text:
    A92A0438.
    STANDARD GUARANTY INSURANCE COMPANY v. HULSEY et al.
    (420 SE2d 54)
   Carley, Presiding Judge.

The relevant facts in this declaratory judgment action are as follows: As the result of an automobile collision, appellee-defendant Olin Usher filed suit against appellee-defendant Ricky Hulsey. Hulsey answered and counterclaimed against Usher. Usher was purportedly afforded liability coverage under a policy issued by appellee-defendant Progressive Casualty Insurance Company (Progressive) and Hulsey was afforded uninsured motorist coverage under a policy issued by appellant-plaintiff Standard Guaranty Insurance Company (Standard). In its capacity as Hulsey’s uninsured motorist carrier, Standard was served with a copy of Hulsey’s counterclaim against Usher. However, Standard did not become a party to the action. The trial court eventually entered judgment in favor of Hulsey on his counterclaim against Usher. Concluding that Usher was an uninsured motorist despite his policy with Progressive, the trial court also entered judgment in favor of Hulsey against Standard. After Hulsey demanded uninsured motorist coverage, Standard successfully moved to set aside the judgment that had been entered against it, correctly asserting that it had not been a party to the action. Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803 (395 SE2d 282) (1990). Before denying Hulsey’s demand for uninsured motorist coverage, Standard had also filed the instant declaratory judgment action, seeking a declaration that it had no contractual obligation as Hulsey’s uninsured motorist carrier to satisfy the judgment entered against Usher. Usher failed to answer, Hulsey answered and counterclaimed for attorney’s fees, and Progressive answered and moved to dismiss. The trial court granted Progressive’s motion to dismiss and, after denying Standard’s motion to dismiss Hulsey’s counterclaim, awarded Hulsey attorney’s fees pursuant to OCGA § 33-7-15 (b.l). Standard appeals.

1. The grant of Progressive’s motion to dismiss Standard’s action for declaratory judgment is enumerated as error.

“ ‘The Declaratory Judgment Act of this State is not intended to be used to set aside, modify, or interpret judicial decrees or judgments of courts having jurisdiction of the subject matter and parties, but is to be used to obtain a declaration of rights not already adjudicated.’ [Cits.]” Peeples Indus. v. Parker Hannifin Corp., 189 Ga. App. 857, 859 (377 SE2d 691) (1989). Progressive urges that the grant of its motion to dismiss was proper because Standard is not using the instant declaratory judgment action to obtain a declaration of rights, but for the unauthorized purpose of collaterally attacking the original judgment of the trial court wherein Usher had been “deemed to be an uninsured motorist. . . .” Hulsey v. Standard Guar. Ins. Co., supra at 804.

This contention is clearly without merit. The original judgment of the trial court is not being collaterally attacked in the instant declaratory judgment action, because that original judgment has already been directly attacked and correctly set aside on the ground that the trial court lacked personal jurisdiction over Standard. Having successfully secured the setting aside of the original trial court’s judgment wherein Usher had been “deemed to be an uninsured motorist,” Standard now submits itself to the personal jurisdiction of the trial court and seeks a declaration that it is not contractually obligated to pay the judgment secured by Hulsey. As this court clearly held in affirming the setting aside of the original judgment, “. . . Hulsey will have to assert his rights under his insurance contract with Standard in another action.” (Emphasis supplied.) Hulsey v. Standard Guar. Ins. Co., supra at 804. Accordingly, “another action” was contemplated and the validity of the trial court’s grant of Progressive’s motion to dismiss is dependent upon whether the instant declaratory judgment action constitutes “another action” in which the issue of Hulsey’s contractual rights under his policy with Standard can properly be determined.

Declaratory judgment will not be rendered based on a possible or probable contingency. City of Nashville v. Snow, 204 Ga. 371, 377 (1) (49 SE2d 808) (1948). A claim for uninsured motorist benefits is contingent upon the claimant’s securing a judgment against the alleged tortfeasor. Nevertheless, there is authority for the proposition that a separate declaratory judgment action can be maintained where it is instituted by the insurer before judgment has been obtained against the tortfeasor. Knight v. Ga. Farm &c. Ins. Co., 184 Ga. App. 312, 315 (3) (361 SE2d 190) (1987). However, there is clear authority for the proposition' that a separate declaratory judgment action cannot be maintained where, as here, it is instituted by the insurer only after judgment has been obtained against the tortfeasor. It has been held that, under such circumstances, no claim for declaratory relief is stated and the insurer must wait until suit on the policy is initiated against it by the claimant. “[A] judgment has been obtained against an insurer’s putative insured, and the insure [r] now seeks a declaratory judgment that it is not liable under the policy. All rights have accrued; the [insurer] is either liable under the terms of its polic[y] for the judgment entered against [the tortfeasor] or it is not. The [insurer] faces no risk of taking future undirected action; its defenses can be presented when suit is entered by the [claimant]. [Cit.]” Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 744-745 (2) (256 SE2d 108) (1979). “[S]uit looms against the insurer itself and its own defenses to liability can be presented without jeopardy when suit is entered by the claimant. (Cit.) Under these circumstances, there being no uncertainty or insecurity with regard to the propriety of some future act or conduct, declaratory relief will not lie. (Cit.). . .’ [Cit.]” (Emphasis in original.) Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16, 18-19 (1) (276 SE2d 78) (1981).

It appears, however, that Shield Ins. Co., Baron and other similar decisions have been overruled sub silentio by the recent opinion of the Supreme Court in Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17-18 (413 SE2d 450) (1992): “The declaratory judgment statute is construed liberally. . . . Thus, when a claim for insurance has been made, and a legitimate question exists as to the propriety of denying coverage, the insurance company may file a declaratory judgment action before denying the claim. It is not necessary for the insurance company to wait for the insured to file a lawsuit against it.” (Emphasis supplied.) In construing the declaratory judgment statute liberally, the Supreme Court did not recognize any exception for those cases involving post-judgment demands for coverage, nor did it limit its holding to those cases involving pre-judgment dernands for coverage. Accordingly, although the dismissal of Standard’s instant declaratory judgment action may have been correct under Shield Ins. Co. and Baron at the time the trial court ruled, that dismissal has been rendered erroneous by the Supreme Court’s subsequent decision in Atlanta Cas. Co. v. Fountain, supra. Since no vested rights are affected by the Supreme Court’s apparent holding that a declaratory judgment action is procedurally available to an insurer seeking resolution of the validity of a claimant’s post-judgment demand for uninsured motorist benefits, we are constrained to hold that the dismissal of Standard’s instant declaratory judgment action must be reversed. See generally Foster v. Bowen, 253 Ga. 33 (315 SE2d 656) (1984). “In this case, the record demonstrates (1) that a demand for payment under the policy had been made; (2) that [Standard] had not yet acted to deny the claim; (3) that legitimate questions existed as to the [existence of coverage]; and (4) that existing Georgia law did not provide a clear answer. We conclude that [Standard] adequately demonstrated a need for a legal judgment that would control its future action. A declaratory judgment action was therefore appropriate.” Atlanta Cas. Co. v. Fountain, supra at 18.

2. Standard enumerates as error the denial of its motion to dismiss Hulsey’s counterclaim and the trial court’s award of attorney’s fees to Hulsey pursuant to OCGA § 33-7-15 (b.l).

“In the event the insurer denies coverage and it is determined by declaratory judgment or other civil process that there is in fact coverage, the insurer shall be liable to the insured for legal cost and attorney’s fees as may be awarded by the court.” (Emphasis supplied.) OCGA § 33-7-15 (b.l). In the instant case, Standard has not denied coverage to Hulsey and there has been no determination that coverage for Hulsey in fact exists. Before denying Hulsey’s demand for coverage, Standard brought the instant declaratory judgment action to determine whether it could validly deny that demand and neither the instant action nor any other civil action has ultimately determined that Standard does not have the right to deny coverage. See Atlanta Cas. Co. v. Fountain, supra.

Moreover, if Standard had denied coverage, Hulsey would still have no viable claim for attorney’s fees pursuant to OCGA § 33-7-15 (b.l). A “recovery of attorneyf’s] fees under OCGA § 33-7-15 (b.l) is limited to those situations involving non-cooperation by an insured with his insurance company. [Cit.]” Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 777 (2) (406 SE2d 121) (1991). “[Although the language of subsection (b.l) does not expressly limit recovery of attorney's] fees only to situations of non-cooperation by the insured, placement of the subsection in the context of OCGA § 33-7-15 leads to the conclusion that the legislature did intend to so limit the application of the subsection.” Hall v. Canal Ins. Co., 195 Ga. App. 16, 17 (392 SE2d 340) (1990). Since the instant declaratory judgment action is not predicated upon Hulsey’s failure to cooperate with Standard, a recovery of attorney’s fees pursuant to OCGA § 33-7-15 (b.l) would not be authorized.

It follows that the trial court erred in its holding that OCGA § 33-7-15 (b.l) has any applicability under the circumstances existing in the instant case and that the denial of Standard’s motion to dismiss Hulsey’s counterclaim and the grant of attorney’s fees in favor of Hulsey must be reversed.

Judgment reversed.

Pope and Johnson, JJ., concur.

Decided June 8, 1992.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for appellant.

Ronald L. Hilley, Murray & Temple, William D. Strickland, for appellees.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A0597.
    CHANDLER v. THE STATE.
    (419 SE2d 751)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant moved for a new trial on the ground that he had been denied the benefit of effective trial counsel. A hearing was held, wherein appellant’s trial counsel testified. After the hearing, the trial court denied appellant’s motion and this ruling is enumerated as error.

Appellant urges that his trial counsel did not have adequate time to prepare and was ineffective because he did not move for a continuance on that ground. However, appellant’s trial counsel specifically testified to the extent of his preparation for trial and was unable to suggest anything more that he would have done had he been given more time. Any trial counsel would naturally desire more time for preparation, but it obviously is not ineffective for counsel to fail to request a continuance for delay only.

Appellant further urges that his trial counsel was ineffective because a certain individual was not called as a witness for the defense. It appears, however, that appellant’s trial counsel was not apprised of this potential defense witness. In any event, there is no contention that the individual would have given any testimony which was not merely cumulative of that given by the defense witnesses who were called by appellant’s trial counsel. Pilcher v. State, 170 Ga. App. 869, 871 (4) (318 SE2d 640) (1984).

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Warren v. State, 197 App. 23, 24 (1) (397 SE2d 484) (1990).

“Moreover, [appellant] fails to prove that these alleged deficiencies . . . prejudiced his defense. When a defendant asserts a claim of ineffective assistance, the test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. [Cits.] [Appellant] fails to show that there is a reasonable probability that the jury would have found [him not guilty] but for the inadequate performance of his attorney.” Gross v. State, 262 Ga. 232, 233 (416 SE2d 284) (1992).

2. Appellant’s enumeration of the general grounds is without merit. Construed most favorably for the State, the evidence was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. A purported violation by the trial court of the mandate of OCGA § 17-8-57 was not preserved for appellate review. State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978); Turnbow v. State, 153 Ga. App. 479 (1) (265 SE2d 832) (1980).

4. The trial court did not abuse its discretion in allowing a police officer to testify as an expert in the area of criminal distribution of cocaine. Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991).

5. The trial court did not err in admitting into evidence appellant’s prior conviction for possession of cocaine with intent to distribute. The facts surrounding appellant’s commission of the prior offense were remarkably similar to those surrounding his alleged commission of the instant offense and proof of the former was relevant to establish his intent to commit the latter. Hill v. State, 176 Ga. App. 509, 510 (1, 2) (336 SE2d 276) (1985).

6. The trial court’s refusal to give a requested charge relating to circumstantial evidence is enumerated as error.

“[W]here the [S]tate’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). However, the State’s case against appellant depends entirely upon direct evidence and in no part upon circumstantial evidence. “It is well established that a requested charge need, not be given unless it embraces a correct and complete principle of law, [cit.], is not argumentative, [cit.], and is adjusted to the facts. [Citi]” Powell v. State, 192 Ga. App. 688, 689 (2) (385 SE2d 772) (1989). Assuming that appellant’s refused request was correct and complete and was not argumentative, it was not adjusted to the facts. “[W]hen a requested charge deals with a matter not in issue, it is not error for a trial court to deny the request. [Cit.]” Jones v. State, 171 Ga. App. 184, 187-188 (6a) (319 SE2d 18) (1984).

7. Because the instant conviction was appellant’s second for possession of cocaine with intent to distribute, he was sentenced to life. OCGA § 16-13-30 (d). However, the trial court subsequently ordered the sentence reduced to 20 years “in exchange for [appellant’s] waiving all rights to appeal. ...” When, notwithstanding his agreement, appellant nevertheless pursued the instant appeal, the trial court vacated its sentence-reduction order. On appeal, appellant urges that the sentence-reduction order was erroneously vacated.

Decided June 8, 1992.

Mark V. Clark, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William C. Akins, Rebecca A. Keel, Assistant District Attorneys, for appellee.

A trial court’s authority to reduce a sentence subsequent to the imposition thereof derives from OCGA § 17-10-1 (a): Within “the term of court, or 60 days from the date on which the sentence was imposed by the judge, whichever time is greater, he shall have . . . [the] authority to suspend, probate, modify, or change the sentence of the defendant. . . .” By its terms, however, OCGA § 17-10-1 (a) does not apply in the case where, as here, a life sentence is statutorily mandated. Moran v. State, 170 Ga. App. 837, 842 (3) (318 SE2d 716) (1984). Accordingly, the trial court had no authority to reduce appellant’s life sentence to 20 years and appellant has no cause for complaint that the trial court vacated the void sentence-reduction order. Moreover, appellant is himself responsible for the vacation of that void order. The express consideration therefor was the waiver of appellant’s appeal, but appellant has nevertheless pursued and secured an appellate review on the merits. No reversible error having occurred, appellant must serve the life sentence that is statutorily mandated for his crime.

Judgment affirmed.

Sognier, C. J., and Pope, J., concur. Johnson, J., disqualified.


text:
    A92A0619.
    CRAWFORD v. THE STATE.
    (419 SE2d 754)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of two counts of selling cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The evidence adduced by the State was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The evidence showed that, after negotiating the sales, appellant left and then returned with the cocaine. Over appellant’s objection, an officer testified that, in his experience, it was not unusual for drug sales to be transacted in this manner. According to the officer, “[i]t’s commonly practiced. . . . [A]n experienced drug dealer never keeps the drugs on his person.” There was no error in allowing the officer to give this testimony. Pittman v. State, 172 Ga. App. 22, 24 (3) (322 SE2d 71) (1984).

Decided June 8, 1992.

Hagler, Hyles & Cain, Richard C. Hagler, for appellant.

Douglas C. Pullen, District Attorney, Kim B. Hoffman, Assistant District Attorney, for appellee.

3. During direct examination, another witness for the State was asked why confidential informants were generally used in drug cases. When the witness began to respond, appellant objected. The trial court sustained appellant’s objection to the witness’ response, but allowed counsel for the State to pursue the topic of the use of a confidential informant in the instant case. Obviously, appellant has no cause for complaint that his objection to the witness’ original response was sustained and that the State was then allowed to adduce evidence relating to the specific drug sales that he had allegedly made.

4. During his closing argument, counsel for the State referred to appellant as a drug dealer. This reference prompted a motion for mistrial which appellant urges was erroneously denied. There was, however, no error in denying the motion. Hogans v. State, 251 Ga. 242, 243 (3) (304 SE2d 699) (1983).

5. Appellant had a prior conviction for selling cocaine. The State gave appellant timely pre-trial notice of its intent to rely upon that prior conviction in aggravation of his sentence for the instant offense. Anderson v. State, 199 Ga. App. 559, 560 (3) (405 SE2d 558) (1991). Compare State v. Freeman, 198 Ga. App. 553, 556 (3) (402 SE2d 529) (1991). Accordingly, the trial court correctly imposed a life sentence upon appellant pursuant to OCGA § 16-13-30 (d). See Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988); Dean v. State, 200 Ga. App. 752, 753 (2) (409 SE2d 667) (1991). Appellant’s remaining contentions regarding the construction and constitutionality of OCGA § 16-13-30 (d) have been considered and found to be without merit.

6. Prior to trial, the State voluntarily disclosed to appellant the identity of the confidential informant who had allegedly purchased the drugs. Appellant urges that the trial court erred in failing to conduct, on its own motion, a hearing to determine whether the State should disclose the identity of another confidential informant who had allegedly witnessed the sales. There is no merit in this contention. Roberson v. State, 195 Ga. App. 379 (1) (393 SE2d 516) (1990).

Judgments affirmed.

Pope and Johnson, JJ., concur.


author: Beasley, Judge.

text:
    A92A0672.
    SHEARSON AMERICAN EXPRESS v. LEWIS et al.
    (420 SE2d 57)
   Beasley, Judge.

Defendant Shearson American Express d/b/a Robinson - Humphrey appeals from a judgment of the trial court granting plaintiffs’ “motion for judgment upon arbitration award,” and awarding judgment for $27,895.67 plus interest and court costs, to be set off by a sum previously paid to plaintiffs, as explained below.

The complex procedural history of this case is as follows. In 1980, plaintiffs (husband and wife) opened an account and signed a customer agreement form with defendant securities dealer for the purpose of investing certain funds they had received as proceeds from a personal injury lawsuit. In 1981, plaintiffs authorized defendant to purchase on their behalf $20,000 worth of shares in a gas and oil lease partnership known as Petro-Lewis 81-5. In 1984, the limited partnership became financially insolvent and plaintiffs lost their entire $20,000 investment. In 1986, they filed the present complaint in superior court, seeking $20,000 for breach of contract and damages under OCGA § 13-6-11. The complaint alleged plaintiffs were unsophisticated investors with limited education, that their goals were to keep their money in safe, nonspeculative investments, and that defendant “convinced” them to transfer funds into Petro-Lewis 81-5, representing the investment to be safe and secure, “with little, if-any risk,” when it knew that it was in serious financial difficulty.

In July 1988, a “stipulation and consent order” was entered in the action, expressing the parties’ “desire to arbitrate.” It was stipulated that plaintiffs would submit their claims for arbitration to the Board of Arbitration of the National Association of Securities Dealers (NASD), pursuant to an arbitration provision of their 1979 customer agreement, and that the state court litigation would be stayed pending the outcome of those proceedings.

Meanwhile, in January 1985, a putative class action suit was brought in federal court on behalf of investors who had purchased interests in the Petro-Lewis limited partnership, alleging violations of the Securities Exchange Act of 1934, the Securities Act of 1933, negligence and breach of contract.

In September 1988, the federal court certified a class of plaintiffs but specifically excluded from the class those individuals who had signed customer agreements containing arbitration clauses. Following discussions in late 1989 regarding a global settlement of the federal class actions, an agreement was reached providing for the settlement of all claims of all individuals who had purchased interests in the Petro-Lewis partnerships, including those who had signed arbitration agreements. Pursuant thereto, the federal court certified a new class of plaintiffs which included those who had signed arbitration agreements.

On April 4, 1990, a notice was sent to all potential class members, including plaintiffs, advising that if settlement was approved by the federal court, judgment would be entered dismissing the suits with prejudice and all class members who had not requested exclusion from the class would be deemed to have released the broker-dealer defendants and Petro-Lewis from any claim arising from the litigation “in any other court or forum whatsoever.” It further provided that “those individuals who had signed agreements . . . which contained arbitration provisions are considered class members for the purpose of this settlement. . . . [and] unless you elect to exclude yourself from the class, you will have waived any right to arbitrate your claims. . . . Only members of the class who have not requested exclusion therefrom will be entitled to receive any proceeds of the proposed settlement. If you are a member of the class described above and wish to remain a class member, you need not respond to this notice. You will be treated as one of the class members in these actions and will be entitled to share in the proposed settlement. If you do not wish to be bound by the proposed settlement, you must request to be excluded from the class. . . . The request must be in writing. . . . [Those requesting exclusion] will not receive a check representing your share of the net settlement fund.” By order dated May 23, 1990, the federal court approved the settlement, specifically providing that all class members who had not requested exclusion are “permanently barred and enjoined from asserting any of the released claims in any court or forum whatsoever.”

Plaintiffs initiated arbitration proceedings in August 1990, and on March 12, 1991, a hearing was held before the NASD arbitrator. Defendant claims that it proceeded to arbitration based on representations by plaintiffs that they had opted out of the federal class action to pursue their private cause of action. However, prior to the commencement of the NASD hearing, counsel for defendant moved to dismiss the arbitration based on newly acquired information that plaintiffs had received and negotiated a settlement check from the Petro-Lewis class action (in the amount of $784.34). In denying the motion to dismiss, the arbitrator acknowledged defendant had “proved that the Lewises had received and cashed the check,” but he stated further: “I’m still not convinced that they understood exactly what the check was and that they understood the ramifications of their action.” The arbitrator awarded plaintiffs $28,680.01, including attorney fees.

Plaintiffs moved the superior court to affirm the arbitration award, and defendant filed an opposite motion to vacate the award on the basis that as members of the class action plaintiffs were barred by the federal judgment from pursuing their claims in the arbitration proceeding. Defendant simultaneously moved the district court for an order to enforce its judgment in the event the arbitration award was confirmed by the superior court.

Two conflicting orders followed. On July 2, 1991, the superior court entered judgment affirming the arbitration award with direction that it be set-off by the $784.34 “erroneously” paid to plaintiffs in settlement of the class action suit, on the basis that the agreement to arbitrate and the litigation pending before it estopped defendant from asserting any claim or defense under the class action. It further determined that defendant’s “class action defense” was frivolous and without substantial justification so as to authorize an award of attorney fees pursuant to OCGA § 9-15-14 upon subsequent proof of costs incurred.

On August 8, 1991, the federal court entered an order granting defendant’s motion to enforce the federal settlement, enjoining plaintiffs from “attempting] to enforce the arbitration award which was confirmed by the Superior Court of Fulton County.” An appeal of that order is presently pending before the United States Court of Appeals for the Eleventh Circuit.

The first question is whether the Lewises are bound by the class action: That issue is within the jurisdiction of the federal court and pends imminent decision by the federal court of appeals. If they are parties to the federal class action, then the issue is whether the Lewises can still enforce the arbitration provision of their customer agreement.

If we were to affirm the superior court’s judgment affirming the arbitration award and additionally awarding attorney fees, and the federal court of appeals were to later affirm the injunction against enforcement of the arbitration award, an intolerable inconsistency would result in which the Lewises would be subject to federal contempt for enforcing a valid state judgment. If, on the other hand, we were to reverse the superior court’s judgment on the basis that we agreed that the Lewises were bound by the class action, and subsequently the federal appellate court were to reverse and cause the injunction to be vacated or dissolved, then the Lewises would be left with no remedy or mechanism for resolving their dispute with the securities dealer.

Consequently, since the first and controlling question will be resolved in the federal appeal, this appeal is dismissed and the case is remanded to the superior court with direction to vacate its judgment until the time of a final decision in the federal litigation. Then it may reenter its judgment and the opportunity for a timely appeal from it will be presented. See Bergen v. Martindale-Hubbell, 245 Ga. 742 (267 SE2d 10) (1980).

Decided June 8, 1992.

Peterson, Dillard, Young, Self & Asselin, David C. Jensen, Lynda G. Wilson, Andrea C. Jones, for appellant.

Jerry B. Hatcher, for appellees.

Appeal dismissed with direction.

Birdsong, P. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A92A0734.
    GEORGIA SUBSEQUENT INJURY TRUST FUND v. BROCKWAY STANDARD et al.
    (419 SE2d 755)
   Cooper, Judge.

This appeal marks the second appearance of this case before this court. Appellant contends that the superior court erred in reversing the decision of the full board which found that the employer/insurer, appellees herein, had not established a merger of claimant’s injuries under OCGA § 34-9-351 (1).

The facts are fully set out in the first case, Brockway Standard v. Harper, 200 Ga. App. 250 (407 SE2d 475) (1991). However, briefly stated, claimant injured her lower back in 1982 while in the course of her employment. Claimant required surgery but was able to return to work. In 1987, claimant suffered another work related injury to another part of her back. She again had surgery, but because of a recurring pain in her neck and arm, she was unable to return to work. Subsequently, a hearing was held to determine if there had been a merger of claimant’s injuries under OCGA § 34-9-351 (1). The ALJ and then the full board concluded that no merger had occurred. In Brockway, we held that the full board erred in concluding that in order to prove merger under OCGA § 34-9-351 (1), the requirements of subsection (A) had to be established as a condition precedent to determining the existence of merger under subsection (B) and in failing to consider subsection (B). We remanded the case to the board for consideration of whether merger was proved under subsection (B) which provides that merger occurs when “[t]he disability resulting from the subsequent injury in conjunction with the preexisting permanent impairment is materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present. . . .” OCGA § 34-9-351 (1) (B). On remand, the full board found that the employer/insurer had failed to prove merger under subsection (A) or (B), and specifically found that the employer/insurer had failed to show that the claimant’s subsequent injury, in conjunction with her preexisting permanent impairment was materially, substantially, and cumulatively greater than that which would have resulted had the preexisting impairment not been present. The superior court reversed the full board, and we granted this discretionary appeal to determine whether the superior court erred in reversing the full board’s decision.

Appellant contends in its first enumeration of error that the superior court erred in not applying the “any evidence” standard, and in its second enumeration of error, appellant argues that there was no evidence of merger under OCGA § 34-9-351 (1) (B). “The standard of review of decision by the Board of Workers’ Compensation is the ‘any evidence’ standard, and ‘a finding of fact by . . . the State Board . . . , when supported by any evidence, is conclusive and binding upon the (superior) court.’ [Cit.]” Harden v. Southeastern Meat Co., 196 Ga. App. 22 (1) (395 SE2d 273) (1990). The record includes the depositions of Drs. Wade Renn and Gerald Kadis. Dr. Renn treated claimant following her 1982 and 1987 injuries and testified that claimant had a disability rating of 15 percent as a result of her first injury and a 20 percent disability following her second injury; and that in rating claimant’s body as a whole, claimant’s total disability rating would be greater than either of the disability ratings given claimant following the 1982 and 1987 injuries. Dr. Kadis testified that claimant was referred to him by Dr. Renn subsequent to claimant’s second injury; that the 1982 and 1987 injuries appeared to be separate; that the first injury resulted in an impairment separate from the impairment associated with the second injury; but that the total impairment to the body as a whole is greater than it was before claimant’s second injury. Both Drs. Renn and Kadis were sent a questionnaire by a specialist with the Subsequent Injury Trust Fund in which they were asked to respond to the following question: “Would the effect of the disability that resulted from the . . . 1987 injury . . . have been the same regardless of the prior impairment?” Dr. Renn responded in the negative, indicating that in his opinion, the second injury would have more permanent impairment as a result of the 1982 injury. Dr. Kadis responded: “Yes, I believe so.” The superior court found that the full board’s reliance on Dr. Kadis’ response to that question was in error because the question did not relate to the issue of merger under OCGA § 34-9-351 (1) (B) but related only to the disability resulting from the second injury. The superior court further found that both Drs. Renn and Kadis testified that the disability from both injuries together is greater than the disability resulting from either injury separately. “The focus of OCGA § 34-9-351 (1) (B) is not merely the cumulative effect of the injuries but requires that the disability resulting from the subsequent and preexisting injuries be ‘materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present.’ [Cit.] ” JPS Carpets v. Troupe, 203 Ga. App. 602, 604 (417 SE2d 333) (1992). The full board found that appellees had not shown that the 1987 injuries in conjunction with the 1982 injury were materially, substantially, and cumulatively greater than that which would have resulted had the preexisting impairment not been present. “The full [b]oard, the same as the ALJ, is a finder of fact. Each is entitled to make independent findings of fact and conclusions of law even though the facts are the same but the conclusions different. A finding of fact made by the full [b]oard when supported by any evidence, is conclusive and binding upon the superior court as well as this court. Neither we nor the superior court have any authority to set aside an award based on supported findings of fact merely because we might disagree with the conclusions reached therein. [Cits.]” Subsequent Injury Trust Fund of Ga. v. Harbin Homes, 182 Ga. App. 316, 318 (355 SE2d 702) (1987). Upon review of the record, we find that there is some evidence from which the board could have based its conclusion that appellee did not establish merger under OCGA § 34-9-351 (1) (B). “Thus, neither we nor the superior court are at liberty to conclude that there was no evidence to support the ultimate award of the full [b]oard.” Id. Accordingly, we reverse the order of the superior court, thereby sustaining the award of the full board.

Decided June 8, 1992.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, K. Prabhaker Reddy, Staff Attorney, Andrew, Threlkeld & Thompson, Richard S. Thompson, for appellant.

George T. Talley, Willis H. Blacknall III, for appellees.

Judgment reversed.

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


text:
    A92A0546.
    ADDINGTON v. ANNEEWAKEE, INC.
    (420 SE2d 60)
   Carley, Presiding Judge.

After appellant-plaintiff failed to appear at a scheduled deposition, appellee-defendant moved for sanctions. The trial court granted appellee’s motion and dismissed appellant’s complaint, finding that appellant had “wilfully failed to appear at depositions and to participate in the discovery process.” Appellant appeals from this order.

OCGA § 9-11-37 (d) (1) provides, in part, that, if a “party fails to appear before the officer who is to take his deposition, after being served with a proper notice . . . , the court in which the action is pending on motion may . . . take any action authorized under [OCGA § 9-11-37] (b) (2) (A) through (b) (2) (C)----” OCGA § 9-11-37 (d) “authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories.” Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448) (1972). “Proper notice” of deposition may be made by serving a party’s attorney of record, and does not require actual notice to the party himself. OCGA § 9-11-5 (b); Carter v. Merrill Lynch &c., 130 Ga. App. 522, 523 (2) (203 SE2d 766) (1974). In the instant case, the trial court was authorized to find that “proper notice” had been served on counsel and that appellant’s “[f]ailure to maintain contact and cooperate with [his] counsel about the pending litigation so that discovery can be made [was] wilful misconduct.” [Cits.] Phillips v. Peachtree Housing, 138 Ga. App. 596-597 (3) (226 SE2d 616) (1976). See also Swindell v. Swindell, 233 Ga. 854, 857 (3) (213 SE2d 697) (1975). “The result is the same even though the party may claim that it was counsel who failed to communicate with him. [Cit.] ‘[A party] may authorize his attorney to act for him but he cannot transfer his responsibility to act.’ [Cit.]” (Emphasis in original.) Thurman v. Unicure, Inc., 151 Ga. App. 880, 882 (2) (261 SE2d 785) (1979).

“ ‘This court has repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion. (Cits.)’ [Cit.]” Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) (306 SE2d 362) (1983). “The trial [court] is the trier of fact and [its] finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.” Wetherington v. Koepenick & Horne, 153 Ga. App. 302, 304 (2) (265 SE2d 107) (1980). “There was . . . some evidence upon which the trial court’s finding [of wilfulness] was based, and it did not abuse its discretion in [dismissing the complaint for appellant’s wilful failure to attend a scheduled deposition].” Swindell v. Swindell, supra at 857 (3). “Nor is it significant that prior to the hearing on the motion to dismiss [appellant’s complaint his] deposition was [in fact] taken. . . . This court previously has held that [responses made to discovery requests only] after the propounder had filed a motion seeking the sanction of dismissal [will] not nullify the motion. [Cits.]” Rucker v. Blakey, 157 Ga. App. 615, 616 (278 SE2d 158) (1981). See also Merrill Lynch, &c. v. Echols, 138 Ga. App. 593, 594-595 (2) (226 SE2d 742) (1976).

Judgment affirmed,

Pope and Johnson, JJ., concur.

Decided June 9, 1992.

Sumner & Hewes, William E. Sumner, David A. Webster, for appellant.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, Long, Aldridge & Norman, Phillip A. Bradley, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Kevin B. Buice, Mozley, Finlayson & Loggins, William D. Harrison, for appellee.


text:
    A92A0730.
    BROWN v. THE STATE.
    (420 SE2d 61)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of obstruction of a correctional officer. He appeals from the denial of his motion for new trial.

The incident occurred in the exercise yard of the correctional facility. Appellant testified in his own defense and, during his direct examination, he was asked whether he used the exercise yard “every single day?” Appellant responded: “Most of the time when I’m able to go[,] if I’m not on cell restriction or something like that for violating the rules or something.” (Emphasis supplied.) On cross-examination, the State was allowed to make limited inquiry as to the specifics of those instances wherein appellant had violated the rules of the correctional facility. On appeal, appellant urges that, in so doing, the State impermissibly placed his character into evidence. However, this contention is without merit. The State was merely pursuing the specifics of a topic that appellant had introduced in his testimony on direct examination. Jones v. State, 257 Ga. 753, 759 (1b) (363 SE2d 529) (1988); Mitchell v. State, 193 Ga. App. 214, 215 (2) (387 SE2d 425) (1989). Here, as in Lockett v. State, 188 Ga. App. 645 (3) (373 SE2d 768) (1988), it was appellant himself who first introduced the general topic of his disciplinary history at the correctional facility. “ ‘(I)t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. (Cit.)’ [Cits.]” Lockett v. State, supra at 646 (3). The record demonstrates that, if the trial court erred, it was in limiting the State’s pursuit of the topic of appellant’s disciplinary history, not in allowing the State to make limited inquiry into that topic.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Decided June 9, 1992.

Dubberly & McGovern, B. Daniel Dubberly III, for appellant.

Dupont K. Cheney, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.


text:
    A92A0513.
    PAIGE et al. v. JURGENSEN et al.
    (419 SE2d 722)
   Beasley, Judge.

In consideration for sale of stock owned by the appellees Jurgensen and Auer in a restaurant business, the appellants Paige and Beam entered into a written agreement to indemnify, release and hold harmless the sellers from any and all claims on a note and guaranty in the original principal amount of $61,350 and other costs resulting from default on the note. The buyers began operating the restaurant, the note went into default, and appellees were called upon to pay off their pro rata share. They were unsuccessful in obtaining indemnification from the buyers, so they sued to enforce the agreement.

Appellants raised as defenses failure of consideration, fraudulent inducement to enter into the agreement, non-fulfillment of a condition precedent, and ineffective sale because there had been no delivery or transfer of the stock certificates. Appellees moved for summary judgment, contending that the agreement entered into by the parties was clear, complete, unambiguous, and based upon good and sufficient consideration; and that when the appellants allowed the note to go into default the appellees had paid it off, thereby complying with all conditions precedent to their entitlement to indemnity.

In response to the motion for summary judgment, the appellants alleged in their pleadings that an agent of the appellees in negotiating the proposed transfer of the shares of stock held by the appellees’ restaurant business had made representations to the appellants contemporaneous to the signing of the agreement that any and all obligations arising from the loan to the restaurant would be met from income generated by the restaurant while it was being operated by the appellants, and the appellants would not be held personally liable for the debt. They further contended that the stock in the appellees’ restaurant business had very little, if any, marketable value at the time of the transfer as it had ceased to operate as a place of business and was on the verge of bankruptcy. This appeal is from the grant of summary judgment.

1. The appellants insist that a question of material fact exists as to whether it was represented to them by the appellees’ agent that the document they signed was a preliminary step in an attempt to finalize negotiations for the stock transfer, and that the money to pay off the outstanding loan would come only from the profits or receipts of the restaurant, not from them personally. The written agreement signed by the appellants provides: “In consideration for the sale of the stock in [the appellees’ restaurant business] to Paige and Beam, Paige and Beam will hereafter indemnify and release and hold Christian Jurgensen and Auer harmless from any and all claims . . .” against them under the note. The parties signed the document individually, not in the capacity of officers or agents of the restaurant business, and there is no language in the agreement suggesting in any way that the restaurant would be responsible for the indebtedness.

The contract is susceptible to the application of the following principles of law. “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 251 Ga. 378, 380 (359 SE2d 659) (1987). “ ‘ “[Such a contract] is the only evidence of what the parties intended and understood by it.” (Cits.)’ [Cit.]” Security Trust Fed. S. & L. Assn v. Gill Sav. Assn., 197 Ga. App. 242, 245 (398 SE2d 382) (1990). “[N]o construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation. [Cit.] . . . [T]hough parol evidence be admitted without objection or over objection, it is without probative value, to vary terms of a written contract.” Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). This is more easily understood when it is remembered that the parol evidence rule [OCGA § 24-6-1] is “a rule of substantive law.” Cooper v. Vaughan, 81 Ga. App. 330, 337 (58 SE2d 453) (1950). See OCGA § 13-2-2 (1). See also Lyon v. Patterson, 138 Ga. App. 816 (227 SE2d 423) (1976), which provides a brief history of the rule in Georgia. Since the terms of the agreement here are plain and unambiguous, and no fraud has been shown, no genuine issues for jury resolution are presented.

As to the allegation of fraud, “[t]here is no evidence in this case that the appellee [s] made any knowingly false representations to the appellants concerning the [financial status of the business], or that [they] made any representation to them with the intent of deceiving them.” Cummins v. Hudson & Marshall, Inc., 202 Ga. App. 48, 49 (413 SE2d 240) (1991). “ ‘One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. (Cits.) Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar. [a defense] based on fraud. (Cits.)’ [Cits.]” Moran v. NAV Svcs., 189 Ga. App. 825, 826 (3) (377 SE2d 909) (1989).

Decided May 4, 1992

Reconsideration denied June 10, 1992

Karsman, Brooks & Callaway, Dana F. Braun, Timothy J. Haeussler, for appellants.

Kent & Rackett, A. Martin Kent, William O. Williamson III, for appellees.

2. The appellants’ urging of a failure of consideration avails them nothing. The agreement for the sale of the stock was a contract under seal, or specialty contract as defined by OCGA § 13-1-4, which under OCGA § 13-3-40 (b) raises a presumption that there was a valid consideration. “ ‘[0]r, to speak more accurately, it estops a covenantor from denying a consideration, except for fraud.’ ” Weaver v. Cosby, 109 Ga. 310, 313 (34 SE 680) (1899). The presumption is conclusive except where an equitable defense, such as fraud, is raised. Lacey v. Hutchinson, 5 Ga. App. 865 (64 SE 105) (1909). “[T]he absence of consideration is not a defense when a contract is under seal. Deep South Services v. Wade, 248 Ga. 80 (281 SE2d 561) (1981).” Milde v. Harrison, 162 Ga. App. 809, 810 (293 SE2d 56) (1982). There were mutual promises: the buyers agreed to indemnify, and the sellers agreed to transfer the stock when the debt was extinguished. In any event, the value of the stock and the condition of the appellees’ business were not unknown to the appellants at the time they signed the agreement, and “any nominal consideration recited in sealed instruments is sufficient as a matter of law. [Cits.]” Jolles v. Wittenberg, 148 Ga. App. 805, 807 (2) (253 SE2d 203) (1979).

3. A fact question does not remain as to whether the appellees failed to fulfill a condition precedent by not delivering the shares of stock to the appellants. The agreement recites that the appellees “shall retain possession of the stock certificates until such time as said Note and Guaranty have been, cancelled.” Having never made full payment on the note as they agreed to do, appellants cannot claim that their breach of the contract constituted the failure of a condition precedent on the part of the appellees.

The trial court correctly granted the motion for summary judgment to the plaintiffs.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0516.
    HARP v. THE STATE.
    (420 SE2d 6)
   Beasley, Judge.

Appellant was arrested by officers of the Union City Police Department on January 27, 1990. Uniform Traffic Citations were issued against her for driving under the influence of alcohol, OCGA § 40-6-391, and driving with an expired license, OCGA §§ 40-5-20; 40-5-120 (4). She was ordered to appear at the City Court of Union City on March 22, 1990, to answer the charges.

On May 17, 1990, appellant filed a “demand and waiver” stating that she “waives a trial by jury in order to be tried in the City Court of Union City and objects to transferring this case to any other court and waives no rights to which she is entitled. In the event this case is transferred to another court, then defendant demands a trial by jury pursuant to OCGA § 17-7-170 at the present term of the State Court of Fulton County or the next term or else the charges be dismissed with prejudice.”

On October 29, 1990, appellant filed a plea in bar in the State Court of Fulton County on the ground that the case had been transferred from the City Court to the State Court, and she had not been tried during three terms of State Court, even though at these terms of court there were juries empaneled and qualified to try her. On October 29, 1990, the State Court denied that plea in bar.

Appellant filed a second plea in bar on April 29, 1991, again requesting dismissal pursuant to OCGA § 17-7-170, on grounds that she had not been tried during the two subsequent terms of State Court, even though there were jurors empaneled and qualified to try her. That plea was denied on June 24, 1991, and it is from the denial of it that appellant appeals.

1. A primary dispute is whether appellant objected to transfer of the case from City Court to State Court.

After the appeal was docketed here, appellant requested the trial court to supplement the record with the transcript of the preliminary hearing in City Court, in order to show that the case was transferred from City Court to State Court over appellant’s objection. Following a conference between the trial judge and counsel for the parties, the trial judge refused to have this transcript transmitted because it was not considered by the trial court in ruling on appellant’s plea in bar. Appellant has moved this court pursuant to OCGA § 5-6-41 (f) to supplement the record with this transcript.

Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA § 5-6-41 (f). Ray v. Standard Fire Ins. Co. of Ala., 168 Ga. App. 116, 117 (1) (308 SE2d 221) (1983). That section is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Wigley v. State, 194 Ga. App. 7, 9 (7) (389 SE2d 769) (1989). “Any issue as to the correctness of the record is to be resolved by the trial court [cit.], for that court retains jurisdiction even after the case is docketed in this Court to add additional record, [cit.], and ‘is still the final arbiter of any differences in the preparation of the record.’ [Cit.]” Pelletier v. Schultz, 157 Ga. App. 64, 68 (6) (276 SE2d 118) (1981). The motion is denied.

Decided May 6, 1992

Reconsideration denied June 10, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Patricia A. Buttaro, for appellant.

James L. Webb, Solicitor, R. Lee O’Brien, Jr., Helen A. Roan, Assistant Solicitors, for appellee.

2. Whether the defendant objected to the transfer is said to be material because OCGA § 17-7-170 (a), as amended in 1987, provides in pertinent part that, “the demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.”

Thus, the question under the statute is whether the case was transferred “without a request from the defendant,” not whether the defendant objected to the transfer. The case was transferred without request from the defendant. However, the denial of defendant’s plea in bar must be affirmed for another reason.

A demand for speedy trial filed in a municipal court, which is not a court of record having both regular terms and the authority to impanel juries, is ineffective, and if the case is transferred to State Court even without a request from the defendant, the only valid demand for speedy trial is that which has been filed anew in the transferee State Court. See Cliatt v. State, 194 Ga. App. 110 (389 SE2d 568) (1989), cert. denied, see 194 Ga. App. 911. Harp’s demand for speedy trial was not filed anew in State Court.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A92A0736.
    BELL v. THE STATE.
    (419 SE2d 729)
   Pope, Judge.

Appellant/defendant Anthony Alan Bell appeals his conviction for possession of cocaine and the denial of his appeal bond.

1. Defendant argues that the trial court erred by denying his motion to suppress the evidence seized during the search of his residence. The affidavit in support of the warrant states as follows: “Your affiant was contacted within the last five (5) days by a confidential source who will remain unnamed for safety purposes. This source states that within this same time frame they personally observed cocaine in the above stated residence. This source is untested and unproven by your affiant however this source has provided detailed information which leads me to believe they do have personal knowledge of the facts stated. Independent collaboration has been done by your affiant and verification of some facts stated have been made. Furthermore your affiant is familiar with Alan Bell whereas Mr. Bell was searched and arrested by your affiant several years ago for the same offense. Mr. Bell has served time for the offense ... of [violation of [the] Georgia Controlled Substance Act. Also, your affiant received a call from an unknown source acting simply as a tipster within the past three (3) months which stated Alan Bell was back in the cocaine business. Information provided by this tipster indicates Bell to be dealing in cocaine. Therefore, your affiant requests this warrant to cover all persons vehicles, and [curtilage] on this premises at the time of execution of this search warrant. Due to the ease of destruction and the fact that a gun was found in the search years ago, your , affiant requests that this be a No-Knock Search Warrant.”

Based upon the information contained in this affidavit and verbal information presented to the magistrate by the officer seeking the warrant, the magistrate issued a search warrant as requested in the affidavit.

Following a hearing on defendant’s motion to suppress, the trial court denied the motion. “As a general rule, the trial court’s decision on disputed questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) Talley v. State, 200 Ga. App. 442, 444 (3) (c) (408 SE2d 463) (1991). We hold the information presented to the magistrate, viewed as a whole, provided a substantial basis for the magistrate to determine there was probable cause to believe there was contraband located on the premises. State v. Morris, 198 Ga. App. 441, 443 (402 SE2d 288) (1991).

Furthermore, even if “the affidavit was insufficient to establish probable cause under the totality of the circumstances test enunciated in Illinois v. Gates, [462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983)], ‘(t)here is the remaining issue of whether the exclusionary rule would . . . be an appropriate sanction to vindicate any purported violation of [Bell’s] Fourth Amendment rights. Because the exclusionary rule is designed to deter police misconduct rather than to punish the errors of issuing magistrates, it has been modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance by an officer on a search warrant that is subsequently held to be defective. United States v. Leon, 468 U. S. 897, 905 (I) (104 SC 3405, 82 LE2d 677) (1984).’ . . . Debey v. State, 192 Ga. App. 512, 513 (385 SE2d 694) (1989).” Morris, 198 Ga. App. at 443-444.

Decided May 27, 1992

Reconsideration denied June 10, 1992.

Word & Flinn, T. Michael Flinn, for appellant.

Peter J. Skandalakis, District Attorney, George F. Hutchinson III, Jeffery W. Hunt, Assistant District Attorneys, for appellee.

In Leon, supra, the Supreme Court enunciated four instances when an officer cannot be said to have reasonable grounds for believing a warrant was properly issued: (1) the warrant is facially defective; (2) the judge who issued the warrant has wholly abandoned his judicial role; (3) the affidavit was so lacking in indicia of probable cause as to render a belief that it was valid to be unreasonable; and (4) the magistrate was misled by information the affiant either knew or reasonably should have known to be false. Leon, 468 U. S. at 923. As in Morris, supra, there is no evidence that either of the four instances was present in this case. For that reason, assuming arguendo that there was not probable cause for the issuance of the warrant, we hold the officers executing the search warrant had a reasonable good faith belief that the search warrant was valid. Accordingly, the trial court properly denied defendant’s motion to suppress. Morris, 198 Ga. App. at 444; Williams v. State, 193 Ga. App. 677, 681 (388 SE2d 893) (1989).

2. Defendant further contends that the trial court erred by denying his motion for an appeal bond. When deciding whether a motion for an appeal bond should be granted, the trial court must address the following four questions: (1) Is there a substantial risk the applicant will flee? (2) Is there a substantial risk the applicant will commit a serious crime? (3) Is there a substantial risk the applicant will intimidate witnesses or otherwise interfere with the administration of justice? and (4) Is the appeal frivolous or taken for delay? Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976), cert. denied, 436 U. S. 945 (98 SC 2847, 56 LE2d 786) (1978). There was compliance with the applicable procedure set forth in Birge, and we find no abuse of discretion of the trial court in denying an appeal bond on the basis of testimony that defendant was likely to commit another crime if bond was granted. See Cooper v. State, 178 Ga. App. 709 (11) (345 SE2d 606) (1986).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0026.
    DIXON v. McCLAIN.
    (420 SE2d 66)
   Carley, Presiding Judge.

Appellee-defendant swore out a warrant for the arrest of appellant-plaintiff on a charge of battery. The case was tried before a jury and, although appellant’s motion for a directed verdict of acquittal was denied, a verdict of not guilty was returned by the jury. Thereafter, appellant filed the instant tort action, alleging that appellee had “falsely and maliciously and without any reasonable and probable cause whatsoever . . . procured the . . . issu[ance] [of the] warrant. . . .” Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

1. Although appellant had filed a timely written request for oral argument on appellee’s motion for summary judgment, no such opportunity was afforded to him. Appellant urges that this was procedural error.

It was clearly erroneous for the trial court to fail to afford appellant the opportunity to oppose appellee’s motion by oral argument. Uniform Rule 6.3 “fixes the method parties use to obtain a hearing. In fact, Rule 6.3 insures a right to oral argument of a summary judgment motion by declaring it ‘shall be permitted upon written request.’ . . . Thus, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. [Cit.] All a party need do is make a written request for oral argument and it shall be held. [Cit.] . . . [T]he obvious purpose of a hearing in summary judgment ... is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel. [Cits.]” (Emphasis in original.) Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623-624 (351 SE2d 443) (1987). See also Link v. Doe, 203 Ga. App. 388 (416 SE2d 874) (1992).

The issue thus becomes whether the erroneous failure to hold the hearing can ever be harmless and, if so, whether it was harmless in the instant case. As noted, the Uniform Rules mandate that a hearing be held when timely requested. Compare Sentry Ins. v. Echols, 174 Ga. App. 541 (1) (330 SE2d 725) (1985) (pre-Uniform Rules). To hold that a failure to conduct the timely requested hearing can nevertheless constitute mere harmless error would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right. Having timely requested a hearing, a litigant should not have summary judgment granted against him without having had the opportunity to convince the trial court to the contrary and a trial court should not grant summary judgment against him without having availed itself of the opportunity to interrogate counsel. Appellate review of the record is no viable substitute for the opportunity to argue before the trial court. Accordingly, we hold that the error in failing to hold the hearing mandated by a timely request therefor is not subject to the harmless error rationale.

Decided June 10, 1992.

Orion L. Douglass, for appellant.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell, Lisa S. Godbey, for appellee.

2. Appellant’s remaining enumerations of error are moot.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0247.
    PETERSON v. THE STATE.
    (419 SE2d 757)
   Cooper, Judge.

Appellant appeals from his conviction of aggravated assault, carrying a concealed weapon and carrying a firearm to a public place.

Appellant, along with Gloria Howard and two others, visited Jonesboro Senior High School for the purpose of checking Howard’s son out of school. Howard’s son had been threatened during the day by a group of students. The assistant principal of the school saw Howard’s group at the school after the school released Howard’s son. As the assistant principal asked the group to leave the school premises, the bell signalling the end of the day rang, and a mass exit of the students began. Howard and her son walked away to approach one of the students, and the assistant principal remained with appellant and one other of Howard’s group. As one .student, Sherrod Meadows exited the school, the assistant principal observed appellant approach Meadows and engage in a verbal exchange. Appellant then moved toward the assistant principal, pulled a gun out of his slacks, cocked the gun, pointed it to the assistant principal’s nose and stated that he “was gonna get rid of all these mother —------.” As the assistant principal asked appellant for the gun, appellant waved the gun around, waved it at Meadows and made a 360 degree circle, waving the gun at a crowd of students which had gathered around him. The assistant principal ran into the office to call for assistance, and when she returned to the scene, Howard, appellant and the group had left the school. Meadows testified that he was afraid when appellant waved the gun at him. The assistant principal gave the officer who responded to the call a vehicle description, tag number, description of the occupants of the vehicle and pointed out the direction Howard’s vehicle had taken. The police air unit spotted the vehicle, and the officer went to the location where the vehicle had been stopped. The officer found a nine millimeter semi-automatic handgun in the vehicle with one round of ammunition loaded in the chamber of the gun and another round of ammunition loaded in the clip. The gun was cocked, the safety was off and it was ready to fire. Appellant was indicted and convicted of aggravated assault against Meadows, carrying a concealed weapon and carrying a firearm to a public place.

1. Appellant first enumerates that the trial court erred in failing to grant appellant’s motion for directed verdict or motion for new trial, asserting the insufficiency of the evidence to convict appellant of aggravated assault against Meadows. “OCGA § 16-5-21 (a) provides, in pertinent part: ‘A person commits the offense of aggravated assault when he assaults: ... (2) With a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.’ The facts here establish clearly that appellant committed an act with a deadly weapon which placed [Meadows] in reasonable apprehension of immediately recéiving a violent injury. . . . There is no requirement that a victim be actually injured and the crime is complete without proof of injury. [Cit.] . . . Although in every assault there must be an intent to injure, the question of criminal intention is for the jury and shall not be disturbed by this court unless it is contrary to the evidence and clearly erroneous. [Cit.]” Daughtry v. State, 180 Ga. App. 711 (1), 712 (350 SE2d 53) (1986). “Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ [Cit.]” Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991). We conclude that the evidence presented in this case was sufficient to sustain a finding of guilt of the crime charged by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next contends that hearsay testimony was admitted and harmful error occurred when the trial court allowed the police officer to testify as to his communications with the police air patrol. The officer testified that when he arrived at the school, the assistant principal gave him a vehicle description, a tag number, description of the occupants and pointed out the direction that the vehicle was travelling. He stated that he put out a radio lookout for the vehicle; that he proceeded in the direction indicated; that the air unit spotted the vehicle; and that the air unit maintained surveillance. After the defense objection to any statement made by the air patrol was overruled, the officer stated, “At that time I did not have the vehicle in sight. I heard other units over the radio advise they had stopped the vehicle.” Appellant contends that this testimony was prejudicial because it reflected on appellant’s flight from the school. Pretermitting the question of whether or not this evidence was admissible as explaining the circumstances leading to appellant’s arrest, see Ivester v. State, 252 Ga. 333 (2) (313 SE2d 674) (1984), we conclude that it is highly improbable that the testimony contributed to the verdict. See Rhine v. State, 176 Ga. App. 171 (1) (335 SE2d 422) (1985). The testimony of the assistant principal had already clearly indicated that appellant had left the scene of the crime, and both the assistant principal and the officer testified that the assistant principal gave the officer a description of the vehicle and the direction in which the vehicle was driven. The one statement of the officer regarding his contact with the air patrol does not cast any prejudicial light on the fact that the vehicle in which appellant was a passenger left the school and proceeded away in á certain direction. Error, if it occurred, was harmless. Tyner v. State, 193 Ga. App. 126 (1) (387 SE2d 50) (1989).

Decided June 10, 1992.

Elizabeth A. Baker, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

3. Appellant concludes with an assertion that the trial court erred in denying his motion for a mistrial made following the prosecutor’s closing argument. Appellant contends that the prosecutor improperly commented on appellant’s failure to testify. The prosecutor’s closing argument was not transcribed nor was a substitute thereof included in the record. See OCGA § 5-6-41 (d) “With neither an original transcript of the offending portions of the [prosecutor’s] argument nor a transcript prepared from recollection (OCGA § 5-6-41 (g)), we must presume that the trial court acted correctly. [Cit.]” Houck v. State, 173 Ga. App. 388 (2), 389 (326 SE2d 567) (1985).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A0459.
    MONTGOMERY v. THE STATE.
    (420 SE2d 67)
   Birdsong, Presiding Judge.

Zellner Montgomery, Jr., was convicted for trafficking in cocaine. He was sentenced to serve ten years and fined $200,000.

At about 11:30 p.m. on April 17, 1991, police received a report of a robbery in DeKalb County. Officer Goodrum went to Applewood Apartments, which he knew were a mile or mile-and-a-half from the robbery site and had a link to the robbery site. The description of the robbery vehicle was a four-door red Toyota with three black males in it. Goodrum saw a four-door red Toyota with two occupants. About 100-150 feet from the exit of the apartments, the vehicle stopped and a passenger got out and walked quickly toward the back of an apartment building. The driver (appellant) started to drive away, but turned into a parking space when Goodrum turned on his police lights. Appellant emerged, leaving the engine running and lights on, and walked away from the police car. Goodrum jumped out and yelled for appellant to stop, but appellant did not stop until after Good-rum yelled a second time. Goodrum smelled alcohol on appellant’s person and breath. When Goodrum asked appellant where he lived, appellant first said he lived in Countryside Apartments but could not remember his address or apartment number. He also told Goodrum he lived at Applewood Apartments but could not remember the apartment number. Appellant was “very, very nervous and jittery and kept looking around” and was evasive, and appeared “aggressive.” Detective Holmes arrived as a back-up. Goodrum frisked appellant for weapons; he felt a roll of money in appellant’s pocket but did not remove the money. Goodrum placed him in the patrol car, closed the car door, and went to search the Toyota. In the right front floorboard was a Hardee’s bag which held plastic bags containing a powdery substance and a rock-like substance. Goodrum returned to the police car and advised appellant he was under arrest for possession of cocaine; he read appellant his Miranda rights and searched him, but the roll of money he had felt earlier was gone; it was later found in the area of appellant’s buttocks, and amounted to $109.

Officer Goodrum stated he originally placed appellant in the police car as a robbery suspect. Larry White, Jr., who reported the robbery, was brought to the scene but appellant was not charged with robbery. The State’s expert testified the powdery substance weighed 183 grams and tested positive for cocaine, as did the hard rock-like substance.

In a statement appellant said he had given an unknown person a ride; the person had a Hardee’s bag and jumped out of the car after the police stopped them. Appellant testified he came to Atlanta from Butler, Georgia, and was staying at a motel and at Applewood Apartments; when he was arrested he was headed to the motel to meet his girl friend; as he was leaving Applewood Apartments he picked up another man; when the police drove up the man ran; appellant got out to see what the officer wanted; when the officer asked where he was staying, he was confused and could not remember. Held:

1. Appellant contends the trial court erred in failing to direct a verdict of acquittal on grounds of equal access. Merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the offense. Nelson v. State, 199 Ga. App. 487 (405 SE2d 310); Fears v. State, 169 Ga. App. 172 (312 SE2d 174). This is because evidence of equal access prevents a presumption of possession from arising based on ownership or control of premises (Bell v. State, 198 Ga. App. 874 (403 SE2d 864)), for such a presumption arises only “[i]n the absence of any circumstances to the contrary.” Elrod v. State, 128 Ga. App. 250, 251 (196 SE2d 360). So, evidence of equal access is not an absolute defense to a charge of possession and does not entitle a defendant to a verdict of acquittal. A defendant is entitled to acquittal “only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle” (Wright v. State, 194 Ga. App. 739, 741 (391 SE2d 791)); that is, if there is affirmative evidence of equal access, there is no presumption of possession, so without other evidence of possession, an acquittal is demanded. See Fears, supra at 173-174. Here, appellant’s control or possession of the vehicle is not the only evidence of possession of the contraband. Accordingly, he was not entitled to a verdict of acquittal.

2. The trial court did not err in denying appellant’s motion to suppress the evidence, which motion was made after the State rested its case, and was made on grounds that because the robbery report was false there was no probable cause to stop appellant. The motion to suppress was untimely. Moss v. State, 196 Ga. App. 81, 83 (395 SE2d 363); see Holton v. State, 243 Ga. 312 (253 SE2d 736). The motion to suppress was without merit in any case, because the report of robbery and the discovery of the described vehicle within a two-minute drive presented specific and articulable facts to stop appellant’s vehicle on founded suspicion of robbery (Radowick v. State, 145 Ga. App. 231, 232-233 (244 SE2d 346)), and the totality of circumstances including the conduct of appellant and his passenger and the roll of money Goodrum felt in appellant’s pocket, gave probable cause to detain appellant on suspicion of robbery. When appellant was placed in the police car with the door closed, he was under lawful custodial arrest notwithstanding the officer’s failure to tell him he was under arrest, for he was not at liberty. “An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be.” Clements v. State, 226 Ga. 66, 67 (172 SE2d 600); Radowick, supra at 238. As the detention of appellant in the closed police vehicle was a lawful custodial arrest (see Fowler v. State, 201 Ga. App. 417, 418-419 (411 SE2d 335); Goldsby v. State, 186 Ga. App. 180, 182-183 (367 SE2d 84)), the search of the vehicle incident thereto was lawful. Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385); State v. Tinsley, 194 Ga. App. 350, 351 (390 SE2d 289).

3. The trial court did not err in allowing the State to impeach appellant with a computer printout of previous arrests. Appellant testified on direct examination that' he had never been arrested before. Certified copies of convictions are required to impeach a witness by proof of crimes of moral turpitude (Clarke v. State, 239 Ga. 42, 44 (235 SE2d 524)), but in this instance the State did not attempt to impeach appellant by proof of prior convictions. As to the simple question whether appellant had been arrested, after appellant admitted under oath outside the presence of the jury that he had been arrested, the trial court correctly reasoned that appellant was competent to testify on the point; the State was allowed to question him in the presence of the jury. There is no suggestion that the printout contained false information, that arrest warrants were available, or that the printout was not in fact the best evidence of whether appellant had been arrested. Compare Timberlake v. State, 246 Ga. 488, 499 (271 SE2d 792); Moret v. State, 246 Ga. 5, 6 (268 SE2d 635). There is no reason the State should not have been allowed to contradict and disprove that statement. We find no merit in this enumeration.

4. The trial court did not err in disallowing appellant’s testimony as to results of a test for use of illegal drugs. Whether appellant tested negative for drug use at any time is not relevant to, and did not tend to prove or disprove, whether he trafficked in or possessed cocaine as charged in the indictment. OCGA § 24-2-1; Guest v. State, 155 Ga. App. 374 (270 SE2d 904).

5. Appellant contends the trial court erred in allowing hearsay of what a non-testifying witness said to a police officer. In response to questions about Larry White, Detective Holmes said, “[White] stated to me earlier he had been with [appellant] and —” Defense counsel objected. The trial court ruled: “I will tell the jury to disregard any comments that were made. . . . This certainly hasn’t been any secret. . . .You both [said] in your opening statements that Mr. White was charged along with Mr. Montgomery.” The trial judge instructed the jury to “disregard any statement as to what this witness said Mr. White said.” Following these curative instructions, appellant made no further complaint and did not move for mistrial. He is therefore precluded from raising this issue on appeal. Callahan v. State, 179 Ga. App. 556, 564 (347 SE2d 269); see Hicks v. State, 196 Ga. App. 25, 26 (395 SE2d 349).

6. Appellant complains the trial court did not give the requested charge that possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses of trafficking in cocaine “and you may find defendant guilty of the lesser offenses without making a finding as to his being guilty or not guilty of the greater offense.” We find no error. The jury was instructed that if they did not find appellant guilty of trafficking in cocaine, they could “consider the question of possession of cocaine with intent to distribute, or of the lesser included offense of possession of cocaine.” “It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.” Coleman v. State, 189 Ga. App. 366, 367 (375 SE2d 663). Smith v. State, 189 Ga. App. 244, 246 (375 SE2d 496).

Decided June 10, 1992.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, J. George Guise, Assistant District Attorneys, for appellee.

7. We have reviewed the evidence and find it sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0515.
    WRIGHT v. SOUTHERN INVESTMENT PROPERTIES.
    (419 SE2d 764)
   Pope, Judge.

Plaintiff Southern Investment Properties filed a dispossessory action in the magistrate court against defendant Carolyn Wright who was a tenant in an apartment owned by plaintiff. After a trial, the magistrate court issued a writ of possession and a judgment in favor of plaintiff in the amount of $1,469 for rent due. Proceeding pro se and pursuant to a pauper’s affidavit, defendant filed an appeal to the state court, requesting a jury trial. The state court’s judgment indicates a jury trial was conducted. The judgment awarded directed verdict to the plaintiff in an amount totalling $1,408.

Defendant, again pro se, appeals and enumerates as error issues which require a review of the transcript of evidence, yet no transcript was requested in the notice of appeal. It is the duty of the appellant to have the transcript prepared pursuant to OCGA § 5-6-41. The filing of a pauper’s affidavit does not relieve the appellant in a civil action from such a duty. See Brand v. Montega Corp., 233 Ga. 35 (209 SE2d 583) (1974); Jackson v. Young, 134 Ga. App. 368 (214 SE2d 380) (1975). Where the evidence is not brought before the appellate court by transcript or any other method provided in OCGA § 5-6-41, judgment on evidentiary matters cannot be reviewed and the appellate court must assume that the judgment on appeal is correct. See Burns v. Barnes, 154 Ga. App. 802 (270 SE2d 57) (1980).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided June 10, 1992.

Carolyn R. Wright, pro se.

Joseph R. Baker, for appellee.


author: Johnson, Judge.

text:
    A92A0565.
    MACKINNON v. HODGE et al.
    (420 SE2d 341)
   Johnson, Judge.

On August 4, 1989, Mackinnon entered into a written contract to purchase a house from Hodge for $112,000. On September 7, 1989, the same parties entered into another contract for the sale of the same real property at the same price. Both contracts state that the closing date shall be on or before September 22, 1989. The closing never took place. Thereafter, Hodge filed a complaint seeking specific performance by Mackinnon under both contracts. Hodge alleges that Mackinnon refused to appear at a closing scheduled on September 27, 1989. Mackinnon, proceeding pro se, filed a document in response to the complaint and gave a deposition. In both her answer and deposition, Mackinnon alleges that she appeared and was ready to go forward with the closing on September 27, 1989, and that it was Hodge who failed to appear at the closing. Hodge filed a motion for summary judgment, to which Mackinnon did not respond. The trial court granted the motion and ordered Mackinnon to pay damages totaling, $135,655.45, but not directing Hodge to convey the property to Mackinnon. Mackinnon appeals.

Mackinnon states that the trial court erred in granting summary judgment to Hodge. We agree and reverse the summary judgment order. “On consideration of summary judgments we and the trial court must look at the entire record.” Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980). “On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the non-existence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.” (Punctuation and citations omitted.) Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670) (1991). Here, the record reveals a genuine issue of material fact as to whether the contracts, both of which require the closing to be held on or before September 22, 1989, lapsed when the closing was not held by that date. If, however, the parties waived the requirement that the closing take place by the date specified in the contracts, there is still a genuine issue of material fact as to which party breached the contracts by failing to close as scheduled. Both parties allege that they were prepared to go forward with the closing scheduled on September 27, 1989, and that the opposing party failed to appear. In light of the genuine issues of material fact in this case, the trial court erred in granting summary judgment.

Decided June 10, 1992.

F. Robert Raley, for appellant.

McVay & Stubbs, Robert S. Stubbs III, for appellees.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0678.
    GRESHAM v. THE STATE.
    (420 SE2d 71)
   Birdsong, Presiding Judge.

Harry S. Gresham appeals his judgment of conviction of armed robbery, denial of his motion for new trial, and sentence. Appellant enumerates two errors. Held:

1. Appellant asserts the trial court erred in denying his motion to suppress the warrantless search of his automobile.

Pretermitting whether appellant’s car was searched incident to his lawful arrest, lawfully subjected to a probable cause but warrant-less automobile search, or lawfully inventoried after having been legitimately impounded by the police, is the question whether appellant lacked standing to- contest the search and seizure of the property found in the automobile because of his lack of a sufficient expectation of privacy in said vehicle and its contents.

The record reflects that the crime was committed on Monday, May 7, 1990. The evidence regarding the registration and use of the automobile is in conflict. However, for purposes of disposition of this error, we will consider the following facts: The vehicle was registered to appellant with the vehicle insurance in his mother’s name. Prior to the date of the robbery, appellant had rented his car to Priscilla Manley. She drove it from Thursday (May 3, 1990) to Tuesday (May 8, 1990) when it broke down. Although denying complicity in the robbery, appellant admitted that he had used the vehicle on Monday, May 7, 1990, for a short period of time. Although denying ownership of the BB gun found in his car trunk, appellant admitted it had been left in the car about three months previously. After the vehicle broke down, Manley left the vehicle in the private parking lot of the Center Grocery store. The vehicle was not obstructing or otherwise hindering traffic, and agents of the store had not requested that the police remove the vehicle from their lot. At the time the car was impounded, it was in no known violation of the law. Although Manley apparently left the car locked in the parking lot, she left the passenger-side window partially open and a screwdriver stuck in the unlocked trunk lid where the lock was missing. It may reasonably be inferred from the evidence that appellant gave Manley access to and use of the vehicle at a time when the trunk lock was missing and the trunk could not be locked, and at a time he knew that the BB gun was in the car. The gun was found in the unlocked trunk and a cap was found in plain view on the back seat.

“ ‘ “The constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned.” ’ ” Guess v. State, 197 Ga. App. 40, 42 (2) (397 SE2d 453); see also Mooney v. State, 243 Ga. 373, 377 (254 SE2d 337). Thus, if a defendant has abandoned his property, he is not entitled to protection of that property by the Fourth or Fourteenth Amendments from an illegal search or seizure. Also, an appellant can retain legal or equitable title or right of possession in property and, yet, by words or conduct may negate any reasonable expectation of privacy in that property to such an extent as to preclude protection thereof by the Fourth and Fourteenth Amendments. Thus, the Supreme Court of Georgia recognized in Bloodworth v. State, 233 Ga. 589, 590 (2) (212 SE2d 774) that “[t]he question of abandonment for Fourth Amendment purposes does not turn on strict property concepts but on whether the accused has relinquished his interest in the property to the extent that he no longer has a reasonable expectation of privacy in the premises . . . even though he may retain the lawful right to possession.” (Emphasis supplied.) In Prothro v. State, 186 Ga. App. 836, 838 (3) (368 SE2d 793), it was held that “[w]here the owner of an automobile relinquishes actual possession to a third party, the owner thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle.” (Emphasis supplied.) Accord Reinhardt v. State, 197 Ga. App. 825, 827 (3) (399 SE2d 729) (lessee also can abandon expectation of privacy by relinquishing actual possession to a third party). Accordingly, appellant lacks standing to contest the legality of the search and seizure of his automobile; we will not reverse the correct ruling of the trial court regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

2. The trial court granted the State’s motion to reopen after the evidence had been closed to allow a prisoner to testify to rebut testimony of appellant. The prisoner, notwithstanding an order of sequestration being in effect, had been sitting in the courtroom awaiting his own case to be called and had heard appellant’s testimony. During a break, after both sides had rested, the prisoner’s counsel approached the prosecutor and informed him that appellant had made a statement to his client which would rebut appellant’s testimony that a heart condition prevented his use of crack cocaine, and that appellant admitted he had smoked crack the night of his arrest.

The trial court granted the motion after determining inter alia that this situation was not due to a preconceived plan on the part of the State to withhold a witness and “ambush” the appellant. The trial court in response to a request by appellant stated appellant also could call additional witnesses if they had relevant testimony to present, and that appellant’s counsel could speak to the prisoner beforehand if the latter wished to do so. The trial court further ascertained it was the jury’s belief that it would not have an effect on any jury verdict that the prisoner testified he had been present with appellant in a jail cell. The trial court also gave a timely curative-type instruction which in effect informed the jury that the fact the prisoner was present in the courtroom when the other witnesses had been excluded was a matter that could be taken into consideration in determining his credibility.

A trial judge’s powers to administer the rule of sequestration will not be controlled unless manifestly abused; disobedience of a sequestration order may subject the offender to punishment for contempt or may affect his credibility, but does not render the witness incompetent to testify, or disqualify his testimony. Watts v. State, 239 Ga. 725, 731 (238 SE2d 894). Thus, even assuming the prisoner was aware of and had knowingly violated the rule of sequestration, it would not automatically disqualify him as a witness. Id. “[T]he decision as to whether or not the witness should be disqualified rests in the sound discretion of the trial court.” Id.

Regarding the trial court’s decision to allow the prisoner to testify after both sides had rested, “ ‘[i]t is always within the sole discretion of the trial court to permit either the State or the defense in criminal cases to reopen the case after the close of the evidence.’ (Cits.)” Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789); accord Evans v. State, 201 Ga. App. 20, 27 (6) (410 SE2d 146); compare State v. Roberts, 247 Ga. 456 (277 SE2d 644) (case reopened after jury deliberation had commenced).

In viewing whether an abuse of discretion has occurred, we must examine the totality of the circumstances. Relevant circumstances in this case include but are not limited to the following factors: the trial court’s implicit finding of fact that the State had not engaged in a preconceived plan to “ambush” the defense by allowing the witness to remain in the courtroom during appellant’s testimony with an intent to call him as a rebuttal witness after the defense had rested; the presence of the witness in the courtroom during appellant’s testimony notwithstanding the rule of sequestration was in effect; the nature of the testimony given; the equal opportunity given to the defense to call additional witnesses in its own behalf; and the timely curative-type instruction given the jury that the witness’ presence in the courtroom could be considered in determining his credibility. Moreover, “[t]he object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. Under the attendant circumstances, the trial court did not abuse its discretion either in allowing the prisoner to testify, though he had been present in the courtroom during appellant’s testimony and at a time when the rule of sequestration was in effect, or by allowing the State to reopen its case in order that it could call the prisoner as a rebuttal witness.

Decided June 10, 1992.

Miller, Rucker & Associates, Curtis W. Miller, for appellant.

Timothy G. Madison, District Attorney, for appellee.

3. Additionally, assuming arguendo any or all of the enumerated errors had occurred, including error of constitutional magnitude in failing to grant appellant’s suppression motion, in light of the overwhelming evidence of appellant’s guilt, we find any such error or errors harmless beyond a reasonable doubt. Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Sognier, Chief Judge.

text:
    A92A0708.
    O’BRIEN et al. v. FAIRFIELD COMMUNITIES, INC. et al.
    (421 SE2d 723)
   Sognier, Chief Judge.

After Helen O’Brien fell on the grounds at Lake Tara Gardens Townhouses at Fairfield Plantation, she brought suit against the property management company and the townhouse association to recover damages for injuries she incurred. Her husband, Joseph O’Brien, claimed damages for loss of consortium. The trial court granted summary judgment in favor of the defendants, and the O’Briens appeal.

The record reveals that appellants had reserved a unit at Lake Tara Gardens for their vacation and had driven to Georgia from their home in New York. When appellants arrived at Fairfield Plantation during the evening, they knew from radio reports and their own observations of snow and ice along the sides of the highways that the area had experienced a snowstorm. They stopped at the office to register, where they were given a map, directed to their unit, and told that the roads within the resort were fine except for certain marked areas, which did not include their unit. They had no trouble driving to their unit but saw snow and ice on the sides of the road toward the end of their approach. When they turned into the driveway to their assigned unit, which was located atop an embankment, they had gone only a short distance up the hill when their car skidded on ice and spun around. Appellant Joseph O’Brien got out of the car briefly, observed the conditions, noted that the driveway was so icy he “could hardly stand up,” returned to the car, drove it back to the bottom of the hill, and parked it on the road adjacent to the driveway. Both he and Ms. O’Brien got out of the car and observed conditions around them in order to decide whether and how to ascend the hill to their unit. They noticed that the embankment alongside the driveway was covered with snow, noticed that another unit was occupied, and saw two young men on the embankment who offered to help them carry their belongings. Appellants both testified at deposition that they were very familiar with the risks of ice and snow and felt they could judge conditions well, and although Ms. O’Brien testified they could have driven back to the registration center safely had they chosen to, they decided to walk up the embankment to reach their unit. Partway up the hill, Ms. O’Brien slipped on the snow and fell, injuring her ankle.

The trial court granted summary judgment in favor of appellees based on appellants’ “equal and superior knowledge” of the condition of the embankment and their assumption of the risk inherent in attempting to ascend it.

1. Appellants contend their equal knowledge should not prevent their recovery because they exercised ordinary care under the circumstances. Appellants rely on our holding in Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 158 (342 SE2d 468) (1986) that the equal knowledge rule is not always determinative. However, Clark is distinguishable factually. The result in Clark turned on the foreseeability of a third party’s criminal actions, whereas the case sub judice involves a static dangerous condition, as to which the rule is well established that “ ‘(t)he basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does .... (Cits.)’ [Cits.]” Id. at 158-159. This case presents exactly the type of situation distinguished in Clark: one where the condition is known equally to the invitee and the host and therefore the invitee must anticipate the danger and avoid it with ordinary care. Id. at 159-160. The equal knowledge rule thus applies here, and because it is clear that appellants were, if anything, more aware of the particular hazard presented by the snowy embankment than appellees, they are precluded from recovering because of that knowledge. Accordingly, we find no error in the trial court’s ruling on this basis.

Decided June 10, 1992.

Perkins & Perkins, Clifford C. Perkins, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Todd M. Yates, Smith, Gambrell & Russell, David A. Handley, John D. Hipes, Powell, Goldstein, Frazer & Murphy, John T. Sparks, for appellees.

2. Appellants also maintain the trial court erred by granting summary judgment based on a finding that they assumed the risk of climbing the embankment, given questions of fact regarding whether the circumstances deprived them of any other reasonable alternative. We find distinguishable the cases cited by appellants, including Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701-703 (1) (289 SE2d 807) (1982) (construction worker’s choices necessarily restricted by the conditions of his employment), and Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985) (tenant chose to encounter known hazards because no other means of ingress or egress available), given Ms. O’Brien’s deposition testimony that weather conditions would not have prevented them from driving safely back to the registration center rather than climbing the snowy embankment “if [they] had chosen to do so.” (Emphasis supplied.)

Accordingly, given appellants’ equal knowledge of the dangerous condition and their assumption of the risk of climbing the embankment, the trial court did not err by granting summary judgment in favor of appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.