author: Johnson, Judge.

text:
    A97A0865.
    JCS ENTERPRISES, INC. v. VANLINER INSURANCE.
    (489 SE2d 95)
   Johnson, Judge.

In this case of first impression in Georgia, we are called upon to determine the rights of a secured creditor in insurance benefits payable from a third-party tortfeasor’s insurer upon the destruction of the collateral.

On August 21, 1995, JCS Enterprises sold a truck to Vicki and Jesse East. The Easts made a $1,000 down payment, and JCS financed the balance of $22,100 in a contract under which JCS retained a security interest in the truck. The next day JCS perfected its security interest under OCGA § 40-3-50 (b) by delivering to the Motor Vehicle Division of the Georgia Department of Revenue the previous title certificate and an application for a new title certificate, showing JCS as lienholder.

On September 7, 1995, the Easts’ truck was severely damaged in a collision with a truck owned by Otto Nelson & Sons, Inc. Nelson’s insurance carrier was Vanliner Insurance. Vanliner declared the Easts’ truck a total loss, and paid the Easts $26,245 as compensation for loss of the truck, loss of income, and rental expenses. Apparently $22,995 of this payment represented the truck’s value. The Easts never paid any of the $22,100 loan balance to JCS.

JCS sued Vanliner for conversion, contending it should have sent the portion of the insurance payment attributable to the truck to JCS, not to the Easts. Both parties moved for summary judgment. Vanliner argued it had no obligation to pay JCS instead of the Easts because it did not have actual notice of JCS’s security interest, and because the security interest did not extend to the insurance payment until it was received by the Easts. JCS asserted its security interest covered the insurance payment while it was still in Van-liner’s hands; that Vanliner had actual notice of the security interest; and that the lienholder notation on the title was constructive notice. The trial court granted Vanliner’s motion and made no explicit ruling on JCS’s motion. JCS appeals. For reasons explained below, we reverse.

1. Before we address the narrower issues presented by this case, we must review Georgia conversion law as it applies to secured parties. An exercise of “dominion or control” over secured property which is “inconsistent with” the rights of the secured party is conversion. Trust Co. of Columbus v. Associated Grocers Co-Op, 152 Ga. App. 701, 702 (2) (263 SE2d 676) (1979); see Privitera v. Addison, 190 Ga. App. 102, 106 (3) (378 SE2d 312) (1989). A conversion may be established even if the defendant did not apply the property to her own use. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987). “Where a sale of collateral is, with respect to the secured party, a conversion of the collateral, there is a conversion on the part of the one who sells, as well as on the part of the one who purchases, and the purchaser may be liable regardless of his intent, and of his lack of actual knowledge of the rights of the secured party.” (Citation and punctuation omitted.) Associated Grocers Co-Op, supra at 702 (2).

2. JCS claims it is irrelevant whether Vanliner had actual knowledge of its security interest in the truck, because Vanliner had constructive notice. We agree. It is undisputed JCS perfected its security interest by recording the lien on the title pursuant to OCGA § 40-3-50 .(b). This statute provides in pertinent part: “When the security interest is perfected as provided for in this subsection, it shall constitute notice to everybody of the security interest of the holder.” (Emphasis supplied.) Though we have found no cases deciding whether this use of “everybody” includes insurers of third-party tortfeasors, and the parties have cited none, “the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter.” OCGA § 1-3-1 (b). JCS’s perfection under the statute was therefore constructive notice to Vanliner.

3. Having established that JCS had a perfected security interest in the truck, and that Vanliner had constructive notice of it, we must next consider when the security interest extended to the insurance payment as well. Under Georgia’s version of the Uniform Commercial Code the insurance payment became “proceeds” of the truck, and therefore subject to JCS’s security interest, at some point in time. See OCGA §§ 11-9-306 (1), (2); 11-9-203 (3). JCS contends this occurred as soon as the payment was otherwise payable to the Easts, and that the trial court therefore erred in concluding ‘Vanliner can pay whoever they want, whatever they want. . . . JCS had no interest which Vanliner defeated by a payment to the Easts.” Though the trial court did not further explain this holding, Vanliner contends it was correct because the payment did not become “proceeds” until it was actually received by the Easts.

The parties have not cited, nor have we found, any Georgia cases addressing this question. JCS and Vanliner have each cited cases from other jurisdictions supporting their respective positions. As discussed below, JCS’s position reflects a better reading of the Georgia statutes, which differ in some respects from the statutes construed in some of Vanliner’s cases. We therefore hold the trial court erred in granting Vanliner’s motion for summary judgment and failing to grant JCS’s.

OCGA § 11-9-306 (1) provides in pertinent part: “‘Proceeds’ includes whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds.” (Emphasis supplied.) The timing issue is not resolved by giving both “received” and “payable” their ordinary meanings because “received” is in the past tense, while “payable” refers to present susceptibility to future payment. Another rule of statutory construction, however, is that a specific provision of law prevails over a more general one. See G. H. Bass & Co. v. Fulton County &c., 222 Ga. App. 118, 119 (2) (473 SE2d 253) (1996). Even if we assume without deciding that proceeds generally are not proceeds until “received” by the debtor, the General Assembly’s use of “payable” with specific reference to insurance payments indicates they are proceeds even before they are paid. Similar UCC provisions in Oklahoma and Illinois were similarly interpreted in First Nat. Bank of Bethany v. American Gen. Fire &c. Co., 927 F2d 1126, 1128 (10th Cir. 1991), and In the Matter of Reda, Inc., 54 BR 871 (Bkrtcy. N.D. Ill. 1985).

The foreign cases reaching the opposite result are either distinguishable or unpersuasive. We will address some of the distinguishable cases first.

In Terra Western Corp. v. Berry & Co., 295 NW2d 693, 696-698 (Neb. 1980), the Nebraska Supreme Court interpreted a version of UCC § 9-306 that defined “proceeds” to include insurance payments that were “received,” but which did not use the word “payable.” In Intl. Harvester Credit Corp. v. Valdez, 709 P2d 1233, 1236 (Wash. App. 1985), there was no discussion of a statute comparable to OCGA § 11-9-306 (1), and the court further noted that “International’s perfection of its security interest in the tractor did not provide Valdez or his insurer with notice of that interest,” which is contrary to the law in Georgia for reasons discussed in Division 2 above. The Pennsylvania Superior Court’s decision in Chrysler Credit Corp. v. Smith, 643 A2d 1098, 1100-1102 (Pa. Super. 1994), also relied heavily on the lack of actual notice to the insurer and a determination that the language of Pennsylvania’s version of UCC § 9-306 did not render insurance payments “proceeds” until they were “received.” In Judah AMC & Jeep v. Old Republic Ins. Co., 293 NW2d 212, 214 (Iowa 1980), the Iowa Supreme Court construed Iowa’s version of UCC § 9-306 in pari materia with its version of UCC § 9-318 (3), which it held required actual notice to the insurer. OCGA § 11-9-318 (3), however, requires only “notification,” which under OCGA § 11-1-201 (27) is effective upon an organization no later than “when [notification] would have been brought to [the individual conducting the transaction’s] attention if the organization had exercised due diligence” — in short, constructive notice. There is also no indication in Judah AMC that Iowa had a constructive notice statute comparable to OCGA § 40-3-50 (b). In Fidelity Financial Svcs. v. Blaser, 889 P2d 268, 270-271 (Okl. 1995), the Oklahoma Supreme Court declined to consider the secured party’s conversion claim, holding it had been waived when it was not asserted below; compare First Nat. Bank of Bethany, supra.

Foreign cases we find unpersuasive include Scholfield Bros., Inc. v. State Farm &c. Ins. Co., 752 P2d 661 (Kan. 1988), and State Auto. &c. Ins. Co. v. Chrysler Credit Corp., 792 SW2d 626 (Ky. App. 1990). The Kansas Supreme Court in Scholfield Bros. found no conversion claim based on Intl. Harvester, supra, and two Kansas pre-UCC cases. It then considered a claim based on Kansas’ version of UCC § 9-306 (1), worded identically to OCGA § 11-9-306 (1), as a separate cause of action. 752 P2d at 664-666. We do not understand why the UCC would have been considered irrelevant to the conversion claim. The Kentucky Supreme Court in Chrysler Credit based its decision on public policy concerns that cannot outweigh our Georgia statutory guidance to the contrary. 792 SW2d at 629.

We agree with the court in Reda, Inc., supra, that although some courts, have interpreted UCC § 9-306 “to mean that proceeds do not come into existence until they are received, [cit.], the better view is that the right to payment under the insurance policy is also proceeds for these purposes and is subject to Article 9 of the U.C.C. [Cits.]” (Emphasis omitted.) 54 BR at 875. JCS’s security interest therefore extended to the insurance payment before Vanliner transmitted it to the Easts. By making the payment to the Easts, Vanliner exercised dominion and control over it in a manner inconsistent with JCS’s interest. Vanliner therefore converted the payment, and the trial court erred in holding otherwise. See generally Associated Grocers Co-Op, supra; see also Nationwide Ins. Co. v. Bank of Forest, 368 S2d 1273, 1275-1276 (Miss. 1979), reaching the same result without reference to the UCC. As the Mississippi Supreme Court said in that case, “[0]rdinary prudence, at the very minimum, would require a cursory investigation of title before an owner was paid the full value of the vehicle, less salvage value, in settlement of a claim. Had this been done both the [secured creditor] and [the tortfeasor’s insurer] would have been protected.” Id. at 1276.

4. Vanliner argues a different result is required by OCGA § 33-24-41, which provides in pertinent part: “Whenever the proceeds of or payments under a life or accident and sickness insurance policy or annuity contract become payable in accordance with the terms of the policy . . . and the insurer makes payment of the proceeds or payments in accordance with the terms of the policy . . . the person then designated in the policy ... as being entitled to the proceeds or payments, if legally competent, shall be entitled to receive the proceeds or payments and to give full acquittance for the proceeds or payments and the payments shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that the other person claims to be entitled to the payment or some interest in the policy or contract.” (Emphasis supplied.)

It is undisputed JCS did not send such written notice to Van-liner’s home office. We do not find this fact relevant, however, because this statute does not apply to the situation before us. By its own terms, the statute applies only to a “life” policy or an “accident and sickness” policy. This terminology refers to insurance on the life or health of a person. Policies insuring vehicles, by contrast, typically provide for “collision,” “liability,” “comprehensive,” “personal injury,” or “medical payments” coverage. Moreover, in a vehicle policy there cannot be a single “person . . . designated in the policy” to receive proceeds or payments, because the identities of all the people or organizations who might become entitled to compensation as a result of a collision involving the insured vehicle are not known when the policy is issued. Though we have found no cases addressing this question, we hold OCGA § 33-24-41 does not apply to vehicle insurance policies.

5. We do point out that the failure to pay insurance proceeds to a secured party will not in all cases constitute conversion. The mere fact that a party has a security interest in collateral does not mean that it is automatically entitled to possession of insurance proceeds paid with respect to such collateral. In many cases, the parties’ security agreement will spell out their respective rights with respect to insurance proceeds; for instance, the secured party may allow the debtor to retain insurance proceeds provided they are used to repair the collateral. In such case, where the secured party has no possessory right to the proceeds, it cannot be conversion for the insurer to pay such proceeds to the debtor/insured.

Such concerns do not arise in this case, however. The parties’ security agreement did not contain any provisions regarding the distribution of insurance proceeds. It is undisputed that the debtor was in default, and, under OCGA § 11-9-503, “[ujnless otherwise agreed a secured party has on default the right to take possession of the collateral.” The insurer was placed on notice of the existence of the creditor’s lien, and was thus placed under an obligation to investigate the status of title before releasing the proceeds. Had the insurer done so, it could have learned that the debtor was in default and that the creditor was entitled to the proceeds. Under these facts, the insurer’s actions constituted conversion.

6. Because we find the issues discussed above dispositive, we do not reach issues concerning any actual notice Vanliner may have had of JCS’s security interest. We also do not decide the possible effect of OCGA § 11-9-306 (3), providing for lapse in perfection of a security interest ten days after the debtor receives proceeds, because this issue was not raised by the parties. On remittitur, the trial court is directed to enter judgment for JCS in accordance with this opinion.

Judgment reversed.

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

Decided July 15, 1997.

Albert A. Chapar, Jr., for appellant.

Hawkins & Parnell, Alan F. Herman, Anita T. Wallace, for appellee.

       Cf. OCGA § 1-3-1 (d) (7): “Tense. The present or past tense includes the future.’


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A0596.
    WELLBORN et al. v. DEKALB COUNTY SCHOOL DISTRICT.
    (489 SE2d 345)
   Birdsong, Presiding Judge.

Melia Wellborn appeals the dismissal of her complaint against Bruce Finkbone, the DeKalb County School District and unidentified defendants X, Y, and Z. She contends the trial court erred by dismissing her individual claims and by dismissing the DeKalb County School District as a party defendant.

This suit was brought by Wellborn, individually, and as next friend of her hearing-impaired son who, while a minor, allegedly was drawn into a sexual relationship with his sign language interpreter, Finkbone. Wellborn alleges that Finkbone began the relationship with her son in 1992 when the boy was 14 years old and that the school district and its employees knew or should have known that Finkbone engaged in homosexual acts with students.

Wellborn’s first complaint alleged various state and federal causes of action against Finkbone, the DeKalb County School Board, and the unidentified defendants. Later, Wellborn filed an amended and recast complaint that dropped the school board as a defendant but added the DeKalb County School District to the other defendants. Then, because Jason Wellborn reached the age of majority during the pendency of this action, the school district moved to dismiss the case because of the failure to join the real party in interest (see OCGA § 9-11-17 (a)) and also moved to dismiss Wellborn’s complaint because she failed to seek the trial court’s permission before adding the school district as a party (see OCGA § 9-11-21), because the school board is not an entity subject to suit, and because there had been no waiver of sovereign immunity.

Subsequently, the trial court found that Jason was the real party in interest and thus was indispensable to the action. Therefore, the trial court ordered Wellborn to join or substitute Jason as a plaintiff or face dismissal. The trial court also found that the school board was not a party capable of being sued (see generally Cook v. Colquitt County Bd. of Ed., 261 Ga. 841 (412 SE2d 828)), and that the school district had never been properly served with process. As a result of these findings, the complaint was dismissed against the school board and the school district.

When Jason Wellborn refused to be joined as a plaintiff, the trial court dismissed the complaint against the remaining defendants because it was not being prosecuted in the name of the real party in interest. Wellborn now appeals. Jason Wellborn is not a party to this appeal. Held:

1. Although Wellborn’s notice of appeal indicated that she was appealing from the order dismissing the complaint for failure to join the real party in interest, the order dismissing her complaint against the school district and the school board, and other orders concerning the sealing of the record and appointing guardians ad litem, her enumeration of error challenges only the dismissal of whatever claims she has individually and the dismissal of the DeKalb County School District from the action. Accordingly, no issues concerning the propriety of the dismissal of Jason Wellborn’s claims or the dismissal of the school board from this action are properly before us. See Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507); Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396); Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686).

2. Wellborn argues that notwithstanding the propriety of the dismissal of her son’s claims because he was the real party in interest, the trial court erred by dismissing any claims she might have in her own right for injuries she suffered personally. Wellborn has identified four separate claims which she contends should survive the dismissal of Jason’s claims: Her claim that the school district breached its fiduciary duties and duties of confidential relationship owed her, her claim that the school district invaded her privacy, her claim that emotional distress was intentionally inflicted upon her by Finkbone and through the doctrine of respondeat superior by the school district, and her claim that emotional distress was negligently inflicted upon her by the school district. As Wellborn only has argued that these claims should survive, she has abandoned any contention she might have asserted that she was damaged personally by any violation of the Federal Education Act, the Americans with Disabilities Act, or the Rehabilitation Act. Court of Appeals Rule 27 (c). “Any issue reasonably contained within an enumeration of error as to which there has not been any argument or citation of authority made in appellant’s brief is deemed abandoned.” Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 158 (447 SE2d 122).

3. Under the law of this state, Wellborn’s claims for damages for her emotional distress, inflicted intentionally or negligently, cannot stand. A claim for emotional distress inflicted by negligent conduct is allowed only where there is some physical injury to the claimant (Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826); Ob-Gyn Assoc. &c. v. Littleton, 259 Ga. 663 (386 SE2d 146)), and a claim for intentional infliction of emotional distress is allowed only when the intentional act was directed toward the plaintiff. Ryckeley v. Callaway, supra at 829; Sanders v. Brown, 178 Ga. App. 447, 448 (1) (343 SE2d 722). Accordingly, as Wellborn has not asserted that she received a physical injury, she cannot maintain a claim for negligent infliction of emotional distress, and because she does not allege that any malicious, wilful or wanton act was directed toward her, she cannot recover for intentional infliction of emotional distress. Therefore, Wellborn cannot maintain her individual claims for these causes of action.

4. Before considering whether the trial court erred in dismissing Wellborn’s remaining claims, however, we must first determine whether we have jurisdiction to address the claims she would assert against the school district because they are barred by the doctrine of sovereign immunity. Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22).

Although raised in the school district’s motion, the trial court did not rule on the sovereign immunity issue. The school district, however, has now asserted this argument in this Court, and thus we are presented with an issue concerning our jurisdiction, even though the trial court did not decide this issue, because the doctrine of sovereign immunity “ ‘operates to withhold from the courts jurisdiction over the person of the state.’ ” (Citation omitted.) Kemp v. Sharp, 261 Ga. 600, 601 (3) (409 SE2d 204). Therefore, this issue is properly before us notwithstanding the absence of a ruling by the trial court.

As any claim Wellborn might assert against the DeKalb County School District arose after January 1, 1991, her claims are governed by the 1991 amendments to the Georgia Constitution of 1983. Thus, the sovereign immunity of the state and its departments and agencies can be waived only by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of the waiver. Art. I, Sec. II, Par. IX (e), Ga. Const. of 1983, as amended in 1991. The DeKalb County School District is a political sub-division of the State of Georgia, and is vested with sovereign immunity unless such immunity is waived in accordance with Art. I, Sec. II, Par. IX (e), supra. Crisp County School System v. Brown, 226 Ga. App. 800 (487 SE2d 512); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149). “Under the authority of the 1991 constitutional amendment, the General Assembly subsequently enacted ‘The Georgia Tort Claims Act’ (OCGA § 50-21-20 et seq.), applicable to causes of action accruing on or after January 1, 1991. The Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts from the waiver. OCGA § 50-21-20 (5).” Id. at 295. Consequently, the DeKalb County School System is excluded from the provisions of the Georgia Tort Claims Act. “Although the 1991 amendment does not restrict the legislature’s authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.’ [Cit.]” Id. As Wellborn has failed to establish the existence of any legislative act waiving the sovereign immunity of the DeKalb County Board of Education, she cannot maintain this action.

Decided June 27, 1997

Reconsideration denied July 16, 1997.

James E. Goodman, Norman L. Smith, for appellants.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Tanya A. Eades, for appellee.

Accordingly, as Wellborn’s claims are barred by the doctrine of sovereign immunity, we need not address whether the complaint against the DeKalb County School District was correctly dismissed for the reasons stated in the trial court’s order. A correct decision of a trial court will not be reversed, regardless of the reasons stated. Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A0636.
    SCHULZ v. SHERWINTER.
    (489 SE2d 348)
   Johnson, Judge.

Ilse Schulz retained Emily Sherwinter to represent her in a divorce action. Apparently unhappy with the result of that case, Schulz later sued Sherwinter for legal malpractice, alleging Sherwinter failed to provide her with information relevant to the case and then settled the case without authority and against her interests. On the second day of trial in this malpractice action, outside of the jury’s presence, the trial judge remarked that the trial was progressing very slowly. The court asked: “If. . . Mrs. Schulz agreed to this settlement in [the divorce case] . . . that’s the end of it; is that right?” Counsel for Sherwinter answered affirmatively. Counsel for Schulz apparently did not respond. The trial judge stated: “Well . . . I’m going to bifurcate the trial where we handle that issue, and if they say that there was no agreement, then we’ll continue on with the case. . . . [Y]ou can put up your evidence on that issue, and then we’ll send the jury out to make that determination, and then we’ll try the . . . property part of it.” Counsel for Schulz made no comment. After Schulz and three of her witnesses finished testifying, the court charged the jury. The trial court sent out with the jury a special verdict form which set forth only one issue. The verdict form read: “Has the Plaintiff proved by a preponderance of the evidence that she had not given Emily Sherwinter actual authority to settle her divorce action under the terms announced in open court on March 17, 1993?” The jury foreperson placed a check mark by: “No. The Plaintiff has failed to carry the burden of proof on this issue.” The trial court entered judgment on the jury’s verdict for Sherwinter. Schulz appeals.

1. In two enumerations of error, Schulz argues the trial court erred in bifurcating the trial for a determination of whether she consented to Sherwinter entering into a settlement on her behalf. Schulz claims the court should have instead bifurcated the trial for a determination of the broader issue of liability. However, this issue has not been preserved for review. When the trial court opined that the threshold issue was whether Schulz consented to the agreement, and then announced its intention to bifurcate the trial on the issue of consent, Schulz did not object. Nor did Schulz voice any objection to the verdict form which showed the sole issue as being whether Sherwinter had authority to settle her case. When asked by the trial court whether there was any objection to the charge, which charge included a reading of and instructions for completing that verdict form, Schulz’s counsel replied that there was no objection. And, in a discussion between the court and both counsel regarding a question raised by the jury, the court stated that the only issue was whether Sherwinter had actual authority to settle the case. Schulz did not express any disagreement with the court’s characterization of the case. Indeed, in that colloquy, Schulz’s counsel stated that the court’s recharge on the necessity of a writing should “tie in” with the question presented on the verdict form. Where a party agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be able to complain on appeal that the proceedings had in conformity thereto were erroneous. Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988). By failing to object to the procedure below, Schulz waived any right to raise the issue on appeal. See Ingram v. Harper, 194 Ga. App. 209, 211-212 (3) (390 SE2d 416) (1990); see generally Shaw v. Ruiz, 207 Ga. App. 299, 300 (1) (428 SE2d 98) (1993).

2. Schulz contends the trial court erred in refusing to admit into evidence a letter Schulz allegedly wrote to the judge presiding over the divorce action. Schulz claims the letter was relevant to show that she did not know whether her divorce case had been settled and that Sherwinter was not communicating with her about the case. Assuming, arguendo, it was error to exclude the letter, we find no harm. First, Schulz was able to establish those points through her own testimony. Admission of a letter she authored could not have done more. “Questions concerning admissibility of evidence are vested in the trial court, and unless the trial court has abused its discretion, this court will not interfere.” (Citation and punctuation omitted.) Loper v. Drury, 211 Ga. App. 478, 479 (1) (440 SE2d 32) (1993). The trial court did not abuse its discretion in refusing to admit the letter. Second, Schulz failed to include a copy of the letter in the record or to read its contents into the transcript. Because we are unable to review the letter at issue, appellant has not met her burden of showing harm by the record. See Outdoor Systems v. Woodson, 221 Ga. App. 901, 903-904 (4) (473 SE2d 204) (1996).

Decided July 3, 1997

Reconsideration denied July 16, 1997

Louis T. Cain, Jr., for appellant.

Drew, Eckl & Farnham, Arthur H. Glaser, Lewis P. Perling, for appellee.

Judgment affirmed.

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


author: BIRDSONG, Presiding Judge. Eldridge, Judge,

text:
    A97A1141.
    GEORGIA PUBLIC SERVICE COMMISSION v. ALLTEL GEORGIA COMMUNICATIONS CORPORATION et al.
    (489 SE2d 350)
   BIRDSONG, Presiding Judge.

Georgia Public Service Commission (PSC) appeals from the superior court’s final judgment reversing the decision of the PSC in Commission Docket 6731-U. OCGA § 50-13-20.

The PSC contends inter alia that the superior court’s order should be reversed, as uncontradicted evidence establishes appellees ALLTEL Georgia Communications Corporation et al. (ALLTEL Companies) were overearning and, hence overcharging, approximately $24 million a year, and that these overcharges are borne by Georgia consumers. The PSC also asserts that, as its order was issued before the ALLTEL Companies became subject to alternative regulation, it had jurisdiction to remove the overearnings and order that the resulting savings be passed on to those Georgia consumers who use intrastate long distance service.

Under the Georgia Telecommunications & Competition Development Act of 1995 (TCDA) (OCGA § 46-5-160 et seq.), which became effective July 1, 1995, ALLTEL Companies are Tier 2 local exchange companies (LECs). OCGA § 46-5-162 (10). As Tier 2 incumbent LECs, ALLTEL Companies will have no viable competition for some time, because until July 1, 1998, only currently certified Tier 2 LECs may be issued a certificate to compete for services in an area serviced by an existing Tier 2 LEC. OCGA § 46-5-163 (c).

On June 14, 1996, ALLTEL Companies filed a notice of alternative regulation with the PSC pursuant to OCGA § 46-5-165. The notice adopted July 15, 1996, as the alternative regulation effective date. On July 12, 1996, the PSC issued an order changing ALLTEL Companies’ rates for intrastate switched access. ALLTEL Companies filed a petition for judicial review of the order, and the superior court subsequently entered an order reversing the administrative decision of the PSC. Held:

1. Appellant PSC contends the superior court erred by finding the PSC lacked jurisdiction to conduct a rule nisi of the ALLTEL Companies; appellee asserts the trial court did not make such a ruling and thus this enumeration should not be addressed. Inherent within the trial court’s findings that the PSC violated the TCDA is the finding that the PSC lacked jurisdiction to conduct its rule nisi proceedings.

OCGA § 46-2-20 (a) vests the PSC with general supervisory power over telephone and telegraph companies; OCGA § 46-2-20 (c) vests the PSC with the statutory power and duty, either through promulgation of general rules or by special orders in particular cases, to require all companies under its supervision to establish and maintain such public services and facilities as may be reasonable and just. The PSC may perform any of the statutory duties imposed upon it of its own initiative. OCGA § 46-2-20 (b). Moreover, the PSC has the “exclusive power to determine what are just and reasonable rates and charges to be made by any person, firm, or corporation subject to its jurisdiction.” OCGA § 46-2-23 (a). As the PSC has general jurisdiction to make a quasi-legislative determination of just and reasonable rates, see, e.g., Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 576-577 (3) (396 SE2d 562), the issue is whether under the TCDA the PSC is divested of jurisdiction to make rate determinations between the time an LEC files its alternative regulation petition and the effective date of such regulation.

OCGA § 46-5-166 (b) provides: “Rates for basic local exchange services for residential and single line business customers in effect on the date the local exchange company becomes subject to alternative regulation described in this article shall be the maximum rates that the local exchange company may charge for basic local exchange services for a period of five years, provided that such maximum rates are subject to review by the [PSC].” OCGA § 46-5-165 (b) provides: “Any Tier 2 local exchange company may elect to have the rates, terms, and conditions for its services determined pursuant to the alternative regulation described in this article upon the filing of notice with the [PSC] and committing to provide basic local exchange services upon reasonable request.” OCGA § 46-5-165 (c) provides: “The alternative regulation under this article shall become effective on the date specified by the electing company but in no event sooner than 30 days after such notice is filed with the [PSC].” OCGA § 46-5-165 (d) provides that: “On the date a telecommunications company elects the alternative regulation described in this article, all existing rates, terms, and conditions for the services provided by the electing company contained in the then existing tariffs and contracts are deemed just and reasonable.” (Emphasis supplied.) An electing company is defined as “a local exchange company subject to the alternative regulation described in this article.” (Emphasis supplied.) OCGA § 46-5-162 (5).

The PSC argues that OCGA § 46-5-165 (c) and (d), particularly when construed in pari materia with other relevant TCDA statutory provisions, were intended by the legislature to provide that the rates of an LEC are deemed just and reasonable on the effective date specified by the LEC in its election notice, and it is on that date the LEC becomes subject to alternative regulation. Under such a construction, ALLTEL Companies would not become subject to alternative regulation until July 15, 1996, the date “specified” in their election notice. OCGA § 46-5-165 (c). Thus it is contended that the PSC’s order, issued before ALLTEL Companies became subject to alternative regulations, legitimately changed the ALLTEL Companies’ rates for intrastate switched access. ALLTEL Companies, primarily relying upon the language of OCGA § 46-5-165 (b) and (d), argue that on the date they filed their notice of election of alternative regulation, the PSC lost its authority (jurisdiction) to determine ALLTEL Companies’ appropriate earning levels and to adjust their rates, such rates, terms, and conditions for the service being deemed, by virtue of statute, to be reasonable and just as of the date notice of election was filed.

The superior court determined that the PSC “had violated the clear and unambiguous language of the [TCDA] by [attempting] to exercise traditional ratemaking authority after the ALLTEL Companies had already made their [alternative regulation] elections.” The superior court also held: “According to the plain meaning of [OCGA § 46-5-165 (d)], on June 14, 1996 when the ALLTEL Companies elected [alternative regulation] ... all the ‘existing5 rates, terms, and conditions for their services as ‘contained in the then existing tariffs and contracts’ were deemed ‘just and reasonable.’ . . . The [PSC] disregarded the statute when it purported to make a ‘just and reasonable’ determination. ... In so doing, the [PSC] violated the statute and was acting in excess of its authority.” We disagree.

The cardinal rule of statutory construction is to glean the intent of the legislature. Alford v. Pub. Svc. Comm., 262 Ga. 386, 387 (1) (a) (418 SE2d 13). Construction of a statute must square with common sense and reasoning, Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). In striving to give effect to a statute’s legislative purpose, courts should construe it in pari materia with other relevant statutes (Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (d) (392 SE2d 881)); and language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole (Alford, supra). “[T]he ‘golden rule’ of statutory construction . . . requires us to follow the literal language of the statute ‘unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.’ [Cit.] When[, as in this case,] literal reading of the statute produces such an absurdity, the appellate court must then seek to make sense out of the statute, while being faithful to the legislative intent. [Cit.] To divine the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. [Cit.] The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected. [Cit.]” Telecom*USA v. Collins, 260 Ga. 362, 363-364 (1) (393 SE2d 235). Examining the TCDA, we find that in significant measure the intent of the legislature has been promulgated in OCGA § 46-5-161. OCGA § 46-5-161 (b) (2) and (5) provide for example that “It is the intent of this article to: (2) Protect the consumer during the transition to a competitive telecommunications market; [and] (5) Authorize competition for local exchange services.” Consumers cannot be protected effectively during this critical transition period if the PSC is divested of its jurisdiction and power to adjust the existing rates of incumbent LECs when necessary to achieve a just and reasonable rate before the effective date of elected alternative regulation. We cannot conceive that the legislature intended to shelter an incumbent LEC whose existing rates constitute an unreasonable windfall to be borne by the consumer merely because the LEC seized the opportunity to elect alternative regulation to become effective some 30 days or more in the future. Such a sheltering of incumbent LECs could seriously undermine future competition for local exchange services and would be in direct conflict with the clear and unequivocal legislative intent to protect consumers during the transition period. Construing the TCDA in its entirety we conclude that, during the transition period occurring between the date of an incumbent LEC’s election of alternative regulation and the date alternative regulation becomes effective, the PSC retains its authority to adjust the existing rates of incumbent LECs so that such rates remain reasonable and just. The superior court erred in holding that the PSC lacked authority to act after an incumbent LEC elected alternative regulation but before alternative regulation became effective.

2. Prior to the effective date of the TCDA, the PSC and ALLTEL Companies entered into a multi-purpose regulatory plan. The principal purpose of the plan was to provide for a series of commitments by the PSC and the ALLTEL Companies which would enable the companies to invest sufficient capital to upgrade, thereby eliminating substandard telephone plants in certain exchanges and to provide improved quality service for consumers. Except for a situation not here applicable, the plan provided that no earnings proceedings or adjustments would be initiated or conducted by or on behalf of the PSC during the duration of the term of the plan, nor would ALLTEL Companies request any changes in existing local and intrastate access rates for five years or until termination of the plan, whichever occurs first. Thus, the regulatory plan in part was designed to allow the ALLTEL Companies’ high rates to remain in effect for the fixed five-year time period to provide them with the capital necessary to meet their upgrade commitments. However, the plan also placed an obligation on ALLTEL Companies not to request, directly or indirectly, any changes in access rates while the plan was in effect. The order of the PSC approving the regulatory plan pertinently provided that “implementation of the regulatory, plan preserves the [PSC’s] authority and duty to insure just and reasonable rates for applicants,” and that nothing in the regulatory plan “abrogates, limits, or otherwise diminishes” the constitutional and statutory powers and duties of the PSC, “including the duty to insure that the rates and charges of applicants are just and reasonable.” This latter provision clearly reveals the PSC’s existing intent when it entered into and accepted the regulatory plan.

Subsequently, when ALLTEL Georgia, Inc. was brought under the plan, the parties adopted a stipulation which in essence stated that the rates and charges of ALLTEL Companies were just and reasonable under the attendant circumstances. The stipulation also clarified that it was made “without any admission by or prejudice to any position which the parties might adopt during subsequent proceedings in this or related cases.”

Pretermitting whether the regulatory plan in its entirety was rendered void by the ALLTEL Companies’ election for alternative regulation are the questions whether the terms of the regulatory plan in fact abrogated the PSC’s traditional statutory power to adjust rates to make them fair and reasonable or whether the conduct of the ALLTEL Companies in electing alternative regulation constituted a waiver of said companies’ right to enforce those provisions of the regulatory plan providing for “no earnings proceedings or adjustments.” We find that the regulatory plan did not abrogate or otherwise limit the power of the PSC to adjust rates to make them fair and reasonable. The plan is, at best, ambiguous regarding this matter. Although ALLTEL Companies’ intent may have differed from that of the PSC, the PSC’s intent (that its power to take action to insure just and reasonable rates was not limited by the plan) clearly was revealed in its approval order and stipulation. Regulatory plan construction is consistent with general rules of contract construction. While the cardinal rule of contract construction is to ascertain the parties’ intent (OCGA § 13-2-3), at times the intention of the parties may differ among themselves. “In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4. Accordingly, we conclude the true meaning of the regulatory plan was that the power of the PSC to adjust the LECs’ rates to insure they remained just and reasonable was not to be limited. Assuming arguendo, the regulatory plan on its face limited the PSC’s power to initiate a rule nisi, we further find that by electing alternative regulation, which would thwart the true intent of the regulatory plan to the detriment of the PSC (who had relied on the good faith continued participation of ALLTEL Companies under the terms of the plan) and the consuming public, ALLTEL Companies waived their right to contest any action taken by the PSC to insure that ALLTEL Companies’ rates, which thereafter would become just and reasonable by operation of law, were in fact just and reasonable at the time of alternative regulation. See generally the following waiver by conduct cases: Young v. John Deere Co., 221 Ga. App. 157, 159 (4) (471 SE2d 19); Crotty v. Crotty, 219 Ga. App. 408, 412 (3) (465 SE2d 517) and cases cited therein.

Contrary to the dissent’s contention, nothing in the TCDA precludes an LEC from withdrawing its voluntary election for alternative regulation during the 30-day grace period and thus preserving the status quo under any existing regulatory agreement. This holds particularly true where, as in this case, the PSC exercises its authority to protect Georgia consumers by adjusting downward the excessive rate existing at the time of the election to a rate of just and reasonable amount. Moreover, the effect of the ALLTEL election if allowed to prevail would be to circumvent flagrantly the express legislative intent of the TCDA to “[pjrotect the consumer during the transition to a competitive telecommunications market.” OCGA § 46-5-161 (b) (2). The 30-day grace period was statutorily created to facilitate inter alia this legislative intent. “[W]e are not prone to condone the intentional [or inadvertent but flagrant] circumvention of the clear legislative purpose of protective statutes.” Ghai v. State, 219 Ga. App. 479, 481 (465 SE2d 498).

In view of the above holdings, we will not address appellant’s remaining contentions in support of its enumerations of error.

Judgment reversed.

Andrews, C. J, Pope, P. J, and Ruffin, J., concur. Johnson, Blackburn and Eldridge, JJ, dissent.

Eldridge, Judge,

dissenting.

I respectfully dissent. Under OCGA § 46-5-165 “(b) [a]ny Tier 2 local exchange company [appellees] may elect to have the rates, terms, and conditions for services determined pursuant to the alternative regulation described in this article upon the filing of notice with the commission and committing to provide basic local exchange services upon reasonable request, (c) The alternative regulations under this article shall become effective on the date specified by the electing company but in no event sooner than 30 days after such notice is filed with the commission, (d) On the date a telecommunications company elects the alternative regulation described in this article, all existing rates, terms, and conditions for the services provided by the electing company contained in the then existing tariffs and contracts are deemed just and reasonable.” (Emphasis supplied.)

The language is plain, clear, and unambiguous. Two separate dates are mentioned in the section: the election date and the effective date, which cannot be the same by the express language of the section. As part of this same section and consciously aware of the two dates, the General Assembly created an irrebuttable presumption that on the date of election “then existing tariffs and contracts are deemed just and reasonable.” The electing company cannot change the maximum existing rates upward and the Public Service Commission (“PSC”) cannot raise or lower the maximum rates for five years except as provided under OCGA § 46-5-166 (f). By making an election, regardless of the effective date chosen, the electing company freezes the maximum rate at the moment in time that election is made, not the effective date selected, and thus the electing company establishes the “maximum rates that the local exchange company may charge for the basic local exchange services for a period of five years.” OCGA § 46-5-166 (b). The General Assembly intended this method to assure a local exchange company that, if it made an irrevocable election based upon existing conditions and went through the time and expense of changing over to a free market, then the PSC could not change the terms and conditions after such election and before the effective date, causing planning and economic uncertainty for the company by being locked into an unforeseen rate structure imposed after the election had been irrevocably made.

If the majority’s and PSC’s interpretation is followed, then no reasonably prudent local exchange company will risk making an election, because it may find itself locked into an inadequate return on capital for five years caused by PSC changes made between the date of election and the effective date and based upon inadequate or erroneous data. Such would be contrary .to the expressed intent of the General Assembly to encourage and not frustrate election to come under the alternative regulation. OCGA § 46-5-161. Therefore, to avoid just such action by the PSC, which the General Assembly could reasonably foresee, OCGA § 46-5-165 (d) was included to forestall the PSC from doing what it now seeks to do, change the maximum rates downward prior to the effective date and locking lower rates in for five years. Under the majority’s construction, an electing company must run the gauntlet between the election date and the effective date risking a PSC-ordered reduction in maximum existing rates and becoming locked in for the next five years to such rate structure.

In the case sub judice, the PSC engaged in retroactive rate-making after appellees had elected to come under the alternative rate structure. Such retroactive rate-making even under the general provisions is prohibited. OCGA § 46-2-25 (d); Southern Bell Tel. &c. Co. v. Ga. Pub. Svc. Comm., 203 Ga. 832, 883 (49 SE2d 38) (1948); Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 583 (2) (442 SE2d 860) (1994). To escape such prohibition, the majority must construe OCGA § 46-5-165 (d) contrary to its plain, clear, and unambiguous meaning and give it a tortured construction. The trial court within the standard of review under OCGA § 50-13-19 (h) (1) and (2) found that the PSC had exceeded its statutory authority in violation of OCGA §§ 46-5-165 (d) and 46-2-25 (d).

When the language of a statute is clear and unambiguous, trial and appellate courts are mandated to construe the statute as written and not to impose a different meaning to the statute. Mullins v. First Gen. Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734, 735 (25 SE2d 574) (1943); Standard Oil Co. &c. v. State Rev. Comm., 179 Ga. 371, 377 (176 SE 1) (1934).

If the PSC’s position prevails, then this Court has applied OCGA § 46-5-165 in an unconstitutional fashion in violation of both appellees? federal and state constitutional rights to be free from as a “Bill of attainder; ex post facto law,” U. S. Const., Art. I, Sec. 10, Cl. 1, and Ga. Const. of 1983, Art. I, Sec. I, Par. X; as a taking for public purposes without just and adequate compensation, U. S. Const., Amends. V and XIV, Sec. 1, and Ga. Const. of 1983, Art. I, Sec. I, Par. I and Sec. II; Art. I, Sec. II, Par. V; and Art. I, Sec. III, Par. I, which was raised in the trial court but not ruled upon because the trial court by statutory construction avoided the constitutional issues. Such constitutional issues will affect all future applications of this act and lead to a constitutional attack on the application.

The PSC’s interpretation adopted by the majority will allow the PSC to act in an arbitrary and capricious manner in the future by allowing it to change rates after an election and prior to the minimum effective date to reduce rates but never to raise rates on such short a period for review. Such construction of the act will cause few local exchange companies to risk election, which will frustrate the legislative purpose to induce election and to create a voluntary free market regulation.

Decided July 3, 1997

Reconsideration denied July 16, 1997

Thurbert Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, Thomas K. Bond, Assistant Attorney General, for appellant.

Chorey, Taylor & Feil, John L. Taylor, Jr., Charles V. Gerkin, Jr., Matthew L. Hess, for appellees.

I am authorized to state that Judge Johnson joins in this dissent and Judge Blackburn concurs in the result only of the dissent.


author:
Beasley, Judge.
      McMurray, Presiding Judge,

text:
    A97A0046.
    JOHNSON v. THE STATE.
    (489 SE2d 138)
   Beasley, Judge.

Harvey Johnson, a/k/a Harvey English, appeals the judgment sentencing him on three counts of violation of the Georgia Controlled Substances Act following a plea of guilty.

1. Johnson enumerates as error the acceptance of his plea without assurance he was advised that the direct consequence of entering a non-negotiated plea on the charges of sale and possession with intent to distribute was the mandatory imposition of life sentences. The record indeed does not show that, at the time Johnson entered his plea to three 1995 drug violations, he voluntarily and intelligently subjected himself automatically to sentences of mandatory life in prison on counts 2 (sale of cocaine) and 3 (possession of cocaine with intent to distribute). OCGA § 16-13-30 (b) and (d), pre-1996 amendment.

As to Count 1 (possession of a mixture of cocaine with purity of at least ten percent and weight in excess of twenty-eight grams), the mandatory minimum penalty was ten years and a $200,000 fine, and the maximum was thirty years and a $1,000,000 fine. OCGA § 16-13-31 (a) (1) (A) and (g). The State’s attorney misstated the penalty for this offense, and the court imposed life imprisonment, to run concurrent with the other two life sentences. The court had no choice but to impose this punishment because the State had served notice of its intent to seek recidivist punishment based on two specified prior drug convictions and insisted on the same at the sentencing hearing.

Yet there was no mention of the mandatory nature of this punishment at the plea-taking several months earlier. Instead the State advised of mínimums and máximums, and before the court accepted the plea, it discussed the mínimums and máximums and assured that defendant understood that he could “wind up [with] life plus 60 years” in total. The court even stated it was in the court’s discretion. The court then obtained from Johnson some personal background information, as though to consider that in determining an appropriate sentence. At the time of sentencing, the court still understood it had discretion, until the State showed otherwise by way of OCGA § 16-13-30 (d).

The whole purpose of delaying sentencing, after the plea was accepted, was to allow defendant time to provide helpful information to law enforcement with regard to the drug trade. His counsel had actually spoken with a particular agent to arrange this, and Johnson indicated he would talk as soon as the agent came to the jail. The State had stated at the outset of the plea hearing that it had told defense counsel it would recommend ten years to serve.

Nowhere in the record is there any mention that if Johnson did not cooperate to the satisfaction of the State so that it would withdraw its intent to seek recidivist punishment, the court would have no discretion to sentence him to less than life imprisonment. Nowhere in the record is there any mention of a mandatory sentence of life imprisonment. Nowhere in the record does the State indicate it will withdraw the notice of intent to seek recidivist punishment if Johnson provides helpful information to law enforcement officers. Nowhere in the record is there any indication that counsel advised defendant of these consequences before he entered his plea of guilty or even before he was sentenced later. To the contrary, the reason for waiting was to give Johnson an opportunity to cooperate so the judge might consider such action as a mitigating circumstance in arriving at an appropriate sentence (which would require withdrawal of the State’s notice of intent).

A guilty plea must be knowing and voluntary. Brady v. United States, 397 U. S. 742 (90 SC 1463, 25 LE2d 747) (1970). It must be made with defendant’s full knowledge of the consequences. Id. at 748; Boykin v. Alabama, 395 U. S. 238, 241-242 (89 SC 1709, 23 LE2d 274) (1969); United States v. Ammirato, 670 F2d 552, 555 (5th Cir. 1982). Anything less than an affirmative showing that it was made intelligently and voluntarily amounts to plain error. Boykin v. Alabama, supra. The protections set forth in Boykin require that an accused have information about the range of punishment he faces. Pardue v. Burton, 26 F3d 1093, 1096 (11th Cir. 1994).

We cannot presume that counsel advised his client of the meaning and effect of the plea, despite what Brown v. State, 216 Ga. App. 312, 313 (1) (454 SE2d 596) (1995), and Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990), say. Those cases hold that “ ‘when the hearing record affirmatively reflects that a defendant has consulted with counsel regarding his guilty plea, and on appeal an ineffective assistance of counsel claim is not timely asserted in regard to the plea, it may be presumed (subject to rebuttal) that counsel has adequately advised (the) client regarding the meaning and effect of the subsequently offered plea. . . .’ ” Brown, supra at 313-314, citing Scurry, supra at 166.

The presumption cannot be indulged, just as the presumption in favor of the validity of a sentence vanished with Boykin, as recognized in Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892) (1971). In Goodman v. Davis, 249 Ga. 11, 13 (1) (287 SE2d 26) (1982), the Supreme Court of Georgia interpreted Boykin “as requiring that there be a record of the guilty plea hearing adequate for the reviewing court to determine whether ... (3) [the defendant had] an understanding of the consequences of his plea.” That is absent here. Compare Wood v. State, 190 Ga. App. 179 (378 SE2d 520) (1989), where the record affirmatively showed that defendant’s counsel satisfactorily explained to defendant the consequences of his plea before it was entered. USCR 33.8 (C) requires the court itself to inform the defendant on the record of the sentencing consequences of the plea, before accepting it.

Even if the suggested presumption could substitute for a silent record and supply the necessary assurance of a knowing and intelligent plea, the presumption cannot survive in this case. Everything that occurred showed that Johnson was not informed that, even if he cooperated with law enforcement, he would face sentences of mandatory life imprisonment unless the State was sufficiently satisfied with his efforts so as to withdraw its intent to seek recidivist punishment. This is culminated by Johnson’s appearance at sentencing, with counsel, without this having been accomplished and without withdrawing the guilty plea, as was his right under OCGA § 17-7-93 (b).

The judgment based on the defective guilty plea cannot stand.

2. As to Johnson’s first enumeration of error, the prosecutor’s statement represented a sufficient factual basis to comply with USCR 33.9. His third enumeration is not reached because his claim of ineffective assistance of counsel is first raised here. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996); Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996).

Judgment reversed.

Birdsong, P. J., Smith and Ruffin, JJ., concur. Andrews, C. J., McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent since I believe defendant was adequately advised of the consequences “of entering a non-negotiated plea of guilty to a second possession with intent to distribute and a second sale of cocaine.” The transcript shows that the trial court was initially unaware that the prosecutor had served notice upon defendant of intent to seek enhanced punishments based upon defendant’s prior convictions of similar offenses. Thus, while initially informing defendant of the possible sentence, reference was made to the minimum sentences applicable to first offenders. Nonetheless, the life sentence for second offenses pursuant to the then applicable version of OCGA § 16-13-30 (d) was also stated. Defendant was correctly informed of the consequences of his plea and was well aware that any possibility of a reduction in sentence was contingent upon his making a bargain and providing cooperation to the State, a goal which was not accomplished by defendant.

The record affirmatively shows that the substantive requirements of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) concerning the defendant’s guilty plea were met. Additionally, defendant consulted with counsel regarding his case, so that it may be presumed, following rejection of defendant’s claims of ineffective assistance of counsel, that counsel in fulfilling his role in the adversary process has rendered adequate assistance to defendant including advising his client regarding the meaning and effect of the plea subsequently entered. In this regard I note, contrary to the assertion contained in the majority opinion, that there is no procedural requirement that the trial judge personally make the inquiry required under USCR 33.8 (C), which pursuant to the provisions of the rule may be developed by questions from the judge, the district attorney or defense counsel, or a combination of any of these. Although the trial court did not specifically address each issue found in USCR 33.8, I would find the determination of voluntariness clearly supported by the record. McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235); Brown v. State, 216 Ga. App. 312, 313 (1) (454 SE2d 596).

In my view, the majority imposes an unrealistic goal upon the trial court, to serve virtually as the counselor of any person submitting a guilty plea. The trial court’s duty included determining whether defendant had an understanding of the consequences of his plea. Having observed defendant being informed that a life sentence would be imposed for second offenses of the crimes with which he was charged, the trial court was authorized to conclude that defendant understood that information. The trial court’s duty did not extend to counseling the defendant by speculating concerning the consequences of uncertain future contingencies.

Decided July 16, 1997.

Megan C. DeVorsey, for appellant.

Lewis R. Slaton, District Attorney, Leigh A. DuPre, Carl P Greenberg, Assistant District Attorneys, for appellee.

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


author: McMURRAY, Presiding Judge. Beasley, Judge,

text:
    A97A0104.
    THE STATE v. NEWTON.
    (489 SE2d 147)
   McMURRAY, Presiding Judge.

Defendant Newton is charged by indictment with four violations of the Georgia Controlled Substances Act (three of these offenses are trafficking, possession with intent to distribute, and distribution of the Schedule II controlled substance methamphetamine, as well as possession of hydromorphone, another Schedule II controlled substance), aggravated assault upon a peace officer, and obstruction or hindering a law enforcement officer. The State appeals the grant of defendant’s motion to suppress evidence. Held:

1. On January 15, 1996, at approximately 6:30 a.m., Douglas County Deputy Sheriff Williams while on routine patrol observed a car stopped in the parking lot of a closed store just off an interstate highway. The vehicle contained a driver and defendant, who was the sole passenger.

The deputy drove up to the vehicle and asked the driver whether there was a problem. The driver advised that they had run out of gas and coasted into the parking lot. After that inquiry, the deputy did not stop the men but withdrew across the road and watched them as they drove immediately to a nearby gas station and convenience store where the driver began pumping gasoline into the car.

The deputy drove in behind the car, put on his blue lights, and approached the driver to ask for identification and proof of insurance. After this was provided, the deputy asked and received consent of the driver to search the car. Meanwhile, defendant, who had entered the convenience store, walked back out, and a second deputy sheriff had arrived at the scene.

Deputy Williams proceeded to attempt to pat down defendant. During this pat-down the officer discovered syringes which defendant explained by stating that he was diabetic. The deputy removed defendant’s wallet and found two Georgia driver’s licenses under different names but both bearing defendant’s photograph. Upon the deputy’s discovery of the multiple driver’s licenses and some discussion about defendant’s identity, defendant bolted and ran. Deputy Williams chased defendant, at times losing sight of him, and finally caught him. The two men fought, and during the course of the fight Deputy Williams was sprayed in the face with pepper spray and defendant received a gunshot wound. After the altercation, contraband was discovered on the ground in the vicinity of the fight.

The superior court determined that Deputy Williams had no articulable suspicion that defendant or the driver of the vehicle had committed any crime, that defendant’s conduct in being uncooperative with Deputy Williams did not indicate any threat to the officer, that defendant did not consent to the search of his person, that Deputy Williams exceeded the scope of a Terry pat-down (see Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889)) when he removed the wallet and looked inside it, and that defendant’s flight was in direct response to what the deputy saw inside the wallet. The superior court concluded that all evidence developed from the time of looking inside the wallet be suppressed.

The State argues that the superior court erred in determining that Deputy Williams had insufficient legal grounds to detain and search defendant. The superior court found that the deputy “had no articulable suspicion that the [driver or defendant] had committed any crime.” This conclusion was apparently based on the inconsistency between the vehicle occupants’ report of running out of gas and their subsequent conduct in driving to the nearby gas station to refuel. The prosecution argues that the vehicle occupants’ explanation is inherently suspect since the deputy testified that the motor was running in their car at the time this explanation was proffered. But as defense counsel aptly pointed out during the motion hearing, then why did Deputy Williams not confront the vehicle occupants with this inconsistency? On cross-examination, Deputy Williams stated that even though the motor of the vehicle was running he was letting the driver tell his story and did not raise this question. Nonetheless, these and other issues argued with regard to whether the deputy had articulable suspicion need not be addressed since the superior court presumed in reaching its decision that the deputy had authority to pat down defendant during the consent search of the vehicle. The issue on appeal may be limited to whether the superior court was authorized to conclude that the deputy had exceeded the proper scope of the pat-down search.

A Terry pat-down is generally a two-step process. The officer must pat down first and then intrude beneath the surface only if he comes upon something which feels like a weapon. In order to exceed a pat-down without first discovering a weapon, an officer must provide specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down. Clark v. State, 208 Ga. App. 896, 899 (2), 900 (432 SE2d 220) (non-precedential); Brown v. State, 181 Ga. App. 768, 770 (1) (353 SE2d 572).

More invasive procedures have been approved where an officer has had a reasonable basis for concluding that a suspect was armed or was otherwise a threat to his personal safety. See Hayes v. State, 202 Ga. App. 204 (414 SE2d 321). Predicated upon defendant’s failure to fully cooperate with the pat-down, the prosecution argues that Deputy Williams was authorized to use the more invasive procedures. The deputy explained that defendant failed to keep his hands up above his head and this rendered the pat-down more difficult to accomplish. The superior court characterized defendant’s behavior as “not friendly to the officer” and questioning of the deputy’s intrusion upon him. Based upon the deputy’s testimony and a videotape of the pat-down, the superior court determined that defendant’s response did not represent any threat to Deputy Williams. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).” Burse v. State, 209 Ga. App. 276 (433 SE2d 386). Since the evidence authorized the finding that defendant was non-threatening, the absence of the exigent circumstances identified in Hayes precluded the intrusion into defendant’s wallet. Barrett v. State, 212 Ga. App. 745, 748 (443 SE2d 285); Wyatt v. State, 151 Ga. App. 207, 210 (1) (a) (259 SE2d 199). The superior court correctly concluded that the deputy exceeded the proper scope of a Terry pat-down.

2. The prosecution contends that defendant lacked standing to contest the seizure of contraband in the wooded area near where the altercation occurred between defendant and the deputy. While the deputy did not observe defendant discarding anything, we cannot agree with the prosecution argument that there is no evidence that defendant threw the contraband down as a direct result of the illegal search by Deputy Williams. The evidence of record while circumstantial certainly suggests this scenario, and this appears to be the view of the evidence embraced by the superior court as trier of fact. Even though defendant had no expectation of privacy in the wooded area, such is not determinative of the matter. The discovery of this contraband being the direct product of the prior unauthorized search of defendant’s person, it must be suppressed. Any question of abandonment of the contraband as argued by the State is a factual question of intent which has been resolved in favor of defendant. Orman v. State, 207 Ga. App. 671, 672 (1) (428 SE2d 813). See also State v. Brown, 198 Ga. App. 239, 240 (401 SE2d 295).

3. The State’s reliance upon California v. Hodari D., 499 U. S. 621 (111 SC 1547, 113 LE2d 690) is misplaced. The extremely narrow issue addressed in the Hodari D. decision must be noted. The Hodari D. case defines when an arrest has occurred. The portion of that opinion referenced by the prosecution illustrates that during the interval of time defendant was fleeing from Deputy Williams, he was neither seized nor under arrest. However, no one has suggested otherwise. The suppression of evidence in the case sub judice is predicated upon a conclusion that the State’s seizure of the contraband was the product of the preceding illegal search. In the U. S. Supreme Court case there was no seizure or arrest of the juvenile being pursued prior to abandonment of the contraband and thus no instruction on the issues presented in the case sub judice.

4. United States v. Bailey, 691 F2d 1009 (11th Cir.) also offers no support to the prosecution since the portion of the holding in this federal case upon which the prosecution relies is predicated upon the abrogation of the common law rule that one may forcibly resist an illegal arrest, a rule which remains the law of the State of Georgia. Brooks v. State, 206 Ga. App. 485, 489 (2) (425 SE2d 911). Thus, in Bailey there was no right to resist an initial illegal arrest, resulting in a valid second arrest for resisting the illegal arrest, the second arrest being held to be a proper basis for a search incident to arrest. We would also note that much of the remainder of the Bailey opinion is supportive of the judgment entered by the superior court.

Anticipating that we might recognize this distinction between state and federal law, the prosecution maintains that the initial seizure of defendant was not an arrest but merely a Terry stop and that while there may be a right to resist an illegal arrest there is no corresponding right to resist a flawed Terry stop and frisk. However, the contrary seems to have been held by this Court in Brooks v. State, 206 Ga. App. 485, 488-489 (2), supra, where the police officer testified that: “He was not under arrest. No. I just wanted to talk to him.” We held that the defendant was entitled to resist since the police lacked probable cause or articulable suspicion. McCarr v. State, 197 Ga. App. 124 (2) (397 SE2d 711) is inapposite since it merely holds that the refusal to give a requested jury charge unsupported by any evidence was not error.

5. At the time of the incident at issue there was an outstanding Florida warrant for the arrest of defendant. However, this does not attenuate the taint upon the contraband found near the scene of the altercation between defendant and Deputy Williams since the officers in the case sub judice had no knowledge of the outstanding warrant and did not act in reliance on such information. Compare Ruffin v. State, 201 Ga. App. 792 (412 SE2d 850).

6. The superior court did not err in suppressing evidence found in defendant’s residence during the execution of a search warrant. “ When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. ... If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is ad(missible).’ James v. United States, 418 F2d 1150, 1151-1152 (3) (D. C. Cir. 1969); [ajccord, United States v. Williams, 633 F2d 742, 744 (2) (8th Cir. 1980) and cases cited therein.” Rothfuss v. State, 160 Ga. App. 863, 864 (1) (288 SE2d 579). The prosecution maintained that even when the evidence discovered at the scene of defendant’s altercation with Deputy Williams is excluded, the remaining information provided in the search warrant affidavit is sufficient to establish probable cause. However, we are unable to agree since all that remains is evidence of a single drug purchase from defendant more than a month prior to issuance of the search warrant. The affiant witnessed a methamphetamine purchase by a confidential informant from defendant who made reference to a location in his residence where he kept the contraband. However, we must agree with defendant that this evidence alone is stale and fails to create any inference that the circumstances described still exist. Accord Duncan v. State, 213 Ga. App. 394, 395 (1) (444 SE2d 583).

The prosecution maintains that additional information in the affidavit shows an ongoing enterprise involving the sale of illegal drugs so that the passage of time is less significant. Perkins v. State, 197 Ga. App. 577, 579 (1) (398 SE2d 702). However, that further information consists of hearsay statements from a confidential informant whose reliability was not established. Nor was any of the information provided by the confidential informant independently confirmed. Kessler v. State, 221 Ga. App. 368, 370 (471 SE2d 313); Caswell v. State, 219 Ga. App. 787, 788 (466 SE2d 907); Smith v. State, 218 Ga. App. 12, 14-15 (460 SE2d 114). The evidence provided by the affidavit was not sufficient to establish probable cause.

Judgment affirmed.

Smith, J., concurs. Beasley, J., concurs specially and in the judgment.

Beasley, Judge,

concurring specially.

1. I concur in the ruling in Division 1 because of the law governing pat-downs or “frisks,” as established by the United States Supreme Court in Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), and such subsequent cases as Sibron v. New York, 392 U. S. 40, 62 (IV) (88 SC 1889, 20 LE2d 917) (1968); Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972); Pennsylvania v. Mimms, 434 U. S. 106, 110 (98 SC 330, 54 LE2d 331) (1977); Ybarra v. Illinois, 444 U. S. 85, 92-94 (100 SC 338, 62 LE2d 238) (1979); Michigan v. Long, 463 U. S. 1032, 1045 (III) (103 SC 3469, 77 LE2d 1201) (1983).

In Long, the Supreme Court repeated the framework in which the validity of the challenged pat-down must be evaluated for Fourth Amendment constitutionality. “[T]he ‘(t)ouchstone of our analysis ... is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” ’ ” (Citations omitted.) Long, supra, 463 U. S. at 1051. “ ‘(T)he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” (Citations omitted.) Id. at 1050.

The Court recognized in this and the earlier cases that the need for protection of police justifies protective searches when police have a reasonable belief that the suspect poses a danger, and that roadside encounters between police and suspects are especially hazardous. The belief must be based on “ ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Citation and footnote omitted.) Id. at 1049. A frisk must be predicated on a reasonable belief that the person to be patted down is armed and presently dangerous. Ybarra, supra at 92-94.

Assuming for the moment that Officer Williams reasonably suspected that the two men were engaged in, or were about to be engaged in, criminal activity, as he articulated, and that their behavior created a reasonable belief that one or both men were armed with some sort of weapon and thus presently dangerous, he was not authorized to reach into Newton’s pocket, retrieve Newton’s wallet, and examine its contents.

The reason the officer gave for the pat-down was that he was about to conduct the search of the automobile, to which driver Cheek had consented, and that “before I search any vehicle or turn my back on anybody that I’m involved with I pat them down for weapons because in my past experience I’ve found drivers and passengers of vehicles to have weapons on them — in their wallet. I got razor blades, knives, everything else out of people’s wallets, pockets, socks, underwear, and it’s my policy before I turn my back and start searching somebody’s car I pat whoever comes out of that car or who’s in the area down.” On cross-examination he further explained that he went into Newton’s back pocket and pulled out the wallet because it could have contained a weapon. He said he had gotten Derringers out of wallets before, and a wallet could contain a little knife or razor blades or “anything.”

In Sibron, the Supreme Court examined the nature and scope of a pat-down and search and pointed out that “[t]he search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched.” Sibron, supra, 392 U. S. at 65. Such a search must be “reasonábly limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” Id. The search “must ... be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry, supra, 392 U. S. at 29. Outside of that, the sanctity of the person against unreasonable intrusions, protected by the Fourth Amendment, is violated.

In Terry, the officer felt a gun in the outer pocket of each man’s overcoat, which authorized him to reach in and remove what turned out to be revolvers. Id. at 7. In Terry, the Court was careful to note that it was not developing the limitations which the Fourth Amendment places on protective seizure and search for weapons; these would have to be developed “in the concrete factual circumstances of individual cases.” Id. at 29.

Officer Williams did not feel a weapon. He felt an object, one frequently carried by a man in his pocket, which the officer believed might contain a weapon. The Supreme Court has not extended the search-of-person authority to this degree or level, although in Long the Court approved the search of a pouch seen on the seat of a vehicle, which pouch the trial court found could have contained a weapon. Long, supra, 463 U. S. at 1036, 1050-1051. This intrusion, the Court held, “was ‘strictly circumscribed by the exigencies which justifi(ed) its initiation.’ [Cit.]” Id. at 1051. But in this case there were no circumstances which would support a reasonable belief that what the officer felt with his hand contained a weapon. True, it might, and possibly could, contain a very small but potentially lethal weapon. Nevertheless, it was an innocuous and ordinary size common men’s wallet without any bulge or other telltale sign, resting in a commonly located place. The limited authority to intrude beyond the outside of a person’s clothing in a frisk, when the police do not yet have probable cause, covers objects which may be weapons but not objects which possibly could contain weapons. If that were the law, then an officer could reach in and retrieve any item which felt like a container, including anybody’s wallet, because even a very small container could harbor a razor blade. The officer is authorized only to “conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.” Ybarra, supra, 444 U. S. at 93. No circumstances were present which would support a reasonable belief that an object which felt like a wallet contained a concealed weapon, such as evasive actions by defendant demonstrating a desire to keep from the officer’s knowledge a hidden weapon. Cf. Hayes v. State, supra. See Wyatt v. State, 151 Ga. App. 207, 209 (1) (a) (259 SE2d 199) (1979).

Decided July 16, 1997

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellant.

Zell & Zell, Glenn Zell, for appellee.

The trial court in this case found that the officer had no articulable suspicion of crime, that Newton did not indicate any threat to the officer, and that Newton did not consent to a search of his person. The court concluded that “[t]he officer exceeded the scope of a Terry pat-down when he removed the wallet and looked inside it. . . . Even presuming that the officer had authority to pat down Newton during the consent search of the vehicle, that did not include the authority to go into the wallet of the defendant.” I do not agree that the undisputed facts fail to show a legitimate suspicion of crime and that they fail to justify the frisk. They do. But I agree that extricating and searching the wallet exceeded Fourth Amendment bounds.

2. As to the other divisions in the majority opinion, I concur only in the judgment.

       The state constitution is ignored by defendant in pressing his claim of rights violation. His motion to suppress invokes the Fourth and Fourteenth Amendments to the United States Constitution and cursorily “similar provisions of the Georgia Constitution” and unspecified “Georgia law.” But he bypasses the nebulously mentioned state constitutional ground in pursuing his position, and the trial court did not rule on it. In consequence, neither can we. See, e.g., Hayes v. State, 202 Ga. App. 204, 207 (414 SE2d 321) (1991) (Beasley, J., concurring specially); Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986). It is notable that between 1970 and 1988, without even considering the years since then, there were more than 450 state court opinions that took state constitutions beyond the federal guarantee; more than one-third concerned criminal procedure issues. LaFave & Israel, Criminal Procedure, § 210 at 95 (2d ed. 1992).