text:
    A97A1930.
    THE STATE v. HALL.
    (493 SE2d 718)
   McMurray, Presiding Judge.

Defendant-appellee Emerson Hall and defendant Frederick J. C. Saunders were jointly charged in an indictment with a single count of trafficking in cocaine, in that they allegedly “did knowingly possess 28 grams or more of a mixture containing at least ten percent Cocaine. . . .” Each defendant moved to suppress contraband discovered in a vehicle driven by defendant Saunders and in which defendant-appellee Hall was a passenger. The motions were originally denied by the first superior court judge on July 20, 1995. Motions for reconsideration of the denial of the motions to suppress were subsequently denied by the second superior court judge nunc pro tunc January 29,1996. Defendant-appellee Emerson Hall’s renewed motion to suppress was ultimately granted by the third superior court judge on January 28, 1997, who concluded “the consent of Defendant Saun-der’s [sic] was not valid in as much as [sic] the evidence showed that an officer at the scene represented to the Defendant that a warrant to search will be obtained if consent is refused or withdrawni, thereby] rendering the consent invalid.” (Emphasis supplied.) Pursuant to OCGA § 5-7-1 (a) (4), the State brings this direct appeal, enumerating as error the grant of defendant-appellee Hall’s motion to suppress. Held:

1. “[I]n a consent search, the burden is upon the [S]tate to ‘demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact [for the trial court] to be determined from all the circumstances.’ [Cits.]” Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873). “While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous ([cits.]), where the evidence is uncontro-verted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. [Cits.]” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474). In the case sub judice, the evidence is in dispute as to whether defendant Saunders questioned the police as to what would happen if he refused or withdrew his consent to search the car. Consequently, the factual findings of the trial court are reviewed under the deferential “clearly erroneous” standard.

2. Viewed in the light most favorable to the trial court’s determination (State v. Browning, 209 Ga. App. 197 (1), 198 (433 SE2d 119)), the evidence adduced at the suppression hearing authorized the following facts:

On March 9, 1994, Trooper Frank Matthew Gaskin of the Georgia State Patrol stopped a vehicle traveling north on 1-95, after radar indicated the car was going “90 miles an hour in a 65 mile, per hour zone.” “The driver was Frederick Saunders.” In the front passenger seat was defendant-appellee Emerson Hall. Saunders produced a Bahamian “driver’s license along with a photocopy of [his] passport because the driver’s license doesn’t have a picture on it.” A rental agreement indicated the car was rented in Miami, Florida to defendant Saunders. Trooper Gaskin issued Frederick Saunders a citation for speeding and summoned Deputy David Blige of the Bryan County Sheriff’s Department to come to the scene and accept a cash bond from Saunders. The radio operator’s report indicates that Deputy Blige was requested at “2052,” i.e., 8:52 p.m. There is also a notation that at “2101,” i.e., 9:01 p.m., Trooper Gaskin inquired about the availability of a “drug dog.”

There was no indication the vehicle had been stolen, there was no problem with the rental paperwork, there was no visible sign of any green leafy material in the passenger compartment; no seeds, no baggies, no mirror, no white powder, no razor blades, no straws, no guns, no large amounts of cash, no beer, no liquor, no bottles; nor was there any indication the driver or the passenger “were under intoxication.” Nevertheless, Trooper Gaskin’s suspicions were aroused when defendant-appellee Emerson Hall told him “they were going to North Carolina to see some friends,” whereas the driver had “stated he was going to Atlanta to see some relatives.” “Based on the conflicting stories between [the driver] and his front passenger it [led] [Trooper Gaskin] to believe that there was something that wasn’t quite right. And based on that [Trooper Gaskin] asked for a consent to search his vehicle.” State’s Exhibit 2 is a copy of a consent form to search the vehicle, “including luggage and contents thereof.” This was executed by Frederick Saunders, ostensibly signed at 9:11 p.m. But both the speeding citation and the citation for possession of a controlled substance purport to be issued at 9:00 p.m.

Defendant Frederick Saunders testified that “[w]hile he [Trooper Gaskin] was writing the ticket [for speeding] he called in for the drug dog. And he started to write up a ticket. He asked [defendant Saunders] if [he] would be able to afford the cash bond.” While they were waiting for Deputy Blige to arrive, Trooper Gaskin asked defendant Saunders “if [he, defendant Saunders] would mind him searching the car. [Defendant Saunders] asked him what would happen if [he did not] allow [Trooper Gaskin] to search the car. He told [defendant] that he would impound the car and [defendant] would be arrested until they get a search warrant from the judge.” Once Deputy Blige arrived, defendant Saunders “asked Officer Blige if [he, defendant Saunders] don’t sign the warrant [(consent form?)] would they be allowed to arrest [him] and impound the car until they get a warrant and he told [defendant] yes. And that’s when [defendant Saunders] signed the form.” Trooper Gaskin affirmed that had defendant Saunders not given him consent to search, since Trooper Gaskin had already written him a ticket, “[defendant Saunders] would have been free to go or he was free to go at the time Deputy Blige gave him his driver’s license and his receipt for his money.” Deputy Blige confirmed he told defendant Saunders “they [had] the right to stop the search ... at any time[,] [b]ut then [Trooper Gaskin would] go get a warrant.” Defendant Saunders confirmed that both his clothes and defendant-appellee Hall’s clothes were in the bag searched. Defendant Saunders felt “intimidated or threatened if [he] didn’t sign the consent [form,] [t]o the point of being arrested. . . .”

Trooper Gaskin “located a black bag in the trunk of the vehicle. It was filled with clothes. [Trooper Gaskin] removed the clothes and noticed that the bottom of the bag was uneven. The bottom of the bag was lumpy and [Trooper Gaskin] removed the clothes from the bag and noticed that there was freshly dried glue along the seams of the bottom of the bag. And [he] pulled the bottom of the bag up and found the white powder substance that was wrapped in plastic in the bottom of the bag’s false compartment.”

(a) In the case sub judice, the State does not contend that Trooper Gaskin had probable cause to search the vehicle. Rather, the State argues first that the suppression motion ought not have been granted by the third judge, after the first judge “chose to believe the testimony of the police, and [originally] denied the motion,” and the second judge denied reconsideration.

Decided November 5, 1997.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant

This argument is without merit. “Discretion in regulating and controlling the business of the court is necessarily confided to the [presiding] judge. OCGA § 15-1-3.” (Citations and punctuation omitted.) Scott v. State, 216 Ga. App. 692, 693 (3), 694 (455 SE2d 609). The denial of a pre-trial suppression motion, an interlocutory eviden-tiary ruling, is subject to review by the presiding judge ex mero motu. Chastain v. State, 158 Ga. App. 654, 655 (281 SE2d 627). “The trial court may, within its sound discretion, consider anew a suppression motion previously denied. [Cits.]” State v. Marcus, 206 Ga. App. 385 (1) (425 SE2d 351).

(b) Next, the State contends the grant of the suppression motion is erroneous because defendant-appellee Hall had no standing to object to the search as a mere passenger. But it is uncontradicted that the black bag contained some of defendant-appellee Hall’s clothing. Consequently, it cannot be held, as a matter of law applied to undisputed fact, that defendant-appellee Hall had no protected privacy interest in the sealed bag in the trunk of the vehicle in which he was a passenger. In our view, defendant-appellee Hall was entitled to challenge the validity of this search. State v. Diaz, 191 Ga. App. 830, 831 (1), 832 (383 SE2d 195). Compare Ballard v. State, 216 Ga. App. 315, 316 (454 SE2d 200).

(c) “[W]here deceit is used to obtain a consent, e.g., when an officer represents to an accused that he has authority to search, when actually he does not, a resultant consent by the accused to the search is invalid. In these circumstances, the consent is merely a submission to an apparent legitimate display of legal authority to which all are required to submit. [Cit.]” Code v. State, 234 Ga. 90, 93 (III), 95, supra. Accord Darby v. State, 216 Ga. App. 781, 782 (1), 783 (2) (455 SE2d 850).

In our view, the disputed evidence in the case sub judice authorized the trial court’s conclusion that defendant Saunders’ initial consent was the reluctant result of coercion. Such coercion is implied when an officer, without a good faith belief that he has the probable cause necessary for the issuance of a warrant by a neutral and disinterested magistrate, states that a warrant will be obtained if the suspect does not consent to a warrantless search. Consequently, the fact that defendant Saunders did not revoke that invalid initial consent is without significance.

Judgment affirmed.

Beasley and Smith, JJ, concur.

District Attorney, for appellant.

Lloyd D. Murray, for appellee.


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A97A2031.
    TAMBONE v. INDIANA INSURANCE COMPANY et al.
    (493 SE2d 578)
   McMURRAY, Presiding Judge.

Plaintiff John R. Tambone, M.D., brought this tort action against defendants Donald Lamar Jones and John Doe, and, under OCGA § 33-7-11 (d), served appellee Indiana Insurance Company, as the uninsured motorist carrier under an automobile insurance policy issued to plaintiff in the State of Illinois by Indiana Insurance Company. According to the complaint, plaintiff sustained catastrophic injuries when he was injured “in a motor vehicle/pedestrian collision which occurred on the 10th day of February, 1994 on U.S. Highway 41 North in the city limits of Dalton, Georgia at or near its intersection with Tibbs Road and in the vicinity of the Amoco Service Station and Best Western Motel, at which time Defendant Jones was driving too fast for conditions, failing to keep a lookout ahead, and Defendant Doe, while operating a ‘trolley-type’ vehicle, stopped and negligently motioned for the Plaintiff to cross the street.” Defendant Jones denied the material allegations. Appellee Indiana Insurance Company appeared, neither admitting nor denying that defendant John Doe was uninsured or underinsured within the meaning of OCGA § 33-7-11 and denying that plaintiff had alleged a valid claim for relief under OCGA § 33-7-11 (d).

The circumstances of the accident were clarified at plaintiff’s deposition. Plaintiff, a resident of Woodstock, Illinois, was born in 1913 and has practiced medicine since 1939. On the day of the accident, plaintiff and his wife were returning to Illinois from Florida. They drove as far as Dalton, Georgia, where they checked into a motel. Plaintiff “decided to get something to drink with the sandwiches [they] had brought.” Plaintiff was “[t]rying to get either . . . beer or . . . soft drinks.” That afternoon, “it was raining.” The “desk clerk . . . pointed to a store nearby.” Plaintiff decided he “was going to walk to the store.” He “got out and walked in the direction of the store and got to the edge of the highway and stopped there because of the traffic going by.” Plaintiff affirmed “the traffic was somewhat heavy because it was around 5:00 to 5:30. . . .” He did not think there was a stoplight or stop sign where he was trying to cross.

“As [plaintiff] was standing there, a vehicle came up at the head of the line of cars and stopped[,] stopping all the traffic behind it[, and] indicated to [plaintiff] that [he] could pass in front of him [sic]. ... It was a large vehicle[, driven by] a man. . . . He [the driver] just motioned with his hands to cross the street.” Plaintiff “could see a line of vehicles that had stopped behind this vehicle. Plaintiff “looked, [and saw no] vehicle passing that line of stopped cars.” Plaintiff “proceeded to cross in front of this vehicle and that’s the last [he] remember[s].” Plaintiff did confirm however, that he “never touched it[, i.e., the large vehicle that stopped for him,] and it never touched [him], . . .” Likewise, plaintiff never saw the trolley-type vehicle hit defendant Jones’ car. Plaintiff further confirmed that he never notified Indiana Insurance Company about the alleged trolley-type vehicle between the accident on February 10, 1994 and the filing of the instant complaint on January 18, 1996.

After discovery, Indiana Insurance Company moved for summary judgment, contending in part that plaintiff was not afforded uninsured motorist coverage under his own automobile insurance policy because there was no physical contact between the alleged phantom trolley and himself, and also on the ground that plaintiff had failed to promptly notify the insurer of his claim for uninsured motorist benefits. The trial court granted Indiana Insurance Company’s motion on both grounds and plaintiff appeals. Held:

1. In his sole enumeration of error, plaintiff contends the trial court erred in concluding that physical contact was required under Illinois law and under the policy at issue. We do not address this issue but affirm the grant of summary judgment on the alternative ground that plaintiff failed in his contractual duty to notify the insurer promptly of his claim for uninsured motorist benefits. A judgment that is correct for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); Amwest Surety Ins. Co. v. RALIN & Assoc., 216 Ga. App. 526, 529 (1), 531 (455 SE2d 106).

2. The insurance policy issued to plaintiff contained the provision that there was “no duty [on the part of the insurer] to provide coverage . . . unless there has been full compliance with [various] duties [imposed on the insured, namely]: . . . [The insurer] must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.”

In his affidavit, Gerald Kukta, the custodian of plaintiff’s claims file with Indiana Insurance Company, deposed that the insurer “received no notice of [plaintiff’s] accident until his agent sent Indiana Insurance Company a loss statement by facsimile on October 23, 1995, which was received October 26, 1995. There was over a year and a half delay between the accident and when [plaintiff] gave notice that he was presenting a claim under the uninsured motorist coverage of his policy. . . . Before Indiana Insurance Company received notice of this claim, [plaintiff] had incurred over $100,000 in medical expenses.” The insurer was deprived of the opportunity to get a timely statement from plaintiff and deprived of any meaningful opportunity to investigate the claim so as to “identify and find the operator of the trolley-type vehicle so that a claim can be presented against them [sic]. As a result of [plaintiff’s] delay, it is impossible for Indiana Insurance Company to recover under its uninsured motorist subrogation claim since the operator cannot be found.”

In rebuttal, plaintiff argued that Indiana Insurance Company waived any defense based on plaintiff’s tardy notification by failing to urge this ground when it initially denied coverage under its construction of Illinois law requiring physical contact. Each party gave statutory notice under OCGA § 9-11-43 (c) of the intent to rely on the law of a foreign jurisdiction. The parties agree that uninsured motorist coverage under this insurance policy is determined by the law of the State of Illinois. Accordingly, the questions whether plaintiff failed to comply with his contractual duty and whether the insurer waived any such defense will be determined by application of Illinois law, as officially published by authority in statute and case law. Swafford v. Globe American Cas. Co., 187 Ga. App. 730, 731 (1), 733 (371 SE2d 180).

Plaintiff contends in effect that, under Illinois law, where an insurer refuses coverage on one ground it waives the right, or is estopped, to deny coverage on another ground. This is not our understanding of Illinois law.

“We believe that the better rule is that insureds must show that they relied to their detriment upon the insurer’s failure to assert a particular defense. (See National Tea [Co. v. Commerce &c. Ins. Co.], 119 Ill.App.3d at 205, 74 Ill.Dec. 704, 456 N.E.2d 206, citing Tibbs[ v. Great Central Ins. Co., 373 NE2d 492 (Ill. App. 1978)].)” Jones v. Universal Cas. Co., 630 NE2d 94, 101 [8] (Ill. App. 1994). In the case sub judice, plaintiff made no effort to meet this burden. There is no evidence to contradict the showing that Indiana Insurance Company was prejudiced in its investigation of this unusual claim for uninsured motorist benefits, based on plaintiff’s dilatory approach to notifying the insurer. “It is well established that ‘ “(a)s soon as practicable” in a policy covering liability for personal injury and property damage means within a reasonable time, and what is reasonable depends on the facts and circumstances of the case. [Cits.]’ [Cit.] Generally, the question of what is a reasonable time is a question of fact to be decided by the jury, but if there is no controversy as to the facts, the question of reasonableness is for the judge to decide. [Cit.]” Jones v. Universal Cas. Co., 630 NE2d 94, supra at 102 [10-11]. In the case sub judice, based on the circumstance that plaintiff made no attempt to notify his insurer until 18 months after the accident, and then did not justify this delay but relied on an erroneous understanding of the burden of proof to show harm, the trial court was authorized to con-elude, as a matter of law applied to undisputed fact, that plaintiff failed in his contractual duty to ensure the insurer was notified promptly of any accident or loss. Consequently, the insurer had no duty to provide uninsured motorist coverage under the express terms of the policy sued upon. The trial court correctly granted Indiana Insurance Company’s motion for summary judgment.

Decided November 5, 1997.

Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, for appellant.

Davis & Kreitzer, Steven W. Kreitzer, Chambers, Mabry, McClel-land & Brooks, Robert M. Darroch, Benjamin T. Hughes, Susan G. James, for appellees.

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A97A2094.
    GEORGIA REAL ESTATE COMMISSION v. PEAVY.
    (493 SE2d 602)
   Johnson, Judge.

The Georgia Real Estate Commission (“Commission”) brought a disciplinary action against Evelyn Peavy’s real estate broker’s license as a result of her conduct in connection with the sale of a house in Cobb County. The Commission affirmed the hearing officer’s decision and revoked Peavy’s license. The superior court reversed, finding the Commission had exceeded its statutory authority, its decision had been made upon unlawful procedure, was clearly erroneous in view of the evidence, and was in violation of constitutional or statutory provisions because the Commission did not provide Peavy with an opportunity to provide a full defense. We granted the Commission’s application for discretionary review of the superior court’s ruling, and we reverse.

“Judicial review of an administrative decision shall be conducted by the court without a jury and shall be confined to the record. OCGA § 50-13-19 (g). The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. OCGA § 50-13-19 (h). However, the superior court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provisions; in excess of the statutory authority of the agency; clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. OCGA § 50-13-19 (h).” The clearly erroneous standard of review to be applied by the superior court prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the [hearing officer] are supported by any evidence. Upon further discretionary appeal to this Court, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the local governing body or administrative agency.” (Citations and punctuation omitted.) Sawyer v. Reheis, 213 Ga. App. 727, 728-729 (1) (445 SE2d 837) (1994).

The administrative hearing officer made the following findings of fact: On behalf of Metro Brokers, Inc., Peavy entered into a listing agreement for property located at 3560 Hogan Drive, Kennesaw, Georgia. Several weeks later, a contract for the purchase and sale of the property was signed. Peavy represented to the purchasers that previous problems with the septic system had been repaired, attributing the noxious odors emanating from the property to abuse by pets and children of the former tenant. Peavy told a neighbor not to reveal ongoing septic system problems to prospective purchasers. Peavy was told by three different employees of the Environmental Health Division of the Cobb County Board of Health that the septic system was malfunctioning and that the County would not issue a clearance letter until repairs were made to the system. This information was not disclosed to the purchaser or the closing attorney.

The hearing officer found Peavy’s testimony at the hearing not credible: “[Peavy’s] testimony directly contradicted that of the other witnesses with regard to every critical detail concerning her state of knowledge and her representations concerning the functioning of the septic tank system servicing the Property. [Peavy’s] testimony contradicted her own written statement furnished to the Commission during the investigation of this matter.” In addition, Peavy failed to notify the Commission of a final disposition in a civil action brought by the purchasers against Metro Brokers, Inc.

The hearing officer found that Peavy’s failure to disclose the malfunctioning of the septic system demonstrated a failure to meet the standards required by OCGA § 43-40-15 (a). Further, the hearing officer found that the misrepresentations made to the purchaser and the closing attorney regarding the septic system and the status of the system with the Cobb County Board of Health evinced an intent to deceive constituting a gross misrepresentation in violation of OCGA § 43-40-25 (a) (21) and Rule 520-1-.17 (e) of the Rules & Regulations of the Georgia Real Estate Commission. The hearing officer concluded that Peavy is incompetent to act as a real estate associate broker in such a manner as to safeguard the interest of the public, OCGA § 43-40-25 (a) (25), and that she violated Georgia Real Estate Commission Rule 520-1-.28 (1) by failing to notify the Commission of •the final disposition of the civil action brought against her by the purchasers. In conclusion, the hearing officer recommended revocation of Peavy’s associate broker’s license. “The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” (Citations and punctuation omitted.) Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 718 (5) (463 SE2d 163) (1995).

Peavy has relied on Ga. Real Estate Comm. v. James, 152 Ga. App. 193 (262 SE2d 531) (1979), throughout these proceedings for the proposition that “substantial misrepresentation” as contemplated by OCGA § 43-40-25 (a) (21) is the same as civil fraud. Therefore, she argues, she should have been able to present all of the defenses available in a civil fraud action, specifically justifiable reliance and lack of due diligence, but was prevented from doing so. Although not articulated in the superior court’s order, this argument apparently forms the basis for that portion of the superior court’s reversal of the Commission’s order based on Peavy having been denied the opportunity to present a full defense.

In James, a real estate broker accepted a warranty deed to a house as a commission on a real estate transaction. A condition of that transaction required the broker to make future mortgage payments on the property as they came due, which he failed to do. In revoking his license, the Commission characterized the broker’s failure to make the payments a “substantial misrepresentation.” In affirming the superior court’s reversal of the revocation of the broker’s license, this Court held that under the fact situation presented in James, “ ‘[substantial misrepresentation’ as utilized in [OCGA § 43-40-25 (a) (21)] is a virtual equivalent and may be analogized to fraud.” Id. at 195. The court concluded the evidence did not establish that the broker did not intend to make future payments at the time he entered into the transaction. Therefore, the essential element of intent to mislead was missing.

“Fraud is of itself subtle, and slight circumstances may be sufficient to carry conviction of its existence. The intention to deceive and the immoral element are supplied by knowledge of the falsity of the representations when they were made.” (Citations and punctuation omitted.) Ga. Real Estate Comm. v. Syfan, 192 Ga. App. 3, 4 (1) (383 SE2d 605) (1989). Here, the finder of fact concluded that Peavy “made representations which she knew to be false with an intent to deceive at the time the misrepresentations were made.” Based on the hearing officer’s findings, the Commission was authorized to find that Peavy’s failure to reveal material information regarding a defect on the property constituted a substantial misrepresentation in violation of OCGA § 43-40-25 (a) (21).

With regard to being prevented from presenting a full defense, we have reviewed that portion of the transcript of the administrative hearing about which Peavy complains. The evidence proffered but excluded by the hearing officer as irrelevant related to whether the purchaser of the property sought to rescind the contract after learning of the condition of the septic system. Whether the purchaser attempted to rescind subsequent to the closing is not relevant to whether “substantial misrepresentations” were made prior to closing. The hearing officer did not err in excluding that evidence. See OCGA § 50-13-15 (1). Although there is a discussion on the record about whether other possible defenses to a civil fraud case, such as justifiable reliance and lack of due diligence, would be admissible, the ruling of the hearing officer was limited to the testimony relating to rescission efforts. Our review of the hearing transcript indicates that issues of justifiable reliance and due diligence on the part of the purchaser were explored in detail during questioning and cross-examination of the purchaser. Peavy has pointed to no other portion of the record showing she was precluded from presenting evidence which she felt would be favorable to her case. See Cohen v. Lowe Aviation Co., 221 Ga. App. 259, 261 (2) (470 SE2d 813) (1996). Therefore, the superior court erred in reversing based on the hearing officer’s alleged refusal to allow Peavy to present a full defense.

We note further that although James analogized the elements of fraud to those of “substantial misrepresentation,” that in itself does not convert an administrative hearing into a civil trial. The focus of an administrative hearing, such as the one in this case, is to determine whether a violation occurred for the purpose of regulating a profession and protecting the public from those who fail to act in accordance with the standards adopted by that profession. See Brown v. Bd. of Examiners, 190 Ga. App. 311, 312 (1) (378 SE2d 718) (1989). Whether a purchaser was justified in relying on substantial misrepresentations made by a real estate broker may be relevant to the issue of damages in a civil fraud case, but is not probative to the issue of whether the broker violated the standards established by the real estate profession.

In adopting the hearing officer’s findings, the Commission did not exceed its statutory authority, its decision was not made upon unlawful procedure, was not clearly erroneous in view of the evidence, and was not in violation of constitutional or statutory provisions. Accordingly, the judgment of the superior court is reversed.

Judgment reversed.

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

Decided November 5, 1997.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Janet B. Wray, Senior Assistant Attorney General, Kevin H. Hudson, Assistant Attorney General, for appellant.

Lefco & Blumenthal, Stanley M. Lefco, for appellee.


author: McMurray, Presiding Judge.

text:
    A97A2173.
    HANSON v. THE STATE.
    (493 SE2d 605)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with one count of burglary, and one count of theft by receiving stolen property. The evidence adduced at his jury trial revealed that Riley Jordan owned a scrap yard on highway 41 South in Tift County, Georgia. Riley Jordan has known defendant since they attended the first grade together. Defendant used to “bring [in] a lot of scrap metal. . . .” On June 7, 1996, Riley Jordan went to his establishment “about 1:00 [a.m.] and [he left] the money for the next day. . . .” Riley Jordan “came back by in about an hour and . . . noticed someone had taken the air conditioner back and gone through and knocked the water cooler over.” “[T]hey had gone through the wall after they took the air conditioner out. And everything was just strewn.” Fifty to one hundred dollars in change was missing, as well as some tools. “[L]ater that afternoon, [Riley Jordan] receive[d] a phone call . . . from [Randy Hogan,] the boy up the street that runs the tire shop.” Defendant “walked up to [Randy Hogan’s] shop with a plastic-looking, white bag and wanted to sell some tools. . . . And the little air gauge had Riley’s name on it so [Randy Hogan] gave [defendant] $10 for the tools[, and then] called Riley and told him [he] had his tools at [his] shop.” As a result, Riley Jordan “went up and got some of [his] things back.” Defendant was pointed out to Riley Jordan as the seller.

Riley Jordan chased defendant, who fled on sight. Riley Jordan “finally caught up to [defendant and] . . . asked [defendant] would he get in the car . . . and [defendant] didn’t. And [defendant] was drinking and he came down the side of [Riley Jordan’s] face and clawed a really bad place like that, bad cut.”

Larry McBrayer, then of the Tift County Sheriff’s Office, investigated the burglary. In a custodial statement, defendant admitted “he had been drinking pretty heavily for [the] past three or four days and on the night [in question,] he was intoxicated to the point that he didn’t really remember that much about what he had done.” He told Deputy McBrayer he “remembered going into some woods near Big Jim’s Store, which was probably a quarter mile or so north of Riley’s Used Parts, and apparently passed out in the woods and that when he woke up the next day, he found a sack of tools on the ground.” Defendant “took the sack of tools to Southside Used Parts and sold them there for $10.”

The trial court instructed the jury that if it found the defendant guilty beyond a reasonable doubt, it would not be authorized to find the defendant guilty of both charges. The jury found defendant guilty of burglary. His motion for new trial was denied and this appeal followed. Held:

1. Defendant enumerates the general grounds.

“ ‘(A)lthough the evidence of recent, unexplained (or unsatisfactorily explained) possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).’ (Emphasis [omitted].) Williams v. State, 252 Ga. 7, 9 (310 SE2d 528). ‘Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. (Cits.) Whether a defendant’s explanation of possession is satisfactory is a question for the jury (cits.); so is lack of explanation. What constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.’ Collins v. State, 176 Ga. App. 634, 636 (337 SE2d 415). In the case sub judice, ‘(t)he verdict reflects the jury’s dissatisfaction with ([defendant’s]) explanation. . . .’ Jackson v. State, 159 Ga. App. 287, 288 (1) (283 SE2d 353).” Funderburk v. State, 195 Ga. App. 441, 442 (2) (393 SE2d 727). The evidence of defendant’s recent unexplained possession of stolen tools is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of burglary as alleged in the indictment.

2. In his custodial statement, defendant “stated that he really wouldn’t be surprised to find out what he had done.” When Deputy McBrayer related this before the jury, defendant moved for a mistrial on the ground that he had not been given this portion of his custodial statement in discovery. Rather, the “statement that was served on [defense counsel] in this regard reads, . . . Mr. Hanson said that he does not remember much of what he had done.” The trial court denied the motion but instructed the jurors to “completely wipe that from your mind[s] and disregard that testimony.” The denial of defendant’s renewed motion for mistrial is enumerated as error.

Decided November 5, 1997.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Nancy G. Grigg, Assistant District Attorney, for appellee.

“The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders, disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution and that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff.” OCGA § 17-16-4 (a) (1).

“The trial court correctly instructed the jury to disregard the offending portion of [Deputy McBrayer’s] testimony. OCGA § 17-[16-4 (a) (1)] was applicable since the statement made by [defendant as related by Deputy McBrayer] was given while [defendant] was in police custody.” McKenzie v. State, 187 Ga. App. 840, 847 (11), 848 (371 SE2d 869). Nevertheless, denial of defendant’s motion for mistrial was not erroneous. The trial court’s curative instructions were tantamount to excluding defendant’s inculpatory statement from evidence. McKenzie v. State, 187 Ga. App. 840, 847 (11), 848, supra (applying former OCGA § 17-7-210).

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A2267.
    GANTT v. THE STATE.
    (493 SE2d 608)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act, by selling cocaine. The evidence adduced at trial revealed that Special Agent David Mcllwraith and Special Agent Eleanor Starnes of the Georgia Bureau of Investigation identified defendant as the supplier of crack cocaine during a sale that took place on September 22, 1992, in Eatonton, Putnam County, Georgia. The agents “were in [Agent Starnes’] vehicle. [Agent] Mcllwraith was driving. And [they] approached — [they] were right there on Maple in front of the B & G Lounge and, at that time, [defendant] and [another man, Jerry Burke,] approached the vehicle. . . . Mr. Burke . . . asked [Agent Starnes] how many or what [Agent Starnes] was looking for and [Agent Starnes] responded forty dollars — forty, meaning forty dollars worth of crack cocaine. And this [was] all in a matter of seconds. Mr. Burke turned to [defendant], who had in his hands, the suspected . . . crack cocaine — and took it from [defendant] and immediately turned to [Agent Starnes] [who crossed her] hand in front of [Agent] Mcllwraith who was driving, and he put the dope or the suspected crack cocaine in [Agent Starnes’] hand, at which time, [Agent Starnes] gave Mr. Burke forty dollars.” Shawn Davis, a forensic chemist at the Georgia Bureau of Investigation State Crime Laboratory in Macon, Georgia, identified State’s Exhibit 1 as three small pieces of an off-white chunky material, containing cocaine.

Defendant’s motion for new trial, filed on June 11, 1993, by defendant’s trial counsel, was denied in an order entered April 29, 1997. This appeal followed. Held:

1. Defendant first contends the trial court erred in allowing the State to play a videotape of the transaction “because the State had not sufficiently laid a proper foundation for such evidence and never tendered the videotape to be admitted as evidence.”

Special Agent Starnes identified the tape, confirmed that the video camera was in working order and that she was familiar with its operation, and further confirmed that the video is “a true and accurate representation of what it purports to show.” Before the tape was played, the trial court directly asked whether there were any questions about the tape, to which inquiry defense counsel stated, “No, sir, we don’t have any questions about the video.” After the tape was played, defendant took the stand and confirmed that he was in the videotape.

In our view, Agent Starnes laid a sufficient foundation for the admission of the video under the guidelines of Allen v. State, 146 Ga. App. 815, 816 (2), 817 (247 SE2d 540). As for the failure of the State to introduce the videotape itself into evidence, defendant failed to make any contemporaneous objection. Consequently, any valid evi-dentiary objection was waived. Sharpe v. Dept. of Transp., 267 Ga. 267 (1), 270 (476 SE2d 722).

2. Defendant’s third enumeration of error urges the general grounds, arguing the evidence of identity is insufficient and there is no proof that the substance defendant handed to Mr. Burke was cocaine.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Special Agent Starnes’ testimony is sufficient to establish the link in possession from defendant to Shawn Davis, the forensic chemist, who analyzed the substance as cocaine. Special Agent Mcllwraith’s in-court identification of defendant is also sufficient. Moreover, defendant admitted being at the scene. It is only the extent of his involvement that is disputed. “The theory that one may use a conduit or agent and thereby escape culpability as a seller has been considered and rejected by this Court. Farley v. State, 210 Ga. App. 580 (436 SE2d 770). The evidence in the case sub judice is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 [(99 SC 2781, 61 LE2d 560)] to authorize the jury’s verdict that [defendant] is guilty, beyond a reasonable doubt, of selling cocaine as alleged in . . . the indictment.” (Emphasis omitted.) Gay v. State, 221 Ga. App. 263, 264 (1), 265 (1) (b) (471 SE2d 49).

Decided November 5, 1997.

Lawrence, Ford & Ridgway, Hugh D. Ridgway III, for appellant.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

3. In his second enumeration, defendant contends his trial counsel was ineffective. For aught that appears of record, however, this issue was never presented to the trial court for determination, either by an amended motion for new trial or in an application for an out-of-time appeal in order to make an oüt-of-time motion for new trial on this special ground. See, e.g., Bohannon v. State, 262 Ga. 697 (425 SE2d 653). By proceeding directly with this appeal without pursuing an evidentiary hearing on trial counsel’s alleged ineffectiveness, we conclude the issue has been procedurally defaulted and presents nothing for review. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659).

Judgment affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A2344.
    FOSKEY v. THE STATE.
    (493 SE2d 595)
   McMurray, Presiding Judge.

On July 21, 1993, defendant Foskey entered a plea of guilty of the offense of burglary and was sentenced to confinement for a period of 20 years. On June 3, 1997, almost four years and eleven terms of court past the date of his conviction and sentence, defendant filed a motion to withdraw his plea of guilty based on contentions that the State had not honored the agreement made at the time of his plea and that the agreement bestowed upon him the option of withdrawing the plea whenever the agreement was dishonored by the State. This appeal is taken from the denial of defendant’s motion to withdraw his plea. Held:

“The trial court’s authority to grant a motion to withdraw a guilty plea ends with the term of court in which the judgment of conviction is entered. State v. Right, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985). . . . The trial court therefore lacked authority to allow [Foskey] to withdraw his plea. See Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995). At the time of his motion, the only remedy available to [Foskey] would have been through habeas corpus proceedings. See Lowery v. State, 188 Ga. App. 411 (373 SE2d 261) (1988).” State v. Johnson, 222 Ga. App. 156 (473 SE2d 593). Since the trial court lacked jurisdiction to consider the substantive issues Fos-key raised in his motion, the order appealed from is a nullity. Since the order denying Foskey’s motion is void, the trial court is directed to strike it from the record and dismiss the motion to withdraw Fos-key’s plea for lack of jurisdiction. Cabell v. State, 221 Ga. App. 192 (471 SE2d 222).

Decided November 5, 1997.

Marshall Foskey, pro se.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Beasley and Smith, JJ, concur.


text:
    A97A2364.
    COLLINS v. THE STATE.
    (493 SE2d 592)
   McMurray, Presiding Judge.

Defendant and a co-indictee were jointly charged in an indictment with three counts of armed robbery and three related charges of possession of a firearm during the commission of a crime. An additional count alleged burglary. The co-indictee pleaded guilty to two specific robberies. Defendant was tried separately before a jury, which found him guilty only of one count of armed robbery (Count 8) and the related count of possession of a firearm during the commission of a crime (Count 9). The evidence in support of those charges, including defendant’s custodial statement, revealed the following:

Defendant’s co-indictee, Verdell Marshall, was the gunman in two armed robberies in Augusta, Georgia, in late March 1994. Melvin Elstein, an employee of “Plum Nelly’s Florist on Crawford Avenue,” testified that “[t]wo gentlemen came in and stopped about halfway through the front part of the store between two display racks. When [Melvin Elstein] approached them, one of them turned to [Melvin Elstein] and pulled a gun out and asked [him] to back up. [Melvin Elstein] told [his] wife to give them the money. So he [the gunman] said he’d go up to the register and he’d get it. And he did,” taking $20. In a custodial statement, defendant admitted that he was “involved in it [that robbery, by] watching out,” while Verdell Marshall “had a gun in the man’s face.”

Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant’s first two enumerations urge the general grounds.

(a) “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Defendant first argues the evidence is insufficient to authorize his conviction as a party to the crime of armed robbery under OCGA § 16-2-20 (b) (3) (“[i]ntentionally aids or abets in the commission of the crime”), because his own trial testimony shows he abandoned the enterprise before any property was taken from the victim.

In our view, defendant’s testimony that he abandoned the criminal enterprise by bolting from the flower shop at the appearance of a customer is wholly impeached by his custodial statement that he was involved as a lookout for the gunman, while the latter held a gun to Melvin Elstein’s face. OCGA § 24-9-83. With defendant thus impeached, the credibility of his claim of abandonment was for the jury to accept or reject. OCGA § 24-9-85 (a).

“ ‘The defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of (any incriminating) information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.’ (Citations and punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 407 (1), 408 (457 SE2d 685).” McKinney v. State, 218 Ga. App. 633, 635 (3) (463 SE2d 136). In the case sub judice, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the crime of armed robbery as alleged in Count 8 of the indictment. Graves v. State, 180 Ga. App. 446 (1) (349 SE2d 519).

(b) “Any person who shall have on or within arm’s reach of his person a firearm . . . during the commission of, or the attempt to commit: . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony. . . .” OCGA § 16-11-106 (b) (1). “ ‘Defendant may properly be convicted of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)) on the ground that he was a party or aider or abettor to the offense (OCGA § 16-2-20). Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986).’ Perkins v. State, 194 Ga. App. 189, 190 (1) (390 SE2d 273) (1990).” Victrum v. State, 203 Ga. App. 377, 379 (3) (416 SE2d 740).

In the case sub judice, proof that defendant was a willing accomplice, keeping watch while Verdell Marshall took $20 from Melvin Elstein’s cash register while pointing a pistol at the proprietor, is sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to felony possession of a firearm during the commission of the crime of armed robbery as alleged in Count 9 of the indictment. Wilcox v. State, 177 Ga. App. 596, 597, supra.

2. A witness for the State, Quincy Murray, testified at trial that defendant’s co-indictee, Verdell Marshall, had told the witness about the robberies, affirming that Verdell Marshall “said that he did it.” But Quincy Murray then denied that Verdell Marshall had “indicate[d] anything about [defendant] being involved.” The State’s Attorney drew Quincy Murray’s attention to a statement Murray had given to Officer Timothy J. Taylor of the Augusta Police Department. To impeach his own witness, the State’s Attorney moved for permission to play a tape of that interview, contending that “some of the things he [Quincy Murray] has testified to are not consistent with what he said on tape.” Officer Taylor then testified he taped the interview with Quincy Murray in his office in the presence of Detective Woods.

Over defendant’s objection as to lack of “foundation,” the trial court permitted the State to play a portion of the audiotape of that interview. This evidentiary ruling is enumerated as error. On appeal, defendant submits that, in order to be admissible under OCGA § 24-9-83 as “contradictory statements previously made . . . ,” those prior statements must contradict sworn testimony at trial whereas in the case sub judice, there was no preliminary showing of any material contradiction as to relevant matters, but only the assertion of the State’s Attorney that a contradiction was made by the witness.

OCGA § 24-9-81 does not authorize a party to impeach his own witness, “except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.” “Recent decisions have broadly construed the right to impeach one’s own witness under this section. [Cits.] A statement by the district attorney that he has been surprised by the testimony is sufficient, in the absence of a showing to the contrary, to show entrapment. Seay v. State, 108 Ga. App. 724 (134 SE2d 422) (1963).” Thomas v. State, 239 Ga. 734, 735 (3), 736 (238 SE2d 888). In the case sub judice, defendant did not insist on a preliminary review of the tape outside the presence of the jury, in order to test the correctness of the State’s contention that Quincy Murray’s trial testimony was inconsistent. In the absence of any showing to the contrary, the statement by the State’s Attorney, that Quincy Murray’s trial testimony was inconsistent with previous statements to investigators, was sufficient to show entrapment under OCGA § 24-9-81. Consequently, the trial court did not err in allowing the State to impeach its own witness with the audiotape of Quincy Murray’s previous interview with the police. Thomas v. State, 239 Ga. 734, 735 (3), 736, supra.

Decided November 5, 1997.

Stanley C. House, for appellant.

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

3. After a portion of the audiotape of Quincy Murray’s police interview was played for the jury, defendant moved for a mistrial on •the grounds that “the information on this tape goes way beyond bringing in or impeaching the witness about prior inconsistent statements.” Certain statements “impermissibly place[d] [defendant’s] character into evidence,” and others involved hearsay. The State’s Attorney requested that the trial court “give curative instructions as to what was stated that might reflect bad[ly] on his [defendant’s] character,” but defendant demurred, concluding “that just calls attention to the facts.” Defendant then requested that “we at least have the tape stopped and played no more,” to which procedure the State’s Attorney agreed. The trial court then denied defendant’s motion for mistrial.

There was no error in denying the motion for mistrial after defendant declined curative instructions. Fitzgerald v. State, 193 Ga. App. 76, 78 (8) (386 SE2d 914). The fourth and fifth enumerations are without merit.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A1746.
    McDANIEL v. HENSONS’, INC.
    (493 SE2d 529)
   Judge Harold R. Banke.

Hensons’, Inc. (“Hensons”) sued Donald L. Deibert d/b/a Magna Timber & Pulp, and M. T. McDaniel, Jr. to recover for work Hensons performed on real property owned by McDaniel, which had been done at the direction of Deibert. Enumerating seven errors, McDaniel appeals the jury verdict.

Viewed on appeal in a light most favorable to the jury’s verdict, the evidence was as follows. Part of the property which McDaniel owned had been used by a previous tenant as a landfill and was blighted by a massive amount of discarded material consisting primarily of wood, stumps, logs, and dirt that rendered the property undevelopable. Deibert described it as a “million dollar property worth nothing.” Because McDaniel wanted to commercially develop the land, he entered into an arrangement with Deibert. McDaniel agreed to provide $50,000 in “seed money” to Deibert to get a cleanup project started. It was expected that the project would then become self-sustaining from the sale of wood chips, mulch, or other products. McDaniel agreed that Deibert would receive all profit after reimbursing McDaniel’s $50,000 initial investment. According to M. T. McDaniel III, who was heavily involved in his father’s business, it was estimated that the cleanup effort could cost up to $300,000.

Deibert negotiated with Hensons, who entered into a contract with Deibert’s company, Magna Timber & Pulp, whereby Hensons would be compensated on an hourly basis for its equipment and personnel. Using an excavator, grinder, and front-end loader, Hensons cleared part of McDaniel’s property. Hensons received payment from Deibert at the end of each of the first two weeks of work. As a condition for payment, Hensons was required to complete lien releases on which Deibert was denoted as the “owners agent.” During the third week, M. T. McDaniel III informed Deibert, but not Hensons, that “we’d reached the $50,000 limit” and did not intend to further fund any operations. McDaniel’s son admitted that he knew that Hensons was continuing to work but claimed that it was his understanding that Deibert would be responsible for Hensons’ payment. When Deibert failed to pay Hensons at the end of the third week, he assured Hensons that payment would be forthcoming. At the conclusion of the fourth week, not having been paid, Hensons ceased all work having completed 35 to 40 percent of the project. The decision to halt work was a mutual one between Deibert and Hensons.

Hensons then filed the underlying action against McDaniel and Deibert d/b/a Magna Timber & Pulp. Hensons also filed a material-man’s lien against McDaniel’s real property for furnishing material and labor used in the clearing and improvement of the property. Throughout the trial, the nature of the relationship between Deibert and McDaniel was hotly disputed, especially because there was no written contract between them. McDaniel contended that Deibert was an independent contractor with no authority to enter into contracts on his behalf. Deibert denied being a contractor, and on a number of documents, Deibert identified himself as McDaniel’s agent. The jury determined that Hensons was entitled to foreclose on its claim of lien and that Deibert did not owe any money to Hensons. Hensons obtained a judgment of $45,219.36 solely against McDaniel. Held-.

1. The trial court did not err in denying McDaniel’s motion for judgment notwithstanding the verdict and motion for new trial. A j.n.o.v. is improper unless there is no conflict in the evidence and the evidence demands a particular verdict. First Union Nat. Bank &c. v. Cook, 223 Ga. App. 374, 376 (4) (477 SE2d 649) (1996). Although McDaniel contends that Hensons’ theory of apparent agency was not supported by the evidence, the record shows otherwise. In fact, the lien waiver which Hensons was required to sign listed Deibert as the “owners agent.” Hensons’ vice president testified that the “affidavit of release of liens . . . told me that Mr. Deibert was acting as an owner’s agent rather than acting as a contractor himself, and that I was the contractor.” Compare Turnipseed v. Jaje, 267 Ga. 320, 323 (2) (a) (477 SE2d 101) (1996). The testimony further showed that McDaniel allowed Deibert to supervise work on his property, permitted the erection of a construction trailer, required lien waivers, had Deibert secure a building permit, and made payments to Deibert of invoices submitted by Deibert for work done under Deibert’s supervision.

Even assuming arguendo that Deibert contracted for Hensons’ work without authority, McDaniel was liable for the expense because he subsequently ratified the unauthorized act when he required and obtained Hensons’ lien releases after paying Deibert who paid Hen-sons. See OCGA §§ 10-6-1; 10-6-51. Ratification may occur by the principal’s partial payment on an allegedly unauthorized agreement. Pioneer Concrete Pumping Svc. v. T & B Scottdale Contractors, 218 Ga. App. 596, 597 (2) (462 SE2d 627) (1995). When an agent acts in excess of his authority, “the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.” OCGA § 10-6-51.

Although Hensons admitted it did not know the identity of the property owner, a principal, like McDaniel here, can be bound by his agent’s acts, even when the principal remains undisclosed. Campbell v. Alford, 155 Ga. App. 689 (1) (272 SE2d 553) (1980). Whether Deibert acted with actual or apparent authority on McDaniel’s behalf was for the jury to resolve. See Thomas Register &c. v. Proto Systems Electronic Packaging, 221 Ga. App. 779, 780 (471 SE2d 235) (1996).

Moreover, a contract between a materialman and the property owner is not necessarily required. Central of Ga. R. Co. v. Shiver, 125 Ga. 218, 221 (53 SE 610) (1906); Siplast, Inc. v. Inland Container Corp., 172 Ga. App. 341, 344 (323 SE2d 187) (1984) (physical precedent only). “A materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the material-man for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise.” Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (1) (413 SE2d 437) (1992).

Applying the rule set forth in Palmer, supra, to this case, after Hensons’ work improved McDaniel’s real estate, the jury could find that McDaniel, as the property owner, became the responsible party. See id. The undisputed evidence shows that Hensons was not paid for all of its work despite supplying equipment and personnel which improved McDaniel’s property. The jury award was for the total of unpaid invoices for the third and fourth week of work plus interest. Under these facts, since there was evidence to support the jury’s verdict, it must be affirmed. See Citizens Bank of Ball Ground v. Johnson, 191 Ga. App. 155, 158 (2) (381 SE2d 121) (1989).

2. The trial court’s instructions on agency, apparent authority, and an agent’s authority were correct statements of law and adjusted to the evidence in the case. See McKinnon v. Streetman, 192 Ga. App. 647, 648 (1) (385 SE2d 691) (1989). The record contradicts McDaniel’s assertion that Hensons agreed to remove any claim as to the existence of an actual agency relationship between Deibert and McDaniel.

3. The trial court properly declined to charge on Hensons’ alleged duty to mitigate its damages because that instruction was not supported by the evidence. As soon as Hensons learned that it would not be paid, it ceased all work and took no action to its own detriment. See J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 729 (1) (380 SE2d 282) (1989).

4. The trial court did not err in charging the jury that a lien could be enforced against McDaniel’s real property. Despite McDaniel’s contrary contention, Hensons’ work in removing the debris enhanced the value of his real property and could properly be the basis for a lien under OCGA § 44-14-361 et seq. See Thompson v. Crouch Contracting Co., 164 Ga. App. 532 (297 SE2d 524) (1982) (materialman’s lien properly brought for grading certain real property). Compare Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279, 280 (1) (277 SE2d 282) (1981) (supplying draperies not an improvement to real property coming within ambit of lien statute).

McDaniel’s claim that he discharged his obligations by paying the “full” contract price to Deibert is without merit. An owner must prove that all amounts paid to the contractor were appropriately paid to materialmen and laborers or that the contractor’s statutory affidavit was obtained. D & N Elec. v. Underground Festival, 202 Ga. App. 435, 438 (3) (414 SE2d 891) (1991). It is undisputed that Hensons was never paid and that no lien waivers were obtained from Hensons for the last two weeks of work. Notwithstanding McDaniel’s argument to the contrary, Hensons’ lien claim was not foreclosed by an abandonment of the contract. Summit-Top Dev. v. Williamson Constr., 203 Ga. App. 460, 463 (2) (416 SE2d 889) (1992). Hensons’ cessation of work was premised on confirmation that it would not be paid for its efforts, not a “mere apprehension” of non-payment. See id.

Decided October 1, 1997

Reconsideration denied November 6, 1997

Glenville Haldi, for appellant.

Alston & Bird, William H. Hughes, Jr., Kenneth D. Steele, for appellee.

Judgment affirmed.

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

       The parties agreed to stipulate that McDaniel had a life estate and owned the property.

       Because McDaniel failed to raise below the issue that Hensons failed to sue the proper party, we will not consider that issue on appeal. Dupree v. State, 206 Ga. App. 4 (424 SE2d 316) (1992).


author: Andrews, Chief Judge.

text:
    A97A1870.
    PARKER v. THE STATE.
    (493 SE2d 558)
   Andrews, Chief Judge.

Seaton Parker appeals from the judgment entered on a jury verdict finding him guilty of armed robbery, two counts of aggravated assault, criminal attempt to commit armed robbery, possession of a firearm during the commission of a crime, and possession of tools for the commission of a crime. This is the second appellate appearance of this case. In a prior jury trial on the same indictment, Parker was found guilty of all of the above offenses, but we reversed the convictions and granted Parker a new trial because of an error injury selection under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Parker v. State, 219 Ga. App. 361 (464 SE2d 910) (1995). This appeal is from his convictions on re-trial.

Parker claims the trial court erred by: (1) failing to strike a juror for cause; (2) failing to sever the offenses for trial; (3) overruling his motion to suppress certain evidence; and (4) improperly commenting on the evidence during the State’s closing argument. We find no error and affirm the convictions.

1. There was no error in the trial court’s refusal to strike a prospective juror, for cause.

Upon voir dire questioning, the prospective juror at issue stated that, because his daughter had been the victim of an armed robbery, he doubted whether he could render an unbiased judgment as to the guilt or innocence in the present case. However, upon further questioning by the trial court and defense counsel, the prospective juror stated that his daughter’s experience would not influence him in the present case from rendering an impartial verdict based on the evidence and the court’s instructions as to the law. A prospective juror’s expression of doubt as to his bias is not conclusive on the issue of disqualification for cause. Carter v. State, 224 Ga. App. 217 (480 SE2d 266) (1997). “The question is whether that bias is so fixed and definite that it would not be changed by the evidence or charge of the court. [Cit.]” Id. at (2). The trial court did not abuse its discretion in refusing to strike the prospective juror for cause.

2. Parker claims the trial court erred by failing to sever Counts 1, 2, and 3 of the indictment from Counts 4, 5, and 7. Parker entered a guilty plea to Count 6. The first three counts stemmed from an armed robbery of a Wendy’s restaurant on August 21, 1993. The latter counts stemmed from an attempted armed robbery of another Wendy’s restaurant on September 3, 1993.

Parker made the same enumeration of error in his first appeal to this Court from a judgment entered on convictions on the same indictment. Parker, supra. In Parker, after considering the Batson claim, we stated that “[w]e have considered Parker’s remaining enumerations of error and find that they either lack merit or are unlikely to recur at trial.” Id. at 364 (2). Since Parker was retried on the same indictment, the enumeration of error in the prior appeal asserting failure to sever was not one we found unlikely to recur at trial. Accordingly, this enumeration of error was previously considered and found to be without merit in Parker, supra. Parker does not claim, and we find no basis to conclude, that new or different evidence on re-trial precludes application of the doctrine of res judicata on this issue. Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991). Because this issue was decided adversely to Parker in his prior appeal, relitigation is precluded by res judicata. Id.

3. Parker contends the trial court erred by denying his motion to suppress testimony that the keys were in the ignition of his car parked near the Wendy’s restaurant where he was arrested for the attempted armed robbery on September 3, 1993.

A police officer testified that he was called to the Wendy’s restaurant to investigate a report that two men were hiding in the men’s bathroom at the restaurant at closing time around 10:00 p.m. After being repeatedly ordered by the officer to come out, Parker and another man came out of the bathroom. A frisk of Parker revealed that he had a handgun concealed inside the front waistband of his pants. In the bathroom, the officer found another handgun and two ski masks in the toilet tank and two pairs of gloves under the toilet. The officer did not conduct a custodial interrogation of Parker at the scene, but Parker told the officer that his car was parked at a nearby Chinese restaurant and that he had walked over to Wendy’s to use the restroom. The officer investigated this claim and found a car fitting the description given him by Parker backed into a dark area of the parking lot at a Chinese restaurant about 50 to 100 yards from Wendy’s. He testified that he shined his flashlight through the car window and observed that the keys were in the ignition.

Parker claims the trial court should have granted his motion to suppress the officer’s testimony as to the keys in the ignition because this information was obtained as a result of an illegal search of his car. There is no merit to this enumeration. The officer violated no Fourth Amendment rights by investigating Parker’s claim that his car was parked at a nearby restaurant. Upon discovering the car, the officer observed the keys in the ignition in plain view by shining his flashlight through the car window. Since the officer violated no Fourth Amendment rights in establishing his vantage point, he was entitled to use his flashlight to observe any incriminating evidence in plain view. Galloway v. State, 178 Ga. App. 31, 32-34 (342 SE2d 473) (1986).

4. Parker contends the trial court committed reversible error by improperly commenting on the evidence during the State’s closing argument.

During closing argument, the prosecutor noted that Parker told the officer he had stopped at a nearby Chinese restaurant and was at Wendy’s just to use the restroom. The prosecutor argued that it was improbable that Parker had stopped to eat at the Chinese restaurant because the officer had searched Parker and found no money on his person. Defense counsel objected on the basis that the officer “was never asked if there was any money found.” The prosecutor responded that he specifically remembered the officer’s testimony. In ruling on the objection, the trial court stated: “The court specifically recalls the officer testifying in that regard. However, the jury will collectively recall the evidence in the case. The objection is overruled.”

The record shows that, during direct examination of the officer, the prosecutor asked him if his search of Parker showed that Parker had any money on his person. The officer testified that he thoroughly searched Parker at the time of his arrest and that he had no money on his person. In overruling the objection, the trial court properly corrected defense counsel’s inaccurate statement as to the officer’s testimony. Moreover, the trial court did so in a manner that avoided any expression of what was or was not proved or as to the guilt of the accused. See OCGA § 17-8-57. This enumeration is meritless.

5. A review of the record shows that the evidence was sufficient for a rational trier of fact to find Parker guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Decided October 22, 1997

Reconsideration dismissed November 6, 1997.

Devon A. Orland, for appellant. -

Seaton Parker, pro se.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Benjamin M. First, Priscilla E. N. Carroll, Assistant District Attorneys, for appellee.


text:
    A97A1050.
    HOME INSURANCE COMPANY v. WYNN et al. WYNN v. WYNN et al. MONTGOMERY v. WYNN et al. WYNN et al. v. WYNN et al.
    A97A1051.
    A97A1052.
    A97A1053.
    (493 SE2d 622)
   Johnson, Judge.

Jacqueline Wynn (“Mrs. Wynn”) is the surviving spouse, sole beneficiary and executrix of the estate of Rufus Wynn. At issue in these appeals is whether Mrs. Wynn, her attorney, and the tortfeasor’s insurer acted properly in allocating settlement proceeds in a wrongful death action, when Mrs. Wynn simultaneously represented the decedent’s children’s interests and her own, competing, interests. Under the circumstances presented in these cases, the jury was authorized to find such conduct by Mrs. Wynn and her attorney was improper. The jury was not authorized, however, to find the action of the tortfeasor’s insurer was improper.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that Rufus Wynn died when the truck he drove was struck by another truck whose driver had automobile liability insurance through Home Insurance Company. Mr. Wynn was survived by Mrs. Wynn and his four adult sons from a prior marriage. Three of the sons, Dannie, Donnie and Ronnie Wynn, are involved in this action and will collectively be referred to as “the sons.”

Mrs. Wynn hired attorney Richard Montgomery, who contacted Home Insurance and advised the company of Mrs. Wynn’s intent to bring an action against its insured. Negotiations between Mrs. Wynn, Montgomery and Home Insurance ensued and, three weeks after Mr. Wynn’s death, the claim was settled for $650,000. An attorney for Home Insurance informed Montgomery that he needed to make an allocation between the various claims, told Montgomery what factors to consider, and stated that the allocation would have to be reasonable. The attorney for Home Insurance discussed the issue with Montgomery at length. Following these discussions, without any notice to or involvement of the sons, the settlement was divided as follows: $325,000 was allocated to wrongful death damages, $275,000 was allocated to estate damages associated with Mr. Wynn’s pain and suffering, and $50,000 was allocated to Mrs. Wynn for loss of consortium. The sons had a stake only in the wrongful death claim. The sons’ share of the $325,000 wrongful death damages award was immediately reduced by $150,000 to pay Montgomery’s fee, and Mrs. Wynn signed a promissory note to pay the balance of his $216,000 fee. The sons were not notified of the negotiations or consulted before the terms of the settlement were agreed upon. In fact, they did not learn that the case had been settled until eight months later. Mrs. Wynn deposited the funds earmarked for the sons into an account bearing only her name.

The sons sued Mrs. Wynn, Montgomery, and Home Insurance, claiming that: (1) Mrs. Wynn breached her fiduciary duty to them in allocating the settlement proceeds; and (2) Montgomery and Home Insurance conspired with her to deprive them of their rightful share of the $650,000 settlement and even of that portion of the $325,000 which the defendants set aside for wrongful death damages, since they never received any of those proceeds. The jury agreed and returned a verdict holding the defendants jointly and severally liable in the amount of $243,750 in compensatory damages. The jury also awarded the sons punitive damages in the amounts of $40,000 against Mrs. Wynn, $100,000 against Montgomery, and $100,000 against Home Insurance, and ordered payment of attorney fees by Mrs. Wynn and Montgomery. In separate appeals, Mrs. Wynn, Montgomery, Home Insurance and the sons appeal from the judgment entered on the verdict.

Case No. A97A1051

1. Mrs. Wynn contends the trial court erred in denying her motion for directed verdict and motion for judgment n.o.v., arguing that the wrongful death statute gives her control over the wrongful death action and the right to settle a wrongful death claim without the concurrence of the children. It is true that the surviving spouse in a wrongful death action acts both as an individual and as a representative of the deceased spouse’s children and that the surviving spouse may settle the claim without the children concurring. See O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373, 374 (349 SE2d 382) (1986); OCGA § 51-4-2 (c). Indeed, the sons concede that Mrs. Wynn had the statutory right to settle the wrongful death claim without their approval. However, as they point out, the instant case involved other claims as well, namely Mrs. Wynn’s loss of consortium claim and a pain and suffering claim asserted on behalf of the estate, of which Mrs. Wynn is the executrix and sole beneficiary. It is her serving simultaneously in these different, competing capacities while settling and dividing the funds which forms the basis of the sons’ complaint.

In a wrongful death case, the surviving spouse acts as the children’s representative and owes them the duty to act prudently in asserting, prosecuting and settling the claim and to act in the utmost good faith. See O’Kelley, supra; Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986), overruled on other grounds in Brown v. Liberty Oil &c. Corp., 261 Ga. 214, 216 (2) (b) (403 SE2d 806) (1991); OCGA § 23-2-58. At the same time, an executrix of an estate occupies a fiduciary relationship toward parties having an interest in the estate; that relationship also requires the utmost good faith. Liner v. North, 188 Ga. App. 677, 678 (2) (373 SE2d 846) (1988). Of course, Mrs. Wynn also has an interest in her own loss of consortium claim. Thus, in negotiating and settling the case, Mrs. Wynn represented herself on the consortium claim, the decedent’s estate on the pain and suffering claim, and herself and the sons in the wrongful death claim. Under these circumstances, Mrs. Wynn would benefit most by allocating as little of the settlement proceeds to the wrongful death claim as possible.

An agent cannot place herself in a position in which her duty and interests conflict with those of her principal. Franco v. Stein Steel &c. Co., 227 Ga. 92, 95 (1) (179 SE2d 88) (1970). The agent is not permitted to acquire rights in the settlement antagonistic to the principal’s interests. See OCGA § 23-2-59. “It is generally, if not always, humanly impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. Consciously or unconsciously [s]he will favor one side as against the other, where there is or may be a conflict of interest. If one of the interests involved is that of the trustee personally, selfishness is apt to lead [her] to give [her]self an advantage. If permitted to represent antagonistic interests the trustee is placed under temptation and is apt in many cases to yield to the natural prompting to give [her]self the benefit of all doubts.” (Citations and punctuation omitted.) Ringer v. Lockhart, 240 Ga. 82, 84 (239 SE2d 349) (1977). Note that it is not necessary for the beneficiaries to show that the trustee acted in bad faith, gained an advantage, or that they were harmed. Id. The trustee must avoid being placed in such a position, and if she cannot avoid it, she may resign, may fully inform the beneficiaries of the conflict, or may request the court to appoint a guardian ad litem to protect the unprotected interests. If she fails to do any of these things, she proceeds at her own peril. Id. at 85. The wrongful death statute creates a cause of action in the children for breach of the spouse’s duty as representative. See Morris v. Clark, 189 Ga. App. 228, 231 (2) (375 SE2d 616) (1988).

Mrs. Wynn acted in several different legal capacities and allocated one-half of the settlement proceeds to claims other than the wrongful death claim, namely, claims in which she was the sole beneficiary. Thus, there was evidence to support a finding that Mrs. Wynn breached her fiduciary duty to the sons. Accordingly, it is unnecessary to consider whether she further breached her duty to the sons by depositing their funds into her own account, not notifying them of the settlement, and not disbursing the proceeds to them. The trial court did not err in refusing to grant Mrs. Wynn’s motion for directed verdict or judgment n.o.v. See generally Signsation v. Harper, 218 Ga. App. 141, 142-143 (2) (460 SE2d 854) (1995); Hill v. Rodriguez, 208 Ga. App. 108, 110 (2) (429 SE2d 682) (1993).

2. Mrs. Wynn claims that the trial court erred in denying her motions for summary judgment and for directed verdict on the issue of punitive damages. The denial of the motion for summary judgment becomes moot when the court reviews the evidence upon the trial of the case. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61) (1978).

The court did not err in refusing to direct a verdict on the issue of punitive damages. “A breach of fiduciary düties is sufficient to support an award of punitive damages. Whether punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury.” (Citation omitted.) Daniell v. Clein, 206 Ga. App. 377, 383 (3) (425 SE2d 344) (1992). There being evidence that Mrs. Wynn breached her fiduciary duties to the sons, the trial court properly denied her motion for a directed verdict as to punitive damages. See generally Byrne v. Reardon, 196 Ga. App. 735, 736 (3) (397 SE2d 22) (1990).

3. Mrs. Wynn’s argument that the trial court erred in denying her motion for directed verdict as to attorney fees is also without merit. Where there is some evidence to support a finding of bad faith, an award of attorney fees on that basis must be affirmed. Crocker v. Stevens, 210 Ga. App. 231, 238 (8) (435 SE2d 690) (1993). Contrary to her contention, the existence of a bona fide controversy will not defeat a claim for attorney fees under OCGA § 13-6-11 when bad faith is an issue. See First Union Nat. Bank &c. v. Cook, 223 Ga. App. 374, 380 (9) (477 SE2d 649) (1996). Because there was evidence that Mrs. Wynn represented her own interests at the same time she represented the sons’ interests which patently conflicted with hers, allocated a portion of the settlement to herself rather than the sons she also represented, failed to promptly pay the sons after doing so, and deposited their shares into an account bearing only her name, the trial court properly denied Mrs. Wynn’s motion for directed verdict on the claim for attorney fees. See generally Ross v. Hagler, 209 Ga. App. 201, 204 (3) (433 SE2d 124) (1993).

4. Mrs. Wynn claims the trial court erred in: refusing to give her Request to Charge No. 23 in its entirety; giving the sons’ Request to Charge No. 53; and refusing to give Montgomery’s Request to Charge No. 21. However, she has failed to show this Court where in the record she raised any of these objections below. No such objections are made on the transcript pages referenced in her brief. Therefore, these enumerations will not be considered. See Court of Appeals Rule 27 (a), (c) (3).

5. Mrs. Wynn argues that “[t]he verdict, which indicated that there could be no claim for pain and suffering,” was against the weight of the evidence based upon the testimony of one of the witnesses. The verdict form returned by the jury does not, in any way, indicate whether the pain and suffering claim was proven. Moreover, there was also evidence that Mr. Wynn died on impact and therefore had no viable pain and suffering claim. It is not the function of an appellate court to weigh evidence or determine witness credibility, but only to determine evidence sufficiency. See Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 823 (2) (476 SE2d 22) (1996). This enumeration is without merit.

Case No. A97A1052

6. Richard Montgomery lists eighteen enumerations of error, but groups them into six arguments which bear little relation to his enumerated list of alleged errors. This presentation is in violation of Court of Appeals Rule 27 (c) (1), (3). “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” (Citations and punctuation omitted.) Bennett v. Moody, 225 Ga. App. 95, 96 (483 SE2d 350) (1997). While we will consider the enumerations, we point out that by so combining the arguments, Montgomery leaves the culling out of the various assertions to the mercy of our perception. See Hayes v. State, 189 Ga. App. 39 (1) (375 SE2d 114) (1988).

7. Montgomery argues the trial court erred in allowing the jury to consider the sons’ legal malpractice claim against him when there was no attorney-client relationship between them. He contends he represented only Mrs. Wynn. However, as discussed above, Mrs. Wynn prosecuted not only her own interests, but those of the sons in the wrongful death claim. See OCGA § 51-4-2 (a). His contention that he represented only Mrs. Wynn ignores the fact that Mrs. Wynn represented the sons’ direct interests in the claim. See generally Toporek v. Zepp, 224 Ga. App. 26, 28 (2) (479 SE2d 759) (1996). It also ignores the fact that Montgomery took most of his legal fees directly out of the sons’ share of the proceeds. Furthermore, Montgomery owed a duty of reasonable care to the sons as third-party beneficiaries of his relationship with Mrs. Wynn. See Kirby v. Chester, 174 Ga. App. 881, 884 (2) (331 SE2d 915) (1985); OCGA § 51-4-2. This enumeration lacks merit.

8. Montgomery contends the trial court erred in allowing expert testimony on the issue of his legal duties to the sons and in charging the jury as to duties he owed, when he was not their attorney. Based on our holding in Division 7, this enumeration is without merit.

9. Montgomery claims the trial court erred in not allowing him to introduce evidence that the sons were represented by their own attorney. Inasmuch as the sons did not retain counsel until several months after the claim was settled, Montgomery has not shown how the evidence was relevant or its exclusion harmful. The trial court did not abuse its discretion in disallowing the evidence. See generally Opatut v. Guest Pond Club, 188 Ga. App. 478, 480-481 (3) (373 SE2d 372) (1988).

10. Montgomery argues the trial court erred in submitting the issue of punitive damages to the jury when there was no evidence that he acted wilfully, wantonly, or demonstrated an entire want of care which would raise the presumption of conscious indifference to consequences. We disagree. The expression “conscious indifference to consequences” “relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights.” (Citations and punctuation omitted.) Read v. Benedict, 200 Ga. App. 4, 6-7 (2) (406 SE2d 488) (1991). The jury was authorized to conclude that evidence that Montgomery assisted Mrs. Wynn and Home Insurance in dividing the proceeds in spite of her clear conflict of interest showed, at least, a conscious indifference to consequences. See Toporek, supra. Legal malpractice, fraud, or breach of a fiduciary duty may warrant the imposition of punitive damages. See OCGA § 51-12-5.1; Read, supra; Thomas v. White, 211 Ga. App. 140, 141 (438 SE2d 366) (1993). A jury question was presented.

11. Montgomery claims there was no evidence of bad faith or stubborn litigiousness necessary to justify submitting the issue of attorney fees to the jury. There being some evidence of bad faith, such as the evidence discussed in Divisions 3 and 8, the issue was properly presented to the jury. See Spring Lake Property &c. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990); Caswell v. Jordan, 184 Ga. App. 755, 759 (4) (362 SE2d 769) (1987) (physical precedent only).

12. Montgomery’s argument that the trial judge erred in not recusing himself upon Montgomery’s oral motion is without merit because Montgomery did not comply with Uniform Superior Court Rule 25 and has not asserted facts and circumstances sufficient to show partiality. See generally Stephens v. Ivey, 212 Ga. App. 407, 408 (2) (442 SE2d 248) (1994).

Case No. A97A1050

13. Home Insurance contends the trial court erred in denying its motion for judgment n.o.v. It claims that under the wrongful death statute it had a duty to deal only with Mrs. Wynn (through her attorney); it had no duty to notify the children or to make sure they were notified because Mrs. Wynn was the only person who could bring or settle the wrongful death claim; and there was no confidential or fiduciary relationship between Home Insurance and the sons. For the reasons which follow, we agree and reverse.

No fiduciary relationship exists between an injured claimant and an insured’s insurance carrier. Daniel v. Conrad, 242 Ga. 119, 120 (249 SE2d 603) (1978). Indeed, the interest of an injured claimant is obviously antagonistic to that of the tortfeasor and his insurer; they deal with each other at arm’s length. See Clinton v. State Farm &c. Ins. Co., 110 Ga. App. 417, 424 (2) (b) (138 SE2d 687) (1964).

Home Insurance not only had no duty to the sons, it had an affirmative duty to negotiate only with Mrs. Wynn on the wrongful death claim. See OCGA § 51-4-2 (a), (c). As discussed above, Mrs. Wynn had a clear conflict of interest at the time she negotiated with Home Insurance. However, that fact does not render Home Insurance liable or convert its actions in dealing at arm’s length with its adversaries into an act of “conspiring to defraud.” Home Insurance negotiated with Mrs. Wynn only from the adversarial position of its tortfeasor insured. Its interest was in making certain that each claim related to Mr. Wynn’s death was expressly settled in order to eliminate the possibility that its insured would be exposed to further liability. We note that it is sound public policy to encourage parties to negotiate settlements to the end that litigation may be avoided. See Williams v. St. Paul Cos., 228 Ga. App. 656 (_SE2d_) (1997).

Although an attorney for Home Insurance reminded Mrs. Wynn that the settlement offer was to satisfy the wrongful death, loss of consortium and pain and suffering claims, informed her that an allocation between the claims would have to be made, and suggested factors to be considered, Mrs. Wynn, through her attorney, actually made the decision regarding the allocation of the proceeds. Mrs. Wynn had complete control over the family’s prosecution of the case and had sole authority to settle the wrongful death case. See Morris, supra. She was not obligated to accept any settlement terms proposed by Home Insurance. See generally Williams, supra. That Mrs. Wynn did allocate the settlement proceeds was a matter between her and the sons. It was not the conduct of Home Insurance that caused Mrs. Wynn’s dilemma, but the fact that she represented parties with conflicting interests. Id. The law is clear that if a spouse fails to prudently settle a wrongful death claim, the children have a cause of action against her. See Morris, supra.

Decided November 6, 1997

Greene, Buckley, Jones & McQueen, John D. Jones, Troutman Sanders, Robert L. Pennington, for Home Insurance Company.

Taylor, Harp & Callier, John S. Taylor, Jefferson C. Collier, for Dannie Wynn et al.

Rhodes, Warner & Lomax, Robert R. Lomax, for Jacqueline Wynn.

Hawkins & Parnell, H. Lane Young II, Allen L. Broughton, for Richard Montgomery.

There being no evidence that Home Insurance was involved in any conspiracy to defraud the sons or that it assisted Mrs. Wynn or Montgomery in breaching their duties to the sons, the trial court erred in denying Home Insurance’s motion for judgment n.o.v. See generally Rivers v. Lynch, 257 Ga. 555, 557 (361 SE2d 162) (1987).

Case No. A97A1053

14. In this contingent appeal, the sons raise issues regarding certain jury charges involving Montgomery’s duties as an attorney. Because we are affirming the judgment against Montgomery and in favor of the sons in Case No. A97A1052, this appeal is moot and is therefore dismissed.

Judgment reversed in Case No. A97A1050. Judgments affirmed in Case Nos. A97A1051 and A97A1052. Appeal dismissed in Case No. A97A1053.

Pope, P. J., concurs. Blackburn, J., concurs as to Divisions 1-12 and Division 14 and concurs in judgment only as to Division 13.