author: Johnson, Judge. Blackburn, Judge,

text:
    A97A1740.
    A97A1741.
    OCEANMARK BANK, F.S.B. v. STUBBLEFIELD et al. BRIGHTER DAY MORTGAGE, INC. v. STUBBLEFIELD et al.
    (496 SE2d 465)
   Johnson, Judge.

When Beauregard and Barbara Stubblefield inquired about a home mortgage loan at Brighter Day Mortgage, Inc., Mr. Stubblefield told the loan processor that he and his wife would be unwilling to give anyone copies of their federal income tax returns as part of the loan application. Brighter Day contacted a representative of Oceanmark Bank, F.S.B., one of several lenders with which Brighter Day worked, and told the representative of the Stubblefields’ position with regard to providing tax documents. The Oceanmark representative reviewed Oceanmark’s mortgage reference guide and located a program which did not require tax returns as part of the application. The Stubblefields’ loan application was submitted under that program. A few weeks later, Brighter Day issued a letter addressed “To Whom it May Concern,” stating that the Stubblefields’ application had been approved subject to certain documentation being provided; the listed documentation did not include tax returns. Several weeks thereafter, Brighter Day issued another letter stating that the loan had been approved for a one-year adjustable rate mortgage in the amount of $264,000 at an interest rate of 7.250 percent. At closing, the closing attorney requested that the Stubblefields sign a form requesting copies of their tax returns. When they refused to sign the document, the loan did not close. The Stubblefields and Oceanmark subsequently negotiated and closed another loan which did not require execution of the tax return release form, but had a higher interest rate.

The Stubblefields sued Brighter Day and Oceanmark, claiming they breached their commitment to loan the money at the lower rate without requiring the submission of tax documents. Brighter Day denied making any loan commitment and filed a cross-claim against Oceanmark, alleging it breached its loan commitment to Brighter Day. Oceanmark denied the existence of any agency relationship between it and Brighter Day, denied making any loan commitment, and filed a cross-claim alleging that Brighter Day breached an agreement with Oceanmark and was obligated to indemnify it in connection with the Stubblefields’ suit.

Oceanmark moved for summary judgment as to both the Stubblefields’ and Brighter Day’s claims. Brighter Day moved for summary judgment against the Stubblefields on their complaint and against Oceanmark on Oceanmark’s indemnification cross-claim. The trial court denied the motions. We granted Oceanmark’s application for interlocutory appeal. Oceanmark appeals in Case No. A97A1740. Brighter Day files a cross-appeal in Case No. A97A1741.

1. Because the issue of whether any loan commitment was made to the Stubblefields is critical to both appeals, we examine it first. To be binding, any commitment to lend money must be in writing and signed by the party to be charged or some person lawfully authorized by him. OCGA § 13-5-30 (7). The Stubblefields claim that the letters from Brighter Day stating that the loan was approved constituted written loan commitments. The Stubblefields add that Brighter Day was acting under the direction of Oceanmark.

However, we find that the letters were not sufficiently definite to constitute binding loan agreements because neither specified a maturity date. A loan agreement which fails to specify a maturity date is unenforceable. See Wachovia Bank of Ga. v. Mothershed, 210 Ga. App. 853, 855 (2) (437 SE2d 852) (1993). Furthermore, the letters do not contain specific provisions regarding the rate of interest after the first year, such as the maximum rate of or cap on the rate of interest. Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, the agreement is of no effect. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 402 (2) (422 SE2d 277) (1992); Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). Therefore, no enforceable loan commitment was made.

Case No. A97A1740

2. Based on our finding in Division 1, Oceanmark’s contention that the trial court erred in denying its motion for summary judgment when it never made any commitment to loan money to the Stubblefields is correct. Moreover, even if the letters constituted loan commitments, they did not bind Oceanmark because they were not signed by anyone authorized by Oceanmark to make such a commitment. The purported commitment letters were written on Brighter Day stationery and signed by Brighter Day loan personnel. When a contract required by the statute of frauds to be in writing is executed by an agent, the authority of the agent to execute the agreement must also be in writing. See Brookhill Mgmt. Corp. v. Shah, 197 Ga. App. 305, 306 (398 SE2d 290) (1990).

The Stubblefields have not pointed to any writing wherein Oceanmark authorized Brighter Day to commit Oceanmark to lend money. In fact, the Correspondent Agreement between Oceanmark and Brighter Day specifically states that Brighter Day is not Oceanmark’s agent and that Oceanmark retains the right to refuse any mortgage loan application for any reason. There being no evidence of Oceanmark’s commitment to lend money to the Stubblefields, on its own or through an agent, the trial court should have granted Oceanmark’s motion.

3. The trial court also erred in denying Oceanmark’s motion for summary judgment against Brighter Day. As to Brighter Day’s cross-claim for breach of a commitment to fund the loan, there was no written loan commitment between Oceanmark and Brighter Day. Therefore, summary judgment should have been granted.

4. However, the trial court properly denied Oceanmark’s motion for summary judgment on Oceanmark’s indemnification cross-claim against Brighter Day. Oceanmark relies on paragraph four of the Correspondent Agreement between it and Brighter Day, which provides: “[Brighter Day] hereby agrees to protect, indemnify and hold harmless Oceanmark in respect to any and all losses, liabilities, costs and expenses, including Attorney’s fees at Arbitration, Trial and Appeal, that may be incurred by Oceanmark with respect to or connected with or resulting from any breach of covenant, representation, or warranty, made by [Brighter Day] hereunder.” Oceanmark contends Brighter Day breached the Correspondent Agreement by representing itself to be Oceanmark’s agent when the agreement expressly provided that Brighter Day was “not to hold itself out as an agent” of Oceanmark. Oceanmark argues that because Brighter Day breached the agreement, Oceanmark incurred attorney fees in defending itself, which fees Brighter Day is required to pay pursuant to the agreement. In moving for summary judgment, however, Oceanmark did not point to any evidence in the record that Brighter Day held itself out to be Oceanmark’s agent. In fact, Brighter Day’s witness denied acting as an agent for Oceanmark. Therefore, while no genuine issue of material fact remained as to the indemnification claim, it was Brighter Day, not Oceanmark, which was entitled to judgment as a matter of law. See generally Pitts v. Bank South Corp., 209 Ga. App. 124, 125 (433 SE2d 96) (1993). See Division 6, infra.

Case No. A97A1741

5. Brighter Day contends the trial court erred in denying its motion for summary judgment against the Stubblefields. As discussed in Division 1 above, there was no valid loan commitment. Accordingly, the trial court erred in denying Brighter Day’s motion for summary judgment against the Stubblefields.

6. Brighter Day’s motion for summary judgment on Oceanmark’s indemnification cross-claim should have been granted. As discussed in Division 4, Brighter Day was not obligated to indemnify Oceanmark for costs incurred in responding to the Stubblefields’ complaint. Therefore, the trial court erred in denying Brighter Day’s motion for summary judgment on the cross-claim.

Judgment affirmed in part and reversed in part in Case No. A97A1740. Judgment reversed in Case No. A97A1741.

Pope, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur fully with the majority opinion, as it accurately reflects the current state of the law. However, I write separately to express my concern about the inequities resulting from an application of the law to the business of real estate loans as generally practiced.

OCGA § 13-5-30 was amended in 1988 to require that “[a]ny commitment to lend money” be in writing in order to be enforceable. OCGA § 13-5-30 (7). As discussed in the majority opinion, case law establishes that, unless agreement is reached on all terms and conditions and nothing is left to future negotiations, a purported agreement is merely an “agreement to agree” and is unenforceable. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 402 (2) (422 SE2d 277) (1992).

In residential loan transactions, a prospective borrower will either deal directly with the lender or, as in the present case, utilize a loan broker who undertakes to obtain a loan from a third party. In either case, the borrower is typically induced to submit a loan application by the lender’s or broker’s representation that doing so will “lock in” an interest rate for a period of time. The “lock-in” documents rarely contain more than the interest rate, the term of the loan and the period for which it is “locked in.” It would no doubt surprise many borrowers to learn that, under the current state of the law as reflected in the majority opinion, few “lock-in” agreements could be enforced. As such lock-in agreements do not constitute a commitment to lend money, under the present law, the borrower has no enforceable rights under his “agreement.” This is true even if the borrower is approved for the loan and totally performs his obligations. The borrower often does not learn of this fact until the time of closing when it may be too late as a practical matter to seek another lender or refuse to close.

Similarly, once a borrower has submitted all required documentation, he often receives a letter from the lender or broker informing him that he has been “approved” for the loan at a stated rate and term. However, unless these approval letters contain the additional terms of the loan, they are unenforceable as commitments to lend money under the present law.

Decided January 13, 1998

Reconsideration denied February 2, 1998

Morris. Schneider & Prior, Larry W. Johnson, for appellant (case no. A97A1740).

Stephen J. Sasine, for appellant (case no. A97A1741).

Gregg Loomis, for appellees.

It should be noted that the borrower’s reliance upon the largely unenforceable “lock-in” agreement has very real consequences to the prospective borrower and the seller. A “lock-in” agreement obtained at the time of loan application induces the borrower to refrain from seeking financing from another source. An “approval” letter assures the borrower that the promised funding, with the agreed upon terms, will, in fact, occur and induces him to take no further action prior to closing. In addition, as in the present case, such a letter is often addressed “To Whom It May Concern” and is intended to assure the seller that the borrower will be able to perform at closing.

The fact that these agreements are usually totally unenforceable should concern all parties, particularly since they are generally understood to be “agreements” and are often couched in binding language. The law, as it stands, invites fraud and abuse on the part of unscrupulous lenders and brokers. This Court, however, must apply the law as it stands, and only the legislature is authorized to address this problem.


source: Caselaw Access Project

author: Beasley, Judge..

license: Public Domain

text:
    A97A1801.
    HARRIS v. THE STATE.
    (496 SE2d 277)
   Beasley, Judge..

Joseph Harris pleaded guilty to two counts of armed robbery and was sentenced to two consecutive life terms. His sentence was later reduced to two concurrent life terms. Harris challenges the court’s consideration, for sentencing purposes, of his statement to police while in custody prior to being read his rights. At bottom, he faults the court for refusing a continuance of the Jackson-Denno hearing so he could subpoena an officer to corroborate his testimony that he was in custody when the statement was made.

1. Harris does not claim his guilty plea itself was infected and must be set aside. With certain exceptions not germane here, a voluntary and knowing guilty plea waives even constitutional infirmities.

2. Harris was arrested on July 22, 1994, in connection with two armed robberies. He was indicted on August 24 along with two alleged co-conspirators. On October 5 and 6, the trial court conducted a Jackson-Denno hearing on the admissibility of the statement Harris made the day he was arrested. The court ruled it admissible because it found Harris went to the station to answer questions freely and voluntarily, was advised of his Miranda rights which he waived, and made the statements freely and voluntarily.

The first question is whether the record shows the court considered Harris’ statement in fashioning a sentence. There is no evidence in the record showing that the court ever read or heard the substance of the statement at the Jackson-Denno hearing or at any other time. The transcript of the hearing is incomplete, which Harris acknowledges but states “Appellant wishes to proceed because the record is sufficient to address the error enumerated in this appeal.” There is no indication in the partial transcript of the hearing that the court was ever shown the actual statement, and no one testified to its substance. The statement itself is not in the record.

Appellate procedure requires that “ ‘ “[w]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). . . . When this is not done, there is nothing for the appellate court to review. (Cit.)” (Cits.)’ [Cit.]” “Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel.”

If the court had become aware of the content of the statement and considered it at sentencing, the next question would be whether it was aggravating. Without the statement we cannot compare its substance with other evidence presented at the sentencing or otherwise analyze the effect of the statement.

Only if Harris’ statement was considered at sentencing and was aggravating in nature would we reach the question whether the statement unfairly affected the sentence because the court denied Harris’ request for a continuance of the Jackson-Denno hearing. Harris’ attorney contends he did not know in advance of the JacksonDenno hearing the identity of one of the officers who allegedly detained Harris.

Decided January 15, 1998

Reconsideration denied February 2, 1998.

Kevin R. Gough, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

But the record does not show what witnesses were identified prior to the hearing or what efforts defendant made to identify the officers who detained him. As alluded to earlier, “[flactual assertion[s] contained in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process [cit.], and briefs cannot be used in lieu of the record or transcript to add evidence to the record. [Cit.]” No error in sentencing has been revealed.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

        Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977).

        Meier v. State, 190 Ga. App. 625 (1), 626 (379 SE2d 588) (1989).

       (Punctuation omitted.) Wiggley v. State, 204 Ga. App. 583, 584 (2) (420 SE2d 82) (1992).

        Hooten v. State, 212 Ga. App. 770, 775 (2) (442 SE2d 836) (1994).


author: Blackburn, Judge.

text:
    A97A2276, A98A0363.
    C. A. GASLOWITZ & ASSOCIATES, INC. v. ZML PROMENADE, L.L.C. et al. (two cases).
    (496 SE2d 470)
   Blackburn, Judge.

In these companion cases, C. A. Gaslowitz & Associates (Gaslowitz) appeals the trial court’s award of a directed verdict to defendants ZML Promenade and Equity Office Properties (collectively referred to as ZML) and the trial court’s award of attorney fees to ZML. The underlying dispute arose from the parties’ failed negotiations for office space.

Case No. A97A2276

In Case No. A97A2276, the following circumstances exist that are dispositive of the appeal: (1) The evidence supports the order directing a verdict in ZML’s favor; (2) No reversible error of law appears and an opinion would have no precedential value; (3) The order of the court below adequately explains its decision; and (4) The issues are controlled adversely to Gaslowitz for the reasons and authority given in ZML’s brief.

Therefore, the trial court’s order directing a verdict in favor of ZML is affirmed pursuant to Court of Appeals Rule 36.

Case No. A98A0363

In Case No. A98A0363, the trial court granted ZML’s motion for attorney fees pursuant to OCGA § 9-15-14 (a) and (b). The trial court determined that Gaslowitz’s complaint was motivated by his disappointment at being unable to consummate the lease in question and that such disappointment caused Gaslowitz to “ignore the settled case law as well as the clear warnings from Defendants that pursuit of this action” exposed it to attorney fees. The court awarded attorney fees in the amount of $17,238.99 to ZML.

OCGA § 9-15-14 (a) provides that the trial court shall award reasonable and necessary attorney fees where the offending party’s position lacked any “justiciable issue of law or fact [so] that it could not be reasonably believed that a court would accept” it. OCGA § 9-15-14 (b) provides that the trial court may assess attorney fees if the action brought or defended “lacked substantial justification . . ., was interposed for delay or harassment, or . . .an attorney or party unnecessarily expanded the proceeding by other improper conduct.” “OCGA § 9-15-14 (a) provides for a mandatory award [of attorney fees]. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under both standards the record supports the trial court’s award.” (Footnote omitted.) Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

“Although there is no error in the court’s imposing an award for attorney fees, ‘(a) party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services. (Cit.)’ Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994); see also Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993); OCGA § 9-15-14 (d). The record does not show [Gaslowitz] was afforded such an opportunity, and the judgment must be reversed and remanded for an evidentiary hearing to determine an amount for reasonable and necessary attorney fees.” Cohen v. Feldman, 219 Ga. App. 90, 92 (464 SE2d 237) (1995). See also Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669-670 (3) (476 SE2d 43) (1996) (hearing required and “[a]t such hearing, each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion. See OCGA § 24-3-1.”).

Judgment affirmed in Case No. A97A2276 pursuant to Court of Appeals Rule 36. Judgment reversed and remanded with direction in Case No. A98A0363.

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

Decided January 14, 1998

Reconsideration denied February 2, 1998

Adam R. Gaslówitz & Associates, Timothy J. McGann, for appellant.

Coleman & Dempsey, Arlene L. Coleman, David J. Dempsey, for appellees.


author: Smith, Judge.

text:
    A97A1702.
    BRAHM v. THE STATE.
    (497 SE2d 240)
   Smith, Judge.

Jeffrey Brahm was charged by accusation with two counts of DUI, OCGA § 40-6-391 (a) (1) (less safe driver) and (5) (alcohol concentration of 0.10 grams or more), and with improper lane change, OCGA § 40-6-48 (1). A jury acquitted Brahm of the lane violation, could not reach a verdict as to the less safe driver charge, and found him guilty of driving with a blood alcohol concentration of 0.10 grams or more. Judgment was entered on the jury’s verdict, and Brahm appeals. He challenges the admission into evidence of the results of two tests establishing the alcohol concentration of his blood at more than 0.10 grams. Because we agree with Brahm that the results of both tests were improperly admitted, we are constrained to reverse his conviction.

1. Brahm contends the trial court erred in admitting the results of the State-administered blood test because the State failed to establish that the person who drew his blood was “qualified” within the meaning of OCGA § 40-6-392 (a) (2). That statute provides, in pertinent part, that “[w]hen a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein.” This provision requires that when the State seeks to prove a violation of OCGA § 40-6-391 (a) by using a chemical test, the State must bear the burden of proving that the person drawing the blood was “qualified” within the meaning of the statute. Harden v. State, 210 Ga. App. 673, 674 (1) (436 SE2d 756) (1993).

In Harden, supra, we described two ways for the State to carry this burden. The State may call the person who drew the blood as a witness, and that witness may testify as to his or her qualifications. The State may also present a certification from the office of the Secretary of State or the Department of Human Resources showing that the person who drew the blood was licensed or certified in a profession listed in OCGA § 40-6-392 (a) (2). Id. Such a certificate is admissible into evidence for this purpose, under OCGA § 40-6-392 (e).

It is clear from the language in Harden, as well as from prior and subsequent case law, that these methods are not exclusive. We held in Harden that the State’s burden could be satisfied in “at least two ways.” (Emphasis supplied.) Id. The words “at least” imply that other ways exist, and the case law makes clear that the State’s burden may be carried in other ways. See, e.g., Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) (1997), where we held that the State’s burden was satisfied when the State introduced a “self-authenticating” document from the Georgia Department of Human Resources showing that records in the Office of Regulatory Services show that the person who drew blood was “classified” as a medical laboratory technician. Id. at 742.

As indicated by the words “other qualified person,” neither is the list of qualified occupations and professions in the statute an exhaustive list. In Thurman v. State, 172 Ga. App. 16, 17 (1) (321 SE2d 780) (1984), and Gooch v. State, 155 Ga. App. 708, 711 (6) (272 SE2d 572) (1980), this Court held that the phrase “other qualified person” in OCGA § 40-6-392 (a) (2) encompassed both a trained phlebotomist and a hospital employee whose only job was to draw blood.

But in this case, to establish that Brahm’s blood was drawn by a qualified person, the State presented only the testimony of the arresting officer, Corporal R. D. Nable of the Fulton County Police Department, who was assigned to the DUI Task Force. Nable testified that after he read Brahm the implied consent rights and Brahm agreed to take a State-administered blood test, he transported Brahm to Northside Hospital, where blood was drawn. Nable identified the person who drew Brahm’s blood by name and employment status: He was “David Simon, who is an employee of Northside Hospital.” Nable further explained that he was familiar with Simon. “[W]hen we go and request a state blood test from somebody, we generally go to Northside Hospital if we are in that part of town. And [David Simon], as well as two or three other people, are employed by the hospital... in their laboratory. And, in that capacity, he’s drawn blood for me several times.”

For purposes of this opinion, we assume this testimony was not hearsay because it was based upon Nable’s personal knowledge that Simon was employed in the hospital laboratory and had drawn blood in Nable’s presence on previous occasions. This distinguishes it from the testimony presented by the State in Carr v. State, 222 Ga. App. 776, 777-778 (1) (476 SE2d 75) (1996). But even so, it was insufficient to show that Simon was “qualified” within the meaning of the statute.

Brahm timely objected to the admission of the results of the blood test on this ground, and the trial court'overruled the objection. It is the duty of the trial court to determine the adequacy of the foundation laid for the presentation of evidence. Wigfall v. State, 257 Ga. 585, 586 (2) (361 SE2d 376) (1987). Although the trial court’s discretion in the admission of evidence is broad, Parker v. State, 226 Ga. App. 462, 463 (4) (486 SE2d 687) (1997), it is not boundless. In this instance, Nable’s testimony did not reach the qualifications of Simon, and the trial court abused its discretion in determining that a sufficient foundation was laid for the admission of the test results.

2. Brahm also contends the trial court erred in admitting the results of the independent chemical test he requested and received, which was performed at a different hospital. To establish the results of this test, the State simply tendered into evidence the medical records showing the test results, which were certified by the director of the medical records department of the hospital. But unlike the certificate provided for in OCGA § 40-6-392 (e) and referenced in Division 1, which is admissible without further foundation to show that the drawer of blood was “qualified,” the “certification” of the hospital medical records custodian cannot serve to satisfy the foundational requirement applicable to medical records under the business records exception to the hearsay rule. OCGA § 24-3-14. No other foundational evidence was presented. Brahm objected on several grounds, including that the document was hearsay and no foundation had been laid. In urging that Brahm’s objection should be overruled, the State argued that Oldham v. State, 205 Ga. App. 268 (422 SE2d 38) (1992), was authority for the proposition that the document was admissible under the business records exception to the hearsay rule, and the trial court overruled the objection and admitted the document.

This was error. Although business records comprise an exception' to the rule against hearsay, they are not admissible without a proper foundation. This Court held in Oldham that “[djocumentary evidence of a test designed to measure a person’s alcohol concentration level may be admitted into evidence under the business records exception to the hearsay rule, when the party seeking to admit the test results lays a proper foundation by offering the testimony of a witness who is familiar with the method of record keeping, who can therefore testify that the entry of the test result was made in the regular course of business at the time the test was conducted or within a reasonable time thereafter. [Cits.]” (Emphasis supplied.) Id. at 269-270. In this case, the State failed to lay a proper foundation, Brahm raised a valid objection, and the document should not have been admitted.

3. We cannot say that the erroneous admission of both tests was harmless. Without either result, no evidence whatsoever exists to support the only DUI charge on which Brahm was convicted: driving with a blood alcohol concentration of more than 0.10 grams. Brahm’s conviction on that charge must therefore be reversed. Compare Williams v. State, 223 Ga. App. 209, 210 (2) (477 SE2d 367) (1996) (harmless error to admit document over objection without laying proper foundation because other evidence of guilt overwhelming).

Decided February 2, 1998.

Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellant.

Carmen Smith, Solicitor, Allison L. Byrd, Karlise Y. Grier, Assistant Solicitors, for appellee.

Judgment reversed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Chief Judge.

text:
    A97A1748.
    HOBBS et al. v. PRINCIPAL FINANCIAL GROUP, INC. et al.
    (497 SE2d 243)
   Andrews, Chief Judge.

William and Betty Hobbs sued Principal Financial Group, Inc. and Principal Mutual Life Insurance Company (jointly referred to as Principal) alleging that, while Ernie Malcolm James was acting as an agent of Principal, he fraudulently induced them to invest money in the “Principal Manager’s Fund,” a nonexistent investment fund which he falsely told them was a Principal fund. The Hobbses’ suit, which seeks to impose vicarious liability on Principal for damages caused by the actions of James, alleges in four counts that Principal defrauded them through the actions of its agent, James; that Principal breached the investment contract made with them by James as Principal’s agent; that Principal negligently hired James as its agent; and that Principal negligently failed to adequately regulate, supervise and monitor James.

The trial court granted summary judgment to Principal on the basis that the present case was controlled by our decision in Fortune v. Principal Financial Group, 219 Ga. App. 367 (465 SE2d 698) (1995). In that case, John and Denise Fortune alleged that James fraudulently induced them to invest in the same nonexistent “Principal Manager’s Fund.” The Fortunes also sought to impose vicarious liability on Principal in a complaint alleging the same four counts alleged in the present complaint. In affirming the grant of summary judgment in favor of Principal in Fortune, we concluded that Principal was not liable because James acted as an independent contractor of Principal; “that James did not have authority under his contracts with Principal to sell investment funds or securities; [that] Principal never received any money from James’ sales of the Fund; and, on July 25, 1991, [Principal] terminated James upon first learning [of his fraudulent conduct].” Id. at 370. We also rejected the Fortunes’ claim that James was an apparent or ostensible agent of Principal. Id. We further concluded that Principal conducted a reasonable background investigation when it hired James, and it was not liable for negligent hiring or retention of James. Id. at 370-372.

The Hobbses claim that the trial court erred in granting summary judgment because the facts of the present case distinguish it from Fortune, supra. We find no additional facts in the present case which would alter our conclusions in Fortune that James was an independent contractor of Principal. Accordingly, as we stated in Fortune, “ ‘[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. OCGA § 51-2-4.’” Id. at 368. Although the Hobbses point to additional evidence presented by them regarding James’ general reputation, it provides no basis for changing our conclusion in Fortune that Principal conducted a reasonable background check when it hired James and therefore is not liable on any claim for negligent hiring or retention.

The Hobbses also claim that additional evidence in the present case shows Principal represented or held out James as its apparent agent with respect to the sale of Principal investments. They point primarily to evidence that Principal provided James with (and James gave to them) business cards identifying James as an agent of Principal Financial along with brochures and annual reports describing investment opportunities which could be purchased from Principal Financial. Assuming, without deciding, that this additional evidence was sufficient to create a factual issue as to whether Principal held out James as its apparent agent for the sale of Principal Financial investments, Principal would still be entitled to summary judgment.

Even assuming that James was a Principal agent, his conduct in fraudulently inducing the Hobbses to invest in a nonexistent fund which he falsely represented as a Principal fund was a tort committed outside the scope of any such employment. “Generally, an employer may be held responsible for the tortious act of an employee where the act was ‘authorized by the employer prior to its commission, ratified (by the employer) after its commission, or committed within the scope of the employment. (Cit.)’ Sexton Bros. Tire Co. v. Southern Burglar Alarm Co. &c., 153 Ga. App. 413, 414 (265 SE2d 335) (1980).” Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 568 (487 SE2d 47) (1997). There was no evidence in Fortune, supra, and no evidence in the present case that Principal authorized or knew about James’ tortious acts prior to their commission. Nor is there any evidence that Principal ratified any of James’ tortious acts. Accordingly, the issue is whether Principal could be held vicariously liable because James committed the tortious acts within the scope of his employment.

Decided February 2, 1998.

Taylor & Taylor, Leah O. Taylor, John P. Tucker, Jr., for appellants.

Under OCGA § 51-2-2, an employer “shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business. . . .” “[I]n determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. [Cits.] If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable.” (Punctuation omitted.) Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987). “Thus, where the tortious conduct of the employee is personal to himself because it springs from purely personal motives, the employee is deemed to have departed from the scope of his employment and the master is not liable. Id.; Effort Enterprises v. Crosta, 194 Ga. App. 666 (391 SE2d 477) (1990).” Modern Woodmen, supra at 569.

James’ acts in fraudulently inducing the Hobbses to invest money in a nonexistent fund which he falsely represented to be a Principal fund were personal acts for his own benefit, involved no participation by Principal, and were of no benefit to Principal. Accordingly, there is no basis for concluding that Principal was vicariously liable to the Hobbses for James’ tortious conduct or for any contractual obligation of James to the Hobbses. Moreover, there is no basis for concluding that Principal breached a duty to control the acts of James done outside the scope of his employment because there is no evidence sufficient to show that Principal knew or should have known that James was likely to commit the fraudulent acts at issue. Id.; see Restatement 2d of Torts, § 317 (b) (ii).

The trial court correctly granted summary judgment in favor of Principal.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

Magill & Bondurant, Elizabeth J. Bondurant, for appellees.

Ernie M. James, pro se.


author: Andrews, Chief Judge. POPE, Presiding Judge,

text:
    A97A1918.
    DALTON et al. v. VO.
    (497 SE2d 245)
   Andrews, Chief Judge.

Darryl Dalton and Octavia Hill appeal from a judgment entered on a jury verdict finding Thanh Tam Vo not liable for injuries they received when Vo’s truck hit Dalton’s car. We reverse.

1. Dalton and Hill bring two enumerations of error concerning the qualification of the jury during voir dire. In their first enumeration of error, Dalton and Hill contend the trial court erred in refusing plaintiffs’ counsel’s request to question jurors regarding their “insurance background.” However, appellants do not argue this enumeration in their brief, and therefore it is deemed abandoned. Court of Appeals Rule 27 (c) (2) and (3).

2. Next, appellants argue the trial court erred in refusing to allow them to qualify prospective jurors with regard to their relationship, if any, with Progressive Insurance Company, Vo’s automobile insurance carrier. Appellants rely on our holding in Patterson v. Lauderback, 211 Ga. App. 891 (440 SE2d 673) (1994), which states: ‘Where there is reasonable cause to believe that a defendant’s non-party insurer is a mutual company in which the policyholders have a financial interest, a plaintiff is entitled to have the prospective jurors qualified as to any possible interest they may have as policyholders of the company, and the refusal of the court, upon request by plaintiffs’ counsel, to so qualify the jurors creates a presumption of harmful error, which unless in some way rebutted, requires the grant of a new trial.” (Citations omitted.) Id. at 895.

Vo argues that Progressive is not a mutual company in which the policyholders have an interest. This is immaterial as controlling case law does not limit this right to inquire to policyholders of mutual companies but extends it to officers, employees, stockholders or anyone related to stockholders of the insurance company. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934). See also Byrd v. Daus, 218 Ga. App. 145, 146 (460 SE2d 819) (1995).

Vo also responds that the error was harmless because if the jurors were “questioned today,” none of them would say they knew they had a financial interest in this case. This contention is also without merit. Refusing to allow plaintiffs’ counsel to qualify the jurors on this issue created a presumption of injury. Atlanta Coach Co., supra at 551. Questioning the jurors after the verdict when they are no longer competent to testify against their qualification does not cure the harm. The plaintiffs are entitled to have the examination as to relationship conducted in open court and before the verdict was rendered. Id. at 552. The trial court erred in refusing to allow plaintiffs’ counsel to qualify the jury on this issue.

3. Dalton and Hill also claim the trial court erred in its charge to the jury on “sudden emergency” and the definition of “gore.” They contend there was no justification from the evidence presented at trial to give either charge.

To the extent these enumerations might occur on retrial, we would address them. However, as only selected portions of the transcript were furnished on appeal, we have no way of knowing whether the charges were justified or not. In the absence of a complete transcript of the proceedings, we assume the evidence supported the ruling. Datz v. Brinson, 208 Ga. App. 455, 456 (430 SE2d 823) (1993).

Judgment reversed.

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

POPE, Presiding Judge,

concurring specially.

I concur in each of the divisions of the majority opinion. I write separately, however, to express my disagreement with the contention found in footnote 2 to Division 2 that in order to avoid potential prejudice the better approach to jury qualification in cases like this would be not to qualify prospective jurors regarding any relationship they might have with a specific insurer involved in a given case, but instead, qualify them only as to any financial interest they might have in the outcome of the case, as advocated by Judge Johnson in Byrd v. Daus, 218 Ga. App. 145 (1) (460 SE2d 819) (1995), and Judge Beasley in her special concurrence in Franklin v. Tackett, 209 Ga. App. 448 (433 SE2d 710) (1993).

In this enlightened age, it can and should be presumed that prospective jurors already realize that liability insurance coverage is likely to be present in cases involving motor vehicle accidents. See Smith v. Crump, 223 Ga. App. 52, 55-56 (476 SE2d 817) (1996); Dubose v. Ross, 222 Ga. App. 99, 100-101 (473 SE2d 179) (1996). Therefore, I do not believe the approach advocated in footnote 2 would have any significant effect in reducing the potential for prejudice about which the majority is concerned. Moreover, as fully set forth in Crump, failing to qualify prospective jurors regarding any relationship they might have with a specific insurer having an interest in the outcome of a case, itself, poses its own risk to the right of trial by an impartial jury. 223 Ga. App. at 55-56.

Decided February 2, 1998

Kenneth J. Rajotte, for appellants.

Shur, McDuffie, Brockman & Leveille, Brett F. Shur, for appellee.

In light of the above, I believe that the best approach would be to continue to qualify prospective jurors about any relationship they might have with any interested insurer, as is mandated by Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934). After such qualification, however, to avoid any potential prejudice that might arise from the qualification itself, or the prospective jurors’ own common knowledge, I would recommend that the trial court give specific limiting instructions that the existence or lack of insurance in a given case is not material and is not to be considered in reaching a decision in the case.

I have been authorized to state that Judge Blackburn joins in this special concurrence.

       OCGA § 9-10-9 provides that the affidavits of jurors may be taken to uphold but not to impeach their verdict. “As a matter of public policy, a juror can not be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” Bowden v State, 126 Ga. 578 (1) (55 SE 499) (1906).

       This holding is required by the Supreme Court of Georgia’s decision in Atlanta Coach Co., supra. However, we agree with Judge Johnson in Byrd, supra, and with Judge Beasley in her special concurrence in Franklin v. Tackett, 209 Ga. App. 448 (433 SE2d 710) (1993), that the better approach would be to question the jury as to any financial interest in the outcome of the case without directly identifying the insurer.


author: Johnson, Judge.

text:
    A97A2546.
    AIRGROWERS, INC. v. TOMLINSON.
    (496 SE2d 528)
   Johnson, Judge.

We granted Airgrowers, Inc.’s application for interlocutory review of the denial of its motion to dismiss or, in the alternative, to transfer for lack of venue. For reasons which follow, we reverse the trial court’s order denying Airgrowers’ motion to transfer, but affirm the denial of its motion to dismiss.

The record shows that Estolena Tomlinson was a passenger in a vehicle driven by Hattie Tomlinson. The car collided with a tractor-trailer owned by Airgrowers, and Hattie Tomlinson was killed. Neither party has indicated where the accident occurred. Estolena Tomlinson brought suit against H. W. Lott, the administrator of Hattie Tomlinson’s estate, and Airgrowers, alleging their joint negligence caused her injuries. Lott resides in Berrien County, and Airgrowers maintains its only office in Clinch County. Tomlinson filed the suit in Berrien County, premising venue as to Airgrowers on its being a joint tortfeasor. Lott filed a cross-claim against Airgrowers for Hattie Tomlinson’s wrongful death, not for contribution. Subsequently, Estolena Tomlinson entered into a consent agreement with Lott, which was memorialized in a consent order. She then voluntarily dismissed her action against Airgrowers. Thus, the only claim remaining is Lott’s wrongful death cross-claim against Airgrowers. Air-growers filed a motion to dismiss or, in the alternative, to transfer for lack of venue. In response, Lott amended his cross-claim to include a claim for indemnity and contribution. The trial court denied Air-growers’ motion.

A cross-claim is not subject to dismissal simply because the main claim has been dismissed, and, where it can be adjudicated without regard to the main claim, a cross-claim should be considered even after the main claim has been dismissed. Wilson v. Williams Bros., Inc., 193 Ga. App. 371, 372 (387 SE2d 639) (1989). However, in order for a cross-claim to be independently adjudicated, it must independently satisfy Georgia’s constitutional venue requirements. Register v. Stone’s Independent Oil Distrib., 227 Ga. 123 (179 SE2d 68) (1971); Walker v. Powell, 123 Ga. App. 498 (181 SE2d 501) (1971).

For venue purposes generally, a domestic corporation is deemed to reside in the county where its registered office is maintained. OCGA § 14-2-510 (b) (1). In tort actions, venue will also lie in the county where the cause of action arose, provided the corporation has an office and transacts business in that county. OCGA § 14-2-510 (b) (3). However, “[sjuits against . . . joint tort-feasors . . . residing in different counties may be tried in either county.” Ga. Const. 1983, Art. VI, Sec. II, Par. IV. See also OCGA §§ 9-10-31; 14-2-510 (c). It is undisputed that Airgrowers has no office in Berrien County. Its registered office is in Clinch County, from which it transacts all of its business. Accordingly, any direct action against Airgrowers would have to be brought in Clinch County.

The present case presents a unique question that has not yet been addressed in Georgia: whether venue of a nonresident alleged joint tortfeasor vanishes if the plaintiff dismisses it from the main action, notwithstanding a pending cross-claim for wrongful death by a resident alleged joint tortfeasor who has consented to judgment against him. Lott’s liability to Estolena Tomlinson has been established by way of a consent judgment, which would normally be sufficient to establish venue as to Airgrowers, the nonresident alleged joint tortfeasor. See Motor Convoy v. Brannen, 260 Ga. 340 (393 SE2d 262) (1990). However, Estolena Tomlinson voluntarily dismissed her action against Airgrowers. The original action is no longer pending, and the allegation that Airgrowers was a joint tortfeasor no longer exists.

We hold that venue as to Airgrowers was proper in Berrien County only as long as Airgrowers could be characterized as a joint tortfeasor with Lott. Even after Estolena Tomlinson entered into the consent judgment with Lott, and Airgrowers was the only remaining defendant as to Estolena Tomlinson’s claim, venue was still proper over the cross-claim. See Collipp v. Newman, 217 Ga. App. 674 (458 SE2d 701) (1995). However, once Estolena Tomlinson voluntarily dismissed Airgrowers, venue as to Airgrowers, premised originally on Estolena Tomlinson’s allegation that Airgrowers was a joint tortfeasor with Lott, vanished.

Decided February 2, 1998.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Gregory T. Talley, George T. Talley, for appellant.

The principle of vanishing venue is not new. See, e.g., Barnett v. Quinn, 227 Ga. App. 172 (489 SE2d 68) (1997) (venue as to nonresident party defendant vanished with dismissal of resident party defendant); Long v. Bruner, 171 Ga. App. 124 (318 SE2d 818) (1984) (venue as to nonresident party defendant vanished after appellate action removed resident party defendant from case); Smith v. United Ins. Co. of America, 169 Ga. App. 751 (315 SE2d 265) (1984) (venue as to nonresident party defendant vanished when trial court directed a verdict in favor of resident party defendant). The remaining action left Airgrowers in the position of any other defendant, entitled to have suit brought against it in the county of its residence. Ga. Const. 1983, Art. VI, Sec. II, Par. VI.

Contrary to Lott’s assertion, Brannen, supra, does not require a different result. Brannen did not involve a cross-claim, but merely established that, absent proof of collusion, venue in the original action as to a nonresident joint tortfeasor is permanently established where the resident joint tortfeasor consents to judgment. In the present case, the original action as to Airgrowers has been dismissed, and the only remaining claim pending before the trial court was the separate cross-claim for the wrongful death of Hattie Tomlinson. OCGA § 9-10-34 (b) is also inapposite since the main claim was no longer pending when Lott attempted to amend his cross-claim and add the claim for contribution and indemnity.

Based on the foregoing, we find the trial court erred in denying Airgrowers’ motion to transfer. However, the trial court correctly denied Airgrowers’ motion to dismiss since all that is authorized would be a transfer to a court of Airgrowers’ residence. See Hubbert v. Williams, 175 Ga. App. 393, 396 (3) (333 SE2d 425) (1985).

Judgment affirmed in part and reversed in part.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

Moore & Studstill, Mitchell O. Moore, Daniel L. Studstill, for appellee.


author: Smith, Judge. Beasley, Judge,

text:
    A97A2001.
    BROOKSHIRE v. THE STATE.
    (496 SE2d 757)
   Smith, Judge.

Mary Hudson Brookshire was convicted by a Hall County jury of possession of marijuana with intent to distribute. In her sole enumeration of error, she contends the evidence was insufficient as a matter of law to support the verdict. We agree and reverse.

Viewed in the light most favorable to the verdict rendered, the evidence shows the following: On July 31, 1995, shortly before 6:00 p.m., the appellant met her son, David Brookshire, in the parking lot of a convenience store and restaurant. Appellant and her niece drove into the parking lot first and parked. Brookshire and his friend, Paul Watson, arrived shortly thereafter and parked next to appellant. Brookshire got out of the car, walked over to appellant, and started talking to her. He was not carrying anything in his hands. Moments after this conversation began, Hall County narcotics agents placed appellant, her niece, her son, and Watson under arrest. The four were jointly indicted for possession of marijuana with intent to distribute.

In a search incident to the arrest, the agents found 13.3 ounces of marijuana, a set of gram scales, and a box of sandwich bags in the son’s car. No drugs were found in appellant’s car or upon appellant’s or her niece’s person. Prior to this meeting, the narcotics agents had observed appellant and her niece drive to and from the same convenience store on two occasions, each time placing phone calls from a phone in the parking lot.

Brookshire, who pled guilty to possession with intent to distribute, gave a statement. He said his mother was to receive two ounces of the marijuana and would pay him later. When asked whether his mother was selling the marijuana, he responded “I don’t know.” He surmised, however, that the marijuana was intended for “people from work or something.” Appellant said she met her son to have dinner.

Watson, who also pled guilty to possession with intent to distribute, stated that Brookshire and appellant were supposed to “hook up” at the restaurant and convenience store. An officer testified at trial that based on his training and experience in undercover narcotics investigation, it was his understanding that the phrase “hook up,” to those involved with drugs, “means that one or two people get together and they exchange money for drugs or make a drug transaction, to get together, to meet.” Watson agreed that the phrase “hook up” could have that meaning.

To support appellant’s conviction of possession of marijuana with intent to distribute, the evidence must show both that she possessed the marijuana and that she intended its distribution. Georgia law recognizes two kinds of possession, actual and constructive. Billingsley v. State, 220 Ga. App. 69 (1) (467 SE2d 377) (1996). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. [Cit.]” (Citation and punctuation omitted.) Id. “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” (Citations and punctuation omitted.) Llaguno v. State, 197 Ga. App. 789, 790-791 (1) (399 SE2d 564) (1990).

No evidence was presented showing that appellant had direct physical control over the marijuana. To uphold the conviction, the evidence must therefore show that appellant constructively possessed the marijuana. We conclude that the evidence presented fails to do so. It is insufficient to support the verdict because it does not authorize, as a matter of law, a reasonable inference that appellant knowingly exercised power and dominion over any portion of the marijuana in her son’s car at the time of the arrest. Brookshire’s statement shows only that he intended to meet appellant that day and, at some point in the future, give her two ounces of marijuana in exchange for later payment. Brookshire’s statements are direct evidence of his intent to sell marijuana; they do not show possession of marijuana by appellant. Even if Brookshire’s statements could be considered by a jury as circumstantial evidence of the appellant’s intent to buy marijuana for resale, Brookshire’s statements, because he is an accomplice, cannot support a conviction unless they are corroborated by at least slight evidence. OCGA § 24-4-8; Williams v. State, 222 Ga. 208, 217 (14) (149 SE2d 449) (1966).

The sufficiency of the corroborating testimony is a jury question, but whether the evidence actually amounts to corroboration of guilt is a question of law for the court. In the Interest of P. A. W., 224 Ga. App. 329, 330 (1) (480 SE2d 347) (1997). The corroborating evidence must be “facts and circumstances which, in themselves and, independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to an inference that he is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.” (Citations omitted.) Caldwell v. State, 227 Ga. 703, 706 (1) (182 SE2d 789) (1971); In the Interest of P. A. W., supra at 331. Moreover, corroboration “ ‘as to the time, place, and circumstances of the transaction, if there be nothing more to show any connection of the defendant therewith except the testimony of the accomplice, is not sufficient to support a conviction.’ [Cits.]” Caldwell v. State, supra at 706, 707; see also Adams v. State, 140 Ga. App. 621 (231 SE2d 547) (1976).

The evidence available to corroborate Brookshire’s statements consists of the entirely circumstantial evidence that appellant and her niece placed a few phone calls from the convenience store/restaurant, drove around, and then parked shortly before they met Brook-shire; and the testimony of Watson that Brookshire said he was going to “hook up” with his mother. The circumstantial evidence is entirely consistent with the appellant’s statement that she intended to meet Brookshire for dinner. Without benefit of Brookshire’s statements, this evidence would not exclude every theory save that of the guilt of the accused. OCGA § 24-4-8. Moreover, this evidence connects the appellant with the crime only to the extent that it shows a connection to the “time, place, and circumstances of the transaction,” which is insufficient corroboration. Caldwell, supra. To employ this evidence as corroboration would be to permit the State to couple evidence that independently would be legally insufficient — mere spatial proximity to contraband and the uncorroborated statement of an accomplice — to prove constructive possession.

It is true that the testimony of one accomplice may corroborate that of another. Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995). But in this case, Watson’s testimony regarding “hooking up” cannot be used to corroborate Brookshire’s statement for two reasons. First, it is nonprobative hearsay concerning what was said by Brookshire; it cannot be used to show the truth of what Brookshire said. Second, it does not satisfy the requirement that it show appellant’s connection with the crime independently of Brookshire’s statement; Watson’s testimony simply repeats that statement. Caldwell, supra.

The State having failed to present sufficient evidence of both appellant’s possession and her intent to distribute, her conviction must be reversed.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur for the reason that even imminent possible possession does not constitute “constructive possession” as that term is legally defined.' The State must prove “that defendant alone or jointly with another had actual or constructive possession of [the contraband], . . . Constructive possession is shown where one knowingly has both the power and the intention at a given time to exercise authority or control over a thing. [Cits.]” Smith v. State, 205 Ga. App. 810, 811 (424 SE2d 56) (1992).

Decided February 3, 1998.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Even considering the testimony of Brookshire’s son and his companion Watson, and without concern for further corroboration, neither evidence nor a reasonable inference is available on this record to prove that Brookshire had the power to exercise control of the marijuana at any time. She certainly did not have it alone, as the marijuana was in the car of her son, the driver, and there is no evidence that he gave her the keys after he and Watson arrived.

Nor could it be found that both mother and son jointly shared the requisite power at any time. The son, with Watson as aider and abettor, solely possessed the power to retain the marijuana, give it to Brookshire or someone else, drive off with it, or any one of a number of possibilities. Although there is some evidence that Brookshire intended to exercise authority and control over the marijuana as part of engagement in buying and distributing marijuana, control had not yet passed to her. Anticipation of possession, even when the possessor’s anticipation coincides, does not constitute “authority or control” over an object. The officers stopped the progress of the apparent plan too early to allow any act of possession by her to occur.

“A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Thus the act of possession must be in the present, not in the future, to constitute the crime charged.

The Smith case is comparable because it also involves a planned and attempted possession which was thwarted before it matured.


author: Beasley, Judge.

text:
    A97A2119.
    RICHARDS v. WADSWORTH et al.
    (496 SE2d 535)
   Beasley, Judge.

William Frank Richards applied for a year’s support (OCGA § 53-5-2) after the death of his wife, Jo Richards. Elaine Wadsworth and Anita Wall Wadsworth, beneficiaries under their mother Jo Richards’ will, filed a caveat to Richards’ application. At trial, the jury awarded Richards $40,000, but on motion the probate court entered a judgment notwithstanding the verdict and reduced the award to the statutory minimum of $1,600. Richards enumerates this revision as error.

1. “The standard for granting a directed verdict or a judgment notwithstanding the verdict [is] the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50. ... In reviewing [such], we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict.”

2. Richards’ wife died on February 16, 1995, which date governs the law applicable to the widower’s right to year’s support. The year’s support statute at the time was contained in OCGA § 53-5-2. Now, effective January 1, 1998 as provided in OCGA § 53-1-1, the year’s support criteria are set out in OCGA § 53-3-7.

The amount of year’s support allowed to authorized applicants was provided by OCGA § 53-5-2 as “a sufficiency from the estate for their support and maintenance for the space of 12 months from the date of death of the testator or intestate, to be determined using the criteria established in subsection (c) of this Code section and keeping in view also the solvency of the estate. If there is a spouse, there shall also be set apart for the use of the spouse and the children a sufficient amount of household furniture.” In subsection (c), the amount is defined as “an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the testator or intestate, taking into consideration [specified criteria].” The burden of proof is laid on the applicant.

Richards waited over one year from his wife’s death to apply for year’s support and thus was able to introduce evidence of his exact expenses for support and maintenance for that year. No one has suggested that Richards did not live that year in accordance with the standard of living he had known while Jo Richards was alive.

3. Richards contends the court’s j.n.o.v. was based solely on a calculation of his needs for support and maintenance, less the money he had available from other sources, OCGA § 53-5-2 (c) (1), and that the court ignored evidence related to subsection (c) (2) authorizing the jury’s verdict.

“[Entitlement to a year’s support award is a matter of status. . . . When one establishes that he or she is the spouse of the deceased, eligibility for year’s support is also established. The amount of the award remains as a separate inquiry.” OCGA § 53-5-2 (c) provides that the determination of an amount sufficient for support and maintenance in accordance with the pre-death standard of living requires consideration of: “(1) The support available to the person, for whom the property or money is to be set apart, from sources other than year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of that person; and (2) Such other relevant criteria as the court deems equitable and proper.”

With the addition of OCGA § 53-5-2 (c) (1) in 1986, the method of determining the amount of the year’s support award was revised to take into account the applicant’s other resources. Stated otherwise, “[ujnder the 1986 amendments, dependency is clearly a factor in the amount of the award.”

In granting the j.n.o.v., the probate court took into account the uncontested facts that after the wife’s death, Richards had other resources of $246,386 of previously joint-held properties, $19,644 in annual social security benefits, at least $12,000 income per year from a trust fund set up by his first wife, and over $56,000 in his own Merrill Lynch account. In addition, he had “the right to live in the deceased’s residence for the rest of his life, with all related taxes, maintenance, insurance and repairs paid by a trust under the deceased’s will, and [he] will receive such income from a trust under the deceased’s will as is necessary for his support.” The court concluded “[t]hese assets far exceed any evidence of the amount needed for a year’s support taking into consideration the legal and equitable factors prescribed in the statute.”

Construing the evidence in favor of Richards, it shows at most that the amount required to maintain and support Richards at the standard of living he had prior to Jo Richards’ death was approximately $140,000. Their joint income in 1994, the last full calendar year before her death, was $140,623. Richards’ own testimony was that it only cost him about $28,000 to live the year after his wife’s death. As to his declining medical condition, although evidence of current medical expenses is admissible, Richards’ documented medical expenses totaled only $227.27.

Even if Richards alone required the same income that the two lived on in 1994, his other resources greatly exceeded his actual expenses. When Richards’ other resources are subtracted, the inescapable conclusion is that he is only entitled to the $1,600 minimum award, which is based on status and the concomitant conclusive presumption of dependence to that degree. All the evidence demanded the j.n.o.v.

4. Richards does not claim he had verifiable expenses which exceeded his other resources but rather that he introduced evidence of “subtle and intangible factors”: he “gave up his home and his church because Mrs. Richards was unhappy in that church and then moved into Mrs. Richards’ home in Duluth . . . [he] and Mrs. Richards were ‘absolutely devoted to each other,’ and Mrs. Richards[’ statements] describing her married years with [him] in terms of ‘never been or had more happier [sic] years in her life than when she was married to Frank.’ ” Richards contends this evidence supports the jury’s $40,000 award under OCGA § 53-5-2 (c) (2) in the same way that such evidence is used in a tort case to determine the value of doméstic services lost or in a wrongful death case to show the value of á person’s life.

A claim for year’s support is not analogous to a tort claim where general damages can be awarded based on the enlightened consciences of impartial jurors. Nor is it a claim for loss of consortium where damages are not capable of exact pecuniary measure and are left to the enlightened conscience of impartial jurors. Rather it is a statutory claim stemming from the historical purpose: “to prevent a family from being turned away houseless — a widow and children — and cast upon the world in their forlorn condition.” The intent is to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year. It is a “transitional allowance.”

The statute does not authorize a general damages award. Subsection (2) of OCGA § 53-5-2 (c), when construed together with the whole Code section, only means that when determining the amount of “support and maintenance” required to maintain the applicant at his recent standard of living, the court may take into consideration any evidence relevant to that determination that the court deems equitable and proper.

Year’s support is not intended to pay the surviving spouse for loss of the relationship or for personal sacrifices made during the marriage or for the changed societal status of the survivor in the community. These intangible factors identified by the applicant no doubt affected his quality of life and degree of happiness, but they were not germane criteria to measure his economic standard of living. The court is not authorized to award an amount for year’s support where there is no relevant evidence to substantiate it.

“The right of the widow [or widower] to a year’s support in sociological approval and legal provisions stands high, and the courts are jealous of any attempt to encroach upon it, but in our zeal to protect it we must be careful lest we invade the rights of others equally as equitable and sacred.” The laws of intestacy are not to be superseded, beyond satisfaction of the statute’s beneficent but limited aim, by a jury’s determination of what the survivors deserve.

In its order, the probate court reasoned that to allow an award of year’s support under the circumstances would amount to rewriting the decedent’s will. In Burch v. Harrell, the caveators of the year’s support request argued “that the scheme of the testator will be defeated if the year’s support be set apart to the widow.” The appellate court disagreed: “Whenever a year’s support is carved out of property disposed of by will, the intention of the testator is defeated pro tanto, . . . the right to a year’s support overrides the testator’s instructions.” Such a claim, however, must be legally based because it is deemed superior to otherwise legal entitlements. In this case, it is not the humane purpose of the year’s support statute, i.e., financial support and maintenance at the same level, which would be served by the jury verdict; instead, the jury verdict reflects an ad hoc expansion to satisfy purposes not contemplated by the legislature.

Decided February 3, 1998

Louis Levenson & Associates, Louis Levenson, Terence G. Kelly, for appellant.

Wall & Noonan, William A. Wall, Sheila K. Chrzan, for appellees.

The probate court’s grant of j.n.o.v. was correct.

Judgment affirmed.

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

       (Citations omitted.) Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983) See also Carden v. Burckhalter, 214 Ga. App. 487, 488-489 (1) (b) (448 SE2d 251) (1994).

        Lawrence v. Lawrence, 254 Ga. 692, 693 (333 SE2d 610) (1985) (“The right of year’s support is a substantive right which vests upon the death of the deceased.”).

       For Tables of Comparable Provisions for the entirety of year’s support statutory law, see the tables at the beginning of Title 53.

        Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987).

       See OCGA § 53-5-2 (b) and (c); Baker v. Baker, 194 Ga. App. 477, 478 (1) (390 SE2d 892) (1990). Compare Byrd v. Byrd, 223 Ga. 24, 28-29 (1) (153 SE2d 422) (1967) (factfinder not allowed to consider any of the applicant’s other resources).

       Redfearn, Wills & Administration in Georgia (5th ed. 1988), § 324, p. 4. See also Cash, Year’s Support: Change Determination of Year’s Support,” 8 Ga. St. U. L. Rev. 216 (1992).

        Kittles v. Kittles, 187 Ga. App. 537, 538 (1) (370 SE2d 803) (1988).

       See, e.g., OCGA § 51-12-6; Callahan v. Panfel, 195 Ga. App. 891, 893 (395 SE2d 80) (1990) (general damages are presumed to flow from a tortious act and may be awarded without proof of any specific amount).

       See, e.g., Gurly v. Hinson, 194 Ga. App. 673, 675 (9) (391 SE2d 483) (1990).

       (Emphasis omitted.) Blassingame v. Rose, 34 Ga. 418, 419 (1866).

       Note, “Determining Eligibility for Year’s Support in Georgia: The Tension Between Status and Dependence Requirements,” 22 Ga. L. Rev. 1167 (1988).

       “In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. . . . The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. . . .” Williams v. Bear’s Den, 214 Ga. 240, 242 (104 SE2d 230) (1958); Board of Trustees &c. v. Christy, 246 Ga. 553, 554-555 (272 SE2d 288) (1980).

       Case law cited by Richards is inapposite. Bell v. Bell, 201 Ga. App. 218 (411 SE2d 47) (1991), did not hold that cruelty by a spouse can be used to increase or decrease a year’s support award. Baulding v. Turner, 208 Ga. App. 548 (430 SE2d 836) (1993), does not imply that some type of general damages is a part of the award.

        Mashburn v. Mashburn, 64 Ga. App. 388, 390 (13 SE2d 190) (1941).

       57 Ga. App. 514, 516-517 (1) (196 SE 205) (1938).

       Id.


author: McMurray, Presiding Judge.

text:
    A97A2521.
    SHEPHERD v. THE STATE.
    (496 SE2d 530)
   McMurray, Presiding Judge.

Defendant Shepherd appeals his conviction of a terroristic threat. The sole enumeration of error questions whether the evidence presented at trial is sufficient to authorize the conviction. Held:

“A person commits the offense of a terroristic threat when he threatens to commit any crime of violence . . . with the purpose of terrorizing another. ... No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a). The indictment alleges that defendant did threaten to commit simple battery and battery against the person of Joseph Dover with the purpose of terrorizing Tammy Lynn Harris.

The State’s evidence shows that Harris was driving in her vehicle when she came upon defendant in a parking lot. Both stopped their vehicles side-by-side and spoke briefly to one another while they remained in their respective vehicles. During this conversation defendant told Harris to tell Dover that “he was going to kick the [SOB’s] ass because he was whooping [sic] his kids.” Harris was accompanied by her sister, Melissa Harris, who satisfied the corroboration requirement when she testified that defendant stated “he was going to stomp Joe’s butt when he saw him.”

It was also shown that Harris was the mother of two children fathered by defendant, that she and defendant had known each other eleven years, and that their relationship had ended eight years previously. More recently, Harris had lived with Dover for four and one-half years, and at the time of the incident in question they were separated but still socializing.

Contrary to defendant’s assertion, the testimony of Harris and her sister was sufficient to authorize a conviction of a terroristic threat. Their testimony clearly established by direct evidence the threat of a crime of violence against Dover.

Decided February 3, 1998.

Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

The element of defendant’s intent in making the threat (to terrorize Harris) did not require proof by direct evidence in that the circumstances surrounding the threat, including the history of an intimate relationship and defendant’s express concern for his children being subjected to corporal punishment by their mother’s partner in a subsequent intimate relationship, were sufficient for the jury to find that the threat was made for such a purpose. See Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341). In this connection, the jury was also authorized to consider Harris’ testimony that she took the threat against Dover seriously and consequently proceeded immediately to find him and tell him about the threat.

The threat of physical violence directed against an absent third party is clearly within the conduct prohibited by the criminal statute, thus this factual circumstance of the case sub judice provides no basis for overturning defendant’s conviction. A rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offense of committing a terroristic threat. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jordan v. State, 214 Ga. App. 346, 347, supra.

Judgment affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A2563.
    ROZIER v. BERTO.
    (496 SE2d 544)
   Blackburn, Judge.

Hubert Franklin Rozier, Jr. appeals the dismissal of his petition for a change in custody of his minor daughter from his ex-wife, Lynn Elizabeth Berto, to himself pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-40 et seq. The trial court dismissed Rozier’s petition based on insufficiency of process and service of process and lack of personal jurisdiction over Berto, a Virginia resident. For the reasons set forth below, we affirm the trial court’s dismissal of this case.

In response to a phone call from Berto on July 25, 1996, Rozier traveled to Berto’s home in Virginia to pick up his daughter and take her back to Georgia for a visit. Rozier’s current wife, who answered Berto’s phone call, alleged that Berto told her that someone was stalking the child and that she wanted Rozier to take the child to a safer place. Rozier testified that when he arrived at Berto’s home on July 26, 1996, his daughter was filthy, improperly clothed, and generally neglected. Berto, on the other hand, contended that she called Rozier to ask him to pick up their daughter early for a planned visitation because she was in the process of moving into a new apartment. Berto testified that she “thought it would be better for [her daughter] to be away and in a happy environment instead of having to move and juggle things.” Berto also refuted Rozier’s claims that their daughter was dirty and neglected.

After returning to Georgia with his daughter on July 27, 1996, Rozier filed his petition for change of custody on August 2, 1996. He requésted therein an emergency ex parte order giving him temporary custody. Rozier’s emergency custody order was granted on August 2, 1996, and he was awarded temporary custody of his daughter until a hearing could be held on the matter.

On August 10, 1996, Berto was personally served at her home in Virginia with a copy of the petition and the emergency custody order which contained a rule nisi requiring Berto to “appear and show cause before the presiding Judge in the Superior Court of Jones County, Georgia at 9:00 o’clock a.m. on the 15th day of August, 1996, if she can, why the demands of [Rozier] should not be granted.” The process served upon Berto did not include a summons. The trial court ultimately dismissed Rozier’s petition in its order filed June 5, 1997, finding that it lacked personal jurisdiction over Berto due to the insufficiency of process and insufficiency of service of process in that no summons was attached to the petition.

Pretermitting a determination of the correctness of the trial court’s reasoning, we review the question of whether the trial court properly exercised its emergency jurisdiction. This is the threshold issue, as without such condition, Georgia cannot exercise subject matter jurisdiction under OCGA § 19-9-43 (a) (3) (B). “Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian (OCGA § 19-9-23 (a); Matthews v. Matthews, [238 Ga. 201 (232 SE2d 76) (1977)]), and one of the purposes of the . . . UCCJA is to assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; and the UCCJA shall be construed to promote its general purposes. OCGA § 19-9-41 (a) (3) and (b).” (Punctuation omitted.) Lightfoot v. Lightfoot, 210 Ga. App. 400, 402 (2) (436 SE2d 700) (1993). In other words, the UCCJA favors the hearing of custody matters in a child’s home state, “the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months.” OCGA § 19-9-42 (5). In this case, the home state is clearly Virginia.

There is, however, a limited exception to this general rule of home state jurisdiction in certain cases of emergency arising in a state other than the home state. OCGA § 19-9-43 (a) (3) provides that a Georgia court may exert its jurisdiction over a child custody matter if the child is physically present in Georgia, and if the child has either been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.

Before invoking jurisdiction under this exception, a Georgia trial court should remember the purpose of the statute and determine that an emergency exists which demands the exercise of jurisdiction by such Georgia court rather than by the courts of the child’s home state. As a general matter, if the emergency pled before the court developed in the home state prior to the time the child was brought into Georgia, Georgia courts should decline jurisdiction in favor of the home state, absent compelling reasons for the Georgia court to do otherwise.

In this case, there was no true emergency which required the Georgia court to exercise jurisdiction for the protection of the child. Here, the child was in the physical custody of Rozier and was in no immediate danger under his version of the facts. The Virginia court was the proper venue in which he should have sought relief. There is nothing here which would have justified litigating the matter in Georgia, rather than Virginia, except the convenience of the father. Although Rozier contends that his daughter may have been neglected by Berto, such neglect, if it existed, arose and was discovered by Rozier in Virginia, and his claims could have been presented in the home state of Virginia.

We note also that Rozier did not take his daughter to a medical doctor until August 7, 1996, approximately eleven days following his return to Georgia and five days following his emergency filing. After this doctor informed Rozier that the examination he requested was “too in-depth for him,” Rozier did not have his daughter examined by a child abuse specialist until August 13, 1996, 17 days following his return to Georgia and 11 days following his emergency filing. Only the specialist testified at the hearing, and her testimony concerning the child’s condition was, at best, indefinite and equivocal.

The purpose of the emergency exception to home state jurisdiction is to allow an appropriate non-home state court to exercise jurisdiction where the circumstances and the well-being of the child demand immediate action in such state. In Webb v. Webb, 245 Ga. 650 (266 SE2d 463) (1980), state authorities requested the Georgia noncustodial parent to come to Florida and pick up the children because the custodial parent had left them unsupervised in Florida while she visited a distant city. In that case, the circumstances justified the exercise of jurisdiction by the Georgia court upon the children’s return to Georgia, because they were removed at the request of state authorities and they continued in their abandoned state upon their return to Georgia. Furthermore, our Supreme Court specifically limited Webb to its facts, that is, a situation in which an extreme emergency exists authorizing conduct of the non-custodial parent which otherwise would be contrary to the public policy of this state. See Bishop v. Bishop, 247 Ga. 56, 57 (273 SE2d 394) (1981); Craighead v. Davis, 162 Ga. App. 145, 148 (2) (290 SE2d 358) (1982).

Decided February 3, 1998.

G. Samuel Burnette, for appellant.

Fred I. Graham, for appellee.

Lynn E. Berto, pro se.

Webb is easily distinguished from the matter before us. Here, Berto had not abandoned her child. Quite to the contrary, she was with her daughter when Rozier arrived in Virginia. Furthermore, it was Berto herself, not state authorities, who called for Rozier to have the child visit with him, although the reason for such request is disputed. Even under Rozier’s version of the facts, Berto’s request that he come to Virginia was an act of protecting their daughter, quite unlike the circumstances central to the holding in Webb. Accordingly, Webb does not require a different result in the present case in which there was no extreme emergency.

This Court does not pass on who should be granted custody of this child. We merely determine that there is no basis for a Georgia court, rather than a Virginia court, to exercise jurisdiction in this matter. It is therefore unnecessary for this Court to address the trial court’s determination as to personal jurisdiction, in that it dismissed Rozier’s petition. As this Court will affirm a trial court’s ruling which is right for any reason, we affirm the dismissal of Rozier’s petition for change of custody. Goss v. Total Chipping, 220 Ga. App. 643, 647 (5) (a) (469 SE2d 855) (1996).

Judgment affirmed.

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