text:
    A97A0466, A97A0467.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. BARGE et al.; and vice versa.
    (483 SE2d 883)
   Blackburn, Judge.

In Case No. A97A0466, St. Paul Fire & Marine Insurance Company (St. Paul) appeals an order of the trial court staying arbitration proceedings with respect to certain issues. In Case No. A97A0467, John M. Barge and Olivia L. Barge appeal an earlier order of the trial court requiring arbitration of other issues.

St. Paul issued payment and performance surety bonds in favor of Barge-Wagener, Inc. (BWI) in connection with several construction projects undertaken by BWI. BWI’s CEO, John M. Barge, and his wife, Olivia L. Barge, executed an indemnity agreement pursuant to which they agreed to indemnify St. Paul for any losses it sustained under the bonds.

After experiencing construction difficulties, BWI sought funding from St. Paul to complete the bonded projects. On May 18, 1994, St. Paul, BWI, the Barges, and others entered into an agreement (the May 1994 agreement) in which St. Paul agreed to advance funds to BWI for completion of the projects. The Barges also assigned to St. Paul their interest in certain federal and state tax refunds due them. The agreement required that all disputes arising out of or in connection with the agreement be resolved through arbitration.

After execution of the May 1994 agreement, a dispute arose between the parties as to whether certain tax refunds received by the Barges should be paid to St. Paul. St. Paul initiated arbitration proceedings over this dispute before the American Arbitration Association. The Barges filed an action in Fulton County Superior Court seeking a stay of the arbitration proceedings and a declaratory judgment that arbitration was not required. They also sought a declaration that any lien or security interest in the tax refunds purportedly granted by Ms. Barge was void because St. Paul had violated the Equal Credit Opportunity Act (ECOA) in requiring Ms. Barge to be a party to the agreement. The Barges later amended the complaint to seek a declaration that the original indemnity agreement and the May 1994 agreement were not enforceable against Ms. Barge due to the alleged ECOA violations.

St. Paul filed its answer on March 31, 1995, and asserted a two-count counterclaim against the Barges. The first count alleged that the Barges had breached the May 1994 agreement by failing to pay St. Paul the tax refunds they had received. Count 2 alleged that the Barges were liable to St. Paul for amounts advanced pursuant to the May 1994 agreement. This count alleged that more than $11,800,000 had already been advanced, and that it was anticipated that additional advances would cause the Barges’ liability to exceed $20 million. The counterclaim recited that it was filed subject to and without waiver of St. Paul’s claim that all disputes were arbitrable.

On September 8, 1995, the court entered an order finding that the tax refund dispute was subject to arbitration. In connection with this ruling, the court rejected Ms. Barge’s argument that she was not obligated under the agreement due to St. Paul’s alleged ECOA violations. The Barges filed a notice of direct appeal of this order, and St. Paul moved to dismiss the appeal on the grounds that the order was not directly appealable since St. Paul’s counterclaims remained pending. The trial court agreed and dismissed the notice of appeal.

On May 17, 1996, St. Paul sought to amend its arbitration demand to bring the $20 million claim within the arbitration proceedings. The Barges then filed a renewed motion in superior court to stay the arbitration proceedings. On June 10,1996, the court entered an order finding that St. Paul had waived its right to arbitrate the $20 million claim and ordering the arbitrators not to hear such claim.

Case No. A97A0466

1. In several enumerations, St. Paul contends the court erred in holding that it waived its right to arbitrate the $20 million claim. “An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration.” (Citation and punctuation omitted.) Tillman Group v. Keith, 201 Ga. App. 680, 681 (2) (411 SE2d 794) (1991). The trial court held that St. Paul waived its right to require arbitration of the $20 million claim by seeking to dismiss the Barges’ notice of direct appeal due to the pendency of St. Paul’s counterclaims. The court found that “it was inconsistent with its right to arbitrate the 20 million dollar claim for [St. Paul] to use the fact that it had not demanded arbitration on the 20 million dollar claim as a means to dismiss [the Barges’] appeal.”

The trial court erred in finding that St. Paul’s actions in seeking dismissal of the notice of appeal were inconsistent with its right to arbitrate the $20 million claim. As an initial matter, direct appeal of the court’s September 8, 1995, order would have been inappropriate regardless of whether St. Paul had demanded arbitration of the $20 million claim. An order granting or denying a motion to stay judicial proceedings pending arbitration is an interlocutory order and is reviewable only by application. See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488 (299 SE2d 538) (1983); McAllaster v. Merrill Lynch &c., 212 Ga. App. 697 (443 SE2d 9) (1994); Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 438 (450 SE2d 828) (1994). Whether or not St. Paul had demanded arbitration of the $20 million claim is irrelevant to the question of whether the court’s order was directly appealable. Thus, St. Paul cannot be said to have “used” the fact that it had not demanded arbitration of the $20 million claim to have the notice of appeal dismissed.

Furthermore, nothing St. Paul did in seeking dismissal of the notice of appeal was inconsistent with its right to arbitrate the $20 million claim. St. Paul argued correctly that direct appeal was inappropriate because of the pendency of its counterclaims in superior court. St. Paul also noted that it had not yet demanded arbitration of the $20 million claim; that the Barges were likely to resist any attempt to arbitrate such claim and that St. Paul would thus be forced to seek an order compelling arbitration; and that circumstances could change and St. Paul could decide at a future date to forego arbitration and have such claim determined in superior court. These statements are not inconsistent with the right to arbitrate such claim, but merely note that no action has been taken other than the filing of the counterclaim.

The fact that St. Paul did not demand arbitration of the $20 million claim at the time it filed its counterclaim is also not inconsistent with its right to arbitrate such claim. As the Barges admit in their appellate brief, the $20 million claim had not fully matured at the time St. Paul filed its counterclaim. St. Paul did not demand arbitration on its claim for amounts due under the May 1994 agreement because it had not yet fully advanced all funds due thereunder, and the full amount of the Barges’ liability could not be determined. Nevertheless, St. Paul was compelled to file the counterclaim to protect itself in the event it was deemed to be a compulsory counterclaim. In the counterclaim itself, St. Paul stated that it was being filed subject to and without waiver of its right to arbitration.

Other than the mere defensive filing of the counterclaim, St. Paul took no action whatsoever to litigate the $20 million claim in superior court. After St. Paul had advanced all funds due under the May 1994 agreement and the full amount of the Barges’ liability under such agreement became established, St. Paul sought to amend its demand for arbitration to include the $20 million claim. In their brief before the trial court, after St. Paul sought to amend its arbitration demand, the Barges themselves acknowledged that “St. Paul has consistently argued that all of the disputes involved in the May, 1994 agreements must be arbitrated.” As St. Paul’s actions were not inconsistent with its right to arbitrate the $20 million claim, the court erred in finding that St. Paul waived its right to arbitrate such claim.

2. The court’s order of June 10, 1996, was broadly worded, ordering the arbitrators “not to hear the new claims asserted in Defendant’s Third Amendment to Demand for Arbitration.” However, St. Paul’s third amendment to its arbitration demand was not limited to adding the $20 million claim. The amendment also requested that the arbitrators grant additional relief with respect to a separate claim already pending before the arbitrators as a result of an earlier amendment. St. Paul appeals the trial court’s order to the extent that it purports to bar the arbitrators from considering these additional items of relief not related to the $20 million claim.

We find that the trial court’s order was clearly intended to apply only to the $20 million claim, and was not intended to prevent the arbitrators from considering the other items of relief requested in the third amendment. Furthermore, if the court intended to preclude the arbitrators from considering such other items, it erred in so doing. These items were merely minor amendments to the relief requested in a separate claim already pending before the arbitrators, and there is no evidence whatsoever in the record that St. Paul waived its right to arbitrate such issues.

Case No. A97A0467

3. The Barges contend the trial court erred in holding that a violation of the ECOA could not be asserted by Ms. Barge as a defense to her liability. The ECOA prohibits creditors from discriminating against applicants for credit on the basis of sex or marital status. 15 USC § 1691. Regulations promulgated thereunder provide that “[ejxcept as provided in this paragraph, a creditor shall not require the signature of an applicant’s spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness for the' amount and terms of the credit requested.” 12 CFR § 202.7 (d) (1). The Barges contend that St. Paul violated the ECOA by requiring Ms. Barge to be a party to the indemnity agreement and May 1994 agreement, although she had no interest in BWI.

However, this Court has expressly held that “[a]n alleged violation of 15 USC § 1691 et seq. and 12 CFR 202.7 (d) (1) cannot be asserted as an affirmative defense to void a guaranty, but only as a compulsory counterclaim.” Rodgers v. First Union Nat. Bank, 220 Ga. App. 821, 822 (1) (a) (470 SE2d 246) (1996). At the time the court issued its order, Ms. Barge had not asserted a claim against St. Paul for violation of the ECOA, but merely sought a declaration that her obligations under the indemnity agreement and May 1994 agreement were unenforceable. The trial court did not err in holding that any alleged violation of the ECOA was not a defense to Ms. Barge’s liability, and that she was thus compelled to arbitrate her disputes.

4. The issue of an alleged ECOA violation was before the trial court only in connection with the Barges’ motion to stay the tax refund arbitration proceedings and St. Paul’s motion to stay the superior court proceedings pending arbitration. The Barges had argued that, if the May 1994 agreement was unenforceable against Ms. Barge, then she could not be compelled to arbitration because she would not be party to a binding agreement to arbitrate. Therefore, the court had to consider the ECOA defense in order to rule on the arbitration motions. As we have affirmed the court’s holding that Ms. Barge is obligated under the agreement notwithstanding any alleged ECOA violation, and is thus subject to arbitration, it is unnecessary for us to review the court’s alternative finding that St. Paul did not in fact violate the ECOA.

5. The Barges’ contention that the court erred in finding that the tax refund dispute was subject to arbitration is without merit. The May 1994 agreement expressly provides that “[a]ny and all disputes arising out of or in connection with execution or performance of this Agreement, including any breach thereof, shall be resolved through Arbitration.” Paragraph 3 (B) of the agreement states that the Barges assign all of their right, title and interest in the tax refunds to St. Paul, and requires that all such funds be paid to St. Paul. Disputes over the performance of this provision are clearly subject to arbitration.

The Barges’ argument that the arbitration provision violates Georgia public policy because it is too broad is without merit. Each of the cases cited by the Barges was decided prior to the adoption of the Georgia Arbitration Code, OCGA § 9-9-1 et seq., which established a clear public policy in favor of arbitration. See OCGA § 9-9-3 (“a provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable”).

Judgment affirmed in Case No. A97A0467. Judgment reversed in Case No. A97A0466.

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

Decided February 27,1997

Reconsideration denied March 12,1997

Wasson, Sours & Harris, Edward H. Wasson, Jr., W. Hensell Harris, Jr., for appellant.

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellees.

       In this separate claim, St. Paul sought to recover monies allegedly improperly paid to or for the benefit of the Barges by certain real estate partnerships. In the third amendment, St. Paul asked for interest, attorney fees and arbitration costs with respect to this claim, and for an order requiring the Barges to pay over any such funds received by them after the date of the arbitration award.

       Although not discussed by the parties in their appellate briefs, we note that, following the trial court’s order, the Barges amended their complaint to add a claim for damages against St. Paul for violation of the ECOA. As the issue has not been raised by the parties on appeal, we do not express any opinion as to the possible preclusive effect on such claim of the trial court’s finding that St. Paul did not violate the ECOA. However, it does not appear that the trial court intended such finding to be a final adjudication of the issue or a partial grant of summary judgment to St. Paul on the Barges’ declaratory judgment action. If that had been the case, the trial court presumably would not have dismissed the Barges’ notice of direct appeal. Rather, it appears the court made the finding merely as an alternative ground for its ruling that the parties’ disputes were subject to arbitration.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0585, A97A0586.
    YETMAN et al. v. GREER, KLOSIK & DAUGHERTY et al.; and vice versa.
    (483 SE2d 878)
   Eldridge, Judge.

On June 15, 1989, John A. Yetman died as the result of injuries received on May 20,1989, from a collision caused by Gilbert Corporation of Delaware, Inc., H. B. Zachary Company, and the Georgia Department of Transportation (“DOT”). On June 21, 1989, the law firm of Greer, Klosik & Daugherty (“Greer, Klosik”), consisting of Richard G. Greer, Frank J. Klosik, Jr., and John F. Daugherty, were employed by lone Edward Yetman and J. Anthony Yetman, appellants, to pursue a wrongful death action, as well as any claims of the Estate of John Alfred Yetman. The employment contract was a contingent fee contract for “a sum equivalent to 1/3 of any sum that may be recovered, either by suit or settlement, as attorney’s fees, with said fees to be deducted by my attorneys from such recovery. . . . No settlement is to be made without the consent of the undersigned.” On May 17, 1991, Greer, Klosik filed two suits in the State Court of Fulton County, which were consolidated for trial.

Trial of such suits began on January 10, 1994; the jury returned a verdict on January 21, 1994, in the amount of $2,406,255.03 for Yetman, which included prejudgment interest, and judgment was entered upon this verdict.

Daugherty tried the case for Greer, Klosik; however, on several occasions, Daugherty verbally abused J. Anthony Yetman, administrator of the Estate of John Alfred Yetman, with obscene epithets and vulgar language during trial. The defendants filed a motion for new trial. Prior to a hearing on such motions, DOT entered into settlement negotiations with the Yetmans, which resulted in a settlement of $820,000 in May 1994. From the settlement, Greer, Klosik received one-third, $273,000, as well as accrued expenses. Donald J. Sharp, other counsel employed by the Yetmans, received one-third of the Greer, Klosik fee under his agreement with them.

The trial court denied the motions for new trial of Gilbert of Delaware and H. B. Zachary Company in August 1994. Notice of appeal was then filed on August 30, 1994.

All parties elected to engage in an appellate settlement conference, which was scheduled for October 1994. On the day prior to the conference, J. Anthony Yetman met with his lawyers Sharp and Daugherty to discuss strategy at the offices of Greer, Klosik. Yetman gave specific instructions and guidelines to Daugherty to follow in the settlement negotiation; at the settlement conference on October 11, 1994, Daugherty intentionally ignored and disregarded his client’s instructions and became abusive to Yetman. On October 12, 1994, the Yetmans discharged Daugherty and Greer, Klosik and terminated the fee contract.

On October 14, 1994, Greer, Klosik filed an attorney’s lien. The Yetmans denied that they owed anything in attorney fees other than what had already been paid.

On September 21, 1995, this Court affirmed the judgment of the trial court. On May 15, 1996, the Supreme Court of Georgia denied the petition for certiorari.

Represented by Sharp, the Yetmans engaged in settlement negotiations with the remaining defendants, which settlement was reached in November 1995, for $1,300,000.

In June 1996 an additional settlement for $1,600,000 was agreed to by the parties. Greer, Klosik claimed that no settlement could be made absent their consent because they claimed a one-third interest in the judgment and would take nothing less. As a result of Greer, Klosik’s refusal to reduce their claim of one-third of the judgment, the Yetmans refused the settlement. After further settlement negotiations, a settlement of $1,800,000 was reached. However, Greer, Klosik continued to assert their position that they were entitled to one-third of the judgment. The defendants offered to pay $1,100,000 to the Yetmans and $700,000 jointly to Sharp and to Greer, Klosik to extinguish the attorney’s lien.

On June 3, 1996, Greer, Klosik filed a motion to foreclose their attorney’s lien based upon one-third of the outstanding judgment of approximately $2,100,000 including interest. On June 25, 1996, the trial court issued a rule nisi setting a hearing on the motion. Yetman’s counsel made an appearance and demanded in writing a jury trial and later moved for a continuance of the hearing, which were both denied. After the hearing, the trial court ordered that the Yetmans receive $1,100,000 and that another $100,000 be paid to them prior to July 1, 1996; the trial court also found that the attorney’s lien was valid, that the attorney fees were based upon the contingent fee contract with Greer, Klosik, and that Greer, Klosik was entitled to $600,000 in attorney fees, instead of the $700,000 that they claimed. The Yetmans filed their notice of appeal. Greer, Klosik filed their notice of cross-appeal.

Case No. A97A0585

1. The Yetmans’ first enumeration of error is that the trial court erred in determining that under the fee contract Greer, Klosik was entitled to a fee in excess of what they had received.

The contingent fee contract provided for two contingencies: recovery by suit or recovery by settlement of money. Greer, Klosik performed under the contingency contract by trying the tort case and by obtaining a verdict and judgment, which was the basis for calculating the contingency fee liability. However, the contingency in the contract was not obtaining a verdict or judgment, but was recovery of money either by settlement or suit; the termination of the employment of the firm prior to the recovery under the contract prevented the contract contingency from occurring, because the judgment had not become final and enforceable until the remittitur from the appellate courts had been filed with the trial court to allow recovery on the judgment. Had the contract been worded differently, the contingency might have been satisfied by either judgment or settlement, even after discharge. Thus, the contract was at an end, and the contingency of a recovery of money under the contract had not occurred prior to the termination of the attorneys’ employment. Strickland v. Williams, 215 Ga. 175, 178 (2) (109 SE2d 761) (1959); Sellers v. City of Summerville, 208 Ga. 361, 366-367 (67 SE2d 137) (1951); Bearden v. Lane, 107 Ga. App. 424, 425 (1) (130 SE2d 619) (1963). “Where there is an agreement for the payment of a contingent fee, the happening of the contingency is a condition precedent to the right of the attorney to recover for his services, and the precise event which was contemplated must happen.” (Punctuation omitted.) Strickland v. Williams, supra at 178, quoting Byrd v. Clark, 170 Ga. 669 (2) (153 SE 737) (1930). Therefore, the amount of attorney fees cannot be calculated under the contract, which has been terminated.

“It has been pretty generally held in those States where a client is permitted to discharge his attorney with or without cause, even where the attorney has a contingent fee, that nevertheless, before this can be done, it must be not only by consent of the court on a proper proceeding for that purpose, but also with a proviso that the client either pays to the attorney, or secures to him the fees he has already earned and to which he is rightfully entitled.” White v. Aiken, 197 Ga. 29, 35 (28 SE2d 263) (1943). The discharge of the attorney by the client does not defeat the attorney’s right to be paid; the right to receive compensation comes, not under the contract of employment which is at an end, but under quantum meruit which is protected by the attorney’s lien statute. OCGA § 15-19-14; Morrow v. Stewart, 197 Ga. App. 689, 690 (399 SE2d 280) (1990); Burnette v. Bradley, 190 Ga. App. 427, 428 (379 SE2d 225) (1989); Myszka v. Henson & Hen son, P.C., 170 Ga. App. 878, 879 (1) (318 SE2d 672) (1984); Dorsey v. Edge, 75 Ga. App. 388, 392 (43 SE2d 425) (1947). If the services of the attorney have no value to the client under quantum meruit, then the client has no financial obligation to pay for services that did not achieve the contingency. See May v. May, 180 Ga. App. 581, 582 (349 SE2d 766) (1986); see also Thomas v. Postell, 77 Ga. App. 784, 786 (49 SE2d 835) (1948). However, in the case sub judice, the client received something of value: a judgment for $2,406,255.03 which was upheld on appeal and which led directly to favorable settlements.

“Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney’s fees for his services that have been rendered on behalf of the client. [Cits.]” Bearden v. Lane, supra at 425-426 (1).

The trial court did not err in finding that the Yetmans owed Greer, Klosik more than what they had already received for the valuable services that they rendered as lawyers to the Yetmans; the trial court did err in using the contingency fee contract percentage instead of quantum meruit to determine the amount of attorney fees owed by the Yetmans. Since the value of the services rendered under quantum meruit is determined based upon the value to the clients, then the amount of attorney fees due may be greater or less than the contingent fee would be, depending upon the facts and circumstances of the case.

2. The second enumeration of error is that the Yetmans were denied a trial by jury as to any and all issues raised by Greer, Klosik.

Where the services of the attorney, the reasonable dollar amount for attorney fees, and the value to the client are not in dispute of fact in quantum meruit, the trial court can decide the award of attorney fees as a matter of law without trial by jury, because there is no disputed issue of material fact for a jury to decide. See Morrow v. Stewart, supra at 690; Burnette v. Bradley, supra at 428; May v. May, supra at 581; Rasmussen v. Nodvin, 174 Ga. App. 203 (329 SE2d 541) (1985); Hopkins v. Steele, 164 Ga. App. 527, 528 (297 SE2d 528) (1982).

“There is nothing in [OCGA § 15-19-14], or in the section from which it is taken, or in the act itself, which treats of the right of a client to discharge an attorney, or a denial of any such right. Its subject-matter is that of lien, and in a specific instance the right and power of attorneys to control suits as well as judgments and decrees in order to enforce their liens as attorneys. A fair construction of the language would seem to be that all that was intended to be said was, that so long as the relationship existed the attorneys, for the purpose of enforcing their liens, not only had the same right and power over judgments and decrees as their clients, but control over the suits. It meant nothing more. The act of 1873 which introduced into our law the provision that attorneys at law shall have a lien on suits, as well as on judgments or decrees, dealt, so far as attorneys at law were concerned, not with the right of clients to discharge them, or with the denial of such right. Such a subject was foreign to the act. It deals only with the liens of attorneys, presupposing that the relation of attorney and client exists. The act means to say that, so long as that relationship continues, not only the lien exists, but in order to enforce their claims for fees the attorneys shall have the same right and power over such suits as their clients had. This may have been surplusage, since under the already existing law the attorney by virtue of the relationship has certain rights and powers with respect to the conduct of the case. His voice is controlling as to many matters, such as whether the case be continued or not, what questions to ask witnesses, acknowledgment of service on pleadings, and numerous other questions. [Cits.] The language of [OCGA § 15-19-14], will not be held to mean to deny to the client the right to discharge his attorney. . . . [T]he trial court shall determine whether [the attorneys have] already received reasonable compensation for the services rendered to [their] client; and if so, that the judgment striking [their names] from the case as attorney[s] be affirmed. If it should be determined that the amount of fees already paid [them] is not sufficient in amount to be a reasonable compensation for the services rendered by [them] to the client at the time of [their] discharge, then the trial court will pass such order as will make [the attorneys] secure for such balance.” White v. Aiken, supra at 33-34, 36. Thus, after discharge counsel loses rights and powers to control the suit, but the trial court has a duty to determine what would be reasonable compensation for the services rendered.

The trial court erred not in deciding legal issues, but in deciding by the wrong measure the value of such services of the attorneys, using a percentage of the recovery by settlement.

3. The third enumeration of error is that the trial court erred in deciding the motion less than 30 days after the motion was filed and in not giving sufficient notice of trial.

Since the case is being affirmed in part and reversed in part with a remand for determination of the amount of attorney fees in quantum meruit, such issues are moot. See Uniform Superior Court Rules 6.1, 6.3-6.7; 8.1, 8.2, 8.4-8.6; Uniform State Court Rules 6.2; 8.3.

4. Greer, Klosik’s motion for damages for frivolous appeal filed under Case No. A97A0585 is denied.

Case No. A97A0586

5. Greer, Klosik’s first enumeration of error is that the trial court erred in finding that their attorney fees were only $600,000 represented by one-third of the settlement, as opposed to one-third of the judgment plus interest.

Decided February 19,1997

Reconsideration denied March 12,1997

Schrade & Richardson, Richard D. C. Schrade, Jr., for appellants.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., John F. Daugherty, pro se.

Such issue is controlled by Division 1 of this opinion, which found that one-third of the judgment is the wrong measure of damages for quantum meruit under OCGA § 15-19-14.

6. Greer, Klosik’s motion for damages for frivolous appeal under Case No. A97A0586 is denied.

Judgment affirmed in part and reversed in part.

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


author: Pope, Presiding Judge.

text:
    A96A1628.
    STATE OF GEORGIA v. EVANS et al.
    (484 SE2d 70)
   Pope, Presiding Judge.

The State filed an in rem forfeiture complaint pursuant to OCGA § 16-13-49 against 5.1 acres of land, including a house, owned by Sara Augusta Evans and James Danny Gaddis. The complaint was filed after police discovered twenty-four marijuana plants growing in a small corner of a garden on the land and ten plants growing in a closet inside the house. In their answer, Evans and Gaddis claimed that the forfeiture of their property would constitute an excessive fine under the Eighth Amendment to the United States Constitution. The trial court rejected Evans and Gaddis’ claim, and after determining that the property was used to facilitate the manufacture and growing of marijuana, forfeited the property in its entirety to the State. We affirmed the forfeiture. Evans v. State, 214 Ga. App. 844 (449 SE2d 302) (1994).

On certiorari the Supreme Court of Georgia ordered that the case be remanded to us for consideration in light of its decision in Thorp v. State, 264 Ga. 712 (450 SE2d 416) (1994), which was decided after our affirmance of the forfeiture. Thereafter, we remanded the case to the trial court to allow it to conduct a post-trial hearing to determine the Eighth Amendment issue in light of Thorp. Evans v. State, 217 Ga. App. 646 (458 SE2d 859) (1995). The trial court determined on remand that the forfeiture was excessive under a Thorp analysis, and as a result, vacated the forfeiture. In doing so, the State contends the trial court committed reversible error. Finding no merit to this contention, we affirm.

In Thorp, the Supreme Court of Georgia fashioned a three-factor analysis for determining whether a forfeiture is constitutionally excessive. 264 Ga. at 717. “Proper application of the[] factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous.” (Citations omitted.) Rabern v. State, 221 Ga. App. 874, 878 (4) (473 SE2d 547) (1996).

Under the first of the factors, a trial court should consider the inherent gravity of the offense and compare it to the harshness of the penalty of the forfeiture. Thorp, 264 Ga. at 717. In determining the harshness of the penalty, a trial court is bound to consider not only the monetary value of the property to be forfeited, “but also the intangible value of the particular type of property involved.” (Citation omitted.) Id. In this case, the trial court determined that the monetary value of the property in question was $65,000. Its intangible value, however, was far greater as is demonstrated by the trial court’s acknowledgment that the property constituted Evans and Gaddis’ home, and that “society and the courts place a higher value on real property, in particular the home, than on personal property.” (Citation omitted.) Id.

The trial court then compared the relative harshness that would result from the forfeiture, as represented by the loss Evans and Gad-dis would suffer based on the property’s monetary and intangible value, to the gravity of the offense, as demonstrated by the value of the illegal activity to Evans and Gaddis. In doing so, it referenced the lack of evidence that Evans and Gaddis had ever sold or profited from selling any marijuana grown on the property or otherwise, and the lack of evidence that any of the property had been purchased pursuant to the illegal activity. It also found that the amount of marijuana seized was only 8.8 ounces, or slightly over one-half pound, and that this weight represented the “wet weight” of all 34 plants. It is undisputed that the wet weight of an entire plant includes both the usable and unusable portions of the plant, and it represents the weight of a plant before it has been dried, which is typically the state in which marijuana is sold. Based on the weight of the marijuana and the fact that the domestic price of marijuana at the time ranged from $1,000 to $3,000 per pound, the trial court concluded the value of the confiscated marijuana was only approximately $500 to $1,500. Thus, the value of the criminal activity to Evans and Gaddis was substantially lower than the value of the property they stood to lose by way of forfeiture. And while the State argues that the marijuana should have been valued in excess of $70,000 based on its expert’s testimony regarding the potential value of the plants if they had been allowed to grow to maturity, the trial court, as the trier of fact in the case, was authorized to reject such testimony as speculative. See Neal v. State, 160 Ga. App. 498, 504 (5) (287 SE2d 399) (1981).

In light of the above, and the fact that Evans and Gaddis were charged with, and pled guilty only to, possessing and manufacturing marijuana, for which they each received a $1,000 probationary fine, we find no abuse of discretion in the trial court’s determination that the first factor of the Thorp analysis weighed in favor of Evans and Gaddis’ contention that forfeiture of their property would constitute an excessive fine.

Under the second and third of the Thorp factors, the trial court was required to consider the closeness of the property to the criminal activity and whether such closeness was sufficient to render the property itself "guilty,” as well as “whether the criminal activity involving the defendant property was extensive in terms of time and/ or spatial use.” (Citations omitted.) Thorp, 264 Ga. at 717. Upon review, we conclude that the trial court did not commit reversible error in determining that analysis of the case under these two factors also weighed in favor of the conclusion that forfeiture of the property would be an excessive fine.

In reaching its determination, the trial court pointed to the fact that there was no evidence that any marijuana had ever been grown on the property prior to the incident in question or that the property had ever been used as a location for the sale of marijuana. Nor was there evidence that Evans and Gaddis ever paid for any of the property or improvements made thereto by selling marijuana grown on the property or elsewhere. Based on the above, and the undisputed fact that the plants recovered from the property were not mature and were found only on a small portion of the property, it cannot be said as a matter of law that the criminal activity involving the property was extensive in terms of time or spatial use. And while it is clear a small portion of the property was used to grow marijuana, under the facts and circumstances presented here, it also cannot be said as a matter of law that such use of a portion of the property was sufficient to find the entire property “guilty,” and thus subject it to forfeiture.

In conclusion, we note that when a trial court determines that a forfeiture is excessive, as it did here, it should try and mitigate the forfeiture to bring it within constitutional bounds. We must, however, give great deference to a trial court’s conclusions as to whether such mitigation is practicable. In the instant case, the trial court expressly found that under the circumstances mitigation of the forfeiture was not practicable. We find no error in this finding, especially when we consider the limited extent of the tainted portion of the property involved and the difficulties posed by attempting to divide that portion from the remainder, as well as the inequities that would arise under the facts of this case in requiring Evans and Gad-dis to sell their home in order for the State to collect the proceeds of such a sale attributable to the tainted portion of the property. Accordingly, we affirm the trial court’s decision to vacate the forfeiture.

Decided March 12,1997.

Garry T. Moss, District Attorney, Thomas W. Hayes, Gary D. Bergman, for appellant.

Garland, Samuel & Loeb, Donald F. Samuel, for appellees.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A96A1854.
    COLLINS v. LESTERS, INC. et al.
    (484 SE2d 62)
   Ruffin, Judge.

Lesters, Inc. and its president, Chris Lester (collectively “the Lesters”) filed an affidavit of illegality challenging a tax assessment and execution issued by the Georgia Department of Revenue (“the Department”) against Lesters, Inc. d/b/a Kwik Serv. The parties subsequently filed cross motions for summary judgment. After a hearing, the trial court granted summary judgment to the Lesters and denied the Department’s motion. We granted the Department’s application for discretionary appeal, and for reasons which follow, we reverse the trial court’s decision granting summary judgment to the Lesters and denying the Department’s motion for summary judgment.

The record reveals that on February 20, 1994, Lesters, Inc. purchased the inventory and certain other personal property assets of a convenience store from Leonard Brannon for $47,063.26. The purchase agreement further specified that $19,113.17 of the total purchase price would first be paid to J. L. Lester & Sons, a wholesale grocer that provided merchandise to Brannon and held a security interest in the inventory and assets purchased by Lesters, Inc.

After that payment, the total amount owed under the purchase agreement equalled $27,950.09. This money, however, was not paid to Brannon. Instead, Lesters, Inc. distributed the remainder of the purchase money as follows: $40 in cancellation of paid tax fi. fas.; $7,452.41 to pay off various city, state and county tax fi. fas. and 1993 taxes; and $20,457.68 to the Internal Revenue Service (“IRS”) to discharge the sale property from federal tax liens. Although the total federal tax lien on the property was $348,235.37, the IRS determined that the value of its interest in the property equalled $20,437.68. Consequently, the IRS discharged its lien in exchange for payment of this amount.

Following the sale, Listers, Inc. began to operate the convenience store. Approximately one year later, on February 17,1995, the Department issued an “Official Notice of Assessment and Demand for Payment” relating to sales, use and second motor fuel taxes that Brannon failed to pay prior to the sale. On March 22, 1995, the Department issued a fi. fa. collection notice relating to the unpaid taxes and demanded payment of $15,472.42. Chris Lester received this notice on or about March 31, 1995. Subsequently, on April 4, 1995, the Department levied against the entire balance of Lesters, Inc.’s bank account, which totaled $14,174.

Contesting the assessment, execution and levy, Lesters, Inc. and its president filed an affidavit of illegality pursuant to OCGA § 48-3-1. On summary judgment, the trial court addressed the priority of interests, found that Lesters, Inc. properly distributed the proceeds of the asset sale, and concluded that the Department’s tax assessment and execution were “illegal and invalid.” This appeal followed.

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

1. The Department argues that as the successor to Brannon’s assets, Lesters, Inc. is liable for the unpaid taxes at issue. We agree.

Pursuant to the successor liability provision of OCGA § 48-8-46, “[i]f any dealer liable for any tax, interest, or penalty imposed by [Title 48, Article 1, Chapter 8 relating to sales and use taxes] sells out his business or stock of goods or equipment or quits the business, he shall make a final return and payment within 15 days after the date of selling or quitting the business. The dealer’s successor or assigns, if any, shall withhold a sufficient amount of the purchase money to cover the amount of the taxes, interest, and penalties due and unpaid until the former owner produces either a receipt from the commissioner showing that the taxes, interest, and penalties have been paid or a certificate from the commissioner stating that no sales and use taxes, interest, or penalties are due. If the purchaser of a business or stock of goods or equipment fails to withhold the purchase money as required by this Code section, he shall be personally liable for the payment of any sales and use taxes, interest, and penalties accruing and unpaid by any former owner or assignor. The personal liability of the purchaser in such a case shall not exceed the amount of the total purchase money[.] . . .” (Emphasis supplied.)

Absent a certificate or receipt showing that such taxes have been paid, this provision requires purchasers such as Lesters, Inc. “to place the purchase money in an escrow account or . . .be held personally liable for [the seller’s] unpaid taxes, interest and penalties.” Amoco Oil Co. v. G. Sims & Assoc., 162 Ga. App. 307, 308 (291 SE2d 128) (1982). In short, the successor liability statute imposes a duty upon potential purchasers to inquire about the seller’s tax liability. Richards v. Blackmon, 233 Ga. 739, 741 (2) (213 SE2d 638) (1975).

In this case, the Lesters do not contend that Lesters, Inc. received an appropriate receipt or certificate from Brannon indicating no tax liability. Rather, they argue that OCGA § 48-8-46 did not require Lesters, Inc. to withhold any portion of the purchase money because other claims were superior to the state tax execution. Regardless of priorities or the Department’s rank among claimants, however, a fund sufficient to cover the unpaid taxes should have been established. Once an adequate fund exists, the priorities among claimants to that fund can be determined. See Amoco, supra at 308 (indicating that priorities are determined after the money is withheld). Through this procedure, all claimants, including the Department, have an opportunity to protect their interests and argue priorities before the purchase money fund is exhausted.

2. The Lesters also argue that OCGA § 48-8-46 cannot apply to this type of transaction because no purchase money actually passed to the seller, leaving the purchaser with nothing to withhold. They cite Knudsen Dairy Products Co. v. State Bd. of Equalization, 90 Cal.Rptr. 533, 539 (9) (12 Cal.App.3d 47) (1970), for the proposition that “successor liability cannot be imposed when the duty to withhold . . . cannot possibly be performed by the successor.” The Knudsen decision, however, does not support the Lesters’ argument. Interpreting a successor liability statute similar to OCGA § 48-8-46, the Knudsen court recognized that a purchaser can withhold appropriate funds even if no money passes to the seller. “[T]he term ‘withhold’ as used in the statute does not necessarily mean having physical assets in hand but simply means dealing with the purchase consideration in such a manner as to deny to the seller the benefit of the purchase consideration and to thereby make a portion of it available for the satisfaction of the tax liability.” Knudsen, supra at 539. In this case, Lesters, Inc. could have denied Brannon the benefit of the purchase price by setting aside an adequate fund and delaying payment to Brannon’s creditors until priority was determined. Id. at 540.

Nothing in the language of OCGA § 48-8-46 exempts Lesters, Inc. from its requirements. On the contrary, the statute clearly provides that the purchaser shall withhold purchase money sufficient to cover the unpaid taxes or face personal liability. OCGA § 48-8-46. We disagree with the Lesters’ claim that Lesters, Inc. was “unable” to withhold appropriate funds. See Bank of Commerce v. Woods, 585 SW2d 577 (Tenn. 1979) (rejecting similar argument relating to Tennessee’s successor liability statute); see also Revenue Cabinet v. Triple R Food A Rama, 890 SW2d 638, 640 (2) (Ky. App. 1994) (“The public interest in collecting taxes demands that tax liability follows the assets of a business. Therefore, a clear and proper interpretation of the successor liability taxing scheme is to impose personal liability upon any purchaser who has purchased the assets of a business in disregard of the statutory obligation.”).

3. The Lesters further argue that Lesters, Inc. did not receive proper notice of the tax assessment and execution. In their affidavit of illegality, the Lesters averred that the assessment and execution were illegal because the Department failed to provide proper notice. They also discussed when and how they received notice of the Department’s claim in the factual portion of their summary judgment pleadings. Yet, they never argued before the trial court that lack of notice rendered the assessment and execution illegal, despite numerous opportunities on summary judgment. They neither raised the notice argument as a basis for summary judgment nor asserted it in defending against the Department’s motion. “As grounds which may be considered on appeal are limited to those which were urged before the trial court, we will not review this issue.” (Citations and punctuation omitted.) Pollard v. Martin, 191 Ga. App. 681, 682 (1) (382 SE2d 720) (1989).

4. Finally, despite the Lesters’ claim, equity does not relieve Lesters, Inc. from the clear requirements of OCGA § 48-8-46. Without explanation, Lesters, Inc. ignored the responsibilities placed upon it as a purchaser. “ ‘It was [Lesters, Inc.’s] duty to discover whether such taxes were due at the time [it] purchased the business, and, if [it] had complied with the statutory requirements which [it is] presumed to know, [it] would have been completely aware of the tax situation in regard to the business which [it was] purchasing. [Its] liability is due completely to [its] own lack of diligence.’” Richards, supra at 741.

Decided March 12,1997

Michael J. Bowers, Attorney General, Daniel M. Forrnby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Sheri L. Smith, Assistant Attorney General, for appellant.

Daniel B. Simon III, for appellees.

Under the clear terms of OCGA § 48-8-46, Lesters, Inc. is liable for the subject taxes, interest, and penalties accruing and left unpaid by Brannon. Accordingly, the trial court erred in granting summary judgment to the Lesters and in denying summary judgment to the Department.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

       Although the record presents some evidence that the formation of Lesters, Inc. may not have been completed on the date of the sale, the parties do not dispute that Lesters, Inc. was the purchaser. In fact, Lesters, Inc. judicially admitted through its affidavit of illegality that it purchased the assets. See O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 381 (2) (461 SE2d 311) (1995). Accordingly, we will treat Lesters, Inc. as the purchaser.

       The record is silent as to the $20 difference between the discharge amount and the actual sum paid to the IRS.

       The Lesters do not dispute the Department’s assertion that, pursuant to OCGA § 48-9-14, the second motor fuel tax liability at issue in this case is also subject to the successor provision of OCGA § 48-8-46.


text:
    A96A2122.
    GRAND PARTNERS JOINT VENTURE I et al. v. REALTAX RESOURCE, INC.
    (483 SE2d 922)
   Ruffin, Judge.

Realtax Resource, Inc. (“Realtax”) sued Grand Partners Joint Venture I and Grand Partners Joint Venture II (collectively “Grand Partners”) for fees allegedly owed for services performed by Realtax. Grand Partners appeals from the trial court’s grant of partial summary judgment to Realtax and the denial of its motion for summary judgment. For reasons which follow, we affirm.

The record reveals the following facts. Grand Partners owned property known as the GLG Grand Tower in Atlanta. Believing that it might be entitled to a significant tax refund on the property, Grand Partners hired Realtax, which is in the business of providing services that minimize real estate tax evaluation and, in that connection, pursuing real estate tax appeals with taxing authorities on behalf of clients. On January 12, 1995, Grand Partners and Realtax entered into a “Property Tax Commitment Agreement,” whereby Realtax agreed, in exchange for a fee, to be responsible for the “1994 Ad Valorem Tax Program” relating to Grand Partners’ property within the GLG Grand Tower.

Pursuant to that agreement, Realtax was responsible for “the preparation and filing of real estate tax returns, where applicable, an analysis of all assessed values, the submission of an annual Ad Valorem Tax Report, where applicable, which compares prior and current year’s tax obligations, and the presentation of audited tax statements outlining the results of any appeal in a timely fashion for payment.” In addition, the agreement stated that “Realtax will initiate appeals to local taxing jurisdictions where Realtax feels the need is warranted. It is expressly understood by all parties that the compensation in this agreement includes only the informal appeal levels up to and including any State Boards of Equalization.” Grand Partners also executed a “Letter of Authorization” authorizing Realtax to “file real estate tax returns, where applicable, to change mailing addresses on tax rolls and digests, to investigate appraisals and assessments, to argue tax appeal cases in both informal review and formal review, to appear before administrative boards and agencies and, where authorized, to appear before courts of competent jurisdiction.”

Realtax filed a property tax appeal on behalf of Grand Partners and negotiated with a representative from the Fulton County tax assessor’s office regarding the county’s assessment of the GLG Grand Tower, which was initially appraised at $75 million. Through negotiations, Realtax reached a proposed settlement with the county to value the property at approximately $51 million. Grand Partners approved the settlement and withdrew its tax appeal before the appeal reached the county board of equalization.

Following the settlement, Grand Partners received tax refunds relating to the property. Dissatisfied with the results reached by Realtax, however, Grand Partners refused to pay Realtax the previously negotiated fees for its services.

Realtax subsequently sued Grand Partners for non-payment of fees under the Property Tax Commitment Agreement. Grand Partners answered, asserting several affirmative defenses. In particular, Grand Partners averred that the agreement, which it voluntarily entered, is void and illegal because Realtax sought “to enforce a contract pursuant to which it would engage in the unauthorized practice of law without a license.” Realtax and Grand Partners both moved for summary judgment. After a hearing, the trial court denied Grand Partners’ motion for summary judgment and granted partial summary judgment to Realtax on Grand Partners’ affirmative defense that Realtax illegally engaged in the unauthorized practice of law and on Grand Partners’ argument that Realtax cannot collect its fees because it acted as a real estate appraiser without certification. This appeal followed.

1. Grand Partners’ first two enumerations of error focus on the unauthorized practice of law defense. It argues that the trial court erred in granting Realtax summary judgment on the defense and further claims that the trial court erred in denying it summary judgment on this issue.

“When the facts concerning an affirmative defense are uncontradicted, the matter may be disposed of by summary judgment [cit.]; but the burden is on the movant to prove no genuine issue of fact remains, the evidence is construed in favor of the respondent, and his evidence is treated with considerable indulgence. [Cit.]” Maddox v. Leaphart, 214 Ga. App. 340, 342 (3) (447 SE2d 694) (1994). Applying this standard, we find that the trial court properly granted summary jud lent to Realtax and denied summary judgment ' Grand Partners on the unauthorized practice of law defense.

(a) The unauthorized practice of law is illegal. OCGA §§ 15-19-51; 15-19-56. In setting the parameters for this illegal conduct, the General Assembly has defined the “practice of law” as including: “(1) [Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body; ... (5) [t]he giving of any legal advice; and (6) [a]ny action taken for others in any matter connected with the law.” OCGA § 15-19-50. Section 15-19-51 (a) makes it unlawful for “any person other than a duly licensed attorney at law . . . [t]o render or furnish legal services or advice [or] . . . [t]o render legal services of any kind in actions or proceedings of any nature.”

Grand Partners argues that, as a matter of law, Realtax engaged in the practice of law without a license under the Property Tax Commitment Agreement, thereby rendering the agreement void. Specifically, Grand Partners contends that because the board of equalization is authorized to decide legal issues, such as constitutional challenges (see Wilkes v. Redding, 242 Ga. 78 (247 SE2d 872) (1978)), Realtax’s commitment to represent its interests before that board necessarily amounts to the practice of law. We disagree and refuse to deem inappropriate all non-lawyer representation before the board.

The General Assembly created county boards of equalization to hear and determine appeals from property assessments “as to matters of taxability, uniformity of assessment, and value, and, for residents, as to denials of homestead exemptions.” OCGA § 48-5-311 (e) (1). The General Assembly specifically authorized non-lawyers to appear before these boards on behalf of taxpayers. Outlining the procedures governing the boards, Section 48-5-311 (e) (6) (A) provides that “[a] taxpayer may appear before the board concerning any appeal in person, by his or her authorized agent or representative, or both.” (Emphasis supplied.)

Grand Partners argues that the word “representative” must mean “attorney” in order to harmonize OCGA § 48-5-311 (e) (6) (A) with the statutory prohibition against the unauthorized practice of law. Representation before the board, however, does not necessarily involve the practice of law. Although an appeal to the board conceivably could implicate legal services and advice, we do not find that such services and advice are provided or required in every appeal, and certainly not this appeal. Furthermore, we do not construe representation before such a board as an appearance “in court.” Boards of equalization are not courts. They are quasi-judicial administrative bodies created by the legislature. See Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 210 (1) (367 SE2d 43) (1988); Loyd v. Ga. State Health Planning &c. Agency, 168 Ga. App. 850, 852 (1) (310 SE2d 738) (1983) (indicating that county boards of equalization are administrative bodies); see also Ga. Const, of 1983, Art. VI, Sec. I, Par. I (“[T]he General Assembly . . . may authorize administrative agencies to exercise quasi-judicial powers.”).

In contrast to other statutory references to the taxpayer’s “attorney,” OCGA § 48-5-311 (e) (6) (A) uses the more generic term “representative.” Compare with OCGA § 48-5-311 (g) (2). To support its position, Grand Partners “would have us add a limiting phrase into a subsection when the legislature, faced with a choice, did not do so. A statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts.” (Citations and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995); see also Irwin v. Young, 212 Ga. 1, 5 (90 SE2d 22) (1955) (“The word ‘represent’ means to stand in the place of another, act his part, or speak with authority on behalf of another. [Cit.] One does not have to be a lawyer to represent another.”).

The legislature elected to permit non-lawyer representation before the county boards of equalization. This statutory authorization does not necessarily involve the practice of law without a license. See In re Petition of Burson, 909 SW2d 768, 777 (Tenn. 1995) (upholding statutory provision allowing non-lawyer representation of taxpayers before boards of equalization because the evidence did not establish that the services performed “require the professional judgment of a lawyer”). Similarly, Realtax’s agreement to pursue Grand Partners’ appeal before the board does not, as a matter of law, implicate the provision of legal services or advice. On its face, therefore, “the contract reflects no illegality.” Kimbrell v. Connor, 218 Ga. App. 812, 814 (463 SE2d 376) (1995).

(b) Pretermitting the question of when lay representation in a tax appeal might encroach upon the practice of law, we further find that Realtax’s work for Grand Partners did not involve the unauthorized practice of law.

The Realtax employee who worked on Grand Partners’ appeal testified that the appeal was negotiated and settled before progressing to the board of equalization. He further testified that, with respect to the appeal, he performed the following duties: “I looked at comparable property tax values. I analyzed the current asking prices of the condos in relation to the tax values. I compiled the income analysis pro forma and year ending for the office and the hotel. And I derived all those components into a value which I felt would be fair based ... for the tax year 1994 on each individual component.”

At deposition, a Grand Partners representative described the “legal” aspects of Realtax’s services as follows: “[Realtax] reviewed contracts. They reviewed statutes I would hope. To the extent that you would call those — applied the facts to legal situations. To the extent that you believe that calls for — call that practice, call that law, then they provided legal services.” He testified that Realtax also advised Grand Partners on the law “[throughout the process” and proffered advice on “the probable outcome of a trial” on the issue of “tax valuation.” Realtax further offered the opinion that Grand Partners “would not do well at trial for a variety of reasons.”

With respect to Realtax’s alleged legal services, therefore, the only specifics provided by Grand Partners’ representative were that Realtax reviewed contracts, read statutes, and provided advice on tax valuation and how that valuation would be received by the jury. We do not find that these acts or Realtax’s other activities connected to filing and negotiating the tax appeal constitute the unauthorized practice of law. Conclusory statements that Realtax advised Grand Partners on the law and applied facts to legal situations similarly cannot avoid summary judgment. “Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment.” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 335 (287 SE2d 61) (1981).

Grand Partners has pointed to no evidence that Realtax provided legal services and advice or otherwise practiced law. To the contrary, the record indicates that Realtax offered tax valuation services and advised Grand Partners on how this valuation would be received by others, including a jury. The trial court properly granted summary judgment to Realtax and denied summary judgment to Grand Partners on the unauthorized practice of law defense. Maddox, supra.

2. In its final enumeration of error, Grand Partners claims that the trial court erred in granting summary judgment to Realtax on its argument that “Realtax acted as an unclassified real estate appraiser in the performance of its contract with Grand Partners.” Realtax asserts that Grand Partners waived this argument by failing to include it in its answer, pretrial discovery, pretrial order, or other pleadings. We agree.

Decided March 12,1997.

Minkin & Snyder, Michael J. King, G. Brian Raley, for appellants.

Gorby & Reeves, Michael J. Gorby, Mary D. Peters, Douglas R. Kertscher, Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Michael S. Wakefield, for appellee.

Grand Partners admittedly never raised the issue in its summary judgment documents, and the record reveals no mention of it in Grand Partners’ answer or any submissions relating to the pretrial order. Instead, Grand Partners voiced this argument for the first time at the summary judgment hearing. Realtax objected to the argument as untimely.

In an effort to avoid waiver, Grand Partners contends that, as part of its prima facie case for compensation, Realtax must plead and prove that its employees “held a Georgia appraiser classification of the type necessary to perform . . . appraisal activity [for Grand Partners] at all times during the performance of such services.” OCGA § 43-39A-17. In short, Grand Partners argues that it was never obligated to raise the appraisal issue because Realtax bore the burden of proving that it held the appropriate appraisal licenses. Realtax, however, claims that Grand Partners owes fees for tax consulting services, not real estate appraisal services. We find that Grand Partners was obligated to timely raise for the court and opposing party its factual argument that Realtax’s services actually constituted “real estate appraisal activity.”

“A pretrial order limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice. If a claim or issue is omitted from the order, it is waived.” (Citations and punctuation omitted.) Long v. Marion, 257 Ga. 431, 433 (2) (360 SE2d 255) (1987); see also Rice v. Cropsey, 203 Ga. App. 272, 273 (1) (416 SE2d 786) (1992). Grand Partners did not raise this argument in its answer, other pleadings, or its pretrial order submissions. Thus, the trial court did not err in removing the argument from the trial of this case. Long, supra.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

       Grand Partners contends that through the authorization letter, Realtax improperly and illegally agreed to appear on behalf of Grand Partners in “courts of competent jurisdiction.” Pretermitting whether the letter is part of the contract, as Grand Partners claims, it specifically indicates that Realtax may appear in such courts only “where authorized.” Furthermore, the letter does not provide that Realtax will represent Grand Partners’ legal interests. It may simply authorize Realtax to appear as a witness on Grand Partners’ behalf. On its face, this letter does not implicate the unauthorized practice of law.


author: Smith, Judge.

text:
    A96A2421.
    FEDERAL DEPOSIT INSURANCE CORPORATION v. GRAY.
    (484 SE2d 67)
   Smith, Judge.

. This action arose after Gray filed a claim of lien covering work his company performed on a construction project in Gwinnett County. The primary issue in this appeal is whether the jury was authorized to determine that the claim was valid. For the reasons that follow, we conclude that sufficient evidence was presented to support the jury’s verdict in Gray’s favor.

A brief chronology of events from 1983 through the trial of this case in 1996 is necessary. In September 1983, Gray entered into a contract with Norton Properties, Inc., referenced throughout the project manual and contract as the owner of the project, to perform grading and excavation work on a tract of land in Gwinnett County. S. Donald Norton signed the contract in his capacity as president of Norton Properties, Inc. In January 1984, Gray entered a second contract. S. Donald Norton Properties, Inc. was listed as the owner of the project. It appears undisputed that both contracts addressed the same tract of land.

The second contract covered part of the work included in the earlier contract but also included additional work. Evidence was presented that Gray submitted certain bills in June 1984 to Norton Properties, Inc., which were paid. Gray left the project in July 1984. Gray was not paid for all of the work he completed under both contracts, and in October 1984, he filed a claim of lien in the amount of $108,000 against the property, naming Norton Properties, Inc. as owner. S. Donald Norton Properties, Inc. filed a complaint against Gray seeking damages for breach of contract and also a declaration that the claim of lien was invalid because Gray failed to name the owner of the property, S. Donald Norton Properties, Inc., in the claim. Gray answered and counterclaimed, seeking to foreclose on the claim of lien and alleging fraud, among other things.

After Gray filed the lien, bond was posted through Traveler’s Insurance Company to remove the claim of lien as an encumbrance to the title to the property. It appears from the face of the bond to discharge lien filed with the clerk of superior court that the Traveler’s bond was issued on behalf of Norton Properties, Inc. First Service Corporation, as principal, and United Federal Savings & Loan Association, as surety, subsequently substituted for the Travelers bond their own bond, in the form of a certificate of deposit. First Service and United Federal were added as defendants in counterclaim in November 1986. Subsequently, the Resolution Trust Corporation, and then FDIC, were substituted as defendants in counterclaim. Gray’s action on the bond against FDIC was tried before a jury in May 1996. The jury found in Gray’s favor, specifically concluding that the lien was enforceable and that Gray was entitled to recover interest on the principal amount of $108,000.

1. FDIC contends it was entitled to a directed verdict because Gray failed to name S. Donald Norton Properties, Inc. as the owner in the claim of lien, which resulted in an invalid lien pursuant to OCGA § 44-14-361.1. We do not agree.

To be enforceable, a claim of lien must include the name of the owner of the property against which the claim is being filed. OCGA § 44-14-361.1 (a) (2). A & A Heating &c. Co. v. Burgess, 148 Ga. App. 859, 860 (1) (253 SE2d 246) (1979). See also Meco of Atlanta v. Super Valu Stores, 215 Ga. App. 146, 149 (1) (449 SE2d 687) (1994); North v. Waffle House, 177 Ga. App. 162, 163 (a) (338 SE2d 750) (1985). In this case, the evidence was in conflict as to the correct title of the corporation that owned the property when Gray filed the lien. Some evidence was presented that “S. Donald Norton Properties Inc.” owned the property, while other evidence showed that “Norton Properties, Inc.” was the owner.

The law is well settled that “[t]his court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts . . . and that decision is approved by the trial judge and is supported by the evidence of record, this court . . . will affirm.” (Citations and punctuation omitted.) Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 498 (414 SE2d 718) (1992). See also Service Merchandise v. Jackson, 221 Ga. App. 897, 898-899 (473 SE2d 209) (1996) (in ruling on directed verdict motion, evidence must be construed in favor of party opposing motion, and for grant of motion to be proper, there must be no conflict in evidence as to any material issue). Because conflicting evidence of the owner’s name was presented, it was for the jury to determine whether Gray’s lien was valid and enforceable. The jury was properly instructed that one of the requirements for a valid claim of lien is that it name the owner. The jury’s conclusion that the lien was enforceable was authorized because some evidence was presented that Norton Properties, Inc. owned the property.

2. FDIC also contends that the trial court erred in failing to charge the jury that materialman’s lien statutes must be strictly construed. We disagree.

“It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error. [Cit.]” (Citation and punctuation omitted.) City of Dalton v. Smith, 210 Ga. App. 858, 859 (3) (437 SE2d 827) (1993).

Considering the jury instructions as a whole, we find no error in the trial court’s failure to give the requested charge. The trial court charged the jury that “[flor a claim of lien to be valid, the lien claimant must name the correct owner of the property at the time the lien is filed. If the lien claimant fails to name the correct owner of the property in a claim of lien, then the lien is void.” The charge emphasized that to be enforceable a claim of lien must reveal the owner of the property. In addition to this clear, strong instruction, the trial court responded to the jury’s later request for “clarification on all the factors that constitute a valid lien” by instructing the jury that it must “decide whether or not the claim of lien identifies, by name, the owner of the property.” The jury was twice instructed on the principle that the owner must be named in the claim of lien, and the failure to charge that strict construction was required in the exact language requested is not reversible error.

3. FDIC also contends that it was entitled to a directed verdict because Gray failed to maintain separate accounts for work done under each of the two contracts. Regardless of whether the cases cited by FDIC apply to the facts and issues involved in this appeal, any issue as to whether Norton Properties, Inc. or S. Donald Norton Properties, Inc. owed money on Gray’s claim is foreclosed by FDIC’s pre-trial stipulation. Although FDIC disputed attorney fees and interest on the claim, counsel for FDIC expressly stipulated, “[W]e do not contest the claim against S. Donald Norton Properties, Incorporated. . . . [W]e are not contesting the basic claim that [Gray] filed a lien for, which is $108,000.” We note that FDIC’s counsel stated during his motion for directed verdict that he expected, when he made the pre-trial stipulation, that Gray would show how payments were allocated between the two contracts. Gray had rested his case before FDIC’s counsel proffered this explanation, and we agree with the trial court that, based on FDIC’s pre-trial stipulation that it did not contest the claim against S. Donald Norton Properties, Inc., Gray reasonably could have believed that a break-down of payments between the two contracts was unnecessary.

Decided March 12,1997

Varner, Stephens, Humphries & White, James T. White, Brendan J. McCarthy, for appellant.

Greer, Klosik & Daugherty, John F. Daugherty, Jeffrey F. Leasendale, for appellee.

4. Finally, FDIC contends that the trial court erroneously entered an in personam, rather than in rem, judgment against it. Although FDIC claims in its brief that it objected to the form of the judgment, we find no such written objection in the record; and we will not consider unsupported claims of facts made in appellate briefs. See, e.g., Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995). Because the record does not affirmatively show that the issue was first presented to the trial court, we will not consider it here. See Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 354 (5) (323 SE2d 176) (1984) (physical precedent only); Page v. State, 167 Ga. App. 297, 298 (1) (306 SE2d 381) (1983).

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

       A discrepancy exists in the record concerning this substitution: The collateral assignment of the certificate of deposit to the superior court clerk recites that the bond was filed on behalf of S. Donald Norton Properties, Inc.

       S. Donald Norton Properties, Inc.’s pleadings were stricken at trial for failure to answer Gray’s counterclaim. We note that S. Donald Norton Properties, Inc. filed a notice of bankruptcy in August 1988.

       FDIC also contends that the trial court erroneously denied summary judgment on this ground. The denial of the motion for summary judgment became moot after the case was submitted to the jury and a judgment rendered. See, e.g., Pope v. Professional Funding Corp., 221 Ga. App. 552, 553 (472 SE2d 116) (1996).

       In response to FDIC’s argument that it was incumbent upon Gray to show how payments were applied to the contracts and counsel’s “explanation” of its stipulation after Gray rested, the trial court stated, “[P]erhaps the stipulation should not have been offered, and they should have just been required to put on that type of proof. . . . [Assuming that they agree that under normal circumstances [Gray would have been required to show how the payments were applied], I am not comfort[able] in directing a verdict saying they didn’t do that when there was a stipulation at the beginning of the trial that might have suggested to them that they were being relieved of that obligation by virtue of the stipulation.”


text:
    A96A2504.
    MALLORY v. THE STATE.
    (483 SE2d 907)
   Smith, Judge.

Thomas Mallory was charged in DeKalb County with two counts of felony abandonment. A jury found him guilty on both counts. He appeals following the denial of his motion for new trial.

The record shows that Mallory married in 1965 in Georgia, and three children were born of the marriage. Mallory had a long-standing interest in aviation and eventually became a licensed pilot. After wandering around the country seeking work as a pilot and living in their van, Mallory and his family settled in California. Mallory worked there as a commercial pilot, flying both national and international routes.

In 1982, the family was dependent for support upon Mallory. Although the family was still nominally intact, Mallory was away for extended periods; he was flying to international destinations out of New York. The family was evicted from their rented house in San Mateo, California while Mallory was away, and his wife and children moved back to Georgia into an apartment in DeKalb County.

Mallory visited his family in DeKalb County in the summer of 1982. He spent from one to three days in the family apartment, playing with the children and resuming sexual relations with his wife. Mallory then indicated he had to leave on business but said he would return in “a couple of weeks” and take the family on a vacation. His wife told him she was low on funds, and he gave her $200, which was all he said he had. He never returned.

Other than the Christmas gifts he sent the children in 1982 and the $200 he gave his wife the same year, he has never sent the family any support. His wife testified that he kept his whereabouts secret. When she was able to reach him and ask him to support his children, he refused despite bragging about his possessions. Mallory stated in an affidavit that he obtained a divorce in the Dominican Republic in 1983. His wife testified, however, that he telephoned her in 1986 and requested that she obtain a divorce, and she agreed. Although he told her he changed his mind, his wife obtained a divorce by publication in Georgia in 1986. He saw his family again briefly in 1986 in an arranged visit at a restaurant, accompanied by the woman who became his next wife. He stated frequently that he would never pay child support. His family, meanwhile, was struggling financially, receiving welfare and food stamps, although his wife worked whenever possible.

His wife attempted unsuccessfully to obtain child support through URESA. She swore out an abandonment warrant in DeKalb County, but she was told the action should be in Gwinnett because that was where she and the children were then living. An abandonment action was brought in Gwinnett County in 1987, and Mallory pled nolo contendere and was ordered to pay child support of $50 per week per child. He did not pay under the order. He left Georgia, and attempts to find and return him were unavailing. He was finally captured as a fugitive near Memphis, Tennessee, where he and his new wife raised emus. They lived on about 100 acres of land and had four vehicles and a motor home. He was extradited to Georgia and brought to court on these felony abandonment charges in DeKalb County. A Gwinnett URESA representative testified at the sentencing hearing that Mallory owed over $40,000 in back child support.

1. Mallory has filed a pro se motion to withdraw his appeal. Because Mallory raised a claim of ineffective assistance of trial counsel in his motion for new trial, the trial court appointed new counsel to represent Mallory for the hearing on the motion for new trial. The same appointed counsel also represents Mallory on this appeal and has filed a brief on appeal. Counsel has informed this Court that Mallory’s pro se motion was filed without counsel’s knowledge or consent.

Georgia courts have long held that “one represented by counsel on appeal does not have the right to independently conduct his own defense and have both considered by this court. [Cit.]” Brooks v. State, 265 Ga. 548, 551 (7) (458 SE2d 349) (1995). See also Reid v. State, 235 Ga. 378-381 (1) (219 SE2d 740) (1975). In Cherry v. Coast House, Ltd., 257 Ga. 403 (359 SE2d 904) (1987), the Supreme Court held that members of the bar are excepted to some extent from that rule and may participate in their own representation although represented by counsel. Even in such cases, however, courts are “not required to accept random appearance and filings by both the client and his attorneys.” Id. at 406 (3). Mallory is not an attorney and this Court will not accept his “random filings.” It is apparent that Mallory has not coordinated his appellate strategy with that of his counsel, nor has he moved the trial court to allow him to appeal pro se. We are constrained, therefore, to dismiss Mallory’s pro se motion and consider the appeal on its merits.

2. Mallory contends the trial court erred in ruling that Georgia, rather than California, has jurisdiction. In support of his contention that jurisdiction lies in California, Mallory points to his wife’s divorce complaint and her 1988 URESA petition in Gwinnett, both of which state that the parties last lived together in California. But the law does not require one accused of abandonment to be domiciled in Georgia in order for this state to have jurisdiction.

Two elements are required to be proved to support a conviction for abandonment: (1) wilful and voluntary abandonment of the children by their parent; and (2) leaving the children “in a dependent and destitute condition.” Chapman v. State, 177 Ga. App. 580 (340 SE2d 237) (1986). If a parent abandons children in another state, leaving them there in a dependent and destitute condition, the offense is complete. If the parent abandons them in another state and the children subsequently come into this state and are dependent and destitute here, “the offense is not complete although the [parent] has knowledge of their condition, unless he received them and recognized them in some way, as his family, after they had come into this state.” (Citations and punctuation omitted.) Id. at 581.

Mallory’s family was not abandoned in California, although they last lived regularly as a family there. They were not left destitute, even assuming Mallory left California without the intention to return. His paychecks were being deposited at that time into a joint checking account to which his wife had access. But the family was certainly left destitute and dependent in Georgia. The State premises jurisdiction here on Mallory’s 1982 visit, when he stayed with his family, resumed sexual relations with his wife, gave her money, and promised to return after leaving for a short time on business. We agree with the State that this visit constituted a recognition of his wife and children as his family. It was an acknowledgment of his family obligations within the meaning of Chapman, supra. The offense of abandonment was therefore completed in this state at that time, and jurisdiction is proper in Georgia.

3. Mallory also contends that even if Georgia has jurisdiction, venue properly lies in Gwinnett County rather than in DeKalb. He argues that he cannot be prosecuted in DeKalb for the same offense of which he was convicted in Gwinnett. We find no merit in this contention.

First, it is not the same offense. The 1987 Gwinnett County indictment charged him with misdemeanor abandonment of his children on December 10, 1986. Mallory entered a plea of nolo contendere to that accusation, and he was sentenced to 12 months incarceration, suspended indefinitely on condition that he pay $50 per week per child in support. In this case, the indictment charges Mallory with felony abandonment, between October 21, 1991 and June 30, 1994 as to his older daughter (who attained the age of majority in 1994) and between October 21, 1991 and May 4, 1995 as to his younger daughter. (His son had attained the age of majority prior to the return of the indictment.)

Second, abandonment is a continuing offense, and a former acquittal or conviction is not a bar to further prosecution if the children are left in a dependent condition for a period of at least 30 days prior to commencement of the prosecution. OCGA § 19-10-1 (c). That requirement was met here.

Finally, the basis for venue in Gwinnett County in the 1987 action is unclear. It may have been premised upon the family’s domicile there at the time. But regardless of whether that was proper, Mallory’s plea of nolo contendere, like a guilty plea, waived all defenses, known and unknown, including venue, as to that prosecution. Lawson v. State, 204 Ga. App. 796, 797 (1) (420 SE2d 600) (1992).

In this state, venue of a prosecution for child abandonment is in the county where the minor children first become dependent upon others for support. “This is true regardless of where the abandonment . . . may have had its beginning, because the crime is consummated at the place where the child becomes dependent upon persons other than the parent. [Cits.]” Fairbanks v. State, 105 Ga. App. 27, 30 (123 SE2d 319) (1961). See also Minnix v. State, 162 Ga. App. 29, 30 (290 SE2d 131) (1982). Venue in DeKalb County in this action was premised upon Mallory’s visit there in 1982, when he recognized his wife and children as his family, and upon the children’s dependence upon others for support when he did not return after that visit and did not support them. Venue was properly laid in DeKalb County.

4. Mallory maintains the trial court erred in refusing to allow him to represent himself at trial. A defendant has a right to self-representation. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). But he must make an unequivocal assertion of that right before trial. Chambers v. State, 213 Ga. App. 414, 417-418 (4) (444 SE2d 820) (1994). Here, Mallory merely insisted that he was firing his retained counsel in favor of another retained attorney who was not present, and the court refused a continuance. “[A] criminal defendant will not be permitted to use the discharge of counsel and employment ... of another as a dilatory tactic in postponing or avoiding trial of the issue. [Cit.]” Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984).

Even assuming Mallory made an unequivocal request for self-representation, it was made after the jury was impaneled. A request for self-representation must be made before trial. The denial of such a request made after the beginning of trial is not reversible error. A defendant “cannot frivolously change his mind in midstream by asserting his right to self-representation in the middle of his trial.” (Citation and punctuation omitted.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

The record shows that Mallory was represented at trial by retained counsel who had been involved in the case for over a year prior to trial. A demand for trial was filed in October 1995, necessitating trial before the end of December 1995. OCGA §§ 17-7-170 (a); 15-6-3 (37). The lawyer had discussed the case with Mallory more than 50 times, had received complete discovery from the State, and had prepared a defense.

At trial, after a jury had been selected, Mallory indulged in a loud outburst as the prosecutor was about to give his opening statement, shouting and demanding a recess. He claimed he had hired another attorney and fired his retained trial counsel. After considering Mallory’s history of disruptions dating back to arraignment, the trial court refused to grant a recess or continuance. Mallory then insisted he wished to represent himself. The court indicated that it did not believe Mallory was “competent at this point” to do so and refused his request. Mallory was given an opportunity to remain in the courtroom if he conformed his behavior to proper decorum, but he refused to do so and was removed from the courtroom.

The court instructed Mallory several times that he could return if he controlled himself, but Mallory continued to absent himself from the trial. Through counsel, who consulted with him during scheduled recesses, Mallory informed the court he refused to participate in the trial. He told the court explicitly that if he were returned, he would continue to disrupt the trial. A deputy shériff who escorted him from the courtroom reported that Mallory was laughing, saying he knew how to prevent courts from holding trials.

At the close of the State’s case Mallory was again brought into the courtroom, outside the jury’s presence, and advised of his right to testify or remain silent. Mallory first indicated he wished to testify but did not want his former wife and his children in the courtroom when he did so. When the court refused to bar them, Mallory refused to participate further in the trial and requested that he be sent back to jail.

A trial court has the power and discretion-“[t]o control in the furtherance of justice, the conduct of . . . all . . . persons connected with a judicial proceeding before it, in every matter appertaining thereto.” OCGA § 15-1-3 (4). Mallory’s behavior at trial is similar to that of the defendant in Williams, supra. There, because the defendant behaved in an obstreperous manner and absented himself from the courtroom, we found inapplicable the principles regarding his right to self-representation. Here, as in Williams, the trial court was patient and “literally leaned over backward’ in the exercise of its duties to protect and balance the rights of the public ... to a just and speedy determination of a criminal matter . . . against the rights of the criminal defendant to a well-prepared defense monitored by legal counsel acceptable to the defendant.” Id. at 814-815. See also Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987). The trial court did not abuse its discretion.

5. Mallory complains of the trial court’s refusal to allow him to invoke the rule of sequestration at the hearing on his motion for new trial so as to bar his trial counsel from remaining in the courtroom. We need not address this enumeration, because on appeal, Mallory does not raise the issue of ineffective assistance of trial counsel. That was the issue at which trial counsel’s testimony in the hearing was directed. Any possible error was therefore harmless.

Decided March 12,1997.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Jeffrey H. Brickman, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

       The court later explained its remark as directed to Mallory’s competence to represent himself and follow the rules, given his purposeful disruptive behavior, which the court had seen before. Mallory argues, based upon this remark, that the trial court erred in denying his counsel’s request for a competency evaluation, but this contention is not enumerated as error. Even if this was error, it was harmless: the court ordered a psychological evaluation before sentencing Mallory, and the clinical psychologist who examined Mallory found him competent and sane.


author: Judge Harold R. Banke.

text:
    A97A0108.
    JORDAN v. THE STATE.
    (484 SE2d 60)
   Judge Harold R. Banke.

Tony B. Jordan was convicted of trafficking in cocaine. In his sole enumeration of error, he raises the general grounds, leaving us with only the sufficiency of the evidence to review. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The evidence, viewed in the light most favorable to the verdict, reveals the following. Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996). This case arose after law enforcement authorities executed a search warrant on an apartment Jordan leased. A confidential informant had directed authorities to the apartment with information of drug transactions. Authorities then drove by the apartment on several occasions and initiated surveillance for several hours at a time for two or three days before the search warrant was obtained. They also arranged for an undercover agent to purchase cocaine from an unidentified individual in the apartment.

When the authorities executed the search warrant Jordan was not present, although his car was parked in front of the building. However, officers arrested Jordan’s nephew, Jonathan Green, standing beside a light or telephone pole in the yard. They also arrested three other men who were discovered in the apartment.

Inside the apartment’s south bedroom, officers discovered what appeared to be cocaine residue on a high school yearbook, some scales, $541, single-edged razor blades, plastic bags, a pistol and Jordan’s student photographic identification card from Albany State College. In the north bedroom, they found a measuring cup containing suspected residue which was not sent to the crime lab, a two ounce bottle of inositol powder, a B vitamin which may be used to cut cocaine, a rifle and a shotgun.

Approximately 20 feet outside the apartment building under the telephone pole Green was standing by authorities discovered a coffee can containing approximately 94 grams of cocaine of nearly 100 percent purity. The pole was located in an unfenced section of the common area. Next to a bush near the building’s corner they found two more small green bags containing cocaine. They unearthed six additional bags containing cocaine in the yard covered with a rush mat and pine straw. In all, over 108 grams of cocaine of 100 percent purity were seized. Held:

Where, as here, a conviction depends entirely on circumstantial evidence, such evidence must be so consistent with the hypothesis of guilt as to exclude every other reasonable hypothesis. OCGA § 24-4-6; Morrison v. State, 220 Ga. App. 151, 153 (1) (a) (469 SE2d 686) (1996). The evidence presented in this case does not meet this standard.

The bulk of the cocaine, the amount required to satisfy the trafficking statute, was found outside the apartment in an unfenced common area. OCGA § 16-13-31. The record affirmatively shows that a large number of persons other than Jordan had equal access to this location. See Prescott v. State, 164 Ga. App. 671, 673 (2) (297 SE2d 362) (1982). No direct evidence connected Jordan to the cocaine found outside the apartment other than the fact that he, like others, occupied a nearby residence. Id. The residue found in the apartment was not tested by the crime lab. The State presented no similar transaction evidence at Jordan’s trial. Nor did any fingerprint evidence connect him with the contraband. Because the record shows that innumerable other persons had equal access to the cocaine at issue, the evidence supporting the trafficking charge was insufficient notwithstanding Jordan’s tenancy of the apartment. See id.; see Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995); see also Nations v. State, 177 Ga. App. 801, 802 (1) (341 SE2d 482) (1986) (physical precedent only); Smith v. State, 156 Ga. App. 102, 103 (1) (273 SE2d 918) (1980).

Furthermore, the State’s attempts to connect Jordan to the cocaine through the apartment fail to exclude all other reasonable hypotheses but guilt. Although Jordan signed the lease on the two bedroom apartment, the undisputed evidence revealed that his nephew, Jonathan Green, who was arrested when the warrant was executed, lived there as well. Jordan testified that he had moved back with his father several weeks before the warrant was executed due to financial difficulties. He testified that he left his car at the apartment because it was broken and he had not finished moving all of his belongings, including his stereo and the shotgun. He also stated he had formerly occupied the north bedroom in the apartment where the only potentially incriminating evidence found was the measuring cup and the bottle of inositol powder. An officer admitted that the firearms were not illegal weapons.

Decided March 12,1997.

John L. Tracy, for appellant.

Britt R. Priddy, District Attorney, Max G. Factor, Assistant District Attorney, for appellee.

In addition, the evidence connecting Jordan to the apartment in the weeks prior to the search was conflicting. On direct examination, the surveilling officer testified that he saw Jordan “mostly everyday” during the surveillance as well as before it, maybe 30 or 40 times. During cross-examination, however, he testified first that “I didn’t see him during surveillance. I’ve seen him there prior to the surveillance.” He also stated that prior to the execution of the warrant he observed Jordan there nine or ten times. But the officer admitted that during the suppression hearing he had testified that “No, I can’t rightly ever say I saw him during the execution of the warrant or during the surveillance.” The owner of the apartment testified that he had not seen Jordan at the apartment in the weeks preceding the search and that Jordan had not paid his rent for the month.

The evidence, viewed in a light most favorable to the verdict, supports two theories, one consistent with innocence. Morrison, 220 Ga. App. at 153 (1) (a). Although the jury generally determines whether every other reasonable alternative but guilt has been excluded, “ ‘ “we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.” [Cits.]’ ” Id. Because there was no direct evidence connecting Jordan to the crime and the evidence did not exclude the reasonable hypothesis that the cocaine belonged to any of the men arrested during the search, tenants of the apartment building, or other unidentified individuals frequenting the premises, the verdict cannot be sustained.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       A surveillance officer reported seeing Jordan in his car on the day the warrant was executed.

       In light of the three day surveillance period and the officer’s subsequent testimony, it appears that these numbers include the period prior to the initiation of surveillance, notwithstanding the State’s assertion to the contrary. The officer testified that he knew Jordan because he had relatives in Jordan’s neighborhood.