text:
    A97A0375.
    POLK v. THE STATE.
    (483 SE2d 687)
   Johnson, Judge.

A jury found Brooks Douglas Polk guilty of aggravated child molestation after hearing evidence that he performed oral sex on an 11-year-old girl. He appeals the judgment entered on the jury’s verdict and the denial of his motion for new trial.

Viewing the evidence in the light most favorable to upholding the jury’s verdict, the testimony at trial is as follows. The victim testified that a man she knew as Butch, but identified as Polk at trial, asked her if he could perform oral sex on her. When she refused, he persisted and offered her money. He then pulled her panties down and put his mouth on her vagina. The victim’s 18-year-old cousin, who was in the apartment when the incident occurred, testified that he saw Polk on his knees and the victim lying on the edge of a bed. Although the cousin testified that he did not actually see physical contact, Polk’s head was approximately three inches away from the victim’s genitalia.

1. Polk argues that he was denied effective assistance of counsel at trial. In support of his argument, Polk points to 32 specific instances of purported ineffectiveness. For purposes of this opinion, we have grouped these allegations into four categories: (1) Defense counsel's references to Polk’s prior convictions and lifestyle; (2) failure of counsel to object at various points during the trial; (3) inadequate preparation for trial; and (4) prejudicial procedural errors at trial. “To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” (Citations and punctuation omitted.) Sebastian v. State, 195 Ga. App. 346, 347 (2) (393 SE2d 492) (1990).

(a) In explaining his defense strategy, trial counsel testified at the motion for new trial hearing that in light of the nature of the case and the evidence, he believed Polk should testify in his own defense and deny the charges. He and Polk discussed the risk of his criminal history being introduced into evidence and made the tactical decision to preempt and defuse the possibility of such disclosure by arguing that while Polk may be a criminal and a thief, he does not victimize children. At trial, counsel asked Polk if he had ever sold drugs to children. Appellate counsel suggests this question is illustrative of ineffective assistance, but we find it consistent with counsel’s defense strategy. While Polk’s present counsel takes exception to this strategy, “[a] decision on whether or not to place a defendant’s character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Lowery v. State, 212 Ga. App. 870, 872 (443 SE2d 304) (1994). This Court has often reiterated the principle that “[ejffectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Sutton v. State, 210 Ga. App. 247, 248 (2) (435 SE2d 748) (1993).

In light of an order from the trial court authorizing a correction in the trial transcript, there is no merit to Polk’s argument that trial counsel was ineffective because he admitted he was guilty of this offense during his closing argument.

(b) Defense counsel did not object during the state’s closing statement when, while arguing the burden of proof, the prosecutor stated: “so beyond a reasonable doubt, as you will be charged, is that the state does not have to prove guilt beyond a reasonable doubt, all doubt or to a mathematical certainty.” The court instructed the jury in its initial charge that the state must prove the defendant guilty beyond a reasonable doubt, that closing argument was not evidence, and that the law to be applied to the facts of the case would come to them from the court. The court also instructed the jury repeatedly on the correct burden of proof after the state’s closing argument and again reminded the jury that closing arguments are not evidence. The prosecutor’s remark, though unfortunate, was no more than a slip of the tongue. In Rodriguez v. State, 211 Ga. App. 256 (439 SE2d 510) (1993), the judge made a misstatement while recharging the jury. In reviewing the effect of that misstatement, we held that “[a] mere verbal inaccuracy in a charge, resulting from a palpable slip of the tongue, which clearly did not mislead or confuse the jury is not cause for a new trial.” (Citations and punctuation omitted.) Id. at 258 (3). Here, we find it unlikely that the jury was misled or confused by the prosecutor’s mistake, particularly since the jury was instructed to apply the law as correctly, and repeatedly, given by the court. Counsel’s failure to object to the remark was not prejudicial to Polk’s case. With benefit of hindsight, Polk asserts that counsel was ineffective for failing to object during the state’s opening statement to references to evidence which ultimately was not introduced at trial. Clearly there was no basis at the time for such an objection, and counsel was not ineffective in failing to raise it. Likewise, we have reviewed the remaining instances purporting to show that counsel was ineffective for failing to object to testimony and find them to be without merit.

(c) Polk asserts that trial counsel inadequately prepared for trial because he failed to interview his girl friend who could provide an alibi defense and to subpoena a witness who Polk believed would give testimony beneficial to his defense. Trial counsel testified at the hearing on the motion for new trial that he rejected Polk’s suggestion of presenting an alibi defense. Polk told counsel that his girl friend would testify that they had been smoking crack at the time of the incident. “The decision not to pursue the defense of [alibi] is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Sutton, supra at 248 (2). Likewise, counsel’s decision not to subpoena a witness who Polk suggested would testify that the victim had engaged in sex earlier that day was tactical and based on counsel’s opinion that such evidence would likely not be admissible. Tactical decisions of counsel do not equate with ineffectiveness. Further, Polk has failed to show with specificity how these decisions, or any of the other instances cited purporting to show trial counsel’s alleged inadequate preparation for trial, prejudiced his defense. It is not sufficient only to allege that trial counsel’s performance was deficient, Polk must also show how that deficiency prejudiced his defense. See Sebastian, supra.

(d) Polk asserts that trial counsel was ineffective because he failed to request a continuance and did not ask for recordation of voir dire for preservation of a possible Batson challenge. Counsel testified at the hearing on the motion for new trial that he saw no reason for a continuance. This Court has held that “it obviously is not ineffective for counsel to fail to request a continuance for delay only.” Chandler v. State, 204 Ga. App. 512 (1) (419 SE2d 751) (1992). Counsel also testified that he did not believe, based on the racial constitution of the jury pool, that a viable challenge based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), could be made. Polk has failed to establish either that a Batson violation occurred, or that, but for the failure of counsel to request recordation of voir dire, a new trial would be required on this ground. See Peavy v. State, 262 Ga. 782 (2) (425 SE2d 654) (1993). Counsel’s decision not to request recordation of voir dire or to request a continuance did not constitute ineffective assistance.

Citing federal cases from the Ninth Circuit and a district court in Missouri, Polk argues that all of the alleged errors of trial counsel should be considered cumulatively and result in a finding that trial counsel was ineffective. We disagree. “This state does not follow a cumulative error rule of prejudice. Any error of record must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Baugher v. State, 212 Ga. App. 7, 11 (3) (440 SE2d 768) (1994).

Decided March 6,1997

Ruth P. Marks, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Nancy I. Jordan, Shannon L. Goessling, Assistant District Attorneys, for appellee.

A trial court’s finding that a defendant has been afforded effective assistance of counsel at trial will be upheld unless it is clearly erroneous. Moody v. State, 206 Ga. App. 387, 390 (1) (e) (425 SE2d 397) (1992). After reviewing the record in this case, we conclude that no clear error has been shown warranting reversal of the trial court’s denial of Polk’s motion for new trial based on ineffective assistance of counsel.

2. Having concluded in Division 1 above that the trial court did not err in denying Polk’s motion for new trial based on ineffective assistance of counsel, we need not reach his argument that counsel’s representation resulted in a trial which was so essentially unfair as to deny him his right to due process as guaranteed by the U. S. and Georgia Constitutions.

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0428.
    LIGHT v. MASON et al.
    (483 SE2d 685)
   Johnson, Judge.

A jury awarded Edward and Roseanne Mason compensatory and punitive damages totaling $30,000 on their nuisance claim against their neighbor, Charles Light. Light appeals, asserting that there was no evidence to support the verdict and that the verdict is so excessive as to shock the conscience of a reasonable person.

1. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996). Viewed in this light, the evidence shows the following facts: The Lights have six children ranging in age from three months to twenty-three years old living with them in a rented house next to the Masons. Roseanne Mason testified that the Light children are home-schooled and ride four to six dirt bikes and “four wheelers” around her house and up and down the dirt road stirring up dust and making noise throughout the day. Sometimes they would just sit on the bikes and “rev” the engines. The bikes were also driven on a walking trail the Masons had made through woods on their property, turning the footpath into six inches of mud. According to Rosearme Mason’s testimony, the Lights also park semi/ tractor-trailer rigs on the property, sometimes leaving the engines running on refrigerated trailers throughout the night, interfering with her ability to sleep. Finally, she testified that she has found rotting fish heads behind her barn, which is accessible from the Lights’ property.

Edward Mason testified that he finds bottles, cans and dirtied disposable diapers on his side of a fence which he erected between his property and Light’s. A real estate agent testified that she had listed the Masons’ home for sale and attributed the fact that no offers were made on the house to the condition of Light’s property next door. Finally, a Cobb County Code Enforcement Officer testified that he had visited the Light property and found “a dismantled Volkswagen, five motorcycles dismantled, one amphibious vehicle in disrepair, auto parts, lumber, general junk and debris all over the yard. They were parking semi-trailers with lowboys and backhoes. They also had a semi-trailer which was being used as temporary storage in the front yard.” On another visit he found “a white Mustang, no tag, black Yamaha, no tag, maroon Kawasaki with an ‘87 tag on it, utility trailer with no tag. There was a red Yamaha with no tag, a black Yamaha, no tag, twelve off the road vehicles ... a red heavy pickup truck with an expired tag on it, ‘86 tag, a gray Honda Excel [sic], no tag, a black Ford pickup truck, no tag.” Construing this evidence to support the jury’s verdict, we find there is no merit to Light’s assertion that there was no evidence presented which could support a nuisance claim.

2. Neither do we believe that the amount of the verdict was so excessive as to shock the conscience. “As a general rule, the size of the award for damages in a case such as this is left to the enlightened conscience of impartial jurors, subject to approval of the trial court. The appellate court will not disturb the award absent an award so excessive or inadequate as to shock the judicial conscience.” (Citations and punctuation omitted.) Clarke v. Cotton, 207 Ga. App. 883, 884 (1) (429 SE2d 291) (1993). Light filed a motion for new trial in this case in which he asserted the verdict was strongly against the weight of the evidence. After a hearing, a transcript of which is not part of the record on appeal, the trial court denied the motion. “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony. This Court is a court for the correction of errors of law only, and this Court’s jurisdiction is confined to the question of whether the trial court abused its discretion in [denying the motion for new trial] on this ground.” (Citations and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 165 (2) (473 SE2d 256) (1996). We have reviewed the evidence and hold the trial court did not abuse its discretion in upholding the jury’s verdict.

Decided March 6,1997.

Daniels & Taylor, Jerry A. Daniels, for appellant.

Margaret M. Parkins, for appellees.

Edward H. Mason, pro se.

Roseanne Mason, pro se.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A97A0510.
    WASHINGTON v. THE STATE.
    (483 SE2d 683)
   Blackburn, Judge.

James W. Washington appeals his conviction of child molestation. On appeal Washington contends that the trial court erred in refusing to allow evidence of prior molestation, that the trial court gave an erroneous charge on circumstantial evidence, and that the evidence was insufficient to support the verdict.

Viewed in the light most favorable to the verdict, the evidence reflects that on July 20, 1994, the eleven-year-old victim and four other children under the age of thirteen were in Washington’s apartment to watch a movie. Washington repeatedly followed the victim into other rooms, where he would kiss and fondle her. Washington later took the children to the bowling alley across the street to play video games. Thereafter, he followed the victim back to the apartment after he sent her there to get more money. Upon returning to the apartment, Washington pulled down the victim’s pants and attempted to have intercourse with her.

1. Although ££[t]here is no requirement that the testimony of the victim of child molestation be corroborated,” Adams v. State, 186 Ga. App. 599 (367 SE2d 871) (1988), the testimony of the victim in the present case was corroborated in several respects. Antonio Vinning testified that Washington kept following the victim out of the room, and that he saw Washington kissing the victim. He further testified that Washington followed the victim from the bowling alley back to the apartment. Xavier Vinning testified that he saw Washington hugging the victim. Xavier also testified that Washington followed the victim back to the apartment after Washington sent the victim there to get more money.

Washington denied that he molested the victim. He also denied following the victim back to his apartment from the bowling alley. Carlos Jesse testified that Washington did not leave the bowling alley after Jesse arrived. However, he also testified that Washington was already at the bowling alley when he arrived.

“[I]t is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Furthermore, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citations and punctuation omitted.) Clay v. State, 214 Ga. App. 160, 161 (447 SE2d 156) (1994).

Having viewed the record in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Washington guilty beyond a reasonable doubt of child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Washington contends the trial court erred in failing to allow him to cross-examine the victim regarding prior allegations of molestation.

“[Ejvidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” Hall v. State, 196 Ga. App. 523, 525 (396 SE2d 271) (1990). However, such evidence may be admissible for a proper purpose. Id.

The trial court held a hearing outside the presence of the jury in which the victim’s mother testified that a 13-year-old boy had threatened to put his penis into the victim’s private parts. Washington’s counsel asserted that this testimony was relevant to show that the child’s knowledge regarding molestation came from another source and she was merely repeating something that happened previously. He further argued that the victim’s mother had a grudge against Washington and that she encouraged the victim to say that Washington committed these acts.

We do not agree that the testimony established evidence of a prior molestation. However, in any event, “[kjnowledge of a crime gained through being a victim of that crime at the hands of others can have no relevance to the issue of guilt or innocence of the defendant on trial. The past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial.” Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986). Therefore, the trial court correctly excluded any reference to past molestation of the victim.

Decided March 6,1997.

Hagler, Hyles & Adams, Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Neal J. Callahan, Assistant District Attorneys, for appellee.

3. Washington contends that the trial court’s charge on circumstantial evidence was erroneous. Washington specifically objects to the following portion of the charge: “To warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” Washington argues that the charge failed to instruct the jury that every other reasonable theory, other than guilt, must be excluded beyond a reasonable doubt.

Initially, we note that Washington’s conviction was not solely based on circumstantial evidence. As discussed above, the victim testified that Washington committed the acts as alleged in the indictment. Furthermore, the trial court’s charge to the jury was not erroneous. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citations and punctuation omitted.) Hill v. State, 205 Ga. App. 475, 476-477 (3) (422 SE2d 564) (1992). The trial court charged the jury on the proper presumptions and burdens, and specifically charged that the State must prove every essential element beyond a reasonable doubt. Therefore, reviewing the charge as a whole, we find no error.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Eldridge, Judge.

text:
    A97A0536.
    BURRELL v. THE STATE.
    (483 SE2d 679)
   Eldridge, Judge.

Appellant Kini Tollison Burrell appeals his March 1995 conviction for driving under the influence of alcohol (“DUI”), in violation of OCGA § 40-6-391 (a) (1), and failure to yield to an emergency vehicle, in violation of OCGA § 40-6-74.

At approximately 9:30 p.m. on December 12, 1994, Sergeant Chris Butler of the Clayton County Police Department stopped his patrol car at a red traffic light on Highway 138 and Jonesboro Road in Jonesboro, Clayton County. At the time, Sergeant Butler was responding to a non-emergency call; his blue lights and siren were not activated. Stopped in the lane next to Sergeant Butler’s patrol car was Amy Barker, who was traveling in the same direction as Sergeant Butler with her two small children as passengers.

When the traffic light turned green, Sergeant Butler turned left into the right-hand (curb side) lane of Jonesboro Road. Sergeant Butler testified that, upon driving through the intersection and under the traffic lights, he could see that the traffic light for drivers on Jonesboro Road was still red. At the same time, Barker was briefly distracted by her six-year-old daughter in the back seat, who had unbuckled her seat belt in order to retrieve a doll from the floorboard. After confirming that her daughter’s seat belt was secured and noticing that Sergeant Butler had made his turn, Barker proceeded through the intersection. However, she immediately slammed on her brakes when she concurrently heard and saw appellant’s car entering the intersection on Jonesboro Road. Both cars screeched to a halt, narrowly avoiding a collision between appellant’s car and the passenger side of Barker’s vehicle.

Sergeant Butler, who had just turned left through the intersection, heard “a loud, squealing, screeching type noise,” looked in his rear-view mirror, and saw both cars stopped in the middle of the intersection. Sergeant Butler watched appellant’s car as it passed through the intersection and proceeded down Jonesboro Road in the left-hand (inside) lane. At the same time, Barker drove her car straight through the intersection and continued on Highway 138.

After appellant’s car passed Sergeant Butler on Jonesboro Road, Sergeant Butler moved to the left-hand lane behind appellant and turned on his blue flashing lights. Sergeant Butler testified that his intention was to stop appellant for running a red light. After a few moments, when appellant did not pull over to the right, Sergeant Butler activated his siren. After “several tenths of a mile,” appellant finally drifted to the right-hand lane and briefly stopped. However, when Sergeant Butler stopped his patrol car behind appellant, appellant suddenly “made [a] jerking motion” with his car, “shooting out making [a] right” turn onto a side road. Anticipating that appellant was attempting to escape, Sergeant Butler quickly followed. Shortly thereafter, appellant stopped in the center of the street, and Sergeant Butler parked his patrol car behind appellant.

Sergeant Butler approached appellant’s car and asked to see appellant’s driver’s license; appellant instead mistakenly gave the police officer his Visa charge card. Sergeant Butler could see appellant’s driver’s license in his wallet, and told appellant where the license was so he could retrieve it. Sergeant Butler noticed a mild odor of alcohol on appellant’s breath, which became stronger when the officer moved closer to retrieve appellant’s keys. The officer also noticed that appellant’s eyes were glassy, his reactions to questions and his other mannerisms were slow, and his speech was slurred. When appellant exited the car, the officer observed that appellant moved slowly and used the car for support while walking. Based on his observations, Sergeant Butler testified that he believed appellant was “heavily intoxicated . . . definitely a less safe driver.”

During the trial, Barker testified that, after passing through the intersection following the near-collision with appellant’s vehicle, she continued straight on Highway 138. However, she became increasingly enraged by appellant’s actions in almost colliding with the passenger side of her car, where both of her children were seated. She turned her vehicle around, turned right at the intersection of Highway 138 and Jonesboro Road, and located Sergeant Butler and appellant parked on the side street. Barker parked behind the police officer, got out of her car, and approached appellant’s vehicle; appellant was still seated in his car. Barker testified that she wanted to confront appellant and show him “what he almost. . . killed.” However, Sergeant Butler instructed Barker to return to her car, telling her that he did not “know what [appellant] might do you [her],” that appellant was “bad drunk,” “didn’t know what was going on,” and “was completely out of it,” and that the officer “doubt[ed] very seriously [appellant] can walk back there” to Barker’s car. Sergeant Butler testified that he was concerned about his safety and the safety of Barker, since appellant was not in custody or otherwise restrained. Barker testified that, before returning to her car, she was able to see the appellant from the side and that he had “his head thrown back over his seat and [was] lounged out in the front seat,” with “his eyes closed, and his mouth was hung open ... he couldn’t hold his head up.” Barker also testified that, based upon her previous experience working in a bar, she came to the conclusion that appellant was intoxicated.

Appellant was arrested at the scene and charged with DUI, failure to yield the right-of-way to an emergency vehicle, and running a red light. Following a jury trial, appellant was found guilty of the DUI and failure to yield charges; he was acquitted of the charge of running a red light. Appellant’s original appeal was dismissed by this Court as untimely, but he was granted an out-of-time appeal in September 1996.

1. In his first enumeration of error, appellant asserts that the trial court erred in denying appellant’s motion for a directed verdict on the DUI and failure to yield charges.

(a) Regarding the DUI conviction, “[o]n appeal [from a conviction,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). In the case sub judice, evidence was presented that appellant narrowly avoided a collision with another automobile; initially failed to stop or pull over when Sergeant Butler followed him with flashing blue lights and siren activated; failed to remain stopped after pulling over to the curb; suddenly accelerated, making a “jerking” right-hand turn onto a side street; and, after being pursued by Sergeant Butler, stopped in the middle of the street, as opposed to pulling over to the right curb. Further, Sergeant Butler testified that appellant had “glassy eyes,” slurred speech, slow reactions and mannerisms, and an odor of alcohol. Appellant also mistakenly produced a Visa charge card instead of a driver’s license and used the car for support when exiting his vehicle and walking away from the car. Finally, a second witness, Barker, testified that, based on her experience of working in a bar for a year, appellant appeared to be intoxicated as he sat “lounged out” in his car, eyes closed, head back, and mouth “hung open.” She also testified that Sergeant Butler warned her to stay away from the appellant, because he was “bad drunk” and “completely out of it.”

Appellant cites to Clay v. State, 193 Ga. App. 377 (387 SE2d 644) (1989), to support his assertion that Sergeant Butler’s opinion that appellant appeared intoxicated, without more, is insufficient to support the jury’s verdict that appellant was driving under the influence. However, in the case sub judice, Sergeant Butler’s observations of appellant’s physical status and his subsequent determination that appellant was intoxicated were supported by additional evidence that appellant drove erratically following his near-collision with Barker, including appellant’s delay in pulling over after Sergeant Butler turned on his police car’s flashing blue lights and siren; appellant’s brief stop and sudden acceleration, followed by a right turn; and appellant’s eventual stop in the middle of the street. Such physical evidence, combined with Sergeant Butler’s observations and Barker’s testimony, is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant was under the influence of alcohol to the extent that he was a less safe driver. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) However, appellant’s conviction for failure to yield the right-of-way to an emergency vehicle under OCGA § 40-6-74 (a) must be reversed. The Code section provides that, following the approach of an emergency vehicle utilizing audible and visual signals, “the driver of every other vehicle shall yield the right of way” until the emergency vehicle “has passed. . . .” OCGA § 40-6-74 (a).

“To violate the statute, an individual must obstruct the roadway, thereby preventing an emergency vehicle from proceeding upon its route in pursuit of a fleeing suspect or other emergency. The evidence is uncontroverted that the officer was pursuing [appellant] rather than seeking to pass him. The officer’s stated purpose was to stop [appellant] for [a traffic violation]. Therefore, the State has failed to prove the most fundamental element of the statute charged: that [appellant] obstructed the roadway and prevented the officer from passing him. In light of this fact, [appellant’s] conviction for failing to yield to an emergency vehicle must be reversed. While the evidence would support a charge that [appellant] was attempting to flee from the officer under OCGA § 40-6-395, the [appellant] was not so charged.” (Emphasis in original.) Jackson v. State, 223 Ga. App. 27, 28 (1) (477 SE2d 28) (1996).

2. In appellant’s second enumeration of error, he asserts that the trial court erred in not granting the appellant’s request for a mistrial following the solicitor’s reference to a juror by name during closing argument. While we agree with appellant that the solicitor’s remark was inappropriate, we disagree that the refusal to grant a mistrial on that basis was reversible error. Further, we find that appellant waived his right to consideration of this issue by failing to renew his objection after the trial court ruled on his motion for mistrial.

During closing arguments, the solicitor mentioned the name of a juror who admitted during voir dire that he worked in a package liquor store. Specifically, the solicitor said, ‘You can look at somebody who’s had too much to drink and you can tell. Mr. Lee [the juror] can tell you that because every day in his job he sees people that he can’t sell alcohol to because they don’t — they’ve had plenty. . . .” At that time, appellant objected and made a “conditional motion for mistrial,” asking the trial court to “keep it under advisement until we see what the jury does with this case.” However, appellant stated that he did not want to waive his motion and stated that “[i]f the Court has any doubt about doing it [considering the motion] conditionally I would just ask that it [the mistrial] be granted now because that was absolutely inappropriate and corrective instructions are not going to overcome that highly inappropriate use of a juror’s name and talking about his profession. . . .”

In Snider v. State, 200 Ga. App. 12, 14 (6) (406 SE2d 542) (1991), this Court held that “ ‘[w]hen improper argument is made to the jury, it is necessary, in order to make the alleged error the basis for appeal, that opposing counsel, during the trial, properly object to the argument, invoke the ruling or instruction of the court, and if dissatisfied with the actions taken to renew the objection and move for mistrial. (Cits.)’ Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234) (1983).”

Decided March 6,1997.

Donald C. Turner, for appellant.

Keith C. Martin, Solicitor, Clara E. Bucci, Assistant Solicitor, for appellee.

In the case sub judice, appellant originally requested a “conditional mistrial,” apparently hoping to preserve his motion while hedging his bets on a possible acquittal by the jury. However, counsel invoked a ruling of the court when he moved for a mistrial “[i]f the Court has any doubt about doing it conditionally.” Appellant requested no cure, other than a mistrial, for the alleged error. Once the trial court denied the motion and determined, sua sponte, that curative instructions would only “ring the bell twice,” appellant did not renew his motion for a mistrial. Under such circumstances, the motion has been waived. Snider, supra at 14.

Judgment affirmed in part and reversed in part.

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

       Sergeant Butler’s testimony that appellant refused to submit to field sobriety testing was excluded from trial on constitutional grounds.

       Contrary to appellant’s assertion, this matter does not fall under OCGA § 17-8-75, as it does not involve “prejudicial matters which are not in evidence.” See also Thompson v. State, 150 Ga. App. 567 (258 SE2d 180) (1979).


text:
    A97A0556.
    CORBIN v. THE STATE.
    (483 SE2d 678)
   Johnson, Judge.

A jury convicted Jeffrey Hugh Corbin of being an habitual violator, driving under the influence of alcohol, and driving without proof of insurance. On appeal, he contends the court erred in admitting a Department of Public Safety (“DPS”) record showing he had been notified of his status as an habitual violator. He also argues that the evidence was insufficient to support the habitual violator conviction. We affirm.

1. The trial court did not err in admitting a DPS document showing Corbin had been notified of his status as an habitual violator in open court in the City Court of Jasper, Georgia, in November 1992. Corbin contends the document was inadmissible because the state did not authenticate the document through the testimony of a DPS custodian of records. This argument is waived by Corbin’s failure to raise it in the trial court. See Stephenson v. State, 216 Ga. App. 147, 148 (2) (453 SE2d 144) (1995) (on appeal, change of grounds for objection constitutes waiver). Moreover, this argument is without merit because the document was certified as a DPS record and, therefore, was “admissible as evidence in any civil or criminal proceeding as proof of the contents thereof.” OCGA § 40-5-2 (f) (1); see Smith v. State, 187 Ga. App. 322 (1) (370 SE2d 185) (1988). The other arguments Corbin makes for exclusion of this document are also waived by his failure to make them below. See Stephenson, supra.

Decided March 6,1997.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

2. Based on his allegation that the habitual violator notice was inadmissible, Corbin contends the state did not carry its burden of proof on this charge as required by Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). As discussed in Division 1, this notice was admissible. See Smith, supra. The state clearly carried its burden of proof. The habitual violator notice was issued in November 1992, and Corbin was stopped while driving an automobile in August 1994. Corbin admitted that he had received and signed the habitual violator notice and acknowledged that he had not possessed a driver’s license since 1980. Contrary to Corbin’s additional arguments, this evidence allowed the jury to determine that Corbin operated a motor vehicle less than five years after being declared an habitual violator and having his license revoked. OCGA § 40-5-58 (c) (1); see Funderburk v. State, 221 Ga. App. 438, 440 (2) (471 SE2d 535) (1996). See also Ragan v. State, 264 Ga. 190, 191, n. 2 (442 SE2d 750) (1994) (state not required to prove the convictions which caused defendant to be declared an habitual violator).

Judgment affirmed.

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


author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A96A1677.
    ANDERSON et al. v. TURTON DEVELOPMENT, INC. et al.
    (483 SE2d 597)
   Beasley, Judge.

The Andersons appeal the grant of summary judgment to Choice Hotels International, Inc., franchisor of a Comfort Inn, and to Turton Development, Inc., operator of the inn, under the franchise agreement. The Andersons’ action alleged that defendants’ negligence caused Mrs. Anderson’s slip and fall.

On the night of July 16, 1993, plaintiffs and their family checked into the motel. They requested a ground-floor room to accommodate Mr. Anderson, who was in a wheelchair. Mrs. Anderson was driving him in his truck, which she parked in a handicap parking space as authorized by his handicap parking sticker. She also had handicap parking privileges as a result of a 1990 automobile accident. The following morning, she departed her room to load her belongings into the truck but slipped and fell on a handicap parking ramp while walking to the parking lot.

The ramp extends from the sidewalk in three sections. The middle section is rectangular and meets the sidewalk at 90-degree angles. The two outside sections are triangular. The triangular sections are flush with the sidewalk at the points where the triangular sections, the rectangular section, and the sidewalk meet. From those points, the triangular sections slope gradually downward along the curb of the sidewalk until they become even with the parking lot.

Mrs. Anderson knew the ramp was there but had not traversed it previously. She stepped from the sidewalk onto the ramp with her right leg. As she placed her left leg on the ground, it caught in the drop-off between the ramp and sidewalk, and she fell. She testified that the ramp appeared to be flush with the sidewalk and that this was the only handicap ramp she had ever used which had a drop-off not identified by yellow lines or contrasting colors. A hotel employee testified that she had tripped and almost fallen on the ramp and had seen other people do the same, all of which she reported to her supervisor.

Plaintiffs’ expert, a professional engineer, testified that the handicap ramp fails to comply with American National Standards Institute (ANSI) standards for buildings and facilities for handicapped persons, in that it fails to have sufficient detectable warning textures for blind persons. It was his opinion that the ANSI standards were also violated because the color of the ramp, and the width and depth of the curb and flares, failed to give sufficient warning of any change in the elevation of the surface. The inn, constructed in 1990, was required to comply with ANSI standards under a state statute enacted to facilitate access to and use of facilities by physically handicapped and elderly persons. OCGA § 30-3-1 et seq. (Georgia Handicap Act).

The weather was very clear when Mrs. Anderson fell, and nothing obstructed her view of the ramp. She testified that as she was walking down the ramp, she was looking straight ahead. Although nothing prevented her from looking down, she did not do so as she placed her left foot on the ramp because she always looks ahead.

1. The grant of Turton’s motion for summary judgment was based on such cases as Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994), and Lamberson v. Norris, 135 Ga. App. 647, 648 (2) (218 SE2d 658) (1975). Lamberson, and subsequent cases such as Huntley Jiffy Stores v. Grigsby, 208 Ga. App. 634 (431 SE2d 435) (1993), are authority for the proposition that changes in the elevation of walking surfaces which are openly visible to an invitee do not give rise to liability on the part of the property owner. Gaydos and the cases it cites hold that “ £[i]t is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved. (Cits.)’ [Cit.] Broken or uneven pavement is a static condition which alone is not dangerous until someone steps on or in it. [Cit.]” Gaydos, supra at 813.

The court erred in granting Turton’s motion.

A jury could find that Turton breached its duty to keep the premises safe for the plaintiff by negligently designing and constructing the handicap ramp in such a fashion as to make it appear to be even with the sidewalk. See generally Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 615 (468 SE2d 387) (1995).

Construing the evidence most strongly against defendants as movants for summary judgment, Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994), a jury could also find that Mrs. Anderson, who was carrying her personal belongings from her room to her vehicle at the time of the accident, exercised reasonable care for her own safety by looking straight ahead and would have seen the drop-off but for the defective design. An invitee is not required to look for defects continuously and without interruption always. See Piggly Wiggly Southern v. Brown, supra at 617; J H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (1995). “ ‘What is “a reasonable lookout” depends on all the circumstances at the time and place. . . .’” (Citations omitted.) Id. Whether plaintiff’s failure to see the drop-off “constituted a lack of due care for her own safety under these circumstances and whether, if so, her negligence outweighed any possible negligence on the part of the [defendants] in failing to provide a . . . warning . . . are issues of fact to be resolved by a jury. [Cits.]” Pinkney v. VMS Realty, 189 Ga. App. 177, 179 (375 SE2d 90) (1988); compare Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338 (398 SE2d 413) (1990).

Given the above, plus evidence that other people had also tripped on the ramp, and evidence that the design of the handicap ramp was defective, “we cannot say (as a matter of law) that [the drop-off] was such an open and obvious danger that the average [person], in the exercise of ordinary care, would have observed the [defect] and avoided it. [Cit.]” Brown, supra at 618. Different is the case of Manley v. Gwinnett Place Assoc., L.P., 216 Ga. App. 379, 380 (2) (454 SE2d 577) (1995). Manley claimed that the slope of a handicap ramp was too steep, but her expert conceded the slope of the ramp was “obvious”; the ramp was painted yellow. Another case with evidence producing a different summary judgment result is Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993). Plaintiff Sullivan’s own expert witness illustrated that the allegedly hazardous condition created by the sloped threshold of a door was open and obvious, and a “watch your step” sign was posted to the right of the door.

“Such questions of negligence and diligence, including the related issues of lack of ordinary care for one’s own safety or lack of ordinary care in failing to see or observe the negligence of another, are ordinarily for a jury. [Cit.]” Brown, supra at 618. The evidence is not so plain, palpable, and undisputable as to support the conclusion that, as a matter of law, the plaintiff is precluded from recovering because her own negligence preponderated in causing her injury. See generally id. “[T]here remains a jury question as to whether [plaintiff] ‘ “use(d) her eyesight for the purpose of determining any discernible obstruction or defect in her path.” . . . (Cit.)’ [Cits.]” Allen v. Roscoe Weston Motels Ga., 220 Ga. App. 402, 404 (469 SE2d 492) (1996).

We reject plaintiffs’ argument that the design constituted negligence per se on grounds that ANSI standards and thus the Georgia Handicap Act were violated. Although Manley, supra, noted that no legal requirement existed mandating compliance with ANSI standards, it did not take into consideration the Georgia Handicap Act. Compare Watts v. Jaffs, 216 Ga. App. 565 (455 SE2d 328) (1995). Nevertheless, Mrs. Anderson, who was 57 years old at the time of the accident in 1993, testified that she had been issued a four-year handicap parking permit in 1990 as a result of an automobile accident in which she sustained injuries from which she had completely recovered at the time of the present accident. Thus, she was not handicapped or elderly. “ ‘ “[I]n order for the violation of some statutory duty to be negligence per se, the person claiming it as such must be within the class for whose benefit the statute was passed. . . ’ [Cit.]” Spivey v. Sellers, 185 Ga. App. 241, 244 (363 SE2d 856) (1987).

2. Although franchisee Turton was not entitled to summary judgment, franchisor Choice was.

(a) Plaintiffs first seek to hold Choice vicariously liable under an actual agency theory.

“ ‘(A) franchise contract under which one operates a type of business on a royalty basis does not create an agency or a partnership relationship.’ [Cit.] . . . ‘. . . [I]n order to impose liability on the franchisor for the (obligations) of the franchisee, it must be shown that: (a) the franchisor has by some act or conduct obligated itself to pay the debts of the franchisee; (cit.) or (b) the franchisee is not a franchisee in fact but a mere agent or “alter ego” of the franchisor. (Cit.)’ [Cit.]” McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993).

Plaintiffs argue that an actual agency between Choice and Turton was created because the franchise agreement, along with certain rules and regulations that Turton was obligated to follow, provided Choice with the ability to control the time, manner, and method of Turton’s business.

“ ‘Under Georgia law, “(t)he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” (Cit.) The historical test applied by Georgia courts has been “whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” (Cit.)’ [Cit.] However, ‘(t)he need for controls over the use of a trade name, in a franchise agreement authorizing such use, has generally been recognized. (Cits.)’ [Cit.] Thus, ‘a franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees. (Cit.)’ [Cit.]” McGuire, supra at 742.

Plaintiffs rely on provisions in the franchise agreement requiring that the inn contain a specified number of rooms, that the form and content of local advertising conform to standards prescribed by Choice, that Turton retain on the premises records and data relating to room rentals and revenue for examination and audit by Choice, and that Turton permit Choice to inspect the inn at all reasonable times.

These terms of the franchise agreement, rules and regulations, would not support a finding that Choice had the right to exercise such control as to make it vicariously liable for the acts of its franchisee Turton in maintaining the premises in a safe condition. The agreement sets forth the terms and conditions under which Turton may be licensed to operate a hotel or motel using the name “Comfort Inn,” and the rules and regulations impose various building, construction, and operational requirements, “not to permit [Choice] to direct or control the time, manner and method of performance of the daily operations of the franchise but as a means of achieving a certain level of quality and uniformity within [its] system.” McGuire, supra at 742. The franchise agreement provides that no agency relationship exists between Choice and the franchisee and that nothing contained in the agreement would take away from the franchisee the right to exercise “ordinary business control” to the extent consistent with the specific terms of the agreement. Therefore, it is immaterial that the agreement was subject to termination if the inn were operated in a manner which violated the rules and regulations.

(b) Plaintiffs alternatively seek to hold Choice vicariously liable under an apparent agency theory.

“ ‘The essence of the doctrine (of apparent or ostensible agency) is that one represents that another is one’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.’ [Cit.]” Watson v. Howard Johnson Franchise Systems, 216 Ga. App. 237, 238 (453 SE2d 758) (1995).

Although that is the law, Watson is distinguishable on the facts. There was evidence that the franchisee, with the knowledge of the franchisor, held itself out as being operated by the franchisor. In this case, there is only evidence that Turton failed to notify guests through signs or written material that it was independently operated.

(c) Plaintiffs also argue that Choice is directly liable because of its own negligence in the construction, design, and maintenance of the handicap ramps.

The rules and regulations required the construction of handicap parking ramps and provided a suggested design, but they were in fact designed, built, and maintained by Turton. Although there is evidence that they met Choice’s requirements, the evidence is that the drop-off from the sidewalk to the parking lot, and the lack of warning, were Turton’s design and not Choice’s.

Judgment affirmed in part and reversed in part.

Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. Andrews, C. J., Birdsong, P. J., and Ruffin, J., dissent. McMurray, P. J., disqualified.

Birdsong, Presiding Judge,

dissenting.

I believe the trial court was correct when it found the ramp to be an open and obvious static condition and that Mrs. Anderson failed to exercise ordinary care for her own safety.

The day was clear with a sunny sky and dry conditions. Appellant admits nothing prevented her from seeing the ramp or slope and there were no distractions. This Court held in Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) that even if a threshold slope created a hazardous condition, it was an open and obvious static condition that the plaintiff could have avoided in the exercise of ordinary care.

This case is controlled by Manley v. Gwinnett Place Assoc., 216 Ga. App. 379 (454 SE2d 577).

Decided February 13,1997

Reconsideration denied March 7,1997

Gorby & Reeves, Michael J. Gorby, Amanda R. H. Burri, for appellants.

Neal C. Scott, Todd A. Schweber, for appellees.

I respectfully dissent. I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this dissent.


author: Beasley, Judge. Eldridge, Judge,

text:
    A96A2163.
    FORD et al. v. WHIPPLE.
    (483 SE2d 591)
   Beasley, Judge.

Appellants, parents of Emily Claire Ford, challenge the trial court’s dismissal with prejudice of their personal injury claim brought against appellee “in their capacity as parents of” the child.

The Fords allege that on February 1, 1995, Whipple negligently drove her car at an excessive speed, through a red traffic control light, and collided with a vehicle in which Emily Ford was .a passenger. Just short of three months later, the initial complaint was filed and stated, “It is not believed at this time that Emily Ford suffered any physical injury as a result of the collision. It is not believed at this time that Emily Ford suffered any psychological or emotional injuries as a result of the Defendant’s wrongful conduct. However, Emily Ford, a five-year-old child, did sustain fright and apprehension following the accident as a direct and proximate result of the Defendant’s wrongful conduct, for which the Plaintiffs seek nominal damages.” They also sought punitive damages to deter defendant and other drivers from consciously disregarding the rights of other persons on the streets and highways. Thus the pleadings show there were no medical expenses or other pecuniary loss and that the alleged injuries themselves were non-physical and slight, even including pain and suffering, as the compensation sought is only nominal.

Whipple answered and, late in August, moved to dismiss for failure to state a claim upon which relief can be granted, pursuant to OCGA § 9-11-12 (b) (6), on the basis that plaintiffs failed to allege that the child suffered “any physical, psychological, or emotional injury as a result of the collision in Plaintiffs’ Complaint.” The Fords amended the complaint to clarify that it was not believed that the child suffered any physical injury “other than the physical shock and fright,” and that it was not believed that she suffered “any psychological or emotional injuries,” only “fright and apprehension” for which they sought nominal damages.

The only enumeration of error is that the trial court erred in granting appellee’s motion to dismiss for failure to state a claim. “A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. [Cit.]” (Punctuation omitted.) Vaughan v. Vaughan, 253 Ga. 76, 11 (317 SE2d 201) (1984); see also Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992); Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (359 SE2d 383) (1987). All facts in the pleadings are to “ ‘be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible.’ ” Bowen, supra. “ ‘For the purposes of the motion[ for judgment on the pleadings], all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. (Cit.)’ [Cit.]” Castle-berry v. Ga. Farm Bureau Mut. Ins. Co., 192 Ga. App. 58, 59 (383 SE2d 621) (1989).

Assuming arguendo that the suit is properly brought by plaintiffs, they are precluded from recovery because there is expressly no physical injury. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); see also OB-GYN Assoc, of Albany v. Littleton, 259 Ga. 663, 666 (2) (A) (386 SE2d 146) (1989); Carroll v. Rock, 220 Ga. App. 260, 262 (2) (469 SE2d 391) (1996); Killebrew v. Sun Trust Banks, 216 Ga. App. 159, 161 (2) (453 SE2d 752) (1995), rev’d on other grounds, 266 Ga. 109 (464 SE2d 207) (1995); Powers v. Latimer, 215 Ga. App. 245, 248 (4) (450 SE2d 295) (1994); R. J. Taylor Mem. Hosp. v. Gilbert, 213 Ga. App. 104, 105 (443 SE2d 656) (1994), rev’d on other grounds, 265 Ga. 580 (458 SE2d 341) (1995); Harris v. Wall Tire Co., 197 Ga. App. 818 (1) (399 SE2d 580) (1990). If we take what the Fords say as true, there is no physical injury and there is no doubt to resolve in their favor. Inference of bruising or scratching is more than a favorable construction, it is beyond and even contrary to the- pleadings. The complaint precludes such injuries, which would have already manifested themselves. The pleadings disclose with certainty that there can be no recovery for emotional damage built upon a physical injury.

OCGA § 51-12-6, which provides the measure of damages for torts where the third element, injury, is of a certain limited type, does not rescue plaintiffs’ complaint. The 1987 amendment to longstanding law did not change the language or applicability of the controlling first sentence but instead precluded punitive damages in certain such actions. In addition, the amendment struck the description of factors which the jury could consider and the portion describing when a court could disturb the verdict. Clearly, none of this affected the physical injury impact rule. That is confirmed by the Supreme Court of Georgia’s subsequent decisions in OB-GYN Assoc, of Albany, supra, and Ryckeley, supra, decided in 1989 and 1992, respectively. Neither does this damages Code section, as amended in 1987, create a new tort of negligent infliction of emotional distress. As said even before the amendment, “[t]his section does not create a cause of action . . . but prescribes the measure of recovery where such cause of action exists. [Cit.]” Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (2) (216 SE2d 776) (1975).

Plaintiffs’ alternative basis for recovery, wanton and wilful conduct directed at the plaintiffs, cannot be allowed either. “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury. [Cit.]” Ryckeley, supra. The Fords contend on appeal there is an inference of such, but their pleadings show there was no physical injury from an impact. “ ‘Georgia follows the “impact rule” which requires that defendant’s conduct must result in actual bodily contact to the plaintiff except under circumstances where the wilful act was directed against the plaintiff. . . .’ [Cits.]” Id. at 829.

Even if Whipple’s speeding was wanton and wilful on this thoroughfare connecting Peachtree Road with Roswell Road, the pleadings do not allege that she directed this conduct at the plaintiff’s child, and without such a claim there is no reasonable construction that she did so. Her conduct cannot be seen as directed at “anyone” in her path, and no authority is cited to support this theory.

Disregard of general consequences is a part of wanton behavior, but the exception to the impact rule requires more; the wantonness must be directed to the plaintiff. Ryckeley, supra. See also Evans v. Willis, 212 Ga. App. 335, 337 (1) (a) (441 SE2d 770) (1994); Richardson v. Hennly, 209 Ga. App. 868, 872 (3) (434 SE2d 772) (1993), rev’d on other grounds, 264 Ga. 355 (444 SE2d 317) (1994). To say the actor’s conduct is directed at anyone who is in the path ignores the additional requirement. Such an analysis would create the tort of negligent infliction of emotional distress and ignore the rule that “even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Ryckeley, supra at 829.

The law does not accommodate complaints for all of the vicissitudes of life. Although the child’s experience may not have been trivial, there is no measurable injury alleged, and thus the trial court correctly granted summary judgment. This relatively small and transitory injury cannot provide the foundation for a punitive damages award. Punishment for the conduct of the driver in speeding and running a red light are adequately dealt with by the traffic code and the criminal laws and the administrative sanctions where appropriate.

Judgment affirmed.

Andrews, C. J., Pope, P. J, Johnson, Blackburn, Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.

Eldridge, Judge,

dissenting.

In seeking to reach the issue that there can be no pain and suffering or emotional distress absent impact and physical injury as well as hold that Georgia does not recognize negligent infliction of emotional distress, the majority does violence to the liberal construction of pleadings under the Civil Practice Act and threatens a return to issue pleadings instead of notice pleadings. Had the summary adjudication come on summary judgment under OCGA § 9-11-56 instead of under OCGA § 9-11-12 (b) (6) motion to dismiss for failure to state a claim upon which relief can be granted, then the decision would be procedurally proper, because it would be based upon evidence rather than an amended complaint that a party has a final adjudication upon the merits. Then, it would be known if the minor child had or did not have some physical injury instead of strictly construing the pleadings against the party. This decision will return over and over again to haunt the bench and bar as well as this Court until overruled.

“The basic premise of the new Civil Practice Act is that it does away with ‘issue pleading5 and substitutes ‘notice pleading.’ ... ‘A petition should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ [Cits.]” Byrd v. Ford Motor Co., 118 Ga. App. 333 (2) (163 SE2d 327) (1968); see also Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974). “The [Civil Practice Act] abolished ‘issue pleading,’ substituted in lieu thereof ‘notice pleading,’ and directs that ‘all pleadings shall be so construed as to do substantial justice.’ [Cits.] ... It must be remembered that the objective of the CPA is to avoid technicalities and to require only a short and plain statement of the claim that will give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in the details. [Cits.]” Dillingham v. Doctors Clinic, P.A., 236 Ga. 302, 303 (223 SE2d 625) (1976); see also Sheppard v. Yara Engineering Corp., 248 Ga. 147, 149-150 (281 SE2d 586) (1981). “Under the Civil Practice Act when the sufficiency of a complaint is questioned, the pleadings must be construed in the light most favorable to the plaintiff. Instead of being construed as formerly, ... all doubts must be construed in favor of the complaint, even where unfavorable constructions might also arise therefrom. [Cits.] But even under the present law as to construction of complaints most favorably toward the pleader, a complaint will be dismissed where no claim is stated, or where the facts alleged show that plaintiff cannot recover. [Cits.]” Massey v. Perkerson, 129 Ga. App. 895, 896 (1), (2) (201 SE2d 830) (1973); see also Rossville Fed. &c. Assn. v. Ins. Co. of North America, 121 Ga. App. 435 (174 SE2d 204) (1970); Poole v. City of Atlanta, 117 Ga. App. 432 (160 SE2d 874) (1968). “[A] complaint is not required to set forth a cause of action, but need only set forth a claim for relief, and that a complaint is no longer to be construed most strongly against the pleader. [Cits.]” Mitchell v. Dickey, 226 Ga. 218, 220 (1) (173 SE2d 695) (1970). “The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. [Cits.]” Harper v. DeFreitas, 117 Ga. App. 236, 238 (160 SE2d 260) (1968); see also Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543 (218 SE2d 263) (1975). “ ‘ “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” [Cit.]’ ” Peacock Constr. Co. v. Erickson’s, Inc., 121 Ga. App. 544, 545 (2) (174 SE2d 276) (1970).

Appellants allege that they are entitled to recover damages because their daughter experienced physical shock, fright, and apprehension as a result of appellee’s conduct, which they claim was negligent, in “conscious disregard of the traffic laws and the rights of other persons unlawfully [sic] using the public streets,” and which demonstrated a “willful [sic], wanton, and conscious disregard for the rights and safety of others.”

However, such physical injury resulting from an actual impact may be de minimis, such as bruising, contusions, scratches, reddening of skin, or pain from strained muscles. The facts as presented by appellants in their pleadings, which describe a speeding car and a resultant collision, support the reasonable and favorable inference that appellants’ minor child may have experienced some physical injury that may be proven at trial; any evidence that physical contact produced as a proximate cause any degree of physical injury is sufficient to recover under Georgia’s impact rule, even if of a de minimis nature as an actual physical injury. The existence, nature, and degree of injury is a matter for the jury and cannot be decided by a trial or appellate court as a matter of law on motion to dismiss for failure to state a claim upon which relief can be granted. While the allegations as to the nature and extent of injury are ambiguous, we must construe the complaint in favor of the appellants as setting forth a physical injury from the impact because the complaint does not have to plead the elements of an action; when the amended complaint alleges that the minor child suffered “physical shock,” in making inferences favorable to the plaintiff, courts must treat this allegation, although ambiguously worded, as stating a physical injury, because implicit in the term “physical shock” is a physical reaction to the appellee’s physical impact involving significant transference of force within Newtonian physics and which acts perforce include strained muscles and associated reactive injurious physical manifestations to the neurological system, the musculoskeletal system, and other soft tissues of the subject of such mechanical force transference. This is a matter of issue pleading and not pleading facts or elements of a cause of action. Mitchell v. Dickey, supra at 220; Dillingham v. Doctors Clinic, P.A., supra at 303; Sheppard v. Yara Engineering Corp., supra at 149-150; Harper v. DeFreitas, supra. Accordingly, appellants’ allegations of “physical shock” are sufficient pleadings to withstand a motion to dismiss.

Further, Ga. L. 1987, p. 915, § 6, codified as OCGA § 51-12-6, repealed in its entirety the former Code section giving vindictive damages and created a new form of general damage. The descriptive content of Ga. L. 1987, pp. 915, 916 reads in part: “to provide for injuries to peace, happiness, or feelings.” OCGA § 51-12-6 reads: “In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.” The General Assembly obviously had some legislative intent when it replaced the former Code section, which had been a codification of the common law. See Orig. Code 1863, § 2999; Code 1868, § 3012; Code 1873, § 3067; Code 1882, § 3067; Civil Code 1895, § 3907; Civil Code 1910, § 4504; Code 1933, § 105-2003. Whatever that legislative intent was, the new OCGA § 51-12-6 legislatively repealed the holding in Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975) insofar as it deals with damage exclusively to the peace and happiness of the plaintiff, because in such decision the Supreme Court held that if there were any recovery of general, nominal, special, or punitive damages, then there could be no recovery for vindictive damages where the injury is exclusively to the peace and happiness of the plaintiff; therefore, such damages could be recovered only in the absence of all other damages; the discussion of the impact rule and physical injury was dicta. Furthermore, the application of former OCGA § 51-12-6 was to the wrongful disinterment of a body, which was an intentional tortious act not specifically directed at the plaintiff but which directly affected the plaintiff as the widow; the “malicious, wilful, or wanton” under that holding did not have to be specifically directed at the plaintiff. Thus, where there was either an intentional tort directed at the plaintiff or where there was a physical impact with injury giving rise to pain and suffering, including mental distress, damages to the “peace and happiness” could not be recovered. Ga. L. 1987, p. 915, § 6 must have some purpose separate from mental pain and suffering; otherwise the act would have been repealed in its entirety; otherwise mental pain and suffering would have encompassed such damages. OB-GYN Assoc, of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989) , is based upon decisions prior to Ga. L. 1987, p. 915, § 6, and does not even discuss the effect of the new OCGA § 51-12-6 in its discussion of mental pain and suffering under general damages requiring impact or an intentional tort directed at the plaintiff. Likewise, in Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992), in deciding the case based upon Sanders v. Brown, 178 Ga. App. 447 (1) (343 SE2d 722) (1986), the Supreme Court cited the holding based upon former OCGA § 51-12-6 but made no distinction regarding Ga. L. 1987, p. 915, § 6. In fact almost all of the cases cited by the majority follow OB-GYN Assoc, of Albany v. Littleton, supra, and do not arise under OCGA § 51-12-6 where the exclusive damage is to the peace and happiness of the plaintiff. See Killebrew v. Sun Trust Banks, 216 Ga. App. 159, 161 (2) (453 SE2d 752) (1995); Powers v. Latimer, 215 Ga. App. 245, 248 (4) (450 SE2d 295) (1994); R. J. Taylor Mem. Hosp. v. Gilbert, 213 Ga. App. 104, 105 (443 SE2d 656) (1994); Harris v. Wall Tire Co., 197 Ga. App. 818 (1) (399 SE2d 580) (1990) . Only in Carroll v. Rock, 220 Ga. App. 260, 262 (2) (469 SE2d 391) (1996), is OCGA § 51-12-6 mentioned at all; Carroll v. Rock, supra at 260-261, relied upon Roseberry v. Brooks, 218 Ga. App. 202, 210 (4) (461 SE2d 262) (1995) and Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 80-81 (1) (387 SE2d 34) (1989) which both relied upon pre-1987 cases as well as Westview Cemetery v. Blanchard, supra, for the present meaning of OCGA § 51-12-6, requiring physical injury or pecuniary loss or “maliciously, wilfully, or with a wanton disregard of the rights of others.” In all of the foregoing cases either general damages for pain and suffering, special damages, nominal damages, or punitive damages were alleged, which within Westview Cemetery v. Blanchard, supra at 544-545, would bar recovery under OCGA § 51-12-6 because there were other damages sought. The plain language of the new post-1987 OCGA § 51-12-6 does not say that the tort must be intentional or that there must be pecuniary loss or physical impact with injury; the statute does say that damages to the peace and happiness are recoverable when it is the exclusive damage recoverable. Therefore, negligent infliction of emotional distress could under certain factual circumstances give rise to damages under OCGA § 51-12-6 and should not be dismissed under OCGA § 9-11-12 (b) (6).

Further, recovery for “mental distress” as general damages for mental pain and suffering is allowed if the conduct at issue was “malicious, wilful, or wanton,” which did not require the plaintiff to be the intended subject of the intentional tort, but only required that the plaintiff be a foreseeable subject of the intentional tort. Westview Cemetery v. Blanchard, supra at 544; see also Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818) (1984); Tuggle v. Wilson, 248 Ga. 335, 337 (2) (282 SE2d 110) (1981). Such malicious, wilful or wanton conduct requires a greater level of culpability than mere negligence or even gross negligence; the terms are not synonymous. Southern R. Co. v. Kelley, 52 Ga. App. 137, 139 (182 SE 631) (1935).

Stated another way, “ ‘ “[t]o recover damages on account of physical injuries resulting from fright, where there is no actual immediate personal injury, it must appear that the injuries were the natural and proximate result of the fright or shock, and that the defendant could or should have known that the act producing the injuries would with reasonable certainty cause such a result; and it must appear that the injuries resulted from such gross carelessness, coupled with a knowledge of the probable physical results, as amounted to wilful and reckless disregard of consequences. . . .” ’ [Cits.]” McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495, 499 (306 SE2d 746) (1983), quoting Delta Finance Co. v. Ganakas, 93 Ga. App. 297 (1) (91 SE2d 383) (1956). Such “reckless and wanton disregard of consequences may evince an intention to inflict injury,” and may be equivalent to an intentional tort, so that an “ ‘injured party may recover for the mental pain and anguish suffered therefrom.’ [Cits.]” Hamilton v. Powell, Goldstein &c., supra at 150.

In the case sub judice, appellants allege that appellee exceeded the speed limit and ran a red traffic control signal. These facts, “ ‘construed in the light most favorable to the plaintiff with all doubts resolved in his favor,’ ” Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992), could support a finding that appellee’s conduct was wilful and wanton, or in conscious disregard of the consequences.

However, even if the appellee’s conduct is determined to be malicious, wilful, wanton, or reckless, such conduct will still not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff where general damages for mental distress as part of pain and suffering are sought, instead of under OCGA § 51-12-6 as amended. Ryckeley v. Callaway, supra at 829; OB-GYN Assoc, of Albany v. Littleton, supra. Even when general damages for “mental distress” or “mental pain and suffering” without impact are sought based upon “wilful” or “reckless and wanton” conduct, the conduct must be directed at the specific plaintiff to come within the exception to the impact rule. Id. at 666; Hamilton v. Powell, Goldstein &c., supra at 150; Tuggle v. Wilson, supra at 337; Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 SE 901) (1892). Under the foregoing cases, the wilful and wanton conduct must be specifically directed at the plaintiff to allow a recovery under any theory of damages.

Decided February 13,1997

Reconsideration denied March 7,1997

Christopher G. Moorman, for appellants.

James L. Ford, Sr, pro se.

Sullivan, Hall, Booth & Smith, Brynda S. Rodriguez, Lyndy C. Stewart, for appellee.

Appellants assert that reckless driving is “directed at anyone who the driver may forseeably [sic] injure.” The issue of whether appellee’s conduct was directed against the minor child is a factual question that can be determined only on the evidence in the case and may be a proper basis for a motion for summary judgment; however, whether or not the “wilful and wanton” misconduct was in fact directed at appellants’ child so as to permit an exception to the impact rule cannot be determined on a motion to dismiss. To require that the complaint allege that appellee specifically directed her wilful, wanton, or reckless conduct at the minor child, rather than what could be shown by evidence at trial, would be a return to the repealed procedure of “issue pleading.” See Vaughan v. Vaughan, 253 Ga. 76, 77 (317 SE2d 201) (1984); Bowen v. Adams, supra at 123; Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (359 SE2d 383) (1987).

I am authorized to state that Presiding Judge McMurray joins in this dissent.


author: Beasley, Judge.

text:
    A97A0026.
    BENNETT v. THE STATE.
    (483 SE2d 612)
   Beasley, Judge.

Bennett was charged with theft of mislaid property consisting of $405,000 mistakenly transferred into his bank account. In July 1989, he entered a guilty plea, and the court imposed a ten-year probated sentence conditioned upon his payment of restitution.

After defaulting in making restitution payments, he filed a motion to modify his sentence due to financial inability to pay. After the State filed petitions for revocation of probation because of his failure to pay, Bennett filed an extraordinary motion for new trial. The motion, which was filed in May 1990, specified no grounds but stated that it was supported by the “attached consent” of the district attorney’s office. Although no such consent was attached, the transcript of the probation revocation hearing shows that the district attorney suggested the possibility of Bennett’s withdrawing his guilty plea by filing an extraordinary motion for new trial. The court revoked Bennett’s probation but ordered that it be reinstated on the original conditions after he served six months in jail, with a new restitution payment schedule to be established at the end of Bennett’s incarceration.

After his release, the State filed another probation revocation petition because of Bennett’s failure to pay restitution. The court was unable to reach a decision concerning a suitable payment schedule. In July 1991, the court granted Bennett’s extraordinary motion for new trial (the 1991 order), vacated and set aside his guilty plea and sentence, and set bond. The State did not appeal.

Nearly five years later, in April 1996, the State sought to set aside the 1991 order. The court (presided over by a judge from a different judicial circuit) set aside the 1991 order and reinstated Bennett’s sentence. The court concluded that the 1991 order was void on jurisdictional grounds, so the State’s failure to appeal it did not bar the State from seeking to set it aside. Bennett appeals.

1. In his first two enumerations, Bennett argues that the 1991 order in effect granted a petition for writ of habeas corpus and thus was not void.

Bennett did not seek to withdraw his guilty plea until after expiration of the term of court in which he entered his plea and was sentenced. See OCGA § 15-6-3 (15.1). “‘A defendant may withdraw his plea as a matter of right before sentence is pronounced. [Cit.] Even after sentencing, the trial court would have discretion to allow withdrawal of the plea prior to the expiration of that term of court. [Cit.] After the term, the prescribed means to withdraw the plea would be through habeas corpus proceedings. [Cit.] It could not be raised through motion for new trial . . . because a defendant who files a guilty plea cannot move for a new trial since there has been no verdict. [Cit.]’ [Cit.]” Bowens v. State, 194 Ga. App. 391 (1) (390 SE2d 634) (1990).

“Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute a [habeas corpus] proceeding.” OCGA § 9-14-42 (a). In Bennett’s extraordinary motion for new trial, he did not assert that there was any denial of his constitutional rights in his guilty plea proceedings. The extraordinary motion for new trial thus failed to state a claim for habeas corpus relief. See Shakur v. State, 239 Ga. 548 (238 SE2d 85) (1977) (trial court did not err in dismissing writ of habeas corpus where petitioner’s assertion that guilty plea was not freely and voluntarily entered was supported by grounds facially without merit); compare- Waye v. State, 239 Ga. 871, 872 (1) (238 SE2d 923) (1977) (trial court properly treated petition as one for habeas corpus where petitioner alleged the guilty plea was not knowingly, voluntarily, and willingly entered). The guilty pleas in Shakur and Waye were actually challenged or sought to be challenged on federal constitutional grounds, i.e., Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). When Shakur and Waye were decided, a habeas petitioner’s entitlement to relief was not limited to the denial of state and federal constitutional rights, as it is now. A substantial denial of rights under other laws of this state also entitled a petitioner to relief under the law then in force. See Valenzuela v. Newsome, 253 Ga. 793, 794 (2) (325 SE2d 370) (1985).

Decided February 19,1997

Reconsideration denied March 7,1997

Wallace C. Clayton, Amelia G. Pray, for appellant.

David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.

Based on current law, the 1991 order was in substance the grant of an out-of-term motion to withdraw a guilty plea. The court lacked jurisdiction to enter such an order, and the order was thus void. See State v. James, 211 Ga. App. 149 (2) (438 SE2d 399) (1993).

2. In his third and fourth enumerations, Bennett argues that following expiration of the term in which the 1991 order was entered, the State lacked authority to attack it and the court lacked authority to set it aside.

“By statute, in Georgia, ‘(t)he judgment of a court having no jurisdiction of the person or subject matter, or void for any . . . cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.’ OCGA § 17-9-4. [Cits.] If the judgment is a nullity and void, the right to attack it is not lost by laches ([cit.]); nor is it waived by the failure to attack it before, since it is void, and not voidable. . . .’ [Cit.]” Barrett v. State, 183 Ga. App. 729, 730 (1) (360 SE2d 400) (1987), overruled on other grounds, Gonzalez v. Abbott, 262 Ga. 671, 673 (2) (425 SE2d 272) (1993). The trial court was thus authorized to set aside the 1991 order beyond the term in which the order was entered.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Andrews, Chief Judge.

text:
    A96A1631.
    MOORE v. MEEKS.
    (483 SE2d 383)
   Andrews, Chief Judge.

David Moore appeals from the trial court’s order granting Ted Meeks’ motion for summary judgment on Moore’s claims of negligent construction, breach of implied warranty, passive concealment and fraud in the purchase of a house Meeks built in 1988. Moore contends the statute of limitation was tolled due to Meeks’ fraudulent concealment of the defect. We disagree and affirm the judgment of the trial court.

Meeks began building the house in question in 1987, and sold it on January 22, 1988, to Frank Lasseter. On September 1, 1992, Moore contracted to purchase the house from Lasseter and closed on it on October 8, 1992. In his complaint for fraud filed against Lasseter in February 1994, Moore stated that, after signing the contract, but before closing, he noticed “a large crack in the stucco type finish on the exterior of said home.” Subsequently, in April 1993, portions of the stucco exterior began falling off the house.

In May 1995, Moore sued Meeks, the builder, alleging faulty construction and fraudulent concealment. Meeks answered, asserting the defenses of the statute of limitation, laches, lack of privity, duty to inspect, waiver and estoppel.

1. As a subsequent purchaser, Moore has no claim for breach of implied warranty. See Dunant v. Wilmock, Inc., 176 Ga. App. 48 (335 SE2d 162) (1985) (caveat emptor defense applies to subsequent purchasers). The trial court also properly granted Meeks’ motion for summary judgment on Moore’s claim of fraud due to passive concealment of a latent defect. As Meeks was not a party to the contract and Moore does not allege that Meeks had any knowledge of the sale, he cannot claim Meeks was under a duty to disclose to him the defect. The cases cited by Moore in support of this claim are inapposite as they all involve the duty of a builder-seller who was a party to the contract. See, e.g., Shipman v. Horizon Corp., 245 Ga. 808, 809 (267 SE2d 244) (1980); Hahne v. Wylly, 199 Ga. App. 811 (406 SE2d 94) (1991); Fleming v. Lee Engineering &c. Co., 184 Ga. App. 275 (361 SE2d 258) (1987).

2. The statute of limitation was not tolled on the claim for negligent construction. Because the Discovery Rule does not apply to damage to realty, Mercer University v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988); Hanna v. McWilliams, 213 Ga. App. 648 (446 SE2d 741) (1994), Moore’s claim is time barred by the four-year statute of limitation on claims for trespass or damage to realty under OCGA § 9-3-30. However, the claims do fall within the eight-year statute of repose of OCGA § 9-3-51 and Moore alleges Meeks fraudulently concealed the defects in the stucco from him, thereby tolling the time period under OCGA § 9-3-96 for filing his claim.

Decided March 7,1997.

Melnick, Moore & Elliott, Larry M. Melnick, for appellant.

Beck, Owens & Murray, Richard L. Collier, for appellee.

In order to show fraudulent concealment under OCGA § 9-3-96 sufficient to toll the statute of limitation, a plaintiff must show (1) the defendant committed actual fraud involving moral turpitude; (2) the fraud concealed the cause of action from the plaintiff; (3) plaintiff exercised reasonable diligence to discover the fraud. Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Further, “[t]o toll the statute of limitation, concealment of a cause of action must be by positive affirmative act and not by mere silence.” Comerford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980). There must be some trick or artifice employed to mislead the party who has the cause of action. Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 422 (138 SE2d 687) (1964).

Moore makes no argument as to how Meeks’ construction of the house involved an act of moral turpitude, or by what artifice he concealed the faulty construction. Moore was also on notice of a problem with the stucco, because, as he admits, there was a large crack in it which he noted prior to closing on the house. Even considering the unsworn affidavit which Moore submitted in response to Meeks’ motion for summary judgment, Moore can meet none of the requirements to support a claim for fraudulent concealment. Accordingly, the trial court correctly determined that Moore’s claims were barred by the statute of limitation.

3. Moore also claims the trial court erred in not considering the unsworn affidavit submitted in response to Meeks’ motion for summary judgment, or in the alternative, in not allowing him to conform the affidavit. As previously discussed, even considering the affidavit, Moore cannot support his claim. Therefore, in light of our holding above, we need not address this issue.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Pope, Presiding Judge.

text:
    A96A2057.
    BUTLER v. THE STATE.
    (483 SE2d 385)
   Pope, Presiding Judge.

In 1980, Mary Adams Butler, who is a paranoid schizophrenic, was indicted for murdering a Decatur County Deputy Sheriff. At the time of the murder, the deputy was attempting to take Butler to a mental hospital pursuant to an emergency insanity order issued by the probate court. After entering a special plea of insanity, Butler was committed to the custody of the Department of Human Resources until the time it was determined she was competent to stand trial. Following a hearing in 1983, the Decatur County Superior Court made such a determination, and thereafter, a jury, rejecting Butler’s contention that she was insane at the time of the murder, found Butler guilty. She was sentenced to life in prison. The Supreme Court of Georgia, however, reversed the conviction. In doing so, it determined that a presumption arose that Butler was insane at the time of the murder based on her presentation during trial of a certified copy of the probate court’s insanity order. Because the state presented no evidence to rebut the presumption, the Supreme Court concluded that no rational jury could have found Butler failed to prove she was insane at the time she killed the deputy. It then remanded the case for disposition in accordance with OCGA § 17-7-131. Butler v. State, 252 Ga. 135, 138 (311 SE2d 473) (1984). Subsequently, Butler again was committed. On September 22, 1995, Butler filed an application for conditional release from commitment in the Decatur County Superior Court. Her application was denied by the same trial judge that presided over her murder trial and had presided over numerous other release hearings that Butler had requested over the years. See Butler v. State, 258 Ga. 344 (369 SE2d 252) (1988). On appeal, Butler contends the superior court erred in denying her conditional release. We disagree and affirm.

Under OCGA § 17-7-131 (e) (5) (A) “[i]f [an insanity acquitee] appears to meet the criteria for outpatient involuntary treatment as defined by Part 3 of Article 3 of Chapter 3 of Title 37, which shall be the criteria for release on a trial basis in the community in preparation for a full release, the [committing] court may order a period of conditional release subject to certain conditions set by the court.” As acknowledged by both parties in this case, during the hearing to determine whether an insanity acquitee meets the criteria for conditional release, the burden is on the acquitee. See OCGA § 17-7-131 (f) (2). And, once a person is found not guilty by reason of insanity and committed to a mental hospital, the person is presumed to be unfit for such release. See Cox v. State, 171 Ga. App. 550, 551 (320 SE2d 611) (1984). Consequently, at her conditional release hearing, Butler had the burden of rebutting the above presumption and demonstrating by a preponderance of the evidence that she no longer met the criteria for inpatient involuntary treatment as set forth in OCGA § 37-3-1 (9.1). See Pope v. State, 172 Ga. App. 396, 397 (2) (323 SE2d 268) (1984).

In an attempt to meet her burden, Butler presented a proposed conditional release plan prepared by the staff of the mental hospital in which she resided. Under the plan, Butler would be allowed to live in a six-person Intensive Treatment Residence staffed by mental health professionals, but not located on hospital grounds. Butler also testified in her own behalf and presented testimony from a counselor and psychologist from the hospital.

Although the counselor and psychologist both generally supported Butler’s conditional release under the proposed plan, their support was based primarily on their conclusions that Butler was no longer a danger to herself or others because her mental condition was controlled by medication and that Butler would continue to take her medicine if she were conditionally released. The record, however, shows that the trial court had reason to doubt these conclusions based on the witnesses’ unfamiliarity with important aspects of Butler’s case. Specifically, neither of Butler’s professional witnesses was thoroughly familiar with her history concerning medication. The counselor was primarily familiar with the social elements of Butler’s treatment, and the psychologist testified that he was not even involved in Butler’s treatment, per se, but instead served as a liaison between Butler’s treatment team and the court. And the record indicates that the medicine used in an attempt to control Butler’s schizophrenia had been changed fairly recently from one requiring a monthly injection to one requiring the ingestion of pills three times a day. Neither of Butler’s witnesses knew the reason for the change in medicine, and the only testimony regarding the amount of time it would take for Butler to decompensate upon failing to take the new medicine, thereby again becoming psychotic, had no factual basis. According to Butler, the reason for the change was the fact that she was continuing to hear voices. While she testified that the new medicine helped with this problem, she admitted that it did not solve it, and that at times the problem was severe.

The record further demonstrates that there was at least one instance occurring within the previous several years which brought into doubt the conclusion that Butler would continue to take her medicine under the less restrictive environment afforded her by the conditional release plan. As referenced by the state, and judicially noticed by the superior court, Butler previously had participated in a program where she was allowed to live in an apartment-type setting on the grounds of a mental hospital. Butler, however, was expelled from the program due to her inability to comply with the rules of the program. There was also testimony from the psychologist that paranoid schizophrenics had a tendency to stop voluntarily taking their medicine after the medicine had stabilized their condition.

Decided March 7,1997.

Lloyd C. Burton, Keith J. Williams, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

Debra J. Blum, amicus curiae.

In light of the above, the superior court clearly could have rejected the conclusions reached by Butler’s professional witnesses. Moreover, we note that in cases like this, “[t]he trial judge, as the finder of fact, is not bound by the opinions of either lay or expert witnesses and may rely upon the basic presumptions permitted by law.” (Citations omitted.) Cox, 171 Ga. App. at 551. And, it was within the superior court judge’s discretion to reject Butler’s mere promise that she would continue to take her medication upon conditional release.

Accordingly, based on the superior court’s familiarity with Butler’s condition and case history, the evidence at the hearing, including that judicially noticed by the court, and the presumptions of law existing in cases like this, we are satisfied that the superior court judge, as a “rational trier of fact[ ] could have found that [Butler] failed to prove by a preponderance of the evidence that [s]he did not meet the criteria for [inpatient involuntary] commitment.” (Citations omitted.) Pope, 172 Ga. App. at 397 (2).

Judgment affirmed.

Andrews, C. J, and Smith, J., concur.

       Under OCGA § 37-3-1 (9.1), a person meets the criteria for inpatient involuntary treatment if the person “is mentally ill and ... presents a substantial risk of imminent harm to [themselves] or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons[,] or ... [the person] is so unable to care for [their] own physical health and safety as to create an imminently life endangering crisis. . . .”