text:
    A91A1691.
    MAULDIN v. WEINSTOCK.
    (411 SE2d 370)
   Birdsong, Presiding Judge.

Appellant Stephen Mauldin filed suit against appellee Michael Weinstock for legal malpractice. The trial court granted appellee/defendant’s motion for summary judgment and appellant is appealing from this order.

Appellant’s employment, as a ramp serviceman, with Eastern Air Lines (Eastern) was terminated after certain bags were not delivered to an aircraft on December 25, 1985. Appellant received a mailgram from Eastern, dated December 27, 1985, during the late evening of December 28, 1985, which purported to discharge him and to terminate his employment immediately, on December 31, 1985, he received another discharge notification, by certified mail and dated December 27, 1985, restating the fact of his termination of employment. This second correspondence virtually mirrored the contents of the original mailgram, and also purported to discharge appellant and terminate his employment immediately. The copy of the mailgram contained in the trial record does not reflect on its face that a copy was delivered to the union; the certified mail correspondence in this record does reflect receipt of a copy by the union on January 6, 1986. Agreement provisions require that “this notice shall be presented to such employee, with copy” of the written notice of discharge to a stated union official within five working days of the incident. (Emphasis supplied.)

Under applicable agreement provisions, a discharge becomes final, unless a timely appeal is taken therefrom; and such an appeal is postmarked within seven days of the date of receipt by the employee of the discharge notice. However, once timely appeal is taken a union member, such as appellant, enjoys the right of a de novo arbitration hearing of his discharge.

In the early evening of Friday, January 3, 1986, after the post office was closed, appellant signed the necessary appeal document at the office of appellee, and apparently reminded appellee that the appeal must be mailed before the deadline date. The envelope in which appellee’s agents mailed the document bears an official postmark of January 7, 1986, and a partially obliterated postage meter stamp date of perhaps January 3, 5, or 6.

Pursuant to the labor agreement, the administrative board, the System Board of Adjustment, was vested with “jurisdiction over disputes between any employee covered by this agreement and the company growing out of grievances or out of interpretation or application of any of the terms of this agreement.” (Emphasis supplied.) Article 19 D, Agreement Between Eastern Air Lines, Inc. and The International Association of Machinists and Aerospace Workers. However, Eastern concluded that the appeal for investigation was not timely and refused to participate in the subsequent administrative board proceeding to adjust and decide disputes under the agreement. Consequently, the board adjourned without making an adjudication of either the merits of the appeal or the issue of timeliness of the “appeal for investigation.”

Following the appeal, appellee advised appellant to initiate suit to compel Eastern to arbitrate the discharge action. Although the reason for refusal to bring suit against Eastern is contested (appellant claiming that refusal was motivated by his inability to pay appellee’s fee; appellee claiming that refusal was motivated by appellant’s then working in construction for more money and not desiring to become re-employed with Eastern), it is uncontested that in fact appellant did not authorize appellee to initiate such a suit. Neither does the record reveal that appellant retained anyone else prior to this proceeding to sue Eastern to compel arbitration of the discharge decision. Held\

1. Appellee’s brief reflects a notation that three unopened depositions, including that of appellant Mauldin, have been transmitted for this court’s consideration. Contrary to this assertion, we find the deposition of appellant Mauldin was opened before it was transmitted to this court, and the order of the trial court granting summary judgment to appellee, upon reconsideration, reflects on its face the trial court considered certain testimony in this deposition. Further, the original order of the trial court in which appellee’s motion for summary judgment was denied commences “upon full consideration of the record. . . .” Thus, this court can consider the depositions in question, particularly that of appellant, “to determine whether there remains an issue of material fact for determination below.” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535); compare Dunlap v. First Rock Credit Corp., 194 Ga. App. 563, 564 (1) (390 SE2d 919).

2. Appellant’s assertion that the trial court failed to make the factual distinction between the contractual grievance procedures and a separate federal lawsuit to compel arbitration is without merit. Review of the record fails to support this assertion. Appellant attempts to show the court’s alleged factual confusion by highlighting the court’s reference to the failure to file an appeal, and arguing that there is no evidence or contention that appellant prevented appellee in any way from timely filing his “appeal for investigation” to the administrative board. The order of the trial court granting summary judgment when reviewed in its entirety reveals the court correctly identified and distinguished the alleged untimely administrative “appeal” procedure from that of any independent court action that would have had to be initiated subsequently to compel Eastern to arbitrate the discharge issue. In fact, the references to “appeal” on the second page of the court’s order unequivocally refer to what the court loosely labeled as “an appeal to the court in order to compel Eastern to arbitrate the matter,” that is, an independent court action to compel Eastern to arbitrate the issue before the administrative board. “ ‘ “The burden is upon the party alleging error to show it affirmatively by the record.” ’ ” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709). While we do not condone the relatively undisciplined usage of the term “appeal” by the trial court, appellant has failed to show that his second enumeration of error is meritorious.

Further, for reasons stated in Division 4 below, the trial court did not commit reversible error in concluding that appellant was precluded from prosecuting his suit for legal malpractice on the basis of “waiver.” In any event, we will not reverse the correct ruling of a trial court regardless of the reason given therefor. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344); Reese Realty Co. v. Pal Realty Co., 182 Ga. App. 215 (355 SE2d 125).

3. Appellant asserts the trial court erred in finding that appellant/plaintiff was estopped due to the proceedings before Eastern’s System Board of Adjustment. In his brief appellant clarifies and limits this enumeration to the issue of “collateral estoppel.” See generally Court of Appeals Rule 15 (c) (2). Our examination of the order of the trial court granting summary judgment fails to reveal any finding of “collateral estoppel.” Moreover, appellant fails to cite any page in the record where a finding of “collateral estoppel” was expressly made by the trial court. It is not the function of an appellate court to cull the record on behalf of a party in search of instances of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251), citing Armech Svc. Co. v. Rose Elec. Co., supra.

4. Appellant asserts the trial court erred in holding that the malpractice claim was barred due to appellant’s failure to authorize appellee to bring an action to compel arbitration by Eastern.

Appellant’s reliance on Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 (273 SE2d 16) (holding that the failure to correct a prior wrongful act of legal malpractice does not constitute a separate breach for which the client has a cause of action and that in legal malpractice cases a right of action arises immediately upon the wrongful act having been committed) and Leon Jones Feed &c. v. General Business Svcs., 175 Ga. App. 569 (333 SE2d 861) (holding the principles of Jankowski controlling in a case alleging negligence in the performance of financial and tax advice services) is misplaced as these cases are factually distinguishable from the case at bar, and are not controlling as to the particular issue before us. For example, “[w]e do not read Jankowski, supra [or its progeny], as eliminating from a cause of action for [professional] malpractice the necessity that the breach of the professional’s duty to conform to a certain standard of conduct gives rise, by means of a legally attributable causal connection, to a resulting injury, loss or damage flowing to the plaintiff’s legally protected interest.” Whitehead v. Cuffie, 185 Ga. App. 351, 353 (2) (364 SE2d 87) (whole court case). In the case at bar it has never been established, by either judicial proceedings or the administrative board, that appellee/defendant has filed a late “appeal for investigation”; and the trial court correctly concluded that “the question of whether Eastern’s decision was legally correct was never answered.”

“ ‘(I)t is the general rule in the majority of states that in a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)’ Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392).” Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453). Rather, we find persuasive our holding in Rogers v. Norvel, 174 Ga. App. 453, 457-458 (330 SE2d 392) (originally physical precedent but cited with approval in Nix v. Crews, 200 Ga. App. 58, 59 (1) (406 SE2d 566); approved in Whitehead, supra; Guillebeau v. Jenkins, supra; and followed in Parten v. Swan, 183 Ga. App. 364, 366 (358 SE2d 906)) that “the alleged negligence of the attorney must be the proximate cause of the damage to the client.” Thus, “[wjhere [as in this case] the [viable] underlying action remains pending, plaintiff can prove no [such] injury because the action may terminate favorably for the client.” Compare Whitehead, supra at 351 (2). The trial court’s judgment was correct, and a judgment right for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673).

Moreover in this case, although the motive for the action may be contested, it is uncontroverted that appellant did not authorize appellee (or any of his other lawyers) to commence an independent suit to compel Eastern to arbitrate the issue at the administrative board, or to otherwise challenge Eastern’s contention that a late filing had occurred. “Since one of the necessary elements in a suit for legal malpractice is proof that the attorney’s negligence proximately caused the client’s damages, and appell[ant] has negated that element [by his election not to pursue independent judicial action against Eastern to resolve the issue of untimely filing of the ‘appeal for investigation’], the grant of summary judgment was correct.” (Emphasis supplied.) Parten v. Swan, supra at 365-366.

We recognize that in Nix v. Crews, supra at 59, a panel of this court reversed a grant of summary judgment in favor of appellee attorney in a legal malpractice suit, holding: “Because the burden was on [appellee attorney] to affirmatively establish that his negligence was not the proximate cause of [appellant/former client’s] injuries, he had to show as a matter of law that [appellant] could have abrogated the settlement if she had appeared [to contest the bank’s motion to enforce settlement]. He failed to do so, and thus this ground furnishes no basis for sustaining defendant’s motion [for summary judgment].” Id. The facts in Nix are distinguishable from the facts of the case at bar and the facts in Rogers. In Nix, the court in essence held that the attorney failed to meet his burden of proving that the former client’s actions had terminated a viable claim that the statement was invalid. In Rogers, however, we found that the attorney had met his burden of showing that his former client’s actions prevented the adjudication of a viable claim. The record in this case establishes that neither notice of the mailgram nor the certified letter fully complied with the requirements of the Agreement; and, that if the certified letter controlled, the “appeal for investigation” would have been filed within the seven-day period. The record also shows that neither the timeliness of “appeal for investigation” issue nor the merits of appellant’s claim was ever resolved either administratively or judicially, and as the administrative hearing was adjourned without resolving these issues, they remain “pending” administratively before the System Board of Adjustment. (In regard to the issue of validity of the mail-gram, this issue was timely raised before the board, and the transcript of the board proceeding was incorporated in appellee/defendant’s “Memorandum In Support of Motion for Summary Judgment.”) Further, in effect, appellant has basically adopted, without contest, the adversarial opinion of his former employer that the notice filed in his behalf by appellee was untimely.

Additionally, we find the trial court correctly applied the rule of waiver by conduct. At the outset, we note that in Nix no question was presented as to the issue of the former client’s waiver by conduct of his right to pursue prosecution of a legal malpractice claim grounded upon an alleged failure of his former attorney to file timely an “appeal for investigation”; this issue appears in this case. Thus, neither is Nix controlling as to the question of waiver. The record clearly reveals that appellant Mauldin, by his conduct, effectively precluded appellee Weinstock from timely litigating the issue of timeliness of the “appeal for investigation.” Thus, appellant’s conduct in effect prevented appellee Weinstock from judicially establishing that he had not filed an untimely administrative appeal. Moreover, examination of the record reveals this issue is genuine and not spurious. Several legitimate grounds existed for contesting the validity of Eastern’s claim that the notice was late, including that the second notice superseded the first as a matter of law and that accordingly the seven-day notice period commenced from the date of the receipt of the second notice. While we do not resolve the legitimacy of these claims today, it is sufficient to conclude, as we do, that appellant’s own conduct in refusing to authorize judicial litigation, regardless of the motive therefor, prevented it from being judicially established whether appellee’s filing actions were untimely or whether they were timely and thus negligence free. In this regard the trial court expressly found that “the question of whether Eastern’s decision was legally correct was never answered.”

The trial court found that appellant “has waived his right to complain of his former attorney’s failure to timely file an appeal [for investigation].” And although it is an issue of first impression, we find that the trial court did not err in thus concluding that “we cannot now permit Mr. Mauldin to sue his former attorney for failure to timely file an appeal [‘for investigation’] when he would not permit his attorney to pursue this course [by litigation] in the first instance.”

“[A] waiver may be established even though the acts, conduct, or declarations are insufficient to establish an estoppel.” 28 AmJur2d, Estoppel & Waiver, § 30. “Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. . . . And once a right is waived the waiver cannot be withdrawn without the consent of the other party, even if subsequent events prove the right waived to have been more valuable than was anticipated.” (Emphasis supplied.) Id. at § 156. In certain situations, “the question whether waiver will be found in any particular case depends not upon the secret intention of the party against whom it is asserted, but upon the effect which his conduct has had upon the other party, [and] [i]f intention to waive is to be implied from conduct, the conduct should speak the intent clearly.” Id. at § 158. A fine and often imperceptible line exists between an equitable estoppel and a waiver implied from conduct. Id. at § 30. And a showing of prejudice to the other party appears to be the central requirement of waiver implied from conduct. Id. In the case at bar, it is clear that appellant in fact intended, regardless of his actual motive therefor, not to authorize appellee to bring an independent suit to litigate the issue of untimely filing and to compel Eastern to arbitrate appellant’s employment termination. It is also clear that regardless of appellant’s actual intent to prejudice appellee’s legal position his conduct in fact had that result. While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established waiver becomes a question of law. Id. at § 174; compare Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (3) (395 SE2d 595) with Kusuma v. Metamatrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322).

We agree with the trial court that as a matter of law appellant waived by words and conduct his right to initiate an independent suit to contest the issue of timeliness of filing of the “appeal for investigation.” By doing so, appellant also waived any claim based on this particular issue (28 AmJur2d, supra at § 156), which perforce includes waiver of this legal malpractice action which is based on the averred lack of timeliness of filing of the “appeal for investigation.”

5. Appellant asserts that the trial court erred in granting summary judgment to appellee/defendant. In view of our holdings above, considering all admissible evidence of record (OCGA § 9-55-56 (e)), and applying the appellate rules of summary judgment, which are operative when the movant/defendant’s motion for summary judgment is granted (see generally, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); Moore v. Goldome Credit Corp., 187 Ga. App. 594 (370 SE2d 843)), we find that the trial court did not err in granting appellee/defendant’s motion for summary judgment.

Decided October 15, 1991.

Frank L. Derrickson, for appellant.

Mayer, Nations & Yates, J. Comer Yates, Weinstock & Scavo, Michael Weinstock, Hillard J. Quint, for appellee.

Michael Weinstock, pro se.

Appellant’s remaining assertions in support of his enumerations of error are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A91A1211, A91A1212.
    TRANSOUTHERN FREIGHT SYSTEMS, INC. v. ASTLEY; and vice versa.
    (411 SE2d 501)
   Banke, Presiding Judge.

Appellee Astley brought suit against appellant Transouthern Freight Systems, Inc., d/b/a Pilot Air Freight, to recover actual and punitive damages for injuries he had allegedly sustained when a vehicle he was driving was struck by a courier van which was owned by the appellant and which was being operated by a driver in its employ. The trial court directed a verdict in favor of the appellant with respect to the appellee’s claim for punitive damages, and a jury thereafter returned a verdict in favor of the appellee for actual damages in the amount of $225,000. The appellant filed an appeal from the judgment entered in this verdict, and the appellee filed a cross-appeal.

As the appellant’s driver, Richard Whitener, was attempting to turn left onto Shirley Drive from the southbound lanes of Fulton Industrial Boulevard, he observed that the vehicles in two of the three northbound lanes were stopped due to traffic that had backed up north of the intersection. These vehicles blocked Whitener’s view of the remaining northbound lane, in which the appellee’s vehicle was approaching the intersection. Whitener nevertheless proceeded to make his left turn, and as he was doing so he struck the appellee’s vehicle on the driver’s door. Whitener acknowledged at trial that his view of the appellee’s lane was obstructed but testified that he was in a hurry to pick up an item from a customer’s place of business before it closed at 5:00 p.m. and that he thought he “had a clear shot across” the intersection. The appellee testified that he did not see Whitener’s van until the “instant before impact,” and Whitener conceded that there was nothing the appellee could have done to avoid the collision. Held:

1. The appellant contends that it was entitled to a directed verdict on the ground that Whitener was an independent contractor rather than an employee acting within the scope of his employment. This contention is clearly without merit. It was established that all of the vans which Whitener drove in connection with his employment were provided to him by the appellant, that they all bore the company name on the sides, that Whitener was not responsible for their maintenance, upkeep, or repair, and that the appellant’s president or dispatcher decided which vehicle he would drive and where and in what order he was to make his pickups and deliveries. The evidence in this case clearly supported a finding that, “at the time of the collision, [Whitener] was operating [the appellant’s van] pursuant to [the appellant’s] permission, consent, and direction, and in furtherance of [the appellant’s] business. This being so, [Whitener] was acting as [the appellant’s] agent, OCGA § 10-6-1, and was acting within the scope of the authority granted him, OCGA § 10-6-50.” Transus, Inc. v. Crosby, 196 Ga. App. 880 (1) (397 SE2d 135) (1990). See also Lagoueyte v. Rocket Express, 196 Ga. App. 143 (395 SE2d 389) (1990).

2. The trial court did not err in refusing to give the appellant’s requested charges on comparative and contributory negligence. The appellant’s contentions that the appellee was traveling at an excessive rate of speed and failed to keep a proper lookout were conclusively negated by the evidence. The evidence established without dispute that the appellee was driving within the speed limit, that he had a green light to proceed across the intersection, and that he was unable to see Whitener’s vehicle until the instant before it struck him. Under the circumstances, there was no basis for a finding of any negligence on his part which might have contributed to the collision. See generally MARTA v. Allen, 188 Ga. App. 902 (7) (374 SE2d 761) (1988). Here, as in Wilson v. Valentine, 199 Ga. App. 244, 245 (3) (404 SE2d 600) (1991), “the evidence of record . . . including [Whitener’s] own testimony, conclusively negates any allegation that the collision was proximately caused by negligence on the part of the [appellee] and establishes as a matter of law that [Whitener] simply drove directly into [the appellee’s] vehicle [while making a left turn into oncoming traffic].”

3. Although the appellee filed a cross-appeal challenging the trial court’s grant of a directed verdict against him on his claim for punitive damages, he has indicated to this court that he does not desire to pursue this appeal in the event the verdict and judgment of the trial court is affirmed. Therefore, we do not reach the merits of the cross-appeal.

Decided September 4, 1991

Reconsideration denied September 25, 1991

Parkerson, Shelfer & Connell, George H. Connell, Jr., for appellant.

Barry M. Hazen, Albert R. Sacks, for appellee.

Judgment affirmed in Case No. A91A1211. Appeal dismissed in Case No. A91A1212.

Carley and Beasley, JJ., concur.


author: Cooper, Judge.

text:
    A91A1084.
    ABAD v. KRAFT, INC. et al.
    (411 SE2d 500)
   Cooper, Judge.

This appeal arises from a judgment entered in favor of defendant when plaintiff failed to appear at the call of her case for trial.

The trial court’s order, entered on November 6, 1990, recites the following: “The case having come on for trial with notice to all parties, the court having struck the demand for jury trial upon motion by defendants, the court having called the case and the plaintiff having failed to put up evidence to prove the elements of its case, the court after hearing and considering evidence offered by the defendants, the court hereby enters judgment in favor of the defendants. . . .” Plaintiff’s attorney admits that the case appeared on a trial calendar for the week of November 6 but contends that when the case had appeared on previous calendars, the trial judge had granted him 36 hours notice in which to appear because plaintiff resided in New York. Plaintiff alleges that on November 6, 1990, at 12:20 p.m., the trial court’s calendar clerk called his office and left a message that the case would be called for trial at 1:30 p.m. Although the trial court’s order states that plaintiff failed to put up evidence to prove the elements of her case, it is undisputed that neither plaintiff nor her attorney appeared for the trial of the case on November 6, 1990. Plaintiff argues that the non-appearance of plaintiff or her attorney for the trial amounted to a failure to prosecute the case; therefore, the trial court only had authority to dismiss her case pursuant to OCGA § 9-11-41 (b). We agree and reverse the trial court. “For failure of the plaintiff to prosecute . . ., a defendant may move for dismissal of an action. . . . [Such dismissal] does not operate as an adjudication upon the merits. . . .” OCGA § 9-11-41 (b). In addition, Rule 14 of the Uniform Rules for the Superior Courts, which pursuant to the Uniform State Court Rules, is also applicable to the State Courts, provides: “On its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action . . . upon the failure to properly respond to the call of the action for trial or other proceeding.” Thus, both the Civil Practice Act and the Uniform Rules for Superior Courts provide an appropriate sanction which may be employed by the court when a plaintiff fails to appear at the call of his case for trial. In the case sub judice, the trial court went beyond the available sanction and entered a judgment in favor of the defendants. While we recognize the broad discretion a trial court has in regulating the business before it, Ford Motor Credit Co. v. Williams, 194 Ga. App. 405 (1) (390 SE2d 640) (1990), we find no authority for the action taken by the trial court. Consequently, we conclude that the trial judge abused his discretion in entering a judgment against plaintiff when she failed to appear for trial.

Decided September 3, 1991

Reconsideration denied October 15, 1991

Siler & Jonap, William A. Dinges, for appellant.

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellees.

Because we are reversing the trial court, we find it unnecessary to address plaintiff’s remaining enumeration of error that the trial court erred in striking her demand for jury trial.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A91A0767.
    BROOMBERG et al. v. HUDGENS et al.
    (411 SE2d 521)
   Carley, Presiding Judge.

Appellee-defendants in this “slip and fall” action filed separate motions for summary judgment, relying upon Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). The trial court granted summary judgment in favor of both appellees and appellant-plaintiffs appeal from those orders.

Prophecy Corp. provides that “[w]here a respondent offers self-contradictory testimony on motion for summary judgment, such testimony will be construed against him unless a reasonable explanation is offered for the contradiction. [Cit.]” Boyd v. Garden Center, 197 Ga. App. 198, 199 (1) (397 SE2d 626) (1990). However, appellees do not contend that any testimony that was originally given by appellants within the parameters of the instant case is self-contradictory. Compare Prophecy Corp. v. Charles Rossignol, Inc., supra; Boyd v. Garden Center, supra; McConnell v. Winn-Dixie Atlanta, 194 Ga. App. 700 (391 SE2d 785) (1990); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 611 (2) (376 SE2d 698) (1988); Georgia Farm Bur. Mut. Ins. Co. v. Nolan, 180 Ga. App. 28 (348 SE2d 554) (1986); Simone v. Hancock Textile Co. 175 Ga. App. 191, 193 (2) (332 SE2d 669) (1985). Instead, they contend only that certain testimony which has been given by appellant Mrs. Broomberg in the instant tort case does not comport with the testimony that was given by her in a previous workers’ compensation proceeding. A review of the record shows that there is some doubt that appellees have even shown the existence of such a conflict. However, even assuming without deciding that they have, the existence of such a conflict would clearly not be a basis for applying the rationale of Prophecy Corp. In order to require, as a matter of law, that a party’s testimony be construed most strongly against him because it is contradictory or equivocal, it must be testimony that was originally given by him in the actual case itself and not testimony that he gave at some other time and place. “The conflicts alleged here by [appellees] were as to [purportedly] conflicting testimony given on previous occasions [other than in the instant case].” Slaton Machine Sales v. Owens-Illinois, Inc., 138 Ga. App. 80, 82 (3) (225 SE2d 473) (1976). It follows that the trial court erred in relying upon the inapplicable rationale of Prophecy Corp. as the basis for granting summary judgment in favor of appellees.

Decided October 1, 1991

Reconsideration denied October 16, 1991

J. Carol Sherwood, Jr., for appellants.

Dillard & Landers, Daniell S. Landers, Bryant H. Bower, Jr., Young, Young & Clyatt, James B. Thagard, for appellees. •

Judgments reversed.

Beasley and Cooper, JJ., concur.


text:
    A91A1031.
    McKISSIC v. THE STATE.
    (411 SE2d 516)
   Carley, Presiding Judge.

Appellant was indicted for aggravated battery in that she “did maliciously cause bodily harm to [the victim] by depriving [her] of the loss of vision of her right eye. . . .” Appellant was tried before a jury and found guilty. She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant had filed written requests to charge on battery and simple battery as lesser included offenses. Her sole enumeration of error relates to the trial court’s refusal to give these requests.

Appellant took the stand in her own defense. She admitted hitting the victim and denied only that she had a broken bottle in her hand when she had done so. However, it would not serve to render appellant guilty of any lesser crime than aggravated battery in that she may have maliciously caused the loss of the victim’s eyesight by employment of her bare hands rather than a broken bottle. The focus of OCGA § 16-5-24 (a) is upon whether the defendant has maliciously caused the victim to suffer an enumerated physical injury, and the means employed so as maliciously to cause such an injury is not a mitigating factor.

Appellant also denied that she had caused the victim to lose her eyesight, urging that the victim had fallen against a grill after being hit and that only then had the victim cut her eye on a piece of metal. However, this testimony would not demonstrate that appellant’s admitted initial contact with the victim had not “caused” the subsequent cut to the victim’s eye and the resulting loss of her eyesight. “ ‘[I]t is no longer important that the contact [in a battery] is not brought about by a direct application of force such as a blow, and it is enough that the defendant sets a force in motion which ultimately produces the result. . . [.]” (Emphasis supplied.) J. A. T. v. State of Ga., 133 Ga. App. 922, 923-924 (212 SE2d 879) (1975). Accordingly, if, by maliciously striking the victim, appellant set in force a motion which ultimately resulted in the victim’s loss of her eyesight, it is not determinative that appellant’s hand was not a more immediate factor in that result.

Appellant also testified that it was the victim who was the aggressor. If, however, appellant was acting in self-defense, this would not be just a mitigating factor, but would constitute an absolute defense to any criminal liability whatsoever. OCGA § 16-3-21. The trial court charged on that defense.

Appellant introduced no evidence that the physical injury suffered by the victim as the result of being struck was anything less than the deprivation of a member of the victim’s body. Appellant admitted the act of striking the victim and denied only that she wielded a broken bottle and that she was the immediate cause of the victim’s loss of her eyesight. Appellant denied that she had been the aggressor and urged that she had been acting in self-defense. Under this evidence, appellant was either guilty of aggravated battery or not guilty of any crime. There is no construction of the evidence that would authorize a finding that appellant was neither guilty of aggravated battery nor justified in striking the victim, but that she was guilty only of committing one of the lesser included offenses of simple battery or battery. “Examining the trial transcript in its entirety, we find that the offense [s] of simple battery [and battery were] not reasonably raised by the evidence adduced at trial and [were] not in issue so as to require instructions. [Cits.]” Diaz v. State, 194 Ga. App. 577, 579 (3) (391 SE2d 140) (1990).

Decided September 27, 1991

Reconsideration denied October 16, 1991

Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Samuel W. Lengen, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A91A1165.
    THE STATE v. LITTLER.
    (411 SE2d 522)
   Carley, Presiding Judge.

The stipulated facts are as follows: Appellee was arrested at 1:00 a.m. and charged with DUI via a uniform traffic citation. After being transported to the county jail, he was tested for his blood-alcohol content and processed by an identification technician at approximately 1:41 a.m. During this testing and processing, appellee allegedly committed a simple battery against the technician. Appellee was arrested for this simple battery at a later date. The county solicitor’s office handled both the DUI and the simple battery charges and filed separate accusations against appellee. After appellee entered a guilty plea and was sentenced for the DUI, he filed a motion to dismiss the simple battery accusation on the ground of former jeopardy. The trial court granted appellee’s motion, and the State appeals pursuant to OCGA § 5-7-1 (3).

The issue raised in the instant case “is whether, as a matter of law, the [simple battery charge] ‘arose from the same conduct’ as the DUI charge, ... so as to come within the prohibition of the multiple prosecution bar in OCGA § 16-1-7 (b). . . . The phrase ‘the same conduct’ in this statute has been used interchangeably with the phrase ‘the same transaction.’ [Cit.]” Harrell v. State, 196 Ga. App. 101, 102-103 (1, 2) (395 SE2d 598) (1990). In the instant case, the simple battery occurred 40 minutes after appellee’s arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by appellee, and the DUI involved appellee’s operation of a motor vehicle, but the simple battery did not. See generally Boyette v. State, 172 Ga. App. 683 (1) (324 SE2d 540) (1984); Welch v. State, 172 Ga. App. 476 (323 SE2d 622) (1984). Compare McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984). “ ‘We conclude that the offense of [simple battery] did not arise from the same transaction as the [DUI]. The [DUI was] completed at a different time and at [a] different [location]. [Cits.] Evidence of the [DUI] could be presented without permitting evidence of the [simple battery] (or vice versa). [Cits.] [Thus, we find] error in the trial court’s [grant] of [appellee’s motion].”’ Harrell v. State, supra at 103 (2).

It is of no material consequence that appellee’s DUI violation was originally premised, in part, upon former OCGA § 40-6-391 (a) (4): “A person shall not drive or be in actual physical control of any moving vehicle while . . . [t]he person’s alcohol concentration is 0.12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.” (Emphasis supplied.) Appellee urges, that his violation of this statute could not have occurred until it was established that his blood-alcohol content was 0.12 grams or greater and that this did not occur until the testing that was administered by the technician whom he allegedly assaulted. Thus, according to appellee, his DUI violation did not occur prior to, but rather contemporaneously with, his alleged commission of the simple battery against the technician. It is clear, however, that the conduct proscribed by former OCGA § 40-6-391 (a) (4) was not that of merely having a blood-alcohol content of at least 0.12 grams. That statute proscribed the act of driving or being in actual physical control of any moving vehicle while having a blood-alcohol content so great that, within three hours thereafter, it still had not dropped below 0.12 grams. Thus, if appellee had violated this former statute, it was at 1:00 a.m. when he was arrested while driving his vehicle, not at 1:41 a.m. when he allegedly attacked the technician who was merely engaged in the subsequent effort to secure evidence of appellee’s previous guilt. The circumstances are, in effect, no different than if appellee, having previously been arrested on probable cause for any other offense, attacked an officer who was conducting a post-arrest search for evidence of appellee’s commission of that prior offense. Accordingly, it is clear that appellee’s alleged subsequent attack on the technician in the instant case was no more of an extension of his prior proscribed DUI “conduct” than was the post-arrest attack on the officer in Harrell v. State, supra.

Moreover, the two-count DUI accusation that was filed against appellee had not only charged him with violating former subsection (a) (4) of OCGA § 40-6-391, but had also charged him, in the alternative, with having violated subsection (a) (1) of OCGA § 40-6-391. The count that was premised upon former OCGA § 40-6-391 (a) (4) was nolle prossed before a jury was impaneled and sworn. Therefore, even assuming that there was any merit in appellee’s contention regarding the timing of his violation of former OCGA § 40-6-391 (a) (4), his prosecution for the simple battery would not be barred in the instant case. As to the count charging a violation of former OCGA § 40-6-391 (a) (4), appellee was not placed in jeopardy. OCGA § 16-1-8 (b) (1); Alexander v. State, 192 Ga. App. 211 (384 SE2d 436) (1989). Compare State v. Smith, 185 Ga. App. 694, 696 (365 SE2d 846) (1988).

Decided October 1, 1991

Reconsideration denied October 16, 1991.

Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, Assistant Solicitor, for appellant.

W. Michael Maloof, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A91A1225.
    SNYDER v. THE STATE.
    (411 SE2d 524)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of sodomy, solicitation of sodomy, and simple battery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant submitted a written request to instruct the jury on the necessity for corroboration “where the only witness is an accomplice. . . .” OCGA § 24-4-8. The trial court’s refusal to give this request is enumerated as error.

In Motes v. State, 161 Ga. App. 173 (3) (288 SE2d 256) (1982), it was held that, notwithstanding the provisions of OCGA § 24-4-8, no corroboration would be necessary to secure a conviction for sodomy, even in the case of victimless sodomy wherein the State’s only witness consented to the proscribed act and became, therefore, an accomplice thereto. “[T]he testimony of a consenting partner to a sexual offense needs no corroboration. . . . [Cjorroborative testimony [need not] be introduced in cases involving consenting partners in order to convict of the offense of sodomy.” Motes v. State, supra at 174 (3). Appellant urges that Motes was wrongly decided and should be overruled.

We need not determine whether Motes should continue to have any viability in the case of victimless sodomy. Even assuming that an instruction on OCGA § 24-4-8 would be authorized in such a case, it would not be appropriate under the evidence here. The testimony of the 14-year-old victim did not demonstrate that he was appellant’s willing accomplice rather than appellant’s unwilling victim. In appellant’s own testimony, he did not implicate the victim as his accomplice, but he flatly denied his commission of either a willing or unwilling act of sodomy. There was no evidence to authorize a finding that the State’s witness upon whom appellant had allegedly committed an act of sodomy was an accomplice to, rather than a victim of, that proscribed act. Thus, the giving of an instruction on OCGA § 24-4-8 would not be authorized.

Decided October 1, 1991

Reconsideration denied October 16, 1991.

Paul S. Weiner, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

2. Appellant’s remaining enumeration of error also relates to the trial court’s refusal to give a requested jury instruction. A review of the charge as given by the trial court demonstrates, however, that the jury was otherwise sufficiently and fairly apprised of the legal principle contained in appellant’s refused request. Accordingly, this enumeration is without merit. See generally Daniels v. State, 184 Ga. App. 689, 690 (2) (362 SE2d 775) (1987).

Judgments affirmed.

Beasley and Cooper, JJ., concur.


text:
    A91A1011, A91A1012.
    REID v. REID (two cases).
    (411 SE2d 754)
   Cooper, Judge.

These appeals arise from the superior court’s grant of summary judgment to appellee and denial of summary judgment to appellant.

On August 18, 1987, appellant filed an application for permanent letters of administration on the estate of his deceased father, Charlie A. Reid, Sr. (“the deceased”), in which he stated that appellee was the widow of the deceased. He later amended the application by deleting appellee as widow and substituting Pauline Stapleton Reid. Appellee then filed a caveat to the application in which she contended that she, not Pauline Reid, was appellant’s widow. A hearing was held on the application in probate court on November 23, 1987. On the same day, appellee withdrew the caveat and filed an application for year’s support; however, she did not appear at the hearing. The court determined that Pauline Reid was the deceased’s widow, and after she waived her right to serve as administratrix of his estate, appellant was named administrator. The court entered its written order on the matter on January 26, 1988, nunc pro tunc. Within 30 days, appellee filed a “Petition To Set Aside and Vacate Judgment of Probate Court” in which she alleged that the judgment of the court had been obtained through fraud as appellant had not informed the court of the 1948 divorce of the deceased and Pauline Reid; that she was the widow of the deceased, having been married to him on January 28, 1954, and having resided with the deceased as his wife until his death on August 4, 1987; and that appellant was fully aware that appellee was Reid’s widow because from the age of eight, appellant was raised by appellee until he entered the armed services as an adult. The probate court denied the petition to set aside on March 28, 1988, and the court’s order was appealed to the superior court on April 8, 1988. The order of the probate court indicated that certified copies of divorce proceedings and a divorce decree between the deceased and Pauline Reid were introduced at the hearing; however, no transcript of the hearing was included in the record on appeal to this court.

In superior court, the parties filed cross-motions for summary judgment, and after a de novo trial (of which no transcript has been provided), the court determined that there were no genuine issues of material fact as the evidence revealed that the marriage of the deceased and Pauline Reid had been dissolved by decree in 1948, said decree never having been set aside or otherwise successfully attacked, and appellee was legally married to the deceased at the time of his death. The superior court concluded that appellee’s petition to set aside was an attempt to have the probate court review and reconsider a clearly erroneous factual determination and judged the pleading by its function rather than its name, treating it as a motion for new trial which allowed the entire case to be considered by the superior court and not solely the narrow question of whether the probate court erred in denying appellee’s motion. The superior court granted appellee’s motion for summary judgment, determining that appellee was entitled to be appointed as administratrix of the estate and to share in the distribution of its assets. Appellant appeals his removal as administrator in Case No. A91A1011, and in Case No. A91A1012 he appeals the court’s judgment as to appellee’s application for year’s support.

1. We first consider appellant’s contention that the superior court erred in treating appellee’s petition to set aside as a motion for new trial and in holding that the petition extended the time for appealing the January 26, 1988 order of the probate court to the superior court. We disagree. Appellee was entitled to attack the judgment in the court of its rendition. Her “petition” was timely filed, while the matter was still in the breast of the court, and despite that pleading’s caption, the superior court correctly determined that appellee sought, by filing the pleading in the probate court, a re-examination of the finding of fact that Pauline Reid was the widow of the deceased, which tolled the time for appeal to superior court. OCGA § 5-6-38; Sunn v. Mercury Marine, 166 Ga. App. 567 (1) (305 SE2d 6) (1983). “There is no magic in the nomenclature of a motion or other pleading, ‘we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.’ Holloway v. Frey, 130 Ga. App. 224 (3) (202 SE2d 845).” Gully v. Glover, 190 Ga. App. 238, 239 (1) (378 SE2d 411) (1989). Accordingly, we find no error in the superior court’s treatment of appellee’s motion as a motion for new trial.

2. In light of our decision in Division 1 that appellee properly asserted a motion for new trial, we need not address appellant’s contention in his first enumeration of error that the superior court erred in determining that the petition to set aside, pursuant to OCGA § 9-11-60, extended the time for filing the notice of appeal of the January 26, 1988 order and appellant’s third enumeration of error in which he argues that the superior court erred in holding that the January 26, 1988 order was entered either by accident or mistake and/or that there was a nonamendable defect on the face of the record under OCGA § 9-11-60. Moreover, it should be noted that neither of these contentions were actual rulings of the superior court but were discussed in response to arguments raised by appellant and illustrated alternative methods by which the court could have considered appellant’s motion and reached the same result. “ ‘(A) judgment right for any reason must be affirmed.’ [Cits.]” Baker v. Baker, 194 Ga. App. 477, 480 (2) (390 SE2d 892) (1990).

3. Appellant also contended that the court erred in denying his motion for summary judgment; however, in lieu of a discussion of the material facts and relevant authority relative to this enumeration of error, appellant merely refers to the procedural arguments made in the three preceding enumerations of error. Inasmuch as these arguments were addressed above and were resolved adversely to appellant, we will not address them here. This enumeration is without merit.

Case No. A91A1012

Appellant raises as a sole enumeration of error that the court disregarded the principle of res judicata. Appellant contends that appellee, a party or privity to the proceedings in the probate court, failed to diligently prosecute her case in that court by dismissing her caveat and not appearing at the hearing and was, therefore, barred from complaining of the court’s judgment by res judicata and collateral estoppel. Both doctrines are applicable where there is a “valid antecedent judgment” which has not been reversed or set aside. Fierer v. Ashe, 147 Ga. App. 446, 448 (249 SE2d 270) (1978); OCGA § 9-12-40. “It is the general rule that a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final judgment. [Cit.] In Georgia a judgment is suspended when an appeal is entered within the time allowed. [Cit.] And the judgment is not final as long as there is a right to appellate review. [Cit.]” Lexington Developers, v. O’Neal Constr. Co., 143 Ga. App. 440, 441 (238 SE2d 770) (1977). Despite appellant’s contention as to appellee’s lack of diligence, we have already held that appellant’s motion for new trial was timely filed in the probate court and find further that the appeal to the superior court was also filed within the time provided by law. Moreover, the judgment of the probate court was ultimately set aside by the superior court. Therefore, the probate court ruling acquired no res judicata effect. This enumeration is also without merit.

Decided October 16, 1991.

H. William Sams, Jr., for appellant.

H. Kenneth Daniel, for appellee.

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1228.
    THE STATE v. DAVIS.
    (411 SE2d 555)
   Cooper, Judge.

Appellee was indicted on March 23, 1989 for armed robbery and possession of a firearm by a convicted felon as the result of a December 30, 1988 incident. When the case was called for trial on July 14, 1989, the State and defense counsel announced ready for trial; however, on July 17, 1989, at the State’s request, the trial court entered a nolle prosequi on the indictment. Three weeks later, without taking steps to revive the indictment, the State placed the case on an October 1989 trial calendar. The trial court granted appellee’s motion to dismiss the indictment; said judgment was affirmed by this court in State v. Davis, 196 Ga. App. 785 (397 SE2d 58) (1990). On September 15, 1990, 14 months after the entry of the nolle prosequi, the State filed a second indictment on the same charges against appellee. The trial court, relying on State v. Davis, supra; Earlywine v. Strickland, 145 Ga. App. 626 (244 SE2d 118) (1978) and Code Ann. § 27-601 (4), granted appellee’s plea in bar due to the State’s failure to obtain the second indictment within six months of the entry of the nolle prosequi. The State now appeals the trial court’s grant of appellee’s plea in bar.

In Kyles v. State, 254 Ga. 49 (326 SE2d 216) (1985), the court held that the legislative enactment of Code Ann. § 26-504 (now OCGA § 17-3-3) impliedly repealed Code Ann. § 27-601 and no longer required the re-indictment of a defendant within six months of a nolle prosequi where the re-indictment is returned before expiration of the original statute of limitation. The former statute set a definite six-month limit within which the State had to re-prosecute, regardless of whether the original statute of limitation had expired; however, the current statute is a savings provision which extends the original statute of limitation for six months when a nolle prosequi is entered either after the original statute of limitation has expired or within six months of its expiration. Id. at 50. Inasmuch as the second indictment was returned within the applicable statute of limitation, the trial court erred in granting appellee’s plea in bar.

Decided October 16, 1991.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

Appellee argues that numerous factors distinguish this case from Kyles v. State, pointing to the trial court’s order granting appellee’s plea in bar in which the court stated that the State’s conduct seriously prejudiced appellee’s case inasmuch as witnesses would be difficult to locate due to the passage of time. Appellee also contends that the State’s 14-month delay in seeking another indictment constituted improper conduct by the State, relying on State v. Davis, supra, and that the delay resulted in a denial of his right to a speedy trial. The record contains no demand for trial (OCGA § 17-7-170), and appellee maintains he had no reason to assert this right after the nolle prosequi, believing that the prosecution was at an end. However, this was an erroneous conclusion on appellee’s part, and to the extent that appellee relied on State v. Davis as authority for the proposition that the State was barred from seeking a re-indictment more than six months after a nolle prosequi, that reliance was misplaced. This court, in State v. Davis, supra at 786, on the question of whether appellee could be re-indicted cited Earlywine v. Strickland, supra, which relied on Code Ann. § 27-601, and apparently was not mindful of our Supreme Court’s decision in Kyles. At any rate, after Kyles it is clear that when a nolle prosequi is entered within the statute of limitation, the State is not required to re-indict within six months of the nolle prosequi, except as noted above. Moreover, because appellee has not asserted a demand for a trial and there has been no inquiry into the delay as prescribed by Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), we cannot say that appellee’s right to a speedy trial was denied, nor can we conclude that the delay was the result of improper conduct by the State.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.

Steven E. Lister, for appellee.


text:
    A91A1338.
    ACTION AUTO RENTAL, INC. v. HAYES.
    (411 SE2d 757)
   Cooper, Judge.

Appellee had an accident while driving an automobile he rented from Action Auto Rental, Inc. (“Action Auto”). Action Auto is an approved self-insurer, having obtained a certificate of self-insurance from the Department of Public Safety. Action Auto’s self-insurance plan provides the basic personal injury protection (“PIP”) coverage required under OCGA § 33-34-4 (a). OCGA § 33-34-4 (a) (2) required motor vehicle owners to provide no-fault coverage in the minimum amount of $5,000, with a maximum amount of $2,500 to be paid as compensation for medical expenses. Appellee’s medical expenses exceeded $2,500, and after he made a claim against Action Auto for no-fault benefits, Action Auto paid appellee $2,500 for medical benefits and $720 for lost wage benefits. Appellee brought a lawsuit against Action Auto seeking an additional $1,780 in medical expenses, contending that he was entitled to stack the PIP benefits available on other vehicles insured under Action Auto’s self-insurance plan. Both parties filed motions for summary judgment, and the trial judge denied both motions. We granted Action Auto’s interlocutory appeal from the denial of its motion for summary judgment.

Both parties contend that this case is controlled by Helmly v. Gulf Ins. Co., 159 Ga. App. 339 (283 SE2d 370) (1981). In Helmly, the plaintiff was injured in an automobile accident and incurred medical expenses in excess of $13,000. At the time of the accident, the plaintiff was insured under a policy of insurance which covered his vehicle and his wife’s vehicle. The policy provided $5,000 in no-fault PIP coverage for each accident with a maximum of $2,500 for medical benefits. Plaintiff contended that since he was a named insured for each vehicle, he was entitled to stack the medical coverage so as to recover $5,000 in medical benefits rather than the $2,500 available for one vehicle. This court agreed and noted that if plaintiff had purchased two separate policies he would have been entitled to stack the medical coverage. The court further reasoned that even though plaintiff had only one policy, he had paid two premiums and thus had twice purchased the basic no-fault coverage. In the instant case, the trial judge, relying on Helmly, stated that he was unable to determine as a matter of law that appellee had paid for more than one policy thereby entitling him to stack the benefits. Helmly was decided prior to the Supreme Court’s decision in Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), which we find to control the case sub judice. “In Cannon, [supra] the Supreme Court ‘addressed the question of whether the trial court correctly refused to deduct from the verdict obtained by the injured claimant both the PIP benefits paid by her own insurer and the PIP benefits available under the policy of her father, with whom she lived.’ [Cit.]” Georgia American Ins. Co. v. Burnsed, 196 Ga. App. 626, 627 (396 SE2d 793) (1990). In determining whether the PIP coverage under the two policies could be stacked, the court referred to the definition of “insured” in OCGA § 33-34-2 (5), which provides as follows: “ ‘Insured’ means, in addition to the insured named in the policy, his spouse and children if residing in the same household, the relatives of either the insured or his spouse if residents of the named insured’s household, any pedestrian struck by the insured vehicle, and any other person using or occupying the insured vehicle with the express or implied permission of the named insured or his spouse. The term shall also include the named insured, his spouse, and any resident relative while a pedestrian or while occupying or when struck by a motor vehicle when such motor vehicle is not similarly insured as required by paragraph (2) of subsection (a) of Code Section 33-34-4.”

The Supreme Court focused on the words “similarly insured” and held that the injured claimant “would not be an insured under her father’s policy while using or occupying her own vehicle, inasmuch as that vehicle was ‘similarly insured’ as required by OCGA § 33-34-4 (a) (2).” Applying Cannon to the facts of this case, we hold that appellee is not entitled to stack the basic PIP coverage on the car which he rented with the coverage afforded on any other vehicle similarly insured under Action Auto’s self-insurance plan. The record reflects that the standard form rental agreement signed by appellee provided that Action Auto agreed to provide PIP benefits with the “maximum deductible allowed by law” and that when Action Auto applied for a certificate of self-insurance, it elected to provide only the minimum no-fault benefits allowed under Georgia law. Thus, it appears that Action Auto provided basic PIP coverage on each of the automobiles insured under its plan. It is clear that appellee was an insured under Action Auto’s plan with respect to the rented automobile and that basic PIP coverage was provided to him. However, we do not find that appellee was an insured, within the meaning of OCGA § 33-34-2 (5), with respect to the multiple vehicles insured under Action Auto’s self-insurance plan. Since only basic PIP coverage was available on each of Action Auto’s vehicles, those vehicles were similarly insured to the one appellee rented. Therefore, appellee is not entitled to stack the coverage provided on other vehicles insured by Action Auto. Accordingly, we find that the trial court erred in denying Action Auto’s motion for summary judgment.

Decided October 16, 1991.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, Robert J. Higdon, Jr., for appellant.

Didio & Broome, Stefano A. Didio, for appellee.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.

       OCGA § 33-34-4 was repealed effective October 1, 1991; however, this case arose prior to the effective date and is governed by that statute.


text:
    A91A1376.
    A91A1377.
    POPE v. THE STATE. HULSEY v. THE STATE.
    (411 SE2d 557)
   Cooper, Judge.

Appellants were tried jointly and convicted of armed robbery. They appeal the trial court’s denial of their motions for new trial.

The evidence, viewed in a light favorable to the jury’s verdict, reveals that appellants entered the victim’s home and asked the victim for beer. When the victim refused, appellant Pope went to the refrigerator and, after finding beer in the refrigerator, took the beer and put it in his car without the victim’s permission. Two of the victim’s neighbors then arrived, and appellant Hulsey left with one of the neighbors to get more beer. The victim testified that while Hulsey was gone, Pope repeatedly picked him up by the shirt and choked him, slapped the remaining neighbor and ate the victim’s supper. When Hulsey returned, the group drank the beer and eventually the neighbors, Hulsey and Pope left. Later that evening, Hulsey and Pope returned, breaking down a locked door. They ransacked the house and took a radio and speakers from the victim’s bedroom. Hulsey discovered a machete and handed it to Pope. Pope held the knife to the victim’s neck and stomach and demanded that the victim give them his paycheck and car title. Appellants then took a $5 bill from the victim’s shirtpocket and loose change.

Appellants contend that the trial court erred in denying their motions for directed verdict based on the State’s failure to prove the armed robbery charges beyond a reasonable doubt. Relying on Hicks v. State, 232 Ga. 393, 402-403 (207 SE2d 30) (1974), appellants argue that in order to establish armed robbery, force or fear must precede or be contemporaneous with the taking and that there was a failure of proof because the radio was taken before the machete was discovered and the victim was not certáin Pope had the machete in his hand when the money was taken. However, Hicks is distinguishable on its facts because in Hicks, the theft of the victim’s wallet preceded the defendant’s demand at gunpoint, and after the threat, the defendant received nothing. On the other hand, in the instant case, the $5 and change were taken immediately after Pope’s deadly show of force. “[U]nder OCGA § 16-8-41 an armed robbery is committed if the weapon has been used as an instrument of constructive, as well as actual, force. [Cits.] ‘When the Code speaks of force, it means actual violence; and when it speaks of intimidation, it still means force; not actual and direct, but exerted upon the person robbed, by operating upon his fears — the fear of injury to his person, or property, or character.’ [Cit.]” Maddox v. State, 174 Ga. App. 728, 729 (1) (330 SE2d 911) (1985). The intimidating effect of the machete pointed at the victim’s neck and stomach is evident. Moreover, “[t]he weapon had the desired forceful effect on [the victim] in the commission of a theft from his [residence].” Id. at 730. Thus, the evidence satisfied the statutory requisite beyond a reasonable doubt. OCGA § 16-8-41; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 16, 1991.

Shriver & Gordon, W. Alan Jordan, for appellant (case no. A91A1376).

Howard & Delaney, Stephen A. Delaney, for appellant (case no. A91A1377).

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1413.
    A91A1414.
    ANDERTON v. CERTAINTEED CORPORATION. CERTAINTEED CORPORATION v. GENERAL INSULATION COMPANY et al.
    (411 SE2d 558)
   Cooper, Judge.

Blair Anderton (“Anderton”) is the president of AS&G, a distributor of insulation products and General Insulation Company (“General”), a major subpurchaser of products from AS&G. Certainteed Corporation (“Certainteed”), a manufacturer of building products, sold insulation materials to AS&G Services, Inc. (“AS&G”) on account. In 1988, AS&G’s account became in arrears and Certainteed requested that General execute a corporate guaranty in favor of Certainteed guaranteeing all of AS&G’s obligations to Certainteed. The corporate guaranty was signed by Anderton’s brother, James Anderton, the vice-president of General. When AS&G’s account was still in arrears in 1989, Certainteed requested and AS&G executed a promissory note (hereinafter referred to as the “1989 note”) in favor of Certainteed in an amount in excess of $500,000, which represented the outstanding balance of AS&G’s accounts. Anderton executed the note as president of AS&G, and simultaneously executed a personal guaranty in favor of Certainteed for all obligations of AS&G due under the 1989 note. Following the execution of the note, AS&G continued making purchases from Certainteed on account. In 1990, the 1989 note was in default and a second note (hereinafter the “1990 note”) was executed for an amount representing the amount due under the 1989 note plus the balance of AS&G’s account for goods purchased after execution of the 1989 note. The 1990 note was also signed by Anderton as president of AS&G. After making only one payment due under the 1990 note, AS&G defaulted. Certainteed filed a complaint against AS&G, General, and Anderton for amounts due under the 1989 note and the respective guaranties. Certainteed moved for summary judgment against all the defendants and Anderton filed a cross-motion for summary judgment. The trial court granted Certainteed’s motion against AS&G but denied Certainteed’s motion against General and Anderton. The trial court also denied Anderton’s motion for summary judgment. We granted Certainteed’s and Anderton’s interlocutory appeals from the denial of their respective motions for summary judgment.

Case No. A91A1413

1. Anderton’s sole enumeration of error is that the trial court erred in denying his motion for summary judgment because as a matter of law the 1990 note was a novation of the 1989 note thereby discharging him from his obligation as guarantor of the 1989 note. OCGA § 10-7-21 defines a novation as “[a]ny change in the nature or terms of a contract” and further provides that any novation made without the consent of the surety discharges the surety. Anderton argues that since the 1990 note included the outstanding balance of the 1989 note plus purchases made on AS&G’s account after the execution of the 1989 note, the additional debt was a material change in the terms of the 1989 note and constituted a novation. Certainteed argues that even if a novation occurred, Anderton consented to the novation. We agree. The guaranty signed by Anderton provided that Anderton agreed that, without notice to him, Certainteed “(i) may extend, renew, modify or waive any terms of the obligations of [AS&G]; (ii) may release, surrender, exchange, compromise, take security for or settle the obligations of [AS&G], whether by account, notes, or otherwise. . . .” It is axiomatic that “[a] surety or guarantor may consent in advance to a course of conduct which would otherwise result in his discharge. [Cits.]” Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 896 (4) (216 SE2d 651) (1975); see also Panasonic Industrial Co. v. Hall, 197 Ga. App. 860 (1) (399 SE2d 733) (1990). The unambiguous language of the guaranty allowed Certainteed to “extend, renew, modify or waive any of the terms of the obligations of AS&G” and to “release, surrender, exchange . . . the obligations of [AS&G] whether by account, notes or otherwise.” We find that Anderton, by signing the guaranty with the above language, consented to the action of Certainteed and AS&G with respect to the execution of the 1990 note. “Thus, since [Anderton] consented in advance to be responsible for just such an instrument as the second note, he cannot have been discharged as a surety by its execution, even if under other circumstances such a note could be considered a novation. [Cit.]” Dever v. Lee, 188 Ga. App. 483, 486 (3) (373 SE2d 224) (1988). In addition, the record reflects that Anderton participated in negotiations leading to the execution of the 1990 note and signed the 1990 note on behalf of AS&G. Therefore, Anderton was clearly aware of the terms of the 1990 note and cannot now claim that he did not consent to those terms. For the foregoing reasons, we conclude that the trial court did not err in denying Anderton’s motion for summary judgment.

Case No. A91A1414

2. Certainteed enumerates as error the trial court’s denial of its motion for summary judgment against Anderton. For the reasons discussed in Division 1 above, we conclude that no question of fact existed as to Anderton’s advance consent to the alleged novation; therefore, summary judgment should have been granted to Certainteed.

3. Certainteed also contends that the trial court erred in denying its motion for summary judgment against General on the corporate guaranty. General argues that James Anderton was not authorized to sign the corporate guaranty; therefore, the guaranty executed by him was not binding on General. The corporate guaranty was executed on December 30, 1988, along with a corporate resolution which indicated that the president and secretary were empowered to sign the guaranty on behalf of General. In its answer to Certainteed’s complaint, General admitted executing the guaranty. However, in an amended answer filed almost two years later, General denied executing the guaranty and raised the issue of James Anderton being unauthorized to sign the guaranty. It is undisputed that James Anderton was the vice-president of General and that at the time he signed the guaranty, the president, Anderton, was out of town. “If [James Anderton] lacked any such authority to execute the [guaranty], there appears to be no evidence [that Certainteed] knew of any such restriction or lack of authority.” Fresh & Fancy Produce v. Brantley, 190 Ga. App. 128, 129 (2) (378 SE2d 379) (1989). Based on the facts in this case, we conclude that James Anderton had, at least, apparent authority to execute the guaranty on behalf of General in Anderton’s absence. Since James Anderton had apparent authority, if not actual authority, to sign the guaranty, General cannot defeat the guaranty by alleging that James Anderton had no such authority. Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20 (1) (400 SE2d 380 (1990).

Certainteed also argues that even if James Anderton did not have authority to sign the guaranty, General ratified the guaranty agreement by retaining the benefits of the agreement. The corporate resolution signed on the same day as the guaranty recited that Certainteed required that General execute the guaranty as a condition of its extension of credit to AS&G and that General was interested in AS&G being able to make credit purchases from Certainteed. The record reflects that following the execution of the corporate guaranty, Certainteed did in fact extend additional credit to AS&G which allowed AS&G to purchase products from Certainteed on account. Thus, General retained the benefits of the allegedly unauthorized guaranty for well over a year and did not claim any lack of authority of James Anderton to execute the guaranty until Certainteed filed its motion for summary judgment. We conclude that no issue of material fact remained as to whether there was a ratification of the allegedly unauthorized act of James Anderton and that summary judgment should have been granted to Certainteed on the corporate guaranty. Holliday Constr. Co., supra; Lanier Ins. Agency v. Citizens Bank, 168 Ga. App. 424, 425 (309 SE2d 419) (1983).

General argues that Certainteed’s continued extensions of credit to AS&G after the execution of the corporate guaranty, without General’s consent, released General from any obligation under the corporate guaranty. We note initially that the corporate guaranty contained the same language as the personal guaranty signed by Anderton, with respect to Certainteed’s ability to “extend, renew, and modify” the obligations of AS&G. In addition, the guaranty executed by General provided that General guaranteed all obligations of AS&G, including the purchase price of all products “heretofore sold by Certainteed to [AS&G], and which may be sold hereafter by Certainteed to [AS&G].” For the reasons discussed in Division 1, we conclude that General consented in advance to the extension of additional credit to AS&G.

Judgment affirmed in Case No. A91A1413. Judgment reversed in Case No. A91A1414.

Birdsong, P. J., and Pope, J., concur.

Decided October 16, 1991.

Davis, Matthews & Quigley, Ron L. Quigley, J. Charles Olderman, for Anderton and General Insulation.

Troutman, Sanders, Lockerman & Ashmore, Douglas D. Salyers, A. William Loeffler, Ezra H. Cohen, for Certainteed.


author: Sognier, Chief Judge.

text:
    A91A1035.
    BROWN et al. v. MOMAR, INC.
    (411 SE2d 718)
   Sognier, Chief Judge.

H. Stephen Brown, individually and as executor of the Estate of Henry Brown, and C. Roger Brown brought suit against Momar, Incorporated to determine their rights in certain stock issued by Momar. The parties filed cross motions for summary judgment on the issue of the Browns’ ownership rights in the stock. The trial court granted partial summary judgment in favor of Momar and denied the Browns’ motion, and the Browns appeal.

Henry Brown, appellants’ father, was an officer and shareholder in appellee. At the time of his death on May 2, 1986, he owned 250,000 shares of Class A stock (the “stock”) issued by appellee. This property passed under the residuary clause of the decedent’s will, which devised the remainder of his estate to his wife, Juanita Brown, if she survived him, and to his sons, appellants, per stirpes if his wife predeceased him. Juanita Brown timely filed with the probate court a statement made pursuant to OCGA § 53-2-115 in which she renounced her interest in the stock. Under the assumption that pursuant to OCGA § 53-2-115 (c) they received the stock under the residuary clause as successor legatees, appellants then requested that appellee register the ownership transfer and reissue the stock to them. Appellee did reissue the decedent’s stock to appellants, but a month later appellee demanded that appellants surrender the newly issued certificates in exchange for a payment of the book value of the stock plus ten percent. Appellee contended this action was required by the shareholders’ agreement to which the stock was subject, but appellants disagreed. They refused appellee’s demand and filed this action to determine their rights to the various holdings of the decedent in appellee.

The stock certificate issued to the decedent provided that the “sale, assignment, transfer, pledge, mortgage or other encumbrance of the stock represented by this certificate or any interest or equity therein is limited by the terms and conditions of a certain [stock agreement, as amended]; the terms and conditions of said agreement and all supplemental agreements and amendments thereto are incorporated herein by reference; any . . . transfer . . . contrary to the provisions of said agreements and amendments shall be null and void.” The parties have stipulated that at the time of the decedent’s death, the relevant stock agreement was the agreement executed on December 10, 1971, and amended on December 8, 1972. The 1971 agreement provided in pertinent part: “4. In the event of the death of any Stockholder in [appellee], . . . the heirs, executors, administrators and representatives of such deceased Stockholder shall have the following options: (a) To offer to convey said stock immediately to [appellee] upon terms and conditions hereinafter recited, ... or (b) To hold said stock for a period of 12 months [and then] offer said stock to [appellee] upon terms and conditions hereinafter recited .... It shall be mandatory that the heirs, executors, administrators and personal representatives of such deceased Stockholder offer said stock ... in accordance with either (a) or (b) above, and upon such offer it shall be mandatory that [appellee] purchase the same . . . [at] the book value thereof. . . plus 10%. . . .” Paragraph 6 provided that “[t]he Class ‘A’ stock of any Stockholder may be transferred (including testamentary transfer) to the issue or lineal descendants of such Stockholder.” The 1972 amendment to the stock agreement added a new paragraph 11 providing that any holder of Class A stock could make an even exchange for Class B stock, and that “[a]ny holder of Class ‘A’ stock or of Class ‘B’ stock [obtained in such an exchange] may transfer such . . . stock by inter vivos or testamentary transfer to [his] issue or lineal descendants,” and providing further that “the provisions of this Paragraph shall amend and supersede the provisions of Paragraphs 4 and 6 of the [1971] stock agreement.”

Appellants contend that once their mother executed and filed her renunciation, under OCGA § 53-2-115 (c) the stock passed to them under the residuary clause of the decedent’s will as though she had predeceased him, and that since a testamentary transfer of the stock to the decedent’s issue was permissible under paragraphs 6 and 11 of the stock agreement as amended, appellee was not entitled to demand a tender of the stock under paragraph 4. We agree and reverse.

1. To resolve the questions presented in this appeal, we first must determine whether Juanita Brown was entitled to renounce or disclaim her interest in the stock. OCGA § 53-2-115 (a) authorizes a legatee under a will to “renounce in whole or in part the succession to any property or interest therein.” Upon filing of the requisite documents, “[u]nless the decedent. . . has otherwise indicated by his will, the interest renounced and any future interest. . . shall pass as if the person renouncing had predeceased the decedent.... [T] he renunciation relates back for all purposes to the date of death of the decedent.” Id. at (c) This renunciation right, however, is limited by paragraph (d) of OCGA § 53-2-115, which prior to July 1, 1988 provided that “[t]he following shall bar the right to renounce as to the property: (1) [a]ny assignment, conveyance, encumbrance, pledge, or transfer of property therein or any contract therefor; (2) [a]ny written waiver of the right to renounce or any acceptance of property by an heir . . . ; or (3) [a]ny sale or other disposition of property pursuant to judicial process, made before the expiration of the [statutory renouncement period].”

It is undisputed that Juanita Brown filed the requisite documents within the statutory time period; therefore, her renunciation was valid under OCGA § 53-2-115 unless the stock transfer restriction contained in the stock agreement constituted the type of “encumbrance” that under OCGA § 53-2-115 (d) (1) would bar her right to renounce the legacy of the stock. Paragraph (d) (1) has not been construed in any reported decision of our appellate courts, so we must resort to rules of statutory interpretation to ascertain its meaning. Applying the rule that no segment of a statute should be lifted out of context and construed without consideration of all other parts of the statute, City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970), we must construe subparagraph (d) (1) in the context of the other subparagraphs in (d). Viewed as a whole, paragraph (d) refers to acts of the disclaimant that would be inconsistent with an intent to renounce a property interest. See ULA, Uniform Probate Code (1983 ed.) § 2-801 Comment to subsection (d), p. 167. Accordingly, we hold that the term “encumbrance” in OCGA § 53-2-115 (d) (1) refers to an encumbrance placed on the property by the disclaimant, not an encumbrance existing at the time of the decedent’s death. Adoption of the construction urged by appellee — that the statute refers to predeath encumbrances — undoubtedly would render most properties ineligible for renunciation, which would be inconsistent with the apparent legislative purpose of facilitating disclaimer for tax planning purposes under 26 USC § 2518, see Redfearn, Wills & Admin, in Ga. (5th ed.), Legacies & Devises § 162.1, pp. 348-349, and with the broad renunciation rights long established at common law. See Daniel v. Frost, 62 Ga. 697, 707-709 (2) (1879).

Consequently, we find that Juanita Brown’s renunciation of the stock was effective under OCGA § 53-2-115 (a) and (b) and was not barred by (d). As a result, the interest in the stock she otherwise would have received passed pursuant to OCGA § 53-2-115 (c). Since the decedént did not indicate in his will how property bequeathed thereunder was to be devised in the event of a renunciation, the stock passed as if Juanita Brown “had predeceased the decedent.” Id. The devolution of the stock thus became subject to the.residuary clause of the decedent’s will and passed to appellants per stirpes.

2. Next, we must consider whether the stock transfer restrictions contained in the stock agreement apply to this transaction, and if so, whether the disposition of the stock is governed by paragraph 4 or paragraph 11. As a general rule, restrictions on the transferability of stock are enforceable in this State, see Horne v. Drachman, 247 Ga. 802, 803-804 (1) (280 SE2d 338) (1981); Helmly v. Schultz, 219 Ga. 201, 202-205 (1) (131 SE2d 924) (1963), and are similarly enforceable against subsequent transferees provided the restrictions are stated conspicuously on the face of the stock certificate. See Helmly, supra at 205 (2); see also OCGA §§ 11-8-202 (1); 11-8-204. The stock certificate at issue carried a clear and unequivocal reference to the stock agreement, and thus the transfer restrictions in that agreement were enforceable against the decedent and anyone who acquired the stock from him. Since the decedent’s beneficiaries could receive no greater property right or interest than that held by the decedent, and given that the restrictions on the interest at issue were valid and enforceable, the “property or interest” Juanita Brown renounced pursuant to OCGA § 53-2-115 and to which appellants then acceded was the stock subject to the transfer restrictions contained in the stock agreement.

Paragraph 11 and paragraph 6, as amended, permit a “testamentary transfer” by the decedent to appellants. The stock passed to appellants under the residuary clause of the decedent’s will; therefore, the transfer was “testamentary.” See Black’s Law Dictionary, p. 1644 (4th ed.) (“testamentary” defined as “[pjertaining to a will or testament; . . . [d]erived from, founded on, or appointed by a testament or will”). The fact that appellants received the stock only because of their mother’s renunciation is irrelevant to the application of the agreement provisions. Appellants clearly would have received the stock by “testamentary transfer” under the residuary clause if their mother had predeceased their father in fact, and the clearly stated legislative intent of the renunciation statute is that upon renunciation she is considered to have predeceased him by operation of law. See OCGA § 53-2-115 (c). Since the renunciation relates back to the date of the decedent’s death, id., and considering also that no legatee under a will takes legal title until the executor assents, see OCGA § 53-2-108, the effect of the renunciation was the same as if Juanita Brown had indeed predeceased the decedent — i.e., appellants took the stock by testamentary transfer under the residuary clause. Appellee’s contention that the renunciation should not be permitted because it was contrary to the decedent’s intent to will the stock to his wife is without merit because the decedent is presumed to have executed his will with knowledge of the law that entitled his heirs to disclaim his testamentary bequests, see Carnegie v. First Nat. Bank, 218 Ga. 585, 590-591 (1) (d) (129 SE2d 780) (1963), and thus was aware that his estate plan could be altered after his death if his beneficiaries exercised their renunciation right.

Decided September 30, 1991

Reconsideration denied October 17, 1991

Booth, Wade & Campbell, L. Dale Owens, for appellants.

Bodker, Ramsey & Andrews, Harry J. Winograd, for appellee.

Accordingly, we find the transfer of the stock to appellants was permissible under paragraphs 6 and 11 of the stock agreement, and hold the trial court erred by granting summary judgment to appellee and denying summary judgment to appellants.

Judgment reversed.

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

       This case arose before the 1988 enactment of the Georgia Business Corporation Code, but we note that OCGA § 14-2-627 also authorizes the type of stock transfer restriction at issue here.


author: Andrews, Judge.

text:
    A91A1260.
    STUBBS v. THE STATE.
    (411 SE2d 525)
   Andrews, Judge.

Defendant appeals his conviction of armed robbery and escape.

1. Defendant contends the evidence was insufficient on the armed robbery charge. Viewed in favor of the verdict, the evidence was that on May 19, 1990, defendant went into a gas station/convenience store around 11:00 a.m. and asked directions. He left, returning about 15 minutes later to inquire where he could have a flat tire repaired. At approximately 1:00 p.m., he returned a third time and attempted to buy a single beer. Informed that singles were not sold, he returned it to the cooler and turned to the cashier, informing her he was going to rob her. When she indicated she thought he was kidding, he produced a knife, instructed her not to make him use it, and removed money from the register. After he ran from the store, she followed and saw defendant drive away in a white pickup with pink lettering on the rear window. She got the tag number and contacted police. The police placed a lookout for the vehicle, which was spotted shortly thereafter by Sgt. Jones, who stopped defendant driving the truck. Sgt. Jones ordered him from the truck, and told him he was under arrest, covering him with her gun. As her backup arrived, defendant ran into nearby woods. A search ensued and he was captured in the woods several hours later by Officer Riley, who removed $177 in currency from him.

Sgt. Jones saw a knife on the front seat and Officer Bryant took custody of it and put it in the station’s evidence lockup where it remained until turned over to the State’s attorney for the trial.

Defendant admitted taking the money from the register, but claimed he was intoxicated and denied using any weapon in the robbery.

Presented with conflicting evidence regarding the weapon and defendant’s state of mind, the jury, as judges of the credibility of the witnesses, concluded that the knife found was used in the robbery. In so doing, the jury was authorized to believe the State’s witnesses and disbelieve defendant. Howell v. State, 179 Ga. App. 632, 633 (347 SE2d 358) (1986). The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant enumerates as error the court’s charge on flight. As defendant acknowledges, Renner v. State, 260 Ga. 515 (397 SE2d 683) (1990) making it error to charge the jury on flight, although the fact of flight is still admissible and may be argued to the jury, applies prospectively only, to cases tried after January 10, 1991. Defendant was tried in November 1990. There was no error in giving the charge.

Even assuming error, any such error here would be harmless, since defendant acknowledged taking the money, the only question being whether he was armed or not.

3. Defendant requested a charge on theft by taking, OCGA § 16-8-2, as a lesser included offense of armed robbery. The court refused to give that charge, but did charge on robbery by intimidation. Defendant admitted taking the money from the cash drawer in the presence of the cashier without her consent. The victim was unequivocal that there was a weapon and she was threatened with it. The knife was found in the truck immediately after the incident. The evidence clearly merited instructions on armed robbery, as well as the charge on robbery by intimidation, both of which require proof of fear on the part of the victim which was uncontradicted. The court was not required to go further. Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383) (1985).

4. Defendant’s final three enumerations all allege error in the admission of evidence and will be addressed together.

(a) Exhibits 6 and 7 were the Miranda waiver of rights form and a handwritten statement prepared by defendant during his interview after arrest. The court conducted a pretrial hearing as required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). These exhibits were offered for the record only and did not go to the jury. Defendant never voiced objection to Exhibit 7. During the Jackson hearing, counsel for defendant did object to a portion of Exhibit 6 and the objection was sustained. At trial when Exhibit 6 was tendered, no further objection to it was voiced and none will be heard from defendant here. Riley v. State, 196 Ga. App. 148, 149 (1) (395 SE2d 394) (1990).

(b) Defendant objected to the knife’s admission, contending there was a break in the chain of custody. The item was not fungible but a distinct physical object and no custodial proof was required for admission of it. Hanvey v. State, 186 Ga. App. 690, 693 (6) (368 SE2d 357) (1988). Even when a chain of custody is required, any confusion about the objects and the chain goes only to the weight of the evidence, not its admissibility. Phillips v. State, 167 Ga. App. 260, 263 (2) (305 SE2d 918) (1983).

Decided October 1, 1991

Reconsideration denied October 17, 1991.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Thomas R. McBerry, Assistant District Attorneys, for appellee.

(c) Finally, defendant contended that a photograph of the money seized from defendant was improperly admitted because the person who actually took the photo could not be identified, although the picture was properly authenticated. There is no such requirement for the admission of a photograph and it was properly authenticated and admitted. Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316) (1989).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A90A2184.
    PIGGLY WIGGLY SOUTHERN, INC. v. HEARD et al.
    (412 SE2d 635)
    Decided October 17, 1991.

      Martin, Snow, Grant & Napier, George C. Grant, John C. Edwards, for appellant.

      J. Sewell Elliott, Jr., Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellees.
   Andrews, Judge.

On certiorari the decision of this court affirming the trial court in Piggly Wiggly Southern v. Heard, 197 Ga. App. 656 (399 SE2d 244) (1990) was reversed at 261 Ga. 503 (405 SE2d 478) (1991). Accordingly, our decision is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A91A1300.
    FARRIE v. THE STATE.
    (411 SE2d 561)
   Sognier, Chief Judge.

Rufus Lonzo Farrie was convicted by a Worth County jury of possession of cocaine. He appeals from the judgment of conviction and sentence entered thereon.

In two enumerations appellant contends the evidence was insufficient to support the jury’s verdict, and specifically that the State failed to meet its burden in a circumstantial evidence case of excluding every reasonable hypothesis of innocence. Construed to support the verdict, the evidence adduced at trial established that early in the morning of September 1, 1990, Isaac Adams III, who at the time was a City of Sylvester police officer, was on uniformed patrol in a marked police car. As he drove along South Avenue, he observed a man he identified as appellant and another man, Randy Gibson, standing on a street corner while appellant showed Gibson something he held in his hand. Adams testified he called to appellant and asked him to come over to the car. Adams stated that appellant did so, but “kept his hand balled up like he was going to hit me .... I asked him to just let loose his hand[, and when he did so] he start[ed] to rub it clean. At that time I witnessed something like he had dropped something beside of him. [When I shone] my flashlight down on the ground[, appellant] tried to kick away a piece of white . . . substance, cocaine, and I picked it up.” Tests subsequently performed by a crime lab scientist established that the solid white substance was crack cocaine. Randy Gibson testified that he was with appellant on the night in question, but that appellant never showed him or dropped any cocaine.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “The term ‘hypothesis’ as used in [OCGA § 24-4-6] refers to such reasonable inferences as are ordinarily drawn by ordinary [persons] in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act.” (Citations and punctuation omitted.) Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201) (1986).

In the case at bar, an ordinary person in the light of his or her ordinary experience would be authorized to infer from the evidence that appellant was the person who dropped the crack cocaine Adams found. Appellant’s hypothesis that the cocaine could have been dropped on the ground earlier by someone else is not consistent with Adams’ testimony and thus presents only a bare possibility of innocence, not a reasonable hypothesis. Accordingly, we find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Nelson v. State, 197 Ga. App. 898-899 (1) (399 SE2d 748) (1990).

Decided October 17, 1991.

Herbert W. Benson, for appellant.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A0976.
    SELLERS et al. v. NODVIN.
    (411 SE2d 723)
   Andrews, Judge.

This is an appeal from a judgment granting Nodvin’s motion to dismiss the appeal for unreasonable and inexcusable delay in the filing of the transcript.

On October 3, 1990, appellants Sellers, Atkinson, Jose and Sellers filed a timely notice of appeal from the trial court’s entry of a default judgment as a sanction for their failure to comply with discovery procedures in Nodvin’s lawsuit to collect attorney fees. In their notice of appeal, appellants stated: “The transcript of evidence and proceedings will be filed for inclusion in the record on appeal.” On December 17, 1990, 45 days after the time for filing the transcript under OCGA § 5-6-42 had expired, Nodvin filed a motion to dismiss the appeal on the basis that appellants had not filed such transcript.

On the afternoon the motion to dismiss was filed, appellants filed the transcript of a July 26, 1990 hearing which had been transcribed on August 20, 1990. The next day, appellants filed a second transcript of a September 24, 1990 hearing, which had been transcribed on September 26, 1990.

The trial court held a hearing on Nodvin’s motion to dismiss on December 18, 1990. Appellants offered no explanation for the failure to file the transcripts or to request an extension, but argued that the failure to file had not impeded the resolution of the appeal. The trial judge granted Nodvin’s motion and entered an order dismissing the appeal in which he stated that the dismissal was based on the defendants’ unreasonable and inexcusable failure to timely file the transcript or to obtain an extension of time for such filing “especially in view of the consistent conduct of Defendants in seeking to delay this case.” From this order, appellants filed a second notice of appeal.

Appellants argue that the failure to file the hearing transcripts should not have resulted in dismissal since the transcripts consisted “merely of arguments of counsel and colloquy between counsel and the trial judge and therefore have no evidentiary value.” In this regard, appellants contend that OCGA § 5-6-41 (c) excuses their failure to file since that section refers to appeals which “draw in question the transcript of the evidence and proceedings,” and appellants claim such transcripts are not at issue here. We find this argument merit-less. Under OCGA § 5-6-42 appellants had the option to omit the transcripts from the record on appeal if they deemed them unnecessary. After electing to include the transcripts, appellants cannot now claim that the documents were useless.

Decided October 1, 1991

Reconsideration denied October 21, 1991

Fred L. Cavalli, for appellants.

Likewise, we find no merit in Sellers’ argument that the trial court abused its discretion in dismissing the appeal. OCGA § 5-6-48 (c) sets forth three criteria for dismissal of an appeal for failure to timely file a transcript: “(1) unreasonable delay, which was (2) inexcusable and (3) ‘caused by such party.’ Wagoner v. Howell, 257 Ga. 801 (363 SE2d 759) (1988).” Department of Human Resources v. Pattilo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990). The dismissal was supported by the findings that appellants were responsible for the failure to file the transcript and that their delay was unreasonable and inexcusable. Compare Baker v. Southern R. Co., 192 Ga. App. 444 (385 SE2d 125) (1989), remanded 260 Ga. 115 (390 SE2d 576), vacated 195 Ga. App. 647 (395 SE2d 670) (1990).

Appellants, citing Galletta v. Hillcrest Abbey West, 185 Ga. App. 20 (363 SE2d 265) (1987), and American Oil Co. v. McCluskey, 116 Ga. App. 706 (158 SE2d 431) (1967), rev’d on other grounds, 225 Ga. 63 (165 SE2d 830) (1969), claim that because the record in the case had not been prepared and their failure to file caused neither delay nor prejudice, the dismissal was improper. Despite those cases, they do not change our interpretation of OCGA § 5-6-48 (c) in the instant situation in which the 35-day delay in filing the transcript was solely attributable to appellants. In light of the fact that the delay was solely attributable to appellants, and that no explanation for such delay was offered, the court’s finding that the delay was unreasonable was proper.

The evidence supports the findings of the trial judge and we find no abuse of the trial court’s discretion in the order dismissing the appeal. Because of this decision, we need not address appellants’ remaining enumerations of error. Nodvin’s request for an award of damáges is denied.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Richard A. Gordon, for appellee.

Marvin P. Nodvin, pro se.