text:
    A97A0749.
    WEST MARIETTA HARDWARE et al. v. CHANDLER.
    (489 SE2d 584)
   Smith, Judge.

We granted a discretionary appeal by the employer and insurer in this workers’ compensation case. The employer and insurer raise four enumerations challenging the award. We conclude that at least one of the enumerations is meritorious, and we therefore reverse.

The record shows that while a full-time student, the claimant, Michele Chandler, worked at West Marietta Hardware as the office manager. She suffered a compensable work-related injury on September 13, 1993, when two metal shelves fell on her, hitting the left side of her head. Complaining of headache, nausea, and lightheadedness, she consulted a doctor on her employer’s approved list, who diagnosed a mild contusion.

Chandler’s recurrent headaches then caused her to visit the local hospital emergency room, which diagnosed concussion syndrome, referred her to a neurologist, and gave her a work excuse. The neurologist diagnosed post-concussion syndrome and post-traumatic vascular headaches and released her to return to regular duty after one week, noting that a CAT scan was unremarkable. Her employer, West Marietta Hardware, accepted her claim for compensation, which was paid until she returned to work without restriction on September 27, 1993.

She continued to work at West Marietta Hardware until February 1995, although her complaints persisted and she continued to see various doctors. She complained primarily of headaches but also of other symptoms, including at various times confusion, memory loss, nausea, difficulty concentrating, and depression. At her sister’s suggestion, she consulted Dr. Donald Orr on August 3, 1994. Dr. Orr’s initial impression was post-traumatic muscle contraction headaches with paracervical trigger points. Chandler continued to see Dr. Orr, and his notes indicate that she showed some improvement.

In February 1995, Chandler left her employment at West Marietta Hardware for personal reasons. She left Georgia temporarily, but when she returned, she again saw Dr. Orr. As her symptoms evolved, with numbness and pain in the neck, shoulders, and arms emerging and increasing, Dr. Orr’s working diagnosis changed to possible thoracic outlet syndrome. At Dr. Orr’s recommendation, Chandler saw Dr. Robert Sessions for a second opinion, and Dr. Sessions agreed with Dr. Orr’s diagnosis of thoracic outlet syndrome. On May 8, 1995, Dr. Orr instructed Chandler not to return to work “while additional investigation for this disorder is pursued” and while she remained symptomatic at that level. Chandler has not worked since.

An independent medical examination was conducted by Dr. Robert Gilbert at the request of the insurer. Dr. Gilbert rejected the diagnosis of thoracic outlet syndrome and found that Chandler could perform normal duties.

Chandler applied for workers’ compensation benefits, alleging a change in condition. The employer controverted the claim, and after a hearing, the ÁLJ found that Chandler was suffering from thoracic outlet syndrome proximately caused by her work injury on September 13, 1993, and that, as a result, she was totally disabled. He awarded continuing benefits retroactive to May 8, 1995. The appellate division affirmed the award. No hearing was scheduled on the appeal to superior court, and the award was affirmed by operation of law. OCGA § 34-9-105 (b).

1. An employee who sustains a compensable injury, returns to work, and leaves for a reason unrelated to the injury must satisfy certain conditions when seeking the resumption of workers’ compensation benefits because of a change in condition. Such an employee “must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful search to secure suitable employment” after leaving work. Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995). The search for work need not be shown when claimants are totally disabled, however. In those circumstances, a search for suitable employment would be a “purposeless demonstration of their disability by seeking work . . . they are unable to perform.” Richardson v. Dennis, Corry, Porter & Thornton, 216 Ga. App. 476, 477 (454 SE2d 643) (1995).

The employer and insurer contend that Chandler did not meet the requirements of Maloney because she showed no search for work. They argue that the ALJ erred in concluding that Chandler was totally disabled because no doctor stated that she could not work at all. In support of this position, they point to the deposition testimony of Dr. Orr, Chandler’s primary treating physician, that she could do some work, provided it was not repetitive. They characterize this testimony as releasing Chandler to light-duty work.

Appellants mischaracterize the evidence. Nowhere in his testimony did Dr. Orr state that Chandler was released to light duty; on the contrary, he advised her not to work at all. He did indicate when questioned by appellants’ attorney that “[i]f it was a position in which she didn’t have to use her arm, then there would be no immediate reason she couldn’t” work. If her work were confined to “paper shuffling without the computer,” for instance, that might be all right. But he was unsure of this because he realized that “many types of work would involve work at the computer or moving the extremities.” After further questioning, Dr. Orr concluded that any type of work that was repetitive would be contraindicated. He still had not changed his instruction to her to be “off work duty completely.”

Although some evidence exists to the contrary, the ALJ was authorized to conclude that Chandler was totally disabled and need not engage in a purposeless demonstration of that disability by seeking work she could not perform. The exception provided in Richardson applies, and the award of benefits was not error in this regard.

2. In two enumerations, appellants assert error relating to the issue of whether Chandler was successfully impeached.

(a) Appellants strongly suggest that the thoracic outlet syndrome diagnosed by Chandler’s authorized treating physician is either a fabrication or was caused by an automobile accident in 1995. They maintain that the ALJ erred in believing Chandler about her symptoms and their causation, given that her credibility was impeached by contradictory statements with regard to her symptoms, as reported to various doctors.

But no evidence was presented indicating that the 1995 vehicular accident caused any injury to Chandler. The record includes statements and notes of various doctors containing information that conflicts in certain respects with Chandler’s testimony. The record also contains testimony from Chandler, however, indicating that certain medical history information recorded in those notes was not related by her and is simply incorrect. Moreover, the ALJ’s award recites that the ALJ carefully weighed and considered all the evidence, which presumably included Chandler’s allegedly inconsistent or contradictory statements.

The ALJ was the factfinder at the hearing. As such, regardless of appellants’ efforts to impeach Chandler, the ALJ had the authority and privilege to believe her testimony. The ALJ’s and the appellate division’s “findings of fact, when supported by any evidence, are conclusive and binding. [Cit.]” Dept. of Public Safety v. Boatright, 188 Ga. App. 612, 614 (373 SE2d 770) (1988).

(b) Appellants maintain that Chandler’s credibility was impugned by her actions in providing false information to the state when she applied for unemployment benefits and the ALJ therefore erred in refusing to consider these actions.

The record shows that Chandler left her job at West Marietta Hardware to care for her terminally ill mother. As the office manager, she completed her own separation notice. She listed lack of work as the reason for termination, which was untrue. The Department of Labor initially granted benefits, but her employer appealed and the decision was reversed.

The ALJ did not refuse to permit appellants to question Chandler about this incident. On the contrary, three witnesses, including Chandler, were all questioned regarding the reasons for her leaving work and her subsequent claim for unemployment benefits. The former general manager testified that he “did look at” the separation notice and he approved it as Chandler had filled it out, because no other stated reason on the form “came close to” the actual reason she was leaving.

(c) Appellants contend the ALJ applied an incorrect legal standard in finding that Chandler had not been impeached. We agree that the ALJ was under a misapprehension concerning the law on impeachment.

The ALJ concluded that to serve as impeachment, “there must be inconsistent statements bearing on material facts of the case at hand or proof of a crime involving moral turpitude,” and that neither was present in this case. He found, therefore, that although Chandler’s actions regarding her termination were not admirable, she had not been impeached.

Although the ALJ correctly stated some of the statutory methods of impeaching a witness, as embodied in OCGA §§ 24-9-80 through 24-9-84, other methods of impeaching a witness are also available. “Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness. A witness may be impeached on a collateral issue which is indirectly material to the issue in the case.” (Citations and punctuation omitted.) Pound v. Medney, 176 Ga. App. 756, 760 (2) (337 SE2d 772) (1985). The questioning at issue here was a permissible attempt to impeach Chandler’s credibility.

It is unclear whether the ALJ’s misapprehension regarding permissible impeachment affected his award. It is entirely possible that had the ALJ known he was permitted to consider this evidence as impeaching Chandler’s credibility, he still would have reached the same conclusion. But it is also possible that he would not. A new hearing is not required, but we must remand this case so that the trier of fact may evaluate the evidence, applying the correct legal standard as to impeachment and credibility.

3. We find no merit in appellants’ contention that the superior court erred as a matter of law in refusing their request to schedule a hearing. Upon appeal to superior court, after transmission of the record, the case “may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court-, provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law,” except under circumstances not present here. (Emphasis supplied.) OCGA § 34-9-105 (b). The statute clearly does not make scheduling a hearing mandatory upon the superior court; the very fact that procedures are outlined for affirmance in cases when no hearing is scheduled underscores the permissive nature of the hearing.

Case remanded with direction.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in Divisions 1 and 2 on the merits of the issues ruled on. I am compelled to concur in Division 3, which focuses on an aspect of appellate procedure in workers’ compensation cases, because the statute does not make the exercise of superior court appellate jurisdiction dependent on even a good faith effort by appellant to pursue, or by the court to afford, that remedy.

Appellants enumerate as error the deprivation of their right to an appeal and decision in the superior court and assert that the superior court refused their request for a hearing and permitted the decision of the board to become affirmed by operation of law.

On May 21, 1996, appellants filed with the board a timely appeal from its award. In full compliance with OCGA § 34-9-105 (b), which governs such appeals, the board transmitted the record to the superior court on June 12, and it was filed in the clerk’s office on June 17. On July 29, more than 60 days from the date the notice of appeal was filed with the board, the superior court filed a “certificate.” It read: “This is to certify that this Court rejected the Employer/Insurer’s request that oral argument be scheduled in the above-referenced appeal from the Appellate Division of the Georgia State Board of Workers’ Compensation. This Court neither heard nor scheduled oral argument in the above-referenced case within sixty days from the date the notice of appeal was filed with the Georgia State Board of Workers’ Compensation, preferring instead that this case be affirmed by operation of law.” A letter to the judge to whom the appeal was assigned indicates that the certificate was filed in response to a request to the judge, in order to memorialize what transpired when appellants sought a hearing.

Thereafter, appellants filed an application for appeal to the Court of Appeals, pursuant to OCGA §§ 5-6-35 (a) (1) and 34-9-105 (d). This Court permitted the appeal to proceed, and appellants duly filed a notice of appeal on September 17.

OCGA § 34-9-105 (b) provides what ostensibly is a right of appeal to the superior court “in the manner and upon the grounds provided in this Code section.” After the record is filed with the clerk, “[t]he case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court.” The latter clause retains in the court the power to set its calendar. If the case is not heard within 60 days or within 20 days after a continued hearing or if the superior court’s dispositive order is not entered within 20 days of the hearing, the decision of the board is affirmed by operation of law.

Before 1988, an appeal to the courts was a matter of right in workers’ compensation cases. Thereafter, and now, it is a matter of discretion. Right of access to the courts for review of the administrative decision was eliminated by the legislature.

In Southeastern Aluminum Recycling v. Rayburn, 251 Ga. 365, 366 (306 SE2d 240) (1983), the Supreme Court construed OCGA §§ 34-9-105 and 5-6-35 to constitute the superior courts as “the courts of last resort as a matter of right in workers’ compensation and other cases.” It explained that in consequence, “[slitting as an appellate court of last resort of right, the superior courts are no longer merely a base which must be touched en route in the course of a workers’ compensation appeal. Under OCGA § 5-6-35 . . ., the superior courts have all of the authority and all of the responsibilities which the appellate courts formerly had in workers’ compensation cases. It therefore is imperative that the hearings in superior courts in workers’ compensation appeals, provided for by law, be conducted in a plenary manner.” Id. Accordingly, the Supreme Court remanded that case to the superior court because the party appealing the board’s award had not been afforded its right to the hearing.

The law in existence at that time did not contain a proviso for the board’s award to become affirmed by operation of law in the event prescribed procedural steps were not taken by the parties or by the court. See OCGA § 34-9-105 (b) (1982).

After the hearing by the Supreme Court in Southeastern Aluminum Recycling, we granted a discretionary appeal. In the course of our opinion we reiterated the long-standing recognition that “[t]he Workers’ Compensation Act was designed to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims. [Cits.]” Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (1) (324 SE2d 194) (1984).

In 1987, the procedure was changed to shorten the time for appeal from 30 days to 20 days. Ga. L. 1987, pp. 806, 808, § 3. In 1988, the law was amended twice. The first time a proviso for automatic affirmance (“considered affirmed”) upon inaction by the superior court was added. Ga. L. 1988, pp. 535, 536, § 1. The second time, the proviso was eliminated. Ga. L. 1988, pp. 1679, 1690, § 20. The next session of the General Assembly saw a return of the automatic affirmance proviso in subsection (b) (“considered affirmed by operation of law”) and the addition in subsection (d) of a time measurement for such affirmances for the purpose of applications to be made pursuant to OCGA § 5-6-35. Ga. L. 1989, pp. 579, 581, § 2. In conjunction with the 1997 amendment (Ga. L. 1997, p. 1367, § 4), that is currently the law.

Before the proviso was added back and expanded, and while the law was as stated in the latter 1989 amendment, this Court ruled that the burden was on the appellant in superior court to ensure a timely hearing, so that a hearing by the superior court outside the time limits was null and void. AT&T Technologies v. Barrett, 195 Ga. App. 675, 676 (395 SE2d 22) (1990).

Nevertheless, later in 1990, the Supreme Court held that the time requirements for the superior court appeal, while technically exceeded, were sufficiently met so as to allow the principle of “fair treatment of the parties and the policy of reaching the merits of a controversy” to prevail over the short and rigid time periods set. Felton Pearson Co. v. Nelson, 260 Ga. at 515. Thus the Court favored superior court review over affirmance of board decision by operation of law.

Thereafter, this Court dealt with applications for review when there was no superior court judgment or order to consider. In Atlanta Family Restaurants v. Perry, 209 Ga. App. 581, 582 (434 SE2d 140) (1993), we granted an application for discretionary appeal, held that the board erred, and ruled that “the dismissal [by the board] should not have been affirmed by the superior court.” The special concurrence pointed out that the superior court had not in fact rendered a judgment, and it highlighted some of the problems with this awkward, drawn-out, and jurisprudentially unsound procedure. Id. at 582-585 (Beasley, P. J., concurring specially). See, for other aspects of this problematic scheme, Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 26-27 (459 SE2d 612) (1995) (Beasley, C. J., concurring specially).

The opinions in Borden, Inc. v. Holland, 212 Ga. App. 820 (442 SE2d 916) (1994), also illustrate the problematic nature of this scheme. A discretionary appeal in this Court was permitted, the judgment of the superior court attempting to rule on the merits of the appeal from the board was reversed as lacking jurisdiction, and neither the employee (who appealed from the board award to the superior court) nor the employer (who appealed with permission to this Court) received a judicial review on the merits of their respective positions.

Likewise in Buschel v. Kysor/Warren, 213 Ga. App. 91 (444 SE2d 105) (1994), it was held that the superior court judgment was a nullity because the statutory time limits were exceeded. But because there was a cross-appeal by the employer, which challenged the award of the board, this Court reviewed the board’s award on the merits. The Court ruled that the board’s award was supported by the evidence and directed the superior court “to issue an order stating the decision of the full board was affirmed by operation of law.” Id. at 95 (5).

Clinical Arts &c. Svcs. v. Smith, 218 Ga. App. 681 (462 SE2d 757) (1995), is an example of a by-pass case. No action on the appeal by the superior court worked an affirmance of the board decision by operation of law, and this Court granted a discretionary appeal. It reviewed the board’s decision directly and concluded that the board had used the wrong standard in considering the evidence. So the Court reversed that decision and “remand[ed] the case to the superior court with directions that the case be recommitted to the appellate division of the Board for review under the proper standard as set forth in [the] opinion.” (Footnote omitted.) Id. at 683.

Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996), is another example of a by-pass case. In the absence of a hearing and decision in the superior court, this Court was compelled to review the decision of the appellate division of the board because the application revealed a possibility of reversible error. As in Clinical Arts, the board decision was reversed and the case remanded, not to the board but to the superior court which had not acted, with direction that the case be recommitted to the board for reconsideration in light of a recent Supreme Court decision.

Does all of this mean that the parties and the superior court each have the option of avoiding superior court review by simply allowing the time to expire? We have countenanced such a practice and construed subsections (b) and (d) of OCGA § 34-9-105 to permit this by-passing of appellate review by the superior court. If an appellant chooses to seek review in the Court of Appeals directly, then appellant need only omit giving notice for a hearing in the superior court. The time will expire, the decision of the board will become the decision of the superior court by operation of law, and appellant may apply for discretionary appeal under OCGA § 5-6-35 (a) (1). By the same token, if the superior court does not wish to hold a hearing or decide the case, it need only refuse to act, as in this case, or refrain from acting. The result in either event is a direct review by this Court, by default, of the award of the workers’ compensation board, if we grant the application. It is a big “if,” and when it is prompted by the inaction or refusal of the superior court, the appellant loses what was once a right to a direct appeal.

This occurs after a long period of non-action while the case simply awaits the ticking of the clock; it measurably delays finality for the claim. If there is no review in the superior court, the statutory dead time from the date of the award of the board’s appellate division is one hundred thirty days, or four months and ten days. OCGA § 34-9-105 (b) and (d). Then, even if an appeal is granted by the Court of Appeals, the statutory time for getting to that point is another seventy days, or two months and ten days. OCGA § 5-6-35 (d), (e), (f) and (g). By the time the superior court clerk has prepared and transmitted the record, appellate briefing, and perhaps oral argument, is accomplished, and the Court of Appeals reaches a decision, up to another year will have passed.

During all of this time, a supersedeas is in effect, and “no [properly insured] employer shall be required to make payment of the award involved in the questions made in the case so appealed until such questions” have been decided. OCGA § 34-9-105 (e). Thus the delay occasioned by the cumbersome process disserves the objective of speedy relief to an injured worker who is entitled to it; plus it increases both the private and public costs of resolution.

. It also destroys a right of access to the courts for the party aggrieved by the administrative body’s final decision, when it is the superior court which chooses not to act. That infringes on the constitutional guarantee that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.

Thus, the superior court can refuse to hear the appeal, and because workers’ compensation cases require an application for appeal pursuant to OCGA § 5-6-35 (a) (1), this Court can refuse to hear the appeal (although it did not do so in this case). If both courts refuse, the party aggrieved by the board’s decision has no judicial remedy at all nor even a right to an explanation of why the courts refuse to consider the case. Thus there is no longer an appeal of right, and the superior courts are once again “merely a base which must be touched en route in the course of a workers’ compensation appeal,” a situation considered an anathema by the Supreme Court in Southeastern Aluminum Recycling, supra, 251 Ga. at 366.

This completely frustrates the goal of prompt resolution of employees’ claims so as to provide financial relief for job-related injuries. It ignores the constitutional mandate for “speedy, efficient, and inexpensive resolution of disputes and prosecutions.” Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. It increases the transactional costs of the case, as filing fees, record copying costs, and attorney fees gather along the way. And it adds to the administrative load of the courts, as two courts are automatically involved in such appeals, one which will not act and the other which may or may not decide the case. If all superior courts were so disposed, then all workers’ compensation cases would be final at the administrative board level, subject to judicial review only at the discretion of this Court in accordance with its policy on discretionary appeals.

Appellate procedure for workers’ compensation cases cries for reform, to simplify and streamline the process which now has five levels, some of which are optional but still are involved, and the possibility of fourteen adjudicators, assuming there is agreement on the three-member panel of this Court with respect to disposition, and counting a petition for certiorari. If the case achieves whole court status in the Court of Appeals, and there is a petition for certiorari, then eighteen adjudicators are involved in the five levels. All for one worker’s claim for workers’ compensation benefits. This procedure, although the law, is at odds with the overruling substantive, traditional, and humane public policy for which the Workers’ Compensation Act ostensibly stands and which was recently reacknowledged by the Supreme Court: “The legislature has determined that [the exclusivity provision] is the quid pro quo for workers receiving a guarantee of prompt benefits for work-related injuries without regard to fault or common-law defenses and without the delay inherent in tort litigation.” Doss v. Food Lion, 267 Ga. 312, 313 (2) (477 SE2d 577) (1996).

It is believed that in this Court’s 90-year history, no case has been affirmed by operation of law but has received consideration and action by the Court, as required by the Georgia Constitution. Ga. Const. of 1983, Art. VI, Sec. IX, Par. II. So long as the superior courts have initial jurisdiction of appeals in workers’ compensation cases, that jurisdiction should be exercised as well.

Remand for hearing in the superior court in this instance would achieve no purpose because appellants have now had their day in court on the merits of their appeal. Had we denied their application, their only recourse would have been a petition to the Supreme Court of Georgia for certiorari. Although appellants have not been harmed as a matter of law, all parties have borne significant costs attributable to the complex process.

Decided July 16, 1997.

Drew, Eckl & Farnham, John C. Bruffey, Jr., Thomas L. Walker, for appellants.

James A. Shea, Jr., for appellee.

       Prior to July 1, 1997, the 60 days was to be measured from the date the notice of appeal was filed with the board. The law was amended to provide that the 60-day period be measured from the date of docketing in the superior court, thus recognizing that a more realistic date for measurement of the time during which the superior court could hold a hearing was the date the case arrived in the superior court. The amendment thus gives a full two-month period for the superior court to hear the case. Ga. L. 1997, p. 1367, § 4. This resolves the problem noted by the two appellate courts in a 1990 case, Nelson v. Felton Pearson Co., 195 Ga. App. 92, 93 (392 SE2d 274) (1990), rev’d, Felton Pearson Co. v. Nelson, 260 Ga. 513, 514, n. 1 (397 SE2d 431) (1990). The inequity was also pinpointed in Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990), and illustrated by Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991). Another aspect of inequity in the procedure is noted in Coronet Carpets v. Reynolds, 199 Ga. App. 383 (405 SE2d 103) (1991).

       The Supreme Court reversed the Court of Appeals decision, Nelson v. Felton Pearson Co., 195 Ga. App. 92, which had held that the board’s award was affirmed by operation of law so that the superior court’s reversal of the board’s award was deemed beyond that court’s authority. The ultimate result was reinstatement of the reversal, but it is not reported whether employee Nelson again sought a discretionary appeal, this time on the merits. Nelson’s first appeal to the Court of Appeals raised by enumeration of error only the issue of the superior court’s jurisdiction to act. See Nelson v. Felton Pearson Co., 198 Ga. App. 532 (402 SE2d 807) (1991).

       Although the Court in the instant case does not give procedural direction but simply remands the case, I assume that because of the ruling in Division 2 (b), it is to be remanded to the superior court to be remanded to the appellate division of the board to be remanded to the administrative law judge for further consideration. Thereafter the whole process can begin anew.

       The procedurally tortured case of Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997), bears witness to this morass. The ALJ decided the case. The appellate division reversed, but the superior court reversed and remanded to the board. The appellate division again reversed the ALJ. The superior court again reversed and remanded to the appellate division, and this time with direction to remand to the ALJ. An application for discretionary appeal to this Court from the superior court was denied, but a petition for certiorari in the Supreme Court was granted, and that Court granted the application for discretionary review. It concluded that the superior court had erred and should have affirmed the second award of the appellate division of the board. Thus, all told, five levels of process and fourteen statutory decision-makers entered into the resolution of Beavers’ claim for workers’ compensation.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A0775.
    KNOX v. THE STATE.
    (489 SE2d 582)
   Smith, Judge.

Lotus Knox was convicted by a jury of four counts of aggravated assault with a deadly weapon. OCGA § 16-5-21 (a) (2). Judgment was entered on the jury’s verdict, and Knox appeals. He raises two enumerations of error, both addressing the trial court’s refusal to grant a continuance. Because Knox did not meet all requirements of OCGA § 17-8-25, the trial court did not abuse its discretion in denying the motion, and we therefore affirm.

Construed to support the verdict, evidence was presented that the victim was hanging pictures inside his apartment when he heard a loud knock at his door. His mother, grandmother, and niece were inside the apartment, either in the living room where he was hanging pictures or in the nearby dining room. He opened the door, and Knox gave him a bag of clothes to give to a mutual friend. The victim closed the door and heard another loud knock approximately 20 seconds later. He opened it and saw Knox “standing there with a gun pointed directly at me.” Knox stated, “This is for you and your mother” and fired the gun. The victim slammed the door, picked up a hammer from the couch, and ran outside after Knox. He struck Knox with the hammer, the two men struggled, and Knox eventually fled.

Mid-trial, after the State rested its case, Knox requested a continuance to find his sole defense witness. His attorney stated he did not learn until the night before the trial began of the witness’s material testimony — that the victim told the witness that the victim had a hammer in his hand when he opened the door, “ready to defend himself.” According to defense counsel, he released the witness from the subpoena on August 26 but told him to “return first thing in the morning.” The trial court denied the motion on the ground that Knox acted in bad faith by failing to provide a list of witnesses to the State until the day of trial.

Knox contends that discovery abuse was not a proper basis for denying the request for a continuance. But regardless of whether the alleged violation of the reciprocal discovery statute, OCGA § 17-16-1 et seq., was a basis for denying Knox’s motion, the trial court’s ruling was correct. Knox’s motion was deficient under OCGA § 17-8-25. Before a continuance due to a witness’s absence may be granted, the movant must show that the witness has been subpoenaed; that the witness does not reside more than 100 miles from the place of trial; that testimony of the witness is material; that the witness is not absent by permission of the movant; that testimony of the witness can be procured by the next term of court; and that the motion is not made for dilatory purposes. The movant must also state the facts expected to be proved by the witness. OCGA § 17-8-25; Caver v. State, 215 Ga. App. 711, 712 (2) (452 SE2d 515) (1994). Each of these requirements must be met before this Court may review a trial judge’s discretion in denying a motion for continuance based on the absence of a witness. Eze v. State, 195 Ga. App. 503 (2) (393 SE2d 758) (1990).

Denial of the motion was correct on several bases. First, defense counsel showed only that he had “somebody going out to [the witness’s] house right now looking for him” and that the witness would go into work at 6:00 p.m. that night, where he could be reached by telephone. This fell short of showing that the witness could be procured by the next term of court. See generally Garrett v. State, 202 Ga. App. 463 (414 SE2d 693) (1992). Knox also did not show that the witness’s testimony was material. His counsel claimed the witness would testify that Williams came to the door with the hammer in his hand. Some evidence was presented of this fact, however, through the prior written statement of one of the State’s witnesses and through testimony on cross-examination of the investigating police officer. The absent witness’s testimony was therefore merely cumulative, which provided yet another valid basis for the trial court’s refusal to grant a continuance. See Stafford v. State, 187 Ga. App. 401, 402 (2) (370 SE2d 646) (1988). Finally, we note that Knox’s attorney stated prior to trial that he was ready to proceed with the trial, thus waiving any right to a continuance. See Raines v. State, 186 Ga. App. 239, 240 (366 SE2d 841) (1988). Because Knox failed to meet all requirements of OCGA § 17-8-25, the trial court did not err in denying his motion for a continuance.

Decided July 16, 1997

Richard D. Hobbs, for appellant.

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

Judgment affirmed.

McMurray, R J., and Beasley, J., concur.

       The day Knox’s trial began, before a jury was selected, the State raised an issue concerning defense counsel’s failure to provide a witness list. Defense counsel stated that he had only one witness that he “may or may not be able to call and may not want to call.” After the trial court expressed its concern about counsel’s refusal to answer questions concerning the witness’s expected testimony, counsel finally stated that he expected that the witness “may” contradict the victim’s statements. The trial court indicated a willingness to consider continuing the trial “so as to insure the defendant getting this witness in and giving the State an opportunity to interview the witness” but also cautioned that the trial would proceed if defense counsel failed to provide “any kind of real answer ... to any of my questions.” No continuance was requested at that time. In fact, defense counsel stated, “I’m ready to proceed.”


author: Smith, Judge. Beasley, Judge, McMurray, Presiding Judge,

text:
    A97A0776.
    A97A0777.
    PRESTON v. GEORGIA POWER COMPANY et al. INSURANCE COMPANY OF NORTH AMERICA v. GEORGIA POWER COMPANY et al.
    (489 SE2d 573)
   Smith, Judge.

While cleaning a railroad freight car, Roy Preston was grievously injured by contact with a high-voltage power line. He sought damages from Georgia Power Company, the owner of the power line, and Ashland Chemical Company, for which he was working at the time of the incident. Insurance Company of North America (“INA”) intervened seeking to enforce its subrogation rights under OCGA § 34-9-11.1 (b) for its payment of workers’ compensation benefits to Preston.

The trial court granted summary judgment to Ashland and Georgia Power. Preston originally appealed to the Supreme Court because he contended the constitutionality of the High-voltage Safety Act, OCGA §§ 46-3-30 through 46-3-40, was called into question. Ashland moved to transfer the appeals to this Court, and Preston opposed the transfer on the ground that a constitutional issue had been raised and ruled upon by the trial court in an earlier order, as to which the Supreme Court had refused interlocutory review. The Supreme Court granted Ashland’s motion to transfer the appeals to this Court on the ground that the trial court decided no constitutional issue in the order appealed from. See Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

The trial court granted summary judgment to Ashland on the ground of the workers’ compensation tort bar and to Georgia Power on the ground of lack of proximate cause. Because Preston was a “borrowed servant” of Ashland at the time of his injury, and because Georgia Power was protected by Ashland’s lack of notice of a hazardous activity under the High-voltage Safety Act, we affirm.

The evidence, construed in Preston’s favor, shows the following: Ashland received bulk chemicals via railcar on a siding between its plant and a power line running parallel to the plant wall and the siding. Occasionally, chemicals became clogged in the hoppers of the railcar, and Ashland employees were instructed to clean out the rail-car from the top. It is undisputed that for many years Ashland’s accepted method of cleaning railcars was to lower an employee into the car in a safety harness with a broom or shovel. In May 1992, Ash-land’s environmental health and safety department recommended a change in this method because of the potential danger of lowering an employee into a confined space with chemical dust. Some time after this recommendation, Ashland began using a shovel or spader on a 20- to 22-foot metal pole so that employees could stand on top of the railcars to remove the residue. Ashland employees used this spader “long-ways,” with the pole parallel to the length of the railcar, because they were aware they could be hurt by the power lines.

On June 22, 1993, Preston was working for Ashland as a temporary employee assigned by ProTemps, a temporary labor agency. Preston was given the spader and instructed to clean out a railcar. This violated Ashland’s policy that no temporary employees were to be allowed on top of railcars. Preston was not given any instructions in the use of the spader. Although he testified he did not see the power lines, he agreed there was nothing to prevent his seeing them and he knew it would be dangerous to touch power wires with a pole. While standing on top of the railcar, he swung the pole at right angles to the track and contacted the power lines, suffering severe personal injury. The power lines were between 26 and 28 feet above the ground and approximately 11 feet to one side of the railroad track; the diagonal clearance was measured at approximately 13 feet from the top of the railcar.

Ashland employees testified that they knew of no personal injury from the power lines on Ashland’s premises before Preston was hurt. No evidence was presented that Georgia Power knew Ashland had begun using a 20- to 22-foot metal pole in the vicinity of existing power lines. No witness testified that Georgia Power personnel were present at Ashland on previous occasions when railcars were on the track, when unloading operations were taking place, or when the spader was being used. Georgia Power was never notified that the spader would be used or that work was to be performed within ten feet of its lines.

1. With respect to Preston’s claims against Ashland Chemical, the only issue is the application of the workers’ compensation tort bar, OCGA § 34-9-11 (a). At the time of his injury, Preston was a temporary laborer assigned by his employer, ProTemps, to Ashland Chemical. Ashland contends that it is protected by the statutory bar because Preston was its borrowed servant at the time of his injury. Ashland presented testimony that Preston was under its exclusive supervision and control while working at its facility with respect to the work performed by Preston and its power to discharge him.

Preston, however, points to the testimony of an Ashland “compliance specialist” or safety officer agreeing that he “wouldn’t have a problem with” ProTemps substituting another ProTemps worker in Preston’s place, and the testimony of an Ashland manager that Pro-Temps would do the actual firing if Ashland became dissatisfied with Preston. This testimony, he contends, forestalls summary judgment on the issue of whether he was a borrowed servant at the time of bis injury.

“[I]n order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant.” (Citations and punctuation omitted.) Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). “[A]ll three prongs of the test must focus on ‘the occasion when the injury occurred’ rather than the work relationship in general.” Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988). Because a temporary labor service “is in the very business of temporarily ‘loaning’ its employees to others[,] [cits.],” Sheets v. J. H. Heath Tree Svc., 193 Ga. App. 278, 279 (387 SE2d 155) (1989), this Court has repeatedly considered the employment status of such agency employees. See, e.g., Staffing Resources v. Nash, 218 Ga. App. 525, 526 (462 SE2d 401) (1995); Sheets, supra; Stephens, supra. The crucial issue here is whether the extent of control retained by ProTemps over Preston is sufficient to void the third part of the “borrowed servant” test: the exclusive right to discharge.

The Ashland manager’s testimony that ProTemps would do the actual firing at the request of Ashland does not show a nonexclusive power to discharge; that theory was expressly addressed and rejected in Nash, supra at 526. Here, we must decide whether the Ashland employee’s testimony that he would not object to ProTemps’s removing Preston and substituting another temporary worker in his place deprives Ashland of its exclusive power to discharge as described in Nash, Sheets, and Stephens. We conclude that it does not.

Even if ProTemps retained some authority to remove Preston from his position at Ashland, the power of the general master to reassign or discharge a borrowed servant is irrelevant to the servant’s employment status with the special master. In Six Flags, supra, the Supreme Court defined the special master’s “exclusive right to discharge” the borrowed servant as the power to unilaterally discharge from working on the specific task assigned by the special master and from working for the special master. Six Flags, supra at 378 (1).

In Stephens, supra, relying on the holding in Six Flags, this Court reiterated that the focus of the borrowed servant test must be the special master’s control at the time of the injury, rather than generally, and that this is also true of “the rights of the special master to discharge the servant and to put another in his place.” (Citation and punctuation omitted.) Stephens, supra at 7-8. With respect to Preston, ProTemps “obviously retained some control over him, including the right to terminate his employment as its ‘lendable servant.’ However, once there was an assignment of appellant to a special master, [ProTemps] relinquished that control during the existence of the ‘borrowed servant’ relationship.” Sheets, supra at 279.

This result is consistent with our earlier holding in Jarrard v. Doyle, 164 Ga. App. 339, 340 (297 SE2d 301) (1982). In Jarrará, a hotel employee was temporarily assigned to assist a contractor in performing repair work on the hotel and therefore became a borrowed servant of the contractor. Even though the hotel retained some authority over its employee and “could have taken him off the project and assigned him to other work at any time,” id. at 340, the contractor, as the special master, “clearly had the exclusive right to control and direct the plaintiff’s work on the particular task in question, as well as to dismiss him from that task for unsatisfactory performance” because “the right to discharge that the special master must have means the right to discharge the servant from that particular work.” (Citations and punctuation omitted.) Id. at 340 (1).

Undisputed testimony was presented that Ashland had unilateral authority to discharge Preston from the work assigned to him; on the morning in question it removed Preston from his task of labeling cans and directed him to clean the railcar. It could do so without the permission of ProTemps; a ProTemps officer, by affidavit, stated that ProTemps had no authority to countermand such an order. Because Ashland had this unilateral right to discharge Preston from the particular work he was engaged in at the time of his injury, the trial court did not err in holding that Preston was a borrowed servant and that his claim was barred by OCGA § 34-9-11 (a).

2. Preston also complains of the trial court’s grant of summary judgment in favor of Georgia Power on the ground of lack of proximate cause. We need not address Preston’s contention because summary judgment was proper under OCGA § 46-3-39 (a); Ashland and Preston failed to notify Georgia Power of work taking place within ten feet of its line.

We cannot, as the dissent asserts, attempt to examine the motives of the Supreme Court in first denying an interlocutory application on the constitutionality of the High-voltage Safety Act and then transferring these appeals to this Court. The dissent is incorrect in its conclusion that the transfer of these appeals to this Court is dispositive of any constitutional issue or circumscribes our authority to rule on an issue that was raised and argued below. See Atlanta Independent School System v. Lane, 266 Ga. 657 (469 SE2d 22) (1996) (transfer of case to Court of Appeals not dispositive of constitutional issues). It is also incorrect in its assertion that Preston will be unable to raise this issue at a later time. While Preston’s interlocutory application to the Supreme Court on the constitutional issue was denied, he will have yet another opportunity to raise it on certiorari.

Under the authority of Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980), the Supreme Court had the power to review the constitutional issue raised in the Court’s earlier interlocutory order when these appeals were filed. It apparently has declined to do so by transferring the appeals to this Court. We note, however, that the constitutional issue raised by Preston appears irrelevant. Preston’s sole constitutional ground asserts that the High-voltage Safety Act is unreasonable, arbitrary, and capricious because it fails to require the utility to identify which of its lines are high-voltage lines. But a filed and recorded public document in which Ashland granted an electrical power easement to Georgia Power clearly identifies the voltage of the power lines and demonstrates that Ashland had actual notice of the high voltage. In light of the evidence that Ashland was required to give notice to Georgia Power and was aware of the high voltage carried by the power lines, Preston’s lack of knowledge is immaterial to the application of O'CGA § 46-3-39 (a).

Whatever the reasons for the transfer, the applicability of the High-voltage Safety Act was raised and fully briefed below and is before us now. We cannot decline to decide this issue by speculating on the reasons for the Supreme Court’s transfer as specifically forbidden by that Court in Lane. We therefore consider the applicability of the High-voltage Safety Act to this case.

Several interlocking provisions of the High-voltage Safety Act set out the duties of persons responsible for performing work near high-voltage lines. OCGA § 46-3-33 provides in pertinent part: “No person, firm, or corporation shall commence any work as defined in paragraph (6) of Code Section 46-3-32 if at any time any person or any item specified in paragraph (6) of Code Section 46-3-32 may be brought within ten feet of any high-voltage line unless and until: (1) The person responsible for the work has given the notice required by Code Section 46-3-34.” OCGA § 46-3-34 (b) provides: “Where work is to be done, the person responsible for such work shall give notice to the utilities protection center during its regular business hours at least 72 hours, excluding weekends and holidays, prior to commencing such work.”

The High-voltage Safety Act provides a restriction on liability in OCGA § 46-3-39: “(a) The owner or operator of high-voltage lines shall not be liable for damage or loss to person or property resulting from work within ten feet of high-voltage lines unless notice has been given as required by Code Section 46-3-34 and the owner or operator of the high-voltage line has failed to comply with the provisions of Code Section 46-3-33. (b) Except as provided in subsection (a) of this Code section, nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.”

In refusing to grant summary judgment to Georgia Power on the basis of OCGA § 46-3-39 (a), the trial court relied upon a number of decisions that predate extensive and substantial amendments to the High-voltage Safety Act. Ga. L. 1992, p. 2141, § 1. Before the 1992 amendment, the Supreme Court of Georgia construed the High-voltage Safety Act to hold that even if the Act were violated, the utility nevertheless must show that the lines were properly located and maintained in order to bar recovery. Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983). In so holding, the Supreme Court pointed to the language of former OCGA § 46-3-38 (Code Ann. § 34B-209), which provided in its entirety: “‘Nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.’ [Cit.]” Id. at 569. Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675) (1993), relied upon by the trial court, expressly stated that the earlier version of the High-voltage Safety Act was applicable in that case. Id. at 100. While the date of the incident in Leonardson v. Ga. Power Co., 210 Ga. App. 574, 575, n. 1 (436 SE2d 690) (1993), is not revealed, the decision simply relies upon Malvarez and does not note the 1992 amendment.

The language of the former Act provided no express restriction on liability like that now codified in OCGA § 46-3-39 (a). It simply forbade the performance of certain work near high-voltage lines without notification and without the completion of certain safety measures. See former OCGA §§ 46-3-31 (Code Ann. § 34B-202); 46-3-32 (Code Ann. § 34B-203); 46-3-33 (Code Ann. § 34B-205). On this basis, Malvarez and its progeny held that the failure to obey these provisions of the Act did not of itself relieve the utility from liability. Malvarez, supra at 569.

The 1992 amendment of the High-voltage Safety Act revised the Act in large part and significantly altered the language relied upon in Malvarez. The amendment for the first time provided an explicit restriction on liability and added language that expressly exempts that restriction from the provision that the power line owner’s or operator’s duty or degree of care is not limited or reduced by the Act. See OCGA § 46-3-39 (a), (b).

Under the rules of statutory construction, we must construe all related statutes together, give meaning to each part of the statute, and avoid constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996). Moreover, we must presume that at the time the 1992 amendment was enacted the legislature was aware of the existing law and the Malvarez decision. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400 (297 SE2d 462) (1982). The legislature expressly revised the statute to avoid the result in Malvarez; we must conclude that they intended to do so. This conclusion is consistent with this Court’s recent holding in Callaway v. Crown Crafts, 223 Ga. App. 297, 299 (3) (477 SE2d 435) (1996) (physical precedent only), in which we applied the High-voltage Safety Act, as amended, to relieve the owner of a high-voltage line from liability.

A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993); see Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). Because Georgia Power was protected under OCGA § 46-3-39 (a) by Preston’s and Ashland’s failure to give the appropriate notice, the trial court correctly granted summary judgment in favor of Georgia Power.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Eldridge, J., concur. Beasley, J., concurs specially. Ruffin, J., concurs in the judgment only. McMurray, P. J, dissents.

Beasley, Judge,

concurring specially.

I concur fully in Division 1, but I do not concur fully in Division 2.

For one thing, I do not agree that Preston will have an opportunity to pursue his claim of unconstitutionality of the High-voltage Safety Act on petition for certiorari. If the Supreme Court grants his petition, should he file one, its review will be limited to this Court’s rulings, as it will be this Court’s action and not that of the superior court which will be subject to review. As stated in Daniels v. State, 248 Ga. 591, n. 1, 592 (285 SE2d 516) (1981), when a petition for certiorari is granted and the case is before the Supreme Court, “in its discretion [that] court can consider any matter presented to or decided by the Court of Appeals.” Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980) is an illustration. The Constitution provides that “The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.” Ga. Const. 1983, Art. VI, Sec. VI, Par. V. The scope of certiorari, then, is comprised of matters presented to or decided by the Court of Appeals.

This Court cannot decide the constitutionality vel non of a statute (Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1)), and the matter was not and, for the jurisdictional reason, could not be presented to us. In fact, the issue was presented to the Supreme Court by appellant, but it transferred the case to the Court of Appeals. Even if, as a matter of jurisdictional jurisprudence, the Supreme Court could reach around the Court of Appeals decision and take up on certiorari an issue decided only by the superior court and outside the competency of the Court of Appeals, it is unrealistic to propose that it would do so. Had the Supreme Court viewed the constitutionality issue properly before it on the appeal taken directly to it by appellant, it would have been compelled by the constitution to accept the case because of its exclusive jurisdiction of such matters. Ga. Const; 1983, Art. VI, Sec. VI, Par. II (1). Instead, it transferred the appeal to this Court. Preston’s claim in this regard has effectively been foreclosed. The trial court denied plaintiff Preston’s motion to strike Georgia Power Company’s defense founded on the Act, which motion was based in part on the charge that the Act was unconstitutional. Preston argued that it violated his rights to equal protection and due process. Although he referred to both the federal and the state constitutions, he did so generally and without any citation to specific provisions. The trial court did not expressly differentiate in its ruling either, although it ruled that Preston had no standing to complain of the lack of equal protection, and it ruled that federally protected due process was not contravened by the Act. The court granted a certificate of immediate review at plaintiff’s request, but the Supreme Court denied interlocutory appeal. It did not explain its denial.

The Supreme Court has now transferred to this Court Preston’s appeal from the order granting both Ashland’s and Georgia Power Company’s motions for summary judgment. In that order, the trial court noted: “Plaintiff also raises constitutional challenges to the High Voltage Safety Act on equal protection and due process grounds. This court has already ruled adversely to plaintiff on these constitutional issues in the order filed November 17, 1994.” Thus, the trial court reiterated and confirmed its ruling on constitutionality and made it part of the summary judgment order as well. That ruling was necessary to its ruling on the remaining grounds, which depended upon an application of the Act; had it been unconstitutional, Georgia Power Company would not have been entitled to summary judgment.

This Court could not have addressed the issue of constitutionality, for lack of subject matter jurisdiction, and the transfer to this Court merely means that the Supreme Court has discerned some reason it need not exercise its exclusive jurisdiction over the constitutionality issue. In the words used in Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996), “[the] transfer merely represents [the Supreme Court’s] determination that [this] was not a case involving a constitutional issue over which [it] had exclusive jurisdiction.” Id. This does not mean that the constitutional issue does not have merit. Id. at 658.

The Supreme Court’s order states that the case is transferred to this Court “[b]ecause the issue on which the trial court granted summary judgment . . . does not fall within the jurisdiction of this Court.” The constitutionality issue falls by the wayside.

On another subject, I must point out that I do concur in footnote 4. In 1992, the general liability of owners and operators of high-voltage lines was eliminated in the ten-foot circumstances described in OCGA § 46-3-39 (a). Because of the 1992 amendments to the High-voltage Safety Act, the liability for injury or damage caused by improperly located or improperly maintained lines which is discussed in Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983), applies only to instances outside the exception created in subsection (a). See OCGA § 46-3-39 (b). The date of the accident in Callaway v. Crown Crafts, 223 Ga. App. 297 (477 SE2d 435) (1996) was after the effective date of the 1992 amendments.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as to Division 2 of the majority opinion because, in my view, a fair and sensible reading of the Supreme Court’s order transferring the cases sub judice to the Court of Appeals precludes this Court’s review of any issue concerning application of the 1992 amendment to Georgia’s High-voltage Safety Act, OCGA § 46-3-39 (a). I believe the unique procedural circumstances in these cases (both in the trial court and on appeal) take the trial court’s summary judgment order outside the “right for any reason” rule and focuses this Court on the sole basis of the trial court’s order granting summary judgment to Georgia Power Company, i.e., proximate cause. And as to this issue, I would vacate that part of the trial court’s judgment granting summary judgment to Georgia Power and remand the case to the trial court, because Roy Preston’s attorneys were unfairly blind-sided by the proximate cause issue while defending the sole basis of Georgia Power’s motion for summary judgment, “whether the action against [Georgia Power] is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992.”

Although the trial court rejected Roy Preston’s constitutional challenge to OCGA § 46-3-39 (a) in an earlier interlocutory order, the trial court concluded on summary judgment that this 1992 amendment to Georgia’s High-voltage Safety Act does not preclude Preston’s claims against Georgia Power. The trial court, nonetheless, granted summary judgment based on a finding that Georgia Power’s noncompliance with the National Electric Safety Code was not a proximate cause of Roy Preston’s injuries. This procedural posture is the basis for the following transfer order entered by the Supreme Court of Georgia: “Because the issue on which the trial court granted summary judgment in these cases does not fall within the jurisdiction of this Court, the appeals are hereby transferred to the Court of Appeals. All the Justices concur, except Sears, J., who dissents.”

I believe the Supreme Court of Georgia’s transfer order removes this Court’s authority to apply OCGA § 46-3-39 (a) based on the “right for any reason” rule and focuses this Court’s review to the sole basis of the trial court’s order granting summary judgment to Georgia Power, i.e., proximate cause. Saying otherwise precludes Roy Preston’s right to challenge the constitutional validity of the very Code subsection which is the basis of the majority’s opinion, OCGA § 46-3-39 (a). I, therefore, believe it appropriate to zero-in on the trial court’s ruling that Georgia Power’s noncompliance with the National Electric Safety Code was not a proximate cause of Roy Preston’s injuries.

“ ‘Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. (Cit.) “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. (Cits.)” (Cit.)’ Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). ‘ “The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” . . . (Cit.)’ (Emphasis supplied.) Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143) (1992).” Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274).

Georgia Power narrowed the scope of its motion for summary judgment with the following statement in its supporting brief: “The sole issue raised by Georgia Power’s Motion for Summary Judgment is whether the action against it is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992. It is believed that this is the first occasion for the new Act to be construed.” Although the trial court rejected this assertion, Roy Preston was blind-sided by the proximate cause issue in the trial court’s summary judgment order. That is to say, Roy Preston’s attorneys were simply not given a fair opportunity to address the fact-intensive proximate cause issue in the trial court because they were concentrating on Georgia Power’s sole request for the trial court to resolve “whether the action against it is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992.” Since proximate cause is a matter which should be resolved only in plain,, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810), I believe Roy Preston’s attorneys should be provided an opportunity to refine the evidentiary record and do whatever else is necessary to defend the proximate cause issue in the trial court. I stand firm in this view because, even though the evidentiary record in- the case sub judice appears well developed, I believe it unfair to hit a person from the left (so to speak) when that person is defending a blow from the right.

Decided July 16, 1997

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., Preyesh K. Maniklal, Hyatt & Hyatt, John M. Hyatt, for appellant (case no. A97A0776).

Drew, Eckl & Farnham, James M. Poe, Suzanne V. Sanders, James K. Creasy III, for appellant (case no. A97A0777).

Troutman Sanders, Robert L. Pennington, Scott A. Farrow, for appellees.

I would vacate that part of the trial court’s judgment granting summary judgment in favor of Georgia Power and remand the case to the trial court.

       In its appeal, Case No. A97A0777, INA has adopted and incorporated by reference Preston’s briefs.

       Although we do not reach the issue, the dissent is also incorrect in its adoption of Preston’s claim that he was “blind-sided” by the trial court’s grant of summary judgment on the issue of proximate cause. While the parties’ initial briefs on summary judgment focused on the High-voltage Safety Act, issues of negligence and proximate cause were fully briefed and litigated below in supplemental briefs by both parties.

       “ ‘Person responsible for the work’ means the person actually doing the work as well as any person, firm, or corporation who employs and carries on his payroll any person actually doing the work or who employs a subcontractor who actually does the work.” OCGA § 46-3-32 (3). “ “Work’ means the physical act of performing or preparing to perform any activity under, over, by, or near high-voltage lines.” OCGA § 46-3-32 (6).

       The special concurrence in Callaway incorrectly applied Malvarez, supra, and its progeny without reference to the 1992 revisions of the Act. Callaway, supra at 300 (2).

       Even so, I cannot go along with the majority’s view that OCGA § 46-3-39 (a) nullifies the Supreme Court’s holding in Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145),. “that lack of... notification [under OCGA § 46-3-34] is a bar to recovery only where the lines are ‘otherwise properly located and maintained.’ Carden v. Ga. Power [Co., 231 Ga. 456, 457 (202 SE2d 55)].” Malvarez v. Ga. Power Co., 250 Ga. 568, 569, supra. As Judge Beasley accurately pointed out in a special concurrence in Callaway v. Crown Crafts, 223 Ga. App. 297, 300 (2) (477 SE2d 435), the Malvarez rule recognizes the distinct duty imposed upon one maintaining high-tension lines to “ ‘maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them.’ (Emphasis omitted.) [Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299)].” Callaway v. Crown Crafts, 223 Ga. App. 297, 300 (2), supra. Since there is evidence in the cases sub judice that Georgia Power did not comply with this duty by failing to maintain its power line within standards prescribed by the National Electric Safety Code, I believe genuine issues of material fact remain as to Georgia Power’s liability (breach of duty) for any such noncompliance.


author: Judge Harold R. Banke. Ruffin, Judge,

text:
    A97A0828.
    SYSCO FOOD SERVICES, INC. v. COLEMAN.
    (489 SE2d 568)
   Judge Harold R. Banke.

Charlton Real Estate, Inc. d/b/a Charlton Club South ("Charlton Club”) purchased food and kitchen supply items from Sysco Food Services, Inc. ("Sysco”). After Charlton Club purportedly defaulted on payments due on the account, Sysco sued Teresa Coleman, alleging that she was liable under an individual personal guaranty. To its complaint, Sysco attached copies of invoices, the new account form, the terms agreement, and an individual personal guaranty. In her answer, Coleman denied signing the individual personal guaranty.

The terms agreement identifies the "purchaser” as The Charlton Club South. An individual personal guaranty form appears on the lower half of the same page as the terms agreement. It is undisputed that on this individual personal guaranty, the name of the principal debtor (_“Company”) and name of the person individually guaranteeing the indebtedness are left blank.

The trial court determined that the omission of the name of the principal debtor violated the statute of frauds and made the guaranty unenforceable. The court found that the omitted information could not be supplied by parol evidence or by contemporaneous writings. Consequently, the trial court granted Coleman’s motion for judgment on the pleadings.

A personal contract of guaranty must be in writing and must satisfy all of the requisites of the statute of frauds, OCGA § 13-5-30 (2). Here, the sole question is whether the writing in question, which left blank both the name of the principal debtor (_“Company”) and the name of the person individually guaranteeing the indebtedness, is sufficient to satisfy the statute of frauds.

In an unbroken line of authority, this Court has consistently held that where a guaranty omits the name of the principal debtor, it is unenforceable as a matter of law. Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982) (failure of document to state the identity of the entity whom guarantor agreed to indemnify is fatal). See Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992) and Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259, 260 (411 SE2d 87) (1991).

Even where the intent of the parties is manifestly obvious, where the name of the principal debtor is omitted from the document, the agreement is not enforceable because it fails to satisfy the statute of frauds. Taylor, 164 Ga. App. at 128. See Foures, 201 Ga. App. at 259 (where guaranty agreement left blank the name of the debtor, the contract is unenforceable even if omission was due to a scrivener’s error). See also Ellis, 204 Ga. App. at 704 (omission of identity of principal debtor made contract of guaranty unenforceable as a matter of law).

Notwithstanding Sysco’s argument to the contrary, the contemporaneous writing rule, even if applicable, would not authorize a different result. Compare Duke v. KHD Deutz &c. Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996) (use of contemporaneous writings permitted to resolve ambiguity where statute of frauds not implicated because guaranty contained all essential terms). Although the “Terms Agreement” and “Individual Personal Guaranty” appear on the same paper, the two sections do not incorporate each other by reference or use the same terms. The terms agreement refers to “seller” (Sysco Corporation and any of its subsidiaries and affiliated entities) and “purchaser” (The Charlton Club South). In contrast, the individual personal guaranty refers to “company” (unidentified, unnamed) and “seller” (Sysco Corporation and each of its subsidiaries and affiliated entities). Compare Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984) (three contemporaneously executed written agreements could be construed together to determine terms and conditions of option to purchase realty).

The trial court correctly found that in order to determine the identity of the “company” debtor, it would have to make inferences and consider impermissible parol evidence. See Sawyer v. Roberts, 208 Ga. App. 870, 871 (432 SE2d 610) (1993) (parol evidence inadmissible to supply any missing essential elements of a contract required by the statute of frauds to be in writing); Taylor, 164 Ga. App. at 128. OCGA § 10-7-3 expressly prohibits the extension of a suretyship contract by implication or by interpretation.

Judicial construction of the contract of guaranty at issue is improper because this defect cannot be treated as an ambiguity. While parol evidence may be admitted to explain ambiguities in descriptions, it cannot be admitted to supply a description entirely omitted. Taylor, 164 Ga. App. at 128. Compare Murray v. Pratt-Dudley Builders Supply, 176 Ga. App. 225 (335 SE2d 443) (1985) (statute of fraud problem not created because the creditor was not seeking to enforce a guaranty made on behalf of an unnamed, unspecified debtor).

Sysco’s reliance on Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897 (324 SE2d 746) (1984) is misplaced. Schroeder neither authorizes nor requires a different result. In that case, the guaranty agreement contained a clear statement of agreement and properly identified the subject matter of the debt as well as the identities of the promisee and promisor. We rejected Schroeder’s contention that the contract of guaranty was unenforceable because it omitted the amount owed and the terms of payment. Inasmuch as the exact amount of the debt on an open account was not determinable at the time of the guaranty’s execution, we found that the guaranty satisfied the statute of frauds. Id. at 899.

The guaranty at issue was drafted by Sysco. It was incumbent upon Sysco to ensure that all the essential terms were completed before Coleman signed the form. This Sysco failed to do. Compare Duke, 221 Ga. App. at 453 (where guaranty contained all essential terms, contemporaneous writings could be considered to resolve latent ambiguity). Nor did Sysco object to Coleman’s failure to raise the statute of frauds defense in her responsive pleading as required by OCGA § 9-11-8 (c). By acquiescing to Coleman’s use of this defense in the motion for judgment on the pleadings, Sysco waived any applicable objection. See Bowers v. Howell, 203 Ga. App. 636, 637 (1) (417 SE2d 392) (1992). Further, after Coleman raised the statute of frauds defense in the motion for judgment on the pleadings, nothing prevented Sysco from amending its complaint to allege some other alternative theories of recovery such as quantum meruit or unjust enrichment.

This Court has consistently treated guaranties containing latent or patent ambiguities differently from those involving the omission of an essential term required by the statute of frauds to be in writing. OCGA § 13-5-30 (2). Regardless of why the omission occurred, it rendered the purported guaranty defective and unenforceable as a matter of law. Ellis, 204 Ga. App. at 705 (2); Foures, 201 Ga. App. at 259-260; Taylor, 164 Ga. App. at 128.

In light of the statutory mandate requiring that essential terms of a promise to answer for the debt of another be in writing (OCGA § 13-5-30 (2)), the statutory bar precluding the extension of a contract of guaranty by interpretation or implication (OCGA § 10-7-3), and the binding and applicable precedent compelling that the identity of the principal debtor be provided on a guaranty, the trial court correctly granted Coleman’s motion. Because the pleadings disclose that all of Sysco’s complaint was premised on a guaranty which was unenforceable as a matter of law, Coleman was entitled to judgment on the pleadings. OCGA § 9-11-12 (c).

Judgment affirmed.

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

Ruffin, Judge,

dissenting.

“The granting of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citations and punctuation omitted; emphasis supplied.) Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625) (1991). Viewing the allegations in Sysco’s complaint in this light, I cannot say that there has been a complete failure to state a cause of action. Accordingly, I respectfully dissent.

Taken as true, the allegations in Sysco’s complaint show that between March 15, 1991 and March 22, 1991, Charlton Club South (“Charlton Club”) placed orders on account for the purchase and delivery of various food and kitchen supply items from Sysco. On March 15, 1991, Coleman, who was Charlton Club’s vice-president, “signed an individual personal guaranty in favor of [Sysco] to induce [Sysco] to extend credit on account to [Charlton Club].” Charlton Club subsequently defaulted on payments due on the account.

As stated by the majority, Sysco attached a copy of an account terms agreement to the complaint. This agreement, dated March 15, 1991, clearly identifies Charlton Club as the “purchaser” of goods on account and was executed by a Sysco representative and by Coleman in her capacity as Charlton Club’s vice-president. The personal guaranty, which appears on the bottom half of the terms agreement, is also dated March 15, 1991, and signed by Coleman and a witness.

It should be noted that I agree with the majority that “this Court has consistently held that where a guaranty omits the name of the principal debtor, it is unenforceable as a matter of law.” However, contrary to the majority’s conclusion that this essential element must be contained within the four corners of a single document, “[o]ur courts have held that in order to satisfy the Statute of Frauds, the writing relied upon as a guaranty must, either in itself or in connection with other writings, identify the debt which is the subject of the promise, indicate knowledge of both the amount promised to be paid and the time the debt becomes due, and show who is the promisee as well as the promisor. [Cits.]” (Emphasis supplied.) Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898 (2) (324 SE2d 746) (1984). “ ‘It is not necessary that the (guaranty agreement) contain in itself all of the requirements which the (S)tatute (of Frauds) embraces.’ ” Id. at 898-899. “[A]s long as all the necessary terms are contained in signed contemporaneous writings, the statutory requirements and purpose of the Statute of Frauds have been met, whether or not the writings are cross-referenced.” (Emphasis supplied.) Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984). Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127 (296 SE2d 417) (1982), and the other cases cited by the majority are inapposite because they do not involve signed contemporaneous writings. Duke v. KHD Deutz &c. Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996). See also Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992), in which there was no evidence of other writings and we specifically distinguished from Schroeder, supra, where we expressly held that other writings could supply the missing terms.

In the instant case, I note that contrary to the majority’s finding, Coleman is identified as the guarantor. Although a space for naming the guarantor was left blank, her signature appears at the bottom of the guaranty in the space provided for the “Guarantor.” And, although the majority states that Coleman denied signing the guaranty, for the purposes of Coleman’s motion her denial must be “taken as false” and we must assume that she did, indeed, execute the guaranty. See Bacon, supra at 436. Furthermore, though it is true that the space labeled “Company” was left blank on the guaranty, the guaranty shows that the “Company” was the entity receiving credit at Coleman’s request, and Charlton Club is 'clearly identified on the same piece of paper in the terms agreement executed by Coleman as the “[p]urchaser” of goods on account. Moreover, Sysco’s complaint allegations, taken as true for the purposes of Coleman’s motion for judgment on the pleadings, show that Charlton Club is the principal debtor. See Bacon, supra. Accordingly, whether we construe the terms agreement and guaranty as a single writing with an ambiguity as to the principal debtor, or as signed contemporaneous writings which together supply the essential elements of the guaranty, this document in combination with the complaint do not show that Sysco completely failed to state a cause of action to enforce the guaranty under the Statute of Frauds. See id.

Murray v. Pratt-Dudley Builders Supply Co., 176 Ga. App. 225 (335 SE2d 443) (1985), cited by the majority, shows why this case should not, and cannot, be disposed of by judgment on the pleadings. In Murray, as in the instant case, the creditor sued to enforce a personal guaranty signed by the alleged guarantor. Although the space on the guaranty form for identifying the creditor was left blank, the trial court granted summary judgment to the creditor. On appeal, the guarantor argued that the guaranty was unenforceable under the Statute of Frauds because it did not identify the creditor in whose favor the guarantee was executed. In his deposition, however, the guarantor freely admitted that he signed the guaranty for the debts of the principal debtor in favor of the plaintiff creditor. We found that in light of such testimony “the harm sought to be prevented by the statute of frauds simply [did] not exist, and . . . that [the guarantor was] estopped to assert the statute of frauds defense.” Id. at 227. Moreover, we found that under such circumstances, the Statute of Frauds defense was “‘patently absurd’” and imposed frivolous appeal damages against the appellant for relying on the defense. Id.

The reasoning employed by this Court in Murray is not limited to cases seeking the enforcement of guarantees. In Garrison v. Piatt, 113 Ga. App. 94 (1) (147 SE2d 374) (1966), a case which involved a contract for the sale of goods under the Uniform Commercial Code, this Court found that a defendant cannot admit the fact of the contract and at the same time claim the benefit of the Statute of Frauds. We reasoned that this provision of law “was designed to prevent the statute of frauds itself from becoming an aid to fraud, by prohibiting one [from] claiming the benefit of the statute who admits in the case the oral contract sued upon.” Id.

In the instant case it is not necessary to decide whether, as was done in the numerous other cases cited here and by the majority, the evidence shows that one party or the other is entitled to judgment on the merits. Rather, we must only determine whether “ ‘the pleadings affirmatively show that no claim in fact exists.’ ” (Citations omitted.) Bacon, supra at 436. Unlike Murray, the plaintiff in this case has not had any opportunity to present deposition testimony or other evidence showing whether Coleman admits the essential elements of the guaranty. If such evidence does exist, it would be “patently absurd” to allow Coleman to assert the Statute of Frauds as a defense. See Murray, supra. Furthermore, contrary to the majority’s conclusion, even in the absence of such admissions, Sysco can prove the existence of an enforceable guaranty through evidence of signed contemporaneous writings. Schroeder, supra; Baker, supra.

Finally, I must disagree with the majority’s finding that Sysco’s reliance on Schroeder, supra, is misplaced. As in this case, Schroeder involved allegedly missing essential elements of an enforceable guaranty, specifically, the amount promised to be paid and the time the debt became due. We found, however, that those elements could be proved by contemporaneous writings and were proved by invoices for materials purchased by the principal debtor from the creditors. See id. at 898-899. Contrary to the majority’s reading of Schroeder, it does not appear that this Court based its decision on the fact that the “exact amount of the debt on an open account was not determinable at the time of the guaranty’s execution.” Rather, the decision was based solely on the well-established rule that the essential elements of a guaranty may be established by contemporaneous writings. Id. See also Butler v. Godley, 51 Ga. App. 784, 788 (3) (181 SE 494) (1935). As to whether the exact amount and the full terms of the indebtedness on an open account are determinable at the time of the guaranty’s execution, we merely ruled that “ ‘[t]he jury in the exercise of common sense could see the logical connection between the [guaranty and the invoices].’ [Cits.]” Schroeder, supra at 899.

Decided July 16, 1997.

Lee, Black, Scheer & Hart, John D. Lange, Bouhan, Williams & Levy, Peter D. Muller, for appellant.

Gannam & Gnann, J. Hamrick Gnann, Jr., for appellee.

In short, I believe that Sysco’s complaint does not completely fail to state a cause of action to enforce a guaranty and that the trial court therefore erred in granting Coleman’s motion for judgment on the pleadings. Schroeder, supra; Baker, supra; Bacon, supra.

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


author: Pope, Presiding Judge.

text:
    A97A1202.
    THE STATE v. KING.
    (489 SE2d 361)
   Pope, Presiding Judge.

Alfred King was charged with being a convicted felon in possession of a firearm. The trial court granted his motion to suppress, and the State appeals. Concluding that the court correctly granted the motion, we affirm.

Evidence at the hearing on the motion to suppress was that on December 12, 1995, at about 1:30 a.m., Athens-Clarke County Police Officer Dan Silk noticed King and Warren Collins standing in front of a four-unit apartment complex. The temperature outside on that date was about 20 degrees. Silk testified that the apartment complex was in “an extremely high drug area” in which numerous violent criminal acts had occurred; that the police department received “continuous calls” about the area regarding drug and violent crimes; and that within the previous month he had made two drug arrests at the spot on which King and Collins were standing. Silk recalled that earlier that evening he had spoken with “a citizen” on the street, who expressed concern about the drug sales transpiring on that block, although there had been no specific complaint about King and Collins. Silk said that a couple of months before this incident, he was involved in a surveillance of the apartment complex and that he had observed that there were “lookouts” for the drug buys at the complex.

Silk did not know King, but he knew that King did not live in the apartment complex. Silk recognized Collins, because Silk and other officers had taken crack cocaine paraphernalia and a knife from Collins several days earlier.

Collins and King stood outside for about an hour; during this time Silk drove by several times. Silk did not observe King or Collins engaging in any criminal conduct. Nevertheless, Silk was suspicious because he believed that it was too cold to be standing outside for an hour, so he stopped his patrol car. Silk and another officer walked up to Collins and King.

Silk testified that he asked King if he was a resident of the address and King said that he was not. Silk asked King what he was doing in the area. Silk testified that he could not recall King’s response to this question, but that King’s reply was not “substantial enough to me to give me a reason to think that he should be there.” Silk then asked King to turn around and raise his hands, so that he could pat him down for weapons. Silk did not ask King for his consent to the pat-down. Although King initially denied carrying any weapons, as Silk began the pat-down, King reached behind himself and stated that he had a pistol in his back pocket. On cross-examination Silk conceded that at the preliminary hearing, he had testified that his initial inquiry to King was whether he had any weapons and that he had followed this question with the pat-down.

Silk admitted that he did not have a specific reason to believe that King was armed. Silk explained that his decision to pat down King for weapons was based on his general awareness that almost “every time we deal with drugs we deal with somebody who is armed or who has a propensity for violence.”

The State argues that the trial court erred in granting King’s motion to suppress evidence because there was a reasonable articulable suspicion that King had committed or was about to commit a crime, thus allowing the officers to legally stop and question him, and to conduct a weapons pat-down to ensure officer safety.

On appeal of a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996).

“Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny.” (Citations and punctuation omitted.) Pace v. State, 219 Ga. App. 583, 585 (466 SE2d 254) (1995); see also State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996) (physical precedent only). Here, Officer Silk’s initial approach to King and his initial inquiry fell under the first level of a police-citizen encounter. Even under the first tier of inquiry, Officer Silk could have responded to any threatening action by “a reasonably tailored protective reaction.” Pace v. State, 219 Ga. App. at 585. Since King’s actions were not threatening, however, Silk’s pat-down was not authorized on this basis.

The second tier of encounters occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the person is, or is about to be, engaged in criminal activity. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Postell v. State, 264 Ga. 249 (443 SE2d 628) (1994). To authorize a Terry stop, the officer must possess more than a subjective, unparticularized suspicion or hunch that a person is involved in criminal activity. Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992). Moreover, an officer who has lawfully detained a citizen is authorized to conduct a Terry pat-down for weapons only if the officer has a reasonable belief preparatory to the pat-down that the suspect is armed and presents a danger to the officer or others. Brown v. State,, 181 Ga. App. 768, 770 (1) (a) (353 SE2d 572) (1987).

Here, Officer Silk’s pat-down of King for weapons was not authorized. First, Silk had no particularized and objective basis, as required for a Terry stop, for suspecting that King was, or was about to be, involved in criminal activity. More importantly, Silk had no reasonable belief that King was armed and represented a danger to himself or to others, so as to justify the pat-down. Compare Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995). Silk’s mere hunch that King was involved with drugs and that drugs were usually linked to violence did not justify the pat-down. Accordingly, the court’s grant of the motion was not clearly erroneous.

Decided July 16, 1997.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellant.

John W. Donnelly, for appellee.

Contrary to the State’s arguments, we find Wilson v. State, 210 Ga. App. 886 (437 SE2d 867) (1993); Dowdy v. State, 209 Ga. App. 311, 312 (433 SE2d 293) (1993); Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993), and Chaney v. State, 207 Ga. App. 72 (427 SE2d 63) (1993), distinguishable.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       We note that our decision here is limited to King; we make no determination regarding what detention of Collins the police officers could have undertaken.

       We are mindful that in appropriate circumstances “[i]t is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” Condon v. State, 203 Ga. App. 163 (416 SE2d 802) (1992).


author: Judge Harold R. Banke.

text:
    A97A1244.
    THOMAS v. THE STATE.
    (489 SE2d 561)
   Judge Harold R. Banke.

William Marvin Thomas was convicted of influencing witnesses and criminal trespass. On appeal, he enumerates four errors.

The charges arose after Thomas and another man entered the victim’s yard and attempted to break into her rural home. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Thomas made his way around the house, yelling and beating on the windows and doors as he attempted to open them. After about 15 minutes, the men left. A young boy living at the victim’s home identified Thomas as he circled the house. He and his sister had been placed at the victim’s home by the Department of Family & Children Services after the children alleged they had been molested by Thomas and others. At the time of trial, aggravated child molestation charges based upon the children’s allegations remained pending against Thomas in another county. Held:

1. Thomas maintains the trial court erred by admitting into evidence, and allowing to go to the jury, a copy of the indictment charging him with aggravated child molestation of the two children residing with the victim. Thomas asserts that the admission of the charges prejudiced the jury against him sufficiently to preclude a fair trial. We disagree.

One of the essential elements of the influencing witness charge was an “intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court. . . .” OCGA § 16-10-93. The indictment alleged that Thomas sought to deter the children from testifying against him in the above-mentioned child molestation case. Thus, “[i]t was relevant, indeed necessary, to have the indictment [on the pending child molestation charges] in evidence to show an essential element of the crime charged,” that Thomas’ attempt to influence witnesses related to a matter pending in court. Gonzalez v. State, 175 Ga. App. 184, 185 (2) (332 SE2d 904) (1985).

2. The trial court did not err in admitting the victim’s testimony that the young boy identified Thomas as he attempted to enter the house. The statement, made while Thomas was committing the offenses, was admissible as part of the res gestae. OCGA § 24-3-3; see Wilburn v. State, 199 Ga. App. 667 (1), 668 (405 SE2d 889) (1991).

3. The evidence was sufficient to withstand Thomas’ motion for directed verdict of acquittal. The State was required to prove that Thomas indirectly communicated to the children a threat of injury or damage to their persons. OCGA § 16-10-93. The evidence of the pending criminal proceedings involving the children combined with proof that Thomas shouted and pounded on the doors and windows trying to enter the victim’s home was sufficient to satisfy the requisites of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to the criminal trespass charge, review of the trial transcript in the light most favorable to the verdict reveals evidence from which the jury could legitimately infer that Thomas entered the victim’s property for an unlawful purpose, specifically, to deter the children from testifying against him in his upcoming child molestation case. OCGA § 16-7-21 (b) (1). The victim testified that Thomas was the children’s father’s best friend, had been arrested for molesting the children, and had not previously been to her isolated, rural home. She also testified that Thomas pounded on her doors and windows in an attempt to enter. Although the victim found his shouting unintelligible, the young girl responded by hiding under a bed during the offense, and the boy armed himself with scissors. While this evidence is not overwhelming, it is sufficient to sustain the verdict.

4. The trial court did not err by rejecting Thomas’ claim that newly discovered evidence entitled him to a new trial. Such motions must fail unless, inter alia, the information comes to light after trial, is probably outcome determinative, and not merely cumulative or impeaching. Walker v. State, 222 Ga. App. 491 (474 SE2d 695) (1996). The information, derived from the affidavit of the Franklin County Sheriff, indicated that Thomas was seen at his home at 5:20, shortly before his arrest. This evidence was available to Thomas at the time of trial.

Decided July 16, 1997.

Andrew J. Hill, Jr., Floyd W. Keeble, Jr., for appellant.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

Furthermore, pretermitting when the evidence was available, it does not demand a different result. The arrest warrant indicated that the offense occurred around 5:05. The investigating officer testified that the victim’s 911 call came in at 5:05 and the offenses occurred 20 to 30 minutes earlier. The victim testified that the offenses continued for ten to fifteen minutes and she had waited ten to fifteen minutes before calling police. In the face of such testimony, we cannot say the affidavit exonerates Thomas. Id.

Judgment affirmed.

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