text:
    A95A0059.
    STINSON v. LUMPKIN LUMBER COMPANY et al.
    (460 SE2d 846)
   Ruffin, Judge.

David Stinson appeals, from the trial court’s grant of summary judgment to intervenor, Houston Mitchell.

This is a wrongful death action brought by Stinson, as the spouse of Betty Jean Stinson by common law marriage, after she died from injuries sustained in an automobile accident involving a vehicle owned by Lumpkin Lumber Company. Mitchell, representing Ms. Stinson’s heirs-at-law, moved to intervene and prayed for the dismissal of Stinson’s complaint pursuant to OCGA § 9-11-17 on the ground that Stinson could not be the real plaintiff-in-interest because he had a prior common law marriage which was never dissolved. The trial court granted the motion to intervene, and Stinson and Mitchell submitted the question of Stinson’s status as party plaintiff to the court in cross-motions for summary judgment. The trial court entered an order denying Stinson’s motion for summary judgment and granting Mitchell’s motion, agreeing with Mitchell that Stinson had no standing to bring the action. The court held that Mitchell was authorized to apply for appointment as administrator of Ms. Stinson’s estate and ordered that the case be realigned, designating Mitchell as party plaintiff and Stinson as defendant. The matter was certified for immediate review, and we granted Stinson’s application for interlocutory appeal to consider whether the trial court erred in concluding, as a matter of law, that he did not have a valid common law marriage to Ms. Stinson because of a prior undissolved common law marriage.

1. It is undisputed that Stinson resided with Lucy Crumb a/k/a Lucy Strawder from 1955 until 1958, during which time they had two children. In support of his motion for summary judgment, Mitchell submitted an affidavit given by Lucy Strawder on May 22, 1993, in which she averred that she and Stinson held themselves out to the public as husband and wife during their period of cohabitation; that she used the name “Lucy Stinson” and considered herself to be married to Stinson during that period; and that no divorce was granted dissolving her common law marriage to Stinson. Mitchell also referenced Stinson’s deposition testimony in which he stated that during the time they lived together, Lucy Crumb’s occupation was that of a housewife. Stinson testified further as follows: “Q. And when your second child was born, Eddie Gene Stinson, you considered her to be a housewife, her being Lucy Bell Crumb. Is that right? A. Yes sir. Q. And the house part of the housewife would be your house. Is that correct? A. When we was there. Q. I am assuming the wife part of it would be your wife. Is that right? Q. [sic] Yes sir.”

In support of his motion for summary judgment, Stinson submitted his own affidavit in which he averred that he never married Lucy Strawder and never considered her to be his wife; that she never used his last name or his money; that they never signed any contracts together and never represented to any members of the community that they were husband and wife; that they never represented to the church that they were husband and wife; that Betty Jean Stinson was his common law wife; that she used his last name; and that they held themselves out to the public as husband and wife.

Stinson also submitted an affidavit given by Lucy Strawder on November 29, 1993, in which she stated that she remembered signing the May affidavit in the office of Mitchell’s attorney but that she did not understand certain details in the document before she signed it. In the November affidavit, she stated that her prior statement, that she and Stinson held themselves out as husband and wife, was not true; that she never considered herself to be Stinson’s wife; that she did not understand the word “cohabited” and never considered that she and Stinson were living together as husband and wife; and that she never considered herself to have any marital rights to Stinson’s money nor did they have any marital obligations to each other. Strawder also stated, with respect to the May affidavit, that when she told . Mitchell’s attorney that she never considered herself to be Stinson’s wife, he responded that the law would determine whether she was Mrs. Stinson or not and that her opinion did not matter. Strawder referred to the birth certificate of one of her children which bore the signature of a “Lucy B. Stinson” and stated that it was not her signature; that she never used the name “Stinson” at any time in her life; and that she had always been known as Lucy Strawder or Lucy Crumb. She further averred that during the period of time between 1955 and 1958, she used the name “Lucy Crumb,” and she and Stinson never bought anything together or held themselves out to the public as husband and wife.

Strawder also affirmed, as accurate and correct, a handwritten affidavit made on March 1, 1993, in which she stated that she would not marry Stinson for various reasons; she lived with him because her sick father was nearby and she did not have anyplace else to go; and the signature on the birth certificate was not hers.

The trial court’s findings of fact recite that Stinson and Crumb are referred to as “husband” and “wife” on the birth certificate of one of their children. The court, apparently referring to the deposition testimony set forth above, also found that Stinson admitted his marriage to Crumb in his deposition but denied a marriage in his affidavit. The court also found that Crumb signed contradictory affidavits.

Construing Stinson’s deposition testimony and affidavit attestations against him in accordance with Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the court then concluded that the evidence showed Stinson had a common law marriage to Crumb which was never dissolved; therefore, he lacked the capacity to enter into a common law marriage to Betty Jean Stinson.

Stinson contends that his statements were not contradictory; that he consistently maintained he was never married to Lucy Crumb; and that in the deposition testimony upon which the court relied, his reference to Crumb as a housewife meant her occupation and not her marital status. Stinson also contends Lucy Crumb never held herself out as Lucy Stinson and did not sign the birth certificate as Lucy B. Stinson.

“On appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Our review is de novo.” (Citations and punctuation omitted.) Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

While it is certainly the rule in this state that a party’s self-contradictory testimony must be construed against him, we do not agree that the testimony the trial court construed as an admission by Stinson that Crumb was his wife must necessarily be construed in that manner. The testimony is ambiguous, at best, especially when measured against the bulk of the testimony given by Stinson in his deposition in which he steadfastly denied the existence of a marriage. In addition, having examined the birth certificates of both children, contrary to the trial court, we find no designation of Stinson and Crumb as husband and wife.

Decided July 14, 1995

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

Bowles & Bowles, Jesse G. Bowles, Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, Divine, Wilkin, Raulerson & Fields, W. Douglas Divine, for appellees.

Furthermore, Crumb/Strawder’s contradictory affidavits should not be disregarded or construed in the same manner as the self-contradictory testimony of a party-witness because she is not a party to this case. See Prophecy Corp., supra. Rather, “the conflicting affidavits present a question of credibility as to a material issue. . . . [Cits.]” Garrison v. Dept. of Human Resources, 184 Ga. App. 449, 450 (2) (361 SE2d 860) (1987).

The foregoing demonstrates that there are genuine issues of material fact as to the existence of a common law marriage between Stinson and Lucy Crumb which should be resolved by a jury; therefore, the trial court erred in finding a common law marriage between Stinson and Crumb, as a matter of law, and in granting summary judgment to Mitchell.

2. Mitchell has moved the court to dismiss this appeal on the ground that Stinson filed for discretionary review when a direct appeal was appropriate. Having considered the motion, it is hereby denied.

Judgment reversed.

Pope, P. J., concurs. Beasley, C. J., concurs in judgment only.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A0117.
    SALEEM v. SNOW et al.
    (460 SE2d 104)
   Ruffin, Judge.

Mustafa Nasir Saleem was convicted of two counts of kidnapping with bodily injury, two counts of armed robbery, two counts of aggravated assault and one count of theft by taking. His conviction was affirmed by our court in Saleem v. State, 169 Ga. App. 952 (315 SE2d 487) (1984). Since then he has filed various actions in both the federal and state courts. This suit was brought under 42 USC § 1983 and the Georgia Tort Claims Act. The defendants are Wayne Snow, former chairman of the State Board of Pardons & Paroles (“BOP”); Bobby Whitworth, former Commissioner of the Georgia Department of Corrections (“Corrections”); Elizabeth Reynolds Fortson, a clerical employee of BOP; BOP, as a board; and the Board of Corrections (“BOC”). In a lengthy complaint, Saleem essentially challenges BOP’s denial of parole and certain disciplinary rules and actions taken by Corrections. Saleem moved for partial summary judgment based upon the defendants’ failure to respond to his request for admissions, and defendants moved for summary judgment on his complaint. Saleem consented to the grant of summary judgment in favor of Fortson and BOC. The trial court denied Saleem’s motion for partial summary judgment, granted summary judgment to Snow and Whitworth, and denied as moot several other motions filed by Saleem. This pro se appeal followed.

These are the eight counts asserted in Saleem’s complaint:

(1) The rules of discipline governing the conduct of prisoners in the Georgia prison system, promulgated by the BOC, are standardless and vague on the one hand and overbroad on the other. Whitworth, as commissioner, was charged with the duty of implementing the rules. When Saleem was considered for parole in 1989 and 1992, his file contained violations of the rules and those violations resulted in the denial of parole.

(2) In promulgating the rule defining the frequency with which prisoners serving life sentences can be considered for parole, Snow and BOP enacted a law in violation of Ga. Const., Art. I, Sec. II, Par. Ill (separation of powers clause).

(3) Saleem was denied due process by Snow and BOP because in denying parole, they considered his convictions, life sentences and alleged prison rule violations, all of which were void.

(4) Saleem was denied the right to personally appear before BOP and that its meetings violate the Open Meetings Act.

(5) Saleem was denied the right to have an attorney represent him before BOP, and he was denied equal protection because other, more dangerous prisoners were granted parole.

(6) The defendants conspired to violate his civil rights in failing to investigate and denying parole.

(7) The defendants violated OCGA §§ 16-10-8 and 16-10-20.

(8) The BOP breached its duty, in violation of OCGA § 51-1-6, by making laws concerning the eligibility and time-served requirements for parole.

The trial court found that the claims against Whitworth failed because (1) Whitworth did not promulgate the Corrections regulations at issue; (2) the disciplinary proceedings occurred in 1984 and 1989, and he did not become Commissioner until 1990; (3) claims based on these disciplinary proceedings were time-barred; (4) Whit-worth was entitled to qualified immunity because the regulations he reasonably relied on were law; and (5) the regulations were adopted during litigation and approved by the federal courts; thus, Saleem is precluded from relitigating them.

As to Snow, the court found (1) the General Assembly was empowered to delegate rule-making authority to the BOP; (2) Snow had absolute legislative immunity; (3) because the last BOP rule-making activity occurred in 1985, the claims were time-barred; (4) Snow had qualified immunity because he reasonably relied on the validity of Saleem’s state criminal convictions; (5) Saleem was collaterally es-topped from relitigating issues raised in a mandamus petition he filed against his trial judge; (6) the claims challenging the validity of Saleem’s convictions were procedurally barred because they may only be asserted in a habeas petition; (7) under OCGA §§ 50-14-3 (2) and 42-9-53, respectively, the BOP was not subject to the Open Meetings Act, and Saleem was not entitled to review his file; and (8) equal protection was not violated because there is no right to counsel in parole proceedings and the fact that other prisoners were paroled, without more, is meritless.

1. Saleem enumerates as error the trial court’s grant of summary judgment.

(a) We will first consider the grant of summary judgment as to Whitworth.

We find no error in the trial court’s determination that Saleem’s claims concerning his 1984 and 1989 disciplinary problems are time-barred under Georgia’s two-year statute of limitation for personal injuries. OCGA § 9-3-33; Giles v. Garwood, 853 F2d 876 (11th Cir. 1988).

Saleem also appears to impute liability to Whitworth (and Snow) because the BOP considered these purportedly unconstitutionally vague disciplinary proceedings when denying Saleem parole. The trial court did not address this argument although it was raised in the complaint. Because it is undisputed that these regulations were promulgated by the BOC and not the Commissioner, the claim fails.

Saleem also argues that Whitworth knew enforcement of Corrections rules violated his due process rights. Since this issue is asserted for the first time on appeal, we need not address it. Jones v. Brooks County &c., 202 Ga. App. 515 (414 SE2d 729) (1992).

The trial court correctly held that Whitworth would be entitled to qualified immunity on the federal claims for damages, but such immunity is limited. Qualified immunity shields state officials from liability for civil damages insofar as their conduct does not violate clearly established federal law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U. S. 800, 818 (102 SC 2727, 73 LE2d 396) (1982). It applies only to suits in an individual capacity for damages. Marx v. Gumbinner, 855 F2d 783, 787 (11th Cir. 1988). Saleem cannot seek prospective injunctive relief from Whitworth because he is not a member of the BOP and did not promulgate the Corrections regulations at issue. Thus, summary judgment should be affirmed on the claims against Whitworth.

(b) We also find no error in the grant of summary judgment to Snow.

The trial court correctly applied the doctrine of legislative immunity to Saleem’s claim that the legislative powers delegated to the BOP as an executive board violate the separation of powers doctrine. Individuals acting in a legislative capacity are absolutely immune from suit. Village of North Atlanta v. Cook, 219 Ga. 316 (1) (133 SE2d 585) (1963). Moreover, the trial court also correctly found that this claim would be time-barred because the last rule-making activity complained of occurred in 1985. The statute of limitation would not bar the remaining claims, however. We will not address Saleem’s argument that OCGA § 42-9-45 unconstitutionally delegates authority to the BOP because it was first raised on appeal. Jones, supra.

Saleem argues that the court erred in rejecting as time-barred his claim that the Corrections regulations were unconstitutionally vague because the BOP considered his disciplinary history (which reflected those violations of the regulations) in his 1993 parole proceedings. This claim is meritless, however. There is no constitutional right to parole. Greenholtz v. Nebraska Penal &c. Complex, 442 U. S. 1, 7 (99 SC 2100, 60 LE2d 668) (1979). Georgia law does not create a liberty interest in parole. Sultenfuss v. Snow, 35 F3d 1494 (11th Cir. 1994). Even so, due process is violated if the BOP engages in “flagrant and unauthorized action” such as knowing use of false information in a parole determination. Monroe v. Thigpen, 932 F2d 1437, 1442 (11th Cir. 1991). However, a litigant fails to state such a claim with conclusory allegations that erroneous information must have been used. Id. Saleem based his argument on uncontested admissions that the BOP considered the disciplinary problems, which the trial court subsequently permitted Snow to withdraw. Because the trial court did not abuse its discretion in allowing the admissions to be withdrawn (see Division 2), Saleem failed to state a claim.

Monroe, supra, also forecloses Saleem’s argument that the trial court erred in granting Snow qualified immunity because it is clearly established that BOP’s admitted reliance on misleading information (arising from disciplinary problems related to the regulations) and void convictions in considering Saleem’s parole violates his right to fair parole consideration. Again, Saleem based this argument on uncontested admissions that the BOP considered the disciplinary problems which the trial court permitted Snow to withdraw.

The trial court limited its qualified immunity ruling on Snow to his refusal to ignore Saleem’s convictions. This ruling was correct. No reasonable person would believe that a state official’s reliance on unvacated criminal convictions violates clearly established federal law. See Kentucky v. Graham, 473 U. S. 159, 166-167 (105 SC 3099, 87 LE2d 114) (1985) (reliance on existing law objectively reasonable).

Because the trial court so limited its ruling on qualified immunity with regard to Snow, Saleem’s other qualified immunity arguments are meritless. These include his claims that qualified immunity was improperly granted because it is clearly established that (1) he has a right to be fairly considered for parole; (2) rules prohibiting actions must provide adequate notice; and (3) invidious discrimination based upon poverty violates equal protection.

Saleem appealed the trial court’s finding that the Open Meetings Act does not apply to the BOP. The trial court correctly ruled that the Open Meetings Act does not apply to parole deliberations. OCGA § 50-14-3 (2) specifically excludes “the deliberations and voting” of the BOP from the strictures of the Open Meetings Act.

2. Saleem also challenged the trial court’s denial of his motion for partial summary judgment, arguing that the trial court abused its discretion in permitting the defendants to withdraw admissions.

Trial courts have discretion to allow the withdrawal of admissions “when the presentation of the merits of the action will be sub-served thereby and the party who obtained the admission fails to satisfy the court that withdrawal . . . will prejudice him in maintaining his action or defense on the merits.” OCGA § 9-11-36 (b). The purpose of requests for admissions is to expedite trial and clarify the issues in a case, not to gain a tactical advantage over the opponent. Rowland v. Tsay, 213 Ga. App. 679 (1) (445 SE2d 822) (1994). The trial court’s ruling may be reversed only upon a showing of abuse of discretion. Id.

The trial court found that, although the requests for admissions were filed on July 9, 1993, the defendants’ counsel stated he did not receive them until September 20, 1993. The court concluded that the merits would be subserved by withdrawal because although no parties presented evidence, a review of the record reveals that the admissions could be refuted by admissible evidence and the motion was not offered solely for delay.

Accordingly, we find no abuse of discretion; therefore, the trial court did not err in allowing withdrawal of the admissions.

3. Saleem argues that the trial court erred in refusing to allow him to amend his complaint in violation of OCGA § 9-11-15 (a). The defendants assert that because Saleem’s motion to amend sought to add numerous additional parties, the court’s permission was required.

The record shows that while this motion was under consideration, the defendants filed their summary judgment motion. The court denied the motion to amend as moot after ruling on the summary judgment motion. Because the court had already resolved the case, denial of the motion to amend was not an abuse of discretion.

4. Saleem claims the court abused its discretion by denying his motion for appointment of counsel as an in forma pauperis litigant. The court denied his motion on a finding that the case was not exceptional. Saleem’s argument fails because superior courts lack the authority to appoint counsel in civil cases if the fees are to be paid with public funds. Willis v. Price, 256 Ga. 767 (353 SE2d 488) (1987). Moreover, because there is no indication that denial of representation resulted in fundamental unfairness in these proceedings or that circumstances made counsel necessary in this case, the court did not abuse its discretion in denying the motion. Brown v. Diaz, 184 Ga. App. 409 (361 SE2d 490) (1987).

5. Saleem argues that the trial court erred in failing to extend discovery. In his motion to enlarge discovery, Saleem asserted that he needed additional time because the defendants had not provided him with all the discovery materials he requested. The court denied the motion as moot after ruling on the summary judgment motion. Inasmuch as the defendants’ motion for summary judgment was decided as a matter of law, additional discovery would not have changed the outcome of the case. Therefore, denial of the motion was not an abuse of discretion. Bridges v. 20th Century Travel, 149 Ga. App. 837 (256 SE2d 102) (1979).

6. Saleem also argues that the court improperly failed to grant his request for public funds to cover transcription costs. His motion seeks recordation of oral argument at the hearing on his motion for partial summary judgment. It appears the trial court dismissed this motion as moot after deciding the summary judgment motion.

Georgia law does not contemplate that the state bear the transcription costs in civil cases. Parties must bear such costs. OCGA § 5-6-41 (c). The court is not required to have the case reported. Liberty Loan & Thrift Corp. v. Meeks, 115 Ga. App. 846 (1) (156 SE2d 172) (1967). Nor was a transcript necessary to the decision in this case. Therefore, the court did not abuse its discretion in denying the motion. Id.

7. Saleem argues that the trial court erred in refusing to order the clerk to certify the transcript he prepared from memory for appeal. The trial court denied Saleem’s motion to order the clerk to certify the transcript for appeal, finding that the transcript was untimely filed despite the fact that Saleem’s election to participate in a settlement conference tolled the time until May 24, 1994, when the defendants elected not to participate in the settlement conference.

Decided July 14, 1995.

Mustafa N. Saleem, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

This court “may not consider a stipulated transcript or a stipulation of the case without the agreement of the parties, unless approved by the trial court. [Cits.] Where the parties are unable to agree, the decision of the trial court is final and not subject to review. [Cits.]” King v. State, 195 Ga. App. 353, 354 (1) (393 SE2d 709) (1990). “[A] stipulated transcript is subject to the same requirements as to time of filing as a transcript by the court reporter, that is, that it be filed with the clerk of the lower court within thirty days of the filing of the notice of appeal. ...” (Emphasis omitted.) Ponce de Leon Properties v. Fulton Cotton Mills, 116 Ga. App. 205, 206 (156 SE2d 487) (1967).

Saleem filed his notice of appeal on May 5, 1994. He filed his motion to order the clerk to certify the transcript for appeal on July 18, 1994, and the defendants contested the motion.

The court did not approve Saleem’s transcript; therefore, its decision should be final and unreviewable. OCGA § 5-6-41 (g). Moreover, the trial court correctly found that Saleem untimely filed the transcript. Even if Saleem’s election to participate in the settlement conference tolled the time for filing until the defendants rejected the idea on May 24, the transcript was untimely filed. Id.

Judgment affirmed.

Pope, P. J., concurs. Beasley, C. J., concurs in judgment only.


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A95A0166.
    KING v. THE STATE.
    (459 SE2d 605)
   McMurray, Presiding Judge.

Defendant was charged with possession of less than one ounce of marijuana in violation of Georgia’s Controlled Substances Act. Defendant filed a motion to suppress the suspected marijuana, contending law enforcement officers unlawfully entered his home in the early morning hours of April 30, 1994, without consent and without a search warrant. The trial court denied the motion to suppress, finding that exigent circumstances arose while a deputy sheriff was attempting to execute an arrest warrant (for defendant’s former house-mate) which authorized the deputy’s “de minimis entry into the house to ensure his safety.” We granted this interlocutory appeal because the circumstances do not support the trial court’s finding that exigent circumstances arose authorizing the deputy’s warrantless intrusion into defendant’s home.

The evidence adduced at a hearing on defendant’s motion to suppress reveals the following: At about 2:30 in the morning on April 29, 1994, Deputy Martin Carlisle Tischner of the Clayton County Sheriff’s Department went to defendant’s home to execute a warrant for the arrest of Dwayne Lee Smith, a former tenant at defendant’s house. Deputy Tischner knocked on the front door, watched defendant (through a window) approach this entrance and then observed defendant retreat “momentarily out-of-sight . . . and [return] to the door to answer it. The deputy identified himself and showed [defendant] the warrant for Smith. [Defendant informed the deputy] that Smith was no longer a resident of [his house;] that he . . . had ‘kicked him out’ and [that] some of Smith’s personal items [were] located on the porch of the house, near to where they were standing.” Defendant then allowed Deputy Tischner into the house, but the deputy’s search only revealed items of personal property in the room where Smith formerly resided. Before leaving, however, defendant advised Deputy Tischner of Smith’s last known place of employment and a business establishment where Smith “sometimes ‘hangs out.’ ”

Suspecting that defendant was secreting Smith’s whereabouts, Deputy Tischner returned to defendant’s home at 6:30 the next morning (April 30, 1994) with Clayton County Deputy Sheriff Mark Anthony Jordan. This time, Deputy Tischner covered the side and back of the house while Deputy Jordan went to the front door and summoned defendant. When defendant opened the door, Deputy Jordan “asked [whether Dwayne Lee Smith] was at that residence and [defendant] started to back up in the doorway.” Deputy Jordan then “told [defendant that he] needed to come in and discuss this [with] him.” Defendant did not respond. He simply “started backing up into the living room. At that point, [Deputy Jordan] entered . . . into the door frame or into the threshold of the residence . . .” and, after stepping about “two-and-a-half, three feet[,]” he “happened to look on the coffee table in the middle of the living room and noticed a Wendy’s cup . . . with a clear plastic baggy with a green leafy material inside of it.” When Deputy Jordan questioned defendant about the contents of this vessel, defendant “grabbed the cup [and] shoved it up underneath the couch.” Deputy Jordan instructed defendant to retrieve the object. Defendant complied, but the cup came up empty. The deputy then reached under the sofa and seized a plastic bag containing a substance which appeared to be marijuana. Held:

In Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38), the United States Supreme Court “held that an arrest warrant as opposed to a search warrant is inadequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances. The Supreme Court noted that ‘Whatever practical problems (in requiring a search warrant in such cases) cannot out-weigh the constitutional interests at stake . . . (T)he right protected — that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government — is weighty.’ Steagald, supra, 451 U. S. at 222.” Otwell v. State, 201 Ga. App. 71, 72 (410 SE2d 178).

In the case sub judice, it is undisputed that Deputy Jordan did not have consent or a search warrant when he entered defendant’s home at 6:30 in the morning on April 30, 1994. Further, we find Deputy Jordan’s testimony insufficient to support the trial court’s finding that exigent circumstances arose which required the deputy’s “de minimis entry into the house to ensure his safety.”

“[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Coker v. State, 164 Ga. App. 493, 495 (5), 496 (297 SE2d 68). In the case sub judice, there is no evidence that defendant made threatening moves or gestures during his early morning encounter with Deputy Jordan, and Deputy Jordan failed to explain why it was necessary for him to advance into defendant’s house “for [his] safety.” Deputy Jordan merely testified that defendant appeared to be “[a]gitated” and that he stepped into the house when defendant “started backing up into the living room.” While these circumstances may provide some remote support for Deputy Jordan’s subjective belief that defendant posed an immediate threat to his safety, it cannot be reasonably said that the deputy’s advance into defendant’s home was a necessary (or wise) response to any perceived threat posed by defendant. Defendant’s “agitation” at 6:30 in the morning, after having twice informed the police that Smith no longer resided with him (even proving this fact to Deputy Tischner the day before), and defendant’s backing into his home, certainly did not put the deputy in jeopardy so as to require him to step inside the defendant’s home for his “safety.” Under these circumstances, the best that can be said is that Deputy Jordan walked into defendant’s house without permission. It is therefore obvious that the deputy entered defendant’s home in the absence of consent or exigent circumstances. “Except in such special situations, [the United States Supreme Court has] consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U. S. 573, 63 LE2d 639, 100 SC 1371 (1980); Johnson v. United States, 333 U. S. 10, 13-15, 92 LE 436, 68 SC 367 (1948).” Steagald v. United States, 451 U. S. 204, 212, supra. “Such unconsented-to entry without a search warrant violated the Fourth Amendment, as the Supreme Court concluded in Steagald.” Otwell v. State, 201 Ga. App. 71, 73, supra. Accordingly, the trial court erred in denying defendant’s motion to suppress.

Judgment reversed.

Beasley, C. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Birdsong, P. J., Andrews and Blackburn, JJ., dissent.

Blackburn, Judge,

dissenting.

I must respectfully dissent from the majority. Because it is not disputed that the marijuana was in plain view, I believe the issue to be decided is whether the officer properly entered King’s home, not whether the officer’s search of King’s home was proper.

On appeal of a suppression hearing we must accept the trial court’s findings on questions of fact and credibility unless clearly erroneous. See State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994). The trial court found that “[a]t the time of the entry into the Defendant’s residence pursuant to the arrest warrant on April 30, 1994, the deputies were possessed of a warrant which listed the address of Smith at 1344 Hatchcover Circle. Furthermore, at the previous attempt to execute the warrant, Deputy Tischner observed what he perceived to be potential furtive conduct on the part of the Defendant, which possibly could have been a ‘tip-off’ to Smith that the Sheriffs were there with a warrant for his arrest. Moreover, on the consent to search of the premises on April 29, 1994, Deputy Tischner observed items of personal property apparently belonging to Smith contained in the room which King indicated was Smith’s bedroom. Based on the foregoing objective bits of information available to the officers on April 30, 1994, the Court finds that the deputy sheriffs had probable cause to believe that 1344 Hatchcover Circle was the address of Dwayne Lee Smith. Furthermore, they were possessed with a valid arrest warrant for him. The Court specifically holds that the officers were not required to rely on potentially self-serving statements of the Defendant King when he told Deputy Tischner at the scene on April 29, 1994, and later phoned the Sheriff’s Department, that Smith no longer resided there.”

The trial court held that Deputy Jordan’s entry into King’s house was authorized under the exigent circumstances exception to the search warrant requirement. The trial court determined that Deputy Jordan was authorized to make a de minimis entry into the house to ensure his safety as King was backing into the house. These findings are supported by the record. Deputy Jordan testified that King was agitated and backed into the house. He further testified that for his own safety, he entered into the threshold of the residence.

The present case is distinguishable from Otwell v. State, 201 Ga. App. 71, 73 (410 SE2d 178) (1991), relied upon by the majority, where we noted that “[t]he best that can be said is that the officers merely walked in without seeking permission.” In the present case evidence of exigent circumstances did exist to justify the officer’s de minimis entry into King’s residence for his own protection. Thereafter, the marijuana was properly seized under the plain view doctrine. As the trial court’s findings were not clearly erroneous, I would affirm its denial of King’s motion to suppress.

Decided July 14, 1995.

A. Larry King, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

I am authorized to state that Presiding Judge Birdsong and Judge Andrews join in this dissent.


author: Pope, Presiding Judge. Beasley, Chief Judge, Ruffin, Judge,

text:
    A95A0247.
    SHEPHERD v. THE STATE.
    (459 SE2d 608)
   Pope, Presiding Judge.

Defendant was charged with the offense of child molestation, and following a bench trial, was convicted of sexual battery. Citing Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993) and Proper v. State 208 Ga. App. 471, n. 1 (431 SE2d 133) (1993), defendant argues the trial court was without authority to convict him of sexual battery because that offense is not a lesser included offense of child molestation, either as a matter of fact or of law. See also Perkins v. State, 212 Ga. App. 225, 227 (6) (441 SE2d 511) (1994); Duck v. State, 210 Ga. App. 205, 207 (4) (435 SE2d 725) (1993). However, we need not reach the issue of whether these cases require reversal of defendant’s conviction. The transcript shows that prior to the court pronouncing defendant guilty of sexual battery, the following colloquy between the court and counsel occurred: The trial judge: “Isn’t sexual battery a lesser included offense of child molestation?” State’s attorney: “No, Your Honor.” Defendant’s attorney: “Depends on the facts. It’s not as a matter of law. It can be.” Following several other comments by the State’s attorney, the trial court announced defendant guilty of the offense of sexual battery. No objection was heard from the defendant at that time.

In Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988), defendant was indicted for child molestation and convicted of simple battery. On appeal he contended that since simple battery is not a lesser included offense of child molestation, and he was not indicted for the offense of simple battery, his conviction for that offense was not authorized. However, this court rejected that contention, finding that any error had been induced by defendant’s conduct in requesting a charge on simple battery. Id. We find this analysis to be controlling in the case at bar. As noted above, defendant in this case indicated to the court that sexual battery could be a lesser included offense of child molestation and posed no objection when the court found defendant guilty of that offense. “Appellant cannot ignore at trial what he thinks is an injustice, take his chances on a favorable verdict, and complain later, nor can he complain on appeal of error that he induced. [Cits.]” Hall v. State, 189 Ga. App. 267, 268 (2) (375 SE2d 460) (1988); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975); Helton v. State, 166 Ga. App. 662, 664 (2b) (305 SE2d 592) (1983); Vick v. State, 166 Ga. App. 572, 573 (2) (305 SE2d 17) (1983); Wright v. State, 162 Ga. App. 60 (290 SE2d 163) (1982). Defendant’s conviction for the offense of sexual battery is affirmed.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.

Beasley, Chief Judge,

concurring specially.

I concur in the affirmance of the judgment but for a different reason than expressed by the majority opinion.

1. I agree with Judge Ruffin that the issue of the validity of the conviction was not waived at trial or precluded from review by an “induced error” rule. Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988), is distinguishable. Unlike Shepherd’s case, Griffith involved a specific request by defendant that the jury be charged that it consider the evidence and return a verdict of guilty or not guilty of simple battery. Since Shepherd’s trial was before a judge, there was no jury charge, and as the special concurrence persuasively sets out, no “inducement.” Left for a jury charge case is a full exploration of whether Griffith should be overruled.

2. The question goes back to State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976), a case in which the Supreme Court held that under the facts of that case, simple battery as defined in the Code is not a lesser crime included in the crime of child molestation (the charge in the indictment) as defined in the Code. Thus it was not error for the judge to fail to charge on simple battery.

Here the trial court, in a bench trial, orally reviewed the evidence and concluded that defendant touched the little girl in a private part, but the court was reluctant to find that child molestation had occurred. The court inquired if sexual battery was a lesser included offense, the State said it was not and cited Landrum v. State, 210 Ga. App. 275, 277 (6) (436 SE2d 40) (1993), defendant’s counsel said it depended on the facts, and the court found defendant guilty of sexual battery. Thus it appears that at Shepherd’s trial, the State, the defense counsel, and the court all agreed that sexual battery could be a lesser included offense of child molestation as a matter of fact. That is certainly understandable, given Landrum.

Landrum, written the same year as Duck v. State, 210 Ga. App. 205 (435 SE2d 725) (1993), cited by the majority and appearing in the same volume of the official reports, left open the possibility that sexual battery could, as a matter of fact, be included in child molestation; there just was not evidence of merely sexual battery in Landrum.

Teasley v. State, 207 Ga. App. 719, 720 (429 SE2d 127) (1993), the sole case on which Duck depends for the statement that the crimes have different elements and protect different classifications of victims, held that because of the narrowly drawn indictment and the evidence, sexual battery was not a lesser included offense in that case as a matter of fact. Teasley did not say that sexual battery could never be a lesser included offense in cases in which the defendant was indicted for child molestation.

Teasley first concludes that sexual battery is not included in child molestation as a matter of law, based on an application of OCGA § 16-1-6 (2). With that I agree. According to this statute, a crime is included in another if it is shown that “[i]t differs from the crime charged only in the respect that... a lesser kind of culpability suffices to establish its commission.” The elements of child molestation are not those of sexual battery plus something more.

As stated above, Teasley also held that sexual battery was not lesser included as a matter of fact in that case. I do not believe that is correct. The facts described at the outset of the opinion show a sexual battery. Teasley intentionally made physical contact with an intimate part of the body of the victim without her consent. The indictment did not have to expressly allege “without consent” because the absence of consent is supplied by the allegation that the victim was under age 14. The law conclusively presumes a child cannot give consent to such an act because of the lack of discernment, as in statutory rape. The Teasley opinion does not describe what was deficient in the indictment vis-a-vis sexual battery.

Sexual battery, a misdemeanor of a high and aggravated nature (OCGA § 16-6-22.1), is a lesser included offense of the felony of child molestation (OCGA § 16-6-4) in this case, as a matter of fact. Defendant Shepherd was charged with child molestation in that he did “commit an immoral and indecent act to [and] in the presence of [A. A.], a child under the age of 14 years, with the intent to arouse and satisfy the sexual desires of said accused person, said act being that [defendant] placed his hand on the vagina of [A. A.].” Removing the elements of specific intent leaves sexual battery. That is, charging defendant with placing his hand on the vagina of A. A. intentionally (i.e., with general criminal intent) would constitute sexual battery if done without her consent. OCGA § 16-6-22.1 (b). Since a person under age 14 cannot legally consent, this element is contained in the indictment for child molestation. Defendant was on notice, McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984), and did not contend otherwise.

The circumstances of the touching, and the victim’s reaction thereafter, clearly allow the inference that the touching was done without her consent, even without considering the victim’s age.

Ruffin, Judge,

concurring specially.

I agree with Chief Judge Beasley that in this case sexual battery is a lesser included offense of child molestation and therefore concur with the affirmance of the judgment. I write separately because I believe the induced error doctrine, relied on by the majority, has no application under the circumstances of this case.

The issue of “induced error” developed when the trial judge asked counsel whether sexual battery is a lesser included offense of child molestation. Shepherd’s attorney answered that it “[djepends on the facts. It’s not as a matter of law. It can be.” From this response the majority concludes that Shepherd “induced” the error he complains about here and is therefore not entitled to relief. While I agree with the majority that Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988) suggests such conclusion, I believe that Griffith should be distinguished. In Griffith, the defendant submitted a request for the court to charge a different offense, clearly inducing the error. In the instant case, however, Shepherd’s counsel simply answered the judge’s question, which even if answered incorrectly, does not constitute induced error. Moreover, regardless of whether Shepherd’s counsel erred in answering the question, I do not believe the “induced error” doctrine should extend so far as to effect a forfeiture of the fundamental right at stake in this case.

At the outset I concede that the doctrine of “induced error” has grown gray in the law; nevertheless, it should continue to have a place in our jurisprudence. It cannot be disputed that even defendants charged with the most heinous crimes are entitled to due process. The fundamental right to due process is one of our national givens and “ ‘[i]t is axiomatic that a conviction upon a charge not made . . . constitutes a denial of due process.’ Jackson v. Virginia, 443 U. S. 307, 314 (99 SC 2781, 61 LE2d 560) (1979).” Crawford v. State, 254 Ga. 435, 438 (1) (330 SE2d 567) (1985). See also Ross v. State, 214 Ga. App. 385 (448 SE2d 52) (1994) (It is an elementary principle of criminal law that no person can be convicted of any offense not charged in the indictment.) The purpose of the requirement is to put the defendant on notice of the crimes he is charged with so that he can prepare for and defend against those crimes at trial and not be surprised by the evidence offered against him. See Crawford, supra; McCrary v. State, 252 Ga. 521 (314 SE2d 662) (1984). In cases where a defendant is convicted of a lesser included offense, it can be said that he was on notice of the convicted offense because either the elements or the facts of the convicted offense are necessarily included in the charged offense. Id.

Again, due process of law is one of our national givens. See In re Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970); Jackson v. Virginia, supra. “It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U. S. 196, 201 (68 SC 514, 92 LE 644) [(1947)]; Presnell v. Georgia, 439 U. S. 14 (99 SC 235, 58 LE2d 207) [(1978)]. These standards no more than reflect a broader premise that has never been doubted in our constitutional system. . . .” (Emphasis supplied.) Jackson v. Virginia, supra at 570. But equally as important as being a national given in our scheme of healthy federalism, due process is also a given recognized by our state since 1861. See Katz, “The History of the Georgia Bill of Rights,” 3 Ga. State Law Rev. 83, 107 (1986-1987).

The United States Supreme Court has stated with certainty the importance of the due process right at stake here. In Cole v. Arkansas, supra, the Court stated that “[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. [Cits.]” Id. at 201. “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Id. (citing DeJonge v. Oregon, 299 U. S. 353, 362 (57 SC 255, 81 LE 278) (1936)).

I do not believe that a defendant can forfeit such right by “induced error” in the circumstances of this case. It is primarily and ultimately the duty of the courts to protect a defendant’s constitutional rights. See Davis v. Passman, 442 U. S. 228 (99 SC 2264, 60 LE2d 846) (1979); Byars v. United States, 273 U. S. 28 (47 SC 248, 71 LE 520) (1927). See also 16 CJS 542, 543, § 169. If we say that a defendant forfeits the due process right involved here simply because his attorney answered a question posed by the judge, we are allowing the trial court to disclaim one of its most fundamental duties. Even though this court has previously decided that such right can be forfeited by induced error, I do not believe that induced error is present in the circumstances of this case and the above authority, that the United States Supreme Court intended that to be the rule, or that the Fourteenth Amendment to the United States Constitution or Art. I, Sec. I, Par. I of the Georgia Constitution allow it. The error, if any, was midwifed into this case, not self-induced.

Decided July 14, 1995.

David A. Lamalva, for appellant.

Cheryl F. Custer, District Attorney, S. Dabney Yarbrough, Assistant District Attorney, for appellee.


author: Blackburn, Judge. Beasley, Chief Judge, McMurray, Presiding Judge,

text:
    A95A0393.
    PRATT & WHITNEY CANADA, INC. v. SANDERS et al.
    (460 SE2d 94)
   Blackburn, Judge.

Jerry Sanders and Joseph Sanders, as representatives of the estate of Terry Sanders, brought the underlying products liability action against Pratt & Whitney Canada, Inc., (PWC) and numerous others, alleging that the PT6A gasoline turbine engine made by PWC was faultily designed, causing the fatal crash, in Kentucky, of a King Air 100 airplane in which plaintiffs’ decedent was a passenger. PWC denied the material allegations of the complaint and moved to dismiss it due to the absence of personal jurisdiction and insufficiency of service of process. PWC’s jurisdictional challenges were denied, and the case proceeded to trial with PWC as the sole remaining defendant. The jury found for plaintiffs, and PWC appeals the denial of its motions for new trial and for judgment n.o.v.

In its first enumeration of error, PWC contends the trial court erred in denying its motion to dismiss for lack of personal jurisdiction.

The controlling facts of this case are clear: plaintiffs are not Georgia residents; the plane did not crash in Georgia; and the defendant, PWC, is not a Georgia corporation. Under these facts, Georgia law does not authorize the exercise of jurisdiction. The corporations over which Georgia might exercise jurisdiction fall into three categories: (1) domestic corporations, i.e., corporations organized and existing under the laws of Georgia; (2) resident foreign corporations, i.e., corporations organized and existing under the laws of another state but authorized to do business in Georgia (OCGA § 14-2-1501); and (3) nonresident foreign corporations, i.e., corporations organized and existing under the laws of another state and not authorized to do or transact business in this state (OCGA § 9-10-90). General jurisdiction can be exercised over domestic corporations and resident foreign corporations. Allstate Ins. Co. v. Klein, 262 Ga. 599 (422 SE2d 863) (1992). However, jurisdiction is limited by the Long Arm Statute when dealing with nonresident foreign corporations. Id. See also Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987); McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807 (1) (418 SE2d 95) (1992).

In Klein, supra, the Georgia Supreme Court determined that “a plaintiff wishing to sue in Georgia a corporation authorized to do business in Georgia is not restricted by the personal jurisdiction parameters of [the Long Arm Statute, OCGA] § 9-10-91, including the requirement that a cause of action arise out of a defendant’s activities within the state.” In Klein, the Supreme Court focused on the definition of “nonresident” in the Long Arm Statute, OCGA § 9-10-90.* The Court reasoned that “[i]t is apparent from the language of this definition that a corporation which is ‘authorized to do or transact business in this state at the time a claim’ arises is a ‘resident’ for purposes of personal jurisdiction over that corporation in an action filed in the courts of this state. As a resident, such a foreign corporation may sue or be sued to the same extent as a domestic corporation.” Klein, supra at 601.

In the present case, PWC is a Canadian corporation with its principal place of business in Longueuil, Quebec. PWC is not authorized to do or transact business in Georgia, does not have any offices or employees in Georgia, and does not have a registered agent for service of process in Georgia. Virtually all aircraft engines manufactured by PWC are sold FOB Longueuil, Quebec, Canada. Although at least two Georgia corporations purchase products from PWC, it is clear that PWC is a nonresident, as defined by OCGA § 9-10-90. “The Long Arm Statute applies solely to persons who were non-residents of Georgia at the time the act or omission complained of occurred. [Cit.]” Klein, supra at 600. Because PWC is a nonresident, the exercise of personal jurisdiction over it requires that the cause of action arise out of its activities within the state. Id.

The dissent recognizes that no jurisdiction attached under the Long Arm Statute, but contends that general jurisdiction applies due to PWC’s “continuous and systematic commercial contacts with this State.” While the dissent emphasizes the number of orders made by PWC customers in Georgia, we have previously determined that transacting business requires “more than mail orders which require acceptance in a nonresident state. Furthermore, transacting business would not be involved where the sole local performance was delivery of items ordered to this state. [Cits.]” Coe & Payne Co. v. Wood-Mosaic Corp., 125 Ga. App. 845, 857 (189 SE2d 459) (1972) rev’d on other grounds 230 Ga. 58 (195 SE2d 399) (1973). Visits to Georgia by the agents of a nonresident foreign corporation have also been held to be insufficient contacts to Georgia to support jurisdiction in breach of contract actions. See O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974); Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892 (380 SE2d 303) (1989). Additionally, placing advertisements in national newspapers is insufficient to support jurisdiction in Georgia. See Gust, supra.

Although individual presence is still a sufficient basis for jurisdiction when dealing with a person, when dealing with a corporation, more is required. “International Shoe illustrates the problems with dealing with the ‘fiction’ of the corporate personality. Corporate presence can only be manifested by corporate activity and therefore a minimum contacts analysis seems appropriate. However, when an individual is personally served within the state, we are talking about actual presence. Minimum contacts analysis is not necessary.” Humphrey v. Langford, 246 Ga. 732, 733 (273 SE2d 22) (1980).

The test for sufficient minimum contacts was discussed in Shellenberger v. Tanner, 138 Ga. App. 399 (227 SE2d 266) (1976), and reflected in our present Long Arm Statute. “ ‘(1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum. ... (2) The plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant within the forum; and (3) If (and only if) the requirements of Rules 1 and 2 are established, a “minimum contact” between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of “fair play” and “substantial justice.” ’ ” State of South Carolina v. Reeves, 205 Ga. App. 656, 657 (423 SE2d 32) (1992). A finding of jurisdiction over a nonresident outside the confines of the Long Arm Statute “would result in an unconstitutionally broad construction of’ the statute. Id. at 658. “The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction.” Gust, supra at 130.

Because PWC is a nonresident foreign corporation, the cases cited by the dissent, with one exception, are inapposite as they involve either resident foreign corporations or jurisdiction based on the Long Arm Statute. See Reeves v. Southern R. Co., 121 Ga. 561 (49 SE 674) (1905) (“A foreign corporation doing business in this State and having agents located therein for this purpose may be sued and served in the same manner as domestic corporations.”); Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585 (434 SE2d 778) (1993) (“National, a Pennsylvania corporation, answered, admitting that it was a Pennsylvania corporation qualified to do business in Georgia and that its registered agent in Georgia was the person served.”); Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 247 (414 SE2d 658) (1991) (jurisdiction over nonresident foreign corporation pursuant to the Long Arm Statute, OCGA § 9-10-91 (3)); Winston Corp. v. Park Elec. Co., 126 Ga. App. 489 (191 SE2d 340) (1972) (whether a foreign corporation which had transacted business in Georgia without first having procured a qualification certificate required by OCGA § 14-2-1501, had ability to maintain a cause of action in Georgia courts in violation of OCGA § 14-2-1502); Louisville &c. R. Co. v. Meredith, 66 Ga. App. 488, 491 (18 SE2d 51) (1941) (The defendant, a foreign corporation operating railroad lines in Georgia, had an office and agent for service of process in Georgia.).

The dissent also relies on Aiken Asphalt Paving Co. v. Winn, 133 Ga. App. 3 (209 SE2d 700) (1974). In Aiken, the cause of action did not arise out of the business conducted in Georgia by the nonresident foreign corporation. Therefore^ the Long Arm Statute did not provide a basis of jurisdiction. The court, however, exercised jurisdiction over the nonresident foreign corporation based upon a finding that it was “doing business” in Georgia. Id. at 5. The analysis of the court in Aiken was overruled sub silentio by the Georgia Supreme Court in Gust, supra at 130, and Klein, supra at 600, wherein the Supreme Court made it clear that jurisdiction ovér a nonresident foreign corporation can only be maintained within the confines of the Long Arm Statute. Therefore, the “doing business” analysis of Aiken, supra, can no longer be followed.

In a proper case, where the cause of action arises out of PWC’s activities within the State of Georgia, our Long Arm Statute would provide a basis for the exercise of jurisdiction in Georgia. In the present case, however, Georgia has no basis to assert jurisdiction over PWC, a nonresident foreign corporation, because the cause of action did not occur in Georgia, and no other basis exists therefor. The trial court’s denial of PWC’s motion to dismiss was erroneous.

Judgment reversed.

Birdsong, P. J., Andrews, Johnson and Ruffin, JJ., concur. Beasley, C. J., and Pope, P. J., concur specially. McMurray, P. J., dissents. Smith, J., not participating.

Beasley, Chief Judge,

concurring specially.

The nonresident defendant does transact business within Georgia and could come under the first ground which OCGA § 9-10-91 provides for the exercise of personal jurisdiction over it. In this regard, there are enough of those “minimum contacts” which would satisfy federal and state constitutional due process concerns.

The problem is that the cause of action in this case did not arise from any of the acts or omissions in the transaction of that business, which is another requirement of long arm jurisdiction under that statute. They arose out of an airplane crash in Kentucky.

The dissent would hold that there was jurisdiction over the nonresident beyond the confines of the Long Arm Statute. Although that might be possible under constitutional due process law, as recognized in Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987), that is not Georgia’s law. “[T]he requirement that a cause of action ‘arise out of activities within the state (OCGA § 9-10-91), applies ... to the exercise of personal jurisdiction over nonresidents.” Allstate Ins. Co. v. Klein, 262 Ga. 599, 600 (422 SE2d 863) (1992).

Justice Gregory, in his concurring opinion in Gust, proposed that Georgia revise its law so that “its courts [would] have the maximum jurisdiction permissible within constitutional due process.” Id. at 130. The Supreme Court had earlier noted, in a case involving subsection (3) rather than purportedly subsection (1), that “the policy of our Long Arm Statute is to exercise jurisdiction over nonresident defendants to the maximum extent permitted by procedural due process. [Cit.]” Bradlee Mgmt. Svcs. v. Cassells, 249 Ga. 614, 617 (292 SE2d 717) (1982). It extracted this statement from the decision in Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58 (195 SE2d 399) (1973), which was reaffirmed in Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9) (1979). Whether the boundaries of our Long Arm Statute are coextensive with those of constitutional due process or not, we can neither change the boundaries of our Long Arm Statute nor create new ones outside it. This is beyond our judicial powers.

With this in mind, I cannot agree with the statement in the majority opinion that “[a] finding of jurisdiction over a nonresident outside the confines of the Long Arm Statute ‘would result in an unconstitutionally broad construction of the statute. [Cit.]” Majority at pp. 3-4. This may or may not be so. The quotation is taken from a case in which it was held that there were insufficient contacts existing between this state and the foreign defendant state in the particular circumstances to satisfy constitutional due process. Consequently the court in that case, State of South Carolina v. Reeves, 205 Ga. App. 656 (423 SE2d 32) (1992), refused to construe Georgia’s Long Arm Statute as broadly as the appellee desired.

I am authorized to state that Presiding Judge Pope joins in this special concurrence.

McMurray, Presiding Judge,

dissenting.

I fully agree with my colleagues in the majority that the Georgia Long Arm Statute, OCGA § 9-10-91, does not confer upon Georgia courts any authority to exercise personal jurisdiction over defendant Pratt & Whitney Canada, Inc. (“PWC”), the nonresident manufacturer of (allegedly) defective airplane engines, because this product liability action arises out of a plane crash in Kentucky and does not involve any tortious conduct or tortious consequences within the State of Georgia. PWC, however, contends that personal jurisdiction may be exercised over it only under the Georgia Long Arm Statute, OCGA § 9-10-91. This analysis fails to appreciate the distinction between a general jurisdiction and a specific jurisdiction. It is my view that PWC is subject to a general jurisdiction in the courts of Georgia due to its continuous and systematic commercial activities in Georgia. As the trial court did not err in denying PWC’s OCGA § 9-11-12 (b) (2) motion, I respectfully dissent from the judgment of reversal.

In support of its jurisdictional challenge, PWC submitted the affidavit of C. J. C. Pascoe, its Vice President, Counsel, and Corporate Secretary, who deposed that PWC is a Canadian corporation with its principal place of business in Longueuil, Quebec; that PWC “does not have any offices or employees in the State of Georgia [; and that virtually] all aircraft engines manufactured by [PWC] are sold FOB Longueuil, Quebec, Canada.” The Pascoe affidavit also indicates that former defendant Pratt & Whitney Aircraft of West Virginia, Inc. (West Virginia), a nonparty to this appeal, is wholly owned by United Technologies Corporation, a Delaware corporation that was never sued in this case. Similarly, the former defendant (now nonparty) P&WC Aircraft Services, Inc. (“Services”), which “has a facility in Atlanta, Georgia,” is a Delaware corporation owned by United Technologies Corporation. The plane involved was owned by a Florida corporation and had been recently used for business in Milledgeville, Georgia. On the day in question, the plane took off from Milledgeville and landed in Birmingham, Alabama, and Orlando, Florida, before the fatal crash took place in Kentucky.

Plaintiffs responded with the subsequent deposition testimony of Christopher C. J. Pascoe, who explained that PWC is in business to “design, develop, manufacture and market [and support] small gas turbine engines for the commuter and regional transport markets.” United Technologies Corporation owns 98 percent of the shares of PWC. In addition to his offices with PWC, Mr. Pascoe is a director in each of the affiliated corporations, Services and West Virginia. He identified a PWC advertisement from an issue of Aviation Week referring to a service station in Atlanta, Georgia, “operated by P&WC Aircraft Services, Inc., which is an affiliated company.” Mr. Pascoe affirmed that “all of the directors of . . . P&WC Aircraft Services, Inc. [are] officers of [PWC].” Mr. Pascoe also identified expense reports for PWC employees who had “visited the State of Georgia in 1990[, . . . generally] in connection with business. . . .” PWC had two engine customers in Georgia in 1990, and with one of them, Ayres Corporation, PWC “regularly [does] three to four million dollars of business a year[.]” PWC maintains in Georgia “no salesmen or distributors or consignees as such.” PWC does, however, keep approximately $120,000 of tooling and parts on “consignment with Atlantic Southeast Airlines[ . . . ] as a customer service. . . .” This was not an effort to make additional sales but was intended “primarily to keep up an established relationship.” PWC also ships spare parts to its sister corporation, Services, at the latter’s service center in Atlanta. Expense reports indicate that PWC sent employees to Georgia for the purpose of customer relations, i.e., “keeping in touch with customers and suppliers. ...” Specifically, PWC had “marketing people visiting customers in Georgia; some of them were purchasing personnel visiting suppliers in Georgia.” Mr. Pascoe identified the deposition exhibit 13 as a 1990 “Ayres Corporation purchase order, ... for PT6A-65AG engines.” He affirmed that PWC “makes . . . the engine for the King Air 100 aircraft,” the plane that crashed in this case. Contrary to PWC’s contentions, however, the fact that it is incorporated under the laws of the Province of Quebec, Canada, with its principal place of business in Quebec, does not necessarily mean that it is subject to personal jurisdiction only under the Georgia Long Arm Statute.

“When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant. Helicopteros Nacionales de Colombia v. Hall, 466 U. S. 408, 414, fn. 9 (104 SC 1868, 80 LE2d 404). Conversely, “when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the State is exercising ‘specific jurisdiction’ over the defendant.” Helicopteros Nacionales de Colombia v. Hall, 466 U. S. 408, 414, fn. 8, supra. See also Burger King Corp. v. Rudzewicz, 471 U. S. 462, 473, fn. 15 (105 SC 2174, 85 LE2d 528). It is my view that, the Georgia Long Arm Statute is applicable only when the State is justifying its exercise of “specific jurisdiction” over the objection of a nonresident. According to the Supreme Court of Georgia, OCGA § 9-10-91 “requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where . . . it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513). “The Long Arm Statute applies solely to persons who were nonresidents of Georgia at the time the act or omission complained of occurred. [Cit.]” Allstate Ins. Co. v. Klein, 262 Ga. 599, 600 (422 SE2d 863). But the Supreme Court of Georgia has never held that the Long Arm Statute even applies to a “general jurisdiction” circumstance. “Corporate presence can only be manifested by corporate activity and therefore a minimum contacts analysis seems appropriate.” Humphrey v. Langford, 246 Ga. 732, 733 (273 SE2d 22). Moreover, in a whole court decision, this Court recently affirmed the following proposition: “ ‘The general jurisdiction of State courts extends to transitory causes of action arising in another State, even though the plaintiff may not have been a resident of the State where the cause of action arose and the defendant may be a foreign corporation, so long as it is confined to the field from which the State itself is not excluded under the provisions of the United States constitution.’ [(Emphasis supplied.)] Louisville[ &c. R. Co. v. Meredith, 66 Ga. App. 488 (18 SE2d 51), aff'd, 194 Ga. 106 (21 SE2d 101)]. A foreign corporation is present in any place where its officers or agents transact business in behalf of the corporation under authority conferred by it. Reeves v. Southern R. Co., 121 Ga. 561, 565 (49 SE 674) (1905).” Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 586 (2), 587 (434 SE2d 778). There is “ ‘no requirement of federal due process that either prohibits (a state) from opening its courts to (a cause of action not arising out of the corporation’s activities in the state) or compels (a state) to do so. This conforms to the realistic reasoning in International Shoe v. Washington (cits.). (Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 444-446 (72 SC 413, 96 LE 485) (1952).)” (Emphasis in original.) Allstate Ins. Co. v. Klein, 262 Ga. 599, 601, fn. 3, supra.

In the case sub judice, the evidence is undisputed that PWC markets its products, including the type of defective engine involved in this case, to Georgia customers. PWC has prepositioned spare parts and material in Georgia and sends its employees to Georgia for ongoing “customer relations,” notably on behalf of a single customer accounting for more than $3 million in annual sales. “Thus, we are not faced with an isolated transaction, but with extended activities which evidence an intention to continue business in this [S]tate. Winston Corp. v. Park Elec. Co., 126 Ga. App. 489 (191 SE2d 340). The evidence in the instant case demanded a finding that [defendant PWC] was ‘doing business’ in this [S]tate.” Aiken Asphalt Paving Co. v. Winn, 133 Ga. App. 3, 4 (2), 5 (2b) (209 SE2d 700). “As a matter of federal due process, the business done by [PWC] in Georgia was sufficiently substantial and of such a nature as to permit Georgia to entertain the [product liability] cause of action against it, though the cause of action arose from activities [arguably] distinct from its activities in Georgia. Perkins v. Benguet &c. Mining Co., 342 U. S. 437, 447-449 [supra]; [Cits.]” Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 586 (2b), 588, supra. See also Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 247 (2), 249 (414 SE2d 658).

Decided July 14, 1995

Kilpatrick & Cody, Susan A. Cahoon, Craig E. Bertschi, Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., for appellant.

Jason T. Schneider, for appellees.

Moreover, I note that personal service of process on PWC in Quebec, “in conformity with the Law of the Province of Quebec,” is also sufficient under Georgia law. “All process may be served anywhere within the territorial limits of the state and, when a statute so provides, beyond the territorial limits of the state.” OCGA § 9-11-4 (f). Canada is a signatory to the 1965 Hague Convention on Service Abroad of Judicial and Extra Judicial Documents, which is statutory authority to effect service of process beyond the territorial limits of Georgia. Camp v. Sellers & Co., 158 Ga. App. 646, 647 (2) (281 SE2d 621). It follows that personal service abroad on a PWC vice president by an authorized Canadian process server was adequate service of process, since PWC is a foreign corporation “doing business” in Georgia but with no registered agent for service of process within the jurisdiction. OCGA § 9-11-4 (d); American Photocopy Equip. Co. v. Lew Deadmore & Assoc., 127 Ga. App. 207, 210 (4) (193 SE2d 275). The trial court did not err in refusing to dismiss this complaint, either under OCGA § 9-11-12 (b) (2) or OCGA § 9-11-12 (b) (5). The majority would reverse on jurisdictional grounds, based (in my view) on a misapprehension that the Georgia Long Arm Statute, OCGA § 9-10-91, is the sole authority for exercising a general jurisdiction over this nonresident corporate defendant which enjoys more than $3 million in annual sales to Georgia customers but which has not registered to do business in this State.

Accordingly, the trial court’s judgment should be affirmed.

       Essentially, the dissent would find that the exercise of personal jurisdiction over PWC is proper as it is a resident foreign corporation by virtue of its “doing business” in Georgia. While a foreign corporation can be a “resident” for purposes of personal jurisdiction, the facts of this case do not support such a conclusion.

       OCGA § 9-10-90 provides, in pertinent part: “As used in this article, the term ‘nonresident’ includes ... a corporation which is not organized or existing under the laws of this state and is not authorized to do or transact business in this state at the time a claim or cause of action under Code Section 9-10-91 arises.”


author: Pope, Presiding Judge.

text:
    A95A0503.
    WILLIAMS et al. v. SERVICE CORPORATION INTERNATIONAL et al.
    (459 SE2d 621)
   Pope, Presiding Judge.

Plaintiff Service Corporation International (“SCI”) brought an action on its own behalf, and derivatively on behalf of H. M. Patterson & Son, Inc. (“Patterson”), against the accounting firm that handled Patterson’s business affairs (defendant Williams, Benjamin, Benator & Libby) (“WBBL”). Plaintiff also named WBBL’s individual partners as defendants in the action. After the trial court dismissed SCI’s direct action, defendants moved to dismiss the derivative action on the basis that SCI lacked standing to maintain it. The trial court denied defendants’ motion to dismiss. We granted defendants’ application for interlocutory appeal regarding that denial. On appeal, defendants contend that the trial court’s denial of their motion to dismiss constituted error. We disagree and affirm.

Patterson is a Georgia corporation that owns and operates several funeral homes in the Atlanta area. SCI is an international company that owns and operates numerous funeral homes throughout North America, including several in the Atlanta area. In December 1991, SCI became a minority shareholder in Patterson by purchasing 31 percent of Patterson’s outstanding common stock. At that time, the remaining shares were owned by Lee Patterson Allen and the Allen Trust (“Allens”). The Allens served as the directors and officers of Patterson.

On October 16, 1990, SCI filed a derivative action in Fulton County Superior Court against the Allens (the “Allen Action”). In that lawsuit SCI alleged that the Allens were guilty of various breaches of fiduciary duty, misappropriation of corporate opportunities, conversion, self-dealing, negligence, fraud and conspiracy. Some 17 months later, SCI filed a motion to add defendants to the Allen Action. The Fulton County Superior Court denied the motion as untimely. As a result, on September 21, 1992, SCI filed the direct and derivative action, which is the subject matter of this appeal, against defendants in the DeKalb County Superior Court. In its complaint, SCI alleged that defendants had aided and abetted the Allens, and SCI asserted derivative claims against defendants for breach of fiduciary duty, breach of agency, breach of contract and malpractice. SCI also brought a direct claim against defendants for breach of fiduciary duty. Defendants answered, denying liability. Subsequently, the trial court determined that SCI was not entitled to maintain its direct claim against defendants in this case based on the Supreme Court’s holding in Thomas v. Dickson, 250 Ga. 772 (301 SE2d 49) (1983). Therefore, the court dismissed SCI’s direct claim. Thereafter, SCI and the Allens settled the Allen Action. As part of the settlement, the Allens sold all of their stock in Patterson to a wholly owned subsidiary of SCI. Thus, at this time SCI and its wholly owned subsidiary are the sole shareholders in Patterson.

On November 5, 1993, defendants filed a motion to dismiss SCI’s derivative claims on the ground that SCI lacked the capacity to assert such claims on behalf of Patterson. Specifically, defendants argued that SCI did not fairly and adequately represent the interests of the corporation. The trial court submitted the motion to dismiss to a special master and, based upon the special master’s recommendation, denied defendants’ motion. In their sole enumeration of error, defendants contend that the trial court erred in failing to dismiss SCI’s derivative claims against them.

Under OCGA § 14-2-741, “[a] shareholder may not commence or maintain a derivative proceeding unless the shareholder: (1) [w]as a shareholder of the corporation at the time of the act or omission complained of or became a shareholder through transfer by operation of law from one who was a shareholder at that time; and (2) \f\airly and adequately represents the interests of the corporation in enforcing the right of the corporation.” (Emphasis supplied.) Defendants contend that it is evident that SCI does not fairly and adequately represent the interest of Patterson in this case because it filed both a direct and derivative claim against defendants, and because it brought this action and the Allen Action as a guise to gain control of Patterson. We cannot agree.

To begin, we note that there is nothing wrong with a shareholder filing a derivative claim on behalf of a corporation, while at the same time filing a direct claim on his own behalf. See Grace Brothers, Ltd. v. Farley Indus., 264 Ga. 817 (450 SE2d 814) (1994); C & S Land Transp. &c. Corp. v. Yarbrough, 153 Ga. App. 644 (266 SE2d 508) (1980); see also 12B W. M. Fletcher, Cyclopedia of the Law of Private Corporations, § 5908 (perm, ed.) (“shareholders have the right to bring direct and derivative actions-simultaneously”). Consequently, we reject any argument to the effect that SCI is not an adequate representative merely because it simultaneously filed a direct and derivative action against defendants in this case.

Under the particular facts of this case, we also reject defendants’ argument that SCI is not an adequate representative of Patterson based on its involvement in the Allen Action. Contrary to defendants’ assertions, there is nothing in the record to indicate that SCI brought the Allen Action as a mere guise to gain control of Patterson. At the time SCI filed the Allen Action and the derivative action involved in this appeal, it was the sole minority shareholder in a closely held corporation whose officers and directors were all members of the majority. Although SCI’s interests were antagonistic to the Allens’ interests, this does not mean as a matter of law that SCI’s interests were antagonistic to those of the corporation itself. “The most important element to be considered [in determining whether a shareholder is an adequate representative] is whether [the shareholder’s] interests are antagonistic to those he is seeking to represent. If there is a conflict of interest, the representation may well be deemed inadequate and the suit dismissed. Of course, a purely hypothetical dispute will not necessitate dismissal.” (Citation and punctuation omitted; emphasis supplied.) Robinson v. Computer Servicenters, 75 F.R.D. 637, 641 (N. D. Ala. 1976).

Decided July 14, 1995

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Dennis A. Brown, for appellants.

Harkleroad & Hermanee, Donald R. Harkleroad, James P. Hermanee, Timothy J. McGaughey, for appellees.

In this case, SCI was seeking to represent the interests of Patterson, not its majority shareholders. Therefore, even if SCI’s interests were antagonistic to the Allens’ interests at the time it brought suit against defendants, SCI could still maintain the derivative suit on behalf of Patterson. The mere assertion that SCI’s interests may have been antagonistic to Patterson’s creates no more than a hypothetical dispute, and as such, does not necessitate a dismissal.

Based on the above, we cannot conclude as a matter of law that SCI was not an adequate representative of Patterson at the time it filed the derivative action against defendants. Furthermore, it is clear that SCI is an adequate representative now because SCI and its wholly owned subsidiary own all of the corporation’s stock. Thus, we find no error in either the special master’s recommendation or the trial court’s denial of defendants’ motion to dismiss.

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs in judgment only.

       OCGA § 14-2-741 (2) varies from its counterpart found in Federal Rule of Civil Procedure 23.1 to the extent that the Code Section requires that a shareholder bringing a derivative suit “must fairly and adequately represent the interests of the corporation rather than shareholders similarly situated. . . .” See Official Comment to OCGA § 14-2-741.


author: Beasley, Chief Judge. Ruffin, Judge,

text:
    A95A0717.
    SMITH v. THE STATE.
    (460 SE2d 114)
   Beasley, Chief Judge.

Roy Dean Smith was convicted of possession of marijuana with intent to distribute. He appeals from the judgment of conviction and sentence enumerating as error the denial of his motion to suppress.

On May 12, 1994, Fulton County Police Captain John Grant met with Investigators Jenkins and Hall from the Gwinnett County District Attorney’s office during the Gwinnett officers’ stakeout of an apartment at 5735 Roswell Road in Fulton County. The investigators indicated they had arrested an individual earlier that day with five pounds of marijuana who, according to their confidential informant, had purchased the contraband at the apartment from a person identified only as “Roy.” The informant was also present during a previous marijuana purchase at the apartment which occurred within 24 hours of the arrest, and he directed the investigators there.

When the officers went to the resident manager’s office to ascertain who lived in the apartment, they discovered that the unit under surveillance, apartment 502, was occupied by Japanese college students. However, because one of the officers and an employee of the apartment manager knew that the suspect owned a white truck, the officers eventually determined that the correct unit was actually apartment 504 using a map of the complex. Apartment 504 was leased to C. D. Ray; however, Captain Grant testified that the resident manager told him that Roy Dean Smith lived there.

The officers then went to apartment 504, identified themselves, and Smith permitted their entry. Captain Grant testified that as they walked in, Smith picked up an ashtray containing several marijuana cigarette butts from the coffee table and placed the ashtray on top of a high cabinet, out of the officers’ view. Captain Grant asked Smith if he would consent to a search of the apartment. When Smith refused to consent, he was arrested for possession of marijuana. Captain Grant then secured the apartment until a search warrant could be obtained.

Captain Grant telephoned Fulton County Detective E. D. Hardy at a local precinct to obtain a search warrant. Investigator Jenkins related information to Hardy regarding the recent marijuana purchases at the apartment for inclusion in the search warrant application. After the warrant was issued and Detective Hardy left the precinct, he looked at the warrant and noticed that he incorrectly listed the address of the subject premises as 7000 Roswell Road instead of 5735 Roswell Road. He testified that he immediately phoned the magistrate who issued the warrant and explained that he erred in filling out the application and search warrant because he was thinking of another investigation he was working on at the time at 7000 Roswell Road when he inadvertently recorded that address. The magistrate authorized Hardy to correct the warrant and to place his initials next to the corrections. The warrant was executed, and 717 grams of marijuana were seized from Smith’s apartment.

Smith contends the court erred in denying his motion to suppress in three respects: (1) there was no showing of the informant’s reliability; (2) the affidavit supporting the warrant contained false information; and (3) the warrant was drawn on a different address.

“ ‘Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. [Cits.] In cases where an informant supplies the information to one officer who then relays it to a fellow officer, the question has revolved around the reliability of the informant. Where the informant is found to be reliable, probable cause for the non-receiving officer to search exists. [Cits.] However, where the officer receiving the tip could not establish the credibility of the informant, probable cause was not demonstrated. [Cit.]’ ” Collins v. State, 188 Ga. App. 172, 173 (372 SE2d 503) (1988).

“Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the totality of the circumstances, including the veracity and basis of knowledge of the informant, there is a fair probability that contraband or evidence of a crime will be found in a particular place. While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” (Citations and punctuation omitted.) State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).

The application for the search warrant reads in pertinent part: “On May 12, 1994, Affiant was contacted by Investigator John F. Jenkins of the Gwinnett County Police Department who advised Affiant that on May 12, 1994 a subject by the name of Steve Santmynes was arrested in Gwinnett County. At the time of his arrest the subject was in possession of five pounds of illegal marijuana. Further the Investigator . . . stated that a confidential and reliable informant who assisted in the arrest of Mr. Santmynes was in the company of the subject on two occasions within the past 24 hours when contraband was received by Mr. Santmynes from a subject identified as Roy Dean Smith at 5735 Roswell Road, Apartment 504, Atlanta, Fulton County, Georgia. Investigator John Jenkins . . . advised Affiant that the Informant is reliable and has given information in the past which has led to arrests.”

The affidavit shows the confidential informant was reliable. It says the informant “assisted” in Santmynes’ arrest that very day. It may be inferred he was with the police when Santmynes was arrested and had to face the person he identified. Santmynes was indeed in possession of marijuana, not just a small amount, but five pounds worth. Why was Santmynes arrested? Apparently because the informant had told the Gwinnett police he had been with Santmynes twice within the past 24 hours when Santmynes bought marijuana from Roy Dean Smith at a certain apartment on Roswell Road. The informant’s information that Santmynes was in possession of marijuana was proven true at the arrest. The fact that he jeopardized himself by advising the police that Santmynes had just bought marijuana twice and was in possession of it and then assisted in Santmynes’ arrest showed that he was reliable when he said where and from whom he saw Santmynes get the marijuana.

As to misidentification of the apartment, the affidavit did not state that the confidential informant identified Smith at apartment 504, but rather that the informant said the marijuana came from a “subject identified as Roy Dean Smith”; the identification came from the informant’s information and further investigation.

Smith asserts the affidavit contained only conclusory statements about the informant’s reliability. However, Bowe v. State, 201 Ga. App. 127 (410 SE2d 765) (1991), applies the instructions in Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978), with respect to the types of information which should be given a magistrate so the magistrate can decide that an informant is reliable and trustworthy: “the type of information previously supplied by the informant, the use to which the information was put and the elapsed time since the information was furnished.” Bowe, supra at 131. Bowe says it is not necessary in every case for all three of the factors to be shown, “as long as the magistrate has sufficient information to make an independent analysis.” Id. Nevertheless, the three factors are present here:

(1) “the type of information previously supplied” was that Steve Santmynes had just bought marijuana twice within the past 24 hours from a subject in a certain apartment on Roswell Road, and that the informant was with him there when he did it.

(2) “the use to which the information was put” was that Santmynes was arrested, with the assistance of the informant, and possessed five pounds of marijuana.

(3) “the elapsed time since the information was furnished” was just a few hours, whether the elapsed time means the time the information about Santmynes was acted upon and he was arrested or the elapsed time means the time since the information about the source of Santmynes’ marijuana was acted on. Apparently it means the time period between the receipt of the past reliable information and the time of the affidavit for the new warrant. See Galgano, supra at 286. If this is what is meant, still it is only a few hours.

Here, then, there was a basis for the magistrate to believe the informant was reliable (his prior information panned out into an arrest of Santmynes with marijuana) and the information he gave was reliable (Santmynes did have marijuana). In Galgano, the court found that the information provided by the informant was not corroborated in the affidavit so the court turned to see whether the affidavit showed that the informant himself was reliable or trustworthy. Id. at 285. It listed the three factors and found that the information in the affidavit was insufficient to establish the informant’s reliability. The problem was “the absence of any specific underlying factual support.”

Here, that underlying factual support is contained in the affidavit. It is the account of Santmynes’ arrest.

The information in the affidavit as to reliability of the informant here is greater in the important benchmarks than that found sufficient in Bowe. There the affidavit read: “ ‘Said informant has provided truthful and accurate information within the past three months which has led to the seizure of controlled substances, and the arrests of persons involved in distributions of said controlled substances. Said informant did state to Detective Tripp, that within the past 48 hours, he/she had an occasion to be inside a motel room . . . [and] did observe a quantity of cocaine being stored for distribution. . . .’” Supra at 130 (3).

Applying the instructions articulated in Galgano, and “[t]aking a ‘common-sense’ approach to the evaluation of the affidavit (cit.),” the court in Bowe held that the affidavit was sufficient to demonstrate the informant’s reliability. Supra at 131 (3). There is little difference here. In addition to the information about Santmynes having been proven true, and this further effort to get to Santmynes’ source being part of the same continuing information, the affidavit did state that the informant had supplied information which led to arrests in the past. It was sufficient to demonstrate the informant’s reliability.

Smith also claims the affidavit contained false information, specifically the statements that the informant was reliable and that the informant identified Roy Dean Smith of apartment 504 as the person who sold marijuana to Santmynes. As discussed above, the affidavit did not state that the informant identified Smith at apartment 504, but that the informant identified a subject who was discovered to be Roy Dean Smith of apartment 504. Nor was the statement that the informant was reliable false; the testimony Smith relies upon for that contention only supports a conclusion that he had not supplied information prior to the Santmynes investigation. As discussed above, the information he gave in that investigation does show his reliability. Finally, the fact that the warrant was originally drawn on a different address and then amended with permission of the magistrate does not make it invalid. See State v. Sanders, 155 Ga. App. 274, 275 (270 SE2d 850) (1980).

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., concurs in the judgment only. Ruffin, J., dissents. Smith, J., not participating.

Ruffin, Judge,

dissenting.

I do not agree that the confidential informant’s reliability was established in accordance with Collins v. State, 188 Ga. App. 172 (372 SE2d 503) (1988) because Detective Hardy had no knowledge of the informant’s credibility. In Collins, we held that “ ‘where the officer receiving the tip could not establish the credibility of the informant, probable cause was not demonstrated. [Cit.]’ ” Id. at 173. Detective Hardy relied solely on the information provided by Investigator Jenkins, the officer who received the information from the informant, and no other evidence was presented to the magistrate. Jenkins’ conclusory statement to Hardy regarding the informant’s reliability was utterly lacking in support. He failed to reveal the type of information the informant supplied in the past which allegedly led to arrests and failed to preface his assertion with any reference as to when the information was given. See id. Compare Bowe v. State, 201 Ga. App. 127, 130 (2) (410 SE2d 765) (1991). Nor was there any evidence demonstrating the likelihood that more contraband or other evidence of a crime would be found in the apartment. Moreover, Detective Hardy never corroborated the information provided by Jenkins. See State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).

The record also demonstrates that when the officers at the scene attempted to corroborate the apartment identified by the informant, they discovered he pointed out the wrong apartment despite the informant’s claim that he was present when two marijuana purchases were allegedly made at the same location within 24 hours of Santmynes’ arrest. This detail, relevant to the question of the informant’s reliability, although subsequently corrected by the officers at the scene, was not revealed to the magistrate.

The majority sets forth information which purports to demonstrate the informant’s reliability. It is not enough that that information is generally known by the officers involved in the investigation. Collins requires that Officer Hardy be aware of the underlying circumstances.

The Fourth Amendment cannot be indexed, shelved and retrieved at whim. Rather, it is a living text which is constant and prophylactic of governmental action deemed too pervasive to be tolerated in a free society. While at times it may brook conduct which we as a people abhor, historically, that is a price which we have deemed appropriate to pay rather than risk excessive governmental intrusion into our private lives. The police conduct in the instant case is too egregious for a law officer and so odious to a free people that it is worthy of our orchestrated and concentrated condemnation. It is palpably dangerous to become so fixated on criminal conduct that we become blind to those ancient and cherished rights which inure to all of us as a free people.

Decided July 14, 1995.

Spruell & Dubuc, Billy L. Spruell, for appellant.

Lewis R. Slaton, District Attorney, Herman L. Sloan, Carl P. Greenberg, Charles T. Shean III, Assistant District Attorneys, for appellee.