text:
    A97A1002, A97A1334.
    CITY OF ARCADE v. EMMONS et al. (two cases).
    (494 SE2d 186)
   Andrews, Chief Judge.

After annexing land located in adjacent, unincorporated Jackson County into its corporate limits, the City of Arcade entered into a contract with Bartram Environmental, Inc. setting forth the terms under which Bartram proposed to own and operate a landfill on a portion of the annexed property. The contract was contingent upon Bartram’s ability to obtain a permit for the landfill pursuant to the Georgia Comprehensive Solid Waste Management Act (hereafter the Solid Waste Management Act or the Act) (OCGA § 12-8-20 et seq.) and upon Bartram’s purchase of the property from a third party. After the City entered into the contract, Greg Emmons and Ron Smith, both citizens of the City of Arcade, and a group known as Citizens United for a Better Jackson County, Inc. brought suit against the City for a declaratory judgment and injunctive relief claiming the City failed to comply with provisions of the Solid Waste Management Act.

The suit sought a declaration that the contract between the City and Bartram was void because the City failed to comply with the provisions of the Act set forth in OCGA § 12-8-26 relating to public meetings on the selection of a landfill site within the City. The suit also sought the issuance of an injunction: (1) prohibiting the City from holding any public meetings required by the Solid Waste Management Act for issuance of a permit to Bartram for operation of a landfill within the City, and (2) prohibiting the City from issuing a business permit to Bartram to operate a landfill within the City.

After a bench trial, the trial court issued an order filed on November 4, 1996, finding that the City violated the provisions of OCGA § 12-8-26 and declaring that the contract between the City and Bartram was void. The trial court also ruled in the order that the City was “permanently enjoined from taking any actions in conjunction with Bartram Environmental, Inc. which flow from the May 27, 1993 decision to site a [landfill on the annexed property].” In Case No. A97A1002, the City appeals from the trial court’s November 4, 1996 order. The trial court also subsequently entered three orders on November 27, 1996: (1) finding the City in civil contempt of its November 4 order; (2) ordering the City to pay the plaintiffs’ attorney fees for bringing the contempt motion; and (3) modifying the November 4 order. In Case No. A97A1334, the City appeals from the November 27 orders. Both appeals were originally filed in the Supreme Court, which transferred the appeals to this Court.

Case No. A97A1002

The City contends that the trial court erred by: (1) finding that it violated the provisions of the Solid Waste Management Act set forth in OCGA § 12-8-26 (a) and (b) requiring that certain public hearings be held on the selection of a site for the landfill within the jurisdictional limits of the City; (2) concluding that the effect of the City’s failure to comply with OCGA § 12-8-26 was to render the landfill contract between Bartram and the City invalid; and (3) permanently enjoining the City from taking any action in furtherance of Bartram’s proposed landfill on the property annexed by the City.

1. We first consider whether the City violated the statutory requirements of OCGA § 12-8-26. Subsections (a) and (b) of OCGA § 12-8-26 set forth the circumstances under which public hearings must be noticed and held by the City as part of the Solid Waste Management Act’s “comprehensive state-wide program for solid waste management which will assure that solid waste facilities, whether publicly or privately operated, do not adversely affect the health, safety, and well-being of the public and do not degrade the quality of the environment by reason of their location, design, method of operation, or other means. . . .” OCGA § 12-8-21 (a). Under the Act, the director of the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources is charged with primary responsibility for implementing the policies of the Act. OCGA § 12-8-21 (d). The EPD accepts applications for permits to operate facilities under the Act and is authorized to issue permits upon determining that there has been compliance with the requirements of the Act. OCGA §§ 12-8-23.1 (a) (3); 12-8-24 (a), (d).

In this case, after the land at issue was annexed into the City in May 1993, Bartram contracted to purchase a portion of the land from the owner in August 1993, for the purpose of developing a landfill, and executed a contract with the City in November 1993, setting forth terms for operation of the landfill within the City Bartram subsequently applied to the EPD in December 1994, for issuance of a permit for it to own and operate a municipal solid waste landfill on the property within the jurisdictional limits of the City. Since the proposed landfill would be located within the City, issues arose as to whether or not public meetings on site selection under OCGA § 12-8-26 applied to the City; if they did apply, whether or not the City complied with the requirements; and the effect of any failure by the City to comply.

Subsection (a) of OCGA § 12-8-26 provides that: “Any county, municipality, group of counties, or authority beginning a process to select a site for a municipal solid waste disposal facility must first call at least one public meeting to discuss waste management needs of the local government or region and to describe the process of siting facilities to the public. Notice of this meeting shall be published within a newspaper of general circulation serving such county or municipality at least once a week for two weeks immediately preceding the date of such meeting.”

Subsection (b) of OCGA § 12-8-26 provides that: “The governing authority of any county or municipality taking action resulting in a publicly or privately owned municipal solid waste disposal facility siting decision shall cause to be published within a newspaper of general circulation serving such county or municipality a notice of the meeting at which such siting decision is to be made at least once a week for two weeks immediately preceding the date of such meeting. Such notice shall state the time, place, and purpose of the meeting and the meeting shall be conducted by the governing authority taking the action. A siting decision shall include, but is not limited to, such activities as the final selection of property for landfilling and the execution of contracts or agreements pertaining to the location of municipal solid waste disposal facilities within the jurisdiction, but shall not include zoning decisions.”

The facts relevant to the application of subsections (a) and (b) are as follows:

The evidence shows that, as early as December 1992, the Arcade city council was aware that certain land outside of and adjacent to the City in unincorporated Jackson County was being considered by private developers as a possible site for location of a landfill. The City was also aware that, if the proposed landfill was located within the City, substantial revenue would accrue to the City as the host local government under the provisions of the Solid Waste Management Act. OCGA § 12-8-39 (d). At a city council meeting on May 27, 1993, the land was annexed into the City. It is undisputed that the City annexed the property so that it would be in a position to benefit from the revenues that would accrue to the City if a private developer later obtained a permit for and operated a landfill on the annexed property. At the time of the annexation, the City had no plans to develop or operate a publicly owned landfill, no agreement with any private developer to locate a landfill on the annexed property, and did not know whether a private developer would eventually propose to locate a landfill on the annexed property.

Bartram’s first contact with the City was in June 1993, when it sent a letter to the City informing the City that it was interested in developing a landfill on a portion of the recently annexed property and that it was negotiating with the owner for a purchase agreement over the property. Bartram eventually contracted with the owner in August 1993, to purchase the property contingent upon Bartram’s ability to obtain a permit from the EPD to operate a landfill on the property.

In September 1993, a Bartram representative met with the mayor of Arcade and discussed the possibility of submitting a proposal to the City for the operation of a landfill within the City. At a September 14, 1993 city council meeting, a Bartram representative presented a proposal for the terms under which Bartram would contract with the City for operation of a landfill on a portion of the annexed property. A motion was made by a council member to accept Bartram’s proposal and to direct the City attorney to draw up a contract. The motion was approved by a two-to-one vote. After the September 14 council meeting, the City’s attorney was directed to draw up a contract based on Bartram’s proposal. A city council meeting was held on October 12, 1993, at which there were discussions about the City’s negotiations with Bartram on a landfill contract. A contract between Bartram and the City was prepared substantially incorporating the terms of the proposal made at the September 14 council meeting, and the contract was formally approved and executed by the City at a city council meeting held on November 16, 1993.

On these facts, the trial court concluded that the City, “beg[an] the process of selecting a site for a municipal solid waste disposal facility by the end of the 5/27/93 council meeting without complying with OCGA § 12-8-26 (a).” The record shows that the City of Arcade held no public meeting pursuant to subsection (a). The City contends that no such meeting was required because subsection (a) would apply only to the site selection process initiated for a facility publicly owned by the municipality and not to the site selection process conducted by Bartram for its proposed privately owned facility.

Under the language of subsection (a), the public meeting requirement applies to a municipality such as Arcade only if the evidence shows that the municipality was “beginning a process to select a site for a municipal solid waste disposal facility.” Subsection (a) obviously applies to a municipality engaged in its own process of selecting a site where the municipality is the applicant to the EPD for the operation of a publicly owned facility. We conclude that subsection (a) may also apply in cases where the applicant to the EPD is a private developer applying for a privately owned and operated facility to be located in the municipality. In those cases, even though the proposed facility would be private, the public meeting requirement of subsection (a) would apply where the evidence shows that the municipality acted for or in collaboration with the private developer in “beginning'a process to select a site.”

On the present record, however, we find no basis for concluding that the City of Arcade took any action which required it to hold a public meeting under subsection (a). There is no evidence that the City was involved in beginning a process to select a site for the landfill at issue within the meaning of OCGA § 12-8-26 (a). When the City annexed the property at its May 27 council meeting, there is no evidence that it acted for or in collaboration with Bartram to select the annexed property for a landfill site. The evidence shows that Bar-tram acted independently in selecting the annexed site for its proposed landfill. The fact that the City was aware that private developers might be interested in developing the property and annexed it for the sole reason that a developer might later select it for a landfill site is not sufficient to show that the City was “beginning a process to select a site” for the proposed facility within the meaning of OCGA § 12-8-26 (a) or making a siting decision under OCGA § 12-8-26 (b). Although the City later entered into a contract with Bartram in November 1993, governing operation of the proposed landfill at the selected site and requiring the City’s cooperation with Bartram in its application to the EPD, this action was not governed by the requirements of subsection (a) but rather was a “siting decision” governed by the requirements of subsection (b) of OCGA § 12-8-26.

The trial court also concluded that the City violated the notice and public meeting requirements of OCGA § 12-8-26 (b).

It is undisputed that public notice pursuant to subsection (b) was given by the City prior to the November 16, 1993 city council meeting but was not given prior to the September 14, 1993 city council meeting. Although the contract between the City and Bartram pertaining to the location of the landfill was not executed until the November 16 meeting, subsection (b) makes clear that a siting decision is not necessarily limited to the actual execution of the contract pertaining to the location of the landfill. A siting decision is generally defined as any “action resulting in a publicly or privately owned municipal solid waste disposal facility siting decision.” OCGA § 12-8-26 (b).

In the present case, it is clear that, at the September 14 city council meeting, action was taken that resulted in a siting decision within the meaning of subsection (b). After Bartram made its contract proposal at the September 14 meeting, a motion was made by a city council member to accept the proposal. Although there was evidence that the two-to-one vote in favor of the motion was not sufficient under the then-existing City charter to make it an official act by the City, the record shows that the City attorney was directed to draft a contract incorporating Bartram’s proposal and that, after the September 14 meeting, such a contract was drafted. The contract was formally approved and executed at the November 16 city council meeting. Despite the unofficial nature of the action taken by the city council at the September 14 meeting, we conclude that it was action resulting in a siting decision under subsection (b) of OCGA § 12-8-26 which required that the City provide statutory notice of the meeting. The City’s properly noticed meeting on November 16, at which the contract was formally executed, was not sufficient to satisfy the statutory requirement for public notice prior to action resulting in a siting decision. See Grove v. Sugar Hill Invest. Assoc., 219 Ga. App. 781, 783-784 (466 SE2d 901) (1995). Since the City failed to give public notice under subsection (b) prior to the September 14 meeting, it violated the statutory requirements. Although the trial court may have concluded that the City violated subsection (b) for other reasons, a decision right for any reason will be affirmed.

2. We find no error in the trial court’s conclusion that the contract between the City and Bartram was void. Because the City failed to provide the statutory notice of the September 14 meeting, the trial court correctly concluded that the contract between the City and Bar-tram for the siting of the landfill was invalid. Grove, supra at 784-785.

3. The trial court erred, however, in granting a permanent injunction against the City. We find no basis for the trial court’s grant of a permanent injunction prohibiting the City from taking any actions in conjunction with Bartram Environmental which flow from the decision to site a landfill on the annexed property. The City’s failure to hold a properly noticed meeting pursuant to OCGA § 12-8-26 (b) rendered its siting decision and contract with Bartram invalid, but that failure does not prevent the City from subsequently holding a properly noticed meeting for public discussion of a new siting decision and consideration of a new agreement with Bartram for the operation of a landfill on the same site. As long as the City complies with the statutorily mandated notice procedures and provides for public discussion preceding a siting decision, the Act’s purpose to promote “reasoned decisions on the location of waste facilities made after public discussion and to assure officials’ accountability” is satisfied. See Grove, supra at 785.

Moreover, the effect of the permanent injunction granted by the trial court is to halt the administrative process by which the EPD is charged with the responsibility of considering Bartram’s application for a landfill permit under the requirements of the Solid Waste Management Act. The City of Arcade, as the municipality where the proposed landfill would be located, is required by the Act to give notice of and to hold certain public meetings before the EPD would be authorized to issue a permit to Bartram. OCGA §§ 12-8-24 (d); 12-8-26 (b). The trial court’s broadly worded permanent injunction would prohibit the City from noticing or holding these public meetings and effectively enjoin the administrative procedure by which Bartram’s application is considered by the EPD. Although the trial court had jurisdiction to consider whether the City’s violation of statutory procedures rendered its contract with Bartram void {Grove, supra), it did not have jurisdiction in this case to exercise control over matters which the legislature has determined are within the primary administrative jurisdiction of the EPD with appeal therefrom pursuant to OCGA § 12-2-2 (c) and the provisions of the Georgia Administrative Procedure Act. See Bailey v. Wilkes, 162 Ga. App. 410, 412-414 (291 SE2d 418) (1982); George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983); OCGA §§ 12-8-21 (d); 12-8-23.1; 12-8-24.

Case No. A97A1334

4. Pursuant to a motion for contempt brought by the plaintiffs below, the trial court entered an order on November 27,1993, finding that the City was in civil contempt of its November 4,1996 order permanently enjoining the City from holding public hearings required by the Solid Waste Management Act before the EPD would be authorized to issue a permit to Bartram. Specifically, the trial court found that the City was in contempt for attempting to circumvent its order by allowing Bartram to utilize the city hall to conduct a public meeting noticed and represented to be held in compliance with OCGA § 12-8-24 (d).

Decided October 9, 1997

Reconsideration denied October 22, 1997

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Donna S. Golden, Vernadette Ramirez, for appellant.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Tolbert & Elrod, Scott R. Tolbert, Christopher D. Elrod, for appellees.

Ernest De Pascóle, Jr., amicus curiae.

The trial court also issued two additional orders on November 27 in conjunction with the contempt order. In the first of these orders, the trial court ordered the City to pay the plaintiffs’ attorney fees for bringing the contempt motion. In the second order, the trial court modified its November 4, 1996 order to specifically state that the City was enjoined from holding the hearing pursuant to OCGA § 12-8-24 (d) and from taking any other action required by the Act in furtherance of Bartram’s permit, and found that the hearing held by Bartram was a nullity and failed to comply with the provisions of OCGA § 12-8-24 (d).

We find the trial court erred in entering all three November 27 orders. For the reasons stated in Division 3, supra, the trial court was without subject matter jurisdiction to enter the portion of its November 4, 1996 order which enjoined the City from holding hearings it was authorized and required to hold under the provisions of the Solid Waste Management Act as administered by the EPD. A judgment on a matter not within the court’s jurisdiction is void, and the issue may not be waived. Bowers v. Estep, 204 Ga. App. 615, 616 (420 SE2d 336) (1992); Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997). Even where the subject matter jurisdiction of the trial court is not raised on appeal, the appellate court will of its own motion address the issue and reverse the judgment. Cutts v. Scandrett, 108 Ga. 620, 634 (34 SE 186) (1899).

It follows that the trial court was without authority to: (1) find the City in contempt for violating the void portion of its November 4 order; (2) award attorney fees on the contempt motion; and (3) modify the void portion of the November 4 order as to the same or additional matters within the jurisdiction of the EPD.

Judgment affirmed in part and reversed in part in Case No. A97A1002. Judgment reversed in Case No. A97A1334.

Ruffin and Eldridge, JJ, concur.

       Under OCGA § 12-8-22 (19), the definition of a “municipal solid waste disposal facility” includes a “municipal solid waste landfill” as defined in OCGA § 12-8-22 (20).

       Although the annexation may have been procedurally defective under the then existing City charter, the parties do not contest the trial court’s conclusion that Ga. L. 1995, p. 4024 amended the charter and included the annexed property within the jurisdictional limits of the City of Arcade.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A1228.
    ATLANTA POSTAL CREDIT UNION v. INTERNATIONAL INDEMNITY COMPANY
    (494 SE2d 348)
   Ruffin, Judge.

International Indemnity Company (“International Indemnity”) filed a declaratory judgment action to determine whether it had a duty to defend the Atlanta Postal Credit Union (“Credit Union”) as an additional insured under a policy issued to National Vehicle Recovery of Georgia, Inc. (“National Vehicle”). International Indemnity and the Credit Union filed cross-motions for summary judgment. The trial court granted International Indemnity’s motion and denied the Credit Union’s motion. The Credit Union appeals, and because we find that the trial court should have granted summary judgment to the Credit Union, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The facts in this case, which are largely undisputed, are as follows. The Credit Union was a secured creditor of two automobiles previously owned by Deborah Kendrick. When Kendrick defaulted on her note with the Credit Union, it retained National Vehicle to repossess the vehicles. Kendrick informed two National Vehicle employees that one of the vehicles was located at her parents’ house. When the National Vehicle employees arrived at the parent’s house, they found the vehicle in the carport. As one of the employees, Donald Rainey, was checking the vehicle’s identification number, Kendrick’s father, Troy Buchanan, came out of the house “obviously upset” and “yelling [at them to] get off his property.” The two employees drove away in the wrecker, leaving the vehicle in the Buchanans’ carport.

Rainey then called Kendrick from the wrecker, explained the situation and requested that she call her father. According to Kendrick, after speaking with her mother, she explained to Rainey that it was not okay for him to drive up and repossess the vehicle. The National Vehicle employees nonetheless drove the wrecker up the driveway in a second attempt to repossess the vehicle. When Rainey exited the wrecker, Troy Buchanan again came out of the house, started screaming, and demanded that Rainey give his name. Rainey told Buchanan he was leaving and returned to the wrecker. Buchanan followed and began beating on the wrecker window with a portable phone. As the National Vehicle wrecker exited the driveway, Troy Buchanan suffered a fatal heart attack. Deborah Kendrick and Buchanan’s surviving spouse sued the Credit Union, National Vehicle and the two employees for, inter alia, wrongful repossession and wrongful death (“underlying action”).

At the time of the incident, National Vehicle was insured under a business auto insurance policy issued by International Indemnity. The policy covered the wreckers used by National Vehicle in its business which, as described in the policy, is one that “[r]ecovers [v]ehicles”for banks and insurance companies. The policy provides that International Indemnity “will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.” (Boldface omitted.) Under the policy, International Indemnity also insured “[a]nyone liable for the conduct of an insured described above . . . but only to the extent of that liability.” Finally, the policy requires International Indemnity to defend any suit asking for such damages.

Although the parties eventually settled the underlying action, it remained unresolved whether the insurance policy required International Indemnity to pay the Credit Union’s defense costs. Accordingly, International Indemnity filed the instant declaratory judgment action to determine the extent of such obligations under National Vehicle’s policy. In granting summary judgment to International Indemnity, the trial court concluded, as a matter of law, that International Indemnity is under no obligation to reimburse the Credit Union for its defense costs because of certain unspecified exclusions in the policy, and because “[t]he factual circumstances of the underlying action do not set forth an accident or injuries ‘arising out of ownership, maintenance or use’ of the insured’s [National Vehicle] vehicle.”

1. “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 tbe policy coverage and which the insurer has a duty to defend.’ [Cits.]” (Emphasis in original.) Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 558 (481 SE2d 850) (1997).

In the underlying action, the plaintiffs alleged in their complaint that, inter alia, the National Vehicle employees were acting on behalf of the Credit Union when they attempted “to wrongfully repossess” a vehicle belonging to Kendrick. The plaintiffs further alleged that “[a]s a direct and proximate result of the Defendants’ negligence[,] . . . Troy Buchanan sustained great physical and mental pain and suffering, until his death, for which plaintiff [is entitled to damages].” Finally, Kendrick alleged that she “is entitled to recover from each of [the] defendants jointly and severally for wrongful repossession of her automobile and attempted repossession in an amount to be determined by a jury.” In light of these allegations and the policy provisions at issue, we must determine (a) whether the policy provides coverage to its named insured, National Vehicle, for the alleged acts and injuries, and if so, (b) whether the Credit Union was liable for the alleged conduct of the National Vehicle employees.

(a) We find that, contrary to the trial court’s order, the underlying action did set forth a claim for injuries resulting from an accident arising out of the use of National Vehicle’s wrecker, which was a covered auto under the policy.

Because the use of the wrecker determines what injuries are covered under the policy, the definition of “use” is a central issue that must be resolved. “The applicable principles are settled. Insurance is a matter of contract, and the language used is to be accorded its general and ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the parties, and, in construing it, the court can go no further than a fair construction of the language used will permit. It is the understanding of the average policyholder which is to be accepted as a court’s guide to the meaning of words, with the help of the established rule that ambiguities and uncertainties are to be resolved against the insurance company.” (Citations and punctuation omitted; emphasis supplied.) Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376, 377 (441 SE2d 788) (1994).

This Court has, on numerous occasions, interpreted the policy provision at issue. Recently, in Abercrombie v. Ga. Farm &c. Ins. Co., 216 Ga. App. 602 (454 SE2d 813) (1995), we addressed the issue of whether the injury resulted from the ownership, maintenance, or use of an uninsured motor vehicle. We found that “the policy clause which is being construed in this case ‘is usually interpreted in a broad sense.’ ” Id. at 604. We further found that “ ‘[u]se’ while an admittedly elusive term, may be defined as to employ for some purpose.” (Citations and punctuation omitted.) Id. The requirement that the injury resulted from the “use” of the vehicle does not “ ‘require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. Almost any causal connection or relationship will do. . ...’ [Cit.]” Id. Furthermore, “use” extends “ ‘at least to the point, beyond physical contact, where control over the [vehicle] is easily or reasonably at hand, and particularly when it is still being “utilized.” ’ ” Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 4-5 (2) (230 SE2d 70) (1976). “Each case turns on its precise individual facts. The question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the vehicle.” (Citations and punctuation omitted.) Ins. Co. of North America v. Dorris, 161 Ga. App. 46, 47 (1) (288 SE2d 856) (1982).

In Booker, a sanitation worker who was located approximately 30 feet from his garbage truck was struck by an uninsured motorist while he was walking to collect refuse. The uninsured motorist policy at issue covered trucks used in the worker’s business, which the policy described as “ ‘Sanitary Pick Up’ and ‘Garbage Ashes or Refuse Collecting including completed operations.’ ” Booker, supra at 3. The issue before this Court was whether the worker was an insured person under the uninsured motorist statute, which included “ ‘any person who uses . . . the motor vehicle to which the policy applies.’ ” Id. at 4 (citing former Code Ann. § 56-407.1 (b) (Ga. L. 1963, p. 588, as amended)). After reviewing several cases in which the “use” of a vehicle was at issue, we determined that: “[i]n defining the word ‘use’ of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract. It is clear from the insurance contract that this vehicle was to be used in the business of [garbage collecting]. Common sense tells us that the parties certainly contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on [the] truck would be hauled to the truck by a garbage collection container and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.” Id. at 7. Accordingly, we found that when the worker was injured, he was using the truck within the meaning of the policy and statute. Id.

A similar inquiry leads us to conclude that, although there was no alleged physical contact between Buchanan and the insured wrecker in this case, the complaint alleges injuries, which as required by the policy, were “caused by an accident and resulting from the . . . use of a covered auto.” (Boldface omitted.) It is clear from the insurance policy that the wrecker was going to be used by National Vehicle in its business of recovering vehicles for banks. See id.; Smelcer, supra. The parties must have contemplated that in pursuit of its business, National Vehicle would encounter problems recovering vehicles and that, in some instances, the mere attempt to repossess vehicles would enrage the car owners and their families. The wrongful repossession alleged in the underlying case, if not caused directly by the wrecker, certainly “grew out of, or flowed from the use of the vehicle.” (Citation and punctuation omitted.) Dorris, supra at 47. Similarly, even though there was no alleged physical contact between the wrecker and Buchanan which caused his pain and suffering, the plaintiffs alleged that the pain and suffering was “a direct and proximate result of the Defendants’ negligence!,]” which included the purported wrongful repossession. Even if such claims were groundless, they fall within the policy coverage and International Indemnity had a duty to defend National Vehicle against the claims. See Penn-America, supra.

International Indemnity nevertheless contends that the claims were not covered because the policy only covered physical injuries and because the complaint only alleged intentional acts which do not constitute accidents under the policy. We disagree.

The policy expressly provides that it not only covered claims for bodily injury, but also claims for property damage which is defined as “damage to or loss of use of tangible property.” Thus, it is clear that the policy was not limited to claims for physical injuries. Furthermore, the complaint was not limited to claims for intentional acts. “[T]he term ‘wrongful,’ when used as an element of [the tort of wrongful repossession], is used in [a] . . . comprehensive sense to include that conduct which is in contravention of some legal duty owed to the party from whose possession the vehicle is being taken. [Cits.]” Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 113 (2) (b) (387 SE2d 144) (1989). Such claims can be based on negligent acts as were alleged in this case. See id. at 112.

Accordingly, because it is clear that the complaint asserted a claim for negligence arising out of the use of the covered wrecker, International Indemnity was required, as a matter of law, to provide coverage to National Vehicle for the claim.

(b) In order for the Credit Union to establish that it too was entitled to a defense by International Indemnity, the Credit Union must show, as required by the policy, that it was “liable for the conduct” of National Vehicle. In this regard, plaintiffs alleged in their complaint that the Credit Union is liable for the acts of the other defendants “under the Doctrine of Respondeat Superior.” In Aetna Cas. &c. Co. v. Empire Fire &c. Co., 212 Ga. App. 642 (1) (a) (442 SE2d 778) (1994), we examined the same policy provision and ruled that because the complaint alleged liability under the doctrine of respondeat superior, the defendant was an insured under the policy. Accordingly, “[s]ince the complaint[ in this case] allege[s] that [the Credit Union] is liable for [National Vehicle’s] negligence on the basis of respondeat superior, [the Credit Union] fits within the policy’s definition of an ‘insured.’ [Cit.]” Id. at 643-644. Furthermore, contrary to International Indemnity’s arguments on appeal, the issue is not whether the Credit Union is actually liable to the plaintiffs under this doctrine; the issue is whether such a claim has been asserted to invoke coverage and the duty to defend under the policy. See Penn-America, supra. Again, such a claim has been asserted.

2. Although the trial court did not specify in its order which policy exclusions precluded coverage to the Credit Union, International Indemnity argues that coverage is excluded by the policy provision stating that “[t]his insurance does not apply to . . . [l]iability assumed under any contract or agreement.” International Indemnity argues that because the Credit Union’s liability arises as a result of its contract with National Vehicle to repossess the vehicle, this exclusion precludes coverage to the Credit Union. We disagree.

Decided October 22, 1997

Greene, Buckley, Jones & McQueen, Harold S. White, Jr., William D. Matthews, for appellant.

James B. Gurley, for appellee.

Although a contract created the working relationship between the Credit Union and National Vehicle, the plaintiffs did not predicate the Credit Union’s alleged culpability on any assumption of liability provided in the contract. Rather, as discussed in Division 1 (b), it is clear that the plaintiffs grounded their allegations against the Credit Union on the theory of respondeat superior. This theory is not dependent on any contractual assumption of liability, but merely provides for indirect, vicarious liability of a master for the torts of his servant. See OCGA § 51-2-2; Gaskins v. Gaona, 209 Ga. App. 322, 323 (2) (433 SE2d 408) (1993). Accordingly, we find that the cited exclusion does not preclude coverage in this case.

3. Finally, we find no merit in International Indemnity’s argument that the Credit Union has not incurred any damages because the Credit Union’s own policy with another insurer provided primary coverage. Inasmuch as the wrecker involved was owned by National Vehicle, the International Indemnity policy clearly provided primary coverage. The record is also clear that the Credit Union’s own policy provides only excess coverage under the circumstances of this case. As International Indemnity was the primary insurer, it also had the duty to defend. See Commercial Union Ins. Co. v. Ins. Co. of North America, 155 Ga. App. 786 (3) (273 SE2d 24) (1980).

Because the undisputed facts, viewed in the light most favorable to International Indemnity, show that it had the duty to defend the Credit Union in the underlying action, the trial court erred in granting summary judgment to International Indemnity and in denying the Credit Union’s motion for summary judgment. See Lau’s Corp., supra.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A97A1446.
    TRAVELERS INDEMNITY COMPANY v. TRUST COMPANY BANK et al.
    (495 SE2d 296)
   Pope, Presiding Judge.

Plaintiff Travelers Indemnity Company (“Travelers”) brought this suit against Trust Company Bank and Jeffrey Berman, an attorney, to recover amounts Travelers had to pay when a guardian to whom it issued a surety bond mismanaged her ward’s assets. The trial court granted summary judgment to Berman and Trust Company. We affirm the trial court’s judgment but must disapprove of certain language in First Nat. Bank of Chattooga County v. Rapides Bank &c. Co., 145 Ga. App. 514, 517 (2) (244 SE2d 51) (1978).

In early 1988, Sandra Rice petitioned the probate court to become guardian of her niece, a minor who had received thousands of dollars in assets. Berman stated he believed the probate court appointed him the child’s guardian ad litem during those proceedings, although court records indicate another person served in that capacity. The probate court granted Rice’s petition on April 12, and on May 11 she opened checking account number 8840221264 at Trust Company under the name of “Sandra L. Rice and Jeffrey N. Berman as guardian for [the child].”

As a condition of issuing the bond, Travelers required Rice to sign and present Trust Company with a “cash countersignature notice” governing her ability to reach assets held in the account. The agreement, signed by Rice and a Trust Company officer, gave the bank notice of Rice’s guardianship and stated, “by agreement with [Travelers], Surety on my [guardianship] bond ... all checks, drafts, withdrawal slips, receipts or other orders against the funds in your Bank in my name as, or under my control as, [guardian], . . . are to be countersigned by [Travelers] and no checks, drafts, ... or other orders against such fixnds are to be honored, except when signed by me as [guardian], and countersigned by an authorized representative of [Travelers], duly designated to you by [Travelers].” On the notice form, below this signed agreement, was this statement: “We hereby confirm the above Joint Control arrangement, and designate, until further notice from us, any one of the following persons as authorized to represent us for the above purpose. . . . THE TRAVELERS INDEMNITY COMPANY.” In the space provided for “Specimen Signatures,” Berman and a Travelers’ employee signed. Berman also signed the account signature card, although he did not assist Rice in applying for the checking account.

From May until the account was closed in November 1988, Rice wrote thousands of dollars in checks without obtaining the signature of Berman or any other person authorized by Travelers to co-sign the checks. In violation of the “cash countersignature” or “joint control” agreement, Trust Company paid these drafts. During these months, Trust Company regularly sent statements to Rice’s address, which was the “account address” listed on the account application. Neither Berman nor Travelers ever requested monthly statements or copies of cancelled checks. Not until September 1992 was Trust Company notified of the improper disbursements. Berman testified he had no contact with Rice after the spring of 1988 and did not receive any statements or monitor the account, although he did receive one $100 check written on the account in payment of his fee for helping arrange the bond.

In October 1992, the probate court found Rice had mismanaged the funds and called upon Travelers to make good the wasted assets. Travelers then brought this suit, claiming that (1) Trust Company had violated the “cash countersignature” agreement by honoring checks bearing only Rice’s signature and (2) Berman had violated a “fiduciary duty” to Travelers, “negligently failed to exercise joint control over the funds . . . and failed to diligently preserve the rights of Travelers.” As the trial court did not specify the grounds of its ruling in favor of Trust Company and Berman, we will examine as necessary each claim and defense raised by the parties to determine whether the trial court’s ruling is “right for any reason.” See State Farm &c. Ins. Co. v. American &c. Ins. Co., 224 Ga. App. 789, 794 (4) (b) (482 SE2d 714) (1997).

1. Based on the 1908 Supreme Court of Georgia case of Fidelity &c. Co. v. Butler, 130 Ga. 225 (1) (60 SE 851) (1908), both Berman and Trust Company argue the “cash countersignature” or “joint control” agreement violates public policy. In that case, the court declared that agreements such as the one at hand violate public policy because, in dictating the method by which the guardian can hold and use the ward’s funds, the surety improperly assumes custody and control of the ward’s assets when no court has granted it the powers of guardianship. Id. In 1960, however, the legislature passed what is now OCGA § 33-24-49. See Ga. L. 1960, p. 289, § 1 at p. 673. That statute specifically provides that it “shall be lawful” for a surety on a guardianship bond to require the bondholder to enter an agreement that “prevents] the withdrawal of the moneys or assets . . . without the written consent of the surety . . . or an order of the court.”

Berman’s arguments that this statute does not invalidate the court’s ruling in Butler are patently meritless. No “separation of powers” problem is presented; rather, the Butler decision itself states that establishing the validity of such agreements “is rather for the legislature than for the judicial department of the government.” Id. at 243. We cannot find such agreements unenforceable as against public policy when the legislature has specifically declared them “lawful.” “What the Legislature allows cannot be contrary to public policy. [Cit.]” NEC Technologies v. Nelson, 267 Ga. 390, 394 (3) (478 SE2d 769) (1996).

The parties have directed our attention to First Nat. Bank of Chattooga County v. Rapides Bank &c. Co., supra, a case citing with approval Butler’s holding that “joint control” agreements violate public policy. To the extent Rapides Bank improperly relied on case law superseded by OCGA § 33-24-49, we overrule it.

2. We may, however, affirm the trial court’s grant of summary judgment to Trust Company based on the bank’s argument, advanced in both the trial court and this Court, that Travelers’ claims are barred by the time limits of OCGA § 11-4-406. The first and fourth subsections of that statute provide that if a bank sends its “customer” an account statement “accompanied by items paid in good faith in support of the debit entries” or “otherwise in a reasonable manner made the statement and items available to the customer,” and the customer “does not within 60 days from the time the statement and items are made available . . . discover and report his [or her] unauthorized signature or any alteration on the face of the item,” the customer “is precluded from asserting against the bank such unauthorized signature or alteration.”

Here, the evidence is uncontroverted that Trust Company sent statements to the “account address” during each month this account was open. Although review of those statements and the canceled checks they contained would have revealed items paid with only one of the two required signatures, the bank was not informed of the improper payments until September 1992. Interpreting OCGA § 11-4-406 (4), the Supreme Court has held an “unauthorized” endorsement to include a “missing” endorsement. See Trust Co. Bank v. Atlanta IBM &c. Credit Union, 245 Ga. 262, 264-265 (264 SE2d 202) (1980). Although no Georgia court has specifically determined whether a missing signature constitutes an unauthorized signature within the meaning of this statute, this is the rule in a majority of jurisdictions. See generally Knight Communications v. Boatmen’s Nat. Bank, 805 SW2d 199, 201-202 (Mo. App. 1991) (cataloging the applicable rule in each state that has decided this issue). As the majority view is in accord with Trust Co.’s definition of “unauthorized,” we are persuaded that the checks containing only one of two required signatures were “unauthorized” checks subject to OCGA § 11-4-406 (4) (a).

The central question, then, is whether the statute applies to Travelers, which claims its “joint control agreement” with Trust Company is an independent contract not subject to the time limitations of OCGA § 11-4-406. We have found only one case addressing this issue: American Ins. Co. v. Fidelity Bank &c., 583 A2d 361 (N.J. App. 1990). In that case, a surety on a guardianship account required the guardian to sign a joint control agreement, to which the guardian’s bank also agreed. As in the present case, nothing in the joint control agreement directed the bank to send the surety account statements or monitor the account on the surety’s behalf. The guardian, to whom the bank did send regular statements, wrote many checks containing only her signature. The bank honored them in violation of the joint control agreement. The court held that the surety was a “customer” by virtue of the joint control agreement, that its relationship with the bank was governed by § 4-406 of the Uniform Commercial Code, and that the surety could not use the joint control agreement to “elevate its status above that of a ‘customer.’ ” Id. at 363. Because the bank sent regular statements to the only person to whom it had been directed to send statements — the guardian — the surety’s untimely failure to request statements or notify the bank of improperly honored checks barred its claims. Id. at 605. Its decision, the court held, would further the policy of the statute by placing on the surety the burden of monitoring the account. Id.

We find the Fidelity Bank case and its reasoning persuasive. OCGA § 11-4-406 (4) is clearly intended to relieve the bank of responsibility for unauthorized checks after the customer has had a specified time period to review statements for errors. See Trust Co. Bank, 245 Ga. at 265; Nat. Bank of Ga. v. Weiner, 180 Ga. App. 61, 64 (348 SE2d 492) (1986). Travelers could easily have requested that Trust Company send it monthly statements or could have asked Rice to provide it with those statements. The surety apparently did not request any statements during the almost four years after the account was closed, and it must bear the burden of loss for its failure.

3. Berman was also entitled to summary judgment on Travelers’ claims that he owed the surety a “fiduciary duty” to monitor the account. Even construing the evidence strongly in Travelers’ favor, the only agreement Berman made with the company was to serve as an authorized co-signer of checks. An agent is required to act with the scope of authority granted, as “reasonably interpreted.” OCGA § 10-6-21. No reasonable interpretation of the joint control agreement supports Travelers’ contention that Berman was required actively to monitor the account, supervise Rice, or manage the ward’s affairs. See Heard v. Decatur Fed. S. & L. Assn., 157 Ga. App. 130, 135 (5) (276 SE2d 253) (1980). Travelers has presented no evidence showing Berman agreed to do anything other than serve as the company’s authorized signatory on checks. Therefore, regardless of whether Travelers hoped or expected Berman would actively monitor the account, its contention that Berman had a fiduciary duty to monitor is without merit. See Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 125-126 (2) (a) (483 SE2d 135) (1997). The trial court properly found no question of material fact on this issue and granted summary judgment to Berman. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided October 22, 1997.

Howard, Clark & Mercer, Glen W. Clark, Jr., James L. Palmer, for appellant.

Cashin, Morton & Mullins, James M. Sherman, for appellees.

Travelers claims that by failing to monitor the checking account, Berman violated duties he owed to the minor child as her guardian ad litem. Travelers further claims it is subrogated to the minor’s rights and may assert her claims against Berman. We find no evidence to support this theory. Although Berman stated he was appointed “guardian ad litem” for the minor during the pendency of Rice’s guardianship petition, the probate court’s records indicate another person served in that capacity. Even if Berman did serve as guardian ad litem for the purpose of setting up the guardianship, Berman testified without contradiction that he no longer occupied that fiduciary position when the account was opened in May. By that time, Rice had been designated the guardian of her niece’s estate. To the extent Travelers argues Berman violated his professional duties as an attorney to the minor, it raised no such claim in its complaint, and did not attach the malpractice affidavit required by OCGA § 9-11-9.1. Under these circumstances, Travelers’ claims against Berman based on its “subrogation” to the minor’s rights must fail.

Judgment affirmed.

Andrews, C. J, McMurray, P. J., Beasley, Blackburn, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. Birdsong, P. J., disqualified.

       Formerly codified as OCGA § 11-4-406 (1) and (4), the subsections were redesignated as 11-4-406 (a) and (d) in 1996.


author: Andrews, Chief Judge.

text:
    A97A1687.
    POPE v. THE STATE.
    (494 SE2d 345)
   Andrews, Chief Judge.

Robin Pope appeals from the judgment entered on a jury verdict finding him guilty of child molestation.

1. The State presented testimony from the victim, a Department of Family & Children Services (DFACS) caseworker, and an agent for the Georgia Bureau of Investigation (GBI) to support the charge that Pope molested his seven-year-old niece. The child testified in detail as to the acts of molestation committed upon her by Pope. The DFACS caseworker testified pursuant to the child hearsay statute (OCGA § 24-3-16) as to statements made to her by the child describing the acts of molestation. The GBI agent testified as to statements given to him by Pope while in police custody admitting that he committed the acts of molestation. Pope denied that he molested the child and claimed the GBI agent induced the statements with promises of leniency.

Although there was conflicting evidence, on appeal from a criminal conviction the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). It is the jury’s function, not the function of the appellate court, to resolve conflicts in the evidence and determine the credibility of the witnesses. Id. The evidence was sufficient for a rational trier of fact to find Pope guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Pope claims the trial court erred by granting the State’s motion in limine to exclude evidence that the child claimed to have been molested by someone other than Pope.

There was evidence that, in describing the molestation by Pope, the seven-year-old child used words of a sexual nature that would not normally be in such a young child’s vocabulary. Pope proffered evidence that the child told the DFACS caseworker that she had also been sexually molested by another person. He argued at trial that this evidence was admissible because it could affect the jury’s assessment of the credibility of the child’s claim against him by enabling the jury to believe that the child obtained her unusual vocabulary from being molested by someone other than him. The trial court allowed defense counsel to elicit testimony from the child that she learned this sexual vocabulary from a person other than Pope, but the court would not admit evidence that the child claimed this other person had also molested her.

We find no error. The trial court allowed Pope to elicit evidence showing that the child’s sexual vocabulary was attributable to conduct by someone other than him. Evidence that the child also claimed to have been molested by that person was not relevant for the purpose asserted by Pope. “Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than [the] accused, is inadmissible. Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986), aff’d 257 Ga. 54, 55 (354 SE2d 421) (1987).” Stancil v. State, 196 Ga. App. 530 (396 SE2d 299) (1990); Washington v. State, 225 Ga. App. 262, 263-264 (483 SE2d 683) (1997); compare Hall v. State, 196 Ga. App. 523, 525 (396 SE2d 271) (1990). (Such evidence may be admissible for a proper purpose.)

Pope’s additional argument on appeal that evidence of prior molestation was especially relevant in light of inconsistencies in the child’s testimony against Pope is without merit. Aside from the fact that this argument was not made in the trial court, the irrelevant evidence was not made relevant simply because there may have been some inconsistencies in the child’s testimony.

3. Pope contends the trial court erred by overruling his motion to exclude the statement he gave to the GBI agent admitting that he committed the acts of molestation.

Pope claims his in-custody statement was involuntary and inadmissible because it was induced by promises of leniency. See Johnson v. State, 238 Ga. 27, 28 (230 SE2d 849) (1976). At a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine whether the statement was voluntary, evidence showed that Pope gave the statement to the GBI agent after being advised of and waiving his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The GBI agent testified that no coercion, threats or promises of any kind were utilized to obtain the waiver of rights and the statement. Pope testified at the hearing that he gave the statement after being induced to do so by repeated promises of leniency.

The trial court found that Pope was informed of his rights, waived them, and freely and voluntarily gave the statement. In ruling that the in-custody statement given by Pope was voluntary, the trial court was required to ask whether, upon consideration of the totality of the circumstances, a preponderance of the evidence demonstrated that the statement was freely and voluntarily given. Connerly v. State, 207 Ga. App. 498, 499 (428 SE2d 408) (1993). Although the trial court’s application of the law to undisputed facts is subject to de novo appellate review, the court’s findings as to disputed factual matters and credibility will not be disturbed on appeal unless clearly erroneous. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). There was no error in admitting the statement.

4. There is no merit to Pope’s contention that the trial court erred in the manner in which it supplemented the record for appeal pursuant to OCGA § 5-6-41.

Portions of the trial transcript were incomplete due to a mechanical failure at trial. Because the parties were unable to agree as to what transpired in the trial court during the unrecorded portions of the trial, the trial court set the matter down for a hearing pursuant to OCGA § 5-6-41. The State submitted a proposal for reconstruction of the transcript from recollection. Defense counsel submitted no proposal stating that he could not recall what transpired. The trial court agreed with the State’s recollection and adopted it to supplement the transcript on appeal.

Decided October 22, 1997.

Gammon & Anderson, Joseph N. Anderson, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

“Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41.” (Citations and punctuation omitted.) Whitt v. State, 215 Ga. App. 704, 707 (452 SE2d 125) (1994). OCGA § 5-6-41 (g) provides that: “In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review. . . .” Id.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A1444.
    SOUTHEAST REDUCING COMPANY, INC. et al. v. WASSERMAN.
    (493 SE2d 201)
   Andrews, Chief Judge.

Norman Wasserman as lessor sued Southeast Reducing Company, Inc. (Southeast), James Mathews and Nancy Mathews as lessees alleging the defendants breached a commercial lease agreement. All three defendants filed answers denying liability and bringing counterclaims for breach of the lease and fraud. The trial court granted Wasserman’s motion for summary judgment on his complaint against all three defendants and on all the defendants’ counterclaims and entered judgment in favor of Wasserman in the amount of $55,571.70 for the amount due under the lease. All three defendants appeal.

In reviewing the trial court’s grant of Wasserman’s motion for summary judgment, we construe the evidence and all reasonable presumptions and inferences arising therefrom in favor of the non-movants. Jenkins v. Hall, 226 Ga. App. 437, 438 (487 SE2d 66) (1997).

In support of summary judgment, Wasserman produced a lease agreement under which he, as lessor, leased commercial space for use as a weight loss clinic. The lessees under this lease were Southeast (by James Mathews as president), James Mathews and Nancy Mathews. The lease term commenced on August 1, 1987, and ended on September 15, 1992. It provided for monthly rent in the amount of $1,915.52 and included a provision for the lessor to provide up to $41,000 to construct improvements to the premises. Wasserman stated by affidavit that the lessees breached this lease when they failed to make monthly rent payments in January, February and March 1991 and abandoned the premises without further payment of rent on March 3,1991. The affidavit calculated the total amount due under the terms of the lease through the September 15, 1992 expiration date as $55,571.70.

The defendants provided affidavits in response to the motion. James Mathews stated by affidavit that the lease relied upon by Wasserman and signed by all three defendants (the Wasserman lease) was voided by the parties after it was agreed that his wife, Nancy Mathews, would have no personal liability as a lessee. He stated that, after the Wasserman lease was voided, a second lease (the Mathews lease) was agreed upon and signed by Wasserman as lessor and by Southeast (by James Mathews as president) and James Mathews as lessees. The Mathews lease was produced in response to the motion and showed the same commencement date as the Wasser-man lease (August 1,1987), but a different expiration date of July 31, 1991. The Mathews lease also differed in that it provided for less monthly rent in the amount of $1,619.52 in addition to a provision that the lessor would provide up to $21,300 to construct improvements to the premises. He stated that the first month’s rent and a security deposit of one month’s rent, both in the amount of $1,619.52, were paid in accordance with the Mathews lease.

James Mathews further averred that after the Mathews lease was entered into, the parties agreed in October or November 1987 to increase the monthly rental to $1,915.52 (the same rental amount as the Wasserman lease), and that a third lease was entered into by the parties to reflect the change in the monthly rent. He purports to produce a single page from the third lease showing monthly rent due of $1,915.52. The page, except for initials at the bottom, appears identical to page 2 of the 11-page Wasserman lease. The rest of the alleged third lease, including evidence of all of its remaining terms and signatories, is nowhere to be found in the record. The affidavit also states that Wasserman failed to pay for improvements to the premises as agreed. Mr. Mathews admitted that the lessees vacated the premises in March 1991.

Nancy Mathews’ affidavit also states that the Wasserman lease which she signed was voided by all the parties. She also contends that the Wasserman lease was the first lease agreement and that it was superseded by a second lease agreement, the Mathews lease, to which she was not a party. However, contrary to James Mathews and Southeast, she makes no reference to a third lease and states that the Mathews lease “accurately reflects the relationship between all parties concerning the lease of the premises.”

Wasserman provided additional affidavits in response to these claims in which he explained that in August 1987, he initially signed the Mathews lease which was signed by lessees Southeast and James Mathews. He stated that a second lease agreement, the Wasserman lease, was subsequently negotiated by the lessees with him and executed in or about August 1987, by him and lessees Southeast and James and Nancy Mathews. He further stated that beginning with the October 1987 payment, the parties began operating under the Wasserman lease. He stated that he paid the sums due under the lease for improvements to the premises. The record also shows rent checks to Wasserman from the lessees from 1987 to 1991, reflecting payments for monthly rent in the amount due under the terms of the Wasserman lease.

1. James Mathews and Southeast claim that the applicable lease is not the Wasserman lease or the Mathews lease but a third lease which they failed to produce. It may be inferred from James Mathews’ affidavits that he claims this third lease retained an expiration date of July 31, 1991; that it was not signed by Nancy Mathews; and that it materially varied from the Mathews lease only in the increase of monthly rent from $1,619.52 to $1,915.52. We conclude, however, that the failure to produce the third lease or to explain its absence is fatal to any consideration of the evidence of it supplied by affidavit in opposition to summary judgment.

“In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” OCGA § 24-5-2. “If a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court.” OCGA § 24-5-21; see Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 534-535 (478 SE2d 601) (1996); OCGA § 24-5-4. James Mathews made no attempt to explain the absence of the claimed third lease or to show he exercised any diligence to find it. Accordingly, the evidence he presented in support of the claimed third lease was of no probative value in response to the motion.

In the absence of any probative evidence of the terms of the claimed third lease agreement, James Mathews’ testimony is contradictory. He claims that the Wasserman lease calling for monthly rent of $1,915.52 was voided and that the Mathews lease was agreed upon at a monthly rent of $1,619.52 with a term expiring on July 31, 1991. Yet he admits that after he paid a month’s rent at $1,619.52, he thereafter paid rent commencing in October 1987 at the rate of $1,915.52 per month, the amount set in the Wasserman lease, which had a term expiring on September 15, 1992. He attempts to explain why he could pay rent in the amount due under the Wasserman lease, but not be bound by it, by asserting the existence of a missing third lease which called for the same rent as the Wasserman lease. For the reasons previously stated, the third lease explanation is to no avail.

Under the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), we construe the unexplained contradictory testimony against James Mathews and Southeast. So construed, we find that the remaining evidence supports the conclusion that the Wasserman lease was the controlling lease under which James Mathews and Southeast were both lessees owing monthly rent of $1,915.52 with a term expiring on September 15, 1992. Moreover, we find Wasserman’s explanation as to the initial adoption of the Mathews lease followed by the subsequent adoption of the Wasser-man lease to be consistent with the evidence showing the actions of the parties. Accordingly, we conclude that no genuine issue of fact remains as to this issue. The trial court correctly granted summary judgment to the extent it found that James Mathews and Southeast were lessees under the Wasserman lease.

2. Nancy Mathews’ defense to liability under the Wasserman lease was that it was superseded by the Mathews lease to which she was not a party and which provided for monthly rent payments of $1,619.52. She made no claim that there was a third lease which superseded the Mathews lease. Although she made no contradictory statements to which the Prophecy Corp., supra, rule could apply, her affidavit provides no response to uncontradicted evidence from Was-serman, James Mathews and the rent checks from 1987 to 1991, showing that monthly rent was paid by the lessees to Wasserman in amounts in accordance with the terms of the Wasserman lease.

Wasserman had the burden as the movant for summary judgment to show that there was no genuine issue of material fact for trial. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). He established a prima facie right to judgment as a matter of law by producing sufficient evidence of the Wasserman lease signed by Nancy Mathews as a lessee. The burden then shifted to Nancy Mathews to establish an affirmative defense to the claim. Keene v. Herstam, 225 Ga. App. 115, 116 (483 SE2d 335) (1997). Her conclusory affidavit asserting that the Wasserman lease was voided and the Mathews lease controls is unsupported by substantiating fact or circumstances and flies in the face of uncontradicted evidence that the parties leased the premises under the terms of the Wasserman lease. “[A]n affidavit which is conclusory and is unsupported by substantiating fact or circumstances is insufficient to raise a genuine issue of material fact.” Id. at 117. “[I]n response to a summary judgment motion, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 319 (2) (a) (461 SE2d 282) (1995).

Nancy Mathews has failed to carry her burden in response to the evidence produced to show that there was a genuine issue of fact for trial. Accordingly, the trial court correctly granted summary judgment to the extent it found that Nancy Mathews was a lessee under the Wasserman lease.

3. There being no argument on appeal that the trial court erred in accepting Wasserman’s calculation of the amount due under the terms of the Wasserman lease, we also find the trial court correctly granted summary judgment in the amount of $55,571.70 against Southeast and James Mathews and Nancy Mathews.

4. James and Nancy Mathews and Southeast further contend that the trial court erred by granting summary judgment on their counterclaims against Wasserman in which they alleged that Was-serman defrauded them and breached the lease agreement by failing to make all the payments for improvements to the premises due under the lease.

We agree with the trial court that there is an absence of any evidence to support a fraud counterclaim against Wasserman. The trial court correctly granted summary judgment in favor of Wasserman on the counterclaims for fraud.

As to the counterclaims that Wasserman failed to make all the payments due for improvements to the premises, we again agree with the trial court that even if not all the improvements were paid for by Wasserman, the lessees have failed to show how they were damaged. It is undisputed that the lessees took possession of the premises, and there is no claim that they were delayed by any failure to make improvements. Having taken possession of the premises, the Wasserman lease provides that “[b]y taking possession thereof, Lessee shall be deemed to have accepted the Premises in their present condition and as suited for use by Lessee.” Moreover, even if there had been a failure to timely complete improvements, the lease further provides that “Lessor shall waive the payment of any rental until Lessor delivers possession to Lessee and Lessee hereby waives any claim for damages due to Lessor’s failure to so deliver the Premises.”

Decided October 8, 1997

Reconsideration denied October 22,1997

William E. Hicks, Robert M. Gardner, Jr., for appellants.

Friedman & Montalto, Jill A. Barker, for appellee.

The trial court properly granted summary judgment to Wasser-man as to these counterclaims.-

Judgment affirmed.

Birdsong, P. J, and Ruffin, J, concur.

       A previous grant of summary judgment to Wasserman was reversed in Southeast Reducing Co. v. Wasserman, 213 Ga. App. 763 (445 SE2d 859) (1994), for failure to allow the defendants, upon request, to oppose the motion by oral argument.

       Although the affidavit refers to abandonment on March 3, 1992, this appears to be a scrivener’s error. Other evidence produced by Wasserman clearly shows that the abandonment occurred on March 3,1991.


author: Eldridge, Judge.

text:
    A97A2195.
    THE STATE v. TEMPLEMAN.
    (492 SE2d 902)
   Eldridge, Judge.

The State challenges the trial court’s grant of defendant Ralph W. Templeman’s motion to suppress evidence. We affirm.

In this case, the evidence at the motion hearing showed the following: at approximately 10:15 p.m. on January 9, 1997, Templeman was driving eastbound on Cedar Street in Carrollton, Carroll County. At the same time, Officer Diamond was driving westbound on Cedar Street. When the officer arrived at the intersection of Cedar Street and Bankhead Highway, he stopped before making a left hand turn. Templeman was facing the intersection from the opposite direction, but the officer noticed that Templeman had stopped in the roadway approximately 25 to 50 feet before the intersection. The officer watched Templeman, who remained stopped for 45 to 60 seconds while facing a green traffic light. Officer Diamond testified that he became concerned that Templeman might be under the influence of alcohol, passed out behind the wheel, experiencing a medical problem, or otherwise impaired. However, as Officer Diamond moved slowly into the intersection, Templeman drove forward through the intersection and down the street. Officer Diamond testified that he then directed another police officer in the immediate area, Officer Saria, to stop Templeman.

Officer Saria testified that he pulled Templeman over upon Officer Diamond’s direction. When asked for his driver’s license, Templeman replied that he did not have a license and gave the officer an identification card. A computer check established that Tem-pleman was a habitual violator. Templeman was arrested and charged as a habitual violator under OCGA § 40-5-58 (c).

However, Templeman testified at the motion hearing that he stopped in the roadway just long enough to pick up his friend, Mark Alan Stack. Stack also testified at the hearing and stated that he had just left work and was walking home when he flagged down Tem-pleman, who stopped his car to let Stack get inside.

“It is well established that in a motion to suppress the trial judge sits as the trier of fact, and that holds true even when there is a conflict in the evidence presented. The credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and in the absence of evidence or record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress.” (Citations and punctuation omitted.) State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989); State v. Nichols, 196 Ga. App. 709 (397 SE2d 3) (1990); see also Anderson v. State, 267 Ga. 116 (475 SE2d 629) (1996); Tate v. State, 264 Ga. 53, 56, n. 5 (440 SE2d 646) (1994).

In determining whether or not evidence discovered as a result of a traffic stop should be suppressed, we note that “an officer may conduct a brief investigative stop of a vehicle only when such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Raulerson v. State, 223 Ga. App. 556, 557 (479 SE2d 386) (1996).

The trial court granted Templeman’s motion to suppress following a May 6, 1997 hearing, finding that there was an explanation for Templeman’s brief stop in the roadway and that the officers’ reasons for stopping Templeman were “a little bit thin” and “borderline.” The evidence supports the trial court’s observations. There is no indication that Templeman was actually violating a law when he briefly stopped in the roadway; he was not impeding traffic, although Officer Diamond claimed that he could not make his left hand turn until Templeman passed through the intersection. Templeman provided a logical explanation for stopping, which was corroborated by Stack. Although Officer Diamond testified that he was concerned about Templeman’s well-being at the time of the stop, such concerns should have been dispelled when Templeman proceeded to drive normally through the intersection and down the road, without further incident.

Under such circumstances, there was no error in the trial court’s finding that the stop by the police officers was unjustified and in the subsequent grant of Templeman’s motion to suppress. See State v. Holler, 224 Ga. App. 66 (479 SE2d 780) (1996); Raulerson, supra; Stretcher v. State, 213 Ga. App. 670 (445 SE2d 815) (1994).

Decided October 22, 1997.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellant.

Word & Simmons, Gerald P. Word, William K. Baldwin, for appellee.

Ralph W. Templeman, pro se.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A97A2215.
    FLEMISTER v. THE STATE.
    (492 SE2d 907)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single count of violating the Georgia Controlled Substances Act (selling cocaine). The evidence adduced at his jury trial revealed that Georgia State Patrol Trooper Shurron Green, then with the Coweta County Sheriff’s Department, used a confidential informant to make a controlled buy of crack cocaine in Troup County, Georgia. Trooper Green identified defendant as the seller. The chunky material received from defendant tested “positive for cocaine.”

Although defendant took the stand and denied selling cocaine in front of Trooper Green, the jury found him guilty as charged. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant enumerates the general grounds.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “In the case sub judice, the in-court identification of defendant as the seller ... is sufficient to authorize the jury’s finding that defendant is guilty beyond a reasonable doubt of selling crack cocaine as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rauls v. State, 209 Ga. App. 101, 102 (2) (432 SE2d 677).” Moreland v. State, 213 Ga. App. 75 (1) (443 SE2d 701).

2. Defendant further contends the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of counsel. He argues trial counsel was deficient in “failing to interview the prosecuting officer prior to trial; in failing to advise [defendant] how to testify on the witness stand; in failing to present a .material witness; in failing to obtain a continuance to locate a subpoenaed material witness for the defense; and in failing to offer . . . mitigating evidence or character evidence at sentencing.”

At the hearing on defendant’s motion, trial counsel defended his decision not to call the confidential informant, despite having had a subpoena issued, “because he [the informant] had given two different statements[, which] in [counsel’s] view, it hurt [his client’s case] more than it helped. . . Moreover, defendant’s trial counsel, in the case sub judice, had put up another witness who “could testify to essentially the same facts . . as the confidential informant, and whose testimony tended to impeach that of Trooper Green. Trial counsel also prepared defendant prior to defendant’s testifying on his own behalf. The reason trial counsel did not put up any character witnesses “is because he [defendant] had [a] previous cocaine possession.” Counsel did not interview Trooper Green before trial, but testified that he “tried to call him a number of times and . . . couldn’t get him.”

“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).

In the case sub judice, “[i]t is not necessary to address specifically and individually each and every one of [defendant’s] numerous instances of challenged trial tactics. It is sufficient to note that ‘strategic choices (made) after thorough investigation . . . are virtually unchallengeable.’ Strickland [v. Washington, 466 U. S. 668, 690 (104 SC 2052, 80 LE2d 674)]. [Cit.]” Stephens v. State, 265 Ga. 120, 121 (2), 122 (453 SE2d 443). ‘We have reviewed the transcript of that hearing (at which trial counsel testified) and find sufficient evidence to support the trial court’s conclusion that [defendant] failed to show ineffectiveness under the standards of Strickland v. Washington, [supra]. See also Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741) (1991).” Scott v. State, 263 Ga. 300 (2) (432 SE2d 107). This enumeration is without merit.

Judgment affirmed.

Beasley and Smith, JJ., concur.

Decided October 22, 1997.

Kenneth D. Teal, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.


text:
    A97A2357.
    McGHEE v. THE STATE.
    (492 SE2d 904)
   Eldridge, Judge.

Jonathan McGhee was indicted, along with two co-defendants, for the offenses of armed robbery and kidnapping. After the two co-defendants entered pleas of guilty in this case, McGhee was tried by a jury, which returned a verdict of guilty on the charge of armed robbery and guilty on the lesser included offense of false imprisonment. It is from this conviction that McGhee appeals. .

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that on August 18, 1996, the 16-year-old victim was washing a family member’s car at the Rainbow Car Wash, which is located on Rainbow Drive near its intersection with Candler Road. The victim was approached by four young black males, who were later identified as McGhee, Joshua Ellison and his brother Herbert Ellison, and another suspect known only as “Reggie.” McGhee, the Ellison brothers and “Reggie” had abandoned their car nearby in the Kroger parking lot because the car’s clutch had failed. Initially, one of the defendants asked the victim if he had any “weed” to sell. When the victim answered in the negative, the defendants continued to stand in a group within ten feet of the victim’s car for a couple of minutes making conversation with each other and the victim, who was bent down scrubbing the tires.

After a few minutes, Joshua Ellison came around to the passenger side of the car where the victim was bent over, pointed a gun at the victim so that the gun actually touched him, and ordered the victim to “get down.” Joshua Ellison then ordered the victim to give him the keys to the car. After the victim complied, Joshua Ellison tossed the keys to 13-year-old McGhee and told him to drive. Joshua Ellison then placed the victim into the back seat of the car at gunpoint.

McGhee drove the victim’s car, “Reggie” was in the front passenger seat, and Banks was seated between the Ellison brothers in the back seat. Joshua Ellison kept the gun on the victim during the entire time he was in the car. At some point while they were riding around, the victim, who was wearing a Polo shirt, jeans, polo socks, and Air Jordan tennis shoes, was ordered to take off his clothes and give them to McGhee. After forcing the victim to ride around for about 30 minutes, McGhee stopped the car. McGhee gave the victim his T-shirt and jogging pants and put on the victim’s clothes. Joshua Ellison got out of the vehicle, released the victim, and told the victim to run through the woods. McGhee waited for Joshua Ellison to get back into the car and drove off.

McGhee drove the car over to his mother’s house on Old National Highway to wish his sister a happy birthday. While McGhee went into his mother’s house, the Ellison brothers and “Reggie” waited in the car. After McGhee returned to the car, they continued onward to Joshua Ellison’s house. When they arrived there, McGhee gave the victim’s clothes to Joshua Ellison.

McGhee’s sole enumeration of error is that the evidence is insufficient to support his conviction on the charge of armed robbery. Specifically, McGhee argues that the State failed to meet the statutory burden of showing the elements of his intent to commit a theft and use of an offensive weapon. We disagree.

“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 the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). “Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime.” Ellis v. State, 211 Ga. App. 605, 607 (440 SE2d 235) (1994). “Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that [a] defendant is a party [to a crime]. However, criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. . . . [P]resence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (469 SE2d 214) (1996).

In this case, McGhee went to the crime scene with Joshua Ellison, Herbert Ellison, and “Reggie.” McGhee testified that he had a clear view of the gun when Joshua Ellison initially pulled the gun on the victim; that when he got into the car to drive, he knew that the victim was being placed in the car against his will at gunpoint and that the car was being stolen; that he got into the car voluntarily; that he drove the car; that he received and put on the victim’s clothes, which were taken at gunpoint; and that he was not frightened by what was happening. In addition, McGhee testified that Joshua Ellison had said prior to the actual armed robbery that Joshua was going to rob the victim because Joshua needed the car. In fact, McGhee testified that it was convenient for him that Joshua Ellison went ahead with the armed robbery because he needed a ride over to his mother’s house on Old National Highway, and that there was no question, even in his mind, that a kidnapping and armed robbery had occurred.

Decided October 22, 1997.

Carla J. Friend, for appellant.

J. Tom Morgan, District Attorney, Jeffrey H. Brickman, Robert M. Coker, Assistant District Attorneys, for appellee.

Further, the victim testified that, when they first got into the car, McGhee stated that because his cousin had been robbed the previous week “he [McGhee] [was] fixing to go around robbing everybody and he [McGhee] was going to take me [the victim] over there and let them deal with me.” The victim went on to testify that McGhee, the Ellison brothers, and “Reggie” did not seem upset or frightened; that they were smoking marijuana in the car and playing the radio loudly; that McGhee told Joshua Ellison to hit the victim with the gun; and that McGhee was the one who told him to take off his clothes.

The evidence, construed in a light most favorable to the verdict, was sufficient to permit the jury to find that McGhee either directly committed or was a party to the crime of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Tanksley v. State, 226 Ga. App. 505 (487 SE2d 98) (1997).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       McGhee had not been driving the car which was abandoned in the Kroger parking lot.


author: Beasley, Judge.

text:
    A97A1284.
    RIVERS v. THE STATE.
    (493 SE2d 2)
   Beasley, Judge.

Sixteen-year-old Jimmy Lee Rivers was tried and convicted of aggravated assault (OCGA § 16-5-21) and entering an automobile with intent to commit a theft or felony (OCGA § 16-8-18). A juvenile petition alleging delinquency was filed, but he petitioned the juvenile court “to transfer to superior court and demanded] trial by jury.” The court granted his request pursuant to OCGA § 15-11-39.

1. Rivers enumerates as error the juvenile court’s order of transfer, contending that the court should not have allowed him to waive a hearing in conformity with OCGA § 15-11-39.

The juvenile court transfer order has not been filed with this Court. Although the State attached a purported copy to its brief, we consider only the official record. Burks v. First Union Mtg. Corp., 209 Ga. App. 41, 42 (432 SE2d 822) (1993). “[A] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33) (1990); Hooten v. State, 212 Ga. App. 770, 775 (442 SE2d 836) (1994); Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994). Likewise, the purported evidence attached to Rivers’ brief is not considered as it is not a part of the record on appeal.

We do have the juvenile court transcript of the hearing on the motion for transfer and bond. The superior court record does show that the case was transferred from juvenile court and that after transfer and indictment, Rivers waived formal arraignment and entered a plea of not guilty, participated in a two-day trial, and filed a timely motion for new trial, all without objection to the transfer. The first mention of it is in a second motion for new trial filed more than 11 months after judgment. Rivers contends the juvenile court erred by transferring because the case was not amenable to transfer per the guidelines.

Failure to timely object to a transfer to superior court waives appellate review of this issue. Thompson v. State, 258 Ga. 816, 817 (1) (375 SE2d 219) (1989). Compare In the Interest of D. B., 187 Ga. App. 3 (2) (369 SE2d 498) (1988) (juvenile has no absolute right to transfer). An order transferring a case from juvenile to superior court pursuant to OCGA § 15-11-39 is a final order and directly appealable. J.T.M. v. State of Ga., 142 Ga. App. 635, 636 (1) (236 SE2d 764) (1977). Rivers did not file a notice of appeal within 30 days of that decision. OCGA § 5-6-38.

Moreover, the juvenile court record shows that Rivers, represented by counsel and with his mother present, sought the transfer, primarily to get a jury trial, after discussing the matter with his counsel and parents. The State did not object.

2. In his second and third enumerations, Rivers raises as error the denial of his motions for new trial. Rivers’ “Motion for Judgment or Acquittal Notwithstanding the Verdict, or in the Alternative A New Trial,” is treated as a motion for new trial because a judgment notwithstanding a verdict does not lie in a criminal case. State v. Bilal, 192 Ga. App. 185, 186 (384 SE2d 253) (1989); Rhyne v. State, 209 Ga. App. 548, 550 (1) (434 SE2d 76) (1993).

Rivers argues the motions should have been granted because “there was reasonable doubt as to Defendant’s guilt, the verdict from the jury is contrary to the weight of the evidence, and at the very least the evidence was sufficiently close to warrant a retrial.” In essence he contends the evidence was insufficient under Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979): “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Id.; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). Conviction eliminates presumption of innocence, and weight of the evidence and witness credibility are exclusively jury issues. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

The record supports the verdict and judgment. Rivers contends the evidence was insufficient to show he committed aggravated assault because it tends to show his 13-year-old cousin was the one who pointed a loaded gun at the victim, and because he abandoned the enterprise before the assault.

Early on May 23, 1995, Rivers and Frankie Brown, while at the home of Rivers’ father, planned and prepared to rob someone. Brown cut holes in one of Rivers’ pillowcases to use as a mask and gathered some of Rivers’ father’s clothes to use as a disguise; Rivers helped. They took a .38 caliber semi-automatic pistol belonging to Rivers’ father, which Rivers helped locate.

The two then walked around Madison until about 7:25 a.m., when one of them, wearing the disguise and a mask, approached the victim’s car at an ATM. He tapped on the passenger window with the gun and pointed the loaded gun at the victim. The victim sped away and later described the clothes that matched the disguise, which included a green and white striped shirt. The victim stated the perpetrator’s height as 5'8" to 5'10". It is undisputed that Rivers is approximately 5'8" tall and Brown was approximately 5'1" tall. A police officer who knew both boys saw the two at about 5:00 a.m. and Rivers was wearing a white and dark-colored striped shirt. The two boys were seen about 8:00 a.m. that morning breaking into a car and were arrested.

Brown and Rivers testified that Brown was the one who wore the disguise and assaulted the victim. OCGA § 16-2-20 provides that every person who intentionally aids or abets in the commission of a crime is a party thereto and may be charged with and convicted of the crime. “Conspiracy may be established by inference, as a deduction from acts and conduct establishing a common design to act together for the accomplishment of an unlawful purpose. [Cits.] Once that common design is shown by evidence tending to indicate that the individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates, would, in legal contemplation, be the act of each of them. [Cit.]” Greene v. State, 155 Ga. App. 222, 224-225 (270 SE2d 386) (1980); Harper v. State, 152 Ga. App. 689, 692 (3) (263 SE2d 547) (1979); Ford v. State, 163 Ga. App. 745, 746-747 (296 SE2d 85) (1982). In Ford, only one of three men pointed a gun at a police officer. The men who did not point the gun were equally guilty of aggravated assault where the evidence showed they acted in concert with the man who did. Id. at 746.

Decided October 7, 1997

Reconsideration denied October 23, 1997.

Mario S. Ninfo, for appellant.

Fredric D. Bright, District Attorney, Paul L. Groth, Assistant District Attorney, for appellee.

Rivers claims he abandoned the plan to rob someone by walking away just before Brown assaulted the victim, but Brown testified he told Rivers to cross the street to watch for cars, and Rivers admits he did so. Further, he admitted to the jury that he was a willing participant in the plan to rob someone at the ATM and participated in the preparation. The jury decides the factual issues. As for the car break-in, there is sufficient evidence that Rivers assisted with the crime.

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated assault and entering an automobile with intent to commit theft.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.