text:
    A99A0246.
    HERRINGDINE v. NALLEY EQUIPMENT LEASING, LTD.
    (517 SE2d 571)
   Eldridge, Judge.

On January 27, 1995, a verdict and judgment was rendered against Jesse Walter Herringdine, a/k/a J. W. Herringdine, a/k/a J. Walter Herringdine, defendant-appellant, individually in Civil Action 91-A-37217-2, State Court of DeKalb County.

On January 13, 1998, defendant filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) (2) on the basis of “[flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” The matter was docketed as a new and separate action, Civil Action Number 98-A-40835-2. Nalley Equipment Leasing, Ltd. (“Nalley”), the plaintiff-appellee, timely answered. Nalley filed a motion for summary judgment and requested oral argument on its motion. In two separate written requests, defendant asked for oral argument on the motions to set aside and summary judgment under USCR 6.3. Defendant also filed his response to Nalley’s motion for summary judgment.

Without a hearing or prior notice, the trial court entered an order dismissing the motion to set aside. Defendant’s request for discretionary appeal was granted, and a notice of appeal was filed.

1. Defendant’s first and second enumerations of error go to the dismissal of the motion to set aside because it was improperly filed as a separate action, and the defendant contends that the trial court erred in dismissing the motion for such reason. We agree. However, since the trial court went on to rule on the merits of the motion to set aside, the case can be decided on the merits without a remand.

Under the Civil Practice Act (“CPA”), liberal pleadings and procedure are mandated. See Bradberry v. Bradberry, 232 Ga. 651, 653-654 (4) (208 SE2d 469) (1974). Cases should be decided on the merits, rather than on procedural technicalities. Ambler v. Archer, 230 Ga. 281, 286-287 (196 SE2d 858) (1973).

The rules set forth in the [CPA] are intended to promote and not to obstruct the administration of justice and thus enable the court to do substantial justice rather than to decide cases upon technicalities which have no relationship whatever to the rights of the parties to the litigation.

(Citation and punctuation omitted.) Mundt v. Olson, 155 Ga. App. 145 (270 SE2d 344) (1980). Cases are not to be dismissed except where it appears beyond doubt that the party can prove no set of facts to support the relief sought. Sheppard v. Yara Eng. Corp., 248 Ga. 147, 150 (281 SE2d 586) (1981). Under OCGA § 9-11-8 (f) “[a]ll pleadings shall be so construed as to do substantial justice.” “The ‘title’ applied to pleadings is not binding on the court; we judge a pleadings by its contents, not by its name. Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567) [(1975)].” Bank of Cumming v. Moseley, 243 Ga. 858, 859 (257 SE2d 278) (1979). Where justice requires, the court should treat pleadings as if there had been a proper designation. Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 580 (1) (260 SE2d 523) (1979).

Defendant’s

complaint was an effort to set aside the judgment of the [trial] court because of fraud. As such efforts are properly brought as motions to set aside the judgment under OCGA § 9-11-60 (d) (2), and as it is the substance and function of the pleadings which are determinative (Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845) [(1973)]), we must treat [defendant’s] complaint as a motion to set aside the judgment in which relief was denied.

Manley v. Jones, 203 Ga. App. 173, 174 (416 SE2d 744) (1992).

It is well established however, that there is “no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.” Holloway v. Frey, [supra at 227]. Since the [separate action to set aside] fulfills all the requirements of a [motion to set aside] under [OCGA § 9-11-60 (d) (2)], it will be so construed.

Frost v. Frost, supra at 674.

2. Defendant’s third and fourth enumerations of error are that the trial court erred in dismissing his motion because he “failed to provide the court with the original affidavit of the forensic document examiner, attaching only a copy to his motion,” and he “failed to provide the trial court with any evidence of the alleged forgery or fraud.”

Since thn motion to set aside the judgment was not a separate action but a post judgment proceeding in the case, then summary judgment was not a proper procedural motion to address the post judgment issues. A motion to set aside the judgment under OCGA § 9-11-60 (d) is a distinct procedure where the trial judge is the finder of fact.

Thus, the issue is when does evidence have to be tendered to the trial court in order to decide the motion to set aside judgment?

The trial court shall give directions as to how evidence is to be presented, either by affidavit, deposition, oral testimony, or any combination, and notice of any hearing on the motion to set aside the judgment. See OCGA §§ 9-11-43 (b); 9-11-60 (d) (2); Johnson v. Johnson, 244 Ga. 155-156 (2) (259 SE2d 88) (1979); Johnson v. Aetna Fin., 139 Ga. App. 452, 453 (2) (228 SE2d 299) (1976). However, absent a written request in a separate pleading requesting an oral hearing, the trial court can properly hold no oral argument, which would put counsel on notice that they must file of record their evidence immediately. USCR 6.3. In this case even though the defendant made a written request for oral argument, as did the plaintiff, both on the motion to set aside and for summary judgment, no hearing was conducted and no order either granting or denying the requests was sent, which also would tell counsel when they must file their evidence in the event that it had not been done previously; the better practice is for the trial court in writing to either grant or deny the oral argument or otherwise inform counsel when the evidence had to be filed of record. USCR 6.3; Montgomery v. City of Sylvania, 189 Ga. App. 515 (376 SE2d 403) (1988). Further, OCGA § 9-11-6 (d) requires that motions supported by affidavits be filed with the motion, however, the trial court has the discretion to extend the time in a proper case to file such evidence. Riberglass, Inc. v. ECO Chem. Specialties, 194 Ga. App. 417, 419 (1) (390 SE2d 616) (1990); Wall v. C & S Bank of Houston County, 145 Ga. App. 76, 78-79 (243 SE2d 271) (1978), overruled on other grounds, McKeever v. State of Ga., 189 Ga. App. 445 (375 SE2d 899) (1988). Therefore, Herringdine had to file his evidence with his motion to set aside the judgment or request an extension of time to file so that the other side has adequate notice and opportunity to respond to such evidence; however, he did neither. See Southwest Ga. Prod. Credit Assn. v. Wainwright, 241 Ga. 355, 356 (1) (245 SE2d 306) (1978); Bailey v. Dunn, 158 Ga. App. 347, 348 (280 SE2d 388) (1981); Fairington, Inc. v. Yeargin Constr. Co., 144 Ga. App. 491, 492 (1) (241 SE2d 608) (1978). The opposing affidavits or evidence must be filed one day prior to any hearing. Operation Rescue v. City of Atlanta, 259 Ga. 676, 677-678 (386 SE2d 126) (1989). However, the respondent, in the absence of a notice of a hearing filed with the motion, runs the risk of having no evidence in the record if no hearing is requested or granted by the trial court. The hearing or determination by the trial court cannot come less than five days after the filing of the motion unless the trial court in its discretion orders either a longer or shorter period. Burger Chef Sys. v. Newton, 126 Ga. App. 636, 638-639 (1) (191 SE2d 479) (1972). For either party to file affidavits after the statutory prescribed time requires a request for extension and leave of the court or a finding of excusable neglect and of an extension by the trial court. Big Canoe Corp. v. Williamson, 168 Ga. App. 179, 180-181 (308 SE2d 440) (1983); Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 449 (1) (278 SE2d 40) (1981). In this case, Herringdine failed to comply with the statutory requirements of filing his affidavits and other evidence.

Under OCGA § 9-11-60 (d) (2), oral argument and hearing on a motion to set aside judgment under the amended 1987 Uniform Superior Court Rules is at the discretion of the trial judge, whether or not such hearing is requested by the parties. USCR 6.3; Montgomery v. City of Sylvania, supra. Absent a hearing, there arises a problem as to how and when evidence is tendered. See OCGA § 9-11-43 (b). The trial judge decides all factual issues before the court. See Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993); Smith v. Wood, 174 Ga. App. 799 (1) (331 SE2d 636) (1985); Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983); Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 190 (1) (270 SE2d 362) (1980).

Prior to the 1987 rules amendment, the trial court would hold a hearing where affidavits, depositions, documentary evidence, and limited oral testimony were received, which remains the better practice. OCGA § 9-11-43 (b). Following the amendment of USCR 6.3, parties who desire to raise evidentiary issues must attach affidavits to their pleadings to insure that such evidence is put before the trial court. See Montgomery v. USS Agri-Chemical Div., supra. Now the trial court can ignore a request for oral argument. However, when the trial court decides an OCGA § 9-11-60 (d) (2) motion without a hearing, this creates certain procedural problems regarding the tender of evidence.

Nalley did not file a motion to dismiss; the trial court acted sua sponte to dismiss the OCGA § 9-11-60 (d) (2) motion before it without a hearing, although such hearing was requested in writing by both parties. Since the trial court sits as trier of fact, an OCGA § 9-11-43 (b) evidentiary hearing allows the trial judge to decide disputed issues of fact and make favorable or unfavorable inferences.

OCGA § 9-11-60 (d) sets forth no procedure to follow where there exist (1) legal issues only; (2) undisputed factual issues or mixed questions of law and fact; or (3) disputed issues of material fact, because the trial court does not have to hold a hearing under the Uniform Court Rules. See USCR 6.3; Montgomery v. City of Sylvania, supra at 517 (1); see also Wolfe v. Rhodes, supra at 847; Montgomery v. USS Agri-Chemical Div., supra at 190. Thus, construing the provisions of the CPA in pari materia with OCGA § 9-11-60 (d) (2), certain sections give guidance as to how the trial judge must proceed in light of USCR 6.3. See OCGA §§ 9-11-12; 9-11-43 (b); 9-11-56; Wolfe v. Rhodes, supra at 847; Montgomery v. USS Agri-Chemical Div., supra at 190. However, if there is a motion to dismiss under OCGA § 9-11-60 (d) for failure to state a claim upon which relief can be granted, i.e., the statutory grounds have not been or cannot be satisfied as a matter of law, then the trial court can decide this without a hearing as a matter of law. See OCGA § 9-11-12 (b) (6); Stewart v. Turner, 229 Ga. App. 119, 120 (1) (493 SE2d 251) (1997). If there is a dispute on the merits as to material facts so that conflicting evidence must be introduced, then the trial court may hold an evidentiary hearing and decide the motion on the evidence tendered into the record. OCGA § 9-11-43 (b); USCR 6.3; Wright v. Archer, supra; Smith v. Wood, supra; Wolfe v. Rhodes, supra. Whether the trial court holds a hearing to hear argument, to receive evidence not tendered with the pleadings, or to hear testimony is within the sound discretion of the trial court. OCGA § 9-11-43 (b); USCR 6.3. Thus, in this case, in considering defendant’s affidavit evidence on the merits, the trial court properly made a determination based upon the evidence in the record.

In this case, on June 10, 1998, the order of dismissal read “Herringdine failed to provide the Court with the original affidavit of the Forensic Document Examiner, attaching only a photocopy to his motion. Therefore, Herringdine has failed to provide the Court with any evidence of the alleged forgery or fraud. As such, even if the Motion was properly filed, the Motion is denied.” The trial court properly decided the motion to set aside the judgment based upon the evidentiary record before it without a hearing or allowing oral testimony.

3. Defendant’s fifth enumeration of error is that the trial court erred in finding that the “motion fails due to the doctrines of res judicata, laches, estoppel, and waiver.”

(a) OCGA § 9-12-40 provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

(Emphasis supplied.) This is not a new and separate action but a motion to set aside the very judgment which otherwise would be res judicata in any subsequent action, because until set aside a judgment not void on its face is valid and binding. Camera Shop v. GAF Corp., 130 Ga. App. 88, 90 (202 SE2d 241) (1973). Therefore, res judicata and estoppel by judgment will not bar either a motion to set aside such judgment or an extraordinary motion for new trial based upon newly discovered evidence. Roddenberry v. Roddenberry, 255 Ga. 715 (342 SE2d 464) (1986); Smith v. Dept. of Human Resources, 226 Ga. App. 491, 492-493 (1) (487 SE2d 94) (1997); Dept. of Human Resources v. Browning, 210 Ga. App. 546, 547 (1) (a) (436 SE2d 742) (1993).

(b)

A [motion to set aside under OCGA § 9-11-60 (d) (2)] would have been to no avail if [defendant] knew or should have in the exercise of reasonable diligence discovered th[e] ground [of fraud]. This same diligence rule applies where [defendant] uses a motion to set aside the judgment and he is precluded from using the ground which he had known or could have discovered through reasonable diligence.

(Citations and punctuation omitted.) Marshall v. Marshall, 257 Ga. 494, 495 (360 SE2d 572) (1987). Although a motion to set aside judgment was brought within the three years, under OCGA § 9-11-60 (e), such motion may be barred by laches as if an action is in equity. Lee v. Henson, 198 Ga. App. 701, 702-703 (402 SE2d 548) (1991). However, it is for the trial court to determine if laches attached from all the facts and circumstances of the case. “The trial court was authorized under these circumstances to conclude that the appellant was estopped by laches from seeking to set aside the dismissal on the equitable grounds set forth in OCGA § 9-11-60 (d) (2).” Id. at 702-703. Laches is a factual determination for the trial court to make based upon the evidence in the record; Herringdine failed to present evidence on the record on such issue. OCGA § 9-11-43 (b).

4. Defendant’s sixth and seventh enumerations of error are that the trial court erred in dismissing the motion to set aside the judgment on the grounds that the defendant failed to raise the issue of forgery prior to summary judgment and trial and that the fraud alleged does not come within OCGA § 9-11-60 (d) (2). We do not agree.

In his motion to set aside judgment, defendant contended that, long after the judgment was rendered against him, he discovered in November 1997, when he obtained copies of the company’s records from the bankruptcy court for the first time, that the alleged lease guaranty dated January 24, 1989, which was the basis for suit, had his signature forged on a manufactured document. Defendant had the lease guaranty examined by a forensic document examiner for forgery, and the expert’s opinion was that the document had been manufactured as a computer or photocopy cut and paste job to create defendant’s signature. Such was an evidentiary trial defense on the merits of the case.

“[J]udgment, when obtained in consequence of fraud, is void and may for that reason be set aside [by the trial court under OCGA § 9-11-60 (d) (2) by the trial court]. [Cits.]” Hogg v. Hogg, 206 Ga. 691, 694 (2) (58 SE2d 403) (1950). “[I]t must be made to appear in [a motion to set aside], where fraud is claimed, that the fraud was perpetrated by the adverse party, his counsel or agent.” Pike v. Andrews, 210 Ga. 553, 555 (81 SE2d 817) (1954).

The general rule is that a court . . . , will set aside a judgment which has been obtained by fraud, where such fraud is extraneous to the issues in the proceeding attacked, and especially where the court has been imposed upon by such fraud. The fraud must be actual and positive, and not merely constructive], i.e., committed in ignorance of the true facts]; there must be perpetration of an intentional wrong].] ... A well-established limitation of the general rule is that a judgment can not be vacated for fraud where the particular fraud was in issue in the original proceedings. This limitation on the general principle will not be modified by the fact that additional evidence may have been discovered since the trial to prove the fraud. Nor will a judgment be set aside on the ground that the prevailing party practiced a fraud on the court and on the adverse party by concealing the evidence of his fraud, where the particular fraud, evidence to establish which is alleged to have been concealed, was the issue on trial and there adjudicated.

(Citations and punctuation omitted.) Walker v. Hall, 176 Ga. 12, 15-16 (5) (166 SE 757) (1932); see also Rivers v. Alsup, 188 Ga. 75, 77 (2) (2 SE2d 632) (1939).

[A] judgment obtained by an extrinsic or collateral fraud may be set aside in equity [(now by the trial court under OCGA § 9-11-60 (d) (2))]. Young v. Young, 188 Ga. 29, 34 (2 SE2d 622) (1939). Fraud is extrinsic or collateral, within the meaning of [OCGA § 9-11-60 (d) (2)], when it is one the effect of which prevents a party from having a trial, or from presenting all of his case to the court, or which operates, not upon matters pertaining to the judgment itself, but to the manner in which it is procured.

(Citations and punctuation omitted.) Jackson v. Jackson, 254 Ga. 280, 282 (328 SE2d 733) (1985).

Generally [the trial court under OCGA § 9-11-60 (d) (2)] will grant no relief to one against whom an unfavorable judgment has been rendered, even in consequence of fraud, where the aggrieved party could, by the exercise of proper diligence, have prevented the entering of such a judgment. [Cits.]

Hogg v. Hogg, supra at 695 (3).

In this case, the fraud was not extrinsic or collateral to the issues at trial, i.e., defendant’s liability on a personal lease guaranty, but was intrinsic to the issues litigated, because the forgery went to the heart of Nalley’s case. See Young v. Young, supra; Jackson v. Jackson, supra. Further, defendant admitted in his motion that before judgment, he failed to exercise the proper diligence through discovery prior to trial and at trial prior to admission of the alleged forged document and, because of such failure, did not recognize or challenge such questionable document as forged, but instead made no objection to its admission into evidence. See Hogg v. Hogg, supra at 695 (3); see also Shilliday v. Dunaway, 220 Ga. App. 406, 408 (1) (469 SE2d 485) (1996).

The defendant, as a matter of law, failed to show that he was entitled to relief from judgment for fraud under OCGA § 9-11-60 (d) (2), because such fraud, i.e., forgery of the personal lease guaranty, did not come within the Code section and he failed to exercise proper diligence to discover the forgery prior to judgment. Therefore, the trial court did not err in dismissing the motion to set aside the judgment. Even if the affidavit of defendant’s expert had been properly filed, it could not make out as a matter of law fraud under OCGA § 9-11-60 (d).

5. Defendant’s eighth enumeration of error is that the trial court erred in making an OCGA § 9-15-14 (b) award to the plaintiff’s for defendant’s bringing the OCGA § 9-11-60 (d) (2) motion, because it lacked substantial justification.

The trial court, sua sponte under OCGA § 9-15-14 (b), awarded attorney fees and made findings without holding a hearing and receiving evidence on the issues.

However, the trial court lacked the power or authority under OCGA § 9-15-14 (d) and (f) to make an award without a hearing and evidence as to what reasonable attorney fees were directly caused by the improper conduct. Montag v. Sutherland, 230 Ga. App. 692 (498 SE2d 86) (1998); Hallman v. Emory Univ., 225 Ga. App. 247, 252 (4) (483 SE2d 362) (1997) (physical precedent only); Cohen v. Feldman, 219 Ga. App. 90, 92 (464 SE2d 237) (1995); Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994).

This Court reverses such award and remands the case with directions that the trial court vacate the order awarding attorney fees, hold a hearing after notice, and receive evidence on the issue of attorney fees under OCGA § 9-15-14 (b).

Decided May 11, 1999

Reconsideration denied May 25, 1999 — Cert. applied for.

Richardson & Chenggis, George G. Chenggis, for appellant.

Bodker, Ramsey & Andrews, Thomas Rosseland, for appellee.

Judgment affirmed in part, reversed in part, and remanded with directions.

Pope, P. J., concurs. Smith, J., concurs in judgment only.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0271.
    MATHIS v. THE STATE.
    (517 SE2d 578)
   Johnson, Chief Judge.

Andre Mathis and Ronnie Kelly were convicted of armed robbery and possession of a firearm during the commission of a felony. Mathis appeals.

1. Mathis challenges the sufficiency of the evidence supporting the convictions. The challenge is without merit.

Viewed in the light most favorable to support the verdict, the evidence shows that two men wearing black gloves, dark clothes, and ski masks entered Stuckey’s Mini-Mart to commit a robbery. Store owners Mitchell Stuckey and Inez Stuckey, along with cashier Debra Drains, were in the store when the robbers entered. Inez Stuckey stood behind the cash register, Drains stood near the cashier counter and Mitchell Stuckey stood near the back of the store, which is very small.

One of the robbers was armed with a handgun. He pointed the gun at Inez Stuckey and ordered her to open the register. The other man took money from the open register drawer. The robbers then demanded the money that was kept in the store office. Inez Stuckey retrieved that money, which had been banded with bank wrappers, and gave it to the robbers, who then ran from the store.

When the police arrived at the store, Drains immediately identified the two robbers as Ronnie Kelly and Andre Mathis. Drains has known both Kelly and Mathis for many years and had seen them in the store earlier that day. She was able to identify Kelly as one of the robbers by his voice and his distinctive walk. Drains recognized Mathis by the way he spoke during the robbery.

The arresting officer testified that approximately one hour after the robbery, he went to the home of Mathis’ girlfriend, where he found Mathis and Kelly. The officer saw a large amount of money bulging out of Kelly’s pants pocket. Mathis and Kelly were placed under arrest. The officer then obtained Mathis’ girlfriend’s consent to search the house. During the search, the officer found three ski masks, gloves, and money wrappers. A handgun was also found in Kelly’s jacket.

Both Drains and Inez Stuckey testified that the handgun’s barrel appeared similar to the barrel of the gun used during the robbery. The masks and gloves also looked like those worn by the robbers, and the money wrappers were similar to those used in the Mini-Mart.

Based on our review of the entire record before us, we find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Mathis was guilty of the offenses of armed robbery and possession of a firearm during the commission of a felony. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Reid v. State, 232 Ga. App. 313, 315 (2) (501 SE2d 842) (1998).

2. Mathis claims there is a fatal variance between the allegations in the indictment and the evidence in that the indictment alleges the money was taken from the immediate presence of Drains whereas the evidence shows the money was taken only from the immediate presence of Inez Stuckey. Contrary to Mathis’ claim, the evidence does not show a taking only from the immediate presence of Inez Stuckey.

The meaning of “immediate presence” in this context stretches fairly far, and robbery convictions are usually upheld if what was taken was under the victim’s control or responsibility and was not too distant from the victim. Wilson v. State, 207 Ga. App. 528, 529 (1) (428 SE2d 433) (1993). For property to be taken from the presence of the victim, it need not have been in actual contact with the body so long as it was under the victim’s personal protection. Id. See also Welch v. State, 235 Ga. 243, 245 (1) (219 SE2d 151) (1975); Bryant v. State, 213 Ga. App. 301, 302 (444 SE2d 391) (1994).

In the instant case, there was testimony that Drains was on duty and responsible for the money in the cash register, that the store is very small and that Drains was standing near the cash register and the robbers when the armed robbery occurred. The jury was thus authorized to find that Drains was sufficiently close to the taking so that it occurred within her immediate presence or within the sphere of her protective influence. See generally Anderson v. State, 228 Ga. App. 617, 621 (3) (492 SE2d 252) (1997). The mere fact that the money was taken directly from Inez Stuckey does not eliminate the fact that the robbery also occurred in the immediate presence of Drains.

The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused is definitely informed of the charges against him so he can present his defense and not be surprised by the evidence at the trial, and (2) that he is protected against another prosecution for the same offense. Harrison v. State, 192 Ga. App. 690, 691 (1) (385 SE2d 774) (1989). Here, Mathis was definitely informed as to the armed robbery charge against him and he is protected against another prosecution for the same offense committed against Drains. The trial court therefore did not err in finding no fatal variance between the allegation in the indictment and the evidence.

3. Mathis contends the admission of Kelly’s pretrial statement violated Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). The court allowed a police officer to testify that Kelly stated he and someone else had discussed robbing the store earlier that day, he and someone else in fact committed the robbery, he went into the store and had the gun, he did most of the talking during the robbery, they left the store and they eventually returned to the housing project where the arrest occurred. Neither Kelly nor Mathis testified.

[U]nless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998). Because Kelly’s statement plainly refers to the existence of another defendant planning and participating in the crime, we find that admission of the statement violated Mathis’ right of confrontation.

However, “(w)e will not reverse unless error is shown to be harmful. If overwhelming evidence against a defendant exists apart from the statement of the co-defendant, then any violation of Bruton can be said to be harmless beyond a reasonable doubt.” (Citations and punctuation omitted.) Kesler v. State, 215 Ga. App. 553, 555 (1) (451 SE2d 496) (1994). Given Drains’ eyewitness identification of Mathis, along with the money, masks, gloves, money wrappers and gun found in the possession of Mathis and Kelly, we find overwhelming evidence of Mathis’ guilt. Accordingly, the court’s erroneous admission of Kelly’s statement was harmless beyond a reasonable doubt. See Hanifa v. State, supra at 804 (2); McDonald v. State, 210 Ga. App. 689, 691 (2) (436 SE2d 811) (1993).

4. Mathis asserts that the trial court erred in denying his motion to sever his trial from that of Kelly. We find no merit to the assertion.

In deciding whether to grant a motion to sever, a trial court must consider whether a joint trial will create confusion regarding evidence or law; whether there is danger that evidence implicating one defendant will be considered against co-defendants, despite limiting instructions; and whether the co-defendants will press defenses that are antagonistic to one another. Bryant v. State, 270 Ga. 266, 269 (2) (507 SE2d 451) (1998). To show abuse of discretion a defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice that resulted in a denial of due process. See Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996).

The issues in the instant case for jury resolution were simple and straightforward. Neither the number of defendants nor their trial tactics created any confusion as to either the evidence or the applicable law. There were only two defendants on trial and the primary issue was the identity of the robbers. Neither defendant testified so no issue exists as to conflicting co-defendant testimony. Mathis made no showing that Kelly would have been more likely to testify if they had been tried separately and that if Kelly had testified, his testimony would have tended to exculpate Mathis. Although Kelly’s statement was introduced in evidence, his and Mathis’ defenses were not antagonistic and, as determined above, the Bruton error did not affect the verdict. The trial court did not abuse its discretion when it denied the motion to sever. See Owen, supra.

5. Mathis contends the trial court erred by charging the jurors it would be their duty to convict if they believed the evidence showed beyond a reasonable doubt that the defendant is guilty. Mathis objects to the court’s use of the phrase “duty to convict” in the instruction. “Although this instruction as given has been criticized, it does not constitute reversible error. Considered in the context of the charge as a whole, the single objectionable phrase did not misdirect the jury concerning their lawful obligations.” (Citations and punctuation omitted.) Redd v. State, 232 Ga. App. 666, 667 (2) (c) (502 SE2d 467) (1998).

6. Mathis claims his trial counsel was ineffective in failing to advise him that as a recidivist he could be sentenced to life imprisonment for the armed robbery, and thus Mathis did not voluntarily and intelligently reject a plea offer made by the state. Mathis’ ineffective assistance of counsel claim is not supported by the record.

To establish ineffectiveness, a defendant must prove that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different. An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment.

(Citations and punctuation omitted.) Michael v. State, 235 Ga. App. 16, 18-19 (7) (508 SE2d 426) (1998).

Contrary to Mathis’ claim, the record does not conclusively establish the alleged deficiency. Although at the start of the trial counsel told the court that the maximum armed robbery sentence would be 20 years, later, at the sentencing hearing, he noted that the armed robbery penalty would be life for a recidivist. Moreover, Mathis has not cited, and we have not found, any evidence in the record expressly showing that counsel failed to inform Mathis of the possible life sentence. At most, the record creates an inference, but no conclusive proof, that counsel did not tell Mathis he could receive a life sentence.

Nevertheless, even if we assume that counsel did not tell Mathis he could face a life sentence, the record is silent as to whether such information would have changed Mathis’ decision to reject the guilty plea offer. Mathis concedes in his brief that the record is silent as to whether the conduct of his trial counsel affected the outcome of this case, so he asks us to remand the case for a hearing so that this issue can be determined. However, Mathis already had an opportunity to present evidence on the issue at his motion for new trial hearing.

A defendant must both raise the issue of counsel’s inadequacy and request an evidentiary hearing on the issue at the first available opportunity, otherwise, he is barred from asserting a claim of inadequacy of counsel on appeal. See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Mathis was represented by his appellate counsel during the hearing on his motion for new trial. During that hearing, he was given an opportunity for an evidentiary hearing on his inadequacy of counsel claim. Once Mathis was given the opportunity to litigate this issue, he was required to present his evidence. His appellate counsel, however, only argued the issue and cited to a portion of the existing record. No witnesses were called to testify concerning this matter.

We will not remand this case merely to give Mathis an additional opportunity to attempt to prove his claim. Absent a showing that but for counsel’s alleged error the result of the proceedings would have been different, we must affirm the trial court’s finding that counsel was reasonably effective. See Lloyd v. State, 258 Ga. 645, 648 (2) (b) (373 SE2d 1) (1988).

Decided May 11, 1999

Reconsideration denied May 25, 1999 — Cert. applied for.

Berry & Shelnutt, Jose E. Guzman, for appellant.

J Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Barnes, Judge.

text:
    A99A1026.
    FINANCIAL INVESTMENT GROUP, INC. v. CORNELISON et al.
    (516 SE2d 844)
   Barnes, Judge.

Financial Investment Group, Inc. (“Financial Investment”) directly appeals the trial court’s order dismissing four out of five counts in its complaint against four of five named defendants. Because we find the trial court’s order was interlocutory and not directly appealable, we dismiss Financial Investment’s appeal.

The record shows that Financial Investment sued Harold King, Rex P. Cornelison III, Judy Cornelison, Joe Flesher and Ray Simmons to enjoin a foreclosure sale, determine issues of title and recover money damages. The complaint asserted five theories of recovery in five separate counts: tender (Count 1); clogging and fettering the right of redemption (Count 2); slander of title (Count 3); delivery of quiet title (Count 4); and injunction against foreclosure (Count 5). Defendants Joe Flesher and Ray Simmons filed a counterclaim against Financial Investment with their answers.

Defendants Rex P. Cornelison III and Judy Cornelison separately moved for summary judgment or, in the alternative, to dismiss Financial Investment’s complaint. Defendants Joe Flesher and Ray Simmons moved for summary judgment in their favor on all counts of Financial Investment’s complaint, as well as partial summary judgment in their favor on Count 1 of their counterclaims.

After a hearing on these motions, the trial court entered an order in favor of these defendants that dismissed Counts 1 and 2 of Financial Investment’s complaint because they failed to state a cause of action as a matter of law. When the trial court announced its ruling on these counts at the hearing, it specifically noted that it was not necessary for it to make factual determinations to dismiss these counts.

The trial court also dismissed Counts 4 and 5 because Financial Investment lacked standing to bring the claims asserted in these counts. With regard to Count 3, the trial court gave Financial Investment seven days from the date of its order to properly plead a cause of action for slander of title. It further stated that it would grant a dismissal on Count 3 if Financial Investment failed to properly amend its complaint within this time period. Finally, the trial court denied Flesher’s and Simmons’ motions for partial summary judgment on their counterclaims. The trial court did not designate its order on these motions as a final judgment and did not expressly determine “that there is no just reason for delay.” See OCGA § 9-11-54 (b).

In this direct appeal, Financial Investment asserts that the trial court erred when it dismissed Counts 1, 2, and 4 of its complaint against Rex Cornelison, Judy Cornelison, Joe Flesher, and Ray Simmons. Appellees contend this appeal should be dismissed because a direct appeal under OCGA § 5-6-34 is not authorized. We agree.

OCGA § 9-11-54 (b) provides:

Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In this case, the trial court’s order dismisses only a portion of the plaintiff’s complaint against a portion of the named defendants. Additionally, the counterclaims of two defendants remain to be adjudicated below.

Because the trial court’s order does not include the express determinations required by OCGA § 9-11-54 (b) and Financial Investment failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), we do not have jurisdiction and accordingly dismiss this appeal. Hadid v. Beals, 233 Ga. App. 5 (502 SE2d 798) (1998). In so holding, we note that a direct appeal under OCGA § 9-11-56 (h) is not available in this case because matters in abatement, such as standing and real party in interest issues, cannot form a proper basis for entry of summary judgment. See Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994).

Decided April 28, 1999

Reconsideration denied May 25, 1999.

Morris & Witcher, Robert P. Witcher, Joseph H. King, Jr., for appellant.

Cornelison & Van Gelderen, Rex P. Cornelison III, for appellees.

Appeal dismissed.

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


text:
    A99A0041.
    TRAVIS PRUITT & ASSOCIATES, P. C. v. BOWLING.
    (518 SE2d 453)
   Johnson, Chief Judge.

Michelle Bowling sued Travis Pruitt & Associates, P. C. (“Pruitt”), a civil engineering firm, claiming Pruitt’s negligence in designing a drainage system for a neighboring subdivision caused flooding on her property. Pruitt moved for summary judgment on the ground that the statute of limitation expired. The trial court denied the motion. We granted Pruitt’s application for interlocutory review of the trial court’s decision. For the reasons set out below, we conclude that the trial court did not err in denying Pruitt’s motion for summary judgment.

Pruitt entered into a contract with Jolly Development Corporation in which Pruitt was to design roads, curbs, gutters, drainage culverts and related features for a new residential subdivision. All of these projects were substantially completed and accepted on November 9, 1992.

On or about October 29, 1993, Bowling’s property flooded. On October 20, 1997, Bowling sued Pruitt alleging negligence in the design of the subdivision’s drainage system. In its motion for summary judgment, Pruitt argued that the statute of limitation expired in November 1996, four years after the project was substantially completed. See OCGA § 9-3-30 (all actions for damage to realty must be brought within four years after the right of action accrues). Bowling disagreed, contending that her cause of action did not accrue until her property was damaged. The trial court agreed with Bowling and denied the motion.

1. Pruitt contends the trial court erred in determining that Bowling’s cause of action accrued on the date her property was first damaged. We agree with the trial court.

As Pruitt argues, normally a cause of action based on negligent design and construction accrues and the statute of limitation begins to run at the time the project is substantially completed. Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1994); Hanna v. McWilliams, 213 Ga. App. 648 (446 SE2d 741) (1994). At the same time, however, a cause of action in negligence accrues and the statute of limitation begins to run when there is a negligent act coupled with aproximately resulting injury. U-Haul Co. &c. v. Abreu & Robeson, Inc., 247 Ga. 565, 566 (227 SE2d 497) (1981). The true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained her action to a successful result. Id. Bowling’s action could first have been successfully maintained when her property was first damaged.

The rule that a cause of action for a design defect accrues at the time of construction is based on the rationale that the defect gives rise to immediately ascertainable damages to the owner; thus, a cause of action could be successfully maintained by the owner of defectively designed property at that time, when some damage first occurs. See Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 397 (1) (a) (287 SE2d 229) (1981). This rationale does not apply where the defect is in property owned by someone other than the plaintiff. Id. at 398. Bowling could not have successfully maintained a cause of action against Pruitt for negligent design or construction of neighboring property before there was any damage to her own property. We point out that the four-year statute of limitation set out in OCGA § 9-3-30 does not bar an action for property damage where the instrumentality causing the damage may have existed for many years, provided the damages sought to be recovered accrued within four years of the filing of the complaint. Rogers v. Western & Atlantic Railroad, 209 Ga. 450 (1) (74 SE2d 87) (1953).

The cases cited by Pruitt do not require a different result. All but one of those cases, unlike the instant case, involves alleged negligent design and construction of the plaintiff’s own property. See U-Haul, supra (subsequent owner of building barred from suing engineer for cracks developing in building decades after construction); Corp. of Mercer Univ., supra (owner of property required to sue manufacturers of products used in construction of its buildings within four years of project completion); Wellston Co. v. Sam N. Hodges, Jr. & Co., 114 Ga. App. 424 (151 SE2d 481) (1966) (property owner’s cause of action against its contractor and architect accrued when the negligent acts occurred, not when building collapsed); Fort Oglethorpe Assoc. II, Ltd. v. Hails Constr. Co. &c., 196 Ga. App. 663 (396 SE2d 585) (1990) (owner of shopping center barred from suing contractor for faulty roof construction more than four years after substantial completion); Heffernan v. Johnson, 209 Ga. App. 139, 140 (1) (433 SE2d 108) (1993) (property owner’s action against contractor who installed tile barred because not filed within four years of installation); Hanna v. McWilliams, supra (statute of limitation barred homeowner’s suit against contractor and fireplace seller for defective fireplace installed in his home more than four years earlier). Furthermore, in each of those cases the damage was done to the plaintiff’s property at the time of construction. That was not the case here.

Decided May 25, 1999 — Cert. applied for.

Wasson, Sours & Harris, W. Hensell Harris, Jr., David R. James, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Jeffrey F. Leasendale, for appellee.

The only case relied upon by Pruitt involving a neighboring landowner’s complaint was filed five years after construction and five years after her property was damaged, which action would have been time-barred under either theory. Griffin v. Kangaroo, Inc., 208 Ga. App. 190, 192 (3) (430 SE2d 82) (1993). We note that because the instant case involves the issue of when the plaintiff’s property was damaged, rather than when she discovered the damage, those cases addressing the applicability of the discovery rule to property damage cases are not controlling. See, e.g., Hanna, supra; Smith v. Branch, 226 Ga. App. 626, 627 (2) (a) (487 SE2d 35) (1997).

2. Because the action was filed within the applicable four-year statute of limitation, we need not consider Pruitt’s argument regarding the eight-year limitation period set forth in the statute of repose (OCGA § 9-3-51).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A0343.
    In the Interest of B. G. et al., children.
    (518 SE2d 451)
   McMurray, Presiding Judge.

This is the third appearance of this matter before this Court. B. G. and R. G. were removed from their mother’s home in 1993, upon being found to be deprived (based on evidence that they were living in unsanitary conditions and that their mother had chased one of the children with a maul) and placed in the temporary legal custody of the Gwinnett County Department of Family & Children Services (“DFCS”). The Juvenile Court of Gwinnett County entered an order terminating the mother’s parental rights in 1996 and committed the children to DFCS’s custody. This judgment was reversed on March 14, 1997, in In the Interest of B. G., 225 Ga. App. 492 (484 SE2d 293), and the case was remanded for a new hearing to determine whether the mother’s parental rights should be terminated. Because DFCS’s temporary legal custody of B. G. and R. G. expired during this appeal in December 1996, DFCS moved to extend its temporary legal custody in the proceedings. DFCS also filed new deprivation petitions in the Gwinnett County Juvenile Court, apparently seeking the same effect. The Juvenile Court of Gwinnett County granted DFCS’s motion to extend its temporary legal custody of the children and found it unnecessary to address DFCS’s new deprivation petitions. This order was reversed in In the Interest of B. G., 231 Ga. App. 39 (497 SE2d 572), and the case was remanded for the juvenile court to consider the validity of DFCS’s new (second) deprivation petitions. Upon remand, DFCS filed, on June 11, 1998, another (third) set of petitions in the Juvenile Court of Gwinnett County alleging B. G. and R. G. to be deprived. The juvenile court conducted hearings on these petitions and later entered an order finding that B. G. and R. G. would be deprived if they were returned to their mother. This appeal followed. Held:

OCGA § 15-11-15 (a) provides that, in juvenile proceedings where deprivation is alleged, venue is proper in the county in which the child resides, or “in the county in which the child is present when it is commenced.” The juvenile court’s deprivation order indicates proper venue in Gwinnett County, Georgia, based on both provisions. The mother challenges this determination, asserting that venue was not proper in Gwinnett County because B. G. and R. G. were neither “present” in Gwinnett County as contemplated by OCGA § 15-11-15 (a) when the deprivation petitions were filed on June 11, 1998, nor were they residing in Gwinnett County at this time. We agree.

Venue Based on Residency. A juvenile’s legal residence generally controls when determining where the child resides for purposes of establishing venue under OCGA § 15-11-15 (a). In the Interest of A. M. C., 213 Ga. App. 897, 899 (446 SE2d 760). “‘One’s legal residence for the purpose of being sued in this state is generally the same county as his or her domicile.’ [Cit.]” In the Interest of A. M. C., 213 Ga. App. 897, 899, supra. In the case sub judice, it is undisputed that neither B. G. nor R. G. was residing in Gwinnett County when DFCS filed the deprivation petitions which are the basis of the case sub judice. The children were residing and attending school in Banks County, Georgia (and had been for four to five years) when DFCS filed these petitions. Consequently, since DFCS did not have legal custody of the children when it filed the deprivation petitions on June 11, 1998, venue was not established in Gwinnett County based on the juvenile court’s findings that DFCS had physical, if not legal, custody of the children and that DFCS is a Gwinnett County resident. See In the Interest of A. M. C., 213 Ga. App. 897, 899, supra, where venue in a juvenile court delinquency proceeding was found to be in a county outside the subject child’s actual residency based on a presumption of residency premised on DFCS’s legal custody of the child in the jurisdiction of the delinquency proceeding.

Venue Based on Presence in County. The juvenile court’s deprivation order appears to premise venue in Gwinnett County based on B. G.’s and R. G.’s presence in that county on the day the deprivation petitions were filed, June 11, 1998. While B. G. and R. G. were taken to Gwinnett County on the day these deprivation petitions were filed (and returned to their home in Banks County the same day), we cannot say that such brief visits will always be a sufficient basis for establishing venue under OCGA § 15-11-15 (a). “An appellate court should interpret statutory provisions in a manner squaring with common sense and reasoning. [Cit.]” In the Interest of A. M. C., 213 Ga. App. 897, 898, supra. We believe OCGA § 15-11-15 (a)’s alternative venue provision — regarding venue in the county in which an allegedly deprived child is present when deprivation proceedings are commenced — was only intended to apply to any allegedly deprived child’s presence in a county, outside the child’s legal domicile, based on some immediate fortuitous exigency relating to the child’s alleged deprivation. To say otherwise would allow OCGA § 15-11-15 (a)’s alternative venue provision to be too broadly employed as a tool for arbitrary manipulation of venue of any juvenile deprivation proceedings to any Georgia county outside a subject child’s legal domicile.

Finding no immediate fortuitous exigency relating to B. G.’s and R. G.’s alleged state of deprivation placing these children in Gwinnett County on the day the subject deprivation petitions were filed, the juvenile court erred in basing venue on B. G.’s and R. G.’s brief visit to Gwinnett County on the day the deprivation petitions were filed. Accordingly, the juvenile court’s deprivation order must be reversed and the case remanded for transfer proceedings to Banks County, Georgia, in accordance with OCGA § 15-11-15 (a).

Judgment reversed and case remanded with direction.

Andrews and Ruffin, JJ, concur.

Decided May 25, 1999.

Lenzer & Lenzer, Robert W. Lenzer, Thomas R Lenzer, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Cheeley & King, Joseph E. Cheeley III, Deborah L. Stone, for appellee.

       The mother’s conduct toward B. G. and R. G. resulted in her convictions for reckless conduct and cruelty to children. These convictions were overturned in Brewton v. State, 266 Ga. 160 (465 SE2d 668), and Brewton v. State, 216 Ga. App. 346 (454 SE2d 558).


author: Smith, Judge.

text:
    A99A0572.
    STOKES v. THE STATE.
    (518 SE2d 447)
   Smith, Judge.

After the trial court denied his motion to suppress, Timothy Tyrone Stokes was convicted in a bench trial of trafficking in cocaine. His motion for new trial was denied, and he appeals, asserting that his motion to suppress should have been granted. Because the officers who approached Stokes did not go beyond the permissible scope of inquiry, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). In this case, a Richmond County sheriff’s investigator was the only witness at the suppression hearing, and no new information regarding Stokes’s arrest was adduced at trial.

Construed to support the trial court’s decision, the evidence shows that on June 27, 1996, at approximately 3:52 p.m., the officer and his partner were “just riding around known drug areas” and pulled into the parking, lot of a convenience store and gas station. The property was placarded with “no loitering” signs, and the property owner had asked the officers to try to keep people from loitering there. In the parking lot, the officers saw a burgundy Pontiac Grand Am with Stokes in the driver’s seat and another man standing next to the driver’s door, leaning on the car. The men were not near the gas pumps or the store entrance, and “[a]s far as I could tell they were loitering. They were just on the parking lot not doing anything but talking.”

The officers approached the car, identified themselves, and asked the men what they were doing. According to the officer who testified, the men “both kind of just looked at each other” and Stokes said that he was there to use the telephone. The car was parked approximately 20 feet from the telephones, and there were no other cars or people in the parking lot between it and the telephones. The officer then asked the man standing beside the car if he knew the man sitting in the car; he did not know Stokes’s name. Stokes also did not know the other man’s name. The officer “found that very odd, especially the way I’d first observed them. They seemed to be real intimate with each other.”

At that point, the officer asked Stokes if he would step out of the vehicle, and Stokes “said he didn’t mind.” In response to questioning from the trial court, the officer reiterated that he did not order Stokes out. He also testified that he asked Stokes to step out “for my own safety and my partner [’s] safety. He could have denied that and that would have been the end of it.”

When Stokes stepped out of the car, the officer saw a plastic bag containing what appeared to be crack cocaine and powdered cocaine beside the seat and a scale sticking out from beneath the seat. Stokes was arrested, and a field test performed on the contents of the bag was positive for the presence of cocaine.

After hearing the evidence, the trial court denied Stokes’s motion to suppress. On appeal, Stokes argues that he was unlawfully “seized” by the officer before the drugs were discovered. We disagree.

At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief “stops” or “seizures” that require reasonable suspicion; and “arrests,” which can only be supported by probable cause. Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987).

A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. Verhoeff, supra at 503. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. See Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997). Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave. Moran v. State, 170 Ga. App. 837, 840 (1) (318 SE2d 716) (1984).

Stokes’s actions and behavior, in combination with his presence in a known drug area and inability to name the person with whom he was in “real intimate” conversation a few moments before, might be sufficient to produce a reasonable, articulable suspicion of criminal conduct. See Thompson v. State, 230 Ga. App. 131, 132 (495 SE2d 607) (1998) (appellant did not know name of supposed uncle he was visiting). But we need not reach this issue, because the officer’s actions were within the permissible scope of a first-tier approach and inquiry to a citizen.

It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a “stop” or “seizure” but rather “clearly falls within the realm of the first type of police-citizen encounter.” McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). In addition, it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.

Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.

(Citations and punctuation omitted.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). Asking an individual to step outside for safety reasons is a permissible action that does not rise to the level of a seizure. Pickens v. State, 225 Ga. App. 792, 793 (1) (a) (484 SE2d 731) (1997). This court also has recognized a distinction between an officer’s “appropriately deferential” request for cooperation and a demand rising to the level of a stop. Owens v. State, 192 Ga. App. 671, 673 (1) (385 SE2d 761) (1989).

Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997), relied on by Stokes, is inapposite. Barnes was standing alone in a “high stop and cop” area when officers approached him because they observed something in his hand. Barnes was uncooperative and “began walking away” when approached. The officers stopped him, Barnes “started tussling” with the officers, and they searched him, finding cocaine. This court held that the trial court erred in denying Barnes’s motion to suppress, noting that he “was free to walk away and refuse to answer or ignore the officers’ request to speak unless the police had a particularized and objective basis for suspecting that he was involved in criminal activity.” Id. at 46. This court concluded that the police failed to articulate any such basis. Id. Similarly, in State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168) (1996) (physical precedent only), a police officer was not satisfied with Banks’s responses to questioning, demanded that he take his hand out of his pocket, and conducted a pat-down search. We held that this “stop” or “seizure” required an articulable suspicion, which the officer did not provide.

Decided May 25, 1999.

Fleming, Blanchard, Jackson & Durham, Richard A. Ingram, Jr., for appellant.

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

In contrast, the evidence presented here shows a first-tier encounter, neither requiring reasonable suspicion nor invoking Fourth Amendment protection for Stokes. The record reflects that the officers approached Stokes’s already parked car to inquire what was going on, and Stokes and his companion readily responded. Nothing in the record shows that the officer threatened or coerced Stokes, or that he restrained Stokes’s movements in any way. While an order or instruction to roll down a car window or open a car door may constitute physical force or a show of authority sufficient to constitute a “seizure,” see generally State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975), Stokes’s car window was already open, and he willingly spoke with the officer. The uncontradicted evidence shows that the officer requested rather than ordered that Stokes exit the car, and that Stokes “said he didn’t mind” and did so. The request and Stokes’s response were part of a conversational and “casual encounter,” and the record demonstrates “that defendant had no objective reason to believe that he was not free to end the conversation . . . and proceed on his way.” Verhoeff, supra at 504. For this reason, Stokes’s claim that he was “seized” when the officer approached the car and made a simple inquiry followed by a request is not supported by the evidence in the record, and the trial court’s ruling denying the motion to suppress was not clearly erroneous.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A99A0669.
    FAVORS v. THE STATE.
    (518 SE2d 444)
   Ruffin, Judge.

A DeKalb County jury convicted Demetrius Favors of aggravated assault, but acquitted him of armed robbery. The trial court denied Favors’ motion for new trial and Favors appeals, contending that the evidence was insufficient to support his conviction and that he received ineffective assistance of trial counsel. Favors’ contentions lack merit, and we affirm.

1. On appeal from a criminal conviction, this Court neither weighs the evidence nor determines witness credibility, but merely determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Warren v. State, 232 Ga. App. 488 (2) (502 SE2d 336) (1998). The defendant no longer enjoys a presumption of innocence, and we construe the evidence in the light most favorable to upholding the verdict. Id.; Rivers v. State, 229 Ga. App. 12, 14 (2) (493 SE2d 2) (1997).

So construed, the evidence shows that on September 9,1995, the victim, John Humphrey, was paged by his ex-girlfriend, Tonya Broadnax. Rather than phoning Broadnax, Humphrey and his friend, Winifred Hill, drove to Broadnax’s house. Humphrey went inside, spoke briefly with Broadnax, and left the house.

Favors, who also had dated Broadnax, was at Broadnax’s house, too. Favors followed Humphrey out of the house to Humphrey’s car. According to Hill, Humphrey and Favors exchanged curse words as they approached the car. Both Humphrey and Favors took off their shirts as if preparing to fight. Favors wore a gun holster with a loaded pistol under his shirt. Humphrey testified that he decided not to fight Favors after he saw the gun. Both Humphrey and Hill testified that Hill separated Humphrey and Favors and that Humphrey got back into the car.

Once Humphrey was seated in the driver’s seat, Favors broke the window of the car. According to Humphrey, Favors used the pistol to break the window and then put the gun to Humphrey’s head, stating “I don’t know how you going to get out of here. I ought to go on and kill you.” Hill recalled that Favors “said something like ‘what you going to do now, mother f — er. What you going to do now. I got this sh-t in your face.’ ” Both Hill and Humphrey testified that Favors proceeded to hit Humphrey in the face with the gun. Although Humphrey’s car began rolling slowly backwards, Favors stayed with the car and continued hitting Humphrey until the car ran into some trees. The emergency room doctor who treated Humphrey testified that, when Humphrey arrived at Grady Hospital, his eyes were almost swollen shut and his face was lacerated. Subsequent x-rays showed that Humphrey had a fracture of his right eye socket and a broken cheek bone.

Favors, testifying in his own behalf, admitted that he followed Humphrey to his car, but said that he was just trying to shake Humphrey’s hand. According to Favors, he punched Humphrey with his fist only after Humphrey pushed him. Although Favors admitted that he had a gun, he denied hitting Humphrey with it. Rather, he said that he took the gun out of the holster only when he thought Humphrey was reaching for a gun in the car.

A person is guilty of assault if he “[c]ommits an act which places another in reasonable apprehension of immediately receiving violent injury.” OCGA § 16-5-20 (a) (2). If a deadly weapon is used to place another in fear of receiving a violent injury, the offense is elevated to aggravated assault. Doss v. State, 166 Ga. App. 361, 362 (1) (304 SE2d 484) (1983). A pistol is a deadly weapon. Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981); Veal v. State, 191 Ga. App. 445, 446 (2) (382 SE2d 131) (1989). “[T]here is no requirement that the victim actually be injured by the deadly weapon before a conviction for aggravated assault is authorized.” Gilbert v. State, 209 Ga. App. 483, 484 (1) (433 SE2d 664) (1993). Thus, by pointing a pistol at Humphrey’s head, Favors committed the offense of aggravated assault. Accordingly, there was sufficient evidence for a rational finder of fact to find Favors guilty of aggravated assault beyond a reasonable doubt.

2. Favors challenges the effectiveness of trial counsel in failing to file any written request to charge on the offense of battery, which Favors contends is a lesser included offense of aggravated assault. During deliberations, the jury submitted a request for the definition of battery. After discussing the matter with trial counsel, the trial court instructed the jurors regarding simple battery. Favors now claims that, given the extent of Humphrey’s injuries, his trial counsel rendered ineffective assistance in failing to request a charge on battery rather than simple battery. We disagree.

To establish a claim of ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), Favors bears the burden of showing that his trial counsel’s actions fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his counsel’s deficient performance, the result of the trial would have been different. Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995). In meeting his burden, Favors must overcome a strong presumption that his trial counsel’s actions fell within a wide range of reasonable professional conduct. Milliken v. State, 230 Ga. App. 810, 813 (2) (b) (498 SE2d 127) (1998).

Decided May 25, 1999.

Cynthia A. Price, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Robert M. Coker, Assistant District Attorneys, for appellee.

Favors essentially contends that the pistol-whipping of Humphrey could have constituted either assault or battery, which is defined as “intentionally caus[ing] substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). As Favors caused visible bodily injury to Humphrey, the jury could have convicted Favors of battery. Fulton v. State, 232 Ga. App. 898, 899 (1) (503 SE2d 54) (1998). However, Favors did more than just hit Humphrey. Before hitting him, Favors placed a loaded gun next to Humphrey’s head and uttered threatening words. This separate act, completed before Favors began striking Humphrey, constitutes aggravated assault. See Malone v. State, 226 Ga. App. 185, 186-187 (486 SE2d 57) (1997). Unlike the pistol-whipping incident, battery is not a lesser included offense of this separate act of aggravated assault. Mitchell v. State, 187 Ga. App. 40, 44 (5) (369 SE2d 487) (1988). This is true notwithstanding the fact that a battery subsequently occurred. Id. Because battery was not a lesser included offense in Favors’ act of holding a loaded gun to Humphrey’s head, the trial court was not required to charge the jury with regard to battery. See Hall v. State, 264 Ga. 85, 86 (4) (441 SE2d 245) (1994). Accordingly, Favors’ attorney did not render ineffective assistance in failing to request such a charge. Slaughter v. State, 227 Ga. App. 739, 741-742 (3) (a) (490 SE2d 399) (1997).

Judgment affirmed.

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

       The testimony is undisputed that the gun was fired at some point during the altercation, but there is no evidence that Favors fired the gun toward Humphrey.


author: Eldridge, Judge. Pope, Presiding Judge,

text:
    A99A0798.
    GREENE COUNTY v. NORTH SHORE RESORT AT LAKE OCONEE, LLC.
    (517 SE2d 553)
   Eldridge, Judge.

North Shore Resort At Lake Oconee, LLC (“North Shore”), plaintiff-appellee, owns and operates a business located on the shore of Lake Oconee in Greene County, defendant-appellant, and a resort business has operated there since 1988, when the business was known as Carey Station Resort, the predecessor in title. North Shore bought Carey Station Resort as a going business and property in 1996, changing its name to North Shore.

North Shore is located within an area presently zoned LR-2 pursuant to the Greene County regulations, which had an effective date of April 19, 1989. However, the date of passage of the manufactured home amendment was August 8, 1990. The entire Greene County regulation pertaining to zoning was not stipulated but was. placed in evidence. In fact, even the stipulation of “LR-2” does not reveal what other uses are permitted under such zoning, but the LR-1 and LR-2 regulations do.

The August 8, 1990 amendment of the 1984 Land Development Regulations was also placed in evidence, along with the definitions section and the LR-1 and LR-2 zoning provisions. “Dwelling, One Family” is defined as “a detached building designed for or occupied by one family.” “Dwelling Unit” is defined as “one or more rooms with kitchen facilities designed as a unit for occupancy by one family for cooking, living and sleeping purposes.” “Family” is defined as “one or more persons occupying a single dwelling unit, provided that unless all members are related by blood or marriage, no such family shall contain over five (5) persons, but further provided that domestic servants employed on the premises may be housed on the premises without being counted as a family or families.” “Building” is defined as “[a]ny structure intended for shelter, housing, or enclosure of persons, animals, or chattels.” “Park trailer” is not defined; however, “travel trailer” is defined as “a vehicle portable structure built on a chassis, designed to be used as a temporary dwelling for travel and recreational purposes, having a body width not to exceed eight (8) feet.” “Structure” is defined as “anything constructed or erected with a fixed location on the ground. Among other things, structures include buildings, mobile homes [(‘manufactured homes’)], walls, fences, billboards, and poster panels.”

At the time Carey Station Resort was constructed in 1988, “[m]obile [h]ome” was defined as “a detached residential dwelling unit designed for transportation after fabrication on streets or highways on its own wheels or a flatbed or other trailer, and arriving at the site where it is to be occupied as a dwelling complete and ready for occupancy except for minor and incidental unpacking and assembly operations, location on jacks or other temporary or permanent foundations, connections to utilities, and the like. A travel trailer is not to be considered a mobile home.”

On March 19, 1997, Vivian Breeding, Director of Greene County Planning & Zoning, notified North Shore that: (1) the property was within LR-2 zoning; (2) LR-2 zoning permits use of the property as a campground; (3) the only limitation on the number of campsites that can be developed on the property is availability of septic tanks to service the sites; and (4) the sites may include recreational vehicle pads. Mobile home parks are permitted within LR-2, and one mobile home may be placed on each separately owned land, other than a mobile home park.

On July 15, 1997, Greene County advised North Shore that Greene County considered that it was operating a “Manufactured Home Park,” i.e., mobile home park, within the meaning of the county regulations; that it was subject to regulation as such; and that evidence of approved plats for “Carey Station Resort” could not be found. Greene County based such position on the contention that: (1) a recreational vehicle, “Park Trailer,” is actually a “Manufactured Home” and not a “Travel Trailer”; and (2) a “Park Trailer” is a long-term, single family dwelling.

The only portion of the Greene County amended regulations stipulated was Paragraph 7.2 (v) defining “Manufactured Home”:

A structure transportable in one (1) or more sections, designed to be used for long term occupancy as a single-family dwelling. Such a dwelling shall be constructed in accordance with the Federal Manufactured Home Construction and Safety Standards, which came into effect June 15, 1976, and shall bear an insignia issued by the U. S. Department of Housing and Urban Development (HUD). The term “manufactured home” shall replace the term “mobile home” wherever the latter term is found in the aforesaid Code.

North Shore contends that park trailers are recreational vehicles (“RVs”), including pop-up campers, fifth wheel straight trailers/park trailers, and motor homes. RVs are registered with the Department of Motor Vehicles as recreational vehicles. Only RVs are allowed into North Shore.

A park trailer has a fifth wheel for hauling and is designed for greater mobility and movement than a manufactured home, but it is left on a pad on its wheels for a longer period of time than other RVs. A park trailer must be removed from the premises for two weeks each year, which demonstrates that it remains readily movable. A park trailer is not manufactured to HUD specifications for a manufactured home and has a maximum area of 400 square feet. The wheels are not removed from the chassis of a park trailer, as are wheels from a manufactured home, and a park trailer is not placed on a permanent foundation.

The campsites within North Shore are subject to certain declarations of covenants, conditions, and restrictions for the North Shore Resort at Lake Oconee (“declarations”), which are recorded in the deed records of the Superior Court of Greene County. The declarations provide that the property shall be used solely for recreation, including camping, picnicking, hiking, boating, fishing, sports and other recreational uses. A lessee is specifically and expressly prohibited from occupying or using any portion of the property for residential purposes or to claim residency in Greene County, Georgia, based upon such use. No permanent dwelling may be placed on the property; no lessee can occupy the property on a permanent basis; and the property must be vacated for two weeks out of each calendar year. In addition to the declaration prohibitions, the lease on all property provides that (1) a campsite may be used only for vacation purposes; (2) no permanent dwellings may be erected on any site; and (3) the site cannot be a principal dwelling or basis for a residency claim. Lessees are subject to the covenants and any other rules and regulations of North Shore, which prohibit storage buildings and propane tanks installed on a campsite. Thus, lessees must agree to temporary occupancy at North Shore in temporary park trailers.

On September 15, 1997, Greene County again notified North Shore that it was violating the county ordinance by operating a mobile home park.

North Shore intended to lease the sites for placement of “Park Trailers,” and had already leased some sites for the placement of “Park Trailers.” Because of the position of Greene County that park trailers are manufactured homes and that North Shore must obtain a permit for a manufactured home park to lease pads for park trailers, North Shore was unable to lease the pads and was uncertain of its rights.

On October 18, 1997, North Shore filed a complaint seeking injunctive relief against Greene County and seeking a temporary restraining order (“TRO”). On February 5, 1998, the trial court denied the TRO. On April 28, 1998, North Shore amended its complaint to seek a declaratory judgment.

On September 18,1998, after a hearing, the trial court entered a declaratory judgment that declared that a park trailer is not a manufactured home and that a park trailer is not subject to regulation by Greene County as a manufactured home. The trial court filed no findings of fact and conclusions of law with the judgment; therefore, on October 5, 1998, Greene County filed a motion requesting that the trial court make findings of fact and conclusions of law. On October 8, 1998, the trial court denied such request. On Monday, October 19, 1998, Greene County filed its notice of appeal of the judgment and of the denial of its motion for findings of fact and conclusions of law. Held:

1. Greene County contends that the trial court erred in failing to rule on the admissibility of expert testimony from plaintiff’s witness, Wright, regarding whether he was, in fact, an expert witness or whether his opinion was that of a lay person and on the relevancy of such opinion. We do not agree.

This was a non-jury trial where the trial court sat as trier of fact. The record is silent where the trial court did not rule on the record as to objections on admissibility of evidence and made no findings of fact indicating how the trial court ruled on such evidence.

“Where evidence is heard by the judge alone and without the intervention of a jury, it will be presumed that the judge considered only legal and admissible evidence, unless the record clearly indicates that the contrary is true. [Cit.]” Barger v. Barger, 238 Ga. 334, 335-336 (9) (232 SE2d 567) (1977). The trial court, sitting without a jury, can eliminate the wheat from the chaff with reference to irrelevant and immaterial evidence, and it is presumed that in consideration of the evidence, legal testimony was selected. The judgment will not be reversed where there is legal evidence to support it. In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979); Nelms v. Dorsey, 168 Ga. App. 452, 454 (2) (309 SE2d 426) (1983). Where the trial court alone tries the case, the presumption is that the judgment was rendered only upon competent and legal evidence before him, and even if illegal evidence was admitted, it does not require a new trial. United Rentals Systems v. Safeco Ins. Co., 156 Ga. App. 63, 65-66 (1) (273 SE2d 868) (1980); Nelliger v. Atlanta Baggage & Cab Co., 109 Ga. App. 863, 865-866 (3) (137 SE2d 566) (1964). Thus, this Court presumes the correctness of the trial court’s judgment without inferring reversible error absent evidence of harm. Owens v. Generali U. S. Branch, 224 Ga. App. 290, 295 (4) (480 SE2d 863) (1997).

2. Greene County contends that the trial court abused its discretion in denying its request to make findings of fact and conclusions of law in support of its judgment. We do not agree.

OCGA § 9-11-52 provides for findings of fact and conclusions of law when the trial court tries a case without a jury. If either party prior to judgment or ruling on interlocutory injunctions or in all non-jury trials makes a motion for findings of fact and conclusions of law to be made by the trial court, then the trial court shall “find the facts specially and shall state separately its conclusions of law,” because such provision is mandatory under the 1987 amendment upon timely request made on the record prior to judgment. OCGA § 9-11-52 (a); Poor v. Leader Fed. Bank for Savs., 221 Ga. App. 889 (1) (473 SE2d 563) (1996); see generally Motes v. Stanton, 237 Ga. 440, 441 (228 SE2d 831) (1976); Githens v. Githens, 234 Ga. 715, 716 (217 SE2d 291) (1975); Frasier v. Dept. of Human Resources, 159 Ga. App. 1 (282 SE2d 667) (1981). “The purpose of findings of fact is threefold: [(1)] as an aid to the trial judge’s process of adjudication; [(2)] for purposes of res judicata and estoppel by judgment; and [(3)] as an aid to the appellate court on review.” (Citation and punctuation omitted.) Gen. Teamsters Local &c. 528 v. Allied Foods, 228 Ga. 479, 480 (186 SE2d 527) (1971); Spivey v. Mayson, 124 Ga. App. 775 (186 SE2d 154) (1971); accord Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977). Absent a timely request prior to the entry of the order or judgment, the trial court does not err in failing to make findings of fact and conclusions of law as a part of the judgment. See Middlebrooks v. Fleet Finance, 217 Ga. App. 263 (2) (456 SE2d 627) (1995); Cage v. Chase Home Mtg. Corp., 212 Ga. App. 861 (1) (443 SE2d 504) (1994); Burks v. First Union Mtg. Corp., 209 Ga. App. 41 (1) (432 SE2d 822) (1993).

Since Greene County requested findings of fact and conclusions of law only after the entry of judgment, it was within the discretion of the trial court whether to grant or deny such request. OCGA § 9-11-52 (c); Bagley v. Robertson, 265 Ga. 144, 145-146 (454 SE2d 478) (1995). Where the case is complex and has an extensive record, it would be an abuse of discretion to deny such post-judgment motion when made at the time judgment was entered, because such refusal to make specific factual findings makes appellate review impossible. Gold Kist v. Wilson, 220 Ga. App. 426, 427 (1) (469 SE2d 504) (1996); Zumpano Enterprises v. Ga. Tile Distrib., 200 Ga. App. 563, 564 (408 SE2d 813) (1991). However, such was not the case here, where the issues and the record were both uncomplicated. Gold Kist v. Wilson, supra at 426.

A motion made under [OCGA] § 9-11-52 (c) is, in essence, a vehicle to allow a party to extend the time for a trial court to amend its findings beyond the end of the term. Neither [OCGA] § 9-11-52 (c) nor any other section of the Civil Practice Act changes the rule that a trial judge has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion. ... A superior court retains plenary control over judgments entered during the term at which they are entered, and in the exercise of a sound discretion may [amend them by adding omitted findings of fact and conclusions of law], and such discretion will not be controlled unless manifestly abused. . . . [T]his court will not reverse his decision unless such discretion is manifestly abused.

(Citations and punctuation omitted; emphasis in original.) Bagley v. Robertson, supra at 145-147. There being no showing of a manifest abuse of discretion, the trial court’s ruling is affirmed.

3. Greene County contends that the trial court erred in finding that “park trailers” are not “manufactured homes” under the Greene County Regulations. We do not agree.

In 1990, Greene County, in developing its new definition of manufactured homes, incorporated by reference Federal Manufactured Home Construction & Safety Standards. 24 CFR § 3282.8 governs “manufactured homes.” However, “recreational vehicles” are expressly excluded from “manufactured homes,” and are defined in the regulations as:

(1) [b] uilt on a single chassis; (2) 400 square feet or less when measured at the largest horizontal projection; (3) [s] elf-propelled or permanently towable by a light duty truck; and (4) [d]esigned primarily not for use as a permanent dwelling, but as temporary living quarters for recreational, camping, travel, or seasonal use.

The Greene County Regulations, in this definition of “manufactured home,” rely upon such Federal Manufactured Home Construction & Safety Standards, which came into effect June 15, 1976. See 24 CFR § 3282; Greene County Regs. Par. 7.2 (v). Thus, Greene County incorporated by reference “recreational vehicles” as excluded from its definition of “manufactured homes,” because the federal standards, used in the definition of “manufactured homes,” specifically exclude “recreational vehicles” from being subject to such standards. 24 CFR § 3282. The LR-2 zoning requires of an individual “manufactured home” that “[t]he unit is supported under all exterior walls by a permanent foundation and the undercarriage is completely enclosed,” but also provides “that sites may include Recreational Vehicle pads.” This regulation is inconsistent unless “recreational vehicles” are not treated as “manufactured homes.”

Thus, the regulations are ambiguous and in conflict on their face, because the definition of “manufactured home” is so overly broad that it seems to include all “travel trailers” and “recreational vehicles” within its definition, unless the regulations are read to specifically exclude them. However, at the same time, the definition of “travel trailers” excludes itself specifically from “manufactured homes,” and the definition of “travel trailers” is broad enough to include all “recreational vehicles.” Further, LR-2 requires that “manufactured homes” have a permanent foundation and that the undercarriage be covered, but that a “recreational vehicle” may sit only on a “recreational vehicle pad,” because the “recreational vehicle” is intended to be mobile. A “manufactured home” is a structure, but a “structure” is anything “constructed or erected with a fixed location on the ground, or attached to something having a fixed location to the ground.” (Emphasis supplied.) However, a “travel trailer” is “a vehicular portable structure built on a chassis, designed to be used as a temporary dwelling for travel and recreational purposes, having a body width not exceeding eight (8) feet,” for normal highway travel. (Emphasis supplied.) Clearly, a “travel trailer” is not intended by the regulations to be treated as a “manufactured home,” because it is both designed and used for purposes requiring mobility, i.e., used temporarily for travel, recreation, camping, or seasonal use.

A clear, plain-meaning, unambiguous ordinance is not to be construed by the court; however, where the ordinance is in fact, ambiguous, so as to appear to be in conflict with its own provisions, then the court will construe the ordinance to determine its true intent. City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970). The courts, in interpreting ordinances, must look for the intent of the governing body and construe the ordinance to effectuate that intent. All words, except words of art, shall be given their ordinary signification. City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991).

“In construing an ordinance or resolution of a governmental unit, if the language is susceptible of more than one construction, that construction is preferred which will render it valid rather than invalid.” Language in an ordinance will be given a reasonable and sensible interpretation in order to carry out legislative intent and render an ordinance valid.

(Citations omitted.) Mayor &c. of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980).

But where an ambiguity exists either because of uncertainty in the meaning of words, conflicts with previous laws, or conflicts between different clauses in the same statute, courts should look beyond the verbiage and discover the intent. While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words.

(Citation and punctuation omitted.) Jones v. City of College Park, 223 Ga. 778, 780-781 (158 SE2d 384) (1967). “It is the duty of the court in construing an ambiguous statute to give it a construction, if the language permits, that will sustain the Act, rather than a construction that will render it invalid.” Id. at 782. “All [ordinances] are presumed to be enacted . . . with full knowledge of the existing condition of the law and with reference to it; [ordinances] are therefore to be construed in connection and in harmony with the existing law.” (Citation and punctuation omitted.) McPherson v. City of Dawson, 221 Ga. 861, 862 (148 SE2d 298) (1966). Therefore, an ordinance “must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975); accord Osborn v. State, 161 Ga. App. 132 (291 SE2d 22) (1982). This can be done here only if “travel trailers” and “recreational vehicles” are excluded from the definition of “manufactured homes.”

By objective standards, a “travel trailer” is intended to be a vehicular portable trailer built on a chassis that is designed and intended to be capable of frequent moves, with a maximum width of eight feet for highway travel, which is within normal highway width limitations, and is not designed to be fixed to the ground by a foundation, but to sit on a recreational vehicle pad so that it can be easily moved. OCGA § 32-6-23. “Manufactured homes” come in widths from eight to sixteen feet wide; two can be joined to form a “double wide.” The definition also contains a subjective standard that is entirely dependent upon the use, i.e., “to be used as a temporary dwelling.” A reasonably prudent person would use as a temporary dwelling what was designed for temporary use, although such temporary dwelling also may be used as “a building designed or used for permanent living quarters for one or more families or individuals.” Therefore, the objective design of the trailer for normal use controls, rather than the subjective intent of the user. Thus, travel and recreational design determines the temporary nature of the trailer, notwithstanding that there may be those individuals who may use it as a permanent dwelling. Since the definition of “manufactured home” incorporates by reference the federal standards for “manufactured homes,” then it also incorporated by reference that portion of the federal regulations defining “recreational vehicles.” 24 CFR § 3282.8 (g). Such definitions are not in conflict with the definition of “travel trailer,” which is more specific, i.e., (1) “[b]uilt on a single chassis”; (2) “400 square feet or less”; (3) “permanently towable by a light duty truck”; and (4) “[d]esigned primarily not for use as a permanent dwelling but as a temporary living quarters for recreational, camping, travel, or seasonal use.”

“Travel trailers” or “recreational vehicles” define and describe a “park trailer,” because a “park trailer” is 400 square feet or less, is pulled by a pickup truck, and is designed to be moved from the premises once a year for at least two weeks; this does not describe a “manufactured home.” A “recreational vehicle” or “travel trailer” must have a registration and license tag. OCGA § 40-2-20 (a). Since a “manufactured home” is not expected to be moved on the highway except for installation, then only the moving trucker must have a special license for the move. OCGA § 40-2-38 (b). “Mobile (manufactured) homes” require a specially issued certificate of title. OCGA § 40-3-31.1. Pages 205, 206, and 207 of Exhibit 10 show photographs of typical park trailers situated on recreational vehicle pads; pages 203 and 206 of Exhibit 10 show photography of a motor home/recreational vehicle situated on a recreational vehicle pad, which is a self-propelled recreational vehicle. The only real differences between a motor home and a park trailer are that a motor home is self-propelled and has a front and rear axle.

The leases, rules, regulations, and covenants for North Shore prohibit a park trailer from being used as a permanent dwelling, and to ensure that it is used only as a temporary dwelling, the lessee is required to move the park trailer off North Shore for at least two weeks each year. Despite the subjective intent of the lessee/park trailer owner, such recreational vehicle or travel trailer cannot be a permanent home, because it must be removed once a year for at least two weeks, when it is mobile. Since “mobile homes” under the 1990 regulations are now called “manufactured homes,” then park trailers, as travel trailers or recreational vehicles, are not manufactured homes. Likewise, the new definition of “manufactured homes” incorporated by reference federal standards for manufactured homes as part of its definition. Such federal standards expressly define and exclude recreational vehicles, and park trailers come within such exclusionary definitions of “recreational vehicles” and “travel trailers.” For the foregoing reasons the trial court correctly found that a park trailer, i.e., a travel trailer or recreational vehicle, was excluded from the restrictions on manufactured homes in its declaratory judgment.

Judgment affirmed.

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

Pope, Presiding Judge,

concurring specially.

I agree with all that is said in Divisions 1 and 2, but write separately as to Division 3. At issue in this case is whether North Shore is subject to regulation as a manufactured (mobile) home park or whether it should be classified as a “campground.” Resolution of this issue depends on whether “park trailers” should be classified as manufactured homes under the applicable Greene County regulations. As a practical matter, park trailers seem to fall somewhere between manufactured homes and recreational vehicles in terms of their components. The Greene County regulations do not contain a definition of “park trailers” or “recreational vehicles,” but do define a manufactured home as

Decided May 10, 1999

Reconsideration denied May 26, 1999.

Decker & Hallman, David C. Moss, for appellant.

Weinstock & Scavo, Steven M. Winter, Louis R. Cohan, for appellee.

a structure transportable in one (1) or more sections, designed to be used for long term occupancy as a single-family dwelling. Such a dwelling shall be construed in accordance with the Federal Manufactured Home Construction and Safety Standards, which came in to effect June 15,1976, and shall bear an insignia issued by the U. S. Department of Housing and Urban Development (HUD). . . .

North Shore presented evidence in this case that the “park trailers” located at its facility were not designed or manufactured for long-term occupancy, were not constructed in accordance with Federal Manufactured & Home Construction Standards and did not bear the HUD insignia. North Shore presented additional evidence that the park trailers located at its facility were built to specifications promulgated by the Recreational Park Trailer Industry and that it requires the trailers in its facility to carry a sticker signifying compliance with those standards. Moreover, the park trailers at North Shore’s facility are registered as recreational vehicles with the Department of Motor Vehicles. Contrary to Greene County’s argument, the fact that the evidence also showed that a park trailer may have many of the same amenities as a manufactured home does not make it one.

I am authorized to state that Judge Smith joins in this special concurrence.

       Since the property was purchased in 1988, and the regulations were amended in 1989 and 1990, North Shore could have asserted a vested interest and substantial reliance upon the 1984 regulations so as to be treated as a grandfathered, nonconforming use under later regulations, provided that it made out a factual predicate for such vested right. See WMM Properties v. Cobb County, 255 Ga. 436, 438 (1) (c) (339 SE2d 252) (1986); Barker v. Forsyth County, 248 Ga. 73, 76 (281 SE2d 549) (1981); Spalding County v. East Enterprises, 232 Ga. 887 (209 SE2d 215) (1974); DeKalb County v. Chapel Hill, 232 Ga. 238 (205 SE2d 864) (1974).