text:
    A99A1928.
    PACIFIC GROVE HOLDING, LLC v. HARDY.
    (532 SE2d 710)
   Miller, Judge.

Charles Hardy granted Pacific Grove Holding a 90-day option to purchase land in Paulding County in exchange for $25,000, to be held in escrow by Park West Realty. The stated option period expired September 13, 1998, without Pacific Grove giving Hardy written notice of its intent to exercise the option, and Hardy demanded that Park West disburse the $25,000 to him. Contending that the contractually specified contingency regarding access to sewer lines had not been met, Pacific Grove purported to terminate the option agreement on September 29, 1998, and demanded that the escrow money be refunded to it. Park West initiated this action for interpleader and, after tendering the $25,000 into the registry of the court, was released by consent order. Hardy and Pacific Grove answered the interpleader, and each cross-claimed for the escrow money. On cross-motions for summary judgment, the following, largely undisputed, facts were adduced.

Pacific Grove’s agent contacted Park West and asked it to contact Hardy and negotiate an option agreement for Pacific Grove to purchase real property for which Hardy himself held an option to purchase. Pacific Grove forwarded to Park West a proposed option agreement, and when this was presented to Hardy, he made several changes to it. Specifically, Hardy rejected the optionee’s right to an automatic extension (upon payment of an additional $25,000). Also, Hardy rejected language whereby he would warrant that water, sewer, and power lines sufficient to support a 200-unit multifamily project would be available at the property lines. Rather, Hardy proposed that the availability of these utilities be classified as contingencies to be met by the purchaser or grantee of the option.

After further negotiation, Pacific Grove drafted the agreement executed on June 15, 1998. In Paragraph 5, Hardy warranted only that he had good title to the property. Paragraph 6 provided: “During the Option Period, the following contingencies shall be met: a. Determine that water, sewer and power lines will prior to Closing, be available at the property lines. . . .” Paragraph 7 provided:

If Grantee exercises the option . . . the sale shall be closed within thirty (30) days from the date of Grantee’s notifying Grantor of the exercise of its option. ... In the event Grantee fails to exercise its option, or having exercised its option, fails to close the purchase for any reason other than the failure of title on the part of the Grantor, or one or more contingencies are not met or Grantor’s breach of some obligation of Grantor hereunder, then Grantee shall not be entitled to a refund of any part of the Option Money paid hereunder, and the retention thereof shall be Grantor’s sole right and remedy. However, should Grantor refuse to perform, title to the Optioned Property be other than as represented herein, one or more contingencies is not met as specified herein or Grantor otherwise defaults hereunder, Grantee shall... be entitled to a refund of the Option Money ... or may proceed with any other remedy available. . . .

And Paragraph 12 provided: “If Grantee elects to terminate this Option for any reason other than Grantor’s default, failure of title as required herein or one or more contingencies are not met, Grantee shall forfeit the $25,000 Option Money.”

One week after the parties executed this option agreement, the Paulding County Department of Public Works informed Pacific Grove that:

We have reviewed the proposed site location for “The Pines at Macland” along Hwy 120 and have determined there to be future sewer service available. A new outfall sewer has been designed with construction estimated to begin in the fall of 1998. The sewer is estimated to be completed and fully operational in the fall of 1999. . . . Sufficient sewer treatment capacity is currently available at the Paulding County Land Application System to support a 206-unit development in this area.

Subsequent letters (still within the option period) from the County to Pacific Grove recount Pacific Grove’s offer to construct 1,617 feet of outfall sewer along the western boundary of the property in exchange for the County’s providing sewer to the proposed development. As the end of the 90-day option period approached, Pacific Grove repeatedly assured Park West that Pacific Grove would purchase the property. After the express option period expired on September 13,1998, without Pacific Grove exercising its option, Pacific Grove requested an extension. But Hardy was unwilling to grant an extension except for additional consideration and only after payment of the original $25,000. When informed that Park West intended to disburse the money to Hardy, Pacific Grove objected on the ground that Hardy had failed to provide sewer service to the property.

Pacific Grove maintained that the option agreement put the onus on Hardy to obtain appropriate sewer services to the property. Hardy purportedly agreed orally to extend the option period but never obtained a binding commitment from the County to install the sewer. According to Pacific Grove, its intended lender would not commit to finance the project. Part of the problem in obtaining sewer service is that Hardy had not given permission to cross the site of his personal residence in order to tap into an existing line.

The trial court concluded that the option period expired without Pacific Grove exercising the option or terminating the agreement; that the option was not exercised by Pacific Grove because the contingency of the sewer line had not been met; that the indefinite oral extension was ineffective due to the lack of certainty; and that the agreement did not put any performance obligation on Hardy to make the sewer line available but imposed the duty on Pacific Grove to determine the availability of sewer service so it could timely exercise its right to terminate due to the unmet contingency. Since Pacific Grove neither exercised its option nor terminated the agreement during the 90-day option period, the trial court ruled that Pacific Grove was not entitled to a refund of the $25,000 option money and awarded it to Hardy. Pacific Grove appeals from the order denying its motion for summary judgment and granting that of Hardy.

1. The first enumeration contends the trial court erred in holding that the alleged oral agreement with Hardy to extend the option period was unenforceable and so did not estop Hardy from claiming the option period expired without Pacific Grove either exercising its option or timely terminating the agreement. While there is no evidence to support an estoppel, we nevertheless conclude a factual question exists regarding a waiver.

(a) Waiver and estoppel are often similar but not identical.

In the case of a waiver the original contract remains; the [promised performance or, as here, the optionee’s election] is due; the [grantor] merely waives strict performance as to time, so as to prevent him from declaring a forfeiture on account of a past failure. Generally he may still demand and require compliance with the contract, upon reasonable notice. In the case of an estoppel in pais, by reason of his conduct or acts, he will not be allowed to claim that there has been a failure in compliance by the other party, so as to relieve him.

In this case, the evidence of a waiver is that Pacific Grove informed Hardy that obtaining the sewer service was Hardy’s responsibility and that Hardy orally agreed to an extension, as requested by Pacific Grove. This is contradicted by proof that Hardy would agree to an extension only upon release of the original $25,000 to him and payment of additional consideration. Viewed in the light most favorable to Pacific Grove, there is no conduct by Hardy that made a timely election impossible. Certainly there is no proof that Hardy, in response to any specific proposal, refused the consent needed to make sewer service available to the option property. The root cause of the delay is the uncertainty of the availability of sewer service. Pacific Grove was, in our view, under the erroneous impression that the option agreement made Hardy responsible for delivering sewer service to the property line, at his own expense. But that erroneous impression is not any conduct by Hardy on which Pacific Grove reasonably relied to its detriment so as to amount to an estoppel. Pacific Grove’s inaction was premised on its own mistaken assumptions.

(b) An option to purchase land falls within that portion of the Statute of Frauds pertaining to “[a]ny contract for [the] sale of lands, or any interest in, or concerning lands.” Exercise of the option must be in writing and is effective only upon receipt. But even though the original option agreement here recites it is the “entire agreement” regarding the property “and may only be amended or modified in writing signed by the parties,” this would not prevent a subsequent parol waiver of the time for performance by Hardy. Whether any such waiver took place, and under what terms, is an issue for the trier of fact.

Viewed in the light most favorable to Pacific Grove, Hardy’s alleged oral extension of the option period would amount to a waiver of strict performance. The trial court’s reasoning that Pacific Grove failed to allege and prove a definite modification contract is not germane to the relevant issue of a waiver. Because the evidence of an oral waiver of strict adherence to the 90-day option period is conflicting, the trial court erred in granting summary judgment to Hardy unless other circumstances ultimately render this factual issue immaterial.

2. Because of the singular one-sidedness of an option contract in creating, for a stated duration, an irrevocable offer of the optionor, the law requires that the optionee perform all of its obligations under that contract with particular timeliness. Assuming Hardy waived the strict time for performance, the question remains whether Pacific Grove’s September 29 notice of termination due to an (allegedly) unmet sewer service contingency is a justified termination, requiring the return of the escrow money to it under the option. The trial court concluded that Pacific Grove failed to exercise its option because the sewer line contingency had not been met and that it was undisputed that the contingency had not been met.

There is, in our view, considerable doubt whether the sewer service contingency remained unmet, since the County opined that adequate sewer service already was available and promised that sewer service would be available to the proposed development if Pacific Grove built 1,617 feet of outfall sewer along the western boundary. Moreover, if the responsibility for making certain the sewer service contingency “shall be met” was Pacific Grove’s as opposed to Hardy’s, then the failure of the contingency due to the responsible party’s lassitude or refusal to perform would not authorize the return of the option money to it.

Under Georgia law, “[t]he effect of a contract for an option to purchase land is to bind the owner of the property to hold it in the same state and condition in which it existed at the time the contract was made.”

The trial court here correctly concluded that the agreement does not expressly make it Hardy’s financial responsibility to make sewer service available to the property line during the option period. Rather, the final document is silent on which party “shall” be required to meet the contingencies. If there is any doubt about who bore that responsibility in this instance, the agreement will be construed against Pacific Grove as the drafter, under OCGA § 13-2-2 (5). The sewer service contingency was for the benefit of Pacific Grove because it was essential to the envisioned apartment project. Georgia law imposes on purchasers the implied duty to exercise due diligence and good faith in seeking to make a contingency take place.

Neither party’s motion or evidence addresses Pacific Grove’s due diligence and good faith in seeking to accomplish the sewer service contingency. In our view, the conclusory testimony that Pacific Grove’s intended “lender would not commit . . . because of a lack of commitment, or existence, of appropriate sewer capacity” is contra-dieted by the County’s willingness to assist. Consequently, the evidence does not demand a finding that the sewer service contingency failed despite Pacific Grove’s due diligence and good faith. The trial court correctly denied Pacific Grove’s motion for summary judgment on this point. Although Hardy’s motion asserted the sewer service was in fact available, this remains the subject of conflicting inferences. Certainly, Hardy does not address whether Pacific Grove was entitled to a refund, if the sewer service was unavailable despite the exercise of due diligence and good faith. In our view, genuine issues of material fact as to waiver and fulfillment of the sewer service contingency remain for resolution, and so the grant of Hardy’s motion for summary judgment was in error.

Decided March 27, 2000.

Shapiro, Fussell, Wedge, Smotherman, Martin & Price, Nicholas P. Papleacos, for appellant.

Talley & Darden, Jeffrey B. Talley, Charles L. Davis, Jr., for appellee.

Judgment affirmed in part and reversed in part.

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

        Studdard v. Hawkins, 139 Ga. 743, 747-748 (2), (3) (78 SE 116) (1913).

       Id.

       Georgia contract law imposes on both parties an implied duty of good faith in carrying out the mutual promises of their contract, so that “whenever the co-operation of the promisee is necessary for the performance of the promise, there is a condition implied that the cooperation will be given.” (Citations and punctuation omitted.) Southern Business Machines &c. v. Norwest Financial Leasing, 194 Ga. App. 253, 256 (2) (390 SE2d 402) (1990).

        Neely v. Sheppard, 185 Ga. 771, 775 (1) (196 SE 452) (1938).

       OCGA § 13-5-30 (4).

        Anthony v. Ausburn, 254 Ga. 472, 473 (330 SE2d 724) (1985).

        Musgrove v. Long, 248 Ga. 902 (287 SE2d 23) (1982). Consequently, Pacific Grove’s second enumeration, that the telephone conversation between its agent and Hardy amounted to an oral termination, is without merit. Pacific Grove does not argue that Hardy also waived the requirement of a writing.

        Bolton v. Barber, 233 Ga. 646, 648 (2) (212 SE2d 766) (1975). See also Bowden v. Mews Dev. Corp., 247 Ga. 546, 547 (2) (277 SE2d 653) (1981) (time is generally not of the essence under OCGA § 13-2-2 (9), but an option contract is peculiarly a contract of which time is of the essence).

       Pacific Grove’s evidence is unclear whether Hardy waived strict timely performance for any and all of Pacific Grove’s options (such as termination) or whether he merely waived the time for exercising the option to purchase.

        English v. Muller, 270 Ga. 876 (1) (514 SE2d 194) (1999).

       The trial court correctly denied Pacific Grove’s motion for summary judgment because, if there is no valid waiver coupled with a timely written response electing the option or terminating the agreement, the option agreement “expired by its own terms” at midnight on September 13,1998, more than two weeks before Pacific Grove purportedly terminated the agreement in writing. See TST, Ltd. v. Houston, 256 Ga. 679, 680 (2) (353 SE2d 26) (1987). Consequently, Pacific Grove’s third enumeration is without merit. Thus, a termination can take place only during the existence of the option period, because in the absence of written notice of the optionee’s intent, timely received by the optionor, the option expires of its own terms.

       Id.

        Mattox v. West, 194 Ga. 310, 315 (1) (21 SE2d 428) (1942), citing Varti Turpentine &c. Co. v. Allen & Newton, 38 Ga. App. 408 (144 SE 47) (1928).

        Crook v. West, 196 Ga. App. 4, 5 (395 SE2d 260) (1990).

        Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 774 (1) (364 SE2d 556) (1988) (parties have implied duty to exercise good faith in accomplishing conditions precedent); Brack v. Brownlee, 246 Ga. 818, 819-820 (273 SE2d 390) (1980) (financing contingency); Giallanza Realty v. Rosebud Properties, 209 Ga. App. 571, 572 (2) (434 SE2d 130) (1993) (physical precedent only) (financing contingency).

       Compare Koets, Inc. v. Benveniste, 169 Ga. App. 352, 354 (2) (312 SE2d 846) (1983), aff’d sub nom. Benveniste v. Koets, Inc., 252 Ga. 520 (314 SE2d 912) (1984) (purchaser gave uncontroverted evidence of Ms unsuccessful efforts to obtain swing loans or permanent financing from three lenders, in attempt to accomplish a financing contingency).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A2258.
    WRIGHT v. THE STATE.
    (532 SE2d 724)
   Smith, Judge.

Eugene Leonard Wright was indicted by a Chatham County grand jury for aggravated assault with a handgun, aggravated assault with a knife, aggravated battery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He was also charged as a recidivist under OCGA § 17-10-7. He was acquitted of aggravated assault with a handgun and possession of a firearm by a convicted felon but convicted of the remaining charges. His motion for new trial was denied, and he appeals, asserting as his sole enumeration of error the failure of the trial court to merge the aggravated assault and aggravated battery convictions as a matter of fact. Finding no error, we affirm.

Construed to support the verdict, the evidence shows that Wright attacked his wife with a large butcher knife, inflicting 26 stab wounds to her arms, chest, back, and shoulder. Several of these wounds were life-threatening, including a stab wound that lacerated her heart, another that punctured her lung, and a third that severed a major artery. Still another wound inflicted by Wright severed nerves in his wife’s arm, leaving her with permanent nerve damage requiring that she wear a brace on the arm. According to the victim, the attack took place over a period lasting “two, maybe three — less than five minutes.”

Wright was charged in the aggravated assault count with assaulting the victim “by stabbing her with a knife, an object which when used offensively is likely to and does result in serious bodily injury.” In the aggravated battery count, Wright was charged with maliciously causing bodily harm to the victim “by seriously disfiguring her body or a member thereof, to wit: did inflict multiple stab wounds hindering the use of her arm and a stab wound to her heart.”

Wright contends, as at sentencing and on his motion for new trial, that the convictions for aggravated assault and aggravated battery should have merged, citing Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). Montes shot a man three times, one shot proving fatal. He was convicted of both malice murder and aggravated assault, but the Supreme Court of Georgia found that the offenses merged as a matter of fact because the same evidence “— that he fired a deadly weapon and wounded the victim —” was used to prove both offenses. Id. The Supreme Court also noted, “[w]e take this opportunity to disapprove the language in Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977), that each of a series of shots fired in quick succession constitutes a ‘renewed assault.’ ” Id. at 474-475.

It is this proposition upon which Wright relies in contending that the stabbing of his wife 26 times constitutes only one aggravated assault and cannot also support a conviction for aggravated battery. Similarly, Wright cites another shooting case, Dupree v. State, 217 Ga. App. 684 (458 SE2d 698) (1995), in which this court relied on Montes to hold that two shots fired in “ ‘quick succession’ ” constituted a “single transaction” for purposes of merger of an aggravated assault and an aggravated battery. Id. at 685-686 (3).

But Montes involves the merger of aggravated assault with malice murder and is not the appropriate authority to apply in this case. A decision more pertinent to the facts shown here is Grace v. State, 262 Ga. 746, 748 (2) (425 SE2d 865) (1993). In Grace, the Supreme Court declined to merge convictions for aggravated assault and aggravated battery as a result of two gunshots when the victim was blinded as a result of one wound:

The evidence used to prove the commission of the aggravated assault was not used at all in proving the commission of the aggravated battery and thus there is no merit to Grace’s contention that the aggravated assault was a lesser included offense of the aggravated battery. Compare Montes v. State, [supra].

Decided March 27, 2000.

Id. Similarly, in Knight v. State, 190 Ga. App. 87, 88 (2) (378 SE2d 373) (1989), Knight stabbed the victim “a dozen or so” times and seriously and permanently scarred her throat and breast. He was convicted of aggravated assault by assaulting the victim with a knife and of aggravated battery by causing bodily harm and disfigurement to the victim. We held that the aggravated assault was not included as a matter of fact in the aggravated battery, because the evidence did not demonstrate that “the aggravated assault and the aggravated battery were based on the ‘same conduct’ within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand.” Id. The reliance of Dupree v. State, supra, upon Montes rather than upon Grace and Knight is not consistent with the facts shown in Dupree. For that reason, Dupree is disapproved.

Excluding the evidence of Wright’s two acts that seriously injured the victim’s arm and heart and were explicitly used to support Wright’s conviction for aggravated battery, the 24 remaining acts of stabbing were not “used up” in proving the aggravated battery and provided sufficient evidence to support the separate conviction for aggravated assault.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ., concur.

Caleb B. Banks, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Lori E. Loncon, Assistant District Attorneys, for appellee.

       While Knight was originally physical precedent only with respect to this issue, one judge having concurred specially in Division 2, it has been cited with approval by the Supreme Court of Georgia. Lowe v. State, 267 Ga. 410, 412 (1) (b) (478 SE2d 762) (1996). It has also been cited without qualification by this court on several occasions. Malone v. State, 226 Ga. App. 185, 187 (2) (486 SE2d 57) (1997); Chandler v. State, 210 Ga. App. 424 (436 SE2d 539) (1993); Kirkland v. State, 206 Ga. App. 27 (2) (424 SE2d 638) (1992).

       The State in its brief requested that “[i]f this court does merge the aggravated assault conviction into the aggravated battery count, this court should remand the case for resentencing on the latter count as the sentence entered therein is void.” But the State has not cross-appealed. Assuming without deciding that the sentence is void, the State has the right to appeal it. See State v. Willis, 218 Ga. App. 402, 404 (5) (461 SE2d 576) (1995). But the State has not done so here, and we cannot in fairness address this issue when it has not been properly raised.


author: Miller, Judge.

text:
    A99A2286.
    STEPHENS v. CONYERS APOSTOLIC CHURCH.
    (532 SE2d 728)
   Miller, Judge.

Plaintiff-appellant Lisa Stephens brought this tort action against Carol Hudson and Hudson’s employer, defendant-appellee Conyers Apostolic Church d/b/a Conyers Apostolic Christian Academy, seeking to recover for personal injuries Stephens sustained when a van driven by Hudson collided with Stephens’ vehicle. After a bench trial, the State Court of Rockdale County granted Hudson’s motion for involuntary nonsuit and dismissed the case against her with prejudice while finding for Stephens in the amount of $425,000. In its original judgment entered May 8, 1996, the trial court concluded that the Church was entitled to charitable immunity, except to the extent the Church had waived its immunity due to the existence of automobile liability insurance coverage. But the trial court expressly declined to determine the extent of available liability insurance coverage, if any. In a previous appeal, this Court remanded the case for the trial court “to have an evidentiary hearing and make a determination regarding the existence and amount of liability insurance which applies.”

The 1994 van involved was the described vehicle in the Hudsons’ own personal State Farm policy, with coverage limited to $50,000 per person. The Church contended this personal policy was the only applicable insurance waiving its charitable immunity, whereas plaintiff contended the vehicle involved should have been covered by the Church’s separate State Farm policy, with coverage limits of $500,000. From the judgment ruling that the Hudson policy with the lower limits of coverage applies, plaintiff appeals. In three enumerations, she complains the trial court erred in holding: (1) that Hudson failed to properly notify State Farm to add the vehicle to the Church’s policy; (2) that Reverend Jesse Hudson, the pastor of the defendant Church and Hudson’s husband, was authorized to instruct the State Farm agent to insure the vehicle under the Hudsons’ personal policy; and (3) that the Church’s policy did not cover the vehicle involved.

1. Ordinarily, “[w]here the liability of a party is premised solely upon his vicarious liability for the tortious actions of an agent and judgment is entered for the agent, the party alleged to be vicariously liable is also entitled to judgment.”

Although the grant of Hudson’s motion for involuntary nonsuit under OCGA § 9-11-41 (b) is a statutory adjudication on the merits within the meaning of Hedquist v. Merrill Lynch &c., this is not conclusive of the Church’s nonliability under respondeat superior. The basis for that dismissal was Hudson’s purported charitable immunity under OCGA § 51-1-20 (a).

Immunities, unlike privileges, are not delegable and are available as a defense only to persons who have them. . . . [Where] the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal.

Thus, private employers can be liable for the negligent acts of their employees, despite the employees’ immunity from liability. And because the Church has not cross-appealed the judgment that it waived its own charitable immunity up to the $50,000 (deposited into the registry of the court), that determination is res judicata.

2. In all nonjury trials, factual findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Thus, even if the evidence would authorize a judgment in favor of the appellant, where the facts as found by the trial court are authorized by the evidence, such findings will not be set aside.

Viewed in the light most favorable to the state court’s judgment, the evidence authorized the following facts:

Reverend Hudson was responsible for securing insurance both for his personal vehicle as well as for the Church. Since 1993, a 1987 van owned by the Church was insured under a State Farm policy where the Church was the named insured, whereas Jesse and Carol Hudson were the named insureds under a separate State Farm policy. On September 26, 1994, the Church board of directors authorized Reverend Hudson to negotiate the purchase of a 1994 van, to be titled in the name of the Church. The 1994 van was to replace the Hudsons’ personal vehicle, a 1989 or 1990 van, which they traded to the dealer. Reverend Hudson specifically told their insurance agent that the 1994 van was a replacement for the 1990 van. In compliance with Reverend Hudson’s wishes, the agent insured this replacement vehicle under their personal insurance policy. Although the 1994 van was titled in the name of the Church, this was still a proper coverage because State Farm will issue liability insurance to anyone with an insurable interest. In the opinion of the insurance agent, the premium to cover this vehicle under the Church’s policy would have been less than under the Hudsons’ personal use policy because of the insurer’s expectation that its exposure and loss would be less. The distinct policy issued to the Church never listed the 1994 van as an insured vehicle. The collision occurred October 25, 1994.

(a) The evidence is conflicting whether Hudson informed the insurance agent that the Church was getting a replacement vehicle or whether a salesman called from the dealership to inform the agent that the Hudsons were replacing their vehicle, giving him the vehicle identification number to the 1990 van. The trial judge as the trier of fact was entitled to credit the testimony of the agent on this point, which is confirmed by Reverend Hudson. The factual finding that Hudson did not properly or timely notify the agent to change the Church’s insurance to extend coverage to the 1994 van is supported by evidence; is not, therefore, clearly erroneous; and will not be disturbed on appeal.

(b) No legal or equitable interest in the insured vehicle as property is necessary to support an insurable interest regarding liability insurance. As the Church agent with primary custody of the vehicle, Reverend Hudson had a sufficient insurable interest in the vehicle through his potential legal liability to authorize his decision to insure the vehicle under his personal liability policy, notwithstanding his lack of ownership. The second enumeration is without merit.

(c) The third enumeration contends the trial court erred in failing to find coverage under the Church policy because the new van clearly fit within the contractual term of a “newly acquired vehicle.” But in order for this policy provision to apply, the insurer must be notified within 30 days of delivery to the insured of the newly acquired vehicle. The evidence is undisputed that the insurer did not know that the Church was the title holder of the 1994 van until this accident, which occurred almost two months after delivery. Consequently, the circumstances show the failure of one of the contractual criteria. The trial court correctly concluded the Church policy did not afford coverage of its own force.

Decided March 27, 2000

Hughes & Kaplan, Robert W. Hughes, Jr., for appellant.

Cooper & Associates, Craig C. Avery, Harper, Waldon & Craig, Thomas D. Harper, for appellee.

Judgment affirmed.

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

        Stephens v. State Farm &c. Ins. Co., 236 Ga. App. 758, 760 (1) (513 SE2d 508) (1999).

        Kornegay v. Mundy, 190 Ga. App. 433, 435 (2) (379 SE2d 14) (1989).

       272 Ga. 209 (528 SE2d 508) (2000).

       OCGA § 51-1-20 (a) provides immunity from civil liability to a member, director, trustee or officer acting (with or without compensation) in the service of a nonprofit, charitable or eleemosynary institution for any act or omission arising out of service to that charitable organization if such person was acting in good faith within the scope of her official duties, unless the damage or injury was caused by wilful or wanton misconduct. Plaintiff’s counsel conceded that Hudson’s motion for dismissal on this ground was correct.

       Restatement 2d (1958), Agency, § 217 (b) (ii), comment (b).

        Gilbert v. Richardson, 264 Ga. 744, 754 (7) (452 SE2d 476) (1994).

       See Hooper v. Harris, 236 Ga. App. 651, 652 (1) (512 SE2d 312) (1999).

       OCGA § 9-11-52 (a).

        Cooper v. Rosser, 232 Ga. 597 (1) (207 SE2d 513) (1974).

        Kingston Dev. Co. v. Kenerly, 132 Ga. App. 346, 348-349 (1) (208 SE2d 118) (1974), applying L. M. Wiley, Parish & Co. v. Kelsey, 13 Ga. 223, hn. 1 (1853).

        James v. Pa. Gen. Ins. Co., 167 Ga. App. 427, 430 (2) (306 SE2d 422) (1983).

       See Auto-Owners Ins. Co. v. Smith, 178 Ga. App. 420, 421 (343 SE2d 129) (1986). Accord Watson v. Southern Ins. Co. &c., 185 Ga. App. 223, 224 (2) (363 SE2d 629) (1987).


author: Pope, Presiding Judge.

text:
    A99A2443.
    In re ESTATE OF REECE.
    (532 SE2d 726)
   Pope, Presiding Judge.

Peggy S. Reece appeals the probate court decision dismissing with prejudice her application for year’s support in connection with the death of her husband Larry Cecil Reece. She asserts the court made several erroneous findings leading to its decision.

Larry Reece died intestate on December 20, 1995, leaving a widow, an adult daughter (Vickie Knicely), and a 14-year-old son. On April 1, 1996, Reece became administrator of her husband’s estate. She filed an application for year’s support on December 18, 1996, on behalf of herself and her minor child. She included a prayer that “citation issue and be published, and (all interested persons) be given . . . notice ... by mailing to [them] a copy of said citation.” On December 19, the court signed an “Order for Citation” directing the clerk of the court to mail a copy of the citation to all the interested persons. Although notice was published in the county legal newspaper, notice to the interested persons was never mailed.

On February 3, 1997, there was a hearing in the case following which the probate court continued the case, stating that it “require [d] a specific description of the property of the decedent.”

On February 19, 1999, more than three years after her husband’s death, Reece filed an amendment to her original petition for year’s support and included a legal description of the real property. A hearing was held on February 23, and the probate court entered an “Order for Citation” on that day in which it stated that Reece’s original application did not include the appropriate legal descriptions and that, therefore, the citation was never served on the interested parties. The court went on to note that Reece’s amended application did contain legal descriptions and that the court would reissue the citation for the case and order the clerk to serve the citation on the interested parties. Service was accomplished shortly thereafter.

On March 3, Knicely filed a caveat to the application for year’s support and one week later filed a motion to dismiss the application on several grounds including that the applicable statute of limitation had run. On June 1, the court entered detailed findings of fact and conclusions of law, dismissing the application for year’s support with prejudice.

In seven enumerations of error, Reece contends the court erred in granting the motion to dismiss.

The court found that because the initial petition was missing certain information, it was not properly filed and could not be served. The court indicated that the February 3, 1997 continuance was granted in order to allow Reece to get the missing information but that Reece did not take action for two more years, until after the limitation period had run. An amended application containing the proper information ultimately was served. But, because that amendment came over three years after the death of the deceased and because Reece was guilty of laches in the interim, the statute of limitation was not tolled. Further, by that time, the minor son had reached the age of majority thereby eliminating his claim for year’s support for a second reason.

The critical fact in this case is that the interested parties were not served with notice of the application for year’s support until after the running of the statute of limitation. Although the parties dispute whether the original application contained all of the information required by the statute, that issue is moot because Reece failed to act diligently to ensure that service occurred within the statute of limitation.

OCGA § 53-5-2 (d) of the pre-1998 Probate Code required that all applications for year’s support “shall be filed within three years from the date of death of the decedent.” Under the facts of this case, the same Code required service on the interested parties: “[t]he judge of the probate court or his clerk shall cause a copy of the citation to be sent by mail to each interested person. . . .” OCGA § 53-5-8 (c) (2), (3). Here there was no service within the three-year limitation period.

Under the Civil Practice Act, it is well settled that mere filing of an action without service does not toll the statute of limitation. See Thorburn Co. v. Allied Media &c., 237 Ga. App. 800, 802 (1) (516 SE2d 833) (1999); Hilton v. Maddox Bishop &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972) and cases cited therein. And, “[w]hen service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised.” (Citations and punctuation omitted.) Mitchell v. Hamilton, 228 Ga. App. 850-851 (493 SE2d 41) (1997). We see no reason why the same rule should not apply to the service provisions of an application for year’s support. See Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974) (probate court is bound by the Civil Practice Act).

In 1976, the Supreme Court of Georgia held that the Due Process clause of the United States Constitution requires that all interested persons who are known or easily ascertainable must receive notice of a year’s support action. Allan v. Allan, 236 Ga. 199, 206 (223 SE2d 445) (1976). The same principle of due process underlies the requirement of adequate notice for other actions at law. See Thompson v. Lagerquist, 232 Ga. 75, 76 (205 SE2d 267) (1974) (“notice is the very bedrock of due process”). Accordingly, we hold that filing an application for year’s support without proper service does not toll the three-year limitation period for year’s support proceedings.

Thus, the question is whether Reece was guilty of laches in failing to exercise due diligence to ensure that the interested parties were served. That question “is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984).

Although ,OCGA § 53-5-8 provides that the court will mail the required notice, it is always the burden of the applicant to ensure that service is timely made. See generally Strickland v. Home Depot, 234 Ga. App. 545, 546 (507 SE2d 783) (1998) (burden on plaintiff not sheriff and state court); Jarmon v. Murphy, 164 Ga. App. 763, 764 (1) (298 SE2d 510) (1982) (burden on plaintiff not sheriff). Here, the court indicated in its order of February 3,1997, that it required more information. Further, because it was a matter of record, Reece was on notice that service had not been made on the interested parties from the beginning of the case. Yet, Reece took no steps whatsoever — for over two years — to respond to the court’s request for information or to ensure that service was effected in a timely manner. Accordingly, Reece is not being penalized for relying on the court to serve the notice. Compare Jackson v. Nguyen, 225 Ga. App. 599, 600-601 (484 SE2d 337) (1997) (plaintiff did all that was expected in initiating service).

Decided March 27, 2000.

Donald L. Mize, for appellant.

Moore, Ingram, Johnson & Steele, William R. Johnson, Melissa W. Gilbert, for appellee.

We find no abuse of discretion.

Judgment affirmed.

Smith and Miller, JJ, concur.

       The court found that the initial application was missing three things: (1) the value of the estate; (2) an inventory of all property sought to be set aside; and (3) legal descriptions of the real estate.

       The minor son turned 18 years old on February 15, 1999.

       The parties agree that the pre-1998 Probate Code is applicable to this case. All references will be to that law.

       The following year the requirement for notice by mail was added to the statutory scheme. See Ga. L. 1977, p. 545, § 2; OCGA § 53-5-8.


author: Phipps, Judge.

text:
    A99A1800.
    BRASUELL v. THE STATE.
    (531 SE2d 732)
   Phipps, Judge.

John D. Brasuell appeals the trial court’s denial of motions to withdraw his guilty plea and vacate the plea and sentence. We find that when Brasuell filed his motions, his only avenue to challenge the validity of his guilty plea was through habeas corpus proceedings. Therefore, we affirm the court’s denial of his motions.

On October 9, 1995, Brasuell pled guilty to nine counts from one indictment and two accusations. He had been indicted for three counts of child molestation, three counts of cruelty'to children and three counts of surveillance which invades the privacy of another. One accusation charged him with two counts of harassing phone calls, and the other charged him with four counts of deposit account fraud. Brasuell pled guilty to two counts of child molestation, one count of cruelty to children, one count of surveillance which invades the privacy of another, one count of harassing phone calls and all four counts of deposit account fraud. The remaining charges were nolle prossed.

Brasuell subsequently initiated habeas corpus proceedings in the superior court of the jurisdiction where he was incarcerated. That court determined Brasuell’s sentences were null and void and unauthorized by law. First, the court found that Brasuell had been given five-year sentences for each of his deposit account fraud convictions, which were misdemeanors. Second, the court found that several of Brasuell’s sentences had been made concurrent with that for a charge which had been nolle prossed. Third, the court found that the cruelty to children charge to which Brasuell pled should have merged with one of the child molestation counts to which he also pled guilty. The court also found that Brasuell’s trial counsel had rendered ineffective assistance by failing to advise Brasuell that two of his convictions should have merged and that he was being sentenced above the legal maximum for his deposit account fraud convictions.

The court set aside Brasuell’s sentence for cruelty to children, ordered that the Department of Corrections strike the conviction and sentence from BrasuelFs records and remanded the case to the trial court for resentencing to correct the noted errors. The habeas court expressly denied any further relief to Brasuell.

On remand, the trial court resentenced Brasuell, correcting the errors noted by the habeas court and vacating BrasuelFs conviction for cruelty to children. While the resentencing was pending, Brasuell filed in the trial court a motion to withdraw his guilty plea and a motion to vacate his plea and sentence. Both were based on ineffective assistance of counsel. The motions were denied, and Brasuell asserts in this appeal that the habeas court’s finding that he had received ineffective assistance of counsel undermines the validity of his plea.

BrasuelFs enumeration is controlled adversely to him by Jarrett v. State. There, we held that where sentences are void:

the trial court is only authorized ... to impose new and valid sentences. [Cits.] . . . [I]t is well-established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings. [Cits.]

The term of court for the trial court (Gilmer County Superior Court) commences on the second Monday in April and second Monday in October of each year. A notice of appeal must be filed from a criminal conviction within 30 days of the entry of judgment. Brasuell pled guilty on October 9, 1995. He filed the motion to withdraw the guilty plea on November 13, 1996; he filed his motion to vacate the plea and sentence on June 4, 1997. Both motions were filed well outside the prescribed periods. Therefore, habeas corpus proceedings provided the proper avenues for Brasuell to challenge the validity of his guilty pleas. To the extent Brasuell was dissatisfied with the relief afforded by the habeas court, an appeal was possible from that proceeding.

The trial court did not err in denying BrasuelFs motions to withdraw his guilty plea and vacate his plea and sentence.

Decided March 16, 2000

Reconsideration denied March 28, 2000.

David M. Rosenberg, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       217 Ga. App. 627 (458 SE2d 414) (1995).

       (Emphasis in original.) Id. at 628.

       OCGA § 15-6-3 (2.1) (B).

       See OCGA § 5-6-38 (a).

       See OCGA § 9-14-52.


text:
    A99A1981.
    VASCHE et al. v. JOHN WIELAND HOMES, INC.
    (530 SE2d 276)
   Phipps, Judge.

Steve and Tyra Vasche appeal the trial court’s grant of summary judgment to John Wieland Homes, Inc. on their claims for damages and injunctive relief. The issue is whether the trial court properly interpreted a 1991 release agreement between the Vasches and Wieland to bar the instant action. We find the release is ambiguous whether the parties intended it to bar subsequent actions such as this. Accordingly, we reverse the grant of summary judgment.

The Vasches are homeowners, and Wieland is the developer of a subdivision on property bordering the Vasches’. In 1990, the Vasches filed suit against Wieland, claiming that Wieland’s grading activities had altered the drainage pattern for the area and caused water, silt and mud to flow onto their property. They asserted that they suffered damage to their home, driveway and other structures and diminished ability to use and enjoy their property.

In 1991, the Vasches settled their claims against Wieland. As part of the settlement, Wieland paid the Vasches $62,500 and agreed to undertake several tasks such as cleaning and deepening a pond, attempting to link the pond to a cross drain and filling a hole in the Vasches’ yard. The settlement agreement included the subject release of claims.

In August 1995, the Vasches sued Wieland again for damages allegedly caused to their property by grading done by Wieland after February 1995.

Wieland filed a motion for summary judgment asserting that the Vasches’ current action is barred by the terms of the 1991 release. The court granted summary judgment to Wieland on that basis.

The court analyzed the language of the release and concluded on four bases that the action fell within those intended to be proscribed. First, the release said Wieland was released “from any and all claims, demands, suits, actions and any consequences of every kind or nature, relating directly or indirectly to the matters alleged in the [Vasches’] Complaint!’ Second, the release stated Wieland was released from

all claims ... for property damage and . . . consequential damages, known or unknown, which may be traced directly or indirectly to the matters alleged in the [Vasches] Complaint, as now appearing or as may appear at any time in the future, no matter how remotely they may be related to said incidents

Third, the Vasches did not specifically reserve any claims. And fourth, the release stated it was being executed “with the full knowledge and understanding that there may be more serious damages which are not known, or which may occur in the future!’

While it is clear the release was intended to preclude claims and damages actions resulting from grading by Wieland as of the date the release was executed, it is not clear that it was intended to apply to claims and damages actions stemming from subsequent grading activities by Wieland. The Vasches assert the instant action arises from grading by Wieland years after the release was executed. Though the Vasches’ current claims and alleged damages are similar to those asserted in their 1990 action, they are not necessarily “related.”

Moreover, we note two provisions in the release which suggest it may not have been intended to apply to claims arising from subsequent activities by Wieland. First, the release stated that it applied to “all claims . . . made in the [first] lawsuit. . . and all claims that could be made in [that] lawsuit.” The instant claims for damages could not have been included in the first lawsuit. Second, the release said it was intended to settle all claims for current and future consequential damages which are in any way related to the “incidents” alleged in the Vasches’ complaint. The incidents alleged in the Vasches’ complaint were past and not future events.

We find that even after consideration of the language of the release and applicable rules of construction, the intent of the parties to the release is ambiguous and arguably supports a conclusion that the release was not intended to proscribe actions arising from future conduct by Wieland. In this situation, summary judgment cannot be based on the release, because the intent presents a genuine issue of material fact for determination by a jury. For this reason, we reverse the court’s grant of summary judgment to Wieland.

Decided March 2, 2000

Reconsideration denied March 28, 2000.

Beck, Owen & Murray, Samuel A. Murray, James W. Kytle, for appellants.

Dennis, Corry & Porter, James S. Strawinski, Michael L. Goldberg, for appellee.

Judgment reversed.

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

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       See OCGA § 13-2-2 (general rules of construction); Bradley a British Fitting Group, 221 Ga. App. 621, 624 (3) (472 SE2d 146) (1996) (absent specific reservation of claims, settlement generally construed to be a final disposition of all claims between the parties arising out of the underlying transaction).

       Compare Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992).

       Id.; see also OCGA § 9-11-56 (c) (standard for summary judgment).


text:
    A99A2199.
    TOLLIVER v. THE STATE.
    (531 SE2d 383)
   Phipps, Judge.

Clayton Ray Tolliver appeals his convictions of two counts of aggravated assault. He argues that the evidence does not support the verdict, that the trial court erred by admitting a statement he made to a police officer at the scene of his arrest, and that the trial court abused its discretion by not sentencing him as a first offender. We find that the evidence was sufficient to support the verdict, that Tolliver’s statement was properly admitted, and that the trial court did not abuse its discretion in sentencing. For these reasons, we affirm Tolliver’s convictions.

On September 22, 1996, brothers Tarik and John Edwards drove northeastward on 1-285 in the far left or “fast” lane. Tolliver approached the Edwardses from behind in that lane. Wanting to pass them, he repeatedly pulled up to their bumper and flashed his high-beam headlights. Eventually Tarik Edwards realized Tolliver was behind him but was not able to move over immediately due to the heavy traffic. Ultimately Tolliver was able to pass Edwards, but he felt that Edwards had been rude in not allowing him to pass sooner. When Tolliver did pass the Edwardses, he made an obscene gesture to them, mouthed the words, “F— you,” and sped off.

Minutes later, the Edwardses encountered Tolliver again. Traffic had forced Tolliver to slow, and he was making angry gestures. When Tolliver saw the Edwardses beside him, he mouthed something at them. As the two cars traveled alongside one another, Tolliver brandished a .9 millimeter pistol and fired a shot through the rear driver’s side window of their car.

Afterward, Tolliver attempted to flee, but the Edwardses successfully tailed him at high speeds on highways and streets in DeKalb County. Eventually, Tolliver brought his car to a stop on a church lawn, and John Edwards called the police to the scene.

1. Tolliver has maintained that the shooting was an accident. He testified that during the second encounter with the Edwardses, they attempted several times to swerve their vehicle into his and force him off the roadway. He testified that he took the pistol from his glove compartment because he feared for his life and held it up to show them that he was armed. Just then, he testified, the Edwardses swerved their car at his again, and his gun accidentally discharged as he swerved away.

Tolliver’s weapon was equipped with a safety feature. The pistol would fire only if the hammer was already cocked and the safety feature was not engaged.

On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The determination of a witness’ credibility . . . is within the exclusive province of the jury. This court determines the sufficiency of the evidence, and does not weigh the evidence or determine witness credibility.

The indictment alleged that Tolliver “ma[d]e . . . assaultfs] upon the person [s] of” Tarik and John Edwards “with a handgun, a deadly weapon.” One assaults another with a deadly weapon if he “[attempts to commit a violent injury to the person of another” with a deadly weapon or if he “commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

A rational trier of fact could have found beyond a reasonable doubt that Tolliver committed either or both of those two forms of aggravated assault with a deadly weapon. There was sufficient evidence to support a finding that Tolliver intentionally fired his weapon at the Edwardses. Also, there was sufficient evidence to find that Tolliver intentionally committed an act which placed the Edwardses in reasonable fear of immediately receiving a Violent injury. The evidence was sufficient to support Tolliver’s convictions.

2. After John Edwards called the police, Officer Jason Honeycutt was dispatched with information that there had been a disturbance involving a handgun. Pursuant to his normal procedure, Honeycutt spoke with all the parties to gain an understanding of what had transpired. Tolliver told Honeycutt that he had “[taken] out his pistol and pointed it at the [Edwardses] to try to scare them off” after it appeared to him that “[they] were trying to ram him” and that the pistol had discharged accidentally.

Honeycutt never read Miranda warnings to Tolliver. After a Jackson-Denno hearing, Honeycutt was allowed to testify to Tolliver’s statement at trial. The statement contradicted later testimony from Tolliver that he never pointed his weapon at the Edwardses but only held it pointed upwards before he swerved and it discharged.

Miranda warnings apply to custodial interrogations. The issue here is whether Tolliver was in custody at the time Honeycutt solicited his version of the events. For purposes of Miranda, one is in custody if he has been “formally arrested or restrained to the degree associated with a formal arrest.”

“In resolving this issue, the relevant inquiry is how a reasonable person in (a) suspect’s position would perceive his situation [cits.]; that is, whether a reasonable person in [his] position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest. [Cit.]” [Cit.]

“As a general rule, one who is the subject of a general on-the-scene investigation is not in custody . . .” though he may not be free to leave during the investigation. The evidence before the court did not show that a reasonable person in Tolliver’s position would have felt restrained to the degree associated with a formal arrest when he spoke with Honeycutt. Therefore, we find no error in the court’s admission of his statement to Honeycutt.

3. The court sentenced Tolliver to five years, to serve one year that would be suspended with the completion of the DeKalb County diversion program. Immediately after the court announced its sentence, Tolliver reiterated a desire to be sentenced under the First Offender Act, and the judge told him that she would sentence him to five years, with three years to be served, if he were sentenced under the First Offender Act. Tolliver contends that the trial court abused its discretion by conditioning first offender treatment on the service of prison time.

Decided March 16, 2000

Reconsideration denied March 28, 2000

Jason R. Hasty, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

The court was authorized to find that the severity of Tolliver’s offenses warranted either a felony record or prison time.

Finding no error in any of the enumerations raised by Tolliver, we affirm his convictions.

Judgment affirmed.

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

       (Citations, punctuation and emphasis omitted.) Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

       OCGA §§ 16-5-20; 16-5-21.

        Shy v. State, 234 Ga. 816, 821 (218 SE2d 599) (1975).

        Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995).

        Thompson v. State, 234 Ga. App. 74, 76 (1) (a) (506 SE2d 201) (1998).

       (Citations and punctuation omitted.) Mason v. State, 177 Ga. App. 184, 185 (1) (338 SE2d 706) (1985); see also Shy, supra at 819-820.

       Compare Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993) (error found in court’s refusal to consider first offender treatment as a sentencing option in any case under any circumstances).


text:
    A99A1776.
    BRANDON v. NEWMAN.
    (532 SE2d 743)
   Miller, Judge.

The question presented is whether an attorney’s unethical reward to a nonlawyer for a referral resulting in the attorney’s employment invalidates the attorney’s claim of lien against settlement proceeds. We hold that an attorney’s express employment contract obtained through a violation of Disciplinary Standard 13 of Bar Rule 4-102 (d) is itself void as against public policy and therefore affirm the trial court’s forfeiture of the lien.

The following chronology in this claim for a $40,000 attorney’s lien is undisputed: Appellee Raymond Warren Newman, Jr. was injured in a vehicular mishap. Acting on the advice of Bobby Gay Beazley, a former member of the bar no longer authorized to practice law in Georgia, Newman retained attorney no. 1 to pursue a tort claim against a trucking company, its driver, and its insurer. Without filing suit, attorney no. 1 obtained a settlement offer from the insurer of “around $120,000,” consisting of $95,000 plus lost wages. Newman rejected this offer as too low and fired attorney no. 1.

Beazley then introduced Newman to attorney no. 2 (appellant-claimant Keith F. Brandon), and in a written agreement dated October 1, 1996, Newman retained Brandon to pursue his tort claim. In addition to a contingency fee, the retainer agreement contemplated that, in the event Newman dismissed Brandon, the fee would be the greater of a $150 hourly rate or the applicable percentage fee (40 percent after filing suit) based on “any offers . . . made by any adversary or collateral party. . . .” That same day, Brandon’s law firm entered into an agreement with Beazley whereby Beazley agreed to assist the firm in obtaining medical and other documentation; in interviewing witnesses; in filing pleadings or other documents; and in preparing any settlement demand proposals for the prosecution of Newman’s tort claim. In return, the firm agreed to pay Beazley 25 percent of the net proceeds paid to the firm from any settlement or recovery of that claim. Payment to Beazley would be made “contemporaneously” with the distribution of any proceeds to the firm.

Brandon filed suit and received an initial offer to settle Newman’s case for $50,000 from the insurer. Brandon countered with an offer of $400,000. In April 1998, right before the case went to trial, the insurer made a $100,000 offer to Brandon. According to Brandon, he communicated this offer to Newman, who rejected it. In August, Newman dismissed Brandon and retained attorney no. 3. In response to requests to forward Newman’s file to attorney no. 3, Brandon filed a Notice of Attorney’s Lien. The insurer renewed its $100,000 offer to attorney no. 3, and Newman accepted.

Newman filed a motion for “Forfeit and Cancellation of Attorney’s Lien,” contending that Brandon’s retainer agreement was an unauthorized referral grounded in an illegal fee-splitting arrangement with a nonlawyer, in violation of Directory Rule 3-102. In support of this motion, Newman showed that Beazley himself described his contingent fee arrangement as arising out of his referral of Newman to Brandon. At the evidentiary hearing on Newman’s motion, Brandon admitted that, “to the extent that Mr. Beazley is a non-attorney, then [splitting a fee with a nonlawyer is] what the contract does.” Brandon eschewed any claim in quantum meruit and did not support his claim with billing records but sought $40,000 as the contingent fee Newman agreed to pay despite dismissing Brandon, based on the $100,000 offer to settle Brandon received before his dismissal.

The trial court was inclined to agree with this contention, if the retainer agreement were valid. But the trial court concluded that Brandon had engaged in conduct proscribed by DR 3-102 by rewarding nonlawyer Beazley for recommending Brandon and so ruled that the employment agreement resulting from that conduct is void as against public policy. Consequently, Newman’s motion to forfeit and cancel Brandon’s lien was granted. Brandon enumerates this ruling as error, arguing (1) the trial court based its ruling on inadmissible hearsay and documents never tendered or admitted into evidence; (2) there is no evidence to support the conclusion Brandon’s employment agreement is void as against public policy; and (3) Brandon was denied an opportunity to defend against this theory because the issue was not raised or argued in the trial court.

1. Brandon’s contention that the record is devoid of argument based on public policy is without merit. Newman’s written motion clearly objected to enforcement of the lien based on conduct alleged to violate DR 3-102. That is sufficient particularity under OCGA § 9-11-7 (b) (1) to put Brandon on notice of a defense to his claim of attorney’s lien based on public policy or illegality.

2. At the evidentiary hearing, Brandon raised no objection, based on hearsay or otherwise, to the documents read aloud and obviously considered by the trial court. Consequently, formal tender was waived. And while it is true that ordinary hearsay is wholly without probative value even if not objected to, admissions against the pecuniary interest of third persons shall be received in evidence where the admissions pertain to collateral facts. Thus, statements in letters by Beazley, demonstrating his contingent fee-splitting agreement was void as an impermissible reward for his referral of Newman to Brandon, were probative and admissible over hearsay objections. Moreover, Beazley’s letters were corroborated by Brandon’s admission in open court that his contract with Beazley amounted to splitting a legal fee with a nonlawyer.

3. The remaining enumeration of error is that the determination of the trial court is not supported by any evidence.

(a) Findings of fact made after a nonjury evidentiary hearing shall not be set aside unless clearly erroneous. Brandon’s solemn admission in judicio that his contract amounts to a fee-splitting agreement with a nonlawyer is a sufficient predicate to establish that fact under OCGA § 24-4-24 (b) (7). But whether that fact leads to the conclusion that Brandon’s retainer contravenes public policy is a question of law, which is freely reviewable.

(b) .In Georgia,

parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. This ancient rule is applicable to all the private relations in which persons may place themselves towards each other.

And,

[a] contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.

The General Assembly recognized the role of the Supreme Court of Georgia in regulating the legal profession. Exercising its authority, the Supreme Court created a unified State Bar with mandatory membership for all persons authorized to practice law in this State. In Georgia, the familiar Disciplinary Rules of the American Bar Association’s Code of Professional Responsibility are adopted as aspirational Directory Rules, whereas the Supreme Court promulgated distinct Disciplinary Standards of Conduct which are the only basis for attorney discipline.

Decided March 28, 2000.

Zimmerman & Associates, Keith F. Brandon, pro se.

Samuel W. Cruse, for appellee.

The pertinent Disciplinary Standards provide the following: (i) “A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client”; and (ii) ‘A lawyer or law firm shall not share legal fees with a nonlawyer, except” through a retirement plan including nonlawyer employees.

In our view, the trial court correctly concluded that the State Bar disciplinary provisions establish the public policy disapproving rewards for referrals through fee-sharing agreements with nonlawyers. That public policy voids Beazley’s unethical fee-splitting contract with Brandon. And the evidence further demands a finding that Brandon’s otherwise standard and lawful contingent fee retainer agreement with Newman is inextricably entwined with that void referral, because Brandon’s employment as an attorney is (in part) the illegal consideration for a prohibited reward and fee-splitting arrangement. Brandon’s retainer with Newman is contrary to good morals and law, was entered into (in part) for the purpose of effecting an illegal or immoral agreement, and was obtained in violation of the applicable ethical standards which are enforceable in Georgia by disbarment. Consequently, we hold the express retainer agreement here is void under OCGA § 13-8-2 (a). Georgia courts will not enforce illegal or immoral contracts because so doing would implicate the judiciary by facilitating the illegality or immorality. The trial court correctly granted Newman’s motion to forfeit Brandon’s OCGA § 15-19-14 (b) attorney’s lien.

Judgment affirmed.

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

       No question of recovery in quantum meruit is presented.

       See State Bar of Ga. v. Beazley, 256 Ga. 561 (350 SE2d 422) (1986).

       Other evidence showed that Beazley prepared settlement brochures for attorney no. 1, until attorney no. 1 was fired, and Beazley offered Brandon his services in arranging a psychiatric examination of Newman at the Medical College of Georgia, since, in Beazley’s assessment, the case represented “one million seven hundred thousand [dollars in] coverage and clear liability.” Beazley also offered, “if it would work, [to] file a hen and blow him [attorney no. 1] out of the water and then drop the lien.” Brandon was informed that Beazley has
      a new case where an insurance company improperly cancelled a man’s policy and is leaving him open to suit. As soon as I [Beazley] have an affidavit from this man, I will submit to you to see if you wish to handle. See State Farm Mutual Ins. Co. v. Drury, [222 Ga. App. 196 (474 SE2d 64) (1996)].

       See Morrow v. Stewart, 197 Ga. App. 689, 690 (399 SE2d 280) (1990).

        Armstrong v. Cal. Fed. Sav. &c. Assn., 192 Ga. App. 508, 509 (1) (385 SE2d 113) (1989).

        Higgins v. Trentham, 186 Ga. 264, hn. 1 (197 SE 862) (1938).

        Cobb v. Garner, 158 Ga. App. 110, 112 (3) (279 SE2d 280) (1981).

       See Hill v. Reynolds, 19 Ga. App. 334 (3) (91 SE 434) (1917) (letters showing conspiracy admissible over objections that “ ‘said letters were personal letters written by said (third person)...’ and that “ ‘they [were] ex parte statements and defendant has had no chance to cross-examine the witnesses’ ”).

       OCGA § 9-11-52 (a).

        Grice v. Grice, 197 Ga. 686, 698 (7) (30 SE2d 183) (1944).

       See, e.g., Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (trial court’s application of law to undisputed facts is subject to de novo appellate review).

       (Citations and punctuation omitted.) McCoy v. H. N. R. Investment Group, 210 Ga. App. 645, 646 (2) (437 SE2d 355) (1993).

       (Citations and punctuation omitted.) Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (1) (328 SE2d 705) (1985).

       Rules & Regs, for the Organization & Government of the State Bar of Georgia, Rule 1-101.

       Id.

       Rule 1-201 (1).

       Rules 4-101 and 4-102 (a). See also Nat. Media Svcs. v. Thorp, 207 Ga. App. 70, 71 (2) (427 SE2d 61) (1993).

       (Emphasis supplied.) Standard 13.

       (Emphasis supplied.) Standard 26. The applicable penalty for impermissible rewards and fee-splitting can be as severe as disbarment. We express no opinion whether Standard 24, regarding aiding the unauthorized practice of law, or Standard 73, regarding suspended or disbarred lawyers, is implicated.

        Dept. of Transp. v. Brooks, supra, 254 Ga. at 312 (1).


text:
    A99A1838.
    ST. MARY OF EGYPT ORTHODOX CHURCH, INC. et al. v. TOWNSEND.
    (532 SE2d 731)
   Smith, Judge.

In this case, transferred from the Supreme Court of Georgia, we revisit the perennial question of the extent to which the courts of this state may address matters in dispute within a church or ecclesiastical body. Here, doctrinal disputes led an archbishop of the Orthodox Church in America (“OCA”) to suspend Father John Townsend, the rector of St. Mary of Egypt Orthodox Church of the Diocese of the South of the Orthodox Church in America, Inc. (“St. Mary’s”), from his priestly duties. Townsend and some members of the parish then attempted to affiliate the parish with the Russian Orthodox Church Abroad (“ROCA”), and the archbishop and the remaining parish members sought to block that affiliation by recourse to the courts of Georgia. The trial court granted summary judgment sua sponte on the limited issue of control and ownership of the parish corporation and its assets, and the trial court found a jury issue regarding which of the competing groups is entitled to control of St. Mary’s property. Because we conclude that the trial court improperly construed the parish corporation to be an autonomous congregational body, we reverse.

For “some years” before 1997, Townsend had been contemplating a withdrawal from the OCA because he opposed what he perceived as heretical changes in its religious and liturgical practices, including the acceptance of nonOrthodox baptisms. After learning of Townsend’s rebaptism of his wife, Archbishop Dmitri, Townsend’s immediate superior in the church, suspended him on October 24,1997, “from all sacred functions and service of the holy priesthood” pending a meeting in the forthcoming week. After Townsend responded by letter in lieu of the proposed meeting and declined to remain in communion with the OCA, the archbishop sent a second letter dated November 10:

It is with heartfelt sorrow that I inform you that as of this day you are relieved of the pastorate of St. Mary of Egypt Orthodox Church of the Diocese of the South of the Orthodox Church in America. You are to cease and desist any and all pastoral and priestly functions at St. Mary of Egypt Orthodox Church of the Diocese of the South of the Orthodox Church in America. You are also to leave the property of St. Mary of Egypt Orthodox Church and its deeded environs.

On the same date, the archbishop replaced Townsend, appointing a temporary rector to St. Mary’s, and dissolved the parish council. As these events unfolded, Townsend instituted a reaffiliation of himself and a group of parishioners to the ROCA. As part of this attempted reaffiliation, Townsend and his adherents attempted to exercise control over the parish corporation, its assets, and property. It is undisputed that this action was taken without a formal vote and without adherence to the corporate procedures in St. Mary’s articles of incorporation and bylaws. But Townsend contends that the act of making Confession and Holy Communion at a ROCA-affiliated church “is far more important to the issue of religious affiliation, and thus, has more significance, than a vote being taken.”

Appellants, the archbishop and Diocesan Bishop of the Diocese of the South of the Orthodox Church in America (“the Diocese”), the temporary rector designated by the archbishop, the deacon, and other members of the parish, filed this action against Townsend seeking legal and injunctive relief from his actions, including a demand that he be restrained from exercising control over the property of the parish. After discovery, appellants filed a motion for summary judgment.

The trial court entered an order attempting to establish the extent to which the court could intervene in the dispute. Initially, the trial court found that the OCA has a hierarchical form of church government, a finding that is not disputed by either party. But the trial court went on to find, based upon its reading of two provisions in the church documents and two. decisions of the Commonwealth Court of Pennsylvania, that the parish corporation was nevertheless an autonomous body with full and exclusive control over corporate property. The trial court accordingly granted summary judgment sua sponte on this issue, concluding that OCA had no control over the parish corporation and that such control belonged solely with the parish. The trial court also found that the trier of fact must resolve whether Townsend’s actions and those of the parish council were authorized and constituted a legitimate reaffiliation of the parish. These rulings were in error.

In cases involving disputes over church property, Georgia law recognizes two types of church government: congregational and hierarchical. Kidist Mariam Ethiopian &c. Church v. Kidist Mariam Ethiopian &c. Church, 219 Ga. App. 470, 472-473 (1) (465 SE2d 491) (1995). A congregational church is usually an autonomous body strictly independent of other ecclesiastical associations, while a hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head. Id. at 473.

As a matter of constitutional law, a hierarchical religious organization must be permitted to establish the rules and regulations by which it is governed. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696, 724 (IV) (96 SC 2372, 49 LE2d 151) (1976).

First Born Church &c. v. Hill, 267 Ga. 633, 634 (1) (481 SE2d 221) (1997) . Under the rules and regulations established by the church, as a hierarchical religious body, it cannot be governed directly by its membership. Id.

If the church government is congregational, then a majority of its members control its decisions and local church property. If hierarchical, then we use neutral principles of law to determine whether the local church or parent church has the right to control local property. Those neutral principles are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination.

(Citations and punctuation omitted.) Kidist Mariam, supra at 473. Accordingly, we must examine the corporate documents and organizational statutes of St. Mary’s, as well as the organizational statutes of the OCA, in order to determine whether the right to control local property is vested in St. Mary’s or the OCA. See Leopold v. St. Paul’s Greek Orthodox Church, 235 Ga. App. 188, 193 (509 SE2d 121) (1998) .

Archbishop Dmitri, the ruling hierarch and Diocesan Bishop of the Diocese, of which St. Mary’s is a constituent parish, identified by affidavit the “Statute of the Orthodox Church in America.” This document defines the relationship between the OCA, “the Church,” and its member parishes. According to the statute, “No one can be a member of the parish if he openly betrays the teaching of the Orthodox Church.” With respect to parish property, the statute provides:

The parish or parish corporation is the sole owner of all parish property, assets, and funds. In administering them, however, the parishioners and the officers elected by them must always remember the religious nature, purposes, and goals of the parish and act as trustees of God’s, not man’s, property. The parish, as the whole Church, serves God and cares for God’s work in the world, and all decisions concerning parish property must be inspired by that care and by the spiritual needs of the Church.

The first sentence of this provision, standing alone, was relied upon by the trial court in holding St. Mary’s corporation to be an autonomous unit. But this sentence must not be read in isolation from the remainder of the section in which it appears, or from the church and parish organizational documents as a whole. The statute also provides:

The parish is a local community of the Church having at its head a duly appointed priest and consisting of Orthodox Christians who live in accordance with the teachings of the Orthodox Church, comply with the discipline and rules of the Church, and regularly support their parish. Being subordinate to the Diocesan Authority, it is a component part of the Diocese.

(Emphasis supplied.) No parish may be established until the bishop of the diocese in which it is located has approved its charter and bylaws. Moreover, “the Bishop is the head of all parishes which constitute his diocese. He appoints parish clergy . . . and in case of conflicts and disorders within the parish, takes all necessary measures consistent with the Holy Canons.” The statute further establishes and gives authority to a Diocesan Court “to judge cases involving allegations of unorthodox belief, breaches of canonical or moral discipline, . . . disputes involving clergy and parish officers, disputes over parish institutions, and any other matter involving the good order of the Church.”

“The Statutes of St. Mary of Egypt Orthodox Church,” provisions adopted for the internal governance of St. Mary’s, also affirmatively state the corporation’s affiliation: “This Parish is a parish of the Diocese of the South of the Orthodox Church in America, and is under the jurisdiction of the canonical Bishop of that Diocese.” The parish statutes further provide: “The Parish will be subject to ‘The Statute of the Orthodox Church in America’ as adopted by the Second All-American Council of October 19-21, 1971, and as amended at any subsequent All-American Council.” Moreover, “[t]he decisions made at Parish meetings will be binding on all Parishioners after approval by the proper Diocesan authority.” (Emphasis supplied.) Finally, the parish statutes provide:

It must be remembered that the Parish is first the “Body of Christ” and as such, there can never be any administrative separation of “spiritual” and “material” matters. Members of the Parish Council must always bear in mind that in all their actions, they are doing “God’s work,” no matter what form or appearance it may take.

The uniform parish bylaws, issued by the Diocese of the South of the OCA, as amended in 1983, are “standard and obligatory for all parishes of the Diocese of the South.” Archbishop Dmitri testified that these bylaws superseded the earlier statutes of St. Mary’s. While this supersession apparently is in some dispute, both documents are relevant as they shed light on the intentions of the parties regarding control of the parish corporation.

The uniform parish bylaws provide that “[t]he parish meeting is the highest legislative, judicial and administrative authority of the Parish as a corporation.” They also provide:

The Parish corporation is the sole owner of all Parish property, assets and funds, and these are administered by the Parish Council in accordance with decisions made by the Parish Meeting and with the Statute of the Orthodox Church in America. Note: No decision of the Parish Meeting with regard to the property shall be contrary to or in conflict with the provisions of the Statute of the Orthodox Church in America in this respect.

The trial court once again relied upon a selective quotation of a portion of the bylaws, in this case omitting a crucial sentence without an ellipsis. We reiterate that we cannot read a portion of any provision in isolation. Instead, we must consider it as a whole and in conjunction with all other relevant church documents. The bylaws also provide that all decisions and resolutions made by the parish in annual or special meetings shall be sent to the bishop for confirmation and that they do not become effective until receipt of such confirmation.

Most significantly, the articles of incorporation for St. Mary’s explicitly affirm the submission of the parish corporation to the hierarchical authority of the OCA, stating:

The corporation shall be subordinate to and subject to The Diocese of the South of the Orthodox Church in America, and if the said Diocese should become known by another name, then the corporation will likewise be subordinate and subject to the authority of its successor.

The record does not show that these articles have ever been rescinded or amended to remove this provision.

Appellee contends that the church governance is a “hybrid” form akin to the organization in Kidist Mariam, supra, i.e., the parish’s church affairs are entirely separate from its corporate affairs. This contention is without merit. In Kidist Mariam, the corporate documents of the parish explicitly separated the affairs of the parish into two categories, religious and corporate. The bylaws “expressly provide[d] for the corporation’s autonomy while specifying that the [parish] must yield to [the parent church’s] hierarchical dictates only with regard to religious, spiritual, and liturgical matters.” Id. at 473-474. This provision created a hybrid of hierarchical (religious) and congregational (corporate) form of church government.

The church documents at issue here stand in stark contrast to those in Kidist Mariam. They do not lend themselves to an interpretation that the parish’s corporate existence is separate from its religious duties; indeed, they expressly forbid such a conclusion. The corporate documents themselves declare the corporation to be “subordinate to and subject to the Diocese.” The statutes of St. Mary’s explicitly state that “there can never be any administrative separation of‘spiritual’ and ‘material’ matters.” The uniform parish bylaws, while placing ownership of parish property in the parish corporation, provide that no decision regarding such property shall be contrary to or in conflict with the statute of the OCA; they explicitly require confirmation by the bishop of any decision or resolution taken by the parish. The church documents as a whole created a subsidiary parish under the authority of the parent church (OCA) in all matters, not a “hybrid” organization such as that in Kidist Mariam.

The trial court’s reliance upon Mikilak v. Orthodox Church in America, 99 Pa. Commw. 264 (513 A2d 541) (1985), and Orthodox Church of America v. Pavuk, 114 Pa. Commw. 176 (538 A2d 632) (1988), is also misplaced. Of course, “ ‘this Court is not bound by decisions of other states or federal courts except the United States Supreme Court.’ [Cit.]” Nissan Motor &c. Corp. v. Stovall Nissan, 224 Ga. App. 295, 297, n. 3 (480 SE2d 322) (1997). Moreover, both cases are sharply distinguished by their facts, including the corporate documents at issue. The parish in Mikilak, supra at 269, was founded in 1904, and the parish in Pavuk, supra at 178, in 1902, long before the “diasporic scattering” of Russian Orthodox clergy and laity as a consequence of the Russian Revolution. Mikilak, supra at 268. The parishes were incorporated in 1924 and 1907, respectively, and therefore also pre-existed the recognition and confirmation of the OCA by the Patriarch and Holy Synod of Russia in 1970. The Pennsylvania court found in both cases that the corporate documents made no reference to the OCA but “only to the Russian Orthodox Church generally.” Mikilak, supra at 274; Pavuk, supra at 183. In contrast, St. Mary’s was incorporated in 1978, and the corporate documents expressly state: “[t]he corporation shall be subordinate to and subject to The Diocese of the South of the Orthodox Church in America.” The Pennsylvania decisions relied upon by the trial court are therefore neither helpful nor persuasive here.

It follows that, under the statute of the OCA, the uniform parish bylaws, and the bylaws and corporate documents of St. Mary’s, control of the parish property is placed in the parish corporation, but control of the parish corporation is in its turn placed in the Diocesan authority and under the jurisdiction of the archbishop. As in Leopold, supra, there is no question that the members of the local parish are conferred with property rights to the parish property, but they also “voluntarily subject themselves to hierarchical church authority.” Id. at 193. We therefore were unauthorized to intervene in a decision by the bishop in Leopold regarding the disposition of the parish’s property. Id. Similarly, even though ownership of the parish property is vested in the parish corporation of St. Mary’s, that corporation by its governing documents, most explicitly by its articles of incorporation, has voluntarily subjected itself to the “hierarchical church authority” of the OCA.

In overlooking this essential point, the trial court effectively contradicted its finding that the OCA is a hierarchical church by declaring the parish an autonomous congregational body. This result inadvertently but inevitably brings the Georgia courts into the heart of an ecclesiastical dispute, a position we are eminently unqualified to take and are forbidden to take by the constitutional safeguard of separation of church and state. First Born Church &c., supra at 634 (1).

We therefore conclude that the trial court erred in finding a jury issue as to whether Townsend and his adherents are members in good standing with the power to participate in the affairs of the corporation. Townsend had, as a result of the declaration of the archbishop, no power to take any of the actions here in issue. Any judicial interference with the decision of the archbishop would constitute an impermissible intrusion into the internal religious affairs of the OCA. Leopold, supra at 193. The courts of Georgia cannot interfere in the archbishop’s decision, and the trial court erred in so finding. The judgment of the trial court is therefore reversed and this case is remanded for further proceedings consistent with this opinion.

Decided March 28, 2000

Christie, Toreno & Hatcher, Carrie L. Christie, Vincent A. Toreno, E. R. Lanier, for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Anne M. Landrum, for appellee.

Judgment reversed and case remanded.

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

       We agree with the trial court that “[w]ithout going into a detailed history of the Orthodox Catholic Church and ensuing schism between various factions of the Church, this court recognizes that the OCA and ROCA have divergent religious doctrines, practices, and beliefs as well as separate ecclesiastical authorities and ruling convocations which are in conflict with one another.”

       While it is not directly relevant here, Mikilak contains a thorough and highly instructive history of the Russian Orthodox Church from 1054 A.D. Id. at 267-269.

       We find more persuasive such decisions as Bishop &c. of Colorado v. Mote, 716 P2d 85 (Colo. 1986). In Mote, the Colorado Supreme Court relied in part upon Georgia law in applying a “neutral principles” analysis to the departure of an Episcopal parish from its hierarchical parent church. Id. at 95-99. Applying this analysis in a “general inquiry as to the locus and nature of control in the local organization,” id. at 102, the court examined, as we do here, the articles of incorporation, the parish bylaws, and the “canons” or statute of the parent church. Id. at 104. It concluded that, although no explicit trust was created by any formal document, the church documents as a whole showed “an intent on the, part of the local church corporation to dedicate its property irrevocably to the purposes of’ the parent church. Id. Here, of course, trust language does appear in the statute of the OCA.


text:
    A99A2190.
    WOODS v. STATE OF GEORGIA.
    (532 SE2d 747)
   Miller, Judge.

The primary question on appeal is whether in a civil forfeiture proceeding a court may consider and grant the State’s oral motion, made and argued at an unreported calendar call, to strike the defendant’s answer for lack of proper verification. Because under OCGA § 9-11-7 (b) (1) oral motions are allowed only at hearings and trials, which do not include unrecorded calendar calls, we hold the trial court erred in considering the motion and in striking the answer and therefore vacate the judgment and remand the case.

During a search of Claude Woods’s residence, police found illegal drugs and seized his personal property and currency allegedly found in close proximity to the drugs. The State filed a complaint to have the property and currency forfeited under OCGA § 16-13-49 (o). Minutes before the calendar call on the morning trial was scheduled, Woods filed a motion in limine to suppress the evidence and a motion for summary judgment, both on the ground that the search was illegal. At the calendar call (which was not recorded), Woods asked for a continuance to have his motions considered, which continuance the court denied. Arguing Woods’s absence from the courtroom meant the answer was not verified as required by law, the State orally moved to dismiss Woods’s answer. The court denied Woods’s motions in limine and for summary judgment on the merits and granted the State’s motion to strike, resulting in a judgment of forfeiture. Woods appeals the denial of his summary judgment motion and the striking of his answer.

1. Because forfeiture actions are civil proceedings, OCGA § 9-11-81 requires that the Georgia Civil Practice Act apply except to the extent it conflicts with specific rules of the forfeiture statute. OCGA § 16-13-49 does not identify a specific methodology for bringing motions in forfeiture proceedings. OCGA § 9-11-7 (b) (1) of the Georgia Civil Practice Act does provide such a methodology, requiring that motions be in writing unless made during a hearing or trial. Furthermore, a party must generally serve written motions no later than five days before a hearing thereon.

The question therefore is whether an unreported calendar call constitutes a “hearing or trial” in which oral motions to strike or dismiss can be received and considered. This appears to be a case of first impression in Georgia. Because Federal Rule 7 (b) (1) of the Federal Rules of Civil Procedure is worded identically, we look to the interpretation of that rule as instructive and, in this case, persuasive.

The two leading commentaries on the Federal Rules of Civil Procedure concur that under the federal rule “hearing or trial” generally refers to proceedings before the court that are recorded, which would obviate the need for a writing. We adopt this interpretation of Section 7 (b) (1) of the Georgia Civil Practice Act. Because calendar calls are not typically recorded, they are not a “hearing or trial” under this statute, and thus, oral motions should generally not be allowed in them. As the calendar call here was also unrecorded, the oral motion to strike Woods’s answer was improper and the order based thereon invalid.

2. But if allowing Woods to receive and respond to a written motion would have made no difference in the outcome, we would affirm on grounds of harmless error. We find possible harmful error for two reasons.

First, the reasoning of the trial court was flawed. Focusing on the requirement of OCGA § 16-13-49 (o) (3) that the owner’s answer be verified under penalty of perjury, the court concluded that this required the owner to be physically present when the case was called for trial so he could be cross-examined regarding his answer. Because Woods was not present at the calendar call, the court struck his answer. But absent a properly served subpoena or a court order, a party is not required to appear before the court to explain his pleadings. The requirement that the verification be under penalty of perjury refers to the wording of the verification and does not require the affiant’s personal appearance before the court.

Second, Woods could have corrected the defect in the verification wording by amendment. True, the verification here tracked the language held in State of Ga. v. Miller to be inadequate under OCGA § 16-13-49 (o) (3). But an amendment to the answer may correct the lack of a proper verification and will relate back to the original filing date of the answer. Here the court considered and granted the oral motion to dismiss on the ground that Woods’s absence from court was fatal to the verification, not on the ground that the verification was improperly worded. Had the State properly and timely presented the latter ground, Woods could have amended his verification and answer to cure any defects.

The same is true of the State’s argument that insufficient detail was contained in Woods’s answer. Moreover, it would appear that Woods’s giving of a reasonable time frame as opposed to a precise date for acquiring some of the property was not necessarily insufficient.

Because Woods could have cured any defects by amendment, the error caused by improperly considering and ruling on the surprise oral motion to dismiss was not harmless.

3. We also vacate the trial court’s summary denial of Woods’s motion for summary judgment. Woods presented evidence that the search took place a day before the search warrant was issued. Because Woods presented evidence that the search was warrantless, the State bore the burden of proving the search’s legality. Evidence obtained from an illegal search generally must be excluded, even in forfeiture proceedings. With no argument or evidence from the State, the court summarily and without explanation denied the motion on its merits. The proper procedure would have been to allow the State to respond to the motion to determine if there were a material issue of fact as to the search’s legality. We remand for proceedings consistent with this opinion.

Decided March 28, 2000.

George C. Creal, Jr., for appellant.

Robert E. Keller, District Attorney, Rita B. Jackson, Assistant District Attorney, for appellee.

4. The above rulings moot the remaining enumerations of error.

Judgment vacated and case remanded with direction.

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

       See OCGA § 16-13-49 (o) (3).

        Morris v. State of Ga., 234 Ga. App. 683 (507 SE2d 532) (1998).

        Bell v. State of Ga., 234 Ga. App. 693, 694 (507 SE2d 535) (1998).

        Brown v. Brown, 217 Ga. App. 245, 246 (457 SE2d 215) (1995).

       OCGA § 9-11-6 (d).

       See G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327 (1) (486 SE2d 810) (1997); Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154) (1991); see also Poole v. City of Atlanta, 117 Ga. App. 432, 433 (2) (160 SE2d 874) (1968).

       2 Moore’s Fed. Prac., § 7.03 [2], p. 7-14 (3rd ed. 1999); 5 Wright & Miller, Fed. Prac. & Proc.: Civil 2d, § 1193, pp. 47-48 (1990).

       See Wright & Miller, supra.

       Cf. Tifton Bank &c. Co. v. Knight’s Furniture Co., 215 Ga. App. 471, 476 (5) (452 SE2d 219) (1994).

       See Masonry Standards v. UPS Truck Leasing, 257 Ga. 743 (363 SE2d 553) (1988).

        State of Ga. v. Miller, 234 Ga. App. 650, 651 (507 SE2d 521) (1998).

       Id.

       See generally State of Ga. v. Alford, 264 Ga. 243, 245 (2) (444 SE2d 76) (1994) (answer must be in strict compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3)).

         Bell, supra, 234 Ga. App. at 695.

       See Rojas v. State of Ga., 269 Ga. 121, 123 (2) (498 SE2d 735) (1998); Jackson v. State of Ga., 231 Ga. App. 320, 321 (1) (498 SE2d 159) (1998).

       See Howard v. State of Ga., 223 Ga. App. 323, 324 (477 SE2d 605) (1996); cf. Harris v. State of Ga., 222 Ga. App. 267, 268 (474 SE2d 201) (1996) (circumstances were “broadly” outlined); compare Miller, supra, 234 Ga. App. at 651 (transferors not identified nor amounts received from each).

       See OCGA § 17-5-30 (b); Merritt v. State, 133 Ga. App. 956, 957 (1) (213 SE2d 84) (1975).

        Migliore v. State of Ga., 240 Ga. App. 783, 784, n. 1 (525 SE2d 166) (1999), citing Pitts v. State of Ga., 207 Ga. App. 606, 607 (1) (428 SE2d 650) (1993).

       See OCGA § 9-11-56 (c).