text:
    A96A0627.
    SOUTHERN GENERAL INSURANCE COMPANY v. WATSON.
    (471 SE2d 559)
   Ruffin, Judge.

Charles Watson suffered injuries in an automobile collision with Augustus Bubba McCord and incurred over $12,000 in medical expenses. Watson was insured with Southern General Insurance Company (“Southern General”), whose automobile policy provided him $2,500 in medical payments coverage. After Watson settled his claim against McCord for $25,000, he sued Southern General to recover the available medical payments benefits. Southern General refused to pay because, pursuant to a reimbursement clause in its policy, if it gave Watson the $2,500, he would have to give it right back to the insurer. In this interlocutory appeal, we find Southern General entitled to judgment on the pleadings and reverse the trial court’s denial of Southern General’s motion.

Decided May 21, 1996.

Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, John H. Smith, Jr., for appellant.

J. Converse Bright, for appellee.

The reimbursement clause in question provides: “Our Recovery Rights (Subrogation)” In the event of any payment under this policy, we are entitled to all the rights of recovery which the person to whom payment was made may have against another person or organization. You and any insured person must sign and deliver to us any legal papers relating to that recovery, and do whatever else is necessary to help us exercise those rights and do nothing after a loss to prejudice our rights.

“If there is a recovery we shall be reimbursed out of the recovery for expenses, costs, and any attorney’s fees incurred in connection with this recovery.

“When a person has been paid damages by us under this policy and also recovers from another, the amount recovered from the other shall be held by that person in trust for us to the extent of our payment.”

This action is controlled by the recently decided case of Integon Gen. Ins. Co. v. Thompson, 220 Ga. App. 631 (469 SE2d 346) (1996). The language in the second two paragraphs of this clause creates in Southern General a right to reimbursement, even though the first paragraph of the policy provision might fun afoul of Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993), as an assignment of a cause of action. Thompson, supra; see also Shook v. Pilot Life Ins. Co., 188 Ga. App. 714, 715 (1) (373 SE2d 813) (1988). As we held in Thompson, Southern General may exercise its right to recover medical payments whether or not Watson received full compensation for his other damages.

In his brief, Watson concedes that should Southern General be entitled to reimbursement regardless of whether he has been “made whole,” his claim for benefits would have no merit. Thus, we reverse the trial court’s ruling and direct that judgment be entered for Southern General.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur. ,


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A0646.
    HAIN et al. v. ALLSTATE INSURANCE COMPANY.
    (471 SE2d 521)
   Blackburn, Judge.

John B. Hain, First Realty Mortgage Corporation, and Kimberly Abbott appeal the trial court’s order granting summary judgment to Hain’s insurer, Allstate Insurance Company (Allstate), in the underlying declaratory judgment action involving Allstate’s obligations under its homeowner insurance policies and a personal umbrella policy. Specifically, the appellants argue that the trial court erred in determining that Allstate was not obligated to insure Hain against charges of assault and battery and intentional infliction of emotional distress stemming from a pattern of sexual harassment which Abbott alleged occurred while she was Hain’s employee. Abbott alleges that the wrongful conduct was not restricted to the office environment, but also occurred at places away from work such as at her home and various restaurants.

It is undisputed that the homeowner policies at issue grant coverage only to claims of bodily injury arising from an accident, and specifically exclude acts intended to cause bodily injury in any degree and wilful acts which are a crime pursuant to our criminal code. Additionally, the personal umbrella policy specifically excludes coverage for acts intended to cause bodily injury, including mental anguish.

Pretermitting the issue of whether Abbott suffered a bodily injury as defined under any or all of the policies in question, Hain contends that his policies with Allstate provide coverage on the assault and battery and intentional infliction of emotional distress charges because. Abbott does not necessarily have to establish that Hain intended to cause her harm in order to prevail. In such a case, Hain argues, any resulting harm could be deemed merely accidental. Abbott’s amended complaint, however, expressly states that “[Hain] acted with the specific intent to cause [her] harm.” In addition, in her amended complaint, Abbott alleges that acts forming the basis of her assault and battery and intentional infliction of emotional distress claims — which included unwelcomed sexual advances such as hugging, kissing, and caressing — continued although she “consistently informed [Hain] that she desired to engage in no relationship with him other than that of employer and employee.” Furthermore, assault and battery and intentional infliction of emotional distress are by their very nature intentional torts.

In determining whether an alleged injury was intentional, and thus could not be considered accidental, we look to the allegations made by the plaintiff in the complaint. See Brayman v. Allstate Ins. Co., 212 Ga. App. 96, 97 (441 SE2d 285) (1994); see also Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 611 (373 SE2d 671) (1988). As in Brayman and Presidential Hotel, because the plaintiff alleges that the acts and resulting harm were intentional, we cannot say that any alleged bodily injury she may have suffered was unintended or the result of an accident. Accordingly, the trial court properly granted summary judgment to Allstate.

Decided April 15, 1996

Reconsideration denied May 22, 1996

Andersen, Davidson & Tate, Thomas T. Tate, Matthew B. Merrell, for appellants.

Alston & Bird, Natalie J. Davis, Sutherland, Asbill & Brennan, Steven L. Polk, for appellee.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A96A0434.
    KEEGAN v. THE STATE.
    (472 SE2d 107)
   Beasley, Chief Judge.

Atlanta police charged Deborah Keegan with hit and run, OCGA § 40-6-270. She appeared before the City Court of Atlanta, pled not guilty, and was convicted after a bench trial. She enumerates error on three grounds, two of which have merit.

1. Keegan enumerates as error the court’s consideration of prior offenses in its determination of her guilt. No court reporter transcribed the bench trial and the parties have not created a transcript pursuant to OCGA § 5-6-41 (g). The allegations contained in Keegan’s brief are no substitute. Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989). “Absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner.” (Citation and punctuation omitted.) Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763) (1989). The enumeration fails for this reason. Doster v. State, 218 Ga. App. 174, 175 (460 SE2d 818) (1995).

2. Keegan also alleges she did not knowingly, intelligently, and voluntarily waive her right to a jury trial. The record does not enlighten us. When a criminal defendant raises such a claim the State must show, either from the record or from appropriate extrinsic evidence, that the accused intelligently consented to the waiver. Payne v. State, 217 Ga. App. 386, 387 (460 SE2d 297) (1995); Keith v. State, 218 Ga. App. 729, 730-731 (2) (463 SE2d 51) (1995).

The only record evidence possibly concerning waiver is an ill-fitting form entitled “Affidavit of Defendant Prior to Entering Plea” which Keegan signed. The form contains assurance that the signer has been advised of all the rights one is waiving by pleading guilty, including “My right to trial by jury.” The form obviously is intended for recording guilty pleas, for it further states, “I understand that if I enter a plea in this case, there will be no further trial or hearing and a fine or sentence or both may be imposed.” Nonetheless, on it Keegan pled “not guilty” and the trial judge signed the form indicating his acceptance of her “free and voluntary” plea.

Nowhere on that form does Keegan indicate she waives trial by jury in the context of choosing between a jury trial and a bench trial. Therefore, this case is comparable to Payne, supra. In Romano v. State, 220 Ga. App. 322 (469 SE2d 726) (1996), we addressed this same standard form in the context of its use for guilty pleas and distinguished Payne. The State has presented no evidence to meet its burden. Compare Evans v. State, 216 Ga. App. 21, 24-25 (3) (453 SE2d 100) (1995), in which the State produced an adequate affidavit. The State merely counters in four sentences, unsupported by citation of authority, in which it contends this claim is “not revealed by the record on appeal.”

In the absence of a record, we vacate the conviction and sentence and remand this matter for an evidentiary hearing to determine if Keegan properly waived her right to trial by jury. If the trial court so determines, the conviction and sentence may be reinstituted and be subject to appeal on this issue alone, if desired; if the court determines otherwise, Keegan will be entitled to a new trial. Payne, supra at 388; Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991) (non-precedential on another point). Compare Capelli v. State, 203 Ga. App. 79, 80 (2) (416 SE2d 136) (1992), in which this Court reversed the denial of a new trial when it determined, from the record, that the State had an opportunity but failed to show a voluntary and intelligent waiver of the appellant’s right to a jury trial.

3. Keegan’s final enumeration of error addresses the trial court’s summary denial of her timely-filed motion for new trial, which raised other grounds. When Keegan filed that motion in the clerk’s office and served it upon opposing counsel, she included with it a blank “rule nisi” form which read: “The above and foregoing [motion for new trial] having been read and considered, the same is set down for a hearing in this case on the_day of_, 1995 at_ o’clock_.m., then and there to be heard why the request of the petitioner’s motion should not be granted.” The form had a line for the clerk’s signature. The trial court denied this motion without hearing five days after it was filed.

The submission of this form with the motion constituted a request for hearing, and nothing in the record indicates Keegan waived or withdrew her request. Compare Peyton v. Peyton, 236 Ga. 119, 120-121 (223 SE2d 96) (1976). Upon remand, the trial court should conduct such a hearing in the event it finds Keegan waived her right to trial by jury. Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Gantt v. Sweatman, 162 Ga. App. 738 (1) (293 SE2d 359) (1982).

Decided May 22, 1996.

Furlong & Franco, Walter W. Furlong, for appellant.

Louise T. Hornsby, Solicitor, Clayton Sinclair, Jr., Assistant Solicitor, for appellee.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A96A0447, A96A0448.
    ARC SECURITY, INC. v. MASSEY BUSINESS COLLEGE (two cases).
    (471 SE2d 569)
   Smith, Judge.

In this garnishment action, ARC Security, Inc. appeals from the trial court’s orders denying its motion to set aside a default judgment and its traverse to the garnishment.

The record reveals that Jason Cunningham had been employed briefly at ARC prior to the institution of this action. After obtáining a judgment against Cunningham, Massey Business College filed an affidavit for continuing garnishment against Cunningham, naming ARC Security, Inc. as garnishee. The marshal’s return indicates that service of the summons of garnishment was perfected as to ARC by serving “Ms. Jacobs” as “agent.” ARC filed no answer to the garnishment, and a default judgment was entered against ARC in November 1994. In April 1995, ARC filed a traverse to the garnishment and moved to set aside the default judgment. The trial court consolidated the motion and the traverse, and after holding an evidentiary hearing, denied both.

We granted ARC’S application for discretionary appeal covering both orders. Because the two appeals are from orders entered in the same action below and refer to the same set of facts, we have consolidated them for review.

1. ARC contends the trial court erred in denying its motion to set aside the default judgment because service on “Ms. Jacobs” was insufficient in this case. We agree and reverse.

OCGA § 18-4-23 provides in pertinent part that a summons of garnishment must be served upon “the agent in charge of the office or other place of business where the defendant is employed.” Because garnishment is a special statutory proceeding in derogation of the common law, this statute must be strictly construed. See Baptist Convention v. Henry, 187 Ga. App. 551, 552 (370 SE2d 813) (1988). In this case, the marshal’s return recited in preprinted form that Jacobs was “personally in charge of the office and place of business at the time of service.” When a challenge is raised to the sufficiency of service, the challenger bears the burden of showing that service was improper. A return may be set aside only on evidence that is not only clear and convincing, but the strongest possible. Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (1) (442 SE2d 795) (1994). ARC’s burden, therefore, was to show by the strongest evidence possible that contrary to the recitation on the face of the return, Jacobs was not, in fact, “in charge of the office.”

It sought to do this through the affidavit of its president, Alfred R. Chouinard, and the testimony at the hearing of its controller, Ward Kelly. Chouinard stated in his affidavit that at the time the summons of garnishment was served, ARC’s registered agent was R. Joseph Costanzo. Sabrina Jacobs was the receptionist at the corporate office. Jacobs was not a corporate officer, performed only clerical functions, was paid on an hourly basis, and was not authorized to accept service on behalf of the corporation. Chouinard also stated that neither he nor any other officer or authorized person ever received the summons of garnishment.

Kelly’s testimony was consistent with Chouinard’s affidavit. He testified unequivocally that he and Cheryl Croft were the two persons in charge of the office of ARC. He never saw the summons of garnishment, and to his knowledge, no one else in the company knew of its whereabouts. He testified that in addition to Jacobs’s receptionist duties, she also sometimes screened applicants for employment. She was not, however, authorized to accept service. Jacobs herself, called for cross-examination purposes by Massey, testified similarly. We find that this evidence satisfies ARC’s burden of showing by the strongest evidence possible that the person served was not “in charge of the office” and that service was therefore improper.

Contrary to the argument advanced by Massey, Murray v. Sloan Paper Co., supra, 212 Ga. App. 648, involved different principles of law and is not applicable here. Murray was not a garnishment case and thus did not involve the application of OCGA § 18-4-23; instead, it involved the general service statute, OCGA § 9-11-4. That statute sets forth different rules for proper service. OCGA § 9-11-4 (d) (1) permits a corporation to be served on the registered agent or on a corporate officer or other agent of the corporation. Case law has interpreted this to mean that if the person served is not a corporate officer and has not been expressly designated to accept service, that person must occupy a position of managerial or supervisory responsibility within the organization. Id. at 649 (2). The record in Murray did not show that managerial or supervisory duties were outside the receptionist’s area of responsibility.

In contrast, this case involves the service requirements of OCGA § 18-4-23. See generally Cartwright v. Alpha Transp. Svc., 159 Ga. App. 296, 299-300 (4) (283 SE2d 282) (1981) (general provisions for service of process must yield to special provisions for service in garnishment statute). ARC had the burden of showing that service was improper because Jacobs was not “in charge” of the office, which it did by direct evidence: the testimony of one of the two persons who were, in fact, in charge of the office but were not served.

Murray is distinguished factually, as well. In Murray, the marshal’s affidavit stated that when he arrived to serve the summons and complaint, the receptionist informed him that the registered agent was unavailable and that she could accept service. Id. at 648. It could be found from the marshal’s affidavit, therefore, that the receptionist’s actions led the marshal to believe she was authorized to accept service. Id. at 649-650 (2). Given the receptionist’s actions as outlined in the marshal’s affidavit, this Court held that the corporation had not carried its burden of showing that service had not comported with the requirements of OCGA § 9-11-4 (d) (1).

No such evidence was presented in this case. Massey did introduce evidence that in an unrelated lawsuit, ARC had been served by serving another of its employees. Massey’s counsel also stated that on another occasion a different lawsuit had been served upon ARC by serving Jacobs and eventually settled by ARC. However, no evidence was introduced by Massey rebutting the evidence presented by ARC or showing that Jacobs was, in fact, “in charge” of the office. The marshal was not called upon to testify, nor was an affidavit presented from him. We conclude, therefore, that the requirements of OCGA § 18-4-23 were not met and that the trial court erred in denying ARC’S motion to set aside the judgment based upon insufficient service of process. See Citizens Bank v. Alexander-Smith Academy, 226 Ga. 871 (178 SE2d 178) (1970).

2. The trial court did not err, however, in denying the traverse to the garnishment on the ground that “Massey Business College” does not denote a legal entity. Massey’s counsel conceded that Massey was, in fact, owned by a differently named Wisconsin corporation. However, he introduced a lawfully filed trade name registration entitling Massey to do business under the trade name Massey Business College. “A trade name is merely a name assumed or used by a person recognized as a legal entity. . . . An undertaking by an individual in a fictitious or trade name is the obligation of the individual.” (Citations and punctuation omitted.) Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991). “A corporation conducting business in a trade name may sue or be sued in the trade name. [Cit.]” John L. Hutcheson &c. Hosp. v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649) (1969).

Decided May 22, 1996.

Glenville Haldi, for appellant.

Frederick J. Hanna & Associates, Frederick J. Hanna, Elizabeth C. Whealler, for appellee.

Judgment affirmed in Case No. A96A0448. Judgment reversed in Case No. A96A0447.

Pope, P. J, and Andrews, J., concur.


text:
    A96A0494.
    ANDREWS v. THE STATE.
    (471 SE2d 567)
   Beasley, Chief Judge.

Andrews was convicted in a bench trial of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). In two related enumerations of error, he challenges the denial of his motion to suppress the evidence of the cocaine as a violation of his Fourth Amendment rights.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993). So viewed, the evidence is that Officers Harris and Brooks responded to a robbery call on Glenwood Road where two women reported that two men robbed them of $3,000. The women were to meet the men to purchase an automobile, but the men stole the purse containing the cash and ran. The women described the perpetrators and said they believed the men were in room 215 at the nearby Glenwood Inn.

The police and the victims went to the hotel registration desk and learned that a Patrick Walker was registered in room 215. They went and knocked on the door, which Walker opened, sending out a large cloud of marijuana smoke. The robbery victims immediately identified Walker as the purse snatcher. The police requested entrance to the room and Walker consented. Marijuana rolling papers and a small amount of marijuana leaf were lying on a table.

Although four men were in the room, the officers saw no items of a personal nature or luggage. Andrews was sitting on the bed and initially refused to stand up. After about the third request, Andrews reluctantly got up, and Officer Brooks lifted the mattress and found a small bag with 15 “hits” of cocaine and a pistol.

The police then asked all of the men to move to one side of the room and conducted pat-down searches for weapons. Officer Harris patted down Andrews’ legs and crotch. Through Andrews’ shorts, Harris felt what was immediately apparent to him as a large cookie of crack cocaine. He squeezed it and confirmed his initial belief, which had been “99% sure.” Officer Harris asked Andrews to unzip his shorts and remove the substance, which was later confirmed to be 34 grams of crack cocaine.

Andrews does not contend the police were unjustified in frisking him for weapons under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). He argues only that the police exceeded the scope of a weapons pat-down permitted under Terry, citing Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993). In that case, the United States Supreme Court approved a “plain feel” exception to the warrant requirement of the Fourth Amendment, which exception correlates to the “plain view” doctrine developed earlier. See, e.g., Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987). The Court held that if “a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons [under Terry]; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Id. at 375-376.

In applying this rule, the Court in Dickerson determined the officer did not immediately recognize the lump in Dickerson’s pocket to be crack cocaine, but only did so after “squeezing, sliding and otherwise manipulating the contents” of Dickerson’s pocket, which the officer already knew contained no weapon. The search went beyond the search for weapons permitted by Terry and the fruits of the search were inadmissible.

In this case, Officer Harris had seven years’ experience as a police officer and had made thousands of narcotics-related arrests. He was thus familiar with the distinctive feel of a cookie of crack cocaine and knew immediately when he came upon it in his weapons pat-down that it was contraband. Two critical factors distinguish this case from Dickerson. One, Harris was still conducting a weapons search when he discovered the cocaine. Two, he immediately knew the object was a crack cocaine cookie. He did not continue to search by sliding or further manipulating the object in order to determine what it was, in an area which he knew contained no weapon, as was the case in Dickerson. Under the “plain feel doctrine,” the officer was entitled to seize the item and the evidence was properly admitted. He was not compelled to ignore what was apparent to him upon feeling the object and to walk away instead. Accord Seaman v. State, 214 Ga. App. 878 (449 SE2d 526) (1994); United States v. Hughes, 15 F3d 798 (8th Cir. 1994); United States v. Craft, 30 F3d 1044 (8th Cir. 1994).

Decided May 22, 1996.

Dwight L. Thomas, for appellant.

J. Tom Morgan, District Attorney, Ray H. Ragland, Desiree S. Peagler, Assistant District Attorneys, for appellee.

Compare United States v. Ross, 827 FSupp. 711 (S.D. Ala. 1993), aff’d, 19 F3d 1446 (11th Cir. 1994) (police officer’s discovery of matchbox in defendant’s underwear during pat-down did not justify his removal of box and seizure of cocaine in it) and United States v. Mitchell, 832 FSupp. 1073 (N.D. Miss. 1993) (officer reached into defendant’s pocket and retrieved a brown paper sack, which contained a white athletic sock, which contained six small plastic bags each containing crack cocaine: “With all due respect and deference to the training and skills of these officers, the court does not, and can not, accept their testimony that the crack cocaine in Mitchell’s pocket was ‘immediately apparent’ to them upon patting the outer clothing.” Id. at 1079).

Judgment affirmed.

Birdsong, P. J., concurs. Blackburn, J., concurs in the judgment only.


text:
    A96A0513.
    MILLER v. THE STATE.
    (471 SE2d 565)
   Beasley, Chief Judge.

After a stipulated bench trial, Miller was convicted of one count of trafficking in methamphetamine, OCGA § 16-13-31 (e), and one count of possession of lysergic acid diethylamide, OCGA § 16-13-30 (c), a Schedule I controlled substance, OCGA § 16-13-25 (3) (I). In his sole enumeration of error, he contends the court erred in denying his motion to suppress evidence which he considered to be the result of a detention and search that violated the Fourth Amendment.

Officer Hudson had responded to a burglary call at an apartment complex known as a high drug area. At approximately 11:30 p.m. he was driving out of the complex in a marked police vehicle and saw Miller walking on the side of the complex’s darkened entrance road. Another marked police car was ahead of Hudson and passed Miller first. Hudson noticed Miller slow his pace and appear nervous when the first car passed. Hudson pulled in behind Miller who looked at Hudson and took two side-to-side steps as though he were about to run. Hudson stepped out of his vehicle and asked if Miller would speak to him for a moment. Miller was not a suspect in the burglary.

As Miller approached, Hudson noticed him gripping a purse on a belt around his waist in a way that obscured view of it. Miller’s eyes were droopy, glassy, and red, and he appeared under the influence of alcohol. Hudson, concerned that there might be weapons in the purse, asked if Miller had any weapons on his person and he responded: “No officer, I’m just drunk.” Miller again stepped nervously side-to-side and Hudson again thought he was about to run. Hudson was still concerned about weapons and asked if there were any weapons in the purse, reaching forward to tap it from the outside. Miller pulled back and Hudson thought he was about to run. Hudson grabbed him by the arm and told him to calm down. Miller continued to conceal the purse and said “Oh, God, oh God,” and “I can’t go back.” Another officer arrived and they subdued Miller while he continued to try to keep them from touching the purse. The purse contained illegal drugs and $943 in cash.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

Miller argues the initial stop was invalid because it was not supported by reasonable, articulable suspicion as required under Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968). Contrary to his view, articulable suspicion was not necessary for Hudson to lawfully approach him. “ ‘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. . . . [Cit.]”’ In the Interest of S. B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993). Under the first tier, a police officer may approach an individual and ask questions without triggering Fourth Amendment scrutiny. State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). See also Sabel v. State, 248 Ga. 10 (1) (282 SE2d 61) (1981). The trial court found that the officer initiated a first-tier encounter and later had probable cause to arrest Miller for the offense of pedestrian under the influence of alcohol. OCGA § 40-6-95. Whether the location was a public road or one maintained by and part of the apartment complex, which is not clear from the record, it was covered by the prohibition. OCGA § 40-6-3 (a) (2). See, as analogous, Daugherty v. State, 182 Ga. App. 730 (1) (356 SE2d 902) (1987) (DUI in gas station parking lot).

This Court’s conclusion as to probable cause was supported by the evidence. There was no testimony suggesting the initial encounter was coercive. Miller contends he was seized when the officer grabbed him and told him to calm down. That occurred after Miller stated he was drunk and Hudson had observed signs of intoxication. At that point, probable cause for an arrest on the charge of intoxicated pedestrian had presented itself. Justification for a pat-down search under the lesser standard of articulable suspicion was not then necessary; a full search incident to an arrest would have been justified. See Clark v. State, 212 Ga. App. 486, 488 (441 SE2d 885) (1994).

Decided May 22, 1996.

William W. West, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Further, probable cause for arrest was not, under these circumstances, necessary to support the officer’s attempts to pat-down the purse. “ ‘ “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.” (Cits.)’ [Cit.]” Chaney v. State, 207 Ga. App. 72, 73 (427 SE2d 63) (1993). “ ‘ “An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon. (Cits.) . . .” (Cits.)’ ” Id. at 72-73. This is what Hudson attempted to do. He testified he believed a pat-down of the purse was necessary for his safety. Given the time of night, the darkness of the road, and Miller’s behavior, particularly with regard to the purse, as well as his apparent and admitted intoxication, Hudson’s belief was reasonable and his actions appropriate. Although the trial court did not articulate Hudson’s safety as a basis for denying Miller’s motion to suppress, that basis also requires that we affirm the denial of the motion. See Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

Judgment affirmed.

Birdsong, P. J, concurs. Blackburn, J., concurs in the judgment only.


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

text:
    A96A0632.
    CHEROKEE COUNTY v. NORTH COBB SURGICAL ASSOCIATES, P. C.
    (471 SE2d 561)
   Birdsong, Presiding Judge.

Cherokee County appeals from the grant of summary judgment to North Cobb Surgical Associates, P. C., in North Cobb Surgical Associates’ suit to recover for medical services provided Michael McFarland after McFarland was shot by a Cherokee County deputy sheriff while McFarland was being arrested. The court below found the county was liable under OCGA § 42-5-2 because McFarland’s medical expenses were incurred while he was in the physical custody of Cherokee County. On appeal Cherokee County contends the lower court erred by determining that McFarland was in the physical custody of Cherokee County and by determining that McFarland was not required to establish indigency or show inability to pay his medical expenses before shifting the burden of his medical expenses on the county.

After receiving a request for assistance from the Canton city police, Cherokee County deputy sheriffs were dispatched to the scene. They found McFarland holding a large knife and acting erratically. Efforts to convince McFarland to surrender were unsuccessful; the confrontation ended when McFarland charged a deputy sheriff and the deputy shot McFarland in the abdomen. After McFarland was given first aid by the deputies, he was transported to the hospital by Cherokee County Emergency Medical Services. On the way, however, McFarland caused a disturbance that resulted in a deputy sheriff handcuffing him to the stretcher and escorting him to the hospital.

After the shooting, deputies from the Cherokee County Sheriff’s Department investigated the incident. They obtained warrants to search McFarland’s apartment and to secure blood samples from McFarland in the hospital. The record, however, does not show whether McFarland was ever prosecuted for any offense arising from this incident.

In the hospital, McFarland received treatment from North Cobb Surgical Associates. When Cherokee County was billed for these services and did not pay, North Cobb Surgical Associates filed this action. Cherokee County filed this appeal after the trial court granted North Cobb Surgical Associates’ motion for summary judgment. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Cherokee County’s contention that McFarland was not in the county’s physical custody is based on its assertions that the county’s deputies merely assisted the Canton city police, that McFarland was never considered under arrest, and that McFarland was never detained in the Cherokee County Adult Detention Facility.

(a) We find no support in the record for the assertion that McFarland was not in the physical custody of the county. Regardless of the basis for the deputies’ presence on the scene, North Cobb Surgical Associates produced evidence that Cherokee County deputies were involved in subduing McFarland, taking away his knife, giving him first aid, and then transporting him to the hospital. Nothing in the record shows that in doing so they were acting under the direction and control of the City of Canton. Therefore, Cherokee County failed to carry its burden of pointing “to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, supra. Moreover, without evidentiary support in the record, the county’s argument that McFarland “may” have been in the custody of the city adds nothing to its case.

(b) We also find no support for the contention that McFarland was not under arrest. “[A]rrest is defined as The taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest.’ ” Shy v. State, 234 Ga. 816, 820 (218 SE2d 599). In this case, McFarland was shot and incapacitated by one Cherokee County deputy, placed in restraints by another, and taken in restraints to the hospital in a county vehicle that was escorted by a sheriff’s department vehicle. This was sufficient to place McFarland in the physical custody of the deputies. State v. Nelson, 261 Ga. 246, 247 (404 SE2d 112).

(c) Whether McFarland was an inmate, however, presents a closer issue. “Inmate” is defined in our Code as “a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense.” OCGA §§ 42-4-30 (2); 42-4-70 (2). As neither our research nor the parties have discovered authority addressing the specific circumstances of this appeal, we must consider whether the General Assembly intended the term “inmate” to include someone in McFarland’s situation. In this regard, a sheriff owes a prisoner in his custody the duty to render necessary medical aid. Kendrick v. Adamson, 51 Ga. App. 402 (180 SE 647).

In making this determination we must construe the statutes in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97)), and we should read the statute according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burhridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5). “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). Nevertheless, statutory construction “ ‘must square with common sense and sound reasoning.’ ” Tuten v. City of Brunswick, 262 Ga. 399, 404 (418 SE2d 367).

Our law requires a sheriff to furnish persons confined in the jail with medical aid, provided that with respect to inmates covered by Article 3 “will provide such person access to medical aid and may arrange for the person’s health insurance carrier to pay” for the health care provided. OCGA § 42-4-4 (a) (2). Article 3 referred to in this section concerns medical services for inmates and was passed in 1992 in an effort to allow sheriffs to meet the rising costs of medical treatment of jail inmates by arranging payment for medical treatment provided inmates by the inmates’ health insurance companies, if available. The progress of the legislation in the General Assembly, however, indicates that this legislation was not intended to require that the availability of health insurance was a precondition to obtaining medical treatment for an inmate or that an inmate otherwise would be expected to pay for medical treatment received. See 9 Ga. St. Law Rev. 310-318 (1992).

Additionally, other than for inmates with health insurance for whom arrangements have been made for the health insurance company to pay for the services or care provided (see OCGA § 42-5-2 (b)), “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him . . . any needed medical and hospital attention.” OCGA § 42-5-2 (a). Although this Code section is included in the chapter of Title 42 that concerns correctional institutions, it nevertheless indicates that it is the intent of the legislature that governmental entities should pay for the medical expenses incurred by inmates who are in their physical custody.

In Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 532 (428 SE2d 374), this Court held that the county was obligated to pay the full medical expenses of an inmate who was a pretrial detainee when he was taken to the hospital, but was released to his own recognizance while in the hospital in a coma. In a like manner, we hold that Cherokee County is responsible for McFarland’s medical care because he was injured while being taken into physical custody by the county sheriff’s department and who, but for the seriousness of his injuries, would have been placed in the county’s detention facility. In this regard, under OCGA § 17-4-27, McFarland, had he not required immediate medical attention, should have been taken to the jail for booking and under OCGA § 17-4-62 should have been taken before a judicial officer. Thus, as our law contemplates that McFarland would have been retained in the custody of the sheriff for some time after he was taken into custody, we find that McFarland falls within the category of an inmate for these purposes even though he was not actually detained in the detention facility.

Decided May 22, 1996.

Robert M. Mahler, for appellant.

Conoscienti, Storm & Buccellato, Joseph D. Buccellato, for appellee.

3. Cherokee County’s allegation that the trial court erred by holding the county liable for McFarland’s medical expenses without establishing that McFarland was indigent is also without merit. Our law places the responsibility for providing medical care to inmates on the counties and there is no requirement in our law that the inmate pay for his own medical expenses. Moreover, under Article 3 of Chapter 4 of Title 42, it is the county’s responsibility to determine whether an inmate has health insurance and to arrange for any payment from the health insurance company. OCGA §§ 42-4-50; 42-4-51.

Accordingly, the lower court did not err by granting summary judgment to North Cobb Surgical Associates.

4. North Cobb Surgical Associates’ motion to assess damages for a frivolous appeal under OCGA § 5-6-6 is denied.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur but point out that, if there is any lingering doubt about Cherokee County’s liability, it vanishes in the light of the constitutional prohibition against “any person be[ing] abused in being arrested, while under arrest, or in prison.” Ga. Const., Art. I, Sec. I, Par. XVII. Cherokee County took custody of McFarland not only to transport him to the hospital for emergency medical aid but also to charge him with aggravated assault (OCGA § 16-5-21). That is evident from the fact that warrants were immediately obtained by Cherokee County officers to search his residence and his body for evidence in connection with such a charge.

It could hardly be argued that it would not be an abuse to fail or refuse to obtain medical aid for McFarland after he was shot. The statutes discussed in the majority opinion are an affirmative implementation of this constitutional prohibition. There is, moreover, no contention or evidence that Cherokee County was acting as McFarland’s financial agent when it delivered him to the hospital and arranged for medical treatment.


author: McMurray, Presiding Judge.

text:
    A96A0220.
    COFFEY v. ALEMBIK et al.
    (471 SE2d 590)
   McMurray, Presiding Judge.

In this legal malpractice case, plaintiff E. Anna Coffey seeks damages from defendant Judith M. Alembik and her law firm, Alembik & Alembik, for the untimely filing of a consent order modifying the terms of her divorce decree. Plaintiff appeals the grant of summary judgment in favor of defendants. Held'.

Plaintiff was represented by defendants when she obtained a divorce in 1985. The final divorce decree entered at that time addressed the division of the assets of the marriage and provided for alimony for plaintiff which was to continue until her death or remarriage.

After the divorce, plaintiff’s former husband became terminally ill. His condition was serious and declining during the fall of 1991 and he came to reside in the home of Hubler, a friend and co-worker, to whom he granted a general power of attorney for the purpose of winding up his financial affairs. Plaintiff’s former husband expressed to Hubler his desire to provide for his family.

The former husband was a federal employee and Hubler met with appropriate officials to determine his options under the federal civil service retirement system. At this meeting on December 18, 1991, Hubler was advised that there could be difficulty in obtaining survivor benefits for plaintiff, as a divorced spouse, due to the absence of any reference to the issue of survivor benefits in the 1985 divorce decree. One alternative for resolving this problem was to obtain an amendment to the divorce decree and Hubler suggested this to plaintiff. Plaintiff then contacted defendants and requested that they undertake to amend the prior divorce decree to provide plaintiff with a survivor’s annuity upon the death of the former husband.

While the original 1985 divorce decree was obtained in the Superior Court of DeKalb County, a “Complaint to Modify Final Judgment and Decree for Alimony and Other Relief” was filed in the Superior Court of Fulton County, the jurisdiction in which the former husband then resided. That complaint, which was sworn to by plaintiff, recites that because of a “substantial change,” the prior judgment should be modified to provide that the former husband’s civil service survivor benefits should be payable to plaintiff in the event of his death or retirement in lieu of the alimony set forth in the original final judgment and decree. A final consent order containing such a provision was entered on January 9, 1992, the day of the death of the former husband.

Subsequently, plaintiff’s application for death benefits from the civil service retirement fund was disallowed due to federal regulations which required that for purposes of awarding a former spouse annuity, a court order must be issued on a day prior to the date of retirement or death of the federal employee, or the first order terminating the marriage. Plaintiff maintains that the consent order should and could have been obtained earlier but for the negligence of defendants. In support of this proposition, plaintiff has presented evidence of the sequence of events from the initial request, that defendants obtain the amendment to the final divorce decree through the entry of the consent order on the date of the former husband’s death.

Decided May 23, 1996

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Linda R. Greer, for appellant.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellees.

Pretermitting the question of whether defendants were negligent, we hold that the grant of summary judgment to defendants was required because they could not have obtained a valid order modifying the divorce decree so as to grant to plaintiff a survivor’s annuity. Such a judgment is not a revision of a judgment for alimony, but would be a modification of the provisions of the divorce decree for the equitable division of property which is not permissible. Spivey v. McClellan, 259 Ga. 181, 182 (378 SE2d 123); Holler v. Holler, 257 Ga. 27 (354 SE2d 140). See also Courtney v. Courtney, 256 Ga. 97 (344 SE2d 421); White v. White, 253 Ga. 267 (319 SE2d 447).

In reaching our holding in the case sub judice, we do not attempt to characterize the status of the consent order actually entered on January 9, 1992. The plaintiff’s complaint does not seek damages for the entry of that order. It follows that plaintiff’s argument under Kennedy v. Redwine, 59 Ga. 327, 329, on the issue of whether defendants are estopped from arguing that the consent order actually entered was void, is irrelevant to the issues presented by the case sub judice.

Instead, it is clear that any harm to plaintiff occurred because of what was not done, that is, use diligence so as to obtain a similar order at an earlier date. Consequently, we are not concerned with whether the order actually entered is void, but look to whether an order such as sought by plaintiff could have properly been entered. Since we have reached a negative conclusion on that issue, it follows that any negligent delay by defendants could not have harmed plaintiff.

Judgment affirmed.

Andrews and Ruffin, JJ, concur. Johnson, J., disqualified.


text:
    A96A0224.
    SOUTHERN TANK & EQUIPMENT COMPANY v. ZARTIC, INC.
    (471 SE2d 587)
   Beasley, Chief Judge.

Southern appeals from the grant of Zartic’s motion for summary judgment in this breach of contract case. The trial court determined that suit was filed after the time limitation in OCGA § 11-2-725 had passed.

Southern quoted a price of $77,000 to supply Zartic with a chemical mixing tank and an associated pump and sump. Southern would install it but excavation, foundation, and electrical work would be supplied by other contractors. Further discussions resulted in Southern agreeing to supply an associated “water treatment assembly” composed of a system of pipes and valves to specifications, for an additional $62,000, resulting in a total price of $139,000. Southern contends the project was substantially completed in September 1987, but Zartic claims the work was not completed. The parties agree that, for purposes of summary judgment in the context of OCGA § 11-2-725, Southern’s cause of action arose in September 1987. The contract is evidenced by a variety of documents including letters and an order form signed by both parties.

The contract called for 'staggered payments, and Southern received $100,000 but not the final $39,000. Suit to recover that amount, plus interest, attorney fees, and costs, was filed February 12, 1993. The court held that the contract was for the sale of goods and thus suit was barred by the four-year statute of limitation found in OCGA § 11-2-725, part of the Uniform Commercial Code. Southern contends the contract was not for the sale of goods, the applicable statute of limitation is in OCGA § 9-3-24, and suit could be filed any time within six years of the contract’s completion.

As the trial court noted, this contract calls for a mixed sale of goods and services, and the case of J. Lee Gregory, Inc. v. Scandinavian House, L. P., 209 Ga. App. 285, 287-288 (1) (433 SE2d 687) (1993), provides guidance on classifying such contracts. “When the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and the UCC applies ‘even though a substantial amount of service is to be rendered in installing the goods.’ [Cit.] When, on the other hand, the predominant element of a contract is the furnishing of services, the contract is viewed as a service contract and the UCC does not apply. [Cit.] As it is said: ‘ “ ‘(A) contract for services and labor with an incidental furnishing of equipment and materials’ is not a transaction involving ‘the sale of goods’ and is not controlled by the (UCC). (Cits.)” [Cit.]’ [Cits.]” Id. Factors to be considered in determining the predominant element of a contract include the proportion of the total contract cost allocated to the goods and whether the price of the goods are segregated from the price for services. A smaller proportion of the total price assignable to services, or a failure to state a separate price for services rendered, suggest a contract for the sale of goods with services merely incidental. Id.

Contrary to Southern’s suggestion, American Aluminum Products Co. v. Binswanger Glass Co., 194 Ga. App. 703 (391 SE2d 688) (1990), which involved a contract for the installation of window frames, does not stand for the proposition that any contract involving a mixture of labor and materials is outside the coverage of the UCC. That opinion specifically did not decide whether the UCC applied to the contract at issue; instead, it analyzed the case under alternative assumptions that the UCC did and did not apply, reaching the same result regardless. Id. at 705-707 (1), 707-708 (5). The factors discussed in J. Lee Gregory, supra, are those applied to determine the predominant element of a mixed contract.

The parties agree that the contract initially called only for sale, delivery, and installation of a chemical mixing tank, which evidence showed had a quoted price of $77,000. Southern does not dispute that this alone would be a contract for the sale of goods. Thus over half the total contract price was allocated to this purchase, predominately for one piece of equipment, with the remaining $62,000 including both goods and services. Although Southern refers to the later incorporated sale as a “system,” it is also undisputed that this portion of the contract covered not only the installation of additional pipes, valves, and associated material, but the sale of those materials as well. There is no suggestion that these materials were anything other than “goods” as the term is used in the UCC: “ ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale.” OCGA § 11-2-105 (1). Further, the $62,000 allocated to this portion did not segregate the price of the materials from the price of the services; the only prices segregated were the $77,000 for the original chemical mixing tank and the $62,000 for the water treatment components.

Decided May 23, 1996.

Smith, Price & Wright, Charles G. Price, for appellant.

Shaw, Maddox, Graham, Monk & Boling, David F. Guldenschuh, for appellee.

As in J. Lee Gregory, “[i]t can hardly be said that the sale of the [tank and other material] was ‘incidental’ to the transaction. Rather it would appear that the rendition of services was the incidental factor.” Id. at 288. The undisputed evidence showed the contract was first formed for a mixing tank with other subjects added later. The portion of the transaction that Southern argues requires the entire contract be considered one for services rather than goods concerns the services attributable to the later-added water treatment assembly. That assembly itself called for both goods and services, with no breakdown between goods and services. The portion of the cost attributable to this combination of goods and services accounted for less than half the total price; any breakdown of the costs for the water treatment assembly would necessarily show an even smaller fraction devoted to services.

Viewing these facts in the light of J. Lee Gregory, supra, we must conclude that the essence and dominating purpose of the contract was the sale of goods. See also Embryo Progeny Assoc. v. Lovana Farms, 203 Ga. App. 447, 448 (1) (416 SE2d 833) (1992). Southern’s reference to the installed piping and valves as a “system” does not change the conclusion that the contract primarily called for the purchase of tanks and associated materials, with installation services incidental.

We reject Southern’s contention that a jury must make a factual determination whether the contract was for goods or services. The determination of whether the contract was one for goods may be made on a motion for summary judgement when the facts necessary for that determination are undisputed. See J. Lee Gregory, supra; Embryo Progeny, supra; Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778, 779-780 (1) (409 SE2d 567) (1991). The trial court properly concluded from the evidence that the contract was for the sale of goods, governed by the UCC, and that suit was barred by the failure to file within four years of September 1987.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

       Although there is evidence Southern performed some minor portion of the contract in 1991, neither party suggests this affects Southern’s cause of action based upon a September 1987 substantial completion.

       Although the documents and deposition testimony recite the quoted price for the original tank as $77,000, the parties occasionally refer to the price as $75,000. It appears some confusion has been caused by the fact that the first price quoted for the “water treatment assembly” was $75,000, although that was later changed to $62,000. Whether the agreed upon price for the original tank was $77,000 or $75,000 makes no difference to the analysis on appeal.


text:
    A96A0241.
    KELLY et al. v. LEWIS et al.
    (471 SE2d 583)
   Beasley, Chief Judge.

This case involves a fatal shooting at a public high school. The Kellys are the grandparents of the deceased, Jaison Kelly, and the co-administrators of his estate. They appeal the trial court’s order granting defendants Lewis and German’s motion to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6).

Jaison was a high school student at Beach High School in Savannah. Lewis was its principal and German was a coach and teacher. While on his way to school one morning, Jaison was attacked by a gang of teenage boys, beaten, and shot once in the head allegedly by Aron Gilliam, a named defendant who is not a participant in this appeal. Jaison died from the gunshot wound almost a month after the incident.

The Kellys originally sued the Savannah-Chatham County Board of Education. The Board asserted the defense of sovereign immunity and moved for dismissal, OCGA § 9-11-12 (b) (6), or alternatively for judgment on the pleadings, OCGA § 9-11-12 (c). The Kellys then moved to add Lewis and German as defendants, which the trial court allowed; it granted the Board’s motion to dismiss, which is not appealed.

The Kellys’ amended complaint alleged that Lewis and German were aware of the risks of violent crime to the students and failed to take appropriate steps to safeguard Jaison against such risk in that they failed to provide adequate supervision for arriving students, resulting in the attack on Jaison; failed to exercise ordinary care in conducting their ministerial duties; failed to carry out or enforce rules requiring school personnel to provide security and to monitor students in the area where Jaison was beaten and shot; failed to provide adequate security despite knowledge of criminal activity; failed to exercise ordinary care to protect the students in their care, custody and control; and failed to secure the high school to prevent unauthorized persons from coming on the campus. The Kellys also alleged the Board of Education had promulgated rules, policies and procedures requiring that school personnel be present at the entrance of the school to insure safe arrival of students and that Lewis and German failed to follow these rules to insure the safe entry of students.

The Kellys further alleged that Lewis as principal of the high school failed to have a posted duty roster identifying those persons in charge of monitoring the entry of students, designate the individuals responsible for monitoring safe entry of students, and insure that school personnel were present at the front of the school to monitor the arrival of students. They alleged that German failed to be present at the front of the school to insure the safe entry of the students in accordance with his duties to insure that other individuals were present to insure safe arrival of the students and to review any duty roster posted to insure whether it was his responsibility to monitor the arrival of students.

The Kellys enumerate three perceived errors but each turns on whether the trial court erred in concluding as a matter of law that the acts or omissions allegedly committed by Lewis and German were discretionary rather than ministerial in nature, and in then dismissing the complaint on the basis of the defendants’ official immunity.

In determining whether to grant a motion to dismiss, the court must construe the pleadings in the light most favorable to the nonmovant, with all doubts resolved in the non-movant’s favor, even though unfavorable constructions are possible. Dismissal may only be granted if the allegations in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. DeKalb County v. Ga. Paperstock Co., 226 Ga. 369, 370 (1) (174 SE2d 884) (1970).

A 1991 amendment to the 1983 Georgia Constitution, found in Art. I, Sec. II, Par. IX (d), is the current source of official immunity. The Supreme Court, in Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), explained the basis of official or qualified immunity and that its scope covered discretionary acts (unless wilful, wanton, or outside the scope of the defendant’s authority) but not negligent ministerial acts. Id. at 750 and 752. It stated that this type of shield from personal liability “does provide immunity for the negligent performance of discretionary acts, which is consistent with prior law. This interpretation comports with the purpose of providing immunity from personal liability to government employees who work in positions where they make policy or exercise discretion.” Id. at 753 (6). See also City of Atlanta v. McKinney, 265 Ga. 161, 166 (454 SE2d 517) (1995).

The Kellys allege that the trial court erred in granting the motion to dismiss where the face of the complaint alleged that the acts or omissions of Lewis and German were ministerial, even though the trial court acknowledged that, for purposes of deciding the motion, the correct legal standard required the Kellys’ allegations be accepted as true. The standard only requires that factual allegations be construed favorably toward the Kellys. The determination of whether the acts or omissions of Lewis and German were ministerial or discretionary is a legal question for the court. See, e.g., Gilbert, supra.

In making its determination, the trial court relied on Guthrie v. Irons, 211 Ga. App. 502, 506 (2) (439 SE2d 732) (1993), where we reiterated prior holdings “that making decisions requiring the means used to supervise school children is a discretionary function of a school principal,” and that the teachers’ task to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity. The Kellys attempt to distinguish Guthrie as turning on the principal’s negligent performance of duties that included an element of judgment or discretion, while this case involves defendants’ complete failure to follow the Board rules.

We rejected a similar argument in the recent case of Wright v. Ashe, 220 Ga. App. 91 (469 SE2d 268) (1996), in which plaintiff’s son was killed in an automobile accident one morning while he was skipping school. As in this case, the plaintiff distinguished Guthrie by arguing the school board had established policies and rules requiring the students not to leave the school premises. She maintained that carrying out these policies was a purely ministerial duty, one which the defendant principals and teachers failed to perform. Accordingly, she argued that official immunity would not protect the defendants since the school board’s policies required the defendants to carry out ministerial acts such as those in Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990). In that case, we held that the duty to erect barricades after the county had determined that certain bridges were to be closed was a purely ministerial task. We affirmed summary judgment to the defendants in Wright, reiterating an observation from the Guthrie decision that we find applicable in this case: “[T]he ministerial duty in Joyce, supra, ‘is not remotely comparable to the difficult task faced by the school principal and teacher in this case in supervising and controlling the activities of students. . . .’ Guthrie, supra at 506.” Wright, supra at 93. See also Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995); Doe v. Howell, 212 Ga. App. 305, 306 (2) (441 SE2d 767) (1994).

“ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cit.]” Joyce, supra at 96. The Kellys argue that because German was required to merely stand in front of the school as a “presence,” and not to “monitor” the situation, he was executing a specific duty, and the task was thus ministerial. When he failed to appear for his assigned duty in front of the school, he was negligent in exercising this ministerial duty.

Decided May 23, 1996

Donaldson, Herndon, Bell & Metis, Thomas R. Herndon, for appellants.

Karsman, Brooks & Callaway, Donald C. Bowman, Jr., for appellees.

The trial court considered this argument to be an elevation of form over substance, noting that under the Kellys’ analysis, the violation of a rule that requires a discretionary act be performed would be classified as ministerial until performance was actually undertaken. We agree and affirm its view that the complete failure to perform a discretionary act is the same as the negligent performance of that act for the purposes of determining whether such action was discretionary or ministerial. The need to preserve independence of action without deterrence or intimidation, spoken of in Gilbert, supra at 750, includes the decision where best to direct attention at any particular moment to insure the orderly and secure movement of students, as recognized in Guthrie, supra at 505. Thus, dismissal was required.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

       Although the trial court and the parties discussed the case under the standard utilized for judgment on the pleadings as well as for a motion to dismiss, the court in fact granted the motion to dismiss and entered judgment for the defendants. The standard for each is similar. See ALW Marketing Corp. v. McKinney, 205 Ga. App. 184, 186 (421 SE2d 565) (1992).

       Certain other language in Guthrie was disapproved in Gilbert, supra at 750 (4).


author: Judge Harold R. Banke.

text:
    A96A0311.
    In the Interest of S. L. W., a child.
    (471 SE2d 579)
   Judge Harold R. Banke.

The biological mother of S. L. W. appeals the juvenile court’s termination of her parental rights. The juvenile court also terminated the parental rights of S. L. W.’s putative father but no appeal has been taken from that portion of the court’s order.

The applicable standard of review is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. In the Interest of T. M. R., 208 Ga. App. 499, 500 (430 SE2d 865) (1993). “The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.” Id.

Viewed in that light, the evidence was as follows: The State’s first involvement with appellant occurred when Putnam County Department of Family and Children Services (“DFCS”) received a report that S. L. W., then approximately age one, had been bitten by a rat. S. L. W. was placed in foster care but later returned to appellant. When S. L. W. was about age two, Fulton County DFCS received a referral from Grady Hospital due to S. L. W.’s ingestion of psychotropic drugs but before DFCS could intercede, appellant and S. L. W. disappeared from the hospital. The next referral occurred when friends of appellant contacted DeKalb County DFCS because appellant left S. L. W., then almost age three, in their care but neglected to let them know when she might return for her daughter. S. L. W. remained in DFCS custody for about one month before being reunited with appellant. In January 1991, DeKalb County DFCS sought and received immediate custody because S. L. W., then age five, had sustained burns on her hands, knee, forehead, right thigh, arms, back and torso while in appellant’s care and custody. Appellant was subsequently charged with two counts of simple battery for the physical abuse of S. L. W. Appellant entered a plea of nolo contendere to Count 1, burning S. L. W. on the knee with a cigarette, and pleaded guilty to Count 2, punching S. L. W. in the chest with her fist. Appellant was sentenced to 12 months probation on each offense to run consecutively.

While the criminal charges were pending, appellant asserted that S. L. W. suffered from a dysautonomia, a rare disease also known as Riley-Day syndrome, where a person is unable to differentiate by touch between hot and cold temperatures. Even though a geneticist and two neurologists determined that S. L. W. did not and does not have this condition, appellant solicited help for S. L. W., leaving fundraising cans with various businesses. In August 1991, the juvenile court conducted an adjudicatory hearing and entered an order finding S. L. W. to be deprived and awarding temporary legal custody to DFCS. Appellant did not appeal.

As a precondition for reunification with the child, DFCS set several goals to be met by appellant. Judicial citizen review panels evaluated appellant’s progress every six months from January 1991 up to the termination hearing. At the termination hearing, caseworkers who had worked directly with appellant testified about appellant’s failure to comply with most of the goals in the reunification plans. The caseworkers detailed how appellant failed to show that she could appropriately discipline, supervise or protect S. L. W. On several occasions, appellant threatened to physically assault the caseworkers. A psychologist testified about appellant’s personality disorder, mood swings, and need for intensive psychotherapy. The juvenile court determined that only two of the goals had been met and after hearing the testimony of nine witnesses and reviewing the evidence, ordered appellant’s parental rights terminated. Held:

1. The juvenile court did not err in finding that S. L. W. did not need to testify at the termination hearing. OCGA § 15-11-83 (c) authorizes the juvenile court to exercise its discretion to determine whether it is in the child’s interest to be brought before the court. To determine the necessity of S. L. W.’s presence, the juvenile court conducted a separate hearing during which S. L. W.’s guardian ad litem strenuously objected to requiring her presence. S. L. W.’s behavioral therapist, who conducted over 200 counseling sessions with S. L. W. since February 1991, testified that following visits with her mother or attendance at court proceedings, S. L. W.’s behavioral problems, including incidents of self-mutilation, would intensify dramatically. The juvenile court determined that S. L. W.’s testimony was not material or necessary to the termination proceedings and that requiring her to testify was not in her best interest. Under these facts, we are not able to say that the juvenile court abused its discretion. See Harvey v. Fulton County Dept. of Family &c. Svcs., 147 Ga. App. 824 (250 SE2d 563) (1978).

2. The case plans were sufficiently plain, clear, and definite to comport with the requirements of due process. See OCGA § 15-11-41 (c). The plans articulated highly specific requirements and goals and were not ambiguous, vague, or arbitrary.

3. Prior to termination, reasonable efforts to reunite mother and daughter were made in compliance with State law. OCGA § 15-11-41 (c) (3). OCGA §§ 15-11-81 (b) (4) (C) and 15-11-41 (b) impose a duty on DFCS to make “reasonable efforts” to reunite the family for at least a year after a family reunification plan is formulated. In the Interest of M. R., 213 Ga. App. 460, 465 (2) (444 SE2d 866) (1994). Because the record amply documents the efforts made to effectuate reunification after S. L. W. entered State custody, we are unable to conclude that the State failed to satisfy the statutory requirements.

4. The juvenile court’s determination was supported by the evidence in the record. Termination of parental rights requires a two-step process whereby, first, the juvenile court determines whether there is “present clear and convincing evidence of parental misconduct or inability,” and second, the juvenile court then must consider “whether termination of parental rights is in the best interest of the child.” OCGA § 15-11-81 (a).

After the juvenile court took judicial notice of the prior deprivation order, which was unappealed, only the remaining three criteria of OCGA § 15-11-81 (b) (4) (A) (ii)-(iv) needed to be proven to show parental misconduct or inability. In the Interest of B. P., 207 Ga. App. 242 (427 SE2d 593) (1993).

The second criterion, lack of proper parental care or control by the parent in question causing the child’s status as deprived, is supported by evidence. Appellant physically abused S. L. W. and was criminally prosecuted for this abuse. Appellant failed to obtain ongoing professional counseling for her violent and destructive behavior. A psychologist who evaluated appellant, testified that appellant needed intensive, long-term psychotherapy and without such treatment, appellant’s extremely volatile behavior, psychological problems and continued denials that she ever abused S. L. W., placed S. L. W. at greater risk if she were ever returned to appellant. During the termination hearing, appellant continued to deny inflicting any burns and used the alleged syndrome as an explanation for the numerous burns and scars on S. L. W., claiming that S. L. W. sustained burns from a curling iron, space heater, stove, and toaster.

In light of appellant’s physical abuse of S. L. W., extensive psychological impairment, failure to obtain proper treatment for her problems, and the detrimental effects her actions have had on S. L. W., appellant failed to exercise proper parental care or control which resulted in S. L. W.’s deprivation. OCGA § 15-11-81 (b) (4) (A) (ii).

As to the third criterion, the past conduct of a parent is properly considered by a court in determining whether such conditions of deprivation are likely to continue. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). Appellant repeatedly failed to complete the goals for reunification, failed to complete case plans, failed to provide proof of steady employment, and failed to obtain on-going professional psychological counseling. Therefore, the “cause of deprivation is likely to continue or will not likely be remedied.” OCGA § 15-11-81 (b) (4) (A) (iii).

As to the fourth criterion, the evidence showed that appellant was incapable of properly parenting her child and that her ineptitude was not likely to end. Further, the evidence showed that after visits from appellant, S. L. W.’s behavior problems and anxiety intensified. Incidents such as S. L. W.’s carving herself with a shard of glass, burning herself on her stomach with an iron, and thrusting her foot through glass, occurred after encounters with appellant or the court system. Thus, the evidence was sufficient to satisfy the fourth criterion that “[t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iv).

Decided May 23, 1996.

Chandler R. Bridges, Hurl R. Taylor, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Robert G. Nardone, for appellee.

We find that the evidence presented to the juvenile court was sufficient to enable a rational factfinder to have found by clear and convincing evidence, parental misconduct or inability as required by OCGA § 15-11-81 (b). See In re B. D. C., 256 Ga. 511, 512-513 (350 SE2d 444) (1986); In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988).

“[T]hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Appellant had an extensive pattern of failing to maintain stable permanent housing and legitimate employment. Although appellant claimed she no longer worked as a prostitute, and was gainfully employed as a nurse’s aide for an elderly man, DFCS was unable to satisfactorily verify her employment. The evidence further indicated that appellant never established a lasting relationship with her daughter and failed to meet S. L. W.’s emotional and psychological needs.

For the foregoing reasons, we find that a rational trier of fact could have found clear and convincing evidence that the deprivation is likely to continue and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to S. L. W. In re B. D. C., 256 Ga. at 513; OCGA § 15-11-81 (b) (4) (A) (iii, iv). Accordingly, the juvenile court correctly determined that the termination of appellant’s parental rights was in the best interest of S. L. W.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

       Because appellant failed to support her federal statutory law argument with citation of authority or argument, it is deemed abandoned. Court of Appeals Rule 27 (c) (2).


author: Pope, Presiding Judge.

text:
    A96A0374.
    AC CORPORATION et al. v. MYREE.
    (471 SE2d 922)
   Pope, Presiding Judge.

On May 24, 1993, Willie Myree suffered an on-the-job injury while working for AtlantaStaff, Inc. AtlantaStaff paid him workers’ compensation benefits and, more than a year but less than two years after the accident, brought suit against two parties it contended had negligently caused Myree’s injury: AC Corporation and Frito-Lay. See OCGA § 34-9-11.1 (c). In that lawsuit, AtlantaStaff sought recovery for “Myree’s injuries, Myree’s past and future medical expenses, lost wages and pain and suffering.” Myree moved to intervene in that suit on May 1, 1995, pursuant to OCGA § 9-11-24 (a). He attached to his motion a proposed complaint seeking to recover from AC and Frito-Lay the same damages sought by his employer, as well as an affidavit asserting his interest in the case and the inability of AtlantaStaff to adequately protect his interest. He served these documents on Frito-Lay and AC Corporation by serving their attorneys in compliance with OCGA §§ 9-11-24 (c) and 9-11-5 (b). The trial court granted that order more than two years after his injury. We granted this interlocutory appeal by AC and Frito-Lay to determine whether the trial court erred in allowing Myree to intervene.

Because AtlantaStaff paid workers’ compensation benefits on behalf of Myree, it had the right to bring this action on his behalf pursuant to OCGA § 34-9-11.1 (c). That same statute gave Myree an unconditional right to intervene in AtlantaStaff’s action, even though Myree would be required to institute an independent action against the tortfeasor within two years from the date of injury. See Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995) (discussing similar right of employer to intervene in employee’s suit). Here, Myree filed a motion to intervene before the statute of limitation expired but did not receive leave of court to join the suit before that two-year period ended. After exploring the relationship between the Civil Practice Act’s provisions on intervention, joinder of parties (OCGA § 9-11-21), and relation back of amendments (OCGA § 9-11-15 (c)), we conclude the trial court did not abuse its discretion by allowing this intervention.

1. AC and Frito-Lay properly state that if a party to the suit moved to add Myree as a party plaintiff to this lawsuit pursuant to OCGA § 9-11-21, the filing of a mere motion within the statute of limitation would be ineffective to do so. As we held in Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 327 (436 SE2d 63) (1993), filing a motion to add a party does not toll the statute of limitation. A party seeking to add a party must first obtain a court order allowing that joinder, then file the amended complaint within the statute of limitation and serve the defendants with process in a timely manner or, failing that, show the amended complaint “related back” to the original complaint. OCGA § 9-11-15 (c); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 733 (307 SE2d 530) (1983). In this case, however, Myree seeks only to intervene in the action. For the reasons which follow, we hold that a motion to intervene does not necessarily require adherence to the Civil Practice Act’s rules for adding parties and claims.

“[T]here is a difference between the question whether one is a proper plaintiff or defendant in an initial action and the question whether one is entitled to intervene.” Chiles v. Thornburgh, 865 F2d 1197, 1212, n. 16 (11th Cir. 1989) (quoting Shapiro, 81 Harv. L. Rev. at 726). We have defined intervention as “the procedure by which a third person, not originally a party to a suit, but claiming an interest in the subject matter, comes into the case, in order to protect his right or interpose his claim.” (Citation and punctuation omitted.) Hunt v. Henderson, 178 Ga. App. 688, 690 (344 SE2d 470) (1986). A true intervenor “takes the case as [he] finds it” and cannot expand the litigation, Gregory v. Allstate Ins. Co., 134 Ga. App. 461, 463 (214 SE2d 696) (1975); he or she merely stakes a claim to a share in the result of the pending litigation. See, e.g., Brown, 219 Ga. App. at 28, and Hulsey v. Hulsey, 212 Ga. App. 269, 270 (1) (441 SE2d 477) (1994), in which the intervenors asserted only their entitlement to a share of the damages sought in the pending action.

In such cases, the rules applicable to adding parties plaintiff and defendant, OCGA §§ 9-11-21 and 9-11-15 (c), do not apply. In this case, for example, had AtlantaStaff sought to add additional defendants it would be required to obtain leave of court to do so and then file the amended complaint and timely serve those defendants because the defendants’ right to service is independent of a plaintiff’s right to add a party. Peoples v. State Farm &c. Ins. Co., 211 Ga. App. 55, 57 (438 SE2d 167) (1993). In such a hypothetical case, if the amendment were filed past the statute of limitation the court would be required to determine if the defendant “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” (Emphasis supplied.) OCGA § 9-11-15 (c) (2).

Intervention under § 9-11-24, on the other hand, involves not a mistake in pleading but the injection of a third person uncontrolled by the parties. Furthermore, the intervention statute itself contains a formula for proper service in subsection (c). Thus, the trial court should allow intervention so long as the application to intervene is timely and the intervenors meet the requirements of OCGA § 9-11-24. As we have often stated, whether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court. Kubler v. Goerg, 197 Ga. App. 667, 670 (2) (399 SE2d 229) (1990); Allgood v. Ga. Marble Co., 239 Ga. 858, 859 (239 SE2d 31) (1977). While the trial court must weigh strongly in its decision whether intervention will prejudice a party, in certain cases intervention is proper even after judgment. Sta-Power Indus. v. Avant, 134 Ga. App. 952, 959 (3) (216 SE2d 897) (1975).

In this case, before the statute of limitation expired Myree filed a motion to intervene and served that motion as outlined in OCGA § 9-11-24 (c) by mailing a copy of the motion to attorneys for Atlanta-Staff, AC and Frito-Lay. The court deemed the motion timely filed and did not abuse its discretion in allowing intervention. Even if the statute of limitation would bar his independent claim, Myree complied fully with the intervention statute before the bar took effect.

Decided May 23, 1996

Dennis, Corry, Porter & Gray, James S. Strawinski, Matthew J. Jewell, for appellants.

Ford & Harrison, F. Carter Tate, John L. Monroe, Jr., Swift, Currie, McGhee & Hiers, Lloyd B. Hedrick, Jr., Irwin & Martin, R. Chris Irwin, Timothy V. Hanofee, for appellee.

2. It is crucial to note that Myree’s motion sought no further relief than that which AtlantaStaff already sought against AC and Frito-Lay. Should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, however, the intervenor’s ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15 (c). Such a case would involve not only “intervention” but also independent claims.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       Even if the law required Myree to file and serve a complaint on these defendants, that complaint would relate back to AtlantaStaff’s original complaint under § 9-11-15 (c), as AC and Frito-Lay had actual knowledge of these claims and of Myree’s right to intervene before the two-year statute expired. See Dover Place, 167 Ga. App. at 735.


text:
    A96A0579.
    STRICKLAND v. THE STATE.
    (471 SE2d 576)
   Beasley, Chief Judge.

Strickland appeals from his conviction on charges of felony obstruction of a law enforcement officer (OCGA § 16-10-24 (b)) and misdemeanor obstruction of an emergency medical technician (“EMT”) (OCGA § 16-10-24.2 (b)).

1. The first question is whether the evidence was insufficient to support the convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, supra; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

The county emergency services dispatcher received a call from a woman at Strickland’s residence who stated a child had ingested poison. Two uniformed EMTs responded in a marked ambulance. Strickland was in the driveway when they arrived and they parked on the street. Strickland was hostile and told them the child was not there, but he also stated the child had been taken to the hospital, examined, and returned. The EMTs had arrived at Strickland’s house five to ten minutes after receiving the call; it would have taken longer than that to leave Strickland’s house, travel to the nearest hospital, and return.

The EMTs asked to see the child but Strickland told them to leave and threatened them with bodily harm. Several people appeared on the porch, including a nervous woman holding a crying child. Although Strickland stated the child needed no attention, at no time did he claim to be the child’s parent or guardian. Both EMTs testified they did not enter Strickland’s yard or driveway and that their duties required them to assess the medical situation of those for whom emergency calls are made.

Because of Strickland’s threats, the EMTs called for assistance from the sheriff’s office, and Deputy McCarty arrived shortly. After speaking with the EMTs he walked up the driveway and attempted to speak with Strickland about the situation. Strickland continued to threaten the EMTs and then threatened McCarty, stating he would go into his house, get a gun, and kill McCarty. McCarty had been to the house before and knew there were weapons inside. He positioned himself between Strickland and the house, so when Strickland attempted to go towards the house directly through McCarty, McCarty stopped him. As Strickland was being subdued, he told his son, who had come down from the porch, to get a gun from the house, but McCarty convinced the son otherwise.

The EMTs were not able to hear the earlier conversation between McCarty and Strickland, but did hear Strickland make threats after he had been handcuffed. One EMT heard Strickland tell his son to get the gun. The crying child proved to be the poison victim, but by the time the EMTs examined him he had been given food and salt, vomited, and was not in need of further medical attention.

Strickland contends that the EMTs were not in the lawful discharge of their official duties. Although he argues he rightfully told the EMTs to leave his property, the evidence was that they did not enter his yard or driveway but spoke to him from beyond. Despite this location, he ordered them to leave and threatened their persons. He had given an obviously false story about the child, including a version that the child had already been assessed for medical problems due to poison, showing Strickland’s recognition that such an assessment was necessary.

Strickland made no claim to be the parent or legal guardian of the child, or otherwise to be one who might be able to refuse medical treatment on behalf of the child. See generally OCGA §§ 31-9-2 (a) (2), 31-9-3; In re L. H. R., 253 Ga. 439 (321 SE2d 716) (1984); In re Doe, 262 Ga. 389, 391-393 (2) (418 SE2d 3) (1992). The child and the woman holding him never stated they did not want medical attention. Strickland was obviously not the woman who had called about the emergency, and the EMTs could infer the woman who appeared was both the person who had called and the caretaker of the crying, poisoned child she held.

Regardless of any property right he held at this time, Strickland had no right to threaten the EMTs, or to interfere in the medical treatment of the child, or to order the EMTs from the public street. Such actions constituted willful obstruction of EMTs in the lawful discharge of their duties, as charged. The fact that it was later determined the child did not need professional attention is irrelevant; the EMTs’ analysis of the situation was within their duties and it was that duty Strickland obstructed.

Strickland also asserts McCarty had no right to go upon his property, was therefore making an unlawful arrest, and consequently he was justified in opposing that arrest. Even if the confrontation is considered an arrest, it would have been lawful. As noted above, Strickland had already committed the offense of obstruction of an EMT, and McCarty had been so advised before entering the property. Compare Brooks v. State, 206 Ga. App. 485, 488 (2) (425 SE2d 911) (1992); Wagner v. State, 206 Ga. App. 180, 181-183 (424 SE2d 861) (1992). McCarty not only had probable cause to arrest Strickland on that charge, Strickland’s continued interference with the EMTs’ attempt to fulfill their duty and examine the still-unattended poison victim was an exigent circumstance that would justify McCarty’s entry onto private property without a warrant. See King v. State, 217 Ga. App. 889, 891 (459 SE2d 605) (1995); Coker v. State, 164 Ga. App. 493, 495 (5) (297 SE2d 68) (1982).

The evidence showed McCarty was in the lawful pursuit of his duties when Strickland offered to do violence to his person, OCGA § 16-10-24 (b), and that the EMTs were in lawful discharge of their duties when he wilfully obstructed them, OCGA §16-10-24.2 (b). This was sufficient to support the convictions. Jackson, supra.

2. Strickland also enumerates as error the court’s refusal to give three written jury charge requests pertaining to the offense of obstruction of a law enforcement officer. Each dealt with the requirement that a defendant oppose the officer with forcible resistance or threat, not merely argument or obnoxious behavior. See Kelley v. State, 171 Ga. App. 222, 223 (319 SE2d 81) (1984); Moccia v. State, 174 Ga. App. 764, 765 (331 SE2d 99) (1985); Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990), overruled as to misdemeanor obstruction, Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). He contends it was error to omit them because his sole defense was that he only verbally objected to McCarty’s actions and did not use any forcible resistance or threat until McCarty first restrained him.

“ ‘The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge. [Cits.]’ [Cit.]” Printup v. State, 217 Ga. App. 495, 496 (3) (458 SE2d 662) (1995). Accord Nix v. State, 135 Ga. App. 672, 674 (4) (219 SE2d 6) (1975); Jackson v. State, 154 Ga. App. 867, 868 (2) (270 SE2d 76) (1980). That principle does not apply. First, it does not appear Strickland’s sole defense was lack of forceful resistance or threat. He presented no evidence and his closing argument is not in the record, but at the close of the State’s evidence he moved for a directed verdict on the ground that McCarty was not authorized to be where he was and that all actions Strickland took were justified. He did not suggest that the evidence supported an inference that Strickland’s hinderance of McCarty was only by mere protest, and the record does not show he ever argued to the court that he was entitled to the charges because they concerned his sole defense; in fact, the record only discloses a different defense.

Second, even if “no forcible resistance or threat” was his sole defense, he was not entitled to a charge on it unless it was “ ‘raised by the evidence or placed in issue.’ ” (Citation omitted.) Wainwright v. State, 197 Ga. App. 43, 44 (2) (397 SE2d 456) (1990). Accord Davis v. State, 169 Ga. App. 601, 602 (3) (314 SE2d 257) (1984); Thompson v. State, 181 Ga. App. 832, 833 (3) (354 SE2d 20) (1987); Printup, supra. Neither Strickland nor any person on his porch or in his yard at the time of the incident testified. Only McCarty testified as to what words passed between him and Strickland before Strickland was restrained. That testimony unequivocally showed a threat on McCarty’s life before any physical restraint. When cross-examining McCarty, Strickland did not inquire about the threats to McCarty. He contends that McCarty’s testimony was uncorroborated; even were that determinative it is not the case. The EMTs testified as to Strickland’s threats before McCarty appeared and after the altercation began. This is sufficient to corroborate McCarty’s testimony.. See Ellis v. State, 176 Ga. App. 384, 386-387 (3) (336 SE2d 281) (1985).

There was simply no evidence presented that raised a defense that Strickland opposed McCarty only by communication that did not rise to the level of forcible resistance or threat.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided May 23, 1996.

Robert W. Lavender, for appellant.

Lindsay A. Tise, Jr., District Attorney, Jeanie Ware, Assistant District Attorney, for appellee.