County jury found for Regina Jones and against H. J. Russell & Company in connection with H. J. Russell’s supervision and retention of employee Dwight Brown. On appeal, H. J. Russell claims that the trial court erred in denying its motion for a directed verdict and that the evidence does not support the verdict. We disagree and affirm.

A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.”

Viewed in the light most favorable to support the verdict, the evidence shows that Jones was hired by H. J. Russell in June 1994 as an on-site property manager. Jones first met Brown when she went to the H. J. Russell main office to pick up some documents from her supervisor. He approached her and pulled up his pants so that it showed the outline of his penis. Brown grabbed her around the waist and looked to see if she had a wedding band. Jones told Brown that she was married; he said damn, put his hands in his pockets, and walked away. Brown had numerous other encounters with Jones in which he would touch her, use inappropriate language, and pull up the crotch of his pants. When Jones introduced Brown to her daughter, Brown told Jones’s daughter she was a “fine young thing,” and raised up his pants to show the outline of his penis.

Brown became Jones’s direct supervisor in April or May 1995. After July 1995, Brown and Jones walked through the property she was managing; Jones remarked that her toes hurt from the walk, and Brown said, “I’ll suck them toes for you.” In August 1995, Brown became angry when Jones refused to meet with him after office hours. In October 1995, when asking Jones to have a birthday drink with him, he stared at her, put his hand on his penis, and rubbed it through his clothes. In January 1996, when Jones was using a photocopy machine, Brown rubbed his penis against her behind as he passed, even though there was room for him to pass without touching her.

Jones first reported Brown’s unwelcome conduct to her supervisor in the latter part of 1994. In August 1995, she met with H. J. Russell vice president Jerome Russell about Brown’s conduct. Russell referred Jones to the human resources manager, and Jones discussed Brown’s behavior in detail with her. The human resources manager asked Jones to put her complaints about Brown in writing, and Jones submitted a memorandum outlining three of the incidents with Brown.

In response to Jones’s complaints, H. J. Russell removed Brown as Jones’s direct supervisor in late September or early October 1995 and placed a letter of reprimand in his file. In January 1996, Brown was promoted to a position where he had authority over Jones’s immediate supervisor and the company’s other regional managers. After his promotion, and during a break in a company-wide meeting of property managers, Brown walked by Jones and told her, “I’m still here.” Jones resigned in February 1996 and told the human resources director that she was leaving the company because of Brown.

The evidence also shows a history of inappropriate activity by Brown in connection with other female employees of H. J. Russell. He made inappropriate comments to Candice Russell, a regional property manager. Brown told a female employee at the main office that she should continue wearing short skirts. Brown offered money to another regional property manager if she would “be” with him. He told a female employee working under him that, “I’d like to have some of that,” while pointing at the employee’s crotch.

In a special interrogatories and verdict form, a Fulton County jury found that H. J. Russell (1) negligently retained or supervised its employee Brown, and (2) such negligent retention or supervision of Brown was wilful, wanton or malicious, and directed toward Jones. “A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.” The evidence authorized the jury’s finding that H. J. Russell had been negligent in its supervision or retention of Brown.

H. J. Russell argues that because Jones proved no physical or pecuniary injury, she was entitled to recover only for injury to peace and happiness under OCGA § 51-12-6 and that the evidence presented would not authorize a damage award. H. J. Russell further claims that even admitting for purposes of argument that it was negligent in supervising Brown, the evidence does not authorize a finding that its actions were wilful, wanton or malicious, and directed toward Jones. We disagree.

Negligent conduct, without more, will not support a recovery for emotional distress. Damages are generally not available for mental pain, suffering, or emotional distress unless accompanied by physical or pecuniary loss or the result of malicious, wilful, and wanton action directed at the complainant. Because Jones did not show physical damage or pecuniary loss, we agree with H. J. Russell that the case presented here would allow only for a recovery of damages to her peace and happiness as the result of malicious, wilful, and wanton action directed at the complainant. Wilful and wanton conduct is conduct which shows “that entire absence of care which would raise the presumption of conscious indifference, or that with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequences of his conduct would be to inflict injury.” H. J. Russell was specifically found to have engaged in wilful, wanton, or malicious conduct by the jury.

The evidence shows that H. J. Russell knew Brown had engaged in inappropriate behavior amounting to sexual harassment toward a number of female co-workers and toward Jones in particular. And the evidence would authorize a jury to conclude that the management of H. J. Russell knew that it had not adequately protected Jones from Brown. Even after being removed as Jones’s immediate supervisor, Brown was allowed to visit the property Jones was managing. Evidence also shows that Brown continued to harass Jones when she visited the main office; the main office was the location where most harassment occurred both before and after Brown was removed as Jones’s immediate supervisor. The jury would be authorized to find that the actions taken by H. J. Russell to protect Jones from Brown were ineffective and that H. J. Russell knew they were ineffective but failed to act.

H. J. Russell argues that, even if it acted wilfully or wantonly, Jones cannot recover unless its actions were directed at Jones. In Ford v. Whipple, for example, the defendant sped through a red light and collided with the car in which the plaintiff’s child was a passenger. Because the child was not physically hurt, we held that the defendant’s acts must have been directed at the child to support a recovery. We found that though the defendant’s conduct may have been wanton, the conduct could not be said to be directed at anyone, including the child. By contrast, H. J. Russell knew that Brown was targeting Jones, and so a wanton failure by H. J. Russell in supervising Brown can fairly be seen as a wanton failure to fulfill its duty to Jones in particular.

H. J. Russell claims that the two-year statute of limitation applicable to Jones’s claim of negligent supervision and retention was substantially ignored by the jury. Because Jones filed her complaint on July 30, 1997, she was not entitled to recover for claims arising prior to July 30, 1995. Evidence was introduced at trial concerning incidents of harassment occurring before July 30, 1995, but the trial court charged the jury that “Ms. Jones may only recover for those actions or comments occurring after July 30,1995. . . .” H. J. Russell maintains that no reasonable minded jury could find sufficient evidence to warrant a finding that its conduct was malicious, wilful, wanton, and directed at Jones based on events occurring after July 30, 1995. However, the evidence of Brown’s actions before July 30, 1995, are relevant as to whether H. J. Russell knew or should have known that Brown was a threat to Jones. Acts of sexual harassment occurred after July 30, 1995, and the evidence would support a finding that H. J. Russell supervised and retained Brown after July 30, 1995, under conditions which showed a wanton disrespect for the safety of Jones. For the reasons set forth above, we find that the trial court did not err in denying H. J. Russell’s motion for a directed verdict and that the evidence was sufficient to support the jury’s verdict.

Decided June 8, 2001.

Smith, Gambrell & Russell, David M. Brown, Lisa L. Ballentine, Trade Y. Johnson, for appellant.

Blackburn, Walther & Sloan, Donna C. Sloan, Samuel P. Westmoreland, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994).

       (Citations and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996).

       (Citations and punctuation omitted.) Harvey v. McLaughlin, 198 Ga. App. 105, 107 (1) (a) (400 SE2d 635) (1990).

       See Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 588 (III) (533 SE2d 82) (2000) (“[W]e decline to adopt any rule which might, in effect, create a separate tort allowing recovery of damages for the negligent infliction of emotional distress”).

       See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665-666 (2) (386 SE2d 146) (1989). But see Lee, supra at 588 (recovery for emotional distress allowed when physical injury was inflicted on complainant’s child in complainant’s presence).

        Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992); Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975).

       (Punctuation omitted.) Brady v. Glosson, 87 Ga. App. 476, 480 (74 SE2d 253) (1953).

        Jordan v. Atlanta Affordable Housing Fund, 230 Ga. App. 734, 737 (2) (498 SE2d 104) (1998); Ford v. Whipple, 225 Ga. App. 276, 278 (483 SE2d 591) (1997).


text:
    A01A0172.
    DODD v. SCOTT et al.
    (550 SE2d 444)
   Miller, Judge.

In 1973 W. J. Dodd purchased ten acres and built a home. He conveyed six of the undeveloped acres back to the original owner, whose successor in interest sold the land back to Dodd in 1982. Two years later, with no consideration passing hands, Dodd conveyed the six acres to his daughter Jenifer Scott and to her husband David Scott. When Dodd died, his wife Joyce claimed that the Scotts held the six acres in an implied trust for Dodd or his estate, and as assignee of the estate Joyce filed a complaint to have title declared as belonging to the estate. The Scotts denied the existence of any implied trust, maintaining that the property was theirs outright. The trial court entered summary judgment in favor of the Scotts, holding that the evidence proffered by Joyce to show an implied trust was inadmissible hearsay and that therefore the only evidence before the court showed an outright gift to the Scotts.

The questions on appeal are whether all of Joyce’s evidence was inadmissible hearsay and whether any admissible evidence supported the finding of an implied trust. Although the court did not abuse its discretion in excluding some of Joyce’s evidence as inadmissible hearsay, it erred in its reasoning in excluding other portions of that evidence, and it overlooked relevant, nonhearsay evidence. Thus, we affirm in part, reverse in part, and vacate in part.

1. The proper context for analyzing these questions requires a review of the law of implied trusts. In 1991 the General Assembly enacted the “Georgia Trust Act,” which applied to all trusts regardless of the date they were created (except to the extent such would impair vested rights and except as otherwise provided by law). Under this Act, “[a]n implied trust is either a resulting trust or a constructive trust.”

(a) Resulting Trusts. OCGA § 53-12-91 defines a resulting trust as one implied for the benefit of the settlor or the settlor’s successors in interest “when it is determined that the settlor did not intend that the holder of the legal title to the trust property also should have the beneficial interest in the property. . . .” But one of the following circumstances must also be present: (1) an express trust was created but failed (in whole or in part) for any reason, (2) an express trust was fully performed without exhausting all the trust property, or (3) a purchase money resulting trust was established. Since no express trust is alleged or shown in the present case, the only possible resulting trust here would be a purchase money resulting trust.

On appeal Joyce does not argue that the facts establish a purchase money resulting trust, but argues only that a constructive trust is shown. Indeed, a purchase money resulting trust is only presumed to exist for the benefit of one who pays consideration for the transfer of title to property to another person. That would mean here that the evidence would have to show that Dodd paid consideration for legal title in the property to be transferred to the Scotts. But no evidence shows that Dodd paid consideration to have the property transferred to the Scotts. Rather, Dodd purchased the property two years before he transferred the property to the Scotts. Thus, the evidence does not show the establishment of a purchase money resulting trust.

(b) Constructive Trusts. OCGA § 53-12-93 (a) defines constructive trusts as those “implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” Thus, where a person who receives property agrees to hold it for the benefit of another, that person may not use or sell it for his or her own benefit, for to do so would result in that person’s unjust enrichment, a violation of an equitable principle. In such circumstances a constructive trust arises which requires the person to hold the property in trust for the intended beneficiary. Accordingly, the question in this case is whether the evidence proffered by Joyce showed that when the Scotts received the six acres in 1984, they agreed to hold the six acres in trust for Dodd or his estate.

2. The trial court found three categories of evidence proffered by Joyce inadmissible as hearsay: (1) Joyce’s deposition testimony about a deathbed statement Dodd made to her that he wanted her “to have the acreage and the house, the whole ten acres”; (2) an affidavit from Joyce’s sister and one from Dodd’s sister that Dodd told each of them that he considered the six acres as part of his homeplace and that Jenifer held the title to the acreage in trust with the understanding she would transfer title to his estate on his death; and (3) Joyce’s deposition testimony about statements Dodd made to her over the years that the six acres were “our land.” In her first two enumerations of error, Joyce contends the court erred in finding the first two categories inadmissible. Since Joyce does not enumerate the exclusion of the third category as error, we will not address such.

Private statements made to relatives by a person since deceased that he owned certain property or that certain property he had transferred was in fact held in trust for him or his estate are in his interest and are not a matter of public interest and thus are hearsay not subject to the exceptions set forth in OCGA §§ 24-3-8 and 24-3-9. They would therefore be admissible “only in specified cases from necessity.”

The necessity exception requires two findings before the hearsay evidence is admissible: “a finding that the hearsay is necessary, and a finding that the declarant’s hearsay statement is surrounded by particularized guarantees of trustworthiness.” Where the declarant is deceased, the hearsay is deemed necessary if the hearsay proponent shows “that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered.” If this threshold is met, the court then examines the question of trustworthiness, which is an inquiry into indicia of reliability. Basically, the court determines whether there is “something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.”

Two general principles apply to our review of these issues. First, the admission of evidence is generally a matter resting largely within the sound discretion of the trial judge. Second, and nevertheless, because Georgia favors the admission of any relevant evidence, no matter how slight its probative value, evidence of even doubtful relevance should be admitted. Thus, the inquiry before us is whether the trial court’s exclusion of the hearsay evidence as not fitting the necessity exception is an abuse of that discretion.

(a) Deathbed Statement. The court found that Dodd’s deathbed statement to Joyce that he wanted her “to have the acreage and the house, the whole ten acres,” was not relevant to the issue of whether the Scotts had received the six acres with the understanding that they would hold the property in trust for the benefit of Dodd or his estate. Since the court concluded the statement was irrelevant, the court did not address whether the information was available from better sources or whether it met the trustworthiness test.

“[Ejvidence is relevant if it renders the desired inference more probable than it would be without the evidence.” “[EJvery act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” At about the same time Dodd allegedly stated that he wanted Joyce to have the house and the whole ten acres, Dodd’s will was read to Joyce and Jenifer, in which Dodd bequeathed his “home located on Sardis Church Road” to Joyce. Dodd had referred to the home and ten acres as a single property owned by him in sworn financial disclosure documents filed with governmental authorities years after the conveyance to the Scotts. Thus, Dodd’s statement tends to make more probable that he had an agreement with the Scotts that they were holding the six acres in trust for him or his estate. Otherwise, Dodd would not have implied to Joyce that he had the power to direct the transfer of the entire ten acres to her. The court abused its discretion in holding the statement was not relevant to the issues at hand.

Nevertheless, this does not mean that this hearsay statement is necessarily admissible. The court in its sound discretion must address the other factors, particularly the trustworthiness issue, before determining the admissibility of the statement. We therefore merely vacate that portion of the order excluding this testimony. Should the admissibility of this evidence arise again, the court may reconsider the matter in light of the holdings of this opinion. In this regard, we note for the benefit of the trial court that, contrary to the argument made by the Scotts in their appellate brief, the fact that the statement benefits the witness purporting to hear the statement and offering it as evidence is not a factor in determining the trustworthiness of the statement for admissibility purposes.

(b) Statements to Dodd’s Sister and Sister-in-law. Dodd’s sister and sister-in-law both submitted affidavits that he told each, after the conveyance of the six acres to the Scotts, that he actually owned the six acres as part of his homeplace and that Jenifer held legal title to the six acres in trust with the understanding that she would transfer the property to his estate on his death. Concluding the statements were inadmissible hearsay, the court found that although they were relevant, they did not meet the trustworthiness test, in that the statements were “clearly self-serving.” Joyce challenges this latter finding.

Evidence supported the court’s finding that the statements were not sufficiently reliable. It was in Dodd’s self-interest to state that property he had given to the Scotts was in fact still his property and that Jenifer had promised to hold the property in trust to be transferred to his estate on his death. This would give Dodd the power to determine to whom the property would be devised. Where the statements are in the self-interest of the declarant, a court has clear reason to find them insufficiently reliable to meet the necessity exception of OCGA § 24-3-1 (b). “It is a general rule that self-serving declarations — that is, statements favorable to the interest of the declarant — are not admissible in evidence as proof of the facts asserted. . . ” The subsequent death of the declarant does not change this rule. Thus, the court did not abuse its discretion in refusing to consider their affidavits in the summary judgment context. This portion of the order is affirmed.

3. Beyond this hearsay evidence, other nonhearsay evidence created an issue of fact as to the material issue of whether the Scotts had agreed to hold the six acres in trust for Dodd or his estate. In summary judgment proceedings, the nonmovant should be given the benefit of all reasonable doubt, and the trial court should construe the evidence and all inferences and conclusions possibly arising therefrom most favorably toward the nonmovant.

OCGA § 53-12-94 provides that “[i]n all cases in which a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, the circumstances, and the conduct of the parties, either to imply or rebut the trust.” Construing similar language from the former trust statutes, Harrell v. Harrell concluded:

[Circumstances may be offered as evidence of an intention (whether or not expressly articulated by each party) that title shall vest in one and beneficial ownership in the other. The scope of such evidence includes all of the facts and circumstances surrounding the transaction. The ultimate inquiry is whether there was, in truth, a mutual understanding, not whether such an understanding was expressed in plain and unambiguous terms. . . . Any evidence which might cast light upon this issue should be admitted to aid the jury in its factual determination.

Thus, conduct and declarations of the parties subsequent to the transfer, which are consistent with an agreement to hold the property for the benefit of another, may be evidence of a constructive trust. Here Joyce presented evidence that (1) Dodd obtained the six acres in 1982 so that nobody would live close to his residence; (2) at the time of the transfer to the Scotts, Joyce understood from Dodd that the purpose for the transfer was to have title to the property held in the Scott name so that the politically well-known Dodd name was not associated with it and so that the original owner would not be aware that he had reacquired the property; (3) subsequent to the transfer and until his death fourteen years later, Dodd paid the taxes on the six acres and showed the acreage as belonging to him on his tax returns and in sworn financial disclosure statements filed with governmental authorities; and (4) subsequent to the transfer, Dodd considered and treated the property as his own, as demonstrated in his planting fruit trees on it and then collecting the insurance proceeds when those trees were damaged, in his running water onto the land for a garden, in his repeatedly bush hogging the property, in his discussing the building of a garage on the property, in his giving neighbors permission to ride on the property, and in his using the property as collateral for a loan. In addition to admitting that she had done nothing to upkeep or improve the property, Jenifer herself testified that in Dodd’s financial statements which she prepared for bank loans for him after the transfer, she listed the six acres as belonging to Dodd because she “felt like he paid the taxes, [so] he ought to get the benefit.”

Decided June 8, 2001.

Smith, Gilliam, Williams & Miles, Robert A. Weber, Jr., for appellant.

Stewart, Melvin & Frost, Frank Armstrong III, for appellees.

Aside from the evidence excluded by the trial court, these declarations and conduct of Dodd and Jenifer subsequent to the transfer constitute evidence, possibly clear and convincing, which makes more probable the inference that the Scotts took the six acres in trust for Dodd or his estate. There being a disputed material issue of fact, the trial court erred in granting summary judgment to the Scotts. Summary judgment is reversed.

Judgment affirmed in part, reversed in part and vacated in part.

Andrews, P. J, and Eldridge, J., concur.

       Joyce filed this appeal with the Supreme Court of Georgia. Since the equitable relief of an implied trust was ancillary to the evidentiary question enumerated on appeal, that Court concluded its exclusive equity jurisdiction was not invoked and transferred the matter to the Court of Appeals. Cf. Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (2). Notably, all the cases cited in this opinion concerning implied trusts, which are equitable instruments, and concerning the evidence needed to show same, emanate from the Supreme Court of Georgia.

       Ga. L. 1991, p. 810, § 1; see OCGA § 53-12-1 et seq.

       OCGA § 53-12-3.

       OCGA § 53-12-90.

       OCGA § 53-12-91.

        Burt v. Skrzyniarz, 272 Ga. 35, 37 (2) (526 SE2d 848) (2000); see OCGA § 53-12-92 (a).

        Edwards v. Edwards, 267 Ga. 780, 781 (1) (482 SE2d 701) (1997); see Eason v. Farmer, 261 Ga. 675, 676 (1) (409 SE2d 509) (1991).

        Edwards, supra, 267 Ga. at 781 (1).

       Id. at 781 (2).

       Id. at 782 (2).

       OCGA § 24-3-1 (b).

       (Citation omitted.) Clark v. State, 271 Ga. 6, 9 (5) (515 SE2d 155) (1999).

       (Citation and punctuation omitted.) Id. at 10 (5).

       Id.

       (Citation and punctuation omitted.) Id.

        Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980).

       Id.

        Lewis v. Emory Univ., 235 Ga. App. 811, 817 (2) (509 SE2d 635) (1998).

       Id.; see White v. White, 262 Ga. 168, 169 (415 SE2d 467) (1992).

       (Citation omitted.) Baker, supra, 246 Ga. at 319 (3).

       (Citations and punctuation omitted.) David Jordan Logging Co. v. Sales, 203 Ga. App. 410, 411 (2) (416 SE2d 803) (1992).

       See Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 770 (3) (525 SE2d 123) (1999).

        Swain v. C & S Bank &c., 258 Ga. 547, 550 (1) (372 SE2d 423) (1988). See also Cole v. Cole, 205 Ga. App. 332, 333 (2) (422 SE2d 230) (1992).

       (Citations and punctuation omitted.) Swain, supra, 258 Ga. at 549 (1).

       Id.

       See OCGA § 9-11-56 (e); Wheat v. Montgomery, 130 Ga. App. 202, 204 (5) (202 SE2d 664) (1973).

        Orion Capital Partners v. Westinghouse Elec. Corp., 223 Ga. App. 539, 541 (1) (478 SE2d 382) (1996).

       249 Ga. 170, 172 (290 SE2d 906) (1982).

       (Emphasis in original.) Id.

        Edwards, supra, 267 Ga. at 781-782 (2); see Conner v. Conner, 250 Ga. 27, 28-29 (1), (2) (295 SE2d 739) (1982); C & S Nat. Bank v. Martin, 246 Ga. 756, 757 (1) (272 SE2d 711) (1980).

       OCGA § 53-12-92 (c).

        Edwards, supra, 267 Ga. at 782 (2).


author: Ruffin, Judge.

text:
    A01A0365.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. RUSSUM et al.
    (550 SE2d 441)
   Ruffin, Judge.

Bobby Russum sued Georgia Farm Bureau Mutual Insurance Company (“GFB”) for GFB’s alleged bad faith refusal to provide coverage under a homeowner’s policy for claims arising out of a boating accident. Russum moved for partial summary judgment, arguing that the policy provided coverage as a matter of law. GFB filed a cross-motion for summary judgment, asserting that coverage for the accident was excluded under the policy. The trial court granted Russum’s motion and denied GFB’s motion. GFB appeals, and because we conclude that coverage was excluded under the policy, we reverse.

Summary judgment is appropriate where the evidence of record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal, we review a trial court’s grant of summary judgment de novo.

The record reveals that, on May 4, 1996, Ella Louise Russum was in a boat on Lake Lanier that collided with a boat owned and operated by Terry Lee Hansen. Ella Russum died as a result of the collision, and her spouse, Bobby Russum, filed a personal injury and wrongful death action against Hansen. That civil action concluded when Hansen consented to a judgment entered against him. In addition, Hansen assigned to Russum any claims Hansen acquired against GFB under his homeowner’s policy with the insurer. When GFB refused to provide coverage for the claim, Russum filed the instant bad faith action against the insurer.

GFB originally issued the homeowner’s policy to Hansen on June 1, 1994, for a “policy period” extending from that date to June 1, 1995. The policy, which was described on the declaration page as a “continuous renewal policy,” provided liability coverage for personal injury claims against Hansen, but contained a watercraft exclusion. The watercraft exclusion applied to bodily injury arising out of the use of a watercraft

powered by one or more outboard motors with more than 25 total horsepower if the outboard motor is owned by an insured. But, outboard motors of more than 25 total horsepower are covered for the policy period if: (a) you acquire them prior to the policy period and: (i) you declare them at policy inception; or (ii) your intention to insure is reported to us in writing within 45 days after you acquire the outboard motors, (b) you acquire them during the policy period.

In February 1995, during the original policy period, Hansen purchased the boat involved in the collision, which was powered by a 115 horsepower outboard motor. A few weeks before the original policy period expired, GFB sent Hansen a “renewal declaration,” stating that it was a renewal of his original policy. The renewal declaration provided that it was for a “policy period” extending from June 1, 1995, to June 1, 1996, and informed Hansen that “to insure continuous coverage,” he must promptly pay the premium. The renewed policy incorporated the same watercraft exclusion contained in the original policy, and it is undisputed that, when Hansen renewed the policy, he did not declare to GFB that he had acquired the boat and motor.

In support of his motion for partial summary judgment, Russum argued that the accident was a covered event because Hansen acquired the boat during the original policy period, and the renewal policy merely extended the expiration date of that period. Thus, Russum asserted, exception (b) to the exclusion, which applies to boats acquired “during the policy period,” controls. Alternatively, Russum argued that, because Hansen acquired the boat during the original policy period and was therefore covered during that period, the coverage was extended to the renewal policy period by the “continuous coverage” language in the declaration. In response, and in support of its motion for summary judgment, GFB argued that the policy excluded coverage of claims arising from the accident because Hansen acquired the boat and motor prior to the renewal policy period and did not, as required by exception (a) (i), declare the boat at the inception of that renewal policy period. On appeal, the parties assert that the rules of contract construction support their respective interpretations of the policy.

The pertinent policy language is plain and unambiguous and is therefore not subject to construction. As Hansen’s boat was powered by a 115 horsepower motor, Russum’s liability claims would be covered only if: (1) Hansen acquired the motor prior to the policy period and declared it to GFB at the policy inception; (2) Hansen acquired the motor prior to the policy period and declared it to GFB within 45 days after the acquisition; or (3) Hansen acquired the motor during the policy period. Significantly, the term “policy period” is plainly defined on the declaration pages of both the original policy and the renewal policy. According to the declarations, the original “policy period” extended from June 1,1994, to June 1,1995, and the renewal “policy period” extended from June 1, 1995, to June 1, 1996. Because Hansen acquired the motor in February 1995, which was during the original policy period, the third exception stated above applied during that policy period, and the motor was covered until the end of that period. But, the policy language expressly states that the motor was only “covered for the policy periodL”

When Hansen renewed his policy, the only relevant change was the “policy period,” which again was plainly defined on the declaration page as the time from June 1, 1995, to June 1, 1996. Inasmuch as Hansen did not acquire the motor during this time, the third exception stated above, pertaining to motors acquired during the policy period, no longer applied. Furthermore, inasmuch as Hansen acquired the motor prior to that policy period, and never declared the acquisition to GFB, either at the “policy inception” or within 45 days after acquiring it, these exceptions are inapplicable.

There is simply no language in either the original policy declaration or in the renewal policy declaration to support Russum’s assertion that the second renewal policy merely extended the expiration date of the original “policy period.” The dates of each policy period were plainly defined, and “[w]e will not strain to extend coverage where none was contracted or intended.” Likewise, the fact that Hansen was covered during the policy period in which he acquired the motor is inconsequential. Though the renewal declaration generally provided for “continuous coverage,” such broadly inclusive provisions in insurance contracts do not prevail over more specific provisions. The specific watercraft exclusion at issue here did not excuse Hansen from complying with the plainly stated requirement of declaring the motor at the policy period inception if he desired to continue receiving the watercraft liability coverage provided during the original policy period. Similarly, as stated above, the watercraft exclusion clearly stated that the motor was only “covered for the policy period,” defined as the term extending from June 1,1994, to June 1, 1995.

Decided June 8, 2001

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

Caudell & Hotard, Bobby C. Caudell, Thomas G. Hotard, Jr., for appellees.

Finally, the case of Pennsylvania &c. Ins. Co. v. Dunlap, relied on by Russum, does not require a different result. In Dunlap, the insurance company “renewed” the policy, but changed the terms of the original policy and never informed the insured of the change. We concluded that under such circumstances, the insurance company was precluded from relying on the changed terms because “an insurer, in issuing a policy which differs from the original, is obligated to inform the insured as to the changes if there has been no special agreement for terms differing from those of the original contract.” In contrast, the relevant terms of the original and renewal policy in this case were identical, and the policy declaration clearly informed the insured that the “policy period” had changed.

For these reasons, we conclude that the trial court erred in granting partial summary judgment to Russum and in denying GFB’s motion.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 9-11-56 (c).

       See Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       An endorsement to the policy explains that under the “continuous renewal plan” the “policy may be continued in force by payment of the required continuation premium for each successive policy term.”

       (Emphasis supplied.)

       See Payne v. Twiggs County School Dist., 269 Ga. 361, 363 (2) (496 SE2d 690) (1998).

       (Emphasis supplied.)

       To the extent that the term “policy inception” is ambiguous, it is capable of only two interpretations, neither of which supports coverage. Whether the term “policy inception” was intended to mean the beginning of the original “policy period,” or the beginning of the renewal policy period in which the event occurred, the fact that Hanson never declared to GFB that he acquired the boat precludes application of the exception.

        Jefferson Ins. Co. &c. v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998).

       See Ga. Baptist Children’s Homes &c. v. Essex Ins. Co., 207 Ga. App. 346, 348 (1) (427 SE2d 798) (1993).

       153 Ga. App. 116 (264 SE2d 483) (1980).

       (Punctuation omitted.) Id. at 118 (1).