text:
    76378.
    JONES v. THE STATE.
    (370 SE2d 784)
   Birdsong, Chief Judge.

Appellant, James Warren Jones, was convicted of two counts of burglary. He appeals basing his sole enumeration of error on the trial court’s denial of his motion to suppress. Specifically, appellant asserts that the search of his automobile was based on an “improper inventory search where the appellant’s automobile was not a hazard to traffic nor was it related to the appellant’s arrest, nor was he given the choice of an alternate disposition to the impoundment” of the automobile.

At approximately 3:00 a.m., Patrolman Cranor of the Henry County Sheriffs Department observed a late model blue Chevrolet Nova automobile driving alongside of a church. The church was closed and locked. Burglaries had been prevalent in this area, and this particular church had been burglarized in the past. The vehicle turned off its lights and subsequently exited the church parking lot after turning its lights on again. Patrolman Cranor followed the vehicle, which was going at an “extremely slow speed”; the vehicle was proceeding at about 25 miles per hour in a 55 mph zone on Highway 42. The driver of the vehicle was turning his head from side to side “like he was looking for something.” Patrolman Cranor observed that from the time he saw the vehicle operator until he hailed it to stop, the driver acted “extremely nervous.” Further, the police had a recent lookout sheet on a 1969 blue Nova.

In view of these facts, Patrolman Cranor initiated a tag check of the vehicle. The vehicle pulled off the highway into the parking lot of a closed Tastee Freeze. The appellant was the driver and sole occupant of the vehicle. The patrolman obtained appellant’s driver’s license and insurance card, and asked appellant why he was at the church at that time of the morning. The appellant did not immediately respond, but then stated that he was waiting for his employer. Certain of appellant’s responses were “vague and sketchy,” and when he finally did give phone numbers of two individuals, these persons could not be contacted. As a standard police procedure, Patrolman Cranor initiated a “wanted records check” on the appellant and his car, and requested the appellant to exit his vehicle. When the appellant got out of his car, Patrolman Cranor observed that there appeared to be a lot of items therein, including some new clothes and shoes. Patrolman Cranor received a radio call confirming that a vehicle of the same general description of appellant’s car had been involved in a Rockdale County burglary. The lookout sheet also indicated that the wanted vehicle had a Newton County decal on its license plate and appellant’s license plates were issued in Newton County. At this point, the patrolman learned via his radio that appellant was on parole. Appellant’s parole officer was contacted and verified that appellant was in violation of the “midnight curfew” terms of his parole. Patrolman Cranor then arrested the appellant and commenced standard arrest procedure. It is part of this standard procedure to impound a vehicle of an arrested individual if no one else is present in the vehicle who can take possession of it. Accordingly, Patrolman Cranor and a deputy named Wiggam began an inventory of the vehicle’s contents. The inventory was conducted “strictly to inventory the items for [the police’s] protection and [appellant’s] protection as well as before the vehicle is impounded.” However, the contents of the vehicle’s trunk were not inventoried as the officers did not have a trunk key and could not gain access.

Subsequently, Detective Boswell of the Rockdale County Sheriff’s Department was contacted by another Henry County Sheriff’s Department investigator. Based on a request from Detective Boswell and information that he supplied for a search warrant affidavit, a search warrant was obtained for appellant’s vehicle. More items were found when the search warrant was executed, including some blank checks belonging to one of the burglary victims. Held:

In considering the legality of the search of appellant’s car, this court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as at trial. Sanders v. State, 235 Ga. 425, 431-432 (Sec. II) (219 SE2d 768), cert. den. 425 U. S. 976; Stapleton v. State, 235 Ga. 513 (1) (220 SE2d 269).

Our review of the operative facts attendant the stopping of appellant’s vehicle for a tag check satisfies us that the stop was lawful and did not constitute an unlawful seizure within the meaning of the Fourth Amendment. In Florida v. Royer, 460 U. S. 491, 498 (103 SC 1319, 75 LE2d 229), the Supreme Court held that “not all seizures of the person must be justified by probable cause to arrest for a crime. . . . [C]ertain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime. . . . Although not expressly authorized in Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)], United States v. Brignoni-Ponce, 422 U. S. 873, 881-882 (1975), was unequivocal in saying that reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.” (Emphasis supplied.) See generally Kettman v. State, 257 Ga. 603 (9) (362 SE2d 342); Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9). Thus, neither the stopping of appellant nor the observation of certain items of property in plain view as appellant exited his vehicle, see, e.g., Catchings v. State, 256 Ga. 241 (10) (a) (347 SE2d 572), tainted any subsequent search of appellant’s vehicle.

Before the inventory search of the compartment of appellant’s automobile commenced, the appellant was placed under lawful arrest for a parole violation. See, e.g., OCGA § 42-9-42(e); 42-9-44. “[I]f probable cause to arrest exists [as it did in this case], a warrantless arrest is lawful.” Ledesma v. State, 251 Ga. 487 (3) (306 SE2d 629). A policeman who has made a lawful custodial arrest of the occupant of an automobile may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Coley v. State, supra at (1), citing New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768). Thus, we are satisfied that any search of appellant’s automobile would have been reasonable, under all of these attendant circumstances, within the meaning of the Fourth Amendment.

Further, we are satisfied that, although other legitimate grounds may well have justified Patrolman Cranor’s search of appellant’s vehicle, his conduct was motivated by his desire to conduct a routine police inventory of the contents of the vehicle. In this regard, we note that numerous items had already been observed by the officer in plain view, and this inventory was accomplished for both the police’s and the appellant’s protection before the vehicle was impounded. At that moment, the police were in lawful possession of appellant’s vehicle, and it was proper to make a good-faith inventory of its contents. See Ledesma v. State, 251 Ga. 885 (2) (311 SE2d 427), cert. den., 467 U. S. 1241. Appellant’s contention, that “[w]here there is no evidence of a connection between the automobile and the basis of the arrest, no evidence that the automobile is a hazard to traffic or illegally parked, and no evidence that the driver was consulted about an alternative disposition of the automobile,” that this court should suppress the fruits of an inventory, is without merit. Mooney v. State, 243 Ga. 373, 376-377 (254 SE2d 337). “It is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under much broader circumstances than that.” (Emphasis supplied.) Id. at 375. In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.

Decided June 3, 1988.

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

Given the facts of this case, “ ‘it was reasonable for the officers to take the car whenever it was most convenient for them to do so; and presumably it was most convenient immediately following the arrest.’ ” Id. at 376. Moreover, in this case the officer’s immediate seizure of the car was warranted on grounds well beyond convenience. There was some danger involved in allowing the car to sit unattended in a public parking lot of a drive-in business. The car might have been stolen or damaged while standing there; or, the numerous items of property in plain view within the car might have been stolen. Conversely, it would have been grossly unreasonable to expect the police, at 3:00 a.m., to waste their valuable law enforcement time attempting to find someone to accept the vehicle and its contents on the appellant’s behalf. In this regard, we note that the police were unable to contact anyone at the phone numbers previously provided by the appellant. But assuming the police ultimately could have found someone to take possession of the vehicle, they were not required to attempt to do so. Once they lawfully arrested the appellant, the police become responsible for timely safeguarding his property, until it could be lawfully disposed of, in the ordinary course of police business.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge. Carley, Judge,

license: Public Domain

text:
    76114.
    WEBB v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY et al.
    (370 SE2d 492)
   Deen, Presiding Judge.

The appellant, Zella Webb, was involved in an automobile collision, causing $1,986.88 in damages to her car. Webb’s own insurer, State Automobile Mutual Insurance Company, compensated Webb for the property damage, less a $200 deductible under the policy, in consideration of which Webb executed a subrogation assignment and release. The insurer subsequently settled the claim with the other party to the collision, and moved to have the settlement enforced against Webb when it discovered that Webb was attempting to recover the $200 deductible from the other party. The trial court granted that motion, finding that Webb had assigned her entire property damage claim, and this interlocutory appeal followed. Held:

The subrogation assignment and release executed by Webb identified the amount of loss as $1,986.88, and the amount of the claim as $1,786.88 (the actual loss minus the $200 deductible). The release provided that “[i]n consideration of such payment, the receipt of which is hereby acknowledged, the undersigned hereby assigns and transfers to the said company each and all claims and demands against any other party, person, persons, property or corporation, arising from or connected with such loss and damages (and the said company is hereby subrogated in the place of and to the claims and demands of the undersigned, against said party, person, persons, property or corporation, in the premises) to the extent of the amount above named, and the said company is hereby authorized and empowered to sue, compromise, or settle in my name or otherwise to the extent of the money paid as aforesaid.” (Emphasis supplied.)

Webb contends that this language operated to limit the assignment and release to the amount or extent of the claim actually paid by the insurer to Webb. We agree, and the trial court erred in concluding that this subrogation agreement resulted in a total assignment of Webb’s property damage claim.

Lindsey v. Samoluk, 236 Ga. 171 (223 SE2d 147) (1976), wherein the Supreme Court found that a total assignment of any property damage claim resulted, is not controlling here. In Lindsey the only possible language of limitation of the assignment was contained in the recital of consideration, viz., “[i]n consideration of and to the extent of payment of . . . ($1,940.29).” In the instant case, the agreement clearly purported to limit the assignment to the loss actually paid by the insurer. Nothing in Lindsey prohibits only a partial assignment of a claim; the dissent’s application of Lindsey, however, would have precisely that effect.

Judgment reversed.

Banke, P. J., Sognier, Pope and Benham, JJ., concur. Birdsong, C. J., McMurray, P. J., Carley and Beasley, JJ., dissent.

Decided May 12, 1988

Rehearings denied June 7, 1988

Donald B. Walker, for appellant.

Brenda H. Trammell, V. Jane Reed, Walter B. McClelland, for appellees.

Carley, Judge,

dissenting.

In reversing the trial court’s grant of summary judgment in favor of the appellee/insurer in this case, the majority attempts to distinguish the Supreme Court’s decision in Lindsey v. Samoluk, 236 Ga. 171 (223 SE2d 147) (1976). The majority opines that “[i]n Lindsey the only possible language of limitation of the assignment was contained in the recital of consideration, viz., ‘[i]n consideration of and to the extent of payment of . . . ($1,940.29).’ In the instant case, the agreement clearly purported to limit the assignment to the loss actually paid by the insurer. Nothing in Lindsey prohibits only a partial assignment of a claim; the dissent’s application of Lindsey, however, would have precisely that effect.” (Majority opinion, page 425) I respectfully submit that what the majority characterizes as “the only possible language of limitation” was the very language which formed the basis of this Court’s ruling in the Lindsey case, which was reversed on certiorari by the Supreme Court. See Lindsey v. Samoluk, 135 Ga. App. 852, 854 (219 SE2d 464) (1975).

Contrary to the majority’s analysis of Lindsey, it is the Supreme Court’s ruling in Lindsey, and not this dissent’s interpretation thereof, that “prohibits only a partial assignment of the claim.” In Lindsey, the Supreme Court held that “[t]he Court of Appeals erred in not applying the decision of this court in Parker Plumbing &c. Co. v. Kurtz, [225 Ga. 31 (165 SE2d 729) (1969)] to the facts in [Lindsey]. . . .” Lindsey v. Samoluk, supra, 172. The relevant facts in this case are no more distinguishable from those in Lindsey than Lindsey was distinguishable from Parker Plumbing &c. Co. v. Kurtz, supra. It is my opinion that the trial court in this case ruled correctly and, therefore, I respectfully dissent.

I am authorized to state that Chief Judge Birdsong, Presiding Judge McMurray, and Judge Beasley join in this dissent.


author: Carley, Judge.

text:
    76190.
    IMPERIALE v. POLLARD.
    (370 SE2d 494)
    Decided May 18, 1988.
   Carley, Judge.

Plaintiff-appellee filed suit against appellant-defendant, seeking to recover damages for personal injuries and for property losses allegedly resulting from a traffic collision. During discovery, it was established that appellee had received compensation for his property damage from his own insurer and, in consideration thereof, had executed a subrogation receipt in favor of said insurer. As to the property damage claims, appellant filed a motion for partial summary judgment, on the ground that appellee had assigned his cause of action to his insurer under the terms of the loan receipt. The trial court denied appellant’s motion for partial summary judgment but certified its order for immediate review. Appellant brings this appeal pursuant to our grant of his application for interlocutory appeal.

Appellant urges that the decisions in Parker Plumbing &c. Co. v. Kurtz, 225 Ga. 31 (165 SE2d 729) (1969) and in Lindsey v. Samoluk, 236 Ga. 171 (223 SE2d 147) (1976) mandate the grant of his motion for partial summary judgment. Appellee, on the other hand, urges that the present case is distinguishable from Parker Plumbing &c. Co. v. Kurtz, supra, and Lindsey v. Samoluk, supra. However, the wording of the subrogation receipt in the present case is identical to that which was held to constitute a complete assignment of the cause of action in Parker Plumbing &c. Co. v. Kurtz, supra. Compare Webb v. State Auto. Mut. Ins. Co., 187 Ga. App. 425 (370 SE2d 492) (1988). Likewise, in Lindsey v. Samoluk, supra, our Supreme Court clearly held that the defendant was entitled to partial summary judgment based upon the existence of a subrogation agreement and of a set of facts which were essentially identical to those which exist in the present case. Accordingly, the two Supreme Court decisions cannot be distinguished and are controlling authority here. It follows that the trial court “erred in not applying the decision of [the Supreme Court in Parker Plumbing &c. Co. v. Kurtz, supra, to the facts in the present case and erred in . . . denying [appellant’s] motion for a partial summary judgment.” Lindsey v. Samoluk, supra at 172. “The agreement which embodied more than a mere assignment of the cause of action was still an assignment of such cause of action, and the assignee must bring the action in its name. [Cit.] . . . [T]he undisputed proof showed that [appellee] no longer had any interest in the cause of action.” Parker Plumbing &c. v. Kurtz, supra at 31.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.

C. Alan Mullinax, for appellant.

William S. Sarandis, for appellee.


author: Pope, Judge.

text:
    76244.
    PAVE WAY CONSTRUCTION COMPANY, INC. et al. v. PARRISH et al.
    (370 SE2d 495)
   Pope, Judge.

Appellees Dave Parrish and Southeast Grading, Inc. brought suit against appellants Pave Way Construction Company, Inc. and its principal shareholders to collect on an open account and on a promissory note in the amount of $100,000. Other claims were also made, but are not at issue in this appeal. All parties moved for summary judgment. The trial court found the terms of the promissory note to be usurious and granted partial summary judgment to appellants on the claim to recover interest and other charges included in the promissory note. However, the court denied summary judgment to appellants to the extent their motion contended charges of usurious interest rendered the loan void and unenforceable even as to the principal amount of the loan. The court granted partial summary judgment to appellees on the claim to recover the principal amount of the loan. Summary judgment was denied to both parties on the claim for monies allegedly due on open account, and that claim remains pending for trial. Appellants brought this appeal from the grant of partial summary judgment to appellees on the principal amount of the loan, arguing the usurious interest rate reflected in the loan renders the entire contract void and unenforceable.

“[0]ne who lends at a usurious [interest] rate forfeits only the interest and other charges for making the loan — not the principal. Code § 57-112 (a) [OCGA § 7-4-10 (a)].” Service Loan & Fin. Corp. v. McDaniel, 115 Ga. App. 548, 549 (154 SE2d 823) (1967). We reject appellants’ argument that a usurious loan is totally void and unenforceable as an illegal contract pursuant to OCGA § 13-8-1. Said code section pertaining to illegal contracts provides that the part of an illegal contract which is legal will not be invalidated by the part which is illegal. Prior to passage in 1916 of the statute which imposes forfeiture for all interest in a usurious contract (Ga. L. 1916, p. 48, §§ 1, 2), the lender could recover legal interest. In Citizens Bank of Rome v. Hoyt & Co., 25 Ga. App. 222 (102 SE 837) (1920), we rejected the argument that usury rendered the entire contract void and found that usury could be severed from legal interest. Likewise, usurious interest can be severed from the principal amount of the loan. Moreover, the statute providing for forfeiture of all interest further states: “No further penalty or forfeiture shall be occasioned, suffered, or allowed.” OCGA § 7-4-10 (a). Even if it could be argued that the usurious terms of a contract could not be severed from its remaining terms, said statute would appear to establish an exception to the rule rendering illegal contracts void in their entirety. The rule that usury does not render a contract void in its entirety applies equally to contracts, such as the one at issue in this case, in which the interest charges are violative of the criminal usury statute, OCGA § 7-4-18. Citizens Bank v. Hoyt & Co., 25 Ga. App. 222, supra; West v. Atlanta Loan &c. Co., 22 Ga. App. 184 (3) (95 SE 721) (1918); Croom v. Jordan, 20 Ga. App. 802 (2) (93 SE 538) (1917).

Decided May 13, 1988

Rehearing denied June 7, 1988

Jerry L. Sims, Mark G. Burnette, for appellants.

M. Michael Kendall, for appellees.

John R. M. Whelan, amicus curiae.

We grant appellants’ motion to strike the amicus curiae brief filed in support of appellees for failure to disclose the identity and interest of the person on whose behalf the brief is filed, as required by Rule 13 of the Rules of the Court of Appeals. In fact, the only clue as to the identity of the party filing the amicus brief was the signature of the attorney who filed the brief showing himself to be “Attorney for Appellees.” By definition, a party to an appeal cannot be an amicus curiae but must submit briefs in accordance with Rule 14.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    76408.
    THE STATE v. JESSUP.
    (370 SE2d 489)
   Banke, Presiding Judge.

The trial court dismissed an accusation charging the appellee-defendant with driving under the influence, based on the solicitor’s conduct in passing over the case on the trial calendar to “go forward with ‘cases which are older.’ ” The state appeals. Held:

OCGA § 17-8-1 provides: “The cases on the criminal docket shall be called in the order in which they stand on the docket unless the defendant is in jail or, otherwise, in the sound discretion of the court.” Thus, the order in which the cases on the criminal docket are tried is ultimately the responsibility of the trial judge.

In the present case, the state concedes, in a supplemental brief, that on the occasion in question “the responsibility for determining the order in which cases were tried was left by the trial court to the sound judgment of the solicitor with the trial court taking no active role in determining the order in which particular cases were to be tried.” However, it clearly does not follow from the fact that the trial judge took no active role in determining the order in which the cases were called for trial that he did not consent to the order chosen by the solicitor. Moreover, the record before us contains no showing that the failure to try the defendant’s case in the order in which it appeared on the calendar resulted in any injury to him. See generally Rosenbrook v. State, 78 Ga. 111 (1896). Although defense counsel submitted his own affidavit stating that because of the solicitor’s failure to try the case he had lost contact with “an eye witness who possessed testimony exculpatory to defendant,” the content of this witness’s expected testimony was never revealed. Under such circumstances, the assertion that the witness was prepared to offer testimony exculpatory to the defendant cannot be considered a sufficient showing of harm upon which to base a dismissal of the accusation. Cf. Mell v. State, 69 Ga. App. 302 (2) (25 SE2d 142) (1943); Gibson v. State, 158 Ga. App. 501 (2) (280 SE2d 900) (1981). The order dismissing the accusation is consequently reversed.

Decided May 11, 1988

Rehearing denied June 7, 1988

Ralph T. Bowden, Jr., Solicitor, Richard R. Read, Assistant Solicitor, for appellant.

Kenneth W. Revell, Harger W. Hoyt, for appellee.

Judgment reversed.

Birdsong, C. J., concurs. Beasley, J., concurs in judgment only.


author: Birdsong, Chief Judge.

text:
    75994.
    COLLINS v. THE STATE.
    (370 SE2d 648)
   Birdsong, Chief Judge.

This Court granted appellant’s application for interlocutory appeal to examine the trial court’s ruling denying Collins’ motion to suppress the results of a search conducted by the Baldwin County Sheriff’s Department at “the residence located at 104 Oglethorpe Avenue, Baldwin County, Georgia; the curtilage thereof, and any individuals and vehicles present at such times as the search warrant is executed.” (Emphasis supplied.) The affiant for the application of the search warrant stated that a “concerned citizen” had two close relatives who had been furnished crystal methamphetamine at the described location by a “white male” whose last name was “Prevatt.” The affiant said that he had, in the past, received information from several informants regarding sales of illegal drugs at this residence. Surveillance by the affiant of this residence revealed a high volume of traffic in-and-out of Prevatt’s house. Because of the ease in flushing crystal methamphetamine down a toilet or a sink, a “no-knock” warrant was issued, and the magistrate checked the block authorizing search of “other persons. . . .” However, an attached sheet extended the “scope of this search warrant” to include “any individuals and vehicles present at such time as the search warrant is executed.”

The warrant was executed a few minutes before midnight on May 29, 1987. While the search was under way, the appellant, Mrs. Margie Collins, drove up and parked in the front yard of this residence. When she attempted to enter the front door the police brought her into the house and the officer in charge directed one of the deputies to search her pickup truck. A blue metal can was found on the front seat and when it was opened it was found to contain one marijuana cigarette and “marijuana residue, a few seeds. . . .” After Mrs. Collins had entered the house, the officer recognized her as the wife of an individual he had seen stopped in this truck on an occasion approximately one and one-half years before when a search revealed cocaine and marijuana and the occupant, Mr. Collins, had been arrested but the officer cannot say with certainty that he connected Mrs. Collins with her husband before he directed the officer to search the truck. Further, while the officer had this house under surveillance, this truck, or one similar to it, had visited the house several times. The trial court denied appellant’s motion to suppress and we granted the application for interlocutory appeal. Held:

The U. S. and Georgia Constitutions guarantee the right to our citizens to be secure from unreasonable searches and seizures, and that no warrant shall issue except upon probable cause “particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amendment, United States Constitution. This requirement for particularity forbids the issuance of general exploratory warrants. Lo-Ji Sales v. New York, 442 U. S. 319 (99 SC 2319, 60 LE2d 920). “A general warrant is of course void. By definition it is ‘one which does not sufficiently specify the place or the person to be searched.’ ” Willis v. State, 122 Ga. App. 455, 457 (177 SE2d 487). In the instant appeal the warrant authorized the search of the described premises, and all persons and vehicles found on the premises. This lack of particularity as to the persons and vehicles is generally cited as the basis for an attack on the warrant. If the court finds the warrant does “sweep so broadly and with so little discrimination [it is] obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment” (Marcus v. Search Warrants, 367 U. S. 717, 733 (81 SC 1708, 6 LE2d 1127)), and items seized in the unauthorized general search will be suppressed.

A citizen does not, by mere presence at a suspect place, lose his constitutional right from unreasonable search of his person and his property to which he otherwise would be entitled. United States v. Di Re, 332 U. S. 581 (2) (68 SC 222, 92 LE 210); Wood v. State, 224 Ga. 121, 124 (160 SE2d 368); Hayes v. State, 141 Ga. App. 706, 708 (234 SE2d 360). However, our Code, OCGA § 17-5-28, authorizes inclusion in a search warrant of “other persons” on the premises being searched, and this Court has held that inclusion of such wording does not automatically convert an otherwise valid warrant into a general warrant. See Campbell v. State, 139 Ga. App. 389 (2) (228 SE2d 309). But, as we observed in Wallace v. State, 131 Ga. App. 204, 205 (205 SE2d 523), the inclusion of this language does not increase the power or authority of the executing officer beyond the terms of the statute authorizing this type search, i.e., (1) to protect the officer from attack, and (2) to prevent disposal or concealment of any instruments, articles, or things “particularly described in the search warrant.” Thus, to uphold a search of a person or vehicle not particularly described in the warrant, who is then on the premises, the State must demonstrate that the. searching officer acted under one of the two statutory paragraphs justifying the expanded scope of his search. Wyatt v. State, 151 Ga. App. 207, 209 (259 SE2d 199). We must not forget that a search which is reasonable at its inception, will become unreasonable under the Fourth Amendment if it exceeds the scope of the warrant. Terry v. Ohio, 392 U. S. 1 (14) (88 SC 1868, 20 LE2d 889). Hence, at issue is whether the evidence supports a finding of either of the two permissible grounds for expanding the scope of the search.

Appellant’s innocuous behavior did not give the officers any reasonable ground to believe she was armed or dangerous, and it would have been impossible for her to conceal or dispose of any evidence from the premises by placing it in her truck because she arrived after the search was in progress and was under constant surveillance and custody of the police following her arrival. Although weapons were found in the truck, appellant did not have access to such weapons after her entry into the house being searched. We also find that the information possessed by the executing officer, that appellant’s husband had used this truck one and one-half years before to transport drugs, and that a similar truck had been seen at these premises within the last “several weeks,” is insufficient to establish probable cause to believe appellant was presently possessing drugs within this vehicle, because “probable cause” is “more than mere suspicion or possibility” that this offense is being committed. Lewis v. State, 255 Ga. 101, 104 (335 SE2d 560).

This Court has had several occasions to construe the validity of a search at a residence in which the warrant included “other persons” on the premises, and the officers searched an individual who arrived after the search had commenced. We found that under those circumstances the provisions of OCGA § 17-5-28 were inapplicable, and when no independent probable cause to search the suspect was established, we found the search invalid. Brown v. State, 181 Ga. App. 768 (1) (353 SE2d 572); Smith v. State, 139 Ga. App. 129 (227 SE2d 911); Wallace v. State, 131 Ga. App. 204 (205 SE2d 523).

Decided June 7, 1988.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Albert C. Martinez, Jr., Assistant District Attorney, for appellee.

Accordingly, because the search exceeded the legitimate scope of the search warrant, was unsupported by independent probable cause, and did not come within either of the exceptions of OCGA § 17-5-28, the search of appellant’s pickup truck was unauthorized and illegal. Wyatt, supra (1).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    76194.
    DURDEN v. THE STATE.
    (370 SE2d 528)
   Benham, Judge.

Appellant was indicted for rape, robbery, and possession of cocaine. The possession count was severed from the rape and robbery counts, and the latter two were tried before a jury. The jury found appellant not guilty of robbery but guilty of rape. Appellant filed a motion for new trial, which the trial court denied, and appellant brought this appeal. We affirm.

1. In his first enumeration of error, appellant raises the general grounds. The victim testified that she met appellant for the first time on the day the crime occurred, and that as she was walking down the street, appellant drove by, attempted to get her attention, and engaged her in conversation. During that conversation, he offered to borrow his aunt’s truck and help the victim and her roommate move their belongings to their new apartment. Appellant also offered to take the victim out for a few drinks until her roommate could leave work that evening. The victim agreed, and later that night after appellant and the victim had made a number of stops at various locations and had had a few drinks, appellant took the victim to his residence. When the victim said she was ready to go home, appellant took her back to his automobile, made her take off all her jewelry, and told her she would have to have sex with him if she wanted her jewelry back. The victim declined, saying he could keep the jewelry, but appellant became physically and verbally abusive and eventually forced her to disrobe and have sexual intercourse with him in the front seat of his automobile. Appellant testified to the effect that he and the victim had engaged in consensual intercourse at his residence, that the victim had asked him for $20, and that he had refused to give it to her. The evidence was sufficient for a rational trier of fact to find appellant guilty of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Robertson v. State, 184 Ga. App. 796 (1) (363 SE2d 43) (1987).

Decided June 7, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, James W. Richter, Assistant District Attorneys, for appellee.

2. Several days after the rape occurred, law enforcement authorities searched appellant’s home pursuant to a warrant. The search produced, inter alia, a gold rope necklace that belonged to the victim. Appellant sought to have suppressed the evidence obtained in the search, contending that the affidavit supporting the warrant did not set out grounds sufficient to justify the search of appellant’s residence. The trial court denied the motion to suppress, and appellant claims that denial was erroneously made. The record reflects that the affidavit in support of the warrant was based on information provided by the victim, independently corroborated by a witness who saw appellant and the victim together while she was wearing the jewelry in question. We find that there was sufficient information for the trial court to conclude that the issuance of the warrant was proper. “[U]nless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. [Cits.]” Duckworth v. State, 246 Ga. 631, 634 (272 SE2d 332) (1980). Although the victim stated that the rape and robbery occurred in appellant’s motor vehicle, it was reasonable to infer that the jewelry would be found during a search of appellant’s residence. Id.

Judgment affirmed.

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


text:
    76298.
    76299.
    CANNON et al. v. SMITH. CANNON et al. v. STEFANIS.
    (370 SE2d 529)
   Pope, Judge.

Plaintiffs Billy and Nancy Cannon, husband and wife, brought medical malpractice claims against defendants Norman J. Smith, M.D., and George Stefanis, M.D. The record shows these two surgeons joined as a team to perform surgery on Mr. Cannon’s lumbar spine. The procedure, known as posterior lumbar interbody fusion, involves the removal of a diseased vertebral disc and the implantation of bone fragments from a donor site in the disc space between two vertebrae. The surgery was performed on August 26, 1983. Within weeks of the surgery, Mr. Cannon complained to Dr. Smith of pain in his back radiating down his right leg. In the fourteen months following surgery, Mr. Cannon complained of multiple abnormal symptoms including seizures and hallucinations. Mr. Cannon was hospitalized for these latter symptoms in January 1984 and was treated by both Drs. Smith and Stefanis. During the January hospitalization Dr. Smith ordered a CT scan of the lumbar spine which showed a slight impingement of the boney fragment implants into the neuro-foramen. On deposition Dr. Smith testified it was his opinion the findings of this CT scan were not significant and the slight impingement of boney fragments was not the cause of the patient’s symptoms. The record shows Dr. Stefanis never reviewed the CT scan ordered by Dr. Smith. Neither doctor informed Mr. Cannon of the impingement reflected in the CT scan.

After release from the hospital in January 1984, Mr. Cannon sought no further treatment from Dr. Stefanis but continued to see Dr. Smith with continued complaints of back pain and right leg pain. On October 3, 1984 Dr. Smith informed plaintiffs the procedure had failed and would have to be repeated because the implanted boney fragments had failed to fuse properly. Upon seeking a second opinion from another doctor, plaintiffs claim they were informed on November 21, 1984 that Mr. Cannon’s back pain and right leg pain were caused by the impingement of the bone implants onto a nerve. Plaintiffs filed suit against Dr. Smith on November 5, 1986 and against Dr. Stefanis on November 13, 1986. Defendants were granted summary judgment on the ground that the applicable statute of limitation had expired. The lower court found factual issues exist concerning whether plaintiffs were debarred or deterred from discovering defendants’ alleged negligence prior to October 3, 1984. However, the lower court found no factual issues exist which would toll the statute of limitation after October 3, 1984, when Dr. Smith informed plaintiff the operation had failed. On appeal, plaintiffs argue the statute of limitation was tolled by defendants’ fraudulent failure to inform them of the impingement of bone into the neuro-foramen which they knew or should have known when the CT scan was taken in January 1984. Plaintiffs urge the statute of limitation would not begin to run until they discovered the allegedly concealed fact on November 21, 1984.

Case No. 76299

Plaintiffs’ claims are based upon the allegation that Mr. Cannon’s pain was caused by the impingement of boney fragments onto a nerve. Plaintiffs’ argument that the statute of limitation was tolled is based upon the allegation that Dr. Stefanis fraudulently concealed this fact from them. However, the undisputed facts contained in the record show that Dr. Stefanis never reviewed the CT scan reflecting the boney impingement and did not know that such an impingement existed until the lawsuit was filed. “One of the elements of fraud is that defendant know that the representation is false. [Cits.] There is nothing in the record to reflect that [defendant] knew at any time that the treatment or opinion given by him was in error, nor is there any evidence that [defendant] fraudulently withheld such information from the patient.” Edmonds v. Bates, 178 Ga. App. 69, 71-72 (342 SE2d 476) (1986). See also Hendrix v. Schrecengost, 183 Ga. App. 201 (1) (358 SE2d 486) (1987). Plaintiffs argue Dr. Stefanis was negligent in failing to review the CT scan ordered by another doctor for a patient whom he admitted to the hospital. At best, plaintiffs’ allegations might establish negligence but not fraud. Absent a showing of fraud, a medical malpractice claim must be brought within two years from the date of the negligent act or omission. OCGA § 9-3-71 (a). Summary judgment was properly granted to Dr. Stefanis because the complaint was filed more than two years after the last date on which Dr. Stefanis treated the patient.

Case No. 76298

Dr. Smith ordered and reviewed the CT scan in January of 1984 from which plaintiffs allege he knew or should have known that a complication from the surgery was the cause of Mr. Cannon’s pain. Plaintiffs claim Dr. Smith had a duty to inform them of the findings reflected in the CT scan and that his failure to inform them amounted to fraudulent failure to reveal negligence which tolled the statute of limitation. Even if Dr. Smith’s failure to inform plaintiffs of the findings reflected in the CT scan amounted to fraudulent concealment of facts and not merely a misdiagnosis, we nevertheless find plaintiffs’ complaint is barred by the statute of limitation.

The statute of limitation is tolled only if defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action. . . OCGA § 9-3-96. Plaintiffs claim they were deterred from learning the true facts concerning Mr. Cannon’s spine by Dr. Smith’s silence about the impingement of boney fragments into the neuro-foramen. They claim it was only after Dr. Smith informed them the bone implants had failed to fuse that they consulted another doctor who informed them the pain was caused by yet a different complication — the impingement of fragments into the neuroforamen. However, the record shows plaintiffs expressed their concern over Dr. Smith’s inability to ease Mr. Cannon’s pain and sought a second opinion from Dr. Whitesides at Emory University as early as August 1984. Plaintiffs admit Dr. Whitesides informed them Mr. Cannon’s back was “messed up.” Once plaintiffs sought the diagnosis or care of another doctor who informed them of the existence of medical problems, they were no longer deterred from learning the true facts. See Hamilton v. Mitchell, 165 Ga. App. 717 (302 SE2d 589) (1983).

We find no merit in plaintiffs’ allegation that Dr. Smith negligently or fraudulently failed to forward medical records so that Dr. Whitesides could offer a more thorough diagnosis. The record shows the appointment with Dr. Whitesides was arranged on behalf of plaintiffs by the therapist assigned to Mr. Cannon by his employer’s workers’ compensation insurer. The therapist gathered medical records for Dr. Whitesides’ review and accompanied plaintiffs to their appointment with him. Dr. Whitesides reported to Dr. Smith by letter that he would be able to make a final diagnosis only after he reviewed additional medical records which were to be sent to him by the workers’ compensation therapist. Dr. Smith’s denial that he received any request for medical records is undisputed. Plaintiffs may not hold Dr. Smith liable for their failure to follow up with a doctor who informed them Mr. Cannon’s back was “messed up.”

Moreover, even if an issue of fact exists as to whether plaintiffs were deterred from discovering the true facts after seeking a second opinion, defendant himself informed plaintiffs that the surgery had been unsuccessful during their office visit on October 3,1984. On that date, Dr. Smith informed plaintiffs the bone implant had failed to fuse, thereby permitting movement between the two vertebrae. Plaintiffs maintain the statute of limitation would not begin to run until they were informed of the additional complication that the implanted bone fragments had shifted position and were impinging into the neuro-foramen and pinching a nerve. However, once a defendant doctor discloses the existence of medical complications, even if defendant has misdiagnosed those complications, plaintiff is no longer deterred from learning the true facts. See Hendrix v. Schrecengost, supra at (2). No issue of fact remains concerning fraudulent concealment of facts sufficient to deter the plaintiffs from bringing an action against Dr. Smith after they sought a second opinion or, at the very latest, once Dr. Smith informed plaintiffs of the medical complication from the surgical procedure. Over two years had expired from either of these two dates before the complaint was filed, and therefore plaintiffs’ complaint is barred by the statute of limitation.

Judgments affirmed.

McMurray, P. J., and Benham, J., concur.

Decided June 7, 1988.

J. Vincent Cook, for appellants.

C. Ashley Royal, for appellee (case no. 76299).

Joseph H. Chambless, Emitte H. Griggs, Mary M. Katz, for appellee (case no. 76298).


text:
    75985.
    COUNTS v. YANCEY BROTHERS COMPANY.
    (370 SE2d 506)
   Carley, Judge.

In her original complaint, appellant-plaintiff sought to enjoin appellee-defendant from selling certain personalty in which both claimed a security interest. When the trial court refused to grant injunctive relief, she amended her complaint so as to state a cause of action against appellee for conversion. A bench trial was conducted. At the close of appellant’s evidence, appellee moved for an involuntary dismissal of the complaint pursuant to OCGA § 9-11-41 (b). The trial court granted appellee’s motion. Appellant appeals from the order of dismissal entered by the trial court.

1. Appellant enumerates as error the trial court’s denial of her motion for summary judgment. “ ‘Since the case has already been tried, the enumeration of error complaining of the denial of [appellant’s] motion for summary judgment is not meritorious. [Cits.]’ [Cits.]” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 334 (1) (291 SE2d 410) (1982).

2. In support of appellant’s enumeration of the trial court’s grant of appellee’s motion for involuntary dismissal as erroneous, she asserts that the evidence showed, as a matter of law, the priority of her security interest in the subject property over the security interest held by appellee therein.

The evidence was as follows: Appellee originally financed appellant’s purchase of a portion of the property and had a purchase money security interest therein. Accordingly, appellant was a debtor as to appellee and appellee was a secured creditor as to appellant. This debtor-secured creditor relationship between appellant and appellee was evinced by a security agreement which contained a future advances clause (Security Instrument). Thereafter, appellant sold to a third-party that property which secured her debt to appellee. In connection with this transaction, the third-party assumed the debt which appellant owed to appellee and, to the extent of her equity in the property, appellant became a secured party as to the third-party purchaser of the property. This transaction was partially evidenced by an agreement. This “Transfer of Equity” agreement provided, in pertinent part: “The consent of [appellee] to the transfer by [appellant] to [the third-] party of [appellant’s] equity in the property . . . shall not operate in any way to relieve or affect [appellant’s] obligations under the Security Instrument, and [appellant] shall remain as fully and completely bound thereby as though the transfer and delivery to [the third-] party had never taken place, or [appellee’s] consent thereto been given.” (Emphasis supplied.)

Decided May 26, 1988

Rehearing denied June 8, 1988

Timothy J. Sweeney, Michael W. McElroy, Craig A. Nance, for appellant.

The effect of this “Transfer of Equity” agreement was clearly to subordinate, to the security interest of appellee, such priority, if any, as appellant might otherwise have had as the holder of a purchase money security interest in the property. See generally OCGA §§ 11-9-316; 11-1-209. Pursuant to the above cited language of the “Transfer of Equity” agreement, appellant remained “fully and completely bound” by the original Security Instrument and, therefore, she remained a debtor as to appellee notwithstanding such future advances as may have been made by appellee to the third-party pursuant to that Security Instrument. Accordingly, appellant, as a debtor to appellee, could assert no priority over appellee’s security interest in the subject property. Therefore, the trial court did not err in granting appellee’s motion for involuntary dismissal of appellant’s complaint.

3. Appellant urges that the trial court erred in granting the motion for involuntary dismissal as to her claim that appellee’s sale of the subject property had been commercially unreasonable. However, under appellant’s own evidence, the commercially reasonable disposition of the property would not have been sufficient to satisfy the entire indebtedness, as to which indebtedness we have held in Division 2 appellant was a debtor as to appellee. Since the commercially reasonable disposition of the property would have resulted in appellant’s continued indebtedness to appellees, it follows that appellee’s disposition of the property could not have caused “any loss” to appellant under OCGA § 11-9-507 (1). Accordingly, the trial court did not err in granting the motion for involuntary dismissal as to appellant’s claim predicated upon the commercial unreasonableness of the sale of the property.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Marshall L. Helms, Jr., for appellee.


text:
    76021.
    LOMBARDO v. THE STATE.
    (370 SE2d 503)
   Pope, Judge.

Defendant Stephen James Lombardo brings this appeal from his conviction and sentence of trafficking in cocaine. Held:

1. Defendant, a former law enforcement official with Florida’s Metropolitan Dade County Police Department, first enumerates as error the trial court’s denial of his motion to suppress the evidence seized as a result of the search of his leased automobile, contending, in essence, that the trial court erred in finding that his consent to search was freely and voluntarily given. “On appeal, a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted unless clearly erroneous.” Muff v. State, 254 Ga. 45, 48 (326 SE2d 454) (1985); State v. Betsill, 144 Ga. App. 267 (2) (240 SE2d 781) (1977). Although the testimony of the arresting officer and the defendant was not without substantial conflict, the trial court was authorized to find the following: At approximately 1:30 a.m. on August 14, 1986 Trooper Michael J. Ralston of the Georgia State Patrol, while running stationary radar on Interstate 75 in Gordon County, Georgia observed defendant, the driver of the car, and his companion traveling northbound at approximately 65 m.p.h., in excess of the 55 m.p.h. posted maximum limit. Trooper Ralston pursued the vehicle and indicated for defendant to stop by activating his blue lights. Trooper Ralston then asked to see defendant’s driver’s license and the vehicle registration, and questioned him generally concerning his itinerary. Agent Dalman of the Georgia Bureau of Investigation, who was riding with Trooper Ralston on the night in question, asked similar questions of defendant’s passenger; however, the passenger’s responses differed from defendant’s both as to the stated destination and the purpose of the trip. Trooper Ralston also determined that the vehicle was leased to defendant.

After verifying defendant’s license and vehicle registration, Trooper Ralston returned these documents to defendant and issued him a warning citation for speeding. Trooper Ralston also asked permission to search the car. Trooper Ralston testified “I then displayed the written consent form . . . and I asked him to read it, which he appeared to [do], and he advised he did not want to sign it, that I was going to search the car anyway, and we advised him we could not search the car without his permission, and with his permission, we would like to search it.” According to Ralston’s testimony, defendant reiterated that he didn’t want to sign the consent form, but verbally consented to the search. Trooper Ralston testified that this verbal consent was witnessed both by Agent Dalman and Lieutenant Stafford of the Gordon County Sheriffs Department. Stafford testified that defendant stated that he did not wish to sign anything, “but if you want to search the car you can search the car.” Trooper Ralston again informed defendant that he had the right to refuse the search and that they could not conduct the search without permission. Lastly, Trooper Ralston testified that he did not physically threaten or abuse defendant in any manner in order to obtain his consent.

“ ‘Consent searches are valid (cit.) but where the (S)tate relies upon consent, the burden is upon (it) to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. (Cit.) Voluntariness must be determined from all of the circumstances. (Cit.)’ Cuevas v. State, 151 Ga. App. 605, 609 (260 SE2d 737) (1979), cert. den., 445 U. S. 943 (1980).” Smith v. State, 184 Ga. App. 304, 306 (361 SE2d 215) (1987). Based on a careful review of the record before us, we conclude that the totality of the circumstances supported the trial court’s determination that the defendant freely and voluntarily consented to the search of the car. Accord Smith, supra; Lopez v. State, 184 Ga. App. 31 (1) (360 SE2d 722) (1987); Wilson v. State, 179 Ga. App. 780 (1) (347 SE2d 709) (1986); Mancil v. State, 177 Ga. App. 663 (340 SE2d 279) (1986).

2. Defendant also contends that the stop of his automobile based on the alleged traffic violation was a mere pretext for the subsequent illegal search and seizure. See Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987), and cits. We disagree. Although defendant testified that the alleged traffic violation was lane straddling, Trooper Ralston testified that he stopped defendant because he was speeding, that he used both radar and visual observation to determine that defendant was speeding, that defendant admitted he was speeding at the time of the stop, and that he issued defendant a warning citation for this offense. Accordingly, we find no basis for defendant’s contention that the stop here was pretextual as Trooper Ralston was clearly justified in stopping defendant to investigate a possible traffic violation.

3. Defendant also challenges the legality of the search of his automobile based on a lack of probable cause. We find no merit to this contention. “ ‘Probable cause and a warrant are not required for a search and seizure conducted pursuant to consent.’ Crews v. State, 170 Ga. App. 104 (316 SE2d 549) (1984).” Ramsey v. State, 183 Ga. App. 48, 50 (357 SE2d 869) (1987); accord Smith v. State, supra; Wilson v. State, supra.

4. Defendant also contends that he was unlawfully “seized” without probable cause because Trooper Ralston would not permit him to leave after he refused to sign the consent form, and that the trial court erred in failing to exclude the evidence on this basis. Our review of the record, however, reveals that “the ground enumerated here as error was never raised in the trial court — neither at the motion to suppress [hearing] nor [in defendant’s written motion to suppress]. . . . Under our appellate procedure a reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below. [Cits.]” (Punctuation omitted.) Brooker v. State, 164 Ga. App. 775, 778 (298 SE2d 48) (1982). This enumeration is without merit.

5. Defendant also contends that the State failed to show that he was in actual possession of the cocaine, as required by OCGA § 16-13-31 (a) (1), because defendant’s passenger had equal access to the illegal contraband seized from the trunk of the car. We disagree.

“The equal access rule, ‘as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. (Cits.)’ Castillo v. State, 166. Ga. App. 817, 821-822 (305 SE2d 629) (1983).” Mendez v. State, 185 Ga. App. 1 (363 SE2d 262) (1987); see also Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983). Here there was no evidence that anyone other than defendant, the driver and lessee of the car, had access to the keys required to open the trunk of the automobile where the contraband was found. “Since the [cocaine] was not in an open, notorious and equally accessible area, the equal access rule does not apply. Manbeck v. State, 165 Ga. App. 625, 626 (3) (302 SE2d 361) (1983).” Colsson v. State, 177 Ga. App. 840 (1) (341 SE2d 318) (1986).

Defendant also contends, however, that his conviction cannot stand because the State failed to show that the substance seized was in fact “28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine,” also as required by OCGA § 16-13-31 (a) (1). The official State Crime Lab report, which was tendered into evidence pursuant to stipulation of the parties and without objection, provided that “[t]he 10 pounds 15.8 ounces of powder is positive for cocaine, Schedule II. Quantitation of the powder shows it to contain 9 pounds 1.9 ounces of cocaine.” The evidence was sufficient.

6. Lastly, defendant contends that the trial court abused its discretion by denying defendant’s motion for bond pending appeal. Although our review discloses an order reducing defendant’s bond from $1,490,000 to $1,000,000 was entered on March 20, 1987, it does not appear of record that defendant requested a bond pending appeal of his conviction and sentence in the case at bar. Cf. Bagby v. State, 176 Ga. App. 51 (335 SE2d 305) (1985). Moreover, our affirmance of defendant’s conviction renders this issue moot. Malerba v. State, 172 Ga. App. 457 (4) (323 SE2d 666) (1984).

Decided May 24, 1988

Rehearing denied June 8, 1988

Donald F. Samuel, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76100.
    In the Interest of G. K. J.
    (370 SE2d 490)
   Carley, Judge.

The appellant child in this appeal is represented by the attorney and guardian ad litem who was appointed to represent him pursuant to OCGA § 15-11-85 (a). Appellant brings this appeal from a juvenile court order which terminated the parental rights of his father.

The petition for the termination of parental rights of appellant’s father was filed by appellant’s mother, who is his custodial parent. The petition had alleged that the parental rights of appellant’s father should be terminated, in that he had “wantonly and willfully failed to comply with the order of a court of competent jurisdiction to support [appellant] for a consecutive term exceeding twelve (12) months. ...” Appellant’s father made no personal appearance in these proceedings, but submitted a letter to the juvenile court, wherein he stated that he was aware of the proceedings and understood them, and that he did not choose to contest termination of his parental rights. Following a hearing, the juvenile court entered an order containing its findings of fact and its conclusion that there was “clear and convincing evidence” that, for more than a year, appellant’s father had willfully and wantonly failed to provide the support that had been ordered by a court of competent jurisdiction. The juvenile court’s order further found that a termination of the parental rights of appellant’s father would be in the best interest of appellant. The juvenile court therefore ordered such a termination pursuant to the provisions of OCGA § 15-11-81. It is from that order that appellant brings this appeal.

1. Pursuant to OCGA § 15-11-85 (a), the child himself is, in effect, made a party to an action to terminate his parent’s or parents’ parental rights. See In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). Accordingly, appellant has standing, through his duly appointed attorney and guardian ad litem, to bring this appeal.

2. Appellant enumerates as error the findings of the juvenile court that his father’s failure to comply with the support order was wilful and wanton and that the termination of his father’s parental rights would be in his best interest. Appellant urges that these findings are not sufficiently supported by the evidence.

Our review of the entire record shows that there was sufficient clear and convincing evidence presented at the hearing to support the juvenile court’s finding as to the willful and wanton failure of appellant’s father to comply with the support order. See In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). See also In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987).

Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. See generally Powell v. Dept. of Human Resources, 147 Ga. App. 251 (1) (248 SE2d 533) (1978) (construing former OCGA § 15-11-51); In the Interest of C. M. S., 185 Ga. App. 549 (364 SE2d 908) (1988). In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of the parental rights of appellant’s defaulting father would be in his best interest. See In re B. D. C., supra; In the Interest of J. L. Y., supra. Accordingly, it was not a manifest abuse of the juvenile court’s discretion so to find. See In re H. B. & K. B., 174 Ga. App. 435 (330 SE2d 173) (1985).

3. Appellant also enumerates as error the failure of the juvenile court to have included in its order an explicit statement of the underlying findings of fact which supported its ultimate determination that the best interest of appellant would be served by the termination of his father’s parental rights.

“A judgment having such a final, ultimate and significant result as that of severing the rights of a parent to a child must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination. [Cits.]” McCary v. Dept. of Human Resources, 151 Ga. App. 181, 182 (2) (259 SE2d 181) (1979). OCGA § 15-11-81 (a) establishes the statutory criteria for the termination of the parental rights of appellant’s father. That statute provides: “In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” (Emphasis supplied.)

Pursuant to the terms of this statute, the juvenile court is required to make explicit findings as to the existence of parental misconduct or inability as defined in OCGA § 15-11-81 (b). The juvenile court cannot make a bare recital as to a finding of the existence of parental misconduct or inability. See generally Crook v. Ga. Dept. of Human Resources, 137 Ga. App. 817 (224 SE2d 806) (1976). “If [the juvenile court] is required to make the explicit statutory findings, the tendency to rely upon individualistic and subjective notions of morality or sociological advantage will be lessened.” Crook v. Ga. Dept. of Human Resources, supra at 819.

Once explicit findings, supported by clear and convincing evidence, have been made as to the existence of a statutory ground of parental default or inability, the juvenile court must give its consideration to the best interest of the child. However, the statute does not narrowly define those essential factors which must enter into the juvenile court’s consideration of the child’s best interest. The statute specifies only that the child’s best interest must necessarily encompass a broad consideration of his “physical, mental, emotional, and moral condition . . . , including the need for a secure and stable home.” Thus, entirely unlike the juvenile court’s determination of parental default or inability which is narrowly limited to the objective grounds enumerated (in OCGA § 15-11-81 (b), the inquiry into the best interest of the cnild is necessarily a broader and somewhat more subjective one. Those broad factors which are enumerated as relevant to the juvenile court’s consideration of the child’s best interest are precisely the sort of subjective factors which must not enter into its initial determination of the existence of a statutory ground of parental default or inability. Crook v. Ga. Dept. of Human Resources, supra. Thus, in the second stage of the juvenile court’s consideration of a petition to terminate parental rights, it must make a subjective finding as to the best interest of the child, which finding, by its terms and nature, cannot be confined to any set of objective standards and which is not readily amenable to appellate review other than for a manifest abuse of discretion. See generally In re H. B. & K. B., supra.

Accordingly, we find there is no explicit statutory requirement for entering the specific findings of fact which support the juvenile court’s ultimate finding that, based upon its further consideration of the best interest of the child, the rights of a defaulting parent should be terminated. Moreover, there is no logical reason for imposing such a requirement. Here, the juvenile court made explicit findings as to the wantoness and wilfulness of the failure of appellant’s father to comply with a court order of child support. An appellate determination as to whether it was a manifest abuse of discretion for the juvenile court further to have found that it was in appellant’s best interest to have the parental rights of such a wantonly and willfully defaulting father terminated does not require the entry of the explicit factual findings which support that conclusion. As discussed in Division 2, there is sufficient clear and convincing evidence in the record to support the juvenile court’s explicit findings that appellant’s father was in default of his parental obligations and to support its ultimate finding that it was in appellant’s best interest that the parental rights of his defaulting father should be terminated. The order of termination is not subject to a procedural attack for failure of the juvenile court to have stated the explicit underlying findings of fact which supported its ultimate finding that the termination of the father’s parental rights was in appellant’s best interest.

Decided May 11, 1988

Rehearing denied June 8, 1988.

Bradley J. Boyd, for appellant.

John B. Jay, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76180.
    Le TWIGGE, LTD. et al. v. WAMMOCK & COMPANY.
    (370 SE2d 631)
   Carley, Judge.

Appellant-plaintiffs operated retail establishments which were located on the first floor of a shopping center. Appellee-defendant occupied the premises directly above appellants’ establishments. In February of 1983, a fire broke out in appellee’s premises and the overhead sprinkler system was activated. The sprinklers operated for a number of hours without being detected and, as the result, appellants’ establishments were flooded. Appellants brought this tort suit, alleging that the extensive water damage to their property was the proximate result of appellee’s negligence. Appellee answered, denying the material allegations of the complaint. The case came on for a jury trial. As to each appellant, the jury returned a verdict in the amount of $100. Pursuant to this court’s grant of their application for a discretionary appeal, appellants appeal from the judgments which were entered on the jury’s verdicts.

In their sole enumeration of error, appellants urge that the damages awarded by the jury were inadequate. “The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. [Cits.]” (Emphasis supplied.) Cullen v. Timm, 184 Ga. App. 80, 82-83 (2) (360 SE2d 745) (1987). The uncontroverted evidence adduced at the trial of this case showed that, as a result of the flooding, each appellant had suffered extensive property damage in excess of $20,000. However, there was also evidence, admitted without objection, showing that, with the exception of a $100 deductible, appellants had been fully compensated for their damages by their insurance carrier. Since appellants’ causes of action arose in 1983, the evidence of their receipt of payments from a collateral source would not have been admissible under OCGA § 51-12-1 (b). “There is no expressed or clear intention of the legislature to give [OCGA § 51-12-1 (b)] retroactive effect. Therefore, it shall be given prospective effect only and does not apply to this case.” Polito v. Holland, 258 Ga. 54, 58 (5) (365 SE2d 273) (1988). Accordingly, the issue to be decided is whether, in light of the uncontested admission of this immaterial evidence of appellants’ receipt of payments from a collateral source, the jury’s awards of $100 as reparation for the $20,000 in damages which they had incurred were so flagrantly inadequate as to require the reversal of the judgments entered thereon.

In Polito v. Holland, supra at 55 (2), our Supreme Court discussed “the collateral source rule as it existed prior to the enactment of OCGA § 51-12-1 (b).” The Supreme Court concluded that “[t]he collateral source rule is primarily substantive in nature. It gives a party the right to recover damages undiminished by collateral benefits. It refuses credit to the benefit of a tortfeasor of money or services received by the plaintiff in reparation of the injury or damage caused which emanate from sources other than the tortfeasor. [Cit.] ‘The collateral source rule, stated simply, is that the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish the plaintiff’s recovery of damages.’ [Cit.]” Polito v. Holland, supra at 55 (3). It would, therefore, follow that the case at bar was erroneously tried and submitted to the jury pursuant to an inapplicable rule of procedural and substantive law. Under the applicable rule of procedural and substantive law, the immaterial evidence as to appellants’ receipt of benefits from their insurer should not have been introduced and that evidence should not have been given the legal effect of diminishing their recovery of damages from appellee. “[I]t is important to understand there are two consequences of the collateral source rule. One is substantive and is that damages are not reduced by the amount of collateral benefits plaintiff receives. The other consequence of the rule is evidentiary in effect. Because of the substantive consequence of the rule, evidence of collateral benefits is not generally material.” Polito v. Holland, supra at 56 (3).

Decided May 25, 1988

Rehearing denied June 8, 1988

John F. Daugherty, Donald J. Sharp, for appellants.

However, the determination that this case was erroneously tried and submitted to the jury pursuant to an inapplicable rule of procedural and substantive law does not end our inquiry. The record shows that appellants failed to object to appellee’s introduction of evidence as to their receipt of payments from collateral sources. More significantly, it was appellants themselves who first introduced the topic of their receipt of those payments into evidence. It is thus clear that appellants elected to try this case as if OCGA § 51-12-1 (b) were applicable. “Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain, on appeal or error, that proceedings had in conformity thereto were erroneous.” 5 CJS 943, Appeal & Error, § 1508a. “In short, [a party] cannot, in the hope or expectation of obtaining a verdict in his own favor, follow a trial tactic which he may believe to be advantageous but which results in a waiver and, when a verdict is returned which he now seeks to overturn, enumerate the error as a ground for setting it aside. [Cit.]” Maloy v. Dixon, 127 Ga. App. 151,163 (4) (193 SE2d 19) (1972). “Thus, a party cannot be heard to complain of a verdict which was based upon incompetent evidence introduced by himself.” 5 CJS 947, Appeal & Error, § 1509. “A party cannot claim error because of a reference to insurance where he himself committed or invited the error, as where reference is made on direct examination, or cross-examination, of witnesses.” 5 CJS 944, Appeal & Error, § 1508a. “One cannot complain of a judgment, order or ruling that his own procedure or conduct procured or aided in causing, nor can he be heard to complain of or question a judgment which he invokes. [Cits.]” Saturday v. Saturday, 224 Ga. 236, 239 (161 SE2d 509) (1968). “Thus, appellantfs] cannot complain that the judgment was excessive . . . where the result reached was superinduced by an adherence to [their] own theory of the case. ...” 5 CJS 951-952, Appeal & Error, § 1511. The erroneous trial and submission of the case to the jury under an inapplicable rule of procedural and substantive law having been induced or invited by appellants, the judgments must be affirmed.

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.

Peter K. Kintz, R. Scott Graham, for appellee.


author: Sognier, Judge.

text:
    76237.
    JACKSON v. THE STATE.
    (370 SE2d 633)
   Sognier, Judge.

Appellant was convicted of aggravated assault and theft by taking a motor vehicle. He appeals, and in his sole enumeration of error contends the trial court erred by denying his motion in limine seeking to suppress testimony of the victim about an alleged threatening note she received from appellant.

The evidence disclosed that Catherine McBurrough, the victim, was the former wife of appellant. When she went to his mother’s residence to pick up some items awarded to her in the divorce, appellant was present and told her the items were in his mother’s bedroom. McBurrough entered the bedroom and appellant followed her, stating he had a letter he wanted McBurrough to read. Appellant closed the bedroom door and sat down on the bed; McBurrough sat in a chair and read the letter. She was allowed to testify that the letter was in appellant’s handwriting and stated that if she came back appellant would not hurt her (McBurrough); that he knew McBurrough left because there was someone else; and at the end of the letter, statements were made that appellant was first going to kill McBurrough, then her father, then her sister, and lastly, her father’s wife. McBurrough was stunned, and asked appellant if he wanted the letter back; he said yes, and McBurrough got up and gave the letter to appellant. She then started to leave and appellant hit her from behind, knocking her head into the door. McBurrough screamed for appellant’s mother to help her and call the police. The mother did not respond and appellant continued hitting McBurrough; she did not realize she was being stabbed until blood started gushing across her face. Appellant then threw McBurrough across the room and started choking her; he continued choking McBurrough until she passed out. Appellant went outside, and a short time later drove off in McBurrough’s car.

Appellant testified in his own behalf and admitted that he hit McBurrough several times, cut her with a knife, threw her across the room and choked her. He also admitted driving off in McBurrough’s car. However, he testified that McBurrough picked up the knife after reading the letter and in a struggle to get the knife away from her, appellant struck her several times and got the knife. He also testified that McBurrough grabbed him in the crotch and was squeezing him, and that all of his actions were taken in an attempt to get her to release her hold on him.

The trial judge denied appellant’s motion in limine to exclude testimony about the contents of appellant’s letter on the ground that it was part of the res gestae. Appellant argues that such testimony was inadmissible hearsay and was not part of the res gestae. He also argues that he was not notified that the State would introduce evidence of a similar transaction (terroristic threats) as required by Uniform Superior Court Rules 31.1 and 31.3, 253 Ga. 853-854. We do not agree.

Decided May 26, 1988

Rehearing denied June 8, 1988

Samuel D. Lassiter, Roger J. Dodd, for appellant.

H. Lamar Cole, District Attorney, Samuel F. Greneker, Robert T. Gilchrist, Assistant District Attorneys, for appellee.

“Circumstances forming a part or continuation of the main transaction are admissible as res gestae. [Cits.] It does not matter that the act or transaction is another criminal offense and does not tend to establish the main offense. [Cit.]” Bostic v. State, 183 Ga. App. 430, 431 (1) (359 SE2d 201) (1987). Clearly, reading the letter was a part of the circumstances forming a part of the main transaction, and thus, admissible as part of the res gestae. Further, in Meeker v. State, 249 Ga. 780, 782 (5) (294 SE2d 479) (1982), the court held it was not error to allow guards at a jail to testify as to the contents of a confession note written by appellant to another prisoner when it was shown that the note was not accessible; that the note had been handed to a prison guard and was signed by appellant; and the note was properly authenticated. In the instant case the letter was in appellant’s handwriting, was handed to McBurrough by appellant, and was returned to him, thus explaining the letter’s inaccessibility. Since McBurrough’s testimony was introduced as part of the res gestae, and not as evidence of a similar transaction, Rules 31.1 and 31.3, supra, have no application to the admissibility of such testimony. Accordingly, we find no error in the court’s ruling.

Even assuming, for the sake of argument only, that it was error to admit testimony as to the contents of appellant’s letter, such error was harmless under the facts of this case. Appellant admitted the assault on McBurrough and that he took her car, so the only question was one of credibility as to how this incident commenced. Under such circumstances, we find it highly probable that any error in admitting McBurrough’s testimony about the letter did not contribute to the verdict in this case. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Bridgers v. State, 183 Ga. App. 98, 99 (1) (357 SE2d 894) (1987).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76269.
    RAY v. THE STATE.
    (370 SE2d 629)
   Birdsong, Chief Judge.

Appellant Joe Ray appeals his conviction of involuntary manslaughter, committed while in the commission of a lawful act in an unlawful manner in violation of OCGA § 16-5-3 (b). Appellant, his friend Branscomb, and two ladies had been playing cards on the porch of a duplex owned by Branscomb. These four people were sitting on the lighted porch talking, when the deceased drove up in a van with another person. Earlier in the day, the deceased had visited the house on two occasions, once looking for and once visiting with a female occupant of the other half of the duplex. The deceased exited the van and stood behind appellant while inquiring of Branscomb whether the female occupant of the duplex was at home yet. Appellant politely requested the deceased not to stand behind him. When the deceased refused the request, the appellant asked again. The deceased refused to move after the second request. According to the appellant, at this point the deceased said: “Well, who the hell do you think you are?” and put both of his hands in his pockets. When the deceased did this, appellant jumped up, kicking his chair away; the deceased braced himself as if he wanted to fight and “acted like he was going to attack” the appellant. The appellant drew a loaded pistol from his pocket and struck the deceased with it. The gun fell on the porch and appellant retrieved it. The deceased stayed on his feet after being struck and “lunged back” at the appellant. At this point the appellant perceived that the deceased “could have did me really some damage,” and he struck the deceased a second time with the pistol. The pistol discharged killing the deceased. The appellant further testified that he did not intend to kill the deceased, that he did not pull the trigger of the pistol, and that the discharge of the pistol was an accident. The trial court’s charge to the jury included instructions on malice murder, felony murder, both statutory types of involuntary manslaughter and accident. However, the trial court refused to charge on both self-defense and accident and ultimately declined to give the defense-requested self-defense instruction. Held:

Appellant enumerates as error that “the Trial Court erred in failing to give appellant’s written request to charge on the issue of self-defense.” In his brief the appellant argues that a court may charge the jury on both the defense of accident and the defense of self-defense, even though the two defenses “may be inconsistent.” He also argues that “[t]he . . . verdict was that the appellant acted in self-defense when he struck the deceased . . . however, he used excessive force. Therefore, they convicted him of misdemeanor involuntary manslaughter. However, the jury was never told the legal definition of self-defense. . . . [Thus, t]he jury was given no legal basis to make a determination as to whether the force used by the appellant was excessive or not.”

Decided May 24, 1988

Rehearing denied June 8, 1988

Douglas L. Breault, William J. Mason, for appellant.

The basis for this appeal, in fact, is appellant’s assertion that the trial court’s failure to instruct on the requested self-defense charge prejudiced the appellant in a manner necessitating reversal of his misdemeanor involuntary manslaughter conviction. However, at trial the appellant did not request that the self-defense charge be given in regard to a particular offense. In fact, following the trial court’s charge to the jury, the appellant was asked to state his objections and pertinently responded: “Now accident and self-defense are mutually exclusive on murder and involuntary manslaughter, we’re all agreed.” Then following a somewhat convoluted explanation of the objection, appellant informed the trial judge that he only sought the self-defense charge in regard to the charge on felony murder and involuntary manslaughter where you allege an unlawful act in the example of simple battery, and that “we don’t have any other objections.” Review of this record on the four corners clearly reveals that appellant only requested the self-defense charge as to felony murder and as to involuntary manslaughter when in the commission of an unlawful act in violation of OCGA § 16-5-3 (a). The appellant effectively waived any right to have the self-defense charge given in a manner which would apply it to the charge of involuntary manslaughter in the commission of a lawful act in an unlawful manner in violation of OCGA § 16-5-3 (b).

If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground. Frymyer v. State, 179 Ga. App. 391 (3) (346 SE2d 573); Wilson v. State, 145 Ga. App. 315 (5) (244 SE2d 355); accord Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295). “ ‘[S]cope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting, and “mending your hold.” ’ ” Wilson v. State, supra at 323. Thus, there exists no viable error for this court to review.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.


text:
    76302.
    KIRKLAND et al. v. SOUTHERN DISCOUNT COMPANY et al.
    (370 SE2d 640)
   Sognier, Judge.

In a previous appeal of this case, this court reversed the judgment entered on a jury verdict in favor of Bill and Merlene Kirkland. Southern Discount Co. v. Kirkland, 181 Ga. App. 263 (351 SE2d 685) (1986). Subsequent to that decision, the Kirklands amended and restated their complaint and sought retrial. The trial court granted the motion of Southern Discount Company and its president to dismiss the complaint, and the Kirklands appeal.

Appellants contend the trial court erred by dismissing their amended complaint because this court’s previous opinion did not terminate the litigation, and they were entitled to amend their complaint and to a new trial. The trial court agreed with appellees that the opinion in Southern Discount, supra, was a final determination and did not call for further proceedings on any of the issues.

1. It is clear that as to at least two issues, no further proceedings were indicated. First, the opinion in Southern Discount, supra, reversed the trial court’s denial of Southern Discount’s motion for a directed verdict as to that portion of Count IV of the complaint which sought damages for Southern Discount’s returning to the Kirklands contracts in default marked “paid.” Id. at 265 (1). Second, the opinion reversed the denial of a directed verdict in favor of Southern Discount as to any claim for breach of contract. Id. at 265-266 (2).

In Summer-Minter v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974), the Supreme Court dealt with the question of whether, after a reversal of the trial court’s denial of defendants’ motion for summary judgment, the plaintiffs could amend their complaint by alleging a new theory of recovery. An appeal had been taken from the trial court’s denial of the defendants’ motion for summary judgment and, in a prior opinion, the Supreme Court had reversed that denial of summary judgment, saying only that the defendants were entitled to a summary judgment and the trial court had erred in refusing to grant their motion therefor. Id. at 602. In Summer-Minter, supra, the Supreme Court undertook an extensive analysis of the underlying policy in holding that its prior decision was a decision that summary judgment should be granted, and that no amendment is permissible.

Although Summer-Minter was a summary judgment case, we are guided by the rationale in that decision because “ ‘[t]he trial court’s function in ruling on a motion for summary judgment is analogous to the function it performs when ruling on a motion for directed verdict. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts.’ ” Summer-Minter, supra at 604. Just as reversal of the denial of a motion for summary judgment is a decision that summary judgment should be entered, reversal by an appellate court of the trial court’s denial of a motion for a directed verdict can mean only that a directed verdict should have been and should be entered. This is tantamount to a reversal with direction, and thus no retrial can be held on those issues. Thus, as to the two issues in which the opinion in Southern Discount, supra, reversed the trial court’s denial of appellees’ motion for a directed verdict, we agree with appellees that the litigation was ended thereby. “ ‘When the remittitur from this court on the case’s former appearance here reached the trial court, the only action under our decision and judgment that the court below could take was to make the judgment of this court the judgment of the trial court and to enter an order [granting a directed verdict.] . . . [Cit.]’ [Cit.]” Summer-Minter, supra at 607.

2. In Divisions 3 and 4 of the prior opinion, however, the reversal did not explicitly reverse denial of the motion for a directed verdict, and it is thus necessary to decide whether appellants were entitled to a new trial as to the issues presented in those divisions. Division 3 of the previous opinion dealt with the fact that the Kirklands alleged, and sought exemplary damages based on, Southern Discount’s conversion of several vacuum cleaners. However, the only evidence offered to prove this conversion allegation was evidence relating to two checks, and the trial court charged the jury only on conversion of negotiable instruments. This court held that the issue of conversion of the checks had not been raised by the pleadings or the pretrial order, and could not have been tried by implied consent under the facts presented here. See Southern Discount, supra at 266-267 (3). The decision reversed the jury verdict for damages for conversion and exemplary damages based thereon because no evidence had been proffered showing conversion of the vacuum cleaners.

“A verdict shall be directed where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cit.]’ [Cit.]” Rizer v. Harris, 182 Ga. App. 31, 32 (2) (354 SE2d 660) (1987). It is clear from the record that Southern Discount properly moved for a directed verdict and enumerated denial of the motion as error. Consequently, the reversal of the verdict for damages on the conversion claim (including any exemplary damages based thereon) on the ground that there was no evidence proffered which would support it indicates there was no conflict in the evidence as to the fact that no conversion of vacuum cleaners was proved, and a directed verdict should have been granted. Accordingly, the rationale stated in Division 1 of this opinion applies; the decision in Southern Discount, supra, terminated the litigation as to damages (both compensatory and exemplary) for conversion as well, and the trial court did not err by dismissing appellants’ amended complaint as to that issue.

3. Only the prior holding as to damages for fraud remains to be considered. In Division 4 of Southern Discount, supra, this court reversed the jury verdict as to fraud because “[i]t is evident that Counts I, II and IV allege actual fraud in violation of OCGA § 51-6-1, which requires a showing of ‘actual fraud or moral fraud,’ [cits.],” whereas “[t]he trial court’s charge permitted a finding of constructive fraud to support an allegation of actual fraud.” Id. at 268. In addition, it was held that it was “impossible for an appellate court to address an enumeration of error as to a particular count when the trial court never charges the jury as to that count, and the jury never reaches a verdict as to that count for the plaintiff or defendant. Inasmuch as the verdict does not reach the issues made by the pleadings, it is not sustainable.” Id. at 268-269. Thus, this reversal was based on the ground that the trial court’s charge to the jury was improper both in what it did cover and in what it failed to cover. This did not amount to reversal of the trial court’s denial of appellees’ motion for a directed verdict on this issue, but rather was a reversal based on the trial court’s improper charge to the jury. A new trial was therefore demanded. “Where a judgment in favor of one of two parties litigant is reversed by the appellate court without direction, and where only questions of fact, or mixed questions of law and fact are involved, the legal result is a new trial, not the rendition of a judgment without trial and as a matter of course. [Cit.] This is true even though it does not appear from the record whether or not the losing party can adduce further evidence with which to meet the deficiency pointed out in the appellate opinion. [Cit.]” Smith v. Smith, 119 Ga. App. 619, 620 (168 SE2d 609) (1969). Appellants are therefore entitled to a new trial as to the issue of fraud.

This is not necessarily to say, however, that appellants were entitled to amend their complaint, even as to the issue of fraud. The record does not reflect that leave of court or the written permission of appellees was obtained by appellants before amending their complaint. The opinion in Southern Discount, supra, does reflect, however, that a pretrial order had been entered. Id. at 266-267 (3). “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party.” OCGA § 9-11-15 (a). The legal effect of the reversal of a judgment on appeal is to nullify the judgment below and place the parties in the same position in which they were before judgment. McKay v. McKay, 93 Ga. App. 42 (3) (90 SE2d 627) (1955). Therefore, appellants were not entitled to amend their complaint without compliance with OCGA § 9-11-15 (a).

Decided May 27, 1988

Rehearing denied June 8, 1988

Kenneth M. Henson, Jr., for appellants.

W. Rhett Tanner, Milton Jones, Laureen McGurk, for appellees.

Accordingly, that portion of the trial court’s order which dismissed those allegations based on fraud appearing in appellants’ original complaint is reversed. The remainder of the trial court’s order is affirmed.

Judgment affirmed in part and reversed in part.

Been, P. J., and Car ley, J., concur.