text:
    A95A2015.
    PHEARS v. DOYNE.
    (470 SE2d 236)
   Pope, Presiding Judge.

Plaintiff H. Wayne Phears, a Georgia resident, entered into a contract for the sale and restoration of a classic car with defendant Mark Doyne, a Florida resident. Defendant had advertised the car in a worldwide classic car journal published in Vermont. After seeing defendant’s ad in Georgia, plaintiff contacted defendant at his office in Florida. Plaintiff then visited Florida and inspected the car. Negotiations over the phone (and fax) began, with plaintiff in Georgia talking long distance to defendant in Florida, and the parties eventually reached an agreement. Plaintiff drafted a contract in Georgia and mailed it to defendant in Florida, who signed the document in Florida and mailed it back. Plaintiff also wired funds to defendant in Florida, where the restoration work was to be done. Problems arose, however, and plaintiff sued defendant in Georgia, alleging breach of contract, conversion, fraudulent misrepresentation, and intentional infliction of emotional distress. The trial court dismissed for lack of personal jurisdiction over defendant, and we affirm that dismissal.

1. This case is controlled by Flint v. Gust, 180 Ga. App. 904 (351 SE2d 95) (1986), which was reversed in part and affirmed in part by Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987). Like plaintiff here, the plaintiff in Gust saw an advertisement for a vehicle in a trade paper published in another state but mailed to the plaintiff in Georgia. He then contacted the defendants, the owners of the advertised vehicle, at their home in Wisconsin. As in this case, the parties in Gust negotiated an agreement through long distance phone calls, and the plaintiff sent the defendants a deposit. A dispute arose, however, and plaintiff sued defendants in Georgia, asserting claims based on breach of contract as well as tort.

Presented with these facts, this Court held in Gust that Georgia courts could not exercise jurisdiction over the defendants under OCGA § 9-10-91 (1) because the advertisement in a national publication and subsequent negotiation and contract with a Georgia resident did not constitute the transaction of business in this state. Flint v. Gust, 180 Ga. App. at 905-906 (1). “It is well settled that an out-of-state defendant will not be deemed to have engaged in purposeful business activity in this state merely because he has advertised products for sale in national trade magazines circulating in this state and has accepted orders for such products which have been transmitted to him from this state by mail, telephone, or other instrumentality of interstate commerce in response to such advertisements. [Cits.]” Id. This is the portion of Flint v. Gust which was not reversed by the Supreme Court, and it is dispositive of plaintiff’s contract-based claims in this case. See also Smith v. Air Ambulance Network, 207 Ga. App. 75 (427 SE2d 305) (1993); A. A. A., Inc. v. Lindberg, 172 Ga. App. 753, 755 (324 SE2d 480) (1984). Contrary to plaintiff’s suggestion, the fact that he drafted the agreement in Georgia does not affect this result, as defendant executed the agreement in Florida. If anything, plaintiff’s position is even weaker here than in Gust, because: (1) unlike the plaintiff in Gust, plaintiff here actually traveled to defendant’s home state for the only meeting of the parties, and (2) unlike the agreement in Gust, the agreement in this case contemplated further work on the vehicle, all of which was to occur in defendant’s home state.

2. Our second holding in Flint — the one which was reversed by the Supreme Court — allowed the plaintiff to proceed with his tort-based claims. See Flint v. Gust, 180 Ga. App. at 908. In reversing, the Supreme Court held that where the defendant’s unrebutted affidavit established that he did not do any of the acts which OCGA § 9-10-91 requires as a basis for personal jurisdiction, there could be no jurisdiction. As defendant’s unrebutted affidavit similarly established that he did not do any of those acts in this case, the trial court’s dismissal of plaintiff’s tort-based claims was also proper. See also Behar v. Aero Med Intl., 185 Ga. App. 845 (2) (366 SE2d 223) (1988).

3. In light of our affirmance of the dismissal for lack of personal jurisdiction, plaintiff’s argument that the trial court should have entered a default judgment against defendant is moot.

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur because we are compelled to do so by Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987). However, I would agree with the dissent in that case, which would allow a liberal interpretation of Georgia’s Long Arm Statute. This would be in harmony with the judicially articulated lodestar of the statute, which is that it “ ‘contemplates that jurisdiction shall be exercised over nonresident parties to the maximum extent permitted by procedural due process.’ ” Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9) (1979), quoting Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60 (195 SE2d 399) (1973).

Here there are minimum contacts with Georgia. Defendant invited Georgia residents to do business with him with respect to the sale and restoration of his Jaguar. His communications, directed to Georgia and intended to be acted upon here, were received and action was initiated. The anguish, which plaintiff alleged in conjunction with his claim for intentional infliction of emotional distress, was suffered by plaintiff primarily in Georgia. The injury occasioned by fraud, if any, was also inflicted in Georgia. Defendant’s actions prompted the expenditure by plaintiff of substantial funds in Georgia. If these and other contact points present in this case meet the minimum threshold to assure that suit against the Florida defendant in Georgia would be consistent with “ ‘ “traditional notions of fair play and substantial justice.” ’ [Cit.]” Clarkson Power Flow, supra at 301, then the statute should apply. Unfortunately, Gust says they do not.

Whether the Supreme Court’s construction of the statute is correct or not, it is still open for the legislature to address the issue and assure the maximum recourse to Georgia courts for Georgia citizens to resolve disputes with foreign persons or entities. See Gust, supra at 130 (Gregory, J., concurring specially).

Decided January 25, 1996

Reconsideration denied March 11, 1996

Phears & Moldovan, Jenny E. Jenson, Wendy A. Jacobs, for appellant.

Kicklighter & Mayer, Raymond C. Mayer, for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A2132.
    NICKERSON et al. v. HOLLOWAY et al.
    (469 SE2d 209)
   Pope, Presiding Judge.

The parties are attorneys disputing the division of a $400,000 contingency fee resulting from the settlement of a wrongful death/ personal injury action. The client hired defendant Holloway and his firm, and Holloway associated plaintiff Nickerson and his firm with the client’s knowledge and consent. Holloway and Nickerson did not agree on or even discuss how they would divide the fee. Because Nickerson took most of the depositions, prepared all of the pleadings, and did most of the negotiating in the case, he subsequently took the position that he should get all or most of the fee. The trial court rejected this position and granted Holloway 50 percent of the fee on summary judgment, and Nickerson appealed. Agreeing with the trial court’s determination that the fee should be divided 50-50 percent as a matter of law, we affirm.

1. Georgia has historically followed the majority rule that “ ‘[l]awyers jointly undertaking to represent a client without a contract as to the division of fees share equally.’ [Cit.]” Glover v. Maddox, 98 Ga. App. 548, 557 (1) (106 SE2d 288) (1958). Nickerson contends that this rule has been implicitly overruled by Directory Rule 2-107 (a) (2) of the State Bar Rules, which provides that a lawyer should not divide a fee with another lawyer unless “the division is made in proportion to the services performed and responsibility assumed by each.” But the purpose of this rule is to protect clients from the payment of referral fees which could unfairly inflate their bills by allowing attorneys to collect payment for little or no work, and this purpose is not implicated where the attorneys dividing the fee have both done some work on the case and there is no suggestion that the client’s fee is inflated or unreasonable. See Watson v. Pietranton, 364 SE2d 812, 816, n. 1 (W. Va. 1987) (Neely, J., concurring). For this reason, we agree with those courts which have held that as long as both attorneys have done some work on the case beyond signing and referring the client, the courts will not engage in the cumbersome task of evaluating after the fact the relative contributions made by the bickering attorneys. See, e.g., Stissi v. Interstate & Ocean Transport Co., 814 F2d 848 (2d Cir. 1987) (applying New York law); Schniederjon v. Krupa, 474 NE2d 805 (Ill. App. 1985). We recognize that some other jurisdictions interpret the rule to require the fee division to bear at least a substantial relationship to division of work and responsibility. See, e.g., Dragelevich v. Kohn, Milstein, Cohen & Hausfeld, 755 FSupp. 189 (N. D. Ohio 1990) (applying Ohio law); McNeary v. American Cyanamid Co., 712 P2d 845 (Wash. 1986). Because this approach is not necessary to serve the purpose of the rule and because of the practical difficulties inherent in implementing it, however, we find these cases unpersuasive.

Accordingly, Directory Rule 2-107 (a) (2) does not preclude a SO-SO percent split even if the work and responsibility were not divided 50-50 percent. It follows that Glover is still good law: in the absence of an agreement to the contrary, attorneys working together on a case are presumed to be joint adventurers who will share their fee equally.

2. In this case, both attorneys did some work on the case and there is no suggestion that the client’s fee was inflated or unreasonable. Although Nickerson testified generally that Holloway “didn’t do any real work on this case,” Holloway presented evidence that he took photos of the accident site, interviewed the fact witnesses, and prepared extensive notes which were later used by Nickerson as well as the expert witness; that he gathered medical records and bills and transmitted them to Nickerson; that he met with the decedent’s family and accompanied them to hearings and depositions; that he prepared the family for their depositions; that he took one deposition; that he had some conversations with opposing counsel in the course of negotiations; and that he handled probate matters and the automobile insurance claim for the family (for which there was no charge beyond the contingency fee). In light of this evidence of specific work Holloway did, Nickerson’s general conclusion that Holloway did not do any real work does not create an issue of fact regarding whether Holloway did some work beyond referring the case to Nickerson. Accordingly, the rule of Glover applies, and the trial court did not err in granting Holloway summary judgment for 50 percent of the fee.

3. Nickerson’s argument that Holloway should not be allowed to keep any of the fee because he was disbarred after completion of the case, for reasons unrelated to the case, is meritless. In the cases Nickerson relies on, the attorneys were all disbarred prior to conclusion of the case, and were therefore unable to complete their work for the client. See, e.g., Egan v. Waggoner, 170 NW 142 (S. D. 1918).

Decided January 18, 1996

Reconsideration denied March 11, 1996

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., for appellants.

Bell & James, John C. Bell, Jr., for appellees.

4. Lastly, Nickerson’s assertion that there was an implied contract to split the fee other than 50-50 percent is not supported by the record.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       We note that the Directory Rules of our State Bar provide guidelines as statements of policy, but do not provide a basis for civil liability. See Davis v. Findley, 262 Ga. 612 (422 SE2d 859) (1992). Indeed, the rules themselves limit the remedy for their violation to “disciplinary action and/or punishment.” Id. at 613. Any complaint that a division of fees is so disproportionate that it violates Directory Rule 2-107 (a) (2) should therefore be addressed to the State Bar. See Donohue v. Green, 209 Ga. App. 381 (433 SE2d 431) (1993).


text:
    A95A2255.
    THE STATE v. HUDGINS.
    (469 SE2d 363)
   Pope, Presiding Judge.

The State brought this conversion action against defendant Floyd Hudgins, seeking to recover $9,768.30 which the State accidentally paid Hudgins when his name was not removed from the State payroll due to an administrative error. The trial court granted summary judgment for Hudgins, concluding that Hudgins’ employment was never effectively terminated because the State failed to follow the procedures required for terminating an employee entitled to coverage under the involuntary separation retirement benefits provisions of OCGA § 47-2-123. The State argues that a material question of fact remains regarding whether Hudgins knew or should have known that his conduct would lead to his dismissal, and thus whether his dismissal was truly “involuntary.” While this question may be material to the issue of Hudgins’ right to actually collect involuntary separation benefits, it is not material to the State’s need to follow the procedures set forth in OCGA § 47-2-123. Accordingly, we affirm the trial court’s grant of summary judgment for Hudgins.

We view the facts in a light most favorable to the State as the non-moving party on a motion for summary judgment. Hudgins was a longtime member of the General Assembly. After he lost his bid for re-election in 1988, he used his connections with Governor Joe Frank Harris’s office to secure employment with the Department of Natural Resources (“DNR”). Rather than being placed in an already existing job, the Governor gave Hudgins a specific project in line with his area of expertise — to develop a pilot program for a Youth Conservation Corps (“YCC”) in Georgia. The parties agreed at the time of Hudgins’ employment that his position would continue only as long as the General Assembly appropriated funds for the YCC. Hudgins secured funding for 1989 and submitted a proposal by the end of that year. His proposal was not endorsed by the Governor or accepted by the General Assembly, however, and funding was cut off in the 1990 legislative session.

Although it was the understanding of the Governor’s office that Hudgins’ employment would automatically cease on June 30, 1990, no one took the necessary steps to take Hudgins off the payroll. He therefore remained on the payroll until Joe Tanner, the new Commissioner of the DNR, noticed and questioned his salary in late 1990. Tanner then notified Hudgins that his continued receipt of paychecks had been a mistake and asked Hudgins to return the money, but Hudgins refused.

A State employee who is entitled to coverage under the involuntary separation retirement benefits provisions of OCGA § 47-2-123 cannot be released from employment unless the State employer follows specified procedures, and any attempt by the State to terminate the employment of such an employee without following those procedures is ineffective. See OCGA § 47-2-123 (g) & (h). It is undisputed that the State in this case did not follow the specified procedures. Thus, if Hudgins was an employee entitled to coverage under the involuntary separation retirement provisions of OCGA § 47-2-123, his employment was never effectively terminated and the grant of summary judgment was proper.

Hudgins first became a member of the Employees’ Retirement System (“ERS”) in May 1971, when he was a legislator; and he remained a member until January 1981, at which point he became a member of the Legislative Retirement System. Hudgins then became an ERS member again in December 1988, when he took the YCC position offered through the Governor’s office, and he stayed an ERS member through June 1990. It is now clear (although it was not clear when this litigation began) that Hudgins is entitled to ERS credit for that portion of his legislative career during which he was an ERS member. See Evans v. Employees’ Retirement System &c., 264 Ga. 729 (450 SE2d 195) (1994). Accordingly, at the time Hudgins was purportedly terminated in June 1990, he had been an ERS member for more than ten years (see OCGA § 47-2-122), he had first become a member prior to March 31, 1972 (see OCGA § 47-2-123 (a)), and he had reached the age of sixty (see OCGA § 47-2-123 (c)). Hudgins was therefore entitled to coverage under the involuntary separation retirement benefits provisions of OCGA § 47-2-123, and the procedures set forth in OCGA § 47-2-123 (h) should have been utilized.

Citing Haggins v. Employees’ Retirement System &c., 255 Ga. 352, 354 (2) (338 SE2d 1) (1986) and Dept. of Public Safety v. Willis, 218 Ga. App. 541 (462 SE2d 386) (1995), the State argues that Hudgins is not entitled to involuntary separation retirement benefits unless his discharge was truly “involuntary.” In Haggins, the Supreme Court held that an employee who intentionally causes his own dismissal, or engages in conduct he knows or should know will lead to his dismissal, is not involuntarily separated for purposes of collecting involuntary separation retirement benefits. 255 Ga. at 354 (2). And whether or not a particular discharge was truly “involuntary” is a jury question. Id. at (1) and (2).

Decided February 16, 1996

Reconsideration denied March 11, 1996.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Jeff L. Milsteen, Senior Assistant Attorneys General, for appellant.

Worthington & Flournoy, Samuel W. Worthington III, for appellee.

A distinction must be made, however, between an “employee who is entitled to coverage under the involuntary separation retirement benefits provisions of this Code section” as a general matter, OCGA § 47-2-123 (g), and an employee who is actually entitled to receive involuntary separation benefits under the specific circumstances of his particular case. Otherwise, an employer deciding whether the procedures of OCGA § 47-2-123 must be used would have to play the jury’s role and make a fact-specific determination about whether the employee’s dismissal is in fact “involuntary” before taking a course of action. This is not the proper approach. Instead, if the objective criteria for coverage under the involuntary separation retirement benefits provisions of OCGA § 47-2-123 are met as a general matter, the procedures set forth in OCGA § 47-2-123 (h) must be utilized, even if a jury may later determine that the employee is not entitled to such benefits under the specific circumstances of the case.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2522, A95A2523.
    STOCKS v. GLOVER; and vice versa.
    (469 SE2d 677)
   Pope, Presiding Judge.

In this legal malpractice action, plaintiff Marie Stocks appeals from the grant of summary judgment for defendant Irma Glover, and Glover cross-appeals from the dismissal of her counterclaim for abusive litigation.

We view the facts in a light favorable to Stocks as the party opposing summary judgment. Glover represented Stocks in Stocks’ divorce proceedings. As the result of Glover’s failure to file a notice of lis pendens, Stocks’ husband was able to use the marital residence to secure an $83,000 loan on April 6, 1989. And on February 9, 1990, Stocks’ husband used the marital residence to secure a second loan, thereby increasing the encumbrance on the home to $125,000.

Stocks first sued Glover on February 8, 1994. This action was voluntarily dismissed without prejudice on June 24, 1994, and renewed on August 26, 1994. The trial court granted Glover’s motion for summary judgment on the ground that the original action was not brought within four years. The court then dismissed Glover’s abusive litigation counterclaim as premature, and these appeals resulted. We affirm in both cases.

1. In Case No. A95A2522, Stocks acknowledges that recovery for any damages resulting from the first security deed is barred by the four-year statute of limitation, but argues that she should be allowed to recover any additional damages resulting from the second security deed, since the original lawsuit was filed less than four years from the date of that second encumbrance. The limitation period in a legal malpractice case begins as soon as there is a breach of the attorney’s duty and some degree of harm, however, even if the degree of harm is minimal and much or most of the harm occurs later. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 (1) (273 SE2d 16) (1980). Moreover, the attorney’s subsequent failure to take advantage of an opportunity to correct his earlier mistake is not a separate breach for which the client has a new cause of action. Id. at 807 (2); Leon Jones Feed & Grain v. Gen. Business Svcs., 175 Ga. App. 569, 570-571 (333 SE2d 861) (1985). In Jankowski, the plaintiff’s underlying case had been dismissed because the attorney did not appear for a calendar call, and the Supreme Court held that the attorney’s subsequent failure to discover the dismissal and refile plaintiff’s case before the statute of limitation ran was not a separate breach. Id. at 805-807. In Leon Jones Feed & Grain, an accountant failed to advise a client about an available tax exemption, and we held that his subsequent failure to advise the client about his right to a refund of overpaid taxes for three years was not a separate breach. Id. at 569-572. In the same way, Glover failed to file a notice of lis pendens as soon as the divorce was pending, and her failure to realize her mistake and correct it by filing the notice of lis pendens later was not a separate breach. See also Long v. Wallace, 214 Ga. App. 466 (2) (448 SE2d 229) (1994).

Stocks asserts that since Glover had a continuing duty to file a notice of lis pendens and never did so, she breached her duty every day the divorce proceeding was pending. Thus, Stocks’ argument goes, the additional harm from the second encumbrance joined with a new breach of duty to create a new cause of action which accrued on February 9, 1990 — less than four years before Stocks’ original action against Glover was filed. This argument has some logical appeal, but is precluded by Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (2) (368 SE2d 732) (1988), in which the Supreme Court held that continuing tort theory is applicable only to cases involving personal injury.

Decided January 22, 1996

Reconsideration denied March 11, 1996

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Cauthorn & Phillips, Thomas E. Cauthorn III, B. Wayne Phillips, for appellee.

2. In Case No. A95A2523, we conclude that the trial court properly dismissed Glover’s abusive litigation claim as premature, since it was brought before the final termination of the proceeding. See OCGA § 51-7-84 (b). Stocks’ voluntary dismissal of her original action was not a “final termination” of the proceeding for purposes of this section. See OCGA § 9-2-61 (case may be renewed after dismissal).

Judgments affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1996.
    JARRETT et al. v. STATE OF GEORGIA.
    (472 SE2d 315)
   McMurray, Presiding Judge.

On December 8, 1994, the State filed an in rem forfeiture complaint, pursuant to OCGA § 16-13-49, seeking to forfeit property that was seized by law enforcement officers after Larry Jarrett was arrested and charged with possession of methamphetamine with intent to distribute, possession of amphetamine, two counts of possession of illegal firearms, possession of a vehicle with an altered vehicle identification number and possession of dangerous drugs. The State requested (in its prayer for relief) that, “in the event no claimant files an answer in accordance with the specific statutory requirements of OCGA § 16-13-49 (o) (3), that the Court order the immediate disposition of the seized and forfeited property in accordance with subsection (o) (4).”

Claimants Larry Jarrett, Wyman Jarrett and Karen Kramer were personally served with the forfeiture petition on December 9, 1994, and claimant Steve Blalock was served with the forfeiture petition on December 22, 1994, via publication pursuant to OCGA § 16-13-49 (o) (2) (B). On January 3, 1995, claimants each filed an answer to the petition for forfeiture.

On January 24, 1995, the State filed motions for judgment of forfeiture and disposition of property, asserting that claimants’ answers did not satisfy the specific pleading requirements of OCGA § 16-13-49 (o) (3) and that, since the time for filing an appropriate answer expired, disposition of the seized property must be ordered pursuant to OCGA § 16-13-49 (o) (4). Thereafter, the State agreed with claimants to continue the hearing on this motion from February 1, 1995, to April 3,1995. In the meantime, however, claimants each filed, on February 27, 1995, an amended answer to the forfeiture complaint. The State responded on March 23, 1995, with motions to dismiss the amended answers, pointing out that the amended answers filed by claimants Larry Jarrett, Wyman Jarrett and Kramer were filed 81 days after they were served and that claimant Blalock’s amended answer was filed 67 days after he was served with the forfeiture complaint.

After a hearing, the trial court entered an order (which includes detailed findings of fact and conclusions of law) granting the State’s motions for judgment of forfeiture and disposition of property and motions to dismiss the amended answers. This appeal followed. Held,'.

1. Claimants contend that answers to forfeiture petitions are governed by the Civil Practice Act and that, as such, substantial compliance with the pleading requirements of OCGA § 16-13-49 (o) (3) is all that is required. Claimants then go on and assert that the answers they filed within 30 days after service of the State’s forfeiture petition substantially complied with the pleading requirements of OCGA § 16-13-49 (o) (3). This contention is without merit.

“It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements. Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981); Bragg v. Bragg, 225 Ga. 494, 495 (170 SE2d 29) (1969).” State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76). Further, failure to comply with the strict pleading requirements prescribed in OCGA § 16-13-49 (o) (3) when answering an in rem forfeiture petition is equivalent to filing no answer at all. See State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b), supra. In the case sub judice, we have carefully examined the claimants’ answers and find that none was filed in compliance with the specific pleading requirements of subsections (D), (E) and (F) of OCGA § 16-13-49 (o) (3). Specifically, the answers fail to set forth the date, identity of transferor and circumstances of the claimants’ interests in the property and fail to set forth the specific provision of OCGA § 16-13-49 relied on in asserting that the property is not subject to forfeiture, with all essential facts supporting each such assertion. Further, the answers were neither verified “under penalty of perjury” as required by OCGA § 16-13-49 (o) (3), nor set forth any address at which the claimants will accept mail in compliance with OCGA § 16-13-49 (o) (3) (B). The answers only included the address of claimants’ attorneys. Thus, claimants’ first pleading that claimants filed in response to the State’s forfeiture petition amounted to no answers at all. State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b), supra.

Decided March 11, 1996

Greer, Klosik & Daugherty, John F. Daugherty, Deborah M. Carter, for appellants.

Michael J. Bowers, Attorney General, Lance K. Hiltbrand, for appellee.

2. Alternatively, claimants contend that their amended answers complied with OCGA § 16-13-49 (o) and related back to their first answers so as to resurrect their claims. This argument is without merit. “If at the expiration of the period set forth in paragraph (3) of this subsection no answer has been filed, the court shall order the disposition of the seized property as provided for in this Code section.” OCGA § 16-13-49 (o) (4).

The trial court did not err in granting the State’s motions for judgment of forfeiture and disposition of property and motions to dismiss the amended answers.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       The property that was seized and allegedly acquired via illegal means or used to facilitate Larry Jarrett’s illegal activities includes 52 motor vehicles, 27 firearms, over 220 articles of personal property, over $70,000 in United States currency, several checks and several bank accounts. Four tracts of land are listed in the style of the forfeiture complaint.


text:
    A95A2195.
    BRANCH v. ALLIANCE SYNDICATE, INC. et al.
    (469 SE2d 807)
   McMurray, Presiding Judge.

Branch, an independent insurance agent acting through his closely held corporation, solicited quotes for a general liability policy for a client, Glasstream Boats, Inc. (“Glasstream”). A policy written by Alliance Syndicate, Inc. (“Alliance”) was obtained through an insurance broker. Glasstream was obligated to pay an initial minimum premium with the final premium to be determined at the expiration of the policy period and based on the total sales of the company.

Branch was to collect premiums from the insured, deduct a commission, and remit the balance to the broker. The initial premium was collected in this manner, but after the expiration of the policy period the insured, Glasstream, questioned the amount of the audit premium it was billed.

On October 21, 1988, and following the audit, Alliance invoiced Commercial Insurance Broker, Inc. (“CIB”), which had replaced the original insurance broker as the broker of record. This invoice showed a gross audit premium due of $140,817 with a net due Alliance of $123,918.96, representing a 12 percent broker’s commission. CIB, in turn, invoiced Branch’s corporation which, after billing Glasstream, learned that the insured maintained that the audit was incorrect and provided this information to CIB.

On January 13, 1989, Alliance’s chief financial officer contacted Hughes of CIB and requested an explanation as to why the premium had not been collected. Hughes was given until January 18, 1989, to collect the audit premium and told that if the premium was not collected by then Alliance’s agency relationship with CIB would be terminated.

Hughes did not collect the audit premium and Alliance retained a collection agency known as Night Score which sent employees to Glasstream which again raised questions as to the accuracy of the audit. Subsequently, Alliance reduced the audit premium because auditors had incorrectly included freight charges in the sales figures upon which the audit premium was based. Branch participated in reviewing the revised audit premium for correctness and was informed that Alliance and Glasstream had agreed to installment payments for satisfaction of the audit premium.

The agreement between Alliance and Glasstream called for five weekly payments of $25,000 and a final payment of $7,047 due March 3, 1989. The initial installment payments from Glasstream to Alliance were made in a timely manner, but the fourth weekly installment was late and the fifth payment was for the reduced amount of the final payment. The remaining installment payment was not forthcoming despite numerous telephone calls from Alliance.

On June 15, 1989, Branch’s corporation was served with a lawsuit filed by CIB seeking to recover under its contract with the corporation the amount of the audit premium less amounts paid by Glasstream to Alliance. Branch called Hughes to inquire as to the reason for the lawsuit and was told that Glasstream still owed $25,000 under the installment plan and was told by Hughes to collect it. Branch called Glasstream and was told to come the next day and pick up a check for the $25,000 remaining balance of the audit premium.

The following day Branch went to Glasstream and collected the $25,000 remaining on the audit premium, a copy of the installment payment schedule, and copies of cancelled checks from earlier payments under the installment plan. Glasstream requested a hold harmless agreement from CIB because of its concern over the installment payment plan.

On June 21, 1989, Branch remitted to CIB the amount of $19,367.32 representing the $25,000 less a four percent commission (apparently upon the entire audit premium, including sums paid directly to Alliance under the installment agreement) along with a request for a hold harmless agreement for Glasstream from CIB. Neither Hughes nor CIB remitted any of the Glasstream funds received from Branch to Alliance.

Subsequently, Alliance filed this action for conversion against CIB, Hughes, and Branch resulting in a verdict against these defendants jointly and severally in the amount of $25,000. Punitive damages and damages for attorney fees and expenses of litigation were awarded against CIB and Hughes jointly and severally. This appeal is taken by Branch from the judgment entered against him. Held’.

1. The first enumeration of error maintains that the trial court erred in denying Branch’s motion for directed verdict. Branch argues that Alliance is estopped to deny the continuation of the agency relationship between itself and CIB so that the instructions to Branch to collect the final payment from Glasstream must be imputed to Alliance. But even if this contention is assumed to be correct, a verdict in favor of Branch was not demanded.

While Branch was entitled to retain a four percent commission from premiums he and his company were authorized to collect, at least a question of fact remained as to their entitlement to a commission on audit premiums collected directly by Alliance under the installment plan through the efforts of Night Score and without their participation. Thus, even if his actions were otherwise proper, a judgment against Branch for conversion could have been predicated on his retention of “commissions” in excess of those to which he was entitled.

Additionally, there was evidence which, a jury might determine, should have alerted Branch to the termination of the agency relationship between Alliance and CIB. Months before the alleged conversion, Branch learned that Alliance had retained another agent to collect the premium on the Glasstream policy and knew Alliance and Glasstream had entered into an agreement for installment payments. There is also ample proof that Branch recognized that the installment payment plan might adversely affect his right to commissions on the audit premium. These events were followed by a period of five months during which Branch had no involvement in any further activity concerning collection of the audit premium. Finally, before transferring the funds received from Glasstream to CIB, Branch had received a copy of the installment payment agreement which called for direct payment from Glasstream to Alliance. If Branch should have known that CIB was no longer an agent of Alliance, his actions in collecting the funds and forwarding them to CIB were clearly unauthorized. The trial court’s denial of Branch’s motion for directed verdict was not error. Dept. of Human Resources v. Thomas, 217 Ga. App. 174, 176 (1) (b) (456 SE2d 724).

Decided March 11, 1996.

Reinhardt, Whitley & Wilmot, William D. Reinhardt II, Robert C. Wilmot, for appellant.

Richard J. Dreger, Rex P. Cornelison III, for appellees.

2. Under the circumstances of the case sub judice, Branch’s reliance upon the maxim, that an action for conversion will not lie for the recovery of money, is misplaced. The present case involves a well identified exception to the general rule, that is, where the allegedly converted money is specific and identifiable such as insurance premiums earmarked for remittance to the insurer. Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 89 (4) (c) (460 SE2d 545).

3. Next, Branch contends the trial court erred in failing to provide a jury verdict form which would permit the jury to specify the particular damages to be recovered of each defendant severally. But the construction of OCGA § 51-12-31 (formerly Code Ann. § 105-2011) upon which this contention is predicated has been rejected by our Supreme Court. “In Ivey v. Cowart, 126 Ga. 159 (6) (52 SE 436) [the Supreme Court of Georgia] stated that, ‘The jury in their verdict may specify the particular damages to be recovered of each [defendant], and judgment will then be entered severally. But the defendants are not entitled to require damages to be apportioned by the verdict.’ ” Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 344 (5) (196 SE2d 869).

4. In the three remaining enumerations of error, Branch maintains that certain jury charges requested by plaintiff were not properly adjusted to the evidence presented at trial. Each of the contested charges was a correct statement of law and, contrary to Branch’s arguments, addressed issues posed by the evidence presented at trial. These enumerations of error are without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Judge Harold R. Banke.

text:
    A95A2463.
    DOAK v. U. S. PRIME PROPERTY, INC. et al.
    (469 SE2d 812)
   Judge Harold R. Banke.

In this slip and fall case, Elaine Doak appeals the trial court’s grant of summary judgment to U. S. Prime Property (“Prime”), the owner of the shopping mall where the injury occurred, and third-party defendant Service Management Systems, Inc. (“SMS”), the mall’s cleaning service.

Viewed in the light most favorable to the non-movant, the evidence shows that Doak, a woman in her mid-60s, fell on a fresh flower petal lying in the common area of the mall and injured her neck, head, back, and left leg. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). A man sitting nearby who witnessed her fall noticed a small wet spot, discovered the petal, and brought it to Doak’s attention. Doak testified that nothing distracted her attention before the fall. Several witnesses to the fall testified that they could not recall seeing any maintenance personnel patrolling the area at the time Doak fell.

Doak subsequently filed this action, alleging negligence. The trial court granted summary judgment, finding that: (1) evidence of SMS’s regular inspection procedure in place when the injury occurred refuted Doak’s claim that Prime or SMS had constructive knowledge of the petal; and (2) no evidence supported Doak’s allegations that the floor looked slippery and she could not see the flower because it blended with the design on the floor.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp., supra. Defendants who will not bear the burden of proof at trial may prevail on summary judgment by pointing out by reference to the record that there is no evidence sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. Id. Held:

The trial court properly granted summary judgment. To recover, Doak had to present evidence that: (1) Prime or SMS had actual or constructive knowledge of the petal; and (2) she lacked knowledge of, or they prevented her from discovering, the petal. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). Theoretically, the sole basis for imposing liability on Prime and SMS would be their superior knowledge of the allegedly hazardous condition. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992).

Because there is no evidence that Prime and SMS had actual knowledge of the petal, as movants they bore the burden of showing that no genuine issues of fact remained to be tried as to their lack of constructive knowledge of the allegedly hazardous condition. Winn-Dixie &c. v. Ramey, 186 Ga. App. 257, 258-259 (2) (366 SE2d 785) (1988). Constructive knowledge can be established with evidence that: (1) Prime or SMS failed to exercise reasonable care in inspecting the premises; or (2) an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Smith, 199 Ga. App. at 809. Because there is no evidence that employees were in the vicinity when Doak fell, we must focus on the degree of care expended in inspecting the premises. Evidence of adherence to reasonable and customary inspection and/or cleaning procedures on the day of the injury refutes a claim of constructive knowledge. Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (1), 430 (408 SE2d 443) (1991). When such evidence is produced, the burden then shifts to the non-movant to demonstrate that the hazard had been on the floor long enough to allow a reasonable time for its removal. Ramey, 186 Ga. App. at 259.

Prime and SMS presented evidence that reasonable and customary inspection and cleaning procedures were in place the day Doak fell. An SMS supervisor attested that he had patrolled and inspected the area at issue every half hour during the operative time to assure that another SMS employee, who was responsible for inspecting and cleaning the area each half hour, was doing his job. The supervisor denied seeing any flower petals. This evidence is sufficient to refute Doak’s allegations of constructive knowledge.

Although Doak responded with testimony from several witnesses who could not recall seeing any maintenance personnel before she fell, the record is silent on whether the supervisor wore a uniform, insignia, or other indicia of his position. Further, the witnesses agreed that it was possible that maintenance personnel came by but they did not notice them. Moreover, two of the witnesses admitted that they had not been in the area for over 30 minutes and the third gave confusing testimony that he had been there “10 or 15 minutes” and a “half hour or an hour.” Doak testified that she had no idea how long the petal had lain on the floor. The evidence is not sufficient to raise a genuine issue of material fact as to whether SMS had adhered to its inspection policy.

We reject Doak’s arguments that Prime and SMS had superior constructive knowledge of the hazard because their employees were more familiar with the floor’s shininess and design, both of which purportedly prevented her from seeing the petal. No evidence supports this contention or demonstrates that Prime or SMS failed to exercise reasonable care in maintaining the premises. Compare Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991) (defendant failed to present evidence that it followed usual inspection procedures). Moreover, the surface and design were open and obvious, and Doak in effect had equal knowledge of them. Froman v. George L. Smith &c., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). Further, the record shows that Doak was familiar with the floor’s surface and design, having walked over the area numerous times during prior visits to the mall. In the absence of any proof that Prime and SMS had superior knowledge of the hazard, summary judgment was appropriate.

Decided March 11, 1996.

Barr, Warner, Lloyd & Henifin, Karen D. Barr, for appellant.

Forbes & Bowman, Morton G. Forbes, John A. Foster, Woodall & Mackenzie, Malcolm Mackenzie III, for appellees.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A95A2810.
    McDONALD v. COCA-COLA ENTERPRISES, INC.
    (469 SE2d 805)
   McMurray, Presiding Judge.

David McDonald filed an action, based on respondeat superior, against Coca-Cola Enterprises, Inc. (“Coca-Cola”), alleging that he was injured when a Coca-Cola employee negligently backed a tractor-trailer into his arm during a docking maneuver at a warehouse where McDonald was employed as a forklift operator. Coca-Cola denied the material allegations of the complaint and later filed a motion for summary judgment, asserting that any injuries McDonald sustained were the result of a failure to exercise ordinary care for his own safety. The evidence, construed with an eye toward upholding McDonald’s cause of action, Mull v. Mickey’s Lumber &c. Co., 218 Ga. App. 343, 344 (1) (461 SE2d 270), reveals the following.

On November 13, 1992, Ronald Holcomb backed an empty tractor-trailer rig into a docking port at a warehouse to pick up a load of soft drink cans for his employer, Coca-Cola. McDonald, who was responsible for loading the trailer, determined that he could not insert his forklift ramp because Holcomb had parked the trailer too close to the loading bay’s wall. McDonald thus called for Holcomb to move the trailer forward and, in compliance with this command, Holcomb slowly pulled the rig away from the wall. As soon as sufficient clearance opened between the trailer and the loading bay’s wall (about six to eight inches), McDonald stuck his arm through the gap to signal for Holcomb to stop. The trailer, however, suddenly lurched back and crushed McDonald’s arm against the wall. McDonald was pinned for a few seconds and then released. He fell dazed and noticed a bone protruding from his arm.

This appeal followed an order granting Coca-Cola’s motion for summary judgment. Held:

“Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury. [Cits.]” Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810). The case sub judice does not fall within the exception. That is, we cannot say (as a matter of law) that it was unreasonable for McDonald to stick his hand between the gap that was opening between the loading bay’s wall and the trailer in order to signal Coca-Cola’s truck driver to stop. Such questions are for a jury, not the trial court upon summary adjudication. Accordingly, there being genuine issues of material fact regarding Holcomb’s alleged negligent operation of Coca-Cola’s truck and McDonald’s alleged failure to watch out for his own safety, the trial court erred in granting Coca-Cola’s motion for summary judgment.

The dissent’s statement that McDonald committed a “ ‘manifestly foolhardy’ ” act for giving hand signals to Coca-Cola’s driver as his truck was pulling away from the loading bay wall improperly assumes the role of the factfinder in such cases. Whether a similarly situated loading bay laborer would or would not have acted as McDonald did, under the same or similar circumstances, is not a matter within the natural province of the court, but is a question uniquely suited for general consideration of the jury.

Judgment reversed.

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

Andrews, Judge,

dissenting.

Because I find the sole proximate cause of McDonald’s injury was his failure to exercise ordinary care for his own safety, I respectfully dissent from the majority’s position.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the plaintiff’s case; instead, the defendant’s burden may be discharged by showing an absence of evidence to support at least one essential element of the plaintiffs case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, the material facts are undisputed. McDonald told the driver of the 48-foot-long tractor-trailer rig to pull his truck forward a few inches, and, while the driver was pulling forward, McDonald put his arm in the approximately six- to eight-inch space between the trailer and the warehouse wall to signal the driver to stop. McDonald was not asked to signal the driver, and he did not tell the truck driver to watch for his signal. McDonald now admits it was unsafe for him to put his arm out there. McDonald testified that while he now knows it was unsafe to put his arm out, he “never even thought about it before.”

Decided March 11, 1996

Finch, McCranie, Brown & Thrash, Charles E. McCranie, Thomas W. Thrash, Jr., for appellant.

Rowe, Foltz & Martin, Stephen M. Katz, for appellee.

“One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care.” Brooks v. Douglas, 154 Ga. App. 54, 58 (267 SE2d 495) (1980) (physical precedent only). In order for a court to find as a matter of law that the plaintiff’s contributory negligence is the proximate cause of the injury, the danger must be near enough as to make the plaintiff’s act so “manifestly foolhardy” that it “would not be undertaken by an ordinarily prudent person.” Brooks, supra at 59.

Accordingly, based on McDonald’s own testimony, I find the act of placing one’s arm in a six- to eight-inch space between a moving tractor-trailer truck and a wall is a “manifestly foolhardy” act given the obviously near and immediate danger. Therefore, I find that, as a matter of law, McDonald failed to exercise ordinary care for his own safety and this failure to exercise ordinary care was the sole proximate cause of his injury. Thus, as the defendant has satisfied his burden of showing an absence of evidence to support an essential element of the plaintiff’s case, I would affirm the trial court’s granting of summary judgment to Coca-Cola.


author: Ruffin, Judge.

text:
    A95A2884.
    In the Interest of S. H., a child.
    (469 SE2d 810)
   Ruffin, Judge.

A petition alleging delinquency was filed in juvenile court accusing S. H., age 12, with aggravated sodomy. A hearing was held pursuant to OCGA § 15-11-33 (a), and the juvenile court found that S. H. had committed the act. Because the offense would have been a crime if committed by an adult, the court adjudicated S. H. delinquent. The court also found that S. H. was incompetent. S. H. appeals the juvenile court’s decision to hold the adjudicatory hearing despite his incompetence.

The record shows that S. H.’s mental age at the time of the offense was that of a six-year-old child, with an I.Q. of 40. His court-appointed guardian ad litem testified that S. H. did not know the difference between right or wrong, and a court-ordered evaluation of S. H. noted that he was “not a good historian for detail.”

S. H.’s court-appointed counsel moved to have S. H. declared incompetent to stand trial. Although the court determined that S. H. was in fact incompetent, it nevertheless denied the motion. The court reasoned that because “Georgia law does not provide a statutory framework in order to protect juveniles [sic] rights not to be tried in a delinquency proceeding while they are incompetent,” as a juvenile, S. H. was not entitled to be competent during the adjudicative proceedings.

The evidence presented at the adjudicatory proceeding was conflicting. The victim’s five-year-old sister witnessed the alleged incident and testified that S. H. removed his own clothing, pulled down her brother’s pants, made her brother lie on his back, and got on top for just a minute until her big brother arrived. She testified that the victim said nothing, but made a giggling noise. The victim reportedly told his mother that S. H. got on top of him and placed his penis in the victim’s mouth and then attempted to anally sodomize him. The mother admitted that a physician informed her that the victim had not been penetrated. The victim’s babysitter, the first person the victim talked to after the incident, gave a statement to police indicating that the victim told her only about the act involving anal sodomy. Neither the victim nor S. H. testified. S. H. presented no defense.

The court subsequently adjudicated S. H. guilty of the act alleged beyond a reasonable doubt. At the hearing, the court stated that there was no evidence that S. H. actually committed anal sodomy. It also found that the delinquent behavior occurred due to a lack of adult supervision. The court observed that S. H. “is not a mean or violent child but is recreating events that have occurred to him and he does not realize the wrong of his actions.” The court ordered S. H. jointly committed to the Department of Children & Youth Services (“DCYS”), and the Department of Human Resources permitted him to be released into his mother’s custody pending placement and recommended that he not be placed in a detention environment. However, the court stated that “at every turn” the DCYS “recklessly disregarded” its direction by detaining S. H., ceasing his mental health counseling, and failing to consult with S. H.’s guardian ad litem regarding his treatment plan.

S. H. argues that the juvenile court violated his due process rights by adjudicating him delinquent and depriving him of his liberty when he was not competent to understand the nature of the proceedings or assist in his own defense. We agree.

The stated purpose of the Juvenile Court Code is to assist, protect, and restore children whose well-being is threatened as secure law-abiding members of society, and the Code must be liberally construed to that end. OCGA § 15-11-1 (1); P. R. v. State, 133 Ga. App. 346, 347 (1) (210 SE2d 839) (1974). To promote this commendable purpose, the General Assembly created a comprehensive civil forum for treating and protecting juveniles, “replete with distinctions between criminal matters and matters concerning juveniles alleged delinquent.” In the Interest of M. B., 217 Ga. App. 660, 661 (458 SE2d 864) (1995); OCGA § 15-11-38. These differences, which emphasize treatment and rehabilitation, spare the child some of the collateral consequences of a criminal conviction. Id.; OCGA § 15-11-38 (a), (c); see also OCGA §§ 15-11-33 (c); 15-11-36.1; S. Krantz, C. Smith, D. Rossman, P. Froyd, J. Hoffman, Right to Counsel in Criminal Cases 53 (1976). As is evident in this case, however, the consequences do not always differ. Both juvenile and criminal proceedings may result in a significant loss of liberty. See, e.g., OCGA § 15-11-37 (e) (restrictive custody) and (g) (DCYS retains power to confine child beyond periods specified by court).

It follows that constitutional considerations must necessarily transcend even the most admirable legislative purposes. See In the Interest of S. L. H., 205 Ga. App. 278, 280 (422 SE2d 43) (1992). “ ‘[T]he juvenile charged with “delinquency” is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial.’ ” (Emphasis in original.) Id. at 279-280. Without question, these include the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront opposing witnesses. In re Gault, 387 U. S. 1, 13 (87 SC 1428, 18 LE2d 527) (1967).

We believe the cornerstone of these substantive rights is competence to understand the nature of the charges and assist in a defense. A want of competence renders the other rights meaningless. Dandoy v. Superior Court, 619 P2d 12, 15 (Ariz. 1980). “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, 387 U. S. at 13. “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U. S. 162, 171 (95 SC 896, 43 LE2d 103) (1975). Principles of fundamental fairness require that this right be afforded in juvenile proceedings. Accord In re Welfare of S. W. T., 277 NW2d 507, 512 (Minn. 1979); Dandoy, 619 P2d at 15.

The conflicting evidence presented in this case and the minimal proof supporting the aggravating factors underscore the gravity of the competence requirement. The court itself made a finding at the close of the evidence that S. H.’s counsel had “no defense due to the lack of his client’s ability to assist him.” Thus, all the other procedural rights afforded S. H. in this proceeding could not guarantee him the “essence of a fair trial” when his incompetence prevented him from mounting any defense. In the Interest of J. H. M., 202 Ga. App. 79, 80 (413 SE2d 515) (1991). Notwithstanding the State’s assertion to the contrary, there is a vast qualitative difference between being a minor and being incompetent to stand trial when it comes to the abilities to understand the nature and object of the proceedings, comprehend one’s own position in relation to the proceedings, and assist in one’s own defense. Holloway v. State, 257 Ga. 620, 621 (361 SE2d 794) (1987). We caution, however, that our holding does not create a bright-line rule that a juvenile’s mental age is determinative of his incompetence. We focus solely on the foregoing abilities and question whether the goals of the Juvenile Court Code can be achieved when children lacking them are subjected to the consequences of an adjudicatory proceeding. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Decided March 11, 1996.

Steven E. Phillips, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

Judgment reversed and case remanded.

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

       In its sole count, the petition appears to allege that S. H. committed a single act of aggravated sodomy “by use of force and against the will of . . . [the victim], by putting his penis in the anus and mouth of the victim.”


text:
    A95A1858.
    BRANNON v. THE STATE.
    (469 SE2d 716)
   McMurray, Presiding Judge.

Defendant Brannon appeals his conviction of a violation of the Georgia Controlled Substances Act, possession of marijuana with intent to distribute. Held:

1. The first enumeration of error raises the issue of the sufficiency of the evidence to authorize defendant’s conviction. Almost 11 pounds of marijuana were found in a search of defendant’s home. The marijuana was found in two locations, concealed in an antique ice chest in a detached garage and in a plastic barrel recessed into the ground of a side yard near the garage.

A beam scale was found concealed with the marijuana in the garage and nearby in plain view was a device used for sealing plastic bags. There was evidence that these devices are commonly used in weighing and packaging contraband for street sales. Also, a large amount of cash, totaling approximately $7,000, was found on defendant’s person or elsewhere in the house, as well as ten firearms.

Defendant relied upon evidence of his good character and of the access of others to the areas where the marijuana was found. Defendant presented evidence that at least a half dozen individuals including employees and acquaintances had virtually unlimited access to the areas where the contraband was found.

“ ‘ “Merely finding contraband on premises occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Cit.) “Presence at the scene of a crime and nothing more will not support a conviction.” (Cit.)’ Blankenship v. State, 135 Ga. App. 482, 483 (218 SE2d 157) (1975). ‘A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. (Cit.) This connection can be established by evidence which shows the contraband was discovered on premises occupied by and under the control of the accused with no equal right of access and occupancy in others. (Cit.)’ Mitchell v. State, 150 Ga. App. 44, 46-47 (2) (256 SE2d 652) (1979).” Burton v. State, 184 Ga. App. 805 (1) (363 SE2d 46). See also Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682).

Nonetheless, in the case sub judice, the jury was authorized to conclude that defendant’s evidence of equal access had been successfully rebutted by the State’s evidence. The evidence corroborating the inference of defendant’s possession of the marijuana included the discovery of a number of items in the home which are commonly associated with the drug trade, including large numbers of firearms, large amounts of currency, and the device used for sealing plastic bags. Whitfield v. State, 217 Ga. App. 402, 405 (3), supra. Also, a part-time maid who had worked in defendant’s home for over three years testified that hardly anyone came to the residence when defendant was not there. The evidence is sufficient to authorize the jury’s verdict that defendant is guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. There was no error in the denial of defendant’s request for a continuance. The attorney who had represented defendant from at least shortly after his indictment until mid-December 1994, a period in excess of a year, was discharged by defendant. The case against defendant was called for trial over three weeks later. During the interval defendant was briefly represented by his corporation’s attorney before retaining his trial counsel less than two weeks before trial. The newly retained trial counsel submitted the request for continuance in order to obtain possession of and permit expert evaluation of tape-recorded conversations between defendant and a confidential informant. The affidavit for the search warrant for defendant’s home was predicated in part on the conversation which had been recorded.

We have held time after time that a motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial judge and a ruling denying such a motion will not be interfered with unless the judge has abused his discretion in denying the motion. In these cases we have noted that the conduct of the party is a relevant and proper consideration of the judge in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic. Wehunt v. State, 168 Ga. App. 353, 355-356 (3) (309 SE2d 143); Cantrell v. State, 154 Ga. App. 725 (2), 726 (270 SE2d 12).

In this case, defendant would avoid being chargeable with the delay by arguing that his original attorney had not been diligent in developing the evidence in the case. But the record does not support such an inference nor otherwise support defendant’s motion for a continuance. The record contains only a reference in the affidavit which discloses that a recording was made of a conversation in which defendant tells the informant that he has marijuana and invites him to his home. The affidavit also states that the informant went to defendant’s home wearing a “body bugging device” and purchased marijuana. But defendant has not been charged with that sale. The recording was not played for the magistrate who issued the search warrant. Nor was it subsequently introduced into the record of this case. Defendant has failed to present any suggestion that the tape constitutes exculpatory evidence, but only wishes to obtain it so that it may be studied by a voice stress expert. The tapes played no part in the prosecution of defendant and defendant has failed to establish that the tape or his expert’s review of the tapes would constitute relevant and admissible evidence. Under these circumstances we find no abuse of the trial court’s discretion. Johnson v. State, 255 Ga. 703, 704 (2) (342 SE2d 312).

3. Nor did the trial court err in denying defendant’s motion to suppress evidence. Defendant’s reliance upon the absence of evidence before the issuing magistrate which would authorize the no-knock clause contained in the search warrant is misplaced. The circumstances in the present case cannot be distinguished from those in Adams v. State, 201 Ga. App. 12, 14 (3) (410 SE2d 139). As in Adams, the officers had knowledge of circumstances which led them to believe that giving notice of their authority and purpose before entering the residence would greatly increase their peril, and such knowledge provides a basis for a good faith belief on the part of the officers that they are authorized to proceed with a no-knock warrant issued by the magistrate.

Also, the search warrant was not a “general warrant” as to defendant in the sense that term is used in State v. Cochran, 135 Ga. App. 47, 49 (217 SE2d 181) since he was listed by name on the warrant. And there was no deficiency in the description of the premises to be searched because a rental apartment was discovered in the detached garage. Externally, defendant’s home appeared to be a single residence and the rental apartment was not revealed by police investigation. While the informant may have known of the apartment, there is no evidence that he shared such knowledge with law enforcement officers. We note also that the apartment appeared to be uninhabited at the time of the search. The description of the premises to be searched was sufficient to enable the officers to determine, with reasonable certainty and without depending upon their discretion, the person and place to be searched. Jackson v. State, 129 Ga. App. 901, 904 (1) (b) (201 SE2d 816).

We must reject defendant’s final assertion in support of his motion to suppress evidence, that the officer who obtained the search warrant relied upon false statements which he knowingly made to the issuing magistrate. This attempt to assert the rights delineated in Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) fails due to the absence of a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the search warrant, and that the allegedly false statement is necessary to the finding of probable cause. While the trial court did determine that the affidavit contained some stale information, this alone did not amount to the required showing and the trial court’s conclusion that the required showing had not been made was authorized by the evidence.

4. In his next enumeration of error, defendant complains of the prosecution’s cross-examination of a character witness. However, we find no prosecutorial misconduct in the testing of the witness’s knowledge of defendant’s reputation. In order to accomplish this, the State was entitled to explore specific acts of bad conduct. Chisholm v. State, 199 Ga. App. 746 (1) (406 SE2d 112). Thus, there was no error in asking the witness if she was aware of defendant’s arrest for shoplifting, a charge which led to a nolo contendere plea. Upton v. State, 128 Ga. App. 547, 551 (4) (197 SE2d 478).

Defendant also objected to a cross-examination question to his character witness: “So how many chances does a person get at breaking the law before you condemn them?” This question followed a lengthy discourse by the witness concerning her reluctance to draw unfavorable inferences where a person has made a mistake, learned from it, and would never repeat it. Defendant complained that the prosecution’s question misled the jury in that it suggested a non-existent or inadmissible disposition for the two offenses with which defendant had previously been charged. Whether or not the inference argued by defendant can be fairly drawn from the contested question, we conclude that it is highly unlikely that any error could have influenced the verdict in the case sub judice. Any error was harmless and provided no basis for reversal. Huckeba v. State, 217 Ga. App. 472, 477 (5) (458 SE2d 131); Toledo v. State, 216 Ga. App. 480, 483 (5) (455 SE2d 595).

Decided February 21, 1996

Reconsideration denied March 12, 1996

Michael E. Bergin, for appellant.

Lewis R. Slaton, District Attorney, Gina C. Marshall, Leonora Grant, Assistant District Attorneys, for appellee.

5. There is no merit in defendant’s remaining enumerations of error which complain of portions of the jury charge and recharge. Defendant’s evidence that many persons were permitted access to his home and particularly to the garage where a portion of the marijuana was found authorized a jury instruction on the issue of joint possession.

There was also no error in a recharge given in response to two questions from the jury concerning the facts established by the evidence at trial. The trial court declined to permit additional evidence or the refreshing of the juror’s memory, but did instruct the jury that the evidence was closed and that the jury should rely upon their collective memories regarding the evidence presented during the trial. This recharge did not contradict an earlier instruction on a question of law, the definition of “reasonable doubt” as “a doubt for which reason can be given arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these.” Nor can the recharge be reasonably perceived as impairing a defense based on a lack of evidence.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1945.
    DELK et al. v. TOM PETERSON REALTORS, INC. et al.
    (469 SE2d 741)
   McMurray, Presiding Judge.

Plaintiffs Donald W. Delk and Wanda Mosley Delk filed this action for fraud and for rescission of the contract by which they purchased a house. The named defendants are William B. Hayden and Susan Hayes Hayden, former owners of the house; PHH Homequity, Inc. (“PHH”), which contracted through William B. Hayden’s employment to act as co-sellers of the property; and Tom Peterson Realtors, Inc., and its employee, Debra Holly, who were engaged to sell the house.

The complaint alleged that Debra Holly, the agent who showed the house to plaintiffs, made certain misrepresentations regarding damage apparent in the house from water leaks, the apparent damage being explained as “carpet stains” or as having resulted from watering household plants. It is also alleged that defects in the structure supporting the roof over the great room were not divulged.

Ruling on motions presented by PHH, Tom Peterson Realtors, Inc., and Debra Holly, the superior court granted summary judgment in favor of all of the defendants. The primary basis for that ruling was the failure of plaintiffs to establish the element of justifiable reliance on the alleged misrepresentations of defendants. Plaintiffs appeal the entry of summary judgment in favor of defendants. Held:

“[0]ne allegedly defrauded must have exercised due diligence to discover the fraud perpetrated against him before he can recover. McClelland v. Westview Cemetery, 148 Ga. App. 447 (251 SE2d 351) (1978).” Holman v. Ruesken, 246 Ga. 557 (2), 558 (272 SE2d 292). The superior court correctly determined that the uncontroverted evidence compels the conclusion that plaintiffs did not exercise due diligence since they did not conduct any inspection of the premises despite having encountered some of the readily apparent defects while viewing the home. “ ‘Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties.’ Goldman v. Hart, 134 Ga. App. 422 (3) (214 SE2d 670) (1975).” Webb v. Rushing, 194 Ga. App. 732, 733 (2) (391 SE2d 709). Plaintiffs having observed the water damage stains are therefore chargeable with knowledge of the water leaks and could not have relied justifiably upon the real estate agent’s explanations. Lester v. Bird, 200 Ga. App. 335, 337 (1), 338 (408 SE2d 147).

Similarly, the evidence is uncontroverted that the sag in the roof was readily discoverable by observing the house. “ ‘[It is only] [w]hen the defects in the property (are) of such a nature that the buyer could not discover them through the exercise of due diligence, [that] the burden (is) on the seller to disclose the seriousness of the problems of which he (is) aware, provided the seller (knows) that the buyer (is) acting under a misapprehension as to the facts which would be important to the buyer in making his decision.’ Holman v. Ruesken, 246 Ga. 557 (2)[, supra].” Wilson v. Brighton Homes, 204 Ga. App. 677, 679 (3) (420 SE2d 360).

Plaintiffs’ reliance upon Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141), aff’d 239 Ga. 31 (235 SE2d 532), and Rose Mill Homes v. Michel, 155 Ga. App. 808 (273 SE2d 211) is misplaced since both of those cases involved concealed defects which could not have been discovered through the exercise of due diligence. And it is clear that, contrary to plaintiffs’ argument, they would not have needed to wait for a rainfall to discover the water leaks since plaintiffs discovered the water damage and asked about it, but failed to diligently pursue the issue.

Decided February 28, 1996

Reconsideration denied March 12, 1996

M. Francis Stubbs, for appellants.

Swift, Currie, McGhee & Hiers, Carol E. DeLoach-Bettex, Stephen L. Cotter, Andrew, Threlkeld & Thompson, Reid A. Threlkeld, Malcolm F. Bryant, Jr., for appellees.

Having determined that plaintiffs are unable to present a triable issue as to each element of their claim for fraud, most of the remaining issues raised on appeal are moot. But it is necessary to approve of the grant of summary judgment in favor of non-movants William and Susan Hayden. Such was merely a formality which necessarily follows from the determination that plaintiffs’ claim must fail. Cruce v. Randall, 152 Ga. App. 183, 184 (1) (262 SE2d 488), aff’d 245 Ga. 669 (266 SE2d 486).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A95A2328.
    EATON v. THE STATE.
    (469 SE2d 740)
   Blackburn, Judge.

Garland Hal Eaton appeals from the trial court’s order denying his plea of former jeopardy filed by his present counsel. On February 24, 1994, in executing search warrants at Eaton’s residence, agents of the Appalachian Drug Task Force seized $4,334 in U. S. currency, numerous weapons, and a Uniden Bearcat 50 channel scanner. The affidavit supporting the search warrant alleged violations of the Georgia Controlled Substances Act occurring on various dates. Subsequently, the State brought an in rem civil forfeiture action against the seized personalty pursuant to OCGA § 16-13-49 (o). The trial court granted judgment for the State therein on late December 22, 1994, entering a disposition order allowing the sale of the seized property. On February 28, 1995, true bills of indictment were returned against Eaton by the Lumpkin County grand jury alleging violations of the Georgia Controlled Substances Act occurring on the same dates used in the affidavit to support the search warrant. Eaton filed a plea of former jeopardy, which was denied.

Decided February 27, 1996

Reconsideration denied March 12, 1996

McDonald & Cody, Douglas W. McDonald, Sr., Douglas W. McDonald, Jr., P. Gerald Cody, Jr., for appellant.

Albert F. Taylor, Jr., District Attorney, Darrell E. Wilson, Assistant District Attorney, Gary D. Bergman, for appellee.

In his sole enumeration of error, Eaton contends that the trial court erred by denying his plea of former jeopardy. Eaton’s answer to the forfeiture complaint filed by his former counsel, however, was dismissed by the trial court because: it was not verified; it failed to state the nature and extent of Eaton’s interest in the property; it failed to state the date, identity of the transferor, and circumstances of Eaton’s acquisition of his interest in the property; and it did not state the specific provision of the Code section relied upon nor state the essential facts supporting each assertion of claim. The record fails to reflect any appeal by Eaton of the dismissal of his answer. Such failure conclusively established the correctness of the trial court’s ruling.

To raise a valid double jeopardy claim based on an earlier in rem forfeiture, a defendant must first file an effective answer claiming an interest in the property forfeited. See Waye v. State, 219 Ga. App. 22 (464 SE2d 19) (1995). Eaton failed to file an effective answer to the forfeiture complaint claiming an interest in the property forfeited. Accordingly, the trial court did not err in denying Eaton’s plea of former jeopardy.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A2353.
    HOWARD v. THE STATE.
    (469 SE2d 746)
   McMurray, Presiding Judge.

Defendant, along with co-defendant Richard A. Hearn, was charged in an indictment with “TRAFFICKING IN COCAINE,” for knowingly -possessing 28 grams or more of a mixture containing at least ten percent cocaine. The co-defendant was also charged with “WEAVING ALONG ROADWAY,” for failing to drive a vehicle “as nearly as practicable within a single lane,” on Interstate 95 in McIntosh County, Georgia. The evidence at their joint jury trial revealed the following:

At approximately 7:00 p.m. on May 13, 1994, then-Trooper R. Ogden of the Georgia State Patrol initiated a traffic stop. Trooper Bengie Hodges arrived to assist. State’s Exhibit 4 is a videotape of that traffic stop, which was played for the jury. Trooper Ogden observed as the vehicle “crossed into the emergency lane on a couple of occasions. . . .” Trooper Ogden decided to stop the car and “check on the status of the driver and see what the condition of the driver was.” The vehicle was driven by co-defendant, Richard A. Hearn with defendant in the front passenger seat. Trooper Hodges spoke with Richard A. Hearn, who told Trooper Hodges that the pair had been fishing in Pompano Beach for “about three days, four days.” Although Richard A. Hearn did not appear to be under the influence of alcohol, he was “talkative and he appeared somewhat nervous[; . . .] a little more nervous . . . than normal.” While Trooper Ogden was issuing a courtesy warning for weaving, he “observed that the tag on the [vehicle] had expiredf.]” Richard A. Hearn informed Trooper Ogden that the car was “owned by the passenger’s mother and . . . that the passenger was a friend of his.” Richard A. Hearn consented to Trooper Ogden’s search of the vehicle but told the officer to ask permission of the passenger (defendant), since he, Richard A. Hearn, “was not the owner of the vehicle.” When Trooper Ogden spoke with defendant, the latter “stated they had been down to Fort Lauderdale [about two days] ... to pick his rent check up.” Trooper Ogden requested permission to search the vehicle and defendant gave him “an affirmative response.” Defendant “stepped from the passenger’s side of the car and [Trooper Ogden] began to pat him down [for weapons].” This patdown or frisk was performed in accordance with policy “strictly for safety.” Trooper Ogden located a bulge, “a hard object in [defendant’s] groin and [he] immediately had [defendant] place his hands on the vehicle.” At this time, Trooper Ogden “didn’t know what [he] was dealing with. [He] knew there was an object down there that shouldn’t be there. . . .” Trooper Ogden told defendant “on several occasions, ‘Do not take your hands from the vehicle.’ ” Trooper Ogden “went into [defendant’s] [sweat] pants and retrieved the item, ... a plastic bag with a white powder substance, [. . . which Trooper Ogden] felt like . . . was cocaine.” At that point, Trooper Ogden told Trooper Hodges to “cuff the driver ... [as he] began cuffing the passenger.” Defendant and Richard A. Hearn were informed that they were under arrest for trafficking in cocaine. After a tow truck was summoned, the officers performed an inventory search of the vehicle. Trooper Ogden identified State’s Exhibit 1 as “the cocaine [he] pulled from the groin area of [defendant].” State’s Exhibit 2 consisted of “white socks with a plastic bag with several small plastic bags, ziplock[-type], inside,” found in the rear seat of the car. Both Trooper Ogden and Trooper Hodges testified that, in their experience, such small plastic bags are used for “placing small amounts of controlled substances [.]” State’s Exhibit 3, also discovered during the inventory search, is a small set of “scales that Trooper Hodges located inside the vehicle.” Both Trooper Ogden and Trooper Hodges testified that the small plastic scales in State’s Exhibit 3 are for “measuring very small amounts [of contraband ... to determine] an exact amount that would be in the [small plastic] bags.” Colleen Reilley, a forensic chemist in the drug identification section of the Georgia Bureau of Investigation, identified the white powder, weighing 2.9 ounces or 81.5 grams as “positive for cocaine.” This cocaine was “70 percent pure.” The straw also was “positive for cocaine.” In Trooper Ogden’s experience, “it appeared that the cocaine would have been packaged for sale.”

The trial court granted Richard A. Hearn’s motion for directed verdict of acquittal. The jury found defendant guilty of trafficking in cocaine. His motion for new trial was denied and this appeal followed. Held:

1. Defendant enumerates the denial of his motion to suppress. First, he argues that no patdown or frisk was authorized because Trooper Ogden articulated no reasonable suspicion that these suspects were “armed and dangerous. . . .” Second, he argues the patdown exceeded lawful bounds because Trooper Ogden was unable to specify anything about this bulge in defendant’s sweat pants that justified the intrusive search “inside of [defendant’s] clothing in the area of his genitals.” We disagree.

Trooper Ogden testified that he conducted a patdown of defendant strictly for safety. The suspicions of Trooper Ogden that defendant might be bringing contraband into Georgia were reasonably aroused by the conflicting stories given by the nervous driver and defendant as to the purpose of their short visit to Florida and the time spent there. Moon v. State, 194 Ga. App. 777 (1) (392 SE2d 19). See also Morgan v. State, 195 Ga. App. 732, 734 (3), 735 (394 SE2d 639). “Accordingly, [in the case sub judice, Trooper Ogden] was authorized to conduct a minimally intrusive pat-down to determine whether [defendant] was armed.” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321). Although defendant complains that Trooper Ogden “utterly failed to try and confirm or eliminate . . .” any inconsistency in the conflicting versions, this Court is not aware of any “constitutional provision which would require that the officer stake his life on [a drug suspect’s] explanation rather than upon the officer’s own determination of whether [that drug suspect] was armed.” Hayes v. State, 202 Ga. App. 204, 205, supra. Defendant’s contention that Trooper Ogden was not authorized to conduct a patdown search for weapons is without merit.

In Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) the Supreme Court of the United States “approved the ‘plain feel’ or ‘plain touch’ corollary to the ‘plain view’ doctrine, holding that if contraband is identified through an officer’s sense of touch in the course of a lawful Terry patdown, it may be seized. 124 LE2d at 345-347.” Seaman v. State, 214 Ga. App. 878, 879 (2) (449 SE2d 526). The rationale is 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; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context. In the case sub judice, defendant is quite correct that Trooper Ogden never expressly testified whether he thought the bulge in defendant’s pants was a weapon or whether he thought it was contraband. But the videotape of this patdown indicates that the suspicious (and possibly dangerous) nature of the bulge was immediately apparent to Trooper Ogden. Given the stern warning Trooper Ogden gave defendant to keep his hands on the car the second the patdown began, the inference is authorized that defendant resisted the pat-down, adding a sense of urgency to the circumstances. We agree with the trial court that the plastic bag containing nearly three ounces of cocaine which defendant concealed in his groin was properly admitted under the Fourth Amendment’s “plain feel” or “plain touch” exception as enunciated by the Supreme Court of the United States in Minnesota v. Dickerson, supra. The denial of defendant’s motion to suppress was correct.

2. Defendant enumerates the refusal of the trial court to give his written request to charge on possession of cocaine as a lesser offense included within the indicted offense of trafficking in cocaine.

“In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that ‘the correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.’ ” (Emphasis in original.) Galbreath v. State, 213 Ga. App. 80, 81 (1) (443 SE2d 664). The complete rule includes this corollary: where the State’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444); King v. State, 214 Ga. App. 311, 313 (3), 314 (447 SE2d 645).

“Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, . . . commits the felony offense of trafficking in cocaine. . . .” OCGA § 16-13-31 (a) (1). Simple possession of any amount of cocaine is proscribed by OCGA § 16-13-30 (a) which provides: “Except as authorized ... , it is unlawful for any person to purchase, possess, or have under his control any controlled substance.” Since the indictment in the case sub judice alleged that defendant possessed more than 28 grams of cocaine, we hold that simple possession of cocaine was a lesser offense included as a matter of fact in the greater indicted offense of trafficking by possessing more than 28 grams of cocaine. See Hancock v. State, 210 Ga. App. 528, 533 (3) (c) (437 SE2d 610). See also State v. Estevez, 232 Ga. 316, 317 (1), 320 (206 SE2d 475) (where the evidence showed only a single possession of cocaine, “the illegal possession was included in the crime of illegal sale as a matter of fact under Code Ann. § 26-505 (a) [now OCGA § 16-1-6 (1)]).” Compare Galbreath v. State, 213 Ga. App. 80, 81 (1), supra (possession of marijuana is not a lesser included offense of manufacturing marijuana by cultivating or planting as a matter of law and was not, in that instance, included as a matter of fact). Consequently, defendant’s written request to charge on simple possession of cocaine was adjusted to the evidence and the trial court erred in refusing to give it. Nevertheless, we hold that in light of the overwhelming evidence that defendant actually possessed one 80-gram packet of cocaine, it is highly probable that the failure to give his requested instruction did not contribute to the verdict. Edwards v. State, 264 Ga. 131, 133, supra. Consequently, the erroneous failure to give this instruction was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided February 28, 1996

Reconsideration denied March 12, 1996

Lane & Crowe, Grayson P. Lane, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2644.
    GEORGE v. ROBERTS.
    (469 SE2d 249)
   McMurray, Presiding Judge.

Plaintiff Everett L. Roberts brought this action on a promissory note against defendant Richard D. George, Jr., alleging that defendant “failed and refused to pay said Promissory Note and interest despite repeated demands [and further alleging that] Defendant is indebted to Plaintiff in the amount of TEN THOUSAND DOLLARS,” plus interest. Personal service was made on December 13, 1994. Defendant answered pro se, admitting only that he “executed an eighteen (18) month Promissory Note to Plaintiff, ... on November 10, 1989,” but generally denied being indebted to plaintiff. Defendant raised the affirmative defenses of the statute of limitation and laches. On February 7, 1995, plaintiff served defendant with requests for admissions. Defendant’s response to these requests for admissions was filed on March 13, 1995. There, defendant admitted being one of the makers of the promissory note and that his signature thereon was genuine, but denied being indebted to plaintiff.

Thereafter, plaintiff moved for summary judgment, based upon the following facts: Defendant was one of three makers of a promissory note who on November 10, 1989, “jointly and severally promise [d] to pay to the order of [plaintiff], . . . the principal sum of Ten Thousand Dollars ($10,000),” at 18 percent interest per annum, with a maturity date of May 10, 1991. Plaintiff acknowledged partial payment in the amount of $1,500, but nevertheless demanded judgment as to the remaining principal of $8,500 and accrued interest on the unpaid balance in the amount of “$8,145.00.” Defendant opposed the motion with his affidavit, wherein he deposed that plaintiff “agreed to satisfy and deliver said promissory note to me in return for a subscription of and granting of an ownership interest in T-Bird Management Corporation, a Georgia corporation, which owned and operated a restaurant located in Underground Atlanta[; that plaintiff] was granted an interest in the restaurant [. . . but that plaintiff] has failed to deliver the promissory note and is wrongfully attempting to collect amounts not due to him . . .” thereunder.

The trial court granted plaintiff’s motion for summary judgment, in the principal sum of $8,500, plus interest of $6,272.64, plus costs. This direct appeal followed. Held:

Defendant contends the trial court erred in granting summary judgment because plaintiff failed to present undisputed evidence that defendant owed him any money and because plaintiff failed to submit evidence that would “pierce [defendant’s] defenses of payment and accord and satisfaction.” We disagree.

OCGA § 11-3-307 (2) provides: “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” “Accord and satisfaction is an affirmative defense which must be set forth in pleading to a preceding pleading. OCGA § 9-11-8 (c). [Cit.] Where not pleaded, it is waived. [Cits.]” Cassidy v. Wilson, 196 Ga. App. 6, 8 (395 SE2d 291). Even under the Civil Practice Act, “ ‘Testimony offered for the purpose of proving an accord and satisfaction is inadmissible in behalf of a defendant whose answer [as amended] does not set up a defense to which such testimony would be applicable.’ Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (1) (33 SE 961).” Blanchard v. Ga. S. & Fla. R. Co., 117 Ga. App. 858 (1), 859 (162 SE2d 442). In the case sub judice, defendant did not timely raise the affirmative defenses of payment or accord and satisfaction in his answer or by amendment. OCGA § 9-11-8 (c); Security Ins. Co. of Hartford v. Gill, 141 Ga. App. 324, 326 (233 SE2d 278). Since there was in the case sub judice no admissible evidence to rebut plaintiff’s prima facie showing, the trial court correctly granted summary judgment to plaintiff on the note defendant made.

Decided February 1, 1996

Reconsideration denied March 12, 1996

Schnader, Harrison, Segal & Lewis, John C. Porter, Jr., Warren N. Sams III, Deborah A. Gibson, for appellant.

Harrison & Harrison, Stephen P. Harrison, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A94A1999.
    DYER v. SURRATT.
    (472 SE2d 80)
    Decided March 12, 1996.

      Peevy & Lancaster, Donn M. Peevy, for appellant.

      Washburn & Washburn, Margaret G. Washburn, for appellee.
   Johnson, Judge.

This Court issued a decision affirming the trial court’s judgment. Dyer v. Surratt, 216 Ga. App. 876 (456 SE2d 510) (1995). The Supreme Court reversed that decision in part. Dyer v. Surratt, 266 Ga. 220 (466 SE2d 584) (1996). Accordingly, to the extent our prior decision was overruled by the Supreme Court, it is hereby vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Andrews, J., concur.