text:
    A98A1405.
    WALLS v. THE STATE.
    (504 SE2d 471)
   Eldridge, Judge.

The defendant, Dwayne Walls, appeals from the denial of his motion for new trial following his conviction for armed robbery and possession of a firearm during the commission of a felony. We affirm.

The facts, viewed in the light most favorable to the verdict, are as follows: at approximately 3:00 a.m. on January 26, 1997, a sales clerk was working alone at Lil’ Champ convenience store in Ogeechee, Chatham County. The defendant entered the store, picked up a bag of candy, and walked to the cash register. He leaned forward, as if looking at the lottery ticket display. When the clerk leaned forward to assist the defendant, he grabbed her vest and pulled out a gun from under his clothing. At this point, the defendant’s face was approximately one foot away from the clerk’s face. The defendant shoved the gun into the clerk’s face, ordered her to give him the money from the cash register, then pushed her backwards. She pulled out the register drawer, set it on the counter, and let him take the money. The defendant left the store, and the clerk immediately activated the alarm. Another man and his wife came into the store minutes later; the man stayed with the clerk while his wife called the police. Officers Belinda Walker and David Schulz of the Chatham County Police Department arrived within minutes; Officer Walker interviewed the clerk, who was able to give a general description of the robber.

Two days later, on January 28, 1997, Officer R. Berger of the Port Wentworth Police Department stopped a car driven by Tommy Glenn Thomas for driving on the wrong side of the road and DUI. The defendant was a passenger in the car. Officer Berger arrested Thomas and transported him to the county detention center, but he did not detain the defendant.

On the way to the detention center, Thomas offered to “make a deal” with the police in an effort to avoid arrest. He identified his passenger (the defendant) by name and told Officer Berger that, earlier the same evening, the defendant had admitted to robbing a Lil’ Champ convenience store. Thomas testified that, prior to this admission, he was not aware that the store had been robbed. According to Thomas, the defendant also said that he had shaved his head in order to get “a new identity” so as to “avoid recognition.” Officer Berger passed this information along to a Chatham County detective, and a “BOLO” (“Be on the lookout”) was issued for the defendant. Thomas was subsequently charged in Chatham County with DUI and driving on the wrong side of the road, but he moved to Louisiana and failed to appear to answer the charges. The court issued a warrant for his arrest.

Four days after the robbery, Officer Walker presented a photo-spread to the clerk, who identified the defendant as the man who robbed the store. Both the clerk and the detective testified that the clerk was certain that the defendant was the robber.

The defendant was indicted for armed robbery (OCGA § 16-8-41) and possession of a firearm during the commission of a felony (OCGA § 16-11-106). He was tried by a jury on September 30-31, 1997 and found guilty on both counts. The defendant was sentenced to consecutive terms of twelve and five years of incarceration. Following the denial of his motion for a new trial, he appeals his convictions.

1. In his first enumeration of error, the defendant contends that the trial court erred in refusing to charge the jury regarding the prosecution’s alleged grant of immunity or leniency towards witness Tommy Glenn Thomas in exchange for his testimony in this case. This contention has no merit.

Following his January 28,1997 arrest for DUI, Thomas moved to Louisiana. He failed to answer the Chatham County charges and an arrest warrant was issued. In this case, the trial court determined that Thomas was a material witness and petitioned the Louisiana court to compel Thomas to appear as a witness. See OCGA § 24-10-90 et seq. The petition promised that, during his trip to Georgia to appear as a witness in this case, Thomas would be given “protection from arrest or the service of process, civil or criminal, in connection with matters which arose before entrance into [Georgia] pursuant to said order.” The La Fourche Parish, Louisiana court granted the State’s petition and ordered Thomas to appear in this case.

Under the State’s petition and the Louisiana court’s order, Thomas could not be arrested under the previously issued warrant during this trip to Georgia. There was no promise by the prosecution that, as a result of Thomas’ testimony in this case, the State would dismiss pending criminal charges against Thomas; would grant him leniency; would accept a more favorable plea bargain; or would not arrest Thomas during any subsequent trip to Georgia. As such, the requested charge was not supported by any facts or otherwise adjusted to the evidence, and there was no error in the trial court’s refusal to give such charge. Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33) (1997); Kelly v. State, 212 Ga. App. 278, 282 (3) (442 SE2d 462) (1994); Pace v. State, 201 Ga. App. 475, 476 (2) (411 SE2d 361) (1991).

2. The defendant also contends that the trial court erred in refusing to give two charges based upon OCGA §§ 40-6-391 and 40-6-392. Charge no. 8 stated that, if the jury found that Thomas’ blood alcohol level was over .08 percent when he was stopped for DUI, one could “infer that the witness was under the influence of alcohol.” See OCGA §§ 40-6-391 (a) (1); 40-6-392 (b) (3). The defendant argues that the jury should have been able to infer that Thomas’ intoxication at the time of his arrest for DUI played a role in his memory of the defendant’s alleged admissions regarding the robbery.

However, whether or not Thomas was, in fact, under the influence of alcohol as a matter of law is not an issue in this case. The only relevance of Thomas’ alleged intoxication goes to the weight and credibility of his testimony. The jury received comprehensive charges on their responsibilities regarding such determination. See OCGA § 24-9-80. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. . . . [T]he failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal.” (Citations and punctuation omitted.) Douglas v. State, 228 Ga. App. 368, 370 (4) (491 SE2d 821) (1997); Lindley v. State, supra at 342-343; Shilliday v. Dunaway, 220 Ga. App. 406 (469 SE2d 485) (1996); Pace v. State, supra at 476.

3. In addition, there was no error in the trial court’s refusal to give requested jury charge no. 9, which stated that it is unlawful to drive a car when one has an alcohol concentration of .10 percent or greater. OCGA §§ 40-6-391 (a) (5); 40-6-392 (b) (4). At the time of this trial, Thomas had not been convicted of driving under the influence, so that the illegality of his alleged drunken driving could not be used to impeach his testimony. See OCGA § 24-9-84. Accordingly, evidence of Thomas’ drunken condition is relative only to the issue of his credibility at the time he made his statements to Officer Berger. Under the same analysis as in Division 2, supra, there was no error.

4. The defendant also asserts that the evidence was insufficient to support the verdict and specifically attacks the credibility of the testimony given by the store clerk and by Thomas. However, the weight of evidence and the credibility of witnesses are matters for the jury’s determination; this Court is concerned only with the sufficiency of the evidence. OCGA § 24-9-80; Grant v. State, supra at 464 (1). After reviewing the record in a light most favorable to the jury’s verdict, we conclude that the evidence was sufficient for a rational finder of fact to find the defendant guilty beyond a reasonable doubt of the offenses of armed robbery and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant v. State, supra at 464 (1).

5. Finally, the defendant contends that the trial counsel’s decision not to call an alibi witness amounted to ineffective assistance of counsel, thereby entitling him to a new trial under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). However, there is no merit to this contention, as the transcript reveals that the defendant, himself, decided not to call the witness.

Decided June 26, 1998

Reconsideration dismissed July 15, 1998 and reconsideration denied July 28, 1998

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Following the close of the State’s case, defense counsel notified the court that an alibi witness had come forward, but counsel expressed concerns that the wdtness’ testimony might be impeached or contradictory to other defense evidence. Counsel then stated on the record that he had “gone over all these strategic concerns with my client [the defendant] and we have talked it over, and he has elected not to call an alibi witness.” (Emphasis supplied.) The trial court then put the defendant on the stand under oath and confirmed that it was the defendant’s decision not to call the alibi witness. Accordingly, the defendant’s assertion of ineffective assistance of counsel fails.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       Further, even if Thomas had been convicted of drunken driving, it is not a crime of moral turpitude, and therefore, such misdemeanor conviction could not be used for impeachment. OCGA § 24-9-84; Hall v. Hall, 261 Ga. 188 (402 SE2d 726) (1991).


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0796.
    DENT v. THE STATE.
    (506 SE2d 641)
   Judge Harold R. Banke.

Shawn Terrez Dent was convicted of possession of cocaine with intent to distribute. He enumerates four errors on appeal.

This case arose after the arresting officer stopped Dent for driving -with a broken tail light. Morris v. State, 228 Ga. App. 90, 91 (1) (491 SE2d 190) (1997) (evidence on appeal is viewed in a light most favorable to the verdict). The officer decided to call in a drug dog after recognizing both Dent and his passenger, Dent’s then father-in-law, due to their prior contact wdth law enforcement.

Upon the dog’s arrival, it circled the empty car. Twice it responded to the driver’s door. At that point, the dog’s handler looked into the heavily tinted -window and saw several rocks of crack cocaine sitting on the seat. Both Dent and his passenger were immediately arrested. Further exploration revealed two baggies containing more cocaine, two portable telephones, and razor blades. Held".

1. Dent argues that the evidence was insufficient to sustain his conviction because (1) his father-in-law pleaded guilty and admitted the cocaine was his alone and (2) the officers’ testimony regarding the exact location where they spotted the cocaine was inconsistent. In effect, Dent seeks a reweighing of the evidence and a reassessment of the witnesses’ credibility. This we cannot do. Blackwell v. State, 229 Ga. App. 452, 455 (3) (494 SE2d 269) (1997). On appeal, we review the evidence solely for sufficiency. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

The record shows that 2.3 grams of cocaine were found in the car, most of it in two plastic bags. One of them had a hole in it from which its contents leaked. A small amount of cocaine was discovered in Dent’s pocket. Investigators also removed $250.78 from Dent’s front trouser pocket and $1,334 from his wallet. An open box of single-edged razor blades with one blade left in it was found in Dent’s ashtray. This evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the elements of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. at 319-320; see Stephens v. State, 219 Ga. App. 881, 882 (1) (467 SE2d 201) (1996) (physical precedent only).

2. Dent maintains that his trial counsel was ineffective for failing to obtain the transcript from his commitment hearing in order to impeach the arresting officers’ inconsistent testimony on the location of the cocaine in the car.

To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and but for the deficiency there existed a reasonable probability the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). Moreover, we need not inquire into counsel’s alleged deficiency, absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

The gist of Dent’s argument is that at trial the two investigating officers placed the cocaine found on the car seat closer to the driver’s side than they did at the commitment hearing. However, we find that the investigating officers’ testimony at the commitment hearing did not substantially diverge from their testimony at trial. Moreover, any effect this evidence might have had was mitigated at trial by Dent’s father-in-law’s testimony that the cocaine belonged solely to him and that Dent was merely counseling him about drug abuse on the night at issue. In any event, cocaine was found in Dent’s pocket. Thus, we cannot say that there was a reasonable probability that use of the transcript at issue would have affected the trial’s outcome.

We decline to reach Dent’s contention that his counsel should have requested a charge on OCGA § 24-9-85 because this issue was not enumerated as error. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (enumerations may not be enlarged in briefs).

Decided July 28, 1998.

Elizabeth Lane, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

3. Dent maintains that his trial counsel was ineffective for failing to move to suppress evidence discovered as a result of the drug dog’s efforts. He claims the search was conducted without probable cause.

The record shows that Dent consented to the search. Moreover, once the father-in-law vacated the vehicle, the cocaine on the seat was in plain view. Bedingfield v. State, 219 Ga. App. 248, 249 (2) (464 SE2d 653) (1995). Moving to suppress the evidence in light of these circumstances would have been futile. Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997) (failure to file a frivolous motion provides no basis for a finding of deficiency).

4. We must reject Dent’s contention that the admission of similar transaction evidence requires reversal. He maintains the prior transaction was not sufficiently similar.

The prior act, which was introduced to show intent, bent of mind and motive, occurred in the same neighborhood approximately four years before the offense at issue. Dent pleaded guilty to possession after officers who stopped him based upon information provided by an informant discovered a small amount of cocaine on his car seat. The prior transaction involved the same type of contraband, being transported by car on the same street, and the evidence was introduced for purposes deemed appropriate. In these circumstances, we cannot say the trial court clearly erred in admitting the prior act. Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998); see Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A0872.
    STEWART v. THE STATE.
    (504 SE2d 770)
   Judge Harold R. Banke.

Rodney Shane Stewart was convicted of driving under the influence and driving with a suspended license. He enumerates three errors on appeal.

This case arose after a late night one-car accident which injured both of the vehicle’s occupants. Morris v. State, 228 Ga. App. 90, 91 (1) (491 SE2d 190) (1997) (evidence on appeal is viewed in the light most favorable to the verdict). Emergency medical personnel transported the men to a local hospital before the police commenced an investigation.

After arriving at the scene, the arresting officer observed that the car had missed a curve, hit a sign and a culvert, and vaulted over a driveway. The steering wheel was bent, and the driver’s side windshield was broken and bore a starburst pattern about halfway up on the passenger side of the steering wheel. Blood had spilled onto the steering wheel, the driver’s seat, and door handle.

The officer continued his investigation at the hospital where he interviewed Stewart and his passenger. Both men denied driving the car, and both were intoxicated. Stewart had suffered head injuries which had been bleeding. In contrast, the passenger’s injuries were more limited and appeared less severe than Stewart’s. Stewart, who smelled of alcoholic beverages, slurred his speech, and had bloodshot eyes, refused to perform field sobriety tests or undergo a blood test. Based upon these observations, the officer determined that Stewart had been driving and arrested him. Held:

1. Stewart maintains that the trial court erred by refusing to allow the jury to view the wrecked car, which had been brought to the courthouse. Pretermitting the viability of the alleged error, we fail to see how Stewart was harmed by the ruling inasmuch as the trial court admitted photographs of the vehicle. See Davis v. State, 225 Ga. App. 564, 570 (7) (484 SE2d 284) (1997); see also Williams v. State, 202 Ga. App. 728, 729 (3) (415 SE2d 327) (1992).

2. Stewart claims the trial court erred in allowing the arresting officer to draw an expert conclusion on the ultimate issue, the identity of the driver, a matter not beyond the jury’s ken. Because Stewart failed to assert this objection at trial, it is waived. Maddox v. State, 227 Ga. App. 602, 604 (3) (490 SE2d 174) (1997); compare Coleman v. State, 257 Ga. 313, 314 (357 SE2d 566) (1987).

3. Stewart argues that the denial of his motion for directed verdict of acquittal requires reversal. We disagree.

When the evidence, viewed in the light most favorable to the verdict, is sufficient to permit a jury to find each essential element of the crimes charged beyond a reasonable doubt, a directed verdict is inappropriate. Rautenberg v. State, 178 Ga. App. 165, 167 (1) (342 SE2d 355) (1986). In considering that issue, we are prohibited from reweighing the evidence or reassessing the witnesses’ credibility. Blackwell v. State, 229 Ga. App. 452, 455 (3) (494 SE2d 269) (1997).

Notwithstanding Stewart’s contention to the contrary, the arresting officer’s opinion was not the only evidence indicating that Stewart was the driver. It is undisputed that during the wreck Stewart sustained a bloody gash in his forehead. Several witnesses testified about the windshield’s condition, and the jury examined photographs of it. Both the arresting officer and the tow truck driver testified of blood on the driver’s seat. It is undisputed that Stewart exhibited signs of intoxication. This evidence was sufficient to support the verdict. As the sole judge of credibility, the jury was authorized to disbelieve Stewart’s theory that when the wreck occurred, the driver, a man known only by the name of “Buzz,” ran away before anyone saw him, leaving Stewart and his passenger, a life-long friend, injured and alone in Stewart’s mother’s Camaro. See Moore v. State, 268 Ga. 420, 421 (1) (489 SE2d 842) (1997).

Decided July 28, 1998.

L. Scott McLarty, for appellant.

Robert W. Lavender, District Attorney, Marsha L.Dooley, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0891.
    FIELDS v. THE STATE.
    (504 SE2d 777)
   Judge Harold R. Banke.

Thomas Fields was convicted of enticing a child and two counts of child molestation. He enumerates three errors on appeal.

The 11-year-old victim lived with his grandmother next door to Fields. At Fields’ request, the victim often played at Fields’ home, where he was supplied with cake, ice cream and watermelon.

One weekend, while the victim was visiting his mother, she noticed he was having trouble walking. He complained of pain, but refused to let her examine him. Ultimately, he permitted his mother’s fiance to inspect the source of the pain, what appeared to be burns on and near his genitals. The mother took the victim to the hospital. The examining physician asked the victim whether he had been with a little girl, and the boy responded in the negative. After testing the victim for venereal disease, the doctor released him.

Later, the victim confided to his mother that Fields had been “messing” with him. The boy testified that Fields “would stick his hands down into my pants” and touch his penis “or down below it” which would hurt “because his fingernails . . . would sort of scratch and stuff like that.” This occurred after Fields positioned him on the arm of his chair. The boy testified that Fields did this more than ten times. He also recounted a trip he took during which Fields masturbated himself while driving. On another occasion, after Fields teased the victim, asking him to prove he was a boy instead of a girl, the boy pulled down his pants “and showed him.” At that point, Fields stated to his roommate, “He’s a ten-year-old boy and I bet he’s got more hair on his d — k than you do.” Held:

1. Fields alleges that the similar transactions admitted into evidence were not sufficiently similar because they did not involve minor children and were not acts of child molestation by statute at the time they were committed. We disagree.

After a hearing on the admissibility of the similar transaction evidence, the trial court found that the prior acts were similar in that they involved young boys who lived near Fields and all the incidents occurred at Fields’ home after he solicited the victims’ presence. The first similar transaction occurred in 1969 when Fields asked the 14-year-old victim to help him adjust his television, and once inside, he fondled the boy’s penis and then placed it in his mouth. Based on these facts, Fields was convicted of sodomy.

The second similar transaction occurred ten years prior to trial. Fields asked a 14-year-old neighbor to cut his grass, then invited him in, fondled his penis, and orally stimulated it. The victim testified that this happened four or five times.

The rules regarding the admissibility of prior acts have been most liberally extended in the area of sexual offenses, particularly those involving children. Swift v. State, 229 Ga. App. 772, 774 (2) (d) (495 SE2d 109) (1997). It is obvious that the prior acts have a logical connection to the offenses charged in that they show a preference to a certain type of victim, bent of mind, and modus operandi. Id. This is sufficient to warrant their admission.

Fields contends that the first similar transaction which occurred 26 years prior to the crime at issue was too remote in time. Because the evidence was overwhelming and the prior act occurred less than 31 years prior to the crimes at issue, we decline to reverse. Perkins v. State, 224 Ga. App. 63, 66 (3) (479 SE2d 471) (1996); see Gibbins v. State, 229 Ga. App. 896, 899 (4) (495 SE2d 46) (1997) (20 to 29 years is not too remote).

2. Fields maintains that reversal is required due to the admission of irrelevant evidence involving the incident in which the victim, when teased about his gender, voluntarily pulled down his pants. We disagree.

Decided July 28, 1998.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

The admission of evidence objected to as irrelevant lies within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion. Holden v. State, 202 Ga. App. 558, 562 (3) (414 SE2d 910) (1992). The testimony, which was given by the victim and corroborated by Fields’ roommate, was related to sexual activity and was relevant to show Fields’ bent of mind toward sexual activity and reduced inhibitions in the relationship. In light of this reasoning and the nature of the incident itself, we cannot say the trial court abused its discretion.

3. Notwithstanding Fields’ contention that reversal is required due to the victim’s lack of credibility and the absence of physical evidence of molestation, we find that, when viewed in the light most favorable to the verdict, the evidence was sufficient to permit the jury to find all the essential elements of those crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The victim testified that Fields touched his genitals on more than ten occasions and masturbated in front of him. OCGA § 16-6-4 (a). The record also showed that the victim satisfied the age requirements of the crime. Id. From this evidence, a jury could find the elements of OCGA § 16-6-4 (a). Notwithstanding Fields’ position to the contrary, matters of credibility are for the jury. On appeal, we do not reweigh the evidence. Obiozor v. State, 213 Ga. App. 523, 524 (1) (445 SE2d 553) (1994).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Fields’ failure to include the transcript from the similar transaction hearing in the record on appeal would preclude our review had the incomplete record not demonstrated the similarity of the prior transactions. Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991) (where a transcript is necessary for review and the appellant omits it from the record, this Court must assume the decision at issue was correct and affirm); see Smith v. State, 266 Ga. 687, 688 (470 SE2d 436) (1996); Miller v. State, 219 Ga. App. 284 (1) (464 SE2d 860) (1995).


text:
    A98A0987.
    TOLBERT et al. v. MANER.
    (504 SE2d 772)
   Judge Harold R. Banke.

When Rosabell Agnes Glover died intestate in 1995, she was survived by seven of her eight children. A civil action based on Glover’s death was instituted with two distinct claims: one by Glover’s estate and another by her surviving children. The claim asserted on behalf of the estate sought to recover medical expenses, funeral expenses, punitive damages and for Glover’s pre-death pain and suffering. In the other claim, the seven children, Louise Tolbert, Ethel Hickman, Ruth Johnson, Agnes Jenkins, Albertha Gary, Harold Johnson and Ronald Johnson (collectively “Tolbert” or “children”) brought a wrongful death action to recover for the full value of their mother’s life.

Prior to trial, the case was settled. The administratrices and the children agreed that Tyrone Maner, son of the deceased eighth child of Agnes Glover, was entitled to share in the funds obtained by the estate. But the surviving children contested the entitlement of Tyrone Maner to any portion of the funds obtained by their settlement of the wrongful death claim. They contended that the equities of the situation supported recovery by the children but not by a grandchild whose parent, William Maner, had died in 1960, long before the wrongful death occurred. See Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 276 (1) (398 SE2d 271) (1990) (wrongful death statute does not encompass siblings). As a result of the dispute, one-eighth of the recovery for that claim was deposited in an escrow account, and Tolbert instituted the underlying declaratory judgment action.

The trial court considered the underlying facts as presenting an issue of first impression under OCGA § 51-4-2 as revised in 1993. Based on its construction of that statute, the trial court held that Maner, a grandchild, was entitled to share in the wrongful death proceeds with the children. Tolbert appeals the denial of the children’s motion for summary judgment and the grant of summary judgment to Maner. Held:

At issue is whether a descendant of a child who predeceases a parent is entitled to recover in a wrongful death claim brought by the surviving children of the deceased parent. Tolbert contends that the wrongful death statute (OCGA § 51-4-2 (a)) does not authorize a grandchild, such as Maner, to recover. Tolbert claims that because Maner’s father died prior to Glover, a cause of action for wrongful death never accrued to Maner’s father, and so Maner cannot stand in his shoes. We disagree.

The wrongful death action is a creature of statute for no such right existed at common law. Edenfield v. Jackson, 251 Ga. 491, 492 (1) (306 SE2d 911) (1983). Being in derogation of common law, the statute “must be limited strictly to the meaning of the language employed and not extended beyond its plain and explicit terms. [Cit.]” Lovett v. Garvin, 232 Ga. 747, 748 (208 SE2d 838) (1974). In construing this statute, we must give each part of it meaning while avoiding constructions that make some language mere surplusage. Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256 (450 SE2d 233) (1994). All parts of this statute should be harmonized to give sensible and intelligent effect. Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).

The subsection in effect at the time of Glover’s death in pertinent part provides, “Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, between the surviving spouse and the children per capita, and the descendants of children shall take per stirpes.” OCGA § 51-4-2 (d) (1). Subsection (a) states in relevant part, “if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the . . . parent the full value of the life of the decedent, as shown by the evidence.” Thus, where there is a recovery under subsection (a) by the children, as here, the explicit language of subsection (d) (1) clearly authorizes that the descendants of children take per stirpes. OCGA § 51-4-2 (d) (1). Notwithstanding Tolbert’s claim that subsection (d) (1) is triggered only when a child dies during the pendency of a wrongful death action, we cannot assume that the legislature intended anything other than the words it engrafted onto the statute. See Lovett, 232 Ga. at 748. As such, based on a literal reading of OCGA § 51-4-2 (d) (1), we find that Maner is entitléd to a one-eighth share of the wrongful death recovery at issue. Accordingly, the trial court correctly granted summary judgment to Maner and correctly denied the same to Tolbert.

Decided July 28, 1998

Savage & Turner, Brent J. Savage, Robert B. Turner, for appellants.

Lester B. Johnson III, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.

       The pre-1993 version of OCGA § 51-4-2 (d) provided: “The surviving spouse shall hold any amount recovered under subsection (a) of this Code section subject to the law of descents, as if it were personal property descending from the decedent to the surviving spouse and to the children, provided that such recovery shall be equally divided, share and share alike, between the surviving spouse and the children per capita, and the descendants of children shall take per stirpes.”


text:
    A98A1640.
    HAMMOND v. THE STATE.
    (504 SE2d 768)
   Judge Harold R. Banke.

Phillip Hugh Hammond was convicted of voluntary manslaughter, aggravated assault, aggravated battery and possession of a firearm during the commission of a crime. He enumerates three errors on appeal.

This case arose in the wake of Hammond’s April 1997 divorce from the mother of his two daughters, Donna Hammond. During their three-year period of separation and after the divorce, Donna remained in the marital residence, which was located a few hundred feet from Hammond’s mobile home and near Hammond’s parents and his sister and her family.

Donna met the victim in March 1995, after separating from Hammond. She started dating him two or three weeks later and began having sexual relations with him at the end of April. A temporary order reflecting the Hammonds’ pre-divorce settlement agreement included a provision prohibiting the parties from having overnight visitors of the opposite sex when the children were present.

On the night of the offenses, Hammond had driven several hundred miles to deliver a load of wheat straw. He arrived at home and consumed a mixed drink with dinner. Then he telephoned Donna and asked to speak to his children.

The victim arrived at Donna’s home a few minutes before this call with a blood alcohol level of approximately .29 grams. He had spent the previous night with Donna notwithstanding the children’s presence in the home.

After Donna informed Hammond that the girls were asleep, he mentioned the victim’s recent arrival and stated, “I’m tired of keeping him in a place to live and you know you’re not supposed to have overnight guests.” After the call concluded, Donna told the victim, “He’s at it again.”

At that point, the victim called Hammond. Hammond and his ex-wife gave contradictory accounts of the substance of this conversation. She testified that the victim asked Hammond, “Do we have a problem,” and then stated “No, you don’t keep me in a place to live, I’ll meet you in the road and we’ll work it out.” Notwithstanding the conciliatory tenor of this language, Donna subsequently admitted that the victim was “angry.” Hammond testified that the victim stated, “You G — mn son of a b — ch, I’m coming up there to your house in a few minutes, and if you don’t come out, I’m coming in and dragging your g — mn ass out. . . and I’ll f — k you up and I’ll f — k your old lady up and I’ll bust your g — mn house up.”

After hanging up the phone, it is undisputed that the victim headed for the door, but Donna would not let him out. Responding to his protestations, she stated, “No, there’s no sense in this. It’s not worth it.” Ultimately, the victim picked up the 196-pound Donna, moved her away from the door, and sped toward Hammond’s home in his stockinged feet. Rather than changing from her tee-shirt and underwear, Donna immediately followed the victim, begging him not to go. Then she got in her car and followed him the few hundred yards to Hammond’s home, still entreating him to return home.

The victim stopped in Hammond’s driveway and yelled, “Hammond, I’m here.” Donna parked behind him and tried to pull him into her car. Hammond stepped from his front door, carrying a shotgun at his side with the barrel pointing toward the ground. After Hammond approached the victim, the gun was fired, and the victim was mortally wounded.

At the time of the shooting, Donna told a police officer that the victim had grabbed the shotgun and it went off. The officer memorialized this statement in a written report. At trial, however, Donna denied making this statement and testified that when Hammond was face-to-face with the victim, no more than three feet away, he put the gun to his shoulder and shot. Held:

1. The trial court erred in applying Uniform Superior Court Rule 31.6 to exclude testimony that the victim had threatened to kill Hammond two months prior to the offenses. Before defendants asserting a justification defense may present “evidence of relevant specific acts of violence by [a] victim,” Rule 31.6 requires that they provide notice to the State at least ten days prior to trial. Because the evidence at issue involved threats rather than specific violent acts, Rule 31.6 had no application. Notwithstanding the State’s contention to the contrary, a terroristic threat is not an act of violence within the meaning of the rule. See Lowe v. State, 267 Ga. 410, 414 (5) (a) (478 SE2d 762) (1996) (victim’s “threats and menaces” insufficient to show acts of violence); Bennett v. State, 265 Ga. 38, 40-41 (3) (453 SE2d 458) (1995) (victim’s burglary convictions did not constitute acts of violence).

Further, the exclusion of this evidence in the circumstances of this case was error. Where there is a conflict in the evidence as to who is the aggressor, evidence of threats previously made but uncommunicated to the defendant are admissible to corroborate evidence of threats which were in fact communicated. Dixon v. State, 256 Ga. 658, 660 (352 SE2d 572) (1987). This rule clearly applies to the facts in this case. Because this was a very close case with Hammond and his ex-wife offering directly contradictory evidence, we cannot say that the error was harmless.

2. Hammond maintains that the trial court erroneously prevented him from cross-examining his ex-wife about the victim’s admission that he had disarmed a police officer whose gun was pointed at him in a manner similar to Hammond’s version of the facts here. On retrial, this evidence of a prior act of violence by the victim clearly would be admissible assuming Hammond complies with Rule 31.6. See Chandler v. State, 261 Ga. 402, 407-408 (3) (b), (c) (405 SE2d 669) (1991); see also Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993).

Decided July 28, 1998.

Cook & Connelly, Bobby Lee Cook, Hamil & Dickinson, David L. Dickinson, Alan J. Baverman, for appellant.

Garry T. Moss, District Attorney, for appellee.

3. In light of this finding, we need not reach the remaining enumeration. See Billy Cain Ford Lincoln Mercury v. Kaminski, 230 Ga. App. 598, 602 (4) (496 SE2d 521) (1998).

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       Donna first disclosed this evidence during the defense’s proffer outside the jury’s presence in the context of cross-examination of her knowledge of the victim’s criminal record.


author: Johnson, Presiding Judge.

text:
    A98A1645.
    PARKER et al. v. THE STATE.
    (504 SE2d 774)
   Johnson, Presiding Judge.

Roderick Brian Parker and Eugene Herring appeal the trial court’s denial of their motion to suppress evidence of cocaine found during a vehicle search. For reasons which follow, we reverse.

The evidence presented to the trial court was not in dispute. It shows that on June 13, 1996, an officer with the Gwinnett County sheriff’s office stopped a Buick traveling northbound on Interstate 85 for swerving into the emergency lane and moving slower than the flow of traffic.

The officer asked the driver, Herring, to step out of the car and present his driver’s license. Herring explained that he did not have his license. He appeared nervous as the officer questioned him about his destination. A second officer arrived on the scene, and the first officer explained the traffic stop. He noticed, and mentioned to the other officer, that Herring had not asked the reason for the stop, which he thought was unusual. As the officers talked, Herring paced nervously in front of the patrol car.

Parker, the front seat passenger, owned the car. Parker also appeared nervous, and his hands shook when he presented his driver’s license to the officer. Once both men stepped out of the car and the first officer verified their licenses, he informed them that he was going to issue a courtesy warning to Herring for driving without a license and failing to maintain a lane. By way of explanation for this conduct, Herring stated that he was unsure of the speed limit on the highway and that the car had a mechanical problem which caused swaying. Herring also suggested that Parker drive the car for the remainder of their trip. After issuing the courtesy warning, the officer told both men they were free to go.

Having been released, Parker and Herring had already begun walking to the car when the officer stopped Parker and requested his consent to search the car. The officer admitted during his testimony that he asked for consent to search just to see how the men would react and “just for the hell of it.” Parker asked why they wanted to search, and the first officer replied that he was looking for drugs, guns, or other contraband. Parker, after becoming very nervous and apparently looking to Herring for help, declined consent to search. The first officer informed Parker and Herring that they were not under árrest, but that he was going to detain their car until a drug dog could do a search of the vehicle. Herring then stated that he wanted to leave the car and use a phone. An officer radioed for a K-9 unit and for another unit to come and transport the men to the nearest exit.

When the third officer arrived on the scene, the first officer informed him that the three men were not under arrest and were free to go, but that the vehicle was being held for a search and the men wanted to use a phone. The first officer instructed him to keep the men under surveillance in case the search revealed illegal items in the car.

The K-9 unit arrived 15-20 minutes after their request. The drug dog “alerted,” indicating to the officers the possible presence of drugs in the trunk of the vehicle. The police searched the car and found a substance which appeared to be cocaine in a black nylon bag. They instructed the third officer to arrest the three men. Parker and Herring were arrested and charged with violating the Georgia Controlled Substances Act.

In the trial court, Parker and Herring moved to suppress the evidence obtained during the search on the grounds that police lacked reasonable suspicion of criminal activity. Their motion was denied. We granted an interlocutory appeal from that order.

An appellate court reviewing a trial court’s order on a motion to suppress evidence must accept the trial court’s decisions with regard to questions of fact and credibility unless they are clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The reviewing court must also construe the evidence most favorable to the upholding of the trial court’s findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them. Id.

1. Parker and Herring assert that the officers lacked reasonable suspicion to detain them and search their car and the trial court should have suppressed the evidence obtained as a result of the illegal search. For the reasons which follow, we agree.

An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told motorists they are free to go. Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996). To meet the reasonable suspicion standard, an officer’s investigation during a traffic stop “ ‘ “must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct[.][Cits.]” ’ ” Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). “Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.” State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975).

Absent reasonable suspicion, the officers could not legally detain Parker and Herring or their car since Parker refused consent to search and since the traffic stop had concluded. In Simmons, which is virtually identical to the present case, this Court reversed a trial court’s denial of a motion to suppress and remanded to the trial court for findings on whether Simmons had consented to search. Simmons, supra at 781. Police officers pulled Simmons over for speeding and tailgating, issued him a traffic warning, and ended the traffic stop. Id. Then the officers asked Simmons if they could conduct a drug dog search of his car and discovered narcotics. Id. The state sought to establish reasonable suspicion for the search because of the nervousness Simmons exhibited during the traffic stop. Id. at 782. This Court held that nervousness did not give officers reasonable suspicion and, therefore, police could detain the car after the end of the traffic stop only with Simmons’ consent. Id.

In the present case, the only evidence of reasonable suspicion in the record is the officers’ description of the nervousness of both Parker and Herring in various forms. Even if the officers based their request to search on the nervous behavior of Parker and Herring, under Simmons no reasonable suspicion existed as a matter of law. For the trial judge to rule otherwise is clearly erroneous. Moreover, the officer admitted during trial that he requested the search to see what reaction he would get and “just for the hell of it.” These are not valid reasons for a police officer to search without consent, and the fact that he released Parker and Herring raises a strong inference that the officer had no reasonable suspicion that they were engaged in criminal activity. This search was nothing more than “mere caprice or a hunch or an inclination.” Smith, supra at 102.

In denying the motion to suppress, the trial court relied on Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996). That case is factually distinguishable from the one at issue. In Pitts, testimony by the officer who conducted a dog search during a traffic stop established that the officer based his decision to search on the conflicting answers the appellants gave in response to his questions. Id. at 311. He also initiated the search during a traffic stop rather than after the traffic stop had already ended. Id. at 310.

Decided July 28,1998.

Glyndon C. Pruitt, for appellants.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

The state’s attempt to distinguish the case at issue from Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995), is unpersuasive. In that case, this Court reversed the trial court’s denial of Smith’s motion to suppress evidence found after a search of his car. The Smith court held that the officer, who pulled Smith over for weaving and suspected he was driving under the influence, illegally detained and questioned Smith. Id. After hearing Smith’s plausible explanation for his erratic driving, the officer asked Smith whether he was carrying drugs, requested consent to search, and detained Smith while awaiting a dog. Id. The officer testified that he based his decision to detain Smith on the fact that Smith declined the search and a feeling that Smith was hiding something. Id. at 454. Finding that the officer based his detention of Smith on a mere hunch, the Court ruled that the evidence “was discovered during . . . continued illegal detention.” Id. at 455.

The case at issue is similar to Smith because the officer here also received reasonable answers from Parker and Herring explaining the traffic violations which prompted the officer to pull them over. Also, the officer based his request to search on a hunch instead of on specific facts which gave him legitimate reasonable suspicion that Parker and Herring were engaged in criminal activity. The case at issue presents an even more egregious overreach by the officer than Smith because the officer had already ended the traffic stop and released Parker and Herring.

Because the search of the vehicle was not supported by reasonable suspicion, the cocaine found by the officers was illegally obtained. Accordingly, the trial court’s denial of the motion to suppress should be reversed.

2. Based on our holding in Division 1, we need not reach the second enumeration of error, which contends that the trial court erred in denying the motion to suppress because detention for more than 30 minutes constituted an arrest for which the officer lacked probable cause.

Judgment reversed.

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


author: Andrews, Chief Judge.

text:
    A98A0367.
    SHAPIRO v. THE STATE.
    (504 SE2d 719)
   Andrews, Chief Judge.

Suzanne Marie Daugherty Shapiro appeals from the judgment entered on her nonjury conviction for DUI, habitual violator, and violating the Georgia Controlled Substances Act, contending that her motion to suppress was improperly denied.

1. Because the evidence regarding the stop of Shapiro was undisputed, the trial court’s application of the law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Lilburn Officer Worley was assisting Officer Brown on a traffic stop around midnight at the intersection of Highway 29 and Killian Hill Road. He received a dispatch giving a lookout for a gold Acura with a white female driving northbound on Killian Hill Road, suspected of drunk driving.

Officer Worley waited, facing west at the intersection with the north bound lanes of Killian Hill Road. Less than a minute after the lookout, a gold Acura driven by a white female (later identified as Shapiro) approached northbound and stopped in the right lane at the intersection’s red light. She then went through the intersection on the green light and Officer Worley pulled in behind her and followed her for approximately a half mile. She committed no traffic offenses, but he did observe her “weaving in her lane.” He then activated his blue lights because the “vehicle fit the description given out by radio of her driving, weaving in her lane. I felt that this was the vehicle that the look-out was given on.”

Shapiro traveled on another half mile and then stopped in the right lane of traffic after the officer activated his siren. As he was calling in his location, Shapiro got out of her car, stuck out her hands with her wrists together and said, ‘You’ve got me. I’m ready to go to jail.” Officer Worley requested her license and insurance and Shapiro advised that her license was suspended. Her eyes were glassy and red and there was a strong odor of alcohol. She refused to do any field tests or to perform a breath test. After she was arrested, another officer discovered a Tylenol bottle containing crack cocaine in the Acura.

2. “Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). ‘This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.’ Terry v. Ohio, supra at 21, n. 18.” Vansant, supra at 320 (2).

In Thomason v. State, 268 Ga. 298, 301, fn. 9 (486 SE2d 861) (1997), the Supreme Court noted that “aparticularized description of a suspect vehicle may, in addition to other factors, provide the requisite basis for an investigative stop by police.” (Emphasis supplied.)

Here, Officer Worley had received information from the police dispatcher that a gold Acura driven by a white female suspected of drunk driving was headed in his direction. Within moments, such a vehicle appeared, heading in the direction noted and driven by a white female. There was no other traffic in the area other than the car stopped earlier and the car of the other officer involved in that stop. Based on the totality of these circumstances, Officer Worley properly initiated an investigatory stop.

This case is factually similar to Thomason. There, officers in a county adjoining the one where the murder occurred heard a lookout for a 1978 or 1979 brown Oldsmobile Cutlass with a lighter brown top, driven by a white male. This description was sufficient to justify an investigatory stop, as was that given here. Compare Vansant, supra (officer would have stopped any white van seen, stop not justified) with Hestley v. State, 216 Ga. App. 573, 574 (455 SE2d 333) (1995) (description given of a white panel van without many windows believed to be a Chevrolet justified stop) and Philpott v. State, 194 Ga. App. 452 (1) (390 SE2d 664) (1990) (dispatch regarding dark-colored Camaro with lights around its tag justified stop).

3. Shapiro also claims error in the court’s admission over objection of State’s Exhibits 3 and 4, consisting of the Department of Public Safety’s (Exhibit 3) Official Notice of Revocation and (Exhibit 4) Official Notice of Revocation and Service By Court. She contends the documents were hearsay and violated her right to confrontation, based on Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996).

Both documents contain the certification of the department’s custodian as provided for in OCGA § 40-5-2 (d) (1). When so certified, such records “shall be admissible as evidence in any civil or criminal proceeding as proof of the contents thereof.” Id.

Decided July 15, 1998

Reconsideration denied July 29, 1998

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Neither is this case comparable to Miller, where an opinion regarding the analysis of a substance by the GBI Division of Forensic Sciences was involved and found to violate the right to confrontation. Instead, it is controlled by Price v. State, 269 Ga. 222 (498 SE2d 262) (1998) and Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997). Those two cases rejected such a claim with regard to statutory certifications used to prove the qualifications of one drawing blood under OCGA § 40-6-392 (e) and whether an Intoxilyzer was properly inspected pursuant to OCGA § 40-6-392 (f).

Here, as in Price, the records at issue are public records which allow a court to “infer reliability when the hearsay falls within a firmly rooted exception to the hearsay rule, such as the public records exception.” Price, supra at 223. See also Gill v. Bowman, 201 Ga. App. 308 (410 SE2d 780) (1991); Love v. Hardison, 166 Ga. App. 677 (305 SE2d 420) (1983).

Therefore, there was no error in admitting these records.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       To the extent that the motion sought to prevent the arresting officers’ testimony, it is more aptly described as a motion in limine. McClain v. State, 226 Ga. App. 714, 715 (1) (487 SE2d 471) (1997).


author: Blackburn, Judge. McMurray, Presiding Judge, Eldridge, Judge,

text:
    A98A0480.
    FOWLER et al. v. CITY OF MARIETTA.
    (504 SE2d 726)
   Blackburn, Judge.

On June 24, 1994, the City of Marietta petitioned to condemn certain parcels of land within its historic district for a road-widening project. The condemnation affected residential property owned by appellants Eileen Davis Fowler n/k/a Mrs. Albert Weir (Weir) and Julian and Nancy Edwards. The special master recommended that the condemnation cases be dismissed because the city had exercised its condemnation powers in bad faith, arbitrarily, capriciously, and beyond powers conferred by law. The city excepted to the special master’s recommendation, and the superior court granted the city’s motion for summary judgment.

Generally, in reviewing non-value issues following a report by a special master, the superior court conducts a de novo review of the evidence and acts as the finder of fact. See Walker v. Ga. Power Co., 177 Ga. App. 493, 496-497 (1) (339 SE2d 728) (1986). However, the record does not reflect that the superior court in this case acted in its capacity as factfinder. Rather, the court granted summary judgment to the city, holding that there were no genuine issues of material fact. As discussed below, however, the superior court considered certain facts to be immaterial based on its misapprehension of the relevant law. Under these circumstances, we must apply a summary judgment standard of review to the superior court’s ruling. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn.from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. With respect to appellants Julian and Nancy Edwards, the evidence viewed in the light most favorable to the Edwardses showed the following. In July 1993 the city, which owned a piece of property at 57 Whitlock Avenue, solicited bids for the property. The Edwardses submitted a bid, which was accepted on September 8, 1993. On October 12, 1993, before the completion of the sale, counsel for the city asked whether the Edwardses would be willing to sell a portion of the property to the city for use as a right of way. The Edwardses declined. Concerned about possible condemnation by the city, the Edwardses inquired of Tom Boland, the city’s facilitator of the sale, regarding the city’s intentions on condemnation. Boland assured the Edwardses that, if they refused the city’s request to sell a portion of the property, the city would not take any .action to condemn the property for a right-of-way. On November 12, 1993, the Edwardses closed the purchase of the property for $217,500. After completion of the sale, the Edwardses spent approximately $400,000 on renovations and improvements to the property, operating it as a bed-and-breakfast known as the Whitlock Inn.

The Edwardses were dealing with Boland, the agent designated by the city to negotiate the sale of the property. Under these circumstances, the city cannot escape responsibility for the representations of the agent appointed by it to deal with the Edwardses. City councilman Dan Cox’s comments to the Edwardses indicates some knowledge of Boland’s representation. On February 8, 1994, councilman Cox came to the Edwardses’ residence and spoke to Mrs. Edwards. He said that “I’m not supposed to let you know about this, but I thought you should know” that the city was going to be doing something about the right-of-way. The next night, the city voted to condemn a right-of-way along the frontage of the property.

“[A] condemning authority may not act in bad faith in the exercise of the right of eminent domain. . . . [B]ad faith is neither negligence nor poor judgment, but involves conscious wrongdoing and a dishonest intent.” Earth Mgmt. v. Heard County, 248 Ga. 442, 446-447 (4) (283 SE2d 455) (1981). “The term “bad faith’ has been used side by side with the word ‘fraud’ in describing those exercises of official discretion to condemn lands with which the courts will interfere.” City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424, 425 (271 SE2d 821) (1980). “In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.” (Punctuation omitted.) Id. at 424, n. 2.

The trial court in its order dismissed the misrepresentation by the city’s agent, Tom Boland, that the city would take no action to condemn the right-of-way if the Edwardses refused to voluntarily sell a portion of the property. The trial court relied upon the proposition that “[pjowers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. However, this Code section is not applicable in this case, where the agent was specifically appointed by the city to negotiate the subject transaction and to deal with the Edwardses. Cities, like any other citizen, are bound to act in good faith. Given the reasonable inferences of prior knowledge of the misrepresentations by the city, this raises a jury question as to bad faith, therefore barring summary judgment.

The issue in this case is not estoppel, but bad faith. Although Boland’s statement may not work an estoppel, it clearly constitutes evidence from which bad faith on the part of the city may be inferred. See Earth Mgmt., supra at 447 (statements by county commissioners and the county attorney considered as evidence supporting finding of bad faith). The fact that the city asked if the Edwardses, upon purchasing the property, would be willing to sell a portion of it for a right-of-way indicates that the city had already considered the necessity of condemnation. By falsely assuring the Edwardses that the property would not be condemned against their opposition, the city induced the Edwardses to proceed with the consummation of the purchase and to invest substantial sums of money in renovating the property. The subsequent visit of a city councilman, Dan Cox, who told Mrs. Edwards that he was not supposed to tell them about the condemnation, is further indicative of bad faith by the city in the condemnation process.

The totality of the evidence suggests that the city intentionally misled the Edwardses as to its desire to condemn the right-of-way, in an attempt to induce the Edwardses to consummate their purchase of the entire lot. In granting summary judgment to the city, the trial court erred in failing to give proper consideration to the above evidence, instead mistakenly focusing on the city’s estoppel argument. Accordingly, the grant of summary judgment with respect to the Edwardses’ property must be reversed and this case remanded to the trial court for proper consideration of this issue in its capacity as factfinder.

The dissent attempts to immunize the city from the effects of its bad faith by arguing that such bad faith occurred in the context of the sale of the property to the Edwardses, and not in the context of the condemnation process. However, the dissent fails to recognize that the city’s actions are part of a continuous transaction. It is clear that the city was contemplating the possibility of the condemnation of the property at the time it was negotiating the sale with the Edwardses through its agent who at best misrepresented the city’s position to them. The evidence would even support the conclusion that the city intentionally misled the Edwardses as to its desire to condemn for the purpose of inducing the Edwardses to purchase the property at a premium price and only after such purchase was consummated did the city reveal its plans for condemnation. In the meantime, the Edwardses had spent approximately $400,000 in renovation costs. The Edwardses reasonably relied on the representations of the city’s agent and were harmed thereby. Under these circumstances, the entire condemnation process was infected by the city’s bad faith, and the dissent’s attempt to artificially bifurcate the city’s conduct is without merit.

2. Appellant Weir has pointed to no evidence raising a factual question as to the city’s bad faith in condemning her property. Weir contends that the city did not sufficiently investigate the necessity for condemning the property prior to the vote to condemn. However, the record reflects that the city did conduct investigations regarding traffic flow on Whitlock Avenue before the vote on condemnation and further studied the specific intersection at issue before the filing of the condemnation petition. Moreover, in the absence of bad faith, the condemnor has discretion to determine the necessity for condemnation and what land is to be condemned. City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343) (1979). “While a court may disagree with the methods the condemning authority may choose to accomplish its objectives, it is not authorized to substitute its judgment for that of the authority.” Id. at 621-622.

Weir also contends that the city showed bad faith by failing to comply with OCGA § 44-10-27 (a), which prohibits changes to a historic property unless the owner obtains a certificate of appropriateness from the historic preservation commission. However, this section provides that local governments are exempt from this requirement, although they must notify the commission within 45 days of any action which would otherwise require a certificate. OCGA § 44-10-27 (b). Although the city failed to notify the commission within the 45-day period, its delay in satisfying this procedural requirement does not demonstrate bad faith with respect to the condemnation.

Weir also claims that the city showed bad faith by failing to comply with a local ordinance requiring a certificate of appropriateness before altering a historic property. However, compliance with such a local ordinance is not a prerequisite to condemnation. See West v. Housing Auth. &c. of Atlanta, 211 Ga. 133 (84 SE2d 30) (1954); Macon-Bibb County Planning &c. v. Bibb County School Dist., 222 Ga. App. 264 (474 SE2d 70) (1996). The city’s failure to obtain such certificate prior to condemnation does not demonstrate bad faith with respect to the condemnation.

Finally, Weir contends that the city’s bad faith is demonstrated by the fact that, three years earlier, Weir had conveyed a right-of-way to the city for use as a turn lane. However, Weir points to no evidence that the city’s subsequent decision to condemn additional property in connection with the road-widening project was the product of bad faith.

As Weir has failed to show evidence of the city’s bad faith, the superior court correctly granted the city’s motion for summary judgment with respect to Weir’s property.

Judgment affirmed in part and reversed in part.

Johnson, P. J., Smith, J, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because I find the evidence in the case sub judice supportive of the superior court’s subjective determination that the City did not act in “bad faith” in condemning the subject properties.

After the City filed exceptions to the special master’s recommendation, the superior court found that the City did not act in bad faith, arbitrarily, capriciously and beyond its powers in condemning the subject property. The superior court supported this ruling after determining that the City is not estopped to exercise its condemnation powers based on Stephen T. Boland’s unauthorized representations to the Edwardses regarding the City’s future condemnation plans. The superior court also pointed out that the City complied with Marietta City Code § 7-5005 (a) (5), as well as Georgia’s Historic Preservation Act, after the special master’s finding that the City had acted in bad faith in exercising its condemnation powers; that (even though the City was not required to provide the Edwardses with notice of its February 9, 1994 agenda to consider condemning the subject realty) a member of the City’s city council informed the Edwardses about this agenda item on February 8, 1994, and that (while the City did not study or consider alternatives to taking the subject property before voting to condemn the land) the City conducted such studies after its mayor and city council voted to condemn the Edwardses’ land on February 9, 1994. The superior court, thus, granted the City’s motion for summary judgment, denied Weir and the Edwardses’ joint motion for summary judgment and remanded the proceedings for a special master to determine the amount of compensation due.

The issue of necessity for taking property is a matter of legislative discretion which will not be judicially controlled unless the authority acted in bad faith or beyond its powers. City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343). The term “bad faith” is equated with conscious wrongdoing motivated by improper interest, fraud or ill will. Concept Capital Corp. v. DeKalb County, 255 Ga. 452, 453 (3) (339 SE2d 583). The presence of such intent is for the superior court upon de novo review and the superior court’s findings in this regard are reviewable under an “any evidence” standard. Habersham Downs Homeowners’ Assn. v. Dept. of Transp., 212 Ga. App. 686 (442 SE2d 868). See Craven v. Ga. Power Co., 248 Ga. 79, 80 (281 SE2d 568). Although the case sub judice appeared before the superior court upon opposing motions for summary judgment, the superior court stated in its summary judgment order that the matter of the City’s intent is “subject to de novo review. . . .” Thus, contrary to the majority’s statement that “the record does not reflect that the superior court . . . acted in its capacity as factfinder,” I believe the superior court properly defined its role as factfinder before adjudicating the issue of the City’s alleged bad faith and that the City properly resolved this subjective question of fact. I therefore believe that this Court must apply an “any evidence” standard in reviewing the superior court’s findings. See MARTA v. Central Parking System of Ga., 167 Ga. App. 649, 652 (3) (307 SE2d 93). It is from this perspective that I find the superior court’s evidentiary findings supportive of that court’s determination that the City was not improperly motivated when its officials voted to condemn the subject properties. See Threatt v. Fulton County, 266 Ga. 466, 471 (6) (467 SE2d 546). Further, I do not agree with the majority that evidence of the City’s appointment of Stephen T. Boland to facilitate the “Dosser House” sale bears on the City’s alleged bad faith in condemning any portion of that property. Absent conclusive proof that the City’s mayor and city council authorized Stephen T. Boland’s unauthorized representations regarding the City’s purported decision not to condemn any portion of the “Dosser House” property, or that the City’s mayor and city council were aware of such a statement, I would affirm the superior court’s conclusion that Stephen T. Boland’s unauthorized statements do not estop the City from condemning a portion of that property. “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the act of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5.

It is my view that the superior court did not err in granting the City’s motion for summary judgment, denying Weir and the Edwardses’ joint motion for summary judgment, and remanding the proceedings for a special master to determine the amount of compensation due.

I am authorized to state that Chief Judge Andrews and Judge Eldridge join in this dissent.

Eldridge, Judge,

dissenting.

The “bad faith” in this case arose from reckless or false representations made to induce the sale of the subject property by the City of Marietta to the condemnees that the City had no plans to widen the street and to take by eminent domain part of what it sought to sell to the condemnees. The “bad faith” did not arise after the condemnees owned the land and the City of Marietta sought to reacquire part of it to widen the street. None of this would have resulted had the City of Marietta kept what it needed for the street widening and sold the remainder to the condemnees or told them that there was a strong possibility of the street widening. Clearly, the City of Marietta was at fault in selling the property and then granting building permits and use permits for the upgrading of the property without fair warning that the fair market value of the property as a business could be adversely affected by its plans to widen the street by reacquiring part of the property. The condemnees’ remedy is either in receiving full and adequate compensation in the condemnation action or another action to recover damages that cannot be recovered in condemnation, i.e., OCGA § 13-6-11 expenses of litigation for bad faith. To bar eminent domain is an extraordinary remedy, rarely granted.

Bad faith under any action for eminent domain that will bar a taking has a different meaning than it does for other areas of law. “ ‘[I]n the context of abuse by a public officer of his official discretion, the term “bad faith” has been sharply distinguished from negligence or bad judgment and has been equated with conscious wrongdoing motivated by improper interest or by ill will(,)’ and that ‘(t)he term “bad faith” has been used side by side with the word “fraud” in describing those exercises of official discretion to condemn lands with which the courts will interfere.’ ” Concept Capital Corp. v. DeKalb County, 255 Ga. 452, 453 (3) (339 SE2d 583) (1986), quoting City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424, 425 (271 SE2d 821) (1980); see also West v. Dept. of Transp., 176 Ga. App. 806, 807 (1) (338 SE2d 45) (1985). In condemnation cases, bad faith has been restricted to the basis for setting aside a condemnation as exceeding lawful authority to exercise eminent domain and not as the basis for damages. Earth Mgmt. v. Heard County, 248 Ga. 442 (283 SE2d 455) (1981).

“[OCGA § 22-2-82] provides that an authorized condemning body shall be the exclusive judge of the public need of property to be acquired and the amount of property to be acquired for the public purpose. [Cit.] The question of whether there is a necessity for taking the fee is a matter of legislative discretion, which will not be interfered with or controlled unless the authority acts in bad faith or beyond the powers conferred upon it by law. [Cit.] Tn the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.’ [Cits.]” (Emphasis in original.) City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343) (1979).

“Our holding in Earth Management did not erode the authority of condemning bodies nor change the law as pronounced in Heirs of Champion or First Nat. Bank. Rather, the import of that holding is that a condemning authority may not utilize the power of eminent domain to restrict a legitimate activity in which the state has an interest.” City of Atlanta v. Petkas, 253 Ga. 447, 448-449 (321 SE2d 725) (1984).

While I agree with the majority that the conduct of the agents of the City of Marietta in the representations made and the way the sale of the property to the condemnees was carried out by the agents for the City of Marietta in a reprehensible fashion, such conduct nonetheless fell outside the condemnation action so that it must be brought as a separate cause of action either in tort or contract for damages not recoverable in this condemnation action for conduct prior to and unrelated to the condemnation; such conduct was not “bad faith” within eminent domain that would void the condemnation. The effect of the majority is to broaden the scope of what constitutes bad faith in condemnation to encompass all prior conduct between the parties relating to the property to be taken, even when not a part of any condemnation and is to shield such property for the future from the exercise of eminent domain, no matter for what purpose the property is sought for public purposes.

Decided July 16, 1998

Reconsideration denied July 29, 1998

Moore, Ingram, Johnson & Steele, John H. Moore, J. Kevin Moore, for appellants.

Haynie & Litchfield, Douglas R. Haynie, for appellee.

“[If w]hat the condemnee is attempting to litigate is the liability, if any, of the condemnor based upon its alleged fraudulent conduct in connection with the negotiation and acquisition procedures which it utilizes[, then specifically, condemnee points to the fact that business damages are recognized under Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966) and enhancement of value compensation is authorized by the rule of Hard v. Housing Auth. of Atlanta, 219 Ga. 74 (132 SE2d 25) (1963).” Dept. of Transp. v. Franco’s Pizza &c., 164 Ga. App. 497, 499 (297 SE2d 72) (1982) (Carley, J., concurring specially). In that event, appropriate damages would be recoverable in full and fair compensation for the property taken and consequential damages to the remainder of the property under this condemnation action.

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

       Although the issue of valuation remains in the trial court, it appears this Court is vested with jurisdiction to consider the direct appeal of this interlocutory order because the superior court granted the City’s motion for summary judgment. Compare Rabon v. Dept. of Transp., 221 Ga. App. 629 (472 SE2d 105), and cites.


author: Smith, Judge.

text:
    A98A0568.
    DEARING v. THE STATE.
    (505 SE2d 485)
   Smith, Judge.

Based on evidence seized pursuant to a search warrant, Amanda Dearing was indicted on one charge of possession of methamphetamine with intent to distribute. She filed a motion to suppress, arguing among other things that the warrant was illegally issued because the veracity and basis of knowledge of the person characterized as a “concerned citizen” were insufficiently presented to the magistrate. The trial court denied the motion, and Dearing was subsequently tried and convicted of the crime with which she was charged. Her motion for new trial as amended was denied, and she now appeals, raising as error the trial court’s denial of her motion to suppress. The issue in this case focuses on whether the affidavit supporting the application for a search warrant established sufficient probable cause to search. The basis for the affidavit was a tip by a confidential informant. In particular, Dearing contends that this confidential informant was erroneously afforded “concerned citizen” status. We do not agree, and we affirm.

The affiant in this case, a narcotics agent with the Gainesville Police Department, stated in the affidavit that he had been contacted by a concerned citizen. He stated that the concerned citizen had been at certain specified premises on or between the dates of August 23 and August 31, 1995, and had observed a quantity of white powder represented by Dearing and another suspect to be amphetamine powder. He considered the informant’s tip to be true and reliable because the informant was “a mature person gainfully employed in a full time capacity,” had no known criminal record, and “displayed an open and truthful demeanor with no apparent motivation to falsify” the information. In addition, he stated that the individual’s motivation for supplying the information arose from the individual’s life experiences, as the individual “had the opportunity to see how drug addictions can affect abusers as well as the abusers [sic] family members,” and the individual wished to help other members of the community.

In deciding whether an affidavit established probable cause necessary for issuance of a search warrant, it is well settled that we must apply the “totality of the circumstances analysis [utilized] in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).” State v. Davis, 217 Ga. App. 225 (457 SE2d 194) (1995), aff’d, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996). “Under that analysis, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (Citations and punctuation omitted.) 217 Ga. App. at 225-226.

We conclude that the magistrate in this case was provided sufficient information from which to find probable cause to issue a warrant. The informant described in this case is similar to that described in Davis, supra, a case in which we reversed the trial court’s grant of defendant’s motion to suppress. According to the affiant in that case, the informant was in good standing in the community, owned his own business, and had nothing to gain by providing information about the defendant. Davis, supra, 217 Ga. App. at 226. The affiant there was considered a “concerned citizen” and therefore was afforded “a preferred status insofar as testing the credibility of his information.” (Punctuation omitted.) Id. at 227. Similarly, the affiant here stated that the informant was gainfully employed, had no criminal record, and appeared to have nothing to gain by providing information to the police. These statements by the affiant provided the magistrate with some facts forming the basis for the affiant’s conclusion that the informant was truthful. Compare Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992) (no facts supporting affiant’s conclusion that informant was truthful presented to magistrate).

Eaton v. State, 210 Ga. App. 273 (435 SE2d 756) (1993), relied upon by Dearing, is not controlling. In that case, the affiant admitted on cross-examination at the motion to suppress hearing that he did not know the informant and that the only basis for his characterization of the informant as a concerned citizen was “what the informant himself told the officer on the phone.” Id. at 275. See also Davis, supra, 217 Ga. App. at 226. In contrast, the affidavit here shows that this officer judged the citizen’s demeanor. Moreover, as in Davis, Dearing offered nothing in opposition to the evidence produced by the State concerning the informant’s reliability. “In this evidentiary posture, the state met its burden of proof as a matter of law and the denial of [Dealing’s] motion to suppress was mandated. The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citations and punctuation omitted.) Davis, supra, 266 Ga. at 213.

Dearing also argues that the warrant was not supported by probable cause because the information provided by the informant was not sufficiently corroborated. The affiant stated that his investigation showed to be true and correct the informant’s description of and directions to the premises where the contraband was seized. In addition, the affiant corroborated that Dearing and the other suspect lived at the premises where the contraband was seized. Finally, the affiant found to be accurate physical and vehicle descriptions provided by the informant.

Whether the affiant sufficiently corroborated the informant’s tip is questionable, as the affiant basically testified only that Dearing lived at the dwelling where the informant said she lived. See Davis v. State, 214 Ga. App. 36, 37 (447 SE2d 68) (1994); Gary v. State, supra. But the magistrate is not limited to consideration of corroborating evidence when making a practical, common sense decision as to whether a fair probability exists that contraband may be found in a certain place. Rather, as discussed above, the magistrate must examine the totality of circumstances when making this decision. Davis, supra, 217 Ga. App. at 225-226. While corroboration may be necessary to cure deficiencies caused by the failure to establish the reliability of a confidential informant, see Wood v. State, 214 Ga. App. 848, 849 (449 SE2d 308) (1994), here, the reliability of the informant was established. The totality of the circumstances here included evidence that the informant could be considered a concerned citizen and evidence that the informant saw the contraband at the premises occupied by Dearing. Considering this, and given the mandate that doubtful cases should be resolved in favor of upholding search warrants, we cannot say that the trial court erred in concluding the affidavit provided sufficient probable cause for issuing the warrant.

Decided June 8, 1998

Reconsideration denied July 29, 1998

Glyndon C. Pruitt, for appellant.

Lydia J. Sartain, District Attorney, J. Philip Milam, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Dearing argues primarily that this case is controlled by this Court’s recent decision in Pailette v. State, 232 Ga. App. 274 (501 SE2d 603) (1998). Although similar in many respects, the facts of these two cases are distinguished.

Significantly, it appears that the affidavit in Pailette did not disclose information concerning the criminal record of the informant, nor did it disclose any information concerning the informant’s life experiences, as did the affidavit here, factors that could have influenced the trial court’s conclusion that the citizen was reliable and that probable cause existed to issue the warrant.

We also note that although this Court recited in Pailette that an officer received information from a “concerned citizen,” the affidavit itself in Pailette does not appear to have mentioned that the informant should have been afforded this status. This omission may explain why this Court did not examine the facts of Pailette in light of cases such as State v. Davis, 217 Ga. App. 225 (457 SE2d 194) (1995), aff’d, Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996), recognizing the preferred status given to information provided by concerned citizens. Under the circumstances of this case, even in light of Pailette, and under the well-established law that “marginal cases in this area should be largely determined by the preference to be accorded to warrants,” we cannot say the trial court erred in denying Bearing’s motion to suppress. (Citations and punctuation omitted.) Davis, supra, 266 Ga. at 213.


text:
    A98A0579.
    A98A0580.
    AHC PHYSICIANS CORPORATION, INC. v. DULOCK. AMERICAN HEALTHCHOICE, INC. v. DULOCK.
    (504 SE2d 464)
   Smith, Judge.

This appeal arises out of the trial court’s construction of an employment agreement executed between Malcolm Dulock and appellant AHC Physicians Corporation, Inc. Dulock brought this action against appellants after he was terminated from employment, and the trial court granted partial summary judgment to Dulock, concluding that AHC failed to comply with certain notice provisions under the agreement. We disagree and reverse.

In September 1995, Dulock sold his medical clinic to AHC. In connection with the sale, Dulock and AHC executed an agreement by which Dulock remained employed by the clinic for an initial term of five years. The agreement provided that Dulock would be terminated “for cause” if one of several events occurred. Those events included the following: “Whenever, except due to incapacity, employee fails or refuses to perform faithfully and diligently the duties of employment and comply with the provisions of this agreement, which breach is not cured within thirty (30) days following employee’s receipt of written notice of such breach from employer.” Another subsection contained essentially the same language requiring written notice to Dulock of his alleged breach, except that it addressed failure or refusal “to comply with the reasonable policy standards and regulations” of the employer.

Dulock filed this action after, his employment was terminated on June 2, 1997. On motion for summary judgment, the trial court ruled as a matter of law that a series of writings sent to Dulock by AHC and American HealthChoice failed to satisfy the requirement that Dulock be given 30 days notice of breach of the employment agreement. We do not agree.

During the months leading to Dulock’s termination, letters and memoranda were sent to him expressing AHC’s dissatisfaction with his failure to follow instructions of the company’s officers and his failure to act in the company’s best interest. Included in those writings was a memorandum dated March 20, 1997 from the chief financial officer and general counsel, Jay Stucki. The memorandum addressed Dulock’s refusal to comply with AHC’s direction to reduce staffing at the clinic in an effort to reduce expenses. Stucki stated, “Something is amiss. ... I am willing to start with a clean slate but make no mistake: this letter serves you formal notice that we must have your full cooperation. I will not tolerate the past acts of you bad mouthing the company, refusing to make needed cuts to improve clinic profitability, or any thing that deliberately sabotages [the company’s] Georgia interests. You assured me I have your cooperation and I appreciate your verbal assurance. Now show me by action.” (Emphasis supplied.)

According to Stucki, Dulock did not change his actions in response to this memorandum, and on April 21, 1997, the CEO of American HealthChoice wrote a letter to Dulock concerning the decision of the board of directors of American HealthChoice. The letter recited that the board believed it had sufficient reasons to terminate Dulock for cause. The CEO then implored Dulock to cooperate in an attempt to “turn the clinic around.” In a subsequent letter to Dulock concerning his behavior toward a representative of a company retained to evaluate the clinic’s problems and possibly to manage the clinic, the CEO “strongly suggested]” that Dulock apologize and that he expected Dulock’s “Ml cooperation” with the consulting company. Evidence was presented that Dulock failed to follow these directions, and by letter dated May 5, 1997, he was placed on administrative leave for two weeks. Stucki stated in his affidavit that in May 1997, he learned of several actions taken by Dulock during this administrative leave showing that he continued to “sabotage the clinic and to fight with and undermine management.” According to Stucki, because of these actions and Dulock’s “refusal to correct the problems that [Stucki] had warned him to correct in [his] March 20 memorandum,” Dulock’s employment was terminated June 2, 1997.

Notice provisions in contracts “must be reasonably construed.” APAC-Ga. v. Dept. of Transp., 221 Ga. App. 604, 606 (472 SE2d 97) (1996). And the purpose of the notice requirement in Dulock’s employment contract “is not difficult to fathom.” State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625, 628 (194 SE2d 493) (1972). It served to notify Dulock of a breach and to give him an opportunity to cure it. Construing the notice requirement in Dulock’s employment agreement reasonably and bearing in mind its purpose, Dulock clearly was given written notice of breach. Although the writings sent by AHC to Dulock may not have stated in so many words that Dulock had breached his employment agreement, they were more than mere criticisms of his performance, as Dulock contends. The March 20 memorandum listed actions previously taken by Dulock that were unacceptable to and would not be tolerated by the company. It plainly stated that it served as “formal notice” that Dulock’s cooperation was required, therefore giving Dulock opportunity to “cure” his past actions. But even assuming that the March 20 memorandum did not sufficiently provide notice of breach to Dulock, the April 21 letter from the CEO certainly did. The letter plainly stated that the board of directors felt that it had sufficient reason to terminate Dulock, which could only be done for cause, i.e., if he breached the terms of his employment agreement. The CEO then provided Dulock another opportunity to cure his breach by expressing his desire that Dulock work with him in making changes concerning the clinic. The trial court erred in concluding that AHC failed to comply with the notice provision in the employment agreement.

This case is distinguished from those relied upon by Dulock. King Industrial Realty v. Rich, 224 Ga. App. 629 (481 SE2d 861) (1997) and American Sewer Pipe Co. v. Mathews, 19 Ga. App. 248 (91 SE 284) (1916) address the failure of employers to comply with provisions in employment contracts requiring notice of termination. The contract here required notice of breach. And the difference between the two concepts is one of purpose: While notice of termination would give an employee time and opportunity to find other employment, notice of breach, as contemplated by the contract in this case, would afford Dulock time and opportunity to cure the breach and remain employed.

Similarly, Johnson v. Kahrs, 199 Ga. 365 (34 SE2d 503) (1945) is not controlling. The employment agreement in that case required 30 days notice of dissolution of the agreement, not 30 days notice of breach. Id. at 366. The employers gave the employee notice of dissolution because of his alleged misconduct and sent him a check for one month’s salary. Id. The Supreme Court concluded that this action did not comply with the notice requirement, because it involved a forfeiture of the employee’s right to become a partner in the business. The notice provision did not serve “merely to insure the defendant 30 days in which to seek other employment in the event that the contract was dissolved.” Id. at 367. Rather, the requirement provided the employee an opportunity to attempt to convince his employers “that their deductions as to his conduct were wrong,” id., and thereby pursue his right under the contract to become a partner. Here, the notice requirement was designed to give Dulock the chance to cure his breach. Dulock was afforded this chance on more than one occasion, well in advance of 30 days before his employment was terminated, and partial summary judgment in his favor was not warranted.

Decided June 17, 1998.

Webb, Tanner & Powell, Ralph L. Taylor III, L. Dale Owens, for appellant.

Fine & Block, Kenneth I. Sokolov, Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., for appellee.

Judgment reversed.

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

       Appellant American HealthChoice, Inc. is a successor in interest to the corporation serving as guarantor of AHC’s obligations under the agreements executed in connection with the sale of the clinic.

       The letter set forth several conditions of his leave. He was forbidden entry into the clinic and was told not to contact clinic employees. He was directed that no materials were to be removed from the premises and that he was not to contact anyone who did business with the clinic. The letter also required him to cease making “disparaging comments” about the company and disclosing confidential information about the company’s plans. In addition, the letter advised Dulock that he was no longer responsible for management of the clinic or its other operations and that his cooperation was expected concerning the transition to new management.