text:
    A97A0668.
    CLARK v. THE STATE.
    (486 SE2d 393)
   Blackburn, Judge.

Thomas Clark appeals his convictions of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime in connection with the armed robberies of two convenience stores. Clark contends that the evidence was insufficient to support the verdicts. In addition, he contends that the trial court erred in allowing tainted identification testimony, testimony regarding a similar transaction, and testimony regarding a statement of a co-defendant. For the reasons discussed below, we affirm the convictions.

1. Clark contends that the evidence was not sufficient to support the convictions. Viewed in a light most favorable to the verdict, the evidence shows that, on December 20, 1992, Clark entered the Reynoldstown Store, a convenience store on Flat Shoals Road in Fulton County, armed with a handgun. Clark ordered two store employees, Antonio White and Deaundre Ward, to the floor and took money from one of them. Clark then forced White to open the store’s cash drawer at gunpoint. After removing the money from the drawer, Clark ordered the employees into the back room and left in a pickup truck driven by someone else. White and Ward identified Clark as the assailant at trial.

On December 28, 1992, Clark and another man, Chris Jackson, entered Jiffy Store, a convenience store on Moreland Avenue in Fulton County, about an hour before closing. Clark was wearing a green trench coat and Jackson was wearing a blue sweatshirt. Clark and Jackson both pulled out pistols, and Clark ordered the clerk, John Glymph, to get on his knees. They took money from Glymph’s pockets and from the cash register. Clark and Jackson kicked and hit Glymph on the head and demanded he open the store safe. When Glymph replied that he did not have a key, he was struck on the head with a pistol. Glymph then said that there was some money in the cigarette cabinet. While Jackson was looking for the money, Glymph activated an alarm. Glymph also retrieved a shotgun kept at the store and fired one shot into the door. After one of the men fired a shot at Glymph, Glymph again fired his shotgun, hitting Jackson. Clark and Jackson then ran from the store.

A nearby Atlanta policeman, Detective Parham, heard gunshots and saw one of the robbers coming in his direction. The robber fired 12 to 14 shots into Parham’s car, and Parham fired back 12 shots. Although Parham was not able to positively identify the individual, he stated that he was wearing a dark trench-type coat. Glymph positively identified Clark and Jackson as the assailants at trial.

The above evidence was sufficient to enable the jury to find Clark guilty beyond a reasonable doubt of the offenses of armed robbery, aggravated assault, and possession of a firearm in the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. At trial, the court allowed the state to introduce evidence regarding an armed robbery committed by Clark in November 1980, to which Clark entered a guilty plea. Clark contends the trial court erred in allowing this evidence because there was not sufficient similarity among the different incidents and because the prior offense was too remote in time.

In the 1980 incident, Clark entered a small grocery store near closing time. He pointed a handgun at the store owner’s wife and demanded money from the cash register. When the owner shouted, Clark pointed his pistol at him and fired three times, narrowly missing him.

“There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Punctuation omitted.) Dobbs v. State, 204 Ga. App. 83, 85 (3) (418 SE2d 443) (1992). “In determining admissibility of similar transaction evidence, the correct focus is upon the nature of the similarities, if any, between the extrinsic evidence and the crime charged, rather than incorrectly focusing upon any differences that may exist.” Harris v. State, 222 Ga. App. 52, 54-55 (473 SE2d 232) (1996). The 1980 incident was sufficiently similar to the 1992 robberies to allow introduction of evidence regarding the earlier offense. In each case, Clark entered a small convenience or grocery store with a handgun and demanded money from the cash register. In each instance, it appears that no customers were present when Clark entered the store. In both the 1980 incident and the Jiffy Store robbery, Clark actually fired his handgun. Accordingly, there were sufficient similarities to allow introduction of evidence regarding the 1980 offense.

Clark also contends that the 1980 incident was too remote in time to be considered, having occurred 12 years before the present robberies. However, “the lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” (Punctuation omitted.) Simmons v. State, 266 Ga. 223, 225 (466 SE2d 205) (1996) (lapse of 11 years does not render evidence of prior occurrence inadmissible as matter of law). Given the many similarities among the different robberies and the fact that Clark was apparently incarcerated for a period of time after conviction of the prior offense, “the 1980 offense was not too remote to be admissible.” Speagle v. State, 217 Ga. App. 577, 580 (458 SE2d 852) (1995) (allowing evidence of burglary committed fourteen years prior to burglary for which defendant was charged, where defendant had been incarcerated for four years); see also Harris, supra (allowing evidence of robbery committed nine and one-half years before robbery for which charged).

3. Clark contends that Glymph’s identification of him as the assailant in the Jiffy Store robbery was tainted by an impermissibly suggestive photographic procedure, and that the court thus erred in allowing Glymph’s testimony. After the robbery, a police detective showed Glymph photographs of six individuals, including a four-year-old photograph of Clark. Glymph was unable to make a positive identification from the photographs, but stated that two of the photographs looked like the assailant. One of the two photographs he selected was the photograph of Clark. The detective then showed Glymph a single photograph of Clark taken on the day of his arrest. Glymph immediately identified Clark as the assailant. Glymph subsequently identified Clark in a physical line-up and again at trial.

“Even assuming, arguendo, that the original identification from a single photograph was impermissibly suggestive, in order to establish a due process violation appellant must also show a very substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the perpetrator, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Citations and punctuation omitted.) Ellison v. State, 216 Ga. App. 639, 640 (1) (455 SE2d 361) (1995); see also Lowe v. State, 264 Ga. 757, 758 (2) (452 SE2d 90) (1994).

“Applying these factors, we find that the likelihood of misidentification was not very substantial.” Ellison, supra at 640. The evidence demonstrates that the robbery lasted at least 15 minutes, that Glymph was attentive during the robbery, and that he had ample opportunity to view Clark at the time. Glymph gave police a general description of Clark after the robbery, identifying him as a black male wearing an olive green trench coat. Glymph’s failure to positively identify Clark from the original photographic array was partially due to the fact that the photograph of Clark included in such array was four years old. Even with the old photograph, Glymph was able to narrow his selection to two individuals. When Glymph was shown a current photograph of Clark, he immediately identified him as the assailant. Glymph also picked Clark out of a subsequent physical line-up, and positively identified him at trial. Glymph never wavered in his identification, and stated that his identification was based on his view of Clark at the scene, and not on the photographs. “This testimony established a basis for the in-court identification independent of the single photograph; thus, we find no error in the admission of [Glymph’s] identification.” Id. at 640-641.

4. Clark contends the trial court erred in allowing Clarence Redmon, Jackson’s brother, to testify regarding a statement made by Jackson. Redmon testified that, on the day of the Jiffy Store robbery, Jackson told him he was not going to work that day. Redmon denied that Jackson said he was going to be with Clark. When asked if Redmon had previously told a detective that Jackson said he had something to do with Clark later that day, Redmon denied that he had made such statement. The detective later testified that Redmon had made such statement.

Clark argues that admission of Jackson’s alleged statement that he had something to do with Clark that day was error under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), because Jackson did not take the stand and was not subject to cross-examination. However, contrary to Clark’s argument in his brief, Redmon did not testify that Jackson had made such statement, and in fact denied that he had made the statement.

Moreover, admission of the alleged statement through the subsequent testimony of the detective did not constitute a Bruton violation in any event, as it did not directly implicate Clark. “For the admission of a co-defendant’s statements to constitute a Bruton violation . . . the statements standing alone must clearly inculpate the defendant.” (Punctuation omitted.) Owens v. State, 193 Ga. App. 661, 662 (388 SE2d 712) (1989). Jackson’s alleged statement that he had something to do with Clark later that day does not, standing alone, clearly implicate Clark in the robbery of the Jiffy Store. Accordingly, admission of such statement does not violate Bruton.

Decided April 11, 1997.

Before Judge Claiborne, pro hac vice.

Christopher S. Warren, for appellant.

Lewis R. Slaton, District Attorney, Elizabeth W. Morn, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0833.
    RYAN v. THE STATE.
    (486 SE2d 397)
   Johnson, Judge.

A jury found Ronald Ryan guilty of two counts of child molestation for touching his twelve-year-old daughter’s vagina and breasts with his hands. The jury found him not guilty of placing his penis against her vagina. On appeal he challenges , the sufficiency of the evidence, the admission of certain similar transaction evidence and the admission of his statement to police.

1. Ryan contends the evidence presented at trial was insufficient to support his convictions. On appeal, the presumption of innocence no longer prevails. We view the evidence in the light most favorable to the verdict and do not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). By stipulation, a videotape of the victim’s statement was introduced at trial. She told about the events of the Saturday night preceding the taped interview. She testified that her father shook his private part around and put it into her private part. She also said that he pulled her pants down and picked her up between her legs. Responding to leading questions from the examiner, the girl agreed that her father had put his finger in her vagina and put his hand on her chest. This evidence is sufficient to enable a rational trier of fact to find Ryan guilty of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bragg v. State, 217 Ga. App. 342, 343 (2) (457 SE2d 262) (1995).

2. The trial court did not err in admitting, as a similar transaction, the testimony of Ryan’s sister-in-law, that he raped her when she was 15 years old. Ryan argues that the earlier alleged incident is not similar because the girl was not in the protected age of minority at the time of the alleged incident. The 1995 amendment to OCGA § 16-6-4 (a) changed the protected age from 14 to 16 years. Ryan is correct that the prior incident could not have been prosecuted under the statute as it existed when the incident occurred in 1988. However, we are not reviewing the earlier incident in that context. We need not assess whether Ryan could have been prosecuted for child molestation in connection with that incident, only whether the incident satisfies the elements required for admission of similar transaction evidence in child molestation cases. “In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged.” (Citation and punctuation omitted.) Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991). In both of these instances Ryan had sexual contact with an adolescent female family member with whom he resided. It is immaterial that the 12-year-old victim in this case was touched, whereas the victim in the earlier alleged incident was 15 years old and was raped. “In a child molestation case, the sexual molestation of young children, regardless of sex or type of act [perpetrated upon them], is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Green v. State, 212 Ga. App. 250, 251 (2) (441 SE2d 689) (1994). See Fetterolf v. State, 223 Ga. App. 744, 746-747 (4) (478 SE2d 889) (1996). And while the length of time between the prior incident and the offense charged is a factor going to the weight accorded such evidence, Ryan’s argument that the prior incident was too remote in time to be admissible as a similar transaction is without merit. See Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985); Bryson v. State, 210 Ga. App. 642, 643 (2) (437 SE2d 352) (1993).

3. Neither do we find the trial court’s decision to admit Ryan’s custodial statement to be clearly erroneous. “A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld unless clearly erroneous.” (Citations and punctuation omitted.) Hatten v. State, 253 Ga. 24, 26 (3) (315 SE2d 893) (1984). At a Jackson v. Denno hearing the state showed that officers read Ryan the Miranda warnings and that he understood them. He was not threatened or promised anything in connection with his statement, and spoke freely and voluntarily. He argues now, however, that because he was emotionally distressed he was unable to give a knowing and intelligent waiver of his rights. “The mere fact that the defendant was emotionally upset did not render [his statement] inadmissible.” Estes v. State, 224 Ga. 687, 688 (2) (164 SE2d 108) (1968). See Martin v. State, 262 Ga. 312, 313 (3) (418 SE2d 12) (1992); Wells v. State, 196 Ga. App. 133, 134 (2) (395 SE2d 296) (1990). The trial court’s decision to admit Ryan’s statement was not clearly erroneous.

Decided April 11, 1997.

Before Judge Howell.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A0315.
    HOUSING AUTHORITY, CITY OF CARTERSVILLE et al. v. JACKSON.
    (486 SE2d 54)
   Johnson, Judge.

Hugh Jackson was injured while performing his duties as acting executive director of the Housing Authority of the City of Carters-ville. He filed a claim for medical benefits from the Authority’s workers’ compensation insurer, which contested the claim on the ground Jackson was not an employee. An administrative law judge awarded benefits, and the award was affirmed by the State Board of Workers’ Compensation and the superior court. We granted the Authority’s petition for discretionary review. For the reasons set out below, we affirm.

1. In a workers’ compensation case, both the superior court and this Court must construe the evidence most favorably to the party prevailing before the appellate division of the State Board of Workers’ Compensation, and are bound by the State Board’s factual findings if there is any evidence in the record to support them. Cox v. Advoni, 222 Ga. App. 413, 414 (474 SE2d 290) (1996); see OCGA § 34-9-105 (c) (4). The courts may, however, review the Board’s legal conclusions. Crider’s Furs v. Atkinson, 221 Ga. App. 681, 682 (472 SE2d 507) (1996); see OCGA § 34-9-105 (c) (5).

In the instant case the facts are not in dispute, and we are presented only with a question of law. After retiring from his career as a bank executive, Jackson was appointed to the Board of Commissioners of the Housing Authority of the City of Cartersville. Pursuant to OCGA § 8-3-50 (g), he received no compensation for his service on the Authority board, other than lunch at board meetings and payment of his expenses when he attended meetings on the Authority’s behalf.

Twice during Jackson’s tenure on the Board, the Authority’s executive director resigned and the other members of the Board asked Jackson to serve as acting executive director until a permanent replacement could be hired. Both times, Jackson accepted. Though this was a full-time position for which a permanent executive director later received an annual salary of $49,500, Jackson agreed to serve with no compensation. As acting executive director, Jackson maintained office hours at the Authority’s headquarters from 8:00 a.m. to 5:00 p.m. He was responsible for the Authority’s daily operations, including such matters as dealing with architects and contractors; signing payroll and other checks; supervising, hiring, and terminating Authority employees; and dealing with the United States Department of Housing & Urban Development. He was subject to discharge by the Authority’s Board of Commissioners.

During his second term as acting executive director, while driving an Authority-owned car on Authority business, Jackson was severely injured in a traffic accident, resulting in medical expenses exceeding $172,000.

2. The Authority contends the superior court erred in affirming the State Board’s finding that Jackson was an “employee” entitled to medical benefits under the Workers’ Compensation Act. See OCGA §§ 34-9-120; 34-9-200. The Act is to be construed liberally only for the purpose of finding both claimants and employers to be covered by its provisions. OCGA § 34-9-23. Though in a case such as this one a finding of coverage inures to the benefit of the claimant, in other circumstances such a finding would benefit the employer by providing it immunity from tort liability. See, e.g., England v. Beers Constr. Co., 224 Ga. App. 44, 45-47 (1) (479 SE2d 420) (1996). As between employees and employers, the Act is to be construed impartially. OCGA § 34-9-23.

The term “employee” is defined by OCGA § 34-9-1 (2), in pertinent part, to include “every person in the service of another under any contract of hire or apprenticeship, written or implied.” The Authority claims because Jackson’s agreement was to serve with no compensation, it was not a “contract of hire.” We do not agree.

The question of whether an employee-employer relationship exists within the meaning of the Workers’ Compensation Act is governed by the same principles that determine the issue under the common law. Farmer v. Ryder Truck Lines, 245 Ga. 734, 737, n. 2, 739 (266 SE2d 922) (1980). The main tests are whether the master is granted or assumes the right to control the time, manner, means, and method of executing the work, and whether the master has the right to discharge the servant. Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 (176 SE2d 925) (1970); see Mansfield Enterprises v. Warren, 154 Ga. App. 863, 864 (270 SE2d 72) (1980). The right to control may be inferred from the right to discharge. Golosh, supra. Another factor to be considered is whether the master receives a benefit from the claimant’s services. See Mansfield Enterprises, supra. Where one receives valuable services from another, and retains the right to control and discharge the one performing the services, an employment relationship will be inferred under the Act even though no compensation is paid. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 411-412 (224 SE2d 65) (1976). Under this test, Jackson was an employee because he was subject to discharge and control by the Authority’s Board of Commissioners, who would otherwise have had to pay $49,500 per year for comparable services.

The Authority cites several aged cases for the proposition that, though payment of compensation may be unnecessary to find a master-servant relationship for other purposes, payment is necessary to find an employment relationship under the Act. All these cases predate the Supreme Court of Georgia’s holding in Farmer, supra, that the test for whether one is an employee is the same under the Act as at common law. These cases also predate Howard Sheppard, Inc., supra, and Mansfield Enterprises, supra. The Authority also cites one recent case, North v. Floyd County Bd. of Ed., 212 Ga. App. 593 (442 SE2d 809) (1994). North does not hold that one must be paid to be an employee under the Act. Rather, the North majority affirmed the State Board’s finding that North was not an employee because there was some evidence she was not subject to the defendant’s control, and because the defendant received no significant benefit from her services. Id. at 594-595. The four North dissenters argued that the case should be remanded to the State Board because it had failed to enter factual findings on the level of control to which North had been subject, which the dissent considered to be the crucial question. Id. at 596. The opinion recites that North received no compensation, but neither the majority opinion nor the dissent accorded this fact significance. Id. at 593-594, 596.

We do not hold that compensation, or the lack of it, is irrelevant to the issue of whether one is an employee under the Act. We merely hold it is not controlling. “Payment of money may be corroborative of other facts indicating employment at a given time, but is not of itself conclusive.” Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 125 (197 SE 650) (1938). This approach is consistent with modern Georgia precedent and with the approaches of some other states that require one to work under a “contract of hire” or “contract of employment” to be considered an employee for workers’ compensation purposes. See Gourdin v. SCERA, 845 P2d 242, 244-245 (Utah 1992), and Gotto v. ARA Living Ctr., 570 S2d 1172, 1174-1175 (La. App. 1990). Because the Authority’s Board of Commissioners had the power to control and discharge Jackson, and his services were of significant economic value to the Authority, the superior court did not err in upholding the State Board’s finding that he was an employee.

Decided April 14, 1997

Before Judge Roach.

Drew, Eckl & Farnham, Lawrence L. Bennett, Jr., for appellants.

Mundy & Gammage, E. Lamar Gammage, Jr., for appellee.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A97A0488.
    MALONE v. THE STATE.
    (486 SE2d 57)
   Blackburn, Judge.

Antonio Malone was convicted of aggravated assault and aggravated battery in connection with the shooting of Carmenthia McGuire. On appeal, Malone contends the trial court erred in allowing evidence regarding a prior similar transaction. Malone also argues that the two offenses merged and that the court thus erred in sentencing him on both offenses.

1. Malone contends the court erred in allowing testimony regarding a prior similar transaction, arguing that the prior offense was not sufficiently similar to the offense for which he was charged.

The victim, McGuire, testified that he, Malone, and others were playing craps. After McGuire had won some money, a man known as “E” said that McGuire could “stand a robbing.” McGuire responded by stating, ‘You don’t know who the f[---] I am.” Malone then said, “F[---] who you is,” to which McGuire responded “F[ — ] you.” When McGuire turned around to resume the game, Malone shot him in the back of his leg. McGuire testified that Malone then put the pistol in McGuire’s face while the other man said “Go on and shoot him.” Malone then demanded that McGuire give him his money.

Malone testified that he shot McGuire in self-defense. He testified that McGuire came at him with a knife, and that he tried to shoot past McGuire but hit him in the leg when McGuire turned.

After Malone testified, the court allowed the state to present evidence of a prior similar transaction that had occurred one week before the shooting. The state presented evidence that Malone and some of his friends, including one known as Eric or “E,” became involved in a fight with another group at a nightclub when Malone refused to apologize after stepping on another man’s foot. When the other group left the nightclub, they fired shots from their car, an Acura, into a car containing Malone’s friends. Malone, who was not in the car, then fired several shots into the departing Acura. In a statement to police offered into evidence, Malone denied he was the shooter, although he admitted that it was his gun. However, the state presented eyewitness testimony that Malone was the shooter, and that no shots were being fired at Malone. The state introduced a certified copy of Malone’s guilty plea to a charge of aggravated assault in connection with the incident.

Malone contends the court erred in admitting the similar transaction evidence because the two offenses were not sufficiently similar. See Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991) (state must show, inter alia, that there is a sufficient connection between the independent offense or act and the crime charged so that proof of the former tends to prove the latter). This argument is without merit. The two instances were extremely close in time, occurring within a week of each other. There was evidence that both occurred in the presence of Malone’s friend “E.” In both instances, Malone shot at someone following an argument. Although Malone argues that the shooting in this case is dissimilar because it occurred in the context of an armed robbery, the evidence shows that Malone shot McGuire after McGuire made insulting statements to Malone. Only after the shooting did Malone demand McGuire’s money.

The similar transaction “tends to show [Malone’s] temper and his propensity to settle disagreements with a gun.” Willis v. State, 214 Ga. App. 479, 480 (448 SE2d 223) (1994). The fact that, in the earlier event, shots were fired by the other party does not render the offenses so dissimilar as to require exclusion; the shots were not fired at Malone, and the car was pulling away when Malone fired his shots. “[B]oth crimes illustrated [Malone’s] propensity to use firearms to avenge himself against someone who he thought had wronged him.” Edwards v. State, 261 Ga. 509, n. 2 (406 SE2d 79) (1991). “When sufficient basis exists to admit the evidence, dissimilarities such as . . . the precise igniting act do not destroy the basis for admitting evidence as a similar transaction.” Willis, supra at 480. Thus, the trial court did not err in allowing evidence regarding the similar transaction.

2. Malone also contends that the counts for aggravated battery and aggravated assault were based upon the same facts, and that the two offenses therefore merged. Accordingly, Malone argues, the court erred in sentencing him on both counts.

This enumeration is without merit. The indictment charged Malone with aggravated battery in that he shot McGuire in the leg with a handgun. The indictment further charged Malone with aggravated assault in that he “did make an assault on the person of Carmenthia McGuire with a handgun.” There was evidence that, after shooting McGuire, Malone held the gun to his head and demanded that McGuire hand over his money. These actions, occurring after the completion of the aggravated battery, constituted a separate crime, for which the jury was authorized to find Malone guilty of aggravated assault. “Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts. . . . Thus, the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the same conduct within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand.” (Punctuation omitted.) Knight v. State, 190 Ga. App. 87, 88 (2) (378 SE2d 373) (1989). See also Jones v. State, 161 Ga. App. 620, 622 (1) (288 SE2d 795) (1982).

Decided April 14, 1997.

Before Judge Castellani.

William C. Puckett, Jr., for appellant.

J. Tom Morgan, District Attorney, Jacqueline S. Hardy, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0290.
    MARTIN v. NORTH AMERICAN VAN LINES, INC. et al.
    (485 SE2d 815)
   Blackburn, Judge.

Herbert L. Martin, Jr. sued North American Van Lines, Inc. (North American), Glaze Moving & Storage Company (Glaze), and Lynco, Inc. d/b/a Central Maine Moving & Storage (Lynco) for breach of contract, fraud, and intentional infliction of emotional distress in connection with the move of his household goods. Arguing that Martin’s claims were preempted by the Carmack Amendment, 49 USC § 14706 (formerly 49 USC § 11707), the defendants moved for summary judgment. The trial court granted the motion, and Martin appeals.

Martin executed a service agreement with Lynco, an agent of North American, for the move of Martin’s belongings from Bucks Harbor, Maine, to Dahlonega, Georgia. Pursuant to this agreement, Martin received a guaranteed, not-to-exceed price of $3,223.10 for the move. This price was based upon a specified number of items shipped and a certain weight for those items. Upon arriving in Dahlonega, Martin was informed that he would have to pay additional sums for the move, as the number of items shipped and the weight of those items had exceeded the figures used to set the guaranteed price. Martin then sued for breach of the service agreement for failure to honor the guaranteed price. He also claims he was defrauded, and claims the defendants’ actions constituted intentional infliction of emotional distress.

1. Relying upon Moffitt v. Bekins Moving & Storage, 818 FSupp. 178 (N.D. Tex. 1993), the trial court found that all of Martin’s state law claims were preempted by the Carmack Amendment, 49 USC § 14706. The Carmack Amendment establishes the liability of motor carriers and freight forwarders who operate in interstate commerce under receipts and bills of lading. Because the parties in this case had a bill of lading, the trial court found, based upon Moffitt, that all of Martin’s state law claims were preempted by the Carmack Amendment.

Although Moffitt is factually similar, “the United States Supreme Court is the only federal court whose opinions this court is bound to follow.” Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (f) (464 SE2d 390) (1995). Furthermore, as there is a split of authority in the federal courts regarding preemption and the Carmack Amendment, see Sokhos v. Mayflower Transit, 691 FSupp. 1578 (D. Mass. 1988) (finding certain claims not preempted by the Carmack Amendment), we decline to decide this case on the basis of Moffitt.

Instead, it is clear from the Carmack Amendment itself that liability is imposed on a carrier only “for the actual loss or injury to the property” caused by the carrier. (Emphasis supplied.) 49 USC § 14706 (a) (1). Here, Martin is clearly not suing for any loss or injury to his property. The Carmack Amendment is therefore inapplicable, and it cannot preempt any of Martin’s claims. See Clark v. Messer Indus., 222 Ga. App. 606 (475 SE2d 653) (1996) (breach of contract claim not preempted by Carmack Amendment). The trial court therefore erred in granting summary judgment on this basis.

2. The inapplicability of the Carmack Amendment notwithstanding, a judgment right for any reason will be affirmed on appeal. See Schneider v. Tri Star Intl., 223 Ga. App. 85 (1) (476 SE2d 846) (1996). We must therefore conduct a de novo review of the evidence in order to determine whether summary judgment was appropriate on any of Martin’s claims. See Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996). “The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact and that undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Id.

(a) Summary judgment was appropriate on Martin’s claim for breach of contract. Although he argues that North American breached the contract by charging him more than the guaranteed, not-to-exceed price, the plain language of the service agreement indicates that “the guaranteed price charge includes only those quantities and services indicated as guaranteed.” It also states that “additional services requested or required and not guaranteed will be documented and will be added to the guaranteed price.” The quantity indicated as guaranteed was 188 items. However, the uncontroverted evidence shows that Martin actually moved approximately 288 items and exceeded the weight limit contained in the contract by 4,000 pounds. The guaranteed price was therefore qualified by the language of the service agreement itself, and North American was within its rights when it charged Martin for the additional items. Martin having presented no other evidence of how North American breached the contract, summary judgment on this issue was therefore proper.

(b) Martin also claims he was defrauded due to misrepresentations regarding the guaranteed price. In support of this claim, he states that although he told a Lynco representative that he would have more than 188 items, the representative still assured him that he could get the $3,223.10 guaranteed price. He contends that the Lynco representative intentionally ignored the volume of goods to be shipped in order to “lowball” him into signing the service agreement, then raised the price on him after the move. The defendants deny these allegations.

“[Traditionally two actions have been available to a buyer in which to sue a seller for alleged misrepresentation in the sale. The buyer could affirm the contract and sue in contract for breach or he could seek to rescind the contract and sue in tort for alleged fraud and deceit.” City Dodge v. Gardner, 232 Ga. 766, 768 (208 SE2d 794) (1974). “If the defrauded party elects to affirm the contract and sue for damages for fraud and deceit he is bound by the contract provisions.” (Citation and punctuation omitted.) Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 542 (2) (b) (478 SE2d 382) (1996).

In this case, Martin elected to affirm the service agreement and sue for its breach. He is therefore bound by the agreement’s provisions. As discussed above, the agreement provided that “the guaranteed price charge includes only those quantities and services indicated as guaranteed,” and the quantity indicated as guaranteed was 188 items. The agreement also stated that “additional services requested or required and not guaranteed will be documented and will be added to the guaranteed price.”

As the alleged misrepresentations upon which the fraud claim is based contradict these express provisions of the agreement, Martin cannot assert that he reasonably relied upon such misrepresentations. See, e.g., Stricker v. Epstein, 213 Ga. App. 226, 227 (1) (444 SE2d 91) (1994) (dealing with an “entire agreement” clause, stating, “the plaintiff cannot simultaneously affirm a contract which states that no representations were made and allege fraud based on such representations”). For this reason, his fraud claim must fail, and the trial court properly granted summary judgment to the defendants on this issue.

(c) Martin also sued for intentional infliction of emotional distress. He claims that a North American truck driver was rude and hostile to him, and that the driver challenged him to engage in a fist fight. Martin also claims that the defendants withheld his belongings upon arrival in Dahlonega, right before Christmas, and refused to unload the moving truck until he paid them more money. As a result of this behavior, Martin states that he has suffered from stomachaches, indigestion, fatigue, and irregular sleep.

In order to prevail on a claim for intentional infliction of emotional distress, a defendant’s conduct must be “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Citation and punctuation omitted.) Turnbull v. Northside Hosp., 220 Ga. App. 883, 884 (2) (470 SE2d 464) (1996). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Vidrine v. American Professional Credit, 223 Ga. App. 357, 360 (3) (477 SE2d 602) (1996).

Although the uncontroverted evidence shows that the driver was rude to Martin, the driver’s actions did not rise to the requisite level of egregiousness to sustain this portion of Martin’s claim. “[L]iability for intentional infliction of emotional distress clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Citation and punctuation omitted.) Turnbull, supra at 884-885 (2).

Similarly, Martin’s contentions regarding the defendants’ refusal to unload the truck until he paid more than the guaranteed price does not state a cause of action for intentional infliction of emotional distress. As set forth above, Martin moved over 4,000 pounds more household goods than included in the guaranteed price calculation, but refused to pay for the additional belongings moved. Under the bill of lading, when Martin refused to pay, the defendants were authorized to sell his property to satisfy a certain portion of the overage. Instead of exercising this right, however, the defendants agreed to accept the guaranteed price plus ten percent of the disputed additional sum under protest, unload Martin’s belongings, and bill for the remainder. Inasmuch as the service agreement clearly provided that Martin would be liable for any charges over the guaranteed price which were requested or required, the defendants’ actions in this regard did not exceed all possible bounds of decency.

Decided April 15, 1997.

Before Judge Wright.

Snellings & Ferguson, Stanley T. Snellings, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Mary C. Cauthen, for appellees.

Martin’s separate assertion that the defendants withheld his belongings an unreasonable amount of time near Christmas is not supported by the record. The evidence indicates that Martin closed on his house on December 20, and his belongings were delivered at 8:00 a.m. the following morning. Martin having failed to present a genuine issue of material fact regarding the defendants’ intentional infliction of emotional distress, summary judgment on this claim was also appropriate.

Judgment affirmed.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0657.
    MERK v. DeKALB COUNTY.
    (486 SE2d 66)
   Blackburn, Judge.

Rita Merk appeals from the trial court’s grant of summary judgment in favor of DeKalb County, Georgia, in her suit for breach of contract. After a sewer line flooded part of her home, Merk sued DeKalb County. She claimed that she and DeKalb County were parties to a contract for water and sewer service, and that by flooding her home with sewage, DeKalb County breached that contract. We affirm the grant of summary judgment.

The facts show that Merk is a DeKalb County resident and property owner, and that DeKalb County provides Merk with water and sewer services. Merk pays a fee for these services. On September 6, 1994, Merk’s drain pipes flooded her home with sewage. DeKalb County responded to the flooding the same night, rectified the sewer problem, and cleaned up the sewage which had entered Merk’s home. When the county refused to provide further relief, Merk instituted this suit. Her sole cause of action is breach of contract.

1. In order to avoid the bar of sovereign immunity and maintain an action against a county for breach of contract, a plaintiff must show that the contract sought to be enforced is in writing. See Ga. Const. 1983, Art. I, Sec. II, Par. IX; see also Crider v. Zurich Ins. Co., 222 Ga. App. 177 (2) (474 SE2d 89) (1996) (sovereign immunity extends to counties). A plaintiff must also show that the written contract has been entered on the minutes of the county governing authority. See OCGA § 36-10-1.

Attempting to come within those provisions, Merk argues that the Code of DeKalb County constitutes a written contract for sewer service between her and the county. She cites § 25-81 of Chapter 25 of the Code in support of this position. That section reads in pertinent part: “Persons desiring water service shall file application with the [public works] department and sign a standard contract form prior to receiving service. . . . The use of water service binds a person as if such person had signed a contract.” While Merk acknowledges that this language pertains to water and not sewer service, she maintains that it creates an enforceable written contract for sewer service.

Merk’s claim, though couched in contract, actually sounds in tort. We have held that when a plaintiff’s action sounds in tort and not contract, even though the action is brought as a contractual one, no constitutional waiver of sovereign immunity results. See Burton v. DeKalb County, 209 Ga. App. 638, 639 (434 SE2d 82) (1993). In Burton, we held that plaintiff’s slip and fall suit against a county for negligent failure to maintain the building in which she worked, though couched in contract based upon a written lease agreement for the building, sounded in tort. As a result, sovereign immunity was not waived. Id. at 639. Therefore, under the reasoning of Burton, there is no constitutional waiver of sovereign immunity in this case, and Merk’s claims must fail.

Furthermore, even presuming arguendo that this action is contractual, the Code of DeKalb County does not constitute a written contract as contemplated by Ga. Const. 1983, Art. I, Sec. II, Par. IX. Our analysis in this respect is guided by Bd. of Regents &c. of Ga. v. Tyson, 261 Ga. 368 (404 SE2d 557) (1991). In that case, the plaintiff sued a hospital operated by the Board of Regents after she was assaulted by a fellow patient. Plaintiff asserted that her claim was not barred by sovereign immunity because all her hospital records constituted a written contract between her and the hospital for her care, and the hospital had breached that contract by allowing another patient to assault her.

The Supreme Court held that, even taken together, the various hospital records did not contain all the necessary terms of a contract and were not signed contemporaneous writings. Id. at 369. The court further noted the absence of “ ‘consideration moving to the contract,’ ” and concluded that “[wjhile there may have been a contract between the parties arising from their conduct, that contract is not a written contract. . . . As a consequence, we must conclude as a matter of law that this is not an action based on a written contract.” (Footnote omitted.) Id. at 369-370.

The same reasoning applies to this case. Taking the sections of the DeKalb County Code on water and sewer together, as Merk would have us do, it is clear that the Code does not contain all the necessary terms of a contract. It is a regulatory body of law containing penalties for non-compliance, and as it relates to Merk, it lacks consideration. Nor is it a collection of signed contemporaneous writings which can be combined to create an enforceable obligation. While, as in.Tyson, these parties may have had an implied contract, an implied contract will not support a waiver of sovereign immunity under the provisions of the Georgia Constitution, and Merk has failed to show the existence of a written contract. See Ga. Const. 1983, Art. I, Sec. II, Par. IX.

Decided April 16, 1997

Before Judge Majette.

Sidney L. Moore, Jr., for appellant.

The evidence is also uncontroverted that no contract naming Rita Merk appears on the minutes of the DeKalb County Board of Commissioners as required by OCGA § 36-10-1. As we have held that the Code itself does not constitute a written contract between Merk and DeKalb County, Merk’s argument that the Code itself appears upon the minutes of the Board of Commissioners lends no support to her position.

Merk’s reliance upon Zepp v. Mayor &c. of Athens, 180 Ga. App. 72 (348 SE2d 673) (1986), is misplaced. In that case, which concerned a dispute over the cost of water purchased by plaintiffs, we specifically held that no express contract existed between the parties for the provision of water. We also held that any contract the parties did have was both implied and voluntary. Id. at 75. Because Merk needs a written and not implied contract in order to prevail, and because her association with DeKalb County’s sewer services is mandated and not voluntary, Zepp provides no authority for her position that she and DeKalb County had an enforceable written contract.

Merk chose not to pursue a nuisance claim, see DeKalb County v. Orwig, 261 Ga. 137 (402 SE2d 513) (1991), and she is therefore bound by the action she brought. As Merk has failed to show the existence of a written contract, DeKalb County was entitled to sovereign immunity on her claims, and the trial court properly granted summary judgment for the county on this issue.

2. Merk enumerates as error the trial court’s refusal to allow her to withdraw certain admissions. Our holding in Division 1 does not rely upon these admissions and is dispositive of the case. We therefore need not address this enumeration.

Judgment affirmed.

Pope, P. J., and Johnson, J, concur.

Jonathan A. Weintraub, Susan C. Mullís, Bernard Knight, Joan F. Roach, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A0883.
    NUCKOLS v. NUCKOLS.
    (486 SE2d 194)
    Decided April 16, 1997.
    Before Judge Clark.

      William L. Reilly, for appellant.

      Richard L. Yancey, for appellee.
   Birdsong, Presiding Judge.

After this Court’s grant of authority to appeal under OCGA § 5-6-35 (a) (10), Juanita L. Nuckols appealed the trial court’s award of $1,500 in attorney fees to Jon Nuckols in a change of custody case. The record shows that the trial court dismissed Juanita Nuckols’ petition to change custody and immediately awarded attorney fees upon an adjudication of the counterclaim for attorney fees contained in Jon Nuckols’ answer. Jon Nuckols has not filed a brief in this appeal. Held:

Although Jon Nuckols’ answer did not specify the basis for seeking attorney fees, as a defendant he was not entitled to fees under OCGA § 13-6-11 and his request did not satisfy the requirements of OCGA § 51-7-81. Therefore, it must have been an attempt to seek relief under OCGA § 9-15-14. A request by a prevailing party for attorney fees under OCGA § 9-15-14, however, must be brought by motion and no later than 45 days after the entry of final judgment. OCGA § 9-15-14 (e). As the request was not in the proper form, the trial court should not have entertained it. Further, the order violates OCGA § 9-15-14, because it fails to specify the conduct upon which the award of attorney fees was based. Aycock v. Re/Max of Ga., 221 Ga. App. 587 (472 SE2d 137).

Accordingly, the award of attorney fees is vacated and the case remanded to the trial court for further proceedings on the issue of attorney fees. Porter v. Felker, 261 Ga. 421 (405 SE2d 31).

Judgment vacated with direction.

Ruffin and Eldridge, JJ., concur.


author: Judge Harold R. Banke.

text:
    A97A0937.
    BOOMER’S, INC. v. WHITNEY et al.
    (486 SE2d 59)
   Judge Harold R. Banke.

This case arose after a patron at Boomer’s, Inc. (“Boomer’s”), a tavern, shot Robert Whitney in the face. Whitney sued Boomer’s, alleging that it failed to exercise reasonable care for its customers in that it knew the patron was violent, but permitted him on the premises because he spent a lot of money. Boomer’s sought representation from its insurer, Northwestern National Insurance Company (“Northwestern”), which refused to defend the case based on an endorsement added to the policy on renewal excluding cases based on assault and battery. Boomer’s then commenced this third-party action against Northwestern. The trial court granted Northwestern’s motion for summary judgment and denied Boomer’s motion. On appeal Boomer’s enumerates three errors. Held:

1. The undisputed evidence shows that the assault and battery exclusion was in effect when the cause of action arose. The record shows that Boomer’s insurance agent, Charles Bannister, procured the renewal policy at issue at the request of Boomer’s owner, Marge Smith. After Bannister received a reminder that Boomer’s liability policy was about to expire, he discussed renewing the policy with Northwestern’s agent and learned that the assault and battery exclusion had been added, notwithstanding the fact that the premium remained the same. Bannister then informed Smith of this change before renewing the policy at Smith’s request.

Smith does not deny that she received notice of the exclusion. Moreover, Bannister testified that Northwestern delivered the renewal policy to his agency for subsequent delivery to the customer. The declarations pages of the renewal documents clearly show the changes in the policy. The forms and endorsement provision clearly states that an assault and battery exclusion was added to the coverage part. The endorsement containing the exclusion was áttached to the policy. In addition, the confirmation of binder lists assault and battery as an exclusion.

In light of this evidence, the trial court’s finding that the exclusion was in effect was appropriate. “A renewal insurance policy, as [with] the original, must be accepted by both parties before there is a completed contract.” Phillips v. Southern Home Ins. Co., 121 Ga. App. 126, 127 (173 SE2d 123) (1970); see Parris & Son, Inc. v. Campbell, 128 Ga. App. 165, 168 (2) (196 SE2d 334) (1973). Smith’s actions in instructing her agent to procure the renewal with knowledge of the proposed exclusion manifested her acceptance of the terms of the renewal policy on Boomer’s behalf. See Morgan v. Ga. Gen. Ins. Co., 210 Ga. App. 614, 615 (436 SE2d 782) (1993); compare Pennsylvania Millers Mut. Ins. Co. v. Dunlap, 153 Ga. App. 116, 118 (1) (264 SE2d 483) (1980) (exclusion ineffective where insured had no knowledge of it). Notwithstanding Boomer’s argument to the contrary, Smith’s affirmative, written consent to the exclusion was not required to demonstrate her acceptance. See Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422-423 (373 SE2d 515) (1988). We likewise reject Boomer’s contention that the new agreement lacked consideration inasmuch as the record shows that as Boomer’s previous policy was about to expire, Smith agreed to pay the same premium on her renewal policy despite her knowledge of the additional exclusion and did so. Compare Patterson v. Cotton States Mut. Ins. Co., 221 Ga. 878, 882-883 (148 SE2d 320) (1966) (insurer’s uncommunicated intent to cancel insurance or increase the premium was void for lack of consideration); compare Ga. Baptist &c. v. Essex Ins. Co., 207 Ga. App. 346, 347 (1) (427 SE2d 798) (1993) (insurer’s unilateral reduction in coverage while policy was in force was inapplicable).

Decided April 16, 1997

Before Judge Jackson.

Michael L. Wetzel, for appellant.

Drew, Eckl & Farnham, James M. Poe, Suzanne V. Sanders, Guy J. Notte, for appellees.

2. The assault and battery exclusion applies to the facts in this case, notwithstanding the complaint’s allegations of premises liability. In Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37, 38 (430 SE2d 33) (1993) (physical precedent only), this Court interpreted the identical exclusionary language to bar coverage in a premises liability case arising from an assault and battery. Accord Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995). In the instant case, the underlying controversy on which the premises liability action is based is assault and battery. The reasoning in Al Who applies equally here. Accordingly, the assault and battery exclusion defeats Boomer’s claim for coverage.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       Apparently both Boomer’s and Northwestern National Insurance Company (“Northwestern”) were misnamed in this action. Boomer’s does business as Boomer’s Place. Northwestern styles itself as Northwestern National Casualty Company.

       The exclusion at issue states: “It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery. .. .”


text:
    A97A0643.
    LUNDY v. STATE OF GEORGIA.
    (482 SE2d 516)
   Blackburn, Judge.

Ralph C. Lundy, Jr. appeals the trial court’s order granting forfeiture of $1,181 pursuant to OCGA § 16-13-49 (d) (6). On appeal, Lundy contends the forfeiture violates the excessive fine clause and prohibition against double jeopardy contained in the United States Constitution.

1. In his first enumeration of error, Lundy contends the forfeiture violates the excessive fine clause contained in the Eighth Amendment to the United States Constitution.

In Thorp v. State of Ga., 264 Ga. 712, 717 (450 SE2d 416) (1994), the Supreme Court of Georgia established a three-factor test to determine whether a civil forfeiture violated the Eighth Amendment, to wit: (1) Compare the inherent gravity of the offense with the harshness of the penalty; (2) Evaluate “whether the property was close enough to the offense to render it ‘guilty’ ”; and (3) Determine “ ‘whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.’ ” “Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous.” Thorp v. State of Ga., 217 Ga. App. 275, 276 (2) (457 SE2d 234) (1995).

In the present case, after a hearing, the trial court determined that the currency at issue was used in the purchase of cocaine, and that such currency was found in close proximity to more than one gram of cocaine which was packaged for resale. The record does not contain a transcript of the hearing; therefore, “we must assume the ruling of the trial court is supported by the evidence.” (Citations and punctuation omitted.) Grisson v. State, 208 Ga. App. 679, 680 (431 SE2d 468) (1993). As we cannot say the trial court’s findings of fact were clearly erroneous, its determination will not be reversed.

2. In his second enumeration of error, Lundy contends the forfeiture proceeding violated the prohibition against double jeopardy because he had previously been prosecuted for the underlying crime of possession of cocaine. This argument has been decided adversely to Lundy in United States v. Ursery, 518 U. S. _ (116 SC 2135, 135 LE2d 549) (1996), wherein the United States Supreme Court determined that “civil forfeitures ... do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause.” 135 LE2d at 557. See cf. Durfee v. State, 221 Ga. App. 211 (471 SE2d 32) (1996) (no application of double jeopardy when no other judgment rendered at the time of conviction); Murphy v. State, 219 Ga. App. 474 (465 SE2d 497) (1995) (double jeopardy applies only to subjecting defendant to criminal process twice, and civil forfeiture proceeding is not a criminal prosecution); Waye v. State, 219 Ga. App. 22 (464 SE2d 19) (1995) (criminal proceedings not barred by double jeopardy due to previous forfeiture proceeding).

Decided February 28, 1997

Reconsideration denied April 17, 1997

Before Judge Wood.

Ralph C. Lundy, Jr., pro se.

Ralph L. Van Pelt, Jr., District Attorney, Bruce E. Roberts, Michael J. Moeller, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge. Ruffin, Judge,

text:
    A97A0058.
    CARTER v. THE STATE.
    (486 SE2d 79)
   Birdsong, Presiding Judge.

Latonya Carter was indicted for the crime of reckless conduct, for throwing bleach onto another person’s face and shoulder. The trial court denied her motion for directed verdict of acquittal under OCGA § 17-7-170, and the jury convicted her of the offense. She contends here that she was entitled to a directed verdict of acquittal because at arraignment on September 25, 1995, her attorney wrote her demand for a speedy trial on the indictment in the presence of the assistant district attorney. In a two-inch-by-four-inch square space evidently on the back of the indictment, where the charge is designated to be stated and is stated as “reckless conduct,” appellant’s counsel wrote: “The defendant requests a speedy jury trial pursuant to OCGA Section 17-7-170 [on] 9-25-95 [signed by counsel].” Held:

Appellant’s speedy trial demand was not properly served on the prosecutor. OCGA § 17-7-170 (a) specifically requires that “the demand for trial shall be served on the prosecutor.”

The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been a strict compliance with the statute. Grier v. State, 198 Ga. App. 840, 841 (403 SE2d 857); Hanson v. State, 196 Ga. App. 589, 590 (396 SE2d 510). The law requires judicially compelled cessation of prosecution of a criminal offense as an extreme sanction for the State’s tardiness in proceeding (Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762)), when the defendant has properly filed a demand for speedy trial. OCGA § 17-7-170 (b). And, because of the severity of this sanction, the one who calls for it must file with the court a clear demand to be tried within the next succeeding term of court, Ferris, supra at 731, and must alert the prosecutor by service of a copy of the demand, as the statute requires.

In Maddox v. State, 218 Ga. App. 320, 322 (1) (461 SE2d 286) we held that a defendant seeking acquittal under OCGA § 17-7-170 must “demonstrate strict compliance with the demand statute.” The statute requires service on the prosecutor. In Maddox, we held that merely sending a demand to the trial court and having it filed in the clerk’s office constituted insufficient service on the State. It is also insufficient “service” on the prosecutor that the defendant, as in this case, writes a demand for speedy trial on the indictment or some other paper in the presence of the prosecutor or his agent. Such an act does not ensure that the prosecutor actually receives legal notice of the demand for speedy trial. Without actual formal legal service and a certificate of service, there is nothing to guarantee that the demand which appellant’s attorney wrote on the court document was seen by the prosecutor, even if it was written in his presence. Moreover, considering the broad access to court records, there is nothing to guarantee the date on which it was written. Actual notice is what is required. Merely writing a demand on a court document does not constitute actual notice to the prosecutor. It is contemplated that service will actually be “effected” on the prosecutor. See State v. Bostwick, 181 Ga. App. 508, 509 (352 SE2d 824). We think also that where a defendant seeks the extreme sanction of directed verdict of acquittal and discharge under OCGA § 17-7-170, the strict statutory requirement that he “serve” his demand “on the prosecutor” requires at least the formality required of the prosecutor in serving the defendant with notice of arraignment. See OCGA § 17-7-91 (a).

Inasmuch as appellant did not strictly comply with the express statutory requirements of OCGA § 17-7-170 by serving the prosecutor with a demand for speedy trial, the trial court did not err in denying appellant the extreme sanction of a directed verdict of acquittal and discharge in this case. It therefore becomes unnecessary to consider whether the special term of court counted as a next following term of court for the purposes of acquitting the defendant pursuant to a proper demand for speedy trial.

Judgment affirmed.

Eldridge, J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

While I agree with the majority’s analysis and judgment, I write separately to point out certain pertinent facts which I believe gives more validity to the Court’s opinion in this case. The majority notes that Carter’s attorney wrote her demand for a speedy trial on the indictment “in the presence of the assistant district attorney.” However, while the assistant district attorney may have been present at Carter’s arraignment, there is no evidence whatsoever that the assistant district attorney knew of the demand for a speedy trial or was in the immediate vicinity when Carter’s attorney wrote the demand for. a speedy trial on the indictment.

Decided April 17, 1997

Before Judge Whalen.

Michael B. King, for appellant.

William T. McBroom III, District Attorney, Chad D. Graddy, Assistant District Attorney, for appellee.

The prosecutor in the present case denied any knowledge of the demand for a speedy trial and stated that he learned of the demand only when the case was placed on the calendar. When questioned whether the demand for a speedy trial was served on the prosecutor, Carter’s attorney refused to directly answer the question and merely responded that the prosecutor “was present during arraignment.” Thus, pretermitting whether the prosecutor must be personally served with the demand for a speedy trial or whether actual knowledge of such a demand will suffice, it is clear that the prosecutor in the present case did not have actual knowledge of the speedy trial demand. Accordingly, I concur in the majority’s opinion.


author: Eldridge, Judge.

text:
    A97A0755.
    SAPP v. STATE FARM FIRE & CASUALTY COMPANY.
    (486 SE2d 71)
   Eldridge, Judge.

This is a declaratory judgment proceeding initiated by appellee State Farm Fire & Casualty Company to determine its obligation to provide a defense or coverage to Don W. Day Construction Company, Inc. and/or Don Day (“defendants Day”) and third-party beneficiary rights of appellant Gerald L. Sapp, M.D. under a Contractor’s Policy No. 91-33-9363-6 (“State Farm policy”). The litigation underlying this declaratory judgment proceeding was brought by appellant Sapp against Don Day and Bruce Hardwood Floors, a division of Triangle Pacific Corporation (“Bruce Hardwood Floors”); Bruce Hardwood Floors is not a party to the declaratory judgment action from which this appeal arises. The underlying civil action is premised upon allegedly negligent repairs and/or renovations made by defendants Day to appellant’s home in Tifton, Tift County, Georgia.

On or about December 1, 1991, appellant employed defendants Day to conduct repairs and renovations to his home. As part of these renovations, defendants Day made repairs to the floor joist and installed approximately 2,800 square feet of hardwood flooring throughout the home. A portion of the work consisted of preparation of the crawl space, installation of drain tile, removal of water-damaged material under the home, and preparation of the home to provide adequate ventilation and moisture barriers. This particular work was to be performed to protect the hardwood flooring from a moisture problem under the home.

A few weeks after installation, the hardwood floor began to “cup” or “warp,” and eventually the hardwood floor had to be removed. On February 22, 1994, appellant filed a civil action, which was the underlying litigation to the case sub judice, against defendants Day and Bruce Hardwood Floors. Appellant sought recovery for the negligent installation of the hardwood floor, negligence in recommending what type of flooring should be installed, the costs of removing and replacing the flooring, and the costs of placing his home in the condition it was prior to removing and replacing the hardwood flooring.

On April 29, 1994, appellee filed this action for declaratory judgment, and on August 24, 1994, appellee filed a motion for summary judgment, which was granted by the trial court. It is from the trial court’s order granting summary judgment that appellant Sapp appeals.

Appellant’s first enumeration of error asserts that the trial court erred in granting summary judgment in favor of the appellee. Appellant’s enumerations of error 2 through 5 are sub-allegations of this primary enumeration and delineate the reasons the trial court erred in granting summary judgment in favor of the appellee. We affirm the trial court’s ruling and address each of the appellant’s sub-allegations as follows:

(a) Appellant asserts that the trial court erred in holding that defendants Day “did not have a reasonable expectation of coverage due to the ambiguities created by appellee in its policy of insurance issued to him.” We disagree.

“In Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. [Cit.]” Richards v. Hanover Ins. Co., 250 Ga. 613, 614 (299 SE2d 561) (1983). “Although the provisions of an insurance policy will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured, if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” (Citations and punctuation omitted.) Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 441 (1) (373 SE2d 217) (1988).

The declaration pages of the State Farm policy describe the “schedule” or “description” of the various construction operations of the named insured, Don W. Day Construction Company, Inc., and identifies the premiums by category of contractor’s operations associated with the risks insured against. Such declaration pages provide that appellee “will provide the insurance described in the policy in return for the premium and compliance with all applicable provisions of this policy,” and thereafter, on two pages entitled “Supplemental Declarations, Schedule of Contractors Operations 05-01-92,” a description of the operations of the insured is set forth in some detail.

“It is well established that under the rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive.” (Citations and punctuation omitted.) Auto-Owners Ins. Co., supra at 441 (1). The State Farm policy contains the following exclusions to coverage: “this insurance does not apply . . . 11. to property damage to ... e. that particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the property damage arises out of those operations; or f. that particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it[;] [tjhis part of this exclusion does not apply to property damage included in the products-completed operations hazard[;] ... 12. to property damage to your product arising out of it or any part of it; 13. to property damage to your work arising out of it or any part of it and included in the products-completed operations hazard[;] ... 14. to property damage to impaired property, or property that has not been physically injured, arising out of: a. a defect, deficiency, inadequacy or dangerous condition in your product or your work; or b. a delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms[;]. . . 15. to damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: a. your product; b. your work; or c. impaired property; if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy, or dangerous condition in it. . . .” The language of exclusions 11. e., 11. £, 12, 13, 14, and 15 is clear and unambiguous, and such exclusions are what are generally known as “business risk” exclusions that are designed to exclude coverage for defective workmanship by the insured builder causing damage to the construction project itself. Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga. App. 220, 223 (355 SE2d 130) (1987); Elrod’s Custom Drapery &c. v. Cincinnati Ins. Co., 187 Ga. App. 670 (371 SE2d 144) (1988). The declaration pages do not purport to modify or replace any of the “business risk” exclusions of the State Farm policy. Clearly, there are no genuine ambiguities in the declaration pages of the State Farm policy or in the “business risk” exclusions of the State Farm policy, and there could not be any “objectively reasonable” expectation on the part of the insured that coverage for defective workmanship by the insured builder which caused damage to the construction project itself was provided under the policy. See Gary L. Shaw Builders, supra. Therefore, this enumeration of error is without merit.

(b) Appellant alleges that the trial court erred in holding that an ambiguity did not exist regarding the definition of “your work” under the terms of the policy, as it is applied in this litigation.

“Your work” is defined under the State Farm policy as: “(1) work or operations performed by you or on your behalf; and (2) materials, parts or equipment furnished in connection with such work or operations.” It is undisputed that the “work” performed by defendants Day included the investigation of and repairs to the floor joists and structures supporting the floor and frame for the appellant’s house, preparation of the crawl space, installation of drain tile, removal of water-damaged material from under the house, preparation of the home to provide adequate ventilation and moisture barriers regarding the moisture problem under the house, and installation of approximately 2,800 square feet of hardwood flooring throughout the home. In addition, appellant, in his complaint in the underlying litigation, specifically asserted negligence against defendants Day for supplying materials to appellant while knowing of a moisture problem which existed under appellant’s house; failing to warn appellant of the problems which could result when the flooring material furnished to appellant was exposed to moisture; installing the flooring without adequately protecting it from the moisture; and using flooring material that was defective and not suitable for the purpose for which it was intended and represented to be suitable. It is apparent that defendants Day’s work was everything performed by defendants Day regarding appellant’s new oak floor,, and appellant’s argument that the only “work” that would fall under the “business exclusions” of the State Farm policy would be the failure of defendants Day to address and correct the water problem under appellant’s house prior to installing the hardwood floor is without merit.

There are two kinds of risks that are incurred by a contractor. “The first is the business risk borne by the contractor to replace or repair defective work to make the building project conform to the agreed contractual requirements. This type of risk is not covered by the [State Farm] policy, and the ‘business risk’ exclusions in the policy make this clear. The second is the risk that the defective or faulty workmanship will cause injury to people or damage to other property. Because of the potentially limitless liability associated with this risk, it is the type for which CGL [commercial general liability] coverage is contemplated. While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting. The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage applicable under the CGL policy is for tort liability for injury to persons and damage to other property[,] and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.” (Citations and punctuation omitted; emphasis supplied.) Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga. App. 508, 511 (417 SE2d 197) (1992).

A simple examination of appellant’s complaint and his affidavit attached to his response to appellee’s motion for summary judgment makes it clear that all his claimed damages relate directly to the cost of repairing or replacing the alleged negligent work of defendants Day, i.e., the failure to correct the moisture problem and the negligent installation of the hardwood floors. Any damages to the house during the removal of the hardwood floor and the restoration of the house to the condition it was prior to defendants Day’s work were merely incidental to his claimed damages that defendants Day negligently performed the services for which appellant contracted. See Reliance Ins. Co. v. Povia-Ballantine Corp., 738 FSupp. 523 (S.D. Ga. 1990).

(c) Appellant also alleges that the trial court erred in holding that the consequential damages alleged in the negligent actions of defendants Day did not fall within the parameters of Glens Falls Ins. Co., supra. We disagree.

On the issue of consequential damages, the case sub judice can be distinguished factually from Glens Falls Ins. Co. In Glens Falls Ins. Co., “[t]he complaint by the developer is not that Donmac failed to construct the project in a workmanlike manner according to the specifications provided to it, but that it negligently built part of the project on federally protected wetlands. . . . The suit proceeds from the premise that the project has been built, the damage done, and the developer is entitled to reimbursement for damages incurred as a result of the alleged negligence. In seeking recovery for expenses of restoration and preservation of damaged wetlands at the project site, purchase and restoration of off-site wetland areas, elimination of certain encroaching areas of the project, and the resulting diminution in the fair market value of the property, the developer seeks recovery for damages over and above the scope of the benefits it contracted for with Donmac. Compare Reliance Ins. Co. v. Povia-Ballantine Corp., [supra] (discussing Gary L. Shaw, supra, and Elrod’s, supra, and finding no coverage under [the] CGL policy where all the claimed damages related directly to repairing or replacing the insured’s defective work); Elrod’s, supra at 671 (no coverage under the CGL policy because damages sought arose exclusively from insured’s faulty workmanship). For example, in Reliance Ins. Co. the damage sought was return of the purchase price and related expenses on a condominium defectively constructed by the insured. In Elrod’s the insured manufactured and sold defective fabric to a business which sued the insured for damages, including lost profits, after its customers rejected the fabric. In Gary L. Shaw the contractor, who was insured under a CGL policy, was sued for the correction of defects in the insured’s construction of a house. In the three previous cases, in which no CGL coverage was found, the damages sought against the insureds were all directly related to correcting or repairing their deficient work or product. In this sense the damages were calculated to make good the contractual promises made by the insureds to the plaintiffs and were within the scope of those contractual expectations. By contrast, the damages sought by the developer against Donmac are not directly related to the cost of repairing and replacing deficiencies in Donmac’s work on the project — and therefore excluded from the CGL coverage as business risks — but rather are claims beyond the scope of the contractual expectations for additional tort damages caused by the alleged deficiencies in Donmac’s performance.” Glens Falls Ins. Co., supra at 512-513.

In comparison, as set out in section (b) herein, the damages in the case sub judice relate directly to the cost of repairing or replacing the alleged negligent work of defendants Day, or are merely incidental thereto. Appellant’s enumeration of error is without merit.

(d) In appellant’s final sub-allegation of error he alleges that the trial court erred in holding that a factual issue did not exist regarding whether the agent from whom defendant Don Day purchased his CGL policy acted in a dual capacity.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Fred D. Horne, the insurance agent who sold the CGL policy of insurance to defendants Day, held himself out as an agent for State Farm Insurance Company (“State Farm”). Horne was being utilized at the time by defendant Don W. Day for procuring insurance needed by his corporation. According to Day, Fred D. Horne contacted him as President of defendant Don W. Day Construction Company, Inc. and advised him that State Farm had come out with a contractor’s policy of insurance which Horne highly recommended for his company. Therefore, this Court, in reviewing the trial court’s grant of summary judgment to State Farm, must view this evidence in the light most favorable to the appellant and presume that a dual agency existed.

In sections (a) and (b) herein, this Court found that the State Farm policy was clear and unambiguous, and that the “business risk” exclusions in the policy excluded from coverage the defective workmanship by the insured builder causing damage to the construction project itself. “Where an insurance policy is unambiguous, parol evidence as to what was said by parties at the time application for the policy was taken is inadmissible to vary or alter the terms of the policy. [Cit.]” Gary L. Shaw Builders, supra at 222 (1). Further, “ It]he doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, or its agent, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom. (Cits.)’ ” Lumber Transport v. Intl. Indem. Co., 203 Ga. App. 588, 590 (2) (c) (417 SE2d 365) (1992); Cole v. State Farm Mut. Auto. Ins. Co., 135 Ga. App. 557, 558 (3) (218 SE2d 279) (1975). Therefore, any assertions by Horne that the policy gave defendants Day full coverage against any claim for personal injury or property damage arising out of the construction by Don W. Day Construction Company, Inc., its officers, or directors, would not extend additional coverage to defendants Day beyond what was given by the clear, plain, and unambiguous wording of the policy.

Further, the fact that defendants Day may have requested “full coverage” from Horne does not change this result. “The insured was not only free to examine the contract, he was under a duty to do so, and if he had done that he would have observed just what coverage it provided to him. If it was not what he wished to have he could have renegotiated his contract, or, if the company was unwilling to do that, he could have returned it as unacceptable and negotiated a contract with another company.” Parris & Son, Inc. v. Campbell, 128 Ga. App. 165, 173 (196 SE2d 334) (1973); Hartford Ins. Co. &c. v. Franklin, 206 Ga. App. 193 (424 SE2d 803) (1992); Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420 (376 SE2d 373) (1988); Barnes v. Mangham, 153 Ga. App. 540 (265 SE2d 867) (1980).

Decided April 17, 1997.

Before Judge Forehand.

Simpson, Gray & Cross, Ralph F. Simpson, Melanie BarbeeCross, for appellant.

Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellee.

Defendant Don Day, who admits he examined the subject policy, had a duty to determine what coverage it provided and if the coverage was not correct, either reject the policy as written when it was tendered to him or renegotiate the contract with the insurer. There is no evidence that Horne intentionally misrepresented the existence or extent of coverage or that defendants Day were required to rely on the expertise of Fred D. Horne, if any, to identify and procure the correct amount or type of insurance. If defendant Don Day could not personally understand the clear and unambiguous exclusions in Section II of the State Farm policy, then he was under a duty to seek further assistance or counsel in determining exactly what coverage he was in fact receiving. To find differently would allow any insured to assert that he personally did not understand the terms of an insurance policy after he read them and, thereby, expand the policy to unconscionable limits beyond the clear and unambiguous terms of the contract of insurance.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Originally, defendants Day also filed a notice of appeal from the trial court’s grant of summary judgment. However, this notice of appeal was dismissed by these appellants on December 9, 1996.


text:
    A97A1018.
    WALKER v. HAMBRICK.
    (486 SE2d 77)
   Eldridge, Judge.

Appellant Veronica Walker filed suit against appellee Betty Hambrick on March 6, 1996, alleging that appellee converted at least $60,000 in proceeds from assets that appellant inherited from the decedent, appellant’s mother, in June 1991. The complaint requested an accounting of appellee’s finances since June 1991 and a temporary restraining order (“TRO”) preventing appellee from dispersing or otherwise disposing of any assets over which appellee gained control by virtue of a power of attorney granted her by the appellant.

Appellee was served with appellant’s complaint on March 20, 1996, and appeared pro se at a hearing the same day to challenge appellant’s motion for the TRO. Appellee denied in open court the accusations of appellant’s complaint. The parties subsequently-agreed upon a TRO which addressed most of the concerns presented in appellant’s complaint, with the exception of the conversion allegation. Appellee never filed an answer to appellant’s complaint. The trial court held a final non-jury hearing on the conversion action on November 20,1996. Sitting without a jury, the trial court determined that the appellant failed to prove, except for her sworn complaint and affidavit, that the appellee “misappropriated, converted or mismanaged any property” owned by the appellant; therefore, the trial court entered a judgment for the appellee.

Appellant alleges two errors by the trial court which are essentially based upon one assertion, that the trial court erred by entering a judgment in favor of the appellee. We agree.

1. The record indicates that the appellee was served on March 20, 1996, the same day that she appeared pro se at a court hearing to challenge the appellant’s request for a TRO. Therefore, she was entitled to 30 days to answer the appellant’s complaint, and there was no default at that time. OCGA § 9-11-12 (a). Following the TRO hearing, the parties agreed upon a TRO which ordered, inter alia, the appellee to provide an accounting and which restrained the appellee from disbursing or otherwise diminishing the disputed assets from the decedent’s estate. This agreement effectively adjudicated the appellant’s cause of action, with the exception of the count alleging conversion.

However, several months passed before a final hearing was held on the appellant’s conversion action; the appellee filed no answer to the complaint prior to the final hearing. Therefore, appellee was automatically in default, and appellant was entitled to a verdict and judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence.” OCGA § 9-11-55 (a); see Floyd v. First Union Nat. Bank &c., 203 Ga. App. 788, 792 (417 SE2d 725) (1992). Therefore, the trial court erred as a matter of law in rendering a judgment in favor of the appellee.

2. Further, following appellee’s default, the trial court was required to award liquidated damages, since no further hearing on the issue of liquidated damages is required under OCGA § 9-11-55 (a). Appellant submitted a bank draft transferring $60,000 from a Wachovia Bank joint account held by both appellant and appellee to an individual account at Bank South to which only appellee had access. The bank draft is affirmative evidence of a conversion in the amount of $60,000, and the record is devoid of any denial by the appellee as to its conversion. Therefore, the $60,000 represents a sum certain, liquidated damage amount. See Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (4) (481 SE2d 541) (1997) (the term “liquidation” means “an amount certain and fixed, either by act and agreement of the parties, or by operation of law” (emphasis supplied) and that “[t]he word liquidated,’ as used in the statute[,] means settled, acknowledged, or agreed”); see also Ward v. Dollar, 216 Ga. App. 143, 144 (453 SE2d 142) (1995) (wherein the amount of damages in a conversion action was evidenced by several deposit slips and undisputed by a defaulting defendant); West v. Nodvin, 196 Ga. App. 825, 831 (397 SE2d 567) (1990) (wherein the amount of damages averred in the ex delicto claim was identical to damages under the ex contractu claim in the same complaint and undisputed by the defendant). These damages should have been awarded to the appellant following appellee’s default, and the trial court erred in denying appellant such judgment.

Decided April 17, 1997.

Before Judge Flake.

Lavigno & Schlueter, Richard R. Schlueter, Albert A. Myers III, for appellant.

Betty Hambrick, pro se.

Judgment reversed and remanded for entry of judgment consistent with this opinion.

Birdsong, P. J., and Ruffin, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0852.
    ROBSON v. THE STATE.
    (485 SE2d 822)
   Andrews, Chief Judge.

Terrance Patrick Robson appeals the trial court’s order reinstating his probation, claiming the tolling order was null and void after the court found the State could not prove any probation violations. We disagree and affirm the judgment of the trial court.

On July 7, 1995, a jury found Robson guilty of DUI, speeding, failure to maintain lane and failure to wear a seatbelt. The court sentenced Robson to 12 months probation.

A warrant for arrest of probationer was issued for Robson on April 3, 1996. The warrant stated that Robson was in violation of the conditions of his probation in that he had failed to report to his probation officer since being sentenced in July 1995, was $1,470 in arrears on fines, failed to perform five days community service and failed to verify evaluation or treatment for substance abuse.

The probation warrant was returned non est inventus, showing Robson could not be found in the county. The court ordered Robson’s probation tolled on May 14, 1996, the date the warrant was returned.

Robson appeared in court on July 19,1996, for a revocation hearing on the probation violation charges. Robson’s original probation officer was unavailable to testify, and the records showed Robson had paid all fines. While Robson stated he never completed the substance abuse class requirement, he testified he was never notified to appear for any classes.

The court found the State was unable to show any violations, and ordered probation reinstated. Robson appeals, claiming the tolling order is null by virtue of the July 19, 1996 hearing at which the State could not prove any probation violation. Therefore, Robson argues, the trial court erred in reinstating his probation.

OCGA § 42-8-36 (a) (1) provides in pertinent part: “it shall be the duty of a probationer, as a condition of probation, to keep his probation supervisor informed as to his residence. . . . The failure of a probationer to report to his probation supervisor as directed or a return of non est inventus or other return to a warrant, for the violation of the terms and conditions of probation, that the probationer cannot be found in the county that appears from the records of the probation supervisor to be the probationer’s county of residence shall automatically suspend the running of the probated sentence until the probationer shall personally report to the probation supervisor, is taken into custody in this state, or is otherwise available to the court; and such period of time shall not be included in computing creditable time served on probation or as any part of the time that the probationer was sentenced to serve. The effective date of the tolling of the sentence shall be the date that the officer returns the warrant showing non est inventus. . . .”

A reading of this Code section shows that the court did not err in tolling the probated sentence. The warrant was returned non est inventus because the officer could not find Robson in his county of residence. Accordingly, the court properly ordered the sentence tolled from the date of the return of the warrant. The Code section also clearly states that the tolled period shall not be included in computing creditable time served on probation. For Robson to challenge the tolling of his sentence, he must show that the warrant was improperly executed in some way. The mere issuance of the warrant does not toll the time period, only a return of the warrant showing that the probationer cannot be found. Op. Atty. Gen. 68-303 (1968).

Accordingly, the evidence at the revocation hearing and whether or not the State proved Robson’s alleged violations of his probation is immaterial as to the issue of whether the warrant was properly returned showing Robson could not be found. As no traverse was ever filed to the return of the warrant and this issue was never raised or argued in the trial court, see, e.g., Cooper v. State, 160 Ga. App. 287 (287 SE2d 284) (1981) (probationer traversed return of warrant and presented evidence that deputy never searched for him), the trial court did not err in reinstating Robson’s probation.

Judgment affirmed.

Beasley and Smith, JJ, concur.

Decided April 18, 1997.

Before Judge Conner.

Spruell & Dubuc, Billy L. Spruell, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.