text:
    A92A2253.
    EVANS v. THE STATE.
    (427 SE2d 837)
   Blackburn, Judge.

Daryle Eugene Evans was tried before a jury and convicted of two counts of selling and distributing cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-1 et seq.). He appeals from the judgment entered on the jury’s verdict of guilty.

1. Appellant enumerates the general grounds. The evidence adduced at trial established that on the night of February 2, 1991, Myra Mitchell was working in Polk County as an undercover agent with a multi-jurisdictional drug task force headed by GBI agent John Wake-field. Mitchell and a confidential informer were directed to go to locations the informer knew to be likely sites of drug activity and use cash supplied by the investigating officers to purchase drugs.

Mitchell testified that she and the informer arrived at Floyd’s Tavern in the informer’s car at about 11:30 p.m., and a man the informer addressed as “Johnny” approached them. She asked for crack cocaine and “Johnny” sold her a piece of crack for $40. Later in the evening, Mitchell and the informer returned to the same location and purchased $20 worth of crack cocaine from the same man. Mitchell testified that “Johnny’s” face had been clearly illuminated by outdoor security lights and the car headlights, and she positively identified appellant as the man from whom she purchased the drugs.

Wakefield testified that he had observed these transactions from a parked car several hundred yards away and that he overheard the exchanges between Mitchell and the drug seller because Mitchell wore a concealed microphone. He confirmed Mitchell’s description of the events, but could not identify appellant as the perpetrator because he never saw the man’s face.

Appellant and the State stipulated to the chain of custody. A forensic chemist from the State Crime Lab testified that the substances Mitchell purchased tested positive for cocaine. Appellant did not testify.

We find this evidence sufficient to authorize a rational trier of fact to find appellant guilty of the charged offenses under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hamilton v. State, 202 Ga. App. 649 (415 SE2d 196) (1992). Although appellant contends Mitchell’s identification of him was not credible, the question of a witness’s credibility is for the jury to decide. Cox v. State, 197 Ga. App. 240, 241 (5) (398 SE2d 262) (1990). An appellate court does not consider the weight of the evidence or the credibility of witnesses, but determines only the sufficiency of the evidence. Fitz v. State, 201 Ga. App. 83, 85 (410 SE2d 186) (1991). Accordingly, the trial court did not err by denying appellant’s motion for directed verdict.

2. In his remaining enumeration, appellant contends he received ineffective assistance of counsel at trial. At the hearing on this issue, appellant testified that he had two brief meetings and several short telephone conversations with trial counsel before trial, and that a good portion of these conversations was devoted to discussion of other charges pending against appellant in another county. Appellant also testified that he identified potential witnesses who could establish that he had never been known as “Johnny,” but that counsel failed to investigate. Appellant listed as additional grievances the fact that counsel was late for court the day of trial and that counsel prevented him from testifying at trial.

At the hearing, trial counsel testified that he met several times with appellant and had numerous telephone conversations with him, and that he felt he had sufficient contact with appellant to prepare for trial. He denied that appellant had given him any names of potential witnesses. Counsel explained further that he discouraged appellant from testifying at trial because he was volatile and hard to control, and that appellant agreed with this decision.

Under the two-part test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), appellant must show that (1) trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) that the defense was prejudiced by the deficient performance so that appellant was deprived of a fair trial. White v. State, 193 Ga. App. 428, 429-430 (2) (387 SE2d 921) (1989). As to the first prong, counsel’s performance is assessed in light of the totality of the circumstances viewed from counsel’s perspective at the time of trial, and appellant must “overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]” (Punctuation omitted.) Id. at 430. With regard to the second prong of the Strickland test, appellant must show a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. White, supra.

Our review of the trial transcript persuades us that appellant’s counsel was well-versed in both the facts and the law applicable to the case. He questioned the State’s witnesses extensively on cross-examination, concentrating particularly on undermining Mitchell’s identification testimony, and moved for a directed verdict at the close of the State’s case. Although counsel did not call appellant to the stand or present any defense witnesses, his reasons for not calling appellant to testify reflect a reasonable trial strategy, see Perkins v. State, 260 Ga. 292, 294 (2b) (392 SE2d 872) (1990), and appellant has failed to identify a single potential witness he contends should have been consulted by counsel prior to trial.

Decided February 15, 1993.

Mundy & Gammage, George E. Mundy, for appellant.

W. A. Foster III, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

“ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that [appellant] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [appellant’s] original representation was inadequate. (Cits.) Even if trial counsel’s strategy was flawed, it was not sufficient to render his representation ineffective under the [standard set forth in Strickland].’ [Cit.]” White, supra at 430. Consequently, we find appellant’s claim of ineffective assistance to be without merit. See id.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A1907.
    CRAWLEY v. SEXTON.
    (427 SE2d 804)
   McMurray, Presiding Judge.

Plaintiff, Chris Crawley, d/b/a Chris Crawley & Associates, a real estate broker, brought suit against William J. Sexton, a trustee of the Mayo Davis Trust, in the State Court of Houston County. He alleged that Sexton hired him, on October 1, 1990, to present a contract for the purchase of certain real property (located at the intersection of Houston Lake Road and Georgia Highway 96) to William J. Smith III; that he was to be defendant’s exclusive agent in purchasing the property; that he prepared a real estate purchase agreement at defendant’s direction, offering to purchase the property for $240,000; that defendant signed the agreement and he presented it to Smith, as agent of LeClay, Inc.; and that the contract provided that defendant would pay plaintiff a commission of $10,000. Plaintiff also alleged that Smith rejected the offer; that, subsequently, the property was conveyed by LeClay, Inc. to defendant and Willie D. Sexton, as trustees of the Mayo Davis Trust for $175,000; that plaintiff was the procuring cause of the sale of the property; and that, pursuant to the contract, defendant is liable to plaintiff in the amount of $10,000. In addition, plaintiff alleged, via amendment, that he is entitled to recover the reasonable value of his broker’s services because he brought the seller and purchaser of the property together.

Defendant denied any liability to plaintiff and moved for summary judgment. The motion was based upon the affidavits of defendants Sexton, William J. Smith III, and William J. Smith, Jr. We summarize these affidavits as follows:

Defendant deposed that plaintiff approached him with a proposal to purchase the property in question for $240,000; that under the terms of the proposal, plaintiff would be paid a $10,000 real estate commission if he secured a binding contract on or before October 10, 1990; that plaintiff left defendant’s office with a written offer to purchase signed by defendant; that sometime in the middle of October, his earnest money check was dropped off at his office; and that defendant heard nothing more from plaintiff until the spring of the following year when plaintiff presented a $10,000 claim for a real estate commission. Defendant also deposed that on or about November 20, 1990, he received a telephone call from W. J. Smith III, who said he had heard of defendant’s interest in the property from Roy Cowart and asked if defendant was still interested; that defendant inquired about the asking price and was told the property could be purchased for $175,000; that defendant was “shocked inasmuch as he knew that [plaintiff] was supposed to have presented a previous offer ... of $240,000”; that defendant responded that he would discuss the matter with his sons (beneficiaries of the Mayo Davis Trust) and get back in touch with Smith; and that the next week defendant contacted Smith and said he would be interested in purchasing the property “if the dimensions of the property, and the terms of sale and access could be worked out.” Finally, defendant deposed that after “extensive negotiations” between LeClay, Inc., the seller, the Mayo Davis Trust, the buyer, the Department of Transportation and Houston County, the deal was closed in the office of Roy Cowart, the attorney representing the seller.

William J. Smith III, deposed that the property in question was owned by LeClay, Inc. and that he is an officer of LeClay, Inc.; that during the months of October and November 1990, and through December 20, 1990, the property was owned by William J. Smith, Jr., Vivian V. Arnold, Ann Smith, and Kyle Arnold, as tenants in common; and that LeClay, Inc. was given an exclusive option to purchase the property. He also deposed that plaintiff came to his office on October 1, 1990 and said he had an offer to purchase a 1.5-acre tract of the property; that he told plaintiff that the property was already under contract for $250,000 and that LeClay, Inc. was not interested in any offer that plaintiff presented; that plaintiff left his office and no further contact was had between plaintiff and LeClay, Inc. Smith further deposed that in early November 1990, LeClay, Inc.’s contract to sell the property “fell apart” and he called defendant to see if he was interested in buying the property; that he got the idea to call defendant because Roy Cowart, his attorney, told him in early 1990 that defendant was a potential buyer; and that he was not aware that defendant was the party behind the offer presented by plaintiff on October 1, 1990. Finally, Smith deposed that LeClay, Inc. was not an agent for any of the prior owners; that, on the contrary, LeClay, Inc. acted solely as a separate entity with the right to negotiate the sale of the property and sell the property for a profit.

William J. Smith, Jr., deposed that he was one of the owners of a 1.7-acre tract of land lying at the northwesterly intersection of Houston Lake Road and Georgia Highway 96; that he owned the property along with his wife, Ann Smith, sister, Vivian V. Arnold, and brother-in-law, Kyle Arnold; that the owners gave LeClay, Inc. an exclusive option to purchase the property on February 17, 1989; that the owners of the property did not deal with plaintiff concerning the sale of the property; and that the owners of the property did not authorize LeClay, Inc. or W. J. Smith III, to be their agent for the sale of the property or of any adjacent property.

In opposition to defendant’s motion for summary judgment, plaintiff submitted an affidavit in which he deposed that in January 1990, he met with Roy Cowart to discuss the availability of 1.5 acres of land at the intersection of Houston Lake Road and Georgia Highway 96; that Cowart advised him that he represented the owners of the property; that he then contacted Davis Cosey and defendant and told them about the property; that Cosey and defendant were officers of the Davis Company, Inc. and gave him authority to present an offer to purchase the property for $175,000 on behalf of the Davis Company, Inc.; and that that offer was rejected. He also deposed that later in the year, Jack Smith (William J. Smith III), contacted him and told him that the property was still for sale for $250,000; that he met with Davis Cosey and defendant on August 28,1990, and they authorized him to present a written offer to purchase the property for $185,000; and that he presented the offer to Jack Smith, who rejected it that day and told him that he had a firm offer of $250,000 “and that he would not pay a broker’s commission on a ‘backup’ contract.” Plaintiff further deposed that he met with Davis Cosey and defendant in September 1990 to discuss the purchase of the property and that defendant gave him authority to present an offer of $240,000 on behalf of the Mayo Davis Trust; that defendant agreed that he would be an exclusive agent for the trust and would pay him a commission of $10,000; that he presented the offer to Jack Smith on October 1, 1990; that Smith informed him that LeClay, Inc. had been given an option to purchase the property, that it had a firm offer on the property, and that it did not need a “back-up” contract; that he returned the earnest money check to defendant; and that, in January 1991, he learned that the property had been sold to the Mayo Davis Trust.

The written offer to purchase was to expire, by its own terms, on October 10, 1990. It was signed by defendant and provided, in part: “[P]laintiff is the exclusive agent of the Buyer and has no agency relationship, written, oral, or implied, with the Seller and/or Seller’s agent (if any).” The seller is identified, on the front page of the offer, as William J. Smith, Jr. and Vivian Arnold. However, the names of Smith and Arnold are crossed out on an addendum to the agreement (setting forth special stipulations) and the name “LeClay, Inc.” is inserted by hand.

In answers to defendant’s discovery requests, plaintiff stated that he inserted the name “LeClay, Inc.” on the addendum in Jack Smith’s office when he was advised that it had an option to purchase the property. He also admitted that after the offer was rejected by Jack Smith, he took no further action to purchase the property; but that defendant did not prevent him from doing so.

The trial court granted defendant’s motion for summary judgment and plaintiff appeals. Held:

1. “ ‘A real-estate agent employed to purchase land is as much entitled to be compensated, in accordance with his contract, as one employed to sell land in behalf of the owner.’ Roberts v. Martin, 15 Ga. App. 205 (82 SE 813). It was held in Edwards v. Andrews Bros., 24 Ga. App. 645 (101 SE 775): Tn order for a broker to earn a commission on account of the sale of property, he must either have sold it or been the procuring cause of the sale. The owner may sell the property, and if he does not use the broker’s labor to help in the sale, he owes the broker nothing, but if a purchaser procured by the broker buys from the owner, even at a less price than that given the broker, the owner would be liable for the broker’s commission if the broker’s effort was the procuring cause of the sale.’ [Cits.]” Hendrix v. Crosby, 76 Ga. App. 191, 193-194 (45 SE2d 448). Conversely, when a broker finds property for a principal desiring to purchase, “a broker is entitled to a commission whenever negotiations conducted by him on behalf of the principal culminate in the purchase of the property by the principal or would have so culminated but for the principal’s interference. [Cits.]” Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672, 673 (244 SE2d 622).

In the case sub judice, it is clear that the negotiations conducted by plaintiff did not culminate in defendant’s purchase of the property. In fact, plaintiff’s negotiations went nowhere. He simply presented an offer which was rejected out of hand; he did nothing more to bring about the purchase of the property. Does a question of fact exist as to whether plaintiff was the procuring cause of the purchase?

“A broker . . . does not make out a case of procuring cause ... by merely showing that he first located the ultimate [seller], if it further appears that without interference by the owner he was unsuccessful in bringing about [acceptance of] an offer . . . and that the sale was made after he abandoned his effort. [Cits.]” Tidwell & Yarbrough Realty Co. v. Foster, 123 Ga. App. 192, 193 (2) (180 SE2d 259). The evidence demonstrates that plaintiff presented an offer to purchase the subject property from the Smiths and Arnolds on behalf of defendant; that the offer was rejected without interference by defendant; that plaintiff did nothing more to procure the purchase and abandoned his effort; that, thereafter, Jack Smith contacted defendant on behalf of LeClay, Inc. and offered to sell the property; and that defendant did not know that plaintiff had presented a proposal to Jack Smith on behalf of LeClay, Inc. Given these facts, it cannot be said that plaintiff was the procuring cause of the purchase.

2. “The evidence thus demonstrating that [plaintiff] was not the procuring cause of the sale, summary judgment in favor of the [defendant] on the quantum meruit count was proper. Compare First Nat. Bank &c. Co. v. McNatt, 141 Ga. App. 6 (3) (232 SE2d 356) (1977).” Booth v. Watson, 153 Ga. App. 672, 678 (266 SE2d 326).

3. Plaintiff makes the contention that his contract with defendant was an exclusive agency and that, therefore, he was entitled to his commission upon the purchase of the property. This contention is without merit. “The contract between the plaintiff and the defendant being one of exclusive . . . agency, its construction is controlled by the case of Humphries & Jackson v. Smith, 5 Ga. App. 340 (2) (63 SE 248), in which this court held: ‘Where the principal appoints, not a broker, but an exclusive [purchasing] agent, and agrees to pay a commission upon [the purchase of certain property from certain owners], the agent is entitled to commissions only upon [the consummated purchase], and not upon mere [offers to purchase].’ Since the record in this case discloses that no [purchase] of the subject property was consummated within the life of the contract of exclusive . . . agency, the plaintiff was not entitled to a commission under the terms of such contract.” Ragsdale v. Smith, 110 Ga. App. 485, 487 (1), 488 (138 SE2d 916). It cannot be said that plaintiff is entitled to his commission as an exclusive agent since defendant’s offer to purchase was not accepted by October 10, 1990, the last day for acceptance of the offer and it is clear that plaintiff abandoned his efforts to procure the purchase of the property after that time.

Decided February 5, 1993

Reconsideration denied February 16, 1993

Waymon S. Harrell, for appellant.

Geiger & Pierce, James N. Geiger, for appellee.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A93A0213.
    STRAWDER v. THE STATE.
    (427 SE2d 792)
   McMurray, Presiding Judge.

Defendant Strawder appeals his conviction of the offenses of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Held:

1. Defendant’s first enumeration of error contends that the trial court erred in permitting the prosecutor to elicit scientific evidence from an expert witness which had not been disclosed in reports served on defendant in violation of OCGA §§ 17-7-211 (b) and 24-10-26. Nonetheless, defendant made no objection or motion for mistrial at the time the testimony he now complains of was given. The absence of a timely objection waives defendant’s right to raise this issue on appeal. Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729); Brooks v. State, 193 Ga. App. 559, 561 (2) (388 SE2d 386).

2. Defendant’s remaining enumeration of error complains of the admission into evidence over objection of a fingerprint card taken following an unrelated previous felony arrest of defendant. The fingerprint card gave “date of offense” as “12-18-89,” “date of arrest” as “12-18-89,” “date” of the fingerprints as “12-18-89,” and via Code section numbers referred to the offenses of possession of firearms by convicted felon (OCGA § 16-11-131), carrying a pistol without a license (OCGA § 16-11-128), carrying a concealed weapon (OCGA § 16-11-126), and loitering or prowling (OCGA § 16-11-36). The reference to other crimes not shown to be connected with the one on trial served no useful or relevant purpose, placed defendant’s character in evidence and was prejudicial to him. The trial court erred in admitting the fingerprint card without redacting those portions which showed defendant’s arrest for previous crimes. Manor v. State, 223 Ga. 594, 597 (14), 598 (157 SE2d 431). Compare Williams v. State, 184 Ga. App. 124, 125 (361 SE2d 15) and Woodliff v. State, 777 Ga. App. 508 (339 SE2d 777).

Judgment reversed. Cooper, J., concurs. Beasley, J., concurs spe dally.

Decided January 25, 1993

Reconsideration denied February 16, 1993.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for appellee.

Beasley, Judge,

concurring specially.

I concur fully but wish to point out that the offenses disclosed on the fingerprint card were known to the jury. The documents evidencing defendant’s indictment, conviction and sentences for these offenses were admitted as evidence that he was a recidivist (OCGA § 17-10-7). This indictment and four others on which defendant had been convicted and sentenced were admitted. As to all of these documents, but not as to the fingerprint card, the court instructed the jury to limit their consideration only to the recidivist count and not to consider them as substantive evidence of guilt or innocence as to the other counts.

This points up the problem of trying a recidivist count along with a new crime instead of bifurcating the two. Allowing the jury to determine guilt or innocence as to the new crime, without any knowledge of past crimes and, after verdict on it, trying the recidivist count, eliminates the necessity for the jurors to mentally erase the knowledge for part of their deliberations. The charge to compartmentalize information does not assure success even with conscious effort.

So here we have the jury, knowing about four convictions and some of the details of each, but by law ignoring this knowledge, while at the same time unlawfully knowing of one of these instances because of his fingerprints taken at the time of arrest. We cannot assume that the jury applied the limiting instructions to the information on the fingerprint card.


author: Cooper, Judge.

text:
    A92A2091.
    CAMPBELL v. THE STATE.
    (428 SE2d 111)
   Cooper, Judge.

Appellant was convicted of trafficking in cocaine. On appeal, he challenges the denial of his motion to suppress.

Evidence presented at the hearing on the motion to suppress shows that Officer Robinson obtained a warrant to search appellant’s motel room based on information from a confidential informant that the informant had seen appellant selling cocaine in the room. Officers executed the search warrant and arrested appellant, finding two briefcases containing cocaine, marijuana, and cash. Officer Robinson testified that he paid the informant out of an official fund established for this purpose, but the squad chief responsible for records regarding paid confidential informants testified that there was no record of any confidential informant being paid in connection with this case.

1. Appellant first argues that the unexplained discrepancy between the testimony of Officer Robinson and that of the squad chief regarding payment of the confidential informant raises substantial doubts about whether the confidential informant actually existed and, if so, whether he actually told Officer Robinson that he had seen appellant sell drugs in the motel room. Thus, appellant contends, a substantial showing of a material misrepresentation in the affidavit supporting the warrant was made, so the trial court should have required the State to produce the confidential informant for at least an in camera hearing. “ ‘(W)here the defendant makes 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 warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. (Franks v. Delaware, 438 U. S. 154, 155-156 (98 SC 2674, 57 LE2d 667)) [(1978)].’ [Cit.]” English v. State, 202 Ga. App. 751, 758 (11) (415 SE2d 659) (1992). In this case, we cannot conclude that the discrepancy in the testimony of the State’s witnesses regarding whether or not the informant was paid rises to the level of a substantial showing that Officer Robinson lied about the existence of the informant or what he said, particularly in light of the squad chiefs additional testimony that Officer Robinson did tell him who the informant was. Moreover, contrary to appellant’s assertion, even a substantial showing of a material falsehood in the affidavit would not necessarily lead to identification or production of the confidential informant, but would instead lead to a balancing of the competing interests of the parties under the specific circumstances of the case as set forth in Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956). See State v. Mason, 181 Ga. App. 806 (2, 3) (353 SE2d 915) (1987). Accordingly, the trial court did not err in rejecting appellant’s Franks-based argument.

2. Appellant also contends the search warrant was void because the judicial officer who signed the warrant was without authority to do so. A Municipal Court Judge for the City of College Park signed the warrant at her home in Fulton County. Part of the city is in Fulton County and part is in Clayton, and the motel where the warrant was executed is located in the part of the City in Clayton County. A judge of a municipal court has authority to issue search warrants. OCGA §§ 17-5-21 (a); 17-7-20; 36-32-3. Nonetheless, appellant argues this statutory authority must be viewed in light of Pruitt v. State, 123 Ga. App. 659 (182 SE2d 142) (1971), in which this court held that a superior court judge sitting in one county of a multicounty judicial circuit was not authorized to issue a search warrant for execution in another county of his circuit. Based on Pruitt, appellant asserts that a judge whose courtroom is in Fulton County and who signs the warrant at her home in Fulton County is not authorized to issue a search warrant for execution in Clayton County. However, Pruitt was legislatively disapproved and overruled by OCGA § 15-6-23. See Allison v. State, 129 Ga. App. 364 (3) (199 SE2d 587) (1973). Appellant argues that OCGA § 15-6-23 is limited to superior court judges in multi-circuit judicial districts; but so is the holding of Pruitt. We see no legislative mandate that the authority of a municipal court judge stop at the county line where the municipality crosses that line and therefore affirm the trial court’s holding that the municipal court judge’s authority extended to the limits of the municipality. Accordingly, appellant’s contention that the judge was without authority to issue the search warrant in this case is without merit.

Decided February 16, 1993.

John A. Beall IV, for appellant.

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

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A2161.
    SUBSEQUENT INJURY TRUST FUND v. KNIGHTRIDDER NEWSPAPERS-MACON TELEGRAPH & NEWS et al.
    (427 SE2d 844)
   McMurray, Presiding Judge.

This is the second appearance of this “subsequent injury” workers’ compensation case. Previously, this Court reversed the judgment of the superior court, ruling that it exceeded the scope of review when it ordered the reinstatement of the administrative law judge’s (ALJ) award. Subsequent Injury Trust Fund v. Knight Ridder &c. News, 203 Ga. App. 458 (416 SE2d 887). Thereafter, the superior court entered another order affirming the award of the full board. Again, the Subsequent Injury Trust Fund (“SITF”) applied for discretionary review. This Court granted the SITF’s application and this appeal followed.

The facts of this case are set out in Subsequent Injury Trust Fund v. Knight Ridder &c. News, supra. We summarize the procedural posture of this appeal as follows:

Decided February 16, 1993.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, K. Prabhaker Reddy, Assistant Attorney General, Harrison, Harrison & Llop, Rita J. Llop, for appellant.

Irwin, Bladen, Baker & Russell, Braxton A. Bladen, for appellees.

The ALJ determined that there was a merger between the earlier and subsequent injuries and ordered the SITF to reimburse the respondents. However, the ALJ specifically declined to order apportionment of medical expenses pursuant to OCGA § 34-9-364. The full board adopted the decision of the ALJ but added that the SITF “is not liable for reimbursement of those medical expenses which are caused solely by, or related to, the employee’s [prior] injuries of November 17, 1986.”

The SITF asserts the decision of the full board is confusing because it did not set out the grounds for apportionment of the medical expenses that were incurred solely as a result of the December 27, 1987, injury, i.e., the subsequent injury. The employer/insurer acknowledges that the award of the full board is confusing. Held:

The award of the full board appears to be inconsistent. First, the award declines to apply OCGA § 34-9-364, which provides for apportionment of medical expenses “where there are clear and unequivocal facts to establish that the subsequent injury . .. was not caused by or in any way related to the employee’s preexisting disability.” Then the award goes on to exclude apportionment of medical expenses incurred from the prior, not the subsequent, injury. Of course, it was unnecessary for the board to decline apportionment of medical expenses with regard to the prior injury — those expenses are not subject to apportionment. OCGA § 34-9-364. Did the board erroneously insert November 17,1986, instead of December 27,1987? Did the board intend to approve apportionment of the medical expenses in connection with the December 27, 1987, injury? The board’s award does not make its intent clear. Accordingly, we vacate the judgment of the superior court with direction that the case be remanded to the full board for further clarification. See Brown Transport Co. v. Parker, 129 Ga. App. 737, 740 (201 SE2d 17).

Judgment vacated and case remanded with direction. Cooper and Blackburn, JJ., concur.


text:
    A92A2222.
    BARRETT v. THE STATE.
    (427 SE2d 845)
   Cooper, Judge.

After a bench trial, the trial court found appellant guilty of theft by conversion. In his sole enumeration of error, appellant challenges the sufficiency of the evidence to support this finding.

Evidence presented at trial, viewed most favorably to support the verdict, showed that appellant rented equipment from a video rental store on a Friday. Pursuant to the rental agreement, he was to return it to the store the following Monday. He did not return the equipment, and the store was unable to contact him. Even after appellant was served with a criminal warrant, he did not contact the store. The store owner, the State’s only witness, acknowledged that she had no idea where the equipment was at the time of trial. Appellant testified that he rented the equipment to use with a neighbor and that the neighbor said he would return it on Monday because the store was on his way to work. Appellant stated that he has not seen the neighbor since and that he was not aware the equipment had not been returned until he was served with the warrant. The trial court disbelieved appellant’s testimony and found him guilty of theft by conversion.

“A person commits the offense of theft by conversion when, having lawfully obtained . . . property of another . .. under an agreement ... to make ... a specified disposition of such property, he knowingly converts the . . . property to his own use in violation of the agreement. . . .” QCGA § 16-8-4. The purpose of this statute is to punish fraudulent conversion, not breach of contract, and it is the requirement that the State prove fraudulent intent that prevents the statute from being unconstitutional. Smith v. State, 229 Ga. 727 (194 SE2d 82) (1972). “It is the presence of a fraudulent intent ‘. . . that distinguishes theft by conversion from a simple breach of contract.’ [Cit.]” Baker v. State, 143 Ga. App. 302, 303 (2) (238 SE2d 241) (1977). While acknowledging that he violated his agreement with the store by failing to return the equipment, appellant contends the evidence was insufficient to establish that he knowingly converted the equipment to his own use with fraudulent intent. We agree. The State established only that appellant rented equipment and failed to return it. It presented no evidence regarding what happened to the equipment and failed to show that appellant knowingly and with fraudulent intent appropriated it for his own use. The State suggests that the required scienter can be inferred from appellant’s failure to return the equipment. However, to allow criminal intent to be inferred from nothing more that the fact of the breach would undermine the crucial distinction between fraudulent conversion and breach of contract made in Smith and Baker, supra, and would possibly render this criminal statute unconstitutional. See Smith, supra at 728-729. Because the State failed to prove an essential element of the charged crime, appellant’s conviction must be reversed. See Tchorz v. State, 197 Ga. App. 185 (397 SE2d 619) (1990).

Decided February 16, 1993.

Donna L. Avans, for appellant.

Donald E. Moore, Solicitor, for appellee.

Judgment reversed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A1676.
    WILLIAMS v. THE STATE.
    (427 SE2d 846)
   Cooper, Judge.

Appellant was convicted of kidnapping, aggravated assault (two counts) and possession of a firearm during the commission of a crime (three counts). He appeals from the entry of judgment on his conviction and sentence.

The evidence, viewed in a light to support the verdict, shows that appellant went to the home of his wife’s parents in Mayday, Georgia to speak to his wife, Sylvia Williams (“Mrs. Williams”), from whom he had been separated for a week. Mrs. Williams agreed to speak with appellant on the porch. In the course of the conversation, she informed appellant that she was not returning home with him to Quit-man, Georgia. Appellant then grabbed her by the arms and dragged her to his car. Mrs. Williams’ sister saw Mrs. Williams being dragged to the car and called out to her father, “Art’s taking Sylvia.” The father, sister and brother ran out of the house and attempted to prevent appellant from putting Mrs. Williams in his car and carrying her away. During the struggle, appellant’s co-defendant, who was seated in the car, produced a pistol and pointed it at Mrs. Williams’ brother, Willie Ferrell. Ferrell moved away from the car, and the co-defendant began backing the car out of. the driveway. As the car eased slowly down the driveway, Ferrell threw a tire rim at the car which broke the windshield. Appellant then pointed the weapon at Ferrell and his father as the car exited the driveway. Shortly thereafter, appellant switched places in the car with the co-defendant and drove Mrs. Williams back to Quitman.

1. In his first enumeration of error, appellant contends the trial court erred in restricting defense counsel from inquiring, on cross-examination, about Mrs. Williams’ relationship with another man, which the defense contends was the cause of the separation. “ ‘Every party has the right to a thorough and sifting cross-examination of the witnesses called against him. OCGA § 24-9-64. However, the trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused. (Cits.)’ [Cit.]” Walker v. State, 198 Ga. App. 422, 423 (1) (401 SE2d 613) (1991). During the trial, the State objected to the inquiry on relevancy grounds. Appellant argued that part of his defense was that he and Mrs. Williams were embroiled in a domestic dispute and the evidence elicited would demonstrate that the charges made against appellant were part of a scheme by Mrs. Williams’ family to break up the marriage and allow another man to get closer to Mrs. Williams. The trial court sustained the objection on relevancy grounds and also held that appellant failed to demonstrate the other man’s part in the alleged scheme. However, the court allowed appellant to present evidence establishing that Mrs. Williams’ sister and brother called the police. We agree with the trial court’s determination that “domestic dispute” is not a defense for appellant’s alleged actions. Therefore, the alleged cause of the Williamses’ separation was not relevant to the issues before the jury. Hence, we find no abuse of discretion.

2. Appellant also contends the trial court erred in denying his motion for directed verdict as to the charges of kidnapping and aggravated assault. “ ‘(A) motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.’ [Cit.]” Whatley v. State, 196 Ga. App. 73, 76 (3) (395 SE2d 582) (1990). Appellant argues that there was no evidence of kidnapping because Mrs. Williams did not scream or try to resist appellant. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such a person against his will.” OCGA § 16-5-40 (a). Mrs. Williams testified that she was forcibly taken from the steps of her parents’ residence; that she asked appellant to let her go; and that she was taken to Quit-man against her will. Accordingly, the evidence was sufficient to permit a rational trier of fact to find appellant guilty of kidnapping beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Relying on OCGA § 16-5-21 (a) (1), appellant also argues that the State failed to establish that appellant had the intent to murder, rape or rob; therefore, there was insufficient evidence in support of his aggravated assault convictions. “[T]he Georgia Supreme Court declared, ‘if the pointing of [a] firearm place [s] the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.’ [Cit.] ... It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant’s intent to injure. [Cit.]” Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892) (1991). Both Ferrell and his father testified that they were frightened when appellant pointed the gun at them; thus, the State sufficiently established the elements of aggravated assault (OCGA § 16-5-21 (a) (2)), and the evidence was sufficient to allow a rational trier of fact to find appellant guilty of aggravated assault against both victims beyond a reasonable doubt. Jackson v. Virginia, supra; Collins v. State, supra.

Decided February 17, 1993.

Edwards & Edwards, H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A1699.
    YOUMANS v. THE STATE.
    (427 SE2d 848)
   Cooper, Judge.

Appellant was arrested in October 1986 for the offenses of operating a motor vehicle after being declared an habitual violator and driving under the influence of alcohol (two counts). Appellant’s habitual violator status was based on a 1985 conviction for driving with a suspended license. When appellant failed to appear at his arraignment, a bench warrant was issued which remained outstanding until January 1992 when appellant was arrested. Appellant filed a plea in abatement, contending that the habitual violator charge was not valid because in 1990 the legislature changed the law to remove suspension of a license as a foundation for habitual violator status. The trial court denied the plea in abatement, and the case was tried before the court on stipulated facts. Appellant was found guilty on all the charges, and his sole enumeration of error on appeal is the denial of his plea in abatement.

Appellant stipulated to the fact that at the time of his arrest in October 1986 he had been properly served with his notice of habitual violator status. By the time appellant’s case came to trial in 1992, the delay being due to the outstanding bench warrant, the legislature had amended the habitual violator statute such that convictions for driving with a suspended license were eliminated as offenses which would support habitual violator status. Appellant’s case is controlled by State v. Oliver, 202 Ga. App. 613 (415 SE2d 54) (1992). In that case we stated that “[a] change in the law after one has been declared an habitual violator does not automatically rescind that status. ‘If the person is driving despite notification that he may not do so because he has been declared an habitual violator, he is (flouting) the law even if one or more of the underlying convictions is voidable. . . .’ [Cit.]” Id. at 614. Appellant argues that his case is distinguished from Oliver because the Department of Public Safety removed his habitual violator status. Appellant’s argument is not supported by either the evidence or the law. The record reflects that appellant was issued a valid driver’s license by the Department of Public Safety in January 1992, but it does not indicate, as appellant suggests, that the license was issued because his habitual violator status had been voided. Furthermore, as we stated in Oliver, “[t]he contemptuous disregard for the law by driving after being declared to be an habitual violator forms the essence of this crime, and this is an offense separate and distinct from the offenses which led to the driver being declared an habitual violator.” Oliver, supra at 614. Accordingly, we find no error in the trial court’s denial of appellant’s plea in abatement.

Decided February 17, 1993.

J. Phillip Hancock, for appellant.

Robert E. Wilson, District Attorney, Jeffrey H. Brickman, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A2204.
    AVEC CORPORATION v. SCHMIDT et al.
    (427 SE2d 850)
   Cooper, Judge.

This appeal arises out of a commercial lease agreement entered into between Ayers Enterprises, Inc. and Schmidt Enterprises, Inc. (“Schmidt Enterprises”), whereby Schmidt Enterprises agreed to rent space in a shopping center for the operation of an art gallery. The lease was executed for Schmidt Enterprises by appellee Dennis Schmidt as President and appellee Joann Schmidt as Secretary and was dated February 10, 1986. The shopping center was subsequently purchased from Ayers by appellant, and when Schmidt Enterprises failed to make rental payments due under the agreement, appellant sued Schmidt Enterprises to recover the outstanding rental indebtedness. It also sued Dennis and Joann Schmidt individually, alleging that they were personally liable pursuant to a guaranty executed on February 7, 1986, which covered any indebtedness due under the lease agreement. Following cross-motions for summary judgment, the trial court entered judgment in favor of appellant against Schmidt Enterprises but denied appellant’s motion as to the Schmidts. The trial court also denied Schmidt Enterprises’ and the Schmidts’ motion for summary judgment against appellant. The case proceeded to trial on the sole issue of whether the Schmidts, appellees herein, were liable for the lease indebtedness under the guaranty. At the conclusion of appellant’s case, the trial court directed a verdict in favor of appellees. On appeal, appellant contends that the trial court erred in granting appellees’ motion for directed verdict.

“A directed verdict is proper when ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict . . . .’ OCGA § 9-11-50 (a). ‘On appeal from an order directing a verdict, the question before this court is whether the evidence was without conflict as it pertains to the material issues in the case and, thus, when viewed in a light most favorable to the losing party, demanded the verdict ordered.’ [Cit.]” Lester v. Bird, 200 Ga. App. 335, 337 (1) (408 SE2d 147) (1991). It is undisputed that the lease agreement executed by the parties was dated February 10, 1986, but the guaranty executed by appellees was dated February 7, 1986 and referred to “the lease between them dated hereof.” It is also undisputed that the guaranty refers to the events of default as listed in paragraph 34 of the lease agreement, but paragraph 34 of the lease agreement speaks of “quiet enjoyment.” Appellant’s leasing agent testified that the procedure for leasing space to a new tenant was to first have the tenant sign a guaranty and an undated lease agreement. The lease was then presented to the landlord who dated the lease and signed it. The agent explained that the reason for the different dates on the guaranty and the lease agreement was due to the fact that February 7, 1986 was on a Friday and the lease was not presented to the landlord until the following Monday. The agent further explained that the reference to paragraph 34 in the guaranty was a typographical error. Appellant also introduced two estoppel certificates executed by appellees in conjunction with the sale of the shopping center, including the leased premises, to appellant. The estoppel certificates refer to the lease dated February 10, 1986 and to appellees as guarantors.

“OCGA § 10-7-3 states ‘(t)he contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation.’ OCGA § 10-7-1 provides that there shall be no distinction between contracts of suretyship and guaranty. OCGA § 10-7-3 was interpreted in Johns v. Leaseway of Ga., 166 Ga. App. 472 (304 SE2d 555) (1983) in which this court held ‘ “ ‘A contract of suretyship must be strictly construed in the interest of the surety.’ (Cit.) A surety’s liability will not be extended beyond by implication or interpretation. (Cits.) ‘The undertaking of a surety being stricti-juris, he cannot, in law or equity, be bound further than the very terms of his contract.’ (Cits.)” [Cit.]’ ‘ “There is no construction required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation. (Cit.)” (Cit.)’ (Indention omitted.) [Cit.]” Stone v. Palm Pool Prods., Ltd., 198 Ga. App. 751, 752 (403 SE2d 69) (1991). Although the parties may have intended for the guaranty and lease agreement to be executed the same day and for appellees to guaranty the lease agreement executed on February 10, the fact remains that the documents have different dates and do not otherwise reflect that intent. To conclude that the guaranty applies to the February 10, 1986 lease agreement would effectively extend appellees’ liability by implication, and this we are prohibited from doing. See Peara v. Atlanta Newspapers, 120 Ga. App. 163 (169 SE2d 670) (1969). The guaranty being clear and unambiguous, no construction was necessary and the trial court did not err in directing a verdict in favor of appellees. Johns v. Leaseway of Ga., supra.

Decided February 17, 1993.

Nelson, Mullins, Riley & Scarborough, John L. Latham, Scott K. Tippett, for appellant.

Fraser & Bussart, James C. Bussart, for appellees.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A92A1824.
    COLONIAL INSURANCE COMPANY OF CALIFORNIA v. LUMPKIN et al. LUMPKIN v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
    A92A1825.
    (428 SE2d 351)
   Pope, Chief Judge.

Colonial Insurance Company of California (“Colonial”) brought a declaratory judgment action against Stanley F. Castleberry, its insured on a policy of automobile liability insurance, James Stacy Lumpkin, Lowell Dan Hiers, and Georgia Farm Bureau Mutual Insurance Company, the uninsured motorist carrier. Colonial seeks a declaration that the terms of the policy it issued to Castleberry do not obligate it to pay any sums which its insured might be obligated to pay as damages arising out of an injury to Lumpkin on January 10, 1990. Both Colonial and Lumpkin filed motions for summary judgment. The trial court denied both motions and certified both orders for immediate review. We granted Colonial’s application for an interlocutory appeal and Lumpkin filed a cross-appeal.

The facts material to this appeal are not in dispute. On the evening of January 10, 1990, Castleberry, Lumpkin, Hiers, and Steve Meadows were riding around in Castleberry’s Chevrolet Blazer drinking beer. Castleberry customarily kept a pistol in the Blazer. After a while, Castleberry stopped his vehicle on a dirt road and exited the vehicle. While Castleberry was outside the vehicle and the vehicle was stationary, Hiers, still inside the vehicle, was handling Castleberry’s pistol and the pistol discharged, accidentally injuring Lumpkin.

Colonial contends Lumpkin’s injury did not arise out of the ownership, maintenance or use of the Blazer it insured, and therefore the trial court erred in denying its motion for summary judgment. When reviewing the denial of a motion for summary judgment, we must determine whether any genuine issues of material fact remain and whether the party moving for summary judgment is entitled to judgment as a matter of law. Since the facts material to these appeals are undisputed, the only remaining issue is whether either Colonial or Lumpkin is entitled to judgment as a matter of law.

Castleberry’s policy covered injuries “arising out of the ownership, maintenance or use” of the insured vehicle. This language is typical of automobile liability insurance policies. See generally Annotation, Automobile Liability Insurance: What are Accidents or Injuries “Arising out of Ownership, Maintenance, or Use” of Insured Vehicle, 15 ALR4th 10, 15 (1982). As the Supreme Court of Alaska recognized in Criterion Ins. Co. v. Velthouse, 751 P2d 1 (Alaska 1986), relying on Cameron Mut. Ins. Co. v. Ward, 599 SW2d 13 (Mo. App. 1980), there are essentially five categories of accidental shootings involving motor vehicles. This case would fall into the category of cases in which the vehicle is the “mere situs” of the accidental shooting. As the court noted in Velthouse, “[t]here is no coverage under these circumstances, because there is no causal connection between the discharge of the gun and the [intrinsic] use of the vehicle.” Velthouse, 751 P2d at 3. This holding is consistent with our decisions in King v. St. Paul Fire &c. Co., 201 Ga. App. 851 (412 SE2d 614) (1991) (holding no liability for injuries sustained by insured as he was shot while attempting to enter his vehicle) and Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829 (318 SE2d 670) (1984) (finding no coverage under automobile liability insurance policy when insureds were injured in their moving automobile when a third-party intentionally fired a gun at them because “the (injuries bear) no apparent relation to the operation of the vehicle or the use to which it was being put. Instead, it resulted from a deliberate assault which took place in the vehicle simply because that is where the (victims) happened to be when the assailant came ‘gunning’ for (them).” Id. at 830).

Our holding that there is no causal connection between the accidental shooting in this case and the use of the vehicle in which the shooting occurred is also consistent with decisions involving similar circumstances from other states. See, e.g., Velthouse, supra (in which no coverage was found when the insured, while “horsing around” with friends, picked up a loaded shotgun in his vehicle and pointed it at one of his friends and the gun accidentally discharged injuring the insured’s friend); National Family Ins. Co. v. Boyer, 269 NW2d 10 (Minn. 1978) (in which no coverage was found when, after leaving a bar, passenger sitting in a parked car accidentally discharged gun wounding entering passengers); American Liberty Ins. Co. v. Soules, 258 S2d 872 (Ala. 1972) (in which no coverage was found when insured accidentally injured passenger when gun discharged while he was moving it); Brenner v. Aetna Ins. Co., 445 P2d 474 (Ariz. App. 1968) (in which no coverage was found when, while returning from a hunting trip, a passenger in the front seat was playing with a gun and pointed it at a passenger in the rear seat and injured him when the gun accidentally discharged); and Mason v. Celina Mutual Ins. Co., 423 P2d 24 (Colo. 1967) (in which no coverage was found when, after target practice, a passenger in the insured vehicle was injured while playing with the gun inside the vehicle).

In support of his position that he, and not Colonial, is entitled to summary judgment, Lumpkin relies heavily upon our decision in Payne v. Southern Guaranty Ins. Co., 159 Ga. App. 67 (282 SE2d 711) (1981). In Payne, the insured and his companion went deer hunting in the insured’s truck. The insured spotted a deer, got out of the truck to shoot the deer and when he replaced the rifle in the truck, the gun discharged, striking his companion. Id. at 67. Payne falls into the category of accidental discharge cases involving loading and unloading the vehicle. The vehicle was being used for deer hunting at the time of the accident and the discharge was causally connected with that use. Thus, in Payne, unlike the case at hand, the basis for coverage was more than the mere presence of the parties in the vehicle.

Lumpkin also argues that because the insured vehicle was being used to transport passengers and a gun, a natural and reasonable risk arose that injuries would result from an accidental discharge of the gun within the confines of the car. Even if we interpreted the term “use” in the policy to include use as a moving receptacle for a firearm, there would still be no causal connection between that use and Lumpkin’s injuries under the facts of this case. Lumpkin’s injury resulted solely from Hiers’ negligent use of the gun, not from the use of the vehicle as a receptacle for the gun. Cf. Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977).

Because Lumpkin’s injuries did not arise out of the operation, maintenance or use of the insured vehicle, the trial court erred in denying Colonial’s motion for summary judgment. The trial court, however, properly denied Lumpkin’s motion for summary judgment.

Judgment reversed in Case No. A92A1824. Judgment affirmed in Case No. A92A1825. Johnson, J., concurs. Carley, P. J., concurs in judgment only.

On Motion for Reconsideration.

On motion for reconsideration, Lumpkin urges us to hold that the facts of this case fall into the category of cases in which the discharge occurs during loading and unloading of the vehicle. In support of this argument, Lumpkin relies upon a fact that is disputed in this case, Hiers’ reason for handling the pistol at the time it accidentally discharged injuring Lumpkin. Hiers and Meadows, another occupant of the vehicle, testified during their depositions that Hiers was attempting to hand the gun to Lumpkin at the time the gun discharged. Lumpkin testified that Hiers was attempting to exit the back seat and when he pushed the seat forward the gun discharged injuring him. During Hiers’ deposition he testified that on the night of the shooting, he and the two other occupants of the vehicle who were not injured decided to tell the people at the hospital that they saw a rabbit and when they attempted to get out of the vehicle to shoot the rabbit the gun went off.

We hold the trial court erred by denying Colonial’s motion for summary judgment regardless of whether Hiers was attempting to exit the vehicle at the time the gun discharged. As we noted in our original opinion in this case, generally courts extend coverage for injuries occurring when the discharge occurs during the loading and unloading process. However, courts have applied a common sense analysis to determine whether coverage is appropriate under the circumstances. When the vehicle is being used for a legitimate purpose (generally hunting) and the accident arises from loading or unloading weapons from the vehicle, most courts have held the accident was covered under the automobile liability insurance policy. See, e.g., Laviana v. Shelby Mut. Ins. Co., 224 FSupp. 563 (D. Vt. 1963) (while on a hunting trip, occupants of vehicle thought they spotted a deer and as passenger attempted to unload his gun before reentering the vehicle, the gun accidentally discharged striking the driver); Allstate Ins. Co. v. Valdez, 190 FSupp. 893 (E. D. Mich. 1961) (while a hunter attempted to unload his gun before placing it in the vehicle, he slipped and the gun discharged killing another hunter seated inside the vehicle); Toler v. Country Mut. Ins. Co., 462 NE2d 909 (Ill. App. 1984) (while hunter attempted to unload ammunition from his gun while outside the vehicle, the gun discharged injuring his companion); Travelers Ins. Co. v. Aetna Cas. &c. Co., 491 SW2d 363 (Tenn. 1973) (one hunter injured his hunting companion when he attempted to place a shotgun in the backseat of the vehicle used for hunting). These cases do not offer support for Lumpkin’s position. In this case, all the occupants of the vehicle testified that their purpose for using the vehicle on the night in question was not for hunting, but for “riding around.” The driver did not stop the vehicle for the purpose of allowing one of the passengers to hunt a rabbit, but only so that he could urinate.

Decided January 14, 1993

Reconsideration denied February 18, 1993.

Simpson & Gray, Joseph B. Gray, Jr., Elizabeth B. Gibbs, for appellant.

We find persuasive the reasoning of Tolleson v. State Farm Fire &c. Co., 449 S2d 105 (La. App. 1st Cir. 1984). In that case, three young men were loading guns into a vehicle for a hunting trip. During the loading process, the topic turned to bank robbery. During that conversation, one man pointed a gun at another and pulled the trigger. The Louisiana Appeals Court applied what it termed a “common sense approach” to deny coverage. Although the men were loading their weapons for the purpose of hunting the court found the accident was caused by horseplay. See also Bruno v. Hartford Accident &c. Co., 337 S2d 241 (La. App. 3d 1976).

When a common sense analysis is applied to the facts of this case, we must hold the trial court erred in denying Colonial’s motion for summary judgment. As we discussed above, the vehicle was being used to “ride around,” rather than for hunting. The use of the vehicle did not take on the nature of a hunting trip just because Hiers allegedly might have seen a rabbit. If Hiers was attempting to exit the vehicle to shoot a rabbit, he would have been exiting the vehicle for an illegal purpose since OCGA § 27-3-2 prohibits hunting at night any game bird or game animal in this state except for raccoons, opossums, foxes, and bobcats. Whether Hiers was attempting to exit the vehicle or to hand the gun to Lumpkin at the time the pistol accidentally discharged, the accident arose from Hiers’ negligent handling of the gun.

Accordingly, we deny Lumpkin’s motion for reconsideration.

Morris & Webster, Craig A. Webster, for appellees.

       The remaining four categories are: (1) discharges which occur while loading or unloading the vehicle (generally courts extend coverage in liability policies to cover the loading and unloading process); (2) the use of a vehicle as a “gun rest” (the courts of the various jurisdictions are divided concerning coverage); (3) accidents involving mounted gun racks in vehicles (generally courts extend coverage in liability policies to cover accidental discharges occurring when the gun is being removed or replaced on the gun rack); and (4) discharges caused by movement of the vehicle, usually when the vehicle hits a bump in the road (courts have had little trouble finding the requisite causal connection in these cases).


text:
    A92A1778.
    KELLY v. SILVERSTEIN.
    (427 SE2d 851)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of an adoption and the termination of his visitation and custodial rights with respect to his ex-wife’s son.

Appellant and Sharon Silverstein (“Mrs. Silverstein”) were married on April 1, 1988 and lived together in North Carolina until they separated in May 1989. The couple entered into a separation agreement in contemplation of divorce which provided in part that appellant have visitation privileges with Mrs. Silverstein’s four-year-old son, born of Mrs. Silverstein and another man prior to the marriage. In October of the same year, Mrs. Silverstein and the child moved to Georgia; however, despite the move, appellant still attempted to exercise his visitation rights. Mrs. Silverstein denied appellant’s repeated requests to see the child, and as a consequence, appellant moved the court in North Carolina to enforce the separation agreement. The court held that the agreement was enforceable and ordered Mrs. Silverstein to abide by its visitation provisions. Appellant filed motions for change of custody and contempt in July and August 1990, respectively, in North Carolina, and on August 3, a final divorce decree was entered in Georgia, terminating the marriage, appellant having consented to jurisdiction in Georgia. In October, Mrs. Silverstein and appellee were married, and shortly thereafter, appellee commenced adoption proceedings in Georgia. Mrs. Silverstein consented to the adoption, and the child’s natural father surrendered his parental rights in contemplation of the child’s adoption by appellee. Appellant then filed an “Intervention and Objection to Petition for Adoption” in the Georgia proceedings. In March 1991, the North Carolina court granted temporary custody of the child to appellee, pending a determination of permanent custody, and in October 1991, the adoption petition was granted in Georgia, explicitly terminating appellant’s visitation rights and custody. It is from this order that appellant appeals.

Relying on certain provisions of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, appellant contends the Georgia court erred in assuming jurisdiction over the adoption because of the pendency of the North Carolina proceedings. Appellee maintains that appellant’s contentions are without merit and that appellant lacks standing to appeal because he was not a proper party to the adoption proceedings. We agree.

Decided February 18, 1993.

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., David H. Johnson, for appellant.

Francois H. Silverstein, pro se.

“One who objects to the [adoption] proceedings must establish a blood relationship to the child. [Cit.]” McDonald v. Hester, 115 Ga. App. 740, 741 (155 SE2d 720) (1967). Furthermore, blood relationships alone do not guarantee standing to object to adoption proceedings. It is well established that “grandparents may file objections to petitions for adoption only if there is no father or mother living; otherwise, they have no standing to object. [Cit.]” Mead v. Owens, 149 Ga. App. 303, 304 (254 SE2d 431) (1979). Accord Lockey v. Bennett, 244 Ga. 339 (260 SE2d 56) (1979); Brant v. Bazemore, 173 Ga. App. 294, 295 (1) (325 SE2d 905) (1985). This rule applies to other blood relatives as well. See OCGA § 19-8-15. Accordingly, because appellant had no blood relationship to the child, the natural father surrendered his parental rights to appellee, and Mrs. Silverstein consented to the adoption, appellant had no standing to object to the adoption.

In addition, contrary to appellant’s contention that the Georgia court erred in assuming jurisdiction over the adoption proceedings because of the previously filed proceedings in North Carolina, OCGA § 19-9-46 (a) provides as follows: “A court of this state shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another exercising jurisdiction substantially in conformity with this article.” (Emphasis supplied.) The record demonstrates that the North Carolina court was not exercising the requisite jurisdiction under the Uniform Child Custody Jurisdiction Act or the Parental Kidnapping Prevention Act because by July 1990, when appellant filed his motion for change in custody, North Carolina was no longer the child’s home state, North Carolina had not been the child’s home state within six months before commencement of the custody proceeding, nor had the child been wrongfully removed from North Carolina. See OCGA § 19-9-43 (a) (1); 28 USC § 1738A (c) (2) (A).

Based on the foregoing, we need not further address appellant’s enumerations of error.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A1811, A92A1812.
    HOPKINS et al. v. MOORE; and vice versa.
    (427 SE2d 853)
   Cooper, Judge.

Hopkins (“plaintiff”) is the daughter of decedent and executrix of his estate, and Moore (“defendant”) is decedent’s adopted son. Plaintiff, as executrix of the estate and individually, brought an action against defendant to recover property allegedly belonging to the estate or to plaintiff individually. These cross-appeals are from a trial court order granting in part and denying in part defendant’s motion for partial summary judgment.

Because this case is before us for review of a decision on defendant’s summary judgment motion, we view the facts in a light most favorable to plaintiff as the non-moving party. Lau’s Corp. v. Has-kins, 261 Ga. 491 (405 SE2d 474) (1991). Prior to his death, decedent owned and operated a funeral home and a florist shop with defendant’s assistance. Decedent’s will provided, among other things, that one-half of the funeral home business be left to plaintiff, with the other half interest to be owned by defendant, and that the “remainder and residue” of the estate be left to plaintiff and two others. Decedent also had a certificate account worth approximately $52,000, which bank records show was owned by decedent and defendant as joint tenants with rights of survivorship. In 1988, decedent changed the account name to add plaintiff, but the signature card on which actual ownership of the account is based was not changed. In the portions of her complaint pertinent to these cross-appeals, plaintiff alleges that half of the funeral home belongs to the estate, to be distributed to her under the will (Count 2); that the flower shop is part of the “rest and residue” of the estate, to be distributed to her and two others (Count 4); and that part or all of the certificate account belongs either to the estate (Count 5) or to her individually (Count 8). Defendant takes the position that, despite decedent’s will, he is the sole owner of the funeral home business and the land on which it sits based on a partnership agreement and a survivorship deed signed by decedent years earlier; that the florist shop is an integral part of the funeral home business wholly owned by him; and that the certificate account belongs to him alone as the surviving joint tenant. After discovery, defendant filed a motion for summary judgment on these four counts. The motion was granted as to Counts 2 and 8 but denied as to Counts 4 and 5. In Case No. A92A1811, plaintiff appeals the grant of summary judgment with respect to ownership of the funeral home and her individual right to part of the certificate account funds; and in Case No. A92A1812, defendant appeals the denial of summary judgment with respect to ownership of the florist shop and the estate’s right to the certificate account.

Case No. A92A1811

1. While conceding that defendant legally owns the land on which the funeral home is situated pursuant to a duly executed and recorded survivorship deed, plaintiff contends that defendant did not establish as a matter of law that decedent and defendant actually executed a partnership agreement which would render the disposition of a one-half interest in the ongoing funeral home business to plaintiff by decedent’s will ineffective. Defendant placed in the record an unexecuted copy of a partnership agreement purportedly executed by the decedent and defendant, and paragraph 8 of that document states: “The partners hereto do further contract and agree that should either partner die during the time this partnership is in existence, then the remaining partner shall have the right and option to purchase the interest of the deceased partner for the sum of Seven Thousand ($7,000.00) Dollars payable to the personal representative of the deceased partner. Each partner by this agreement does bind his heirs and personal representative to accept the sum of Seven Thousand ($7,000.00) Dollars and to convey all interest in said partnership to the surviving partner.” However, no executed copy of the agreement exists because the executed original and copy were allegedly burned in a fire in early 1990. Thus, defendant must rely on his own affidavit and that of the attorney who drafted the agreement — who is also his counsel in this case — as evidence that the agreement was in fact executed.

Plaintiff argues that the testimony of defendant and his counsel regarding execution of the agreement is inadmissible under the Dead Man’s Statute because the alleged agreement occurred prior to July 1, 1979, and operates in defendant’s favor and contrary to decedent’s testamentary wishes. “Where any suit is instituted ... by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the . . . deceased person as to transactions or communications with such . . . deceased person. . . .” Former Code Ann. § 38-1603 (1). See OCGA § 24-9-1 (abolishing Dead Man’s Statute for transactions occurring on or after July 1, 1979, but providing for the continued applicability of the rule with respect to transactions occurring prior to that date). Thus, defendant is incompetent to testify regarding the transaction, and his affidavit must be disregarded on this question. Wilson v. Nichols, 253 Ga. 84, 85 (1) (316 SE2d 752) (1984). However, because defendant’s current counsel was attorney for both decedent and defendant at the time of the alleged execution of the agreement between them, the trial court was correct in its conclusion that his testimony is not barred by former Code Ann. § 38-1603 (5), see Whiddon v. Hall, 155 Ga. 570 (1) (118 SE 347) (1923), and there is no evidence that defendant’s counsel has the type of financial interest in the litigation that would render his testimony inadmissible under former Code Ann. § 38-1603 (4). We are troubled by counsel’s dual role as both advocate and witness and find ludicrous his suggestion that his testimony on this crucial issue goes only to “a matter of formality.” See ABA Model Code DR 5-101 and 5-102. Yet we agree with the trial court’s conclusion that this questionable activity on the part of counsel should not bar consideration of his testimony on motion for summary judgment, provided defendant and his counsel realize, as is stated in defendant’s brief on appeal, that defendant’s counsel cannot serve as advocate at trial should his testimony be needed there.

Although the trial court properly considered defense counsel’s affidavit, it nonetheless erred in concluding that the affidavit warranted summary judgment. Plaintiff stated in her deposition that decedent told her there was no partnership agreement. Moreover, even if we assume arguendo that plaintiff’s testimony is inadmissible, defense counsel’s affidavit still does not negate any genuine issue of fact regarding execution of the partnership agreement under the circumstances of this case. See Kirby v. Spivey, 167 Ga. App. 751, 752 (2) (307 SE2d 538) (1983). In Kirby, we held that even though crucial testimony is not contradicted by any other witness, a genuine issue of fact may exist and summary judgment may be inappropriate if “ ‘there are circumstances inconsistent with the truth’ ” of that testimony. Id. at 754. “ ‘ “Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto.” (Cit.)’ [Cit.]” Id. In the instant case, it is undisputed that decedent, a lucid businessman, executed a will transferring property which was not his to transfer if the partnership agreement was in fact executed years earlier; and this proven fact gives rise to implications inconsistent with the testimony of defendant’s counsel sufficient to raise a genuine issue of fact. The trial court therefore erred in granting summary judgment on Count 2.

2. In her second enumeration of error, plaintiff contends that the trial court erred in concluding no genuine issue of fact exists regarding her individual ownership of a least part of the certificate account. Acknowledging that she has no legal interest in the account because her name was not added to the signature card, she asserts that facts exist from which a resulting trust in her favor could be implied. See OCGA § 53-12-90 et seq.; see also OCGA § 53-12-3 (Georgia Trust Act, of which OCGA § 53-12-90 et seq. is part, applies to any trust regardless of when created). However, a resulting trust may only be implied for the benefit of the settlor, in this case decedent since all of the funds in the certificate account were deposited by him, or the settlor’s successors in interest. See OCGA § 53-12-91. Thus, to the extent a jury could find that decedent did not intend defendant to be the beneficial as well as legal owner of the entire account and thus imply a resulting trust, see id., the beneficiary of the resulting trust would be decedent’s estate rather than plaintiff individually.

Plaintiff also argues that a constructive trust may be implied under OCGA § 53-12-93 because the certificate account was created with funds from the estate of decedent’s sister which should have been distributed to plaintiff and other family members under the terms of the sister’s will. There is no admissible evidence in the record to support this contention. Moreover, this argument is raised for the first time on appeal. Accordingly, it cannot and does not provide us with a basis for concluding that the trial court erred in granting summary judgment with respect to Count 8, and summary judgment as to that count is affirmed.

Case No. A92A1812

3. Defendant argues that no genuine issue of fact remains as to his complete ownership of the florist shop (Count 4) because the florist shop is a part of the funeral home business and no genuine issue of fact remains as to his complete ownership of the funeral home business pursuant to the partnership agreement. In Division 1, we concluded that a question of fact does remain regarding execution of the partnership agreement, and thus regarding ownership of the funeral home business. Therefore, it follows that a question of fact also remains as to ownership of the florist shop, regardless of whether or not the florist shop is an integral part of the funeral home business, and the trial court’s denial of defendant’s motion for summary judgment on Count 4 was proper.

4. In his second enumeration of error, defendant contends that summary judgment should have been granted on Count 5 because no question of material fact exists with respect to ownership of the certificate account. “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). The certificate account in question was created in 1983 with decedent and defendant “as joint tenants with right of survivorship.” However, this court has held that the statutory presumption of survivorship established by OCGA § 7-1-813 (a) may be rebutted even if the account documents expressly provide for the right of survivorship. Turner v. Mikell, 195 Ga. App. 766, 767 (2) (395 SE2d 20) (1990); James v. Elder, 186 Ga. App. 810 (368 SE2d 570) (1988). In this case, there is testimony from a family member that around the time decedent opened the account with the money from his sister’s estate, decedent assured him that the money from decedent’s sister was “taken care of” and would eventually reach those it was intended to reach, as plaintiff would “do the right thing” with it. Although a close call, we agree with the trial court that, viewed in a light most favorable to plaintiff as the non-moving party, this testimony is sufficient to constitute “some evidence to overcome the presumption arising from OCGA § 7-1-813 (a).” Myers v. Myers, 195 Ga. App. 529, 531 (5) (394 SE2d 374) (1990). Thus, summary judgment on Count 5 was also properly denied.

Decided February 18, 1993.

Black & Black, Eugene C. Black, Jr., Julian Webb, for appellants.

Kenneth L. Hornsby, Charles C. Stewart, Jr., for appellee.

Judgment affirmed in part and reversed in part in Case No. A92A1811. Judgment affirmed in Case No. A92A1812. McMurray, P. J., and Blackburn, J., concur.


text:
    A92A2026, A92A2027.
    WILBRO et al. v. MOSSMAN; and vice versa.
    (427 SE2d 857)
   Pope, Chief Judge.

This appeal (Case No. A92A2026) and cross-appeal (Case No. A92A2027) arise from a claim for workers’ compensation benefits by Marsha Mossman against her employer Wilbro. The facts as found by the ALJ and adopted by the State Board of Workers’ Compensation (the “board”) are as follows:

“The employee, age 16, was employed as a sales clerk in the gift department by the employer on October 4, 1990. When she arrived at work on this date, she was instructed by her supervisor to straighten the shelves in the gift section warehouse. Another employee was also performing the same duties.

“The employee used a three-foot stepladder to reach the higher shelves. When the ladder was not sufficient to reach the high shelf, the employee stepped onto the shelves to restock the highest shelf. When she had completed her work and was about to step down, she lost her balance and grip of the shelf and fell to the floor cutting her finger and injuring her head and back. She immediately reported the accident to the employer and was taken to the hospital emergency room for treatment.

“The employee returned to work on October 12 and 13,1990, because of toy fair day and has not worked since this date because of her low back pain.

“The employee testified that she was not instructed not to climb on the shelves to perform her work. The co-worker who was also performing the same work, Kim Fields, testified that their supervisor had instructed them to leave a shelf if it could not be reached from the ladder and not to get on top of the shelves, and the stock boys would get things from the top shelf. Ms. Fields also testified that she reminded the employee about the supervisor’s instructions when she saw her climbing on the top shelves, and the employee said it was okay and did not come down.

“Adriana Tharpe, the employee’s supervisor, testified that she instructed the employee and Ms. Fields to clean the shelves in the warehouse, not to do any climbing on the shelves and to only use the stepladder. She also testified that the stock boys climb on the shelves when necessary, and it is not unsafe for them to do so because it is their job.

“The employee told the employer, the hospital emergency room, and her family physician that she had fallen off the stepladder when, in fact, she had fallen off the top shelf as she was attempting to step down on the ladder when she had her accident. The employee also testified that she had seen other co-workers, including Ms. Fields, climbing on the shelves and that she never saw the top shelf stocked by any other means. Ms. Fields denied ever climbing on the shelves. The employee testified at her deposition that it struck her that it might be unsafe to climb on the shelves. At the hearing, she testified that she thought it was safe.

“The employee has been treated by several physicians, including Dr. Titus Taube, her family physician, Dr. Peter 0. Holliday, III, a neurosurgeon, and Dr. Bert A. Loftman, a neurosurgeon. According to Dr. Holliday, the employee’s lumbar MRI was quite abnormal, showing a degenerative blackened disc at L5 [and] Si with slight protrusion at L2-3 consistent with a hyperextension trauma injury to the low back. Dr. Loftman diagnosed her as having low back pain from a centrally herniated lumbar lumbosacral disc. The neurological examinations were negative.”

Based upon the foregoing, the ALJ made the following findings of fact:

“I find that the employee sustained an injury by accident arising out of and in the course of her employment resulting in disability. This is based upon the medical evidence presented and the undisputed facts of record that the employee was on the employer’s premises carrying out her assigned duties when she accidentally fell injuring herself.

“I find that the evidence is sufficient to establish that the claim should be barred by the willful misconduct of the employee. In this regard, the employee’s lack of credibility is a determinative factor. She disregarded the specific instructions of her supervisor not to climb on the shelves, did not heed her co-worker’s reminder while in the act of climbing on the shelves, and, as a result, fell to the floor suffering the injuries in question. I find that the employee’s action in disregard of the employer’s specific instructions was willful, deliberate, conscious, and intentional.

“I find that the claim has obviously not been defended on unreasonable grounds.

“I find that the credibility of the employee’s testimony has been tainted by the conflicting testimony of a co-worker and the employee’s supervisor and the employee’s lack of forthrightness in describing how her accident occurred wherein she told the employer and others that she fell from the ladder, when, in fact, she had fallen from the shelving. The testimony of the co-worker and the supervisor, being consistent, are more persuasive and reliable than the employee’s testimony regarding the instructions not to climb on the shelves. Also, the employee’s conflicting testimony as to the safeness of climbing the shelves clouds her credibility and is self-serving.”

The board adopted the findings of fact of the ALJ except the board found that while Mossman’s conduct was a violation of a workplace rule established by her employer, because her employer had not submitted its work-place rules to the board for approval, Mossman’s violation of the rule is not misconduct sufficient to justify barring her claim for workers’ compensation pursuant to OCGA § 34-9-17. When this case was first appealed to the Superior Court of Houston County, the court remanded the case to the board with instructions to reconsider its ruling in light of our Supreme Court’s decision in Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (150 SE 208) (1929), in which that court stated that the conduct enumerated in OCGA § 34-9-17 is not exhaustive of the acts which may constitute wilful misconduct. The board reconsidered its ruling and issued a decision adhering to its earlier award. The employer again filed an appeal from that award to the superior court. In its second order concerning this case, the superior court affirmed the decision of the board awarding compensation but expressed concern that if the conduct of the employee was wilful misconduct as it was described by both the board and the ALJ that the wilful misconduct should be a basis for denial of compensation pursuant to OCGA § 34-9-17.

Case No. A92A2026

The employer and Travelers Insurance Company, the employer’s provider of workers’ compensation insurance (hereinafter collectively referred to as the “employer”), appeal from the superior court order affirming the award of the board.

1. The employer argues that the superior court erred by affirming the board’s award because it is contrary to the dictates of OCGA § 34-9-17. OCGA § 34-9-17 provides: “No compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another, or due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription, or willful failure or refusal to use a safety appliance or perform a duty required by statute, or the willful breach of any rule or regulation adopted by the employer and approved by the board, of which rule or regulation the employee has knowledge prior to the accident. The burden of proof shall be upon the party who claims an exemption or forfeiture under this Code section.”

Thus, the first showing that the employer must make pursuant to this statute is that the employee’s conduct constituted wilful misconduct. Whether an employee is guilty of wilful misconduct is a question of fact for the board and if any evidence exists to support its conclusion the board’s finding will not be disturbed on appeal. Roy v. Norman, 261 Ga. 303, 304 (2) (a) (404 SE2d 117) (1991). With regard to what constitutes wilful misconduct, our Supreme Court has consistently held:

“(a) The general rule is that mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct.

“(b) Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by the employee or his dependents.

“(c) Wilful misconduct, or wilful failure or refusal to perform a duty required by statute, is more than negligence or even gross negligence; it involves conduct of a criminal or quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.” Roy, 261 Ga. at 304 (1) (setting forth the guidelines first outlined in Aetna, 169 Ga. 333).

When these guidelines are applied to the facts of this case as found by the ALJ and adopted by the board, Mossman’s conduct cannot constitute wilful misconduct as a matter of law since the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature.

Decided February 18, 1993.

Irwin, Bladen, Baker & Russell, Robert F. Hamilton, for appellants.

Lawrence 0. Guillory, for appellee.

2. The employer also urges us to hold that temporary shift instructions do not have to be approved beforehand by the board in order to bar benefits to an employee whose wilful misconduct violates such instructions and results in injury. This argument is mooted in this case by our holding in Division 1 that Mossman’s conduct does not constitute wilful misconduct as a matter of law under the facts of this case. Nevertheless, we note that OCGA § 34-9-17 refers only to violation of a rule or regulation of the employer which has been “approved by the board. . . .” See also Liberty Mut. Ins. Co. v. Scoggins, 72 Ga. App. 263, 267 (1) (33 SE2d 534) (1945); Integrity Mut. Cas. Co. v. Jones, 33 Ga. App. 489 (2) (126 SE 876) (1925). The argument that the board does not have the resources or personnel to consider work-place rules is best addressed to the state legislature, a body empowered to provide such resources to the board.

3. We have examined the employer’s remaining enumerations of error and hold they are either rendered moot by our holding in Division 1 or are otherwise without merit.

Case No. A92A2027

Mossman’s sole enumeration of error on her cross-appeal that the superior court erred by failing to grant her motion to dismiss the employer’s second appeal to that court is without merit.

Judgments affirmed. Corley, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A2343.
    THE STATE v. DINGLER.
    (427 SE2d 861)
   Johnson, Judge.

Richard Allen Dingier pled guilty to one count of driving on a suspended license. The court imposed a sentence of 12-months probation and a fine of $750. This is an appeal by the State of Georgia asserting, in a single enumeration of error, that the sentence entered by the trial court was void.

Decided February 18, 1993.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellant.

Richard A. Dingier, pro se.

Void sentences are appealable by the state. State v. Marshall, 195 Ga. App. 535 (1) (394 SE2d 379) (1990). OCGA § 40-5-121 mandates the following sentences for the offense of driving with a suspended or revoked license. A first offense is punishable “by imprisonment for not less than two days nor more than six months, and there may be imposed in addition thereto a fine of not less than $500.00 nor more than $1,000.00.” Second or subsequent convictions, within five years, are punishable “by imprisonment for not less than ten days nor more than 12 months and there may be imposed in addition thereto a fine of not less than $1,000.00 nor more than $2,500.00.” No record of the proceedings was transmitted to this court for review. Nonetheless, the sentence imposed on Dingier falls outside the parameters for either a first or subsequent offense, and is therefore void. This case is remanded to the trial court with direction that Dingier be resentenced in accordance with the statute referenced above.

Sentence vacated and case remanded with direction. Pope, C. J., and Carley, P. J., concur.


author: Carley, Presiding Judge.

text:
    A93A0859.
    LUMBERMEN’S UNDERWRITING ALLIANCE v. ATLANTIC WOOD INDUSTRIES, INC.
    (427 SE2d 861)
   Carley, Presiding Judge.

Appellant-defendant moved for summary judgment on its res judicata defense. The trial court denied the motion and appellant appeals directly.

The grant of a motion for summary judgment is directly appealable, but the denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). OCGA § 9-11-56 (h). Summary judgment is to be granted only if “there is no genuine issue as to any material fact and ... a judgment as a matter of law [is appropriate].” OCGA § 9-11-56 (c). The trial court’s order denying appellant’s motion for summary judgment in the instant case did not specify that, “as a matter of law,” res judicata would not constitute a viable defense. Compare City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992). Instead, the trial court certified its order for immediate review and appellant’s application for interlocutory appeal was denied by this court. Compare City of Atlanta v. Chambers, supra at 835 (1). Accordingly, the order from which appellant seeks to appeal directly purports to be entirely interlocutory and can not, therefore, be construed as, in effect, the grant of summary judgment in favor of appellee-plaintiff as to that defense. Compare City of Atlanta v. Chambers, supra at 835 (1). It follows that we have no jurisdiction over appellant’s direct appeal and the same is hereby dismissed.

Decided February 18, 1993.

Harman, Owen, Saunders & Sweeney, C. Dale Harman, Perry A. Phillips, for appellant.

Hunter, Maclean, Exley & Dunn, Arnold C. Young, Oliver, Maner & Gray, Patrick T. O’Connor, for appellee.

Appeal dismissed. Johnson and Blackburn, JJ., concur.


text:
    A92A1814.
    CARGILL v. ZANT.
    (427 SE2d 809)
   Johnson, Judge.

David Cargill, an inmate at the Georgia Diagnostic & Classification Center at Jackson, appeals from an order dismissing his pro se civil complaint for failing to state a cause of action. It appears from the record that the order was not a dismissal of the action but was actually a denial of the filing of the pleading pursuant to OCGA § 9-15-2 (d). We will therefore treat the order as such a denial.

“When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.” OCGA § 9-15-2 (d). Cargill presented his pro se complaint against the prison warden, along with an affidavit of indigency, for filing in superior court. Car-gill alleged that the department of corrections held a disciplinary action at which he was found guilty of damaging state property, that the department ordered him to pay restitution in the amount of $51 and further ordered that the $51 be seized from his inmate monetary account. Cargill claimed that this seizure was improper. The department, however, has the authority to order such a seizure. “When an. inmate offender has been ordered to make restitution for any damage to state property caused by such offender, the department may order the seizure of all moneys in or coming into the monetary account of the inmate offender.” OCGA § 17-14-13 (d). Cargill’s pleading has not set forth a justiciable issue of law or fact. Although he claims that the department’s seizure of his money was improper, he has alleged no facts supporting that claim. The bald assertion of impropriety is insufficient absent specific allegations as to how the department’s conduct violated OCGA § 17-14-13 (d). Accordingly, the court did not err in denying the filing of his action.

Decided February 5, 1993

Reconsideration denied February 19, 1993.

David Cargill, pro se.

Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       Cargill acknowledges in his brief that prior to the trial court’s order denying the filing of his complaint, the department’s order of restitution and seizure of money from his inmate account was set aside.