text:
    A01A0468.
    JOHNSTON v. CONASAUGA RADIOLOGY, P.C.
    (549 SE2d 778)
   Ruffin, Judge.

Roy D. Johnston, M.D. is a shareholder and former employee of Conasauga Radiology, RC. (“Conasauga”). After Johnston’s employment with Conasauga ended, he sued the company, alleging that it was required to purchase his stock under a mandatory buy-sell agreement. Conasauga answered, denying Johnston’s claim, and also counterclaimed, alleging, inter alia, that Johnston owed the company $25,000. Conasauga moved for partial summary judgment on its $25,000 counterclaim, and Johnston moved to strike the motion on the ground that Conasauga failed to comply with Uniform Superior Court Rule (“USCR”) 6.5. The trial court denied Johnston’s motion to strike and granted Conasauga’s motion for partial summary judgment. Johnston appeals these rulings, and for reasons that follow, we affirm.

The record reveals that after Johnston left Conasauga, he immediately moved on to other employment. According to Johnston, for accounting purposes, he arranged with Conasauga to funnel his pay from his other employers through Conasauga, and in return Conasauga issued him paychecks. During July 1998, Johnston received $25,000 from his other employers, but he did not remit that money, as agreed, to Conasauga. Conasauga nevertheless paid Johnston $6,000 for the first half of July. In his deposition, Johnston acknowledged that he still owed Conasauga $25,000, but offered the following explanation for his failure to remit the money:

I was unable to get an accounting of what the accounts receivable are and the expenses and everything and then I did not get my last paycheck from Conasauga for the end of July. And so, I just thought that — you know, I kept calling and kept calling for numbers to see what the numbers were. I never got them. So, that was my insurance policy until I found some numbers.

When Conasauga’s counsel asked, “[s]o, you will agree that you owe Conasauga $25,000 for that money that you received in July[,]” Johnston responded, “[a]nd Conasauga owes me my last paycheck.”

In Count 2 of Conasauga’s counterclaim, it alleged that the $25,000 “was earned while [Johnston] was an employee of [Conasauga] and he has failed and refused to turn it over to [Conasauga].” On September 9,1999, Conasauga filed a two-page motion for partial summary judgment on this claim. In the motion, Conasauga summarily stated, “there is no issue of fact to be heard by the trier of fact as to [Conasauga] being entitled to the sum of [$25,000] as is alleged in Count II of [Conasauga’s] Counter-Claim.” In support of this argument, Conasauga generally cited to “(1) the pleadings on file with this case; (2) the deposition of Dr. Roy Johnston; [and] (3) affidavist [sic] from Dr. John Church.” Church, who was the only other shareholder in Conasauga, stated in his affidavit that Conasauga was obligated to pay Johnston $6,000 for the second half of July 1998, but did not pay Johnston because he “failed to tender the check for [$25,000].” Although USCR 6.5 required Conasauga to annex to its motion “a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried,” Conasauga failed to comply with the rule.

On October 11, 1999, Johnston filed his response opposing the motion. Johnston asserted, as he did in his deposition, that he “received [$25,000] in payment for services he performed for a third party during the month of July, 1997 [sic], . . . while [Conasauga] has yet to pay [him] his final paycheck, in the approximate amount of $6,000.00; the same having been due on July 30 or July 31.” Thus, Johnston argued, because Conasauga was also required to purchase his stock in the company, he “may be entitled to part or all of said [$25,000] in recoupment or setoff.”

Johnston also moved to strike Conasauga’s motion for failure to comply with USCR 6.5. Johnston argued that due to the rule violation, he had “no reasonable means of ascertaining the grounds for Defendant’s Motion for Partial Summary Judgment.”

On May 23, 2000, Conasauga filed a two-page brief in support of its earlier filed motion for partial summary judgment. In the brief, Conasauga merely pointed to Church’s affidavit, which acknowledged that Conasauga owed Johnston $6,000, and quoted Johnston’s deposition testimony, in which he acknowledged that he owed Conasauga $25,000.

On June 12, 2000, the trial court issued an order denying Johnston’s motion to strike and granting Conasauga’s motion for partial summary judgment. In denying the motion to strike, the court reasoned that Conasauga’s violation of USCR 6.5 “resulted in no confusion or disadvantage to [Johnston] in defending said motion.” In granting Conasauga partial summary judgment, the court found that because Johnston “unequivocally admitted in his . . . deposition that he currently possesses . . . [$25,000] rightfully belonging to [Conasauga], there remains no issue of material fact on the question of [Johnston’s] indebtedness to [Conasauga] in this amount.”

1. Johnston asserts that the trial court erred in refusing to grant his motion to strike Conasauga’s motion for partial summary judgment on the ground that Conasauga violated USCR 6.5. We are aware of no authority, however, and Johnston has cited none, that requires a trial court to strike a motion for summary judgment on the sole ground that the movant violated USCR 6.5. Instead, a trial court is vested with discretion in ruling on such motion. In exercising this discretion, a trial court may consider, as the trial court did here, whether the violation resulted in any “confusion or disadvantage to [the respondent] in defending the motion.”

In this case, the record supports the trial court’s finding that Johnston was not confused or disadvantaged by Conasauga’s violation of USCR 6.5. Conasauga identified the basis of its claim in the counterclaim filed with the court, and although Conasauga only referred to the counterclaim in its motion, it is clear that Johnston was aware of the precise nature of the claim. This is evidenced by Johnston’s extensive testimony about the $25,000 debt in his deposition and his claim that he was entitled to a set-off or recoupment. Likewise, Johnston’s response to Conasauga’s motion belies his argument that he was unable to ascertain the grounds for the motion. Both the statement of facts and argument contained in his response establish that Johnston was intimately familiar with the basis for Conasauga’s motion. Thus, the trial court did not abuse its discretion in finding that Johnston was not confused or disadvantaged by the rule violation, and we affirm the denial of his motion to strike.

2. Summary judgment is appropriate, where the evidence of record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal, we review a trial court’s grant of summary judgment de novo.

Interestingly, there does not appear to be any dispute about the facts in this case. Instead, there seems to be some confusion about the effect of the trial court’s order. Indeed, in the court below both parties presented almost identical facts to support substantially the same argument: Johnston admitted that he failed to remit the $25,000 to Conasauga because Conasauga did not tender his last paycheck, and Conasauga acknowledged that it did not remit Johnston’s last paycheck because he did not pay the $25,000. Thus, because there is no genuine issue of material fact as to Johnston’s failure to remit the $25,000, the trial court did not err in granting Conasauga partial summary judgment on the issue.

We are compelled to note, however, that this ruling does not preelude Johnston from establishing that he is entitled to a reduction in the amount of this judgment. Indeed, the trial court’s judgment merely establishes that there is no genuine issue of material fact as to one of several claims that the parties have asserted in this action. Johnston’s claim for his last paycheck, which is allegedly due under the same agreement that gave rise to Conasauga’s counterclaim, is in the nature of a claim for recoupment. A claim for recoupment is “not a defense to the liability that is being asserted in the main action [, but] seeks affirmative relief. . . and, therefore is, in effect, a ‘counterclaim.’ ”

Decided June 1, 2001.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, David

Under the Civil Practice Act,

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Because the trial court did not certify its ruling as final, it is subject to revision at any time. Furthermore, because the judgment is not final, it cannot be enforced.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

L. Host, for appellant.

McDonald, Kinnamon & Thames, E. Crawford McDonald, for appellee.

       See Edwards v. Atlantic Ins. Co., 203 Ga. App. 608, 609-610 (2) (417 SE2d 410) (1992).

       (Punctuation omitted.) Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (3) (380 SE2d 61) (1989).

       See id.

       OCGA § 9-11-56 (c).

       See Moore v. ECIMgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       OCGA § 9-11-56 (c).

         See OCGA § 13-7-2; Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777, 781 (4) (285 SE2d 236) (1981).

        T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga. App. 198, 201 (1) (355 SE2d 76) (1987).

       (Emphasis supplied.) OCGA § 9-11-54 (b).

       See MARTA v. Federick, 187 Ga. App. 696, 698 (1) (371 SE2d 204) (1988). Though not supported by the record, Johnston asserts in this brief that Conasauga has filed a writ of fieri facias for the judgment amount. Conasauga implies in its brief that it is entitled to immediate satisfaction of its judgment.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A0602.
    JACOBS et al. v. AMERICAN INTERSTATE INSURANCE COMPANY.
    (549 SE2d 767)
   Andrews, Presiding Judge.

We must determine whether a commercial general liability insurance policy issued by American Interstate Insurance Company to Greg Lee d/b/a Greg Lee Logging (Lee Logging) provides coverage for wrongful death and personal injury claims brought against Lee Logging resulting from a collision involving a truck driven by Stephanie Jacobs and a tractor-trailer driven by a Lee Logging employee. Because we find that the “auto” exclusion clause in the policy unambiguously excludes coverage for these claims, we affirm the trial court’s grant of summary judgment in favor of American Interstate in its declaratory judgment action asserting lack of coverage.

The American Interstate policy provides coverage for “ ‘bodily injury’ or ‘property damage’ to which this insurance applies,” but contains an exclusion which provides in relevant part that:

This insurance does not apply to: . . . “[b]odily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any . . . “auto” . . . owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.” This exclusion does not apply to:. . . [p]arking an “auto” on, or on the ways next to, premises you own or rent, provided the “auto” is not owned by or rented or loaned to you or the insured. . . .

Under the policy, “auto” is defined as “a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.”

The collision at issue occurred on September 21, 1998, while the above policy was in effect, as a Lee Logging employee was driving a tractor-trailer rig in the course of his employment. The tractor portion of the rig was attached to and pulling a lowboy trailer loaded with a logging skidder. The skidder, which was wider than the trailer, extended two feet off each side of the trailer. When the tractor-trailer met Ms. Jacobs’s truck traveling in the opposite direction on a two-lane bridge, the overhanging portion of the skidder struck Ms. Jacobs’s truck fatally injuring Ms. Jacobs and injuring her two children who were passengers in the truck.

The injuries resulting from this collision were the basis for the claims made against Lee Logging in a suit filed by Herbert Jacobs as Ms. Jacobs’s surviving spouse and executor and as guardian of the children. As a consequence of this suit, American Interstate filed the present declaratory judgment action in which the trial court granted its summary judgment motion on the basis of the “auto” exclusion in the policy and declared that the policy issued to Lee Logging provided no coverage for the claims arising from the collision. Mr. Jacobs appeals from the grant of summary judgment.

1. Mr. Jacobs contends that the “auto” exclusion does not apply because the collision did not arise out of the “use” of an “auto.” Although he concedes that the tractor-trailer being used by Lee Logging during the collision was an “auto” as defined by the policy, he contends the collision itself did not involve the “use” of the tractor-trailer because the point of contact in the collision was between the truck and the overhanging portion of the skidder. Since the skidder was a piece of equipment not defined as an “auto” under the policy, Mr. Jacobs contends that the trial court erred by applying the “auto” exclusion to determine there was no coverage.

This is an overly narrow application of the exclusion. Obviously, the skidder would not have made contact with the truck but for the fact it was being transported by Lee Logging’s tractor-trailer. The collision and resulting injuries clearly flowed from Lee Logging’s “use” of the tractor-trailer as contemplated by the “auto” exclusion. Ins. Co. of North America v. Dorris, 161 Ga. App. 46, 47-48 (288 SE2d 856) (1982); Grain Dealers Mut. Ins. Co. v. Pat’s Rentals, 228 Ga. App. 854 (492 SE2d 702) (1997), rev’d on other grounds, 269 Ga. 691 (505 SE2d 729) (1998).

2. Mr. Jacobs contends there is a coverage ambiguity in the policy that the trial court should have interpreted in his favor because the “auto” exclusion conflicts with coverage provided for “use” of an “auto” under the “excess insurance” endorsement in the policy.

The “excess insurance” endorsement referred to by Jacobs provides in relevant part that: “This insurance is excess over: . . . [a]ny of the other insurance, whether primary, excess, contingent or on any other basis: . . . [i]f the loss arises out of the maintenance or use of . . . ‘autos’ ... to the extent not subject to Exclusion g. of Coverage A (Section I).” It is undisputed that “Exclusion g. of Coverage A (Section I)” is the “auto” exclusion in the policy. Accordingly, the phrase “to the extent not subject to Exclusion g. of Coverage A (Section I)” in the excess insurance provision plainly states that excess insurance is provided only to the extent it is not excluded from coverage under the “auto” exclusion. We agree with the trial court’s conclusion that, while there could be losses involving an “auto” which are not excluded from coverage under the “auto” exclusion (for example, “auto” parking specifically excepted from the exclusion), that is not the case with the use of the tractor-trailer in the collision at issue. Giving effect to the plain meaning of these provisions, we find no conflict between the “auto” exclusion and the “excess insurance” coverage and no ambiguity in the coverage. See Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996).

Decided June 1, 2001.

Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin, Daniel B. Snipes, for appellants.

Donahue, Hoey, Rawls & Skedsvold, William J. Rawls II, Dana F. McBride, Craig R. White, Glover & Blount, Gary A. Glover, Alembik, Fine & Callner, Mark E. Bergeson, for appellee.

3. Mr. Jacobs also contends that a coverage ambiguity was created because sometime after the accident, American Interstate representatives said they thought the policy provided coverage for the collision.

No ambiguity or other issue with respect to coverage was created by these statements. The statements, which amounted to mere opinions given by agents of the insurer that the policy as written provided coverage for the collision, cannot change the unambiguous terms of the policy. Cole v. State Farm &c. Ins. Co., 135 Ga. App. 557, 558 (218 SE2d 279) (1975); Parris & Son, Inc. v. Campbell, 128 Ga. App. 165 (196 SE2d 334) (1973).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: JOHNSON, Presiding Judge.

text:
    A01A0604.
    DEERE & COMPANY v. MILLER-GODLEY AUCTION COMPANY.
    (549 SE2d 762)
   JOHNSON, Presiding Judge.

This case involves a suit for conversion against an auction company. The material facts of the case are not in dispute. Hence, with the consent of the parties, the trial court dismissed the jury which had been impaneled to try the case and considered both parties’ motions for a directed verdict. The trial court granted Miller-Godley Auction Company’s motion for a directed verdict, finding, in part, that public policy counsels against requiring auctioneers to verify the title of the goods they sell. Deere & Company appeals, alleging the trial court erred in holding that an auctioneer is not liable to a secured creditor for conversion when the auctioneer, without the secured creditor’s knowledge or consent, sells goods in which the secured creditor holds a perfected security interest. We agree with Deere and reverse the trial court’s order.

The evidence shows that Miller-Godley auctions farm and construction equipment. It sells the equipment on consignment from the owner and requires the owner to sign a statement to the effect that the owner is the lawful owner of the equipment and that there are no liens on the equipment. Because of the large volume of equipment and the late date that Miller-Godley usually receives the equipment before an auction, lien searches are performed only on those pieces of equipment which Miller-Godley has actual notice may have a problem. This is the custom of the auction industry in the southeast. When the equipment is sold, the purchase price is placed in an escrow account and usually held for ten days to allow “adjustment and investigation” by the buyer. If Miller-Godley is advised that there is a problem with the proposed sale and purchase, then no money is disbursed until the controversy is resolved.

In late 1995 and early 1996, Deere financed the purchase by Southern Farm Investments, Inc. of two pieces of farm equipment: a John Deere grain drill and a John Deere tractor. Deere properly and timely recorded UCC-1 financing statements for both items in Southern’s county of residence. On December 28, 1996, without notice to Deere, Southern delivered the pieces of equipment to Miller-Godley. Miller-Godley accepted Southern’s false representation that the equipment was not subject to any lien. Miller-Godley did not investigate the representation or perform any check for liens. Miller-Godley then sold the equipment at auction and paid the proceeds, less its commission, directly to Southern. Deere was never notified of the sale and did not discover that the equipment had been sold until nearly two years later. Until this time nearly two years later, the loan secured by the equipment was not in default. After learning of the sale, Deere sought payment for the equipment from MillerGodley. Miller-Godley refused, and Deere filed the present suit for conversion. Deere made no effort to repossess the equipment and has not initiated a suit against the debtor.

1. While courts in the state of Georgia have not specifically determined whether an auctioneer is liable to a secured creditor for conversion when the auctioneer, without the secured creditor’s knowledge or consent, sells goods in which the secured creditor holds a perfected security interest, the analysis of this issue rests on well-established agency law.

(a) Georgia state agency law. Conversion involves the unauthorized assumption and exercise of the right of ownership over personal property belonging to another, contrary to the owner’s rights. “Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it.” It is well established that an agent may be guilty of conversion even though he has no knowledge of the true owner’s title and acts in good faith. The agent, even though innocent, is liable if he assists in a conversion because he stands in the shoes of his principal. The liability of both the principal and the agent is based not upon contract, but upon tort.

Clearly, the relationship between a seller and an auctioneer is that of principal and agent. Equally clear is the fact that an auctioneer exercises an act of dominion over the property he auctions when he sells the property. This is especially true considering the fact that an auctioneer receives a monetary benefit from selling the property. Thus, he personally benefits from any conversion that might occur. Under Georgia law, “ [i] t is immaterial that such dominion was exercised in good faith, for whoever meddles with another’s property, whether as principal or agent, does so at his [own] peril, and it makes no difference that in doing so he acts in good faith.”

Applying these Georgia agency principles, a Georgia federal court noted that an auctioneer should be held liable for conversion when he auctions property on behalf of a principal who has no title. In United States v. LaGrange Stockyard, an auctioneer sold cattle in which the United States had a recorded security interest, and the government sued for conversion. As in this case, the auctioneer claimed that he never asserted dominion or control over the cattle, but acted merely as the debtor’s agent. The federal court found that a conversion had occurred under Georgia law, holding that an agent may be guilty of conversion even though he has no knowledge of the true owner’s title and acts in good faith. Citing cases from the Third, Fourth, Fifth and Ninth Circuits, the court in LaGrange Stockyard noted as follows: “The almost universally accepted rule is that an agent, factor, commission merchant or auctioneer who receives property from his principal, sells it and pays the proceeds to him is guilty of conversion if the principal has no title to the property, even though the agent acts without knowledge of the defect title.”

(b) Other jurisdictions. Every jurisdiction which has considered this question, including 19 states and the federal courts, has held an auctioneer liable for conversion when property is sold subject to a perfected security interest. Articles in American Jurisprudence, Corpus Juris Secundum, and American Law Reports have all reported that the great weight of authority follows the rule that an auctioneer who sells property on behalf of a principal having no title thereto is personally liable to the true owner for conversion. Liability for conversion is usually imposed regardless of the fact that the auctioneer acted in good faith and without actual or constructive knowledge of the security interest.

Miller-Godley cites cases from three states, Kentucky, Tennessee and Mississippi, arguing that we should adopt the minority view recognized by our sister states. However, even under the minority view espoused by Miller-Godley, the auction company would be held liable in this case. While most jurisdictions hold that an auctioneer is liable even if the auctioneer has no knowledge that his principal does not have clear title to the goods the auctioneer sells, these three states have held that an auctioneer is liable only if he lias either actual or constructive notice of the owner’s secured interest. In the present case, it is undisputed that Deere filed UCC-1 financing statements for both pieces of equipment. The UCC-1 financing statements gave Miller-Godley constructive notice of Deere’s security interest.

(c) Public policy. The Uniform Commercial Code was intended to create a dependable system of secured transactions which could be protected when there was compliance with the Code’s filing requirements. The purpose of UCC financing statements is to provide notice to interested third parties that enforceable security interests may exist in the property. If a third party is permitted to ignore such notice, then financing statements are rendered a nullity.

Miller-Godley contends that mandating auctioneers to perform lien searches would be logistically prohibitive due to the amount of equipment they receive and the late date they receive the equipment. However, allowing auctioneers to ignore financing statements simply because the search is inconvenient undermines the very concept of constructive notice in this state. Moreover, every other state which has considered the issue has rejected the public policy arguments raised by Miller-Godley. These other states found that the justification for imposing liability on the auctioneer is that he can more easily search the records for security agreements than can the buyers at an auction.

Auctioneers should be charged with knowing that possession does not equate with, and does not confer upon the possessor-principal, ownership of or title to the possessed property. In addition, if an auctioneer has not had the foresight to protect himself when the goods are offered to him for sale, he can seek indemnity from the principal. This discourages larceny and the reckless sale of personal property.

While an auctioneer’s role as a mere agent or conduit may stir sympathy, and it may seem harsh to impose liability for unknowingly aiding the conversion, an analysis of Georgia agency law mandates such a rule. Requiring auction companies to perform lien searches might be a time-consuming procedure and not consistent with existing business practice. However, the public policy issues of upholding the UCC and protecting innocent owners and purchasers balance in favor of this requirement. While Miller-Godley could have applied for a lien search and paid a relatively modest fee to determine that Southern was not the true owner of the equipment, there is absolutely nothing Deere could have done to anticipate Southern’s fraud. Holding auction companies liable for conversion will protect, as much as possible, the truly innocent parties: the owner and the purchaser.

The agent stands in the shoes of the seller. Because MillerGodley became the agent for the dishonest seller, it must stand the loss. Even under the minority view espoused by Miller-Godley, the auction company would be held liable because it had constructive notice of Deere’s secured interest. It is undisputed that Deere complied with the UCC filing requirements in this case, and its security interests should have been known and protected.

Miller-Godley argues that in this case, the conversion does not involve the impairment or denial of the rights of the lienholder or owner of the property in question. It points out that most of the cases cited by Deere involve the sale of cattle or cotton, which MillerGodley labels “fungible goods.” In those cases, the owners must elect money damages. However, in the present case, Deere can sue upon the debt or foreclose its perfected security interest in the equipment. According to Miller-Godley, a person is guilty of conversion only when it would be impossible to recover the secured goods themselves once they enter the stream of commerce.

Decided June 1, 2001.

McKelvey & Calhoun, Howard S. McKelvey, Jr., Alston & Bird, Grant T. Stein, Candace N. Smith, Paul J. Kaplan, Dow N. Kirkpatrick II, for appellant.

Ken W. Smith, for appellee.

This analysis ignores the clear mandates of conversion law and agency law in this state: an agent may be guilty of conversion whether the property converted is fungible or not. Moreover, this analysis undermines the reasons behind UCC filing requirements: to provide notice that enforceable security interests may exist in the property. The trial court erred in finding that public policy counsels against requiring auctioneers to verify the title of the goods they sell and in granting Miller-Godley’s motion for a directed verdict.

2. Based on our holding in Division 1, we need not address Deere’s remaining enumerations of error.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

        Maryland Cas. Ins. Co. v. Welehel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987).

       (Citations and punctuation omitted.) DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 600 (2) (417 SE2d 386) (1992).

       See Hardin v. City Wide Wrecker Sue., 232 Ga. App. 617, 619 (1) (b) (502 SE2d 548) (1998).

       (Citation and punctuation omitted.) Id.; see also Welehel, supra.

        United States v. LaGrange Stockyard, 270 FSupp. 492 (N.D. Ga. 1967).

       (Citations and punctuation omitted.) Id. at 494.

       7 AmJur2d, Auctions and Auctioneers, § 85 (1997).

       7A CJS, Auctions & Auctioneers, § 24 (1980).

       Personal Liability of Auctioneer to Owner or Mortgagee for Conversion, 96 ALR2d 208 (1964).

         See Dixie Stock Yard v. Ferguson, 192 Miss. 166 (4 S2d 724) (1941); Abernathy & Long v. Wheeler, Mills & Co., 92 Ky. 320 (17 SW 858) (1891); Frizzell v. Rundle & Co., 88 Tenn. 396 (12 SW 918) (1889).

       See William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 630 (1) (a) (466 SE2d 872) (1995); Thomas Ford Tractor v. North Ga. Production Credit Assn., 153 Ga. App. 820, 822 (2) (266 SE2d 571) (1980).

       See William Goldberg & Co., supra.

       See State Bank of Independence v. Equity Livestock Auction Market, 141 Wis.2d 776, 782-783 (417 NW2d 32, 34) (App. 1987).

       See Parker v. P & N Recovery of N.Y., 182 Misc.2d 342, 346-348 (697 NYS2d 462, 467) (Civ. Ct. 1999).

       See William Goldberg & Co., supra; Thomas Ford Tractor, supra.


author: Johnson, Presiding Judge.

text:
    A01A0872.
    THE STATE v. GUNTER.
    (549 SE2d 771)
   Johnson, Presiding Judge.

Stanley Gunter was charged with possession of methamphetamine with intent to distribute. The trial court granted Gunter’s motion to suppress evidence seized during a search of his person. The state appeals from that ruling. We affirm.

The evidence shows that the Appalachian Drug Task Force conducted a controlled purchase of methamphetamine from Jerry Fricks. Officers executed a search warrant at Fricks’ residence. During the search, officers found marijuana drug paraphernalia but did not find methamphetamine.

One of the officers asked Fricks if he could obtain marijuana or methamphetamine from anyone. Fricks named Jackie Tallant, Gunter’s co-defendant. Fricks told the officers that he planned to purchase methamphetamine from Tallant at Tallant’s residence. He agreed to and called Tallant to set up a buy. Officers recorded the call. Fricks left a message on Tallant’s answering machine, and Tallant returned the call within a few minutes. The officers recorded the conversation. While this tape was played for the trial court, the state never tendered the tape of the telephone conversation into evidence. Moreover, the trial court found that the tape revealed no criminal activity or plan for criminal activity.

According to one officer, Fricks informed him that Tallant and Gunter would be arriving within twenty-five minutes in a tri-colored Ford Bronco. Fricks also told the officer that the men would have methamphetamine and weapons. During the hearing on the motion to suppress, Fricks unequivocally denied calling Tallant to obtain methamphetamine and denied mentioning a drug transaction to officers. He testified that he probably called Tallant about working on Tallant’s vehicle. It is undisputed that Fricks had never previously provided information to law enforcement officers.

A deputy with the drug task force testified that a vehicle matching the description given to officers arrived about 25 minutes after the telephone call. Tallant drove the vehicle, with Gunter as a passenger. As the vehicle approached the house, officers did not observe any criminal activity or traffic violation. The vehicle drove to the basement garage of Fricks’ residence. At that point, five or more officers approached the vehicle with weapons drawn and physically removed Gunter and Tallant from the vehicle.

The officers placed the men on the ground and searched them. Gunter was placed on the ground with his arms outstretched. The deputy conducted a pat-down search for weapons and felt a “spongy” object in Gunter’s back pocket. The object was about the size of a roll of quarters, but not hard like a weapon. It was later determined that the object was contraband. At no time did Gunter consent to the search.

Gunter moved to suppress the contraband found in his pocket, complaining that the officers had no probable cause to detain and search him. The trial court granted the motion to suppress. In its enumerations of error, the state contends that this ruling was erroneous because Fricks was a reliable informant on which the officers could rely for probable cause.

Our responsibility when reviewing a trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the trial court’s decision. We must construe the evidence most favorably to uphold the trial court’s judgment, and we must adopt the trial court’s findings of fact and credibility, unless they are clearly erroneous. The findings of the trial court must not be disturbed unless no evidence exists to support them. In the present case, the trial court found that Fricks was not a reliable informant and that the officers did not have probable cause to stop and search Gunter. Because these findings are not clearly erroneous, we must adopt them.

A warrantless arrest may be made only if (1) an offense is committed in the officer’s presence or within his immediate knowledge; (2) the offender is trying to escape; (3) the officer has probable cause to believe an act of family violence has been committed; (4) the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult; or (5) for other cause if there is likely to be a failure of justice for want of a judicial officer to issue a warrant. The state correctly notes that a warrant-less arrest is valid if, at the time the arrest was made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonable, trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. However, the transcript in this case contains sufficient evidence supporting the trial court’s* conclusion that at the time of Gunter’s arrest, the officers did not have reasonable, trustworthy information supporting their contentions that Gunter had committed or was committing an offense.

The record reflects that neither Gunter nor Tallant committed any criminal acts or violations in the officers’ presence. Thus, the state must rely on the information allegedly supplied by Fricks to establish probable cause. Generally, probable cause is determined by the totality of the circumstances surrounding the basis of the informant’s knowledge and the informant’s veracity or reliability. Here, it is undisputed that Fricks had never previously provided information to a law enforcement officer. Moreover, during the hearing on the motion to suppress, Fricks did not recall telling any officer that he intended to buy methamphetamine from Gunter or Tallant. He unequivocally denied calling Tallant to obtain methamphetamine and testified that the recorded telephone conversation was probably about work on a car.

The state relies heavily on the taped telephone conversation between Fricks and Tallant and on an officer’s testimony of what he believed was said on the tape. However, not only is the tape not included in the record before this Court, but the trial court found that the telephone conversation revealed no criminal activity or plan for criminal activity. Without the evidence before us, we must presume that this finding is correct.

Decided June 1, 2001.

Roger G. Queen, District Attorney, Darrell E. Wilson, Assistant District Attorney, for appellant.

Ray & McKinney, Michael K. McKinney, William L. Reilly, for appellee.

The only evidence that drugs would be involved in Gunter’s visit to Fricks’ home was Fricks’ unsubstantiated and untested assertion. Officers did not test the reliability of the information supplied by Fricks. Corroboration of the details of a tip by the personal observation of the investigating officers may establish the reliability of the informant. However, in this case the only details of the tip which were corroborated by the personal observations of the investigating officers were that Gunter and Tallant would arrive in a specified car at a specified time.

The tip may have provided the officers with sufficient articulable facts to make an investigatory stop of Gunter and Tallant. However, once the car was stopped, the officers conducted no investigation or questioning of Gunter and Tallant. Instead, they immediately commenced the search. Consequently, the search was not based on probable cause which arose during an investigatory stop. Likewise, since Gunter’s arrest was without probable cause, the search of his person was not incident to a valid arrest and was improper. Considering the totality of the circumstances, and viewing the evidence so as to uphold the ruling of the trial court, we conclude that the trial court did not err in granting Gunter’s motion to suppress.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        State v. Wesson, 237 Ga. App. 789, 790 (516 SE2d 826) (1999).

        Tomlin v. State, 242 Ga. App. 405, 406 (530 SE2d 27) (2000).

        State v. Hanson, 243 Ga. App. 532, 536 (532 SE2d 715) (2000).

       OCGA § 17-4-20 (a).

       See Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991).

       See Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459) (1990).

       See Rucker, supra.

       See id. at 856.

       Id.


author: Ruffin, Judge.

text:
    A01A0083.
    HUMPHREY v. THE STATE.
    (549 SE2d 144)
   Ruffin, Judge.

There is a lesson to be learned from an unyielding line that runs throughout the length of our legal system. And its singular logic is simple: harm is the adulterant that raises error to the level of dispositional consideration. That principle, so firm and so fixed in our jurisprudence, is seldom, if ever, subject to inversal.

A jury found David Humphrey guilty of robbery by intimidation. On appeal, Humphrey contends that the trial court erred in (1) admitting evidence of a similar transaction, (2) permitting the victim to make a victim impact statement, and (3) commenting on the evidence. Humphrey also contends that he received ineffective assistance of counsel. Although we agree that error was committed below, Humphrey’s inability to demonstrate harm mandates affirmance.

The record reflects that on the night of October 18, 1997, a man entered a convenience store and threatened to shoot the cashier if she did not give him “all [the] twenties” in the cash register. Delorse Morgan, the cashier, testified that although she could not see a gun, the assailant had his hand under his t-shirt, and she could see the imprint of a gun underneath the shirt. Morgan gave the man the money from the cash register, and he fled the store.

When the police arrived, Morgan described the robber racially, “about five ten, five eleven, 150, maybe 60 pounds, brown hair, dark brown hair, mustache,” and she said he was wearing “a white T-shirt, like a baseball cap and plaid shorts, white socks, some kind of tennis shoes.” John Wright, a customer who arrived at the convenience store as the robber fled, told the police that the robber had “a medium, small, slender build. He had short hair. He had a light mustache, goatee. He had a baseball cap on, T-shirt and some shorts.”

Shortly after the robbery, the police showed Morgan several photo lineups that did not include Humphrey’s photograph, and she did not identify the robber. In January 1998, following a subsequent robbery in which Humphrey was a suspect, the police created another photo lineup that included his photograph. When Morgan was shown this photo lineup, she immediately identified Humphrey as her assailant, and Humphrey was arrested and charged with armed robbery.

During the trial, the State introduced a video taken from the convenience store, which showed the robbery, but not the robber’s face. However, both Morgan and Wright identified Humphrey at trial as the man who robbed the convenience store in October 1997. The State also introduced evidence of a similar transaction. Nicholas Mane testified that, in December 1997, Humphrey and two other males robbed him of his necklace and jacket. According to Mane, Humphrey wielded a pistol during the robbery.

Based upon this evidence, the jury found Humphrey guilty of robbery by intimidation.

1. In his first enumeration of error, Humphrey contends that the trial court erred in admitting evidence of the similar transaction, arguing that it was not sufficiently similar to warrant its introduction. In order to be admissible, similar transactions do not need to be identical to the crime charged. Nonetheless, there must be a “sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.” Moreover, such evidence must be tendered for a proper purpose because “[a] defendant’s guilt may not be proved by showing the commission of other crimes to prove that the accused has a criminal nature.”

Here, the trial court purportedly admitted the evidence to establish Humphrey’s bent of mind and course of conduct. Under these circumstances, the issue is not one of mere similarity, but of relevance to the issues at trial. Nevertheless, we do require a degree of similarity. Otherwise, the exception of admissibility would swallow the rule of exclusion. Here, the only similarities between the two crimes are that both occurred at night and allegedly involved a handgun. Thus, there was a marked lack of similarity, and we fail to see any relevance other than improperly establishing “that the defendant committed the crime on trial because he is a man of criminal character.” Under these circumstances, the trial court erred in admitting evidence of the similar transaction.

Nevertheless, “error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” Here, both Morgan and Wright positively identified Humphrey as the man who robbed the convenience store. Given such unequivocal eyewitness identification, it is highly unlikely that the admission of the similar transaction evidence contributed to the verdict. Thus, this claim of error presents no basis for reversal.

2. In his second enumeration of error, Humphrey asserts that the trial court erred in admitting prejudicial testimony from the victim. Specifically, Humphrey points to the following exchange, which took place during the State’s case-in-chief: “Prosecutor: What has happened to you since this robbery? Morgan: Well, I know one thing. I’m not working at a convenience store anymore.” Midway through Morgan’s response, Humphrey’s attorney interjected, “Your Honor, I . . . don’t quite understand the relevance of that. She can testify about the robbery and identifying somebody, but I don’t see the relevance of that.” The trial court permitted the prosecutor to “establish” relevance, and the prosecutor responded that the testimony was relevant “[b]ecause of what [Morgan] went through, she’s going to make darn sure she gets the right guy who caused her all this.” Humphrey’s objection was not renewed, and the prosecutor asked the question a second time. Morgan then testified that, following the robbery,

I wouldn’t work in a convenience store no more [sic]. It’s too dangerous. I don’t like the dark anymore. I didn’t use to be afraid of the dark. I am now. And after this happened I didn’t eat very well. I didn’t sleep very well. My son suffered from it because I wasn’t doing very well. And I quit my job because of it. And I was a single parent. I had to raise my child on my own and with no support from nobody [sic]. And he just caused my life to be a little bit out of whack for awhile, and it still bothers me but not like it did. But it still causes problems because I don’t like being afraid of the dark. I’m a grown woman. I’m 32 years old. I don’t need to be afraid of the dark.

During this entire soliloquy, no objection was made. On appeal, however, Humphrey asserts that the trial court erred in allowing Morgan to make a “victim impact statement” during the middle of the trial. Pretermitting whether the trial court erred in admitting this testimony, Humphrey waived the error by failing to timely object. “It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.” Here, Humphrey never actually objected to Morgan’s testimony, but merely commented that he failed to see its relevance. And, during Morgan’s lengthy response, Humphrey interposed no objection. Having failed to object, Humphrey has waived this issue on appeal.

3. In his third enumeration of error, Humphrey asserts that the trial court erred in commenting on the evidence. During its deliberation, the jury asked to see the videotape of the robbery again. As the tape was playing, one juror asked the court to “stop [the video] of him going out the door.” The trial court, apparently seeking clarification, asked, “When he leaves, Defendant goes out the door?” Humphrey argues that the court erred in commenting on the evidence by suggesting that it was the defendant leaving the store. However, as Humphrey acknowledges, no objection was made at trial. Thus, he has waived appellate review of this issue.

4. In his fourth and final enumeration of error, Humphrey contends that he received ineffective assistance of counsel at trial. Specifically, Humphrey asserts that his trial counsel was ineffective for failing to object to the trial court’s comment to the jury and failing to obtain evidence of his innocence. In order for Humphrey to prevail on this claim, he must establish (1) that his attorney’s performance was deficient and (2) that he was prejudiced by such deficiency — i.e., that there is a reasonable probability that the trial would have turned out differently but for the deficient performance. Moreover, “[a] finding by the trial court that the defendant did not receive ineffective assistance of counsel will be affirmed unless clearly erroneous.”

With respect to trial counsel’s failure to object to the trial court’s comment during jury deliberation, we find no error. Pursuant to OCGA § 17-8-57, it is reversible error for any judge to “express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” However, comments that are ministerial do not violate this Code section. Here, the trial court was attempting to ascertain where the jurors wanted the video stopped. Thus, in asking the juror if he wanted the tape stopped when the defendant went out the door, the trial court was merely engaging in a ministerial task. Although it would have been preferable had the trial court used the word “suspect” rather than “defendant,” Humphrey’s attorney’s failure to object to such ill-chosen diction does not warrant reversal. Indeed, at the hearing on the motion for new trial, Humphrey’s trial attorney testified that he did not object to the trial court’s statement because he did not want to emphasize the comment. This type of tactical decision does not equate to ineffective assistance of counsel.

Humphrey also contends that his trial counsel was ineffective in failing to obtain a videotape from a Halloween party taken shortly after the robbery. According to Humphrey, the video, which showed that he had long hair at the time of the robbery, would have demonstrated that he was not the person who robbed the store. During the hearing on Humphrey’s motion for new trial, his trial counsel testified that he did not recall Humphrey telling him about the videotape. Assuming, for the sake of argument, that Humphrey did tell his attorney about the tape, he is still unable to establish a claim of ineffective assistance. Even if the attorney’s performance can be characterized as deficient, Humphrey cannot prevail unless he can establish prejudice. Here, two eyewitnesses unequivocally identified Humphrey as the perpetrator. Given such evidence, it is unlikely that jurors would have been swayed by a videotape purporting to show how Humphrey looked at the time of the robbery.

Decided May 4, 2001

Reconsideration dismissed June 4, 2001.

William J. Mason, for appellant.

David B. Humphrey, pro se.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

Moreover, in reviewing a trial court’s ruling on a claim of ineffective assistance, we must give proper deference to the trial court’s factual findings. After viewing the video, the trial court evidently concluded that its omission from the trial did not prejudice the defendant because the trial court denied Humphrey’s motion for new trial. Unlike the trial court, this Court has not had an opportunity to observe the defendant and to compare his appearance at trial to his appearance in the video. Accordingly, this Court is in no position to gainsay the trial court’s ruling. Under these circumstances, Humphrey has failed to carry his burden of proving by the record that he was prejudiced by his defense, and we must uphold the trial court’s conclusion that he received effective assistance of counsel.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Usher v. State, 236 Ga. App. 663, 666 (3) (512 SE2d 380) (1999).

        Guyton v. State, 272 Ga. 529, 531 (3) (531 SE2d 94) (2000).

       (Punctuation omitted.) Barnes v. State, 191 Ga. App. 424, 425 (1) (382 SE2d 164) (1989).

        Quezada v. State, 236 Ga. App. 718, 720 (1) (512 SE2d 401) (1999).

       See Guyton, supra at 531-532 (in both offenses, the assailant walked by the victims before returning to point a silver handgun at them and to order them to relinquish their property); Avery v. State, 244 Ga. App. 177, 178-179 (1) (534 SE2d 897) (2000) (evidence admissible where “both incidents involved an assault and robbery; both victims were acquaintances of [the defendant]; both victims were shot in the left leg and robbed; and . . . the person who shot the victim worked with an accomplice”); Johnson v. State, 236 Ga. App. 252, 254 (1) (511 SE2d 603) (1999) (in both crimes, “the victims were older, a deadly weapon was used, . . . the attacks occurred at an outdoor ATM . . . after normal business hours ... in commercial shopping areas, the victims were alone, and the attacker initiated physical contact with the victims after [they] received cash from the ATM”).

       (Punctuation omitted.) Barnes, supra.

       (Punctuation omitted.) Tanner v. State, 243 Ga. App. 640, 643 (2) (533 SE2d 794) (2000).

       See id.; see also Brooks v. State, 232 Ga. App. 115, 116 (4) (501 SE2d 286) (1998).

       (Punctuation omitted.) Rupert v. State, 239 Ga. App. 128, 131 (1) (a) (520 SE2d 695) (1999).

       See id.

        See Anglin v. State, 173 Ga. App. 648, 652 (5) (327 SE2d 776) (1985).

        See Abney v. State, 240 Ga. App. 280, 283 (3) (523 SE2d 362) (1999).

       (Punctuation omitted.) Id.

       See Bradford v. State, 221 Ga. App. 232, 237 (7) (471 SE2d 248) (1996).

       See Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

       See Abney, supra.

       See Wright v. State, 267 Ga. 496, 497 (2) (b) (480 SE2d 13) (1997).

       See Kidwell v. State, 264 Ga. 427, 432 (11) (444 SE2d 789) (1994).

       See id.


author: Barnes, Judge.

text:
    A01A0149.
    THE STATE v. HAMMANG.
    (549 SE2d 440)
   Barnes, Judge.

The State appeals the trial court’s grant of Jamie Sue Hammang’s motion to suppress evidence obtained after a police officer stopped Hammang’s car, including breath test results showing blood alcohol contents of 0.057 and 0.060. For the reasons set forth below, we reverse.

The State charged Hammang with three counts: driving under the influence of alcohol to the extent that she was a less safe driver (OCGA § 40-6-391 (a) (1)), driving with more than 0.02 percent blood alcohol content while under the age of twenty-one (OCGA § 40-6-391

(k) ), and driving without her headlights on (OCGA § 40-8-22). The arresting officer testified that he stopped Hammang because he saw her drive through a poorly lit intersection without her headlights on. He further testified that it was almost dark outside and all the other cars in view had their headlights on. Hammang did not testify at the suppression hearing.

The trial court granted Hammang’s motion to suppress, finding that the officer stopped her at “approximately 9:00 p.m.”; that sunset that day was 8:34 p.m.; that Hammang “was not required to have her headlights on until 9:04 p.m.”; and that “therefore there was no reasonable articulable suspicion for the stop.”

When the evidence is uncontroverted and no issues of witness credibility are presented, we review de novo the trial court’s application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320 (l) (443 SE2d 474) (1994). “If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.” McConnell v. State, 188 Ga. App. 653, 654 (1) (374 SE2d 111) (1988). “The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” (Citations and punctuation omitted.) State v. Webb, 193 Ga. App. 2, 3-4 (1) (386 SE2d 891) (1989).

“No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer’s legitimate concern for public safety.” State v. Armstrong, 223 Ga. App. 350, 353 (2) (477 SE2d 635) (1996). The police officer presented specific and articulable facts that justified a limited inquiry, and therefore the State demonstrated “some basis from which the court can determine that the detention was not pretextual, arbitrary or harassing, and not based upon mere inclination, caprice, or a ‘hunch’ by law enforcement.” Id. The trial court’s grant of Hammang’s motion to suppress is reversed.

Decided May 14, 2001

Reconsideration denied June 4, 2001

Gerald N. Blaney, Jr., Solicitor-General, Staci B. Melton, Gary S. Vey, Assistant Solicitors-General, for appellant.

William R. Carlisle, for appellee.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.


author: Smith, Presiding Judge.

text:
    A01A0409.
    LEWIS v. THE STATE.
    (549 SE2d 732)
   Smith, Presiding Judge.

Sean Lewis, Teddy Bradshaw, and Jaylon Taylor were indicted on various charges arising out of an attempt to rob a group of golfers at a DeKalb County course. Lewis was charged with two counts of aggravated assault with a deadly weapon and two counts of aggravated assault with intent to rob, and he was tried separately from his co-defendants. The jury was unable to reach a verdict on the two counts of aggravated assault with a deadly weapon, but convicted Lewis on both counts of aggravated assault with intent to rob. Lewis’s amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. In two enumerations, Lewis raises the general grounds. Construed in favor of the jury verdict, the evidence shows that Lewis and his co-defendants planned the robbery at school. Bradshaw had already committed several armed robberies at a particular location on the golf course. Lewis and Taylor obtained two firearms and an air pistol from Bradshaw’s home, and all three went to the same place on the golf course and hid behind a tree. After several groups of golfers had passed, a group approached driving three golf carts. Bradshaw directed Lewis to approach a water cooler and wait for the lead golfer there while he and Taylor accosted the remaining golfers. Lewis obeyed and waited beside the water cooler until the first golfer approached.

Bradshaw and Taylor stopped the second cart and forced the occupants to the ground; Bradshaw then fired several shots while Taylor held the air pistol to one golfer’s head. The golfer in the first cart testified that he saw Bradshaw and Taylor stand up and display their firearms; he “mashed the gas” and fled from Bradshaw and Taylor, but was intercepted by “a guy that came from behind the water cooler” and pointed a gun at him while “walking fast at me.” He dove from his cart as gunfire erupted; he believed that the shots were aimed at him.

The golfer in the third cart, an assistant pro at the course, had witnessed another Bradshaw robbery a few days before and had armed himself. When he observed the robbery in progress, he returned fire, striking Taylor in the head. Taylor was arrested at the scene and identified Lewis as a participant; Lewis and Bradshaw were arrested shortly afterward.

Lewis asserts that the State failed to prove his participation in the attempted robberies, claiming that he abandoned or withdrew from them. In his statement to police and his testimony at trial, he contended he told the others, “I can’t do this” or “I am not with it,” abandoned the enterprise, and walked away to the water cooler to get a drink. But both Bradshaw and Taylor denied that Lewis ever told them he was “out of this” or going home, and both testified that Lewis took Bradshaw’s gun with him when he went to the water cooler, although Lewis testified that he took the gun because he did not want Taylor to shoot anyone. The decision as to whether Lewis participated in the robbery or abandoned the enterprise was for the jury to determine:

An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicting testimony is a matter of credibility for the jury to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict.

(Citations and punctuation omitted.) Wheeler v. State, 236 Ga. App. 197, 198 (1) (511 SE2d 564) (1999). Given the testimony of the victims as well as that of the co-defendants, the jury was authorized to convict Lewis under the standard of Jackson v. Virginia, supra.

2. Lewis also contends that the trial court erred in allowing the statement of one of the golfers to be read into evidence because he was out of town at the time of the trial. The trial court heard pretrial testimony from the police officer who took the statement and found the statement admissible. In its order denying Lewis’s motion for new trial, the trial court elaborated on its pretrial ruling, finding that the victim gave his statement to the police approximately 45 minutes after the crime occurred, that he was still excited and upset from having been a victim of an aggravated assault, and that he had not discussed what he would tell the police with any of the other victims. On this basis, the trial court concluded that the victim’s statement was “free from afterthought and device” and ruled it admissible pursuant to Stovall v. State, 216 Ga. App. 138-139 (1) (453 SE2d 110) (1995) , and Taylor v. State, 226 Ga. App. 339-340 (1) (486 SE2d 601) (1997).

We find no error in the trial court’s ruling. “A trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” (Citations and punctuation omitted.) Stovall, supra at 139 (1). In Stovall, a police officer was permitted to read a statement taken from a victim approximately 45 minutes after the crime was committed; we concluded that “[t]he evidence was relevant and the statement was made without premeditation.” Id. Here, the officer who took the statement testified that his transcript of the victim’s account was written down at 2:37 p.m., between ten and fifteen minutes after beginning the interview. Testimony was offered that the crime occurred at about 1:40 p.m. According to the officer, the victim was “visibly shaken, he was real nervous ... he chain smoked while I was talking to him, he was so upset about the incident.” Another victim testified that he had no opportunity to talk with the other victims because “they all ran for help in different directions” and returned only as the police arrived. The trial court’s determination was supported by some evidence and was not clearly erroneous; we will not disturb it.

3. Lewis argues that a portion of the prosecutor’s closing argument was error, but he has waived that ground by not raising an objection at trial. Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996) .

4. Lewis also asserts as error the trial court’s refusal to allow a juror to testify at the hearing on his motion for new trial regarding a juror’s alleged misunderstanding of the law and a juror’s alleged assertion during deliberations that Lewis would get probation if convicted. But OCGA § 17-9-41 provides: “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” Limited exceptions have been created “where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations. [Cits.]” Gardiner v. State, 264 Ga. 329, 332 (2) (444 SE2d 300) (1994). But these exceptions do not include jurors’ provision of legal information to other jurors or jurors’ misapprehension or confusion regarding the law. Id. “OCGA § 17-9-41 effectively precludes jurors from engaging in post-trial attacks on their verdict on the basis of statements uttered to one another inside the jury room.” (Footnote omitted.) McCorkle v. State, 245 Ga. App. 505, 507 (2) (538 SE2d 161) (2000); see also Moore v. State, 224 Ga. App. 797, 801 (6) (481 SE2d 892) (1997). Since the proposed affidavit does not fall within any exception to OCGA § 17-9-41, the trial court did not err in refusing to consider it.

5. Lewis also alleges ineffective assistance of counsel in several respects. To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel’s performance was deficient and that but for this deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999). The trial court’s determination that Lewis was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous. McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998). Lewis has failed to meet this standard.

(a) Lewis contends that his trial counsel was ineffective in failing to subpoena one of the victims, who was out of town at the time of trial. But trial counsel testified that he believed the prosecutor wanted the witness but did not want to delay the trial. Trial counsel objected to the victim’s statement on hearsay grounds but also thought that the jury would not give as much credit to a written statement as to live testimony, even if it were admitted. He also considered that the jury might believe the victim did not particularly care about the case if he could not be bothered to come to trial. He did not believe he had any significant grounds for cross-examination and thought that the victim appearing in person would probably hurt the defense more than “trying to twist his story a little bit” on cross-examination would benefit Lewis. “[S]uch matters as the examination of witnesses are grounded in matters of trial tactics and strategy and do not provide a basis for finding counsel lacking. Such tactical decisions do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Turner v. State, 245 Ga. App. 294, 296 (4) (c) (536 SE2d 814) (2000).

(b) In a brief argument consisting of three conclusory sentences, Lewis contends his trial counsel was ineffective because he did not make numerous objections at trial. He first complains that trial counsel did not object to the trial court’s charge on reasonable doubt. But there was no error in this charge, which substantially followed the pattern jury instructions. Brown v. State, 264 Ga. 48, 49-50 (3) (a) (441 SE2d 235) (1994).

Next, Lewis contends his trial counsel was ineffective in not objecting to a portion of the prosecutor’s remarks during closing argument, contending he misstated the law. See Division 3, above. Trial counsel acknowledged that “just in hindsight” the prosecutor’s closing argument could have confused the jury on the issue of parties to the crime and abandonment. But although he did not object at the time, he responded to and vigorously attacked the State’s contentions in Lewis’s closing argument. Lewis has not shown that an objection instead of or in addition to his counsel’s direct attacks on the State’s argument in closing would have resulted in a different outcome at trial. Moreover, the trial court instructed the jury on the legal principles of intent, abandonment, and mere presence at the scene of a crime. “ ‘[Qualified jurors under oath are presumed to follow the instructions of the trial court.’ [Cit.]” Gomillion v. State, 236 Ga. App. 14, 19 (3) (d) (512 SE2d 640) (1999).

Lewis asserts his trial counsel was ineffective in failing to object to the trial court’s response to a question from the jury during deliberations. But the jury directed at least nine questions to the trial court, and Lewis does not specify which of many responses he deems objectionable, nor does he make any argument supporting his conclusory statement that one, unspecified response was erroneous. This court will not “change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error,” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995), to determine, first, whether any one of the trial court’s many responses was improper and, then, whether trial counsel’s failure to object thereto rose to the level of ineffective assistance. Court of Appeals Rule 27 (c) (2).

(c) Lewis also contends that his trial counsel was ineffective in failing to impeach two witnesses with respect to alleged inconsistencies in their testimony. In one instance, the inconsistency alleged by Lewis is not reflected by the record, and trial counsel therefore was not ineffective in failing to impeach for a nonexistent inconsistency. Lewis also complains that his counsel was ineffective in failing to impeach one victim with regard to an omission in his statement to police. But as the trial court noted on at least two occasions during Lewis’s sentencing and again during the motion for new trial, this victim was a very effective witness. Trial counsel testified that the witness “was a very sympathetic guy,” that he would be unable to “turn [him] into somebody who appeared to be a liar,” and that “there wasn’t really a lot of impeachment” available to him. He therefore made a tactical decision to challenge the victim on other problems with his testimony instead of the omission from his statement to the police. This is the essence of a tactical decision and does not amount to ineffective assistance of counsel.

Decided May 21, 2001

Reconsideration denied June 4, 2001

Dwight L. Thomas, Caprice J. Small, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

(d) Lewis complains that trial counsel was ineffective in failing to request jury instructions on the lesser included offenses of criminal attempt or reckless conduct. But trial counsel testified that the presentation of lesser included offenses conflicted with Lewis’s defense of abandonment and that Lewis and his family did not want those offenses raised. And, as noted above, the trial court charged the jury on intent, abandonment, and mere presence at the scene of a crime.

(e) Finally, Lewis complains that his trial counsel was ineffective in failing to request an “appropriate” charge on withdrawal, renunciation, and abandonment, although the trial court did in fact charge on these issues. But Lewis did not raise this issue at the hearing on his motion for new trial, and it will not be considered for the first time on appeal. Guertin v. State, 243 Ga. App. 322, 324, n. 2 (533 SE2d 159) (2000).

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Lewis was a juvenile at the time of the incident but was tried as an adult.

       Both Bradshaw and Taylor testified for the State; they did not plead guilty until after Lewis’s trial.

       While the first golfer was unable to identify his assailant at trial, both Lewis’s own testimony and the testimony of his co-defendants placed Lewis at the water cooler at the time of the incident.


text:
    A01A0710, A01A0711.
    BOARD OF NATURAL RESOURCES v. GEORGIA EMISSION TESTING COMPANY; and vice versa.
    (548 SE2d 141)
   Barnes, Judge.

This appeal addresses the authority of the Georgia Board of Natural Resources (“Board”) to promulgate certain regulations implementing the Georgia Motor Vehicle Emission Inspection & Maintenance Act (“I/M Act”), OCGA § 12-9-40 et seq. Georgia Emission Testing Company (“GETCo”) challenged two regulations, one restricting mobile emission testing, and one assessing administrative fees for each vehicle inspection performed. We reverse the superior court’s decision reversing the administrative law judge (“ALJ”) and holding that the mobile test restrictions are invalid and affirm the superior court’s decision affirming the ALJ and holding that a portion of the assessed fees are invalid.

GETCo petitioned the Office of State Administrative Hearings for a hearing, contending that Board Rule 391-3-20-.09 (2) (c), limiting mobile testing to fleet and dealership vehicles at locations and times listed on a submitted schedule, violates the I/M Act.

GETCo also challenged Board Rule 391-3-20-.21 (3) (a), which assesses an administrative fee for each inspection, a portion of which is paid to an independent contractor for “program management services.” GETCo sought a ruling declaring that the restrictions on mobile testing were unauthorized and unenforceable, the Board’s actions were arbitrary and capricious, the administrative fee rule was void, and all unauthorized administrative fees should be refunded.

The ALJ initially found on November 4, 1998, that the Board’s actions in promulgating both regulations were not “unauthorized, unenforceable, arbitrary or capricious.” GETCo petitioned the Superior Court of Fulton County for review, and the Board moved to dismiss the petition, arguing that GETCo no longer had standing to challenge the regulations because it had sold its assets. GETCo responded that it maintained standing because it sought a refund of fees paid and because, if the mobile test restrictions were lifted, it planned to lease related software to other operators.

The superior court denied the motion to dismiss. It also reversed the Board’s decision approving the mobile test restrictions, holding that the regulations violated the clear language of the I/M Act.

Next, the court reversed and remanded the management fee issue to the ALJ for further factfinding. Construing the language of OCGA § 12-9-46 (a) (11), the court held that “the legislature intended that. . . the fee is to be limited to that amount necessary to perform required and adequate oversight to confirm that tests are being performed in a proper and adequate manner.” The court directed the ALJ to make findings of fact regarding which of the various tasks to which the fee is allocated were necessary for oversight. On remand, the ALJ found that two of the six tasks to which the fee was allocated were not necessary for oversight.

Both the Board and GETCo petitioned the superior court for review of the ALJ’s order on remand. The superior court affirmed the ALJ’s findings of fact and conclusions of law regarding the $5.45 administrative fee, and both parties have cross-appealed to this court.

Case No. A01A0710

1. The Board asserts that the superior court erred in concluding that GETCo had standing to pursue judicial review, because it had sold its assets effective January 1, 1999, and thus was not “aggrieved” by the ALJ’s final decision. GETCo responds that it was “aggrieved” because it retained an economic interest in future emission tests, it sought a refund of a portion of the testing fees it already had paid, and it planned to market certain software if the mobile testing restrictions were lifted.

OCGA § 50-13-19 (a) provides that “[a]ny person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.” “In the context of the Administrative Practice Act, the word ‘aggrieved’ has been interpreted to mean that the person seeking to appeal must show that he has an interest in the agency decision that has been specially and adversely affected thereby.” (Citation omitted.) Ga. Power Co. v. Campaign for a Prosperous Ga., 255 Ga. 253, 257 (2) (336 SE2d 790) (1985). “[0]ne who suffers or will suffer economic injury as the result of an administrative decision may be considered aggrieved for purposes of obtaining judicial review of the decision.” Chattahoochee Valley Home Health Care v. Healthmaster, 191 Ga. App. 42, 43 (1) (a) (381 SE2d 56) (1989).

GETCo has presented evidence that it suffers or will suffer economic injury as a result of the Board’s regulations assessing fees against emission testers and restricting mobile testing. The trial court did not err in denying the Board’s motion to dismiss.

2. Under the Administrative Procedure Act, the administrative agency’s findings are judicially reviewable if they are “[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” OCGA § 50-13-19 (h) (5). Our courts have held that the “clearly erroneous” and “any evidence” standards of review on factual issues are synonymous and that the superior court cannot substitute its judgment for that of the ALJ as to the weight of the evidence on questions of fact. Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991). “[0]n appeal our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency. . . .” Id.

As to questions of law, under OCGA § 50-13-19 (h) (2), the superior court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative decision exceeds the agency’s statutory authority. In such cases, our function is to determine whether the superior court has in its own final ruling committed an error of law. Deweese v. Ga. Real Estate Comm., 136 Ga. App. 154, 155 (1) (220 SE2d 458) (1975).

3. The Board contends that the superior court erred in reversing the ALJ and invalidating the rule restricting mobile testing for vehicles owned by members of the public. The superior court held that the rule exceeded the agency’s statutory authority, set out in OCGA § 12-9-49 (c):

The board shall not in any manner limit the number, location, and types of authorized inspection stations certified to operate in any nonattainment area [(counties that do not meet federal air pollution guidelines)], county, or any portion of a county or area. In no event shall the board enter into any contract or into a series of contracts the effect of which will be the realization of centralized testing.

The Board’s regulation at issue provides as follows:

Mobile test stations — EPD will permit the licensing of mobile test stations for the purpose of testing fleet and car dealer vehicles at locations which are not licensed as fleet stations. Mobile test stations must meet the same requirements as regular test stations with the following exceptions: ... 3) Mobile test stations are not permitted to test vehicles except those owned or operated by the fleet or dealer location where the testing is performed. Mobile test stations are not allowed to set up locations to test vehicles for the general public. However, station owners may obtain a certificate allowing the test system from a regular test station to perform mobile testing of fleet and dealer vehicles during off hours, provided that the regular test station is operated at all times during its posted hours.

Rules and Regs, of Georgia Department of Natural Resources (“DNR”), Environmental Protection Division (“EPD”), Rule 391-3-20-.09 (I).

In his conclusion of law upholding the rule, the ALJ found that the legislature intended to prevent the Board from taking actions that “would result in the evil of 'centralized testing,’ ” or impose geographical or numerical limits on the certificates issued. The ALJ explained his reasoning as follows:

The term “centralized testing” obviously refers to a situation which exists when residents in some geographical sections within the nonattainment area are forced to drive considerable distances to have their vehicles tested because testing stations are clustered in a few central areas and are not distributed widely in every part of the nonattainment area. In enacting OCGA § 12-9-49 (c) the legislature obviously wanted to ensure that the Board did nothing to encourage such centralized testing by placing any geographical limitations or quotas on the approval of applications to conduct emission inspections. The somewhat vague language contained in the first sentence of OCGA § 12-9-49 (c) must be interpreted in accordance with the clear purpose of the statute set forth in the second sentence. Thus it is clear that OCGA § 12-9-49 (c) only prohibits limitations by the Board on the issuance of certificates of authorization which would prohibit applicants from placing as many testing stations of whatever type and at whatever locations within the nonattainment area which they may select. For example, this statute would prohibit the Board from promulgating regulations which would place a numerical quota of six on the issuance of certificates of authorization in the portion of DeKalb County south of Interstate 20 and limit the issuance of certificates of authorization in this portion of DeKalb to regular test stations and to the area around a particular shopping mall. It is clear that the Board by promulgating Rule 391-3-20-.09 (2) (c) imposed none of the geographical limitations prohibited by OCGA § 12-9-49 (c), thus there is no conflict between the regulation and statute as alleged by the Petitioner. There is no limitation in the wording of the regulation on the number of certificates for authorization the Petitioner may obtain, and there also is no limitation on the number or types of emission inspection stations the Petitioner may place in a particular section of the nonattainment area. Requiring the mobile units to adhere to a schedule is not a limitation on the “location” of such units. They are free to travel throughout the nonattainment area. The requirement contained in the regulation that mobile testing units may only test fleet and dealer vehicles is also not a geographical limitation prohibited by OCGA § 12-9-49 (c). In passing this restriction, the Board was not directly restricting mobile testing from taking place in any portion of [the] nonattainment area. This would have been the case if the Board had promulgated a rule, for example, that mobile units may not test fleet and dealer vehicles in south Fulton County. It is true that because mobile units may only test fleet and dealer vehicles [,] they can, in effect, only operate in areas where such fleet and dealer vehicles are located. This geographical limitation is not one directly imposed by the Board but results from decisions made by the Petitioners [’] customers concerning where to locate their businesses.

Because this rule did not impose geographical limits on mobile testers except indirectly by limiting them to their customers’ fleet or dealer locations, the ALJ concluded that the rule did not conflict with the statute.

In reversing that conclusion, the superior court held that “[t]he rules and regulations of [the Board] prohibiting mobile test stations from testing public vehicles and limiting such testing to fleet and car dealer vehicles at fleet and car dealer locations violate the clear language of OCGA § 12-9-49 (c).” This paragraph contains the superior court’s entire analysis of the mobile testing regulation.

“In construing a statute, the cardinal rule is to glean the intent of the legislature ... in the light of the legislative intent as found in the statute as a whole.” (Citations and punctuation omitted.) Alford v. Public Svc. Comm., 262 Ga. 386, 387 (1) (a) (418 SE2d 13) (1992). Additionally, we must give great weight and deference to the interpretation of a statute by an administrative agency that has the duty of administering it. Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993).

The Georgia legislature in OCGA § 12-9-41 embodied findings that the ambient air levels of ozone or carbon monoxide in some counties exceeded the standards set by the federal Clean Air Act, 42 USC § 7401 et seq., as amended. The statute further notes that these excess levels were directly related to motor vehicle emissions and that the state had a duty to provide a plan for reducing the ambient air level of pollutants in order to avoid losing federal funds for sewage treatment plants, transportation projects, and air quality improvement funds. Further, in OCGA § 12-9-42, the legislature declared it to be the public policy of the state to “preserve, protect, and improve air quality” in noncompliant counties, “and to that end to provide a legally enforceable mechanism for the attainment and maintenance of the [National Ambient Air Quality Standards] of such pollutants” by requiring motor vehicles in these counties to be inspected, by inspecting and maintaining emission control equipment, and by inspecting and maintaining on-board diagnostics to ensure compliance with the standards.

It is in light of this preamble that we must consider the statute at issue here. To consider only OCGA § 12-9-49 (c), prohibiting the Board from limiting “the number, location, and types of authorized inspection stations,” without considering the statute’s purpose and framework, would be to examine one tree without looking at the forest. The rest of subsection (c) provides: “In no event shall the board enter into any contract or into a series of contracts the effect of which will be the realization of centralized testing.”

The federal Environmental Protection Agency’s explanation of the federal rules implementing the Clean Air Act defines “centralized testing” as follows:

Two basic types of inspection networks have existed since the inception of I/M programs. A “centralized” network consists of inspection and retest at high-volume, multi-lane, usually highly automated, test-only stations, run by either a government agency or a single contractor within a defined area. A “decentralized” network consists of inspection and retest at privately owned, licensed facilities, such as gas stations and other shops which may also do repair work. I/M program design is usually determined by elected state or local officials who establish the necessary authorizing legislation.

57 FR 31058.

Georgia has chosen to implement a decentralized testing plan, as evidenced by the language of OCGA § 12-9-49 (c). Additionally, OCGA § 12-9-49 (e) (1) instructs the director to “ensure the operation of such official emission inspection stations of a number, at locations, and in a condition satisfactory to the director and in conformance with all standards, requirements, and specifications prescribed for such inspection stations. . . .”

We must view a statute “to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (2) (219 SE2d 115) (1975). In doing so, we will not presume that the legislature intended that any part is without meaning. Id.

Looking at the statute as a whole, we conclude that OCGA § 12-9-49 (c) does not prohibit the Board from issuing rules that prohibit operators from testing the general public using mobile facilities. The superior court erred in reversing the ALJ’s well-reasoned conclusion that Rule 391-3-20-.09 (c) was valid, and we reverse that portion of the superior court’s order concerning the Board’s mobile testing rule.

4. Both parties appeal the superior court’s order affirming the ALJ’s findings regarding the administrative fee assessed for each inspection made. The Board contends that all of the fee was proper, and GETCo contends that a larger portion of the fee was improper.

OCGA § 12-9-46 (a) (11) authorizes the Board “[t]o prescribe by rule or regulation an administrative fee to be collected by the director from each emission inspection station in a manner determined by the board by rule or regulation to cover the cost of required and adequate oversight to confirm that inspections are being done in a proper and adequate manner. . . .”

The Board issued a request for proposal and granted the management contract to MCI/WorldCom (“MCI”). The Board also promulgated Rule 391-3-20-.21 (3) (a), which provides:

Each test station shall remit to the Department a program administration fee of $7.40 for each inspection or reinspection for which an emission inspection fee is paid. The Department shall remit five dollars and forty-five cents ($5.45) of each paid fee to the Management Contractor for providing program management services associated with implementation of the program. The Department shall remit one dollar ($1.00) of each paid fee to the appropriate county governing authority for each responsible motor vehicle that is registered in that county. Ninety-five cents ($0.95) of each paid fee shall be remitted to the Department to cover the costs of providing oversight and other services needed for the implementation of the program.

At issue in this appeal is the $5.45 fee paid to MCI, allocated as follows: Task 1 — $1.58 to design, build, operate, and maintain a data system and network; Task 2 — $0.78 to conduct audits and quality assurance and control of emission inspection stations; Task 3 — $1.43 to establish and conduct a public information program; Task 4 — $0.79 for inspector training and station and inspector licensing; Task 5 — $0.84 to cover the cost of issuing waivers, exemptions, and extensions and overseeing the referee program; and Task 6 — $0.03 to close out the previously existing inspection and maintenance program.

The ALJ found that tasks three and six, involving the public information campaign and closing out the old system, were not related to oversight or management. Therefore, the ALJ concluded, only that portion of the $5.45 allocated to the remaining four tasks, or $3.99, was “necessary to cover the cost of required and adequate oversight to confirm that inspections are being done in a proper and adequate manner.”

The Board argues that tasks three and six constitute “required and adequate oversight” within the statutory authority of OCGA § 12-9-46 (a) (11).

(a) As to task three, the Board argues that implementation of an adequate public information program “is part of required and adequate oversight, because the driving public must know how and when to get inspections and persons and businesses must be informed of the requirements to become inspection stations so that a sufficient number of stations are certified to perform inspections.” GETCo responds that evidence in the record supports the ALJ’s conclusion that task three was not necessary for compliance oversight. After reviewing the evidence, the ALJ found that “[t]he public information campaign program is not intended to be, nor is it used as, a compliance oversight tool. This task involves not verification that emission inspections are being done properly, but mainly is an advertising, public relations and education campaign.”

We will affirm the superior court’s affirmation of the ALJ’s factual findings if the administrative record contains any evidence to support them. Emory Univ. v. Levitas, supra, 260 Ga. at 898. Marlin Gottschalk, program manager of the Mobile & Area Sources Program of the Air Protection Branch, EPD, DNR, explained that the public information program was designed to raise consumer awareness about the program, provide information to consumers and businesses, and gather complaints about emission testers that may lead to audits, among other things. We conclude that the record contains evidence to support the ALJ’s factual finding that task three is not necessary to confirm that inspections are being done properly and affirm the superior court’s order affirming that finding.

(b) The Board argues that the superior court erred in affirming the ALJ’s finding of fact that task six, closing out the old inspection system, was not necessary to cover the cost of required oversight.

Program manager Gottschalk explained that MCI managed the previous inspection program from June 1996 through September 1996, then closed out that program to make way for the current one. Three cents of the $5.45 was allocated over the life of MCI’s contract to cover this expense.

The ALJ found that “[t]he intent of task six is the transition from the old to the new program and is not directly related to oversight activities to confirm that testing under the new program is being done properly.” We find that the evidence supports the ALJ’s finding and affirm the superior court’s order in that regard.

Case No. A01A0711

(c) GETCo argues in Case No. A01A0711 that the superior court erred in affirming the ALJ’s finding that task one, $1.58 to design, build, operate, and maintain a data system and network, was necessary for oversight and within the Board’s statutory authority.

Based on evidence from program manager Gottschalk and a quality control manager with MCI’s subcontractor, the ALJ found that “[t]he data system and network are the central nervous system of the program, providing for the transfer of data between vehicle emission inspection test systems and EPD’s central data base, maintained by MCI.” The ALJ went on to outline the various ways the data system and network allowed the program to operate and detect “potentially improper or fraudulent vehicle testing.”

We conclude that the record contains evidence to support the ALJ’s factual finding that task one is necessary to confirm that inspections are being done properly and affirm the superior court’s order affirming that finding.

(d) Finally, GETCo argues that the superior court erred in affirming the ALJ’s finding that task five, $0.84 to cover the cost of issuing waivers, exemptions, and extensions and overseeing the referee program, was necessary for oversight and within the Board’s statutory authority.

Citing two affidavits of record, the ALJ found that

[t]he waivers, exemptions, and extensions component of this task consists of procedures that provide relief from regular program requirements for qualified vehicle owners. These are verification activities because MCI is corroborating through the use of objective data that the proper waivers, exemptions and extensions are being issued to those entitled to them. This task is necessary to confirm that inspections are being done in a proper and adequate manner because without these activities it would be impossible to determine whether or not or when a particular vehicle is subject to regular testing procedures or qualifies under the I/M Rules for a waiver, extension or exemption. In addition, the other component of this task, the performance of referee tests upon receipt of a complaint from the public to verify the accuracy or validity of a particular emission inspection, is clearly necessary to confirm that the inspections are being done in a proper and adequate manner.

We conclude that evidence supports the ALJ’s finding and affirm the superior court’s order affirming the ALJ’s finding that task five was necessary.

Judgment affirmed in Case No. A01A0711. Judgment affirmed in part and reversed in part in Case No. A01A0710.

Smith, P. J, and Phipps, J., concur.

Decided May 2, 2001

Reconsideration denied June 4, 2001

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Isaac Byrd, Senior Assistant Attorney General, Diane L. Deshazo, Timothy J. Ritzka, Assistant Attorneys General, for appellant.

Long, Aldridge & Norman, James D. Dantzler, Jr., John P. Hutchins, Jill C. Kuhn, for appellee.

       OCGA § 12-9-53 was amended effective April 23, 1998, to provide that review of a director’s decision would proceed under the Administrative Procedure Act. OCGA § 50-13-10 provides that a challenge to the validity of a rule shall be brought as a declaratory judgment action in superior court. Because this action was instituted before OCGA § 12-9-53 was amended, GETCo properly sought a hearing before the Office of State Administrative Hearings.

       The inspection and maintenance program involves a great deal of data that flows from the individual test sites to a centralized database, where it is used for record-keeping, comparisons, and audits, among other things.