text:
    A90A0215.
    ASSOCIATED WRITERS GUILD OF AMERICA, INC. v. FIRST NATIONAL BANK OF ATLANTA. MOODY v. FIRST NATIONAL BANK OF ATLANTA.
    A90A0216.
    (395 SE2d 23)
   Carley, Chief Judge.

In January of 1981, appellant-plaintiff Roy Moody opened a checking account for appellant-defendant Associated Writers Guild of America, Inc. (AWGA) with appellee-defendant First National Bank (Bank). In March and April of 1982, the Bank refused to honor several checks that had been drawn on AWGA’s account and, as the result, AWGA and Moody each originally filed a separate action against the Bank. However, these separate actions were voluntarily dismissed in July of 1985 and AWGA and Moody thereafter refiled a joint action against the Bank in August of 1985. This refiled August 1985 joint action was taken voluntarily dismissed in November of 1986. In May of 1987, Moody filed the instant action and named as the defendants therein both AWGA and the Bank. AWGA answered Moody’s complaint and filed its own cross-claim against the Bank. The Bank answered and raised, among its other defenses to Moody’s main claim and AWGA’s cross-claim, the statute of limitations. After discovery, the Bank moved for summary judgment based upon its statute of limitations defense and the trial court granted the motion. AWGA and Moody filed separate notices of appeal and the resulting two cases are hereby consolidated for appellate disposition in this single opinion.

1. An action for wrongful dishonor of checks sounds in tort. Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 61 (2c) (390 SE2d 55) (1989). “This kind of action may be analogized to an action of libel or slander. . . .” Hilton v. Jesup Banking Co., 128 Ga. 30, 32 (1) (57 SE 78) (1907). Since an action for wrongful dishonor is analogous to an action for an injury to the reputation such as libel or slander, it necessarily follows that wrongful dishonor is “a tort involving an injury to the person even though this injury may not be physical.” OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 667 (2B) (386 SE2d 146) (1989). Accordingly, the statute of limitations for a wrongful dishonor claim would certainly be no greater than two years and quite possibly no greater than one year. See OCGA § 9-3-33. Regardless of whether the applicable statute of limitations is one or two years, Moody’s and AWGA’s commencement in 1987 of their instant actions based upon the Bank’s alleged wrongful dishonor of checks in 1982 would certainly not be timely. Thus, the only issue presented for review is whether Moody’s main claim and AWGA’s cross-claim are valid renewal actions within the purview of OCGA § 9-2-61.

Decided May 16, 1990

Rehearings denied June 1, 1990.

Paul H. Kehir, for appellant.

McClain & Merritt, Howard M. Lessinger, for appellee.

2. OCGA § 9-2-61 (a) provides, in relevant part, that “if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, [the] privilege of renewal shall be exercised only once.” (Emphasis supplied.) When Moody and AWGA dismissed their original actions against the Bank in July of 1985, it is clear that the statute of limitations, whether it be one or two years, had long since run as to their claims for the Bank’s alleged wrongful dishonor of checks in 1982. Thus, assuming that Moody and AWGA were otherwise authorized to rely upon OCGA § 9-2-61 (a), they exercised their one and only opportunity to secure a valid renewal under that statute when they refiled their joint action against the Bank in August of 1985. Thus, when Moody and AWGA dismissed their August 1985 renewal action in November of 1986, they were not authorized under OCGA § 9-2-61 (a) to refile their actions against the Bank yet again. Since Moody’s and AWGA’s instant actions filed in May of 1987 would represent their second and, therefore, unauthorized reliance upon OCGA § 9-2-61, it follows that the trial court correctly granted summary judgment in favor of the Bank on its statute of limitations defense.

Judgments affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A0539.
    REED v. THE STATE.
    (395 SE2d 294)
   Pope, Judge.

Defendant was convicted of burglary and appeals. At trial a patrolman with the Franklin, Georgia, Police Department testified he was instructed to be on the look-out for a brown and white van with three male passengers traveling east on Georgia Highway 34. The police department had received a report that the van was seen pulled into a driveway of a house, the owners of which were away from home. The house was located in a neighborhood where several burglaries had been reported.

The patrolman saw a van matching the description he had been given and followed the van a short distance where it pulled into a convenience store. A temporary paper Florida license was on the van. According to the patrolman, a temporary plate is easier to duplicate than a metal plate. Based on these suspicions he approached the van to investigate and determined that defendant, the driver, did not have a driver’s license. Defendant told the patrolman the van had been loaned to him by a friend and presented him with a bill of sale bearing that person’s name. Pursuant to a computer check the patrolman determined that the van was not reported stolen. The patrolman transported defendant to the county sheriff’s office in order to determine if defendant was merely unlicensed or if his license had been revoked. One of the other passengers in the van who had a valid driver’s license was állowed to drive the van to the sheriff’s office.

According to the patrolman, the van was impounded in order to secure it for its owner. Because it was impounded a routine inventory was taken of the contents of the van. The inventory revealed numerous items of personal property which had been reported stolen in a burglary the previous day. Defendant argues the trial court erred in denying his motion to suppress the evidence discovered during the inventory of the van.

The patrolman did not violate defendant’s Fourth Amendment rights in briefly detaining defendant to make an investigation of suspicious circumstances even though those circumstances were not sufficient to establish probable cause to make an arrest. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1967). However, we agree with defendant that the impoundment and resulting inventory of the van was unnecessary under the circumstances of this case and therefore the evidence discovered and seized as a result of the inventory was not admissible at trial. “When the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed . . . it is unnecessary for the police to impound it. . . . [T]he rationale for an inventory search does not exist.” (Citation and punctuation omitted.) State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503) (1978). Accord Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983). In both of these cases, as in the case at hand, the owner of the vehicle was not present, and defendant claimed he was driving with the owner’s permission. In Ludvicek the defendant requested that his passenger be permitted to return the car to its owner. In Strobhert the evidence showed the arresting officer did not ask whether the defendant’s companion could be trusted with the vehicle, did not attempt to contact the owner and did not give defendant the opportunity to make alternative arrangements for the removal of the vehicle. In the case at hand defendant did not present evidence that he requested that his companion be allowed to remove the vehicle or evidence that the patrolman failed to attempt to contact the owner or to give defendant the opportunity to make other arrangements for the removal of the van. However, the record shows the licensed passenger was allowed to drive the van from the location where defendant was arrested to the sheriff’s office. A computer check gave the officer no reason to believe the van had been stolen. Thus, under these circumstances and pursuant to the rationale of Ludvicek and Strobhert, the impoundment and inventory of the van was not reasonably necessary in this case. Because we hold the trial court erred in denying defendant’s motion to suppress evidence, we need not address defendant’s remaining enumerations of error.

Decided June 1, 1990.

John W. Miller, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A90A0813.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. DAY.
    (394 SE2d 913)
   Birdsong, Judge.

State Farm Mutual Automobile Insurance Company appeals the grant of summary judgment to the plaintiff, who is next friend (and mother) of the deceased insured’s son, Jason Day. The summary judgment ordered State Farm to pay Jason Day one-half of the $25,000 no-fault insured survivor’s benefits.

Jason Day, by his next friend and mother (former spouse of deceased) filed a timely claim to share survivor’s benefits pursuant to OCGA § 33-34-5 (a) (2), but State Farm paid the entire benefit proceeds to the deceased insured’s present spouse, Elizabeth Day, pursuant to its own interpretation of OCGA § 33-34-5 (a) (2), in reliance upon Georgia Farm Bureau &c. Ins. Co. v. Pendley, 155 Ga. App. 674 (272 SE2d 540). Held:

We affirm the trial court’s grant of summary judgment to plaintiff, Jason Day.

OCGA § 33-34-5 (a) (2) provides: “In the event of the death of the injured person who is survived by a spouse or dependent child or children . . . the payment [of compensation is] to be made to the spouse, if alive, and otherwise to the child or children ... for use of the spouse or children as though awarded as a year’s support for the spouse or children, or both.” (Emphasis supplied.)

State Farm contends the current spouse is entitled to the entire benefit if she is alive, otherwise (and only otherwise) the dependent child is entitled to benefits; that is, benefits are payable to the “spouse or children,” but not “both.” This interpretation ignores the critical word, “both,” in the statute, and ignores the language that payment is to be made “as though awarded as a year’s support for the spouse or children, or both.”

In all statutory interpretations, especially those of unclear statutes such as OCGA § 33-34-5 (a) (2), “the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. . . .” OCGA § 1-3-1 (a). “It is a well-established principle that a statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115).

“ ‘[Legislative intent is the determining factor in judicial construction of ambiguous legislative enactments. [Cits.] In arriving at this intent . . . it is . . . fundamental that all of the words of the statute are to be given due weight and meaning [cit.] and that the court is not authorized to disregard any of the words of the statute in question unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.’ ” (Emphasis supplied.) Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324), cited in Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293, 296 (299 SE2d 611).

“Reading [OCGA § 33-34-5] as a whole we are . . . compelled to conclude that the General Assembly intended to draft it for the benefit of survivors. . . .” Vansant v. Allstate Ins. Co., 142 Ga. App. 684, 687 (236 SE2d 858). The classification of survivors and specifications of payment “cannot be said to be irrational. The classes of surviving spouses and children are the classes most likely to suffer financially from the death.” Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479, 482 (241 SE2d 238). “This classification system makes rational distinctions . . . and bears a direct relation to the purposes .of the Act.” Id. p. 483. OCGA § 33-34-5 is a “provision for survivor’s benefits for a surviving spouse and children,” as an extension of no-fault benefits to these classes of persons. (Emphasis supplied.) Id. at 481.

The alternative language in this statute (“spouse or children”) must be harmonized with the concomitant use of the word “both.” Clearly, the legislature intended to provide benefits to dependent children, as a specified class “most likely to suffer financially from the death [of the insured].” Cannon, supra at 482; International Indem. Co. v. Collins, 258 Ga. 236, 237 (367 SE2d 786); Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293, 296 (299 SE2d 611).

It is manifestly absurd to conclude that, although the Act intends to provide financial protection for those “most likely to suffer financially from the death [of the insured]” (id. at 482; Cannon, supra), dependent children whom the insured is required by law to support (see International Indem. Co. v. Collins, supra), get nothing from the insurer if there is a surviving spouse who is not the child’s parent. There is no harmony in such an interpretation and no logic, since the statute has specified dependent children as among those “most likely to suffer financially from the death.” Cannon, supra. Therefore, if it is deemed that the confusing language in the statute can be reconciled only if one part is disregarded, we must give less weight to the alternative language (“spouse, if alive, otherwise to the child or children ... for use of such spouse or children”). To the extent that language would exclude any benefit to a dependent child in favor of a spouse, it violates the act’s intention to provide benefits to those “most likely to suffer by the death” (Cannon, supra), and is manifestly absurd and illogical. Boyles v. Steine, supra; Nationwide Mut. Ins. Co. v. Gay, supra.

The statute is in fact clear on this point. Although it first provides that “the payment [is] to be made to the spouse, if alive, and otherwise to the child or children,” it then carefully explains that “[the payment is] . . . for [the] use of the spouse or children as though awarded as a year’s support for the spouse or children, or both.” (Emphasis supplied.) OCGA § 33-34-5 (a) (2) (as amended). This language (“as though awarded as a year’s support”) is unusual and significantly controlling, or else would not have been so specifically included. See OCGA § 1-3-1 (a).

The law on year’s support, at OCGA § 53-5-2 (b) and (c), as amended, provides: “Upon the death of any person . . . proceedings shall be held to set apart and assign to the spouse and [minor] children, or children only, [or any other person in their behalf] ... a sufficiency from the estate for their support and maintenance. . . . (c) The amount to be set apart . . . shall be an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death [taking into account the support available]. . . .” (Emphasis supplied.) See also § 53-5-4.

The law on year’s support further expressly provides: “Setting apart of property to minor children of different spouses: If the decedent leaves minor children by different spouses, the judge of the probate court shall specify the portion going to the children of the former spouse or spouses, which portion shall vest in the children.” OCGA § 53-5-9, as amended. This language, with § 53-5-2 (b) and (c), supra, is conclusive as to the fact that the dependent child of a different (former) spouse has a distinct right to share with the current spouse in year’s support; and, it is conclusive that the share vests in the child, thereby prescribing the method of payment which the insurance statute (§ 33-34-5 (a) (2)), by incorporation of that language, decrees.

Interpretation of this statute with reference to the law on year’s support is not only mandated by the statute itself, but also leads to an entirely rational result, instead of the “irrational” (Cannon, supra at 482) result of excluding a dependent child from death benefits or forcing such child to compel payment of his or her share from the surviving spouse.

The problem of the statute is that it first seems to assume the “spouse” will be the parent of the dependent child and would naturally share the benefits with the child. Georgia Farm Bureau &c. Ins. Co. v. Pendley, supra, relied upon by State Farm, echoes this assumption. In Pendley, the spouse was the mother of the dependent child, and both of them contended that each was entitled to receive the full benefit under the policy, i.e., amounting to a double payment of benefit. No question was raised in that case of the dependent child claiming a right to a share of the benefits with a spouse who is not the parent of the dependent child. Thus, the description of Pendley given in Jenkins & Darroch, Georgia Auto Ins. Law, § 24-4, is overly broad where it states that if there are both dependent children and a surviving spouse, “payment goes only to the surviving spouse, not both,” for the Pendley case actually held that spouse and child do not get double payments, and involved a spouse who was mother of, and presumably guardian of, the dependent child, so that the award of benefits to that spouse did not presume to exclude her child from sharing in the benefit.

We find no harmonious interpretation of this statute except that “both” spouse and dependent child are to receive the insured’s benefit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

On motion for rehearing, State Farm protests that it never meant to contend dependent children could not share in survivors’ benefits, under OCGA § 33-34-5 (a) (2), but only meant to establish that the insurer does not have to pay anyone but the surviving spouse or apportion payments to surviving spouse and dependent children. Rather, State Farm says the meaning of the statute only requires it to pay the spouse, and the children’s right to recover is a right against the spouse.

We clearly held, as § 33-34-5 (a) (2) provides, that the payments are to be made “as though awarded as a year’s support for the spouse or children, or both.” According to the year’s support statutory provisions, payment “shall vest in the child” and the issuer pays directly to the child. OCGA § 53-5-9, as amended, 1986. This scheme clearly avoids unnecessary litigation, consistent with the goal of the survivor’s benefit law (see Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479 (241 SE2d 238)), and prevents the child from having to use up its benefits in a superfluous suit against the spouse.

Decided May 8, 1990

Rehearing denied June 4, 1990

Young, Young & Clyatt, F. Thomas Young, William A. Turner, Jr., for appellant.

Walters, Davis, Smith, Meeks & Pittman, J. Harvey Davis, Ellis & Hobby, Rick F. Ellis, Jr., O. Wayne Ellerbee, for appellee.

State Farm contends this year’s support section, § 53-5-9, added by 1986 amendment, cannot apply to the 1974 insurance statute. But we are bound to conclude the legislature was clearly aware of the insurance act which incorporated the year’s support law, and could as easily have amended the insurance statute (§ 33-34-5) if it had not intended it to incorporate the 1986 year’s support amendment.

At least State Farm has now plainly recognized the child’s right to share in survivor’s benefit. As for State Farm’s complaining about its duty to pay the child directly, the insurance statute clearly specifies the method of payment to be that prescribed in the year’s support law, § 53-5-9.

Motion for rehearing denied.


author: Banke, Presiding Judge.

text:
    A90A0149.
    CASTAGNA v. ROGERS.
    (395 SE2d 58)
   Banke, Presiding Judge.

This appeal arises from an action by the appellee, a Virginia attorney, to recover fees for representing the appellant and three corporations owned by him, which were identified in the complaint as follows: “HASTINGS INDUSTRIES, INC., U. S. ENERGY CONSERVATION SYSTEMS, INC., a Georgia corporation, and U. S. ENERGY CONSERVATION SYSTEMS, INC., a Delaware corporation.” (Also named as a defendant in the original complaint was a second individual who was later voluntarily dismissed from the action by the appellee.) The appellant and the three corporate defendants failed to answer the complaint; and on April 26, 1982, following a non-jury trial on the issue of damages, the appellee obtained a default judgment against the appellant, Hastings Industries, Inc., and “U. S. Energy Conservation Systems, Inc.” in the amount of $61,008.86. On January 28, 1987, the appellant filed a motion to set aside this judgment on the ground that he had never been served in the action. That motion was denied on May 11, 1988, whereupon the appellant filed a direct appeal, which he subsequently withdrew. Thereafter, the appellant filed a motion “[t]o confirm dismissal, or, in the alternative, to open the default, or, in the alternative, to resolve the claims against the remaining defendants.” Because only one corporation with the name, U. S. Energy Conservation Systems, Inc., had been listed as a defendant in the 1982 default judgment, the appellant argued that the judgment had not adjudicated all claims against all parties and therefore was not final, with the result that the action had remained pending from 1982 to 1988 (a period of more than five years) without any written order having been entered in it. The appellant took the position that the complaint had therefore been dismissed automatically pursuant to OCGA § 9-2-60 (b). The appellee responded to the appellant’s motion by moving to correct and amend the original judgment, arguing that the failure to list both of the corporate defendants named U. S. Energy Conservation Systems, Inc., had been a mere oversight in drafting. The trial court agreed and entered an amended judgment in favor of the appellee nunc pro tunc as of the date of the original judgment, while denying the alternative motions filed by the appellant. This appeal followed. Held:

Decided June 4, 1990.

Troutman, Sanders, Lockerman & Ashmore, Kevin C. Greene, Elizabeth F. Johnson, for appellant.

Freisem, Swann & Malone, C. Cyrus Malone III, for appellee.

The appellant does not dispute that all three corporate defendants were in default as of the date of trial on April 26,1982, and there is no conceivable reason why the trial judge would have intended to exclude either of the corporate defendants with the name, U. S. Energy Conservation Systems, Inc., from the ambit of the default judgment. Thus, we conclude that the nunc pro tunc amendment “changed nothing of substance . . . [with the result that] there was no new judgment, order of ruling . . . which could be the subject of appeal.” Duncan v. Ball, 174 Ga. App. 341, 345 (330 SE2d 160) (1985). It follows that the present appeal must be dismissed.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0697.
    TUREM et al. v. SINOWSKI & JONES.
    (395 SE2d 60)
   Birdsong, Judge.

Appellants Turem et al. appeal the grant of summary judgment to the plaintiff law firm in this suit on account or for fees owed. Appellants contend principally that they first agreed to pay Sinowski & Jones a certain fee for assistance in preparing the offering of issuance and sale of capital stock in appellants’ corporation, but later the law firm itself became interested in the investment and accepted as its fee the offer of stock options in return for sharing the risk for success of the offering. Turem et al. contend appellee law firm negotiated that it be paid the balance of its fee above the original retainer, out of the funds to be raised by its stock offering. These facts were disclosed in the offering documents, pursuant to state and federal securities law requirements. The stock offering failed to raise the anticipated capital; appellee sought its original fee. The trial court found the original fee contract to be binding and that it had not been modified, under the definition of OCGA § 13-4-4. According to the trial court’s ruling, § 13-4-4 requires that for a jury question to exist as to modification, “two elements must have existed: (1) [defendants must have paid; and (2) [p]laintiff must have received money under the alleged modification.” (Emphasis supplied.) See Norair Engineering Corp. v. Porter Trucking Co., 163 Ga. App. 780 (295 SE2d 155).

Appellants also object to the trial court’s jurisdiction. Held:

1. The trial court erred in granting summary judgment on grounds that plaintiff law firm received no money, even though it is clear that after the original fee agreement was entered, the parties negotiated for appellee law firm to receive stock options as part of the agreed fee, and to thus share the risk of the offering. That such negotiations occurred and a new agreement was consummated are evidenced by the parties’ affidavits and by the disclosure statements made in the offering documents themselves. There can be no doubt that appellee law firm made an investment by which it acquired “the right to earn . . . compensation,” as defined by the Georgia Securities Act, OCGA § 10-5-2 (26) (C); see also § 10-5-2 (8). The law of modification generally is that the terms of a written contract may be modified or changed by a subsequent parol agreement, “where such agreement is founded on a sufficient consideration.” Ryder Truck Lines v. Scott, 129 Ga. App. 871, 873 (201 SE2d 672).

OCGA § 13-4-4 does provide that where actual “money” is exchanged, a departure from the contract is effected. Nevertheless, this code section does not anywhere provide that exchange of “money” is the only circumstance by which a departure or modification can be effected; and the statute nowhere provides that it is the sole and exclusive repository of law applicable to the question of whether there has been a valid modification or novation. In fact, § 13-4-4 does not directly address this question but merely says that if money has been paid or received under a departure so as to provide consideration for a legal modification, then the party seeking to enforce the original contract must give reasonable notice; otherwise, the contract is “suspended by the departure” until such notice. OCGA § 13-4-4. This statute merely sets forth a plain statutory consequence of the receipt or payment of money under a departure. It does not purport to supplant the other legal circumstances that will effect a novation or modification. Clearly if, as alleged, the parties here substituted an investment position with potential for compensation (see § 10-5-2 (26) (C)) for the original fee agreement, the jury may find a modification of the contract, supported by sufficient consideration. Ryder Truck Lines, supra. The trial court erred in interpreting § 13-4-4 and its use of the term “money” to provide the sole means of effecting a modification.

Decided June 4, 1990.

Peters, Peebles, Talley & Townsend, Charles F. Peebles, for appellants.

Sinowski & Jones, Mark V. Clark, for appellee.

2. The Cobb County trial court did not err in finding that it had jurisdiction of the case, for the legal consulting business of the parties was transacted in appellee’s office in Cobb County. OCGA § 9-10-93. And, as joint obligors on the fee arrangement, whatever it was, all defendants may be sued in Cobb County (§ 9-10-31); and mere failure to make proof of service of the appellant-defendants who resided elsewhere (OCGA § 9-11-4 (g)) does not remove jurisdiction otherwise proper.

The summary judgment to appellee was correct and no reason is shown why the jurisdiction of the Cobb County court is not properly founded.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A0462.
    COMMONWEALTH LAND TITLE INSURANCE COMPANY v. MILLER.
    (395 SE2d 243)
   McMurray, Presiding Judge.

In February of 1979, Albert Raymond Miller and Linda Miller purchased a residence from Hazel Bartow by delivering a promissory note and deed to secure debt to Mrs. Bartow in the amount of $48,000. On April 29, 1980, Mr. Miller wrote Mrs. Bartow to advise her of their intent to sell the property, further stating that. “[p]ursuant to our agreement, any prospective buyer must be approved in writing by you if the prospective buyer wishes to assume the mortgage that you hold.” No sale was made to a third party at that time, but after they divorced in 1982, Mr. Miller deeded the property to Mrs. Miller, who then began making the monthly payments to Mrs. Bartow. Mr. Miller testified at trial that Mrs. Bartow had orally agreed to the title transfer, but no written approval was obtained. Subsequently, because of financial troubles, Mr. Miller bought the property back from Mrs. Miller, with Mrs. Bartow’s knowledge but without her written approval. In February of 1985 Mr. Miller conveyed the property to Sam F. Woodley, Jr., “contingent upon purchaser being able to assume the existing first mortgage in favor of Hazel Bartow.” Mr. Woodley began making payments on the promissory note but he defaulted in August of 1985, after which Mrs. Bartow assigned the note to appellant Commonwealth Land Title Insurance Company (“Commonwealth”).

Commonwealth brought the instant action against Mr. and Mrs. Miller, seeking to recover all principal and accrued interest plus attorney fees as provided in the note. Mr. Miller filed a third party complaint against Sam F. Woodley, Jr. Mrs. Miller did not answer or defend and default judgment was entered against her prior to trial. At trial, the amount of the deficiency was uncontested, but Mr. Miller defended on the ground that Mrs. Bartow’s actions constituted a release by novation, waiver or equitable estoppel sufficient to relieve him of liability on the note. The trial judge overruled Commonwealth’s motion for directed verdict and the jury found in favor of Mr. Miller. Commonwealth appeals from the denial of its motion for directed verdict and certain of the trial court’s jury charges. Held:

‘A novation . . . has four essential elements: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one. (Cits.) . . . There may be a novation of debtors, but the novation must be such as to release the original debtor and substitute a new debtor in his place.’ [Cit.] In the case at bar there is no dispute that a previous valid obligation existed between [Mr. Miller] and [Mrs. Bartow]. However, the evidence also established that [Mr. Miller] remained obligated on the [Woodley mortgage], and no other debtor was substituted for his obligation. Thus, no novation occurred here.” Randall v. Norton, 192 Ga. App. 734, 736 (2) (386 SE2d 518) (1989).

More than two months after the sale to Sam F. Woodley, Jr., Mrs. Bartow’s attorney wrote him requesting prompt payments in accordance with the note and advising him that the note had been transferred without the consent of Mrs. Bartow, the holder, who did not waive any rights she had under the deed to secure debt. The fact that Mrs. Bartow accepted, or even demanded, payments from Sam F. Woodley, Jr., did not create a novation so as to substitute him as obligor on the note because: “there was no agreement of all parties to create a new contract and extinguish the old contract, and [Mr. Miller’s] valid obligation to pay the indebtedness remained. [Cits.]” Gosnell v. Waldrip, 158 Ga. App. 685, 687 (3) (282 SE2d 168) (1981). Accord Hall v. Robertson, 168 Ga. App. 582 (309 SE2d 690) (1983). “In order for [Mr. Miller] to be released, there must be clearly shown both the intention of the creditor to release the first obligor as well as the extinguishment of his liability. (Cits.) No such evidence was presented here.” Motel Mgmt. Systems v. Billing, 143 Ga. App. 702, 703 (1) (240 SE2d 173) (1977). See also Hall v. Bank South, Washington County, 186 Ga. App. 860 (368 SE2d 810) (1988).

Nor was any waiver or estoppel shown by the initial transfers of the property between Mr. and Mrs. Miller. They both executed the note and were co-obligors under its terms, which provided: “This Note shall be the joint and several obligation of all makers, sureties. . . .” See OCGA § 11-3-118 (e); Ghitter v. Edge, 118 Ga. App. 750, 752 (2) (165 SE2d 598) (1968). Thus, neither the transfer of the property between them, nor assumption of the duty to make payments under the note by one or the other, entitled Mr. Miller to rely on the doctrines of waiver and estoppel. Mrs. Bartow testified that it was immaterial to her which of the Millers made the payments since they both signed the contract, so clearly there was no reason for her to have objected, and “mere silence is not sufficient to establish a waiver unless there is an obligation to speak. [Cit.]” Jordan v. Flynt, 240 Ga. 359, 364 (3) (b), 366 (240 SE2d 858) (1977). “In cases of silence there must be not only the right but the duty to speak before failure to do so [becomes] an estoppel. [Cit.]” Tybrisa Co. v. Tybeeland, 220 Ga. 442, 445 (139 SE2d 302) (1964). “[W]here as here the only evidence of an intention to waive is what a party does or forbears to do, ‘his acts or omissions to act, relied on, should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.’ [Cits.]” Jones v. Roberts Marble Co., 90 Ga. App. 830, 832 (84 SE2d 469) (1954).

The facts here, construed as a matter of law in the light most favorable to Mr. Miller, were not sufficient to relieve him from liability. “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). The parties stipulated to the execution and delivery of the promissory note by Mr. Miller, the default thereon and assignment to Commonwealth, and the amount due in damages. “[O]nce the maker of a promissory note admits having executed the note, production of the instrument entitles a holder to the judgment sought unless the maker establishes a defense. OCGA § 11-3-307 (2). In the instant case, [Commonwealth] introduced the note, established its authenticity, and therefore, had a prima facie right as a matter of law to the face amount of the note and specified interest. [Cit.]” Sadler v. Trust Co. Bank, 178 Ga. App. 871, 873 (2) (344 SE2d 694) (1986). Since Mr. Miller did not carry his burden of establishing his defense that he had been released from liability on the note, Commonwealth was entitled to judgment, and a verdict should have been directed in its favor. Gosnell v. Waldrip, 158 Ga. App. 685, supra.

Decided May 17, 1990

Rehearing denied June 5, 1990

Ford & Harrison, F. Carlton King, Jr., John L. Monroe, Jr., for appellant.

Michael Mears & Associates, Michael Mears, Towery, Thompson, Gulliver & Bunch, Matthew A. Towery, David Gottlieb, for appellee.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A0197.
    MORTGAGE COUNSELING SERVICES, INC. v. HOUSING AUTHORITY OF DeKALB COUNTY.
    (395 SE2d 306)
   Pope, Judge.

In May 1989, defendant Housing Authority of the County of DeKalb, Georgia, adopted a bond resolution to issue the sale of bonds to fund a program offering monies to mortgage lenders who would, in turn, offer low interest mortgages to low and moderate income families purchasing homes in DeKalb County. The Authority issued a revised invitation to participate which specified that participating lenders must be approved by the Federal Housing Authority as a direct endorser, meaning a lender whose loans are automatically endorsed by the FHA and the Department of Housing & Urban Development for mortgage insurance upon the receipt by HUD of certain application forms. Eighteen lenders submitted applications to participate in the program requesting allocations substantially in excess of the funds available. The Authority approved the applications of twelve lenders and denied the applications of six, including plaintiff Mortgage Counseling Services, Inc. One of the reasons plaintiff’s application was denied was that plaintiff was not approved as a direct endorser by the FHA.

Plaintiff brought suit against the Authority for an amount equal to the lost revenues it claims it would have earned if plaintiff had been approved to participate in the program. Following a bench trial, the trial court made findings of fact and conclusions of law and entered judgment in favor of the Authority. Plaintiff appeals.

1. Plaintiff urges that the requirement that a lender be qualified as a direct endorser in order to participate in the Authority’s program is unreasonable, arbitrary and capricious and therefore constitutionally defective. We disagree.

The housing authority of any Georgia county or municipality is authorized by statute to loan money to private mortgage lenders so those lenders may offer mortgage loans to finance housing. OCGA § 8-3-35 (b) (3). The statutory definition of “mortgage lenders” does not require the lender to be approved as a direct endorser of the FHA. OCGA § 8-3-3.1 (4). However, the applicable Code sections do not prohibit a housing authority from restricting the class of lenders to which it loans money. In fact, the authorities are granted broad discretion and powers to act in such a way “as will tend to make the bonds more marketable, notwithstanding that such . . . acts . . . may not be enumerated in this Code section.” OCGA § 8-3-77 (10). The record shows a direct endorser is required by federal regulations to have, in addition to other criteria, a net worth of at least $250,000. HUD automatically endorses the loans of a direct endorser which are submitted in accordance with the prescribed application process. The record shows plaintiff is eligible to originate loans as a correspondent of the FHA but must submit loans for approval on a case-by-case basis. The director of defendant Authority testified that the decision to require participants to be authorized as direct endorsers was based, in part, on past experience. In an earlier program a lender, which was a correspondent but not a direct endorser, was unable to obtain FHA insurance on loans and the county lost funds on two loans issued by that lender. Thus, the decision to require direct endorser status as a criterion for participation in the program was rationally related to concerns for the financial integrity of the program and the bond issue. Consequently, we conclude that the requirement was authorized by OCGA § 8-3-77 (10) which grants the Authority broad discretion to make the bonds issued by it marketable and secure.

“[Classification in legislation is permitted when the classification is based on rational distinctions, and the basis of the classification bears a direct and real relation to the object or purposes of the legislation.” Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479, 482 (241 SE2d 238) (1978). The classification here was not constitutionally defective.

2. Plaintiff abandoned its second enumeration of error by failing to support it by citation of authority or argument. See Rule 15 (c) (2) of the Rules of the Court of Appeals of Georgia. Moreover, we find no merit in plaintiff’s enumeration that the invitation for applications issued by the Authority conferred any contractual right to plaintiff for allocation of bond funds.

Decided June 5, 1990.

Alfred L. King, Jr., for appellant.

Chesnut & Livingston, J. David Chesnut, Tom Pye, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0986.
    SIRMANS v. THE STATE.
    (395 SE2d 307)
   Birdsong, Judge.

Theo Sirmans appeals his conviction of aggravated assault by firing a .12 gauge shotgun into his nephew’s home. He was sentenced to fifteen years imprisonment, with five years to serve and ten years on probation.

The evidence at trial showed that in the early morning hours of October 10, 1989, someone fired a shotgun into the house where Allen Sirmans and his family were sleeping. Buckshot hit the picture window of the house and some of the pellets penetrated the window, striking the walls and furniture inside.

Although no one saw who fired the shot, Allen Sirmans heard a pickup truck with a loud motor driving away toward the nearby Georgia-Florida state line. He also testified that his uncle had a pickup truck with a loud motor. Other witnesses testified that they heard and saw a truck of the same make and model as the one owned by Sirmans driving from the direction of Allen Sirmans’ home toward the state line. Further, not long after the event, Allen Sirmans went to Sirmans’ home and store, saw that he was not there, and then saw Sirmans driving his truck on a route which one could use to return from Florida to Sirmans’ store without passing Allen Sirmans’ home. The evidence showed that there was not much traffic at that time of the morning.

A short time later Sirmans was questioned at this store by a deputy sheriff and by his brother, Allen Sirmans’ father. At that time they retrieved a .12 gauge shotgun from Sirmans’ truck, and found that it recently had been fired. Sirmans explained this by saying that, although it was not deer season, he had shot a deer that morning, and got some meat. There was no evidence in the truck, however, showing that a deer had been shot. Additionally, at trial Sirmans also gave other explanations for his conduct that morning, and called an alibi witness who testified that Sirmans did not mention either shooting, or shooting at a deer that morning.

Allen Sirmans also testified that the day before the shooting he had angered Sirmans by laughing at him and not helping him when Sirmans was in a fight with another man. Also, the evidence of the similar transactions was to the effect that, when angry, Sirmans used firearms and, indeed, shot at others with a shotgun.

Sirmans contends that the trial court erred by permitting his cross-examination about why he had not informed a GBI agent about an alibi, by allowing the State to introduce the evidence of similar transactions, and by denying his motion for a new trial based upon the failure of the State to prove his guilt beyond a reasonable doubt. Held:

1. The first enumeration asserts the trial court erred by allowing the district attorney to question Sirmans whether he told a GBI agent about his alibi witness after the GBI agent had advised him of his rights. Since the record shows no objection was made at the time of the cross-examination, there is nothing presented here for appellate review. Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8); Fowler v. State, 155 Ga. App. 76 (270 SE2d 297). Further, there is no issue here about violating Sirmans’ right to remain silent since Sirmans did not rely upon his rights, but instead made a statement to the agent explaining his whereabouts that morning. See Malone v. State, 181 Ga. App. 563, 564 (353 SE2d 60).

2. The second enumeration contends the trial court erred by permitting the State to introduce evidence of similar offenses. The record shows, however, that not only was no objection made, but Sirmans’ defense counsel stated she had no objection to the introduction of this evidence. Accordingly, there is nothing presented here for our consideration. Pulliam v. State, supra; Fowler v. State, supra.

3. Sirmans’ final enumeration of error contends the trial court erroneously denied his motion for a new trial because the State failed to prove his guilt beyond a reasonable doubt since his conviction was based on circumstantial evidence which failed to exclude every reasonable hypothesis but his guilt.

Where the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512 (299 SE2d 710); Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). A conviction based on circumstantial evidence is authorized only if the “prove [n] facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused” (OCGA § 24-4-6), and if it meets this test, circumstantial evidence is as probative as direct evidence. Christmas v. State, 171 Ga. App. 4, 7 (318 SE2d 682). Moreover, “[w]hether this burden has been met is a question for the jury.” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546); Christmas v. State, supra. Although the circumstantial evidence must exclude every other reasonable hypothesis save the defendant’s guilt, it need not exclude every inference or hypothesis. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662).

Decided June 5, 1990.

J. Carol Sherwood, Jr., for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

On appeal, the presumption of innocence no longer avails and we must view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Doing so, we conclude that the jury rationally could have found from the circumstantial evidence that every reasonable hypothesis was excluded except that Sirmans fired the shotgun into Allen Sirmans’ home, and that the trial transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Sirmans was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, the trial court did not err by denying the motion for a new trial.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1011.
    ABDSHARAFAT v. THE STATE.
    (395 SE2d 61)
   Birdsong, Judge.

Appellant, Ismail Abdsharafat, appeals his sentence and judgment of conviction. He was found guilty by jury of DUI and improper lane usage, and not guilty of driving with an unlawful blood alcohol level within three hours of having an alcohol concentration of at least .12 grams.

Appellant was observed cutting into a turn lane and then immediately pulling back out thereof; the police officer followed appellant and observed him subsequently cross halfway over the centerline once, and shortly thereafter cross the centerline with all four wheels of his vehicle. Appellant also “would go from side to side.” Nothing was in the road to cause such erratic driving.

The police officer stopped appellant, who admitted he had been drinking but he could not recall how much. Appellant agreed to take a field sobriety test and failed all three parts: Appellant could not complete a recitation of the alphabet, claiming he was not familiar with it because he was from a different country; he completely missed touching his nose four out of six attempts; he could not complete the heel to toe test, as he could neither walk adequately nor do the required step counting. Appellant was unsteady on his feet, and when standing, he would have to take a step backwards to keep his balance. Appellant smelled of alcoholic beverages, had bloodshot and glassy eyes, his face was somewhat flushed, he was uncertain making turns, when walking he had to keep moving to stand up, and was off balance, unsteady on his feet. The police officer had completed state-mandated training, and had over eight years total police experience at the time of the stop. In response to the question whether appellant was under the influence to the extent he was impaired and a less safe driver, the police officer opined that appellant “was impaired to where he should not have been operating a motor vehicle on the roadway due to alcohol.” The police officer further testified she “decided [appellant] was under the influence, that he was driving under the influence in violation of the law when he submitted to and failed the field sobriety test.” The officer further testified that, at the time she was following appellant, there was no sand, stone, or pebbles on the road which would cause appellant to veer his vehicle. A photograph, subsequently taken by the sheriff’s department, was introduced in evidence which showed appellant’s facial features.

Appellant testified that he was not driving DUI, that he could operate his motor vehicle safely, and that his operation of the motor vehicle was not impaired. He also testified his eyes were red and nose was watery from a pollen-aggravated sinus condition. Appellant claimed that he passed all of the field sobriety tests, except for the alphabet, which he could not remember because, in essence, he got confused among other álphabets, as he knew several languages.

Appellant admitted in his trial testimony that he had been drinking that evening; that he had had five different drinks, as follows: a vodka and grapefruit, at about 6:30 p.m.; at about 11:20 p.m. a chocolate tequila and a beer (of which he drank less than half); at about 1:00 a.m., another vodka and grapefruit; and, at about 2:00 a.m., he ordered another beer and drank less than half of it.

Appellant also admitted that he had a bachelor of arts degree from Mercer in math and German, and that he had completed two and one-half years of his education at Georgia Tech. Appellant admitted that he was unsteady on his feet the whole time he was taking the test, but claimed that the ground where he took the test was not level. He further admitted that he initially pulled into the turn lane and exited it, but indicated that he was going to make a turn and, based on the traffic light pattern, then changed his mind; he testified he could have had one tire crossing into the other lane, but denied that he ever crossed his vehicle half-way or crossed all four tires into the other lane. He further testified in detail to the existence that evening of road construction in the area that would tend to make drivers drive near or cross the centerline.

A doctor of chemistry testified that, in his opinion, a person who drank the amount of alcohol admitted to have been consumed by appellant would not have enough alcohol in his blood to make him an unsafe driver, and that sinus problems in pollen season can make you stuffy, sneezy, red-eyed and tired. Appellant’s sister-in-law gave testimony corroborating that there was some construction near the sides of the road, which would cause debris to get on the road, and that appellant suffered from a pollen-aggravated sinus condition. Held:

1. Appellant asserts that there was insufficient evidence to support the DUI conviction. We disagree. On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the trial court erred in charging the jury on the State-administered breath test, “because there was considerable evidence at trial that the State-administered breath test did not accurately measure the defendant’s blood-alcohol ratio, as required by OCGA § 40-6-392 (b).”

Appellant argues in his brief that the State presented no evidence in its brief to refute the testimony of the chemist that the intoximeter did not accurately measure the alcohol content of appellant’s blood; and, that “[c]learly, the intent and requirements of [OCGA § 40-6-392] were not met. The trial court erred in admitted [sic] this evidence, such evidence was highly prejudicial to the appellant and should be reversed.” (Emphasis supplied.) The argument presented by appellant does not support the above enumeration of error. Moreover, appellant does not present any argument or direct citation of authority in its brief in support of the above enumeration that the court erred in its charge to the court.

“An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citations and punctuation omitted.) City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493); accord Nobles v. State, 191 Ga. App. 594, 599 (6) (382 SE2d 637). The above enumeration of error is without merit.

Decided June 5, 1990.

Barbara M. Lassiter, for appellant.

Patrick H. Head, Solicitor, Phillip M. Goldstein, Beverly M. Hartung, Assistant Solicitors, for appellee.

3. Appellant’s remaining enumerations of error assert that the trial court erred in admitting in evidence the result of appellant’s “breath test” (Intoximeter 3000 test) on the grounds specified in each of these enumerations.

It is well-established that harm as well as error must be shown to authorize a reversal by this court. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888). Examining the trial record in its totality, we find that, assuming but not finding error occurred in the admission of the intoximeter test evidence for each of the reasons asserted by appellant, it is highly probable that the error did not contribute to the judgment, and accordingly any such error would have been harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Appellant’s enumerations of error are without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A0435.
    LANDOR CONDOMINIUM CONSULTANTS, INC. et al. v. COLONY PLACE CONDOMINIUM ASSOCIATION, INC.
    (395 SE2d 25)
   Sognier, Judge.

Colony Place Condominium Association, Inc. (the association) brought suit against Landor Condominium Consultants, Inc., its former management company, and Doris B. Harrison and D. Landrum Harrison, the management company’s officers, seeking to regain possession of its books and records and to recover attorney fees and costs of the litigation pursuant to OCGA § 13-6-11. The defendants filed an answer but failed to appear at two hearings scheduled in the case. The trial court then entered judgment ordering the defendants to surrender possession of the association’s books and records and awarding $885.75 in attorney fees, accounting fees, and court costs to the association. The defendants filed a direct appeal, enumerating nine errors concerning the trial court’s judgment.

“It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citations and punctuation omitted.) Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 (344 SE2d 440) (1986). OCGA § 5-6-35 (a) (6) requires an application for a discretionary appeal in actions for damages in which the judgment is $2,500 or less. In MTW Invest. Co. v. Vanguard Prop. Fin. Corp., 179 Ga. App. 403 (346 SE2d 575), aff’d 256 Ga. 318 (349 SE2d 749) (1986), the judgment entered below had compelled the appellant to produce certain books and records and to pay $500 in attorney fees. This court held that the attorney fee award made pursuant to OCGA § 13-6-11 was “within the category of ‘damages’ as contemplated by OCGA § 5-6-35 (a) (6), requiring an application to appeal in all actions in which the judgment is $2,500 or less. [Cits.]” Id. at 405. We find the case at bar to be controlled by the ruling in MTW, and accordingly dismiss this appeal for failure to comply with the statutory procedure for discretionary application. Id.

Decided May 17, 1990

Rehearing denied June 6, 1990

Doris B. Harrison, pro se.

D. Landrum Harrison, pro se.

Susan M. Reimer, for appellee.

Appeal dismissed.

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

On Motion for Rehearing.

On motion for rehearing, appellants challenge our reliance on MTW Invest. Co. v. Vanguard Prop. Fin. Corp., 179 Ga. App. 403 (346 SE2d 575) (1986), contending that the ruling in that case is not controlling because there the order appealed from involved only an award of attorney fees, whereas here the order at issue included a directive that books and records be surrendered to appellee. We disagree, as our review of the record filed in MTW Invest. Co. discloses that the appellant appealed from both the judgment awarding attorney fees and also a previous order compelling production of certain documents and records. Further, contrary to appellants’ argument, we find no inconsistency between the instant ruling based on MTW Invest. Co. and the holding in Brown v. Assoc. Fin. &c. Corp., 255 Ga. 457 (339 SE2d 590) (1986).

The motion for rehearing is denied.


author: Beasley, Judge.

text:
    A90A0170.
    TUCKER v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
    (395 SE2d 64)
   Beasley, Judge.

Plaintiff Tucker appeals the judgment entered on a jury verdict for defendant Colonial Insurance Company of California in his suit to recover approximately $50,000 in medical bills and lost wages allegedly due to personal injuries sustained in a single-vehicle mishap. The jury also found in the insurer’s favor on a Yost counter-claim and awarded the sum of $1.

1. Tucker contends that the jury should not have been instructed on the defense of fraud because there was no evidence that the insurer was fraudulently induced to enter into the contract, no evidence of the insurer’s reliance, no direct evidence of his misrepresentations or false claims, and no evidence of damage to the insurer.

The evidence construed so as to warrant the instructions established the following. On December 23, 1981, Tucker applied for automobile insurance coverage including maximum no-fault benefits. He signed the application, which answered “none” to the question whether applicant or anyone who usually drove the applicant’s vehicle had been involved in any motor vehicle accident in the previous thirty-six months.

On October 2, 1982, Tucker alleged he “blacked out,” lost control of his vehicle and hit a ditch, street sign, and some trees, damaging the vehicle and re-injuring his back, neck, arm, and legs. There were no known witnesses. The vehicle was found a little bit more than a car length off the roadway. There was only a slight grade in the roadway and no evidence of skid marks. The car had run over or into one-to-two-inch diameter trees, incurring minor damage to the front end and none to the interior. Based on the physical evidence, the investigating officer determined that the car drove from the road to its final resting point. It was old and of little monetary value, so Tucker was paid $150 for salvage value under the collision provisions, before full investigation.

At the time of the incident, Tucker did not report any physical injury to the investigating officer or to the emergency medical person. The latter’s examination did not reveal any injuries. In order to avoid a traffic citation, Tucker requested that the officer not make out a report at the scene. A report was later made by another officer, apparently based solely on what Tucker told him.

Tucker reported the accident to the insurer on October 4 and gave a statement the following day. He was asked whether he had ever had any injuries similar to those he was reporting and he said he had had one prior accident two years before. He was then given an application for no-fault benefits.

Following the statement, the insurer requested an index bureau report, which revealed four previous accidents and injuries. Because Tucker had indicated he had only one accident, the insurer investigated further and received reports of more than twenty prior accidents and injuries.

At trial, Tucker admitted he injured his back, leg, and neck several times prior to October 2, specifically on January 22, 1978 (fell off roof of house injuring back); January 28, 1978 (injured back and neck in auto accident while driving home from hospitalization for January 22 injury); February 24, 1978 (injured back and neck in auto accident while leaving same hospital); September 23, 1978 (injured back and neck while refereeing a football game); January 14, 1979 (injured back and neck falling off ladder); January 29, 1979 (injured back and neck in auto accident); March 28, 1979 (injured back and neck falling from steps at home); July 13, 1979 (injured back and neck falling down flight of stairs); August 21, 1979 (injured back, neck, legs, and shoulders falling off kitchen counter); September 12, 1979 (injured back, neck, leg, and shoulders while passenger in auto accident resulting in filing of a lawsuit); March 21, 1980 (injured back, neck, legs, and shoulders in auto accident); and October 26, 1981 (injured back, neck, arm, and leg falling from a ladder). He testified that he did not remember incidents on January 2, 1981 (injuring back, neck, arm, and leg in auto accident) and on April 27, 1982 (injuring back, leg, arm, and neck falling off a chair).

Following the October 2 car wreck, the physician who performed the independent medical examination on behalf of the insurer did not find objective signs of injury and opined that the subjective findings had only questionable significance.

At the time of the wreck, Tucker had been employed with an automobile manufacturer for approximately sixteen years. A little over a week before the incident, on September 23, Tucker had called in sick complaining that his back was hurting, and he did not come to work at all from that time until October 2. He had missed a great deal of time from work due to health complaints. In May 1982, he was placed on long-term disability because he had been out for an aggregate total of a year. Because of work absences, on or about June 28, Tucker was notified that his benefits would be reduced beginning October 4, 1982, for the next six-month period.

When there is some evidence of fraud the issue should be decided by the jury. See, e.g., Minuteman Press Intl. v. Hedrick, 167 Ga. App. 453 (306 SE2d 718) (1983). “ ‘Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.’ OCGA § 23-2-57. . . ." Id.

Contrary to appellant’s assertion, the defense of fraud alleged by the insurer was the making of false assertions in support of the no-fault claim, not fraudulently inducing insurer to enter into the contract. However, there was evidence by virtue of the misrepresentation on the insurance application to support a claim of fraud in the inducement to contract.

As to Tucker’s no-fault claim, there was ample evidence from which a trier of fact could have concluded that it was fraudulently made. There was evidence of his direct misrepresentation, the insurer’s detrimental reliance thereon, and damage to the insurer by virtue of its property pay-out and extensive and costly investigation.

The trial court did not err in charging the jury on fraud.

2. The next contention is that the court erroneously applied OCGA § 51-12-1 (b) retroactively by admitting evidence of paid or available “collateral sources” of workers’ compensation insurance and sick leave benefits.

There was no such objection below to the cited evidence, so the enumeration is not entitled to review. Lowe v. Moore, 170 Ga. App. 723 (2) (318 SE2d 193) (1984). We note that appellant himself testified without objection on cross-examination about benefits available to him. See Eiberger v. Martel Electronic Sales, 125 Ga. App. 253, 255-256 (6) (187 SE2d 327) (1972). Furthermore, although OCGA § 51-12-1 (b) may not be applied retroactively, see Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988), the alleged error would concern the issue of damages and not liability resulting in no harm. See Cannon v. Rithmire, 156 Ga. App. 360, 361 (1) (274 SE2d 746) (1980).

3. The next contention is that the trial court should have granted a directed verdict on the Yost counterclaim.

The trial of the Yost claim was bifurcated. Tucker did not move for a directed verdict at the close of the evidence in the Yost segment but rather only after verdict on the main claim. The motion was premature as to the Yost claim because the insurer had not yet presented its evidence on the counterclaim. OCGA § 9-11-50 (a); Heard v. Midwest Mut. Ins. Co., 167 Ga. App. 44, 45 (3) (306 SE2d 49) (1983). See Williams v. Buckley, 148 Ga. App. 778, 779 (3) (252 SE2d 692) (1979). Moreover, a timely motion would have been justly denied. Barber v. Atlas Concrete Pools, 155 Ga. App. 118 (1) (270 SE2d 471) (1980).

4. Tucker contends that the court did not apply its pretrial ruling on his motion in limine and thereby erroneously admitted evidence of prior or subsequent insurance claims.

The motion sought to exclude only evidence of previous insurance claims, not evidence of past injuries. Moreover, appellant did not object to the evidence of prior injury and cannot do so now. Lowe, supra. Any evidence of subsequent injury was likewise elicited from Tucker without appropriate objection or by Tucker himself on cross-examination.

5. As to the verdict and judgment being “contrary to the weight of the evidence” there was sufficient evidence to support findings that the accident and claimed injuries were fraudulent, see Division 1, supra, and that Tucker failed to supply insurer with reasonable proof of his claim. “ ‘ “We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.] Where the testimony of the plaintiff and the defendant is in conflict, the jury is the final arbiter [cit.].” ’ ” Barber v. Wausau &c. Ins. Co., 184 Ga. App. 479 (362 SE2d 109) (1987).

Decided June 6, 1990.

Slater, Saginar & Gross, Edwin M. Saginar, Andrew N. Gross, for appellant.

Greene, Buckley, Derieux & Jones, Daniel A. Angelo, Mark D. Oldenburg, Margaret L. Milroy, for appellee.

6. Appellee insurer’s motion for sanctions for frivolous appeal under Court of Appeals Rule 26 (b) is dismissed. In this case, there was a money judgment^ albeit nominal. The rule applies only to those cases in which there is no money judgment.

7. Appellant’s motion for attorney fees pursuant to OCGA § 9-15-14 for defense of appellee’s motion for sanctions for frivolous appeal is dismissed. “[S]uch a motion properly addresses itself to the trial court for disposition.” Chrysler Corp. v. Marinari, 182 Ga. App. 399, 403 (4) (355 SE2d 719) (1987); Socolow v. Goodman, 184 Ga. App. 103 (2) (360 SE2d 653) (1987); Graves v. Graves, 186 Ga. App. 140, 141 (2) (366 SE2d 809) (1988).

Judgment affirmed. Motions dismissed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1042.
    BARTLETT v. DIMENSION DESIGNS, LTD. et al.
    (395 SE2d 64)
   Birdsong, Judge.

Appellant, Ronald L. Bartlett d/b/a Bartlett’s Custom Cabinets (hereinafter Bartlett’s), appeals the order of the trial court affirming the award of the arbitrator for $17,910 and denying certain claims.

Appellee, Dimension Designs, a subcontractor, entered into a certain building construction contract with Batson-Cook, a prime contractor. Subsequently, on June 15, 1987, appellant entered into a separate construction contract with Dimension Designs to provide certain “cabinetry.” Although this contract refers to Dimension Designs as “owner” and Bartlett’s as “contractor,” it appears that in reality Bartlett’s was a subcontractor of the subcontractor Dimension Designs.

The contract between Dimension Designs and Bartlett’s pertinently provided that: “All claims or disputes between the [c]ontractor (Bartlett’s) and the [o]wner arising out of, or relating to, the [c]ontract [documents or the breach thereof shall be decided by arbitration in accordance with the construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. . . . The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereto. . . .”

Bartlett’s subsequently brought suit to foreclose a lien on the construction property. Dimension Design, Batson-Cook, and the Federal Insurance Company were named as defendants in the suit, and thereafter Dimension Design filed a cross-claim against the prime contractor, Batson-Cook. Batson-Cook and the Federal Insurance Company both filed motions to stay the proceedings and apparently, to compel arbitration by Dimension Design. The trial court issued an order requiring Bartlett’s, Dimension Design, and Batson-Cook to arbitrate. Held:

1. Appellant has filed a motion to strike Exhibits A, B, and D attached to the brief of appellee Batson-Cook. However, we will not consider any of the exhibits attached to the brief. Neither a brief nor an attachment thereto can be used as a procedural vehicle for adding evidence to the record, as we must take our evidence from the record and not from the briefs of either party. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824 (392 SE2d 33) (1990).

2. Appellant asserts that the trial court erred in ordering arbitration on motion of counsel for the prime contractor as it was not a party to the contract requiring arbitration.

At the outset we note that this case involves the application of an arbitration provision contained in a construction-type contract executed in 1987, and therefore is subject to the provisions of the Georgia Arbitration Code for construction Contracts, rather than the Georgia Arbitration Code of 1988. Compare OCGA § 9-9-2 (a) and (b) with § 9-9-81.

We find that the order of the trial court directing arbitration “is in the nature of an interlocutory mandatory injunction which is appealable under [OCGA § 5-6-34 (a) (4)]. . . . [T]o prevent such an appeal from becoming moot, it is necessary for the appealing party to obtain a supersedeas. If a supersedeas is not obtained, then the ordered action takes place as ordered, and the appeal becomes moot. . . . The Civil Practice Act [OCGA § 9-11-62 (a)] provides that an interlocutory injunction shall not be stayed during the pendency of an appeal unless a stay is ordered by the court. Therefore, to stop the holding of [the arbitration proceedings] that has been ordered by the trial court, a supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Without such a supersedeas, the [arbitration proceedings] must be conducted as ordered. And once [as in the case sub judice] the ordered [arbitration proceedings] is held, complaint about its being erroneously ordered becomes moot.” Padgett v. Cowart, 232 Ga. 633, 634 (208 SE2d 455). As the arbitration proceedings has been conducted, we find this enumeration of error moot. Keyway Contractors v. Leek Corp., 189 Ga. App. 467 (376 SE2d 212), cited by appellant, is distinguishable from this case.

Moreover, “[t]he judge has a discretion in regulating and controlling the business of the court and the appellate court should never interfere with the exercise of this discretion, unless it is plainly apparent that wrong has resulted from the abuse.” (Citations and punctuation omitted.) Gwinnett County v. Vaccaro, 259 Ga. 61, 62 (3) (376 SE2d 680). The record does not support a finding of such abuse in this case. See generally Ga. Const. of 1983, Art. VI, Sec. I, Par. IV; OCGA § 15-6-8 (2) and (6). The cases cited by appellant in its brief and supplemental briefs are factually distinguishable from the case sub judice.

3. Appellant asserts that the trial court erred in failing to sustain his motion to modify the award of arbitrator, because the arbitrator exceeded his authority and erroneously used the standard of proof required in a criminal case, rather than in a civil case.

Appellant asserts that the arbitrator exceeded its authority, because the trial court’s order in effect limited the findings of the arbitrator to the controversy between Bartlett’s and Dimension Design.

An overstepping by the arbitrator of his authority which prejudices the rights of a party thereto may provide grounds for vacation of an award by the court. See, e.g., OCGA § 9-9-93. In this case, the trial court’s order incorporated by reference the arbitration provision of the contract between Bartlett’s and Dimension Design. A contract of submission, in such instances, furnishes the source and prescribes the limits of the arbitrator’s authority and accordingly, the award must conform to the submission. See generally 2 EGL (1976 Rev.), Arbitration & Award, § 20; 6 CJS, Arbitration, § 69. However, the order of the trial court did not purport merely to submit the claim of Bartlett’s against Dimension Design to arbitration. For example, the order also expressly submitted the cross-claim of Dimension Design against Batson-Cook to arbitration. Moreover in its motion to stay filed in this case, Batson-Cook asserted that Bartlett’s claim against Batson-Cook, averred in another pending suit, “is part of the claim of [defendant Dimension Designs ... in the pending action.” Considering the trial court’s order in its entirety and the posture of the record currently before us, we find that the court’s submission of the matter to the arbitrator was, in this instance, tantamount to a general submission. “Under a general submission, the arbitrators are bound to decide only those matters brought to their consideration by the parties. The presumption is that the matters decided by the arbitrators were so brought to their consideration.” Sheffield v. Clark, 73 Ga. 92 (1). Applying this presumption in the case sub judice, we find that the arbitrator did not exceed his authority.

Assuming arguendo the inapplicability of the above presumption and in the absence of an arbitration hearing transcript, we would be unable to determine whether the arbitrator in fact exceeded his authority. When an enumeration of error is such as to require a review of the evidence and appellant fails to include a transcript on appeal, the enumerations must be deemed meritless. Camp v. Jordan, 168 Ga. App. 339 (309 SE2d 384); accord Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160).

Appellant also asserts that the trial court erred in not modifying the arbitrator’s award, because the arbitrator placed an erroneous burden of proof upon him as evidenced by the arbitrator’s statement that the “requirement for filing the lien had not been established beyond a reasonable doubt.”

“[Arbitrators are not obliged to apply strict rules of law in the matter at hand, when they act within the scope of their authority, unless the parties require adherence to such rules. In fact, it is stated that they may disregard the traditional rules of law. Accordingly, as a general rule, arbitrators are free to apply broad principles of justice and good conscience, and decide according to their concept or notion of justice. They are still obliged, however, to be guided by the basic agreement of the parties.” 6 CJS, supra at § 70. We are satisfied from the state of the record before us that the arbitrator was applying broad principles of justice and good conscience rather than technical rules of evidence when he made his award. Moreover, from the state of the record, it is not apparent that the parties required the arbitrator to apply any other standard than that of justice and good conscience in his resolution of the issues before him. In French v. Merrill Lynch &c., 784 F2d 902 (3) & (4) (9th Cir.), the court concluded that an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law. This court is in agreement with this general rule and finds no reason to depart from it in this case. As the record before us neither establishes that the arbitrator’s decision was completely irrational nor constitutes a manifest disregard of the law within the meaning of French, we are satisfied that the trial court did not err in its ruling.

Appellant’s remaining enumeration of error is without merit.

Decided June 6, 1990.

Zachary & Seagraves, W. E. Zachary, Sr., for appellant.

John R. Whelan, Glover & Davis, Delia T. Crouch, for appellees.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0330.
    SHULER v. THE STATE.
    (395 SE2d 26)
   Beasley, Judge.

Defendant was indicted for twenty-one counts of simple battery, OCGA § 16-5-23, and one count of cruelty to children, OCGA § 16-5-70 (b). He was convicted only of the misdemeanor offense of the use of fighting words, OCGA § 16-11-39 (1). The charges stem from alleged incidents occurring between defendant school teacher and seventh-grade students. The cruelty to children charge was that defendant caused mental pain to a male student, in front of the class, when the student asked a math question and defendant told him to go to the bathroom and beat off.

The student testified that defendant told him “to go beat off.” Another student related that when defendant was asked a question he responded: “Well, why don’t you just go to the bathroom and go beat off.” Defendant denied the response as quoted but testified that when queried he told the student “to attack the problem, don’t molest it.”

As requested by the state, the trial court charged that use of opprobrious or abusive language which tends to incite a breach of the peace, commonly known as “fighting words,” was a lesser included offense of cruelty to children and if it found the defendant not guilty of the first it should consider whether defendant was guilty of the second. The trial court defined the offense as described in OCGA § 16-11-39 (1). [OCGA § 16-11-39 (2) is not involved in this case. See Crolley v. State, 182 Ga. App. 2, 3 (2) (354 SE2d 864) (1987).]

Defendant’s motion for new trial, after he was found guilty of “fighting words,” was overruled. The enumerations of error are 1) that the use of opprobrious language tending to incite a breach of peace is not a lesser included offense of cruelty to children, and 2) that if it is, the evidence does not authorize the verdict.

1. OCGA § 16-1-6 together with OCGA § 16-1-7 contain the standards for determining if one offense is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 330 (2) (219 SE2d 441) (1975). They are alternative and not conjunctive. State v. Estevez, 232 Ga. 316, 319 (1) (206 SE2d 475) (1974). Paragraph (1) of § 16-1-6 sets out the rules for determining included crimes as a matter of fact and paragraph (2) treats those included as a matter of law. Stephens v. Hopper, 241 Ga. 596, 599 (1) (247 SE2d 92) (1978).

Under OCGA § 16-5-70 (b) a “person commits the offense of cruelty to children when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-11-39 (1) prohibits using, either to or in the presence of another, opprobrious or abusive words, which by their very utterance tend to incite an immediate breach of the peace; words which naturally tend to provoke violent resentment, “fighting words.” The two offenses differ more than with respect to a less serious injury or risk of injury, or a lesser kind of culpability. OCGA § 16-1-6 (2). The crimes have different elements, prohibit generally different types of conduct and seek to protect different classifications of victims. See Whiteley v. State, 188 Ga. App. 129, 132 (5) (372 SE2d 296) (1988); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981); Moore v. State, 140 Ga. App. 824, 826 (2) (232 SE2d 264) (1976). OCGA § 16-11-39 (1) is not included in OCGA § 16-5-70 (b) as a matter of law.

Whether OCGA § 16-11-39 (1) is a lesser included offense as a matter of fact is closer. It is included if the lesser crime may be established by proof of the same or less than all the facts or a less culpable mental state than is required by the higher crime. OCGA § 16-1-6 (1).

Ordinarily, cruelty to children would not cover facts which would sustain a charge of “fighting words.” State v. Hightower, 252 Ga. 220, 222 (312 SE2d 610) (1984), holds: “ ‘one crime may be changed into another by adding or subtracting elements which distinguish them. However, where the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. Criminal indictments are not deemed amendable to conform to the evidence.’ ” See Bowers v. State, 177 Ga. App. 36 (1), 37 (338 SE2d 457) (1985).

“There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.” Goldin v. State, 104 Ga. 549, 550 (1) (30 SE 749) (1898). Accord McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984); State v. Williams, 247 Ga. 200, 203 (2) (275 SE2d 62) (1981); Rowe v. State, 166 Ga. App. 836 (1) (305 SE2d 624) (1983); Nelson v. State, 136 Ga. App. 861 (222 SE2d 677) (1975).

This is the case here. The proof tracked the indictment which set forth words defendant said to the student which would fall within the perimeter of that forbidden by OCGA § 16-11-39 (1). While not specifically charged with using “fighting words,” defendant was indicted for using language which would tend to incite an immediate breach of the peace. Although the offense may not have been strictly a “lesser included” one within the scope of cruelty to children, the language of the indictment together with the evidence authorized the jury charge on “fighting words.”

Decided May 22, 1990

Rehearing dismissed June 7, 1990.

David E. Ralston, for appellant.

Roger Queen, District Attorney, for appellee.

2. Defendant argues that the evidence was insufficient because the testimony was conflicting and the words used were not within the purview of the statute, citing Crolley, supra. That case is only authority for the proposition that obscene and vulgar or profane words are not per se also opprobrious or abusive as naturally tending to incite a breach of the peace.

The retort for which defendant was convicted is similar to that used in Evans v. State, 188 Ga. App. 347 (1) (373 SE2d 52) (1988). That opinion noted that merely because one has heard the language before (even police officers who were subjected to such language on a regular basis) does not affect the fact that such language will provoke violent resentment, citing Bolden v. State, 148 Ga. App. 315 (2) (251 SE2d 165) (1978). Here, due no doubt at least in part to the victim’s age and defendant Shuler’s position of authority, the statement did not lead to actual violence. This did not change the character of the words as being of a nature tending to provoke violent resentment and incite a breach of the peace.

Because on appeal the evidence is construed, and all conflicts are resolved, in favor of the verdict, Anderson v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980), any rational trier of fact could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0949.
    BRIDGES v. THE STATE.
    (395 SE2d 30)
   Deen, Presiding Judge.

Appellant Bridges was indicted in April 1987 on a charge of conspiring with thirty-four others to import into Georgia and deliver more than 100 pounds of marijuana, the conspiracy allegedly existing between January 1, 1983, and April 3, 1987. See OCGA §§ 16-4-8; 16-13-33. In December of 1987 Bridges was indicted, together with one of the alleged conspirators, for the substantive offense of trafficking in marijuana by bringing into the State more than 100 pounds of marijuana between January 1, 1984, and March 20, 1987. See OCGA § 16-13-31 (c). Both indictments were based on the same conduct, the dates alleged in the second indictment representing the State’s acquisition of more accurate information regarding the alleged illegal activities. According to the record before us, motions filed by defense counsel were designated to both cases jointly.

Of the thirty-five persons named in the first indictment, twenty-five plead guilty, two had their cases nol prossed, and six were never arrested. The thirty-fourth indictee plead guilty to the second indictment, and appellant was tried under both indictments jointly, over his objection to the joinder. At the conclusion of all the evidence the trial court instructed the jurors that if they found appellant guilty under the second indictment — i.e., actual trafficking in marijuana — they need give no further consideration to the offense charged in the first indictment; that is, conspiracy to traffic. The jury found Bridges guilty of actual trafficking in marijuana, and he was sentenced to twenty years’ incarceration and a $40,000 fine. His motion for new trial, based on denial of his motion for directed verdict of acquittal, was denied. On appeal he enumerates as error the sufficiency of the evidence; the trial court’s joining the two indictments for trial, over objection; and the correctness vel non of the trial court’s jury instruction on possession. Held:

1. The prosecution introduced more than sufficient competent evidence to authorize the rational trier of fact to find Bridges guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant’s elaborate argument as to the interrelation of the two indictments, and the bearing of this interrelationship upon the evidence, is ingenious but both legally and logically irrelevant. This enumeration is without merit.

2. OCGA § 16-1-7 (b) prescribes that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .” Appellant alleges that the joinder occurred without notice to him. According to the trial transcript the following colloquy took place prior to the entrance of the jury array: “The Court: . . . The earlier indictment . . . involves a conspiracy based on the Georgia conspiracy statute [OCGA § 16-4-8]. . . . The other indictment ... is a charge of trafficking, which, although it uses the terminology conspiracy, it is not conspiracy as it is contemplated in the Georgia statute. It is simply a party to the crime type [of] conspiracy. Because the alleged crimes involve the identical witnesses and the identical conduct, in the discretion of the court I have allowed the joinder. . . .

“[Defense counsel]: I object to the last-minute joinder of the two indictments. Even as late as yesterday the implication was that we were going to try on the second or later indictment. . . .
“The State: Your Honor, . . . [a]t no point in time have I ever indicated to [defense counsel] that we would not seek joinder, that we would not pursue both charges, and I would point out that the motion to suppress which he filed yesterday includes both case numbers on it, indicating that both of them were involved in the same case, involved the same evidence and the same witnesses.
“[Defense counsel]: [Y]esterday there was no announcement by [the state] either way. I’ll admit that he didn’t tell me he was not going to [pursue both charges]. . . .
“The Court: Very well, the court has ruled and allowed joinder. . . .”

The purpose of the enactment of OCGA § 16-1-7 (b) (formerly Code Ann. § 26-506) was “to protect an accused against the harassment of multiple prosecutions arising from the same conduct.” Waites v. State, 238 Ga. 683, 684 (235 SE2d 4) (1977). In Jackson v. State, 249 Ga. 751 (295 SE2d 53) (1982), Georgia’s Supreme Court held, at 758: “The underlying consideration regarding the issue of a joint trial on two or more indictments is whether undue or great risk of prejudice from a joint disposition of charges would result. [Cit.] Where the joinder is based upon the same conduct. . ., severance lies within the discretion of the trial judge. [Cit.]” See also Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975); Green v. State, 159 Ga. App. 28 (283 SE2d 19) (1981).

The only case appellant cites in support of his contention that a defendant cannot be tried on consolidated indictments without his consent is inapposite in that this sole case, Bradford v. State, 126 Ga. App. 688 (191 SE2d 545) (1972), deals with “separate and distinct violations” (narcotics trafficking and illegal possession of a firearm), rather than, as here, with identical conduct designated in the two indictments as a substantive offense and conspiracy to commit the substantive offense. Bradford is thus readily distinguishable and does not affect the rule set forth in Jackson, supra, and affirmed in subsequent decisions.

3. Appellant’s final enumeration of error is that the trial court incorrectly charged on possession. He asserts that in rejecting a requested charge (No. 14) and giving instead a charge on possession (including the distinction between actual and constructive possession) couched in slightly different language, the trial court has somehow given an erroneous charge and compounded the error by “confusing” the jury. He concedes, however, that it is not error for the trial court to reject a requested charge if the charge actually given covers substantially the same ground.

Our review of the trial court’s jury charge as a whole, and of the section on possession in particular, reveals nothing either erroneous or unclear. This enumeration, too, has no merit.

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 2. As to Division 3, the error enumerated is that the court’s charge on possession was incorrect and that the court should have given defendant’s requests to charge on that subject.

The defendant was not charged with trafficking by “possession” of cocaine but rather with trafficking by “bringing into this state” marijuana. OCGA § 16-13-31 (a) (1). Defendant requested charges on possession by way of certain quotations from Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The court charged that trafficking is committed when a person “knowingly brings into this State or has actual possession of, or delivers” marijuana. It did explain the distinction between actual and constructive possession substantially as defendant had requested. The only exception defendant took was that the court did not point out that there is a difference, if only one of degree.

I agree that the instruction on possession, as such, was not erroneous. It should not have been given, however, because defendant was not charged with possession and could not have been convicted of it. But defendant does not, and could not because he requested it, complain of the giving of instructions on possession. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980); Hill v. State, 237 Ga. 523, 525 (3) (228 SE2d 898) (1976); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).

Instructing on possession could conceivably have led the jury to believe they had to find actual possession by Bridges, of which there was scant evidence, and so would have helped him. Even if defendant had shown error, he would also have to show harm, in order to win reversal. Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).

If, on the other hand, the jury ignored the possession instruction because they recognized that the indictment charged only “bringing into,” then the charge complained of was superfluous.

Decided May 23, 1990

Rehearing denied June 7, 1990

Rees R. Smith, for appellant.

James L. Wiggins, District Attorney, for appellee.


author: Carley, Chief Judge.

text:
    A90A0018.
    THE STATE v. JOHNSON et al.
    (395 SE2d 67)
    Decided June 7, 1990.

      James L. Webb, Solicitor, Lee O’Brien, Helen A. Roan, Assistant Solicitors, for appellant.
    Jeremiah Outerbridge, pro se.

    Michael Glenn Johnson, pro se.

   Carley, Chief Judge.

After preliminary hearings had been held and accusations had been filed against appellees, it was error for the state court to order that the instant cases be transferred to the magistrate court for the purpose of holding additional preliminary hearings. See First Nat. Bank &c. Co. in Macon v. State, 237 Ga. 112 (227 SE2d 20) (1976); Boatright v. State, 10 Ga. App. 29 (1) (72 SE 599) (1911).

Judgments reversed.

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


text:
    A90A0429.
    WALKER v. HURD.
    (395 SE2d 925)
   Carley, Chief Judge.

Both appellant-plaintiff’s property and the adjoining property front on a state highway. Appellee-defendant is a registered land surveyor who was hired by the adjoining landowners to survey their property and to prepare a plat thereof. In preparing the plat, appellee did not consult the title records. He relied only upon a prior survey dating from the time when the adjoining landowners had also owned appellant’s property. Consequently, the plat that was prepared by appellee erroneously reflected that appellant’s property was still owned by the adjoining landowners. Based upon appellee’s erroneous plat, the adjoining landowners then purported to convey to the Department of Transportation (DOT) all rights of access not only between their property and the state highway, but also all such rights of access between appellant’s property and the state highway. In return for this conveyance, DOT granted the adjoining landowners a commercial driveway permit for vehicular access between their property and the state highway. Appellant subsequently made an informal inquiry as to whether DOT would grant a commercial driveway permit for vehicular access between his property and the state highway. DOT’s response to appellant’s informal inquiry was that all access rights between his property and the state highway had previously been conveyed to it and that another commercial driveway permit would not be granted.

After this informal inquiry, appellant made no formal application for a commercial driveway permit, from DOT. Instead, he filed the instant action and named DOT, appellee and the adjoining landowners as the defendants. After suit was filed, DOT conveyed the access rights to appellant by quitclaim deed and was dismissed from the . case. Appellee then moved for summary judgment in his favor. The trial court granted appellee’s motion for summary judgment, and it is from that order that appellant brings this appeal.

1. Appellant urges that genuine issues of material fact remain as to his recovery under a fraud theory. However, “[o]ne of the five elements of fraud is that the plaintiff relied on the false representations of defendant. [Cit.] There was no evidence that [appellant] relied on the representations concerning [ownership of his property]. Rather than relying on the representations, [appellant] disputed them as soon as [he had knowledge thereof] and maintained his position consistently thereafter. He never acted on them except in furtherance of his denial of their validity. ... As the evidence reflects a complete absence of at least this element, we need go no further.” Associated Software Consultants &c. v. Wysocki, 177 Ga. App. 135, 138 (2) (338 SE2d 679) (1985).

2. Appellant further urges that a genuine issue of material fact remains to his recovery under a negligence theory. However, insofar as the preparation of the plat is concerned, appellant was certainly not among the limited class of persons who appellee was actually aware would rely thereon. Compare Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198) (1987). Even if appellant were among that limited class of persons, the evidence shows that appellant did not rely upon the plat. Compare Hutchinson v. Dubeau, 161 Ga. App. 65 (289 SE2d 4) (1982).

Moreover, the evidence shows that appellant suffered no recoverable damage as the result of appellee’s erroneous plat. Compare Bodin v. Gill, 216 Ga. 467 (117 SE2d 325) (1960). The only “damage” allegedly attributable to appellee’s erroneous plat was DOT’s refusal to grant appellant a permit for a commercial driveway. According to appellant, DOT’s refusal necessitated his expenditure of funds so as to bring and pursue this lawsuit. However, the undisputed evidence shows that appellant never made a formal application to DOT for the permit and, after this suit was filed, DOT executed a quitclaim deed whereby the access rights were conveyed to appellant. Appellant made no counter showing that a formal application to DOT would have been a useless method to resolve the problem, and that the necessity for bringing this litigation could not have been obviated by appellant’s making such an application. Compare Wilson v. Ledbetter, 260 Ga. 180 (390 SE2d 846) (1990). Appellant cannot recover in negligence for such “damage” as he could have avoided. OCGA § 51-12-11.

Decided June 7, 1990.

Zachary & Segraves, Rick S. Sexton, for appellant.

Smith & Welch, A. J. Welch, Jr., J. Mark Brittain, for appellee.

3. OCGA § 51-9-10 provides: “The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto.” Appellant urges that a genuine issue of material fact remains as to his recovery for trespass pursuant to this statute.

Under the undisputed evidence there was no “unlawful interference” with appellant’s property as the result of appellee’s erroneous plat. Appellant was never denied his existing right of ingress to and egress from his property. Compare Holland v. Shackleford, 220 Ga. 104, 112 (3) (137 SE2d 298) (1964). He was merely informally told by DOT that he could not have a commercial driveway between his property and the state highway where none had existed before. At most, appellee’s erroneous plat resulted in a cloud on appellant’s title in the form of a purported conveyance to DOT by the adjoining landowners of the access rights to appellant’s property. A cloud on one’s title to property is obviously different from an “unlawful interference” with one’s actual property. The trial court did not err in finding that no genuine issue of material fact remained as to appellant’s claim under OCGA § 51-9-10.

4. Appellant’s remaining enumerations of error have been considered. To the extent that they are not controlled adversely to appellant’s contentions under principles that have previously been discussed, they have been found nevertheless to be without merit.

Judgment affirmed.

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