author: Johnson, Presiding Judge.

text:
    A01A0382.
    In the Interest of V. S., a child.
    (548 SE2d 490)
   Johnson, Presiding Judge.

The father of now 20-month-old V. S. appeals from the juvenile court’s order terminating his parental rights. He contends that there is not clear and convincing evidence of parental misconduct or inability justifying the termination of his rights. We agree and reverse.

The record shows that the father is a thirty-year-old illegal immigrant who has lived in the United States for eight years. He makes about $750 per week doing construction work, some of which he has been using to support his parents in Mexico. He currently shares an apartment with five of his male friends.

He met V. S.’s mother as a result of her coming to the apartment to have sex for money with some of his roommates. He availed himself of her services initially, but then the two began having what the father considered a serious relationship. The mother and father moved in together and cohabitated for four or five months. During that time, the mother became pregnant with V. S. The father gave the mother money so she could get prenatal care, though he is not certain whether she actually sought and received any medical care. The father asked her to marry him, but she refused. The mother was addicted to drugs, and the father, who has not used drugs or alcohol and has no criminal record, testified that he took action to stop her from using drugs while she was pregnant.

When V. S.’s mother was four months pregnant, the father moved back in with his friends. A few months later, in July 1999, V. S. was born. Upon being told of the child’s birth, the father immediately went to the hospital. When asked if he signed the birth certificate, the father replied that he was not given any papers to sign, but that if he had been given the opportunity to do so, he would have. According to the father, although the mother told him the child was his, some people questioned whether that was true because the child had blond hair. The father believed the child was his, but eventually requested a paternity test to confirm that.

Shortly after V. S. was born, the hospital conducted drug tests on V. S. and her mother. Both tested positive for cocaine. The Department of Family & Children Services (“DFCS”) took custody of the three-day-old child and placed her in foster care. DFCS developed a case plan for the mother, but she did not comply with its requirements. By November 1999, she was serving a six-year prison sentence on drug charges.

The father wanted to visit the child soon after DFCS took custody of her, but the mother told him that he could not do so without an appointment. Although DFCS had his name and address, it did not send him any letters or notices for four to six months. He called DFCS repeatedly in order to set up an appointment to see his daughter. DFCS’ phone system, however, only allowed voice mail messaging, so he left about 15 messages. His calls were not returned, so he stopped calling. He also attempted to visit the offices but, after driving up and down the street five times, could not find the building. A caseworker admitted at the hearing that it is very difficult for clients to get calls through to the main phone number at DFCS.

In November or December 1999, the father was informed that his father was dying. He went to Mexico for two to three months to be with his parents. V. S.’s father does not speak English, and, just before he left for Mexico, he asked an interpreter to contact DFCS for him. After his father died and he remained for a short time to assist his mother, V. S.’s father returned to the United States, making sure he returned in time to attend the next hearing. Upon his return, he asked the interpreter to try to make an appointment for him to see V. S., which she did.

The father began seeing his daughter for one hour every fifteen days, the maximum amount of time he was allowed to see the child. He kept all of his scheduled appointments through the date of the hearing and, according to the caseworker, showed affection for and seemed to genuinely love V. S. In the caseworker’s opinion, the father has established a bond with the child. The father had asked a DFCS caseworker about paying child support, but was told that he would not be allowed to do so; he was told that “the court hearings would decide if I could support her or not.” No case plan was ever established for the father. The caseworker testified that she believed that the father would follow a case plan if one was set up, that he would consistently visit and support his daughter, and that he would, as he said, immediately change his living arrangements.

In February 2000, when V. S. was seven months old, DFCS petitioned to terminate both parents’ rights. The juvenile court heard the petition to terminate the mother’s rights in May 2000 and granted that petition. That termination is not under consideration in this appeal.

As part of his response to the petition to terminate his parental rights, the father filed a petition to legitimate the child. The juvenile court heard both the legitimation and the termination petitions at the same time. Without ruling on the legitimation petition, the juvenile court entered an order terminating the father’s parental rights. The court based its decision on the following findings: The father is an illegal alien and is subject to deportation; he has failed for more than one year to develop and maintain a parental bond with the child; he has not provided any financial support to the child; he only began visiting the child when she was nine months old; he failed to contact DFCS and went to Mexico without notifying anyone connected with this proceeding; he failed to respond to a certified letter from DFCS; he got the child’s mother pregnant knowing she had a drug problem; he did nothing to stop the mother from abusing drugs; he has failed to obtain permanent employment with benefits; he has failed to obtain basic child care items, such as a car seat; and he does not have his own place to live. The juvenile court found that it was in the best interest of the child to terminate the father’s rights. Although some of these facts may support a termination of parental rights, the juvenile court’s termination of the father’s rights in this case was premature.

1. (a) Abandonment. The record does not support the juvenile court’s express and implied findings that the father abandoned his daughter.

In order to find abandonment, there must be sufficient evidence of an actual desertion and an intention to sever entirely, so far as possible, the parental relationship, throw off all obligations growing out of the relationship, and forgo all parental duties and claims.

In this case, the evidence shows that the father made numerous attempts to contact DFCS in order to visit his daughter, asked if he could pay child support, gave the child’s mother money for prenatal care, arranged for and kept his visitation appointments for the five-month period preceding the hearing, showed love and affection toward V. S. during visitation, and made arrangements for caring for the child should he be given custody. These facts do not demonstrate an abandonment.

(b) The father’s present circumstances. The father conceded at the hearing that his current living arrangements, i.e., sharing an apartment with five other men, are not appropriate for raising a daughter. He testified, though, that his married friend and the friend’s wife have offered their home to him and his daughter. The friend’s sister has offered to care for V. S. while the father works. There was also evidence that the father’s cousin and aunt have offered to assist the father in raising the child and that DFCS has already evaluated and approved those homes. The fact that the father’s present living arrangements may not be suitable for his daughter should not form the basis for termination, since he has not been given an adequate opportunity to establish appropriate living arrangements. After all, the termination petition was filed just seven months after the child’s birth and before paternity tests established that the child was his. Moreover, no plan was ever established to reunite the child with her father.

As there is no judicial determination that has more drastic significance than the permanent severance of a natural parent-child relationship, the severance of that relationship must be exercised cautiously and scrutinized deliberately. . . . Because the termination of parental rights has a final, ultimate, and significant result, that judgment must conclusively show compliance with the statutory criteria prescribed as a condition precedent.

Under OCGA § 15-11-94 (b) (4) (C), where the child is not in the parent’s custody, in determining whether the child is without proper parental care and control, the court shall consider, among other things, whether the parent without justifiable cause has failed significantly for a year or more prior to the filing of the termination petition: (i) to develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) to provide for the care and support of the child as required by law or judicial decree; and (iii) to comply with a court-ordered plan designed to reunite the child with her parent.

Decided May 7, 2001.

We agree with the father that there is less than clear and convincing evidence of his parental unfitness as required for termination under the statute. Only seven months passed between the child’s birth and the time the termination petition was filed; the father made efforts to support the child in various ways before and after her birth; and he has bonded with her. No case plan has been devised to reunite the father with the child. The facts of this case require that a plan be established with the goal of reuniting V. S. with her father and that the father be afforded an adequate opportunity to meet the criteria set out in the plan. Accordingly, the judgment of the juvenile court must be reversed and the case remanded for the implementation of a reunification plan.

2. We are not persuaded by BFCS’ contention that termination was authorized because the father failed to file his legitimation petition within 30 days of being notified of the termination proceeding. It is not clear from the record when the father filed the petition, since the legitimation petition is not included in the record. The record does show that the father requested and received a continuance in order to determine whether he was the child’s biological father. And, even if the petition was filed late, the juvenile court did not consider the filing date to be fatal, since it did not decide to terminate parental rights based on the alleged untimeliness of the legitimation petition. In fact, the juvenile court announced at the beginning of the hearing that, it would consider both petitions. Under the circumstances, we will not hold that the termination was justified based on the filing date of the legitimation petition.

On remand, we direct the juvenile court to issue a ruling on the father’s petition for legitimation.

Judgment reversed and case remanded with direction.

Ruffin and Ellington, JJ, concur.

Michael S. Moody, Roger L. Curry, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Cheeley & Joyner, John P. Cheeley, Sanders B. Deen, for appellee.

        In the Interest of L. S., 244 Ga. App. 626 (536 SE2d 533) (2000); Spires v. Tarleton, 225 Ga. App. 117, 119 (2) (483 SE2d 337) (1997).

       (Citations and punctuation omitted.) In the Interest ofT.B., 242 Ga. App. 564, 565 (2) (529 SE2d 620) (2000) (physical precedent only); see In the Interest of K. M., 240 Ga. App. 677, 679-680 (523 SE2d 640) (1999).

       See, e.g., In the Interest ofR. H., 240 Ga. App. 551 (524 SE2d 257) (1999), where the father, an illegal alien and a convicted felon, did not lose his parental rights until after he failed to comply with the requirements of a reunification plan.

       See OCGA § 15-11-96 (h), (i).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0515.
    NORWOOD v. THE STATE.
    (548 SE2d 478)
   Miller, Judge.

Indicted as a recidivist in the Superior Court of Cherokee County, Alvin Norwood, also known as Rogers Hamilton, was charged with a single count of burglary. On March 20, 2000, with the assistance of counsel, Norwood entered a nonnegotiated guilty plea “to all counts of the indictment” and was sentenced to serve 20 years without parole. On appeal, he enumerates the denial of his motion in autrefois convict and the imposition of the 20-year sentence. We affirm his conviction but vacate the sentence and remand for resentencing.

1. Norwood filed a pretrial motion to dismiss the charges against him on the ground that he had already pleaded guilty in Cobb County to a charge of burglary allegedly involving the same conduct and same property for which he was charged in Cherokee County.

The special presentment in this case alleged Norwood entered the dwelling of Linda Tabor in Woodstock, without permission and with the intent to commit a theft therein. The Cobb County indictment alleged that Norwood burglarized two dwellings on George Busbee Parkway in Cobb County. Norwood pleaded guilty in Cobb Superior Court to one count of burglary and a reduced count of theft by receiving. The factual basis for that plea was that residents of an apartment complex in the Cobb County portion of George Busbee Parkway reported two males carrying furniture and belongings out of one of the apartments and loading them into a U-Haul truck. Within moments, police spotted a U-Haul truck, and when the patrol activated their blue lights, a high-speed chase ensued. The driver and passenger tried to flee the truck but were apprehended. Stolen items were located in the back of the truck.

The Cherokee Superior Court found as fact that Cobb County police recovered property from all three burglaries when they searched the U-Haul. Nevertheless, the transcript of the Cobb County plea hearing makes no mention of Tabor or the burglary of her Woodstock residence, nor does it demonstrate that any of her property was included in the stolen items for which Norwood pleaded guilty to theft by receiving.

Where the record shows the accused committed two entirely separate criminal transactions in different counties, though part of a single criminal episode, a guilty plea in one does not bar prosecution for the other by reason of double jeopardy or otherwise authorize a plea of autrefois convict. Here, the Cobb Superior Court’s acceptance of Norwood’s guilty plea to the reduced offense of theft by receiving (arising out of an alleged burglary on George Busbee Parkway in Cobb County) does not amount to a binding determination that someone other than Norwood committed the entirely separate burglary in Woodstock, Cherokee County. The Cherokee Superior Court correctly denied Norwood’s motion to dismiss based on his plea of autrefois convict.

2. Norwood next contends the trial court erred in concluding that, under OCGA § 17-10-7 (a), a 20-year sentence was mandatory. We agree.

“OCGA § 17-10-7 provide [s] for enhanced sentencing of repeat offenders where no other sentencing provision control [s].” OCGA § 16-7-1 (b) provides:

Upon a second conviction for a crime of burglary occurring after the first conviction, a person shall be punished by imprisonment for not less than two nor more than 20 years. Upon a third conviction for the crime of burglary occurring after the first conviction, a person shall be punished by imprisonment for not less than five nor more than 20 years. Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld for any offense punishable under this subsection.
In this case, [OCGA § 16-7-1 (b)] provides a specific sentencing scheme for defendants convicted more than once of [burglary] under [OCGA § 16-7-1 (a)]. For this reason, the general recidivist scheme of [OCGA] § 17-10-7 will [not] apply to multiple [or repeat] convictions under [OCGA § 16-7-1 (a) because OCGA § 16-7-1 (b) does not contemplate or permit] the applicability of [OCGA] § 17-10-7.

Decided May 7, 2001.

William E. Whitaker, for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

Since specific sentencing provisions prevail over the general recidivist statute at OCGA § 17-10-7, we hold the trial court retained the discretion to impose any sentence within the mandatory minimum and the statutory maximum range and is not bound by the provisions of OCGA § 17-10-7. Under OCGA § 16-7-1 (b), for a second burglary as alleged here, that range is imprisonment for not less than two nor more than twenty years. The trial court erred in imposing a mandatory 20-year sentence. Accordingly, we vacate that sentence and remand for resentencing in the exercise of the court’s enlightened discretion.

3. Remaining contentions have been considered and are found to be without merit.

Judgment of conviction affirmed.

Sentence vacated and case remanded for resentencing. Andrews, P. J, and Eldridge, J., concur.

       In its notice of intent to present similar transactions, the State asserted that the Cherokee burglary was committed only hours before the Cobb burglaries and that the property stolen in the Cherokee burglary was recovered from the U-Haul.

        Potts V. State, 261 Ga. 716, 720 (1) (b) (410 SE2d 89) (1991).

        Cooper v. State, 253 Ga. 736, 737 (2) (325 SE2d 137) (1985). Compare Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270) (1977) (where defendant pleaded guilty in Gwinnett County to theft by receiving a stolen check-writing machine, that amounted to a binding determination that some other party actually stole the machine and estopped the State from prosecuting Clark in Fulton County for the burglary in which the machine was stolen).

       See Maxey v. State, 239 Ga. App. 638, 640 (2) (521 SE2d 673) (1999).

       (Citations omitted.) Mikell v. State, 270 Ga. 467, 468 (510 SE2d 523) (1999).

       (Emphasis supplied.)

        Mann a State, 273 Ga. 366, 368 (1) (541 SE2d 645) (2001).

       Id.

        Mann v. State, 240 Ga. App. 809, 810 (1) (a) (524 SE2d 763) (1999), aff’d, Mann v. State, supra, 273 Ga. at 368 (1).

        Mikell v. State, supra, 270 Ga. at 469.

        Moton v. State, 242 Ga. App. 397, 400 (3) (b) (530 SE2d 31) (2000). Accord Mikell v. State, supra, 270 Ga. at 468-469.


text:
    A01A0568.
    PARKER v. THE STATE.
    (548 SE2d 475)
   Miller, Judge.

A grand jury indicted Adrian Parker, Dwayne Durham, and Jasper Heath for armed robbery and possession of a firearm during the commission of a crime. Durham and Heath pled guilty, and a jury found Parker guilty of the two offenses. He moved for a new trial on the grounds of insufficiency of the evidence, juror misconduct, and ineffective assistance of counsel. He also filed a motion for the release of juror information, which the trial court granted. The trial court denied Parker’s amended motion for new trial, and he appeals. We affirm.

1. Parker contends that the evidence is insufficient to support the verdict. On appeal from a criminal conviction, an appellant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict. So viewed, the record contains the trial testimony of the victim, who stated that as she was walking across a shopping mall parking lot, a passing automobile suddenly stopped beside her. One of the three men in the automobile exited the rear passenger door and shoved a sawed-off shotgun in her face. During a struggle, the gunman knocked the victim to the ground, rendering her unconscious. Two individuals who were witnessing the incident testified that during the struggle, they saw the gunman grab the victim’s purse, then return to the rear passenger seat of the automobile. The automobile sped away. The witnesses gave police a description and partial license tag number of the automobile.

A police officer, who spotted the automobile about five minutes after a police broadcast, testified that he followed the automobile to a gas station. He stated that when one of the men exited the rear passenger seat of the automobile, he ordered him to the ground. The other two men drove away, and the officer, along with another officer who had arrived as backup, pursued the fleeing automobile, leaving the backseat passenger at the station. The officers soon apprehended the men in the vehicle, finding Durham as the driver and Heath as a front seat passenger. A search of the automobile produced a purse and a sawed-off shotgun found on the rear floorboard and another shotgun found on the backseat. Although the backseat passenger had vacated the gas station, Durham directed police to Parker, who was arrested the next day.

At the police station Parker gave a statement wherein he admitted that he was riding in the backseat immediately before and after the armed robbery, although he placed himself in the front seat during the armed robbery and named Durham as the gunman. Heath, after pleading guilty for his participation in the armed robbery, testified otherwise, naming Parker as the backseat passenger who jumped out of the automobile, confronted the victim with a gun, and then snatched her purse.

Contending that the evidence is insufficient to support the guilty verdict, Parker points to inconsistencies and weaknesses in the State’s case and further points out that Heath was the only witness who identified him as the gunman. He argues that Heath’s testimony was not corroborated as required by OCGA § 24-4-8.

The rule that a felony conviction may not be based upon the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the State relies. “Slight evidence of a defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” Here the State introduced evidence, which, independently of Heath’s testimony, connected Parker to the crimes, including Parker’s own statement that placed him in the backseat of the automobile before and after the incident. While Parker denies that he was the gunman and complains of weaknesses or inconsistencies in the evidence, we do not weigh the evidence nor determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. So long as some competent evidence supports each fact necessary to make out the State’s case, we will uphold the jury’s verdict. Here the evidence is sufficient to corroborate his accomplice’s testimony and to authorize a rational trier of fact to find Parker guilty beyond a reasonable doubt of armed robbery and possession of a firearm during the commission of a crime.

2. Parker contends that the trial court erred in denying his motion for new trial based upon two instances of alleged juror misconduct. In the first instance, during a recess after closing arguments, Parker’s mother overheard one juror say to another juror, ‘You know he is guilty, right?” During deliberations Parker’s mother reported the juror’s statement to Parker’s trial counsel. Parker’s trial counsel testified at a hearing on motion for the release of juror information and admitted that Parker’s mother had reported the incident and that he did not report the allegation to the trial court.

For juror misconduct to be a cause for a new trial, it must appear affirmatively that neither the appellant nor his counsel knew of the misconduct before the verdict. “[Trial counsel] cannot remain silent and take the chances of an acquittal for his client, and upon failure, make it a good ground for a new trial.” Here the record shows that Parker’s trial counsel knew of possible juror misconduct and did not bring it to the attention of the trial court. Consequently, this issue was waived.

As to the second allegation of juror misconduct, one of Parker’s trial attorneys stated at the hearing on motion for the release of juror information that one of the jurors approached him immediately after the verdict and informed him that other jurors appeared to have already decided Parker’s guilt before deliberations. According to the attorney, she complained that those jurors had badgered her into her guilty vote. Not only has Parker failed to point to any affidavit by such juror, but “a juror cannot be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” The allegation here does not fall within either of the two exceptions to this rule: “where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations.”

3. Finally, Parker contends that his trial counsel provided ineffective assistance of counsel by failing to bring to the trial court’s attention possible juror misconduct. All allegations of ineffective assistance of counsel must be raised at the earliest practicable moment, and any allegation not so raised is deemed waived. The record shows that after the trial, Parker retained another attorney, who filed a motion for the release of juror information and a motion for new trial. Thereafter, he retained a third attorney, who filed an amended motion for new trial and a motion for a ruling on the record, wherein Parker waived a hearing on the amended motion for new trial. Neither the motion for new trial nor the amended motion for new trial asserted that the trial defense counsel was deficient for failing to report the alleged juror misconduct. Nor was such argument made at the post-trial hearings on the motion for the release of juror information. Consequently, this allegation of ineffectiveness of counsel is deemed waived.

Decided May 7, 2001.

Sara M. Yeager, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Parker was also charged with possession of a firearm by a convicted felon, but that charge was nolle prossed. Durham and Heath were also charged with obstruction of an officer.

        Cowan v. State, 243 Ga. App. 388 (1) (531 SE2d 785) (2000).

       OCGA § 24-4-8; Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998).

       (Citations and punctuation omitted.) Telfair, supra, 234 Ga. App. at 445.

        Cowan, supra, 243 Ga. App. at 388.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Davis v. State, 244 Ga. App. 708, 710 (1) (536 SE2d 596) (2000).

       See Jackson v. Virginia, supra.

        Josey v. State, 148 Ga. 468 (1) (96 SE 1041) (1907); Lyman v. State, 69 Ga. 404, hn. 4 (1882); Hand v. State, 205 Ga. App. 467, 468 (1) (422 SE2d 316) (1992); McDaniel v. State, 145 Ga. App. 123 (2) (243 SE2d 109) (1978).

       (Citation omitted.) Lyman, supra, 69 Ga. at 407 (4).

       See Court of Appeals Rule 27 (c) (3).

       (Punctuation and footnote omitted.) Wright v. State, 233 Ga. App. 358, 361 (2) (504 SE2d 261) (1998).

       (Citations and punctuation omitted.) Gardiner v. State, 264 Ga. 329, 332 (2) (444 SE2d 300) (1994), quoting Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990).

        Bagwell v. State, 270 Ga. 175, 179 (1) (f) (508 SE2d 385) (1998).

       See id.; Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987) (“Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.”); Render v. State, 240 Ga. App. 762 (a) (525 SE2d 134) (1999).


text:
    A01A0613.
    BOWEN v. THE STATE.
    (548 SE2d 494)
    Decided May 7, 2001.
    Arnold F. Bowen, pro se.

      Gerald N. Blaney, Jr., Solicitor-General, Emilien O. Loiselle, Jr., Assistant Solicitor-General, for appellee.
   Johnson, Presiding Judge.

Arnold Bowen appeals from his convictions of two counts of discharging a septic tank without a permit. In one of his enumerations of error, he contends that the trial court erred in denying his motion for discharge and acquittal based on speedy trial grounds. We agree and reverse.

Bowen was issued citations in March 1999. He filed a speedy trial demand on June 24, 1999, which was within the state court’s May term. On appeal, the state concedes that the case should have been tried no later than the court’s July term, which ended on September 13, 1999. The case was not tried, however, until September 20, 1999.

OCGA § 17-7-170 provides that when a person makes a demand for speedy trial, he is entitled to be discharged and acquitted of the offenses charged if he is not tried during the term in which his demand for trial is made or at the next regular term, and there were juries impaneled and qualified to try him at each of those terms.

The state concedes on appeal that the case was impermissibly tried beyond the two-term limit prescribed by the statute. The trial court erred in not discharging and acquitting Bowen. Therefore, the convictions must be reversed.

Judgments reversed.

Ruffin and Ellington, JJ., concur.


text:
    A01A0622.
    CANNON AIR TRANSPORT SERVICES, INC. v. STEVENS AVIATION, INC.
    (548 SE2d 485)
   Miller, Judge.

Among the issues on appeal are (1) whether under Uniform Superior Court Rule 19.1 (G) a defendant, as opposed to the plaintiff, may pay the bill of costs needed to effectuate a transfer of a case ordered by the court, and (2) whether the evidence here supports the court’s default judgment in favor of the defendant on its counterclaim. We hold that the source of the payment for transfer costs is irrelevant, so long as they are timely paid, and that the plaintiff’s intentional failure to respond to discovery requests suffices to sustain the principal judgment on the counterclaim. We therefore affirm the judgment with the exception of that portion awarding defendant its attorney fees. Since the defendant failed to present evidence showing the reasonableness of those fees, we vacate this portion of the judgment and remand the case.

Dissatisfied with the repair work of Stevens Aviation, Inc. on its airplane, Cannon Air Transport Services, Inc. refused to pay the amount remaining due to Stevens, which included $20,000 it admitted was due, and instead sued Stevens in Fulton County Superior Court for breach of contract, negligence, and attorney fees. Arguing that venue was proper only in Fayette County, Stevens moved to transfer the case to Fayette Superior Court. Stevens also answered and counterclaimed for the full amount remaining due and for attorney fees.

Stevens served interrogatories and requests to produce on Cannon, which Cannon ignored. Stevens moved to compel responses, to which motion Cannon filed no opposition. Instead, Cannon noticed the depositions of nine current or former employees of Stevens. Stevens then moved for sanctions, asking that Cannon’s complaint be struck and that default judgment be entered on the counterclaim. Once again, Cannon ignored the motion.

On January 14, 1998, the Fulton judge ordered the case transferred to Fayette. Before the bill of costs for the transfer was prepared by the Fulton clerk, Cannon filed a voluntary dismissal of its complaint, attached to which was a certificate of service signed by Cannon’s attorney. In fact, the dismissal was never served on Stevens. When Stevens six weeks later learned of the dismissal, it objected and moved to have the dismissal set aside. On May 28,1998, the Fulton clerk sent out the transfer bill of costs, which Cannon declined to pay. Stevens paid the bill, although there was a dispute whether the payment was made within the required 20 days. The case was transferred to Fayette.

After an evidentiary hearing on the sanctions motion, which hearing apparently was not recorded, the Fayette court found that Cannon had wilfully failed to respond to discovery. The Fayette court dismissed Cannon’s complaint with prejudice and entered default judgment in Stevens’s favor on its counterclaim. Cannon appealed to this Court, claiming among other things that its voluntary dismissal precluded the court from dismissing its complaint with prejudice and that Stevens’s payment of transfer costs was untimely. In an unpublished opinion, 240 Ga. App. XXVI (1999), we cited to Moore v. Candler Gen. Hosp. and held that the unserved voluntary dismissal “was invalid and of no effect.” Nevertheless, we vacated the Fayette court’s judgment and remanded the matter for an evidentiary hearing to determine whether the transfer costs were timely paid.

After the hearing, in which the court also received evidence on the damages sought in the counterclaim, the Fayette court found that the transfer costs were paid on June 16, 1998, which was the nineteenth day after the bill of costs had been issued. The court therefore concluded it had jurisdiction over the matter and reaffirmed its earlier findings of wilful discovery abuse by Cannon. Dismissing the complaint, the court entered default judgment in Stevens’s favor on its counterclaim in the amount of $86,005.11, consisting of $36,741.31 in compensatory damages ($29,102.03 plus interest at the rate of seven percent from December 31, 1996) and $49,263.80 in attorney fees. Cannon appeals.

1. Cannon first enumerates that Stevens’s payment of the transfer costs was invalid because USCR 19.1 (G) refers to the plaintiff, not the defendant, as paying transfer costs within 20 days of the bill of costs to avoid an automatic dismissal. The Supreme Court of Georgia was faced with a similar situation when a third party paid the intangible personal property tax assessed against Lombard Corporation, the party challenging the constitutionality of the tax in that case. Even though OCGA § 48-6-25 (now repealed) directed that “[e]ach . . . person [owning taxable property] shall report the property and pay taxes on the property as provided in this article,” the Supreme Court held that the third party’s payment of the tax was valid and rendered the constitutional challenge moot.

Similarly, we hold that even though USCR 19.1 (G) directs the plaintiff to pay the transfer costs, Stevens’s payment of the transfer costs here was valid and prevented the automatic dismissal from being triggered.

2. Cannon contends that the trial court erred in finding that Stevens’s payment of the transfer costs took place on June 16, 1998, which was the nineteenth day following the issuance of the cost bill. Cannon argues that the evidence required the court to find that the payment took place on June 24.

The appellate standard of review for bench trials of material facts is the “clearly erroneous” test, also known in civil cases as the “any evidence” rule. Regardless of whether evidence supports an opposite finding, we construe the evidence in favor of the trial court’s finding and affirm if there is any evidence to support it.

Here evidence supported the trial court’s finding. A certified copy of the Fulton court’s docket sheet was marked as “PAID” on June 16, 1998, with a specific notation that this was the date payment was received from Stevens’s counsel. Stevens’s counsel submitted its cancelled checks, dated June 16, 1998, which counsel verbally confirmed to the court were paid on that date to cover the transfer costs. The Fulton clerk certified the transfer record on June 19, 1998, five days before the alleged payment on June 24 and three days after June 16. The court could infer that this certification would not have taken place until payment was received. The court did not clearly err in finding that the transfer costs were paid within the required 20 days.

3. Cannon claims that its voluntary dismissal, which was filed before the costs were paid and thus before the transfer was effectuated, nullified the transfer and thus deprived the Fayette court of jurisdiction over Cannon’s complaint. Cannon maintains that the Fulton court retained jurisdiction over the counterclaim.

Cannon’s position ignores the express ruling of this Court in the previous appeal, in which this Court addressed this argument and concluded that because Cannon failed to serve the voluntary dismissal on Stevens, the dismissal “was invalid and of no effect.” Under OCGA § 9-11-60 (h), a ruling by this Court is binding in all subsequent proceedings in the same case, whether before the trial court or on appeal. Accordingly, this matter has already been decided against Cannon in a binding ruling.

4. Cannon contends that the court erred in granting default judgment on the counterclaim as a discovery sanction since Cannon’s noncompliance with discovery was not wilful. The trial court recounted in detail the evidence showing Cannon’s repeated and year-long failure to respond to discovery requests despite motions to compel and for sanctions. The court concluded:

Cannon has intentionally failed and refused to respond to Stevens’[s] discovery request in this case. . . . Camion’s refusal to respond to discovery is intentional and its continued pursuit of discovery through the noticing of numerous depositions rather than responding to a properly filed and served motion to compel was a conscious abuse of the discovery process. Consciousness of the failure to respond is further evidenced by plaintiff’s counsel’s failure to follow through with promises to respond and the complete disregard of two discovery motions filed by Stevens.

Our review of a trial court’s finding of a wilful refusal to comply with discovery is the “any evidence” standard. Not only do the pleadings and cited evidence support the trial court’s finding, but we note that the evidentiary hearing on the sanctions motion apparently was not transcribed and certainly was not included in the record on appeal. “In the absence of a transcript of the hearing on appellee’s motion for sanctions, we must assume the evidence supported a finding that appellant’s failure to [respond] was wilful.”

The court’s finding of wilful noncompliance authorized its decision to dismiss the complaint and to enter default judgment on the counterclaim. If, after proper service, a party or his agent fails to serve answers or objections to interrogatories or requests to produce, the presiding judge “may take any action authorized under [OCGA § 9-11-37] (b) (2) (A) through (b) (2) (C). . . .” So upon Cannon’s complete failure to answer or object to Stevens’s interrogatories and requests to produce, the trial court was authorized to strike pleadings, to dismiss the action, or to render default judgment against the disobedient party. Thus, the trial court did not abuse its discretion in dismissing Cannon’s complaint and in entering judgment by default on Stevens’s counterclaim.

5. Cannon urges that no evidence supported the court’s awarding of $29,102.03 on the counterclaim. On appellate review of a bench trial, we must affirm the court’s award of damages if there is any evidence showing with reasonable certainty the amount of damages. So long as the award is within the range of the evidence adduced, we will affirm the trial court’s judgment.

Here Stevens’s vice-president of finance, who was personally familiar with the invoices arising out of the repair, testified that the amount outstanding was $34,102.03. Thus, the award of $29,102.03 was well within the range of damages, particularly considering that Cannon’s president testified that Cannon was due a $5,000 credit.

6. Cannon complains that the evidence did not warrant the award of $49,263.80 in attorney fees. We agree.

OCGA § 13-6-11 authorizes the imposition of attorney fees where the defendant has caused the plaintiff unnecessary trouble and expense. A defendant who has asserted a counterclaim that is independent of a claim for litigation expenses may similarly recover attorney fees from a plaintiff who has caused the defendant unnecessary trouble and expense.

Here the court found that Cannon had caused Stevens unnecessary trouble and expense, citing to evidence that (1) Cannon admitted to owing $20,000 to Stevens but had refused to pay, (2) Cannon had filed three different lawsuits in three different counties based on the same facts and theories of recovery, and (3) Cannon had employed numerous law firms to litigate with Stevens in an effort to avoid or delay paying monies that Cannon admitted owing. Thus, some evidence supported a finding of unnecessary trouble and expense.

Decided May 7, 2001

James S. Strawinski, Michael L. Goldberg, for appellant.

The amount of the fees is another matter. “An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” Although Stevens presented evidence that the actual costs of its attorney were $49,263.80, it wholly failed to present any evidence as to the reasonableness of those fees. Even though testimony from its own attorney on this matter would have sufficed, Stevens made no effort to introduce such. Contrary to representations made at appellate oral argument by Stevens’s counsel, no witness testified that he or she thought the amount of fees was reasonable. This glaring deficiency in the record requires this Court to vacate the attorney fees award.

When a party seeking attorney fees has failed to present an essential element of proof, but the trial court nevertheless awarded attorney fees, we have consistently reversed or vacated that portion of the judgment awarding the attorney fees and remanded the case to the trial court to hold an evidentiary hearing to allow the party, if possible, to cure the matter. Accordingly, we vacate that portion of the judgment awarding Stevens $49,263.80 in attorney fees and remand the case to the trial court to hold an evidentiary hearing on the amount of the attorney fees.

7. Cannon argues that the court erred in failing to grant its motion to set aside a judgment entered in a separate civil action Cannon filed against Stevens in Fayette County court. A separate appeal in that distinct action would be the proper avenue for addressing any alleged errors by the trial court in that action. We are without jurisdiction to address that matter in the case sub judice.

Judgment affirmed in part and vacated in part and case remanded with instruction.

Andrews, P. J., and Eldridge, J., concur.

Kilpatrick Stockton, R. Randy Edwards, William R. Poplin, Jr., for appellee.

       Filing a counterclaim, especially a compulsory counterclaim as here, does not waive a party’s properly asserted objection to venue. Routh v. St. Marys Airport Auth., 178 Ga. App. 191, 193 (2) (342 SE2d 502) (1986); see Antec Corp. v. Popcorn Channel, 225 Ga. App. 1, 3 (3) (482 SE2d 509) (1997); Charles S. Martin Distrib. Co. v. Roberts, 111 Ga. App. 653, 654 (143 SE2d 11) (1965); see generally Riggio v. Lawson, 204 Ga. App. 774, 775 (1) (420 SE2d 613) (1992).

       Cannon was obviously hoping to escape the sanctions motion through an automatic dismissal of the case under USCR 19.1 (G).

       See USCR 19.1 (G).

       185 Ga. App. 280, 281 (1) (363 SE2d 793) (1987).

        Collins v. Lombard Corp., 270 Ga. 120 (508 SE2d 653) (1998).

       Ga. L. 1996, p. 132, § 3.

       Former OCGA § 48-6-25; see Ga. L. 1996, p. 136.

        Collins, supra, 270 Ga. at 122 (2).

       See USCR 19.1 (G); Phillips v. McCroskey, 234 Ga. App. 87 (1) (506 SE2d 388) (1998) (dismissal is automatic).

        Progressive Preferred Ins. Co. v. Aguilera, 243 Ga. App. 442, 445 (2) (533 SE2d 448) (2000).

       Id. at 445-446 (2).

       See OCGA § 24-7-20 (certified copies of public records are admissible).

       See Thomas v. Scott, 221 Ga. 875, 878 (7) (148 SE2d 300) (1966) (statements of counsel in open court may be taken as true).

       See Moore, supra, 185 Ga. App. at 281 (1).

        Widener v. Ashkouti, 239 Ga. App. 530 (1) (521 SE2d 215) (1999).

       Cannon’s attempt to excuse its conduct as the fault of its attorney is to no avail. See Link v. Wabash R. Co., 370 U. S. 626, 633-634, in. 10 (82 SC 1386, 8 LE2d 734) (1962) (party must live with actions of its chosen attorney).

        Dyer v. Spectrum Engineering, 245 Ga. App. 30, 33 (2) (537 SE2d 175) (2000).

       (Punctuation and footnote omitted.) Id.

       See OCGA § 9-11-37 (d) (1); Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439 (2) (254 SE2d 825) (1979); Mining v. Kimoto USA, 209 Ga. App. 296, 297 (2) (433 SE2d 342) (1993).

       OCGA § 9-11-37 (d) (1).

       OCGA § 9-11-37 (b) (2) (C).

        Revels v. Wimberly, 223 Ga. App. 407, 408 (1) (477 SE2d 672) (1996).

        CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 302-303 (1) (464 SE2d 897) (1995); see Lamb v. Tretiak, 194 Ga. App. 764, 765 (2) (391 SE2d 722) (1990).

        Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 522 (3) (352 SE2d 835) (1987).

        Glenn v. Fourteen West Realty, 169 Ga. App. 549, 551 (2) (313 SE2d 730) (1984); accord Gardner v. Kinney, 230 Ga. App. 771, 772 (498 SE2d 312) (1998).

       Cf. Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 329 (3) (358 SE2d 855) (1987).

       (Citation omitted.) Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987); accord Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993); seeRedwine v. Windham, 237 Ga. App. 149, 151 (513 SE2d 13) (1999).

        Nichols v. Main Street Homes, 244 Ga. App. 591, 593 (1) (536 SE2d 278) (2000).

        Hsu’s Enterprises v. Hospitality Intl., 233 Ga. App. 309, 311 (2) (502 SE2d 776) (1998); Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 776-777 (5) (503 SE2d 649) (1998); Hallman v. Emory Univ., 225 Ga. App. 247, 253 (4) (483 SE2d 362) (1997) (physical precedent only); Cornelius v. Wood, 223 Ga. App. 339, 342 (5) (477 SE2d 595) (1996); Banks, supra, 209 Ga. App. at 402; compare United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996).


text:
    A01A0698.
    MITCHELL v. THE STATE.
    (548 SE2d 469)
   Miller, Judge.

A jury found Haywood Mitchell guilty of the sale and delivery of cocaine and of possession of cocaine. He appeals, contending that the State failed to rebut his entrapment defense. He also challenges the admission of similar transaction evidence and the denial of his motion for new trial. We affirm.

On appeal from a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. So construed, the evidence shows that at approximately 9:00 p.m. on January 9, 1998, an undercover agent drove his truck into the parking lot of a gas station/ convenience store located in an area where police had received numerous complaints about street-level drug sales. The agent noticed Mitchell outside, “just standing there,” not engaged in any of the store’s business activities. Suspecting that Mitchell would sell cocaine, the agent nodded to him. Mitchell approached the truck and asked the agent what he needed, and the agent asked for a “twenty,” referring to a $20 piece of cocaine. The agent handed $20 to Mitchell, who then stepped into the store. Moments later, Mitchell returned to the car and handed the agent a rock of crack cocaine, although smaller than the usual $20 size.

The agent testified that Mitchell then entered the passenger side of the truck and asked the agent to break off a piece of the cocaine for his use. Suspecting that Mitchell had already pinched off the rock, the agent refused, but offered to purchase more cocaine from Mitchell. Mitchell directed the agent to a house, and as they drove there, Mitchell smoked crack cocaine from a crack pipe. Having arrived at the residence, Mitchell again took $20 from the agent, went inside, then returned with another rock of crack cocaine. Before handing it to the agent, he broke off a piece, explaining, “I’m going to get me a little piece for myself, for my troubles.” When the agent drove off, police in a marked patrol car stopped the truck and arrested Mitchell.

To show a similar transaction, the State also presented evidence that at approximately 6:00 p.m. on May 28, 1996, a police officer noticed Mitchell outside the same gas station/convenience store, “lingering in the area of the entrance to the station,” not engaged in any of the store’s business activities. When the uniformed officer started driving his marked patrol car toward Mitchell, Mitchell quickly reached under his shirt, rummaged around his waistline, then removed his hand, all the while keeping an eye on the officer. The officer exited the car and approached Mitchell, asking him what he was doing there, and Mitchell responded, “I’m just here.” Concerned that Mitchell had a weapon concealed under his shirt, the officer patted Mitchell’s person and discovered a crack pipe. The pipe was covered with burned cocaine residue. Mitchell was charged with possession of cocaine. The State introduced into evidence certified copies of his subsequent guilty plea and conviction.

Mitchell concedes that he committed the crimes charged in the present case but asserts the defense of entrapment. At trial he took the stand and stated that he had stopped by the store to purchase cigarettes and a drink and that while standing outside for a few minutes, a vehicle pulled near him. A man inside the vehicle motioned for him, asking “[D]o you know where I can get some at?” Mitchell testified that although initially he said that he did not, after one or two more requests and a promise of some of the purchased crack cocaine, he allowed his drug “addiction [to] speak up.” He admitted to transacting the sales at the store and at the residence and to smoking crack cocaine in the truck.

1. Mitchell contends that the trial court erred in admitting evidence of the similar transaction because it was not sufficiently similar to the offense for which he was tried and because the evidence of the prior crime was not relevant to the issues of the case. The State argued at the pre-trial hearing that Mitchell sold crack cocaine for the purpose of “skimming some off the top to smoke it” himself. The trial court found the evidence sufficiently similar and relevant to rebut Mitchell’s entrapment defense, admitting it for the limited purpose of showing Mitchell’s intent, course of conduct, bent of mind, motive, scheme, and plan. We review the trial court’s findings on these issues under the clearly erroneous standard.

Evidence of prior drug convictions evincing similar facts are often admissible as similar transactions in drug prosecutions for certain purposes. “If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.”

In reviewing whether there were sufficient similarities to create a connection between the previous crime and the instant crimes such that the former tends to prove the latter, we focus on the similarities rather than the dissimilarities. Here the similarities include the same location, the approximate time of day, Mitchell’s lack of any store-related activity while at the location, the same drug in the same small amounts, and Mitchell’s having a crack pipe available while at that location. The trial court’s finding that the earlier transaction was sufficiently similar to the charged offenses was not clearly erroneous.

Nor was the trial court’s finding that the prior transaction was relevant to an issue of the instant case clearly erroneous. Mitchell’s prior guilty plea to cocaine possession is relevant here where his asserted entrapment defense turns on whether the crimes were induced by the agent’s undue persuasion and whether he was predisposed to commit the crime. Evidence of the previous conviction for cocaine possession (based upon his having a crack pipe, coated with burned cocaine, while at that same location known for its drug activities) tends to show his course of conduct, bent of mind, scheme, and plan, i.e., it tends to show he was predisposed to commit the crime and that he needed no undue persuasion to commit it.

2. Mitchell contends that the State failed to rebut his defense of entrapment. The elements comprising entrapment are: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.” When a defendant raises the defense of entrapment and testifies to it at trial, the State has the burden of disproving the defense beyond a reasonable doubt. Determining whether the State has done so rests with the jury.

Decided May 7, 2001.

Lawrence W. Daniel, for appellant.

Haywood Mitchell, pro se.

Patrick H. Head, District Attorney, Dana J. Norman, Samuel W. Lengen, Assistant District Attorneys, for appellee.

Here the evidence shows that the idea to transact a sale of crack cocaine originated with the agent. As to undue persuasion, Mitchell points to his testimony of the agent’s repeated requests and offer to share the drug. The agent, however, testified to the contrary, stating that Mitchell was very willing and receptive to selling him the drug and smoked it in his presence. Combined with the evidence of his prior conviction of cocaine possession, evincing Mitchell’s personal use, this evidence authorized the jury to find that the crime had not been induced by the agent’s undue persuasion.

Ready commission of a criminal act may show the element of predisposition. The evidence here reveals that after Mitchell agreed to assist the agent, he was able to immediately transact a sale at that location and further directed the agent to another location where again he was able to immediately transact a sale. Further, Mitchell admitted that he agreed to the sale partly because of his drug habit. Coupled with the similar transaction evidence, this testimony authorized the jury to find that Mitchell was predisposed to commit the crime.

3. Mitchell contends that the trial court erred in denying his motion for new trial. He has not proffered, however, any argument beyond those addressed above. As we have held these lack merit, this enumeration must fail.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Brown v. State, 243 Ga. App. 842, 843 (534 SE2d 206) (2000).

        Roberts v. State, 241 Ga. App. 259, 261 (3) (526 SE2d 597) (1999).

       (Citation omitted.) Id.

        Moore v. State, 273 Ga. 11, 13 (2) (537 SE2d 334) (2000).

       See Tanner v. State, 243 Ga. App. 640, 642-643 (2) (533 SE2d 794) (2000) (in prosecution for possession of cocaine, evidence of defendant’s plea of guilty to three counts of selling cocaine was sufficiently similar to show bent of mind and course of conduct, where prior offenses involved sales of rocks of cocaine from an apartment in a housing project known to have drug trafficking activity and current prosecution resulted from defendant having been found in possession of rock of cocaine shortly after having visited a low-income residential area known for unlawful drug use and trafficking).

       OCGA § 16-3-25; see Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984).

       See Merritt v. State, 211 Ga. App. 228, 230 (4) (438 SE2d 691) (1993); Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

        Keaton, supra, 253 Ga. at 72; see OCGA § 16-3-25.

        Wilcox v. State, 229 Ga. App. 227, 229 (1) (493 SE2d 724) (1997).

       Id.

        Wright v. State, 232 Ga. App. 104, 105 (1) (501 SE2d 543) (1998).

        Wilcox, supra, 229 Ga. App. at 230 (1).


author: Ellington, Judge.

text:
    A01A0018.
    YARBROUGH v. KIRKLAND.
    (548 SE2d 670)
   Ellington, Judge.

Clifteen Yarbrough appeals the trial court’s order granting Patrick B. Kirkland’s motion for summary judgment on Yarbrough’s claims for fraud and indemnification arising from a real estate transaction. Yarbrough also appeals the trial court’s earlier order denying her motion to strike Kirkland’s complaint and his responses to her request for admissions as the sanction for Kirkland’s failure to comply with the court’s discovery orders. For the reasons which follow, we affirm the trial court’s order denying Yarbrough’s motion to strike Kirkland’s complaint but reverse the order granting Kirkland’s motion for summary judgment.

1. Yarbrough contends the trial court abused its discretion in denying her motion to strike Kirkland’s complaint and his responses to her request for admissions. OCGA § 9-11-37 (b) (2) grants trial courts “a very broad discretion ... in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts” with regard to the conduct of discovery. (Citations and punctuation omitted.) Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). Such sanctions may include dismissing a complaint, entering default, declaring designated facts to be established for the purposes of the action, or ordering the disobedient party to pay the reasonable expenses, including attorney fees, caused by the failure to respond. OCGA § 9-11-37 (b) (2). “As a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal.” (Citation omitted.) Joel v. Duet Holdings, 181 Ga. App. at 707. The drastic sanctions of dismissal and default may be imposed only “in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order.” (Citation and punctuation omitted.) Id. Our appellate courts will not “interfere with a trial court’s exercise of its discretion in absence of abuse.” (Citations and punctuation omitted.) Id.

In this case, the trial court found, based in part on Kirkland’s affidavit, that there was no evidence that his failure to comply with the court’s earlier orders compelling his complete response to Yarbrough’s discovery requests was the result of intent or ill will. The trial court imposed sanctions in the amount of $1,000 for Kirkland’s delay in responding to Yarbrough’s discovery requests. Based on our review of the record, we conclude Yarbrough failed to show that the trial court abused its discretion in imposing lesser sanctions than dismissal and default. See Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 45-46 (1) (486 SE2d 180) (1997).

2. Yarbrough contends questions of fact remain for resolution by a jury on the issue of justifiable reliance. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may meet its burden in moving for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in the light most favorable to Yarbrough, the evidence shows the following facts: In April 1995, Kirkland solicited Yarbrough to invest in real estate with his company, The Baxter Group, Inc. On or about May 4, 1995, Kirkland proposed that Yarbrough purchase a four-bedroom single-family house located at 1453 Midview Drive, Decatur, DeKalb County. In exchange for a percentage of the rental income, the Baxter Group would renovate the house, furnish the units and common areas, and then manage the property as a boarding house. Kirkland offered to pay the mortgage until the house was ready to produce rental income. Kirkland showed Yarbrough a document called a “Pro Forma,” which showed the monthly income he predicted the property would generate as a ten-unit boarding house. Kirkland also showed Yarbrough an appraisal of 1453 Midview Drive which valued the property (as a single-family home) at $147,500. That day, May 4, 1995, Yarbrough entered into a contract to purchase 1453 Midview Drive from the Baxter Group for $147,500. At that time, the Baxter Group did not own the property but bought it from the previous owner on May 16, 1995, for $76,000.

On May 23, 1995, Yarbrough and the Baxter Group closed on the purchase and sale of the property for $147,500. Kirkland received a loan origination fee and other compensation as the mortgage broker. Addendum A to the purchase contract provided that the Baxter Group would create ten bedrooms and three bathrooms in the house and provide certain furnishings for the boarding house. Addendum A also provided: “The Baxter Group, Inc. will manage said property and do all leasing for 15% of the gross income. We will collect the rent and forward such rent to purchaser on a weekly basis. The Baxter Group, Inc. will deduct from the rent the amount of mortgage payment and forward such amount to the mortgage company.”

The Baxter Group completed the remodeling and began operating the property as a boarding house. On August 8, 1995, Yarbrough received notice from DeKalb County that the property was not zoned to operate as a boarding house. Yarbrough stopped making mortgage payments, and, in July 1996, Headlands Mortgage Company foreclosed on the property. The Superior Court of DeKalb County confirmed the sale, finding the property was sold for its fair market value of $58,000, and Headlands obtained a $128,063 deficiency judgment against Yarbrough.

Yarbrough framed her claim against Kirkland in terms of five theories of recovery: (1) fraud, (2) punitive damages, (3) Georgia Racketeer Influenced & Corrupt Organizations Act violations, (4) attorney fees, and (5) indemnification. Yarbrough bases her claim for fraud on grounds that Kirkland knowingly made misrepresentations to her prior to the sale of the property, as to: (1) the zoning or usage of the property as a boarding house; (2) the potential income that could be derived from the property as a boarding house; and (3) the value of the property. The trial court determined that Yarbrough could not prevail on any of her theories of recovery unless she proved the underlying fraud claim. The trial court determined that Yarbrough could not satisfy the essential element of justifiable reliance because she conducted no independent investigation as is required in a real estate transaction. The trial court concluded that information about the zoning status of the property was readily available from DeKalb County.

Yarbrough contends that her reliance on Kirkland’s representations was in fact justified because there was a confidential relationship between the parties in that Kirkland acted as her management agent and mortgage broker. Under Georgia law, a confidential relationship imposes a greater duty on the parties to reveal what should be revealed and a lessened duty to discover independently what could have been discovered through the exercise of ordinary care. Hunter, Maclean, Exley &c., P.C. v. Frame, 269 Ga. 844, 847-848 (507 SE2d 411) (1998).

The trial court concluded that any confidential relationship came to exist only when Kirkland signed the management agreement which occurred after the representations were made. Even assuming a confidential relationship, the trial court rejected Yarbrough’s claim of justifiable reliance based on Yarbrough’s failure to independently assess Kirkland’s management abilities prior to entering into a confidential relationship.

A fiduciary or confidential relationship arises “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58. The party asserting the existence of a fiduciary or confidential relationship bears the burden of establishing its existence. O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 330 (5) (514 SE2d 669) (1999). When a fiduciary or confidential relationship is not created by law or contract, we must examine the facts of a particular case to determine if such a relationship exists. Cochran v. Murrah, 235 Ga. 304, 306-307 (219 SE2d 421) (1975). Although a buyer is generally not justified in relying on a seller’s claims regarding real estate, a jury issue may exist as to whether a confidential relationship between the parties abrogates the general rule. Gilmore v. Bell, 223 Ga. App. 513, 514 (1) (478 SE2d 609) (1996). Because a confidential relationship may be found whenever one party is justified in reposing confidence in another, the issue of whether a confidential relationship has been created is ordinarily reserved for the jury. Id.

In this case, Yarbrough presented evidence that Kirkland made the allegedly fraudulent representations about the value of the property, the use of the property as a boarding house, and the potential income that could be derived from that use as part of the same communication in which he offered to act as her agent in procuring the mortgage, overseeing the renovation, and operating the boarding house. Yarbrough’s decision to buy the property was based on her confidence that the property could be used in the way Kirkland suggested and that Kirkland would rent the property on her behalf as he agreed to do. Further, Kirkland encouraged Yarbrough’s confidence by such conduct as telling her that he would take care of “everything,” including getting a termite inspection and a roof inspection, and that she did not need to consult an attorney. Based on the circumstances presented here, we find that a jury issue exists regarding whether Kirkland and Yarbrough were in a confidential relationship at the time of the alleged fraud. Pope v. Propst, 179 Ga. App. 211, 215-216 (6) (345 SE2d 880) (1986) (jury issue as to whether housing inspector used his position to defraud homeowner into selling house to him for a price below market value). Because the evidence construed in Yarbrough’s favor presented a jury issue regarding whether a confidential relationship existed between the parties such that Yarbrough justifiably relied on Kirkland’s representations about the property, the trial court erred in granting Kirkland’s motion for summary judgment. Capriulo v. Bankers Life Co., 178 Ga. App. 635, 639-640 (2) (344 SE2d 430) (1986).

Decided May 8, 2001.

William H. Arroyo, for appellant.

Friedman, Dever & Merlin, H. Michael Dever, Michael F. O’Neill, for appellee.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ruffin, J., concur.

       See OCGA § 16-14-1 et seq.

       “[T]he law in Georgia is well-settled that in the purchase and sale of real estate there is an underlying principle of law to the effect that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided [the] damage.” (Citations and punctuation omitted.) Hanlon v. Thornton, 218 Ga. App. 500, 501-502 (1) (462 SE2d 154) (1995) (affirming the trial court’s grant of summary judgment in favor of the sellers and holding that, in the absence of a confidential relationship, the purchaser’s failure to exercise any independent effort to determine the true value of the property precluded a showing of justified reliance). See also Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 756 (2) (371 SE2d 217) (1988) (affirming the trial court’s grant of summary judgment due to purchaser’s failure to ascertain for himself the zoning status of the property); Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 380-381 (2) (283 SE2d 330) (1981) (buyer’s failure to independently verify the accuracy of a representation regarding income that could be derived from property required summary judgment on fraud claim).

       See William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 636-637 (6) (a) (466 SE2d 872) (1995) (finding no fraud where confidential relationship may have existed prior to the transaction but had ended by the time the alleged misrepresentations were made).

       See note 2, supra.


author: Mikell, Judge.

text:
    A01A0222.
    BALATA DEVELOPMENT CORPORATION v. REED.
    (548 SE2d 668)
   Mikell, Judge.

Balata Development Corporation (“Balata”) appeals the trial court’s ruling that Balata is not entitled to a refund of the earnest money it paid pursuant to a contract it executed with Jerry Reed to purchase Reed’s property. We reverse.

It is undisputed that the contract was prepared and printed by Balata. Section 2 of the contract, entitled “Earnest Money Deposit,” provides: “Buyer shall, simultaneously with its execution hereof, deposit with Seller the sum of Fifty Thousand ($50,000) AND NO/ 100 dollars as the Earnest Money Deposit hereunder. Such sum shall non refundable [sic] to Buyer. Said sum shall apply toward said purchase price herein at closing.” (Emphasis supplied.) In contrast, the third paragraph of Section 5, entitled “Survey,” provides:

If such Surveys, [sic] indicate conditions unsuitable to Buyer for Buyer’s contemplated use, . . . then at the option of Buyer, evidenced by written notice to Seller, this Agreement shall be null and void and the Earnest Money Deposit shall be promptly returned to Buyer notwithstanding anything in this Agreement to the contrary.

(Emphasis supplied.)

Balata tendered $50,000 as earnest money to Reed upon execution of the contract. After reviewing a survey of the property, Balata determined that the property would not yield a sufficient number of lots and thus was not suitable for development into the subdivision it had planned. Balata notified Reed that the property was unsuitable for its intended use and requested a refund of the earnest money. Reed refused.

Decided May 8, 2001.

Davidson & Fuller, Stephen P. Fuller, for appellant.

Alfred L. Allgood, for appellee.

Balata filed a petition for declaratory judgment raising three issues of contract construction, including whether the earnest money was refundable. Following a bench trial, the court entered a final order in which it held that Reed was not required to refund the earnest money. Balata appeals the order solely on that issue.

It is well settled that the construction of a contract is a question of law for the court. OCGA § 13-2-1; Ga. Assn, of Educators v. Paragon Productions, 238 Ga. App. 681, 682 (1) (520 SE2d 37) (1999); Estate of Sam Farkas v. Clark, 238 Ga. App. 115, 119 (2) (517 SE2d 826) (1999). Therefore, our review of the court’s interpretation of the contract is de novo. Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000).

Balata contends that the trial court ignored the language “notwithstanding anything in this agreement to the contrary” contained in Section 5, and that it erred in finding that Sections 2 and 5 of the contract conflict. We agree.

The cardinal rule of contract construction is to ascertain the intention of the parties. Thornton v. Kumar, 240 Ga. App. 897, 898 (525 SE2d 735) (1999); OCGA § 13-2-3. Additionally, the law favors the construction of a contract that will uphold the entire instrument as a whole. Asian Square Partners v. Cuong Quynh Ly, 238 Ga. App. 165, 167 (1) (518 SE2d 166) (1999); OCGA § 13-2-2 (4).

Applying the above rules of construction, we interpret Section 2 of the contract as a general provision that the earnest money shall be nonrefundable after the signing of the contract. Section 5 then sets out a more specific provision regarding the Buyer’s options if the survey indicated conditions unsuitable for the Buyer’s contemplated use. Section 5 provides the precise mechanism for the Buyer to express his objections, and that the earnest money shall be promptly returned at the Buyer’s option. We find this interpretation to be more consistent with the intention of the parties and conclude that the money should have been returned to Balata. Accordingly, the trial court’s decision is hereby reversed.

Judgment reversed.

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


text:
    A01A0481.
    PARKER v. THE STATE.
    (549 SE2d 154)
   Mikell, Judge.

Randall L. Parker was convicted of the following offenses: driving under the influence of alcohol (“DUI”) to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1); driving without headlights, OCGA § 40-8-20; and improper lane change, OCGA § 40-6-123 (a). He was sentenced to twelve months to serve on each count, with the three sentences to run consecutively. He appeals, arguing that the offenses of driving without headlights and improper lane change merged into the DUI charge. We affirm.

The evidence adduced at trial shows that on September 11,1999, at approximately 9:30 p.m., Officer Scott Oliver of the Atlanta Police Department observed Parker’s vehicle being operated without headlights. When Officer Oliver pulled up next to Parker’s vehicle to signal him that his lights were off, Parker swerved and struck the police car. According to the officer’s testimony, Parker moved back into his proper lane, mouthed the words “I’m sorry,” and continued driving. Officer Oliver turned on his blue lights and directed Parker to pull over. When Parker exited the vehicle, Officer Oliver testified that he staggered and smelled of alcohol. Officer Oliver further observed that Parker’s eyes were glassy and that his speech was slurred. Parker told the officer that he did not realize he was driving without headlights or that he had struck the police car. Parker admitted to the officer that he had “had a couple of drinks.”

Officer Oliver did not ask Parker to perform any field sobriety tests because he was concerned that Parker might injure himself due to his impaired state. The officer read the implied consent notice to Parker, who consented to a breath test. Parker failed to provide a sufficient breath sample after three attempts, so the police officers characterized his failure as a refusal to meaningfully submit to testing.

Parker contends that his convictions of the offenses of driving without headlights and improper lane change cannot stand, because the evidence required to prove them was “used up” proving the DUI offense. We disagree.

“Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.” (Citations and punctuation omitted.) Head v. State, 202 Ga. App. 209, 210 (2) (413 SE2d 533) (1991). OCGA § 16-1-7 (a) prohibits multiple convictions for the same conduct. However, in order to determine if the merger doctrine applies, we must examine the facts alleged in the indictment or accusation as well as the evidence adduced at trial.

Decided May 8, 2001.

Edward L. Adams, for appellant.

Joseph J. Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee.

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. . . . Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on. a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations, punctuation and emphasis omitted.) Strickland v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996).

In the case sub judice, the facts alleged in the accusation with regard to the DUI charge are not also sufficient to establish the lesser offenses of driving without headlights and improper lane change. Specifically, Count 1 charges Parker with DUI for being “in actual physical control of a moving vehicle while under the influence of alcohol, to the extent that it was less safe for the accused to drive in violation of OCGA § 40-6-391 (a) (1).” Clearly, no mention is made of driving without headlights or improper lane change. Accordingly, these crimes cannot merge with the DUI charge as a matter of fact, regardless of the evidence adduced at trial. See Strickland, supra at 774.

Furthermore, we disagree with Parker’s argument that the evidence necessary to prove the offenses of driving without headlights and improper lane change was “used up” when the state proved the DUI offense. Compare Chadwick v. State, 236 Ga. App. 199, 202-203 (3) (511 SE2d 286) (1999). There was ample evidence supporting the DUI charge absent evidence of the other driving infractions. Specifically, the arresting officer testified that Parker staggered when he exited his vehicle, that he admitted that he had been drinking, that his eyes were glassy, and that his speech was slurred. This evidence would be sufficient to support Parker’s DUI conviction, and it was not necessary that the state prove that Parker actually committed an unsafe act. Lewis v. State, 214 Ga. App. 830, 831 (1) (449 SE2d 535) (1994). Accordingly, we affirm Parker’s conviction and sentence.

Judgment affirmed.

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


text:
    A01A0805.
    BITUMINOUS CASUALTY CORPORATION v. NORTHERN INSURANCE COMPANY OF NEW YORK.
    (548 SE2d 495)
   Mikell, Judge.

This is an appeal from a summary judgment granted to Northern Insurance Company of New York (“Northern”) in a contribution action filed by Bituminous Casualty Corporation (“Bituminous”) to recover half of the attorney fees and litigation expenses Bituminous has incurred and continues to incur in defending Triad Construction Company (“Triad”) against claims filed by Hilda and Devan Lowe. Because the claims asserted by the Lowes are excluded from coverage under Northern’s policy, we affirm.

The Lowes hired Triad in 1995 as the general contractor for the construction of a 15,000-square-foot residence in Gadsden, Alabama. In the summer of 1996, a slate deck attached to the master bedroom and extending on columns over the front entrance to the home began to leak. Triad agreed to remove and reinstall the deck. On July 31, the plastic sheeting Triad had used to cover the deck blew away during a rainstorm, and water inundated the house, allegedly causing $165,000 in damages. At the time, Triad had commercial general liability insurance policies with both Bituminous and Northern.

Disputes arose concerning the quality of the construction, and the Lowes terminated their contract with Triad on January 17, 1997, before the house was completed. In March, Triad received a subrogation demand from its builder’s risk insurer, Great American Insurance Companies, for damages paid to the Lowes on account of the loss. The demand was submitted to Northern, which denied coverage.

In June 1997, Triad sued Devan Lowe in Georgia to recover monies allegedly due under the contract. Mr. Lowe, an Alabama resident, removed the suit to federal district court and filed a counterclaim, seeking damages for breach of contract and fraud, including attorney fees and punitive damages. Triad forwarded a copy of the counterclaim to Bituminous and Northern and requested that each insurer provide a defense. Bituminous and Triad entered into a bilateral reservation of rights and nonwaiver agreement, and Bituminous defended the counterclaim. However, by letter dated December 8, 1997, Northern denied coverage.

The Georgia action was dismissed for lack of personal jurisdiction, and on November 18,1997, the Lowes filed suit against Triad in the Circuit Court of Etowah County, Alabama. The suit asserted a negligence claim in addition to the breach of contract and fraud counts specified in the Georgia action. Bituminous has defended Triad in the Alabama suit, which remains pending. Triad did not notify Northern of the Alabama litigation.

Bituminous filed this contribution action against Northern on August 4, 1999. The parties filed cross-motions for summary judgment. The trial court denied Bituminous’ motion and granted Northern’s motion, ruling that the damages that occurred to the Lowes’ house fell within the “business risk” exclusion from coverage under the policy. We agree.

Whether an insurer is obligated to defend an action against its insured is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy [,] even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted. Thus, the issue is not whether the insured is actually liable to the plaintiffs [in the underlying action]; the issue is whether a claim has been asserted which falls within the policy coverage and which the insurer has a duty to defend.

(Citations and punctuation omitted; emphasis in original.) Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 558 (481 SE2d 850) (1997).

In their complaint in the Alabama litigation, the Lowes allege that Triad negligently allowed the unfinished residence to sustain substantial damage as a result of the removal of roof decks immediately prior to an impending, predicted storm. Triad had agreed to remove and reinstall the decks because they had been constructed with insufficient waterproofing. The issue is whether this claim falls within the coverage of Triad’s policy with Northern.

Northern’s umbrella policy provides coverage for property damage caused by an “occurrence,” which is defined as “an accident.” The policy does not define “accident,” but OCGA § 1-3-3 (2) describes it as “an event which takes place without one’s foresight or expectation or design.” The policy contains a corresponding exclusion for property damage that is “expected or intended from the standpoint of the insured.” Additionally, provisions 2.j.(5) and (6) exclude the following from coverage:

“Property damage” to (5) [t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the property damage arises out of those operations; or (6) [t]hat particular part of any property that must be restored or replaced because “your work” was incorrectly performed on it.

In Sapp v. State Farm Fire &c. Co., 226 Ga. App. 200 (486 SE2d 71) (1997), this Court determined that an identical provision contained in a State Farm commercial general liability (“CGL”) policy excluded coverage for damage to the construction project itself caused by the defective workmanship of the insured contractor. Id. at 202-203 (a). We explained that

the business risk borne by the contractor to replace or repair defective work to make the building project conform to the agreed contractual requirements ... is not covered. . . . The coverage applicable under the CGL policy is for tort liability for injury to persons and damage to other property, and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.

(Citations, punctuation and emphasis omitted.) Id. at 203-204 (b).

In the underlying litigation in Sapp, the homeowner alleged that the contractor installed wood flooring throughout the house without adequately addressing the moisture problem under the house. The floor began to warp soon after it was installed, and the homeowner sued to recover the cost of removing and replacing the flooring, as well as the costs of restoring his home to its pre-contract condition. Id. at 201. The facts of the case sub judice do not differ materially from those in Sapp. Here, the homeowners allege that during the process of removing and reinstalling decks that were built with insufficient waterproofing, the builder negligently failed to take sufficient precautions to protect the project from being inundated by water due to a predicted storm. Sapp is apposite and controlling.

Bituminous attempts to distinguish Sapp by arguing that the Lowes’ complaint could reasonably be construed as alleging that Triad’s negligence caused damage to “other property,” that is, parts of the project other than those on which Triad worked. Bituminous relies on Canal Indem. Co. v. Blackshear Farmers Tobacco Warehouse, 227 Ga. App. 637 (490 SE2d 129) (1997), and Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga. App. 508 (417 SE2d 197) (1992), in support of its argument, but neither case is apposite. Canal Indem. Co. involved a roofer who installed and repaired a portion of the roof of a tobacco warehouse. The roof leaked after the work was completed, and water damaged tobacco that was stored inside the warehouse. We held that the ruined tobacco constituted “other property” that was covered by the roofer’s CGL policy. The case is distinguishable because the insured roofer was responsible for only a portion of the roof, while in the instant case, the insured was the general contractor and thus responsible for the entire construction project.

Decided May 8, 2001

Bovis, Kyle & Burch, John H. Peavy, Jr., for appellant.

Hawkins & Parnell, Frank C. Bedinger III, Christian G. Henry, for appellee.

Freeman, Mathis & Gary, T. Bart Gary, amicus curiae.

In Glens Falls Ins. Co., the developer of a golf course alleged that the contractor negligently built part of the project on federally protected wetlands. Coverage under the contractor’s CGL policy was premised upon its alleged failure to exercise ordinary care not to endanger the persons or property of others. Id. at 512.

As the Lowes have asserted a claim that is excluded from coverage under the policy, Northern has no duty to defend it. The trial court did not err in granting summary judgment to Northern.

Judgment affirmed.

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

       Triad has filed an amicus brief. While we laud its scholarly efforts, we find it unnecessary to address arguments it asserts that are unrelated to the “business risk” exclusion.

       Bituminous issued policy no. CLP 2277777, effective December 1, 1996, through December 1, 1997. Northern issued general liability policy no. EPA 24478530, effective on January 1, 1996, and cancelled on November 30, 1996, and umbrella policy no. UBA 69559467, effective January 1, 1996, through January 1, 1997.


author: MlKELL, Judge.

text:
    A01A1074.
    HERMANN v. THE STATE.
    (548 SE2d 666)
   MlKELL, Judge.

Jeffrey James Hermann was charged with a violation of the Georgia Controlled Substances Act for possession of marijuana. OCGA § 16-13-30. Hermann entered a guilty plea pursuant to OCGA § 16-13-2 (a), so that he would be conditionally discharged as a first offender. The state recommended the following negotiated sentence to the court: “twelve months probation, four days to serve with credit for time already served, a $500 fine, forty hours of community service, and random drug screens.” The court informed Hermann that he would also be required to attend 16 Narcotics Anonymous or Alcoholics Anonymous (“AA”) meetings, participate in a drug risk reduction program, submit to an evaluation, and obtain any treatment deemed necessary. Hermann told the court that he understood the additional conditions, and the court accepted his guilty plea.

At the hearing, the court sentenced Hermann as follows:

You will have twelve months probation; attend sixteen AA meetings; you will have four days to serve; you’ll report at 7 p.m. on [September 15], which is Friday at the jail to serve the balance of your jail time; you get credit for any hours already served. You will have [OCGA §] 16-13-2 treatment. You will complete the DUI drug risk reduction program. I’m going to do something different in the place of that. This will be less expensive. I’m not going to order the DUI drug risk reduction program. I am going to order a drug evaluation and any outpatient treatment that is recommended. This will be done by Ed Pierce. This will be less expensive than the other thing. You will pay a $500 fine; you’ll have random drug screens; you’ll have forty hours community service, and court costs.

Subsequently, the court reduced the sentence to writing. According to the written sentence, Hermann was required to pay the following: a $25 fee, as required by OCGA § 42-8-34; a fee of 50 percent of his $500 fine, according to OCGA § 15-21-100; and a probation supervision fee of $38 per month.

Hermann filed a motion to withdraw his guilty plea. At the motion hearing, Hermann testified that a course of treatment involving at least 17 counseling sessions was recommended after his drug evaluation, and that the sessions would cost $66 per week, thus imposing a large financial burden. The court denied the motion, and Hermann filed this appeal. We affirm.

“[A]fter [a] sentence is pronounced, as here, permission to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and the court’s decision will not be disturbed unless that discretion is manifestly abused.” Dalton v. State, 244 Ga. App. 203, 205-206 (2) (534 SE2d 523) (2000).

Hermann argues that the court erred by denying his motion to withdraw his guilty plea, because he was not properly advised of the conditions of his probation. Essentially, Hermann challenges his sentence, based on the surcharges and fees it involves, and argues that he was not adequately informed of the financial burden associated with the terms of his probation.

We conclude that the trial court did not manifestly abuse its discretion in denying Hermann’s motion. First, the court did not have the discretion to add or suspend the mandatory charges of which Hermann complains. OCGA § 15-21-100 (a) provides in pertinent part that “there shall be imposed as an additional penalty a sum equal to 50 percent of the original fine” when a court imposes a fine for any offense involving the possession of marijuana. (Emphasis supplied.) Likewise, OCGA § 42-8-34 (d) (2) provides for a mandatory $25 fee when a defendant is put on probation.

More importantly, the unanticipated costs associated with Hermann’s sentence did not result in a plea that was involuntarily given. The court fully advised Hermann of his sentence. Because the statutorily mandated fees and the cost of Hermann’s probation and drug treatment did not lengthen or alter the pronounced sentence, they merely had a collateral effect. See Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999). “Adverse unanticipated collateral consequences are not valid reasons for reversing the trial court’s refusal to withdraw a plea.” Davis v. State, 151 Ga. App. 736-737 (261 SE2d 468) (1979).

In Sherwood v. State, 188 Ga. App. 295 (1) (372 SE2d 677) (1988), we held that a trial court was not required to inform a defendant of all of the “collateral consequences” of his plea of nolo contendere to several traffic offenses and, therefore, that the court did not err in denying the defendant’s motion to withdraw his plea. Furthermore, the Supreme Court held in Williams v. Duffy, supra, that defense counsel was not ineffective for failing to inform a defendant that no portion of his 15-year sentence could be served on parole. In Williams, the Court reasoned that ineligibility for parole had only a collateral effect on the defendant’s sentence, because it did not lengthen the sentence itself, and that “[t]here is no constitutional requirement that a defendant be advised of such collateral consequences in order for his guilty plea to be valid.” Id. at 581 (1).

Hermann relies on Fox v. State, 272 Ga. 163 (527 SE2d 847) (2000); however, that case is distinguishable from the case at bar. In Fox, the defendant had previously pleaded guilty to a burglary charge. When he was sentenced, the court did not mention a special condition of Fox’s probation that he waive his Fourth Amendment rights. Instead, a probation officer informed him of the condition after the sentencing and outside the presence of counsel. During a subsequent search of Fox’s residence, police discovered marijuana and a firearm. The trial court denied Fox’s motion to suppress the evidence found in his home. Reasoning that Fox was not given the option to consider this particular substantive condition of probation, the Supreme Court reversed and held that “under these circumstances, the waiver of Fox’s Fourth Amendment rights was not valid.” (Emphasis supplied.) Id. at 165 (1).

In the case sub judice, Hermann has not unknowingly waived any of his constitutional rights, nor has he been given a longer sentence than that to which he agreed. Rather, he has been subjected to statutorily mandated fees and has been asked to pay the costs associated with his drug treatment as collateral consequences of his probation. “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (Punctuation omitted.) Davis, supra at 737, citing Brady v. United States, 397 U. S. 742, 757 (90 SC 1463, 25 LE2d 747) (1970). Accordingly, we find that the court did not err in denying Hermann’s motion to withdraw his guilty plea.

Decided May 8, 2001.

John L. Strauss, for appellant.

Richard R. Read, Solicitor-General, Robert D. James, Jr., Assistant Solicitor-General, for appellee.

Judgment affirmed.

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