text:
    A96A2283.
    DAVIS et al. v. SHAVERS.
    (484 SE2d 243)
   Pope, Presiding Judge.

Defendants James Travis Davis and Donald L. Shaw were members of a political group called “Citizens for Responsible Government,” which filed certain recall applications against various officials of the City of Fort Oglethorpe, including plaintiff Glenn Shavers. A trial court found that the recall applications were legally insufficient, and that decision was affirmed by the Supreme Court of Georgia in Davis v. Shavers, 263 Ga. 785 (439 SE2d 650) (1994). Thereafter, Shavers brought this action for libel against numerous members of the political group based upon statements made in the recall applications. After the defendants moved for summary judgment, 21 of the defendants were removed from the case, excluding Davis, who was chairperson of Citizens for Responsible Government and signed the applications, and Shaw, who initiated the process and presented the applications to the elections superintendent.

The case was tried against defendants Davis and Shaw, and verdicts in the amount of $40,362 were returned against each of them. Defendants now appeal the judgment entered on the verdicts, raising six enumerations of error.

1. Defendants enumerate as error the trial court’s refusal to grant their motion for j.n.o.v. on the grounds that the allegations contained in the recall applications were absolutely privileged under the provisions of OCGA § 51-5-8. Specifically, defendants argue that Georgia’s recall process, which is subject to limited judicial review, is a judicial or quasi-judicial proceeding, such that recall applications are, in effect, “pleading-type” documents whose contents are absolutely privileged to the same degree as court pleadings and other communications in civil proceedings.

Georgia law recognizes two different kinds of privileged communications: absolute and conditional. OCGA § 51-5-8 provides that “[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” While this Code section does not use the term “absolute,” our courts have determined that OCGA § 51-5-8 confers an absolute privilege for statements made in judicial pleadings. Wilson v. Sullivan, 81 Ga. 238, 243-244 (7 SE 684) (1888). Absolute privilege means that there can never be any damages for such allegations. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (6) (a) (70 SE2d 734) (1952).

Certain other communications are also enumerated as privileged under Georgia law, including “[cjomments upon the acts of public men in their public capacity and with reference thereto.” OCGA § 51-5-7 (8). However, the privilege referred to in this Code section is not absolute, rather it is conditional or qualified, requiring a showing of good faith and good intention as essential ingredients of the privilege. Fedderwitz v. Lamb, 195 Ga. 691, 692 (25 SE2d 414) (1943); see also Elder v. Cardoso, 205 Ga. App. 144, 147 (3) (421 SE2d 753) (1992). Thus, “[t]he characteristic feature of absolute, as distinguished from conditional, privilege is, that in the former the question of malice is not open; all inquiry into good faith is closed.” Wilson v. Sullivan, 81 Ga. at 243. In the latter, if actual or express malice is proven, the conditional privilege will be destroyed.

Therefore, the question that must be decided in this appeal is whether allegations made against an elected official in a recall application are absolutely privileged and afforded the same protection as allegations made in “regular pleadings filed in a court of competent jurisdiction,” (OCGA § 51-5-8) or whether these allegations are only conditionally privileged and afforded the same protection given to “[cjomments upon the acts of public men in their public capacity and with reference thereto.” (OCGA § 51-5-7 (.8)).

The Recall Act of 1989 (OCGA § 21-4-1 et seq.) sets out the process by which an elected official may be recalled. Under OCGA § 21-4-5, a recall is initiated by the filing of a recall application with the election superintendent that meets the requirements of OCGA § 21-4-5. Once a timely application has been filed, an elected official may seek judicial review “of the sufficiency of the ground or grounds for the recall and the fact or facts upon which such ground or grounds are based as set forth in such recall application.” OCGA § 21-4-6 (a). However, OCGA § 21-4-6 (f) expressly limits the extent of judicial inquiry. Judicial review “shall be only for the determination of the legal sufficiency of such alleged fact or facts as to form and not as to truth and shall not include discovery or evidentiary hearings.” (Emphasis supplied.) Thus, an elected official may only seek a judicial determination of the legal sufficiency of the form of the application, and judicial inquiry into the truth or falsity of the allegations contained in the application is expressly denied. See generally Steele v. Honea, 261 Ga. 644, 646-647 (409 SE2d 652) (1991).

Furthermore, the Recall Act of 1989 specifically denies an elected official the right to seek an evidentiary hearing where he or she could contest the truth of the accusations contained in a recall application and answer the charges, conduct discovery, call witnesses or present evidence in accordance with judicial procedures usually afforded litigants in a civil proceeding. The Act makes clear that the truth or falsity of the accusations against an elected official is to be determined by the electorate in a recall election without prior judicial review. Collins v. Morris, 263 Ga. 734, 737 (438 SE2d 896) (1994). Thus, even in cases where a recall application contains false and malicious accusations, an elected official has no right under the Recall Act of 1989 to seek an evidentiary hearing to contest the substance of the charges prior to the recall election.

Under these circumstances, we decline to hold that allegations contained in a recall application against an elected official are absolutely privileged. “ ‘The great underlying principle upon which the doctrine of privileged communications rests is public policy. This is more especially the case with absolute privilege, where the interests and the necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution, for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits.” Fedderwitz v. Lamb, 195 Ga. at 696.

We do not see how extending the absolute privilege to allegations contained in recall applications in the manner alleged by defendants will serve the public good. To the contrary, we find that allowing false and malicious allegations against an elected official to go to the electorate with no consequences whatsoever to the defamer offends all notions of fair play and justice. OCGA § 21-4-6 (f) affords an elected official no opportunity to contest false and malicious accusations in a judicial forum prior to a recall election, and we will not take away the official’s only right to seek recourse against false and malicious accusations subsequent to a recall effort. Accordingly, we follow the Supreme Court of Georgia’s path of restricting the class of absolute privilege "to narrow and well-defined limits,” Fedderwitz, 195 Ga. at 697, and hold that accusations made in recall applications are only conditionally privileged as “[cjomments upon the acts of public men in their public capacity and with reference thereto.” OCGA § 51-5-7 (8). Accordingly, the trial court did not err in ruling that the allegations contained in the recall applications against Glenn Shavers were not absolutely privileged.

2. In light of our decision in Division 1 of this opinion, we hold that the trial court’s failure to charge the jury on absolute privilege was not error.

3. Defendants also enumerate as error the trial court’s charging the jury on common law malice and libel per se, and the trial court’s failure to give three charges requested by defendants that would have further defined the elements of actual malice.

In order for a public official to prevail in a libel action, an official must establish that a defendant acted with actual malice, " ‘that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ [Cit.]” Williams v. Trust Co. of Ga., 140 Ga. App. 49, 51 (230 SE2d 45) (1976). This means that the burden is on the public official to show that a defendant had knowledge of the falsity of an accusation or acted with reckless disregard. Actual or constitutional malice is different from common law malice because knowledge of falsity or reckless disregard of the truth may not be presumed nor derived solely from the language of the publication itself. Id. at 56. “Reckless disregard requires clear and convincing proof that [a defendant] was aware of the likelihood he was circulating false information. [Cit.] Thus, it is not sufficient to measure reckless disregard by what a reasonably prudent man would have done under similar circumstances nor whether a reasonably prudent man would have conducted further investigation. The evidence must show in a clear and convincing manner that [a defendant] in fact entertained serious doubts as to the truth of his statements. . . . [Cit.]” Miller v. Woods, 180 Ga. App. 486, 488 (349 SE2d 505) (1986).

In this case, the trial court first charged the jury on actual malice and the correct burden of proof. However, over defendants’ objection, the trial court also charged the jury on common law malice (OCGA § 51-5-5) as follows: “I instruct you that in all actions for printed defamation, malice is inferred from the character of the charge. However, the existence of malice may be rebutted by proof.” The trial court also instructed the jury that if they found the accusations of misconduct in office and malfeasance in office libelous per se, that the plaintiff was entitled to recover general damages. Therefore, the trial court’s charge to the jury included both a charge on common law malice, a legal principle not applicable to this case, and actual malice, but did not explain the difference between the two or emphasize the importance of finding actual malice in this instance. The jury could have found actual malice under the first part of the charge, or inferred malice under the second part of the charge. “To give the jury a choice between common law malice and actual malice where the constitution requires that actual malice be shown is reversible error. Greenbelt Cooperative Publishing Assoc. Inc. v. Bresler, 398 U.S. 6, 10, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).” Straw v. Chase Revel, Inc., 813 F2d 356, 362 (9) (11th Cir. 1987). Furthermore, “‘[a] charge which confuses the issues in the case and injects into the case issues not made by the pleadings or the evidence is presumptively harmful to the losing party. (Cits.)’ [Cit.]” Southern Intermodal Logistics v. Coleman, 175 Ga. App. 853, 854 (1) (334 SE2d 888) (1985). Therefore, we find the trial court’s charge to the jury, when considered as a whole, constituted reversible error.

We also note that under the circumstances of this case, the trial court’s refusal to give any of defendants’ request to charge on actual malice constituted error. The only definition of “malice” contained in the trial court’s charge was that “actual malice is defined as knowledge that the statement made was false or with reckless disregard of whether it was false or not.” The trial court refused all of defendants’ requests to charge that would have emphasized the elements of actual malice and clarified the conflicting charges on actual and common law malice. Specifically, the trial court refused to charge that a public official cannot recover unless he or she proves with clear and convincing evidence that the defendant knew his statement was false; that the ultimate proof of falsehood is not enough without the speaker’s own personal knowledge or belief; that falsehood coupled with negligence is not enough; and that subjective awareness by the speaker must be shown — the test is not what a reasonable or ordinary person would think. These charges were correct statements of the law (see Miller v. Woods, 180 Ga. App. at 488; Williams v. Trust Co., 140 Ga. App. at 51; Heard v. Neighbor Newspapers, 193 Ga. App. 719, 720 (389 SE2d 267) (1989)) and would have emphasized for the jury the importance of finding actual malice in this instance. “The charge as given by the trial court did not otherwise instruct the jury on these accurate and applicable legal principles. It follows that the trial court erred in refusing to give it.” Bank South, N.A. v. Roswell Jeep Eagle, 204 Ga. App. 432, 434 (2) (419 SE2d 522) (1992).

Decided February 17,1997

Reconsideration denied March 17,1997

Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr., Jeffrey J. Dean, for appellants.

John O. Wiggins, for appellee.

4. Defendants enumerate as error the trial court’s failure to direct a verdict at the close of plaintiff’s case on the grounds that plaintiff failed to establish that defendants acted with actual malice or reckless disregard. Defendants also enumerate as error the trial court’s failure to direct a verdict on the grounds that plaintiff failed to establish damages.

We have reviewed the evidence and hold that the evidence of actual malice and damage were sufficient to be considered by the jury. Therefore, defendants’ remaining enumerations of error are without merit.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.

       OCGA § 51-5-7 was amended subsequent to the filing of this action. The 1996 amendment redesignates subsection (8) as subsection (9) and adds the words “or public women” following the words “public men.”


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A1908.
    THE STATE v. O’DONNELL.
    (484 SE2d 313)
   Pope, Presiding Judge.

Defendant Scott O’Donnell was indicted for driving under the influence of alcohol (OCGA § 40-6-391), leaving the scene of an accident (OCGA § 40-6-270), and causing serious injury by vehicle (OCGA § 40-6-394). The trial court granted defendant’s motions to suppress or exclude (1) his statement to Officer Moore that he had had several drinks, (2) the results of defendant’s field sobriety tests, and (3) the results of his breath test. The trial court properly suppressed the statement and the field test results because the officer failed to inform defendant of his right not to incriminate himself (“his Miranda rights”), and properly excluded the breath test results because the implied consent warning the officer gave defendant prior to the test was not correct. Accordingly, we affirm.

At approximately 4:00 a.m. on April 30, 1994, defendant was involved in an accident in which a person in another vehicle was seriously injured. Defendant left the scene, and was almost immediately involved in a second accident. He was arrested at the scene of the second accident and returned in the back of a police car to the scene of the first. There, Officer Moore talked to him. The officer told defendant he smelled alcohol and asked defendant if he had been drinking. Defendant said yes, he had had several drinks, but not since 8:00 the prior evening. Officer Moore then asked defendant to get out of the car and perform several field sobriety tests, which he did. The State stipulated that defendant was in custody and under arrest when Officer Moore talked with him, but neither Moore nor any other officer told defendant about his rights under Miranda.

Officer Moore also gave defendant a breath test. Prior to giving defendant the test, Moore read him an implied consent warning; but it was a version of the warning we have rejected as inadequate because it did not inform defendant that he had the right to have another test done by a qualified person of his own choosing. State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). In the State’s proffer of evidence, the officer acknowledged he did not give the correct warning at the proper time, but said that after he gave defendant the breath test, he asked defendant if he wanted another test of his own choosing.

1. The State first argues that the trial court erred in suppressing defendant’s statement and the results of the field sobriety tests because Miranda warnings are not necessary in the context of an initial on-site investigation of a traffic incident. We have indeed held that Miranda warnings generally are not necessary for roadside questioning during the routine investigation of a traffic incident. See, e.g., Daugherty v. State, 182 Ga. App. 730, 731 (2) (356 SE2d 902) (1987). But this is because a reasonable person questioned during this type of investigation would consider his detention only temporary. See Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989). Thus, Miranda warnings generally are not necessary during the initial on-site investigation because the detainees generally are not in custody or under arrest. See Coates v. State, 216 Ga. App. 93, 95 (7) (453 SE2d 35) (1994); Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990); Montgomery v. State, 174 Ga. App. 95 (1) (329 SE2d 166) (1985). Unlike most cases involving this issue, however, it is undisputed in this case that defendant was under arrest when Officer Moore questioned him and had him perform field sobriety tests; and where a defendant is under arrest, a Miranda warning must be given regardless of whether the questioning occurs in the context of a routine investigation of a traffic incident. See Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986).

2. The State further argues that even if failure to give the Miranda warning precludes use of the custodial statement Officer Moore elicited from defendant, it should not render the circumstances and results of the field sobriety tests inadmissible. In Hughes v. State, the Supreme Court of Georgia held that the results of field sobriety tests given without the benefit of Miranda warnings need not be excluded under the Fifth Amendment to the United States Constitution, as the results of such tests are not evidence of a testimonial or communicative nature. 259 Ga. at 228 (2) (b). The Supreme Court in Hughes explicitly left open the possibility that the results of sobriety tests given without Miranda warnings might nonetheless be inadmissible under OCGA § 24-9-20 (a), however, noting that the defendant in Hughes based his motion only on federal law, and not on the Georgia statute. Id. at 228.

Defendant in this case does rely on OCGA § 24-9-20 (a); and field sobriety tests given to a person under arrest, without giving him or her a Miranda warning first, are inadmissible under this Code section. See Montgomery, 174 Ga. App. at 95 (1). In Montgomery, we stated that OCGA § 24-9-20 (a) “is more protective of the individual’s right than the Fifth Amendment, which covers only a defendant’s statements, since the Georgia statute has been construed to limit the State from forcing an individual to present evidence, testimonial or real.” Id. at 96 (1), citing Creamer v. State, 229 Ga. 511 (3) (192 SE2d 350) (1972). This statement in Montgomery was dicta, since we held that the statute did not apply because the defendant in that case had not yet been arrested at the time he took the sobriety tests.. But the reasoning is nonetheless persuasive, based on the Supreme Court of Georgia’s holding in Creamer v. State: Under the constitutional and statutory law of Georgia, which “has long granted more protection to its citizens than has the United States,” Creamer, 229 Ga. at 515 (3), an arrestee may not be compelled to do an act which is incriminating, but he may be compelled to submit to acts by others (i.e., fingerprinting, identification). Id. at 516-518 (applying this standard, the Supreme Court held in Creamer that the defendant could be compelled to submit to a surgical operation to have a bullet removed from his body). We applied the Creamer standard in State v. Armstead, 152 Ga. App. 56 (1), 57 (2) (262 SE2d 233) (1979), holding that even though a defendant can be compelled to give a handwriting sample under the Fifth Amendment, he cannot be compelled to do so under Georgia law, since a handwriting sample requires the defendant to do an act rather than submit to an act. Like providing a handwriting sample, performing field sobriety tests requires a defendant to act rather than submit to acts. Thus, an arrestee must be warned of his right against self-incrimination before he is asked to take these tests.

In almost all cases involving motions to suppress field sobriety tests, we have not needed to address this question because we have determined that the detainee had not been arrested when he performed the field sobriety tests. See, e.g., Crum, 194 Ga. App. at 272. But in the one case where, as here, the defendant had clearly been arrested at the time he took the tests, we affirmed the trial court’s grant of the defendant’s motion to suppress based on the officer’s failure to warn him of his rights. See State v. Whitfield, 214 Ga. App. 574 (3) (448 SE2d 492) (1994).

We note that in Smith v. State, 202 Ga. App. 701, 702 (1) (415 SE2d 495) (1992), we stated that field sobriety tests were not inadmissible under the Fifth Amendment, and went on to say that “[t]here is no reason this holding should not extend to a claim of violation of OCGA § 24-9-20.” In Smith, we relied on Classic Art Corp. v. State, 245 Ga. 448 (265 SE2d 577) (1980), in which the Supreme Court of Georgia said that the applicability of OCGA § 24-9-20 is governed by the same standards as the Fifth Amendment, rather than on Montgomery, Creamer, and Armstead. But this reliance was misplaced, as Classic Art did not address the issue involved in Creamer and in this case: Is a particular type of evidence covered by the prohibition against compelled self-incrimination? Instead, Classic Art involved the question of whether a corporation, rather than an individual, can avail itself of the privilege against self-incrimination (the answer to which is “no” under both federal and state law). The language quoted from Smith above was unnecessary, since we had already concluded that the defendant was not in custody when he took the sobriety tests. In order to avoid confusion in this area of the law, however, this language indicating that field sobriety tests performed by an arrestee without a warning would be admissible under OCGA § 24-9-20 is disapproved.

3. The State also contends that since the officer asked defendant after his breath test whether he wanted another test of his own choosing, the officer substantially complied with the requirements of OCGA §§ 40-5-67.1 & 40-6-392, and the breath test should be admitted. But substantial compliance with these Code sections is not sufficient. The officer must give the correct warning, see State v. Causey, 215 Ga. App. 85, and he must give it when he arrests the defendant for DUI unless there are good reasons not to. Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983); Clapsaddle v. State, 208 Ga. App. 840, 841 (1) (432 SE2d 262) (1993). As the officer in this case did not give the correct warning at the time of arrest and the circumstances did not warrant a delay, the trial court properly ruled that the results of the breath test were inadmissible.

Decided March 17,1997.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Charles E. Rooks, Jeffrey J. Connor, Assistant District Attorneys, for appellant.

Germano, Kimmey & Cheatwood, John L. Kimmey III, for appellee.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Johnson, Blackburn, Smith and Ruffin, JJ, concur.


author: Andrews, Chief Judge. Pope, Presiding Judge,

text:
    A96A2538.
    BYRD v. JRC TOWNE LAKE, LTD. et al.
    (484 SE2d 309)
   Andrews, Chief Judge.

Pamela D. Byrd filed an action in April 1995 against JRC Towne Lake, Ltd. (JRC) and Harry Boone d/b/a Habitat Development Company (Boone) alleging that they negligently caused a 1993 automobile accident in which Byrd sustained personal injuries and property damage. The trial court granted identical motions for summary judgment brought by JRC and Boone on the basis that Byrd was judicially estopped from pursuing the claims asserted in the suit because she did not disclose the claims in a Chapter 13 bankruptcy petition she filed in August 1994. Byrd appeals claiming the trial court erred by applying judicial estoppel to bar the present suit.

After the 1993 automobile accident, Byrd and her husband filed a joint Chapter 13 bankruptcy petition in the U. S. Bankruptcy Court in August 1994. Along with the bankruptcy petition, the Byrds were required to file a schedule listing the personal property in which they had an interest. The schedule contained a list of various types of personal property and provided a space next to each type of property listed for the debtors to describe any interest they had in such property and give a current market value of the interest. It is undisputed that, when the Chapter 13 petition was filed, Byrd had an accrued cause of action for the claims she later asserted in the present suit. A Chapter 13 debtor’s interest in a cause of action, including an unliquidated tort claim, is personal property included as part of the bankrupt estate. 11 USC §§ 1306 (a); 541 (a); Tignor v. Parkinson, 729 F2d 977, 980-981 (4th Cir. 1984); In re Geis, 66 B.R. 563, 564 (Bkrtcy. N.D. Ga. 1986). In seeking information about Byrd’s interest in the present cause of action, the schedule of personal property required Byrd to describe any interest she had in a type of personal property described as “contingent and unliquidated claims of any nature, including tax refunds, counterclaims of the debtor, and rights to set-off claims.” Byrd’s personal property schedule showed “none” as the description of her interest in this type of personal property. Byrd also signed a verification that the personal property schedule was “true and correct to the best of [her] knowledge, information and belief.” Based on the schedules submitted with the petition, the Chapter 13 plan was subsequently confirmed by the bankruptcy court in November 1994. The case was later dismissed on the motion of the Chapter 13 trustee in November 1995. In April 1995, Byrd filed the present action making claims based on the 1993 automobile accident.

When Byrd filed the Chapter 13 petition, she had a duty to disclose the existence of the cause of action she had arising from the prior automobile accident. She failed to disclose the cause of action on the schedule of her personal property filed with the petition, and the bankruptcy court relied on the schedule as a basis for confirming the Chapter 13 plan. Byrd’s present suit asserting claims arising from the 1993 automobile accident clearly contradicts her assertion in the bankruptcy case that she had no such claims. “The essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. . . . [It] is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.” (Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996).

In Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455-456 (442 SE2d 265) (1994), we held that, in view of the stringent disclosure requirements in bankruptcy court, “the failure to disclose [a claim based on an accrued cause of action] is viewed as amounting to a denial that such claims exist.” We concluded in Southmark Corp. that the failure to disclose such a claim in the bankruptcy case precluded subsequent assertion of the claim under the doctrine of judicial estoppel. Id. at 456.

Byrd contends that judicial estoppel does not apply because the failure to list her claims from the 1993 automobile accident on the bankruptcy personal property schedule was not an intentional attempt by her to mislead the court. Byrd does not contend she was unaware of the existence of the present claims when she filed the bankruptcy petition. Rather, she contends that she did not know she was required to disclose the claims. The bankruptcy schedules clearly required disclosure of the present claims, specifically requiring disclosure of all “contingent and unliquidated claims of any nature including . . . counterclaims of the debtor and rights to setoff claims.” When confronted with the bankruptcy schedule requiring this disclosure, Byrd testified at her deposition that she had never seen the schedule, that her attorney filled it out, and that she was never asked about her involvement “in any kind of lawsuit” or “if there were any contingency claims.” She admitted she signed a verification stating that all the information in the bankruptcy schedule was true and correct, but she testified that, “I didn’t go through every piece of paper and read everything that was written there.” Nothing in the record indicates that Byrd was prevented from reading the bankruptcy schedule.

Neither Byrd’s neglect in failing to read the schedule nor any neglect she may attribute to her attorney is a ground for relieving her of the duty to disclose the claims in the bankruptcy case. See U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990). Byrd cannot rely on her own failure to read the bankruptcy schedule to advance the position that her failure to disclose the claims was unintentional. See McCrimmon v. Tandy Corp., 202 Ga. App. 233, 236 (414 SE2d 15) (1991). Under these circumstances, the trial court did not err in granting summary judgment on the basis of judicial estoppel.

Judgment affirmed.

Smith, J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

Although I agree with the decision reached by the majority, in an effort to avoid potential confusion in future cases, I write to point out the distinctions between the present case and Johnson v. Trust Co. Bank, 223 Ga. App. 650 (478 SE2d 629) (1996). In Johnson, Johnson had both informed the bankruptcy trustee about the existence of a potential tort claim and referenced the potential claim in a statement of financial affairs before his bankruptcy case was concluded. Id. at 651. Johnson also successfully moved the bankruptcy court, which was the court whose alleged manipulation was at issue, to reopen his bankruptcy.case to allow him to schedule his tort claim as a potential asset. Id. As a result, it could not be said as a matter of law that Johnson had intentionally deceived or manipulated the bankruptcy court or that he was taking a position in pursuing his tort action that was “inconsistent with one successfully and unequivocally asserted by him in a prior proceeding.” (Citation and punctuation omitted; emphasis supplied.) Id. at 652. Therefore, judicial estoppel was not warranted.

In the case at bar, however, none of the above circumstances exist, and there is no indication that plaintiff ever had any desire to have her bankruptcy case reopened to include her tort claim as a potential asset. And while plaintiff claims that she did not understand what was required to be listed in the bankruptcy schedule, this creates merely a potential issue between plaintiff and her attorney, who should have thoroughly explained any necessary paperwork to her and, as set forth by the majority, does not relieve plaintiff from the duties imposed upon her.

Decided March 17,1997.

John C. McCaffery, Lowell C. Chatham, for appellant.

Hawkins & Parnell, Alan F. Herman, Anita T Wallace, Moore, Ingram, Johnson & Steele, Eldon L. Basham, Jere C. Smith, Alexander T. Galloway III, for appellees.


author: McMurray, Presiding Judge.

text:
    A97A0186.
    THE STATE v. ALLMOND.
    (484 SE2d 306)
   McMurray, Presiding Judge.

Defendant Allmond entered his plea of guilty to six counts of armed robbery and two counts of possession of a firearm during a felony, and was sentenced ostensibly pursuant to the provisions of the First Offender Act to a period of ten years with the proviso that eight years be served in confinement and the remainder on probation. The State appeals under the authority of this Court’s decision in State v. Johnson, 183 Ga. App. 236 (358 SE2d 840), maintaining that the sentence imposed by probating a portion of defendant’s sentence in confinement is illegal and void since this is in conflict with the mandatory minimum sentence provided by OCGA § 17-10-6.1. Held:

OCGA § 17-10-6.1 (b) provides that: “Notwithstanding any other provision of law to the contrary, any person convicted of a serious violent felony . . . [which includes armed robbery and additional specified crimes] shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.” But by its terms OCGA § 17-10-6.1 (b) does not become applicable until a person has been convicted of one of the specified crimes while in the case sub judice the trial court recognized that the entry of the plea and selection for first offender treatment does not result in an adjudication of guilt or conviction. OCGA § 42-8-60. Upon fulfillment of the terms of probation or release from confinement, a first offender is discharged without any adjudication of guilt and is not considered to have a criminal conviction. OCGA § 42-8-62.

Decided March 17,1997

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellant.

Joseph Wiley, Jr., for appellee.

Under OCGA § 42-8-65 (c), a person sentenced to a term of confinement as a first offender is deemed to have been convicted of the offense during the term of the confinement. While the State maintains that this provision makes it clear that a person confined under the first offender provisions has been convicted for purposes of OCGA § 17-10-6.1, we do not agree. The purpose of the provision contained in OCGA § 42-8-65 (c) is shown by an uncodified provision of Ga. L. 1985, p. 380, which provides for the repeal of this subsection upon the ratification of a constitutional amendment extending the jurisdiction of the State Board of Pardons and Paroles to consider cases covered by OCGA § 42-8-60. Furthermore, attempting to apply OCGA § 42-8-65 (c) to determine that a sentence is illegal requires a peculiarly circular logic since the presumption of conviction arises only after the entry of the sentence so that at the time a sentence is entered there is no presumption of conviction which might bar a lesser sentence.

The legislature is deemed to have had full knowledge of existing law when enacting OCGA § 17-10-6.1 (b). Powell v. VonCanon, 219 Ga. App. 840, 841 (2), 842 (467 SE2d 193). Thus, if the legislative intent had been to deny some aspects of first offender treatment to perpetrators of certain crimes, this could have easily been stated. In summary, it does not appear that OCGA § 17-10-6.1 (b) is intended to curtail the provisions of the First Offender Act, and the sentence imposed is legal.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A0268.
    HARPER v. THE STATE.
    (484 SE2d 307)
   McMurray, Presiding Judge.

Defendant James Shivers Harper, Jr., a/k/a James S. Harper, was charged in an indictment with burglary (Count 1), possession of a tool for the commission of a crime, namely a crack pipe (Count 2), and two counts of “OBSTRUCTION” (of a law enforcement officer) (Counts 3 and 4). Representing himself, defendant entered a written guilty plea to all offenses. But defendant claimed he was in fact guilty “as to crack pipe only [and was] pleading because it’s in [his] best interest.” Defendant was sentenced to “9 years to serve . . .” as to Count 1; “5 years cone.” as to Count 2; “12 months cone.” as to Count 3 and “12 mos. cone.” as to Count 4. From the judgment of conviction and sentence entered on his negotiated guilty plea, defendant brings this pro se appeal. Held:

1. Defendant first complains that his guilty plea was not entered into freely and voluntarily because he “did not receive adequate notice of the offense to which he plead [sic].” Specifically, he argues that he did not receive “ ‘real notice’ of the true nature of the charge against [him,]” regarding possession of a crack pipe as a tool for the commission of a crime.

The form for defendant’s guilty plea shows he wrote ‘Yes” in response to whether he knew the offenses for which he was charged; whether he understood that the maximum possible penalty was 27 years; whether he understood that, by pleading guilty, he was giving up: “the right to hear the evidence against [him] and the right to confront [his] accusers; the right to be represented by a lawyer at trial; the right to testify and offer evidence on [his] own behalf; the right to subpoena [his] own witnesses; the privilege against self incrimination; and the presumption of innocence” and whether he understood the terms of the State’s offer. After specifying that defendant was charged with “burglary, possession of a crack pipe, . . . and two counts of misdemeanor obstruction,” the State’s attorney offered a negotiated sentence of “nine years to serve,” for burglary, and “concurrent time on everything else.” In open court, in response to direct questioning by the trial court, defendant twice affirmed he understood he was “charged with the following offenses: Burglary in count one, possession of a tool for the commission of a crime, which is the crack pipe, . . . count two, count three is obstruction of a misdemeanor nature, and count four is obstruction of a misdemeanor nature, do you understand that?”

In the case sub judice, the trial court apprised the defendant of the offenses of which he was charged, enumerated and explained in detail the rights which defendant would be giving up if he pleaded guilty and the other consequences of such a plea, and carefully inquired whether he understood those consequences. In our view, this represents precisely that “ ‘utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. . . .’ [Cit.]” (Emphasis omitted.) Purvis v. Connell, 227 Ga. 764, 766 (182 SE2d 892). “We hold that the trial court adequately resolved on the record that [defendant] entered his pleas voluntarily and with an understanding of the nature of the charges and the consequences of the pleas.” Green v. State, 265 Ga. 263 (1), 264 (454 SE2d 466).

Decided March 17,1997.

James S. Harper, Jr., pro se.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

2. In his second enumeration, defendant contends the indictment failed to charge any cognizable offense, arguing that a crack “pipe itself cannot be linked to cocaine usage, unless the State Crime Lab conduct[s] [a] test.”

“A plea of guilty intelligently and voluntarily given amounts to a waiver of defenses known and unknown. Brown v. Caldwell, 229 Ga. 186 (190 SE2d 52) (1972).” Carroll v. Holt, 251 Ga. 144 (304 SE2d 60). Such a waiver includes “all defenses to the indictment. [Cits.]” Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600). In the case sub judice, defendant’s voluntary guilty plea amounts to a waiver of any valid exception to the indictment.

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A97A0570.
    LIVINGSTON v. THE STATE.
    (484 SE2d 311)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury on a single-count indictment charging him with “AGGRAVATED ASSAULT UPON A POLICE OFFICER,” on March 4, 1994. Viewing the evidence to uphold the jury’s verdict of guilty, Corporal Christopher Mark Hegwood of the Monticello Police Department was on uniform foot patrol “near the Majik Market on West Greene Street.” At approximately 3:30 a.m., he “observed a vehicle traveling into town on Highway 11. . . . The vehicle appeared to be speeding as it reached the curve right by the ball field. . . . The vehicle ran up onto the curb and it — the wheels were gyrating, making a lot of noise. It went back up onto the oncoming lane.” Corporal Hegwood radioed the Jasper County Sheriff’s Department dispatcher to be on the lookout for “either a dark blue or gray Chevrolet pickup truck travelling south on Highway 83 and it had rails running down the bed of the truck.”

Corporal Hegwood’s partner picked him up in a patrol car, and over the radio, Corporal Hegwood heard Jasper County Sheriff’s “Deputy Boyd . . . call saying that he had spotted the truck matching that description and he was fixing to stop it.” But the next transmission Corporal Hegwood heard was: “Shots fired.” When Corporal Hegwood approached Highway 83 South near Clay Street, Deputy Boyd’s patrol car “was parked on the side of the road [with] the door open[, and the] [b]lue lights were on.”

When Corporal Hegwood approached Deputy Boyd to determine the extent of his injuries, Deputy Boyd “was complaining of feeling something around his right elbow. . . .” There, Corporal Hegwood found a bullet that he “pulled out of Rick Boyd’s sleeve.” Officer Alan Burton identified defendant as the male suspect he found at the scene “laying face down on the pavement.” He further “noticed a hand gun at that time.” Officer Burton kicked “the hand gun off to the side ... for safety purposes [and] then placed handcuffs on the suspect.”

Jasper County Sheriff’s Deputy Richard Boyd had been “dispatched . . . to go out Highway 83 South to . . . locate a vehicle . . . seen coming through town by a Monticello police officer.” Coming north on Highway 83, “headed back into town, [Deputy Boyd] met a vehicle [headed south] that, in [his] opinion fit the description that had been previously dispatched.” Deputy Boyd checked with the Monticello police and was advised to “stop and check him for possible DUI.”

As Deputy Boyd approached “with blue lights on[, the suspect vehicle] immediately started slowing down and pulled over on the shoulder.” Deputy Boyd radioed his dispatcher to give her “the tag number, the final stop location and ... [to advise they] would need a wrecker.” When Deputy Boyd exited his patrol unit, he was wearing the standard uniform plus a brown Department issue jacket with patches on the shoulder. The driver complied with Deputy Boyd’s instruction to shut the engine off. With his flashlight, Deputy Boyd was able to see the face of the driver, whom he identified as defendant.

“At the point when [Deputy Boyd] raised the flashlight, it reflected on the face of the driver and that’s the instant that the side glass just more or less exploded. [He] could hear the sound of a gun shot and the driver door glass, side glass, just exploded in [his] face. ... It knocked [his] glasses off. At that time, [Deputy Boyd] felt a blow to [his] chest. [He] was reasonably sure [he] had been shot.” He did see one flash inside the vehicle. As he made his way to safety, Deputy Boyd heard three more gunshots. From the patrol car, he “could see the driver standing there beside the truck . . . still holding the pistol.” Just as Deputy Boyd was about to fire his own weapon, defendant “spun around. He turned around real quick, exposed his back to me, and, as he was turning, [Deputy Boyd] saw the pistol fall from his [defendant’s] right hand.” Consequently, Deputy Boyd “fired no shots through the incident.” Instead, he “just screamed at [defendant] to get down. And [defendant] dropped down on his knees [and finally] went face down on the ground.” Deputy Boyd subsequently discovered that the protective “vest [he] was wearing had a steel plate[, and that plate] was dented.”

George Alan Banknell, a passenger, identified defendant as the shooter. In 1994, when George Alan Banknell was 14 and defendant was 15, they were next-door neighbors in Winder, Georgia. On March 4, 1994, they were driving around in a stolen truck belonging to George Alan Banknell’s brother. George Alan Banknell related that after Detective Boyd had stopped their truck, “he came up to the window and knocked on the window and said, turn the truck off. . . . And [then George Alan Banknell] heard a shot.” He saw a gun in defendant’s hand.

Special Agent Ricky Harvey of the Georgia Bureau of Investigation related for the jury defendant’s custodial statement, in which defendant admitted: “I was driving when the [policeman] pulled us over. He came to the door. He got shot by me. I guess I was scared is why I shot him. I was in the car when I shot him.”

Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant’s second enumeration contends the trial court erred in admitting his custodial statement into evidence, arguing that the same was not freely and voluntarily given.

Only Special Agent Harvey testified at the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing. His evidence authorized the trial court to conclude that Special Agent Harvey “advised them of the [Miranda] rights, him [defendant] and his mother and [her] boyfriend, [when] they were all in the [same] room.” Defendant indicated he was 15 and “that he had completed the seventh grade.” After defendant “completed the statement, then I [Special Agent Harvey] read that statement back over to him and gave it to him and his mother to read and then asked him, if that was correct, to initial it at the beginning and at the end and then sign it.” Both defendant and his mother signed the statement.

The trial court determined that defendant’s statement was “freely and voluntarily [given] without any hope of benefit or fear of injury.” “We affirm the trial judge’s ruling in this case.” Riley v. State, 237 Ga. 124, 128 (226 SE2d 922). See also Henry v. State, 264 Ga. 861, 862 (2) (452 SE2d 505).

2. Defendant enumerates the general grounds. In our view, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of aggravated assault on a police officer, as alleged in the indictment. OCGA § 16-5-21 (a) (2); Brown v. State, 180 Ga. App. 361, 363 (2) (349 SE2d 250).

Judgment affirmed.

Beasley and Smith, JJ, concur.

Decided March 17,1997.

Lawrence, Ford & Ridgeway, Francis N. Ford, for appellant.

Fredric D. Bright, District Attorney, Paul L. Groth, Shelley S. Tice, Assistant District Attorneys, for appellee.


text:
    A97A0771.
    PATTERSON v. THE STATE.
    (484 SE2d 317)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of burglary. The evidence adduced at trial reveals that defendant entered the victim’s warehouse, without authority, for the purpose of stealing copper tubing. This appeal followed. Held'.

Defendant challenges the sufficiency of the evidence, arguing that his testimony that he did not enter the victim’s warehouse for an unlawful purpose raises doubt as to his conviction for the crime charged. This argument is without merit.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130). In the case sub judice, one of the victim’s employees testified that he observed defendant inside the victim’s warehouse, without authority, removing copper tubing “off of a storage shelf.” This evidence, and testimony that defendant fled when law enforcement officers arrived at the victim’s warehouse, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary. OCGA § 16-7-1 (a); Jackson v. Virginia, 443 U. S. 307, supra.

Judgment affirmed.

Beasley and Smith, JJ, concur.

Decided March 17,1997.

Timothy L. Barton, James J. Lacy, for appellant.

Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.


author: Johnson, Judge.

text:
    A96A1714.
    LATEX EQUIPMENT SALES & SERVICE, INC. v. APACHE MILLS, INC.
    (484 SE2d 274)
   Johnson, Judge.

The issue presented in this case is whether judgment was properly entered on a jury verdict awarding the buyer of custom-built manufacturing equipment incidental damages for increased operating expenses incurred as a result of the seller’s failure to deliver the machinery as agreed. We hold that, under the circumstances presented here, the judgment was properly entered.

Viewed in a light most favorable to the verdict, the evidence shows the following: Latex Equipment Sales & Service, Inc. designs, builds and installs standard and specialty machines used in textile manufacturing. Apache Mills, Inc., a textile manufacturer, had been cutting its materials manually and, in an effort to decrease labor costs and alleviate inventory storage problems associated with manual cutting, Apache Mills began investigating the use of automatic cutting equipment. Because standard machines could not effectively cut the wide range of materials processed by Apache Mills, it contacted Latex Equipment to see if it could recommend an appropriate machine. Before making any recommendations, Latex Equipment representatives toured Apache Mills’ plant on several occasions, observed the operations from start to finish, and witnessed the problems caused by the manual cutting process. Apache Mills and Latex Equipment subsequently entered into a contract for Latex Equipment to design, build and install a cutting machine that would meet Apache Mills’ special needs. As modified, the automatic cutting machine cost $73,291 and was to be completed on or about March 1, 1993. The agreement provided that Apache Mills would pay one-third of the price at the time the contract was executed, one-third at the time of shipment, and one-third within 30 days after shipment. Apache Mills made the first payment as agreed. However, the machine was not ready in March as promised. In October 1993, Latex Equipment contacted Apache Mills and informed it the machine was ready for shipping, but that Apache Mills would have to pay the full balance, rather than the one-third payment required by the contract. Latex Equipment claimed the new payment terms were justified because Apache Mills defaulted on payment for other equipment it purchased earlier and so might default on the remaining payment on the cutting machine contract when it came due. Apache Mills refused to pay the entire balance and instead filed this suit, seeking injunctive relief, specific performance, money damages, attorney fees and litigation expenses. In the meantime, Apache Mills attempted to find another company to build the specialty machine but was unsuccessful. The jury returned a verdict awarding Apache Mills specific performance, incidental damages for increased operational expenses, interest on the down payment, attorney fees and litigation expenses. Latex Equipment appeals from the judgment entered on the verdict and the denial of its motions for new trial and for judgment n.o.v. We affirm.

1. Latex Equipment argues that the trial court erred in entering judgment on the jury’s verdict awarding incidental damages for increased operating expenses because: Apache Mills did not present evidence of the machine’s market value, consequential damages, or of expenses saved as a result of the breach, as required by OCGA § 11-2-713 (1); increased operating expenses do not qualify as incidental damages under OCGA § 11-2-715; increased operating expenses normally qualify as consequential rather than incidental damages, except that they do not amount to consequential damages here because the seller could not have foreseen the damages and the buyer could have mitigated its losses; and, the amount of damages awarded was unreasonable.

In considering these arguments, we bear in mind that the remedies provided by the Uniform Commercial Code “should be liberally administered so that the aggrieved party may be put in as good a position as if the other party had fully performed.” (Citation and punctuation omitted.) Emmons v. Burkett, 256 Ga. 855, 858 (2) (353 SE2d 908) (1987); see OCGA § 11-1-106.

(a) Latex Equipment’s contention that increased operating expenses do not qualify as incidental damages under OCGA § 11-2-715 is without merit. OCGA § 11-2-715 (1) provides, in relevant part, that incidental damages include any reasonable expenses incurred by the buyer as a result of the seller’s breach. A jury was authorized to find from the evidence that the expenses were reasonable and were incurred as a result of Latex Equipment’s failure to deliver and install the machine. Evidence at trial showed that as a result of Latex Equipment’s failure to deliver the custom-designed cutting machine, Apache Mills incurred labor and inventory storage costs of $568,771 that it would not have incurred had the machine been delivered and installed two years earlier as promised. While we have found no Georgia cases addressing the issue, increased labor costs have been held to qualify as incidental damages under the UCC and other states’ versions thereof. See Ohline Corp. v. Granite Mill, 849 P2d 602, 605 (II) (Utah App. 1993); see generally Jay V. Zimmerman Co. v. General Mills, 327 FSupp. 1198, 1205 (11) (D. Ct. Missouri 1971). We note that awarding damages for operating costs which would not have been incurred absent a breach by the seller is consistent with the UCC’s purpose of putting the buyer in as good a position as if the seller had fully performed. See OCGA § 11-1-106.

(b) Latex Equipment’s argument that increased operating expenses could not have qualified as consequential damages in this case because the expenses incurred were unforeseeable and could have been prevented is without merit. See OCGA § 11-2-715 (2) (a). That Latex Equipment could not have foreseen the consequences of nondelivery is contradicted by evidence that its agents made several visits to the plant, observed the operations, were aware of the space and cost problems caused by manual processing, were aware that a standard machine would not suffice, and designed and built equipment to alleviate those specific problems.

Similarly, Latex Equipment’s claim that Apache Mills could have mitigated its damages by buying a substitute machine or paying the full balance on the machine built by Latex Equipment is without merit. The transcript shows that Apache Mills did attempt to secure adequate replacement machinery, but that the promised machine was specifically designed to meet its particular needs; no comparable machine was found. Likewise, Apache Mills could not have mitigated its losses by complying with Latex Equipment’s demand to pay the balance of the purchase price early in order to secure delivery of the machine. In making its demand, Latex Equipment was no longer promising to install the machine and provide the software necessary to make the machine operational. It is clear from the trial testimony that the machine could not be installed by Apache Mills and could not be operated unless Latex Equipment installed the software it created for this particular machine. In fact, testimony showed the machine and program were prototypes for which Latex Equipment was seeking a patent. Therefore, this argument fails as well.

(c) Latex Equipment also contends damages are not authorized because there was no evidence of the market price of the machine or expenses saved as a result of the breach. OCGA § 11-2-713 (1) provides that the measure of damages for nondelivery by the seller is the difference between the market price of the goods at the time the buyer learned of the breach and the contract price together with incidental and consequential damages, less expenses saved in consequence of the seller’s breach. The machine at issue in this case was unique and specially designed to meet the needs of Apache Mills. Therefore, there was no market price for this custom machine. However, there was evidence of what a similar machine might cost. While none of the many textile equipment manufacturers contacted by Apache Mills could build a machine identical to the one built by Latex Equipment, one manufacturer claimed that it could build a somewhat comparable machine which, unlike the machine built by Latex Equipment, would not be able to cut all of the materials processed by Apache Mills. That manufacturer stated that it could do so for $225,000 but, unlike Latex Equipment, would not provide a money-back guarantee on the machine. Thus, there was evidence of the market price of a similar, though less desirable, machine. Likewise, there was evidence of expenses Apache Mills saved due to Latex Equipment’s breach, namely that it did not have to pay wages for the workers who would have operated the machine. This enumeration is without merit.

Decided March 5,1997

Reconsideration denied March 18,1997

Brinson, Askew, Berry, Seigler, Richardson & Davis, Thomas D. Richardson, C. King Askew, Mark M. J. Wehh, for appellant.

Renzo S. Wiggins, for appellee.

(d) Latex Equipment argues the amount of the incidental damages award was unreasonable. As discussed in Division 1 (a), there was evidence that Apache Mills incurred $568,771 in incidental damages over a two-year period. Because the jury’s award of $158,541 for incidental damages was within the range of damages established by the evidence, there was no error. See Evans v. Willis, 212 Ga. App. 335, 339 (5) (441 SE2d 770) (1994).

2. In a separate enumeration, Latex Equipment contends that the trial court erred in entering judgment against it for interest on the payment made by Apache Mills. This enumeration is not supported by argument or citation of authority; it simply states that it incorporates the arguments made in Division 1. Inasmuch as those arguments have already been considered and found meritless, this enumeration is without merit as well. In any event, we note that a buyer may recover incidental damages in the form of interest on the money paid by him from the date of the breach until the present. See Fast v. Southern Offshore Yachts, 587 FSupp. 1354,1357 (1) (D. Conn. 1984) (decided based on Connecticut’s version of UCC § 2-715 (1)).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A96A1890.
    A96A1891.
    MITCHELL v. THE STATE. HICKS v. THE STATE.
    (484 SE2d 271)
   McMurray, Presiding Judge.

Defendants Mitchell and Hicks appeal their convictions of a violation of the Georgia Controlled Substances Act, trafficking in cocaine. Held:

1. Mitchell was a passenger and Hicks the driver of a vehicle pulled over in Butts County for a routine traffic stop for failure to maintain their proper lane. The car belonged to Hicks’ girl friend with whom he resided and shared the use of the vehicle.

As one deputy issued Hicks a warning citation, a second deputy walked his police dog around the car. After the police dog alerted to the presence of narcotics, the deputies commenced a search of the car, initially finding nothing, but later finding cocaine under the passenger side floor mat. The cocaine was “under the floor mat, on the flat part before the floor board goes up.” The cocaine made a visible hump on the surface of the floor mat. Mitchell was observed to have had his feet on the floor mat.

The cocaine was in the form of two wafer or cookie shaped pieces, each about one fourth of an inch thick and three inches in diameter. The pieces of cocaine were more intact than when later introduced into evidence at trial and there was testimony as to the brittle nature of the substance. The two pieces were packaged in separate plastic bags.

Both defendants question the sufficiency of the evidence to authorize their convictions. Mitchell argues that the evidence shows only his proximity to the contraband and fails to establish that he had any knowledge of its presence beneath the floor mat. The State notes that defendants had traveled from Union City in Fulton County en route to Macon, Georgia, and argues that in view of the brittle nature of the cocaine cookies it is impossible that they would have remained intact beneath Mitchell’s feet for the time this journey required, and thus that both defendants were aware of the presence of the contraband. While the first deputy searching the car did not notice the visible hump in the floor mat, a jury could have determined that such would not go unnoticed over this length of journey, particularly when beneath one’s feet. Furthermore, there was evidence of extremely nervous conduct by both defendants during the traffic stop and prior to the dog alerting on the car. The evidence included a videotape and a photograph which better enabled the jury to assess defendants’ conduct and the condition of the cocaine when discovered.

Hicks argued that there was no evidence connecting him to the contraband other than the fact that it was found beneath the floor mat of the car he was driving. Hicks maintains that no inference of possession should arise from his control over the car because Mitchell and Hicks’ girl friend had equal access to the car. But once more the determinative factor is the inferences which may be drawn from the condition of the brittle pieces of cocaine when discovered beneath the floor mat. The girl friend had no access to the car for some time prior to the beginning of the trip. Hicks testified as to a stop at a gas station after picking up Mitchell during which Mitchell was alone in the car, but this stop was apparently made before any significant progress on the journey was made. Thus, the jury could have inferred from the evidence at trial that the cocaine was placed beneath the mat shortly before it was discovered by the deputies and at a time when it must have been visible to both defendants.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Scott v. State, 223 Ga. App. 479, 480 (1) (477 SE2d 901). We conclude that the evidence was sufficient to authorize a rational trier of fact to find both defendants guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cannon v. State, 211 Ga. App. 835, 836 (440 SE2d 723).

2. Hicks’ first enumeration of error maintains that the trial court erred in refusing his request for a continuance and requiring him to proceed to trial unassisted by counsel. The transcript contains a colloquy of about six pages in which it is established that Hicks was originally provided court-appointed counsel and that he fired the court-appointed counsel because he wished to employ counsel. Yet, no employed counsel has made an appearance in the case on his behalf. Hicks represented that he had been making weekly payments to two named attorneys whom he had attempted to hire and that these attorneys were not present and had not made any appearance in the case because they had not been paid enough. The trial court had received notification through the district attorney’s office that these attorneys did not represent Hicks. Hicks, who was apparently not indigent, requested court-appointed counsel which was refused. It was clearly established that Hicks had been warned of the hazards of proceeding without an attorney and of the pending trial date.

“ ‘[Wjhen presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.’ [Cit.]” Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992). Contrary to the State’s contention, we find that a review of the entire record, with particular attention to the above-referenced, colloquy, fails to disclose any reasonable support for a conclusion that Hicks failed to act with reasonable diligence in his attempts to hire an attorney. The record shows an attempt by Hicks to employ counsel but that counsel never appeared for him. Beyond Hicks’ statement that he had not paid enough, there was no indication as to why Hicks did not succeed in retaining counsel, and whether the failure to pay enough was attributable to reasons within Hicks’ control is not shown. There is nothing which explicitly indicates that the trial court addressed the diligence issue, it having referred primarily to the warnings given to Hicks urging him to acquire an attorney. Under these circumstances, the trial court abused its discretion in forcing Hicks to proc.eéd to trial unassisted by counsel. Consequently, Hicks’ conviction must be reversed. Houston v. State, 205 Ga. App. 703, 704, supra; Callaway v. State, 197 Ga. App. 606, 607 (398 SE2d 856).

Decided March 5,1997

Reconsideration denied March 18,1997

Timothy T. Herring, for appellant (case no. A96A1890).

On remand, if Hicks remains non-indigent and is unable to obtain counsel, the question of whether he should be appointed counsel is a matter within the discretion of the trial court. See Flanagan v. State, 218 Ga. App. 598, 600 (462 SE2d 469).

3. In his remaining enumeration of error, Hicks contends the trial court erred in failing to conduct a hearing on his motion to suppress evidence. This contention rests on assertions that the record contains no order on the motion to suppress or other evidence indicating that a hearing was conducted or the motion abandoned. Yet, a supplemental portion of the record does contain an order, filed below subsequent to the filing of Hicks’ notice of appeal and also subsequent to the filing of Hicks’ brief to this Court, which purports to be a nunc pro tunc order dismissing the motion to suppress due to Hicks’ failure to appear for a scheduled hearing thereon. If this order is viable, no error arising from a failure to conduct a hearing on Hicks’ motion to suppress is apparent. And assuming that the nunc pro tunc order is a nullity since filed after the trial court’s jurisdiction over the case had been severed by the initiation of the appeal, there is still no error apparent since in the absence of the nunc pro tunc order there is no ruling or attempt to elicit a ruling on Hicks’ motion to suppress evidence. Smith v. State, 221 Ga. App. 428 (2) (472 SE2d 4); Harris v. State, 199 Ga. App. 457, 458 (3) (405 SE2d 501). This enumeration of error is without merit.

Judgment affirmed in Case No. A96A1890. Judgment reversed in Case No. A96A1891.

Johnson and Ruffin, JJ, concur.

Hemmann & Hemmann, Paul E. Hemmann, for appellant (case no. A96Á1891).

Tommy K. Floyd, District Attorney, Mark S. Daniel, Thomas R. McBerry, Assistant District Attorneys, for appellee.


author: Judge Harold R. Banke. Andrews, Chief Judge,

text:
    A96A1942.
    LANE v. MONTGOMERY ELEVATOR COMPANY.
    (484 SE2d 249)
   Judge Harold R. Banke.

Vernice L. Lane sued Montgomery Elevator Company (“Montgomery”) to recover for injuries allegedly sustained in an elevator accident occurring at Macon Northside Hospital, formerly known as Charter Northside Hospital (the “Hospital”). Lane alleged that Montgomery negligently installed, operated, and maintained the elevator at issue. Lane appeals the summary judgment in favor of Montgomery.

To prevail at summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. Lane, a licensed practical nurse, was sent to another floor to obtain some medical supplies. When she arrived at the ground floor, the elevator malfunctioned, stopping several inches above the designated floor. As Lane exited, she did not observe the drop-off and she fell forward injuring her back and leg.

Lane contended that the cause of the accident was Montgomery’s failure to properly maintain and adjust the leveling vein of the elevator that malfunctioned. Lane testified that the subject elevator had failed to level properly on other occasions prior to the incident at issue here. Ralph Pate, a deputy state inspector from the Georgia Department of Labor, testified that a properly working elevator would not stop short of its intended floor and the failure to stop properly indicates a malfunction. The repair and maintenance records show some leveling problems with the Hospital elevators less than five months earlier.

It is undisputed that Montgomery installed the elevator at issue and provided certain maintenance and repair services under a contract between Montgomery and the Hospital. In moving for summary judgment, Montgomery primarily argued that Lane failed to offer any evidence of a negligent act or omission on its part which caused the elevator not to level at the time in question. Montgomery contended that a state inspection just prior to the incident showed no problem with the elevator at issue and a state inspection afterwards was similarly favorable.

Montgomery’s employee, elevator mechanic Fred Blume, testified that the elevator was shut down and removed from service almost immediately after Lane’s fall until the completion of a state inspection by Pate, five days later. On that day, Blume and Pate jointly performed tests on the elevator and could not find any reason for the apparent malfunction. According to Pate’s official report it was “not clear what caused occurrence.” Pate approved the elevator’s return to service. According to a Department of Labor semi-annual report completed two days prior to the incident, elevator #1 passed its inspection with no violations noted. Held:

1. Montgomery claims that it was entitled to summary judgment as a matter of law and fact because pursuant to its contract with the Hospital, the Hospital had sole liability for the operation and use of the elevator equipment and because Lane failed to produce any evidence that it failed to exercise due care in its inspection and maintenance of the elevator. We disagree.

A building owner, here presumably the corporation owning the Hospital, “owes a duty of extraordinary diligence to elevator passengers and cannot delegate this duty to an independent contractor engaged to repair the elevator. [Cits.]” Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994); OCGA § 46-9-132; see Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (2) (301 SE2d 695) (1983). Under OCGA § 51-2-5 (4), an employer is liable for the negligence of an independent contractor who is performing the employer’s nondelegable statutory duty. Perry v. Soil Remediation, 221 Ga. App. 386, 388 (2) (471 SE2d 320) (1996). Nevertheless, Montgomery, regardless of its contractual obligations to the Hospital, had a duty not to act negligently toward Lane and other elevator users. See Griffin v. AAA Auto Club South, 221 Ga. App. 1, 4 (4) (470 SE2d 474) (1996); Chapman v. Turnbull Elevator, 116 Ga. App. 661 (158 SE2d 438) (1967); see Jones v. Otis Elevator Co., 861 F2d 655, 665 (IV) (11th Cir. 1988); see 26 AmJur2d 283, Elevators & Escalators, § 20 (1996).

Georgia has not addressed the issue of whether Montgomery, in its capacity as the elevator maintenance contractor, is held to the same duty as the premises owner, that of extraordinary diligence. Other jurisdictions are divided on the issue. See, e.g., Tait v. Armor Elevator Co., 958 F2d 563, 567 (3rd Cir. 1992). However, even if Montgomery’s duty to Lane is one of ordinary care, such a standard would be heightened due to the inherent risk of injury posed to those traveling on an elevator. See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (475 SE2d 188) (1996). For these reasons, we reject Montgomery’s contention that it was entitled to summary judgment as a matter of law.

Having addressed the legal issues, we next examine the parties’ evidentiary burdens. State law requires that “[a]ny elevator . . . involved in an accident described in subsection (a) or (b) of this Code section shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority.” OCGA § 8-2-106 (c). If it is proven that Montgomery violated OCGA § 8-2-106 (c), then such conduct would constitute a form of spoliation of evidence, because by working on the elevator, the evidence would have been tampered with, altered or destroyed. See Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (469 SE2d 783) (1996) (destruction of electrical parts and other items removed after fire before opponent’s opportunity to examine same necessitates remedial action); compare OCGA § 24-4-22. See, e.g., Unigard Sec. Ins. Co. v. Lakewood Engineering &c. Corp., 982 F2d 363 (9th Cir. 1992) (rebuttable presumption created against party who destroyed boat and space heater may be insufficient to cure prejudice to other side); Northern Assur. Co. v. Ware, 145 FRD 281 (D. Me. 1993) (plaintiff’s expert’s destruction of physical evidence before its examination by opposing party precluded use of expert’s testimony).

Spoliation or destruction of evidence creates the presumption that the evidence would have been harmful to the spoliator. Greer v. Andrew, 138 Ga. 663, 664 (3) (75 SE 1050) (1912); Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (2) (165 SE2d 581) (1968). Proof of such conduct would raise a rebuttable presumption against Montgomery that the evidence favored Lane, a fact rendering summary judgment inappropriate. American Cas. Co. &c. v. Schafer, 204 Ga. App. 906, 909 (3) (420 SE2d 820) (1992).

In this case, Montgomery’s service records create material issues of fact as to whether Montgomery obeyed the law. One record shows that elevator #3 experienced a blown fuse in a control circuit several hours after the accident at issue. If the elevator had been removed from service, it is not clear how it could have experienced a blown fuse. Further, the time inscribed on the service ticket for that service call is after the accident, creating the impression this elevator was not removed from service.

Another Montgomery service record dated October 12, three days after the accident and two days before the state inspection, shows that one of Montgomery’s elevator mechanics performed routine maintenance on elevators #1 through #3, including the subject elevator. Such maintenance, by the mechanic’s own admission, encompassed among other things, greasing, oiling, inspecting motor brushes, generator brushes, contacts on relays and fixing whatever needed repair. Although Blume testified that he did not touch the elevator until after the state inspection, the service record directly contradicts this testimony.

If Georgia law permitted repairs and maintenance to be performed prior to the time of the state inspection, plaintiffs would never be able to show what malfunctioned and caused their injuries. Thus, the fact that Tate, the state inspector, could not identify precisely what caused the misleveling can hardly be surprising in light of the evidence that Montgomery’s employee subjected the elevator to maintenance procedures before the state inspection. Whether Montgomery tampered with the evidence must be resolved by a jury.

Also, we find it perplexing that the evidence Montgomery provided is inconsistent as to whether the elevator at issue is #1 or #3. The state inspection report which Montgomery offered from two days before the accident was for elevator #1. However, Montgomery’s repair ticket denoted the elevator involved in the accident as elevator #3. Montgomery’s repairman, Blume, claimed that despite the fact that the service ticket on which he had described the accident specified the elevator as being #3, it was really #1. According to Montgomery’s service record, the state inspector conducted tests on elevator #1 not elevator #3, even though it was elevator #3 which Blume reported as malfunctioning and which was supposedly removed from service after Lane fell. Further, the service records fail to support Montgomery’s assertion, as well as Blume’s testimony, that Montgomery performed routine maintenance on the elevators approximately once every week. These records raise issues regarding whether Montgomery violated OCGA § 8-2-106 (c) and also whether the state actually inspected the elevator which malfunctioned. The conflict in the evidence is troublesome and cannot be deemed dispositive for summary judgment purposes, regardless of whether spoliation of the evidence occurred.

Notwithstanding the dissent’s claim to the contrary, Sparks v. MARTA, 223 Ga. App. 768 (478 SE2d 923) (1996) does not demand a different result. In Sparks, no evidence was presented that the service company tampered with the escalator before the defense expert examined it. OCGA § 8-2-106 (c). Nor was there confusion about which escalator malfunctioned or the applicable service records for the malfunctioning escalator. Here, Montgomery’s service records showing the performance of some monthly routine maintenance do not prove that such maintenance was properly performed and that Montgomery complied with the applicable standard of care for elevator servicers.

Considering the inconsistent evidence presented by Montgomery as to whether the elevator at issue was elevator #1 or #3 and in light of the service records showing that the elevator may have been placed back in service, and may have been repaired and altered in violation of state law, we find that summary judgment was inappropriate. Because material issues of disputed fact remain unresolved, we reverse summary judgment. Lau’s Corp., 261 Ga. at 491.

2. Lane contends that the trial court erred by granting summary judgment without unsealing and by apparently failing to consider certain depositions. OCGA § 9-11-56 (c) requires a consideration of the entire record by the trial court. Where the record shows that a deposition was not considered below, it may be considered on appellate review to determine the existence of genuine issues of disputed material fact. Taylor v. Schander, 207 Ga. App. 627, 628 (2) (428 SE2d 806) (1993). The testimony of Blume, Lane, and Pate demonstrates the existence of material issues of disputed fact as determined in Division 1.

Judgment reversed and case remanded.

McMurray, P. J., Pope, P. J, Johnson, Blackburn and Ruffin, JJ, concur. Andrews, C. J, Birdsong, P J., and Beasley, J., dissent.

Andrews, Chief Judge,

dissenting.

In order to create an issue of fact for a jury, Lane must show that the elevator’s malfunction was caused by a problem with the leveling mechanism and that Montgomery had actual or constructive notice of the problem and failed to properly repair or correct it. Lane has not come forward with any evidence showing the cause of the malfunction or any evidence showing even slight negligence on Montgomery’s part. Therefore, I respectfully dissent.

First, Lane cannot show any reason for the malfunction. There was expert testimony that the problem could have been due to a faulty leveling vein or it could have been caused by a power outage.

Second, there is no evidence that Montgomery was on notice of a leveling problem with any of the elevators at the hospital. The agreement between Montgomery and the Hospital provided that Montgomery would “employ all reasonable care to see that the elevator equipment is maintained in proper operating condition,” and there is no evidence that Montgomery breached this duty under the contract.

Two days before Lane’s accident, the elevator passed its semiannual inspection by the State’s inspector. On October 14, 1992, five days after the accident, Fred Blume, a Montgomery service repairman, met the State Inspector and they conducted a thorough examination of the elevator and could find nothing wrong. The elevator was returned to service with no repair or adjustment. There is an entry in the service record showing a leveling problem in May, some five months before the accident. Since the record also shows there were no further complaints received about the leveling malfunctions, this evidence supports Montgomery’s representation that any malfunctions reported were immediately corrected.

There is also no issue created by the entry in the service record showing a call to Montgomery to replace a blown fuse on the same day as the accident. The uncontradicted testimony of Blume was that he ordered the elevator removed from service. If it was somehow reactivated after Blume left, whether by the hospital, one of its employees, or whomever, this issue has no bearing on any alleged negligence of Montgomery.

The majority opinion mentions a possible issue of fact due to spoliation of evidence. Black’s Law Dictionary defines “spoliation” as “the destruction or the significant and meaningful alteration of a document or instrument.” (Citation and punctuation omitted.) Martin v. Reed, 200 Ga. App. 775 (409 SE2d 874) (1991). The only support for this proposition is an entry in Montgomery’s service call record which shows that the routine weekly maintenance, which Montgomery was obligated to provide, was performed on the elevators at the Hospital on October 12, 1992, after the accident and before the State Inspector’s visit. But, there is no further evidence or testimony in the record to show the elevator was even moved or disturbed, much less that there was any “tampering or destruction” of evidence.

There are no issues of fact created by any confusion as to whether the elevator in question was #1 or #3. As outlined above and in the majority’s opinion, Lane cannot show that Montgomery was on notice of a leveling problem with any of the elevators.

This Court has held that the owner or operator of an elevator or escalator is held to the higher duty of care chargeable to passenger carriers, and has impliedly held that the servicers of elevators are also charged with this higher standard of care. Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 458 (475 SE2d 188) (1996). But, this Court has never held that the owner or servicer was an insurer of the passengers’ safety. Id.; Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (388 SE2d 920) (1989). In James v. Otis Elevator Co., 854 F2d 429 (11th Cir. 1988), a case almost directly on point, the plaintiff fell down the elevator shaft and was injured when the door opened but the elevator had moved to another floor. The Eleventh Circuit held that because the plaintiff could not show that one of the conditions which could have caused the malfunction was present at the time of the service company’s last inspection, his theory of liability must necessarily fail. James, supra at 432.

Decided February 24,1997

Reconsideration denied March 18,1997

Dozier, Lee, Graham & Sikes, Neal B. Graham, for appellant.

Buzzell & Pinkston, R. William Buzzell II, Loretta L. Pinkston, Paige J. Lee, Lokey & Smith, Sue K. Nichols, Jon W. Burton, for appellee.

The majority’s opinion also overlooks our holding in a recent case with similar facts. In Sparks v. MARTA, 223 Ga. App. 768 (478 SE2d 923) we stated that “[ajlthough the escalator was expected to malfunction, required repairs, and was sometimes dangerous, these facts do not show that MARTA or Millar was negligent in this case.” Id. at 770. In Sparks, as in this case, plaintiffs could present no evidence that the defendant had not complied with routine maintenance procedures or had any prior knowledge that the escalator was malfunctioning. Therefore, we affirmed the trial court’s granting of summary judgment to defendants. Id. at 770-771.

This Court has specifically rejected the doctrine of res ipsa loquitur in cases involving the malfunction of mechanical devices such as escalators and elevators. See Millar, supra at 457-458; Ellis, supra at 797-798. Accordingly, Montgomery is not required to disprove Lane’s allegations. The standard for summary judgment requires only that Montgomery point to an absence of evidence on one essential element of Lane’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Lane cannot point to any evidence of negligence by Montgomery. Lane’s only argument on appeal is that because a malfunction occurred, Montgomery was negligent. This is not the law and the trial court did not err in granting Montgomery’s motion for summary judgment.

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

       Montgomery’s evidence is inconsistent as to whether the elevator involved in the accident was elevator #1 or elevator #3. For example, Blume, Montgomery’s elevator mechanic, testified that although he denoted the malfunctioning elevator as elevator #3 on the repair ticket, it was really elevator #1. It is not clear whether he or others confused the numbering on other occasions. At Pate’s deposition, Montgomery’s counsel asked Pate to assume the elevator at issue was staff elevator #1.

       Despite the inconsistent numbering of the elevators, the misleveling elevator at issue here and the elevator repaired on the same day were both designated as elevator #3 in Montgomery’s service records.

       Although federal decisions are not binding on this Court, we consider their reasoning persuasive, and in the absence of pertinent Georgia authority we are free to follow it. State v. David, 130 Ga. App. 872, 873 (204 SE2d 773) (1974).


text:
    A96A1991.
    BRADLEY v. BRADLEY.
    (484 SE2d 280)
   Johnson, Judge.

This is the third appearance of this case involving the respective rights of various beneficiaries to share in a testator’s estate. In order to present a clear view of the case, we will set out in some detail its procedural history. As complicated as the case is procedurally, however, it presents two relatively simple legal issues: Is an agreement whereby one beneficiary under a will assigns his interest in the estate to a second beneficiary valid and enforceable? And, if so, is such an agreement rendered unenforceable merely because other, alternative beneficiaries under the will later file an action against the assignor to determine his rights to inherit under the will? We hold that the agreement is valid and binding despite the subsequent filing of a legal action by the alternative beneficiaries.

Benjamin Bradley was charged with two counts of murder and one count of attempted arson in connection with the deaths of his father and stepmother. He pled guilty to two counts of voluntary manslaughter. Benjamin Bradley’s father, Howard Bradley, died testate and left nearly all of his estate to Benjamin Bradley. The will provided that if Benjamin Bradley predeceased his father and left no lineal descendants, his share would pass to other named relatives (hereinafter the “alternative beneficiaries”). The decedent left only $100 to his only other child, James Bradley, explaining in the will that real property was conveyed to James Bradley during the decedent’s lifetime.

In 1992, James Bradley sued Benjamin Bradley pursuant to OCGA § 53-4-6 (the “slayer statute”) seeking a finding that Benjamin Bradley killed their father with malice aforethought and so was not entitled to share in the estate. The trial court granted Benjamin Bradley’s motion for partial summary judgment because, even if malice was found, Benjamin Bradley’s share would go to the alternative beneficiaries named in the will rather than to James Bradley. We affirmed the judgment of the trial court. Bradley v. Bradley, 213 Ga. App. 68 (443 SE2d 863) (1994). James Bradley had also filed a wrongful death action against Benjamin Bradley, which was still pending.

In April 1994, Benjamin Bradley and James Bradley entered into an agreement which purported to settle both actions. Benjamin Bradley agreed to pay James Bradley a sum of money and convey to him his interest in a parcel of real property Benjamin Bradley was designated to receive under the will. In exchange, James Bradley agreed to release Benjamin Bradley from all claims related to their father’s death or estate.

In February 1995, the alternative beneficiaries in the will filed an action for declaratory and injunctive relief against Benjamin Bradley and the executor of the estate for a determination of whether Benjamin Bradley killed his father with malice aforethought.

A month later, Benjamin Bradley filed a motion to set aside the agreement executed by himself and James Bradley, contending that the filing of the suit by the alternative beneficiaries constituted the “act of a third party” and rendered him unable to perform his obligations under the agreement. Benjamin Bradley argued that in the event the alternative beneficiaries’ suit resulted in a finding that he acted with malice, he would be denied the right to share in the estate and therefore would be unable to convey anything to James Bradley as agreed. Before the court ruled on the motion to set aside, Benjamin Bradley and the alternative beneficiaries entered into an agreement whereby Benjamin Bradley and those beneficiaries would divide the estate between themselves, to the exclusion of James Bradley. James Bradley then filed a complaint to enforce the settlement agreement between himself and Benjamin Bradley. James Bradley moved for partial summary judgment, claiming that the 1994 agreement between the brothers was binding. In a detailed order, the trial court denied Benjamin Bradley’s motion to set aside the agreement, denied his motion to dismiss James Bradley’s complaint to enforce the settlement, and granted James Bradley’s motion for summary judgment. The court found that Benjamin Bradley had an inchoate title to the property he would inherit under the will, that the inchoate title could be and was legally assigned, and that the settlement agreement between the brothers was binding.

Although he lists three separate enumerations of error, Benjamin Bradley makes but one argument in his brief. In sum, he contends that the agreement he reached with James Bradley should have been set aside because the filing of the action by the alternative beneficiaries constituted “the acts of a third party” which prevented him from performing under the agreement. There is no merit to this argument.

“The right of an heir or a legatee to an interest in an estate is a chose in action, and is assignable.” (Citation and punctuation omitted.) Adler v. Ormond, 119 Ga. App. 60, 62 (2) (166 SE2d 384) (1969). “A chose in action includes all rights to personal property not in possession, which may be enforced by action.” (Citation and punctuation omitted.) Cullen v. Bragg, 180 Ga. App. 866, 867 (1) (350 SE2d 798) (1986). As to real property, upon the death of the testator, devisees have an inchoate title to realty which can be voluntarily conveyed and is an assignable property right. Allan v. Allan, 236 Ga. 199, 201 (223 SE2d 445) (1976). Agreements among heirs to distribute or divide property devised under a will, in lieu of the manner provided by the will, are valid and enforceable. Higdon v. Ga. Farm Bureau &c. Ins. Co., 204 Ga. App. 192, 193 (419 SE2d 80) (1992). “It is also settled law that [beneficiaries] by their agreement bind themselves thereto as well as those claiming under them.” McVay v. Anderson, 221 Ga. 381, 382 (144 SE2d 741) (1965). “Such agreements have as their consideration the termination of family controversies . . . [and] are supported by the public policy of furthering family harmony and avoiding lengthy litigation. The agreements are in essence solely contractual and governed by the rules applicable to all contracts.” (Citations and punctuation omitted.) Beckworth v. Beckworth, 255 Ga. 241, 243 (1) (a) (336 SE2d 782) (1985).

In this case, Benjamin Bradley neither alleges nor shows that the agreement fails to comply with the rules applicable to contracts. See West v. Downer, 218 Ga. 235, 241-242 (5) (127 SE2d 359) (1962). He was authorized by law to enter into an agreement assigning to another whatever interest he had in his father’s estate, and he did. Both parties, as well as those claiming under them, are bound by that agreement. Although, as Benjamin argues, a devisee’s interest in realty does not vest until assented to by the executor, once assent is given, it relates back to the date of the testator’s death. See Allan, supra.

Benjamin Bradley’s reliance on the contractual provision that the actions may be reinstated if the parties are unable to consummate the agreement due to the acts of a third party is misplaced. It is clear from the numerous pleadings filed and court rulings issued in this case and the related cases that the brothers had full knowledge before they entered into the agreement both that alternative beneficiaries were involved and there was a statute prohibiting a person who killed the decedent with malice from sharing in the estate. Yet, Benjamin agreed in writing to convey his interest under the will to James Bradley, except where the act of a third party rendered him unable to perform. The mere filing of a declaratory action by the alternative beneficiaries against Benjamin Bradley, in and of itself, did not render his performance under the agreement impossible and did nothing to divest him of his interest in the estate. This Court favors upholding settlement agreements whenever possible. See generally Schafer Properties v. Tara State Bank, 220 Ga. App. 378, 380-381 (1) (469 SE2d 743) (1996). We see no reason to set aside a valid settlement agreement based solely on the subsequent filing of an action by a third party against one of the parties to the contract. This is particularly true here, where the third party’s action was eventually dismissed and the assignor under the contract attempted to assign the same interest to the third party.

Decided March 6,1997

Reconsideration denied March 18,1997

William L. Reilly, for appellant.

Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr., Avrett, Ponder & Withrock, John T. Avrett, Clifford S. Lancey, for appellee.

A contract of compromise is binding on the parties, and neither party to a compromise has power to disregard it if it was full and final between them. Bishop v. Intl. Paper Co., 174 Ga. App. 863, 864 (1) (332 SE2d 12) (1985). The settlement agreement between Benjamin and James Bradley was full and final as to the entire controversy which existed between them; as such, it was binding upon and enforceable by and against them both. See Aetna Cas. &c. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 647 (1) (442 SE2d 778) (1994). Therefore, the subsequent filing of an action by the alternative beneficiaries had no bearing on the brothers’ obligations to each other as already set forth in the settlement agreement. The trial court did not err in denying Benjamin Bradley’s motions to set aside the agreement and to dismiss, or in granting James Bradley’s motion for summary judgment. We point out that the issue of the validity of the subsequent agreement between Benjamin Bradley and the alternative beneficiaries is not before the court and is not addressed.

Judgment affirmed.

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

       The second appearance was Bradley v. Bradley, Case No. A94A2820 (decided January 9, 1995). In that appeal, we vacated a judgment of the trial court entered after the case based on the slayer statute was voluntarily dismissed.

       “In the event that the parties are unable to consummate this agreement... by some unforeseeable circumstances or the acts of a third party, . . . the above-styled actions [will] be reinstituted. . . .”