text:
    A00A0367.
    BUTLER v. HOUSEHOLD MORTGAGE SERVICES, INC. et al.
    (535 SE2d 518)
   Barnes, Judge.

Michael B. Butler appeals the trial court’s dismissal of his breach of contract action for lack of subject matter jurisdiction, following the defendant mortgage companies’ suggestion of bankruptcy. Because the evidence fails to show that Butler’s action was preempted by federal bankruptcy law, we reverse. However, we affirm the trial court’s grant of an extension of time to respond to Butler’s motions for summary judgment, sanctions, and discovery requests.

In 1995, Butler filed a bankruptcy petition, which under 11 USC § 541 automatically stayed any claims against property of his estate. His mortgage company, Household Mortgage Services, Inc., successfully moved the bankruptcy court to lift the stay and began foreclosure proceedings. After Butler paid $18,000 to Household Mortgage, the company stopped its foreclosure proceedings. Subsequently, the company transferred Butler’s mortgage to Fleet Mortgage Group, Inc., and after further interaction between the parties, Fleet instituted foreclosure proceedings again in June 1996. Also in June, Butler filed suit against Household Mortgage and Fleet in Fulton Superior Court, alleging they acted in bad faith and were stubbornly litigious in repudiating an alleged agreement to roll over the mortgage arrearage into a new loan. The trial court granted Butler a temporary restraining order, conditioned on his paying into the court registry $34,512 and the monthly mortgage payments as they came due.

After more than 19 months and numerous discovery skirmishes, Fleet filed a “suggestion of bankruptcy” in February 1998, seeking a dismissal based on federal preemption. The suggestion read in its entirety as follows:

COME NOW Household Mortgage Services, Inc. and Fleet Mortgage Group, Inc. and show the court that the Plaintiff is a Debtor in an active, pending bankruptcy case in the United States Bankruptcy Court for the Northern District of Georgia, Atlanta Division, having a case number of A9562856-SWC.

While the suggestion apparently was accompanied by a brief in support, no brief appears in the record.

Finally, in May 1998, the trial court dismissed the case, in an order that provided in its entirety:

Defendants have informed the Court that, at the time this action was filed, Plaintiff had pending in United States Bankruptcy Court for the Northern District of Georgia a bankruptcy petition. For this reason this Court has no jurisdiction over the property at issue in this lawsuit. 11 U.S.C. § 541; 28 U.S.C. § 1334. Accordingly, this action is hereby DISMISSED for lack of jurisdiction. Any previous orders issued by this Court are moot and without effect.

1. The U. S. Supreme Court has held that courts should not interpret federal law to preempt state sovereignty unless the language of the federal law clearly compels the intrusion. Gregory v. Ashcroft, 501 U. S. 452, 460-461 (II) (A) (111 SC 2395, 115 LE2d 410) (1991); City of Atlanta v. Watson, 267 Ga. 185, 192 (3) (475 SE2d 896) (1996).

The mere existence of a detailed regulatory scheme does not alone imply intent to preempt. However, such intent may be inferred in an area in which federal legislation is especially pervasive or the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or because the object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose.

(Citations and punctuation omitted.) Smith v. Mitchell Constr. Co., 225 Ga. App. 383, 384-385 (1) (481 SE2d 558) (1997). In Smith, we noted that “bankruptcy-dependent claims should be preempted as coming within the Bankruptcy Code, which provides a comprehensive scheme reflecting a balance, completeness and structural integrity that suggests remedial exclusivity.” Id. at 385-386.

The bankruptcy court has jurisdiction over all the debtor’s property as of the date the bankruptcy petition is filed. Labat v. Bank of Coweta, 218 Ga. App. 187, 189-190 (3) (460 SE2d 831) (1995). However, the bankruptcy court can order the stay lifted to permit an action to proceed against the property. See Ranger v. First Family Mtg. Corp. &c., 176 Ga. App. 715, 716 (5) (337 SE2d 388) (1985).

The bankruptcy court’s order lifting the stay determines the scope of actions it is allowing. We have held that a state court lacked jurisdiction to hear a challenge to a consent order lifting the bankruptcy stay, Cloud v. Ga. Century Credit Union, 214 Ga. App. 594, 596-597 (3) (448 SE2d 913) (1994), and lacked jurisdiction to hear a claim that a creditor violated the provisions of the bankruptcy court’s order lifting the stay. Stivali v. Aquiport Aylesbury, 244 Ga. App. 389 (535 SE2d 551) (2000).

In the claim before us, however, Butler does not challenge the bankruptcy court’s order lifting the stay, which does not appear in the record. Rather, Butler seeks to challenge the actions of his mortgage holder and its predecessor in repudiating an alleged agreement negotiated during a bankruptcy proceeding. We have held in a foreclosure confirmation appeal that “the automatic stay of 11 USC section 362 acts as a stay of court proceedings but does not deprive the state court of jurisdiction over the matter,” afiirming jurisdiction in the state court. (Citations and punctuation omitted.) Shingler v. Coastal &c. Credit Assn., 180 Ga. App. 539 (1) (349 SE2d 785) (1986). Once the stay is lifted, state court proceedings can move forward.

The mortgage companies argue that Shingler applies only to property that is no longer in the bankruptcy court’s estate and in which the bankruptcy court no longer has an interest. However, the bankruptcy court here, according to the mortgage companies’ representation to the trial court, has already lifted its stay of proceedings against Butler’s property; under the companies’ argument, they may proceed against the property while Butler’s bankruptcy petition is pending, using state nonjudicial foreclosure proceedings, but Butler may not object to that process until after it is completed. In drafting the bankruptcy code, Congress surely did not intend such a one-sided federal preemption, in which only the creditor, but not the petitioner, may avail itself of state law remedies when the bankruptcy court lifts the automatic stay so that foreclosure proceedings can proceed. Accordingly, the trial court erred in holding that it had no subject matter jurisdiction over this case.

2. Butler also asserts that the trial court erred in granting the mortgage companies’ motion to extend their time to respond to Butler’s motions for summary judgment, sanctions, and discovery requests. The Civil Practice Act provides that, when an act is required within a specific time, “the court for cause shown may at any time in its discretion [,] . . . upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. . . .” OCGA § 9-11-6 (b). Butler argues that we must reverse the trial court’s order granting the extension of time within which to respond because the court did not explicitly find excusable neglect, citing Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185 (1) (410 SE2d 455) (1991). Hershiser is distinguishable from the case at bar because it involved the trial court’s consideration of a late-filed affidavit supporting a summary judgment motion, in which the party filing the affidavit failed to request an extension of time within which to file and serve the affidavits.

Decided June 7, 2000.

Michael B. Butler, for appellant.

James R. Marshall, for appellees.

Butler further cites Hosley v. Davidson, 211 Ga. App. 529, 530-531 (1) (439 SE2d 742) (1993) for the proposition that Uniform Superior Court Rule 6.2 does not give the trial court “unfettered authority to excuse late filings.” Id. However, we held in Hosley that USCR 6.2 gave a trial judge “discretion regarding the period of time by which a party must respond to a motion in a civil case.” Id. at 530. We confirmed the trial court’s order striking Hosley’s responses to requests for admission, concluding that his “failure to comply with the rule’s deadline warranted the striking of his response.” Hosley does not stand for the proposition that the trial court was authorized to exercise its discretion only if appellees made a showing of excusable neglect and the trial court made an explicit finding to that effect.

Further, regarding the mortgage companies’ request for extensions of time to respond to Butler’s discovery requests and motion for sanctions, trial judges have broad discretion in controlling discovery, and appellate courts will not interfere with a trial court’s exercise of that discretion in the absence of abuse. Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). We have reviewed the record and find no such abuse here. The trial court did not err in granting the mortgage companies’ motion to extend their time to respond to Butler’s motions for summary judgment, sanctions, and discovery requests.

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A0430.
    SWYTERS v. MOTOROLA EMPLOYEES CREDIT UNION et al.
    (535 SE2d 508)
   Smith, Presiding Judge.

Frederick E. Swyters appeals from an order granting summary judgment against him and in favor of Motorola Employees Credit Union and CUNA Mutual Insurance Group in an action filed by the credit union on a promissory note signed by Swyters. Swyters impleaded CUNA, claiming coverage under a policy of credit disability insurance issued by CUNA. We find that the trial court correctly granted summary judgment in favor of the credit union because no dispute exists that Swyters executed the note and then defaulted. We conclude that summary judgment in favor of CUNA was also proper because a policy exclusion barred coverage for Swyters’s disability, which was a pre-existing condition. We therefore affirm the judgment.

Swyters began working for Motorola in the summer of 1994. Thereafter he suffered from depression, and in August 1995, he was placed on disability status by his physician. Beginning with his first visit to a psychologist, on August 1, 1995, he was diagnosed as depressed. His original diagnosis was “adjustment disorder with depressed mood.” His condition worsened, and on October 18, 1995, that diagnosis was changed to “major depression.”

Swyters remained on disability status until June 1996, when he returned to work. It is undisputed that he applied for a loan from the credit union and executed the note in issue on June 5, 1996. In conjunction with the note, Swyters elected to purchase single credit disability insurance.

Swyters’s return to work was short-lived. After having an emotional crisis at his workplace, he was required by his employer to undergo a psychological evaluation on June 12, 1996. The evaluating psychiatrist again pronounced him disabled, diagnosing him as suffering from major depression. Swyters made a claim on CUNA for his disability insurance to cover the loan payments, but that claim was denied, and the credit union eventually brought this suit against Swyters on the note.

1. Swyters contends the trial court erred in granting summary judgment to the credit union and CUNA.

(a) Swyters’s primary argument is based upon the doctrine of apparent agency. He asserts that credit union employees were dual agents, representing both the credit union and CUNA; that they were clothed with apparent authority; that they informed him he was required to purchase disability insurance before they would approve the loan; and that they told him if he made one payment on the loan, his disability coverage would make payment on the loan each succeeding month.

Swyters admits, however, that when he signed the note he received a copy of it. And under Swyters’s signature, the note states clearly in boldface type: “Credit insurance is voluntary and not required in order to obtain this loan.” Swyters also admits that he received a copy of the insurance certificate, which contains the same disclosure. The certificate also includes an unambiguous exclusion for pre-existing conditions. It excludes coverage for any disability within the first six months of the policy for any disease for which the insured had been treated within the six months immediately preceding the policy’s effective date.

Swyters’s argument regarding what the “agents” told him is unavailing. An insurance policy is a contract, and “[plarties to a contract are presumed to have read their provisions and to have understood the contents. One who can read, must read, for he is bound by his contracts.” (Citations and punctuation omitted.) O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 382 (3) (461 SE2d 311) (1995). Swyters testified on his deposition that he did not recall reading the note; no suggestion exists in the record that Swyters was unable to read. He therefore had a responsibility to read the policy. And statements Swyters claims were made to him orally by credit union employees that are in conflict with clear written provisions of the note or the certificate of insurance are inadmissible under the parol evidence rule. “An oral agreement between parties relating to a condition not expressed in a note is incompetent to change the contract as represented on its face. [Cits.]” Discovery Point Franchising v. Miller, 234 Ga. App. 68, 72 (2) (505 SE2d 822) (1998).

(b) Swyters also argues that CUNA is liable for payments under the credit disability insurance because his current disability is different from his original disability and therefore is not a pre-existing condition excluded under the policy. This argument is belied by the record. Although some features of Swyters’s current disability may be slightly different, his treating psychologist testified on his deposition that he had not changed Swyters’s diagnosis of major depression since October 18, 1995. The trial court correctly concluded that Swyters is liable on the note and is not entitled to disability benefits from CUNA.

2. The trial court also correctly concluded that Swyters’s claim for tort damages against CUNA is without merit. If no liability is claimed except that arising out of a breach of the express terms of a contract, the action lies in contract alone; an action in tort will not lie. Wells v. New York Life Ins. Co., 195 Ga. App. 79 (392 SE2d 251) (1990). Moreover, it is well established that an insurer’s failure to pay benefits does not, as a matter of law, rise to the level of outrageous behavior required in a cause of action for intentional infliction of emotional distress. Lincoln Nat. Life Ins. Co. v. Davenport, 201 Ga. App. 175, 176 (410 SE2d 370) (1991).

Decided June 7, 2000.

Saia & Richardson, Joseph J. Saia, for appellant.

Simpson Law Offices, J. Christopher Simpson, Tessa S. Burkey, Greene, Buckley, Jones & McQueen, Harold S. White, Jr., William D. Matthews, for appellees.

3. Swyters’s claim against CUNA for damages for bad faith also fails, since CUNA refused to pay the claim under a valid, applicable exclusion in the policy. “A refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there are any reasonable grounds for an insurer to contest the claim, there is no bad faith.” (Citations and punctuation omitted.) Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 524 (5) (352 SE2d 835) (1987).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       This contention appears to be based upon a letter to Swyters from the credit union’s counsel dated May 16,1997, answering his inquiry and explaining in general terms that disability payments never begin until the thirty-first day of disability, necessitating in all cases that at least one payment is required to be made by the insured, even if the disability begins the day after coverage commences. It does not appear to be, as Swyters sirgues, a letter assuring Swyters that in his particular case, his claim would, in fact, be approved ifhe made one payment on the loan. In any case, Swyters was aware that the credit union employees did not have authority to approve or disapprove his claim. In fact, his claim had already been denied by CUNA, and the denial is mentioned in his inquiry to the credit union.


author: Ellington, Judge.

text:
    A00A0732.
    WOODS v. THE STATE.
    (535 SE2d 524)
   Ellington, Judge.

A Pike County jury convicted Steve Woods of two counts of child molestation, OCGA § 16-6-4 (a). The jury acquitted Woods of a third molestation charge. Woods appeals from the judgment of conviction. We affirm one of the convictions but reverse the other after finding a fatal variance as to the indictment.

Woods contends that the evidence was insufficient to support his convictions.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193 (1) (491 SE2d 387) (1997). Specifically, Woods contends that his convictions must be reversed because there was a fatal variance between the allegations of the indictment and the State’s proof at trial.

Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

(Citation and punctuation omitted.) Buice v. State, 239 Ga. App. 52, 58 (4) (520 SE2d 258) (1999). See also Maddox v. State, 236 Ga. App. 209, 210 (511 SE2d 294) (1999).

1. Count 2 of the indictment stated that Woods “placed his hand on [A. P.’s] vagina.” The evidence presented included A. P.’s statement that Woods touched her “where I didn’t need to be touched” when she was nine years old. The State asked “Where is that?” A. P. then pointed between her legs. “Right here,” she said. A. P. also testified that Woods “tickle [d]” her “in a spot that he didn’t need to tickle [me].” According to A. P, Woods told her that he would put her in the hospital if she told anyone.

Even so, A. P. told a family member and friend that Woods put his fingers between her legs and touched her when she sat on his lap while watching cartoons. See OCGA § 24-3-16 (child hearsay statute). A. P.’s mother testified that she took A. P. to a physician soon after she found out about the molestation. The physician discovered that A. P.’s hymen had been penetrated and broken. The mother testified that she could not remember any accidents that could have caused that to happen.

During the subsequent police investigation, Woods initially denied touching A. P. inappropriately. According to the investigating officer, Woods eventually admitted that he “molested” A. P, but when pressed for details, Woods recanted his confession and ended the interview.

We find that there was no fatal variance in Count 2 of the indictment, ánd that the totality of the evidence presented was sufficient for a jury to find Woods guilty beyond a reasonable doubt of molesting A. P. when he “placed his hand on [her] vagina.” Buice v. State, 239 Ga. App. at 58 (4); Kapua v. State, 228 Ga. App. at 193.

2. The evidence was insufficient, however, to support a conviction under Count 3 of the indictment, which charged that Woods molested 12-year-old C. P. when he “fondle [d]” her vagina. C. P. never testified that Woods fondled or even touched her genitalia. According to the family and friends who served as outcry witnesses, C. P. never reported that Woods touched her genitalia. The only evidence to support that Woods made any contact with C. P.’s genitalia was Woods’ vague admission that he accidentally touched C. P. between her legs while lifting her onto his back as they played.

Decided June 7, 2000.

Walker L. Chandler, for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

Although C. P. testified at trial that Woods made her touch his penis, he was not charged in the indictment with that act of molestation. Accordingly, Woods cannot be convicted on the basis of allegations of which he had no notice prior to trial. Buice v. State, 239 Ga. App. at 58 (4). Further, we find that there was insufficient evidence to support Count 3 of the indictment, which charged that Woods “fondle [d]” C. P.’s vagina, and Woods’ conviction on that count must be reversed. Kapua v. State, 228 Ga. App. at 193.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ruffin, J., concur.

       One outcry witness testified that another child reported seeing Woods touch “other girls she knew” between the legs, but the “other girls” were never identified.

       Further, the police officer’s testimony regarding Woods’ confession that he “molested” C. P. adds nothing to the determination of whether a fatal variance existed as to this count, as it does not identify the manner in which Woods molested C. P. See OCGA § 16-6-4 (a).


author: Phipps, Judge.

text:
    A00A0096, A00A0097.
    In the Interest of D. M. et al., children (two cases).
    (535 SE2d 7)
   Phipps, Judge.

The putative biological father of D. M. and D. M. appeals the juvenile court order terminating his parental rights. Because the father’s failure to file a petition to legitimate the children within 30 days of receiving notice of the proceedings to terminate his parental rights justified the court’s decision to terminate all such rights, we affirm.

D. M. and D. M., twin boys born in 1995, were removed from the custody of their mother on April 8, 1997, when she tested positive for cocaine and marijuana use at the birth of another son. At the time, the father was twenty-three years old, unemployed, had fathered five children, and lived with his grandmother. He admitted to marijuana and alcohol use.

The juvenile court found the children were deprived and placed them in the temporary custody of the Cobb County Department of Family & Children Services (DFACS). Both parents were ordered to complete drug and alcohol assessment, maintain stable and appropriate residences for themselves and the children for a period of six months, obtain stable, gainful employment, and submit to random drug screens. In addition, DFACS developed a reunification plan for the parents that required the father to prove himself to be the biological father, obtain and maintain housing separate from relatives, remain drug and alcohol free, and obtain stable employment. Neither parent met the goals of the reunification plan.

On September 14, 1998, DFACS filed a petition to terminate the rights of both parents with respect to D. M. and D. M. The petition specifically stated that appellant was believed to be the biological father of the boys and that he would lose all rights to them unless he filed a petition to legitimate them within 30 days of receipt of the petition. On September 17, 1998, counsel was appointed to represent the father in the termination proceedings.

The father was served with a copy of the petition and a summons, which notified him that the juvenile court would conduct a hearing on November 18, 1998, regarding the termination of his parental rights. At the time, he was incarcerated in the Cobb County jail and was transported to the juvenile court for the scheduled hearing.

The termination hearing was reset for January 20, 1999, and the father was again personally served with the summons and petition. On January 20, 1999, the termination hearing was rescheduled for March 5, 1999, and the father, who had been released from jail, was personally served with yet another summons and petition.

The juvenile court conducted a hearing on March 5, 1999, and terminated the father’s parental rights to D. M. and D. M. for failure to file an action to legitimate the children. The only excuse he offered was that he had been incarcerated when he first was served with the action. He admitted that he was released in late November 1998.

1. In three enumerations of error, the father contends that the juvenile court erred in terminating his parental rights pursuant to OCGA § 15-11-83. We disagree.

A biological father who is not the legal father loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the termination of his rights to the child if within 30 days from his receipt of the notice [of the petition to terminate his parental rights] he: (1) does not file a legitimation petition. . . ?

Decided May 16, 2000

Reconsideration denied June 8, 2000.

Christopher E. Ringue, Bobby G. Adkins, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Deen, for appellee.

It is undisputed that the father never sought to legitimate the children. He contends that he is illiterate and that the juvenile court failed to ensure that he understood the procedural requirements associated with a legitimation petition. But he failed to raise his alleged illiteracy at trial, and we will not address any issue raised for the first time on appeal.

The father was provided more than adequate notice that he must file a legitimation petition or his parental rights would be terminated. He was personally served three times with a copy of the summons and petition, which clearly set forth this requirement. Also, he was provided with counsel more than five months prior to the termination hearing. The father had adequate opportunity to file a legitimation petition prior to the March 5 hearing. The juvenile court did not err in determining that his parental rights should be terminated under OCGA § 15-11-83.

2. In light of our holding in Division 1, we need not address the father’s remaining enumerations of error.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       Separate notices of appeal were filed on behalf of the father and the children. Because the facts and issues are the same, we have consolidated the cases.

       OCGA § 15-11-83 (i).

        In the Interest of K. A. C., 229 Ga. App. 254, 255 (2) (493 SE2d 645) (1997).

        In the Interest of A. K. M., 235 Ga. App. 853, 855 (2) (510 SE2d 611) (1998); In the Interest of E. D. T., 233 Ga. App. 774, 775 (505 SE2d 516) (1998).


author: Eldridge, Judge.

text:
    A00A1034.
    KENDRICK v. KALMANSON.
    (534 SE2d 884)
   Eldridge, Judge.

Terry Kendrick appeals from the DeKalb County Superior Court’s grant of summary judgment to Maureen Kalmanson in her action to remove Kendrick’s lien on her property. Having reviewed the record, this Court finds that Kalmanson has established that no jury issue exists as to at least one element of accord and satisfaction as to the debt she allegedly owed Kendrick that was the underlying basis of the lien. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Therefore, we affirm the trial court’s grant of summary judgment to Kalmanson. Id.

The following facts are undisputed: Kendrick was a self-employed carpenter. In 1997, Kalmanson hired Kendrick to perform some exterior renovations to her home on Nelms Avenue in Atlanta, DeKalb County. Kalmanson made regular periodic payments to Kendrick totaling over $10,500 on the work. At some point, Kendrick agreed to perform additional work on the home’s interior; the exact terms of such agreement are the underlying basis of this suit.

In early December 1997, just before he finished the interior work, Kendrick presented Kalmanson a bill for an alleged remaining balance of $10,707; this amount was calculated on a time and materials basis. Kalmanson refused to pay the bill, insisting that she had agreed to pay a flat fee for the additional work and that she had never agreed to pay for any renovations on a time and materials basis. On December 15, 1997, Kendrick filed a lien against Kalmanson’s property in the amount of $21,240. Two days later, Kalmanson gave a check to Kendrick in the amount of $2,168; in the “For” section of the check, Kalmanson wrote the words “PAYMENT IN FULL.” On December 19, 1997, Kendrick cashed the check. Ten days later, however, Kendrick wrote a letter to Kalmanson demanding payment in the full lien amount of $21,240.

. Kalmanson filed suit against Kendrick on March 9, 1998, to remove the lien from the property’s title. A claim previously filed by Kendrick to collect the lien amount of $21,240 was combined with Kalmanson’s suit as a counterclaim. Kalmanson filed a motion for summary judgment on August 2, 1999. The trial court granted such motion on September 23, 1999, finding that Kendrick’s filing of the lien against Kalmanson demonstrated that a bona fide dispute between the parties existed prior to his acceptance of her “Payment in Full” check for less than the full amount and, as such, established an accord and satisfaction as a matter of law. Kendrick appeals from this order. Held\

1. In his first enumeration, Kendrick claims that the trial court erred when granting summary judgment because a jury question existed as to whether there was an accord and satisfaction between the parties. We disagree.

OCGA § 13-4-103 (b) provides that acceptance by a creditor of a conditional payment less than the amount owed shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy* exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt. ... In the absence of an independent agreement by a creditor that the acceptance of an amount less than the indebtedness will be taken, or is taken, in full satisfaction thereof, the mere acceptance of a check for a less sum than the amount of the debt with notice that it is in full satisfaction of the debt, will not amount to an accord and satisfaction unless there existed previously to the tender a bona fide dispute by the debtor as to the correctness of the amount of the debt. ... To constitute accord and satisfaction by payment of less than the amount due under OCGA § 13-4-103 (b) (1), the dispute between the parties must be bona fide; the bona fide dispute must be a dispute between the parties and not one confined to the mind of the sender of the check; and the bona fide dispute between the parties must have existed previously to the debtor’s tender of an amount less than the sum demanded.

(Citations, punctuation and emphasis omitted.) Treadwell v. Treadwell, 218 Ga. App. 823, 825-826 (1) (463 SE2d 497) (1995). See also Habachy v. Ga. Health Group, 207 Ga. App. 288 (427 SE2d 808) (1993); Hadson Gas Systems v. Atlanta Airlines Terminal Corp., 200 Ga. App. 363 (408 SE2d 454) (1991); Wood Bros. Constr. Co. v. Simons-Eastern Co., 193 Ga. App. 874, 876 (2) (389 SE2d 382) (1989).

In this case, it is uncontroverted that Kendrick and Kalmanson disagreed about the amount Kalmanson owed for the renovation work before Kalmanson tendered the $2,168 “Payment in Full” check. In fact, Kendrick repeatedly admitted in his pleadings and deposition that Kalmanson had disputed the amount due and refused to pay him in full prior to December 15,1997, the day the lien was filed, and before Kalmanson’s check was tendered and cashed. Kendrick offered no other explanation for these statements other than to demonstrate the existence of a prior dispute, and, as such, the statements must be construed against him. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). The trial court did not err in granting summary judgment against Kendrick on the basis of accord and satisfaction.

Decided May 23, 2000

Reconsideration denied June 8, 2000

Dorothy R. Primm, James W. Penland, for appellant.

Chad A. McGowan, for appellee.

2. In his second enumeration, Kendrick asserts that the trial court erred in granting summary judgment as to the entire lien because, even if there was an accord and satisfaction as to the debt, a jury question remains as to what portion of the debt was encompassed by the compromise. This enumeration is entirely without merit. The dispute involved the remaining balance owed for all of the renovations to Kalmanson’s property. The resulting accord and satisfaction encompassed the entire debt. There was no error.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       During his deposition, however, Kendrick admitted that the actual amount allegedly owed by Kalmanson was $17,653, and that the lien amount was erroneous.

       It is undisputed that the parties did not enter into an agreement that Kalmanson’s check would settle the debt pursuant to OCGA § 13-4-103 (b)-(2). See also OCGA § 13-4-101.

       Although Kendrick argues on appeal that there are other reasons for a lien to be filed besides the existence of a fee dispute, such as when the creditor is concerned about the debtor’s solvency, he has presented no evidence of any basis for this lien other than the fee dispute.


author: Miller, Judge.

text:
    A99A2145.
    BUTTS v. THE STATE.
    (536 SE2d 154)
   Miller, Judge.

In February 1996, a jury found Larry Butts guilty of three counts of selling cocaine. At the conclusion of the sentencing hearing on February 29, 1996, the trial court sentenced Butts to three concurrent life terms. No appeal followed.

More than three years later, acting pro se, Butts filed a verified request to proceed in forma pauperis. The court apparently did not rule on this request. Butts then filed a motion styled as “Out [sic] Time Motion For New Trial,” in which he raised the general grounds and ineffective assistance and in which he also contended that he was denied the right to appeal his convictions despite having “requested an appeal from his counsel and was made to belief [sic] that an appeal was pending in the Georgia Court of Appeals.” After conducting a hearing on the merits, the trial court denied the motion.

The order now being challenged denied Butts’s “out-of-time motion for new trial.” Butts submitted an application for discretionary appeal and also filed a direct appeal. In dismissing the discretionary application, this Court treated the case as involving a ruling on an out-of-time appeal, which is directly appealable.

The right to an appeal is not absolute and may be waived.

[A] convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.

When the delay in attempting to appeal a conviction is attributable to the defendant’s conduct, either alone or in concert with his trial attorney, a trial court properly denies the motion for an untimely appeal. To secure leave to file an out-of-time appeal, Butts was required to demonstrate to the trial court that his failure to secure a timely direct appeal was not attributable to his own actions. Butts bore the burden of establishing a good and sufficient reason that would entitle him to an out-of-time appeal. It was incumbent upon Butts to show that his right to file a timely direct appeal “was frustrated by the ineffective assistance of his counsel.” Nevertheless,

[o]ur courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights.

Decided June 8, 2000

Larry Butts, pro se.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

We have carefully reviewed the transcript of the hearing on the motion for out-of-time appeal. Butts’s trial counsel testified that although he did not have an independent recollection of informing Butts of his appeal rights, it was his customary practice to inform each convicted client of such (including that the client had 30 days to file the appeal), which practice he invariably followed. He expressly denied that Butts ever asked him to appeal the case and further denied that he led Butts to believe that an appeal was pending. Butts testified that counsel did not inform him that he had 30 days to appeal and that he did not learn of such until 1997.

The court was entitled to believe the testimony of Butts’s counsel, which was sufficient to authorize the court to find that Butts had been informed of his appeal rights and had voluntarily waived same, and to find that Butts’s right to a timely appeal was not frustrated through ineffective assistance of counsel. Since we apply the “any evidence” standard to findings of the trial court when it is acting as the trier of fact, we hold the trial court did not abuse its discretion in denying the motion for out-of-time appeal.

Judgment affirmed.

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

       See Randolph v. State, 220 Ga. App. 769, 770 (470 SE2d 300) (1996) (denial of motion for out-of-time appeal subject to direct appeal); compare OCGA § 5-6-35 (7) (denial of extraordinary motion for new trial requires application).

        Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995).

       (Citations omitted.) Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

        Franz v. State, 208 Ga. App. 677, 678 (2) (432 SE2d 554) (1993).

        Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999) (denial of motion for an out-of-time appeal is discretionary matter); Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985).

        Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996).

       Id.

       (Citations and punctuation omitted.) Haynes, supra, 227 Ga. App. at 65.

        Jackson v. Hopper, 243 Ga. 41, 42 (252 SE2d 467) (1979); accord Murphy v. Balkcom, 245 Ga. 13, 14 (262 SE2d 784) (1980).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       See Penrod v. State, 233 Ga. App. 532, 533 (504 SE2d 757) (1998) (abuse of discretion standard applies).


author: Blackburn, Presiding Judge.

text:
    A00A0567.
    GERALD S. MULLIS, P.C. v. SIKES.
    (535 SE2d 533)
   Blackburn, Presiding Judge.

Gerald S. Mullis, P.C. appeals from the trial court’s grant of Marilyn Ann Sikes’ motion to quash his attorney fee lien. For the reasons set forth below, we affirm.

Sikes had hired the Mullis firm to represent her in a personal injury matter on a contingency fee basis. While the Mullis firm was handling the case, one of the three tortfeasors settled with Sikes, and Mullis received $3,000 based upon the terms of the contingency fee contract. Thereafter, while the action against the two remaining defendants was pending, Sikes discharged the Mullis firm and hired Jason Priebe, a former associate of the Mullis firm. Prior to his resignation from the Mullis firm, Priebe had worked on Sikes’ case.

Following its discharge, the Mullis firm filed an attorney fee lien for the quantum meruit value of its services in Sikes’ pending action. Mullis did not seek compensation based upon the contingency fee agreement. Sikes moved to quash the lien, and in response, the Mullis firm, through submissions to the trial court, presented evidence of its services to Sikes. The trial court granted the motion to quash the lien, finding that Mullis had already received compensation for the quantum meruit value of its services.

1. On appeal, Mullis argues for the first time that the trial court lacked the authority to rule upon the merits of its lien filed in the personal injury action. As this issue was not raised in the trial court, it cannot be considered for the first time on appeal. Jackson v. Ga. Lottery Corp., 228 Ga. App. 239, 245 (2) (491 SE2d 408) (1997).

Moreover, Mullis requested the trial court rule upon the merits of the lien by stating: “We submit that all of the time which we have detailed on this case should be considered by the Court on a quantum meruit basis to establish the value of our services to satisfy the Lien of Gerald S. Mullis, P.C.” And further, “[w]e respectfully ask that equity be done as to the fee division in this case.” Mullis submitted evidence, including time records, for the trial court’s review, and opposing counsel submitted rebuttal evidence. Mullis clearly acquiesced in the trial court’s review of the merits of the lien. “ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.’ ” Padilla v. Melendez, 228 Ga. App. 460, 461-462 (1) (491 SE2d 905) (1997). As Mullis sought the very ruling of which it now complains, we will not extricate it from the predicament of its own making.

2. In two separate enumerations of error, Mullis argues that the trial court erred by granting the motion to quash after finding that the reasonable fee for all of Mullis’ services was $3,000, which it had received in the first settlement. Mullis contends that the weight of the evidence is contrary to the trial court’s decision.

“In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the ‘clearly erroneous’ test is in essence the same as the ‘any evidence’ rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them.”

Decided June 8, 2000.

Mullis, Marshall, Lindley & Powell, Gerald S. Mullis, for appellant.

Lawson & Priebe, Jason K. Priebe, for appellee.

Thomas v. Dept. of Transp., 232 Ga. App. 639, 643 (3) (502 SE2d 748) (1998).

In this case, the trial court found that the quantum meruit value of Mullis’ services was $3,000, and that Mullis had already been compensated in that amount by the settlement with one of the three defendants. The evidence in the record supports these findings since the services for which Mullis seeks compensation were provided prior to the pro tanto settlement.

As the trial court’s findings of fact are supported by evidence in the record, [Mullis’] arguments asking this court to interpret the evidence differently from the trial court are to no avail. Accordingly, [Mullis’ enumerations] of error alleging that the judgment is against the weight of the evidence [are] without merit.

(Punctuation omitted.) Thomas, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0674.
    GRANT v. FRANKLIN.
    (534 SE2d 584)
   Smith, Presiding Judge.

Kimberly Grant appeals from the trial court’s order granting summary judgment to Paul Franklin in this action filed by Grant against Franklin. Because we agree with the trial court that Grant’s lawsuit is barred under the doctrine of res judicata, we affirm.

Kimberly Grant, Pamela Grant, and Khali Grant filed a personal injury action in Fulton County Superior Court in April 1997 against Franklin. In June 1997, Pamela Grant and Khali Grant dismissed the action without prejudice, but Kimberly Grant (hereinafter “Grant”) was not a party to this dismissal. Her action against Franklin therefore remained pending in superior court. In July 1997, Grant filed an action against Franklin in Fulton County State Court alleging injuries arising out of the same transaction as that alleged in the superior court complaint. The parties do not dispute that she then dismissed the state court action with prejudice in August 1997. Franklin moved for summary judgment in the superior court action. The trial court granted the motion and dismissed the superior court action, concluding that Grant’s dismissal with prejudice of the state court action was an adjudication on the merits for res judicata purposes.

The trial court’s ruling was correct. Georgia law is well settled that

[f]or a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction, [cit.]; the two actions must have an identity of parties and subject matter, [cit.]; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action. [Cits.]

Fowler v. Vineyard, 261 Ga. 454, 455-456 (1) (405 SE2d 678) (1991). The parties do not dispute that Fulton County State Court was a court of competent jurisdiction. And a dismissal of a prior action with prejudice acts as an adjudication on the merits for res judicata purposes. Id. at 456 (2). Furthermore, the same parties and subject matter were involved in both the superior and state court actions, and as stated by the trial court, “the State Court provided a full and fair opportunity to litigate the issues, but the case was dismissed with prejudice prior to trial.”

Grant cites Jones v. Rich’s, Inc., 81 Ga. App. 841 (60 SE2d 402) (1950) as authority for her argument that the superior court action was not barred by her dismissal with prejudice of the state court action. In Jones, this court stated the general rule:

No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times.

(Citation and punctuation omitted.) Id. at 844. Relying on this language, Grant argues that the doctrine of res judicata bars an action only if that action has been filed subsequent to a judgment in a prior action between the same parties based on the same subject matter. Conversely, according to Grant, if a second action is filed before an adjudication is entered on the prior action between the same parties based on the same subject matter, the doctrine does not apply.

This argument is unavailing. In Atlanta J’s v. Houston Foods, 237 Ga. App. 415 (514 SE2d 216) (1999) plaintiff filed an action in superior court to recover amounts allegedly due under a lease. Id. at 416. While the superior court case was pending, plaintiff instituted a dispossessory proceeding, and the trial court eventually issued a writ of possession. Id. Defendants then moved for summary judgment in the superior court case on the basis of res judicata. This court reversed the trial court’s denial of the motion, concluding:

Decided June 8, 2000.

Yokely & Associates, Daryl V. Yokely, Tracy L. Parsons, for appellant.

Harper, Waldon & Craig, Janice M. Wallace, for appellee.

The doctrine of res judicata may be applied where actions between the same parties in relation to the same subject-matter are pending at the same time, and a judgment is rendered in one of such actions. It is immaterial whether the action in which the judgment is interposed as an estoppel was commenced before or after the action in which the adjudication was made. This rule is not affected by the failure to plead the pendency of the latter action.

(Citation and punctuation omitted.) Id. at 419 (5). Here, two separate actions based on the same subject matter between the same parties were pending, and a judgment was rendered in one of them. The trial court therefore correctly applied the doctrine of res judicata and granted summary judgment to Franklin. By bringing identical actions in separate courts, Grant “ran the risk that a judgment in one action would operate as a bar to the other action.” Id. at 420.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: Smith, Judge.

text:
    A99A0730.
    SWANTNER v. THE STATE.
    (535 SE2d 343)
   Smith, Judge.

Shawn Swantner appeals from the superior court’s order denying his motion to withdraw his guilty plea to one count of sale of cocaine, one count of trafficking in cocaine, one count of sale of marijuana, one count of trafficking in cocaine in an amount greater than 400 grams, and one count of possession of flunitrazepam with intent to distribute. After a hearing, the trial court denied Swantner’s motion to withdraw his plea in a lengthy, well-reasoned, and thorough order. In a single enumeration of error, Swantner argues the court erred in denying his motion because the trial court failed to place on the record an adequate factual basis for the plea and because he was denied effective assistance of counsel in three different respects. We disagree and affirm.

1. Swantner contends the trial court did not comply with Uniform Superior Court Rule 33 in recording a factual basis for his plea. The Supreme Court of Georgia has held that “the record of the plea hearing must reveal the factual basis relied on so that a reviewing court may determine whether an abuse of discretion occurred. [Cit.]” Green v. State, 265 Ga. 263, 264 (2) (454 SE2d 466) (1995). But “there is no requirement that the elements of the crime be proven beyond a reasonable doubt. [Cit.] Rather, the court must satisfy itself subjectively that the pleader knows both what he has done and that those acts constitute the crime with which he is charged. [Cit.]” Battle v. State, 234 Ga. App. 143 (1) (505 SE2d 573) (1998). The factual basis may be demonstrated from the record of the guilty plea hearing itself or other portions of the record such as a bond hearing, Bess v. State, 235 Ga. App. 372, 374 (2) (508 SE2d 664) (1998), or the indictment alone may contain sufficient information to show that the facts alleged by the State satisfy all the elements of the charge to which the defendant pled guilty. Green, supra at 265.

Here, a statement from the prosecutor, as well as brief testimony from the investigating officer, was introduced at the bond hearing regarding the factual basis for Swantner’s plea. The evidence against Swantner also was discussed in detail by the prosecutor at the plea hearing as the trial court reviewed the indictment. The prosecutor recited that, on two different dates, Swantner made two sales of cocaine to a named drug enforcement agent, one of approximately three and one-half grams and one of approximately 43 grams, as well as one sale of marijuana to the same agent. At the bond hearing, a police officer testified that a subsequent search pursuant to a warrant uncovered an additional 18 ounces of powdered cocaine and 55 tablets of Rofenol at Swantner’s apartment.

Immediately after the prosecutor’s recitation of the facts at the plea hearing, the trial court asked Swantner if he understood all the charges against him and received an affirmative response. The prosecutor then questioned Swantner regarding his understanding of the charges and his understanding and affirmance of his petition to enter the guilty plea, and he elicited a separate admission from Swantner that he had committed each offense as laid out in each count of the indictment. At one point, Swantner interrupted his responses to confer with his attorney before admitting the charge. From these facts, the trial court could determine that Swantner “knew what he was accused of doing and knew that those acts constituted the crimes with which he was charged. [Cit.] Therefore, the State presented a sufficient factual basis to comply with USCR 33.9.” Battle, supra at 143 (1).

2. We next consider Swantner’s contentions that his counsel rendered ineffective assistance at his guilty plea. As the trial court correctly observed:

In the context of guilty pleas, the two-prong test for establishing ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) employs a standard of objective reasonableness with regard to counsel’s performance and requires that the defendant establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. [Cits.]

Brantley v. State, 268 Ga. 151, 152 (1) (486 SE2d 169) (1997). A court’s finding of effective assistance, as well as its findings on reasonableness and credibility, will be affirmed unless clearly erroneous. Martin v. State, 268 Ga. 584, 585 (492 SE2d 223) (1997); Griffith v. State, 234 Ga. App. 326, 329 (2) (506 SE2d 676) (1998). Moreover, determination of witness credibility is within the trial court’s discretion. Boykin v. State, 240 Ga. App. 402, 404 (2) (523 SE2d 605) (1999).

(a) Swantner first claims that his counsel was ineffective because his investigation and consultation were inadequate. At the hearing on Swantner’s motion to withdraw his guilty plea, his plea counsel testified that he met with Swantner approximately three times in person and approximately three times by telephone, for a total, according to Swantner, of between two and two and one-half hours. Counsel also investigated the facts of the case by talking to one member of the local drug task force on four or five occasions, talking to a second member of the task force, talking to the prosecutor, and reviewing the search warrant. Not only did counsel conclude that the warrant was valid, he learned from Swantner that the drugs involved in the case were those alleged in the indictment and that Swantner had already made “certain admissions” to the drug task force.

The length of time that plea counsel spent in conference with Swantner is not in itself inadequate. See Tahamtani v. State, 177 Ga. App. 52, 53 (338 SE2d 488) (1985) (half-hour consultation, without more, does not establish ineffective assistance). And while Swantner complains that plea counsel, because of an inadequate investigation, “was unable to discover whether there are any unknown issues or facts which will assist the Defendant,” he has not shown what, if any, additional facts could have been uncovered by further investigation, particularly in the face of the known facts and the admissions Swantner had already made to the police and to his counsel. While Swantner does make the specific contention that counsel should have examined the crime lab report regarding the weight and purity of the drugs, counsel testified that Swantner acknowledged to him that he possessed the drugs named in the indictment. At the time he entered his plea, Swantner was aware of the evidence against him and had acknowledged the accuracy of that evidence to his counsel. We cannot say that the trial court’s conclusion that further investigation was unlikely to have produced a different outcome was clearly erroneous. Compare Carroll v. State, 222 Ga. App. 560 (474 SE2d 737) (1996) (denial of motion to withdraw plea error when State withheld specific exculpatory evidence unknown to defendant).

(b) Swantner also contends that counsel “rushed” a guilty plea because he believed that a law was about to be enacted to preclude the granting of first offender status in drug trafficking cases. We note that Ga. L. 1998, p. 180 was not signed into law until March 27, 1998, three days after Swantner executed his petition to enter a guilty plea and two days after the plea hearing. This enactment provides for mandatory minimum sentences and forbids pardon, parole, or first offender status for certain “serious violent felonies,” but not for drug trafficking. In his brief, Swantner contends that he would not have entered a plea had he known that first offender status would continue to be available.

We would hesitate to conclude that a mistake as to the scope of a pending act of the Georgia General Assembly, not yet law, constitutes anything more than a peripheral question of strategy and tactics regarding possible future changes in the law. But we need not reach that issue, because Swantner has not demonstrated that “but for his counsel’s deficiency, he would have insisted on going to trial and would not have pled guilty. [Cit.]” Johnson v. State, 242 Ga. App. 89, 92 (2) (528 SE2d 861) (2000).

First, and most importantly, the trial court repeatedly warned Swantner before he entered his plea that the court had never allowed first offender treatment in a drug trafficking case and that it was unlikely to do so: “I don’t want him going in thinking that he’s going to get first offender and then turn out he doesn’t. . . . I’m just telling you in advance I can’t remember a case that I’ve ever allowed that type of sentence in that type of case.” The trial court added, “I don’t want him having any ideas that the Court is going to do that. That’s what I’m saying.” Second, plea counsel testified that at the time he discussed the pending legislation with Swantner, the decision to plead and seek first offender treatment had already been made.

Finally, plea counsel testified that he explained to Swantner the approximate amount of time he would probably serve, the State’s recommendation on sentencing (which was the sentence Swantner received), and the likelihood Swantner would serve every day of any sentence he received. Counsel testified that he did not promise Swantner he would receive a reduced sentence or make any guarantees as to the outcome of the plea: “I don’t make any encouragements and I don’t make any guarantees.” And Swantner testified at the plea hearing “that his guilty pleas were entered voluntarily and were not the result of any promises or inducements.” Romano v. State, 272 Ga. 238, 241 (2) (527 SE2d 184) (2000).

Moreover, Swantner testified only that he would not have pled guilty and would have insisted on a trial if he had known the amount of mandatory fines that would be imposed, if he had known that the sentences could be imposed consecutively, or if he had known that he would serve a minimum of 25 years. He never testified that he would not have pled guilty and would have insisted on a trial but for his asserted belief that he would get first offender treatment. He also acknowledged on cross-examination that he never told anyone that he wanted to go to trial and that he understood the mandatory minimum sentences and fines. The trial court, as the judge of credibility, was authorized to weigh Swantner’s assertions against his conflicting statements, the testimony of his counsel, and the testimony from the plea hearing. From this evidence, the court was authorized to conclude that Swantner knew he was unlikely to receive first offender treatment in any event or that Swantner would not have insisted on going to trial regardless of the availability of first offender status. Brower v. State, 230 Ga. App. 125, 126 (2) (495 SE2d 600) (1998).

(c) Finally, Swantner complains that plea counsel misrepresented to him that the trial court could make a finding of “substantial assistance” under OCGA § 16-13-31 (f) (2) and use corresponding leniency in sentencing. Swantner contends that only the State could make such a request and that his plea counsel therefore incorrectly advised him that the court could consider Swantner’s request. This is not a correct statement of the law; either the prosecutor or the defendant may bring this information to the attention of the sentencing court, or the court may inquire into it sua sponte. Brugman v. State, 255 Ga. 407, 414-415 (5) (339 SE2d 244) (1986). Counsel in fact made such a request to the trial court, and he was not ineffective in doing so for the reason argued by Swantner.

Decided June 8, 2000

James W. Smith, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

For these reasons, Swantner has failed to show, as he must, both that trial counsel’s conduct fell below a reasonable standard of care and that there was a reasonable probability that, but for counsel’s alleged errors, he would not have pled guilty and would have insisted on going to trial. The trial court’s finding that Swantner received effective assistance of counsel is not clearly erroneous, and the trial court did not err in denying Swantner’s motion to withdraw his guilty plea. See Baptiste v. State, 229 Ga. App. 691, 699 (3) (494 SE2d 530) (1997).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The court sentenced Swantner to the mandatory minimum sentence of 25 years and a fine of $1 million for trafficking in cocaine in an amount in excess of 400 grams. OCGA § 16-13-31 (a) (1) (C). The court also imposed a mandatory fine of $200,000 for trafficking in cocaine in an amount less than 200 grams, OCGA § 16-13-31 (a) (1) (A), as well as lesser prison sentences, to be served concurrently.

       Pursuant to the directive of the Supreme Court of Georgia on remand of this appeal, we nevertheless consider all four assertions of error contained in this single enumeration, in accordance with Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999).

       We also note that counsel’s belief was not, as Swantner contends, wholly without basis, because other enactments abolishing pardon or parole for certain crimes have included drug trafficking as well as violent felonies within their scope. See OCGA § 42-9-45 (0.


author: Johnson, Chief Judge.

text:
    A00A0943.
    ALLEN v. THE STATE.
    (535 SE2d 347)
   Johnson, Chief Judge.

Demar Allen was arrested for making harassing telephone calls to his estranged wife. He served 34 days in custody before making a $600 bond and being released from jail. After his release, Allen failed to appear at a scheduled court hearing, so the court issued a bench warrant for his arrest and set a new bond of $1,200.

About three weeks later, Allen was arrested on the warrant. After spending approximately ten days in custody, Allen was arraigned. He pled not guilty, and a trial date was set. Allen was not released from custody after the arraignment, and instead spent another month in custody awaiting trial. From the date of his arrest on the bench warrant until the date of trial, Allen was confined for a total of 41 days.

When the trial date arrived, Allen waived his right to trial and pled guilty to three counts of making harassing telephone calls. Prior to sentencing, Allen requested that he be given credit for the 75 days that he had spent in jail prior to his guilty pleas — the initial 34 days he had been in custody before he made the $600 bond plus the subsequent 41 days he had served in jail after his arrest on the bench warrant.

The court agreed to give Allen full credit for the initial 34 days he had spent in custody, but refused to give him credit for the 41 days served after the bench warrant arrest. Instead, the court gave Allen credit for only 45 days served and ordered him to serve another 45 days in custody, followed by 33 months on probation.

In his appeal from his sentence, Allen asserts that the court erred in refusing to give him credit for the entire 75 days that he served in custody. We agree and reverse the court’s sentence. We remand the case for resentencing with direction that Allen be given full credit for the 75 days that he was incarcerated prior to his convictions.

OCGA § 17-10-11 (a) provides: “Each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial. . . .” The Supreme Court has stated that this Code provision is consistent with the policy that a person confined in jail before trial because he cannot be released on bail should have credit against his sentence for that period of confinement. The Supreme Court has further held that credit for “time spent in confinement applies only to persons who would not be confined but for the charges which give rise to the sentence for which credit is sought.”

In the instant case, Allen was confined because of the criminal charges lodged against him. Although he could have avoided being confined for the additional 41 days if he had appeared for his scheduled court date, the fact remains that he was required to appear for that court date only because he had been charged with making harassing telephone calls. Moreover, Allen was ultimately convicted of and sentenced for those crimes. Thus, but for the harassing telephone call charges which gave rise to the sentence for which credit is sought, Allen would not have been confined. Under OCGA § 17-10-11 (a), Allen is therefore entitled to credit on his sentence for not only the initial 34 days he spent in jail, but also for each of the subsequent 41 days he was confined before his guilty pleas.

The trial court agreed with the state’s reasoning that Allen should not get credit under OCGA § 17-10-11 (a) for his 41 days in confinement because that confinement was not due to his pending charges, but was due to the bench warrant issued after he failed to appear for his arraignment. This reasoning is incorrect.

Decided June 8, 2000.

Gerard B. Kleinrock, for appellant.

Gwendolyn R. Keyes, Solicitor, Ann S. Brumbaugh, Thomas E. Csider, Assistant Solicitors, for appellee.

“The primary purpose of the bench warrant is to secure the presence of the defendant in court. Once the defendant appears in court, the bench warrant is no longer necessary, and has no force and effect.” So once Allen appeared in court pursuant to the bench warrant, that warrant became unnecessary and had no further force or effect. Allen therefore did not remain in custody for 41 days under the force of the bench warrant, but stayed in custody because he was unable to pay the increased bail amount of $1,200.

Furthermore, holding a person in jail as some sort of punishment for having been arrested under a bench warrant is not a recognized procedure in Georgia. Rather, if the state believed that Allen’s failure to appear at the court hearing amounted to the misdemeanor offense of bail jumping, it could have charged him with that offense as provided for under OCGA § 16-10-51 (b). But the state did not charge Allen with such an offense. The state instead has sought to punish Allen for his bench warrant arrest by having him confined in jail for the completely arbitrary period of 41 days. Such a punishment is not lawful.

Because the trial court erred in refusing to give Allen full credit for each of the 75 days that he spent in custody awaiting trial, the court’s sentence is vacated. The case is hereby remanded to the trial court for resentencing, and the trial court is hereby directed to give Allen credit on his sentence for the entire 75 days that he spent in custody awaiting trial.

Judgment of conviction affirmed, sentence vacated and case remanded with direction.

Smith, P. J., and Phipps, J., concur.

        Spann v. Whitworth, 262 Ga. 21, 23 (2) (413 SE2d 713) (1992).

       Id. at 23-24 (2).

         State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988).


text:
    A00A1177.
    In re FULTON COUNTY GRAND JURY PROCEEDINGS.
    (535 SE2d 340)
   Phipps, Judge.

The State issued a subpoena requiring J. D., a private investigator, to appear before the Fulton County Grand Jury and produce certain evidence acquired by him during his employment in S. D.’s divorce proceeding. Although J. D. moved to quash the subpoena in reliance on the attorney-client privilege, he later took the position that the subpoena should stand. S. D. intervened in this proceeding and also filed a motion to quash. S. D. appeals the superior court’s denial of the motions to quash. He argues that the subpoenaed evidence is privileged and that the court’s refusal to allow him to engage in limited cross-examination of J. D. violated his Sixth Amendment right of confrontation. We find no error and affirm.

In September 1996, S. D.’s wife sued him for divorce. After S. D. conferred with his divorce lawyer, a decision was made to hire a private investigator. J. D.’s services were used. According to the State, J. D. was retained to investigate a suspected affair between S. D.’s wife and David Coffin. On December 7 or 8, 1996, Coffin’s residence was burglarized, and his handgun was stolen. On December 10, Coffin’s house was destroyed by arson, and his body was found inside. He had been killed by a gunshot wound to the head. The wound was inflicted by his stolen gun.

S. D. and his wife later divorced. S. D. was arrested for Coffin’s murder and related crimes, but the State was unable to secure an indictment. After Coffin’s family offered a $200,000 reward to anyone providing information leading to the arrest of the murderer, J. D.’s attorney contacted the district attorney’s office. Believing that J. D. had obtained evidence concerning the burglary or murder while conducting the divorce investigation, the State issued the subpoena requiring J. D. to produce photographs, video and audio recordings, and documents relating to any criminal or other activity involving Coffin.

The motions to quash were supported by the argument that J. D. was part of the legal network of persons representing S. D. and that all communications between S. D. and the investigator were therefore within the attorney-client privilege and work-product doctrine. In his motion, J. D. stated that in October 1996, he had been contacted by S. D.’s divorce lawyer and instructed to contact S. D. with regard to conducting an investigation in the pending divorce action; that he contacted S. D. and was instructed by him to conduct an investigation regarding the case; that he submitted a report to S. D. on December 5, 1996, regarding the results of the investigation; and that he also communicated information concerning the investigation to counsel. J. D. also related that he and counsel had a standing arrangement under which the client would make direct payment to the investigator for his services with counsel acting as guarantor and that, in this instance, S. D. did pay for the investigator’s services.

The trial court conducted a bifurcated hearing on the motions. At the first stage, attorneys representing S. D., J. D., and the State were present. Contrary to assertions contained in J. D.’s motion to quash, his attorney announced that the investigator did not consider himself to be part of S. D.’s network of legal representation because he did not render legal advice to him and that, in any event, some of S. D.’s communications to J. D. had been in furtherance of a crime.

To establish that the investigator had been part of S. D.’s legal team, his divorce lawyer testified. Among other things, he related that the decision to employ an investigator was made at a conference between counsel and S. D. and that, although he could not remember whether the idea originated with him or S. D., it was definitely counsel’s decision to hire J. D., whose services he often used.

At the conclusion of counsel’s testimony, the attorney representing S. D. in this proceeding requested an opportunity to cross-examine J. D. for the purpose of establishing whether he was employed in S. D.’s divorce action under such circumstances as to have brought him within the protection of the attorney-client privilege. The court decided to examine J. D. in camera.

After conducting the in camera examination, the court issued an order denying the motions to quash. It found that “the direction and control of the witness by the attorney [were] not sufficient to warrant the confidence which the attorney client privilege and work product doctrine require.”

In this case, we are presented with two countervailing interests. The State has an interest in protecting the secrecy of grand jury proceedings by prohibiting disclosure of evidence to be presented to the grand jury.

“Testimony before the grand jury has traditionally been unavailable to criminal defendants in this state. ‘The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow. This “indispensable secrecy of grand jury proceedings” (cit.), must not be broken except where there is a compelling necessity.’ (Cit.)” [Cit.]

S. D., on the other hand, has an interest in prohibiting disclosure to the grand jury of information protected by the attorney-client privilege. This privilege is enshrined in OCGA § 24-9-24, which provides that communications to any attorney “or to his employee” to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. Accordingly, our Supreme Court in Taylor v. Taylor held that an employee of an attorney who acquires knowledge of confidential client matters by virtue of his or her position cannot be compelled to testify to such matters. In Revera v. State, this court held that a statement from the defendant given to an investigator by defense counsel was a privileged and confidential communication. Courts in other states have recognized that where a private investigator is employed by counsel to collect and assemble facts necessary for representation in pending or anticipated litigation, the protection of the attorney-client privilege extends to confidential communications between the client and investigator. But the attorney-client privilege does not extend to communications which occur before perpetration of a fraud or commission of a crime and which relate thereto. This is referred to as the crime-fraud exception to the privilege.

In Hall County, an accountant was called to appear as a witness before the grand jury. To certain questions, he invoked the accountant-client privilege, which is analogous to the privilege between attorney and client. The grand jury filed a motion to compel his testimony. Former Clients of the accountant intervened. After conducting an in camera review of sealed affidavits summarizing other testimony heard by the grand jury, the trial court found that the testimony sought from the accountant was within the crime-fraud exception and granted the grand jury’s motion. On appeal, the former clients argued that their due process rights were violated because they were not apprised of the contents of the material considered by the superior court. This court disagreed, holding that “ ‘[t]he need to preserve the secrecy of an ongoing grand jury investigation is of paramount importance’ ” and that the “ ‘cautious use of in camera proceedings is appropriate to resolve disputed issues of privilege.’ ” This court also held that “[a]n individual has no constitutional right ‘to appear before the grand jury to . . . cross-examine witnesses. The (individual is) not on trial at this stage of the proceedings, and therefore (such a) refusal [does not deny him] the right of confrontation. . . .’ [Cit.]”

Decided June 8, 2000

Finestone & Morris, Bruce H. Morris, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Consistent with the Hall County case, S. D. concedes that he has no right to be present to be confronted with testimony relating to the substance of the evidence sought by the grand jury. But S. D. claims a procedural right to cross-examine J. D. on issues relating to whether the private investigator functioned in such capacity as to bring him within the protection of the attorney-client privilege. At the hearing below, S. D. argued that this was necessary because of inconsistent positions taken by J. D. in his motion to quash and by his attorney at the hearing. The superior court indicated that it would afford S. D. the opportunity to cross-examine J. D. if his testimony conflicted with the divorce lawyer’s.

We have reviewed the testimony given by J. D. during his in camera examination by the superior court and find that it did not conflict with either the testimony provided by the divorce lawyer or with factual assertions contained in J. D.’s motion to quash. After offering this testimony, however, the investigator proceeded to testify to the substance of certain communications to him by S. D. after J. D. had conducted his investigation and informed counsel of the results thereof.

Under these circumstances, there was no violation of S. D.’s procedural rights. Because the investigator’s testimony authorized the court to find that the subject communications from S. D. were made after the investigator ceased acting as an agent or employee of the attorney and that they fall within the crime-fraud exception to the attorney-client privilege, there are no substantive grounds for a reversal either.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

        In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 352 (3) (333 SE2d 389) (1985), writ of certiorari vacated as moot, 255 Ga. 241 (338 SE2d 864) (1985).

       179 Ga. 691, 693 (177 SE 582) (1934).

       223 Ga. App. 450, 451-452 (1) (477 SE2d 849) (1996).

        In the Matter of &c. Grand Jury Investigation, 687 NYS2d 219 (County Ct. 1999); see New Jersey v. Davis, 116 N.J. 341, 360-362 (2) (561 A2d 1083, 1092) (1989); Delap v. Florida, 440 S2d 1242, 1246 (Fla. 1983); Illinois v. Knippenberg, 66 Ill.2d 276, 279 (362 NE2d 681) (1977).

        Hall County, supra at 350 (2).

       (Emphasis omitted.) Hall County, supra at 352 (3).

       Id. at 351.


author: Andrews, Presiding Judge.

text:
    A00A0128.
    STEPHENS v. HARBOR CLUB, INC.
    (535 SE2d 256)
   Andrews, Presiding Judge.

Glenda Stephens appeals from the trial court’s dismissal of her complaint against Harbor Club, Inc. for lack of subject matter jurisdiction. Because Stephens’s claims for damages arising from Harbor Club’s alleged fraud in preventing her from filing a workers’ compensation claim do not relate to any Employment Retirement Income Security Act (ERISA) governed benefit plan, the trial court erred in concluding that it did not have subject matter jurisdiction over the complaint.

This case arose when Stephens, who worked as a waitress for Harbor Club, ruptured a disc in her neck while lifting a tray of dishes. After the injury, Stephens’s supervisor told her that this “would not be a worker’s compensation claim and would not be reported to worker’s compensation by Harbor Club” and would instead be handled by medical insurance.

Stephens’s injury occurred on June 27, 1997. On September 29, 1997, while she was still undergoing treatment, Harbor Club can-celled her medical insurance benefits.

Stephens then hired a lawyer who successfully asserted a workers’ compensation claim on her behalf, and benefits were paid retroactive to June 27, 1997. In addition, Harbor Club reinstated Stephens’s medical insurance on January 26, 1998, retroactive to October 1, but failed to refund a Comprehensive Omnibus Budget Reconciliation Act payment of $118.43.

Stephens sued Harbor Club, alleging fraud and misrepresentation, intentional infliction of emotional distress, conversion, tortious interference with contractual rights, and breach of an implied covenant of good faith and fair dealing. Harbor Club filed a motion to dismiss the complaint for lack of subject matter jurisdiction. Harbor Club argued that the claims related to an employee benefit plan under ERISA and, therefore, under 29 USC § 1132 (e) (1), were within the exclusive jurisdiction of the federal courts.

The trial court granted the motion to dismiss, finding that it did not have subject matter jurisdiction over Stephens’s complaint.

Stephens contends on appeal that her claims for fraud and misrepresentation relate only to Harbor Club’s attempt to keep her from filing a claim for workers’ compensations benefits, not to any employee benefit plan governed by ERISA. We agree.

With the exception of four narrow exclusions not relevant in this case, Congress has mandated that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . .” 29 USC § 1144 (a); Whitaker v. Texaco, Inc., 566 FSupp. 745, 748 (N.D. Ga. 1983).

In determining whether a state action relates to an ERISA covered plan, the “relate to” language of § 1144 (a) has been broadly interpreted by the United States Supreme Court to effectuate the intent of Congress that regulation of employee benefit plans be exclusively a federal concern.

Norton v. North Ga. Foods, 211 Ga. App. 684, 686 (440 SE2d 263) (1994), citing Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 137-138 (111 SC 478, 112 LE2d 474) (1990).

In this case, Stephens’s claims for fraud and misrepresentation arise from Harbor Club’s alleged statements to Stephens that she could not file a workers’ compensation claim without their approval. These claims do not relate to any ERISA benefits program and do not involve the regulation of any ERISA-covered employee benefit plan.

Willis v. Aratex Svcs., 216 Ga. App. 729 (455 SE2d 415) (1995), and Norton, supra, relied on by Harbor Club, are not on point. In Norton, employees sued after the insurer failed to pay covered medical expenses. Id. at 684. In that instance, this Court properly determined that the state law claims were preempted by ERISA because they “related to” the covered plan.

In Willis, the plaintiff’s claim arose out of Aratex’s failure to provide plaintiff with insurance benefits promised to him as part of a comprehensive benefit plan maintained by Aratex. Id. at 730. Thus, both Norton and Willis were cases based on failure to pay benefits under an ERISA-governed plan. Stephens’s claim for fraud is based on Harbor Club’s misrepresentations concerning her eligibility for workers’ compensation benefits, which are not governed by ERISA.

In Forbus v. Sears Roebuck & Co., 30 F3d 1402 (1994), which is more nearly on point, plaintiffs alleged that they were fraudulently induced to “retire” and accept an employee benefit package. Plaintiffs claimed that although they were told their jobs were being eliminated, the jobs were actually later filled by younger employees. Id. at 1403. The employer moved for summary judgment on the employees’ state law causes of action for fraud and breach of contract, claiming they were preempted by ERISA because they related to the employees’ pension benefit package. In reversing the District Court, the Eleventh Circuit held that the plaintiffs’ claims centered on Sears’ alleged fraud concerning the elimination of their jobs, not fraud concerning any ERISA-covered benefits package. Id. at 1406. Similarly, in this case, Stephens’s claim for fraud centers on misrepresentations concerning her eligibility for workers’ compensation benefits, not any ERISA-covered benefits.

Decided May 25, 2000

Reconsideration denied June 9, 2000

David G. Kopp, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, M. Steven Heath, Josh B. Wages, for appellee.

Accordingly, the fraud and misrepresentation counts of the complaint are not preempted by the ERISA provisions nor are the other counts to the extent they allege damages as a result of the claimed fraud.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       Although not argued below, Stephens also points out that her claim is not barred by the exclusive remedy provision of the Workers’ Compensation Act. This is true because the alleged torts did not arise out of or in the course of her employment, but rather from the intentional misconduct of the employer after the physical injuries which gave rise to the workers’ compensation claim. See Potts v. UAP-GA. AG. CHEM., 270 Ga. 14, 16-17 (506 SE2d 101) (1998).

       Stephens does not argue any error in the trial court’s dismissal of her complaint for conversion.


text:
    A00A0150.
    RABURN BONDING COMPANY v. STATE OF GEORGIA.
    (535 SE2d 763)
   Smith, Presiding Judge.

Raburn Bonding Company appeals from the trial court’s denial of its motion for return of bond. Raburn posted a misdemeanor bond for David L. Rolack in June 1998. Rolack failed to appear for trial in August 1998, and bond was forfeited on December 16, 1998. On February 5, 1999, Raburn paid the full amount of the judgment, $2,210. On May 21, 1999, Raburn filed a motion for return of bond, alleging that it had acted with due diligence and used all practical means to secure Rolack’s presence after he failed to appear for trial, but that Rolack was on active military duty, which prevented his return to the jurisdiction. The trial court denied the motion, finding that because the State received no benefit, the return of Raburn’s bond would be a gratuity and therefore impermissible under the reasoning of AAA Bail Bonding Co. v. State of Ga., 259 Ga. 411 (383 SE2d 125) (1989). The trial court concluded that under OCGA § 17-6-31, when the principal is not surrendered to the court, the bondsman may receive a remission only if application is made before a final judgment on the appearance bond is entered. We disagree with this reasoning, and we reverse the judgment below.

Our disagreement centers on two points: the trial court’s apparent conclusion that in addition to modifying subsection (1) of OCGA § 17-6-31 (d), the phrase “prior to entry of judgment” in subsection (d) (1) also modifies subsections (d) (2) (A) and (B) and subsection (f) of the statute; and the trial court’s conclusion that the reasoning in AAA Bonding applies in this case.

1. OCGA § 17-6-31 (d) provides:

(1) Furthermore, the surety shall be released from liability if, prior to entry of judgment, there is: (A) A deferred sentence; (B) A presentence investigation; (C) A court ordered pretrial intervention program; (D) A court ordered educational and rehabilitation program; (E) A fine; (F) A dead docket; or (G) Death of the principal.
(2) Furthermore, the surety may be released from liability at the discretion of the court if: (A) The principal used a false name when he or she was bound over and committed to jail or a correctional institution and was subsequently released from such facility unless the surety knew or should have known that the principal used a false name; and (B) The surety shows to the satisfaction of the court that he or she acted with due diligence and used all practical means to secure the attendance of the principal before the court.

Raburn contends it is entitled to a remission of the bond even after the entry of judgment because it satisfied OCGA § 17-6-31 (d) (2) (B) by acting with due diligence and all practical means to secure Rolack’s attendance. It tracked Rolack down, but it was unable to return him to the court. Raburn argues that the plain language of the statute demonstrates that the phrase “prior to entry of judgment” in (d) (1) was not meant to apply to (d) (2). It argues that (d) (1) and (d) (2) are entirely distinct. Raburn points to the use of the word “shall” in (d) (1), indicating that prior to the entry of judgment the trial court must remit the bail upon the happening of the conditions enumerated there. Subsection (d) (2), on the other hand, provides that the court “may” remit the bond under the conditions specified there, and in this case, the trial court concluded it had no discretion because judgment had been entered.

But both Raburn and the trial court ignore the fact that subsections (d) (2) (A) and (B) are written in the conjunctive and both (A) and (B) therefore must be true for subsection (d) (2) to apply: The principal must have given a false name when bound over and then released, and the surety must show due diligence. No indication exists that the General Assembly intended to use “and” other than in its usual conjunctive meaning. Harrison v. Wigington, 269 Ga. 388, 390 (497 SE2d 568) (1998). Because Rolack did not use a false name, subsection (d) (2) has no application here.

2. We turn to subsection (f) of the statute. It provides: “No judgment shall be rendered on any appearance bond if it is shown to the satisfaction of the court that the surety was prevented from returning the principal to the jurisdiction because such principal was on active military duty.” This subsection, unlike subsection (d), is not couched in terms of releasing the bondsman from liability; it prohibits entry of judgment on an appearance bond if the condition in the subsection is met.

That difference undermines the trial court’s conclusion that the reasoning of AAA Bonding has application to this subsection. In AAA Bonding, the Supreme Court held that the bondsman was entitled to a remission because in returning the principal to the court, the bondsman conferred a benefit upon the State, and therefore no gratuity was involved. Id. at 411. But it does not necessarily follow that a gratuity is always involved when the principal is not returned to the jurisdiction. And we conclude that no gratuity was involved in this case.

A bond is a transaction in the nature of a contract among three parties: the State, the principal, and the bondsman.

Where one accused of crime is released on bond, he is transferred from the custody of the sheriff to the legal, but friendly, custody of the bail, whose dominion is a continuance of the original imprisonment, but they may at will surrender him again to the custody of the law.

(Punctuation omitted.) Coleman v. State, 121 Ga. 594, 597 (1), (2) (49 SE 716) (1905). The principal promises to appear at trial, the State releases the principal, the principal pays the bondsman, and the bondsman guarantees the principal’s appearance at trial. When the principal returns or is returned to the jurisdiction, all the parties to the contract have performed.

Subsection (f) of the statute involves a situation in which the contract has not been fully performed; it has been canceled because of the impossibility of performance by the bondsman. “If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23. Rolack’s conduct in obeying his orders to move to Germany brought the contract within the purview both of OCGA § 17-6-31 (f) and of OCGA § 13-4-23. Raburn was prevented from performing its part of the contract because Rolack was on duty with the Army in Germany. And because it was impossible for Raburn to perform because of Rolack’s conduct, Raburn’s performance was excused. No judgment should have been entered on the bond in the first place, and no gratuity is involved in remitting the bond, because the contract is unenforceable.

Decided June 9, 2000.

William J. Sussman, for appellant.

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

Judgment reversed.

Pope, P. J., and Miller, J., concur.