author: Andrews, Judge. Cooper, Judge,

text:
    A93A2358.
    PATTERSON et al. v. LAUDERBACK et al.
    (440 SE2d 673)
   Andrews, Judge.

After Mary Burke Patterson died as a result of injuries she suffered in a two-automobile accident with Kenneth Lauderback, the plaintiffs brought this wrongful death action against Lauderback and his employer. A jury rendered a verdict in favor of the defendants, and the plaintiffs appeal from the judgment entered on the verdict.

1. Although not raised, we address the threshold question of jurisdiction. The plaintiffs’ motion for new trial was void when filed on November 19, 1992, prior to the trial court’s entry of judgment on the jury verdict on December 1, 1992. Nevertheless, the subsequent entry of judgment on the verdict rendered the otherwise void motion merely premature, “and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal.” McKeever v. State, 189 Ga. App. 445, 446 (375 SE2d 899) (1988); Cornelius v. Lawrence, 203 Ga. App. 113 (416 SE2d 115) (1992). A timely notice of appeal was filed within 30 days after disposition of the premature motion on April 21, 1993.

2. Plaintiffs contend the trial court erred by admitting, over objection, evidence of collateral benefits. On direct examination, the deceased’s son testified as to the extensive injuries his mother sustained in the accident, the pain and suffering she experienced during her hospitalization and medical treatment prior to her death, and the amount of the hospital bills. While identifying two photographs of his mother taken while she was in the hospital intensive care unit, the following testimony was given:

“Q: Did your mother know why those photographs were being taken?

“A: Yes, she did.

“Q: And tell the Jury why those photographs were taken.

“A: Her injuries were extensive. We knew that rehabilitation would be a long process. She was not a wealthy woman. ...”

Defense counsel objected that the deceased’s financial status was irrelevant, and moved the trial court to strike the testimony regarding her lack of wealth. In making the objection, defense counsel, in an apparent reference to the deceased’s husband, further stated: “That’s not relevant in this matter. The retired captain had benefits, and he knows that that’s not relevant. ...” Plaintiff made no objection to the defense reference to “benefits,” and the trial court denied the defense motion to strike the testimony as to the deceased’s lack of wealth. On cross-examination of the deceased’s son, defense counsel posed the following question: “And you mentioned the reason you took the photographs earlier — is it true, Mr. Patterson, that you had fifty thousand ($50,000.00) USAA coverage, PIP coverage and also CHAMPUS Veterans Dependent Benefit, didn’t you?” Plaintiffs’ counsel objected and subsequently moved for a mistrial arguing that this was irrelevant evidence of collateral insurance benefits. Defense counsel countered that the defense had the right to cross-examine as to insurance benefits available to pay the medical bills after the deceased’s son testified as to his mother’s lack of financial resources in connection with the medical bills. The trial court overruled the plaintiffs’ objection and motion for a mistrial. The deceased’s son answered the question affirmatively indicating that such insurance coverage was available, and there was no further cross-examination on this issue.

Generally, after Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), it is error to allow evidence of collateral benefits. “The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1 (b). Certainly, the preDenton, and proper, rule is that when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented [plaintiff] from seeking treatment, defendant is allowed to cross-examine her on this point in the narrow, limited manner which the trial court allowed in this case.” (Citations and punctuation omitted.) Moore v. Mellars, 208 Ga. App. 69, 72 (430 SE2d 179) (1993).

The clear import of the testimony presented by the deceased’s son regarding his mother’s lack of wealth was that she was not able to afford all the extensive medical treatment she would need as a result of her injuries. The defense objected to this evidence of the deceased’s financial status, but the trial court refused to strike the testimony. See Nationwide Mut. Ins. Co. v. Whiten, 179 Ga. App. 544, 545 (346 SE2d 914) (1986); Gordon v. Gordon, 133 Ga. App. 520, 522 (211 SE2d 374) (1974). As a result, evidence as to the availability of collateral insurance benefits to pay the medical bills, although generally inadmissible, was relevant for the limited purpose of impeaching the testimony presented by the plaintiffs. See Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376) (1992); compare Dietz v. Becker, 209 Ga. App. 678, 679-680 (434 SE2d 103) (1993). Evidence inadmissible for one purpose, may be relevant and admissible for another purpose. Gordon, supra. Under these circumstances, we find no reversible error in allowing the limited cross-examination as to the availability of insurance benefits to test the plaintiffs’ testimony indicating that the deceased was unable to afford necessary medical care. Johnson v. Bryant, 178 Ga. App. 327, 329 (343 SE2d 397) (1986); Bridges v. Schier, 195 Ga. App. 583, 584 (394 SE2d 408) (1990); Moore, supra at 72; Nationwide, supra. Although it may be possible to discern some factual differences between Hayes v. Gary Burnett Trucking, 203 Ga. App. 693, 694-695 (417 SE2d 676) (1992) and the present case, it is indistinguishable in other respects. See Moore, supra at 72-73 (Andrews, J., concurring specially). Accordingly, Hayes, supra is overruled to the extent it is inconsistent with the holding in this case.

3. The plaintiffs assert they are entitled to a new trial because the prospective jurors were not qualified as to possible interests they may have had in Sentry Insurance, the defendants’ insurer on the claim at issue. The pre-trial order provided that the jury be qualified as to “policyholders of Sentry Insurance Company, a mutual company.” In Weatherbee v. Hutcheson, 114 Ga. App. 761 (152 SE2d 715) (1966) we held:

“If the [insurance] company is a mutual one in which the policyholder has an interest in the assets of the company, usually realized by way of dividends reducing the policy premium, it is proper to qualify the jurors as to whether any of them are policyholders or related within the prohibited degree to policyholders. It has been held not error to make the inquiry as to policyholders of any company when it does not appear whether or not it is a mutual. [Cits.] But if it should appear that the company is a stock company the inquiry would be irrelevant, for in that event the policyholder has nothing more than a contract with the company, giving him no interest in its assets, and he is no more disqualified than would be a depositor in a bank that is a party to litigation.

“Now that we have pre-trial procedures, requests for admissions, discovery, and notice to produce, there should be no difficulty in obtaining the name of any interested company for use by the court in qualifying the jury. [Cit.]

“Generally, the information is readily obtainable if the court will simply make inquiry of the defendant’s attorney prior to trial. But it should be done out of the presence and hearing of the jury. [Cit.] The judge may pre-try the case and get the information at the pretrial hearing. He may simply call counsel into his chambers before starting the trial and obtain the information. If it were done in either manner we should think it the duty of counsel to reveal to the court the information.” (Emphasis in original.) Id. at 765; see also Holland v. Watson, 118 Ga. App. 468, 471 (164 SE2d 343) (1968) (when questioned by the court regarding insurance coverage for purposes of qualifying the jury, defense counsel has a duty to reveal the relevant facts).

The record reflects that prior to qualification of the jury, and out of the jurors’ presence, plaintiffs’ counsel brought to the trial court’s attention that under the pre-trial order, and because Sentry Insurance was described by name as a mutual, company, the prospective jurors should be qualified as to possible interest as policyholders. Defense counsel responded that even though Sentry Insurance continued to call itself a mutual company by name, it was no longer a mutual company, and that “this is a stock company in Stevens Point, Wisconsin. . . . It’s a stock company even though that’s in the name. It’s not a mutual company. . . . The policyholders do not share any kind of dividends or benefits or anything like that.” The trial court inquired directly of defense counsel: “So is it a company where the policyholders are the stockholders or not?” Defense counsel responded: “It’s not.” Based on this information provided by defense counsel, the jury was not qualified as to possible interest as Sentry policyholders.

On March 11, 1993, more than 30 days after entry of judgment, but prior to the trial court’s ruling on the motion for new trial, plaintiffs filed an extraordinary motion for a new trial accompanied by a certified copy of the articles of incorporation of Sentry obtained from the office of the commissioner of insurance of the State of Wisconsin. The articles of incorporation for “Sentry Insurance, A Mutual Company” stated: “This Company is organized for the purpose of insuring the members . . . upon the Mutual Plan. . . . This Company shall be a Mutual Insurance Company without capital stock, in which the contingent mutual liability of the members is limited to one additional annual premium. Every policyholder shall be a member and have one vote.” The plaintiffs submitted this evidence in support of their contention that, contrary to the information provided to the court by defense counsel, Sentry was in fact a mutual company, and the prospective jurors should have been qualified as to possible interest as policyholders.

The record reflects the defendants filed no response to the motion. On appeal, the defendants do not controvert the plaintiffs’ assertion that Sentry was a mutual company, and we accept this assertion as being prima facie true. Court of Appeals Rule 15 (b) (1). Rather, the defendants argue that whether Sentry was a stock or mutual company was not relevant, and, in any event, there could have been no harmful error since in rendering a verdict for the defense, the jury never reached the issue of awarding damages Sentry would have been liable to pay.

These contentions fail in light of long-standing authority from our Supreme Court. 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. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-551 (173 SE 131) (1934) (officers, employees, or stockholders of a non-party insurance company liable for any judgment rendered in the case are disqualified as a matter of law to serve as jurors); Tatum v. Croswell, 178 Ga. 679 (174 SE 140) (1934); Coleman v. Newsome, 179 Ga. 47 (174 SE 923) (1934); see Weatherbee, supra; Crosby v. Spencer, 207 Ga. App. 487, 490 (428 SE2d 607) (1993). It is not necessary to decide here what proof may suffice to show there is reasonable cause to believe the defendant’s insurer is such a mutual company. “[Wjhere the court questions [defense] counsel in an effort to elicit information regarding insurance coverage for the purpose of qualifying the jury, it is the duty of the latter to make known the relevant facts.” Holland, supra at 471. Defense counsel may state he does not know, or is not sure, but he may not provide erroneous information upon which the trial court relies, and escape responsibility for resulting error in the qualification of the jury. In this case the pretrial order provided for qualification of the jurors on the basis that Sentry was a mutual company, and plaintiffs’ counsel requested that the trial court so qualify the jurors. No such qualification was undertaken because the trial court relied upon information obtained from defense counsel prior to trial that Sentry was not a mutual company, and the policyholders had no interest in the financial affairs of the company.

The plaintiffs made a diligent effort after the trial to discover and produce sufficient evidence showing that Sentry was a mutual insurance company, contrary to the information provided by defense counsel. The trial court did not provide the reasons for denial of the plaintiffs’ extraordinary motion for a new trial, and the record does not reflect whether the court conducted a hearing on this issue. Although the grant or denial of an extraordinary motion for new trial on the basis of newly discovered evidence is within the discretion of the trial judge, whose discretion will not be disturbed unless abused (Norfolk Southern R. Co. v. Thompson, 208 Ga. App. 240-241 (430 SE2d 371) (1993)), we are constrained under the present circumstances to conclude that the trial court erred by denying the motion. Compare Reece v. State, 208 Ga. 690, 691-692 (69 SE2d 92) (1952) (where the respondent to an extraordinary motion for new trial made a counter-showing that grounds for disqualification of a juror did not exist, trial judge is exclusive trier of fact, and appellate court will not interfere with the decision where there is any evidence to support the finding). Despite the defendants’ failure to controvert the evidence presented by the plaintiffs, based on the present record, we are unable to conclude that Sentry was in fact a mutual company at the time of the trial for which the prospective jurors should have been qualified for possible interest as policyholders. Accordingly, we vacate the judgment and the trial court’s order denying the motion, and remand this case for reconsideration of the motion on this issue in accordance with this opinion.

Decided January 13, 1994

Reconsideration denied February 9, 1994

Cochran, Camp & Snipes, Scott A. Cochran, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellees.

Weiner, Yancey & Dempsey, Beryl H. Weiner, amicus curiae.

4. Finally, the plaintiffs claim that the trial court erred by failing to give a requested charge with respect to the duty of a driver having the right-of-way in an intersection to look out for approaching vehicles. We find no error. The charge as a whole adequately covered the applicable principles.

Judgment vacated and case remanded with directions.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn and Smith, JJ., concur. Cooper, J., concurs in part, dissents in part.

Cooper, Judge,

concurring in part, dissenting in part.

I agree with the result reached in this case. However, I cannot concur in the majority’s conclusion that Hayes v. Gary Burnett Trucking, 203 Ga. App. 693 (417 SE2d 676) (1992) must be overruled. In this case, the collateral source evidence was admitted under the recognized rule allowing cross-examination of a plaintiff on the availability of insurance benefits to impeach a plaintiff’s contentions regarding financial inability to seek medical treatment. Hayes affirmed the longstanding rule allowing a limited cross-examination to test the plaintiff’s contention that he or she was unable to afford necessary medical treatment. However, in Hayes the evidence was not admitted during cross-examination but pursuant to OCGA § 51-12-1 (b), later ruled unconstitutional. The majority would overrule Hayes because in some respects Hayes is factually indistinguishable from this case. Regardless of the factual similarities or differences within these two cases, what is important is that the cases embrace different legal principles. Because I conclude that both cases are correct, I must respectfully dissent from the majority’s decision to overrule Hayes.

       We note that the jury should be cautioned by the trial court as to the limited purpose for which the collateral benefit evidence is admitted. See King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 850 (380 SE2d 481) (1989); Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (178 SE2d 543) (1970). No limiting instruction was given in this case, and since the plaintiffs objected to the admissibility of the evidence for any purpose, they made no request for such instruction. Nevertheless, in the absence of an oral request for a limiting instruction at the time the evidence is introduced, or a proper written request to so charge the jury at the conclusion of the case, it is not reversible error to fail to give a specific instruction limiting the relevancy of the evidence. Bellamy v. Edwards, 181 Ga. App. 887, 891 (354 SE2d 434) (1987).

       In a special concurrence in Franklin v. Tackett, 209 Ga. App. 448, 450-455 (433 SE2d 710) (1993), Presiding Judge Beasley has persuasively demonstrated the unreasonableness of questioning and disqualifying prospective jurors on the basis of such an interest in a non-party insurer, since in most cases it will simply inform jurors that liability insurance exists, and that they are a policyholder of the potentially liable insurance company facts of which they previously had no knowledge, and which would have had no influence on their consideration of the case. There are several practical solutions to the problem, one of which was suggested by Presiding Judge Beasley. Id. at 455. (Beasley, P. J., concurring specially.) Another possible solution is to utilize the written juror questionnaires now commonly in use to discover such disqualifications rather than doing so orally in the presence of all jurors. This, of course, addresses itself to the sound discretion of the trial judge under present authority.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A1893.
    TAYLOR & ROZIER, INC. v. ANDERSON et al.
    (440 SE2d 767)
   Birdsong, Presiding Judge.

After a bench trial, judgment was entered in favor of Jeffery Anderson d/b/a Jeffery Anderson Trucking, and Jeffery Anderson Trucking, Inc. (collectively “Anderson”), on the claims by Taylor & Rozier, Inc., that Anderson misappropriated a customer list. Taylor & Rozier now appeals from that judgment. The enumerations of error contend the trial court misconstrued and misapplied OCGA § 10-1-761 (4) (“Trade secret”) by holding that the need of two businesses for pneumatic hauling services was not a trade secret, by holding that Anderson did not misappropriate trade secrets, by holding that Anderson did not wrongfully interfere with the business relationships between Taylor & Rozier and the two businesses, and by holding that Taylor & Rozier was not entitled to any relief. Held:

In bench trials, the trial judge sits as the trier of fact and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (390 SE2d 52). Further, under OCGA § 9-11-52 (a) the findings of the trial court in these cases “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” As the clearly erroneous test has the same effect as the any evidence rule, we will not disturb the findings of fact in this case if there is any evidence to sustain them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388).

In this appeal, the trial court found that Anderson leased two trucks, with drivers, to Taylor & Rozier, one of the drivers being Jeffery Anderson; that the lease agreement did not contain a covenant restricting competition or imposing a duty of confidentiality; and that Anderson advised Taylor & Rozier that he intended eventually to open his own trucking company. The trial court further found that Anderson never had access to Taylor & Rozier’s customer list, but became familiar with two companies only by hauling their commodities for Taylor & Rozier, and the trial court also found that Anderson did not undercut Taylor & Rozier’s prices.

Based upon these findings of fact, the trial court reached conclusions of law that the identity of the two businesses that needed pneumatic hauling services did not constitute a trade secret within the meaning of OCGA § 10-1-761 (4), and that even if the information that Taylor & Rozier sought to protect was a trade secret, Anderson did not use improper means to obtain this information and did not misappropriate any trade secret.

Pretermitting any issue concerning the trial court’s legal conclusions about whether the names of the two businesses constituted a “trade secret” within the meaning of OCGA § 10-1-761 (4) is the trial court’s conclusion that Anderson did not use improper means to obtain any information and did not misappropriate any trade secret. As our review of the record shows that there is evidence supporting the factual findings, these findings are not clearly erroneous and we must accept them. Kimbrell v. Effingham Bd. of Tax Assessors, supra.

Decided February 9, 1994.

James D. Hudson, for appellant.

Fred R. Kopp, Merrill, Stone & Parks, Jesse C. Stone, for appellees.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2579.
    COTTON v. BANK SOUTH, N.A.
    (440 SE2d 704)
   Birdsong, Presiding Judge.

Gloria Cotton appeals pro se the order of the superior court granting appellee/plaintiff Bank South, N.A.’s motion for summary judgment.

Tom Cotton, the husband of appellant, filed a Chapter 12 voluntary bankruptcy petition before the United States Bankruptcy Court for the Middle District of Georgia, Macon Division. Appellee bank, as a creditor, filed timely proof of claim and objections to the debtor’s plan, and moved to dismiss the bankruptcy case. A contest developed regarding indebtedness on a certain loan to which Gloria Cotton’s name had been forged purportedly by an officer of the bank who apparently was federally prosecuted thereafter on divers counts. The bankruptcy court directed the parties to attempt to arrive at a settlement. Although the record fails to establish that Gloria Cotton, in fact, was represented by counsel at the ensuing hearing, she did agree, during preliminary negotiations occurring out of court, to sign a broad covenant not to sue Bank South. Her contentions are undisputed that she entered this agreement solely to enable her husband to reach settlement with Bank South regarding the latter’s creditor claims, and apparently on the broad condition that the bank would treat her husband fairly. At the hearing, an attorney, who appellant claims was there solely to determine whether he would represent her in any subsequent suit against the bank, stated in open court that he represented appellant and that she consented to the settlement agreement. Appellant, although present, did not object to this announcement. The settlement agreement, which included the covenant not to sue the bank, subsequently was reduced to writing; however, Tom Cotton on advice of new counsel attempted to withdraw his motion for approval of settlement and requested voluntary dismissal of the bankruptcy action pursuant to 11 USC § 1208 (b). The bankruptcy court stayed the request for case dismissal, thereafter approved the settlement agreement, and ruled that the bankruptcy case would not be dismissed until Tom Cotton complied with the terms of settlement. The United States District Court for the Middle District of Georgia affirmed the bankruptcy court’s order; Tom Cotton appealed to the United States Court of Appeals, Eleventh Circuit.

While Tom Cotton’s appeal was pending before the United States Court of Appeals, Bank South filed suit in the Superior Court of Jackson County for specific performance of the settlement agreement and for declaratory judgment against Gloria Cotton. Gloria Cotton steadfastly had refused to sign the covenant not to sue, because she contends no attorney was authorized to represent her in the proceeding where settlement was announced, and apparently because of her subsequent discovery of certain previous, undisclosed conduct of Bank South directed toward her and her husband. This case subsequently was transferred to the Superior Court of Gwinnett County.

The settlement agreement is averred in the specific performance count of appellee bank’s complaint as being “binding” on Bank South, appellant’s husband and appellant and, as being sufficiently definite in its terms to be specifically enforceable by a court of equity. It was further averred in the specific performance count that Bank South is “entitled” to a judgment requiring specific performance of the settlement agreement; the relief sought included that of requiring defendant to execute the covenant not to sue, and of requiring her to abide by the terms thereof to refrain from asserting any claim or initiating any litigation against Bank South as provided for in the covenant not to sue. In its alternative count for declaratory judgment, appellee bank averred, inter alia, that it was “entitled to a declaration that the [appellant] would be in breach of the settlement agreement and the covenant not to sue if she initiated suit or made any claims contrary to the terms of the covenant not to sue.” Appellant answered and asserted certain counterclaims, including counts of civil RICO and slander against appellant allegedly arising out of the transaction to which the settlement agreement pertained. The superior court elected not to address Bank South’s claim for specific performance because it could aiford complete relief by granting a declaratory judgment and by dismissing appellant’s counterclaims with prejudice, and granted the bank’s motion for summary judgment as to the declaratory judgment count. The superior court also dismissed appellant’s counterclaims with prejudice. Subsequently, the United States Court of Appeals reversed the rulings of the bankruptcy court and district court in the bankruptcy case of Tom Cotton. Held:

1. In considering appellant’s enumerations of error, we are guided by the general rule that “[p]ro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers” (Thompson v. Long', 201 Ga. App. 480, 481 (1) (411 SE2d 322)), and by the statutory provision that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing . . . what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding . . . that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” OCGA § 5-6-48 (f).

2. Because the trial court apparently exercised its discretion (compare Skalar &c. v. Skalar USA, 198 Ga. App. 401 (2) (401 SE2d 595) with Fortson v. Kiser, 188 Ga. App. 660 (1) (373 SE2d 842)) not to postpone these proceedings as a matter of comity, pending the outcome of the appeal of Tom Cotton to the United States Court of Appeals, we are required to determine the effect of the subsequent judgment of the United States Court of Appeals reversing the rulings of the bankruptcy court and district court, and holding that the voluntary bankruptcy case (the case to which the settlement agreement here at issue pertains) should have been dismissed pursuant to the plain language of 11 USC § 1208 (b). See generally Cotton v. Bank South, N.A., 992 F2d 311 (11th Cir. 1993).

3. We find that the trial court erred in granting declaratory judgment to appellee bank for two distinct reasons: first, because declaratory judgment was not a viable remedy under the attendant circumstances and, second, because the settlement agreement was void.

(a) A petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest. Sentry Ins. v. Majeed, 194 Ga. App. 276, 278 (2) (390 SE2d 269), aff’d 260 Ga. 203 (391 SE2d 649). “As movant for summary judgment the plaintiff had the burden to establish as a matter of law whether he was entitled to a declaratory judgment. A declaratory judgment may not be granted where the rights of the parties have already accrued and there are no facts or circumstances showing that an adjudication of the plaintiff’s rights is necessary in order to relieve it from the risk of taking any future undirected action, which action without direction would jeopardize its interest.” Norfolk &c. Mut. Fire Ins. Co. v. Jones, 124 Ga. App. 761, 763 (2) (186 SE2d 119). In this instance, the record reveals that appellee bank consistently has taken a firm position that the settlement agreement was enforceable and, in fact, petitioned the superior court for the equitable relief of specific performance. In doing so, appellee bank claimed not only that the settlement agreement was valid and binding on appellant, but also conceded in its pleadings that the agreement was “sufficiently definite in its terms” to be enforceable in equity. In such circumstances, declaratory judgment is not appropriate as appellee bank has not been “walking in the dark,” but rather has “otherwise taken a firm position as to their rights,” under the settlement agreement. (Emphasis omitted.) Sentry Ins., supra at 278.

Additionally, it appears that appellee bank brought the alternative action for declaratory judgment merely to test the viability of its defense arising from the covenant not to sue contained in the terms of the settlement agreement. Declaratory judgment is not available to a party merely to test the viability of its defenses. Sentry Ins., supra at 276; see Allstate Ins. Co. v. Shuman, 163 Ga. 313, 316 (4) (293 SE2d 868) and cases cited therein. Appellee bank was “not faced with any dilemma with regard to the course it should pursue but seeks confirmation of what it has already done in the past” (Norfolk, supra at 764 (2)), that is, judicial confirmation, through the specific enforcement of the terms of the settlement agreement. What appellee bank in essence is seeking is an advisory opinion as to the legitimacy of its covenant not to sue defenses.

For each of these reasons, the trial court erred in granting declaratory judgment to appellee bank, which as movant failed to carry its burden of showing that, as a matter of law, it was entitled to declaratory judgment. Norfolk, supra.

(b) The settlement agreement was void and therefore is unenforceable.

Although courts do not ordinarily scrutinize the merits of compromise, “a long line of cases has required that settlements [under the Bankruptcy Code] be approved by the court.” Norton Bankruptcy Law & Practice, § 28.07.50, Preconfirmation, citing, inter alia, Protective Committee &c. v. Anderson, 390 U. S. 414 (88 SC 1157, 20 LE2d 1). “[T]he court must actually pass on the proposed settlement.” Norton, supra at § 28.07.75, Procedures; see Federal Rules of Bankruptcy Procedure, § 9019 (a). In this case, the bankruptcy court stayed Tom Cotton’s request for voluntary dismissal of the bankruptcy case and subsequently determined the parties had reached a binding settlement and that Tom Cotton could not unilaterally rescind that agreement. It then approved the settlement agreement. In concluding that the trial court erred, the United States Court of Appeals pertinently held: “Cotton and the bank were in controversy over the amount of the bank’s secured claim. ... It was later discovered that [the bank officer involved] committed certain wrongful acts, some of which were related to Cotton’s account. Shortly before the scheduled hearing on Cotton’s motion for approval of the settlement, Cotton learned that the bank had obtained a judgment against the officer. He asserts that he would not have agreed to the settlement if he had known this earlier. Although the bank might dispute his allegations, Cotton was entitled to a dismissal under the statute, whereupon the bankruptcy court would lose jurisdiction of any controversy between Cotton and the creditor bank. . . . There was no evidence ... of fraud [on the part of Cotton] which would justify converting this proceeding to an involuntary bankruptcy. The only thing the court considered was whether Cotton was bound by the settlement agreement. Whether he was or not could not be decided by the bankruptcy court once there was a legal request for dismissal. The bankruptcy court should have . . . dismissed the case upon the debtor’s request.” (Emphasis supplied.) Cotton, supra at 313. As the bankruptcy court lost jurisdiction over the controversy, it did not have authority to approve the settlement agreement, and said agreement became null and void — it remaining merely a proposed claim settlement under the Bankruptcy Act.

Additionally, the dismissal of the case would per force render invalid and unenforceable any settlement agreement based upon the existence of such a suit. The Superior Court of Gwinnett County recognized in its order that the consideration for the settlement agreement was the mutual promises of Bank South and Mrs. Cotton; Mrs. Cotton promised to release the bank from any claims “in return” for the bank’s promise “to reduce its claim in bankruptcy against Mrs. Cotton’s husband [and to] withdraw its motion to dismiss Mr. Cotton’s bankruptcy case.” In view of the decision of the United States Court of Appeals, it is apparent that appellee bank cannot fulfill its promises consistent with the intent of the participants in the settlement negotiations.

Finally, we also find that in view of the holding of the United States Court of Appeals, appellee bank could not directly enforce this settlement agreement before any federal court in the Eleventh Circuit. To enforce this settlement agreement in state court would allow appellee bank to do indirectly that which the law would not allow to be done directly. This we cannot allow either as a matter of law (cf. Kingsmill Village &c. Assn. v. Homebanc &c. Bank, 204 Ga. App. 900, 902 (2a) (420 SE2d 771)) or comity.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Decided January 28, 1994

Reconsideration denied February 10, 1994

Gloria Cotton, pro se.

Kilpatrick & Cody, Craig E. Bertschi, Thomas C. Harney, for appellee.

On Motion for Reconsideration.

The motion for reconsideration is hereby denied. In re Nelson Co., 117 B.R. 813 (Bkrtcy.E.D.Pa. 1990) and In re Tidewater Group, 8 B.R. 930 (Bkrtcy.N.D.Ga. 1981), cited by appellee Bank South, N.A., are inapposite. Neither of these cases involve an attempt by a creditor/litigant to hold the wife of the debtor/litigant to the terms of a non-court approved settlement agreement when the approval or disapproval of the agreement can no longer be pending before the lower court due to a compelled dismissal of the bankruptcy case. Also, neither of these cases involves a situation where a federal circuit court issued an opinion in essence holding that the lower federal court lacked jurisdiction to determine whether the parties were bound by the settlement agreement. We conclude that once the higher federal court announced its appellate decision, the issue of court approval of the settlement agreement was no longer “pending” below, within the meaning of In re Nelson Co., supra, and In re Tidewater Group, supra.

We adhere to our determination that, under the attendant circumstances, this particular settlement agreement is null and void, and particularly that it is unenforceable as to Mrs. Cotton. Moreover, this is not a case where the parties are estopped to deny the validity of their proposed settlement agreement due to the detrimental reliance thereon by third-party creditors. We also adhere to our additional determination that, in the interests of comity, we will not enforce this particular settlement agreement whether or not it is null and void in law.

Motion for reconsideration denied.


author: Cooper, Judge.

text:
    A93A1731.
    STAFFORD v. BRYAN COUNTY BOARD OF EDUCATION.
    (440 SE2d 774)
   Cooper, Judge.

Appellee-condemnor, seeking to condemn a 1.99 acre of property pursuant to OCGA § 22-2-100, filed a condemnation action in the Superior Court of Bryan County against appellant and other named owners of the property. A special master was appointed by the court, and following a hearing, the special master entered an award on December 7, 1992. Appellant filed an exception to the award as well as an appeal of the award to the superior court. The superior court held a hearing on appellant’s exceptions, and the special master filed an amended award on March 4, 1993. On March 8, 1993, the superior court made the December 7 award the judgment of the court, and on March 12, 1993, appellant filed exceptions to the amended award and a notice of appeal of the valuation issue to the superior court. On March 17, 1993, appellant obtained a certificate of immediate review and subsequently filed an application for interlocutory appeal, seeking review of the March 8 order. While his application was pending, appellant filed this direct appeal of the March 8 order, contending that the judgment should not have been entered before his exceptions to the amended award were filed. On April 15, 1993, this court denied appellant’s application for interlocutory appeal. Appellant’s appeal of the issue of just and adequate compensation is still pending below.

Decided February 10, 1994.

Henderson & Henderson, DeVaul L. Henderson, Jr., Michael P. Ludwiczak, for appellant.

Edenfield, Stone & Cox, Gerald M. Edenfield, E. Lee Davis, Jr., for appellee.

“Where an appeal to a jury as to value is pending, the judgment of condemnation under the special master’s condemnation procedure is not a final judgment subject to review. . . .” City of Atlanta v. Turner Advertising Co., 234 Ga. 1, 2 (214 SE2d 501) (1975). Consequently, this appeal must be dismissed. However, “[a]ppellant will be entitled to appeal directly and raise all issues regarding the condemnation of [his] property when the issue of just and adequate compensation is no longer pending below and all issues have become final. [Cit.]” (Emphasis in original.) Cook v. Ga. Power Co., 204 Ga. App. 119, 120 (418 SE2d 451) (1992).

Appeal dismissed.

Beasley, P. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A93A1927, A93A1928.
    BAUGHER v. THE STATE (two cases).
    (440 SE2d 768)
   Andrews, Judge.

Anthony and Montgomery Baugher, who are brothers, were each charged with one count of armed robbery, six counts of aggravated assault, and one count of false imprisonment. They were tried jointly and convicted. In Case No. A93A1927, Anthony Baugher appeals and in Case No. A93A1928, Montgomery Baugher appeals.

Evidence at trial was that on the night of February 3, 1991, the Battle Food Store in Cherokee County was robbed by two armed men. After both men entered the store, one man took employees Becky Pratt, Linda Connell, and Mark Shephard to the bread section of the store and forced them to lie down. Prior to obeying, Linda Connell activated a hidden silent alarm. The second man forced store manager Ronald Chapman to open the safe and remove money from it.

The men had a portable police scanner, which they listened to as they robbed the store. The robbers unsuccessfully attempted to lock the store doors. As customers Johnny Frazier, Jr., Paul Cummings, and Linda Bostar entered the store, they were apprehended and also forced at gunpoint to lie down. The gunmen fled when they heard that the police were coming.

Detective Richard Escher testified at trial that he responded to the robbery report on February 3, 1991. He discussed the incident with several witnesses and obtained descriptions from them of the robbers. With the witnesses’ help, Escher prepared composite drawings.

The next night, Detective Escher received an anonymous tip concerning the identity of the armed robbers. The tipster identified the Baughers and identified the car they had used in the robbery as belonging to Paula Kellums. The tipster was later identified as Chad LeCroy. Subsequent to the relay of this information, on February 10, 1991, the Baughers and Sheila West were arrested at a hotel room the three were staying in.

Escher testified that following their arrest, several items of personal property were seized from their hotel room, which items were later identified by the victims. A Realistic brand police scanner, a green head cap, a green army jacket, and a brown and blue flannel jacket were seized. The clothes were identified as those which the men wore during the robbery.

Detective Escher testified that a photographic line-up was held on February 5, 1991, in which neither Baugher brother was identified. A second photo line-up was held on June 12, 1991, and Montgomery Baugher was identified by four of the witnesses. During the second line-up, no one was able to make a positive identification of Anthony Baugher, though one of the witnesses testified that she thought she recognized Anthony from the robbery.

Officer Richard Zimmerman of the Cherokee County Sheriff’s Department testified. He stated that he had participated in the arrest. He testified that among the items seized that day was a police call book of radio frequencies which had been sold to Paula Kellums in December 1990. Zimmerman also identified a handwritten list of radio frequencies.

Officer Lawrence West of the Bartow County Sheriff’s Department testified that the arrest took place after the vehicle matching the description of that used in the robbery, was reported to be in front of a hotel.

Several witnesses to the robbery testified regarding the events set forth above. Anthony Baugher was identified in court by three witnesses and Montgomery was identified in court by three witnesses.

William LeCroy testified that he knew Paula Kellums because she fenced items that he stole. He stated that it was Kellums’ car which had been involved in the robbery. He recalled that the Baughers had also gotten the police scanner from Kellums.

LeCroy stated that on February 3, 1991, he went to a hotel room where Kellums was staying and that Anthony and Montgomery Baugher were in the room. Both men talked about the robbery of the Battle Food Store which they had just executed. LeCroy stated that Montgomery dyed Anthony’s hair black and that Anthony wore Kellums’ eyeglasses as part of the disguise.

Chad LeCroy, Williams’ brother, also testified. He stated that he knew Kellums and that through her he met the Baughers. He stated that they told him about their robbery of Battle. The Baughers described the actions each man had taken in the robbery. LeCroy identified a hunting jacket which was found in the Baughers’ hotel room as one he saw in their hotel room the night of the robbery.

The defense did not call any witnesses.

Case No. A93A1927

1. In his first enumeration of error, Anthony Baugher contends that the trial court erred by not granting his motion to sever parties. In particular, he claims: a) that the severance should have been granted because the introduction of Montgomery’s statement violated the rule from Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968); b) that the severance should have been granted because the evidence admitted against Montgomery created a spillover effect as to Anthony; and c) that the court erred by failing to exercise its discretion in the consideration of the motion in accordance with Uniform Superior Court Rules 3.1, 3.2 and 3.3.

(a) Anthony Baugher filed a motion to sever prior to trial. He argues that the trial court should have granted the motion because although he had not made any statements to the police, Montgomery gave a statement which also incriminated him. Citing Hicks v. State, 262 Ga. 756 (1) (425 SE2d 877) (1993), Anthony claims that severance was mandated because of the prejudice which would arise from Montgomery’s statement.

Detective Escher testified regarding the statement. He stated that after Montgomery was arrested and read his rights, he talked to him about the armed robbery. Montgomery stated that he had never hurt anybody and that “[b]esides the guns weren’t loaded.” Detective Escher stated: “And I told him — I said, it was — what really surprised me overall, I said is the fact that people were still walking in on you while you were doing this armed robbery. And I looked at him and I laughed and I said, ‘What were you thinking about when people were walking in on you?’ And then he went ahead and made the statement that — I’ll read it from here. He advised me — he said, ‘You are good.’ And he said — that’s when I asked him again, ‘What were you thinking about when people were walking in on you?’ Monty then stated and he was laughing when he said it and he said, ‘Well, I’ll tell you. The damn door won’t lock. I tried to lock that thing three times and it won’t lock.’ ” After this statement, Montgomery invoked his rights and made no further statement.

Under these circumstances, the admission of Montgomery’s statement did not violate the Bruton rule. “For the admission of a co-defendant’s statements to constitute a Bruton violation . . . the statements standing alone must clearly inculpate the defendant.” (Citations and punctuation omitted.) Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989). Because the record shows that Montgomery’s statement was not inculpatory of Anthony, the trial court did not err in admitting the statement into evidence.

(b) Anthony Baugher’s second argument is that the severance should have been granted because of the “spillover” effect of a joint trial. He claims that the identification procedures and the testimony of the LeCroy brothers were confusing. He claims that the evidence against him was minimal and that he was convicted because of the evidence against his brother.

The trial court did not abuse its discretion in denying the motion for severance since “the appellants did not present antagonistic defenses, and virtually all of the evidence tended to show their joint guilt.” See generally Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975). “This court’s decision in Price v. State, 155 Ga. App. 844 (273 SE2d 225) (1980) is not authority for a contrary conclusion. There, the evidence against one co-defendant was deemed to be so overwhelming and the evidence against the other so slight that the ‘spillover’ effect of the evidence against the former was viewed as an important factor in the latter’s conviction.” Saleem v. State, 169 Ga. App. 952, 954 (2) (315 SE2d 487) (1984).

On the other hand, in this case, the evidence against Anthony Baugher was strong. In addition to other evidence, there were several in-court identifications of him; both sets of clothes that the robbers had worn and the police scanner radio were found with him and his brother; and both LeCroy brothers’ testimony implicated Anthony in the robbery.

(c) Finally, Anthony claims that the judge who originally heard the motion to sever should have decided it and that his failure to do so violated Uniform Superior Court Rules 3.1, 3.2 and 3.3. Pretermitting the issue of whether this argument was properly preserved, it is without merit. The judge who presided over the motions hearing inquired as to the evidence against Anthony and was told that certain testimony implicated him. Because the expected evidence was not “concrete” enough, the presiding judge reserved ruling until trial.

At the beginning of the trial, the trial court stated that it would deny the motion to sever to the extent that it was based on the Bruton rule, but that it would reserve a ruling regarding the spillover effect “until such time that it might appear that it would be impossible for this Defendant to get a fair trial as the evidence develops.” We find no error in the trial court’s handling of the matter.

2. In his second enumeration of error, Anthony Baugher claims that the court erred by not granting his motion for mistrial for commenting on his silence. The alleged error occurred during the direct examination of Detective Escher, as follows: “Q. All right. Now, at this point in time you’ve made the arrests of the two defendants, Tony and Montgomery Baugher, then what happened? A. Then we brought in Tony to interview. Q. All right. We won’t go into the content of that. Then after. . . .”

Anthony Baugher moved for a mistrial, the court found no impropriety in the statement and implicitly denied the motion for mistrial. There was no request for curative instructions.

Citing Mallory v. State, 261 Ga. 625 (4) (409 SE2d 839) (1991), Anthony argues that despite the fact that he made no statement, the clear implication was either that he did give a statement, the contents of which could not be divulged, or that there was no statement. We disagree and find no error.

3. Thirdly, appellant claims that the conviction should be reversed since the cumulative effect of the errors enumerated above deprived him of a fair trial. “This state does not follow a ‘cumulative error’ rule of prejudice. Any error of record . . . must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations omitted.) Thompson v. State, 201 Ga. App. 646, 649 (5) (411 SE2d 886) (1991).

Case No. A93A1928

1. In his first and fifth enumerations, Montgomery Baugher claims that the trial court erred in denying his motion for new trial since the verdict was contrary to the law and against the weight of the evidence, and that the court erred in denying his motion for directed verdict. In addition to the general arguments, he claims that there was insufficient evidence that one of the victims, who did not testify at trial, was the victim of an aggravated assault.

Appellant’s first and fifth enumerations are without merit. There was evidence that the specified victim was forced to lie down at gunpoint. The evidence with regard to that count, and generally, was sufficient to convict under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Montgomery Baugher next claims that the trial court erred in denying his motion to suppress his statement. He was interrogated the morning of his arrest having, he claims, slept only two or three hours the night before. He claims that he had consumed almost three six-packs of beer, but that he was not questioned about drugs or alcohol. He denied being read his rights and repudiated his statement.

At the hearing on the motion to suppress, Detective Escher testified that he informed Montgomery of his rights by reading a Miranda card. In Escher’s opinion, he did not appear to be under the influence of alcohol or drugs, nor did Escher detect an odor of alcohol. Escher concluded that Montgomery freely and voluntarily waived his rights and thereafter made certain incriminating statements. Montgomery ultimately did exercise his rights and terminate the interview.

Officer Zimmerman was also present when Montgomery made his statement. He corroborated that the Miranda rights were given. In Zimmerman’s opinion, Montgomery did not appear to be under the influence of alcohol, nor did Zimmerman detect an odor of alcohol. Both officers testified that no promises or threats were made to Montgomery.

Montgomery claimed that the officers did not advise him of his rights until after he had been questioned. He contended that he told them that he wanted to remain silent. Montgomery conceded that he had been arrested on several other occasions for unrelated crimes and had been Mirandized and questioned. He stated that he knew he did not have to answer in-custody questions when the officers talked to him.

The court found no evidence of involuntariness. Further, the court found that Montgomery was properly advised of his constitutional rights and voluntarily and knowingly made the statement.

A trial court’s finding as to the facts and the credibility of witnesses relating to the admissibility of a confession should be upheld unless clearly erroneous. Price v. State, 201 Ga. App. 435, 436 (1) (411 SE2d 343) (1991). Since the evidence in this case supports the finding of the trial judge, the statement was properly admitted. See generally Peebles v. State, 260 Ga. 165, 166 (4) (391 SE2d 639) (1990); Bonilla v. State, 204 Ga. App. 424 (3) (419 SE2d 495) (1992).

3. Thirdly, Montgomery claims that the trial court erred in denying his motion to suppress the identification testimony. As set forth above (Division 1 (b)), during the first photographic line-up neither man was identified. In the second line-up Montgomery was identified by four witnesses and at trial he was identified by two witnesses. At the pretrial hearing the court found that there was nothing impermissibly suggestive about the second line-up.

Here, Montgomery argues that the pretrial identification procedure was impermissibly suggestive and that it and the subsequent in-court identification violated his due process rights. Specifically, he claims that the witnesses who identified Montgomery in the second line-up admitted seeing a newspaper article containing his picture. He argues that two of the witnesses who identified him at the photographic line-up later identified his brother, not him, at trial. He claims that Escher complimented three of the witnesses on their selections during the photographic line-up. He argues that his picture in the line-ups was distinct and that both times was in the same position. He argues that two names appeared on the back of photographs and that this was improper. Moreover, he claims that most witnesses saw the robbers for only a few seconds.

We have reviewed the photographic line-up and find that it was not impermissibly suggestive. See generally Truelove v. State, 198 Ga. App. 14 (1) (400 SE2d 396) (1990); Graham v. State, 171 Ga. App. 242, 253 (11) (319 SE2d 484) (1984); Simpson v. State, 193 Ga. App. 439, 440 (388 SE2d 39) (1989); Jones v. State, 251 Ga. 361, 362 (1) (306 SE2d 265) (1983). Detective Escher’s vague comments to the witnesses regarding their selections after they made their choices did not impermissibly taint the subsequent in-court identifications. See generally Dodd v. State, 236 Ga. 572 (224 SE2d 408) (1976). Further, the fact that the witnesses observed a picture of him in the newspaper did not impermissibly taint the procedure. See McClesky v. State, 245 Ga. 108 (2) (263 SE2d 146) (1980). The four witnesses testified that despite seeing the suspects’ pictures in the newspaper, they identified Montgomery Baugher completely from memory. One of the witnesses stated that the newspaper photograph did not resemble Montgomery.

With regard to the in-court identification, “[w]hether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See Daniels v. State, 207 Ga. App. 689, 691 (4) (428 SE2d 820) (1993). The pretrial identification procedure here was not impermissibly suggestive and we reject Montgomery’s argument that the subsequent in-court identification was tainted. See generally Shadrick v. State, 156 Ga. App. 182 (274 SE2d 156) (1980).

Even assuming arguendo that the photographic identification procedure was impermissibly suggestive, there was not a substantial likelihood of irreparable misidentification. The second prong of this test considers: “(1) the opportunity of the victims to view the perpetrator at the time of the crime; (2) the victims’ degree of attention; (3) the accuracy of their prior descriptions of the perpetrator; (4) the level of certainty of their identifications; and (5) the length of time between the crime and the confrontation.” Banks v. State, 203 Ga. App. 355, 356 (416 SE2d 866) (1992).

Here, the witnesses who identified Montgomery at trial testified that they were able to observe him at the time of the crime and based their trial testimony on that recollection. All three testified that they got a good look at him. There was testimony that the store was well-lit and two of the witnesses looked at Montgomery for a while. The witnesses remembered details of his appearance and described him immediately after the crime. They helped Detective Escher create composite drawings of him. We do not find a substantial likelihood of irreparable misidentification and the trial court did not err in allowing these identifications. See also Jacobs v. State, 207 Ga. App. 714 (1) (429 SE2d 256) (1993).

4. Montgomery Baugher next contends that the court erred in admitting the hearsay testimony of William LeCroy regarding statements made to him by Paula Kellums. The court allowed her statements under a conspiracy theory pursuant to OCGA § 24-3-5. Here, Montgomery argues that no conspiracy with Kellums was proved and that therefore the statements were inadmissible hearsay.

The fact that Kellums was not indicted is not dispositive of this issue. See Porterfield v. State, 137 Ga. App. 449 (1) (224 SE2d 94) (1976). During the hearing outside of the presence of the jury, the State proved that Kellums was with the brothers before and after the robbery, that they drove her car in the robbery, that Kellums was to receive $500 for her help, and that Kellums provided eyeglasses as a part of the robbers’ disguise. There was sufficient evidence of Paula Kellums’ role as a conspirator to allow the statements under this provision. See Boswell v. State, 158 Ga. App. 727 (282 SE2d 196) (1981).

Moreover, assuming arguendo that the introduction of this testimony was error, it was harmless since it was repeated in Chad LeCroy’s testimony.

Judgments affirmed.

Pope, C. J., and Birdsong, P. J., concur.

Decided February 10, 1994.

David L. Cannon, for Anthony Baugher.

William A. Jordan, for Montgomery Baugher.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.

       The contents of that statement are set forth above in Division 1 of Case No. A93A1927.


author: Smith, Judge.

text:
    A93A1852.
    WELLS v. THE STATE.
    (440 SE2d 692)
   Smith, Judge.

Henry Lee Wells was convicted of DUI by a jury and his motion for new trial was denied.

The evidence presented at trial showed that while on duty on the evening of September 22, 1992, Officer Merrill Lee of the Americus Police Department observed a pickup truck being driven in an erratic manner. Lee stopped the truck, and after an alco-sensor test on the driver, Wells, proved positive, he placed Wells under arrest and advised him of his implied consent rights. Wells was then transported to the Americus Police Department, where Officer Eddie Davis tested him on an Intoximeter 3000. Tested approximately 30 minutes after having been stopped, the Intoximeter 3000 result was .17.

1. Wells contends the trial court erred in denying his motion to suppress the Intoximeter 3000 test results on the ground that the officers had ignored his requests for an additional test from an independent source.

At the hearing on the motion to suppress, Wells testified that he twice asked explicitly that he be allowed to obtain an additional test, and the officers ignored the requests. However, both officers testified he never requested an additional test. At a hearing on a motion to suppress evidence, the trial court is the trier of fact. Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992). The trial court resolved the conflict in the evidence on this issue in favor of the police officers. The trial court’s findings based on conflicting evidence “ ‘are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. (Cit.)’ [Cit.]” Id. Clearly, there is evidence to support the trial court’s finding that Wells did not request an additional test, and consequently the trial court’s denial of Wells’ motion to suppress was proper.

2. Wells also asserts error in the trial court’s admission into evidence of the Intoximeter 3000 test results because the State failed to lay a proper foundation for their admission. We do not agree.

Wells’ contention as to what constitutes a proper foundation is controlled adversely to him by this court’s holding in Harris v. State, 199 Ga. App. 457, 458-459 (4) (405 SE2d 501) (1991). The State laid a proper foundation through the testimony of the officers. Officer Lee testified that both he and Davis were certified to operate the machine, that the customary pretest procedures were performed to determine that the machine was operating properly, that his permit and that of Davis to operate the machine were prominently displayed in the room where the machine was kept, and that Davis performed the test in accordance with the methods approved by the Division of Forensic Sciences of the GBI.

3. At the sentencing hearing, the trial court granted Wells’ request for bond pending appeal, but required him to surrender his driver’s license. Wells maintains that this was impermissible because OCGA § 5-6-45 (a) provides that if the sentence is bailable, bond may be conditioned only “upon the defendant’s personal appearance to abide the final judgment or sentence of the court.”

It is true that a trial court may not execute a sentence under supersedeas. Riggins v. State, 134 Ga. App. 941, 944 (216 SE2d 723) (1975). However, in this case surrender of the driver’s license was not a part of his sentence. Although the trial court eventually made the surrender a condition of bond, even had the trial court not done so, the surrender of Wells’ driver’s license would have been required. OCGA § 40-5-67 (c) (1) provides that if a “person is convicted of violating [OCGA] § 40-6-391, the court shall, within ten days, forward the person’s driver’s license and the record of the disposition of the case to the Department of Public Safety. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.” (Emphasis supplied.)

Wells argues that the term “convicted” in OCGA § 40-5-67 (c) (1) must be construed to mean when the conviction is final, i.e., after all appeals are concluded. We find no merit in this argument.

OCGA § 40-5-67 (c) (1) does not require surrender of the driver’s license to the court as part of the offender’s sentence. Rather, it simply instructs the court to forward the offender’s license to the Department of Public Safety, presumably for disposition in accordance with the procedures of that Department. The statute therefore must be construed with other statutes addressing license suspensions and revocations and appeals therefrom. OCGA § 40-5-66 provides for appeals in cases where the Department of Public Safety suspends or revokes a person’s driver’s license. It provides that “[n]o person shall be allowed to operate any vehicle in violation of any suspension or revocation by the department while any such appeal is pending.” OCGA § 4-5-66 (b). In addition, OCGA § 40-5-67.1, although inapplicable to this case because it did not become effective until January 1, 1993, provides guidance as to this issue. It provides for suspension of an offender’s driver’s license for a minimum period of one year when a law enforcement officer has reasonable grounds to believe that OCGA § 40-6-391 has been violated and test results indicate a blood alcohol concentration of 0.10 grams or more. OCGA § 40-5-67.1 (a), (b) (3). It authorizes the law enforcement officer to notify the person of the intention to suspend the license at the time the test results are obtained, to take possession of the license, and to forward it to the Department of Public Safety within ten days after arrest. OCGA § 40-5-67.1 (f) (1). Other subsections provide for the right to an administrative hearing regarding the suspension, see subsection (g), and for judicial review if the suspension is sustained. See subsection (h). Subsection (h) also provides that “while such appeal is pending, the order of the department shall not be stayed.”

Decided January 26, 1994

Reconsideration denied February 11, 1994

Fuller & McFarland, Thomas R. McFarland, for appellant.

Henry L. Wells, pro se.

Howard S. McKelvey, Jr., Solicitor, for appellee.

The seizure and forwarding of Wells’ driver’s license was not part of his sentence or a condition of his bond, but a requirement imposed by statute on the court. In accordance with public policy, and given the clear intention evinced in statutes in pari materia that this requirement not be stayed during appeal, we hold that Wells was required to surrender his driver’s license and temporary permit to the trial court. “When a ruling of the trial court is legally correct, it will be upheld regardless of the reason assigned. [Cits.]” Phillips v. State, 185 Ga. App. 54, 56 (4) (363 SE2d 283) (1987). The trial court did not err in requiring Wells to turn over his driver’s license and .temporary permit pending appeal.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Blackburn, Judge.

text:
    A93A1882.
    McGARITY v. THE STATE.
    (440 SE2d 695)
   Blackburn, Judge.

In a four-count indictment, the appellant, Jack Thomas Mc-Garity, was charged with one count of child molestation, two counts of aggravated child molestation, and one count of cruelty to children, all involving his natural daughter who was four years old at the time of trial. The indictment specified that all of the offenses occurred between November 1, 1986, and January 30, 1990. Following a trial by jury, McGarity was convicted of child molestation and cruelty to children, and acquitted on both counts of aggravated child molestation. His motion for new trial was subsequently denied by the trial court, and this appeal followed.

The evidence viewed in the light most favorable to the jury’s verdict shows that McGarity’s convictions were based in part on the testimony of the victim’s mother, the victim’s preschool teacher, a certified school psychologist, and a licensed social worker, all of whom repeated out-of-court statements made to them by the victim describing several acts of molestation. In the out-of-court statements, the victim indicated that McGarity touched her vagina with his fingers and his penis and that he “pee pees on my tu tu [and] [i]t feels yucky.” The mother also testified that she overheard McGarity threaten to beat the child to death if she ever told on him to her mother about anything.

In addition, the state produced the testimony of a detective who investigated the complaints of child abuse made by the mother, a child protective services’ investigator, a clinical social worker, and a pediatrician who examined the child on February 2, 1990. During his examination of the victim, the pediatrician found two rectal tears and opined that one of the tears was as recent as two weeks old, while the other tear was six to eight months old. Based upon his physical findings, he concluded that the child had been sexually abused. Although there were no external signs of genital trauma in the victim’s vaginal area, the victim’s vulva was red and slightly irritated. The physician further noted that the child’s vaginal area could have been fondled without any signs of an injury.

The state was also allowed to present evidence of a similar occurrence committed by McGarity on or about November 19 or 20, 1986, during which time period McGarity had been alone with the then two-month-old victim on three separate occasions. An emergency room physician examined the child on November 20, 1986, after the child’s grandmother discovered blood and a small tear in her rectal area, opined that this tear was consistent with sexual abuse and was caused by someone forcibly placing a hard object in the child’s rectum. Although McGarity had been arrested for the offense, he was never indicted, and the charges against him were ultimately dismissed because law enforcement officials were unable to distinguish him from two other suspects as the perpetrator.

A police officer who investigated the 1986 incident testified that on November 24, 1986, McGarity voluntarily made a statement to him concerning the incident. In the statement, McGarity asked the deputy if he believed that a person could have a split personality and not know what the other personality could have done. When asked if that is what happened, McGarity, after pondering the question, answered no. When asked again if this could have happened to him, he replied that he did not know whether he could have a split personality and not know that his other personality had abused the child. He later stated that, although it was possible, he did not abuse his infant daughter.

The state also presented evidence of another similar occurrence involving McGarity’s older daughter, in order to show McGarity’s lustful disposition. During this incident, McGarity told his older daughter, who was 11 or 12 at the time of the incident, that he would “suck” her tongue if she stuck it out again at her brother.

Several attempts were made by the prosecutor to have the victim testify. Although the victim took the stand on two occasions, she was unresponsive to the questions posed by the court and the prosecutor. McGarity did not testify at trial but presented several witnesses in support of his defense.

1. Initially, McGarity maintains that the trial court erred in admitting the evidence of a similar transaction which occurred in 1986 and involved the victim herein. Specifically, McGarity asserts that the admission of this evidence was erroneous because the State failed to make a sufficient showing that he was the person that injured the victim in 1986, a necessary requirement under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). However, this evidence concerned an act of aggravated child molestation against the victim as specified in the indictment which occurred within the time period alleged in the indictment and within the applicable four-year statute of limitation. See OCGA § 17-3-1 (c). “Accordingly, this evidence was evidence of the offense charged, rather than evidence of a similar transaction. . . .” Robinson v. State, 202 Ga. App. 576, 577 (1) (415 SE2d 21) (1992). See also Stell v. State, 210 Ga. App. 662 (436 SE2d 806) (1993). Consequently, the trial court did not err in admitting this evidence.

2. Next, McGarity contends that the trial court erred in admitting the similar transaction evidence concerning his older daughter, asserting that the incident was not sufficiently similar to warrant admission. However, this court has repeatedly held that “ ‘[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible’ (emphasis supplied) when the accused is being tried for one or more crimes involving some form of sexual abuse of a child.” Adams v. State, 208 Ga. App. 29, 32 (430 SE2d 35) (1993). “ ‘[T]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cits.]” Id.; see also Bookout v. State, 205 Ga. App. 530 (2) (423 SE2d 7) (1992). Accordingly, this enumeration is without merit.

3. We reject McGarity’s argument that the trial court failed to properly instruct the jury on the law of circumstantial evidence, as the trial court, without a request, charged the jury as follows: “Evidence may also be used to prove a fact by inference; this is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.” While McGarity asserts that the trial court erred in failing to charge the jury on the law of circumstantial evidence contained in OCGA § 24-4-6, even absent a request, the case sub judice was not based solely on circumstantial evidence. On the contrary, the medical testimony presented by the State was direct evidence of the sexual abuse of the minor. Jones v. State, 243 Ga. 584 (1) (255 SE2d 702) (1979). “[W]here there is some direct evidence, it is not error to fail to charge on circumstantial evidence [as contained in OCGA § 24-4-6] absent a written request to charge.” (Citations and punctuation omitted.) Jenkins v. State, 209 Ga. App. 19, 20 (432 SE2d 270) (1993); Jones, supra at 585. See also Jenkins, supra. See generally Mims v. State, 209 Ga. App. 901 (2) (434 SE2d 832) (1993). Cf. Henderson v. State, 200 Ga. App. 200, 201 (2) (407 SE2d 448) (1991).

4. In his fifth enumeration, McGarity maintains that the trial court erred in admitting the hearsay statements of the victim made by several witnesses at trial and erred in failing to strike the testimony of these witnesses because his daughter was not “available to testify” as contemplated in OCGA § 24-3-16. He contends that this error warranted a directed verdict of acquittal in his favor on the child molestation and cruelty to children charges. We disagree.

Under OCGA § 24-3-16, “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.) “Of course, a child ‘available to testify’ in OCGA § 24-3-16 also means one competent to testify under OCGA § 24-9-5. [Cits.]” Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790) (1990). Accordingly, “OCGA §§ 24-3-16 and 24-9-5 must be construed together.” Bright v. State, 197 Ga. App. 784, 785 (4) (400 SE2d 18) (1990).

OCGA § 24-9-5 (b), as amended effective April 19, 1989, provides “in [all] cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify. . . .” See Ga. L. 1989, p. 1639, § 1. “Since the effective date of OCGA § 24-9-5 (b), out-of-court statements of a victim of child molestation are admissible whenever the victim is available to appear at trial, whether or not the child is capable of understanding the nature of an oath and thus regardless of age or degree of comprehension. [Cit.]” Bright, supra at 785.

It is undisputed that the victim was available to appear at trial, and in fact, took the witness stand. Although the indictment in the case sub judice alleged that the offenses occurred between November 1, 1986, and January 30, 1990, the jury could infer from the testimony of the witnesses and the medical evidence that the offenses occurred after April 19, 1989. Consequently, the out-of-court statements were admissible. “ ‘[S]o long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness if uncommunicative or unresponsive.’ ” Id. See also Blandburg v. State, 209 Ga. App. 752 (1) (434 SE2d 510) (1993); Byrd v. State, 204 Ga. App. 252 (1) (419 SE2d 111) (1992).

5. We further reject McGarity’s argument that the trial court erred in failing to specifically instruct the jury on the credibility of the victim as enunciated by this court in Bright, supra, as McGarity failed to request such a charge. “Where there has been no written request to charge, failure to give the charge is not error.” (Citations and punctuation omitted.) Guyton v. State, 206 Ga. App. 145, 147 (6) (424 SE2d 87) (1992). Moreover, the trial court did charge the jury on the credibility of witnesses and “the charge given covered substantially the same principles.” (Citations and punctuation omitted.) Kennedy v. State, 205 Ga. App. 152, 156 (5) (421 SE2d 560) (1992).

6. In his seventh enumeration, McGarity asserts the general grounds. Viewing the evidence in the light most favorable to the jury’s verdict, including the out-of-court statements of the child describing the acts of molestation, and the medical evidence of sexual abuse, we must conclude that a rational trier of fact could find McGarity guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williamson v. State, 207 Ga. App. 565 (3) (428 SE2d 628) (1993); Stokes v. State, 204 Ga. App. 586 (2) (420 SE2d 84) (1992).

McGarity further argues that there was no evidence to place venue in Cobb County. Under OCGA § 17-2-2 (h), a crime for purposes of venue, “shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” Venue can be proven by direct or circumstantial evidence. Withman v. State, 210 Ga. App. 159 (435 SE2d 519) (1993). The circumstantial evidence in the case sub judice was sufficient to permit the jury to find beyond a reasonable doubt that venue of the crimes charged was in Cobb County while the McGaritys were residents of that county. Loyd v. State, 202 Ga. App. 1 (2) (413 SE2d 222) (1991).

7. Lastly, McGarity maintains that he was denied effective assistance at trial and a new trial is warranted. Specifically, McGarity maintains that his trial counsel was deficient based upon the following: failure to prevent the introduction of similar transaction evidence; failure to move for a mistrial and strike the similar transaction evidence after receipt of evidence on the dismissal of the charges; and failure to request charges on circumstantial evidence as contained in OCGA § 24-4-6, the credibility of the victim under Bright, and venue. Moreover, McGarity challenges trial counsel’s failure to review videotapes of the victim and her therapist which were not introduced at trial and did not reveal any incriminating or exculpatory evidence. He further questions trial counsel’s closing argument to the jury, maintaining that the argument was incoherent, and thus, ineffective.

“To secure a reversal of conviction for ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).” Stewart v. State, 262 Ga. 894, 895 (2) (426 SE2d 367) (1993). See also Jowers v. State, 260 Ga. 459 (2) (396 SE2d 891) (1990). “The complaining defendant must make both showings.” (Citation and punctuation omitted.) Moody v. State, 206 Ga. App. 387, 388 (425 SE2d 397) (1992). Moreover, “[t]he defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Taylor v. State, 203 Ga. App. 210, 211 (3) (416 SE2d 554) (1992). See also Davis v. State, 209 Ga. App. 755 (1) (434 SE2d 752) (1993).

After a thorough examination of the record and transcript in their totality, especially in light of our discussion above, “we find there exists no reasonable probability that the outcome would have been different within the meaning of Strickland v. Washington, supra. In particular, we note that the trial defense counsel pursued an aggressive defense which resulted in an acquittal of [two] of the [four] charges against [McGarity].” Bonds v. State, 203 Ga. App. 51, 54 (416 SE2d 329) (1992). See also Crumbley v. State, 262 Ga. 189 (2) (417 SE2d 151) (1992); Smith v. State, 209 Ga. App. 540 (3) (433 SE2d 694) (1993); Taylor, supra. While McGarity maintains that the closing argument of counsel was incoherent, counsel’s argument was not evidence. Moody, supra. Moreover, defense “counsel [are] given wide latitude in closing arguments. . . . This Court will not, with benefit of hindsight, second-guess defense trial strategies in closing arguments.” (Citation omitted.) Allen v. State, 263 Ga. 60, 62 (428 SE2d 73) (1993). Accordingly, we find no error warranting reversal.

Reconsideration denied February 11, 1994

Wallace C. Clayton, for appellant.

Thomas J. Charron, District Attorney, Rose Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       McGarity does not challenge the reliability of the out-of-court statements.


text:
    A94A0075.
    SOUTHEAST TOYOTA DISTRIBUTORS, INC. v. FELLTON et al.
    (440 SE2d 708)
   Birdsong, Presiding Judge.

Appellant/plaintiff Southeast Toyota Distributors, Inc. (Toyota) initiated an action for declaratory judgment concerning the validity and enforceability of certain covenants purporting to run with and to restrict the use and development of certain land (the property). All previous landowners in the chain of title and the persons who executed the covenant agreements were named as defendants.

After Toyota purchased the property, it acquired actual knowledge of the existence of Agreement I and Agreement II, dated September 28, 1983 and January 10, 1984, respectively, which contained the covenants at issue. Agreement I was executed by appellant’s predecessor in title, Richard Tuley Homes, Inc. (Tuley Homes) and four married couples (the neighbors); Agreement II was signed by Tuley Homes and appellees Snarr and Smitherman. Toyota filed a complaint for equitable relief affecting title to land, or for damages, seeking therein a declaration that the agreements were void and unenforceable either against Toyota or any successor-in-title. Toyota thereafter dismissed, without prejudice, the second count of its complaint for damages for breach of warranty of title against defendant Billy L. Watson. Subsequently, Toyota filed a motion for summary judgment but, during the hearing, appellees orally requested the trial court to consider the matter as though a cross-motion for summary judgment had been filed. Toyota agreed to this procedure. The trial court denied Toyota’s motion for summary judgment and granted summary judgment in favor of appellees. Final judgment was entered as to certain defendants, concluding that the restrictive covenants contained in Agreement I and Agreement II are valid and binding on the property, run with the land, and are enforceable by appellees, their successors and assigns. Toyota appealed the respective grant and denial of summary judgment to the Georgia Supreme Court which transferred the appeal to this court.

On July 11, 1983, Tuley Homes became owners of record of the property. On September 28, 1983, Tuley Homes entered Agreement I, containing certain restrictive covenants, with eight of the appellees; this document was not independently recorded. By undated warranty deed duly recorded on October 19, 1983, Tuley Homes conveyed the property to Richard Tuley in his individual capacity; this deed does not mention Agreement I. By undated warranty deed duly recorded on October 19, 1983, Richard Tuley reconveyed the property to Tuley Homes. This deed expressly provides: “This conveyance is subject to the terms and conditions of that certain Agreement dated September 28, 1983, among parties of the second part, Richard Tuley Homes, Inc., and certain individuals therein defined as ‘neighbors,’ a copy of which is attached hereto as Exhibit A and made a part hereof, and explicitly to the covenants set forth therein.” Agreement I was attached to and duly recorded with this deed. (The parties are not in agreement as to the dates and sequence in which these documents were executed; appellees maintain that the three documents were all executed at the same time and place.) In January 1984, Tuley Homes entered Agreement II, containing certain covenants, with two appellees who were not original parties to Agreement I. Agreement II was not executed as a part of any conveyance of real property or interest therein, but was duly recorded in the deed book on January 16, 1984. Agreement II contains a legal description of the property at “Exhibit A,” attached thereto and recorded therewith. On April 13, 1984, Tuley Homes conveyed the property to J. O. Womack and Richard L. Tuley by warranty deed recorded on May 10, 1984. This deed, although not expressly referring to Agreements I and II, provides: “This conveyance is made subject to all . . . restrictions of record affecting said described property.” By warranty deed, duly recorded on December 30, 1988, Richard Tuley conveyed to Billy L. Watson “a one-half undivided interest” in the property. This deed also contains only a general provision subjecting the conveyance to all restrictions of record affecting the property. By warranty deed, duly executed on December 14, 1988 and recorded on December 30, 1988, J. O. Womack conveyed to Womack & Womack Associates, Inc. a one-half undivided interest in the property. This warranty deed also does not expressly refer to Agreements I and II but likewise contains a provision subjecting the conveyance to all restrictions of record affecting the property. By warranty deed executed on December 14, 1988 and duly recorded on December 30, 1988, Womack & Womack Associates conveyed its one-half undivided interest in the property to Billy L. Watson. This document contains a typed provision subjecting the conveyance to all restrictions and easements of record. By warranty deed executed on November 28, 1989 and recorded on January 10, 1990, Billy L. Watson conveyed the property to appellant Toyota; this deed contains no provisions subjecting the conveyance to restrictions of record. Held:

1. Agreement I was duly recorded by its attachment to the warranty deed by grantor Richard Tuley to grantee Tuley Homes. “Accompanying instruments which are virtually a part of the deed itself, such as [a restrictive covenant agreement to which the conveyance is, as here, expressly made subject], are, if properly attested, recordable along with or in connection with the deed, although there may be no statute specifically authorizing the record of such instruments.” Ga. Real Estate Law, § 19-120 (3rd ed.); compare OCGA § 44-2-126. Moreover, extrinsic material, including contracts and documents, may be made a part of a deed by reference, and persons dealing with the land thereafter become chargeable with notice of writings so referred to even though they may not be found on the public records. Ga. Real Estate Law, supra at § 19-135.

If a grantor sells his property with restrictions which he intends are for the benefit of his neighbors, the neighbors, as beneficiaries, may enforce the benefiting restrictions. Jones v. Gaddy, 259 Ga. 356, 357 (2) (380 SE2d 706). The deed of conveyance from Richard Tuley to Tuley Homes, together with Agreement I explicitly attached thereto and to which the conveyance was made subject, establishes clearly and unequivocally on the face of the documents the intent of the grantor that a covenant running with the land was created for the benefit of the eight appellees who were parties to Agreement I. When, as in this case, a grantee (Tuley Homes) accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him. OCGA § 44-5-39. Appellant Toyota is a successor in title to the property claiming its title through the grantee Tuley Homes; as such appellant also is bound by the terms of the covenant running with the land “and this is true although the deed under which [successor Toyota holds] immediate title may make no reference to restrictions.” Ga. Real Estate Law, supra at § 19-195.

The various cases cited by appellant Toyota and appellees are factually distinguishable. However, we find the rationale expressed in Muldawer v. Stribling, 243 Ga. 673 (256 SE2d 357) to be controlling. Accordingly, we conclude that a covenant running with the land was created to the benefit of the eight appellees who were parties to Agreement I. Toyota, as a successor in title is bound by these restrictive covenants; and, “[w]here[, as in this case,] a grantor sells his property with a restriction benefiting his neighbors, the neighbor[s], as the beneficiary, may enforce it.” Muldawer, supra at 676.

2. However, the exception created in Muldawer, supra, is not controlling as to whether a covenant running with the land was created by the recording of independent Agreement II and the subsequent conveyance of the property without any explicit reference to said agreement. Muldawer cannot legitimately be extended to encompass transactions such as occurred in regard to Agreement II and the subsequent conveyance of property without explicit reference thereto. Compare Johnson v. Myers, 226 Ga. 23 (172 SE2d 421). As to Agreement II there exists no covenant running with the land.

Nevertheless, the covenant in Agreement II is enforceable, declarations or agreements of restrictive covenants can be independently recorded, and when duly recorded provide constructive notice thereof. See Hendley v. Overstreet, 253 Ga. 136 (318 SE2d 54); cf. Kole v. Linkenhoker, 259 Ga. 82, 84 (377 SE2d 671). “It is presumed that a purchaser has examined every deed and instrument affecting the title. He is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.” (Punctuation omitted.) Hardage v. Lewis, 199 Ga. App. 632, 633 (405 SE2d 732). “He who takes with notice of an equity takes subject to that equity.” OCGA § 23-1-16. “Equity will enforce a lawful restrictive agreement concerning land against a person who takes with notice of the contract. In such a case, the person violating the agreement, though not a party to it, is a privy in conscience with the maker.” Langenback v. Mays, 207 Ga. 156, 158 (2) (60 SE2d 240); Ga. Real Estate Law, supra, § 22-8, n. 2. After referencing the rule of law pertaining to covenants running with the land expressed in Johnson, supra, this court observed in Sewell v. OK Oil, 203 Ga. App. 701, 703 (417 SE2d 408) that “in Rosen v. Wolff, 152 Ga. 578, 585-586 (110 SE 877) ... the Supreme Court stated: ‘There is a growing tendency to incorporate equitable doctrines with common-law rules, and, in equity, covenants relating to land, or its mode of use or enjoyment, are frequently enforced against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice [actual or constructive] of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.’ ” (Emphasis supplied.) “[I]n an appropriate circumstance, an equitable servitude can be created, based upon a person taking land with notice of a covenant and thus giving rise to a ‘privity of conscience.’ ” Murawski v. Roland Well Drilling, 188 Ga. App. 760, 765 (374 SE2d 207). Appellant Toyota had constructive knowledge of Agreement II and took the property subject to the equitable servitude thereby created. OCGA § 23-1-16; see Rosen, supra; Sewell, supra at 704.

3. Appellees claim there exists no actual controversy involving palpable insecurity in this case, and that accordingly the trial court was without power to act by way of declaratory judgment. Appellant consistently has maintained it was not bound by the restrictive covenants arising from Agreements I and II and, after voluntarily dismissing the second count of its complaint, sought only declaratory judgment. We agree that under the attendant circumstances this case is not ripe for declaratory judgment resolution. Compare Bus. Software v. Information Assoc., 201 Ga. App. 565 (411 SE2d 565); see Sentry Ins. v. Majeed, 194 Ga. App. 276 (390 SE2d 269), aff'd 260 Ga. 203 (391 SE2d 649); cf. Atlanta Cas. Co. v. Fountain, 262 Ga. 16 (413 SE2d 450).

Decided January 28, 1994

Reconsideration denied February 11, 1994

Morris, Manning & Martin, Joseph R. Manning, Ann R. Schildhammer, for appellant.

King, Taylor & Stovall, James F. Stovall III, for appellees.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.