author: Ruffin, Judge.

text:
    A97A0215.
    WESTER v. THE STATE.
    (480 SE2d 921)
   Ruffin, Judge.

A jury found Undrell Wester guilty of misdemeanor obstruction of an officer, trafficking in cocaine, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, possession of cocaine with intent to distribute, and possession of cocaine with intent to distribute within 1,000 feet of a public park. Wester appeals his conviction, and we affirm in part and reverse in part.

The evidence, viewed in a light to support the verdict, shows the following. Members of the Albany Dougherty Drug Unit received information from a confidential informant that a white Cadillac with three or four passengers would be delivering a large quantity of rock cocaine to a house located in the 1400 block of Avalon Avenue. Surveillance was established at the location, and a car matching the informant’s description arrived at the location. Officers Mitchum and Green pulled in behind the Cadillac and identified themselves as police officers. At this point, the three subjects “all took off running.” Green, who knew Wester and identified him on sight as the driver, chased and apprehended Wester while Mitchum waited by the vehicle and ensured no one tampered with it.

A consensual search of the vehicle revealed approximately 45 grams of crack cocaine in yellow ziplock baggies and a .40 caliber handgun under the driver’s seat.

1. In his first enumeration of error, Wester contends the trial court erred in admitting evidence of his prior convictions, without a limiting instruction, merely to substantiate the charge of possession of a firearm by a convicted felon. The record shows that the State tendered certified copies of guilty pleas entered by Wester to charges of aggravated assault, obstruction of an officer, and possession of a firearm during the commission of a crime to “meet the elements of possession of a firearm by a convicted felon.” While Wester claims the trial court should have bifurcated trial of the convicted felon firearm charge from the remaining offenses or given the jury limiting instructions regarding his prior convictions, the record shows that Wester did not object to the admission of his prior convictions at trial or request a limiting instruction by the trial court. In addition, the record does not indicate that Wester ever requested a bifurcated trial. Absent any objection to the evidence or any request to bifurcate or give limiting instructions, we find no reversible error. Prince v. State, 264 Ga. 867, 868 (3) (452 SE2d 497) (1995); Head v. State, 262 Ga. 795, 797 (4) (426 SE2d 547) (1993); Head v. State, 253 Ga. 429, 431 (3) (322 SE2d 228) (1984).

2. In two enumerations of error, Wester argues the trial court erroneously placed his character in issue by (1) admitting past convictions without the defense having first elected to place his character in issue and (2) permitting the State to cross-examine Wester regarding the prior convictions. It should be noted that, contrary to Wester’s argument, his prior convictions were not introduced as similar transactions, but as evidence to support the charge of possession of a firearm by a convicted felon, discussed in Division 1. The State has a right to introduce the prior convictions to establish a necessary element of the crime charged. State v. Santerfeit, 163 Ga. App. 627 (295 SE2d 756) (1982). As the Court noted in Santerfeit, introduction of prior convictions under these circumstances does not place a defendant’s character in issue: “It is more to the point to say that [Wester] by [his] alleged conduct put [his] own character in issue, and as we say, so be it.” Id. at 629. Accordingly, we find no error.

Decided February 5, 1997.

David E. Slemons, for appellant.

Britt R. Priddy, District Attorney, Tracia M. King, Assistant District Attorney, for appellee.

Wester further alleges that the trial court erred in allowing the State to question him about his record. The only objection to this line of questioning at trial, however, was that the prosecutor was testifying. Accordingly, this issue was not properly preserved for appellate review. Shropshire v. State, 223 Ga. App. 118 (2) (476 SE2d 859) (1996).

3. The evidence was sufficient to support Wester’s conviction for misdemeanor obstruction of an officer. Contrary to Wester’s assertion that no verbal exchange occurred between him and the officers, the record shows that Wester fled from the officers after they identified themselves. “ ‘Under that evidence, the jury was authorized to infer that [Wester] knew that a police officer was attempting to perform his official duty . . . and to find that [Wester] deliberately took action to delay, hamper or impede the officer in the performance of his duty.’ [Cit.]” Sanders v. State, 204 Ga. App. 545, 547 (1) (b) (419 SE2d 759) (1992). See also Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996).

4. In his fourth enumeration of error, Wester contends the trial court erred in sentencing him for both trafficking in cocaine and possession of cocaine with intent to distribute since the latter is a lesser included offense of trafficking. The State concedes that the charge of possession with intent to distribute was a lesser included offense of trafficking as a matter of fact in this case. Thus, Wester should have been sentenced only for cocaine trafficking. See Hancock v. State, 210 Ga. App. 528, 532 (3) (c) (437 SE2d 610) (1993). Accordingly, Wester’s conviction for possession of cocaine with intent to distribute is hereby reversed and the sentence vacated. Iglesias v. State, 191 Ga. App. 403 (1) (381 SE2d 604) (1989).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0227.
    LITTLE v. FLEET FINANCE et al.
    (481 SE2d 552)
   Eldridge, Judge.

This case arose as a result of plaintiff/appellant Victoria Little’s entry of an unsuccessful bid at a non-judicial foreclosure sale for a piece of property on Old National Highway, the subsequent sale of the property to another, and a re-conducted foreclosure sale caused by appellant’s objections to the original sale. Appellant challenges the trial court’s granting of appellees’ motion to dismiss her claim of fraud for failure to state a claim upon which relief can be granted.

As it relates to appellant’s fraud claim, the record demonstrates that appellee Fleet Finance (Fleet) was the holder of a note and deed to secure debt for real property located at 5319 Old National Highway, College Park (property), which was owned by Mitchell Lampley, a former client of appellant. Lampley defaulted on the note. Fleet accelerated the debt and initiated foreclosure proceedings under the power of sale provisions in the mortgage contract. The foreclosure sale of the property was advertised for April 2, 1991, and the foreclosure advertisement stated that the property would be sold for cash to the highest bidder. The alleged outstanding indebtedness, including attorney fees and costs, was $85,925.11.

On April 2, 1991, appellees Phillip Hasty and John E. Tomlin-son, acting as agents for Fleet through their employer, appellee John E. Tomlinson, PC., commenced the foreclosure sale; just prior to the commencement of the sale, Fleet had informed potential bidders that a check would be accepted for the amount of the successful high bid. Fleet entered the first bid for the amount of the outstanding debt. Appellant was present and offered a bid of $85,925.12, one penny over the amount of indebtedness. John K. Adams, not a party to this action, was also present and entered into the bidding. Appellant and Adams each tendered several bids. Fleet accepted the highest bid, $135,000, from Adams, who wrote a check for the amount of the bid. Fleet agreed to hold the check until Adams finished obtaining the cash funds to cover the check. Adams had entered into negotiations with Fleet prior to the foreclosure sale wherein Fleet had agreed to finance the undetermined purchase price of the property, should Adams’ bid be the highest and thus the successful bid at the sale.

On the same afternoon, appellant learned that although the foreclosure sale was “cash” only, Adams did not yet have sufficient cash funds to cover his $135,000 check. Appellant called Fleet’s agents and had “numerous conversations” with them. In her complaint, appellant states that because she had “learned of the illegal agreement [between Adams and Fleet] . . . Fleet was withdrawing its offer to lend the purchase price to Adams.”

Fleet re-advertised the property for public sale on the first Tuesday in May; both appellant and Adams were given notice of the pending sale. On May 7, 1991, the property was sold at public outcry on the steps of the Fulton County Courthouse to the highest bidder. Neither appellant nor Adams was present, nor did they have bids tendered on their behalf.

Appellant filed a complaint alleging: (1) breach of contract for failure to sell the property to her as next highest bidder; (2) fraud; and (3) violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO). Appellant sought actual damages of $264,074.88, which sum demonstrated the difference between her bid of $85,925.12 and $350,000, which was the alleged fair market value of the property, i.e., loss of profit.

Appellees separately filed motions to dismiss on the ground that appellant’s complaint failed to state a claim upon which relief could be granted pursuant to OCGA § 9-11-12 (b) (6). The trial court issued an order finding that (1) appellant failed to allege a factual basis for a breach of contract claim because, under the law, the failure of the high bidder, Adams, to complete the terms of his bid did not permit Fleet to simply offer the property to appellant as the next highest bidder without adhering to statutory procedures; (2) appellant’s fraud claim failed because damages for loss of profit as alleged in the complaint were too remote and speculative to sustain such a claim; and (3) appellant failed to allege a factual basis for her claims of RICO violations. Thus, the trial court granted appellees’ motion to dismiss for failure to state a claim.

Before this Court, appellant does not assign error to the trial court’s determinations concerning her allegations of breach of contract and RICO violations. Appellant travels solely on her fraud theory. Appellant alleges that the trial court erred in “finding that this [foreclosure sale] was a lawful sale,” and in determining that the damages alleged in the complaint were too speculative and uncertain to provide a basis for recovery.

In analyzing appellant’s contentions, we note at the outset that “a motion to dismiss for failure to state a claim should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim.” (Citations and punctuation omitted.) English v. Liberty Mtg. Corp., 205 Ga. App. 141 (421 SE2d 286) (1992). With this principle in mind, we turn to the allegations of the complaint and the trial court’s order.

1. We find that the speculative nature of damages alleged in a complaint may not afford a basis for the granting of a motion to dismiss wherein the allegations of a complaint are taken as true, as opposed to a motion for summary judgment wherein the merits of a complaint are addressed. Moreover, the trial court’s granting of the motion to dismiss as to appellant’s fraud claim, based on damages, ignored the issue of nominal damages which a jury might find upon the commission of an unlawful act. “[N]ominal damages are always allowed for any tortious invasion of a property right, though no actual damage results therefrom.” Williams v. Harris, 207 Ga. 576, 579 (63 SE2d 386) (1951). Notwithstanding this determination and for the reasons that follow, this Court finds that the trial court properly granted appellees’ motion to dismiss appellant’s fraud claim pursuant to OCGA § 9-11-12 (b) (6).

In order to prevail on a claim of fraud, one must prove five essential elements: a false representation, scienter, inducement, reliance, and injury resulting from reliance on the false representation. See Doe v. Prudential-Bache/A.G. Spanos &c., 222 Ga. App. 169 (474 SE2d 31) (1996). Further, fraud must be pled with particularity. OCGA § 9-11-9 (b). Here, even if the averments in appellant’s complaint are considered as true for the purposes of a motion to dismiss, she has failed to demonstrate either that appellees made a false representation upon which she relied or that she was in any way injured by virtue of appellees’ actions. See Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d 166) (1978).

Under the facts as asserted in the complaint, there was a “confidential agreement” between Adams and Fleet, made prior to the public sale of the property, wherein Fleet agreed to “extend credit,” i.e., financing, to Adams for a then undetermined sum which would cover the amount of his bid, if he was the successful high bidder. Appellant contends that this confidential agreement made the sale of the property unlawful and thus fraudulent. However, appellant fails to allege how an agreement between Adams and Fleet could be considered a false representation made to her upon which she relied to her detriment so as to sustain a claim of fraud.

Moreover, such agreement, as alleged by appellant, was not fraudulent. A finance company which holds the security interest in a property is permitted to bid on and obtain the property at public auction. See Bellamy v. Resolution Trust Corp., 266 Ga. 630 (469 SE2d 182) (1996); Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257 (474 SE2d 108) (1996); Wheeler v. Coastal Bank, 182 Ga. App. 112 (354 SE2d 694) (1987). Thus, there is nothing improper about the financing company’s agreement with a third party to finance their bid. “[W]hen a power of sale is exercised, all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” (Citations and punctuation omitted.) Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (270 SE2d 867) (1980). Under the facts as put forth in appellant’s complaint, Fleet’s financing agreement with Adams for an undetermined sum reflecting the amount of Adams’ bid, should he be the high bidder, presents no circumstance which would illustrate that the sale was conducted by Fleet other than in good faith and in accordance with the terms of the deed and all statutes; such sale was to the benefit of the debtor who was relieved of liability on the note when the property sold for the amount of the debt and expenses. Kennedy, supra at 333. Further, proceeds from a high bid that exceeds the amount of indebtedness, such as in the instant case, go to the debtor. OCGA § 44-14-190.

Appellant contends the fact that the agreement was made prior to the sale demonstrates the fraudulent nature of the agreement and subsequent sale. In support of this contention, appellant cites: “Where under a power of sale in a security deed the grantee in case of default was authorized, on compliance with certain conditions, to sell the land described in the deed to the highest bidder ‘for cash,’ and the sale was duly advertised and auctioned on that basis, the sale was not rendered invalid by a subsequent arrangement between such grantee and the highest bidder, not the result of any previous agreement or understanding, whereby a note of the latter was accepted in lieu of cash.” (Emphasis supplied.) Adcock v. Berry, 194 Ga. 243 (1) (21 SE2d 605) (1942); see also Dorsey v. North American Life Ins. Co., 217 Ga. 650, 653 (123 SE2d 919) (1962); Willbanks v. Untriner, 98 Ga. 801 (5) (25 SE 841) (1896).

To begin, we note that “[statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.” (Citation and punctuation omitted.) White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994). More importantly, however, appellant failed to allege in her complaint any agreement or understanding between Adams and Fleet, prior to the sale, wherein Adams would obtain the property at an agreed upon price, and Fleet would accept a note for the agreed upon amount in lieu of cash. This form of collusion which attempts to control either the bidding or the price of the realty is the type of “prior agreement or understanding” to which Willbanks, supra, made reference. Kennedy, supra at 328-332; see also Giordano v. Stubbs, 228 Ga. 75, 79 (184 SE2d 165) (1971) (irregularity accompanied by gross inadequacy of price authorizes set aside of sale); Stepp, supra (when fraudulent circumstances contribute to inadequacy of price, sale may be set aside); Gordon v. South Central Farm Credit, ACA, 213 Ga. App. 816 (446 SE2d 514) (1994) (sale may be set aside if accompanied by fraud contributing to the inadequacy of the price).

What is forbidden is a prior agreement or understanding that is in any manner outcome determinative, i.e., impacts on the amount of the highest bid or the identity of the successful bidder so as to chill either the bidding or the sale’s price, a scenario which did not occur here where the bidding was driven above the debt, which circumstance benefited the debtor. Sound public policy supports the creation of foreclosure laws which protect the debtor, already in an attenuated position through the forced sale of his property, from a prior agreement or understanding which results in an unfair price for the property. Kennedy, supra. “The general morality of the law is higher than many good people suppose; is very much higher in the matter of guarding public sales of property against collusive combinations to suppress bidding. The standard it has in view is not merely conscience, but enlightened conscience.” Barnes v. Mays, 88 Ga. 696, 698 (16 SE 67) (1892); see also OCGA § 44-14-161. In the case sub judice, the bidding was not suppressed, but was stimulated well above appellant’s bid.

Next, appellant contends that the financing agreement between Adams and Fleet rendered the advertisement providing notice of the public sale of the property a fraudulent representation upon which she relied, since the advertisement stated that the sale was cash only, not credit. We disagree. The fact that Adams was to obtain the cash for the sale from financing, whether from Fleet or any other lending institution, did not render the sale of the property one for credit. If the financing had been completed, the resultant cash would have been tendered to cover the bid. Moreover, the fact that a high bidder is given time in which to raise the money to pay for the property does not render the sale one for credit, instead of cash. Dorsey, supra; Adcock, supra; Willbanks, supra; Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 914 (423 SE2d 257) (1992). The bidder is liable as soon as the bid is accepted. “The matter of indulgence was between these two, and in no way affected the rights of other persons interested.” (Citation and punctuation omitted.) Id. at 914. Appellant, also, could have availed herself of financing options. Appellant failed to allege in her complaint how obtaining the cash sums to cover the high bid through financing rendered the advertisement and subsequent sale fraudulent.

Finally, under the facts as alleged in the complaint, appellant cannot show that she was injured by the “confidential agreement” about which she complains. By dint of appellant’s efforts and pursuant to her request, Fleet rescinded its prior agreement with Adams, put the property back on the block, and although not required by law to do so, provided notice to appellant of the public re-sale of the property. In other words, appellant was returned to the status quo ante. Appellees’ actions would have allowed appellant to bid on the property sans Adams, sans “confidential agreement,” and thus sans alleged fraud. She chose not to attend the re-sale. This Court finds that appellant’s choice, while perhaps a viable strategy in pursuing her claim for an alleged breach of contract, proved fatal to her fraud claim where there is no room for appellant to have her cake (her ability to bid on the property without the alleged fraudulent agreement) and eat it too (money damages, despite her ability to bid on the property without the alleged fraudulent agreement). See Metter Banking Co. v. Millen Lumber & Supply Co., 191 Ga. App. 634, 638 (382 SE2d 624) (1989); see also Couch v. Crane, 142 Ga. 22, 26-28 (82 SE 459) (1914); Corbitt v. Harris, 182 Ga. App. 81, 82 (354 SE2d 637) (1987), overruled on other grounds, Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

In sum, under the facts as alleged in appellant’s complaint: (1) the financing agreement between Fleet and Adams was lawful, did not make the sale one for credit, and did not impact on either the bidding, the ultimate price of the property, or the identity of the successful high bidder so as to chill the property’s sale price; (2) Fleet’s subsequent indulgence in allowing Adams additional time to cover his good faith bid was lawful and did not make the sale one for credit; and (3) pursuant to appellant’s request, Fleet rescinded the disparaged “confidential agreement” with Adams, put the property up for public re-sale, and provided notice to appellant, thus returning appellant to the status quo. Appellant failed to allege in her complaint any act on the part of the appellees that demonstrated a false representation upon which appellant relied so as to sustain an action for fraud. Further, after the status quo was restored, appellant did not allege any injury connected with appellees’ actions so as to sustain an action for fraud. Thus, it appears from the allegations of the complaint that appellant would not be entitled to relief on her claim of fraud under any fair reading of the facts alleged therein. See Time Ins. Co. v. Fulton-DeKalb Hosp. Auth., 211 Ga. App. 34 (438 SE2d 149) (1993). Accordingly, the trial court did not err in granting appellees’ motion to dismiss appellant’s fraud claim pursuant to OCGA § 9-11-12 (b) (6). A trial court’s judgment, right for any reason, will be affirmed. Grayer v. Hagler, 181 Ga. App. 662 (353 SE2d 545) (1987).

Decided February 5, 1997.

McDonald & Cody, Douglas W. McDonald, Sr., Douglas W. McDonald, Jr., for appellant.

Johnson & Montgomery, Harry W. MacDougald, Timothy A. Baxter, for appellees.

2. Appellant also contends that the appellees’ motion to dismiss for failure to state a claim was converted into a motion for summary judgment when the trial court improperly considered matters outside the record. There is no merit to this contention. It appears from the order of the trial court that judgment was rendered on the motion to dismiss based upon consideration of the complaint, alone. See McGill v. Allis-Chalmers Credit Corp., 133 Ga. App. 700 (212 SE2d 27) (1975). The “matters outside the record” to which appellant refers addressed appellees’ contention that appellant’s claim was barred by the statute of limitation; this was a separate issue that was decided in appellant’s favor.

3. Our holding in Division 1 renders moot appellant’s contentions concerning her motion to strike matters not properly before the court.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Adams filed suit against Fleet for failure to honor the loan agreement; this suit was eventually settled out of court in Adams’ favor.

       This determination was correct. A non-judicial foreclosure sale must comply with the provisions of OCGA § 9-13-161, which authorizes public sales only between the hours of 10:00 a.m. and 4:00 p.m. on the first Tuesday of the month after proper notice is given through advertisement in the official newspaper of the county in which the property is located. OCGA § 44-14-162. Thus, upon the failure of a purchaser to comply with a high bid, a property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of the statute. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416 (246 SE2d 183) (1978); Citizens Bank of Forsyth v. County of Lamar, 187 Ga. 123, 126 (200 SE 257) (1938); Humphrey v. McGill, 59 Ga. 649 (1877).

       Compare Newkirk v. United Fed. Sav. &c. Assn., 165 Ga. App. 311 (299 SE2d 183) (1983).


text:
    A97A0237.
    SHROPSHIRE v. THE STATE.
    (480 SE2d 919)
   Eldridge, Judge.

Appellant appeals his conviction for robbery. His sole enumeration of error questions the sufficiency of the evidence to authorize the conviction. Appellant alleges he was entitled as a matter of law to a directed verdict because any threat or intimidation, which is an essential element of robbery, occurred subsequent to the taking.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [Shropshire] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (436 SE2d 799) (1993).

Under OCGA § 16-8-40 (a), “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: (1) [b]y use of force; (2) [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” “The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983).” (Punctuation omitted.) Lowery v. State, 209 Ga. App. 5, 6 (432 SE2d 576) (1993); see Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974); Ramey v. State, 206 Ga. App. 308 (425 SE2d 385) (1992).

In the case sub judice, the evidence shows that appellant went into a convenience store on a Sunday, a day when the sale of beer was not allowed. Signs, which were located at the coolers, indicated that beer sales were not allowed on Sundays, and a bar had been placed through the handles of the cooler that contained beer so that the doors could not be opened without removing the bar. When appellant entered the store, he walked to the back of the store where the cooler containing the beer was located. He began yanking the doors, which would not open, causing a loud banging noise. Appellant finally broke the bar and managed to get the door open part of the way. He then reached into the cooler and removed three cases of beer; each case contained 24 beers.

Connie Stinson, who was the sales clerk on duty, testified that appellant did not act like a normal customer, he was uncoordinated, he staggered as he walked, his eyes appeared very large, he looked “crazed,” and she felt that he was under the influence of something. He dropped one of the cases, causing the beer to burst and spill “all over the floor.” Appellant then proceeded up the aisle toward the front of the store with one case of beer under his left arm and the other case of beer in his left hand; his right hand was free. At that point in time, Stinson attempted to explain to the appellant that she could not sell him any beer. Appellant replied in a voice that “wasn’t nice” that “[he] didn’t ask [her] to sell him any beer.” Stinson testified that, at this point, she became frightened and “hit the silent alarm” because “[she] didn’t know how much he was going to take.”

The appellant continued to proceed up the aisle with the beer, and when he reached the counter, he started grabbing packages of cigarettes. Stinson testified that she felt she would be safer away from the cash register. She moved away from it and hid behind a counter where the appellant could not see her. Stinson testified she heard the cash register start “screaming” or making a noise that would occur when someone “hit a wrong key or touched the cash register in a wrong way,” and thought the appellant was trying to open the cash register. Stinson testified that appellant then left the store. Appellant dropped several packages of cigarettes on the way out, and approximately 10 packages were missing from the cigarette count.

Stinson testified that she had been instructed to get the tag number of anyone who took anything from the store. Therefore, when appellant exited the store and began “throwing the beer into his car,” she went out the door and hid behind her car. Stinson’s pen would not write, and she attempted to write appellant’s tag number in the dew on the trunk lid of her car. At this point, the appellant saw Stinson, made eye contact with her, and screamed at her if she did not get her “A-S-S back in the room or back into the store he was going to shoot [her].” Even though Stinson did not see a gun, she testified that she was in fear for her safety.

This Court does not agree with appellant’s assertion that the only act of intimidation by appellant was his statement in the parking lot as he was leaving and Stinson was attempting to write down his tag number. It is clear from the evidence that the appellant, by his behavior and demeanor in the store, intimidated Stinson and made her fearful for her safety, and that appellant might do her immediate serious bodily injury. Appellant’s belligerent response to Stinson’s attempt to stop him by telling him she could not sell him the beer, coupled with his using physical force to break into the beer cooler and the fact that he appeared to be “crazed” or under the influence of drugs or alcohol, was such to create a reasonable apprehension on the part of Stinson that the appellant might do her immediate serious bodily injury in order to take the items. In fact, Stinson showed by her behavior that she was, in fact, intimidated; she pushed the silent alarm and hid in an area away from the cash register because she felt she would be safer. Appellant’s later conduct in the parking lot, when he threatened to shoot Stinson if she did not get back into the store, confirms that, in fact, her fear of immediate serious bodily injury was both reasonable and justified.

The fact that Stinson followed the appellant into the parking lot does not show that she was not intimidated and in fear of immediate serious bodily injury because of appellant’s behavior in the store. Stinson testified that the only reason she went outside was because she had been instructed to try and get the tag number of anyone taking items from the store. Furthermore, Stinson did not just follow the appellant out of the store, she tried to stay out of his sight and hid behind her car.

The evidence in the case sub judice is sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of the offense of robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided February 5, 1997.

Sawyer & Sawyer, Horace K. Sawyer III, for appellant.

Herbert E. Franklin, District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.


text:
    A97A0273.
    PAULSEN STREET INVESTORS v. EBCO GENERAL AGENCIES. CNL/INSURANCE AMERICA, INC. v. PAULSEN STREET INVESTORS.
    A97A0274.
    (481 SE2d 246)
   Eldridge, Judge.

Appellant Paulsen Street Investors, a Georgia limited partnership, was created on November 1, 1990, for the purpose of lending money to Agency Premium Finance Company (APF) to finance automobile premiums for insurance policies written by Bill Williams, Inc. Bill Williams, Inc. placed the automobile liability policies through appellees CNL/Insurance America, Inc. (CNL), EBCO General Agencies (EBCO), and Insurance Services Underwriters, Inc. (ISU). Periodically, insureds would fail to pay their monthly payments under the premium financing agreement and APF would give notice of cancellation of the insurance to the insurers; the insurers would then refund unearned premiums directly to the financing company, APF. However, CNL, EBCO, and ISU ceased to pay unearned premium refunds to APF but, instead, paid the refunds to Bill Williams, Inc.

Appellant gave APF a $100,000 line of credit, but APF exceeded such amount so that $590,000 was owed; some $300,000 of this sum was unearned insurance premiums which should have flowed through APF to appellant, but instead were paid by appellees to Bill Williams, Inc.

To secure its line of credit, appellant entered into a written security agreement with APF on November 5, 1990. Such security agreement gave an assignment to appellant of “all accounts receivable of APF, whether now or hereafter existing or acquired,” and “account receivable” was defined in the security agreement as “any right of APF to payment of money presently due or to become due from third parties for automobile insurance premiums financed by APF.” APF received from the insureds a premium financing agreement which set out the fees, penalties, and repayment of premiums for the insurance and which also provided that APF could cancel the insurance upon non-payment of premiums and receive back from the insurer any unearned premiums. Appellant, on November 9, 1990, filed a Uniform Commercial Code-1 financing statement covering “[a]ll accounts receivable, promissory notes, chattel paper and instruments held by the debtor and all proceeds derived therefrom.”

CNL, ISU, and EBCO, acting independently of each other at all times but in similar transactions, went to an account current accounting method by which Bill Williams, Inc. would retain all premiums paid and financed by APF, and at the end of each month the insurer or the insurer’s agent would account for all policies submitted by Bill Williams, Inc. and determine how much was then due. After notice of the amounts due, Bill Williams, Inc. was obligated to pay such amount to the insurer or its agent. The insurer or agent credited unearned premiums to the account of Bill Williams, Inc. and no longer paid such unearned premiums to APF. When neither APF nor Bill Williams, Inc. repaid the debt to appellant, it brought suit against them, as well as the appellees. On June 28, 1995, the trial court granted appellant’s motion for summary judgment against APF and Bill Williams, Inc. on the debt.

Appellees all filed separate general motions for summary judgment based upon a number of defenses which were never ruled upon by the trial court; therefore, the factual basis and legal issues are omitted as outside the jurisdiction of this Court, absent a ruling by the trial court. However, each appellee raised the issue of the standing of appellant to sue them for unearned premiums not returned to APF. On March 13, 1996, the trial court granted the motions for summary judgment on the standing issue alone, finding that accounts receivable under the UCC did not include the unearned insurance premiums, which were defined as general intangibles under the UCC definition. Appeal was timely filed on April 11, 1996.

Case No. A97A0273

Appellant’s sole enumeration is that the trial court erred in determining that the unearned insurance premiums constituted general intangibles under the Georgia Uniform Commercial Code and that appellant, therefore, does not have standing to assert its claims against the appellees.

OCGA § 11-9-104 reads, in part, “[t]his article [Secured Transactions] does not apply: ...(f) [t]o a transfer of an interest or claim in or under any policy of insurance, except as provided with respect to proceeds (Code Section 11-9-306) and priorities in proceeds (Code Section 11-9-312).”

An assignment of returned or unearned insurance premiums is a security interest. Edmondson v. Allen-Russell Ford, 577 F2d 291 (5th Cir. 1978). “The assignment in this case, although not specifically listed, is a security interest because it is an interest in property which secures payment of an obligation. . . . We think it clear beyond peradventure that the assignment of returned or unearned premiums . . . confers on the creditor an interest in property which helps to secure payment or performance of contractual obligations. . . . Returned or unearned premiums are in no sense a substitute for the specified collateral . . . and cannot be held to constitute its proceeds. . . . These premiums might be proceeds of the insurance policy, but they are not proceeds of the [collateral]. . . .” (Citations and punctuation omitted.) Id. at 294, 296; see also Gennuso v. Commercial Bank &c. Co., 566 F2d 437 (3rd Cir. 1977); Blalock v. Aetna Finance Co., 511 FSupp. 33 (N.D. Ga. 1980).

While not interpreted in Georgia, the statutory language of OCGA § 11-9-104 (f) has been uniformly held in other jurisdictions to exclude insurance and returned or unearned insurance premiums from the UCC. In re Braniff Intl. Airlines, 164 B. R. 820 (N.Y. 1994); In re Big Squaw Mountain Corp., 122 B. R. 831 (Me. 1990); In re Uly-Pak, 101 B. R. 551 (Ill. 1989); In re Universal Motor Express, 72 B. R. 208 (N.C. 1987); In re U. S. Repeating Arms Co., 67 B. R. 990 (Conn. 1986); In re Duke Roofing Co., 47 B. R. 990 (Mich. 1985); In the Matter of Rogers, 6 B. R. 472 (Iowa 1980); In the Matter of Redfeather Fast Freight, 1 B. R. 446 (Neb. 1979). Thus, the security agreement does not come within the ambit of the UCC, as it is expressly excluded. Therefore, the UCC definitions do not control.

“A chose in action is personalty to which the owner has a right of possession in the future or a right of immediate possession which is being wrongfully withheld.” OCGA § 44-12-20. OCGA §§ 44-12-20 and 44-12-22 made choses in action assignable where an interest in property was involved. Choses in action include the proceeds from a contract performance and are assignable. See Eibel v. Mechanics Loan &c. Co., 52 Ga. App. 349 (183 SE 133) (1935). Accounts are also assignable and can be sued upon. Mordecai v. Stewart, 37 Ga. 364 (1867); Southern R. Co. v. Pitner & Raines, 17 Ga. App. 451 (87 SE 754) (1916). A chose in action is the right of a creditor to be paid on a debt owed by a debtor. Water Processing Co. v. Toporek, 158 Ga. App. 502 (280 SE2d 901) (1981), rev’d on other grounds, Water Processing Co. v. Southern Golf Builders, 248 Ga. 597 (285 SE2d 21) (1981). A chose in action is a debt that the creditor has a right of immediate or future possession. In re Burnham, 12 B. R. 286 (Ga. 1981).

In the case sub judice, each insured signed a written premium financing agreement which gave APF the right to the statutory fees and penalties, the right to repayment of the advanced insurance premium, and the right to cancel the insurance and have the unearned premium returned to APF by the insurer or its agent in the event of non-payment of the installments to APF. This contract was an account receivable and includes all the bundle of rights to future payment or return of money. Such premium financing agreement and its terms were statutorily imposed. OCGA § 33-22-1 et seq.

A security interest is created by statute on behalf of the premium financer when the insured signs the insurance premium finance agreement. OCGA §§ 33-22-8; 33-22-11. If the premium finance company gives notice to the insurance company, then the insurer has a statutory, non-delegable duty to return upon cancellation the unearned premium to the source of the premium payment, the premium financing company. OCGA §§ 33-22-12; 33-22-14; see Ga. Mut. Ins. Co. v. Gardner, 205 Ga. App. 458 (422 SE2d 324) (1992); Ga. Ins. Co. v. White, 190 Ga. App. 208, 210-211 (378 SE2d 523) (1989); Capitol Premium Plan v. Integrity Ins. Co., 182 Ga. App. 620 (356 SE2d 897) (1987); Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 29 (1) (322 SE2d 78) (1984); Perry & Co. v. Knight Ins. Underwriters, 149 Ga. App. 128 (253 SE2d 808) (1979).

A premium finance company has a statutorily mandated and regulated account receivable in the premium financing agreement. OCGA § 33-22-8. Under such contract, it receives statutory fees and penalties along with the repayment of the premium. OCGA §§ 33-22-9; 33-22-10. In the event of cancellation, the premium financing company gets the return of the unearned portion of the insurance premium that it paid to the insurer on behalf of the insured. OCGA § 33-22-14. Therefore, the premium financing agreement with the insured constitutes an account receivable entitling the finance company to recapture its principle one way or the other, as well as any fees and penalties. In re Uly-Pak, supra at 554; In re Repeating Arms Co., supra; In the Matter of Redfeather Fast Freight, supra.

The premium finance company can transfer and assign such premium finance agreement and, more particularly, the right to the return of unpaid premiums; such transaction is governed by common law or statute outside the UCC, which expressly exempts insurance. In re Uly-Pak, supra; In the Matter of Rogers, supra at 474; In the Matter of Redfeather Fast Freight, supra at 450.

• OCGA § 33-22-14 creates a chose in action or statutory lien right in the unearned premiums in favor of the premium finance company; there are property rights which are assignable under OCGA §§ 44-12-22; 44-12-24; 44-14-325; 44-14-326. Appellant’s “Revolving Line of Credit and Security Agreement” with APF created a general assignment of all the premium financing agreements with the insureds as accounts receivable.

Any language in writing agreed to by both parties is sufficient to vest title of such personalty in an assignee. Southern &c. Ins. Assn. v. Durdin, 132 Ga. 495 (64 SE 264) (1909); William Iselin & Co. v. Davis, 157 Ga. App. 739 (278 SE2d 442) (1981); Lumpkin v. American Surety Co., 61 Ga. App. 777 (7 SE2d 687) (1940); see also Haug v. Riley, 101 Ga. 372 (29 SE 44) (1897); McLanahan v. Keith, 135 Ga. App. 117 (217 SE2d 420) (1975). Thus, appellant’s written security-agreement with APF assigned to appellant all of APF’s interest in the various premium financing agreements of the insureds, which gave appellant standing to bring suit on its right to the return of unearned premiums. The trial court erred in granting summary judgment on the issue of standing.

Decided February 5, 1997.

Inglesby, Falligant, Horne, Courington & Nash, Thomas A. Nash, Jr., for Paulsen Street Investors.

Lane, O’Brien & Caswell, Stephen J. Caswell, David E. Keystone, Bross & Saginar, Gary W. Bross, Gary L. Wimbish, for EBCO General Agencies.

Case No. A97A0274

CNL, cross-appellant, appeals from the denial of its motion to sever the trial of the cases of the appellee from the other appellees, because the claims against it did not arise out of the same facts and circumstances, but from similar facts and circumstances; there is no contention that it acted in concert or conspiracy with the other appellees.

OCGA § 9-11-42 is not identical with the Federal Rules of Civil Procedure upon which the Civil Practice Act was based because the General Assembly wished to limit the power of the trial court to consolidate cases for trial. Compare Federal Rules of Civil Procedure, Rule 42, 28 USC; Vitner v. Funk, 182 Ga. App. 39, 40-42 (1) (354 SE2d 666) (1987). The General Assembly required consent for consolidation of cases involving a common question of law or fact. OCGA § 9-11-42 (a). This case does not involve common questions of law of fact, but similar questions of law and fact; thus, it is distinguishable from Branch v. Maxwell, 203 Ga. App. 553, 554 (1) (417 SE2d 176) (1992), which involved the right for a third party to intervene in an action. Sound judicial economy may justify these cases being tried together by consent. However, this Court has held that when the questions of law and fact are similar, but not the same, it is an abuse of the trial court’s discretion to refuse severance upon timely motion. Brinks, Inc. v. Robinson, 215 Ga. App. 865 (452 SE2d 788) (1994); Howard, Motor Co. v. Swint, 214 Ga. App. 682 (448 SE2d 713) (1994); see also Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996). The trial court abused its discretion in denying the motion to sever.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

Arnall, Golden & Gregory, Jerome L. Kaplan, Ronald C. Thomason, for CNL/Insurance America, Inc.


text:
    A97A0320.
    BROOKSHIRE v. DIGBY.
    (481 SE2d 250)
   Eldridge, Judge.

In 1973, appellant, Virgil L. Brookshire, built an unusually constructed house to live in until he could sell it; a “For Sale” sign remained in the front yard. This was the second house that he had built. The house, located on Campground Road in Henry County, had a cathedral ceiling that ran the depth of the house with no ceiling joists; the roof was supported by the outside wall and an interior load-bearing wall that had knee bracing that ran from the top of the interior wall to the rafters, diagonally; except for the living room, where there was an angled suspended ceiling close to the rafters, the rest of the house had a suspended horizontal ceiling hanging by wires from the rafters with dead airspace above the drop ceiling, and the unusual framing could be detected only by placing an eight-foot stepladder under the drop ceiling, lifting a series of panels the length of the ceiling, and using a flashlight to inspect the closed airspace. The electrical fixtures in the hanging ceiling were also attached to the rafters by wires and not fixed to joists in the ceiling. Only one wall in the kitchen was covered by sheetrock; the rest of the exterior and interior walls were framed out with studs and covered by plywood paneling, not with sheetrock behind the paneling. When the house was built, appellant subcontracted all the work except the grading, insulation, paneling, and drop ceiling, which he did himself, but he generally supervised all the other work done.

Appellee, Marylee H. Digby, saw the for sale sign and visited the house in October 1985, when the appellant’s daughter was home alone. At that time, she saw only the living room and kitchen. Appellee then talked to appellant several times by telephone about the house. Appellant told appellee that he was a home builder and that he had built the house for his family with good quality materials and workmanship, but did not reveal that this was only the second house that he had built and that it had an unusual framing and roof structure, which was concealed by the drop ceiling and that a layperson would not recognize as different. Appellee relied upon the representation that appellant was a home builder, that he did good workmanship using quality materials, and that the house had been built for appellant’s family. Appellee looked at the house three times prior to signing the contract to purchase the house. Appellant urged appellee to look at a current home under construction to see the framing and the type of work, quality of materials, and workmanship that he represented was present in his home, which appellee did; the house that appellant was building had ceiling joists and sheetrock ceilings, as well as sheetrock walls, unlike the house that was sold to appellee. Thus, the house appellee was urged to view under construction was not in fact representative, but such differences were not readily observable to the untrained observer. Appellant never told appellee that the Campground Road house had no ceiling joists because she never asked. Appellant never told appellee that the house had no ceiling above the suspended ceiling because she never asked. However, he did tell her that the suspended ceiling was used because it provided better insulation. Appellee could not see into the space above the drop ceiling unless she used a ladder, lifted a tile, and used a light, because there were no pull-down stairs and the area was dark' above the drop ceiling. Appellant referred to the area above the drop ceiling as attic space, and he knew that appellee thought there was an attic from her comment about light from the top of the closet.

Appellee testified that she had been told that there were existing wiring and plumbing outlets in the basement for a washer-dryer, because appellant had a washer-dryer there previously, but when she moved into the house, the connections were not present. Appellant’s answer was that the connections had been there but had been removed and could be reinstalled. She had been told that there was a gas space heater operating in the basement, but no line was connected to the LP gas tank. Appellee asked about the average monthly cost of heating and air conditioning and was shown a monthly bill for $125, which was represented to be the monthly average bill; the average heating bill actually ran around $300 each month. She asked about the well electric pump and was told that it had been replaced two years previously; after the first few months of appellee’s occupancy, the pump went out and had to be replaced because it had worn out and was much older than two years. Appellant’s explanation was that the pump had gone out while he had been away on a hunting trip and he had been charged for the replacement of the pump by the plumbers that his wife called. Appellee asked about termites and termite treatment, and appellant told her that there had been no problems, that he had treated the ground for termites, and that there was no termite damage. The spring that appellee moved into the house the termites swarmed, , and a termite inspector found old termite damage. Appellant testified that they had never had problems with termites and that he had treated the ground for termites just as he had been instructed. Appellee asked if there was any water in the basement and was told that there never had been a problem; upon moving in, during the first really wet season, the basement flooded and continued to flood. Appellant testified that there had been a problem with flooding in the past, but that new gutters and the poring of the patio had stopped the problem; when the problem existed, the leaking water had been minor; on cross-examination, appellant was impeached by his prior deposition testimony that the basement had flooded.

Appellee testified about a number of problems that she found upon moving into the house: drain lines that drained slowly because there was insufficient fall in the lines; plumbing leaks; movement in the walls and windows; no sheetrock walls behind paneling; washing machine drainage into the well. Appellant and his wife denied any knowledge of any problems in such areas. After appellee moved into the house, the insulation over the living room pulled loose, causing the suspended ceiling to collapse in the living room; the bathroom ceiling also collapsed bringing down the overhead light and exhaust fan; the Florida room ceiling collapsed twice. The overhead lighting secured by wire to the rafters collapsed. Appellee asked appellant if there were any defects in the house, and appellant told her no. When the well pump that was alleged to be only two years old failed, she called the plumber that appellant told her had replaced it, and she learned that he had not been called upon to work on the pump at all in the past by appellant or his wife.

Based upon an action in fraud, appellee obtained a verdict for $25,000 against appellant. Appellant’s motion for directed verdict was denied by the trial court.

Appellant’s sole enumeration of error is that the trial court erred in denying his motion for directed verdict.

Appellant made several representations to appellee which were not true, which were designed to mislead appellee, which she relied upon, which she could not discover in the exercise of reasonable care, and which she was damaged proximately to wit: the statement that the basement never had leaked; that the house had no defects; that there were washer-dryer connections in the basement; that there was an operating gas space heater in the basement; that the well pump had been replaced by a particular plumber within the last two years; and that there existed an “attic with floor joists” above the drop ceiling. All of these were disputed issues of fact as to credibility and as to whether appellant made such statements or not. All of the above fall into either positive misstatement of fact or active concealment of fact. “Mere concealment of (a material fact), unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element.’ [Cit.] ‘The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. (Cit.) An action for fraud and deceit must (be based upon a) representation (or . . . concealment) (which) was made with the intention and purpose of deceiving the opposite party ((cit.)), and for the purpose of injuring him. (Cit.)’ Camp Realty Co. v. Jennings, 77 Ga. App. 149, 151 (47 SE2d 917) (1948). Tn all cases of deceit, knowledge of the falsehood constitutes an essential element.’ Cooley v. King & Co., 113 Ga. 1163 (2) (39 SE 486) (1901). ‘ “In order to recover in an action of deceit, it is indispensable that the scienter be . . . proved.” ’ Leatherwood v. Boomershine Motors, 53 Ga. App. 592, 593 (186 SE 897) (1936).” Lively v. Garnick, 160 Ga. App. 591, 592 (1) (287 SE2d 553) (1981).

In the case sub judice, appellant denied flooding in his basement until impeached by his prior deposition. Appellant sent appellee to look at a different framing structure in a house that he was building, but represented to her that it was similar to his house; the house under construction had ceiling joists and an attic, which assisted in deceiving her that there were ceiling joists and an attic space above the drop ceiling in his house. The well pump was old and had not been replaced by the named plumber two years previously, as appellant told appellee. Appellant knew that, when remodeling the basement, he had removed the washer-dryer connections, but he represented that they existed. From such acts, an issue of scienter was raised.

The other latent defects, such as the absence of sheetrock walls and ceiling joists, also come under “passive concealment.” See Wilhite v. Mays, 140 Ga. App. 816, 817-818 (232 SE2d 141) (1976), aff’d, 239 Ga. 31, 32 (235 SE2d 532) (1977). “[TJhere is the situation where the seller knows of a material defect. He does not attempt to hide the problem from the prospective buyer and he does not prevaricate. He simply keeps his mouth shut. In situations such as this, the general rule in sales of real property has been caveat emptor — let the buyer beware. . . . [However], in cases of passive concealment by the seller of defective realty, we find there to be an exception to the rule of caveat emptor, which exception is applicable to the instant case. That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to the facts which would be important to the buyer and would probably affect its decision.” Wilhite v. Mays, supra at 817-818; see also Holman v. Ruesken, 246 Ga. 557, 558 (272 SE2d 292) (1980); P. B. R. Enterprises v. Perren, 243 Ga. 280, 282-283 (4) (253 SE2d 765) (1979); Perrett v. Dollard, 176 Ga. App. 829, 830 (2) (338 SE2d 56) (1985); Lively v. Garnick, supra at 593. As the builder, general contractor, and homeowner, appellant had special knowledge about the house and that it was “unique” in its construction; the house was without ceiling joists and used knee braces, which facts were concealed by the drop ceiling. Further, there was an absence of sheetrock on exterior and interior walls concealed under the paneling. In addition, from his conversations with appellee, appellant knew that the presence of “attic” space was important to her. Moreover, it can be argued that appellant’s urging appellee to look at a conventionally framed house being built by him as an example of the construction in his house, as well as the quality of workmanship and materials, was an intentional act of deception, since the framing was radically different from the stick-built house on Campground Road; at the least, this factor showed that appellant knew that appellee had a different understanding of “attic space” and drop ceilings because appellant caused such misunderstanding by having appellee compare what was not comparable, the framing. Since the Campground Road house used a vaulted drop ceiling, wire-suspended fixtures, and no ceiling joists, which was very unusual construction, and did not have sheetrock on the walls, these were the very types of “passive concealment” issues that were intended to be dealt with under such theory of fraud and which appellee in the exercise of due diligence could not detect. Moreover, if appellee had detected these conditions, she would not have understood the significance of the construction, because it was so “unique.”

The termite damage, the slow drainage of waste water, and similar defects were factual issues of which the jury could believe that appellant had actual knowledge, but denied knowing. However, this Court has designated this as constructive fraud, i.e., fraud without scienter, where the builder-owner “should have known” that the representations were not true or conceals material information that he “should have known”; it also has been treated as fraud through negligence. Holmes v. Worthey, 159 Ga. App. 262, 271-272 (282 SE2d 919) (1981), aff’d, 249 Ga. 104, 105-106 (2) (287 SE2d 9) (1982); Rose Mill Homes v. Michel, 155 Ga. App. 808, 810 (273 SE2d 211) (1980); Davis v. Hopkins, 50 Ga. App. 654, 656 (2) (179 SE 213) (1935). In the case sub judice, appellant’s representations or failure to disclose as to such latent defects, about which he professes ignorance concerning their existence after building the house and living in it for 12 years, comes within this species of fraud. Reckless representation of facts as true without knowledge is actionable as a species of fraud without scienter. Rose Mill Homes v. Michel, supra at 810.

Appellant contends that a directed verdict should have been granted to him on the failure of appellee to exercise reasonable diligence to discover upon reasonable inspection the various latent defects. If after twelve years of living in the house, appellant had not discovered the termite damage, the slow drains or similar defects which he denies knowing, then it is reasonable to believe that appellee in her three visits would be unable to discover such latent defects either. In the absence of pull-down attic steps or an eight-foot stepladder and a light, appellee could not inspect the area above the drop ceiling; even pushing a tile up with a broom would not allow a view of the framing and knee braces; unless a number of tiles were removed, it would not reveal the absence of ceiling joists or the significance of their absence, because the framing was so “unique”; only appellant, as the builder, or someone of equal training would understand the significance of the framing and drop ceiling, if it could be readily seen. Appellant, by having appellee inspect the framing in progress in the uncompleted house, engaged in misdirection of appellee in her attempt to act diligently; appellant also knew that appellee placed unusual trust in him because he held himself out as a home builder who used high quality materials and workmanship. Obviously, appellee did not remember the old folk saying about the children of the cobbler not having shoes.

Appellee did make two extensive inspections of the premises and even brought her father to help inspect. More importantly, she asked many questions regarding the existence of defects and was given false, deceptive, or reckless answers or was otherwise misdirected, which defeated efforts to exercise due diligence. Under the various theories of fraud, due diligence must be proved in order to recover. See Holman v. Ruesken, supra; Smith v. Stanley, 223 Ga. App. 334 (477 SE2d 618) (1996); Delk v. Tom Peterson Realtors, 220 Ga. App. 576 (469 SE2d 741) (1996); Hanlon v. Thornton, 218 Ga. App. 500 (462 SE2d 154) (1995); Miller v. Clabby, 178 Ga. App. 821 (344 SE2d 751) (1986); Lively v. Garnick, supra. Where water leaks or other latent defects are not obvious or manifested through stains or other signs of damage, absent circumstances or other factors causing the defects to become discoverable, such as a rainy day, such latent defects are not discoverable through due diligence. Wilson v. Brighton Homes, 204 Ga. App. 677, 678-680 (2), (3) (420 SE2d 360) (1992); Rose Mill Homes v. Michel, supra at 809; see also Smith v. Stanley, supra. Where the latent defects were not discoverable through normal, visual inspection because of a drop ceiling which conceals the defects or walls that cover up the latent defects, then visual inspection would constitute due diligence under the circumstances. Fincher v. Bergeron, 193 Ga. App. 256, 259 (1) (387 SE2d 371) (1989). Under the circumstances, it is for the trier of fact, the jury, to determine if due diligence was exercised by the appellee under the facts and circumstances of the case sub judice; we cannot say as a matter of law that there was a failure to exercise due diligence when the jury found fraud. Fincher v. Bergeron, supra; Rose Mill Homes v. Michel, supra at 809; Wilhite v. Mays, supra.

“In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. Folsom v. Vangilder, 159 Ga. App. 844 (285 SE2d 583) (1981). The standard used to review the grant or denial of a directed verdict is the any evidence’ test. Ga. Dept. of Human Resources v. Montgomery, 248 Ga. 465 (284 SE2d 263) (1981).” Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983). The trial court did not err in denying the motion for directed verdict, because there exists more than “any evidence” to support the jury verdict for the appellee.

Decided February 5, 1997

Webb & Lindsey, Mark D. Oldenburg, for appellant.

Talley & Sharp, Daniel S. Digby, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A96A2454.
    TOLLMAN v. ZAMANI et al.
    (481 SE2d 232)
   Blackburn, Judge.

Lawrence A. Tollman appeals the trial court’s grant of summary judgment to Mostafa Zamani and Frank B. Bradshaw, Jr., on Toll-man’s claim for damages he sustained while a licensee on property owned by Bradshaw.

On the morning of February 18, 1994, Tollman’s car broke down on his way to work. Tollman walked to a convenience store to call a co-worker to come pick him up. The convenience store was owned and operated by Zamani, who leased the building from Bradshaw. Zamani also had parking rights in the adjacent parking lot, which was owned by Bradshaw.

After using the phone, Tollman went outside the store and stood in the parking lot waiting for his co-worker to arrive. The store stood at the top of an incline, and the parking lot sloped downward from the store toward the street. In the parking lot close to the street was a concrete block approximately ten inches high and thirty inches wide. Protruding from the top of the block were four metal bolts approximately six inches high.

While waiting for his co-worker, Tollman stood near the block. As he was standing there, a car which had been parked in front of the convenience store rolled down the incline and hit Tollman in the back, pinning him against the block. The metal bolts pierced Toll-man’s leg, causing severe damage. Tollman sued Bradshaw and Zamani as the owner and operator of the premises, alleging that the block and bolts constituted a dangerous condition. The trial court granted summary judgment to Zamani and Bradshaw, and Tollman appeals.

On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). In order to prevail on summary judgment, a defendant must negate at least one essential element under every theory of recovery fairly drawn from the pleadings and the evidence. Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 49 (3) (332 SE2d 304) (1985).

The parties agree that Tollman’s status at the time of the accident was that of a licensee. Under Georgia law, “[t]he owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b). ‘An owner owes to a licensee no duty as to the condition of the premises save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm. This is the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared.” (Citation and punctuation omitted.) Wren v. Harrison, 165 Ga. App. 847, 848-849 (303 SE2d 67) (1983).

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” (Punctuation omitted.) Strickland v. ITT Rayonier, 162 Ga. App. 317, 318 (2) (291 SE2d 396) (1982). “[W]here a licensee has equal knowledge of the dangerous condition or the risks involved, there is no wilful or wanton action on the part of the owner and there is no liability to the licensee.” Evans v. Parker, 172 Ga. App. 416, 417 (1) (323 SE2d 276) (1984).

Pretermitting the question of whether the block constituted an unreasonably dangerous condition, the evidence clearly shows that Tollman knew or should have known of the block and any risks posed thereby. Tollman admitted in his deposition that he walked toward the block after leaving the store and stood near the block for some time waiting for his co-worker to arrive. He admitted that it was daylight, that there was nothing obstructing his view of the block, and that the block was in front of him for him to examine if he had chosen to do so. Although he stated that he did not know how far he was standing from the block, he testified that he was standing near the block and fell forward onto the block when struck in the back by the car.

Decided January 22, 1997

Reconsideration denied February 6, 1997.

Arnall, Golden & Gregory, James A. Gober, Scott E. Taylor, for appellant.

The evidence thus clearly establishes that Tollman knew or should have known of the existence of the block with its protruding bolts. See MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996) (“where there is nothing to obstruct or interfere with the [visitor’s] ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved”). The only risk potentially posed by the block was the risk that an individual would fall or be knocked onto the block and the protruding bolts, and these risks would be equally apparent to any individual with knowledge of the block. The fact that Tollman was struck from an unexpected direction does not alter the analysis, as there is no evidence that Bradshaw or Zamani had greater knowledge than Toll-man of the particular risk that a parked car would roll down the incline and pin Tollman against the block. Indeed, Tollman testified at his deposition that he had trained and worked as an auto mechanic and was well aware of the fact that parked cars sometimes roll down hills because they slip out of gear or a parking brake is not properly applied. Thus, Tollman had equal or superior knowledge of the risks posed by standing near the block.

Intl. Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986), cited by Tollman, does not change the analysis. That case held that a landowner whose land is immediately adjacent to a public way “may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault, fall upon and be injured by the artificial condition. If an artificial condition exists under these circumstances, the landowner owes a duty of due care to guard, cover or protect it for the safety of those on the public way” (Citations omitted; emphasis supplied.) Id. at 55. In the present case, Tollman was not using a public way when he was injured, but was a licensee standing on private property. The car which pinned him against the block was not operating on a public way, but had been parked on the private parking lot. The mere fact that the block was located close to a public street does not increase the duty owed by Bradshaw and Zamani to Tollman as a licensee.

Since Tollman knew or should have known of the existence of the block and the risks posed thereby, the trial court did not err in granting summary judgment to Zamani and Bradshaw. See Strickland, supra.

Judgment affirmed.

Birdsong, P. J., and Beasléy, J., concur.

Hawkins & Parnell, William H. Major III, Roger M. Goode, for appellees.


text:
    A96A2402.
    MATHIS v. THE STATE.
    (481 SE2d 256)
   Ruffin, Judge.

Lee Gordon Mathis appeals his convictions for aggravated assault and armed robbery. We affirm.

Construed in a light most favorable to support the verdict, the record shows the following. Megal Tuggle, his young son, and a friend, Marvin Benton, were vacuuming Tuggle’s girl friend’s car at a car wash when a man approached Tuggle from behind, put a gun in his side and demanded money and the car keys. Tuggle saw a second man with a gun in Benton’s face. The men pulled Tuggle’s son out of the car, ordered both men away from the car and drove the vehicle away.

Benton confirmed he was with Tuggle on the day of the robbery, that he felt and saw a gun placed against his leg and that the gunman demanded money. According to Benton, the second gunman aimed the gun at his face, repeated the demand for money and squeezed the trigger. However, the gun did not fire. Benton identified State’s Exhibit 2 as looking like the gun held by the second gunman.

After the two gunmen took the car, Tuggle immediately called 911, giving the police a description of the vehicle and its occupants. Both Tuggle and Benton described the second gunman’s long, distinctive hair, and a photograph showing Mathis’ bushy hair at the time of his arrest was admitted at trial. Tuggle identified the first gunman from a photographic lineup and made an in-court identification of Mathis as the second gunman. While Benton could not positively identify the second gunman, he stated in court that Mathis looked “sort of similar” to the second gunman.

Investigator Phillip Bradford testified he overheard a radio dispatch regarding a motor vehicle theft, spotted a car matching the description of the stolen vehicle and began pursuit in his unmarked vehicle. Marked patrol units joined him in a chase, which ended when the driver of the stolen vehicle lost control of the car. Bradford testified that no one entered or exited the vehicle from the time he spotted it until it stopped.

The driver of the stolen vehicle, Arthur James Cummings, jumped out with a handgun and began to run. He and the passenger, who was identified by Bradford as Mathis, were arrested. After Mathis was removed from the vehicle, Bradford discovered a pistol pushed down, but still visible, between the seat cushions where Mathis had been sitting. Tuggle and Benton testified there was no gun in the car prior to the robbery.

Cummings, who entered a guilty plea regarding the armed robbery, testified he had known Mathis for several years. According to Cummings, he approached the driver’s side of the stolen vehicle as Mathis approached the passenger’s side. He stated he only brought one gun to the robbery, denied ownership of the gun found where Mathis had been sitting in the stolen vehicle and testified he did not know whether Mathis had a gun. Cummings testified that from the time he stole the car until it spun out of control, he never stopped to let anyone into or out of the vehicle, and that Mathis and he were the only participants in the armed robbery. Contrary to Mathis’ testimony, Cummings specifically denied that his “cousin” was in any way involved or present during the robbery.

Mathis claimed to be at a liquor store when Cummings and his “cousin” drove up in the stolen vehicle. He testified that he got into the vehicle and the “cousin” got out of the vehicle. He stated the “cousin” had lighter skin than he did. While Mathis claimed he told a police officer about the “cousin,” the police denied that Mathis made any such statement.

1. We find no merit in Mathis’ contention that no rational trier of fact could have found him guilty beyond a reasonable doubt of armed robbery and aggravated assault. Although there was conflicting evidence presented by Mathis regarding his involvement in the robbery, “ ‘(i)t is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses. (Cits.)’ [Cit.]” Vick v. State, 211 Ga. App. 735, 736 (1) (440 SE2d 508) (1994). The foregoing evidence, construed in a light most favorable to support the verdict, was sufficient to authorize a rational trier of fact to find Mathis guilty beyond a reasonable doubt of the offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Mathis also contends the trial court erred in denying his request for a new trial based on ineffective assistance of counsel. Mathis argues his counsel was ineffective in his cross-examination of both Tuggle and Benton. After a hearing during which trial counsel testified, the court determined that trial counsel was effective. After examining the record, we agree.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Mathis] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless [Mathis] makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Additionally, the trial court’s determination that Mathis was not denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995). Mathis “must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]” Id.

Mathis first argues that trial counsel should have used Tuggle’s preliminary hearing testimony to impeach him during cross-examination at trial. However, Mathis fails to cite any passage in the preliminary hearing transcript to support this claim. Furthermore, the trial court, in its order denying Mathis’ amended motion for new trial, specifically held that the preliminary hearing transcript contained no such impeaching material and that Tuggle’s in-court identification was consistent with his prior testimony at the preliminary hearing. In addition, contrary to Mathis’ contention, his trial counsel did attempt to challenge the reliability of Tuggle’s in-court identification by pointing out that Tuggle’s main concern at the time of the robbery was with the gunman on his side of the vehicle, not the gunman on the passenger side. We find that Mathis has failed to show that trial counsel was deficient in his cross-examination of Tuggle.

Mathis further argues that trial counsel mishandled the cross-examination of Benton by asking him if he could identify Mathis as his attacker (resulting in Benton’s tentative response that Mathis looked “sort of similar”) when the State had not previously sought to elicit such an identification. Trial counsel, however, questioned Benton further, and it became clear that Benton was not sure in his identification. Since Benton never positively identified Mathis as participating in the crimes, Mathis has failed to show how he was prejudiced by trial counsel’s questioning.

Furthermore, “ ‘[t]he decisions on (what) witnesses to call, whether and how to conduct cross-examinations . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ [Cit.]” Van Alstine v. State, 263 Ga. 1, 3 (426 SE2d 360) (1993). “While other counsel, had they represented [Mathis], may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which [Mathis] and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.” (Citations and punctuation omitted.) Id. at 4-5. Accordingly, the trial court did not err by denying Mathis’ claim of ineffective assistance of counsel.

Decided February 6, 1997.

Hartley & Puls, Alton G. Hartley, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A96A2216.
    REID v. THE STATE.
    (481 SE2d 259)
   Beasley, Judge.

Reid was charged with two counts of simple battery (OCGA § 16-5-23 (a) (1), (2)) and one count of criminal trespass (OCGA § 16-7-21 (b) (3)). He was found guilty only of the trespass charge.

1. He first contends the evidence was not sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence is viewed with all reasonable inferences .made, and all issues of weight and credibility resolved, in favor of the verdict. Id.; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986). As charged here, criminal trespass is committed when a person “knowingly and without authority . . . [r]emains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner ... to depart.” OCGA § 16-7-21 (b) (3).

Caputi, a hospital security guard, testified he was called to the pediatrics ward and advised by a nurse that Reid was causing a disturbance. Caputi also spoke with a woman who identified herself as the mother of a child who was hospitalized in the room where Reid was. Caputi entered the room, identified himself, and told Reid he would have to leave the room because he was causing a disturbance. Reid, who was on the telephone, responded that he would not do so and that the child was his. Caputi called for police on a two-way radio and then disconnected the telephone. Reid started out the door and turned toward the elevators. Before he got there, he turned again and began to walk in the direction of the nurses’ station where the child’s mother was standing. Caputi stepped in front of him, Reid struck Caputi on the chest, and Caputi placed him in handcuffs. Caputi did not see Reid’s action in the child’s room but acted upon what he had been told by the nurse and the patient’s mother. It was his duty to tell troublesome persons to leave the premises.

Reid testified that he had taken his son to the hospital and that any disturbance was created by his common law wife, the patient’s mother, with whom he did not get along. Although his testimony differed somewhat from Caputi’s, Reid admitted that Caputi entered the room and told him to leave. Reid said he asked for a clarification of the disturbance and an explanation of why he had to leave, but Caputi gave none. He also testified that when he left the room, he saw his wife at the nurses’ station and changed direction to return to the room when Caputi grabbed him and threw him against the wall.

Reid contends the evidence was insufficient because Caputi physically blocked his exit from the hospital, solely because Caputi assumed Reid wished to confront his wife. But Caputi testified he told Reid to leave the room in which he was on the telephone but he refused. This alone was sufficient evidence of criminal trespass. The statute requires that a person advised to leave must do so within a reasonable time in the circumstances, which is a question for the factfinder. See Sizemore Security Intl. v. Lee, 161 Ga. App. 332, 334 (1) (287 SE2d 782) (1982). Second, there is no evidence that Caputi blocked his exit from the hospital. Caputi testified he blocked Reid when he changed course from the elevators toward where his wife was standing, that he feared Reid would make contact with her, and that there were no elevators in that direction. Reid testified he had changed course so as to return to the room from which he had been ordered to leave, not that Caputi blocked him from going to the elevators. See Johnson v. State, 172 Ga. App. 333, 334-335 (2) (323 SE2d 255) (1984).

Reid also argues his testimony shows he was the one who brought his son to the hospital and he did not think it fair he was ordered to leave when his wife caused the problem. Caputi testified that whether Reid brought the child to the hospital would not be a factor in determining whether he would be asked to leave after causing a disturbance. Nor does Reid suggest how that fact would privilege him to remain after notice. As recounted above, evidence contradicts Reid’s contention that he was willingly leaving the hospital. The differing versions of events only presented a conflict for the jury’s resolution. Cantrell v. State, 210 Ga. App. 218, 219-220 (1) (435 SE2d 737) (1993). The evidence was sufficient to support the verdict, and the conviction itself is affirmed. Jackson v. Virginia, supra; Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993).

2. Reid challenges the legality of the court’s imposition of “50 hours of community service to reimburse Clarke County for the reasonable value of your attorney services that you’ve received in this case, which is through the public defender’s office.”

OCGA § 17-12-10 (c) allows the court to order an indigent defendant who has received appointed counsel to provide reimbursement for the employment of his attorney and other costs “[t]o the extent that [he] is able.” Reid contends the court could not require reimbursement without any determination that he was able to pay.

The court did not conduct a hearing to determine whether and to what extent Reid was able to pay. “OCGA § 17-12-10 (c) . . . does not expressly require a hearing but gives the trial court the discretion to order payment or reimbursement ‘to the extent that (an indigent) person ... is able to provide for the employment of an attorney.’ To determine ability, it is obvious that the court would have to inquire and determine such facts as the amount of defendant’s income, assets, expenses, and outstanding obligations so as to have some basis for finding ability to pay or reimburse. [Cits.]” Miller v. State, 221 Ga. App. 718, 721 (2) (472 SE2d 697) (1996). “By the time of sentencing of an indigent defendant who has had to supply financial data in order to qualify for appointment of counsel and who may have been subject to a presentence investigation, the court may already have enough information to serve as an adequate basis for ordering reimbursement. The court can put this basis into the record.” Id.

No such basis was recorded. The court only inquired whether Reid worked, how often, and at what rate of pay. This occurred immediately after the imposition of community service to enable the court to schedule payments for the $250 fine and surcharges which were part of the sentence. Reid was also sentenced to 12 months probation. As a basis for requiring reimbursement, it was incomplete because there was no attempt to “determine such facts as the amount of defendant’s income, assets, expenses, and outstanding obligations.” Id.

This is not a case in which we can determine that the court had access to financial data about Reid to the extent necessary to make the required determination, even if it had placed its reasons into the record. Compare Miller, supra; Penaherrera v. State, 211 Ga. App. 162, 165 (2) (438 SE2d 661) (1993). No pretrial affidavit of indigence or application for indigent status appears, and there was no testimony or discussion of Reid’s assets or obligations prior to the sentence pronouncement. Neither did the court inquire into the reasonable value of the attorney services. Compare Miller, supra at 722.

Reid does not challenge the authority of the court to order community service as a form of “payment or restitution” under the statute, so we do not address that issue.

Although the court sentenced Reid to reimburse the county by performing service, not paying funds, the sentence still transfers value from Reid to the county to repay the county for value already received. In the related, but separate, area of victim restitution, see Miller, supra at 720-723, the statute specifically defines “restitution” to include services when the victim is a governmental agency. OCGA § 17-14-2 (7). The fact that reimbursement has been ordered in the form of service does not affect the Code section’s prerequisite that reimbursement be ordered only when the defendant has the financial ability to “provide for the employment of an attorney.” OCGA § 17-12-10; see Penaherrera, supra at 165 (2).

Decided February 7, 1997.

Deborah N. Bedsole, John W. Donnelly, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

The State contends this enumeration has been waived by Reid’s failure to object to the sentence at the time it was rendered. See McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994). But the State does not cite any case holding that the absence of the necessary finding is waived by failure to object to the procedure. Nor. have we previously treated the failure as a bar to an enumeration based upon noncompliance with OCGA § 17-12-10 (c). See Miller, supra at 722, in which we addressed the enumeration despite the fact that at sentencing “the amount to be paid was aired, [and] defendant did not question it.” The omission of a prior inquiry and findings required by OCGA § 17-12-10 (c) is akin to the requirement of OCGA § 17-10-2 (a) that a presentencing hearing be held prior to pronouncing a felony sentence. Here, as there, the absence of investigation is neither harmless nor waived by failure to object. Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992).

As there was no record basis for the trial court to determine that Reid was “able to provide for the employment of an attorney,” that portion of the sentence which required community service must be vacated and the case remanded for resentencing in this regard, consistent with the statute and case law. See Owens v. State, 187 Ga. App. 262, 263 (2) (369 SE2d 919) (1988).

Judgment affirmed in part and vacated in part and remanded.

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


text:
    A96A2268.
    In the Interest of D. A. D., a child.
    (481 SE2d 262)
   Ruffin, Judge.

A juvenile court found that D. A. D. committed the delinquent act of disorderly conduct. The court placed D. A. D. on probation and ordered him to adhere to a 6:00 p.m. curfew, write a letter of apology, and pay a $50 supervisory fee. D. A. D. appeals, and we affirm.

1. In his second through sixth enumerations of error, D. A. D. challenges the sufficiency of the evidence.

(a) Although D. A. D.’s fourth enumeration of error challenges the sufficiency of the evidence and asserts that the offense charged was so vague and indefinite as to violate due process and equal protection, we will consider only the sufficiency of the evidence claim. “OCGA § 5-6-40 requires that enumerations shall set out separately each error upon which relied. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (cit.) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.’ [Cits.]” White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996). D. A. D.’s assertion that the charge was vague and indefinite is deemed abandoned. See id.

(b) “Where a juvenile is charged with an offense which for an adult would be a crime, the standard of proof in the lower court is beyond a reasonable doubt.” (Citation and punctuation omitted.) In the Interest of J. D. G, 207 Ga. App. 698, 700 (3) (429 SE2d 118) (1993). In this appeal we will review the evidence in the light most favorable to the judgment to determine whether there was sufficient evidence such that a rational trier of fact could find D. A. D. guilty of disorderly conduct under Thomaston’s City Ordinance. Id.

Viewed in this light, the evidence shows that at the time of the offense, D. A. D. was a 12-year-old student at Upson Lee Middle School and was attending his physical education class instructed by Carl Flowers. Although most of the class was playing touch football, D. A. D. and six or seven other students were sitting on steps observing because they did not “dress out” in shorts and a t-shirt that day. When another class of special education students walked by the steps, D. A. D. called one of the students “retarded.” After the other class left the area, Flowers approached the students on the steps to determine who made the statement. The students began shouting “it wasn’t me, it wasn’t me,” and Flowers told them to “be quiet” as he attempted to question each of them concerning the remark. However, D. A. D. continued talking, and Flowers stated “[D. A. D.,] will you shut up before I hit you in the mouth.” Flowers testified that when he asked D. A. D. about the incident, D. A. D. “slapped [his] hand and said, get your — get your fucking hands out of my face.” When Flowers told D. A. D. to go to the principal’s office, D. A. D. continued shouting obscenities, calling Flowers a “mother fucker” and stating, “suck my dick, you can suck my dick. You and Coach Caldwell both can suck my dick.” Flowers testified that the other students who heard D. A. D.’s statements were all in the sixth grade and 12 or 13 years old.

Thomaston’s disorderly conduct ordinance provides that “[i]t shall be unlawful for any person within the City of Thomaston to engage in any violent, tumultuous, obstreperous, or similar disorderly conduct tending to infringe on the peace and repose of the citizens of the City.” Thomaston Ordinance Ch. 22, Sec. 22-33. D. A. D.’s conduct in this case can certainly be described as obstreperous. Furthermore, the use of such language by a student toward a middle school teacher during a class period is such conduct as would tend to infringe on the relative peace of the other students individually and disrupt the class generally. Moreover, the evidence showed that D. A. D.’s conduct required Flowers to take time from his regular duties to deal with the situation. Under these circumstances, we find there was sufficient evidence for a rational trier of fact to find D. A. D. guilty beyond a reasonable doubt of disorderly conduct. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); In the Interest of J. D. G., supra. See also Washington v. State, 126 Ga. App. 180 (190 SE2d 138) (1972) (physical precedent only; noise caused by shouting students disrupted normal activity of school in violation of former Code Ann. § 26-2605 (now OCGA § 16-11-34)).

Decided February 7, 1997.

Ralph Washington, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

(c) Contrary to D. A. D.’s assertion, the State was not required to show that he used obscene language “without provocation” or that his statements constituted fighting words. The record shows that D. A. D. was charged under the Thomaston city ordinance and not OCGA § 16-11-39 (a) (4), which includes the “without provocation” element. Similarly, the Thomaston city ordinance does not include as an element of the offense that the language constituted “fighting words.”

2. D. A. D. also asserts that the trial court erred in reopening the evidence to admit two of the State’s exhibits. We disagree.

The transcript shows that the assistant district attorney and the trial judge stated that they thought the exhibits were already admitted. The court apparently then admitted the evidence without comment over the objection of D. A. D.’s counsel. “It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion. We find no such abuse of discretion.” (Citations and punctuation omitted.) Query v. State, 217 Ga. App. 61, 65 (6) (456 SE2d 704) (1995).

Judgment affirmed.

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