text:
    A91A1651.
    KARLAN, INC. v. KING et al.
    (415 SE2d 319)
   Cooper, Judge.

Appellant, a corporation operated by Mr. and Mrs. Karlan, rented office space in a building located in the Buckhead area of Atlanta. The 1982 lease executed by appellant provided that the rental would be adjusted each year based upon the increase of the Consumer Price Index (“CPI”). The 1982 lease, which was for an initial term of five years, contained an option to renew the lease term for an additional five years, stating: “Lessee shall have the option to renew this lease under the same terms and conditions for an additional 5 years, beginning June 1, 1987 and ending May 31, 1992. The base rental shall be negotiated at that time. . . .” In 1984, a partnership of which appellees are partners, purchased the building that was the subject of appellant’s lease and desired to convert the property to another use. Although appellant did not initially want to relocate, appellant and appellee Kim King (“King”) ultimately concluded negotiations on a Lease Termination Agreement (“Termination Agreement”) in February 1985. Steven Morgan (“Morgan”), a real estate broker, who received a commission from appellees, as well as attorneys for both parties were involved in the negotiations. As a result of the Termination Agreement, appellant moved to other office space which rented for a higher base rental than appellant’s former space and provided for a higher CPI adjustment. The Termination Agreement provided that the old lease would be terminated as of April 1, 1985 and that appellees’ partnership would pay all of appellant’s relocation costs as well as the rent differential between the old lease and the new lease for the remainder of the initial term and the renewal term under the old lease, i.e., through 1992. A letter of credit was obtained by appellant to secure appellees’ obligations, and the amount of the letter of credit was based upon a schedule of total rent differentials prepared by Mrs. Karlan. The schedule based the old lease payments on the base rental in effect during the initial term of the old lease plus the anticipated CPI adjustments through the end of the renewal term of the old lease in 1992. The paragraph in the Termination Agreement that provides for the rent differential payment states: “Lessor agrees to pay to Lessee the difference between (i) the rental payments under [the new lease] and (ii) the lease payments, including scheduled escalations, under the [old lease] for the period beginning March 1, 1985 (or the commencement date of the New Lease) and ending May 31, 1992.” Appellant moved to its new space in March 1985, and the partnership paid the relocation costs. The rent differential was paid by the partnership over the next two years in accordance with the computations prepared by Mrs. Karlan. The Buckhead property that was the subject of the old lease was sold by appellees in June 1985. In 1987, appellant received a letter from appellees’ agent which conveyed the information that the old 1982 lease would have expired in 1987; that the old 1982 lease had an option to renew at a negotiated rental; that they determined the market rental rates for the space rented under the old lease had more than doubled; that this rent increase was a scheduled increase under the old lease; that, for the purposes of computing the rent differential payments, they were increasing the rental under the old lease to the current market rates per their determination; that the rent differential payments would decrease; and that due to such decrease, an overpayment had been made and appellant owed appellees over $1,000 in overpayment. Appellant then sought to declare a default under the letter of credit; however, the real estate broker who was involved in the deal and who was charged with declaring a default under the letter of credit, refused to declare a default. Appellant then filed this suit for breach of contract, asserting that the Termination Agreement did not provide that the base rental under the old lease would be increased and the “scheduled escalations” covered only the CPI adjustments included in Mrs. Karlan’s calculations. The case was tried before a jury, and after the presentation of appellant’s case, the trial judge granted appellees’ motion for directed verdict. Appellant appeals from that order of the court and the judgment entered pursuant thereto.

1. Appellant first contends that the trial court erred in directing a verdict for appellees. Mrs. Karlan testified at trial that the only “scheduled escalations” in the old lease were the CPI adjustments as reflected in her calculations which served as the basis for the amount of the letter of credit given by appellees. She also stated that she had discussed these figures with Morgan; that she had given Morgan copies of the calculations; that she never met with King, but all negotiations were conducted through Morgan; that Morgan never discussed with her or mentioned to her the concept of increasing the base rent under the old lease during the renewal term; that appellant would not have moved if the rent was going to be raised. Morgan testified that he did not recall himself or anyone else mentioning to anyone associated with or representing appellant the possibility of raising the base rent under the old lease; that he had discussed the issue with King who indicated that increasing the rental under the old lease would be a good way to decrease the rent differential payments; that he did not certify a default under the letter of credit because he did not believe a default had occurred due to the provision allowing the rent under the old lease to be negotiated at the time of renewal. Statements from the attorneys involved in the negotiations over the Termination Agreement were read at trial. Appellant’s attorney stated that no discussions regarding increasing the base rental occurred and that he did not consider this to be part of the agreement between the parties. Appellees’ attorney stated that she could not recall if there was any discussion about a rent increase although she did not recall appellant or its attorney insisting that no increase was contemplated. King was called for cross-examination in which he testified that he took the risk of the rent in the Buckhead market increasing or decreasing; that the rent could have been adjusted up or down in 1987; that, in his opinion, the possible escalation in rent was included in the language of the Termination Agreement; that he never discussed anything with appellant’s representatives; and that he did not know if his representatives had discussed this issue with appellant’s representatives. It was further adduced at trial that the Buckhead building was sold by appellees in June of 1985, prior to the 1987 renewal term; that the increased rental in the Buckhead building set forth in appellees’ 1987 letter to appellant was based upon a survey of buildings in the vicinity, not on an examination of the Buckhead building itself, because at the time of the survey and at the time of the rental increase the Buckhead building no longer existed. In support of their motion for directed verdict, appellees argued that appellant was represented by a lawyer during the negotiations; that appellant’s representatives never inquired about or raised the issue of a rent increase; that the wording of the Termination Agreement, “the lease payments, including scheduled escalations, under the [old lease],” contemplates a negotiated rental based on current market rates at the time the old lease would have been renewed.

“There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). We presume that the trial court proceeded properly even though our record does not clearly reveal the process employed. “Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression. [Cit.]” Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (6) (289 SE2d 792) (1982). Our review of the Termination Agreement and the evidence adduced at trial leads us to conclude that the contract is indeed ambiguous and that even after applying the applicable rules of construction, namely OCGA § 13-2-2 (1), (2), (3) and (4), the ambiguity remains. “Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury. [Cit.]” A. M. Pullen, supra at 789. Even after the introduction of parol evidence, there remains a conflict in the evidence as to the intent of the parties, and this disagreement is “ ‘an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court.’ ” Prince v. Kujawa, 178 Ga. App. 828, 829 (1) (344 SE2d 680) (1986). The trial court erred in granting appellees’ motion for directed verdict. See Crestlawn Mem. Park v. Scott, 146 Ga. App. 715 (1) (247 SE2d 175) (1978).

Decided February 7, 1992.

Freisem, Swann & Malone, C. Cyrus Malone III, for appellant.

Jones, Day, Reavis & Pogue, David J. Bailey, for appellees.

2. Appellant next enumerates that the trial court erred in refusing to allow appellant to question Morgan on his intentions and the intentions of King in failing to specify that the Termination Agreement contemplated a possible increase in the base rental under the old lease. The questioning was an attempt by appellant to show the bad faith necessary for recovery of attorney fees under OCGA § 13-6-11. It is unnecessary to rule on this enumeration in light of our decision in Division 1.

Judgment reversed.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A1743.
    FATHERS ARE PARENTS TOO, INC. v. HUNSTEIN.
    (415 SE2d 322)
   Andrews, Judge.

Fathers Are Parents Too, Inc. (appellant) brought suit against Hunstein (appellee), who was acting as chairperson of the Georgia Commission on Gender Bias in the Judicial System (the Commission), seeking a declaration that the Commission is subject to the Open Meetings Act (OCGA § 50-14-1 et seq.), and seeking to enjoin appellee from conducting Commission meetings closed to the public. The trial court granted appellee’s motion to dismiss on the threshold ground that the Commission, which was created by an order of the Georgia Supreme Court, was not subject to the Act because the Act did not apply to the judicial branch of state government. The ensuing appeal, filed in the Supreme Court, was transferred to this Court.

1. In its first two enumerations of error, appellant claims the trial court erred in ruling that the Act does not apply to the Commission or to the judicial branch. In Coggin v. Davey, 233 Ga. 407, 410-411 (211 SE2d 708) (1975), the Supreme Court held that the former Act (as enacted by Ga. L. 1972, p. 575), although applicable to the executive branch of government, was not applicable to the legislative branch or its committees. Though not part of its holding, Coggin also rejected the argument that the Act applied to the judicial branch. Id. at 410-411. The Court reasoned that the Act was not intended to apply to the legislative branch since the Legislature had historically exercised the authority to adopt its own internal operating procedures, and had subsequently adopted the procedures at issue inconsistent with the Act. Id. at 411.

The judicial branch is invested with inherent power which, likewise, supports the conclusion that the Legislature did not intend for the Act to apply to the courts. In Art. VI, Sec. I, Par. I, the Georgia Constitution of 1983 vests the power of the judicial branch of government in the Supreme Court, this Court, and the other courts of this state. See Ga. Const. 1983, Art. VI, Sec. I, Par. II (all courts of the state comprise a unified judicial system). In exercising this judicial function, the Supreme Court and other courts are vested with the inherent power necessary to the administration of justice and “ ‘with all necessary authority to efficiently and completely discharge those duties the performance of which is by the Constitution committed to the judiciary, and to maintain the dignity and independence of the courts.’ ” (Citation omitted.) Wallace v. Wallace, 225 Ga. 102, 111 (166 SE2d 718) (1969). Such authority may be exercised, not as a means to encroach upon any other branch of government, but where necessary to insure the proper functioning of the judicial system. Miree v. United States, 242 Ga. 126, 132 (249 SE2d 573) (1978). As the Supreme Court has noted: “Where the use of authority will further our judicial processes, improve and stabilize the administration of justice, and render a basic service to our people, we feel that we have a duty to serve. Our powers are equal to our duties.” Id. at 132. In recognition of the separate authorities and duties vested in the three co-equal branches of government, the Constitution provides that the legislative, judicial and executive powers shall forever remain separate and distinct. Ga. Const. 1983, Art. I, Sec. II, Par. III. “As a principle flowing from the separation of powers doctrine, [the inherent judicial power] . . . arms the judicial branch with authority to prevent another branch from invading its province.” McCorkle v. Judges &c. of Chatham County, 260 Ga. 315, 316 (392 SE2d 707) (1990). Accordingly, the proper exercise of such judicial authority may not be limited by the legislative branch. Grimsley v. Twiggs County, 249 Ga. 632, 633-634 (292 SE2d 675) (1982). For these reasons, and because the current Act (enacted by Ga. L. 1988, p. 235) does not specifically reference the judicial branch, nor otherwise apply to the judiciary in clear and unmistakable terms, we conclude that the Legislature did not intend for the Act to apply to the judicial branch of government. See OCGA § 1-3-8; Harrison Co. v. Code Revision Comm., 244 Ga. 325, 328 (260 SE2d 30) (1979) (state not bound by law unless named therein, or unless the intent that it be bound is clear and unmistakable).

Decided February 7, 1992.

Daryl G. LeCroy, for appellant.

Michael J. Bowers, Attorney General, Stephanie B. Manis, Deputy Attorney General, for appellee.

The Supreme Court ordered the formation of the Commission “to study and investigate the existence and scope of gender bias in the judiciary in Georgia . . .” and to file a report upon completion of its work. Acting under the authority of the Supreme Court to assist the Court in the exercise of its judicial function, the Commission is not subject to the Act.

The trial court correctly concluded that the Act did not apply to the judicial branch of government or to the Commission, and properly granted appellee’s motion to dismiss.

2. Since we conclude the Act was not applicable, we need not address appellant’s claim that the trial court erred by ruling the Commission was an advisory group to which the Act, in any case, would not apply. Neither do we reach appellant’s asserted constitutional error. The constitutional claim was not clearly made in the court below, nor ruled on by the trial judge so it presents nothing for our review. Archie v. Scott, 190 Ga. App. 145, 146 (378 SE2d 182) (1989).

Judgment affirmed.

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

       This construction of the Act is consistent with the application of the Federal Freedom of Information Act (5 USC § 552), which by its terms excludes Congress and the federal judicial branch. See 1 J. O’Reilly, Federal Information Disclosure, § 4.02 (2nd ed. 1991).


author: Cooper, Judge.

text:
    A91A1761.
    KEISHIAN v. THE STATE.
    (415 SE2d 324)
   Cooper, Judge.

We granted this interlocutory appeal from the trial court’s denial of appellant’s motion to suppress on the grounds that appellant lacked standing to contest the search. In two enumerations of error, appellant argues that the trial court erred in denying his motion to suppress, and contends that the evidence obtained from the car in which he was a passenger, as well as from his home, should not be admitted at trial.

Appellant was a passenger in a car that was stopped by a state trooper because it was being driven without headlights. During the stop, the officer shined his flashlight into the car and noticed two plastic bags containing white powder on the floor behind the passenger seat. The driver and appellant were arrested, and an inventory search of the car yielded another plastic bag of suspected narcotics. Based upon a statement given to police by appellant, a search warrant for appellant’s home was obtained, drugs were seized from his home and appellant was charged with possession of cocaine with intent to distribute and possession of other controlled substances. Appellant contends that he is entitled to automatic standing because possession is an essential element of the offense with which he is charged and further, that standing should be conferred because appellant alleged a possessory interest in the evidence seized as well as a legitimate expectation of privacy in the car in which he was riding. “In the . . . case of United States v. Salvucci, 448 U. S. 83 (100 SC 2547, 65 LE2d 619), the Supreme Court expressly overruled the premise that any person accused of criminal possession had ‘automatic standing’ to claim the benefits of the exclusionary rule, and ruled that a defendant charged with a possessory offense who moves to suppress the items he is charged with possessing is now obligated to establish at the suppression hearing that the police conduct of which he complains violated his own Fourth Amendment rights. . . . Ownership of the seized contraband alone is not sufficient to entitle a defendant to challenge the search; he bears the burden of proving not only that the search was illegal but also that he had a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U. S. 98, 104-105 (100 SC 2556, 65 LE2d 633); [Cit.] The Supreme Court has previously pointed out ‘that cars are not to be treated identically with houses or apartments for Fourth Amendment purposes’; however there must still be a showing of a legitimate expectation of privacy in the searched area of the car in which persons are ‘merely passengers.’ Rakas v. Illinois, 439 U. S. 128, 148-149 (99 SC 421, 58 LE2d 387).” Stone v. State, 162 Ga. App. 654, 655 (2) (292 SE2d 525) (1982). See Sanders v. State, 181 Ga. App. 117 (1) (351 SE2d 666) (1986). Although appellant did assert in support of his motion to suppress that, for purposes of the motion, he claimed ownership of the bags found on the back floor of the car, the question of appellant’s own standing to contest the search depends upon whether appellant had a legitimate expectation of privacy in the areas of the car from which the evidence was seized. Mere assertion of ownership in the items seized does not alone lead to the conclusion that a legitimate expectation of privacy exists. Appellant claimed no proprietary or possessory interest in the car itself. See Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989). Appellant makes no assertion of authority to consent to the search of the car in the first instance. See Pupo v. State, 187 Ga. App. 765 (5) (371 SE2d 219) (1988). In fact, the driver of the car testified at the suppression hearing that he had given appellant, who was a friend, a ride to a parking lot with the intention of dropping appellant off and not waiting for appellant. Appellant got out of the car, and as the driver started to leave, appellant got back in the car. The driver stated that he asked appellant why he was getting back in the car, but he was in a hurry so he drove off with appellant in the car. All the evidence indicates that appellant was a mere passenger in the car, and as such, had no legitimate expectation of privacy therein. Morgan v. State, 195 Ga. App. 732 (4) (394 SE2d 639) (1990). “‘[A]n individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. [Cit.] [Appellant] had no legitimate claim to any expectation of privacy in the [car] searched and may not now assert a valid claim of illegal search and seizure. (Cits.)’ [Cits.]” Delgado, supra at 357.

Decided February 7, 1992.

Weinstock & Scauo, Michael Weinstock, Hillard J. Quint, for appellant.

Lewis R. Slaton, District Attorney, A. Thomas Jones, Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A1804.
    WILLIAMS v. TAYLOR.
    (415 SE2d 498)
   McMurray, Presiding Judge.

Plaintiff Williams filed this malicious prosecution action against defendant Taylor. Plaintiff alleges that he paid for a purchase with his personal check, that the check was dishonored for want of sufficient funds, that defendant gave notice as required by law to plaintiff that his check had not been paid, and that upon receipt of notice from defendant, plaintiff went immediately to defendant’s place of business, where he redeemed his check for cash and paid the regular returned check fee. The complaint also states that notwithstanding the plaintiff’s making good the returned check, defendant deposed a warrant for plaintiff resulting in his arrest and incarceration, and necessitating his making bond, expending money defending a false charge, and attending a hearing on said charge which was nolle prossed after a determination that there was insufficient evidence for prosecution. Defendant’s answer denied that plaintiff had made good the returned check.

Defendant moved for summary judgment, pursuant to OCGA § 9-11-56 (b), predicated on affidavits which show that plaintiff did not redeem the returned check and that the check had been lost after defendant gave it to a clerk in the Magistrate’s office. Plaintiff responded with his affidavit stating that he did redeem the check, making payment and receiving possession of the check. There is no indication that either party currently has possession of the check.

Defendant also argued in support of his motion for summary judgment that plaintiff’s action was premature since six months had not passed since the prosecution of plaintiff had been nolle prossed. The nolle prosequi was entered on October 16, 1989, and plaintiff’s complaint was filed on January 8, 1990.

The state court granted defendant’s motion for summary judgment. Plaintiff appeals. Held:

“Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. See Ellis v. Knowles, 90 Ga. App. 40, 42 (1) (81 SE2d 884) (1954); Wilson v. Bonner, 166 Ga. App. 9 (1) (303 SE2d 134) (1983). See generally OCGA §§ 51-7-40; 51-7-41.” J. C. Kenney Co. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682).

In view of the conflicting evidence, genuine issues of material fact remain concerning defendant’s probable cause and malice in instigating the prosecution. Whether a timely redemption of the check occurred is a primary issue remaining unresolved. Another issue is whether the immunity provided under OCGA § 16-9-20 (h) is applicable. See generally Wilson v. Home Depot, 180 Ga. App. 218 (348 SE2d 588) and Stallings v. Coleman, 165 Ga. App. 667 (302 SE2d 412).

“An action for malicious prosecution instituted within six months from the entry of nolle prosequi of a criminal prosecution, upon which the action was predicated, is premature and dismissal [is] proper.” Earlywine v. Strickland, 145 Ga. App. 626 (244 SE2d 118). “The trial court’s order, however, purports to be not only a dismissal but also a grant of summary judgment to the defendant. To the extent that the order is a grant of summary judgment, it is clearly unauthorized, since the defense that the prosecution has not terminated is one in abatement. In other words, the prosecution may yet terminate in the plaintiff’s favor, and he may yet have a cause of action. ‘A motion for summary judgment is designed to test the merits of a claim and cannot be granted on matters in abatement. (Cits.) Such matters are properly disposed of pursuant to motion to dismiss. See [OCGA §§ 9-11-12 and 9-11-43 (b)].’ C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga. App. 354, 357 (254 SE2d 426) (1979). The trial court’s judgment with respect to the malicious prosecution count is accordingly reversed with direction that a new order be entered dismissing the claim ‘without prejudice.’ See generally 6 Moore’s Federal Practice p. 56-56, ¶ 56.03.” Primas v. Saulsberry, 152 Ga. App. 88 (2) (262 SE2d 251).

The dissent’s reliance upon the factually distinguishable case of Wilson v. Home Depot, 180 Ga. App. 218, supra, is misplaced. OCGA § 16-9-20 (a) provides in relevant part: “A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” (Emphasis supplied.) In order to commit the crime, one must have the requisite criminal intent at the time the check is issued. While plaintiff concedes that he issued a check that was dishonored due to insufficient funds, he denies any criminal intent.

The only evidence of criminal intent on the part of plaintiff is that alluded to earlier in this opinion and upon which defendant’s motion for summary judgment was predicated, that is, certain affidavits which show that plaintiff did not redeem the check. Under the statutory scheme, a failure to make timely restitution after written notice of dishonor authorizes an evidentiary inference that the maker knew at the time of delivery that payment would not be made upon presentment to the drawee. Wilson v. Home Depot, 180 Ga. App. 218, 219, supra.

In Wilson v. Home Depot, 180 Ga. App. 218, supra, the uncontradicted evidence was that the issuer of the check did not redeem it within the allotted time following the statutory notice or for its full amount, thereby permitting an inference of criminal intent. The holding of Wilson was that a tardy redemption of the check for a lesser amount did not provide any exculpatory evidence which would rebut or contradict the evidentiary inference of criminal intent created by the failure to timely redeem in full.

The case sub judice is unlike Wilson v. Home Depot, 180 Ga. App. 218, supra, in that it is not concerned with an attempt to rebut or controvert an inference of criminal intent established by uncontroverted evidence of a failure to redeem in full within the allotted time following statutory notice of dishonor. Instead, the issue in this case is whether there is evidence authorizing such an inference of criminal intent in the first place. The affidavits submitted by defendant and stating that plaintiff did not redeem the check, if uncontradicted, would authorize an inference that plaintiff issued the check with criminal intent. However, defendant’s evidence is contradicted by plaintiff’s affidavit stating that he did redeem the check.

Plaintiff’s affidavit may not be construed as being exculpatory since the drawer of a bad check may subsequently agree to and actually make restitution and still have had, at the time he issued the check, the requisite criminal intent. See Wilson, supra at 219. Nonetheless, plaintiff’s affidavit, while lacking exculpatory value, is still probative evidence which serves to controvert defendant’s evidence on the issue of criminal intent. Accordingly, defendant’s evidence fails to negate the lack of probable cause element of plaintiff’s claim. A genuine issue of material fact remains as to whether the check was redeemed, and if so, whether the redemption was timely and for full value.

Judgment reversed with direction.

Sognier, C. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman concur. Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent because the trial court’s grant of summary judgment was proper regardless of whether the bad check prosecution action terminates in Williams’ favor, since Williams could not maintain a malicious prosecution action as a matter of law. Williams concedes that he issued a bad check and thus regardless of whether there was subsequent restitution, no genuine issue of material fact remains in this case regarding probable cause.

“The crime of issuing a bad check occurs at the time the check is issued if it is made or issued with the knowledge that it will not be honored. Contrary to appellant’s assertions, notice of the drawee’s refusal to pay, followed by ten days for the defendant to pay the check (upon notice of its dishonor), is not an element of the offense of issuing a bad check.” (Punctuation omitted.) Russell v. State, 155 Ga. App. 555 (1) (271 SE2d 689) (1980). In Wilson v. Home Depot, supra, the court stated: “[a]s opposed to the subsequent failure to make restitution, evidence of subsequent restitution, standing alone, has no real relevancy to criminal liability under OCGA § 16-9-20. The offense is completed when the check is delivered, and it is the criminal intent present at that moment which the law proscribes. Thus, under the statutory scheme, it is the subsequent failure to make timely restitution after written notice of dishonor that authorizes the evidentiary inference that the maker knew at the time of delivery that payment would not be made upon presentment to the drawee. Whether the payee was ever actually afforded restitution is irrelevant to the guilt or innocence of the perpetrator. The drawer of a bad check may subsequently agree to and actually make restitution and still have had, at the time he issued the check, the requisite criminal intent. Thus, even under appellant’s own version of the events, there were no facts or circumstances which in any way could be construed as being exculpatory with regard to [his] admitted prior act of issuing a bad check. Repayment of the victim will not constitute a bar to conviction of the offender.” (Citations and punctuation omitted.) Id. at 219; see also Parish v. State, 178 Ga. App. 177 (342 SE2d 360) (1986).

Decided February 7, 1992.

Murray, Donovan & Nabors, Donald R. Donovan, for appellant.

Steven C. Adams, William T. Cox, Jr., for appellee.

In contrast to the majority’s interpretation of Wilson, I believe that the holding of that case was that subsequent restitution has no bearing upon the determination of probable cause in a malicious prosecution claim. Accordingly, I do not believe that the plaintiff’s affidavit stating that he redeemed the check created a material issue of fact regarding probable cause. “The probable cause referred to has been defined to be, the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” (Punctuation omitted.) Wilson, supra at 220.

Therefore, “[u]nder the evidence, the pleadings were pierced as to appellee’s alleged lack of probable cause and appellant did not meet [his] burden of showing that a genuine issue of material fact remained as to [his] malicious prosecution claim.” Wilson, supra at 220. Accordingly, the trial court’s decision to grant summary judgment regarding the malicious prosecution claim was correct.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

       I do not suggest by this statement that Williams admitted committing the crime, but only that he admitted that he drew and delivered a check which was dishonored for insufficient funds. See Wilson v. Home Depot, 180 Ga. App. 218 (348 SE2d 588) (1986); compare Stallings v. Coleman, 165 Ga. App. 667 (302 SE2d 412) (1983).


text:
    A91A1835.
    BRADFORD v. THE STATE.
    (415 SE2d 697)
   Andrews, Judge.

Bradford was tried and convicted of kidnapping, possession of a firearm during the commission of a crime and of two counts of armed robbery. In the indictment, Bradford was accused of acting together with another man to commit the crimes charged, and at trial there was evidence indicating that two men had acted in concert to commit the crimes.

1. Pretermitting the question of whether the error was properly preserved below, in his second enumeration of error, which we will address first, Bradford claims that the trial court erred in instructing the jury on the law of conspiracy. He argues that the conspiracy charge allowed the jury to convict Bradford of the substantive crimes by proof of a lesser crime. We find no merit in this argument and find that the evidence supported the charge given. See generally Hicks v. State, 195 Ga. App. 887, 889 (2) (395 SE2d 341) (1990).

Decided February 7, 1992.

James D. Love, J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

Bradford also argues that the conspiracy charge was improper since conspiracy was not charged in the indictment. “Even though a conspiracy is not charged in the indictment, the jury charge is not incorrect where the evidence supports it. Spencer v. State, 180 Ga. App. 498 (349 SE2d 513) [(1986)].” Sabree v. State, 195 Ga. App. 135, 138 (7) (392 SE2d 886) (1990).

2. Bradford claims that the trial court erred by recharging the jury twice regarding conspiracy and that by doing so the conspiracy issue was unduly emphasized. Bradford does not argue that the charge was substantively incorrect, but that the repetition itself was error. The sequence of events at issue arose when, after hearing the initial charge regarding conspiracy, the jury twice requested further instruction regarding that issue. In giving the second recharge, the trial judge, who was apparently concerned that he had misstated the name of the alleged co-conspirator, reread a portion of the charge.

Pretermitting again the question of whether the objection to the charge was properly raised, we find no error. The recharges contained not only the requested instruction, but also the statement that the defendant denied these charges and references to the State’s burden of proving a conspiracy beyond a reasonable doubt. “A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.” (Citations and punctuation omitted.) Brown v. State, 182 Ga. App. 682, 683 (356 SE2d 663) (1987); Dyer v. State, 167 Ga. App. 310 (306 SE2d 313) (1983); see also Walker v. State, 198 Ga. App. 422 (401 SE2d 613) (1991); Moore v. State, 179 Ga. App. 125 (345 SE2d 631) (1986).

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1932.
    TURNER CONSTRUCTION COMPANY et al. v. ELECTRICAL DISTRIBUTORS, INC.
    (415 SE2d 325)
   Sognier, Chief Judge.

Electrical Distributors, Inc. (“EDI”), a supplier to a subcontractor on a large commercial construction project, brought suit on a lien bond against Turner Construction Company, the successor in interest to the general contractor, and Federal Insurance Company, the surety on the bond obtained by Turner to discharge the lien filed by EDI. The parties filed cross motions for summary judgment, and the trial court granted summary judgment to the defendants. EDI appealed to this court and we reversed, holding that the trial court erred by denying summary judgment to EDI. Electrical Distributors v. Turner Constr. Co., 196 Ga. App. 359 (395 SE2d 879) (1990). On remittitur, the trial court entered judgment for EDI in the principal amount of $117,538.58 plus prejudgment interest of $95,500.31 (calculated at 18 percent per annum from the date the obligation became due). Turner and Federal Insurance appeal the award of prejudgment interest.

1. We first address appellee’s contention that appellants should have raised the issue of appellee’s entitlement to prejudgment interest in the prior appeal and accordingly are barred from enumerating that ruling as error in this appeal. We do not agree with appellee’s argument, for the judgment appealed from in the prior case did not award appellee prejudgment interest; it was in favor of the parties who are now appellants in this appeal. Appellants could not challenge the ruling from which they now seek relief because it was not entered until after the prior appeal was concluded. See OCGA § 5-6-34 (a), (d) (defines appealable judgments and delineates matters that may be considered as part of an appeal). Contrary to appellee’s argument, nothing in our code or rules requires the losing party in an appeal to file a motion for reconsideration to challenge rulings that might be entered on remittitur in response to this court’s holding on appeal.

2. With regard to the merits of their appeal, appellants first contend that the materialman’s lien laws, OCGA § 44-14-360 et seq., set forth appellee’s exclusive remedies, and that since the lien statutes do not expressly provide for an award of prejudgment interest the trial court’s ruling was in error. The question of appellee’s entitlement to prejudgment interest is controlled adversely to appellants by the Supreme Court’s decision in Horkan v. Great Am. Indem. Co., 211 Ga. 690-691 (5) (88 SE2d 13) (1955), in which the court held that lien claimants are entitled to prejudgment interest at the statutory rate of seven percent per annum on all liquidated claims. Although the Horkan court did not address all of the arguments raised by appellants in the case sub judice, we are bound by that ruling, and any challenges to the rationale in Horkan may be addressed only by the Supreme Court.

3. Appellants next contend that if we find, as we did in Division 2, that Horkan is controlling, we should limit the interest awarded to the rate of seven percent per annum under OCGA §§ 7-4-15, 7-4-2 (a) (1) (A) (prejudgment interest on liquidated sums) rather than the rate of one-and-one-half percent per month specified in OCGA § 7-4-16 for commercial accounts.

OCGA § 7-4-16 authorizes the “owner” of a “commercial account” to charge such interest on past due amounts. “Commercial account” is defined as “an obligation for the payment of money arising out of a transaction to sell or furnish, or the sale of, or furnishing of, goods or services.” Here, although the sums owed to appellee arose out of the furnishing of goods to the electrical subcontractor on the project, they did not arise out of the furnishing of goods by appellee to appellants. Appellee’s action against appellants is based not on its commercial account with the electrical subcontractor but on its rights under the lien bond — that is, its rights as a lien claimant. See OCGA § 44-14-364 (a); see also North v. Waffle House, 177 Ga. App. 162, 163 (1) (338 SE2d 750) (1985). Accordingly, appellants’ liability does not arise out of their failure to pay any amounts they owed to appellee on a commercial account, and OCGA § 7-4-16 thus is not applicable. Race, Inc. v. Wade Leasing, 201 Ga. App. 340, 342 (3) (411 SE2d 56) (1991). The case cited by appellee, Sunderland v. Vertex Assoc., 199 Ga. App. 278, 282 (3) (404 SE2d 574) (1991), does not require a contrary result, as our review of the record in that case discloses that the issue addressed here was neither raised by the parties nor considered by the court in Sunderland.

A sum is liquidated when it is certain how much is due and when it is due. Id. Since this court decided in the prior appeal that appellee’s claim for $117,538.58 was undisputed, Electrical Distributors, supra at 365, appellee is entitled to prejudgment interest pursuant to OCGA §§ 7-4-15, 7-4-2 (a) (1) (A) at the rate of seven percent per annum from the date the debt became due. Consequently, we affirm the judgment below but with direction that the award of interest in excess of seven percent per annum be written off; otherwise, we reverse.

Judgment affirmed with direction.

McMurray, P. J., and Andrews, J., concur.

Decided February 7, 1992.

Alston & Bird, John I. Spangler III, Matthew H. Triggs, for appellants.

Bovis, Kyle & Burch, John M. Bovis, Terry E. Freeman, for appellee.


author: Birdsong, Presiding Judge.

text:
    A91A2060.
    WILLIAMS v. THE STATE.
    (415 SE2d 327)
   Birdsong, Presiding Judge.

Robert W. Williams, Sr., appeals his conviction for rape, having been indicted for rape and aggravated assault. The offense occurred early on August 4, 1990, after appellant came to the home of the 16-year-old victim, who was a friend of his son. Appellant told the victim his son told appellant to come get the victim. The victim’s mother allowed her to drive away with appellant; however, instead of taking the victim to his son, appellant drove down a dirt road. According to the victim, appellant raped her after threatening her with a gun. A medical examination showed the presence of sperm in the victim but the sperm was not identified as appellant’s. At trial appellant objected to the introduction of a letter appellant had written to the victim’s mother while appellant was in jail; he unsuccessfully requested the court to allow the jury to view his car, which he contended was too small to permit the conduct which the victim described. Appellant asserts these as errors and complains that the evidence was insufficient to support the verdict. Held:

1. As to the sufficiency of the evidence, appellant contends that since the jury found him not guilty of aggravated assault in the use of a gun in forcing the rape, the jury necessarily found the lack of force in the sexual relations. Obviously, this is not correct. The victim testified appellant pressed his elbow in her throat and exerted other force upon her, that she refused to have sexual intercourse and begged him to take her home but he would not. The jury heard evidence that the victim was a sexually active person; nevertheless, as to the questions of force, consent, and identity, the jury determined appellant committed the crime of rape. On appeal of criminal convictions, we do not weigh the evidence or determine the credibility of witnesses; these are jury functions. When the jury has considered the evidence and made its finding, then on appeal the evidence is construed in favor of the jury’s verdict. Gurlaskie v. State, 196 Ga. App. 794 (397 SE2d 66). On review of a verdict of guilty, we merely determine whether the evidence is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We so find in this case.

Decided February 7, 1992.

Lawrence & Ford, Gale J. Farlow, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

2. The trial court did not err in permitting the victim’s mother at trial to read a letter which appellant wrote her while he was in jail, in which appellant offered money if the charges would be dropped and threatened retribution otherwise. Appellant contends he was entitled to receive a copy of this letter as a “statement” made by him while in police custody, pursuant to OCGA § 17-7-210, but we have held that a letter “voluntarily written to a stranger to the proceedings” is not such a “statement” to which that Code section entitles defendant to receive prior to trial. Franklin v. State, 166 Ga. App. 375, 377 (304 SE2d 501). A letter voluntarily written to a party other than the state or law enforcement officers is prima facie not a “statement given by [defendant] while in police custody” which is subject to OCGA § 17-7-210. Moreover, when appellant made objection at trial to the reading of this letter, the prosecutor stated that the letter was not in the State’s possession but was “this lady’s mail.”

3. The trial court did not abuse its discretion in denying appellant’s request to permit the jury to view the vehicle. See generally Mainor v. State, 259 Ga. 803 (387 SE2d 882); Radcliff v. State, 109 Ga. App. 19 (134 SE2d 845). Appellant introduced photographs of the interior of the vehicle and questioned witnesses and argued extensively that the car’s interior was too small for the described events to have occurred, and thus had ample opportunity to advance this theory to the jury.

4. On the grounds alleged, the trial court did not err in refusing to grant appellant a new trial.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Carley, Presiding Judge.

text:
    A91A1522.
    CALDWELL v. THE STATE.
    (415 SE2d 653)
   Carley, Presiding Judge.

By accusation, appellant was charged with driving under the influence and he filed a pre-trial motion in limine seeking to exclude from evidence the results of a chemical analysis of his breath. After the trial court had denied this motion, appellant entered a negotiated guilty plea. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the guilty plea. He enumerates as error only the denial of his motion in limine.

1. “[Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of [specified] issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved; and an unconditional guilty plea will waive any defenses and objections ([cit.]) except [appellate review] of whether such plea was voluntarily made by appellant and accepted following proper inquiry by the trial court. Because the trial court accepted [appellant’s] guilty plea with his reservation, we will consider the error enumerated.” (Emphasis supplied.) Mims v. State, 201 Ga. App. 277, 279 (1) (410 SE2d 824) (1991).

2. Appellant’s motion in limine was predicated upon the claim that he had been denied a reasonable opportunity to undergo an independent test.

“OCGA § 40-6-392 (a) (3) permits a person tested for alcohol level by a law enforcement officer to obtain an additional test by a qualified person of his own choosing. However, ‘(t)he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. . . .’ [Cit.] The law enforcement authority has the duty not to prevent a defendant from exercising his right to an independent test but not the duty to insure the performance of such a test. [Cit.]” Gray v. State, 194 Ga. App. 811, 812 (392 SE2d 290) (1990).

The trial court in the instant case was authorized to find that, in accordance with OCGA § 40-6-392, the arresting officer had read the implied consent rights to appellant and had informed appellant of his right to an independent test of his own choosing. Appellant exercised his rights by demanding, in writing, an additional breath test. This additional testing was performed 20 minutes after the first test by the same officer on the same intoximeter, and yielded the same result. Accordingly, appellant was afforded the opportunity to obtain an independent test of his blood-alcohol content. The mere fact that appellant chose to repeat the breath test administered by the arresting officer furnishes no reason to suppress the results of the State’s initial breathalyzer test. Grizzle v. State, 153 Ga. App. 364 (1) (265 SE2d 324) (1980). If appellant had desired to undergo a different type of test, he should have requested it in a timely fashion. “It is the responsibility of the arrestee, not of the officer, to designate the specifics of [any] independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee’s election. [Cits.]” State v. Willis, 184 Ga. App. 639, 641 (2) (362 SE2d 444) (1987). The evidence supports the trial court’s conclusion that appellant was not coerced into accepting one form of test over another. Hattaway v. State, 191 Ga. App. 812, 814 (2) (383 SE2d 140) (1989). Accordingly, the trial court correctly denied appellant’s motion in limine.

Decided January 24, 1992

Reconsideration denied February 10, 1992.

Paul S. Weiner, for appellant.

Patrick H. Head, Solicitor, B. Martin First, Assistant Solicitor, for appellee.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A1654. 12052
    ASSOCIATES v. W. C. CARSON, INC.
    (415 SE2d 298)
   Carley, Presiding Judge.

After bringing this action for money had and received, appellant-plaintiff sought a stay of an arbitration proceeding which had been instituted by appellee-defendant. The trial court entered an order denying a stay of arbitration, but certified its order for immediate review. Appellant appeals pursuant to this court’s grant of its application for an interlocutory appeal.

Appellant has admitted in its supplemental brief that, notwithstanding this court’s grant of its application for an interlocutory appeal and its filing of a timely notice of appeal, the arbitration proceeding has nevertheless proceeded to completion and an award has been made. Therefore, the sole question before us “is moot and will not be passed upon. A reversal on the ground that [a stay of arbitration] should have been granted could not possibly require the trial judge to enjoin the [arbitration]. [Cits.]” Richmond County Business Assn. v. Richmond County, 222 Ga. 772, 773 (152 SE2d 738) (1966). See also Sav-A-Stop v. Rich, 224 Ga. 354 (162 SE2d 318) (1968); Brown v. Taylor, 193 Ga. App. 134 (387 SE2d 25) (1989). Appellant’s notice of appeal acted as a supersedeas. See Lawrence v. Whittle, 146 Ga. App. 686 (1) (247 SE2d 212) (1978). Accordingly, the arbitration proceeding should not have taken place and, in reliance upon the timely filed notice of appeal, the parties should have refused to participate in that proceeding. However, after the filing of the notice of appeal, the trial court did not enter an order compelling arbitration. Instead, the record shows that appellant voluntarily proceeded to arbitration after the filing of its notice of appeal, despite the fact that the trial court’s previous orders denying a stay and compelling arbitration had been superseded. By voluntarily complying with the trial court’s superseded orders, appellant has rendered the appeal from those superseded orders moot. Brown v. Taylor, supra.

Decided January 24, 1992

Reconsideration denied February 10, 1992

Leroy C. Fowler, Abbott, Talley & Abbott, Anthony H. Abbott, for appellant.

Smith & Fleming, Robert 0. Fleming, Jr., for appellee.

Appeal dismissed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A1770.
    NORMAN v. NATIONWIDE CREDIT, INC.
    (415 SE2d 293)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit, seeking damages based upon allegations that appellant-defendant had breached a covenant not to compete. The case was tried before a jury and a verdict “in the amount of $0” was returned. It is from the judgment entered on this verdict that appellant appeals.

Appellant does not have standing to appeal because “ ‘[t]he jury verdict for zero damages . . . was a judgment for [appellant]. (Cit.)’ [Cit.]” (Emphasis supplied.) Gielow v. Strickland, 185 Ga. App. 85, 87 (4) (363 SE2d 278) (1987). See also Benton v. Wesley Machinery, 191 Ga. App. 334, 335 (1) (381 SE2d 577) (1989). “ ‘(S)ince no damages were assessed against [appellant] he was absolved from any liability in the case. (Cits.)’ [Cit.]” Palmer v. Barnes, 193 Ga. App. 105 (387 SE2d 44) (1989). “ ‘ “A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.” (Cit.)’ [Cit.] The appeal is accordingly dismissed. [Cit.]” Morgan v. Miller, 191 Ga. App. 803, 804 (383 SE2d 183) (1989).

Appeal dismissed.

Beasley, J., and Judge Arnold Shulman concur.

Decided January 22, 1992

Reconsideration denied February 10, 1992

Goodman & Bush, James E. Goodman, F. Clay Bush, Norman L. Smith, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Susan S. Lanigan, Douglas D. Salyers, Lesley G. Carroll, for appellee.


text:
    A91A1833.
    MUCKLE v. THE STATE.
    (415 SE2d 299)
   Carley, Presiding Judge.

In a multi-count indictment, appellant was charged with two counts of rape, three counts of aggravated sodomy, two counts of aggravated assault, and two counts of burglary. He was tried before a jury, and found guilty of all counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The crimes had been committed on two separate occasions, but under similar circumstances. Appellant moved that his trial for the commission of the crimes against one of the victims be severed from his trial for the commission of the crimes against the other victim. The trial court’s denial of this motion to sever is enumerated as error.

“In the present case, the crimes charged were so similar as to evidence a common plan or scheme and revealed an identical modus operandi. [Cit.] . . . [A]ll of the offenses would have been admissible at the trial of the other. Davis v. State, 158 Ga. App. 549, 550 (281 SE2d 305) (1981). “[W]here, as here, the similarity of the crimes reaches the level of a pattern, severance of the crimes for trial is not required. [Cit.] ‘ “(I)n this particular kind of circumstance^ severance) lies within the sound discretion of the trial judge. ...” (Cit.)’ [Cit.] ‘Denial of the motion to sever was not an abuse of the wide discretion (of) the trial court. . . .” (Cit.)’ [Cit.]” Weddington v. State, 191 Ga. App. 738, 739 (5) (382 SE2d 661) (1989).

2. The evidence was such as to authorize the inference that the perpetrator had most likely been a “peeping Tom” before he committed the instant burglaries and sexual offenses against the victims. Accordingly, the trial court did not err in allowing the State to introduce, as sufficiently similar transactions, evidence that, on two other occasions, appellant had been a “peeping Tom” in violation of OCGA § 16-11-61. “The evidence shows the identity of the accused, similarity of plan, scheme, design and conduct.” Wilkes v. State, 166 Ga. App. 771, 772-773 (2) (305 SE2d 388) (1983). It is immaterial that, on these prior occasions, appellant’s violations of OCGA § 16-11-61 had not culminated in his commission of burglaries and sexual offenses. See Rutherford v. State, 198 Ga. App. 283 (1) (401 SE2d 308) (1991).

Decided January 24, 1992

Reconsideration denied February 10, 1992

J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

3. On cross-examination of a witness for the State, appellant elicited an ostensibly unresponsive answer which then prompted a motion for mistrial. The denial of this motion for mistrial is enumerated as error.

The record discloses that the trial court gave curative instructions. Under the circumstances, the trial court did not abuse its discretion in denying the motion. Ranalli v. State, 197 Ga. App. 360, 364 (4) (398 SE2d 420) (1990).

4. One of the victims positively identified appellant as the perpetrator and he does not challenge the sufficiency of the evidence as to his convictions for the crimes he allegedly committed against her. However, the other victim could not positively identify appellant and he urges that the evidence was not sufficient to authorize his convictions for the crimes he allegedly committed against her.

Since both series of crimes were so similar, evidence as to the crimes that appellant was positively identified as having committed was admissible and probative as to his identity as the perpetrator of the other crimes. Felker v. State, 252 Ga. 351, 359 (1a) (314 SE2d 621) (1984). This, in addition to the other circumstantial evidence, was sufficient to authorize a rational trior of fact to find proof of appellant’s identity and guilt beyond a reasonable doubt. Perry v. State, 158 Ga. App. 349 (1) (280 SE2d 390) (1981).

Judgments affirmed. Judge Arnold Shulman concurs.

Beasley, J., concurs in Divisions 1, 3, 4 and in the judgment.


text:
    A91A1516.
    SOUTHERN LAND & CATTLE COMPANY v. SIMMONS.
    (415 SE2d 329)
   Andrews, Judge.

Southern Land & Cattle Company (Southern) brought suit seeking to recover the value of timber cut, removed and sold by Simmons without Southern’s permission from land to which Southern held legal title. The trial court granted summary judgment in favor of Simmons, and Southern appeals.

Viewing the evidence in favor of the non-moving party on summary judgment (Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981); OCGA § 9-11-56), the facts establish that Simmons cut and sold the timber at the direction of Martha Johnson who, at the time of the cutting, was in possession of the land as a party to an installment contract to purchase the unimproved land at issue from Southern as a home site. The installment contract, executed by Johnson and Southern, was an executory agreement whereby Johnson paid $60 down and thereafter made installment payments of $60 per month on the purchase price of $5,000. Johnson had the right of possession to the land as long as she was not in default under the terms of the contract, and legal title remained in the seller. After Johnson paid a total of $1,000 toward the purchase price, the contract provided that Southern would give Johnson a warranty deed to the property, and, in place of the installment contract, accept a promissory note from Johnson for the unpaid balance of the purchase price secured by a deed to secure debt over the land. The contract contained a clause stating that “ [t] he Buyer shall not commit or permit to be committed any waste of the property, including the cutting or removal of any trees without the written permission of the Seller, until this contract is paid off in full.” Southern gave no permission, written or otherwise, for the trees to be cut. Though Johnson had not paid the $1,000 necessary to receive a warranty deed under the installment contract, she was in possession of the land and current on her payments at the time Simmons cut the trees at her direction. After cutting the trees, Simmons sold them for timber and kept the proceeds as reimbursement for the work done.

Though installment land contracts such as the one at issue have been commonly employed in other states (see 7 Powell On Real Property, Ch. 84D (1991)), they have never been widely used in Georgia, and have received little appellate consideration. See Pindar, Ga. Real Est. Sales Contracts, § 1-3.1 (3rd ed. 1987). We agree with the trial court that this installment contract was akin to the now largely abandoned bond for title in that it served as a contract for the sale and purchase of land; initially conveyed possession to the purchaser while legal title remained in the seller; and acted as a security instrument in the manner of a security deed while the payments were being made. See Pindar, Ga. Real Est. Law, § 20.70 (3rd ed. 1986). Employing this analogy, the trial court granted summary judgment to Simmons based upon the rule expressed in a line of cases to the effect that the holder of legal title (either a vendor in a bond for title or a grantee in a security deed) may not recover at law from a third party for the value of timber cut and removed by the third party at the direction of the party in peaceable possession of the land (even if the third party knows such vendor or grantee holds legal title), except on a showing of fraud and collusion between the possessor and the third party. Beavers v. Reynolds Bros. Lumber Co., 68 Ga. App. 858, 360-861 (24 SE2d 813) (1943); Federal Land Bank of Columbia v. St. Clair Lumber Co., 58 Ga. App. 532 (199 SE 337) (1938); Mills Lumber Co. v. Milam, 57 Ga. App. 211, 216 (194 SE 911) (1938); Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (119 SE 223) (1923). There were no allegations of fraud in the present action.

Decided February 10, 1992.

Michael S. Huff & Associates, Reagan W. Dean, for appellant.

However, the rationale of this line of cases was rejected by the enactment of Ga. L. 1939, p. 340, currently denominated as OCGA § 51-12-51, which created a cause of action in the holder of legal title, or a security interest in land, against a third party like Simmons who, without the written consent of the legal title or security interest holder, cuts and removes timber. Turner Advertising Co. v. Garcia, 252 Ga. 101, 102-103 (311 SE2d 466) (1984); Sohr v. Carpenter, 156 Ga. App. 126 (274 SE2d 123) (1980); Davis v. Rome Kraft Co., 96 Ga. App. 450, 458 (100 SE2d 473) (1957); Cordele Sash, Door &c. Co. v. Prudential Ins. Co. of Am., 86 Ga. App. 738-741 (72 SE2d 497) (1952). The interest in the land held by Southern under the installment contract at the time the timber was cut was sufficient to give Southern a cause of action against Simmons, individually, pursuant to OCGA § 51-12-51 (a) under the allegations of the complaint. Under OCGA § 51-12-51 (a), in order to maintain such an action, Southern must demonstrate that its interest in the property was recorded in “the public records of the county where such land is located.” Accordingly, questions of fact exist as to Simmons’ liability on this cause of action and, to the extent that Southern’s damages may not be limited by the provisions of OCGA § 51-12-51, a factual question may exist as to whether Simmons was a willful trespasser within the meaning of OCGA § 51-12-50. The trial court erred by granting summary judgment in favor of Simmons.

Judgment reversed.

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

Harrison, Harrison & Llop, Steven M. Harrison, for appellee.

       Despite the rule precluding such a cause of action at law, “[s]uch holder of the legal title could, without question, ask and obtain the aid of a court of equity against the grantor in the security deed or the vendee in a bond for title, and the purchaser of the timber, where it can be shown that the cutting and removing the timber will impair the security.” Mills Lumber Co. v. Milam, 57 Ga. App. 211, 216 (194 SE 911) (1938); Darby v. Mut. Benefit Life Ins. Co., 165 Ga. 516 (141 SE 410) (1927) (injunction granted to prevent cutting of timber when such cutting would impair value of security).


text:
    A91A1703.
    MILLER et al. v. NATIONWIDE INSURANCE COMPANY.
    (415 SE2d 700)
   Birdsong, Presiding Judge.

Janet Miller, individually and as next friend of her son, appeals from the grant of judgment notwithstanding the verdict to Nationwide Insurance Company on a claim to recover under a medical insurance policy. The record shows Nationwide denied Miller’s claim for medical benefits and canceled her policy after it learned that the medical history in Miller’s application for insurance was inaccurate.

Although Miller received a favorable jury verdict and the trial judge entered judgment on the verdict, the trial court later granted Nationwide’s motion for judgment n.o.v. Miller alleges the trial court erred by doing so. Held:

In Georgia, misrepresentations or incorrect statements on an insurance application do not prevent recovery under the policy unless: (1) fraudulent, (2) material either to acceptance of the risk or to the hazard assumed, or (3) the insurer in good faith would not have issued this policy if the facts had been known to the insurer. OCGA § 33-24-7 (b). As Miller admitted she provided incorrect information to the insurance company, the only question is whether the evidence demanded a verdict for Nationwide on any of the factors stated in OCGA § 33-24-7 (b). See OCGA § 9-11-50 (b). Although evidence was focused on whether Miller intentionally misrepresented her medical history, we need not address that issue. See Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 56 (240 SE2d 261). Nationwide would be entitled to judgment if the evidence showed either that the misstatement was material or that with accurate information Nationwide, in good faith, would not have issued the policy.

The evidence showed that one of the several medical conditions Miller did not reveal resulted in the surgery on which her claim was based, that Miller did not reveal that she had seen a physician for another of her unreported medical conditions only days before completing her application, and that at the time of her application she was regularly taking unreported prescribed medications. A Nationwide underwriter’s testimony showed that the misstatements were material and that the policy would not have issued if Miller’s actual medical history had been stated in her application. This unimpeached testimony was sufficient to establish those facts. OCGA § 24-4-8; State v. Stokes, 185 Ga. App. 718, 719 (365 SE2d 477).

“Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court. We have examined the record and, contrary to [Miller’s] assertions, find no conflicting evidence sufficient to create an issue for the jury in this case. Where the evidence shows that the insurer would not have issued the policy if it had been aware of [Miller’s] extensive history of medical problems, the evidence demands a finding that the omissions or misrepresentations . . . were material to the acceptance of the risk. Because the evidence demands a finding that misrepresentations were made on the application of insurance which were material as a matter of law, recovery under the policy is precluded.” (Punctuation and citations omitted.) Smith v. Integon Life Ins. Corp., 195 Ga. App. 481-482 (393 SE2d 741). Therefore, the criteria established in OCGA § 9-11-50 (a) were met, and the trial court did not err by granting the motion for judgment n.o.v.

Decided February 10, 1992.

James P. Fields, for appellants.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Judge Arnold Shulman.

text:
    A91A1809.
    POLK v. THE STATE.
    (415 SE2d 506)
   Judge Arnold Shulman.

Appellant James Carl Polk was convicted of aggravated assault based on evidence that he shot an acquaintance, Phillip Gammage, in the head with a pistol. The appellant testified at trial that Gammage was advancing on him with a knife at the time and that he fired in self-defense. He brings this appeal from the denial of his motion for new trial.

1. The appellant enumerates as error the admission of testimony by the arresting officer that, in response to on-the-scene questioning, the appellant admitting having shot the victim. The appellant objected to this testimony on the ground that the state had failed to provide him with a copy of the statement prior to trial in compliance with his request under OCGA § 17-7-210 for copies of any statements made by him while in police custody. The trial court overruled the objection based on a finding that the appellant was not in police custody at the time he made the statement. We find no error. See generally Baker v. State, 193 Ga. App. 498, 499 (2) (a) (388 SE2d 402) (1989). Moreover, because this evidence was fully consistent with all of the other evidence in the case, including both the appellant’s own testimony and supporting testimony introduced by him to the effect that he had shot the victim in self-defense, its admission was clearly harmless to him. See generally Christopher v. State, 190 Ga., App. 393 (3) (379 SE2d 205) (1989).

2. The appellant contends that the trial court erred in denying his motion for mistrial after the state’s attorney attempted to impeach a defense witness by questioning him about an aggravated assault indictment which had been returned against him in 1986. It is apparent that at the time the state’s attorney began this questioning, he was under the mistaken impression that the witness had been convicted of aggravated assault. In fact, however, the witness had pled guilty to the lesser offense of simple assault; and upon realizing this the state’s attorney abandoned this line of questioning. In denying the appellant’s motion for mistrial, the trial court stated that it was “going to attempt to do its best to correct the impression left by counsel for the state in his unwise . . . tactic. . . .” However, the court did not thereafter give any instructions to the jury regarding the matter.

“A witness may be impeached by showing conviction of a crime involving moral turpitude. [Cit.] The fact of conviction must be shown by record evidence and not by testimony. [Cit.]” Johnson v. State, 144 Ga. App. 406 (1) (240 SE2d 919) (1977). “[E]ven competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment. [Cits.]” Whitley v. State, 188 Ga. 177, 179 (5) (3 SE2d 588) (1939). Accord Strickland v. State, 166 Ga. App. 702 (305 SE2d 434) (1983).

“Our Supreme Court has declared that crimes involving moral turpitude are ‘restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (Cit).’ [Cits.]” Seaboard &c. R. Co. v. West, 155 Ga. App. 391, 393 (271 SE2d 36) (1980). Accord Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991) (holding that DUI is not such an offense). While the state contends, without benefit of any supporting authority, that the misdemeanor offense of simple assault falls into this category, this court has previously held that such offenses as simple battery, see Jabaley v. Mitchell, 201 Ga. App. 477 (411 SE2d 454) (1991), and “fighting,” see Curry v. State, 17 Ga. App. 312 (1) (86 SE 742) (1915), are not crimes involving moral turpitude. It necessarily follows that the offense of simple assault likewise is not a crime involving moral turpitude.

The witness in question was crucial to the defense in that he was the only eyewitness (other than the victim and the appellant) to testify, and he corroborated the appellant’s claim that the victim was brandishing a knife immediately prior to the shooting. Therefore, the state’s improper attempt to impeach his credibility by questioning him about his past indictment for aggravated assault cannot be viewed as harmless. Accordingly, pretermitting whether any curative instructions would have sufficed to cure the resulting prejudice, we hold that in the absence of such instructions the appellant’s motion for mistrial should have been granted.

Decided February 10, 1992.

Timothy L. Eidson, for appellant.

3. The appellant contends that the trial court erred in allowing a police detective to testify on rebuttal that he had talked to the appellant at the police station following the shooting and that the appellant had not told him that the victim was armed with a knife. Previously, the trial court had ruled that the state could not introduce any evidence regarding this interview because the appellant had requested an attorney prior thereto. However, the appellant thereafter took the stand and asserted that he had in fact informed this detective that the victim was armed with a knife. Based on this testimony, the trial court allowed the detective to offer contrary testimony in rebuttal, instructing the jury that this testimony was to be considered “strictly in rebuttal and only as to the believability of the defendant in this case and for that purpose only. . . .”

We find no error. “ ‘The shield provided by Miranda [v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)] cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ” Alexander v. State, 138 Ga. App. 618, 619 (2) (226 SE2d 807) (1976), quoting from Harris v. New York, 401 U. S. 222, 226 (91 SC 643, 28 LE2d 1).

4. While the appellant did not testify that he had told the arresting officer (as opposed to the detective) that the victim was armed with a knife, the state’s attorney apparently believed that he had done so and accordingly called this witness to testify in rebuttal also. Although the rebuttal testimony of this witness was consistent with the appellant’s own testimony, the appellant contends that the trial court erred in failing to instruct the jury that it was to be considered only for impeachment purposes. See generally Alexander v. State, supra. Inasmuch as it is highly unlikely that this situation will arise again upon a retrial of the case, we find it unnecessary to address this enumeration of error.

Judgment reversed.

Carley, P. J., and Beasley, J., concur in Divisions 2, 3 and 4 and in judgment.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.


text:
    A91A1830.
    WILLIAMS v. THE STATE.
    (415 SE2d 331)
   Birdsong, Presiding Judge.

Willie James Williams appeals his conviction for violation of the Georgia Controlled Substances Act by selling cocaine. He alleges the trial court erred by denying his motion for a mistrial because a State’s witness impermissibly put Williams’ character in issue. Held:

The transcript shows that while answering a question by the prosecutor, a deputy testified that “Willie James Williams has been known to me a long time as being a dealer. . . .” Williams’ counsel promptly objected and sought a mistrial. At the request of the prosecutor, however, the motion was perfected and formally denied later.

The transcript also shows the trial court immediately sustained Williams’ objection and stated in open court: “[Deputy], the last testimony you gave, the jury cannot consider that, and I’ll specifically direct the jurors to disregard his last statement. It’s inadmissible evidence, and I do sustain that objection. Disregard that statement altogether.”

The deputy’s testimony was so unresponsive, irrelevant, and inadmissible that the prosecutor did not even argue for its admissibility. Additionally, this deputy was a certified, experienced law enforcement officer. Although by now such law enforcement officers should know better than to blurt out inadmissible matters, prosecutors have the responsibility to “counsel their witnesses, especially law enforcement officers, to avoid extraneous and inadmissible outbursts.” Boyd v. State, 146 Ga. App. 359-360 (246 SE2d 396). This is the kind of outburst held previously to constitute reversible error. See, e.g., Robinson v. State, 192 Ga. App. 32, 35 (383 SE2d 593); Boyd v. State, supra.

The transcript, however, shows that Williams’ counsel first introduced evidence of Williams’ prior drug sales by asking the person who bought the drugs about other purchases. “Q: You’d bought cocaine from him before? A: Yeah. Q: A lot of times? But never pawned anything with him? A: No.” Thus, while this questioning does not excuse or allow the objectionable testimony by the deputy, it is a factor for the trial court to consider when deciding whether a mistrial was required.

Whether to grant a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). Therefore, considering the objectionable testimony in the context of the earlier questioning by Williams’ counsel and the prompt remedial action by the trial court, we find no abuse of discretion.

Decided February 10, 1992.

William K. Blackstone, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Beasley, Judge.

text:
    A91A2059.
    SPENCER v. LAMAR COUNTY BOARD OF TAX ASSESSORS.
    (415 SE2d 332)
   Beasley, Judge.

Spencer appeals the dismissal of an appeal to the superior court from a decision of the county board of equalization.

In September 1990, Spencer notified the board that he was appealing the tax assessments of tracts of land identified in the Tax Digest of Lamar County as “parcels 083-001, 066-005, 066-003, being in and around the Sugar Hill Farms area.” The first two tracts are owned by Spencer individually, and tract 66-003 is owned by Sugar Hill Farms, Inc., of which Spencer is president and majority shareholder. The board upheld the valuations of tracts 83-001 and 66-003. Spencer appealed to the Lamar Superior Court. The notice of appeal was filed in superior court on January 2, 1991, and numbered 91-B-2.

Later that month, Spencer’s attorney’s law firm was retained as county counsel, resulting in the withdrawal from the case of the attorneys on both sides. The board’s present counsel filed an entry of appearance on February 11.

Spencer’s present counsel filed their entry of appearance on March 7, along with a demand that Case No. 91-B-2 be placed upon the civil trial calendar for the first term of court following the date of filing of the appeal, as required by OCGA § 48-5-311 (f) (4) (A). Following the filing of Spencer’s notice of appeal on January 2, the first term for civil jury cases began on Monday, March 4. See OCGA § 15-6-3 (18).

On March 22, Spencer filed a motion for a continuance on grounds that he had been out of the country for much of February, which, combined with counsel’s withdrawal from the case, had resulted in the failure to file a timely trial demand. Pursuant to OCGA § 9-11-17 (a), he also filed a motion to add Sugar Hill Farms, Inc., as the real party in interest in the appeal involving its tract.

The board moved to dismiss the appeal as to Sugar Hill’s tract because a timely notice of appeal was not filed by the true owner and to dismiss the entire appeal for failure to timely file it.

The court held that it did not and could not acquire jurisdiction over the appeal involving Sugar Hill’s tract because it had not been made a party to the appeal within the 30-day period for filing a notice of appeal, and the notice of appeal as filed did not state that Spencer was acting in a representative capacity. For these reasons, the court denied Spencer’s motions, granted the board’s motion, and dismissed the entire appeal.

1. The court erred in denying Spencer’s motion to add Sugar Hill as a party appellant pursuant to OCGA § 9-11-17 (a), which provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” See Small Business Administration v. Desai, 193 Ga. App. 852, 853 (1) (389 SE2d 372) (1989).

The initial question is whether OCGA § 9-11-17 (a) applies in an appeal from the board of equalization to superior court under OCGA § 48-5-311 (f).

Such an appeal is “a de novo action,” OCGA § 48-5-311 (f) (3), although the requisites for prosecuting an appeal and filing a complaint under OCGA § 9-11-8 are different. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726 (1) (279 SE2d 223) (1981). An appeal from the board of equalization to superior court is a “special statutory proceeding.” Ibid. The CPA “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of [the CPA] governing . . . joinder of parties and causes, making parties . . . shall apply to all such proceedings.” OCGA § 9-11-81. See Desai, supra. Thus, OCGA § 9-11-17 (a) applies to special statutory proceedings, since OCGA § 9-11-17 (a) is a provision of the CPA governing “joinder of parties.” There is no conflict between OCGA § 9-11-17 (a) and the provisions of OCGA § 48-5-311 (f). See Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473, 474 (3) (246 SE2d 479) (1978).

The next question is whether the failure of the notice of appeal to name Sugar Hill as a party, or to denote that Spencer was acting in a representative capacity, was a defect of such magnitude as to have rendered the notice of appeal a nullity and prevented the superior court from acquiring jurisdiction. Spencer did act as Sugar Hill’s agent in representing it in contesting the assessment of tract 66-003 in the administrative proceedings, and no one complained. As such, he filed timely notice that the board’s ruling with respect to tract 66-003 was being appealed. See OCGA § 48-5-311 (f) (2). Compare Barland, Co. v. Bartow County Bd. of Tax Assessors, 172 Ga. App. 61 (322 SE2d 316) (1984). Still no one objected.

The court should have allowed Spencer to amend this defect by adding Sugar Hill Farms, Inc. as a party, as authorized by OCGA § 9-11-17 (a). He initiated the correction of the defect, not “after objection.” He had represented the corporation in the proceedings as agent up to that point. The focus of the dispute was the property, the res, not who the taxpayer was. Mundy, supra, is supportive. It holds that a notice of appeal which fails to specifically state the grounds of appeal, as required by OCGA § 48-5-311 (f) (2), can be amended prior to judgment to perfect the appeal, as authorized by OCGA § 5-6-48 (b).

2. It was error to fail to consider Spencer’s motion for continuance on its merits.

OCGA § 48-5-311 (f) (4) (A)’s requirement that the appeal be heard before a jury at the first term following the filing of the appeal “ ‘ “concerns and affects both the public interest and the interest of the taxpayer. The public has an interest in the proper administration of the revenue laws and the solvency of its fisc, while the taxpayer is entitled to know promptly and precisely the extent of his tax liability.” ’ ” Haldi v. DeKalb County Bd. of Tax Assessors, 178 Ga. App. 521, 523 (1) (344 SE2d 236) (1986); DeKalb County Board of Tax Assessors v. Stone Mountain Ind. Park, 147 Ga. App. 503, 504 (249 SE2d 318) (1978). Those cases recognize that the burden is on the appealing party to have the action tried at the first term, but also that a failure will not work if “reasonable excuse” or “excusable delay” is shown. Whether that has been shown addresses itself to the discretion of the trier of fact.

The superior court had discretion in the matter but erroneously concluded that it did not. Consequently, the judgment is reversed with direction that the court rehear the motion and pass upon its merits. Harrington v. Frye, 116 Ga. App. 755, 756 (159 SE2d 84) (1967).

Judgment reversed and case remanded with direction.

Carley, P. J., and Judge Arnold Shulman concur.

Decided February 10, 1992.

Mullins & Whalen, Andrew J. Whalen III, Newton M. Galloway, for appellant.

George, Trammell & Bartles, William P. Bartles, for appellee.


text:
    A91A2115.
    MILLER v. THE STATE.
    (415 SE2d 701)
   Judge Arnold Shulman.

The appellant brings this appeal from his convictions of two counts of aggravated assault.

1. The appellant contends on appeal that he did not receive effective assistance of counsel during the trial. The appellant’s trial counsel filed a notice of appeal on September 14, 1990; and the appellant’s current counsel did not begin representing him until sometime thereafter. Consequently, the appellant cannot be deemed to have waived this ground for appeal. See generally Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989). Accordingly, because the trial court has not yet had an opportunity to rule on the ineffectiveness of counsel claim, we remand the case for an evidentiary hearing on this issue. See Brown v. State, 199 Ga. App. 856 (1) (406 SE2d 516) (1991).

2. The appellant abducted a third victim, Crowe, in Newton County and forced him at gunpoint to “drive to Florida.” Approximately one hour after the abduction the appellant caused Crowe to stop at a convenience store located in Henry County, and there Crowe overpowered the appellant and escaped. The appellant contends that the admission of Crowe’s testimony as to the events which occurred in Newton County impermissibly placed .his character into evidence because it involved testimony about a crime for which he was not on trial. “‘[I]f the separate crime was committed as part of the same transaction as that for which the accused is being tried, and forms a part of the res gestae’ it is admissible. . . .” Presley v. State, 177 Ga. App. 611, 613 (2) (a) (340 SE2d 253) (1986). Under the circumstances, the alleged similar transaction evidence was part of the res gestae of the crimes charged. Consequently, this enumeration affords no basis for reversal.

3. The appellant contends that the evidence was insufficient to support the convictions because both of the victims of the alleged assault testified that they believed, but were not absolutely positive, that the appellant was the perpetrator. However, there was additional testimony which showed that the appellant committed the crimes. First, a police officer testified that he witnessed the appellant point a gun at these victims. Additionally, the appellant acknowledged that he had approached the victims as he was running away from the police, although he denied pointing his gun at them and stated that he could not recollect whether he had made a demand for their car keys. “ ‘The weight of the evidence and the credibility of witnesses are questions for the triors of fact.’ ” Arnold v. State, 193 Ga. App. 206, 207 (1) (387 SE2d 417) (1989). Under the circumstances, we hold that the evidence was sufficient to enable a rational trier of fact to find the appellant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 10, 1992.

James P. Brown, Jr., Joan E. R. Risher, for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

Judgment affirmed with direction.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0063.
    SCOTT et al. v. THOMPSON et al.
    (415 SE2d 508)
   McMurray, Presiding Judge.

This is the third appearance of this case before this Court. See Scott v. Thompson, 193 Ga. App. 487 (388 SE2d 371), affirmed Thompson v. Scott, 260 Ga. 164 (393 SE2d 447) and Scott v. Thompson, 201 Ga. App. 443 (411 SE2d 508). Following the first appeal in this case, on June 20, 1990, the state court entered an order pursuant to the appellate decisions which certified a judgment of $250,000 in favor of plaintiffs as final pursuant to OCGA § 9-11-54 (b) and directed the clerk of that court to issue a writ of fieri facias in that amount in favor of plaintiffs and against defendants. Prior to the conclusion of the then pending May term of court, defendants moved the state court to set aside, correct, or otherwise revise the judgment. The state court’s ruling on this motion resulted in an order entered November 26, 1990, which established proportional liabilities of the various defendants and in this respect superseded the judgment of June 15, 1990, filed June 20, 1990. Following a jury trial, a succession of judgments was entered, the final one, entered February 19, 1991, being appealed in the second appearance of the case before this Court.

The judgment entered February 19, 1991, denied plaintiffs any recovery whatsoever for capital gains, interest, and attorney fees from defendants Marett, Larry B. Thompson, Linda Thompson, Machamer, Surface, and Moon. The judgment also provided that: “Supersedeas is hereby granted by this Court to the enforcement of the November [26], 1990, Judgments, pending ultimate resolution of these issues in the appropriate appellate forum. Plaintiffs shall not attempt to enforce by any means the November [26], 1990 judgments.until [ultimate] resolution of these issues by the appellate courts, and any filing of the November [26], 1990 judgments on any general execution docket shall not operate as a lien until these matters are ultimately resolved by the appropriate appellate courts.”

Thereafter, while the second appeal in this case was pending before this Court, such appeal being in part from the judgment entered February 19,1991, defendants filed their “MOTION TO CLARIFY JUDGMENT” complaining that plaintiffs were insisting on payment of the November 26, 1990 judgment and seeking a ruling that the plaintiffs were in direct contravention and contempt of the trial court’s order entered February 19, 1991. The defendants sought clarification of the effect of the November 26, 1990 judgment in light of the above quoted language of the judgment entered February 19, 1991.

On August 29, 1991, the trial court entered an order repeating in substance the declarations contained in the February 19, 1991 order that the November 26, 1990 judgment not operate as a lien against any property until ultimate resolution of the case by the appellate courts. The August 29, 1991 order also declared that “Plaintiffs shall henceforth be in contempt of this Court’s Order in the event that they insist upon payment of any of the November [26], 1990 Judgments prior to the appellate courts of this State declaring that the November [26], 1990 Judgments are valid and enforceable.” Additionally, plaintiffs were ordered to cancel fieri facias filings in any general execution dockets and one of the defendants was ordered to place certain funds in the registry of the clerk of the trial court pending appellate resolution of the validity of the November 26, 1990 judgment. Plaintiffs appeal from the trial court’s order entered August 29, 1991. Held:

1. The order being appealed, as well as the similar provisions which preceded it in the judgment of February 19, 1991, constitute an order of supersedeas as to the judgment of November 26, 1990. This order of supersedeas does not alter or modify any judgment of the trial court, but serves merely to suspend the efficacy of the judgment of November 26, 1990. While there has been no appeal from the judgment of November 26, 1990, issues remain in the case sub judice as to the effect of the “COVENANT NOT TO SUE & NOT TO ENFORCE JUDGMENT,” executed by plaintiffs and four of the original ten defendants, upon the obligations of the remaining defendants under the November 26, 1990 judgment. We did not reach these issues in the second appeal of the case sub judice because of our reversal of the judgment of February 19, 1991.

Decided February 10, 1992.

Stevens & Gerson, Ronald S. Stevens, for appellants.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Mark A. Johnson, for appellees.

While it is true that due to the absence of an appeal from the November. 26, 1990 judgment, there is no supersedeas in regard to this order under the provisions of OCGA §§ 5-6-46 and 5-6-47, such does not preclude an order of supersedeas by the trial court pursuant to its discretion under OCGA §§ 15-6-9 and 15-7-43. In view of the allegations of defendants that the judgment of November 26, 1990, has been satisfied by novation, composition, and release, an order of supersedeas was an appropriate response by the trial court in order to prevent an abuse of the process of the trial court pending the resolution of these issues. See 83 CJS, Supersedeas, §§ 1 and 3. In view of the peculiar facts and circumstances of the case sub judice, we find no abuse of the trial court’s discretion in entering an order of supersedeas since irreparable harm might result in the absence of the trial court’s order. Biggers v. Hope, 176 Ga. 141 (167 SE 176); Montgomery v. King, 125 Ga. 388, 391 (54 SE 135).

2. Furthermore, we find no harm to plaintiffs resulting from the trial court’s failure to afford plaintiffs the notice prescribed under OCGA § 9-11-6 (d). The trial court conducted a telephone conference hearing on the same day defendants’ motion was filed. This Court has previously noted that the five-day service rule of OCGA § 9-11-6 (d) “is not a hard and fast one.” Burger Chef Systems v. Newton, 126 Ga. App. 636, 639 (191 SE2d 479). A violation of OCGA § 9-11-6 (d) is not a cause for reversal unless harm is shown. Walton v. Datry, 185 Ga. App. 88, 91 (363 SE2d 295). In the case sub judice, plaintiffs have failed to show any harm resulting from the procedure followed by the trial court. Plaintiffs’ counsel was given notice of the hearing on defendants’ motion and did not appear. The only objection raised by plaintiffs as to the substance of the trial court’s order is a legal issue: The authority of the trial court to enter such an order. Plaintiffs cannot assert that they were surprised by the issue raised nor contend that they did not have ample time to research it as the order appealed does not vary in substance from the supersedeas provisions contained in the judgment of February 19, 1991.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0332.
    MOTES et al. v. LOVE et al.
    (415 SE2d 334)
   McMurray, Presiding Judge.

Appellees Helen Love and Warren Love petitioned to adopt two children of their son. The petition also sought the termination of visitation rights previously granted the maternal grandparents. The appellees’ son and his former wife, the natural mother of the children, surrendered all of their rights in the children to appellees for the purpose of enabling them to adopt the children. Appellants Joe Motes and Margaret Motes, the maternal grandparents of the children, filed an objection to the adoption, seeking dismissal of appellees’ petition for adoption and that they be permitted to file a petition for adoption of the children. Appellants appeal the grant of appellees’ petition for adoption. Held:

1. Appellants contend that the superior court erred in granting the adoption, given appellee Helen Love’s violent tendencies and unstable condition. However, the evidence upon which these contentions are predicated is not uncontroverted. The question of the weight to be attributed to the conflicting evidence was a matter for the superior court. As an appellate court, we may examine only the sufficiency of the evidence and having done so, we find that there is sufficient evidence to authorize the superior court’s resolution of the factual conflict in favor of Mrs. Love. Venture Design, Ltd. v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (1) (398 SE2d 781).

Appellants also contend that the superior court erred in refusing to exercise its discretion under OCGA § 19-8-16 (b) and not ordering more extensive investigations of the parties and in refusing to appoint a guardian ad litem for the children pursuant to OCGA § 19-8-17 (c). First, we note that the record shows that the superior court requested an investigation concerning appellees’ petition for adoption and that the transcript of the adoption hearing shows that a report by the Department of Human Resources was considered by the superior court, albeit the report is not included in the record on appeal. The absence of the report from the record does not suggest error. Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918).

At the adoption hearing, appellants presented the testimony of Mrs. Motes and of a neighbor. (Interestingly, appellants and appellees reside only one residence apart with this hapless witness residing between them.) Appellants have failed to suggest any specific evidence which was omitted from the superior court’s consideration due to the absence of a further investigation. Nor have appellants directed our attention to any matter in which the interest of the appellees and the children are in conflict. While appellants requested further investigation by the superior court, the record fails to show any abuse of discretion on the part of the superior court in denying these requests.

Decided February 10, 1992.

Edward P. Gibbons, Birney O. Bull, for appellants.

Adam P. Cerbone, for appellees.

2. Appellants also contend that the court erred in failing to continue their visitation rights previously awarded to them pursuant to OCGA § 19-7-3 in the divorce decree of the children’s parents. In this regard, we note that the superior court remarked shortly before the conclusion of the adoption hearing that “[i]f I grant the adoption, I can’t make the adopting parents allow the [appellants] to have visitation rights.” Perhaps this explains the court’s failure to address the visitation issue, in either the decree of adoption or in the order denying appellants’ motion for reconsideration, despite appellants’ attempts to invoke a ruling.

Under the current statutory scheme (following the changes enacted in Ga. L. 1990, p. 1572), visitation may be granted to grandparents, whose tie to the adopted child is severed by the adoption, if the child is adopted by the child’s blood relative. OCGA §§ 19-7-3 and 19-8-15. This provision for visitation by grandparents, where the adoption is by a blood relative, is an exception to the provisions of OCGA § 19-8-19 (or the former OCGA § 19-8-14 which contained similar provisions) which sever all former relationships of the adopted child. See Campbell v. Holcomb, 193 Ga. App. 474, 475 (388 SE2d 65); Murphy v. McCarthy, 201 Ga. App. 101 (410 SE2d 198).

The appellees rely upon the decision in Mitchell v. Erdmier, 253 Ga. 335 (320 SE2d 163), for authority that the above noted exception is not viable. However, that case was decided prior to significant changes in the statutory scheme. See particularly Ga. L. 1988, p. 864 and Ga. L. 1990, p. 1572.

Thus, the superior court possessed the authority to grant to the appellants “reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child. There shall be no presumption in favor of visitation by any grandparent; and the court shall have discretion to deny such visitation rights. . . .” OCGA § 19-7-3 (c). As it is apparent that the superior court did not recognize this authority and as appellants have preserved this issue by attempting to invoke a ruling on this issue, this case must be remanded to the superior court in order that it may rule on appellants’ request for visitation rights.

Judgment affirmed and case remanded with direction.

Sognier, C. J., and Cooper, J., concur.