text:
    A94A2468.
    OUZTS v. THE STATE.
    (453 SE2d 801)
   Ruffin, Judge.

Brian Ouzts was convicted by a jury of sexual battery and aggravated sexual battery against his 14-year-old stepdaughter. He appeals from the judgment of conviction raising as his sole enumeration of error the sufficiency of the evidence.

The evidence adduced at trial when viewed in a light most favorable to the verdict shows that one evening, while the victim’s mother was out of town, and the victim was sleeping on the living room couch, she was awakened when she felt someone touching her breast underneath her brassiere. The victim testified that although she recognized the person as Ouzts, she did nothing to let him know she was awake because she was afraid. Ouzts then opened the victim’s pants, rubbed her genital area and placed his finger in her vagina. After touching the victim’s breasts about four times and putting his hands in her pants three times, Ouzts zipped her pants, pulled her shirt together and went back to his bedroom. Although Ouzts denied the allegations at trial, on appeal this court “ ‘does not weigh the evidence or determine credibility. (Cit.)’ ” Key v. State, 213 Ga. App. 556, 557 (445 SE2d 349) (1994).

Decided February 1, 1995.

Ben Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, for appellee.

“A person commits the offense of sexual battery when he intentionally makes physical contact with the [genital area and the breasts of a female] without the consent of that person.” OCGA § 16-6-22.1 (a) and (b). “A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b). In this case the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A2543.
    BOLAR v. THE STATE.
    (453 SE2d 790)
   Ruffin, Judge.

Earl A. Bolar appeals from his conviction of burglary of a convenience store.

The evidence construed in favor of the verdict shows the following. At approximately 12:45 a.m., a burglar alarm went off at an Amoco convenience store and a call went out over the police radio that a possible burglary was in progress. At the same time, officers patrolling the area saw Bolar and another individual, Charles A. Shine, running down a street two blocks from the store, each carrying a twelve-pack of beer. When the officers identified themselves and asked Bolar and Shine to stop, they dropped the beer and ran away from the officers. After a short pursuit, the officers caught Bolar and Shine and brought them back to the patrol car. When the officers retrieved the beer, they noticed both of the twelve-packs had a price sticker from the Amoco convenience store. Amoco’s area supervisor identified the beer as that taken from her store. The officer who chased Bolar identified him and Shine on a surveillance video taken during the burglary of the convenience store.

1. Bolar contends the trial court erred in allowing Shine to testify as a witness for the State because Shine’s name was not included on the list of witnesses prepared by the State pursuant to OCGA § 17-7-110. “The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. When, as in this case, a witness’ name is contained in the indictment, a defendant cannot validly contend that he had been surprised or unable to interview the witness in question through lack of knowledge of such witness. Therefore the trial court committed no harmful error.” (Citations and punctuation omitted.) Graham v. State, 171 Ga. App. 242, 254 (13) (319 SE2d 484) (1984). We note further that prior to trial, counsel for Bolar stated to the court that he and the State’s attorney had a conversation during the past week “about what may be within the knowledge of Mr. Shine.” “Such information reinforces the finding of lack of surprise on the part of [Bolar] at [Shine’s] appearance at trial on behalf of the State.” Id.

2. Bolar also contends the trial court erred in allowing the State’s attorney to examine Shine after he invoked his Fifth Amendment right against self-incrimination.

Upon taking the witness stand, the following exchange took place between the State’s attorney and Shine: “Q. Please state your name, sir. A. Your Honor, I want to know can I ... I want to rule as [sic] Fifth Amendment. THE COURT. You’ve been asked what your name is. A. Charles Shine. Q. Directing your attention to January 13th of this year, Wednesday morning, early in the morning, did you have occasion to go into the Coliseum Amoco Gas Station on Walton Way? A. I’m going to rule my answer under the Fifth Amendment.” At this point the State’s attorney ceased his questioning, stated he had no further questions and Bolar’s attorney stated he had no cross-examination. Bolar argues that by allowing the State’s attorney to ask Shine the question regarding his presence at the convenience store, he inferred that Shine had broken into the store but was now refusing to identify his companion.

Bolar relies on Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975), for the proposition that the trial court erred by not conducting a hearing to determine whether the testimony the State sought to elicit would incriminate Shine. However, “in Lingerfelt and its progeny the error harmful to the defendant occurred when the prosecutor continued to ask leading questions he knew the witness would not answer but that implicated the defendant in [the] wrongdoing.” (Emphasis supplied.) Parrott v. State, 206 Ga. App. 829, 832 (2) (427 SE2d 276) (1992). In the instant case, once it became clear that Shine was invoking his Fifth Amendment right, the State’s attorney ceased his questioning. Had the State desired to continue with its examination of Shine after he asserted his Fifth Amendment right, the proper procedure would have been to “conduct a hearing outside the presence of the jury to determine whether the testimony the State [sought] to elicit potentially could incriminate the witness. [Cit.]” Id. Since in this case the State ceased its questioning and stated it had no further questions, a hearing in this case would have served no purpose. Under these circumstances, we find no error.

Decided February 1, 1995.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. At trial, the State introduced the surveillance video into evidence and two police officers identified Bolar as one of the individuals in the video. In two separate enumerations of error, Bolar contends the trial court erred not only in admitting the videotape because a proper foundation had not been laid, but also in allowing the testimony of the officers identifying Bolar in the video. Even assuming arguendo that it was error to admit the video and the identification testimony, given the other admissible evidence of Bolar’s commission of the burglary, including his proximity to the store at the time the alarm went off, his flight from the officers and his possession of the stolen beer, we find it highly probable that the error did not contribute to the jury’s verdict. Johnson v. State, 238 Ga. 59, 61-62 (230 SE2d 869) (1976); Blige v. State, 264 Ga. 166, 168 (3) (441 SE2d 752) (1994).

4. Finally, Bolar contends the evidence adduced at trial was insufficient to sustain the verdict. We disagree. “Unexplained recent possession of stolen goods permits a jury to infer that the accused committed the theft. Moreover, evidence of flight points to the question of guilt in a circumstantial manner. The evidence, although circumstantial, was sufficient to enable a rational trier of fact to find [Bolar] guilty beyond a reasonable doubt of the offense of burglary.” (Citations and punctuation omitted.) Gearin v. State, 208 Ga. App. 878, 879 (1) (432 SE2d 818) (1993); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A94A2619.
    THE STATE v. BRODIE.
    (453 SE2d 786)
   Andrews, Judge.

The State appeals from the trial court’s grant, after a bench trial, of Brodie’s motion for new trial based on his pre-trial motion in limine to exclude the Intoximeter 3000 results. Brodie was convicted of improper lane change and driving with an illegal blood-alcohol level, OCGA § 40-6-391 (a) (4). He was acquitted of being under the influence to the extent it was less safe to drive, OCGA § 40-6-391 (a) (1).

The motions were premised on Brodie’s contention that he was deprived of his right to an alternate test. Viewed in favor of the factfinder, the evidence was that, on September 17, 1993, after a 12-inning Braves game, Brodie was returning to his home in Marietta shortly after midnight. Officer Willard was on regular patrol and fell into traffic behind Brodie. He saw Brodie’s car cross the centerline once and assumed it was for the purpose of passing the car in front of Brodie. Brodie’s car then crossed the line again and the officer activated his blue lights. When the officer approached the car, Brodie had his window down and provided his license and insurance card. The officer said he noticed the odor of alcohol and asked Brodie if he had been drinking. Brodie responded that he had been to the game and had three or four beers over a three to four-hour period. Brodie also asked what he had done illegal.

The officer asked Brodie to get out of his car and take the roadside tests. Brodie successfully repeated the alphabet, hit his nose two out of four times on the finger touch, and walked a straight line on the nine-step heel/toe test. The officer was of the opinion that Brodie failed the latter test because he took ten steps rather than the instructed nine.

The officer administered an alcosensor test, which indicated the presence of alcohol. Brodie was arrested and given the informed consent warning. He was then taken to the station where he was administered the intoximeter test. As was his custom, Brodie did not have his wallet with him, but kept it in his vehicle because it was so large. The officer patted him down at the car, but did not make any inquiry about the wallet, which was found when the car was inventoried. The wallet contained $40.

Brodie had to blow into the intoximeter four times before it registered a reading. When told it registered .14, Brodie stated that he wanted his own test. Although he had only $7 on him, Brodie had a Kennestone Hospital patient card and was insured. He was under the impression that he would be allowed to charge the test or put it on his insurance.

The officer suggested Kennestone because it was close to the station and was where officers took those who made a request for a separate test. Upon arrival at Kennestone, he was told by hospital personnel that he could not have the test if he could not prepay with cash or credit card. When he informed the hospital representative, in the presence of the officer, that he did not have his wallet because it was in his car, the officer said he had to take him to jail. The officer was aware that the test had to be paid for before blood would be drawn. The officer did call Brodie’s wife at his request to tell her where he was, but the officer did not mention his need for funds to the wife.

1. The State contends, in its first and second enumerations, that it was error for the trial court to reconsider its initial ruling made on the motion in limine, which had denied the motion.

(a) The ground contained in the first enumeration was not raised in the court below and will not be considered here for the first time. Peters v. State, 206 Ga. App. 143, 145 (2) (424 SE2d 372) (1992).

(b) The second enumeration is that the court erred in considering evidence at trial on an issue the court had already considered and decided. This enumeration is without merit.

“Reconsideration of a ruling on a motion to suppress [or in limine] is permissible. Chastain v. State, 158 Ga. App. 654[, 655] (281 SE2d 627) (1981).” Martin v. State, 201 Ga. App. 716, 717 (1a) (411 SE2d 910) (1991).

(c) “In reviewing a trial court’s decision on a motion to suppress [or in limine], our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial, we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Citations omitted; emphasis supplied.) Gray v. State, 207 Ga. App. 648, 650 (2) (428 SE2d 663) (1993); White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993).

2. Finally, the State contends the court erred in granting the motion because the officer had made “reasonable efforts” to accommodate Brodie under State v. Buffington, 189 Ga. App. 800 (377 SE2d 548) (1989).

This case is factually similar to State v. Button, 206 Ga. App. 673 (426 SE2d 194) (1992). There, the officer took Button to Kennestone where his blood was actually drawn. However, there was evidence that the hospital did not, “as a matter of hospital policy,” perform blood-alcohol tests. The officer did not take appellee anywhere else to have a test performed. The trial court’s decision that this was not reasonable under all the circumstances was affirmed. Id.

Decided February 1, 1995.

Ben F. Smith, Jr., Solicitor, Barry E. Morgan, Mark A. Basurto, Assistant Solicitors, for appellant.

Larry W. Yarbrough, for appellee.

Here, Brodie was unable to even have his blood drawn, due to lack of funds. As held in Love v. State, 195 Ga. App. 392, 393 (393 SE2d 520) (1990), taking an accused to a hospital without warning him of that hospital’s advance payment policy and allowing him to make arrangements to secure the necessary funds can be found to be lack of a reasonable effort to accommodate. Id.

Therefore, the test results were properly excluded.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       Such a motion is the appropriate method for challenging compliance with implied consent warnings. State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982).

       On the other two tries, his finger touched immediately under his nose.


author: McMurray, Presiding Judge.

text:
    A94A2706.
    KNIGHT v. THE STATE.
    (453 SE2d 798)
   McMurray, Presiding Judge.

Defendant was charged via indictment with a single count of rape. The evidence adduced at his jury trial showed that the victim, 22 years of age, was “mentally retarded to a certain degree. ...” Although defendant testified that their relations were consensual, the victim testified that defendant “took [her] round side of the house, he pulled down [her] trousers, [and] he got on top of [her]. . . .” She “did [not] want him to do that . . . [but she was] scared of him[.]” Kenny Spikes described the victim as “very disturbed . . .” when she returned to the house.

The jury returned a guilty verdict. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. In his second enumeration, defendant contends the trial court erred in finding the victim competent to testify. He argues that the trial court “denied the jury the right to hear evidence concerning the victim’s competency to testify.”

Outside the presence of the jury, defendant interposed the following objection: [DEFENSE COUNSEL]: “I am going to object at the outset to her competency as a witness and ask the Court to examine her and make a judicial determination if she is competent to come and testify before the jury.” The trial court examined the victim and determined that she understood the difference between telling the truth and telling a lie, and so was competent to testify. Beyond noting “for the record[:] I will state my objection,” defendant raised no further objection to this procedure and sought no additional ruling from the trial court.

Pursuant to OCGA § 24-9-7 (a), the trial court has broad discretion to determine the competency of a witness as a preliminary matter to the admissibility of the testimony of that witness, and the trial court’s determination will not be disturbed on appeal absent an abuse of that discretion. Howard v. State, 212 Ga. App. 298, 300 (3), 301 (441 SE2d 759). In the case sub judice, defendant argues for the first time on appeal that the jury “was entitled to hear the testimony concerning the competency of a mentally retarded witness/victim.” Defendant urged no such position below, and, in fact, presented his objection to the victim’s competency as “a matter that I need to take up outside the presence of the jury.” Defendant “failed to ‘raise [this ground for] objection (below) and this court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised (and determined) in the trial court. (Cits.)’ Lewis v. State, 205 Ga. App. 29, 30 (1) (421 SE2d 339).” Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275). Moreover, defendant’s objection asked for procedural relief and that relief was granted by the court’s examination of the witness before she testified. If, after the trial court’s preliminary determination that the victim was competent to testify, the defendant wished to show the jury her competence (and thus her credibility) was suspect, nothing in the trial court’s ruling precluded that challenge before the jury. See Goodson v. State, 162 Ga. 178, 179 (3) (132 SE 899). See also State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256). “ ‘Counsel cannot sit by and permit some matter they could correct by timely action and later claim error.’ Harris v. State, 237 Ga. 718, 726 (6) (230 SE2d 1) (1976).” Fitzgerald v. State, 193 Ga. App. 76 (4), 77 (386 SE2d 914). We find no abuse of discretion in the trial court’s ruling that the victim was competent to testify against defendant.

2. In his first enumeration, defendant challenges the sufficiency of the evidence to convict.

“On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence. The jury was authorized to reject [defendant’s] testimony and accept the victim’s testimony. Further, we have reviewed the transcript and find sufficient evidence to authorize the jury’s findings that [defendant] was guilty beyond a reasonable doubt, of the offense of (rape) [as alleged in the indictment].” (Citations and punctuation omitted.) Willey v. State, 209 Ga. App. 398, 399 (1) (433 SE2d 674).

3. In his third enumeration, defendant contends the trial court erred in giving the following instruction: “[I]f you believe beyond a reasonable doubt. . . that the [female] named in the indictment. . . was not mentally capable of expressing any intelligent consent or dissent to the act of intercourse or of exercising any judgment on the matter then you would be authorized to find the defendant guilty of rape.” He argues the charge is harmful error “since the jury had been denied the right to observe any witness qualification testimony.”

Decided February 1, 1995.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

The charge objected to is a correct statement of the law. Payne v. State, 207 Ga. App. 312, 316 (4) (428 SE2d 103). We have already determined in Division 1, supra, that the trial court’s ruling on defendant’s objection to the victim’s competence did not preclude defendant from subsequently offering an additional challenge to her competence (and credibility) before the jury. Accordingly, the failure of the jury to hear such evidence is not attributable to the trial court’s ruling on defendant’s request for a preliminary competence hearing but is a direct consequence of defendant’s conscious decision not to pursue this issue. “Thus, error, if any, was self-induced, and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).” Fitzgerald v. State, 193 Ga. App. 76, 77 (7), 78, supra. This enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A2739.
    THORNTON v. THE STATE.
    (453 SE2d 802)
   Ruffin, Judge.

Peter Thornton was convicted by a jury and sentenced to ten years’ imprisonment for kidnapping, misdemeanor theft by taking, and misdemeanor escape. The record shows that Thornton was advised by the trial court of his right to pursue an appeal of his conviction and/or sentence within thirty days, including his right to have the sentence reviewed by a three-judge panel. Thornton’s trial attorney timely requested review of Thornton’s sentence, and timely filed a motion for new trial. The record also contains evidence that while the motion was pending, the attorney advised Thornton in writing that it was unlikely a direct appeal would be successful and that a handwritten statement signed by Thornton stating “It is OK with me to abandon my appeal” appears on counsel’s letter.

Thornton’s motion for new trial was denied on March 27, 1992, and no direct appeal was taken. On June 17, 1994, Thornton filed a pro se motion for an out-of-time appeal and a motion for appointment of new appellate counsel. Following a hearing, the court denied Thornton’s motion. Thornton appeals the court’s order, denominated as an order denying a motion for new trial. He contends the trial court erred by denying his motion for an out-of-time appeal, arguing that he did not consent to the forfeiture of his right to a direct appeal of his conviction. Specifically, Thornton denies having seen his attorney’s letter and contends his signature is a forgery.

Decided February 1, 1995.

Peter Thornton, pro se.

H. Lamar Cole, District Attorney, Charles M. Stines, A. Scott Gunn, Assistant District Attorneys, for appellee.

“ ‘Our courts have . . . permitted out of time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. [Cits.] An out of time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. [Cits.]’ Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131).” Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994). “A trial court’s finding that counsel was effective must be upheld unless that finding is clearly erroneous. [Cit.]” Brady v. State, 206 Ga. App. 497 (4) (426 SE2d 15) (1992).

The record shows that at sentencing, the trial court informed Thornton of his right to a direct appeal of his conviction. Following a hearing on Thornton’s motion for an out-of-time appeal, the trial court found the evidence that Thornton knowingly and voluntarily waived his right to appeal his conviction to be more credible than Thornton’s denial. Accordingly, the court found that Thornton was effectively represented at trial, was advised of his right to appeal by the court and by counsel, and that Thornton voluntarily waived in writing his right to appeal after having been advised by counsel. Thornton has pointed to no evidence of record which supports his contention of error by the trial court. As Thornton has not met his burden to affirmatively show error by the record, the trial court’s ruling is assumed to be correct. Hayes v. State, 211 Ga. App. 801 (1) (440 SE2d 539) (1994). Accordingly, we affirm the trial court’s denial of Thornton’s motion for an out-of-time appeal.

Judgment affirmed.

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


text:
    A94A2745.
    NIGRI v. LOTZ.
    (453 SE2d 780)
   Andrews, Judge.

Nigri, who held a judgment debt against Lotz in the amount of $469,014.13, filed a petition pursuant to OCGA § 14-9A-52 seeking to charge Lotz’s partnership interests in two limited partnerships with payment of the unsatisfied amount of the judgment and seeking to obtain an order transferring Lotz’s partnership interests to him as a partial satisfaction of the debt. The trial court entered an order pursuant to OCGA § 14-9A-52 (a) charging Lotz’s partnership interests, but the court refused to transfer Lotz’s partnership interests to Nigri. Nigri appeals, claiming the trial court erred: (1) by holding that Lotz’s interests in the partnerships were isolated from his claim as a judgment creditor, and (2) by refusing to transfer Lotz’s partnership interests to him in satisfaction of the judgment debt.

1. As to the first enumeration of error, the trial court did not hold that Lotz’s interests in the partnerships were isolated from Nigri’s claim as a judgment creditor of Lotz. In fact, the trial court entered an order pursuant to OCGA § 14-9A-52 (a) charging Lotz’s partnership interests with payment of the unsatisfied amount of the judgment debt. The charging order provided that, Nigri be paid “distributions of money or property attributable to such interests ... as such distributions are made, up to the unsatisfied amount of the [judgment debt] . . . subject to and upon satisfaction of the rights, including secured creditors, having priority over [the charging order].” Accordingly, the charging order enforced Nigri’s statutory right under OCGA § 14-9A-52 (a) to collect the judgment debt against Lotz’s financial interests in the limited partnerships by diverting payments which would otherwise have been made to Lotz.

2. In his second enumeration of error, Nigri contends that he was entitled to an order transferring Lotz’s partnership interests to him.

The charging order remedy invoked by Nigri is set forth in section 14-9A-52 of the Uniform Limited Partnership Act (ULPA) (OCGA § 14-9A-1 et seq.), which provides in part that: “(a) On due application to a court of competent jurisdiction by any judgment creditor of a limited partner, the court may charge the interest of the indebted limited partner with payment of the unsatisfied amount of the judgment debt and may appoint a receiver and make all other orders, directions, and inquiries which the circumstances of the case may require.”

“[T]he property interest held by a limited partner is intangible personal property. A limited partner owns an interest in the legal entity but holds no title to the assets of the partnership.” Maxco, Inc. v. Volpe, 247 Ga. 212, 214 (274 SE2d 561) (1981), corrected at 251 Ga. 892; OCGA § 14-9A-49. “A limited partner shall have the right to receive a share of the profits or other compensation by way of income and to the return of his contribution as provided in Code Sections 14-9A-46 and 14-9A-47.” OCGA § 14-9A-42 (b). The charging order remedy entitles the creditor to receive the profits and surplus of the limited partnership, which the limited partner would otherwise have been entitled to receive, up to the unsatisfied amount of the judgment debt, but gives no direct remedy against specific limited partnership property.

Under the charging order entered by the trial court, Lotz remained a limited partner in the partnerships in all respects except his right to receive the distributions diverted to Nigri. Although a creditor who obtains a charging order is in a position similar to that of an assignee of the limited partner’s interest, in the sense that both have a right to receive the profits and surplus to which the limited partner would otherwise be entitled, neither has the limited partner’s information or inspection rights. See OCGA § 14-9A-50. A charging order under OCGA § 14-9A-52 is not an assignment of the limited partner’s interest to the creditor, nor does it confer upon the creditor the status of a substituted limited partner. See A. Bromberg & L. Ribstein On Partnership, Vol. I, § 3.05 (d) (3), p. 3:72; Vol. IV, §§ 13.06 (d) (2), pp. 13:33-34; 13.07 (d) (2), p. 13:51; OCGA § 14-9A-50.

In this case, in addition to entry of the charging order, Nigri sought an order from the trial court transferring Lotz’s interests in the limited partnerships to him in partial satisfaction of the debt. Under OCGA § 14-9A-52 (a), once a charging order has been entered, the trial court is authorized in aid of the order to “appoint a receiver and make all other orders, directions, and inquiries which the circumstances of the case may require.” Under this broad language, we conclude that, as an aid to enforcement of a charging order under OCGA § 14-9A-52 (a), the trial court is authorized to order that a limited partner’s charged interest be foreclosed by judicial sale at which the partnership interest may be purchased by the judgment creditor or a third party. Courts from other states and other authorities have generally agreed that the charging order provisions authorize the sale of a charged partnership interest. See Tupper v. Kroc, 494 P2d 1275 (Nev. 1972); Fed. Deposit Ins. Corp. v. Birchwood Builders, 573 A2d 182, 185 (N.J. Super. 1990); Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 644 A2d 363 (Conn. App. 1994); Bromberg & Ribstein, supra at Vol. IV, § 13.07 (d) (2), pp. 13:49-51; Vol. I, § 3.05 (d) (2), pp. 3:72-74; Gose, The Charging Order Under The Uniform Partnership Act, 28 Wash. L. Rev. 1, 10-18 (1953); Axelrod, The Charging Order-Rights of a Partner’s Creditor, 36 Ark. L. Rev. 81, 90-95 (1982).

Accordingly, the trial court has discretion to determine whether or not a judicial sale of the partnership interest is an appropriate means in aid of the charging order. In general, a charging order is considered the primary method of satisfying the creditor’s judgment, but the further step of ordering a sale may be considered appropriate where it is apparent that distributions under the charging order will not pay the judgment debt within a reasonable period of time. See Gose, supra at 10; see also Tupper, supra; Fed. Deposit Ins. Corp., supra at 185; Madison Hills Ltd. Partnership II, supra.

A transfer of the charged interest pursuant to a foreclosure by sale, though not technically a court-ordered assignment, is the equivalent of an assignment of the limited partner’s interests. The status of a purchaser of the charged interest is similar to that of an assignee in that the purchaser, like an assignee, has the right to receive the distributions that the debtor partner would have been entitled to receive, but the foreclosure sale does not place the purchaser in the position of a limited partner. Accordingly, if the creditor under the charging order is the purchaser, the creditor does not by virtue of the purchase become a substituted limited partner, and is only entitled to receive the distributions to which the debtor limited partner would have been entitled. See Bromberg & Ribstein, supra at Vol. IV, § 13.07 (d) (2), p. 13:51; § 13.06 (d) (2), p. 13:33-34; Axelrod, supra at 93-94; Tupper, supra at 1280; OCGA § 14-9A-50. “The principal change in the creditor’s current status [under the charging order] as a result of [purchasing the charged interest at] the foreclosure and sale is that the creditor now owns the partner’s entire financial interest in the partnership, including all amounts ultimately due the partner on dissolution after settlement of liabilities.” Bromberg & Ribstein, supra at Vol. I, § 3.05 (d) (3), p. 3:74.

Decided February 1, 1995.

Dock H. Davis, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Charles J. Cole, for appellee.

Although a trial court has broad discretion as to whether or not to order a foreclosure and judicial sale of charged interests under OCGA § 14-9A-52, this was not the remedy sought by Nigri. Nigri did not petition the trial court for foreclosure and sale of the charged interests, but requested that the trial court affix a value to the charged interests at the hearing on the charging order and immediately transfer the interests to him in partial satisfaction of the judgment debt. Although the trial court erroneously concluded that any such transfer would have had the added effect of substituting Nigri as a limited partner in the place of Lotz, there was no error in the trial court’s refusal to transfer the charged interests pursuant to Nigri’s petition.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

       We do not address issues of priority between the charging order and interests of other creditors since Nigri did not raise or argue these issues on appeal.

       The charging order remedy is not exclusive, and the financial interests of the limited partner may also be reached by the judgment creditor by process of garnishment. See OCGA §§ 14-8-28 (e); 14-8-6 (b).

       Georgia has adopted both the Uniform Partnership Act (UPA) (OCGA § 14-8-1 et seq.) and the ULPA (OCGA § 14-9A-1 et seq.). Although the limited partnership in this case is governed by the provisions of the ULPA, it is also governed by the provisions of the UPA, “except insofar as the statutes relating to such [limited] partnerships are inconsistent with [the UPA].” OCGA § 14-8-6 (b). The UPA contains a charging order remedy at OCGA § 14-8-28 similar to the charging order remedy contained in the ULPA at OCGA § 14-9A-52. However, Georgia has altered its version of the UPA charging order remedy to provide that the charged interest “is not liable to be seized and sold by the judgment creditor under execution.” OCGA § 14-8-28 (b). The charging order remedy under the ULPA does not contain a similar prohibition against sale of the charged interest, and the ULPA does not specifically provide for foreclosure and sale of the charged interest. Nevertheless, we conclude that the UPA prohibition against sale of a charged interest is inconsistent with the charging remedy provisions of the ULPA, and should not be applied to a limited partnership to prohibit foreclosure and sale of the charged interest of a limited partner under the ULPA. The apparent purpose of prohibiting the sale and transfer of a partner’s charged interest under the UPA was the fear that it could cause disruption because the creditor-assignee may be able to seek judicial dissolution of the partnership. Ribstein, An Analysis of Georgia’s New Partnership Law, 36 Mercer L. Rev. 443, 490 (1985). “However, this reasoning does not apply to foreclosure [of] limited partnership interests since the assignee of a limited partnership interest cannot seek judicial dissolution.” Bromberg & Ribstein, supra at Vol. IV, § 13.07 (d) (1), n. 15.


author: Birdsong, Presiding Judge.

text:
    A94A2747.
    CHAMBERLAIN v. THE STATE.
    (453 SE2d 793)
   Birdsong, Presiding Judge.

Kendrick Chamberlain appeals his convictions of criminal damage to property in the first degree by damaging the natural gas line in the residence of Dorothy Mann (OCGA § 16-7-22 (a) (1)), simple battery by striking Dorothy Mann (OCGA § 16-5-23 (a) (2)), and criminal trespass by unlawfully entering the residence of Dorothy Mann (OCGA § 16-7-21 (b) (1)). Chamberlain contends the trial court erred in charging the jury on reasonable doubt, and that the evidence is insufficient to support his convictions of criminal damage to property in the first degree and criminal trespass because there was no evidence to show that he damaged the gas line or entered the residence without authority. Held:

1. Although Chamberlain contends the evidence was insufficient to sustain his convictions, we conclude that the jury rationally could have found from the circumstantial evidence that every reasonable hypothesis was excluded except that Chamberlain damaged the gas line and entered the victim’s home without authority, and the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Chamberlain was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Chamberlain contends the trial court erred by charging the jury that: “There is rio burden of proof upon the defendant whatever. And the burden never shifts to the defendant to prove his innocence. However, the State is not required to prove the guilt of the accused beyond all reasonable doubt or to a mathematical certainty.” (Emphasis supplied.) Of course, this charge is erroneous; the correct charge provides: “However, the state is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.” Suggested Pattern Jury Instructions, Criminal Cases, Vol. II, 2 (D).

Although we are satisfied that the error appears to be the result of a slip of the tongue (see Rodriguez v. State, 211 Ga. App. 256, 258 (439 SE2d 510)), we must address whether a fair risk exists that the mistake misled or confused the jury (see Gober v. State, 247 Ga. 652, 655 (278 SE2d 386); Siegel v. State, 206 Ga. 252, 253-254 (56 SE2d 512)), particularly as all charging errors are presumed to be harmful and prejudicial unless the record shows the error to be harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547). In addressing this issue, we have considered the charge as a whole (Ward v. State, 238 Ga. 367, 370 (233 SE2d 175)), and in so doing we note that the transcript shows that the trial court correctly charged the jury on the definition of reasonable doubt and correctly charged on numerous occasions that Chamberlain could not be convicted unless the State met its burden of proving his guilt beyond a reasonable doubt. We also note, however, that these other parts of the charge are merely inconsistent with this erroneous charge and do not explain or reconcile this erroneous charge with the full charge. See Powell v. State, 187 Ga. App. 878, 880 (372 SE2d 234). Further, this part of the charge has a different purpose from the parts of the charge on reasonable doubt that were correctly given; when correctly given, it places a limit on the prosecution’s burden, i.e., not beyond all doubt or to a mathematical certainty. Consequently, while the other parts of the charge correctly instructed the jury that the prosecution was required to prove Chamberlain’s guilt beyond a reasonable doubt, this erroneous charge allowed the jury to convict Chamberlain while still retaining some reasonable doubt about his guilt. As we have no way of knowing whether the jury applied the erroneous charge in reaching their verdict (see Powell v. State, supra), we cannot conclude beyond a reasonable doubt that the error did not contribute to the verdict. Therefore, Chamberlain’s convictions must be reversed.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.

Decided February 1, 1995.

Paul McGee, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Penny A. Penn, Assistant District Attorneys, for appellee.


author: Blackburn, Judge.

text:
    A95A0635.
    In the Interest of E. N. H., a child.
    (453 SE2d 778)
   Blackburn, Judge.

The appellant, Danny Hanners, the biological father of E. N. H., appeals from the trial court’s order terminating his parental rights with respect to the minor child.

In two separate enumerations of error, Hanners maintains that the trial court erred in terminating his parental rights because the evidence did not warrant termination of his rights and his felony convictions did not demand the termination of those rights.

“The appropriate standard of appellate review in a case where a parent’s rights to h[is] child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) In the Interest of J. D. D., 215 Ga. App. 68, 69 (449 SE2d 655) (1994).

“The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child.” (Citation and punctuation omitted.) Id. A parent’s felony conviction and imprisonment which has a demonstrable negative effect on the quality of the parent-child relationship is among the factors that a trial court can consider in determining parental misconduct or inability. OCGA § 15-11-81 (b) (4) (B) (iii).

At the time of the termination hearing, Hanners was incarcerated and has been incarcerated since October 1990. He pled guilty to molesting his niece in February 1984, and while on parole, was arrested for molesting E. N. H. and her older sister, his stepdaughter, in the family home. He subsequently pled guilty to five counts of the eight-count indictment to child molestation, aggravated sodomy, rape, and cruelty to children. All of the charges involved E. N. H.’s sister. The charges involving E. N. H. were nolle prossed as a part of the negotiated plea. E. N. H.’s sister was only five years old at the time of the conviction.

E. N. H. was five years old at the time of the termination hearing and has been in the custody of the Department of Family & Children Services for most of her life. E. N. H. and her sister were placed in the department’s custody in October 1990 when Hanners was arrested for molesting the children. Although the children were reunified with their mother, they were returned to the custody of the department a year later because of neglect. No attempts were made to reunify the children with Hanners because of the special conditions of his probation from his prior molestation conviction which prohibited his contact with children under the age of 14. As a condition of his more recent convictions, Hanners is prohibited from having any contact with E. N. H.

A case plan subsequently developed by the department required Hanners’ participation in a counseling program and there is no evidence that Hanners has participated in such a program. He has admittedly not seen the child, written the child, or provided any financial support to the child since his incarceration in 1990. According to a department caseworker, E. N. H. has little memory of Hanners, and his conviction has had a demonstrable negative effect on their relationship. A psychologist familiar with E. N. H. and her older sister opined that E. N. H. should not be placed in the home with Hanners upon his release from prison. The child’s mother has voluntarily surrendered her rights to the child. E. N. H. has bonded with her foster family with whom she and her older sibling have lived for nearly two years.

“Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” (Citations and punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). Circumstantial evidence may be used to show the demonstrable negative effect of a parent’s incarceration for a felony offense upon the parent-child relationship. Id. In this case, where Hanners has been repeatedly convicted for the sexual exploitation of young female family members, and has been arrested for molesting the minor involved in this termination action, this constitutes an additional factor which may be considered in determining whether E. N. H. is presently without Hanners’ proper care and control, and that such is likely to continue. Id. As a general rule, past deprivation is not sufficient for termination without the showing of present deprivation. Id. However, in this case, Hanners’ past molestation of young females is proper for consideration on whether such deprivation will continue in the future. Id.

Decided February 1, 1995.

David L. Whitman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Kathryn C. Reeder, for appellee.

The clear and convincing evidence presented at the termination hearing, including Hanners’ molestation convictions and lack of financial support of or communication with E. N. H. since his incarceration, authorized the trial court’s finding that E. N. H. is deprived without proper parental care and control, and that termination is within the best interest of the child. Accordingly, Hanners’ enumerations of error are without merit.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A94A1898.
    FULLER v. CHARTER SOUTH, INC.
    (453 SE2d 754)
   Smith, Judge.

Lea Fuller brought suit against Michael Merritt, Hector Moreno, and Charter South, Inc. to recover damages for personal injuries suffered when she was involved in a three-vehicle collision. Merritt and Moreno were dismissed prior to trial. The case against Charter South went to trial before a jury. At the close of Fuller’s evidence, Charter South moved for a directed verdict, which was granted. Judgment was entered thereon, and this appeal ensued.

The evidence presented at trial showed that the accident occurred on May 20, 1989 at 10:00 a.m. in the westbound lanes of 1-285 north of Atlanta. Moreno was driving a pickup truck and towing a flatbed trailer carrying a backhoe about the size of a lawnmower. It had been raining intermittently that day, and Merritt’s car spun around several times on the wet roadway, coming to a stop facing oncoming traffic. Moreno’s truck then veered to the side to avoid hitting Merritt’s car and his trailer “nipped” Merritt’s bumper. At the same time, Fuller veered for the same reason, and Moreno’s truck hit her car squarely from the rear, causing extensive damage.

Fuller sought to hold Charter South liable for the damage caused by Moreno on a theory of respondeat superior. Charter South is a company that builds gas stations and does environmental cleanup. Roger Davies, area manager for Charter South, testified that the company owns and leases grading equipment, but that equipment is not moved from site to site; if multiple projects are being worked at one time, each site has its own equipment. In 1989, Charter South undertook several projects in Georgia. Moreno was hired by Charter South in February 1989 to work at the Marietta site. When that project was completed, he was shifted to the Tucker site, his location of employment at the time of the accident. Time sheets showed Moreno worked at the Tucker site on the day of the accident. However, when his truck collided with Fuller’s car it was westbound, headed away from the Tucker project site.

Fuller presented no evidence that Moreno was on company business or that the truck, trailer, or equipment belonged to Charter South.

1. The trial court granted Charter South’s motion on the ground that no evidence of Moreno’s agency had been presented. Fuller contends this ruling was error because sufficient evidence was presented that Moreno was Charter South’s agent at the time of the accident. We do not agree.

Where a vehicle is involved in a collision and evidence shows that the vehicle is owned by the employer of the driver, a presumption is raised that the driver was in the scope of his employment at the time of the collision, placing the burden on the employer to show otherwise. Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828). (1983). Here, however, no evidence was presented to show ownership by the employer. Fuller relies upon Chrostowski v. G & MSS Trucking, 198 Ga. App. 140 (401 SE2d 53) (1990), in support of her contention, but the evidence presented in Chrostowski differed significantly from that presented in this case. In Chrostowski, the employee was driving a truck whose cab was marked with the name of the employer. Despite the presumption having been raised, the trial court granted summary judgment in favor of the corporate defendant on the ground that the agency of the driver involved in the accident had not been shown. This court reversed that judgment because sufficient evidence was presented by the plaintiff to raise a question of fact regarding whether the employee was the corporation’s agent at the time of the accident. In addition to the markings on the cab, the title for the truck and the tag receipt for the trailer were made out to the employer, and a question of fact existed as to whether the driver was employed by the corporate defendant.

No such evidence exists in this case. Even assuming Fuller’s testimony regarding the hearsay statement of Moreno was admissible to show that he was on his way to work at the time of the accident, but see Division 2, infra, that testimony would not establish that Moreno was in the scope of his employment with Charter South at the time of the accident. As a general rule, in going to and from work an employee acts only for his own purposes and not those of his employer. Consequently, “the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work.” (Citations and punctuation omitted.) Viau v. Fred Dean, Inc., 203 Ga. App. 801, 803 (2) (418 SE2d 604) (1992).

Decided January 12, 1995

Reconsideration denied February 2, 1995.

Jason M. Braswell, R. Glen Galbaugh, for appellant.

Irwin & Taylor, Jane C. Taylor, for appellee.

Agency may be established by the declarations of an agent if there is corroborating evidence to prove the agency. De la Gonzales v. Krystal Co., 173 Ga. App. 574, 576 (327 SE2d 546) (1985). Here, however, no other evidence existed to corroborate Fuller’s contention that Moreno was the agent of Charter South at the time of the accident. No presumption arose that Moreno was in the scope of his employment, because the truck he was driving was not marked with a company logo. No evidence was presented that the equipment being towed belonged to the company, and Davies testified that Moreno would not have been moving company equipment as part of his duties. The trial court properly granted the motion for a directed verdict.

2. Fuller also contends the trial court erred in refusing to allow Fuller to testify that Moreno told her while waiting for the police to arrive that he was on his way to work. We find no merit in this contention. The testimony was objected to on hearsay grounds. Moreno was not served in the lawsuit and was not subpoenaed to testify. Fuller sought to introduce the testimony to show that Moreno was Charter South’s agent at the time of the accident. It is clear, therefore, that the testimony was offered to prove the truth of what Moreno had said. The testimony is clearly inadmissible hearsay, and the trial court did not err in excluding it. See Johnston v. Grand Union Co., 189 Ga. App. 270, 271-272 (1) (375 SE2d 249) (1988).

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       Moreno was not served; Merritt was dismissed after he settled with Fuller.

      Indeed, colloquy at trial indicated the truck belonged to Moreno.


text:
    A95A0089.
    SOUTHTOWNE HYUNDAI-ISUZU-SUZUKI v. HOOPER et al.
    (453 SE2d 756)
    Decided January 13, 1995
    Reconsideration denied February 2, 1995

      Marcus & Moskowitz, Todd K. Maziar, for appellant.
   McMurray, Presiding Judge.

John F. Hooper and Sara E. Hooper brought an action against Southtowne Hyundai-Isuzu-Suzuki (“Southtowne”) in magistrate court. After a judgment was entered in favor of the Hoopers, Southtowne appealed to the state court for de novo review pursuant to OCGA § 15-10-41 (b) (1). After a bench trial, the state court entered judgment in favor of the Hoopers with findings of fact and conclusions of law showing that its judgment was not only based on the same transaction and claim which was the basis of the judgment entered in favor of the Hoopers in the magistrate court but was also based on causes of action which were not asserted or considered in the magistrate court. This direct appeal followed. Held:

The Hoopers contend this appeal should be dismissed because OCGA § 5-6-35 (a) (11) requires an application for discretionary appeal when an appeal is sought from a state court decision reviewing a decision of a magistrate court in a de novo proceeding. In opposition, Southtowne contends this appeal does not fall within the class of cases requiring a discretionary application, arguing that the state court did not conduct de novo review of the magistrate court’s decision because the state court considered claims that were not raised or considered in the magistrate court. This argument is without merit. “The only avenue of appeal available from the magistrate court judgment is provided by OCGA § 15-10-41 (b) (1), which allows for a de novo appeal to the state or superior court. Regardless of whether this litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation (OCGA § 5-3-29), where the litigation reached the state court by means of a de novo appeal from magistrate court, in order to obtain appellate review of the state court judgment in this Court, an application for appeal must be sought as required by the clear and unambiguous language of OCGA § 5-6-35 (a) (11).” Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225). Consequently, the failure of Southtowne to follow the discretionary appeal procedures of OCGA § 5-6-35 (b) requires that this direct appeal be dismissed.

Appeal dismissed.

Andrews and Blackburn, JJ., concur.

Scott Walters, Jr., for appellees.


text:
    A94A2448.
    MELTON v. THE STATE.
    (454 SE2d 545)
   Ruffin, Judge.

Walter Keith Melton was convicted of kidnapping with bodily injury and sentenced in Cobb Superior Court to life imprisonment as a recidivist pursuant to OCGA § 17-10-7 on September 21, 1987. The conviction was affirmed by this court in Melton v. State, 204 Ga. App. 103 (418 SE2d 428) (1992). The recidivist sentence was based on 1979 convictions of rape and sodomy, a 1976 prosecution for theft by taking for which he was given first offender treatment and a 1979 misdemeanor conviction of receiving stolen property. On July 30, 1993, upon consideration of Melton’s habeas corpus petition which challenged the 1979 rape and sodomy convictions, the Tattnall County Superior Court held that Melton was denied his rights to appointed counsel and to directly appeal the convictions and granted an out-of-time appeal of the 1979 convictions. Melton then moved the Cobb Superior Court to modify his recidivist life sentence or to resentence him on the ground that the 1979 convictions could no longer support his recidivist sentence because the convictions were obtained in violation of his right to appointed counsel as an indigent and the convictions were no longer final. Melton also argued, for the first time, that the two other prior prosecutions upon which his recidivist sentence was based were also erroneously considered by the court in imposing the 1987 recidivist sentence. The trial court denied Melton’s motion pursuant to OCGA § 17-10-1 (a) on the ground it had no authority to modify any sentence 60 days after it was imposed. This appeal followed.

At the outset we note that the trial court was incorrect in concluding it was without authority to resentence Melton under OCGA § 17-10-1 (a). That statute does not apply in the instant case because a life sentence or the death penalty were mandated for a conviction of kidnapping with bodily injury. See OCGA § 16-5-40 (b). Moreover, it appears that Melton’s 1979 rape and sodomy convictions, from which an out-of-time appeal was granted, are not convictions within the meaning of OCGA § 17-10-7 since that appeal is currently pending. Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969). Therefore, we must determine whether the recidivist sentence is nonetheless proper, excluding consideration of the rape and sodomy convictions. We will consider this issue despite Melton’s failure to object to the introduction of his prior prosecutions at the pre-sentence hearing because it is likely that the trial court relied entirely on the rape and sodomy convictions in imposing the sentence, which we have determined are now inadmissible for that purpose.

Melton’s life sentence under OCGA § 17-10-7 should be sustained if the State demonstrated he was previously convicted of a felony under the laws of this state and was sentenced to confinement in a penal institution. OCGA § 17-10-7 (a). The record from Melton’s pre-sentence hearing shows that the State introduced certified copies of a 1975 indictment for theft by taking, a 1976 probated sentence under the First Offender Act for that offense based on a negotiated guilty plea, and a 1979 misdemeanor conviction of receiving stolen property. Under the clear terms of OCGA § 17-10-7, only prior felony convictions can be used to support recidivist sentencing. Therefore, Melton’s misdemeanor conviction did not invoke the recidivist statute.

As to the theft by taking charge, a probationary sentence is not a conviction. “[S]ince [Melton] was dealt with under the0 First Offender Act, there has been no adjudication on the plea; it has simply been tendered and accepted for the purpose of imposing punishment which, if successfully completed by defendant, will relieve him of any judgment of guilt and hence of any conviction. OCGA § 42-8-62. . . . [T]here is no conviction unless there is an adjudication following non-fulfillment of the court’s terms.” Gunter v. State, 182 Ga. App. 548, 549 (356 SE2d 276) (1987); Priest v. State, 261 Ga. 651 (2) (409 SE2d 657) (1991). There was no evidence presented at the pre-sentence hearing which showed that Melton violated the probated sentence, authorizing the court to enter an adjudication of guilt (OCGA § 42-8-60 (b)), or that he successfully completed the terms of his probated sentence and was discharged, in which case the prosecution could not be used in the determination of a recidivist sentence (see Queen v. State, 182 Ga. App. 794 (1) (357 SE2d 150) (1987)). Thus, this case should be remanded to the trial court so that further evidence may be introduced to resolve this issue. If the evidence demonstrates that Melton failed to satisfy the requirements of the probated sentence and the trial court subsequently entered an adjudication of guilt and sentence, Melton’s life sentence under OCGA § 17-10-7 in the instant case is sustained. However, if the evidence shows that Melton was discharged, the sentence will be void for lack of evidence. In this instance, Melton should be resentenced for the separate offense of kidnapping with bodily injury of which he was convicted by the jury. See generally Crumbley v. State, 261 Ga. 610 (1) (409 SE2d 517) (1991).

Case remanded with direction.

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

Decided February 2, 1995.

Walter K. Melton, pro se.

Thomas J. Charron, District Attorney, Debra H. Bernes, Russ J. Parker, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A94A1908.
    THOMPSON et al. v. PAYNE.
    (453 SE2d 803)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal of the trial court’s denial of summary judgment to defendant Randall Thompson in this personal injury suit brought by plaintiff Ruth Emily Payne against Thompson and his superior, Wesley C. Walraven, Sheriff of Forsyth County, and also against a criminal suspect. Payne claims injuries as a result of defendant Thompson’s police pursuit of a fleeing DUI and burglary suspect. According to plaintiff’s statement of the facts, Deputy Thompson was chasing the suspect in a southbound direction; the two vehicles approached a curve to the right, that is, the southbound lane was on the inside of the curve. Appellee Payne was approaching the curve traveling north. According to defendants’ version of the evidence, when the deputy saw that the fleeing suspect’s vehicle was going to collide with an oncoming car in the northbound lane, he left the roadway to his left, that is, to the shoulder of the northbound lane in which plaintiff had been traveling, and he was “safely” parked on the side of the road when the suspect’s vehicle collided with plaintiff’s vehicle and knocked it into the deputy’s vehicle. According to plaintiff’s view of the evidence, however, both chase vehicles departed from the right lane and crossed the centerline in the curve, and both vehicles crashed into the vehicle driven by Mrs. Payne, who was driving in her own lane. In her affidavit in response to appellants’ motion for summary judgment, plaintiff affied that the fleeing suspect and the defendant deputy were going too fast for safe travel on the wet roadway; it was raining when both defendants struck her and they were going too fast to stop on the wet pavement; the deputy could see plaintiff for at least 1,000 feet before his vehicle struck her vehicle; both chase vehicles crossed over the centerline of the highway; and the deputy traveled on the plaintiff’s side of the road for at least 300 feet before his vehicle struck her vehicle.

Appellants contend that summary judgment to defendant Thompson is called for by the rule announced in Mixon v. City of Warner Robins, 209 Ga. App. 414, 417 (434 SE2d 71) that when a fleeing suspect injures a third person, the officer’s pursuit is not the proximate or contributing proximate cause of any injuries unless the plaintiff can show that the conduct of the officer, either in initiating or continuing the pursuit, posed a higher threat to public safety than is ordinarily incident to high speed police pursuits. Held:

OCGA § 40-6-6 (d) provides that an officer who is operating a law enforcement vehicle in pursuit of a suspected criminal “shall not [be] relieve [d] . . . from the duty to drive with due regard for the safety of all persons.” In Mixon, supra, the only collision was between the fleeing suspect and the third party; on certiorari, the Supreme Court phrased the issue as whether the officer’s duty to apprehend criminal suspects is paramount to his duty to other drivers, such that a suspect’s “intervening act” of flight mandates the conclusion that as a matter of law no duty was owed by an officer to protect another driver from an injury which in fact was caused by the continuing pursuit. See Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761). The Supreme Court reversed our decision in Mixon and held that under OCGA § 40-6-6 (d), “an officer’s performance of his professional duty is not to be considered paramount to the duty that he owes to other members of the driving public” (id. at 387), for while it is desirable that the officer overtake and apprehend a fleeing criminal, it is equally important that innocent persons not be maimed or killed. Id., quoting Archer v. Johnson, 90 Ga. App. 418, 424 (83 SE2d 314). OCGA § 40-6-6 (d) precludes an avoidance of civil liability simply because the officer was in the performance of his professional duty when another driver was injured; the controlling factor in civil liability of an officer is not whether the injury was actually inflicted by the fleeing suspect rather than the officer, for the proper standard of inquiry in determining the officer’s liability to other drivers is whether, under all the circumstances and conditions, the officer’s act of pursuing a criminal suspect’s vehicle was performed without the requisite due regard for the safety of all persons. Id. “Thus, the officer’s avoidance of civil liability cannot derive from the mere intervening flight of the criminal suspect, but is solely dependent upon the officer’s own adherence to his duty to drive with the requisite due regard for the safety of others. Accordingly, if a vehicular pursuit is undertaken or performed without the requisite due regard for the safety of all persons and an injury occurs as the consequence, the officer can be held civilly liable even though the injury was actually inflicted by the fleeing criminal suspect.” Id. at 388. There is no special statutory provision excepting police officers from the general legal standards for proximate cause; the decision to initiate or continue pursuit may be negligent when the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending suspects. Id. at 389, citing Travis v. City of Mesquite, 830 SW2d 94, 98-99 (Tex. 1992).

The Supreme Court concluded summary judgment for the officer in Mixon was authorized only if the evidence, construed favorably to the plaintiff, “demanded a finding that [the officer] properly balanced the risk to the safety of other drivers and that, in his pursuit of [the fleeing suspect], he therefore acted with due regard for the safety of other drivers.” Id. at 389 (2). Whether an officer in pursuit of a criminal suspect exercised the care required by law will generally be a question for the jury, as are other questions of negligence; it is only in a plain and undisputed case that the courts, rather than the jury, can make that determination. Id. at 389-390.

Decided February 2, 1995.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, David G. Goodchild, Jr., for appellants.

Lynwood D. Jordon, Jr., for appellee.

We conclude that the evidence in this case, construed in favor of the plaintiff on defendant Thompson’s motion for summary judgment, does not demand a finding that Deputy Thompson properly balanced the risk to the safety of other drivers and that in his pursuit of the fleeing suspect he acted with due regard for the safety of other drivers. According to the Supreme Court’s decision in Mixon, it is not controlling that the fleeing suspect’s acts were an “intervening” cause of the plaintiff’s collision with Deputy Thompson’s car, nor is it controlling that Thompson’s vehicle left the roadway and would not have collided with plaintiff’s car if the suspect’s car had not propelled plaintiff’s car into the deputy’s car. It remains for the jury to determine whether, under all the circumstances and conditions, the officer’s act of pursuing the suspect’s vehicle (including his decision to initiate and continue the pursuit) was performed with the requisite due regard for the safety of all persons. Mixon at 387.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2719.
    PITTS v. GOFER COURIER SERVICE.
    (453 SE2d 505)
   Andrews, Judge.

Pitts was injured in an automobile accident driving his own automobile while delivering a package for Gofer Courier Service, Inc. (“Gofer”). He was awarded workers’ compensation benefits by an administrative law judge (“ALJ”), who determined that he was an employee of Gofer rather than an independent contractor, and that he was entitled to recover for injuries he sustained in the automobile accident during the course of his employment. On de novo review, the full board reversed the ALJ and substituted its decision dated March 10, 1994, denying benefits on the basis that Pitts was not an employee of Gofer, but was an independent contractor when the injury occurred. On appeal, the superior court held a hearing, considered the record, and entered the following order: “[T]hat this matter is remanded to the Full Board of the State Board of Worker’s Compensation for further findings of fact and conclusions of law relative to its award of March 10, 1994.” We granted Pitts’ application for a discretionary appeal from the order of the superior court.

1. Pitts claims the full board erroneously decided he was an independent contractor and that the superior court erred by failing to set aside the decision on one or more of the statutory grounds set forth in OCGA § 34-9-105 (c).

The superior court’s order did not explicitly affirm, reverse or take any other action with respect to the decision of the full board other than remanding the case. Under OCGA § 34-9-105 (d), “[u]pon the setting aside of any such decision of the board, the [superior] court may recommit the controversy to the board for further hearing or proceedings in conformity with the judgment and opinion of the court. . . .” In Maczko v. Employers Mut. &c. Ins. Co., 116 Ga. App. 247 (157 SE2d 44) (1967), we held that under OCGA § 34-9-105 “the [superior] court must affirm the award unless it is set aside on one or more of the statutory grounds stated therein. The order of the court remanding the case to the board, in the absence of setting aside the award on one of the statutory grounds, was therefore unauthorized. [Cits.] The trial court having divested itself of jurisdiction in the matter by this action, however, this court has jurisdiction on appeal from such order, and in the posture presented on appeal will examine the record to determine whether there is any competent evidence to support the award. [Cit.]” Similarly, in Ga. Cas. &c. Co. v. Bloodworth, 120 Ga. App. 313 (170 SE2d 433) (1969), we held that an order by the superior court “remanding the case to the board for additional findings of fact . . . had the effect of setting aside the award denying compensation and since it did not purport to retain jurisdiction of the case, it was a final appealable judgment.” See Turner v. Baggett Transp. Co., 128 Ga. App. 801, 803 (198 SE2d 412) (1973).

Accordingly, even though in remanding the case the superior court did not explicitly set aside the full board’s award, the order had the effect of setting aside the award and the court did not purport to retain jurisdiction of the case. Under these circumstances, we have jurisdiction to review the record to determine if there was a basis for the full board’s decision.

2. The sole basis for the full board’s reversal of the ALJ was its conclusion that Pitts was an independent contractor. The full board relied on the definition of “employee” set forth in OCGA § 34-9-1 (2), which provides in part: “For purposes of this chapter, an owner-operator as such term is defined in Code Section 40-2-87 shall be deemed to be an independent contractor.” Under OCGA § 40-2-87 (19), an “ ‘[o]wner-operator’ means an equipment lessor who leases his vehicular equipment with driver to a carrier.” The full board concluded that, while operating his own automobile to deliver packages for Gofer, Pitts was an owner-operator under this definition and, therefore, was an independent contractor, not an employee of Gofer.

The definition of “owner-operator” in OCGA § 40-2-87, relied upon by the full board, appears as part of Article 3A (Reciprocal Agreements For Registration of Commercial Vehicles) of Chapter 2 (Registration and Licensing of Motor Vehicles) of OCGA Title 40 (Motor Vehicles and Traffic). The definitions in OCGA § 40-2-87 of Article 3A were enacted to govern reciprocal agreements or plans entered into by the Department of Revenue under the authority of OCGA § 40-2-88, also contained in Article 3A. Under OCGA § 40-2-88, the Department of Revenue “is authorized to enter into reciprocal agreements or plans on behalf of the State of Georgia with the appropriate authorities of any of the states of the United States, the District of Columbia, a state or province of any foreign country, or a territory or possession of the United States or any foreign country providing for the registration of commercial vehicles on an apportionment basis and may, in the exercise of this authority, enter and become a member of the International Registration Plan developed by the American Association of Motor Vehicle Administrators.” Such agreements or plans are directed toward the regulation of commercial vehicles in interstate and international commerce. See OCGA §§ 40-2-87; 40-2-88.

There is nothing in the present record to indicate that Pitts, who drove his vehicle as a courier for Gofer in the metropolitan Atlanta area, was an “owner-operator” within the meaning of OCGA § 40-2-87 (19). Accordingly, there is no evidence in the record to support the full board’s conclusion that, since Pitts was an “owner-operator” as defined by OCGA § 40-2-87 (19), he was deemed, as a matter of law, to be an independent contractor under OCGA § 34-9-1 (2). The superior court erred by failing to explicitly set aside the full board’s decision on grounds set forth in OCGA § 34-9-105 (c) and, in remanding the case, the court failed to give the board sufficient directions for reconsideration of its decision. Nevertheless, we affirm the order of the superior court since it had the effect of setting aside the decision of the full board. In light of its conclusion that Pitts was an “owner-operator/independent contractor” under OCGA §§ 40-2-87 (19) and 34-9-1 (2), the full board did not reach the merits of the grounds upon which the ALJ’s award was appealed. Accordingly, we remand the case to the superior court with directions that the case be recommitted to the full board for resolution in a manner not inconsistent with this opinion. See Fulton Cotton Mills v. Lashley, 123 Ga. App. 528, 531 (182 SE2d 180) (1971).

Decided January 19, 1995

Reconsideration denied February 3, 1995

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, John J. McCloskey, for appellant.

Sligh, Presmanes & Jackson, Gregory T. Presmanes, for appellee.

Judgment affirmed and case remanded with directions.

Beasley, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A95A0822.
    In the Interest of L. W. et al., children.
    (453 SE2d 808)
   Johnson, Judge.

On Motion for Reconsideration.

We dismissed this appeal from a child custody order for failure to follow the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). On reconsideration, appellant argues the order is directly appealable because it involves the termination of parental rights which does not fall within the purview of OCGA § 5-6-35 (a) (2). See In the Interest of R. L. Y., M. R. Y. & R. A. Y., 180 Ga. App. 559 (349 SE2d 800) (1986). However, the order in question did not terminate appellant’s parental rights; it simply awarded custody of the youngest child to the father and granted visitation rights to appellant.

While this case began as a deprivation proceeding in the juvenile court, we have consistently held that custody orders arising out of such proceedings are subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). See In the Interest of M. D. S., 211 Ga. App. 706 (440 SE2d 95) (1994); In the Interest of M. A. V., 206 Ga. App. 299 (425 SE2d 377) (1992); In the Interest of N. A. B., 196 Ga. App. 819 (397 SE2d 301) (1990). We therefore reject appellant’s assertion that we must look to the nature of the underlying proceeding rather than the substance of the order complained of in determining whether the discretionary appeal procedures apply. Thus, orders dealing with child custody are subject to the discretionary appeal procedures of OCGA § 5-6-35 (a) (2); In the Interest of A. M. D., 212 Ga. App. 291 (444 SE2d 166) (1994); and orders terminating parental rights are directly appealable. In the Interest of R. L. Y., 180 Ga. App. at 559.

Appeal dismissed January 13, 1995

Reconsideration denied February 3, 1995

Martin L. Fierman, for appellant.

Shepherd & Brown, Timothy N. Shepherd, for appellee.

Motion for reconsideration denied.


text:
    A94A2067.
    NEAL v. THE STATE.
    (453 SE2d 807)
   McMurray, Presiding Judge.

Defendant Neal appeals the denial of his motion to withdraw a plea of guilty of a violation of the Georgia Controlled Substances Act, possession of cocaine with intent to distribute. Held:

Defendant maintains that he was misled by his court-appointed attorney into believing that he would receive a substantial benefit by accepting a plea bargain agreement when in fact no such benefit existed. At the time the charge at issue was pending in Newton County against defendant, he was serving a sentence of ten years, eight to serve, arising from prior violations of the Georgia Controlled Substances Act in Rockdale County. After his plea of guilty on the Newton County charge, defendant was sentenced to a term of life in prison. Pursuant to the plea bargain agreement the life sentence was to run concurrent with the Rockdale County sentence rather than being consecutive. Also, as part of the plea bargain agreement the district attorney’s office agreed to refrain from sending any letter in aggravation to the pardons and parole board.

In some respects the significance of the Newton County life sentence being concurrent rather than consecutive to the earlier Rockdale County sentence is rather minimal. Evidence was presented that in either instance a convict would be eligible for parole in seven years from the imposition of the life sentence, with the difference being that in the case of a concurrent sentence a convict would receive credit for jail time. See OCGA § 42-9-45 (b). While defendant would thus receive credit for approximately two weeks jail time, there is no indication that he was made aware of this benefit of the plea bargain prior to entering his plea of guilty.

The court-appointed attorney who represented defendant in connection with the entry of the plea of guilty testified that he related to defendant his conversations with pardons and parole board personnel who informally suggested to him that consecutive imposition of a life sentence or letters in aggravation from district attorney’s offices have a tendency to increase the time to be served above the mandatory times provided in the applicable statutes. The attorney also told defendant that he had been informally told that due to the pressure of the prison population it was likely that a prisoner would be released before serving the seven years mandated for life sentences. This testimony was undisputed.

Defendant’s claim of having been misinformed is predicated entirely upon his testimony that he was also told that if the life sentence was consecutive to the earlier sentence, he would serve two or three years of the earlier sentence before starting the life sentence. Such a statement would have been incorrect and defendant, citing Strickland v. State, 199 Ga. 792 (1) (35 SE2d 463), maintains that he should have been allowed to withdraw his plea of guilty in the case sub judice since he was incorrectly led to believe that the plea bargain offered the benefit of earlier consideration for parole.

However, the defendant’s account of what he had been told concerning the effect of consecutive application of the life sentence was not confirmed by the former court-appointed attorney who stated that at the time of the events in question he understood that the defendant’s eligibility for parole would not be affected by whether the life sentence was applied consecutively or concurrently. The trial court found defendant’s testimony to be lacking in credibility, self-serving, and without any basis in fact. The trial court also noted that the transcript of the entry of defendant’s guilty plea shows that he entered it freely and voluntarily without being threatened, coerced, or offered the slightest hope of benefit in order to induce a plea, was represented by counsel, showed that he understood his rights as well as the maximum and minimum sentence which could be imposed, and stated that he was satisfied with his attorney. We note the implicit conflict between the testimony of defendant and of his former appointed attorney, and conclude that the trial court was authorized to conclude from the evidence submitted that defendant’s motion to withdraw plea of guilty was lacking the factual predicate upon which it purported to be founded. The question of whether to permit withdrawal of a guilty plea rests in the sound discretion of the trial court and under the circumstances of the case sub judice we find no abuse of that discretion. Spurgeon v. State, 214 Ga. App. 227 (447 SE2d 164); Bice v. State, 212 Ga. App. 184 (1) (441 SE2d 507); Threatt v. State, 211 Ga. App. 630, 631 (3) (440 SE2d 61); Covington v. State, 196 Ga. App. 498 (396 SE2d 298).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided February 3, 1995.

Edgar A. Callaway, Jr., for appellant.

Alan A. Cook, District Attorney, Christopher S. Brasher, Assistant District Attorney, for appellee.


text:
    A94A2138.
    EDWARDS v. THE STATE.
    (453 SE2d 806)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, along with Marvin Theodore Chambers in the Superior Court of Clayton County, Georgia, for theft by taking and financial transaction card theft in violation of OCGA § 16-9-31 (a) (1). Co-defendant Chambers entered pleas of guilty and was called as a witness for the State at defendant’s jury trial, testifying that he pled guilty to both counts of the accusation because he assisted defendant to commit the crimes charged. Specifically, Chambers testified that he was employed as a janitor at the victim’s place of employment (Anchor Hospital in Clayton County, Georgia) on the day the crimes were committed; that he allowed defendant access to the victim’s office via use of a pass key and that he watched defendant abscond from the victim’s office with a wallet. An employee at a retail establishment in College Park, Georgia, testified that defendant used the victim’s “Discover” credit card to purchase over $500 worth of merchandise. This transaction was completed on the same day defendant allegedly absconded with a wallet from the victim’s Clayton County office. The victim testified that she keeps her credit cards in her wallet; that she did not give defendant permission to use her “Discover” credit card; that she saw defendant with co-defendant Chambers at her Clayton County place of employment on the day her wallet turned up missing and that she then thought defendant’s presence at the hospital was “curious” because defendant was no longer employed at the hospital. The victim explained that it was her employer’s policy to prohibit a terminated employee from the hospital premises.

The jury found defendant not guilty of theft by taking and guilty of financial transaction card theft. This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant contends the State failed to prove he committed financial transaction card theft in the county of his trial as required by OCGA § 17-2-2, arguing that the only evidence linking him to the crime of financial transaction card theft in Clayton County was rejected when the jury found him not guilty of theft by taking the victim’s wallet from her Clayton County office. Defendant thus reasons that the only remaining evidence linking him to the crime of financial transaction card theft was testimony that he used the victim’s “Discover” credit card at a retail establishment in Fulton County, Georgia. This contention is without merit.

Decided February 3, 1995.

Darrel L. Hopson, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

The inconsistent verdict rule was abolished by the Supreme Court in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216). We thus observe that the testimony of co-defendant Chambers and the corroborating testimony of the victim that she saw defendant at her Clayton County place of employment on the day her wallet turned up missing is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of financial transaction card theft in Clayton County. OCGA § 16-9-31 (a) (1); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Fain v. State, 211 Ga. App. 399, 400 (1) (439 SE2d 64); Davis v. State, 203 Ga. App. 106 (416 SE2d 375).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A2106.
    RESOLUTION TRUST CORPORATION v. MORROW AUTO CENTER, LTD. et al.
    (454 SE2d 138)
   Birdsong, Presiding Judge.

This is a suit for confirmation of a foreclosure sale and deficiency. Appellant Resolution Trust Corporation (RTC) foreclosed on a development property in the Atlanta metropolitan area. The original loan amount was $725,000. The amount of default is not cited to us nor is it stated in RTC’s demand letter or its petition, but the default was more than the $425,000 for which RTC bought the property at its foreclosure sale. In its order denying confirmation of the sale, the trial court recited that the appraiser/witness for RTC testified that the market value for the property at the time of sale was $425,000, whereas two appraisers for Morrow Auto Center testified that the market value at the time of sale was $812,000 and $790,000.

The trial court also denied a resale. On appeal, RTC contends a resale is authorized as a matter of law by OCGA § 44-14-161 (c) if the property did not sell for its true market value and if, as in this case, the trial court made no finding of bad faith. Held:

1. The trial court did not err in denying confirmation. See OCGA § 44-14-161.

2. OCGA § 44-14-161 (c) provides: “The court may order a resale of the property for good cause shown.” (Emphasis supplied.) This statute confers upon the trial court a legal discretion in determining whether to order a resale. Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661 (411 SE2d 894).

RTC contends resale is authorized as a matter of law under Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (424 SE2d 889), where we held: “Given that [the creditor] did not prove that it sold the property for true market value but did obtain an appraisal (albeit a fatally flawed one) before the sale and did sell the property for an amount equal to that appraisal, a resale would be authorized.” Gutherie cites Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233 (230 SE2d 324), aff’d, 238 Ga. 722 (235 SE2d 476); Gutherie further cites Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263).

According to Adams, this court in Davie held that “[a] failure to sell for the true market value constitutes good cause for ordering a resale.” Adams at 234 (2). According to Gutherie, the Davie case held that “resale may be had for mere inadequacy of price.” Gutherie at 262 (2). In fact, in Davie, confronted with a contention that the court could not order a resale for mere inadequacy of price, we held that under previous statutory law, mere inadequacy of price was not a sufficient reason to order a resale, but under present law the court “may order a re-sale” (id. at 230; emphasis supplied) for several reasons, “including failure to sell [at the property’s] true market value.” Id. The headnote in Davie states: “The court may . . . order its resale for good cause shown, which may be the inadequacy of the price received for the property.” (Emphasis supplied.) These are permissive statements only, and they are a far cry from the mandatory inference made by RTC from Gutherie’s and Adams’ later characterizations of Davie. The holding in Davie should not be taken out of its true context and is not to be converted to a holding that “good cause” for resale is shown and a resale is demanded whenever a foreclosure sede fails to bring true market value. This would obliterate the statute, would remove the trial court’s discretion, and would encourage creditors to engage in any unfair practice at foreclosure sale, with the only penalty being a possible resale.

The language of the confirmation statute places the burden of proof on the creditor not only to show that the sale brought true market value of the property (Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (354 SE2d 694)), but also to show good cause for a resale, and the statute vests “considerable discretion” in the trial court in this determination. Five Dee Ranch Corp. v. Fed. Land Bank of Co lumbia, 148 Ga. App. 734 (2) (252 SE2d 662). The statute does not entitle the creditor to a resale, either for mere failure to show the sale brought true market value, for a mere “flawed” appraisal, or for any reason. The provision that resale “may [be granted] for good cause shown” (§ 44-14-161 (c)) means there is no presumption in favor of resale and there is no entitlement to a resale. The statutory language authorizing resale is entirely permissive and not mandatory.

Moreover, the statute does not define what constitutes “good cause,” does not require a finding by the trial court of bad faith or negligence in the appraisal or sale, and does not even require evidence of bad faith or negligence. We have declined to set restrictions on the trial court’s discretion in denying resale, for to set restrictions would be to require evidence of misfeasance, malfeasance, or defect in the sale before a resale can be denied, which would put the burden of proof on the debtor. To the contrary, we have held: “Where no ‘good cause’ has been shown which would demand a resale, there is no abuse of the exercise of the trial court’s discretion, as a matter of law” (Five Dee Ranch Corp., supra) and we have repeatedly held that the burden to show “good cause” which “may” authorize a resale is on the creditor. Wheeler, supra. We have held in particular cases that a resale was “authorized,” but this does not constitute a holding that a resale was demanded in those cases or that there would be any “entitlement” to resale in other cases with similar circumstances. Discretion to grant a resale is discretion to deny a resale. There are special reasons that the issues of “good cause” and resale are left to the “considerable discretion” (Five Dee Ranch Corp., supra) of the trial court, as this case proves.

RTC’s only witness to prove the sale brought true market value was the appraiser who determined value at the price RTC paid for the property at its own sale: $425,000. This appraiser did not use comparable sales from the proximate metropolitan Atlanta vicinity and apparently did not consider it significant that Morrow Auto Center is located in an area of upscale automotive businesses. Instead, she used sales of “similar” properties in other towns in Georgia with much lower traffic rates and sales rates. Morrow Auto Center is located next door to a property which sold to a Cadillac dealer for $42 per square foot with planned renovations of $1.4 million, but RTC’s appraiser did not consider this sale to be relevant. RTC’s appraiser claimed not to have known about the recent sale of a Ford dealership two sites away from Morrow Auto Center, at $63 per square foot. Instead, she used rental rates of $5.25 per square foot to value Morrow Auto Center, based on “similar” properties in other towns. Morrow Auto Center’s appraisers valued Morrow Auto Center in excess of $50 per square foot, similarly to the Cadillac and Ford dealership properties nearby.

Further, the Clayton County tax assessment of the subject property was $812,000 from 1991 to 1994. The tax assessor valued the land at $272,000 and valued the building at $540,000. RTC’s appraiser justified her appraisal of only $425,000 for the entire property, land and building, by speculating that the tax assessment would have been much lower if Morrow Auto Center had challenged it. In fact, Morrow Auto Center twice challenged those tax assessments, and lost. RTC’s appraiser claimed, however, not to have known about those challenges.

As proof of its “good faith,” which it says demands a resale, RTC offers the fact that the property sold — to itself — for precisely RTC’s appraised value. RTC says its appraiser has much higher qualifications than do the appraisers for Morrow Auto Center and that she spent more time investigating and analyzing the value of the subject property. These assertions obviously add nothing to the perception of RTC’s “good faith”; they certainly do not constitute “good cause” to authorize a resale.

3. RTC contends that a mere difference in opinion as to value by unimpeached expert witnesses is not sufficient cause to deny resale. RTC thus insists it is entitled to a resale as a matter of law when there is “merely” a failure to bring true market value. As noted earlier, a holding that if a sale fails to bring true market value the creditor is entitled to resale, would obliterate the statute and remove the trial court’s discretion and would actually encourage creditors to engage in unfair practices.

The trial court’s statement was that it found all expert witnesses credible and not materially impeached, but that it was not convinced the property brought true market value and that RTC did not prove by a preponderance of evidence that it sold the property for fair market value. This was merely a statement that RTC did not prove the sale brought true market value. The question whether to grant a resale is a separate matter. There is no entitlement to resale. The fact that the trial court finds a witness unimpeached on the issue of true market value does not control the issue of resale. The trial court held that “based upon the evidence presented ... at the confirmation hearing, this court does not find good cause shown and will not order a resale.” OCGA § 44-14-161 (c) gives the trial court broad discretion to grant or deny a resale; on appeal we determine only whether that discretion was abused. Traditionally, where a trial court is vested by statute with broad discretion, appellate courts do not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused. The discretion of the trial court in denying a resale in this case was not abused.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided January 6, 1995

Reconsideration denied February 6, 1995.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Linda S. Finley, for appellant.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellees.