author: Ruffin, Judge.

text:
    A00A2500.
    HOLMES v. ACHOR CENTER, INC.
    (547 SE2d 332)
   Ruffin, Judge.

This is the latest manifestation of an ongoing dispute involving Kenneth R. Holmes, Achor Center, and the United Baptist Church (UBC), relating to the use of certain property owned by Achor. In this case, Holmes sued Achor, asserting four separate counts of malicious prosecution. Count 1 relates to his arrest on June 11, 1993, for simple assault; Count 2 relates to his June 14, 1994 arrest for criminal trespass; Count 3 relates to his June 30, 1994 arrest for aggravated stalking; and Count 4 relates to his June 30, 1994 arrest for criminal trespass. The trial court granted summary judgment to Achor on Counts 2 and 4 on February 18, 1998, and on the remaining two claims on July 28, 1999. For reasons discussed below, we affirm the grant of summary judgment as to Count 2, but reverse the trial court’s rulings on the remaining counts.

Many of the background facts regarding this dispute can be found in the various opinions issued by this Court or the Supreme Court. Achor is a nonprofit organization that provides shelter and training to homeless and destitute women and children. In 1989, Achor purchased certain real estate from the Christian Coalition of Metropolitan Atlanta (CCMA), which had previously purchased the property from UBC. At the time of Achor’s purchase, the property was subject to a “joint-use” agreement between CCMA and UBC. The agreement, which continued after Achor purchased the real estate, gave UBC the right to conduct religious services on a portion of the property.

In 1988, UBC selected Holmes to lead a separate ministry, known variously as the Mission Church, Capitol Community Church, or Capitol View Mission. This ministry, which conducted a noon worship service, became known as the noon congregation. Although Holmes, as minister of the noon congregation, was a UBC staff and church member, those who joined the noon congregation were apparently not admitted to membership in UBC.

After Achor purchased the property, disputes arose when Achor complained that Holmes had repeatedly entered its women’s dormitory without permission. At its quarterly meeting on May 2, 1993, UBC terminated Holmes as pastor and expelled him from membership in the church. Holmes refused to recognize this expulsion, however, contending that the vote was invalid because a quorum was not present. He and other members of the noon congregation continued to return to Achor’s property in an effort to hold services. From that point onward, the various parties have been embroiled in seemingly endless legal disputes.

On June 11, 1993, Achor directed its maintenance supervisor, Mark Matthews, to remove Holmes’ name from the UBC sign on the property. After Matthews removed the name, Holmes came onto the property and objected to the removal. An altercation ensued, and Holmes was arrested for simple assault.

On June 13, 1993, Holmes was arrested for criminal trespass after entering the property in an attempt to hold church services. Holmes sued Achor and UBC for malicious prosecution in connection with this arrest. The trial court denied the defendants’ motions for summary judgment, but we reversed the trial court’s orders in Achor Center v. Holmes and United Baptist Church v. Holmes, holding that Achor and UBC had probable cause to believe Holmes was guilty of criminal trespass. In United Baptist Church v. Holmes, we also refused to question the validity of Holmes’ termination and expulsion from membership in UBC, as that involved “a controversy relating to the faith, teaching, doctrine, and discipline of the church.”

Two of Achor’s officers, Joyce Dorsey and Penny Wood, testified in this case that Holmes continued to come onto Achor’s property in 1994, despite being warned that he was trespassing. The evidence shows that Holmes entered the Achor property on June 13, 1994. Wood notified Dorsey and contacted the police. Wood testified that an officer advised her to have Achor swear out a warrant against Holmes for criminal trespass. Wood relayed this information to Dorsey, and on June 14 the two of them swore out a criminal trespass warrant against Holmes, who was later arrested. On June 24, 1994, Achor obtained a temporary restraining order preventing Holmes from coming within 50 yards of the property. The order also prevented Holmes from “following, stalking, surveiling or threatening employees or residents of [Achor]” and provided that “a violation will be treated as an act of aggravated stalking in violation of [a] court order.”

Late at night on June 30, 1994, Holmes drove past Achor’s property, parked his car at a house immediately behind the property, and entered the house. Achor notified the police, and Officer D. Quinn came to the property to investigate. Quinn was provided a copy of the restraining order and determined that Holmes was in violation of the order. An Achor employee, Valencia Cousin, told Quinn that Holmes had threatened her “at the property.” Quinn arrested Holmes for criminal trespass and aggravated stalking.

1. In his first enumeration, Holmes contends that the trial court lacked authority to consider Achor’s second motion for summary judgment with respect to Counts 1 and 3, since the court had previously denied Achor summary judgment on these counts and we had refused to review that interlocutory decision. Relying on Harris v. Harris, Holmes asserts that denial of an application for interlocutory review constitutes an adjudication on the merits. This assertion is completely without merit, as Harris has nothing to do with interlocutory appeals, but instead deals with discretionary appeals. While denial of an application for discretionary appeal of a final judgment may constitute an adjudication on the appeal’s merits, denial of interlocutory review does not constitute an adjudication on the merits. Rather, it may simply reflect that we “decided the case should be concluded in the court below before entertaining the appeal, so as to avoid a piecemeal or fragmented appeal.”

2. In four enumerations, Holmes contends the trial court erred in granting summary judgment to Achor on each count of malicious prosecution.

To prove a claim of malicious prosecution, a plaintiff must show (1) that he was prosecuted for a criminal offense under a valid warrant, accusation, or summons; (2) that the prosecution was instigated without probable cause; (3) that the prosecution was instigated with malice; (4) that the prosecution has terminated favorably to the plaintiff; and (5) that the prosecution has caused damage to the plaintiff. In reviewing the trial court’s grant of summary judgment, we view the facts in a light most favorable to Holmes.

(a) Count 2: June 14, 1994 criminal trespass arrest. In granting summary judgment to Achor on Count 2, which involves Holmes’ June 14, 1994 criminal trespass arrest, the trial court relied in part on the doctrine of collateral estoppel, holding that Holmes was precluded from relitigating certain issues relating to probable cause. Holmes contends that the trial court erred in relying on collateral estoppel and that Achor lacked probable cause to instigate his arrest. For reasons discussed below, we disagree.

The doctrine of collateral estoppel

precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered. Therefore, collateral estoppel does not necessarily bar an action merely because the judgment in the prior action was on the merits. Before collateral estoppel will bar consideration of an issue, that issue must actually have been decided.

In granting summary judgment to Achor, the trial court noted that Holmes had previously sued Achor for malicious prosecution arising out of his June 13, 1993 arrest for criminal trespass. Although the trial court in that case denied Achor’s motion for summary judgment, we reversed, holding that Achor had probable cause to believe that Holmes’ coming onto the property constituted criminal trespass. We reasoned as follows:

Holmes admits that after his expulsion [from UBC], he was not welcome at the Achor facility and Achor officials clearly communicated that to him. Holmes’ deposition testimony reflects that, a few days prior to his arrest, Achor removed from its property the church sign that contained Holmes’ name. Holmes confronted the individual removing the sign and their exchange grew so heated that the police were summoned. By his own admission, Holmes perceived the sign’s removal as an indication that he was without authority to enter Achor’s property. Achor also changed the facility’s locks to prevent Holmes’ entry to the property, another act that Holmes considered part of a “continuing effort” to bar him from the property. Finally, as he stated in an affidavit given prior to his arrest, Holmes heard an Achor chairperson, Joyce Dorsey, openly and unequivocally state that Holmes was not to return to Achor’s property. In light of the above, when Holmes subsequently appeared on Achor property, Achor could reasonably believe that Holmes knowingly entered its property without consent and was thus guilty of criminal trespass.

Our decision established that Holmes had been warned not to enter the property and that Achor thus had probable cause to believe that he had committed criminal trespass. In granting summary judgment to Achor in this case, the trial court concluded that “Achor’s criminal trespass warning to [Holmes] has remained in effect since his arrest for criminal trespass on June 13, 1993 . . . , [Achor] never having consented to or having given [Holmes] authority to re-enter its property.”

Holmes claims that the trial court erred in relying on our prior decision, asserting that events occurring after the 1993 arrest “put [Achor] on notice that Holmes was not a trespasser.” In particular, Holmes asserts that (1) the criminal trespass charge arising out of his June 13, 1993 arrest was ultimately dismissed; (2) a temporary restraining order entered against Holmes in July 1993 was dissolved in November 1993; (3) Achor had supposedly been told by police officers that the dispute between the parties was civil and not criminal; and (4) Dorsey was “aware that certain members of [UBC] were unsuccessful in its [sic] attempt to restrain Holmes from the property.” None of these facts, however, indicates that Holmes actually had a right to come onto the property or that Achor lacked probable cause to believe that it had validly forbidden Holmes from entering its property. Indeed, we have already rejected Holmes’ claim that he had a legal right to enter the property because UBC improperly expelled him from the church. In United Baptist Church v. Holmes, we determined that we could not question the validity of Holmes’ expulsion.

Because the evidence undisputably shows that Holmes was forbidden from entering Achor’s property, Achor had probable cause to believe that his unauthorized entry on June 14, 1994, constituted criminal trespass. Accordingly, the trial court did not err in granting summary judgment to Achor on this claim.

(b) CourLt 1: June 11, 1993 simple assault arrest. Count 1 of the complaint is based on Holmes’ arrest for simple assault on June 11, 1993. As discussed above, this arrest arose out of an altercation between Holmes and Matthews, an Achor employee who removed Holmes’ name from a marquee sign on the property. After Matthews finished removing the plastic letters, Holmes appeared on the property and objected to the removal. According to Matthews, Holmes was “very agitated and angry.” Fearing for his safety, Matthews handed Holmes the letters, and Holmes returned to his car, loudly proclaiming, “I am going to get my gun.” Matthews reported this incident to Wood, who called the police.

Holmes submitted an affidavit in which he claimed that Matthews threatened him with a pair of bolt cutters and that he then went into the church office and called the police. He testified that “[a]t no time did I threaten Matthews stating ‘I’m going to get my gun.’ ” He further claimed that he told the arresting officer that he had not threatened Matthews with a gun. Holmes’ wife submitted a similar affidavit, indicating that she witnessed the incident.

The arresting officer, Anthony Smith, also submitted an affidavit. He testified that he interviewed Matthews, who told him that Holmes had “walked back to his vehicle loudly threatening to get his gun.” Smith asked Matthews whether Holmes’ actions caused him to fear for his life, and Matthews responded affirmatively. According to Smith, another witness at the scene also told him she had heard Holmes say he was going to get his gun. Smith stated that he then interviewed Holmes, who “admitted . . . that he did tell Mr. Matthews that he was going to get his gun out of the trunk of his car, but only after Mr. Matthews had threatened him with a set of bolt cutters.” Smith found Matthews’ version of events to be more credible, in part because Holmes’ “unusually aggressive and belligerent manner . . . undermined his credibility.” Smith arrested Holmes, concluding that Holmes “had caused the disturbance by threatening Mr. Matthews.” Smith testified that no one asked him to arrest Holmes and that he made an “independent and uninfluenced” decision to arrest based on Matthews’ statements and his own observation of Holmes’ behavior.

Holmes argues that Matthews provided Officer Smith with false information by telling Smith that Holmes threatened him with a gun. He claims that this false information influenced Smith’s decision to arrest Holmes for simple assault. Achor, by contrast, argues that a malicious prosecution claim is barred because “Matthews . . . merely relayed the facts to Smith, who then made an independent decision to arrest Holmes.”

As we stated in Ginn v. C & S Nat. Bank,

[t]he law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for . . . malicious prosecution; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable. ... Of course, if the informer knew that the facts stated were false, it is clear that he attempted to influence the officer’s judgment and he is, therefore, responsible for such subsequent action as may be taken.

Thus, “[a] person may be held liable for unduly influencing the decision to prosecute by providing information that is known to be false, misleading or materially incomplete.”

It is clear that Officer Smith’s decision to arrest Holmes was based in large part upon Matthews’ assertion that Holmes threatened him with a gun. Holmes, however, testified that he made no such threat. For summary judgment purposes, we must view the facts in the light most favorable to Holmes, and we therefore must conclude that there is evidence Matthews knowingly made a false statement to Officer Smith. Accordingly,

[a] jury could conclude from these facts that [Matthews] knew that his information was erroneous, that he thereby attempted to influence the [officer], and therefore that he and [Achor] are liable for instigating the prosecution. Admittedly, close scrutiny of the [evidence] may make it seem unlikely that [Holmes’] version of the facts would prevail before a jury. But the movant for summary judgment carries the burden to eliminate material issues of fact, and where material issues can be eliminated only by making credibility judgments, the movant has not met his burden.

Because there was evidence from which a jury could conclude that Achor’s employee improperly influenced Officer Smith to arrest Holmes for simple assault, the trial court erred in granting summary judgment to Achor on this count.

(c) Count 3: aggravated stalking arrest on June 30, 1994. Count 3 of Holmes’ complaint relates to his June 30, 1994 arrest for aggravated stalking. This arrest occurred at the same time as Holmes’ June 30, 1994 arrest for criminal trespass. When Officer Quinn arrived at the scene, an Achor employee, Cousin, informed him that Holmes had threatened her. Quinn then arrested Holmes for criminal trespass and aggravated stalking.

During her deposition, Cousin admitted that she told the police officer that Holmes had threatened her. She further testified, however, that Holmes in fact did not say anything to her that night. She said that she called Wood before talking with the police officer and that Wood instructed her to tell the police that Holmes had threatened her. She testified that she felt bad about telling the police Holmes had threatened her when he had not. She also testified that, at Wood’s behest, she signed an affidavit falsely accusing Holmes of threatening her on a different occasion.

Viewed in the light most favorable to Holmes, a jury could find that Wood instructed Cousin to make a false statement to Officer Quinn and that this false statement led Quinn to charge Holmes with aggravated stalking. The trial court erred in granting Achor summary judgment on this count.

(d) Count 4: June 30, 1994 criminal trespass arrest. The trial court similarly erred in granting summary judgment on Count 4 of Holmes’ complaint, which relates to the June 30, 1994 criminal trespass arrest. Officer Quinn testified that when he arrived at Achor’s property, an Achor employee provided him with the June 24, 1994 temporary restraining order prohibiting Holmes from coming within 50 yards of Achor’s property. Quinn spoke to Cousin, who told him that Holmes was at the Achor property and threatened her that night. Quinn also discussed the situation with Holmes. According to Holmes, “Quinn stated that Valencia Cousin represented to him that I had come on Achor’s property and threatened her.” Based on his observations and findings at the scene, Quinn concluded that “Holmes had been and was in violation” of the temporary restraining order. He arrested Holmes for criminal trespass “when it became apparent. . . that [Holmes] had entered or come within 50 yards of the property.”

Quinn’s testimony is unclear. He may have arrested Holmes based on his own observation that Holmes had violated the temporary restraining order by coming within 50 yards of Achor’s property. But he may have based the arrest on Cousin’s statements that Holmes actually entered the property. In fact, the police report states that Holmes “was placed under arrest for criminal trespass for being on church property.” Achor similarly notes in its brief that Holmes was arrested “for coming onto the property.” At her deposition, Cousin admitted telling police that she saw Holmes on Achor’s property. She further testified, however, that Holmes did not actually enter the property that night; he simply drove by. Holmes himself denies that he came onto the Achor property on June 30, 1994.

Viewed in a light most favorable to Holmes, this evidence raises material issues of fact regarding the grounds for the June 30, 1994 criminal trespass arrest and whether a false statement from Cousin influenced that arrest. A jury or other factfinder could conclude that a false statement led Quinn to determine that Holmes entered the property, causing him to arrest Holmes. Summary judgment on Count 4, therefore, was improper.

Decided March 20, 2001 —

Reconsiderations denied April 12, 2001 —

Kenneth R. Holmes, pro se.

Jennings, Sparwath & Satcher, Milton B. Satcher, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

       See Holmes v. Bd. of Commrs., 271 Ga. 206 (517 SE2d 788) (1999); Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997); Holmes v. Achor Center, 242 Ga. App. 887 (531 SE2d 773) (2000); United Baptist Church v. Holmes, 232 Ga. App. 253 (500 SE2d 653) (1998); Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995).

       See cases cited at footnote 1, supra.

       See Achor Center v. Holmes, supra at 399; Holmes v. Achor Center, supra at 887-888.

       UBC held its own services at 9:30 a.m. on Sundays. Anderson v. Dowd, supra at 146.

       See Achor Center v. Holmes, supra at 399-400; United Baptist Church v. Holmes, supra at 254.

       See id. at 254-256; Achor Center v. Holmes, supra at 400.

        United Baptist Church v. Holmes, supra at 254-256.

       (Punctuation omitted.) Id. at 254.

       UBC apparently owned the house.

       245 Ga. 75, 76 (263 SE2d 113) (1980).

       See Henderson v. Justice, 237 Ga. App. 284, 287 (1) (514 SE2d 713) (1999).

       See C & S Nat. Bank v. Rayle, 246 Ga. 727, 731 (273 SE2d 139) (1980).

        Achor Center v. Holmes, supra at 400 (1).

       See Holmes v. Achor Center, supra at 887 (1).

       (Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866-867 (2) (463 SE2d 5) (1995).

       (Footnote omitted.) Achor Center v. Holmes, supra at 400-401 (1).

       With respect to this final contention, the order referenced by Holmes simply denied UBC’s application for an interlocutory injunction preventing all members of the noon congregation from coming within 100 yards of the church property. The order stated that UBC failed to prove “an immediate and urgent need for action by the Court” and noted that UBC had “not demonstrated that the members of the congregation are agents of Rev. Holmes or are acting in active concert with him.” The order in no way suggested that Holmes had a legal right to be on the property; indeed, it specifically stated that he was under a temporary restraining order in a different case. Holmes makes several other allegations in his brief that are simply untrue or not supported by the record. For example, he states that Dorsey “was instructed by a Superior Court judge that Achor could not bar Holmes from the property” and cites Dorsey’s deposition as support. The cited portion of Dorsey’s deposition testimony, however, does not support this assertion.

        United Baptist Church v. Holmes, supra at 254.

       See Achor Center v. Holmes, supra.

       145 Ga. App. 175 (243 SE2d 528) (1978).

       (Citations and punctuation omitted.) Id. at 178 (3).

        Brooks v. H & H Creek, Inc., 223 Ga. App. 635, 637 (1) (a) (478 SE2d 451) (1996).

       Although Smith stated that Holmes admitted telling Matthews that he was going to get his gun, Holmes and his wife both testified that they told Smith he did not threaten Matthews with a gun. Although we see no reason to question Officer Smith’s credibility, the fact remains that credibility determinations are the function of the factfinder, not this Court. Since accepting Officer Smith’s version of events requires rejection of versions presented by Holmes and his wife, we cannot say the evidence is undisputed that Holmes made any such admission to the officer.

       Achor did not raise in its summary judgment motion the issue of whether it can be held liable for Matthews’ actions in providing false information to the police. Accordingly, to defeat the motion, Holmes was not required to present evidence that Matthews’ actions were “within the range of employment and for the purpose of accomplishing business authorized by the employer.” Roberts v. Duco Dev., 229 Ga. App. 549, 550 (494 SE2d 313) (1997). See Hodge v. SADA Enterprises, 217 Ga. App. 688, 689 (1) (458 SE2d 876) (1995).

       (Emphasis in original.) Ginn v. C & S Nat. Bank, supra at 178-179 (3).

       Achor’s claim that this count was barred by res judicata is without merit. Although Holmes could have asserted this count in his prior malicious prosecution lawsuit arising out of his June 13, 1993 criminal trespass arrest, he was not required to do so.
      [O]ur law does not require that [a plaintiff] assert every separate claim for relief that he may have against the defendant in one single lawsuit or risk losing the claim for relief forever, as would be the case if our joinder statute provided for mandatory rather than permissive joinder. Instead, our law requires that such a plaintiff must bring every claim for relief he has concerning the same subject matter in one lawsuit. He may join several claims for relief arising out of different subject matters in one lawsuit but he is not required to do so and will not be penalized for making a strategic decision to the contrary.
      (Emphasis supplied.) Lawson v. Watkins, 261 Ga. 147, 149-150 (2) (401 SE2d 719) (1991). The prior lawsuit involved whether Holmes had authority to be on the property on June 13, 1993, not whether he had made threats of violence on an earlier occasion.

       We note that Cousin’s testimony in this regard was somewhat equivocal and was given in response to leading questions by Holmes. For example, when asked if Wood instructed her to tell the officer that Holmes threatened her, Cousin first responded, “I can’t recall that.” Upon further questioning, however, she responded, ‘Yes.” We also note that, by the time she gave her deposition testimony, Cousin had been fired from her job by Wood, and she admitted that she was bitter. Questions relating to witness credibility, however, are for the factfinder, For summary judgment purposes, we must construe Cousin’s testimony in the light most favorable to Holmes.

       Achor did not argue on summary judgment that it should not be liable for any false statements made to the police by Cousin. See footnote 23, supra.

       See Ginn v. C & S Nat Bank, supra. We disagree with Achor’s argument that collateral estoppel and/or res judicata support summary judgment on Count 4. A factual dispute remains as to whether Holmes actually entered Achor’s property on June 30,1994. The prior determination that Holmes was not authorized to enter the property, therefore, does not permit summary judgment on this claim. Furthermore, Holmes was not required to join this claim in his prior malicious prosecution suit arising out of the June 13, 1993 criminal trespass arrest. See Lawson v. Watkins, supra.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A2516.
    CHANEY v. BLACKSTONE et al.
    (547 SE2d 340)
   Pope, Presiding Judge.

Ray Chaney sued W. Kenneth Blackstone and his professional corporation, Law Office of William Kenneth Blackstone, PC. (collectively “Blackstone”) for legal malpractice. Chaney appeals following the grant of summary judgment to both defendants, claiming that material issues of disputed fact preclude summary judgment. We agree and reverse.

This legal malpractice action arose from the vestiges of a personal injury suit that began on February 22,1995, when an oncoming vehicle driven by Jerry Quinn struck Chaney’s vehicle head-on, seriously injuring Chaney. During subsequent investigations of that collision, Chaney and Quinn told law enforcement authorities and insurance investigators that just before impact, an unidentified driver proceeding ahead of Chaney had moved into Quinn’s lane, forcing Quinn off the road. When Quinn attempted to reposition his vehicle into the proper lane, his vehicle swerved directly into Chaney’s path.

Quinn had a $25,000 liability insurance policy with Georgia Farm Bureau, while Chaney had two separate uninsured motorist policies with Cotton States for $15,000 each. Chaney’s medical expenses were in excess of $27,000. After Chaney was unable to obtain payment from Georgia Farm Bureau, he retained attorney Russell Gillis. Gillis contacted both insurance companies but mistakenly believed that $15,000 was the policy limit with Cotton States. When Gillis inquired about the uninsured motorist coverage, Cotton States denied having any liability and refused to pay anything. Meanwhile, Georgia Farm Bureau steadfastly refused to offer more than $15,000 in settlement, adopting the stance that the phantom driver had caused the collision and not Quinn.

Chaney declined Georgia Farm Bureau’s final offer of $15,000, feeling it would be “stupid on my part” to accept an amount that “wasn’t enough to even take care of my doctor bills.” Chaney told Gillis he would not settle with Georgia Farm Bureau for less than $100,000. Gillis testified that Chaney told him that he “would like to obtain $100,000 from the suit.”

When Gillis filed the personal injury action in June 1996, the complaint named only Quinn as defendant and did not designate a John Doe defendant to represent the phantom driver. And Gillis did not serve Cotton States with a copy of the complaint and summons. Prior to trial, for reasons unrelated to the case, Gillis withdrew. Kenneth Blackstone and John B. Brewer III then assumed complete responsibility for Chaney’s case. When Blackstone and Brewer replaced Gillis on February 11, 1997, the two-year statute of limitation for tort claims had not yet run. But Blackstone and Brewer did not take any action to assert a claim against the phantom driver or against Cotton States.

The jury returned a defense verdict, effectively absolving Quinn. The day after the verdict, Chaney spoke with his local Cotton States agent, Dennis Cain, who suggested that he contact Cotton States to file for uninsured motorist coverage. Chaney testified that when he contacted a Cotton States representative, a “gentleman in Atlanta,” he was advised, “[y]ou must have the stupidest lawyer in the world.” When Chaney asked why, he was told, “[t]hey forgot to file your uninsured motorist, and you’ve got 30,000 dollars laying [sic] here that they did not ask for.”

Chaney subsequently filed his malpractice complaint. In the malpractice affidavit accompanying the complaint, Chaney’s expert testified that the “[flailure to pursue an available source of recovery is negligence, unless the client directs otherwise and then only if the client is fully informed of all potential sources.” The expert testified that in his opinion, Chaney’s legal counsel had performed negligently by failing to name a John Doe defendant and to serve Cotton States with process, either in the original complaint, through amendment, or by dismissing and refiling the complaint. He also stated that Chaney’s attorneys were negligent in allowing the statute of limitation to expire on the claim against Cotton States.

Blackstone filed for summary judgment, arguing that the decision not to seek coverage from Cotton States was a tactical one based on the exercise of professional judgment. Blackstone further asserted that under the doctrine of judgmental immunity, judgment was memdated as a matter of law.

In awarding summary judgment to Blackstone, the trial court found no material issue in dispute. The trial court held as a matter of law that Chaney had directed his attorneys to pursue nothing short of a $100,000 recovery and that Blackstone had determined to pursue Georgia Farm Bureau on a bad faith claim to achieve that goal. The trial court observed,

[mjaking a claim against Plaintiff’s uninsured motorist carrier for the alleged negligence of the driver of the phantom vehicle would have negated any bad faith claim against the insurer of the known Defendant, because that would have been an admission by Plaintiff that the known Defendant’s liability for the collision was in doubt.

Finding that counsel did not deviate from the applicable standard of care, and citing the doctrine of judgmental immunity, the trial court granted Blackstone’s motion.

The plaintiff in a legal malpractice action must establish three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.” (Citations and punctuation omitted.) Perry v. Ossick, 220 Ga. App. 26, 28-29 (467 SE2d 604) (1996). Therefore, Chaney has the burden of demonstrating that Blackstone’s performance fell below the applicable standard of care. Here, Chaney’s expert testified that it is negligent for an attorney to fail to pursue an available source of recovery unless the client is fully informed of all potential sources and directs the attorney not to pursue that source. And in his deposition, Blackstone agreed that it would fall below the applicable standard of care for an attorney not to pursue an available source of recovery if he failed to discuss the matter with his client.

Chaney asserts that Blackstone’s failure to assert a claim against the phantom driver or to serve his uninsured motorist carrier constituted a failure to exercise ordinary care, skill, and diligence under the facts of this case. And Chaney contends that in granting summary judgmeht, the trial court failed to construe conflicting evidence in his favor and, consequently, erred in finding as an undisputed fact that he told his counsel that he was interested only in obtaining a $100,000 recovery from Georgia Farm Bureau, to the exclusion of his uninsured motorist coverage.

Instituting an action against a John Doe defendant, and serving the uninsured motorist carrier with a copy of the complaint and summons, enables a plaintiff to obtain judgment against an uninsured motorist insurance carrier based on the negligence of an unknown motorist. OCGA § 33-7-11 (d); Utica Mut. Ins. Co. v. Chasen, 187 Ga. App. 796, 797 (371 SE2d 448) (1988). See Smith v. Doe, 189 Ga. App. 264, 265-266 (3) (375 SE2d 477) (1988).

Under the law applicable at the time of Chaney’s lawsuit,

it was “judicially recognized as the responsibility of all plaintiffs to serve their uninsured motorist carriers in every action arising out of every motor vehicle incident” . . . regardless of whether it appeared that the tort-feasor was or would become an uninsured motorist.

(Punctuation and footnote omitted; emphasis in original.) Jenkins & Miller, Ga. Auto. Ins. Law Including Tort Law (1998 ed.), § 33-5. See Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989). This is because prior to a 1998 amendment to the Uninsured Motorist Statute, Georgia law required that the uninsured motorist carrier had to be served within the time allowed for valid service on the defendant in the tort action. Id.; Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). Therefore, the statute of limitation began to run on the uninsured motorist claim from the time of the accident and not from the time it was legally determined that the negligent motorist was uninsured. Bohannon, 259 Ga. at 163.

Here, Cotton States had represented that it would not pay under Chaney’s uninsured motorist coverage. Because Blackstone failed to take action against the phantom driver or to effectuate service upon Cotton States within the limitation period, Chaney forfeited his right to obtain uninsured motorist coverage. Bohannon, 259 Ga. at 163. The question thus becomes whether this decision was made with Chaney’s informed knowledge and consent.

When viewed in the light most favorable to Chaney as the nonmovant, the evidence is conflicting as to whether Chaney was informed of his options or that he directed his attorneys to pursue a $100,000 recovery with a full understanding of the ramifications of such a direction. Chaney, who has an eleventh grade education, admittedly had little understanding of insurance. He testified, “I left everything pretty well up to my attorneys to handle everything, because they knew what [was] supposed to be done, and I did not.”

Chaney denied ever discussing an uninsured motorist claim against Cotton States with any of his attorneys. And Chaney denied ever discussing with Blackstone or Brewer the possibility of asserting a claim against the phantom driver. Chaney apparently believed that he had no claim against the unknown driver because no one knew the person’s identity or how to contact such person. Although both Blackstone and Brewer testified that they did discuss these issues with Chaney, this testimony serves only to create an issue of fact and does not conclusively establish that Chaney made an informed decision to forfeit his uninsured motorist coverage. “Where, as here, the facts, as testified to by the parties, create a conflict in the evidence as to a material issue, summary judgment is precluded.” (Citation and punctuation omitted.) Contract Harvesters v. Mead Coated Bd., 239 Ga. App. 853, 856 (2) (522 SE2d 260) (1999).

The evidence does show that Chaney refused to settle for $15,000 with Georgia Farm Bureau and that he did not want to settle with that insurance company for less than $100,000. Moreover, Chaney signed a document acknowledging that by refusing Georgia Farm Bureau’s offer, he ran the risk of recovering no damages in his lawsuit if the jury found in favor of Quinn.

But that evidence does not prove without dispute that Chaney was fully informed of his options before rejecting the settlement offer or before expressing his desire to obtain $100,000. Nor does the evidence clearly establish that Chaney intended to pursue only Quinn and Georgia Farm Bureau to the exclusion of his own uninsured motorist coverage.

Accordingly, an issue of material fact exists as to whether Blackstone informed Chaney of his potential claim against the phantom driver and his ability to obtain uninsured motorist coverage. This issue also impacts upon Blackstone’s claim of judgmental immunity, because in asserting that defense Blackstone relies upon Chaney’s objective of achieving a $100,000 recovery, and a question exists as to whether Chaney made an informed decision to pursue that objective. Therefore, a jury issue exists as to whether Blackstone’s pursuit of an all or nothing strategy against Quinn and Georgia Farm Bureau constituted a deviation from the standard of ordinary care under the circumstances. See generally Freeman v. Pittman, 220 Ga. App. 672 (469 SE2d 543) (1996); Huntington v. Fishman, 212 Ga. App. 27 (441 SE2d 444) (1994); Little v. Middleton, 198 Ga. App. 393 (401 SE2d 751) (1991).

Judgment reversed.

Miller and Mikell, JJ, concur.

Decided March 21, 2001

Reconsideration denied April 12,2001

Vincent D. Sowerby, for appellant.

Dillard & Bower, Terry A. Dillard, Bryant H. Bower, Jr., Scott C. Crowley, for appellees.

       Although Chaney also sued John B. Brewer III, Lamar Elder, Jr., and Russell Gillis, he later agreed to their dismissal with prejudice.

       This acknowledgment also read, “[additionally, I understand that by rejecting any offer to settle the above-styled case [Chaney v. Quinn], I run the risk of receiving absolutely no money for my damages if the jury reaches a verdict in favor of the Defendant.”


text:
    A01A0212.
    THE STATE v. JONES.
    (548 SE2d 29)
   Ruffin, Judge.

On September 17, 1997, Charles Jones pled guilty to theft by taking, and the trial court sentenced him to serve ten years. In August 2000, Jones filed an extraordinary motion, seeking a reduction in sentence, and the trial court granted the motion, reducing Jones’ sentence to four years confinement and six years probation. The State appeals, arguing that the trial court lacked authority to modify Jones’ sentence. We agree and reverse.

It is well settled that a “trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered.” This is so because courts must “give stability to their decisions by maintaining the finality of judgments.” As this Court has recognized, “[c]ourts cannot at their pleasure reopen questions which have been concluded by solemn adjudication. There must be some point at which stare decisis applies, and that point, with respect to a judgment upon the merits, unexcepted to, is the conclusion of the term at which it is rendered.”

Here, the trial court originally sentenced Jones in September 1997. Thus, the term of court expired long before Jones filed his motion to modify the sentence. Jones does not contend that his original sentence was void or that there is any other factor that would extend the trial court’s authority to modify his sentence beyond the term of court in which it was entered. It follows that the court erred in considering Johnson’s motion to modify his sentence.

Judgment reversed.

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

Decided April 12, 2001.

Daniel J. Craig, District Attorney, for appellant.

Richard T. Pacheco II, for appellee.

        McBee v. State, 239 Ga. App. 314 (521 SE2d 209) (1999). See also Latham v. State, 225 Ga. App. 147, 148-149 (483 SE2d 322) (1997); State v. Eight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985).

        Latham, supra at 148.

       (Punctuation omitted.) Id.

       See OCGA § 15-6-3 (5) (C).

       Compare McBee, supra.


author: Johnson, Presiding Judge.

text:
    A01A0241.
    MATHESON v. THE STATE.
    (547 SE2d 774)
   Johnson, Presiding Judge.

The trial court, sitting without a jury, found Tanina Matheson guilty of driving under the influence of alcohol to the extent it was less safe to drive and failing to maintain her vehicle within a single lane. The court found Matheson not guilty of reckless driving. She appeals, challenging the sufficiency of the evidence and raising two enumerations regarding her legal representation at trial. Because none of the arguments presents grounds for reversal, we affirm her convictions.

1. Matheson contends the evidence was insufficient to support the convictions. We disagree.

On appeal, we view the evidence in a light most favorable to the verdict. So viewed, the evidence shows that at 2:00 a.m., a police officer noticed Matheson’s car crossing back and forth over the highways fog line. The officer activated his car’s blue lights, and Matheson eventually stopped. When the officer approached the car, he detected a strong odor of alcohol emanating from inside the car. The officer asked Matheson if she had been drinking. She replied that she had something to drink earlier. The officer asked Matheson for her driver’s license and proof of insurance. She produced her license, but could not find her insurance card. The officer told her to keep looking for it while he ran a check on her license and that, if she found the card, to hold it outside the window.

Matheson found the card, held it outside the window, then accidentally dropped it. As she got out of the car to retrieve the card, the officer asked her if she would perform field sobriety tests. Matheson refused. She wandered around and refused to comply with the officer’s instructions to stay in one place. Her eyes were bloodshot and glassy, her speech was slurred, and she was uncooperative. According to the officer, who had effected over 100 DUI arrests in his career, Matheson exhibited the traits of someone who was intoxicated and possessed an impaired ability to drive. The officer read to Matheson the implied consent notice, but she refused to submit to an alco-sensor test of her breath.

The officer placed Matheson under arrest and took her to the police station. While en route to the station, Matheson told the officer that she was under the influence of prescription medication, though she declined to elaborate. When they arrived at the station, the officer asked Matheson if she would submit to a chemical test of her breath. She refused to submit to this test as well.

At trial, Matheson testified that she had “one Jack Daniels and a Diet Coke” with dinner and, sometime later that night, drank two alcoholic drinks at a bar. She denied having told the officer that she had taken prescription drugs that evening.

Matheson’s refusal to submit to an alco-sensor test and to a later chemical test of her breath is circumstantial evidence of her guilt. In light of that evidence, the officer’s testimony as to his observations, and Matheson’s admission that she had consumed three alcoholic beverages that night, a rational trier of fact could have found her guilty beyond a reasonable doubt of driving under the influence of alcohol and failure to maintain lane.

Contrary to Matheson’s contention, the trial court was authorized to reject her testimony that she was not impaired, that she crossed the fog line only because the steering on her car was malfunctioning, and she was unaccustomed to driving this car. The trial court was also authorized to believe the officer’s testimony that Matheson’s eyes were glassy and bloodshot and that her speech was slurred, even if he did not include any such notations in his incident report, and to believe that Matheson was weaving and had the above-cited physical characteristics, even if, as she urges, the police car’s videotape (which begins after the officer activated his car’s blue lights) does not clearly corroborate his testimony.

In a bench trial, the trial court weighs the evidence and determines the credibility of witnesses. It is the function of the finder of fact, not this Court, to resolve conflicts in the evidence and to determine the credibility of witnesses. The evidence was sufficient to support the convictions.

2. In two enumerations, Matheson asserts errors relating to the legal representation she received at trial. In the first enumeration, she urges that her waiver of the right to trial counsel was not knowingly and intelligently made. In the second, she contends that the attorney appointed to assist her on the day of trial was ineffective. Although we will consider the arguments separately, we will first set out the facts relevant to both issues.

Matheson was arrested in August 1999. She appeared in court in December 1999 and, at that time, signed a waiver of formal arraignment form which included a list of four notices, each of which had a heading in bold print. The second such notice stated:

Right to an Attorney — The Defendant acknowledges that he or she has been notified by the Court of the right to be represented by an attorney. Certain Defendants who are unable to afford an attorney may qualify for a court appointed attorney and should immediately contact PreTrial services on the 2nd Floor of the Justice Center, Phone (770) 479-8970, to determine if they qualify for a court appointed attorney.

The waiver form she signed also contained a notice that Matheson’s case was set for trial on February 23, 2000.

When the case was called for trial as scheduled, the trial court informed Matheson that it needed “to make certain that [she is] able to waive some rights here[,] such as the right to an attorney.” The court informed Matheson that she was charged with a very serious offense, namely driving under the influence of alcohol, that the maximum punishment is a year in jail and a possible fine and penalty of $1,350. Matheson said she understood. When asked, Matheson told the court that she is 40 years old, completed part of college, and that she had a few courses in law. The court asked her if she thought she could represent herself without an attorney. Matheson replied that she could. The judge asked if she understood the advantages of having an attorney and the disadvantages of not having an attorney. Matheson responded that she did, but that she could not afford an attorney.

The trial court asked the prosecutor for Matheson’s paperwork. The court then remarked, “Well ma’am, we advised you of the opportunity to be interviewed for appointed counsel. Did you go through the interview process?” Matheson: “No, sir, I didn’t. I went and got the paperwork and I did get some of the requirements. I spoke to several attorneys and I got something to verify that I could not afford their fee and so I just decided to come here alone.” The court reminded Matheson that she was informed of the interview process for obtaining appointed counsel in December and asked her if she called the phone number she was given regarding appointed counsel. Matheson said she went to the office and talked to some attorneys about representation. The court told Matheson that it was very unusual for a defendant to go forward with as serious a charge as DUI without an attorney and asked her if she was certain she wanted to proceed without one. Matheson said, ‘Yes.” The court asked if anyone had made any threats or promises to her to influence her decision to represent herself and if she understood the advantages and disadvantages of proceeding without an attorney. She answered negatively to the inquiry regarding threats or promises and affirmatively as to her understanding of the importance of counsel.

After explaining to Matheson the court’s trial procedures, the trial court asked an attorney who was present in the courtroom if he would sit with Matheson and assist her at trial. The attorney agreed to do so, then conducted extensive direct and cross-examinations of each witness and made a closing statement on Matheson’s behalf.

(a) Did Matheson validly waive her right to counsel? At the outset, we point out that this argument is, in a sense, moot because Matheson was in fact provided with trial counsel who conducted all phases of the trial except the opening argument. This is not a case where a defendant stood trial alone with no assistance. In an effort to protect Matheson’s rights, the trial court enlisted for Matheson’s benefit, on its own motion, the assistance of an attorney. Matheson voiced no concerns or objections to having the attorney’s assistance.

In any event, Matheson’s decision to proceed to trial on her own, before she retained or was given the assistance of an attorney, was knowingly and intelligently made. The determination of whether an accused has intelligently waived her right to counsel depends, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. No magic language is required, just a showing that the accused knew of her right to counsel and of the dangers of proceeding without counsel.

It is clear from the record that Matheson was made aware of her right to counsel and the dangers of proceeding on her own. She had been informed that appointed counsel was available to defendants who were unable to pay, and she knew of the procedure for obtaining appointed counsel, but admitted that she did not complete the required process. In the trial court’s opinion, Matheson did not make an effort to get an attorney. We note that she did not ask the trial court for a continuance to secure her own or appointed counsel. Matheson was responsible for her own predicament, and she cannot complain of a result her own conduct aided in causing.

(b) Did appointed counsel render effective assistance? Matheson complains that the attorney who assisted her at trial was ineffective because he was inadequately prepared.

To prove ineffective assistance of trial counsel, Matheson is required to show that counsel’s performance was deficient and that the deficiency prejudiced her.

In assisting Matheson, the attorney requested and received a copy of the officer’s incident report, objected to questions asked by the state during its examinations of the witnesses, cross-examined the state’s only witness extensively, examined Matheson when she testified, and made a lengthy closing statement.

Our review of the record indicates that counsel’s representation was not deficient and that Matheson was not prejudiced by any alleged deficiency, especially in light of the fact that she was acquitted on one of the three charges.

Nonetheless, Matheson acquiesced to the representation provided by the trial court. With full knowledge of the circumstances surrounding the attorney’s representation, including the shortness of time before trial, Matheson accepted the attorney’s assistance and allowed the attorney to conduct the entire defense. She did not ask for a continuance so that the attorney could become better prepared. And, had she informed the trial court earlier of her lack of representation, assuming Matheson was entitled to appointed counsel, the trial court might have been able to appoint counsel sooner. She cannot now complain of ineffective assistance of counsel for lack of preparation time when she had no right to appointed counsel, knowingly waived her right to representation, and then accepted the services of the lawyer with full knowledge of the circumstances. Those cases relied upon by Matheson as requiring a contrary result are factually distinguishable.

This enumeration presents no grounds for reversal.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided April 12, 2001.

Cindi T Yeager, for appellant.

G. Charming Ruskell, Solicitor-General, Anthony B. Williams, Assistant Solicitor-General, for appellee.

        Tucker v. State, 245 Ga. App. 551 (538 SE2d 458) (2000).

        Lucas v. State, 234 Ga. App. 534, 535 (1) (507 SE2d 253) (1998).

        See Davidson v. State, 237 Ga. App. 580, 581 (1) (516 SE2d 90) (1999); Martin v. State, 216 Ga. App. 25 (453 SE2d 498) (1995).

       See Martin, supra at 26.

        Hemidi v. State, 245 Ga. App. 417, 418 (1) (537 SE2d 804) (2000).

       See O’Brien v. State, 242 Ga. App. 344, 345 (1) (529 SE2d 657) (2000); Byrd v. State, 240 Ga. App. 354 (523 SE2d 578) (1999); Hamilton v. State, 228 Ga. App. 285, 286 (3) (491 SE2d 485) (1997).

       See Young v. State, 245 Ga. App. 799, 800 (538 SE2d 487) (2000) (physical precedent only).

        Everman v. State, 203 Ga. App. 350, 351 (1) (416 SE2d 861) (1992).

        Gamble v. State, 235 Ga. App. 777, 780 (4) (510 SE2d 69) (1998).

       See Brown v. State, 244 Ga. App. 206, 207 (1) (535 SE2d 281) (2000); Gamble, supra.

       See Minor v. State, 232 Ga. App. 246, 247 (2) (501 SE2d 576) (1998).

       See Powell v. State, 271 Ga. 575, 576 (3) (522 SE2d 656) (1999).

       See Young, supra.

       See Watkins v. State, 191 Ga. App. 87, 89 (1) (381 SE2d 45) (1989).

       See Everman, supra at 352 (1).


text:
    A01A0262.
    ROGERS v. ROCKDALE COUNTY et al.
    (547 SE2d 772)
   Ruffin, Judge.

Jeff Rogers applied for a job with the Rockdale County Sheriff’s Department. While performing a pre-employment physical fitness test, Rogers injured his knee. Rogers then sued Rockdale County, Rockdale County Sheriff Jeff Wigington, and Dennis Claborn, a lieutenant in the department who helped Rogers during the test. The defendants moved for summary judgment, and the trial court granted their motion. Rogers appeals, and for reasons that follow, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there are no genuine issues of material fact and that the facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Defendants may do this by showing that there is an absence of evidence to support an essential element of the plaintiff’s case. Once the defendants have established such lack of evidence, it is incumbent upon the plaintiff to point to specific evidence that gives rise to a triable issue of fact.

The record shows that, in the spring of 1998, Rogers applied for a job with the Rockdale County Sheriff’s Department and he was told that he needed to take a physical fitness test. The test included a step test, push-ups, sit-ups, a stretch test, and a mile-and-a-half walk or run. Prior to performing the test, Rogers completed a questionnaire, which required him to list previous medical problems. Rogers wrote that he had undergone three operations on his left knee and one operation on his right knee.

On May 13, 1998, Rogers arrived at the sheriff’s department to take the test. For the sit-ups, Rogers was paired with Claborn, who was supposed to hold Rogers’ feet during the test. Rogers lay down on the floor and put his feet under Claborn’s thighs. According to Rogers, while he was trying to align his body with Claborn’s, Claborn “reached up under my legs, pulled me into him, and I [felt a] pop in my [left] knee” followed by a sharp pain. Although Rogers managed to complete the physical fitness test, he did not perform well. Rogers returned home and put ice on his knee. The next day, he went to his doctor, who referred him to Dr. Behr. On August 19, 1998, Dr. Behr performed arthroscopic surgery on Rogers’ left knee for synovitis.

Rogers filed suit against Claborn, contending that Claborn’s negligence caused his knee injury. Additionally, Rogers asserted that Wigington and the sheriff’s department were liable under the theory of respondeat superior. The defendants moved for summary judgment, arguing that Rogers’ injury was not reasonably foreseeable. The trial court granted defendants’ motion, and this appeal ensued. 1. The following elements are essential to a claim for negligence:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

A duty, when owed, protects against foreseeable harm, and “[floresight requires the ability to anticipate a risk of harm from the conduct.” As this Court recently stated, “[n]o matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed to the plaintiff.”

In this case, there is no evidence that Claborn could or should have foreseen the type of injury sustained by Rogers. Indeed, even Dr. Behr, an orthopedic surgeon, testified that he would not have expected someone to injure a knee in the manner in which Rogers injured his. Specifically, Dr. Behr was asked, “[e]ven if somebody had prior [knee] problems and surgeries, just holding [his] legs, even if you pulled [the legs] up next to you, [that] would not normally cause injury to the knee, correct?” Dr. Behr responded, “That’s correct.” If an orthopedic surgeon would not be able to foresee the knee injury, we fail to see how a layman such as Claborn could have foreseen such injury.

Decided April 12, 2001.

Lavigno & Schlueter, William W. Lavigno III, for appellant.

Terry E. Williams, for appellees.

On appeal, Rogers argues that it is not necessary that Claborn anticipate the exact injury sustained, merely that he anticipate that some injury would result from his actions. We agree that, under principles of negligence, “[i]t is sufficient if, in ordinary prudence, [Claborn] might have foreseen that some injury would result from his act . . . , and that consequences of a generally injurious nature might result.” Here, however, there is no evidence that Claborn could have foreseen that any injury would occur. According to Rogers’ testimony, Claborn simply pulled him forward by his legs, causing his knees to flex. Claborn did not jerk Rogers. Again, we note that not even the orthopedic surgeon would expect this type of activity to cause injury. Under these circumstances, the injury to Rogers’ knee was merely an unfortunate incident, and “it is a well-settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” Thus, the trial court did not err in granting defendants’ motion for summary judgment.

2. In view of our holding in Division 1, we need not address Rogers’ remaining enumeration of error.

Judgment affirmed.

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

       See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.

       Id.

       (Punctuation omitted.) Tuggle v. Helms, 231 Ga. App. 899, 901 (2) (499 SE2d 365) (1998).

        Amos v. City of Butler, 242 Ga. App. 505, 506 (1) (529-SE2d 420) (2000).

       (Punctuation omitted.) Id.

       (Punctuation omitted.) Bailey v. Jim’s Minit Market, 242 Ga. App. 518, 520 (529 SE2d 436) (2000).

       (Punctuation omitted.) La Petite Academy v. Turner, 247 Ga. App. 360, 363 (1) (543 SE2d 393) (2000).


author: Phipps, Judge.

text:
    A01A0306.
    THE STATE v. STALEY.
    (548 SE2d 26)
   Phipps, Judge.

The State appeals the trial court’s grant of Edward Staley’s motion to suppress the results of searches of his residence and computer files in this child molestation case. Because the evidence supported the trial court’s ruling that the State failed to show any nexus between Staley’s residence and the alleged molestation, we affirm.

When a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful. On appeal, we construe the evidence in the light most favorable to the trial court’s ruling. Where, as here, the facts are undisputed, we review de novo the trial court’s application of the law to those facts.

The State’s only witness at the suppression hearing was William Hartley, an operations coordinator with the probation division of the Department of Corrections. Hartley testified that he was familiar with Staley, who had been convicted of multiple counts of child molestation in 1984 and was released on probation in 1993. Staley’s probation was revoked in 1993 after he admitted molesting and taking pictures of an eight-year-old boy. It was revoked again in 1995 after he failed to complete successfully a sex offender treatment program. Following each of these revocations, Staley apparently was released on probation again.

The Attorney General’s office hired a private investigator to follow Staley for reasons that are not clear in the record. Hartley testified that the investigator called him and reported that Staley had been observed and photographed picking up a boy from an elementary school and taking him to a mall, a candy or ice cream store, a children’s play area, and a fast food restaurant. According to Hartley, the terms of Staley’s probation did not prohibit him from being around children. Hartley testified, however, that the investigator believed that Staley “was grooming [the] child for a molest.”

Hartley contacted the principal of the elementary school, who identified the boy from the investigator’s photographs. Hartley then met with the boy’s mother, who stated that the boy in the pictures was her ten-year-old son, J. D., and that the man was Staley, whom she had met by responding to a personals ad placed by a “man seeking younger woman with children.” The mother told Hartley that Staley had shown unusual interest in J. D. and his two brothers, buying them expensive toys and taking them on resort vacations. A school counselor interviewed J. D., who did not report any inappropriate behavior by Staley. Later that evening, however, the mother called Hartley and said that J. D. had told her that Staley had molested him numerous times.

Hartley contacted the local authorities, who interviewed J. D. and one of his brothers. Hartley then “thoroughly researched” Staley’s probation files and discovered that, in connection with his previous probation revocations, Staley had admitted viewing and taking nude photographs and having a “nudist colony magazine.” The files also showed that Staley had worked as a computer analyst and “[knew] his way around computers.”

Hartley applied for a warrant to search Staley’s apartment for sexually explicit materials involving minors, including computer equipment “which contains electronic depictions of minors engaged in sexually explicit conduct.” In his application for the warrant, Hartley averred, “[b]ecause of information available to [me] that [Staley] has taken pictures of a previous molestation victim, it is suspected that evidence of crimes against J. D. and other minor children is concealed at [Staley’s apartment].” After reviewing Hartley’s affidavit and considering additional oral information he provided, a magistrate issued the warrant.

At Staley’s apartment, police found and confiscated a computer. Hartley then applied for a second warrant to search the computer. In that application, he averred that, based on his experience, “pedophiles record and store depictions, addresses, telephone numbers and other information related to accessing and engaging minors, for the purpose of committing sex acts upon them; and, that they record and store written and pictorial accounts of previous enticing acts and/or sexual acts with minors.” The magistrate issued a warrant for the search, which yielded approximately 40,000 digital images of “prepubescent male children engaged in sexual acts,” as well as stories describing sexual contact between adult males and children. However, none of the material depicted or mentioned J. D.

Staley moved to suppress the results of both searches, arguing, among other things, that the warrants were not supported by probable cause. After a hearing, the trial court granted the motion. The court noted that Hartley had no reason to believe that any illegal activity had occurred at Staley’s apartment or that Staley had taken any pictures of J. D. or his brothers or had shown them any sexually explicit material. In the absence of “some connection . . . between the activity and the residence,” the court concluded that there was no probable cause to search Staley’s apartment. The court further ruled that the second search was tainted by the first and, thus, also illegal.

A search warrant must be supported by probable cause, or reasonable grounds, to believe that evidence of a crime will be found in a particular place. “An officer’s inference that items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable.” Where the State fails to show any connection between the items sought and the place to be searched, however, there are no reasonable grounds for the search.

Decided April 12, 2001.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellant.

Brenda J. Bernstein, for appellee.

In this case, as the trial court noted, the State failed to establish any link between Staley’s apartment and the crimes. Hartley testified that he had no knowledge that the molestation occurred at Staley’s apartment or that J. D. or his brothers had been there. Nor was there any evidence that any items connected with the molestation might be found at Staley’s apartment. In fact, there was no evidence that any such items existed. Hartley testified that he was unaware of any photographs that Staley might have taken of J. D. Likewise, there was no evidence that Staley had shown any sexually explicit material to J. D. or his brothers or communicated with them via email.

The State argues that Hartley had probable cause to believe that Staley “likely possessed sexually explicit photographs of children and written documents describing the molestation of children at his apartment,” and that such evidence, even if unrelated to J. D., would illustrate Staley’s “lustful disposition toward children.” Analogizing to “drug courier profile” cases, the State suggests that this Court should rule that probable cause to search exists where police officers believe that a defendant fits a “sex offender profile.” We have held, however, that a suspect’s correspondence with a “drug courier profile” is insufficient to establish probable cause. Moreover, the question is not whether Staley matched a “sex offender profile” (as a convicted child molester, he doubtlessly did); the question is whether the State established any link between Staley’s apartment and the alleged molestation of J. D. Because there was no such link, the search of the apartment and the subsequent search of the computer files were illegal.

Judgment affirmed.

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

        State v. Jones, 245 Ga. App. 763, 765 (2) (538 SE2d 819) (2000).

       Id.

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       Staley’s conditions of probation apparently did not include a waiver of Fourth Amendment rights.

       Because Hartley could not remember precisely when he was placed under oath, it is unclear from the record how much, if any, of the additional information he provided to the magistrate judge was sworn testimony.

        State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

       (Citation omitted.) McClain v. State, 267 Ga. 378, 388 (11) (477 SE2d 814) (1996).

       See State v. Toney, 215 Ga. App. 64, 65-66 (449 SE2d 892) (1994) (warrant authorizing search of rape defendant’s apartment for, among other things, hair and blood samples was not supported by probable cause because State failed to show that perpetrator’s hair and blood were found at crime scene).

        Murphy v. State, 230 Ga. App. 365, 368 (1) (496 SE2d 512) (1998).

        Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).


author: Eldridge, Judge.

text:
    A01A0386.
    ODUM et al. v. MONTGOMERY.
    (547 SE2d 770)
   Eldridge, Judge.

DeKalb County driver Terence Christian and his passenger, Vickie Odum, (“plaintiffs”) filed an action against Robert T. Montgomery on March 26, 1999, for their alleged injuries and property damage arising out of an accident in which the car Montgomery was driving collided with the plaintiffs’ vehicle from the rear while stopped to make a left turn across traffic. Montgomery timely filed his answer denying the material allegations of plaintiffs’ complaint and, in November 1999, filed a motion to dismiss with prejudice for failure to state a claim asserting that plaintiffs filed their lawsuit “three days after the two-year statute of limitation [ ] had run.” Plaintiffs appeal from the state court’s grant of the motion to dismiss, enumerating three claims of error. The plaintiffs contend that the state court erred in granting Montgomery’s motion (1) because the police report Montgomery attached to his motion to dismiss as evidence of the date of the accident was inadmissible as hearsay; (2) because Montgomery failed to support his motion by citation of authority, affidavits, or other evidence in violation of Uniform State Court Rule 6.1; and (3) because by its order dismissing plaintiffs’ complaint as a whole upon the two-year statute of limitation applicable to their personal injury claims, the state court dismissed plaintiffs’ property damage claim as to which the applicable four-year statute of limitation had not run. Finding that the state court impermissibly considered matters outside the pleadings in dismissing the complaint, we must reverse.

Pretermitting plaintiffs’ claims of error, the record shows that Montgomery supported his motion to dismiss by a police report showing that plaintiffs’ cause of action was time-barred by the two-year statute of limitation applicable to plaintiffs’ personal injury claims — this since the report reflected that the parties’ accident occurred four days earlier than the plaintiffs had averred by their complaint, a change resulting in the running of the statute of limitation on March 23, 1999, three days before the complaint was filed. In doing so,

Decided April 12, 2001.

Ralph J. Villani, for appellants.

Frederick & Associates, Joe L. Brown, Jr., for appellee.

Montgomery raised an issue of fact properly disposed of by motion for summary judgment rather than by motion to dismiss for failure to state a claim. See American Car Rentals v. Walden Leasing, 215 Ga. App. 621, 622 (451 SE2d 537) (1994); Sibley v. City of Atlanta, 152 Ga. App. 723, 724 (4) (263 SE2d 698) (1979); Myers v. McLarty, 150 Ga. App. 432, 433-434 (258 SE2d 56) (1979).

Although OCGA § 9-11-12 (b) allows a trial court to convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are considered, it must provide 30 days notice of its intent to do so, to enable the opposing party to present evidence in opposition to the motion. See Bonner v. Fox, 204 Ga. App. 666, 667 (420 SE2d 312) (1992); Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705) (1979).

Andemeskel v. Waffle House, 227 Ga. App. 887, 888 (2) (490 SE2d 550) (1997).

Nothing of record here indicates that the state court treated Montgomery’s motion to dismiss as a motion for summary judgment. Moreover, the state court’s order states that in addition to the pleadings and Montgomery’s amended answer, it dismissed plaintiffs’ complaint upon a consideration of the police report which Montgomery attached to his motion to dismiss. Viewed in the light most favorable to the plaintiffs and upon the pleadings alone, we are unable to conclude beyond doubt that the plaintiffs could not prove any facts entitling them to recover. Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998). Accordingly, we conclude that the state court erred in granting Montgomery’s motion to dismiss.

Judgment reversed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

       OCGA § 9-3-33 provides that
      [a]ctions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.

       “Actions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.” OCGA § 9-3-32.

       Plaintiffs’ complaint alleged that the accident occurred on March 27, 1997. The police report reflected that the accident took place on March 23,1997.


text:
    A01A0523.
    POGANY v. THE STATE.
    (547 SE2d 780)
   Johnson, Presiding Judge.

Robert Pogany was charged with four traffic violations: (1) HOV violation, (2) attempting to flee and elude, (3) reckless driving, and (4) improper backing. After a bench trial in the City Court of Atlanta, he was found guilty of all charges, fined, and had his driver’s license suspended.

Decided April 12, 2001.

David J. Reed, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

In nine enumerations of error, Pogany contends the City Court of Atlanta lacks constitutional existence and jurisdiction under our state constitution. However, a review of the record in this case reveals that Pogany failed to raise these constitutional issues in the trial court. The Supreme Court of Georgia has consistently held that a constitutional challenge must be made as soon as possible and certainly before the return of the guilty verdict. Because Pogany gambled on an acquittal and waited to challenge the constitutional existence and jurisdiction of the City Court of Atlanta until after he was convicted by that court, he is barred from raising the issues on appeal.

Moreover, the Supreme Court of Georgia recently ruled on the very issues raised by Pogany. In Wickham v. State the Supreme Court held that the City Court of Atlanta does not lack constitutional existence and that, therefore, its exercise of jurisdiction does not run afoul of state or federal due process. Thus, even if he had not waived his constitutional challenges, Pogany’s enumerations of error would lack merit.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       See Hardeman v. State, 272 Ga. 361, 362 (529 SE2d 368) (2000).

       Id.

       273 Ga. 563 (544 SE2d 439) (2001).


text:
    A01A0692.
    ROLADER v. THE STATE.
    (547 SE2d 778)
   Ruffin, Judge.

Johnny Chuck Rolader pled guilty to aggravated child molestation. The trial court sentenced Rolader to fifteen years, requiring him to serve ten years and probating the balance. Rolader appeals, asserting that the trial court erred in ruling that it lacked discretion to sentence him under OCGA § 17-10-1 (b), which would have made him eligible for parole prior to the completion of his sentenced incarceration. We disagree and therefore affirm.

Decided April 12, 2001

Moulton & Massey, John W. Moulton, Laura A. Rice, for appellant.

Richard R. Read, District Attorney, Dabney Y. Kentner, Assistant District Attorney, for appellee.

OCGA § 17-10-1 (b) permits the sentencing judge to determine whether the person being sentenced can be considered for parole prior to completion of the prison sentence. However, OCGA § 17-10-6.1, which defines aggravated child molestation as a “ ‘serious violent felony,’ prohibits the reduction of the mandatory minimum prison sentence for serious violent felonies by any form of pardon or parole. Because Rolader was convicted of a serious violent felony, the trial court had no discretion to sentence him under OCGA § 17-10-1 (b).

Rolader also asserts that the trial court erred in applying OCGA § 17-10-6.1 because that section conflicts with OCGA § 17-10-1 (b). In Taylor v. State, we concluded that these two Code sections are not conflicting, and for the reasons expressed in that case, we reject Rolader’s argument here.

We also disagree with Rolader that application of OCGA § 17-10-6.1 renders OCGA § 17-10-1 (b) meaningless. Rolader’s argument is premised on his contention that, aside from serious violent felonies, there are no other crimes to which OCGA § 17-10-1 (b) can be applied. Because there are a host of other crimes to which OCGA § 17-10-1 (b) could be applied, this argument fails as well.

Judgment affirmed.

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

       See OCGA § 17-10-6.1 (a) (5).

       See OCGA § 17-10-6.1 (b).

       See Taylor v. State, 241 Ga. App. 439 (526 SE2d 910) (1999).

       Id.

       See, e.g., OCGA §§ 16-5-21 (aggravated assault); 16-7-1 (burglary); 16-13-30 (offenses related to controlled substances).


text:
    A01A0755.
    WEBB v. THE STATE.
    (547 SE2d 767)
   Eldridge, Judge.

A Dodge County jury found Remon Webb guilty of possession of drugs by an inmate under OCGA §§ 42-5-18 and 42-5-19, which charge arose after correctional officers discovered a plastic baggie of marijuana in Webb’s locker during a random, prison cell “shakedown.” He appeals claiming that the evidence was insufficient to support the verdict and that he received ineffective assistance of trial counsel. After reviewing these claims of error, we affirm Webb’s conviction.

1. When reviewing the sufficiency of the evidence, this Court views the record in a light most favorable to upholding the verdict. We do not weigh the evidence or judge witness credibility, those tasks being solely in the province of the jury. Instead, we look to see if the verdict is supported by evidence of record as to the essential elements of the crime charged so that a rational trier of fact may have found the defendant guilty beyond a reasonable doubt. “The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Here, the record shows that each cell at Dodge State Prison houses two inmates and contains two personal lockers, one for each inmate’s use. Each locker is secured with a combination lock to which only the assigned inmate knows the combination, although it can be opened with a master key maintained by prison officials. The evidence shows that random “shakedowns,” i.e., searches, of the inmates’ persons and their cells are conducted on a routine basis for purposes of prison security and officer safety.

At 4:00 a.m. on July 5, 1999, Dodge prison correctional officers conducted a routine, random search of Webb’s prison cell. Testimony showed that, at the time of the search, Webb’s locker was locked. The locker was opened and searched. In the back of the second shelf of Webb’s locker under some clothing, the officers found a baggie of marijuana hidden inside a package of Bugler cigarette tobacco. Webb was charged under OCGA § 42-5-18 (b), which proscribes possession of drugs by a prison inmate.

At trial, Webb did not deny that the marijuana was found in the Bugler box in his locker, but maintained that his locker had been left open so that the searching officers or his cellmate, Ron Ivey, could have planted the drugs in his locker. The jury, however, rejected Webb’s defense and found him guilty as charged.

On appeal, Webb contends that evidence of his possession of the marijuana was circumstantial only and did not exclude the “reasonable hypothesis” that his cellmate and/or the searching officers had equal access to his locker and could have planted the drug therein.

Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused [ ] is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

In this case, the jury heard testimony that the prison cells remain locked at all times; that there is no way to access an inmate’s locker without the combination or the administration’s master key; that Webb’s locker was locked at the time of the search; that the marijuana was found secreted under Webb’s clothes in the back of Webb’s locker; that the marijuana was found hidden in a Bugler tobacco package; and that the Bugler tobacco package belonged to Webb.

As a matter of law, this circumstantial evidence supports the jury’s conclusion that Webb was in possession of the marijuana. Accordingly, the evidence is sufficient for a rational trier of fact to have found Webb guilty beyond a reasonable doubt of the offense as charged. Contrary evidence and the suggestion that the marijuana was planted by Ivey or the correctional officers came solely from Webb in his trial testimony, which the jury was entitled to reject on a credibility basis.

2. Webb raises a claim of ineffective assistance of trial counsel, contending that his trial attorney failed to subpoena several witnesses who, allegedly, could have supported Webb’s equal access defense.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency. A trial court’s finding that an accused received effective assistance will be affirmed on appeal unless that determination is clearly erroneous. And a trial court is authorized to find the decision not to call certain individuals as witnesses a reasonable defense strategy.

Decided April 12, 2001.

Walter E. Baker, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

In that regard, we do not find error in the trial court’s conclusion that Webb received effective assistance of counsel at trial. Three of Webb’s allegedly helpful witnesses were those individuals upon whom Webb attempted to pin the offense, i.e., cellmate Ivey and two of the officers who searched Webb’s cell. Such witnesses can hardly be expected to provide testimony in support of Webb’s defense at their own expense. Moreover, Webb’s trial attorney testified at the motion for new trial that Webb never asked him to subpoena Ivey and that his interview with the two officers showed that their testimony would not benefit Webb at all. The record further shows that the two remaining “helpful” witnesses had no knowledge of the offense as charged and thus would be unable to provide relevant, exculpatory evidence.

Finally, Webb failed to call any of these allegedly exculpatory witnesses to testify at the motion for new trial; thus, we concur with the trial court’s finding that Webb “provided no evidence, other than bare allegations, that the testimony of these witnesses would have changed the outcome of the proceedings.”

Neither prong of the Strickland standard being shown, Webb’s claim of ineffective assistance of trial counsel fails.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       (Citation and punctuation omitted.) Phillips v. State, 242 Ga. App. 404 (530 SE2d 1) (2000).

       (Citations and punctuation omitted.) Lathan v. State, 241 Ga. App. 750, 751 (1) (526 SE2d 350) (1999).

        Wehunt v. State, 270 Ga. 456, 459 (511 SE2d 163) (1999).

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

        Braswell v. State, 245 Ga. App. 602, 606 (7) (538 SE2d 492) (2000).

        Young v. State, 245 Ga. App. 684, 685 (2) (538 SE2d 760) (2000).

        Allen v. State, 272 Ga. 513, 517 (530 SE2d 186) (2000).