text:
    A00A2039.
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. ALBERT.
    (546 SE2d 361)
   Ruffin, Judge.

In this subrogation action, Universal Underwriters Insurance Company (Universal) sued Edna Albert for conversion. In its complaint, Universal alleged that Albert converted a 1993 Nissan 300 ZX, which belonged to Universal’s insured, ATC Collision, Inc. (ATC), and that while she possessed the car, it sustained damages valued at $6,734.23. Albert answered pro se, merely asserting: “I would like to go before the court to state my case.” Before the start of a bench trial on the matter, the trial court found that Albert’s answer “sufficiently constitutes a general denial” and therefore denied Universal’s motion for judgment on the pleadings as to liability. After Universal presented evidence of damages, the trial court, sua sponte, dismissed Universal’s complaint pursuant to OCGA § 9-11-41 (b) because it failed to establish that Albert caused the damages. Universal appeals these rulings, and for reasons which follow, we reverse.

1. Universal asserts that the trial court erred in denying its motion for judgment on the pleadings on the ground that Albert’s answer constituted a legally sufficient general denial. We agree.

Under our Civil Practice Act, a defendant answering a complaint is required to “state in short and plain terms [her] defenses to each claim asserted and shall admit or deny the averments upon which the [plaintiff] relies.”* If a defendant intends to controvert all the allegations in a complaint, she may, subject to the certification requirements of OCGA § 9-11-11, file a general denial. A consequence of these pleading rules is that “[ajverments in a [complaint], . . . other than those as to the amount of damage, are admitted when not denied in the [answer].” Even pro se defendants are bound by these rules. And, when a defendant completely fails to deny the well-pled allegations in the complaint, or state a defense, the plaintiff is entitled to judgment on the pleadings.

In this case, Universal sufficiently pled its allegation that Albert converted the vehicle. Albert’s answer to this allegation did not constitute a general denial. Instead, Albert merely asserted that she wanted to come before the court to “state [her] case.” It is impossible to discern from this answer whether Albert admitted Universal’s allegations, whether she denied Universal’s allegations, or whether she was without sufficient knowledge to admit or deny the allegations. Because Albert failed to deny Universal’s allegations that she converted the vehicle and that it was damaged while in her possession, the trial court should have accepted them as true and granted Universal’s motion for judgment on the pleadings as to Albert’s liability.

2. Similarly, the trial court erred in dismissing Universal’s complaint on the ground that Universal “failed to present any evidence that [Albert] caused the damages to the vehicle.” Where personal property is converted, but returned to the owner prior to trial, the owner is entitled to “recover damages for the diminution in value of the stock . . . for the time period between the alleged conversion and the property’s return.” Thus, the salient question here is simply whether the vehicle diminished in value during the period in which it was converted, and it is irrelevant whether Albert caused the damage. Accordingly, the trial court erred in dismissing Universal’s complaint on this ground.

3. Although Universal presented evidence showing the fair market value of the car without damage, the dollar value of damages prior to the conversion, and the dollar value of damages when the car was returned, the trial court erroneously rejected this evidence upon concluding that the case should be dismissed. In addition, as a consequence of the court’s decision, Albert was denied the opportunity to present evidence controverting Universal’s damage evidence. Inasmuch as the damages in this case are unliquidated, a new trial on the issue of damages is required.

Decided March 5, 2001.

Ronald W. Parnell, for appellant.

Edna Albert, pro se.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 9-11-8 (b).

       See id.

       OCGA § 9-11-8 (d); Morgan v. Wachovia Bank, 237 Ga. App. 257 (1) (514 SE2d 239) (1999).

       See id.

       See id.; Howard v. Bank South, 209 Ga. App. 407, 409 (1) (433 SE2d 625) (1993) (ruling that judgment on the pleadings is proper where there is a complete failure to state a defense).

       See OCGA §§ 9-11-111 (providing a form complaint for conversion which establishes that a complaint need only state that the “defendant converted to his own use”); 9-11-84 (providing that form is sufficient under the Georgia Civil Practice Act); see also Prudential Ins. Co. of America v. Baum, 629 FSupp. 466, 474 (N.D. Ga. 1986).

       See Morgan, supra.

        Campbell v. Bausch, 195 Ga. App. 791, 792 (1) (395 SE2d 267) (1990).

       At the time Albert converted the car, it was in ATC’s body shop for repair of damage from a prior collision.

       See Termplan of West End v. Joseph, 151 Ga. App. 689, 690 (261 SE2d 433) (1979).

       See Morgan, supra at 258.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A00A2078.
    In the Interest of D. G., a child.
    (546 SE2d 359)
   Andrews, Presiding Judge.

D. G. appeals from his adjudication and order of disposition as a delinquent child pursuant to three petitions* for acts which, if committed by an adult, would be party to the crime of aggravated assault, a designated felony (OCGA § 15-11-37 (b) (ii)). Pursuant to a separate petition, D. G. was charged with and adjudicated, pursuant to his admission, of an act which, if committed by an adult, would be obstruction of an officer. That disposition order is not the subject of this appeal.

1. D. G. challenges the sufficiency of the evidence regarding the two petitions of party to a crime of aggravated assault.

Viewed with all inferences in favor of the factfinder’s decision, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was that, on July 29, 1999, V. C., T. B., and S. A. were sitting on a car on East Central Avenue in Griffin when another car drove by and shots were fired, wounding the three juveniles.

V. C. testified that he did not notice anything about any of the individuals in the car. T. B. testified that he was sitting on the car with V. C. when shot and all he saw was a “black car.”

Griffin Officer Phillips was dispatched to the shooting. On the way to the scene, Phillips was advised by radio that a small four-door blue and silver car for which there had been a lookout had been found at the dead end of Pine Street. He proceeded to Pine Street where he found a 1992 blue and silver Acura Integra with a window broken out, bullet casings in the backseat, and the motor still running. No one was in or near the car. The car was impounded, and a palm print identified as D. G.’s was lifted from the left door of the car.

D. G. was interviewed by the police regarding the shooting. Officers described the Acura to him and asked him if he had been at the shooting location, which he denied. The officers then asked D. G. “about the automobile, had he been in the automobile or know anything about it.” D. G. adamantly denied having been in or around the car and, when advised that the car was being checked for prints, told the officers his prints would not be on it because he did not know anything about the shooting and was not there.

Shown a picture of the Acura, T. B. testified that it was not the car from which the shots had been fired on July 29. Brown, D. G.’s sister, identified the Acura as belonging to a woman who lived in the neighborhood. Usher, who claimed to have been with D. G. at D. G.’s sister’s house on the evening of the shooting, identified the Acura as belonging to a man known as Billy Goat who lived across the street from him.

V. C. and T. B. testified that the day before this incident, they had been walking with another young man through the projects and saw D. G. come around the corner and start shooting. Although no gun was seen, two shots were fired in their general direction. D. G. was wearing a red bandanna on his hand, indicating gang membership.

D. G. argues, and we agree, that the evidence of his participation in the drive-by shooting was entirely circumstantial and did not exclude every other hypothesis save guilt. Diggs v. State, 234 Ga. App. 335 (506 SE2d 683) (1998).

Where, as it appears here, fingerprint evidence is the sole evidence connecting a defendant with the crime [charged], the State is required “ ‘to prove to the exclusion of every reasonable hypothesis that the fingerprints could only have been impressed at the time the crime was committed. (Cit.)’ ” [Cits.]

Rivers v. State, 271 Ga. 115, 117 (1) (516 SE2d 525) (1999).

Initially, one of the victims specifically denied that the Acura was the car used in the shooting. Further, the fact that this car belonged to someone in the neighborhood where D. G. lived provides alternate possibilities for the presence of his print on the car, even assuming that it was the car used in the shooting.

Decided March 5, 2001.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

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

Therefore, we conclude that the evidence of party to the crime of aggravated assault was legally insufficient. Jackson, supra; Diggs, supra; compare Fuentes v. State, 239 Ga. App. 672, 674 (521 SE2d 698) (1999) with Barnett v. State, 153 Ga. App. 430 (1) (265 SE2d 348) (1980).

2. Our conclusion in Division 1 renders moot consideration of the second enumeration regarding admission of the prior similar act.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       Only two of the three victims appeared for the adjudication hearing, and the third petition was dismissed.


author: Pope, Presiding Judge.

text:
    A00A2384. A00A2385.
    SPANN v. THE STATE. TURNER v. THE STATE.
    (546 SE2d 368)
   Pope, Presiding Judge.

Demetrius Spann and Anthony Turner were charged with aggravated assault, were tried as co-defendants, and were both convicted. Here, they appeal raising identical arguments. For the following reasons, we affirm.

Evidence at trial showed that on September 19,1998, the victim, Cedric Stringer, and his best friend, Cedric McLendon were at a club in Blakely. The men saw Spann, Turner, and a third co-defendant, Adrian Walker, and a fight ensued.

The next night, Stringer and McLendon went to the home of a friend, Willie Gene Davis. While they were at his residence, Spann and Turner drove by outside, yelling various obscenities. Eventually Spann and Turner got out of the vehicle, carrying guns, and started toward Davis’ residence. At this point, Turner was carrying a handgun, and Spann was carrying a shotgun. When McLendon saw the guns, he ran inside the house. McLendon watched from inside the house as shots were fired at Stringer.

Stringer ran behind the trailer and down an alley where he saw his friend, Oliver Mallard. Stringer was hysterical and asked Mallard to take him to Blakely, because someone was chasing him. Mallard took Stringer to the police station. Stringer entered the police station where he asked the emergency medical technician on duty to hide him because someone was trying to shoot him. The emergency technician saw blood on Stringer’s neck and determined that it was coming from an injury on top of his head. Under the injured area she felt a small, round object like a small BB shot.

There was also testimony that police officer Robert Grier responded to a call about the shooting at about 1:00 a.m. Within 30 minutes he began taking statements from various witnesses who wrote out their own statements. Officer Grier got statements from six witnesses: Willie Gene Davis, Travis Williams, Lavon McKenzie, Darryl Davis, McLendon, and Stringer. The statements, in varying manners, identified Turner and Spann as the two people who shot the handgun and shotgun at Stringer and other people. There was also evidence that the shell casings which were found at the scene were fired by a handgun and shotgun which were found in the home of an acquaintance of the defendants.

1. Spann and Turner argue that the trial court erred in allowing the State to introduce the six written statements of the State’s witnesses. At trial, each of the six witnesses who had given statements to the police on the night of the crime testified. The court allowed the statement of each witness to be introduced into evidence. Here defendants claim that the admission of these statements was error.

The defendants’ arguments lack merit. In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), the Supreme Court held that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination” is admissible both to impeach the witness and as substantive evidence.

In Duckworth v. State, 268 Ga. 566 (1) (492 SE2d 201) (1997), our Supreme Court set forth the three requirements for impeaching a witness with a prior inconsistent statement: “First, the prior statement must contradict or be inconsistent with the witness’s in-court testimony; second, the prior statement must be relevant to the case; and, third, the examining attorney must lay the proper foundation with the witness.” (Citation omitted.) Id. at 567 (1). The requirements set forth above were met in this case. See also Holiday v. State, 272 Ga. 779 (534 SE2d 411) (2000); Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985).

With three of the witnesses’ statements at issue, the witness testified that part of his earlier statement was not true. Thus, in these instances, the prior statement was inconsistent in many material respects with the witnesses’ in-court testimony, and the court did not err in admitting the prior statements. See Brown v. State, 266 Ga. 723, 724-725 (2) (470 SE2d 652) (1996); OCGA § 24-9-83. Furthermore, contrary to defendants’ argument that the proper foundation was not laid for the admission of one of the three statements, that of Darryl Davis, we find no harmful error in the court’s decision in this respect. See Meschino v. State, 259 Ga. 611, 613-614 (2) (385 SE2d 281) (1989).

In the three other instances, the witness could not remember an aspect of the events about which he had previously given the statement. In fact, two of the witnesses could not remember any aspect of giving the prior statements. Citing Barksdale v. State, 265 Ga. 9, 11-12 (2) (a) (453 SE2d 2) (1995), and Johnson v. State, 255 Ga. 552, 555-556 (4) (a) (341 SE2d 220) (1986), defendants argue that these witnesses did not remember the events or giving the statements and that the statements were inadmissible because they were not inconsistent with the in-court testimony of these witnesses.

Contrary to defendants’ arguments, Johnson v. State, 255 Ga. 552, does not support their position. In that case, the Supreme Court addressed the issue of whether a witness who testified that he could not remember certain events could be impeached by a prior inconsistent statement which was contained in his application for bond. In Johnson, there was no evidence that the defendant even made the prior statement: the attorney for the witness had filed the application for bond, and there was no evidence that the witness approved the wording of the document. The Johnson court determined that the document was inadmissible.

Defendants rely on the following language from Johnson v. State: “Furthermore, ‘where a witness merely states that he does not remember, he cannot be impeached by the showing of former statements with respect to the facts which he claims not to remember. . . .’ 98 CJS 559, Witnesses, § 583.” Id. at 556. But, given the distinguishable facts of the instant case, this statement does not control here. We note that the circumstances of this case are more similar to those presented in Brown v. State, 266 Ga. at 725 (2), in which our Supreme Court determined that the prior inconsistent statement of a witness suffering from memory loss was admissible. Specifically, the court found that the concerns of the Sixth Amendment are satisfied if a defendant is given the opportunity to cross-examine a forgetful witness about his bias, his lack of care and attentiveness, and even the very fact that he has a bad memory. See also United States v. Owens, 484 U. S. 554, 560 (108 SC 838, 98 LE2d 951) (1988); Holiday v. State, 272 Ga. 779.

Similarly, the situation presented in Barksdale v. State, 265 Ga. at 10-12 (2) (a), differed significantly from that presented in the instant case. In Barksdale, the witness who made the prior inconsistent statement refused to testify at trial, yet the trial court admitted the prior statement. In reversing the trial court, the Barksdale court determined that because the witness refused to answer any questions and thus gave no testimony in court with which the prior statement was inconsistent, the statement was inadmissible. Id. at 11.

In the case before us, each of the three witnesses who suffered memory loss took the stand and testified. It is obvious from the transcript that these three witnesses, as well as the other three who equivocated regarding their statements, were reluctant to testify against defendants.

Decided March 5, 2001.

Robert J. Pinnero, for appellants.

Charles M. Ferguson, District Attorney, for appellee.

Under such circumstances it was proper to allow the State to introduce prior inconsistent statements as substantive evidence. Gibbons, supra. As stated in Gibbons, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” [Id. at 862.]

Adams v. State, 174 Ga. App. at 559 (2). See also Waycaster v. State, 136 Ga. 95, hn. 2 (70 SE 883) (1911); Kirby v. State, 187 Ga. App. 88, 89 (1) (369 SE2d 274) (1988). We find no error.

2. Defendants argue that the evidence was insufficient to convict. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of both defendants’ guilt of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Citing OCGA § 17-8-4, Spann and Turner contend that the court erred in not allowing the defense to have additional peremptory jury strikes for voir dire because there were three co-defendants. Contrary to this argument, we find nothing in the record to indicate that the trial court abused its discretion by failing to allow additional jury strikes for the defense. Majors v. State, 203 Ga. App. 139, 141 (4) (416 SE2d 156) (1992).

4. Defendants argue that the court erred in denying their motion for a mistrial when the State referred to one of the State’s witnesses being “in custody on other matters.” This argument lacks merit for several reasons, including that before the statement at issue the witness had testified that he was in prison. Additionally, after the State’s assertion that the witness was in custody, the court instructed the jury to disregard this statement. There was no error.

Judgments affirmed.

Miller and Mikell, JJ, concur.


text:
    A00A2424.
    CROLLEY v. DERGARA.
    (546 SE2d 366)
   Andrews, Presiding Judge.

William L. Crolley, defendant and plaintiff-in-counterclaim, appeals the trial court’s denial of his motion to set aside judgment pursuant to the grant of his application for discretionary appeal.

This litigation arose from a business arrangement which went awry. Suit was initiated by L’Arc En Ciel Editions, Inc. (L’Arc) against Crolley, his corporation WLC Industries, Inc. (WLC), and Ann Dergara Publishing, Inc. (ADP). Dergara was president and Crolley was secretary/treasurer of ADP. Defendants filed a counterclaim as well as a motion to add Dergara individually as a defendant-in-counterclaim, which was granted.

On April 14, 1992, the parties advised the court that there had been a settlement in the case. Dergara’s attorney announced that there was an agreement “in general” and that the parties would attempt to agree on a more definitive written agreement. Dergara was to be paid $60,000, with defendants signing a promissory note in her favor for that amount plus interest, along with other documents including a settlement agreement. As stated by Dergara’s counsel,

[t]he Defendants will execute a Consent Judgment. In the event of default of the Note, default occurs on the Note, the only condition of the Consent Judgment will be notice to the Defendants of their right to argue whether or not there actually was a default on the Promissory Note.

Although no consent judgment was filed and no executed settlement documents are contained in the record, on June 17, 1992, a “Joint Mutual Dismissal With Prejudice” was filed in the case, stating that all parties “hereby dismiss their claims and counterclaims, with prejudice.” On November 28, 1994, and again on July 7, 1995, L’Arc and Dergara filed a “Claim to Enforce Settlement Agreement” in the same action. Pursuant to that claim, which was served on counsel for Crolley by mail, the court entered judgment for Dergara for $54,770.59 plus $6,855.15 in attorney fees “as provided in the promissory note which is the subject of this action.”

Pursuant to OCGA §§ 9-11-60 (d) (1) and 9-12-16, lack of jurisdiction over the person of the defendant renders a judgment void and subject to being set aside.

After the filing of the joint mutual dismissal with prejudice in June 1992, the underlying action in settlement of which the promissory note and other documents were proposed was no longer pending. A mere oral pronouncement by a party that a consent judgment will be entered in the future does not amount to a judgment so as to provide a basis for contempt or other action for its enforcement in the settled matter. In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d 753) (2000); see Leary v. Julian, 225 Ga. App. 472, 473 (1) (484 SE2d 75) (1997). This is beyond question where, as here, a dismissal with prejudice was filed instead of a consent judgment. Such a dismissal is an adjudication on the merits. Grant v. Franklin, 244 Ga. App. 370, 371 (534 SE2d 584) (2000); Kent v. State Farm &c. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

Decided March 5, 2001.

Michael A. Dailey, for appellant.

Steven J. Strelzik, Angelo T. Merolla, for appellee.

Service by mail on Crolley’s attorney was insufficient for initiation of an action seeking to enforce any claimed settlement. Southworth v. Southworth, 265 Ga. 671, 673 (3) (461 SE2d 215) (1995); Souter v. Carnes, 229 Ga. 220, 221 (2), (3) (190 SE2d 69) (1972); Gould v. Latorre, 227 Ga. App. 32, 33 (1) (b) (488 SE2d 116) (1997). Therefore, the judgment entered was void, and denial of the motion to set it aside was error.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       WLC has filed for bankruptcy, and the action against it is stayed.


author: Eldridge, Judge.

text:
    A01A0032.
    CAPRICORN SYSTEMS, INC. v. PEDNEKAR.
    (546 SE2d 554)
   Eldridge, Judge.

Capricorn Systems, Inc., employer/plaintiff, sued Dinesh Pednekar, employee/defendant, for breach of an employment contract that required the computer consultant to either complete a job assignment or provide one month’s minimum notice prior to voluntary termination of employment and provided for $50,000 in liquidated damages. In addition to the unenforceable liquidated damages provision, the contract also contained two unenforceable restrictive covenants that were void. However, the contract contained a sever-ability clause that allowed the other contract terms to survive. The complaint contended that defendant’s leaving the plaintiffs employment without a month’s notice caused it damage with the client. However, plaintiff neither pled nor proved any damages other than the liquidated damages, which it sued to recover. The trial court granted summary judgment to the defendant, because the void restrictive covenants voided the entire contract. Plaintiff appeals. We reverse, because the termination notice provision is not a restrictive covenant, and the entire contract was not voided by the void provisions.

1. Plaintiff contends that the trial court erred in treating the employee pre-termination notice as a restrictive covenant. We agree.

The employee’s contractual duty to provide a specified termination notice to the employer under the contract is not a restrictive covenant and does not constitute a covenant that falls along with the void restrictive covenants in the contract. See generally Kuehn v. Selton & Assoc., Inc., 242 Ga. App. 662, 667 (5) (530 SE2d 787) (2000).

Notice provisions in contracts “must be reasonably construed.” APAC-Ga. v. Dept. of Transp., 221 Ga. App. 604, 606 (2) (472 SE2d 97) (1996). The purpose of the notice in the contract by the employee of voluntary termination “is not difficult to fathom.” State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625, 628 (194 SE2d 493) (1972). Generally, notice by the employer is required under an employment contract so that the employee has an opportunity to seek other employment prior to actual termination of employment. See King Indus. Realty v. Rich, 224 Ga. App. 629, 630 (2) (481 SE2d 861) (1997). Likewise, here, under the contract terms, the employee was required to provide a minimum month’s notice, if the client for which he was performing consulting work required it, so that the client would not feel abandoned, and the work could be salvaged by the employer timely finding a replacement without any interruption of work; such provision was to protect both the client and the employer. A contract provision requiring a specified prior notice of termination is reasonable to allow the employer to prepare for an orderly transition and enforceable through special damages resulting from a sudden quitting, and in the absence of special damages, nominal damages are recoverable. See Belcher v. Thomson Newspapers, 190 Ga. App. 466, 467 (379 SE2d 204) (1989). Such contract provision does not constitute a restrictive covenant, because it requires employment to continue under the contract terms for an additional minimum of a month at the client’s election after notice of termination of employment. Thus, the trial court erred as a matter of law in treating such provision as a restrictive covenant that falls with other restrictive covenants.

2. Plaintiff contends that the trial court erred in finding that the entire contract was void, because the contract contained not only void restrictive covenants and a void liquidated damages clause, but also contained a severability clause. We agree.

(a) The noncompete and nonsolicitation covenant is overly broad and unenforceable. It provided:

For a period of twenty four (24) months following the completion of project, the employee unconditionally agrees to not deal directly, indirectly, or by any other means, either individually or in association with another individual or organization, with Corporation’s customer or their client to whom he is assigned for on-site consulting project.

Such provision prohibits the defendant from soliciting any customer of the plaintiff anywhere that it does business, even though the defendant has had no relationship with such customer or the customer’s clients, which is an overbroad and unreasonable territory. This restriction also affects any activity of employment with a competitor, because there is no restriction to only such activity that defendant carried on for the plaintiff or that defendant carried on for the client as part of an on-site consulting project.

Where a former employee is prohibited from working in any scope or capacity of employment for a competitor of the former employer, such covenant not to compete is unenforceable as being overly and unreasonably broad. Firearms Training Systems v. Sharp, 213 Ga. App. 566, 567 (445 SE2d 538) (1994); Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (423 SE2d 49) (1992). The former employer has no reasonable interest that must be protected by the former employee being prohibited from working in any capacity for a competitor, and such a restrictive covenant is void. See Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184-185 (2) (236 SE2d 265) (1977); Brunswick Floors v. Guest, 234 Ga. App. 298, 300-301 (506 SE2d 670) (1998); Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998).

(b) The next covenant is against solicitation of clients, employees, or business opportunity, and such is even broader and unenforceable as to territory and nonrelationships with clients or employees:

The employee shall not, for a period of two (2) years after termination thereof, whether voluntarily or involuntarily, with or without cause, directly or indirectly, either for self or in conjunction with or on behalf, call upon, solicit, divert, take away, attempt to accept or take away: (a) any employees of the Corporation; (b) any business opportunity of the Corporation which became known to the Employee while employed by the Corporation; (c) any of the Corporation’s clients; or (d) any of the Corporation’s clients’ clients whose identity became known to the Employee or with whom the Employee may have had contact during the course of his employment with the Corporation.

The nonsolicitation of customers covered any and all customers of the plaintiff, regardless of whether defendant had ever worked for them or had any relationship established during employment anywhere. Therefore, such provision was void as overly broad and unreasonable in territory and in absence of relationships needing protection, because the relationships were developed during the employment. See W. R. Grace &c. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). Further, such restrictive covenant had no definite geographic area limitations as to competition, solicitation of clients, or recruiting of employees, which also renders the covenant unenforceable for being overbroad. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 140 (1) (287 SE2d 546) (1982); Ceramic & Metal Coatings Corp. v. Hizer, 242 Ga. App. 391 (529 SE2d 160) (2000); Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352, 355 (3) (348 SE2d 919) (1986).

(c) Liquidated damages are not favored when they act as a penalty, because they can be abused to coerce compliance with abusive or void noncompetition contract provisions, as in this case. See OCGA § 13-6-7; AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (2) (444 SE2d 314) (1994); Miazza v. Western Union Telegraph Co., 50 Ga. App. 521, 522-523 (1) (178 SE 764) (1935). In this case, liquidated damages were arbitrarily set at $50,000, which bears no rational relationship to actual or potential damages for any breach of contract. Further, the method to calculate special damages for the breach of contract sued for was set by contract at $10 per hour for replacement service if the employee terminated without notice for the month’s period, which maximum amount would be $1,600 under the contract. In a supplemental provision of the contract, if the employee terminates employment prior to completion of an assignment, then “employee unconditionally agrees to pay for all damages as claimed by Corporation, Corporation’s customer or client, including attorney fees,” and such damages would include any performance penalty that such termination causes the corporation. There was no evidence that the customer, Saic, elected to have the defendant work for a month or would have made such decision. Thus, asking for liquidated damages in this case where no special damages have been pled or shown indicates that such damages were an unenforceable penalty and not intended as a true liquidated damages provision.

For liquidated damages to be recoverable under a contract, (1) injury caused by the breach must be difficult or impossible of estimation in fact and not merely contended by the contract; (2) the parties must intend to provide for damages; and (3) the sum stipulated must be a reasonable pre-estimate of the probable loss. Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 644 (4) (507 SE2d 823) (1998); Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987). In determining the validity of a liquidated damages provision, an important distinction must be drawn between damages that are difficult to accurately determine in monetary terms and damages which can be accurately established, although through a complicated procedure. Thorne v. Lee Timber Products, 158 Ga. App. 226, 227-228 (279 SE2d 521) (1981). Here, the special damages can be easily calculated as substantially less than the liquidated damages in the contract; therefore, the liquidated damages were intended to be an unenforceable penalty.

In this case, $50,000 liquidated damages for a failure to provide a month’s notice when there are two other contract provisions which set forth how to accurately calculate special damages in such case constitute an unenforceable penalty. “Thus, even if we assume the liquidated damages provision is unenforceable, there would be no reason not to give effect to the severability agreement contained in the contract and enforce the contract without the liquidated damages clause. See OCGA § 13-1-8.” Chaichimansour v. Pets Are People Too, 226 Ga. App. 69, 72 (2) (485 SE2d 248) (1997).

Notwithstanding that the liquidated damages clause is unenforceable and no special damages have been pled, defendant is not entitled to summary judgment for failure to prove any damages in this case, because in every breach of contract, a plaintiff is entitled to recover nominal damages. See OCGA § 13-6-6; Belcher v. Thomson Newspapers, supra at 467; Don Swann Sales Corp. v. Parr, 189 Ga. App. 222, 225 (2) (375 SE2d 466) (1988).

(d) Void restrictive covenants, which cannot be blue-penciled out of the contract, do not void the entire contract when the contract contains a severability clause or when other valid post-termination provisions are expected to be performed. See Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 297 (1) (491 SE2d 394) (1997); Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 63 (2) (449 SE2d 858) (1994). Thus, the other contract terms survive the void terms, provided that the contract is severable.

The intent of the parties determines whether the entire contract is void if one provision is void, because the entire contract is the entire consideration for both parties, or the valid provisions survive as part of multiple consideration for the parties. Carlton v. Moultrie Banking Co., 170 Ga. 185, 196-197 (152 SE 215) (1930). A severability clause indicates the intent of the parties where the remainder of the contract can exist without the void portion. OCGA § 13-1-8; Charles v. Leavitt, 264 Ga. 160 (442 SE2d 241) (1994); Horne v. Drachman, 247 Ga. 802, 805-806 (2) (280 SE2d 338) (1981); Grove v. Sugar Hill Investment Assoc., 219 Ga. App. 781, 785-786 (3) (466 SE2d 901) (1995); Nat. Consultants v. Burt, 186 Ga. App. 27, 34-35 (3) (366 SE2d 344) (1988). Thus, the remainder of the contract survives the severance of the void portions of the contract in this case.

Decided March 5, 2001.

Theodore H. Lackland, for appellant.

Hewitt, Katz & Dumich, Robert N. Katz, for appellee.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.


text:
    A01A0147.
    CRAWFORD et al. v. ETHERIDGE.
    (546 SE2d 551)
   Eldridge, Judge.

This is an appeal from the trial court’s award of summary judgment on the issue of attorney fees to plaintiff-appellee Champ Etheridge, Sr. on his complaint for balance due on debt and writ of possession filed against defendant-appellant Bibb Auto Salvage & Recycling (“business”) and the owner thereof, Eddie L. Crawford, Jr. Construing all facts and inferences in favor of nonmovant Crawford, as we must, we reverse the trial court’s grant of summary judgment.

Crawford executed a promissory note (“Note”) in favor of Etheridge for the principal sum of $75,000 to be paid in annual installments of $15,000 each, plus accrued interest, beginning on December 1, 1998, and continuing on the first of each December for five years until paid in full. The Note contains an acceleration clause which states

[s]hould any installment not be paid when due, the entire unpaid principal sum evidenced by this note, shall, at the option of the holder, and without notice to the undersigned, become due and may be collected forthwith, time being of the essence of this contract. It is agreed that failure of the holder to exercise this right of accelerating the maturity of the debt, or indulgence granted from time to time, shall in no event be considered as a waiver of such right of acceleration or stop the holder from exercising such right.

In addition, the Note specifically provides that “ [i] f this note is collected by law, as through an attorney at law, all costs of collection, including reasonable attorney’s fees, shall be paid by the maker hereof.” At the same time, Crawford executed a security agreement in favor of Etheridge, granting him a security interest in the assets of the business.

Crawford was seven days late with the first installment payment, which was two days beyond the five-day grace period. Etheridge accepted the late payment, and a $500 late fee was assessed pursuant to contract. Crawford paid the late fee. Six months later, in June 1999, Etheridge through counsel sent a letter notifying Crawford that “[s]aid account being in default, [Etheridge has] elected to declare the entire balance due and payable as provided by the terms of your agreement.” The letter also stated that “[y]ou have ten (10) days in order to pay the above-stated balance in full in order to avoid the attorney fees assessment [pursuant to OCGA § 13-1-11].”

Crawford did not pay. Etheridge filed suit for balance due on the note and for writ of possession of the assets of the business, in the event the balance due was not paid. Thereafter, apparently voluntarily, Crawford paid all sums due under the Note. Our examination of the record does not reveal a court-ordered resolution to the two suits filed by Etheridge, and neither party directs this Court’s attention to such. However, the record is clear that attorney fees went into the registry of the court, and both parties filed for summary judgment with regard thereto. The trial court found for Etheridge on the issue. Held:

Crawford claims error in the trial court’s award of attorney fees to Etheridge. In doing so, Crawford contests the validity of the underlying actions on which the award was premised, i.e., Etheridge’s complaint for balance due on debt and for writ of possession. Crawford contends that “[i]f [he] had actually been in default, Etheridge would have had the right to accelerate the note; however, [he] was not in default because Etheridge accepted his check.” Crawford claims that Etheridge’s acceptance of the late December 1, 1998 payment cured the default and thereby precluded Etheridge’s right six months later to exercise the acceleration clause of the Note because of the prior December 1, 1998 default. We agree.

In this case, under the express terms of the Note, Etheridge was under no duty to notify Crawford of his decision to accelerate the balance due, prior to making such election. In fact, “it was unnecessary for him ‘to do anything other than reject the untimely tender’ in order to exercise his right of acceleration.”

Etheridge, however, did not reject Crawford’s tender, but permitted him to cure the default by accepting the seven-days-late December 1, 1998 installment payment and the $500 late fee payment. Thereafter in June, six months after Crawford was no longer in default, Etheridge opted to exercise the acceleration clause of the Note, declaring “said account being in default.” By that time, however, the prior, cured default provided no basis for acceleration, and the next installment payment was not due for another six months, i.e., December 1, 1999.

Here, time was of the essence, and [Etheridge] as holder was entitled, upon default, at his option, to declare the entire indebtedness due and payable and same “may be collected forthwith.” . . . From our examination of the evidence found in the record, . . . [Etheridge] failed to assert promptly his rights to declare to [Crawford] that he was forthwith declaring the acceleration of the indebtedness while the loan was in default (non-payment of the [December] 1[, 1998] payment). The loan became current upon the receipt of the [December] 1[, 1998] payment.

(a) Etheridge contends that Crawford “admitted owing the debt by paying all sums due under the note.” However, such contention misses the point. Crawford never denied owing the debt; the Note itself is prima facie proof of Crawford’s debt. What is at issue are the attorney fees generated by the acceleration of the debt due to Crawford’s alleged default. And Crawford’s payment of the debt neither admits that Crawford was in default nor admits that Etheridge had a right to accelerate the debt because of any default status.

(b) Etheridge also contends that the following language in the Note permits him to accept a late payment and still retain the right to accelerate the loan:

It is agreed that failure of the holder to exercise this right of accelerating the maturity of the debt, or indulgence granted from time to time, shall in no event be considered as a waiver of such right of acceleration or stop the holder from exercising such right.

Clearly, however, this clause goes to the concerns addressed by OCGA § 13-4-4 wherein the conduct of the parties can be seen as waiving express terms of an agreement. Such clause permits Etheridge to accept Crawford’s late payments without changing the payment terms of the contract and without waiving the right to accelerate the loan in the event future late payments create a default.* ** Such clause, however, does not permit Etheridge to accept Crawford’s late installment payment, thereby curing any default; charge a late fee and accept such, which indicates a waiver of acceleration; six months later, unilaterally declare Crawford still in default; and then elect to accelerate the loan based on the same, cured default.

(c) Etheridge contends that only payment of the entire amount of the debt could cure any default. However, the express terms of the Note negate such contention. The acceleration clause plainly states that acceleration occurs only “at the option of the holder” and “if the holder of this note should elect, because of such default, to declare the unpaid balance of the principal sum due and payable.” Accordingly, acceleration of the loan was not automatic. Instead, an election was required. “ “Where the election to accelerate is declared prior to the tender of arrearage, the rights of the parties are the same as if the entire note had by its terms become due immediately upon default.’ ” Here, the record shows that Etheridge made no election to accelerate the loan until long after the default had been cured by Crawford through tender of the December 1, 1998 installment payment and the acceptance thereof by Etheridge. Further, the charge and acceptance of a late fee indicate a waiver of the right to accelerate the loan amount.

Forfeitures of rights under valid legal contracts are not favored under law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture cannot be recalled.

Under the circumstances presented here, we conclude that Etheridge’s failure to promptly exercise his right under the Note to accelerate the loan prior to accepting Crawford’s December 1, 1998 tender waived his right to do so based on any default with regard to such December 1, 1998 tender. Accordingly, we find the trial court erred as a matter of law in granting summary judgment to Etheridge on the issue of attorney fees engendered through and related to collection of the loan accelerated because of an alleged default in the December 1, 1998 payment.

Decided March 5, 2001.

Burkett & Schneider, Gene Burkett, for appellants.

Phillips & Phillips, Arthur L. Phillips, for appellee.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

        Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990).

       (Citation omitted.) Duncan v. Lagunas, 253 Ga. 61, 63-64 (2) (316 SE2d 747) (1984); see also Menke v. First Nat. Bank of Atlanta, 168 Ga. App. 495, 496 (309 SE2d 835) (1983) (holder “refused . . . tender and insisted upon payment [in] Ml [of the] accelerated balance”); Oak Mountain Dev. Corp. v. Harrell, 162 Ga. App. 186 (1) (290 SE2d 177) (1982).

        Redmond v. Merrill Lynch Relocation Mgmt., 163 Ga. App. 346, 350-351 (294 SE2d 575) (1982).

       Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.
      OCGA § 13-4-4.

       See Gordon v. South Central Farm Credit, 213 Ga. App. 816, 819 (446 SE2d 514) (1994).

       See OCGA § 11-3-304 (b) (1) (“If the principal is payable in installments and a due date has not been accelerated, the instrument becomes overdue upon default under the instrument for nonpayment of an installment, and the instrument remains overdue until the default is cured.”).

       (Emphasis supplied.) Chapman v. Nation, 193 Ga. App. 632, 634 (2) (388 SE2d 744) (1989).

       (Citation and punctuation omitted.) Forehand v. Perlis Realty Co., 198 Ga. App. 165, 170 (2) (400 SE2d 644) (1990); Redmond v. Merrill Lynch Relocation Mgmt., supra at 351; see also OCGA § 23-1-23.


author: MlKELL, Judge.

text:
    A01A0390.
    THE STATE v. SHEPHARD.
    (546 SE2d 823)
   MlKELL, Judge.

Defendant Gary Paul Shephard was charged with driving under the influence of alcohol (“DUI”), having an unlawful blood alcohol concentration, striking a fixed object, and weaving on a roadway. He filed a motion to suppress evidence gathered inside his home following a warrantless entry by the police and to suppress statements he made due to Miranda violations. After a hearing, the trial court granted Shephard’s motion to suppress, and the state appeals. We affirm the trial court’s ruling.

It is well settled that when reviewing a trial court’s decision regarding a motion to suppress evidence, the appellate court should be guided by three principles with regard to interpretation of the trial court’s judgment of the facts:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); State v. Aguirre, 229 Ga. App. 736-737 (494 SE2d 576) (1997).

So viewed, the evidence adduced at the suppression hearing demonstrates that at approximately 12:00 a.m. on December 30, 1999, Shephard’s neighbor Brian Jankovich heard a “roar type of sound” coming from outside his home. Jankovich observed that a large crepe myrtle, an eight-foot juniper bush, and a mailbox had been knocked over and were lying near the curb. He realized that the “loud roar” was the revving engine of a black sport utility vehicle parked in Shephard’s driveway, approximately three houses down the street. Jankovich testified that he watched the vehicle for at least five minutes and noticed that the horn was honking, the hazard signals were flashing, and that the accelerator was continuously applied. Jankovich called the police and then returned to his front porch to watch the vehicle. He testified that he heard the engine shut off and that he observed a tall white male staggering in the driveway, although he did not actually see anyone exit the vehicle. According to Jankovich, the man was groaning “like a wounded animal” before he went into the garage and disappeared from view.

Officer Ronald E. Purdue of the Cobb County Police Department arrived on the scene at 1:00 a.m., approximately one hour after Jankovich’s call. Officer Purdue took a statement from Jankovich, observed the damage to the bushes and mailbox, and called to request backup. Officer Charles Neville arrived approximately twenty minutes later, and the two officers approached Shephard’s home. They inspected the exterior of a black Ford Explorer parked in the driveway and noticed vegetation and dirt on the vehicle, and that the engine was still warm. They knocked on Shephard’s front door, but there was no answer.

The officers looked through a window and observed a white man lying face down on the floor, with his head turned away from them. The man did not respond to the officers beating on the window. The officers requested that dispatch obtain the telephone number for Shephard’s residence. According to Officer Purdue, dispatch was able to contact Shephard’s wife, who then opened the door.

Officer Purdue testified that Mrs. Shephard gave consent for the officers to enter the home; however, she testified that the officers pushed past her into the home, and that she did not give them consent to enter. According to Officer Purdue, they approached Shephard, who was lying on the floor, and attempted to wake him. After “holler [ing]” at him and receiving no response, Officer Purdue testified that:

I tried a pressure point here behind his ear and a little bit of response [sic]. And I believe, if I remember right, the one that really got him was the pressure point in his sternum. You apply a lot of pressure. It creates a lot of pain. It does no damage but got his attention!,] and he started coming to.

After the officers successfully roused Shephard, he had difficulty sitting up. Officer Purdue observed that Shephard “reeked of alcohol” and noticed scratches on his face and grass stains on his clothing. The officers asked him if he had been driving the Explorer that night, and he confirmed that he had. The officers then placed him under arrest. It is undisputed that Miranda rights were never read to Shephard. The officers put Shephard in the back of the police car and read him the implied consent notice. According to the officers, Shephard agreed to submit to a breath test.

On cross-examination, Officer Neville testified that they did not call an ambulance or request that medical technicians examine Shephard. He also testified that the officers’ concern for Shephard’s safety lessened prior to their entry into the home, because they concluded that it was unlikely that a person’s head had hit the windshield of the vehicle.

At the close of the hearing, the trial court ruled that the state failed to prove that Shephard’s wife consented to the officers’ entry into the home, and that there were no exigent circumstances to justify the warrantless entry. The court further ruled that the officers’ failure to read Shephard his Miranda rights would render anything he said after waking up inadmissible.

1. First, the state contends that the court erred in granting Shephard’s motion to suppress, because exigent circumstances justified the officers’ warrantless entry into the home. OCGA § 17-5-30 (a) (1). Specifically, the state argues that the officers reasonably believed that Shephard was in need of immediate aid, and, therefore, their warrantless entry was not illegal.

We have recognized that a private home is “an ‘unquestionable zone of privacy under the Fourth Amendment,’ ” and that a warrant-less search must be justified by exigent circumstances. State v. Sims, 240 Ga. App. 391, 392 (523 SE2d 619) (1999), citing Bunn v. State, 153 Ga. App. 270, 274 (265 SE2d 88) (1980). “[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982).

The state relies on State v. Brannan, 222 Ga. App. 372 (474 SE2d 267) (1996), to argue that the officers were justified in entering the home because they were concerned about the risk of harm to Shephard. However, that case is factually distinguishable from the case at bar. In Brannan, an officer conducted a warrantless search of a home after a gun had discharged, striking a child. In that case, we reasoned that the rifle represented a significant risk of harm to the persons in the home, including the treating medical personnel, and held that the officer was entitled to enter the home and seize the weapon. Id. at 373-374.

In the case sub judice, there was no evidence in the record to demonstrate that the officers reasonably believed Shephard was in need of immediate aid. Officer Purdue arrived at the scene one hour after Shephard’s neighbor reported the accident, and he questioned the neighbor for another twenty minutes before he made any inquiry as to whether Shephard was injured. When the officers saw Shephard lying on the floor in his home, they did not call an ambulance. In fact, they waited while dispatch contacted Mrs. Shephard. Officer Neville testified that they were less concerned about Shephard’s safety after they inspected the vehicle and saw no signs that his head had struck the windshield. When the officers entered the home, they attempted to wake Shephard by inflicting pain on him and yelling.

Moreover, in a similar case involving a DUI suspect whom the police observed sleeping on the sofa in his home, we held that the officers’ subsequent warrantless entry was “unjustified, unreasonable, and illegal.” Griffith v. State, 172 Ga. App. 255, 256 (1) (322 SE2d 921) (1984).

Accordingly, we conclude that the trial court’s determination that the state failed to prove the existence of exigent circumstances was not clearly erroneous. See State v. Gallup, 236 Ga. App. 321, 325 (2) (512 SE2d 66) (1999). Consequently, it properly suppressed the evidence obtained as a result of the officers’ warrantless entry into Shephard’s home.

2. Next, the state argues that the court erred in suppressing Shephard’s incriminating statements based on Miranda violations. It contends that Shephard was not in custody when the police questioned him prior to his arrest, and, therefore, it was not necessary for the officers to advise him of his Miranda rights. We disagree.

It is undisputed that the officers did not notify Shephard of his Miranda rights. Miranda warnings are required when a person has been taken into custody or otherwise deprived of his freedom of action. Brannan, supra, 222 Ga. App. at 374 (2). “To determine whether [a person’s] statements were custodial, we apply an objective standard and determine whether a reasonable person in his situation would have believed he was physically deprived of his freedom of action in a significant way.” Id.

The court concluded that Shephard was in custody from the time the police officers woke him and held that:

the defendant was awakened from what they said was an absolute dead sleep by two uniform police officers standing over him in his home. I can’t imagine a more coercive atmosphere unless he had awakened in a barred cell in a prison somewhere. I think he was in custody both in law and in fact[,] because I do not perceive under any set of circumstances outlined by the evidence that the defendant was free to go anywhere.

Decided March 5, 2001.

Barry E. Morgan, Solicitor, Keith S. Hasson, Assistant Solicitor, for appellant.

Spruell, Taylor & Associates, Melinda D. Taylor, for appellee.

We conclude that the trial court’s ruling was not clearly erroneous.

The state relies on Shelton v. State, 214 Ga. App. 166 (447 SE2d 115) (1994); however, that case is distinguishable from the case at bar. In Shelton, police officers questioned a DUI suspect at his home before advising him of his Miranda rights. We held that the trial court did not err in refusing to suppress the pre-Miranda statements, because there was no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action. Unlike in the case sub judice, however, there was no warrantless entry by the police in Shelton, nor was there any indication that the officers actually roused the defendant from a deep sleep.

In the case sub judice, there was evidence in the record to support the trial judge’s rulings. We construe the evidence favorably to upholding, the trial court’s findings and judgment. Tate, supra, 264 Ga. at 54.

Judgment affirmed.

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


text:
    A01A0512.
    CARMODY v. HILL.
    (546 SE2d 545)
   MlKELL, Judge.

On March 8, 1999, James Carmody filed a complaint against Annie Hill for injuries he allegedly sustained when he was bitten by Hill’s dog on October 20, 1997. Hill filed a motion to dismiss for failure to perfect service within the statute of limitation. The trial court, finding that Carmody had personal knowledge of Hill’s address, dismissed Carmody’s complaint for failure to serve Hill within a reasonable time after the expiration of the statute of limitation. Carmody appeals the trial court’s dismissal of his action. We affirm.

The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.

For the reasons discussed below, we find that the trial court did not abuse its discretion in dismissing Carmody’s action.

The record shows that when Carmody filed his complaint against Hill on March 8, 1999, the address he provided for Hill was 2600 Lavista Road, Decatur. The sheriff’s entry of service, which was returned on March 10, 1999, indicated that service had not been made because Lavista Road jumped from 2598 to 2606. Carmody retained a private process server, Craig Brazeman, on April 1, 1999. By affidavit, Brazeman indicated that he was unable to locate Hill until December 28, 1999, when the postal service confirmed that Hill’s address was 2600 Lavista Drive. Another month passed, however, before Hill was finally served on February 2, 2000. Hill answered on February 15, 2000, raising the defense of insufficiency of process and asserting that Carmody’s complaint was barred by the statute of limitation.

We find no abuse of discretion in the trial court’s decision to dismiss Carmody’s action. Where the plaintiff files an action within the period of limitation, but does not serve the action within five days or within the period of limitation, as in this case, “ ‘[the] plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible.’ ” Once the plaintiff becomes aware of a problem with service, however, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.

As a plaintiff, Carmody had “the responsibility to investigate and learn where the defendant may be located and served.” Furthermore, after learning from the sheriff’s office that there was a problem with service on March 10, 1999, he was required to exercise, not merely due diligence, but the greatest possible diligence to serve Hill properly and timely. We note that Carmody’s argument that the trial court erred in finding that he did not exercise due diligence ignores this heightened duty.

At all material times, Carmody knew where Hill resided. Therefore, >his duty to exercise the greatest possible diligence to serve Hill required more than the reliance on third parties to locate her. Furthermore, we reject Carmody’s attempts to show his diligence by blaming those who knew far less about Hill’s whereabouts than he. Carmody “ ‘cannot excuse [his] lack of diligence by attempting to place responsibility on others.’” Accordingly, under the circumstances of this case, we cannot find that the trial court abused its discretion by granting Hill’s motion to dismiss.

Decided March 5, 2001.

Mullman-Roberts, Roy S. Mullman, for appellant.

Goodman, McGuffey, Aust & Lindsey, James F. Cook, Jr., for appellee.

Judgment affirmed.

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

       (Punctuation omitted.) Sykes v. Springer, 220 Ga. App. 388, 390 (469 SE2d 472) (1996).

       (Citation omitted.) Wilson v. Ortiz, 232 Ga. App. 191, 192 (1) (a) (501 SE2d 247) (1998).

        Sykes, supra at 390 (2).

        Patterson v. Johnson, 226 Ga. App. 396, 398 (486 SE2d 660) (1997).

        Wade v. Whalen, 232 Ga. App. 765, 766 (1) (504 SE2d 456) (1998).

        Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991).


author: Mikell, Judge.

text:
    A01A0532.
    DRIVER v. THE STATE.
    (546 SE2d 549)
   Mikell, Judge.

A jury found Earl Driver guilty of habitual violator (Count l) and driving a vehicle while his alcohol concentration was more than 0.10 grams (Count 3). He was acquitted of driving under the influence to the extent it was less safe for him to drive (Count 2). The defendant’s three habitual violator convictions and eleven DUI convictions were introduced in aggravation during sentencing. The trial court imposed a five-year prison term for the habitual violator conviction and twelve months for the DUI conviction, to be served consecutively. On appeal, the defendant challenges the admission of his statement into evidence as well as the sufficiency of the evidence to support his DUI conviction. We affirm.

The evidence adduced at trial reveals that on October 31, 1997, Richard Harrison, then a Carroll County deputy sheriff, responded to a call concerning a single-car accident on Highway 5. Harrison found a slightly damaged blue Honda Prelude off the shoulder of the road, heading down an embankment. The car was unoccupied. When Harrison activated the blue lights on his patrol car, Mr. and Mrs. Jerry Driver, the defendant’s brother and sister-in-law, came outside of their home, which was located across the street from the accident site. Harrison, who knew the Driver family, drove his vehicle onto their property. The deputy spoke with Jerry Driver, who stated that he owned the car but had not been driving it.

Harrison testified that Jerry invited him into the residence. When he walked inside, he saw the defendant eating a meal. The deputy asked the defendant whether he had been driving, and the defendant replied that he had not. Harrison observed that the defendant’s speech was slurred and that he smelled of alcohol. Harrison began conversing with other members of the household, and the defendant walked down the hallway. When he returned to the front of the house, the defendant told Harrison: “I’m not going to let my brother go to jail for this. ... I was driving the car.” The deputy then placed him in the back of the patrol car and read him the implied consent notice.

The defendant agreed to submit to a state-administered breath test. The results revealed that defendant had a blood alcohol concentration of 0.131 grams.

1. In his first enumeration of error, the defendant contends that the trial court erred in admitting his incriminating statement into evidence because he was not advised of his Miranda rights. We disagree.

“A person is entitled to Miranda warnings only if the person has been taken into custody or deprived of freedom of action in a significant way.”

[T]he issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply.

Applying the objective standard to the facts of this case, we conclude that the trial court’s finding that the defendant was not in custody when he made the statement was not clearly erroneous. The defendant testified that after he told the deputy that he had not been driving the wrecked automobile, he was unaware of the deputy’s subsequent activities, because he “was sitting at the table eating, wasn’t paying no attention to none of them really.” The defendant then testified that he went into the back of the house for 15-20 minutes, changed clothes, reemerged, and declared to Harrison that he had in fact been driving the car. The defendant also testified that he was well acquainted with the deputy, whom he called “Big Papa.”

Decided March 5, 2001.

Thomason & Blackmon, Valerie C. Thomason, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Moreover, the evidence shows that after the defendant initially denied driving the car, the deputy asked him no further questions. Rather, he permitted the defendant to roam about freely. The evidence thus compels the conclusion that a reasonable person in the defendant’s shoes would not have believed that his freedom was curtailed in any significant way when the deputy asked whether he had been driving. Accordingly, we find no error in the admission of the statement into evidence.

2. In his remaining enumerated errors, the defendant contends that the state presented insufficient evidence to support his DUI conviction. However, a review of the record reveals ample evidence from which any rational trier of fact could have determined that the defendant was guilty of driving a vehicle while his alcohol concentration was more than 0.10 grams. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying the defendant’s motion for new trial on the general grounds.*

Judgment affirmed.

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

       OCGA § 40-5-58 (c).

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        McAllister v. State, 270 Ga. 224, 227 (1) (507 SE2d 448) (1998).

       (Citations and punctuation omitted.) Quinn v. State, 209 Ga. App. 480, 482 (2) (433 SE2d 592) (1993).

        Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1997) (clearly erroneous standard of review applies to trial court’s factfindings on the issue of whether defendant was in custody for Miranda purposes).


text:
    A01A0738.
    STEELE v. THE STATE.
    (546 SE2d 547)
   Eldridge, Judge.

A Cobb County jury convicted Richard Allen Steele of two counts of child molestation and two counts of aggravated child molestation for acts he perpetrated against his victims, two minor children, C. W. and S. P, respectively. He was sentenced to concurrent sentences of 25 years to serve as to each count of aggravated child molestation and consecutively to concurrent sentences of 15 years to serve probated as to each count of child molestation. The defendant appeals from the superior court’s denial of his motion for new trial, as amended, contending that the superior court: (1) erred in refusing to charge OCGA § 24-9-85, and (2) erred in admitting his admission to the polygraph examiner after taking a lie detector test that, on at least one occasion, he and S. P. slept in the same waterbed together in his home. Finding these claims of error to be without merit, we affirm. Held:

1. The trial court properly denied the defendant’s request to charge under OCGA § 24-9-85 (b). “OCGA § 24-9-85 (b) is applicable where the witness admits that he wilfully and knowingly swore falsely, or where the testimony is such as to render the purpose to falsify manifest.” (Citations and punctuation omitted.) Perguson v. State, 221 Ga. App. 212, 215 (2) (470 SE2d 909) (1996). A credibility charge does not satisfy the principle embodied in OCGA § 24-9-85. Id.; Blount v. State, 172 Ga. App. 120, 122 (4) (322 SE2d 323) (1984). However, where knowing, false testimony is not admitted, as here, the question of whether the complained-of testimony evidences a manifest intent to testify falsely is an issue of credibility for the jury. Fugitt v. State, 256 Ga. 292, 298 (6) (348 SE2d 451) (1986).

The defendant variously argues that the testimony of the victims showed that they had a motive to falsify their testimony, i.e., S. P. to obtain early release from boot camp and C. W. presumably to bolster S. P.’s accusations as a close friend. This testimony demanded a charge on the credibility of witnesses to be sure. As in the nature of mere conjecture or speculation, however, the possibility of a motive to testify falsely does not evidence a manifest purpose to do so. See Ferguson v. State, supra. Neither does it establish that the victims’ testimony was wilfully or knowingly false. Id. Accordingly, the victims’ credibility was for the jury to determine under a proper instruction from the court. Id. As the trial court gave such an instruction, it did not err in denying the request to charge on OCGA § 24-9-85 (b).

2. Neither did the trial court err by admitting defendant’s post-polygraph, noncustodial statement admitting that he had, on at least one occasion, slept in the same bed with S. P. “[A]dmissions which are otherwise competent and admissible are not to be excluded simply because the admissions were made after the taking of a lie detector test.” Drane v. State, 265 Ga. 255, 258 (5) (455 SE2d 27) (1995). Accord Smith v. State, 265 Ga. 570, 571 (2) (459 SE2d 420) (1995). That some confusion of record exists as to whether defendant made the complained-of statement before or after the test is immaterial in that the same rule applies in either situation. Drane v. State, supra at 259; Williams v. State, 144 Ga. App. 130, 135 (240 SE2d 890) (1977). In any event, the record reflects that before making his statement, the defendant had been given his Miranda warning and signed a waiver of rights form. There is no evidence that the defendant misunderstood his rights or that he gave his statement involuntarily. The court granted defendant’s motion to suppress, foreclosing any comment making reference to the polygraph examination, and the defendant does not complain of any. Under these circumstances, the statement at issue was properly admitted in evidence.

Decided March 5, 2001

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Patrick H. Head, District Attorney, Eleanor A. Kornahrens, Dana J. Norman, Assistant District Attorneys, for appellee.

3. Finally, reviewed in the light most favorable to the verdict, Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998), the record shows that the victim children testified as to the acts of child molestation and aggravated child molestation performed on them as alleged in the indictment — S. P. describing in detail aggravated child molestation by anal and oral sodomy on separate occasions and C. W. in a like manner describing child molestation by the defendant touching C. W.’s penis and buttocks with his hand on one occasion and, on another, by defendant’s touching and rubbing his penis on C. W.’s buttocks. Although the defendant denied the charges in the pre-trial statement he made to police upon initially being interviewed, on appeal “all conflicts [are] resolved in favor of the verdict. Self v. State, 208 Ga. App. 447, 448 (431 SE2d 126) (1993).” Metts v. State, 210 Ga. App. 197 (1) (435 SE2d 525) (1993). “ ‘ “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.’ [Cit.]” Weeks v. State, 220 Ga. App. 141, 143 (2) (469 SE2d 316) (1996). The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses for which he was convicted and sentenced. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Metts v. State, supra.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       OCGA § 24-9-85 (b) provides: “If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.”

       In testimony at a pre-trial suppression hearing, the polygraph examiner settled the confusion regarding whether the defendant made the complained-of statement pre- or post-test, stating that he believed the statement was made after the second of the three tests of which the polygraph examination consisted.


author: Smith, Presiding Judge.

text:
    A00A1840.
    McConnell homes, inc. v. feria.
    (545 SE2d 87)
   Smith, Presiding Judge.

McConnell Homes, Inc. sued Albert Feria for breach of contract for failure to return $16,000 in earnest money paid pursuant to a real estate sales contract. In a two-sentence order, the trial court denied McConnell Homes’ motion for summary judgment, finding that issues of fact existed. Following the grant of its application for interlocutory appeal, McConnell Homes appeals the denial of its motion for summary judgment. McConnell Homes claims that no material facts were in dispute and that it was entitled to judgment as a matter of law. We agree and reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “We review the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.” (Citation omitted.) Bell v. Sasser, 238 Ga. App. 843, 844 (520 SE2d 287) (1999).

On June 13, 1998, McConnell Homes and Feria entered into a contract for the sale by Feria to McConnell Homes of certain property located at 1287 Cumberland Road in DeKalb County. The total purchase price was $375,000, with $16,000 of the purchase price designated as a “[djeposit to be held in trust.” Feria received this $16,000 when the contract was executed. A special stipulation was attached to the contract. The stipulation provided in part:

The earnest money of $15,000 [this was changed to $16,000 on the face of the contract] is nonrefundable to the buyer except in the event that a survey does not show that the rear parcel of land does not abut a publicly maintained street (Reeder Circle) [the record indicates that the intention of the parties was that the earnest money was refundable if the property did not abut a public street] ... or in the event that various governmental restriction [s] will not allow the use of the property for the construction of a single family home. If any of the events takes place then this contract is voided and canceled, and the earnest money is to be refunded to the buyer.

The contract also provided a cancellation provision: “Notice of Cancellation due to the lack of access to the Reeder Circle right of way must be given within 45 days of this contract. Cancellation for other reasons must be given in 60 days of this contract.”

On August 7, 1998, Dennis McConnell, president of McConnell Homes, prepared a letter to Feria stating that the sales contract was cancelled because the flood plain would preclude building on the property under existing zoning setbacks, and because the grade of the property would prohibit access to Reeder Circle. Dennis McConnell presented the cancellation notice to Feria in person on August 7, 1998, after informing him of the cancellation verbally, but Feria refused to accept the letter. McConnell Homes’ attorney sent Feria an additional notice of cancellation on August 11, 1998. The second notice was transmitted to Feria by Federal Express, U. S. mail, and same-day courier service. On August 12, McConnell Homes’ attorneys sent a third cancellation notice by courier and certified mail, stating that “[McConnell Homes] is voiding [the] contract based on the grounds that governmental restrictions will not allow the use of the rear portion of the property described in such contract for the construction of a single family home. . . .” Notwithstanding the notices of cancellation, Feria did not return the $16,000 deposit.

In its motion for summary judgment, McConnell Homes provided the affidavit of an architect who had inspected the property and who gave this opinion:

When the required zoning setbacks are overlaid on the plat showing the unbuildable flood plains and buffers, there was no allowable building area. There is no area on this site to put a residential building without significant grade changes. These grade changes typically are not permitted on flood plain sites.

Feria, who has failed to file an appellee brief or a response to McConnell Homes’ motion for summary judgment, filed a verified answer pro se, in which he stated that he was not notified of the cancellation of the sales contract within the required 45-day period. The sales contract was cancelled more than 45 days from its date, but the 45-day period applied only to a cancellation for lack of access to Reeder Circle. Feria also received notice of cancellation on the grounds that government restrictions would not allow the construction of a single-family home on the property, and this notice was given within the 60-day period allowed for the notice of cancellation of the sales contract “for other reasons.”

Because McConnell Homes has shown by uncontroverted evidence that the sales contract was cancelled by timely notice and in accordance with its terms, Feria was in breach of the contract by refusing to return the $16,000 deposit. The trial court erred in denying McConnell Homes’ motion for summary judgment. This case is remanded and the trial court is instructed to enter judgment against Feria and in favor of McConnell Homes for $16,000 in its breach of contract claim, with interest thereon to accrue at the legal rate from August 13, 1998. The claims for expenses of litigation and attorney fees remain outstanding.

Decided January 24, 2001

Reconsideration denied March 6,2001

Morriss & Witcher, Jeffrey Golomb, for appellant.

Albert Feria, pro se.

Judgment reversed.

Johnson, P. J., and Phipps, J., concur.


author: Miller, Judge.

text:
    A00A1991.
    THE STATE v. PENNYMAN.
    (545 SE2d 365)
   Miller, Judge.

The State appeals the trial court’s grant of Michael Pennyman’s motion to suppress evidence resulting from a traffic stop. Because there was reasonable suspicion to authorize the stop, we reverse.

In reviewing the trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact unless they are clearly erroneous, and we construe the evidence most favorably to the trial court’s decision.

At the hearing on the motion to suppress, the officer who was driving the patrol car was unavailable to testify Officer Nowell, the passenger of the patrol car, testified that the driving officer indicated that there was a vehicle ahead of them that was speeding. He further testified that he knew that Pennyman’s vehicle was traveling approximately 70 or 80 mph from “looking at [the] speedometer as [they] were traveling and the vehicle was pulling away from [them]. [They] were having to accelerate to catch up.” But on cross-examination Nowell stated that he could not tell what the speed of the patrol car was because he did not have a clear view of the speedometer, yet he knew Pennyman’s vehicle was speeding because he knew “what it feels like to drive the speed limit and looking at other traffic.”

In granting the motion to suppress, the trial court ruled that it could not find reasonable articulable suspicion because Nowell’s testimony was hearsay. Citing State v. Fischer, the court also stated that the “collective knowledge” rule did not apply because Nowell was not the driver of the police car nor was he the officer that approached Pennyman following the traffic stop.

Decided February 5, 2001

Reconsideration denied March 6,2001

Joseph J. Drolet, Solicitor, Marko L. Burgar, Assistant Solicitor, for appellant.

Kevin J. Jones, for appellee.

The “collective knowledge” rule provides that reasonable suspicion may exist based on the collective knowledge of the police when there is reliable communication between the officer supplying the information and the officer acting on that information instead of the arresting officer’s knowledge alone. In Burgeson v. State information provided by other officers as communicated in a “be-on-the-lookout” dispatch provided the basis for reasonable and articulable suspicion to justify a stop. The same concept applies in the present case. Even accepting the trial court’s finding that Nowell was unable to testify as to the speed of the police car or the speed of Pennyman’s vehicle, Nowell and the driving officer acted in concert in stopping Penn junan. There was reliable communication between the officer driving, who explained that Pennjunan was speeding, and Nowell, as both officers acted jointly to conduct the stop. Thus, reasonable suspicion was established, and the court erred in granting the motion to suppress.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Reasonable suspicion is often established by hearsay. See Hennings v. State, 236 Ga. App. 473, 474 (1) (512 SE2d 357) (1999) (an officer may make a stop based upon radio information received from another officer who observed either facts raising a reasonable suspicion of criminal activity or a traffic violation); Gay v. State, 233 Ga. App. 738, 739-740 (2) (505 SE2d 29) (1998) (stop based upon supervisor’s report of a suspected weapon).

       230 Ga. App. 613, 615 (497 SE2d 79) (1998), overruled, Workman v. State, 235 Ga. App. 800, 804 (2) (510 SE2d 109) (1998) (whole court).

        Tarwid v. State, 184 Ga. App. 853, 855 (1) (363 SE2d 63) (1987); see Cunningham v. State, 231 Ga. App. 420, 422 (1) (498 SE2d 590) (1998).

       267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996).

       Nowell testified that he approached the passenger side of Pennyman’s vehicle after the stop.


author: Johnson, Presiding Judge.

text:
    A00A2267.
    KENT v. DAVID G. BROWN, P.E., INC.
    (545 SE2d 598)
   Johnson, Presiding Judge.

In this case we are asked to decide whether OCGA § 13-6-11 authorizes a trial court to award attorney fees and expenses of litigation incurred as a result of defending an appeal after a jury verdict has been rendered. We find that it does not. Accordingly, we vacate the jury verdict awarding post-trial attorney fees and expenses of litigation.

David G. Brown, P.E., Inc. sued L. B. Kent on an account. A jury awarded damages to Brown, and Kent appealed. The record shows that the jury’s award included $400 in litigation expenses and $15,150 in attorney fees based on Kent’s stubborn litigiousness. This Court affirmed the jury’s award and returned the remittitur on November 22, 1999.

Before the remittitur was returned, Brown filed a motion in this Court asking us to direct the trial court to conduct further hearings to determine whether he was entitled to post-trial attorney fees incurred for services performed by his attorney in defending the appeal. We dismissed the motion because Kent’s application for certiorari to the Supreme Court of Georgia was pending and we, therefore, lacked jurisdiction to entertain the motion. We further stated in our order that we would deny the motion if we had jurisdiction to consider it. Brown never asked us to reconsider our decision and never filed a new motion in this Court once the application for certiorari was denied and we regained jurisdiction. In addition, Brown never asked us to recall the remittitur after it was sent to the trial court.

Subsequently, Brown filed a motion in the trial court for post-trial attorney fees, alleging he was entitled to attorney fees arising out of Kent’s continued bad faith and stubborn litigiousness in forcing Brown to defend the jury verdict returned in his favor. Kent filed a motion to dismiss on the grounds that (1) the trial court had no jurisdiction because no case was pending and (2) attorney fees under OCGA § 13-6-11 were not available to Brown. The trial court ruled that Brown was entitled to recover the reasonable expenses of litigation incurred as a result of Kent’s appeal. The issue was then tried before a jury, and a verdict was rendered for attorney fees in defending the appeal. Kent appeals from the judgment entered on the jury’s verdict.

1. Kent contends that the trial court lacked jurisdiction to entertain Brown’s motion for post-trial attorney fees. We agree.

OCGA § 13-6-11 reads as follows:
The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

The phrase “the jury may allow them” refers to the jury trying the original action, not a separate jury impaneled solely to determine whether an appellant acted in bad faith, was stubbornly litigious, or caused an appellee unnecessary trouble and expense. Moreover, the record in the present action shows that Brown requested and received OCGA § 13-6-11 attorney fees and expenses of litigation due to Kent’s stubborn litigiousness in defending the lawsuit.

While we have not found any cases addressing the issue of whether OCGA § 13-6-11 permits an award of attorney fees and expenses of litigation for proceedings before the appellate courts of this state, there are a number of cases addressing the issue in the context of OCGA § 9-15-14 (which allows a party to recover litigation costs and attorney fees for frivolous actions and defenses). In all of these cases, we have held that OCGA § 9-15-14 does not authorize a trial court to award attorney fees and expenses of litigation for proceedings before the appellate courts of this state.

There are two reasons for this rule. First, there is another statute, OCGA § 5-6-6, which provides for the imposition of damages and penalties for conduct before an appellate court. Likewise, Court of Appeals Rule 15 (b) allows this Court to assess penalties for frivolous appeals or to remand the case to the trial court and direct the trial court to hold a hearing to determine the amount of attorney fees to be awarded. Thus, the appellate courts have the ability to deal with stubborn litigiousness and frivolous appeals filed in their courts, and the appellee has an adequate remedy available to him if he believes the appeal is frivolous. Secondly, if trial courts are allowed to assess sanctions against parties for frivolous appeals, an anomalous result might occur in a case in which conduct of a party on appeal would not be sanctioned by the appellate court but would be sanctioned by the trial court upon remand. This same rationale applies to OCGA § 13-6-11.

For all of these reasons, we hold that OCGA § 13-6-11 does not authorize the imposition of attorney fees and expenses of litigation for proceedings before an appellate court of this state. Brown has shown us no authority that would authorize a trial court, once the case has been affirmed and the remittitur sent, to do what the trial court did here in the absence of any direction by this Court. Accordingly, the jury's verdict awarding attorney fees and expenses of litigation against Kent for his appeal to this Court must be set aside. If Brown believed Kent’s appeal was frivolous, he should have used either OCGA § 5-6-6 or Court of Appeals Rule 15 (b) to request penalties.

Decided February 9, 2001

Reconsideration denied March 6, 2001

L. B. Kent, pro se.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, for appellee.

2. Based on our holding in Division 1, we need not address Kent’s remaining enumeration of error regarding the trial court’s charge to the jury.

Judgment reversed.

Smith, P. J, and Phipps, J., concur.

       See Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999), overruled in part, Styles v. State, 245 Ga. App. 90 (537 SE2d 377) (2000).

       See Style Craft Homes v. Chapman, 226 Ga. App. 634, 635 (487 SE2d 32) (1997) (appellate court is not a “court of record” and cannot award attorney fees or expenses of litigation under OCGA § 9-15-14); Bankhead v. Moss, 210 Ga. App. 508, 510 (2) (436 SE2d 723) (1993); Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 728 (5) (409 SE2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (1) (444 SE2d 734) (1994).

       See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d 482) (1994); Franco’s Pizza, supra.

        American Assn. of Cab Cos. v. Olukoya, 233 Ga. App. 731, 738 (505 SE2d 761) (1998).

        Franco’s Pizza, supra.


author: Phipps, Judge.

text:
    A00A1884.
    NORTH GEORGIA MOUNTAIN CRISIS NETWORK, INC. v. CITY OF BLUE RIDGE.
    (546 SE2d 850)
   Phipps, Judge.

North Georgia Mountain Crisis Network appeals a superior court order enjoining it from operating a domestic violence shelter on a certain piece of property (hereinafter referred to as “the Hopkins house”) in Blue Ridge. The Crisis Network contends that the trial court erred in applying a zoning amendment which the City enacted after the Crisis Network purchased the Hopkins house. The Crisis Network argues that it had a pre-existing right to use the Hopkins house as a domestic violence shelter and that the City’s purpose in passing the amendment was discriminatory. We affirm the judgment of the trial court because we find that it was correct in applying the amended ordinance and that discrimination has not been shown.

Apparently, while the Crisis Network’s purchase of the Hopkins house was pending, its attorney told the mayor of Blue Ridge that it was planning to purchase the property and use it as a domestic violence shelter. At the time, the property was zoned R-l for low-density residential development, which permitted “[p]ublic governmental facilities or institutions.” The ordinance defined “institution” as “[a] public or semi-public building occupied by a governmental entity, non-profit corporation or non-profit establishment for public use.” The mayor told the Crisis Network’s attorney that he did not believe the zoning ordinance would permit the intended use of the Hopkins house.

On or about August 12, 1997, residents in the Hopkins house area sent a letter to the mayor expressing concern about the Crisis Network’s plan to use the house as a shelter. After consulting with a zoning specialist, on August 15 the mayor wrote to the executive director of the Crisis Network that the City had researched the matter and believed that “the R-l zoning district does not allow for the existing [sic] of a Family Crisis Center.” On August 18, the mayor sent a letter to the closing attorney for the Crisis Network, again stating the City’s position that a crisis center could not be located in an R-l zone.

On August 20, the Crisis Network closed its purchase of the Hopkins house. On September 11, the Crisis Network sent a letter to the mayor stating that it had purchased the Hopkins house, that it disagreed with the City’s interpretation of the zoning ordinance, and that it intended to operate a domestic violence shelter at the site.

On April 1, 1998, the City filed an action in superior court seeking a declaratory judgment and injunctive relief. On July 30, the Mayor and City Council of Blue Ridge applied to the Blue Ridge Municipal Planning Commission to strike the words “or institutions” from the permitted uses for R-l zoning. The planning commission adopted the amendment after a public hearing held on September 29.

On November 22, 1999, the City’s lawsuit was heard by the trial court. On December 22, the court issued its order in favor of the City, ruling that the Crisis Network had not acquired a vested right to operate a domestic violence shelter at the Hopkins house and that the current zoning ordinance did not allow for such a use in an R-l zone.

1. In support of its argument that it had a pre-existing right to use the Hopkins house as a domestic violence shelter, the Crisis Network cites the grandfather clause in the Blue Ridge zoning ordinance. That clause provides, “A nonconforming use may be continued, but no nonconforming use which has been discontinued for a continuous period of twelve months shall be reestablished.” The trial court’s order does not address this issue, but we will consider it because it is arguably embraced within the oral argument that the Crisis Network presented to the trial court.

First, the record contains virtually no evidence that the Crisis Network had ever used the Hopkins house as a domestic violence shelter. Its executive director conceded that at the time of the hearing the property was not being used as a shelter. The organization operated its shelter at a different location which was under lease through June 2000. The Crisis Network had purchased the Hopkins house with hopes of relocating its shelter there after its lease expired on the other property. The Crisis Network had not made any efforts to make the house useable as a shelter or to bring the house into compliance with state and federal funding requirements.

Moreover, as of the date of the hearing, only one client of the Crisis Network had ever stayed in the Hopkins house. That client had stayed there for approximately one week in late July or early August 1998. Although there was room for her in the existing shelter, the Crisis Network had assigned her to stay at the Hopkins house so that it could begin to establish a factual basis for asserting that the house was being used as a shelter. Aside from the stay of that one client, the Crisis Network had used the house only as an office for its sexual assault programs.

“[A] use which is merely contemplated for the future but unrealized as of the effective date of the regulation” does not constitute a nonconforming use. Even assuming the evidence established that the Crisis Network actually had used the Hopkins house as a shelter, such use had not occurred during the roughly 14 months between the enactment of the zoning amendment and the court hearing. Thus, by its terms, the grandfather clause no longer applied.

2. The issue then becomes whether the Crisis Network had acquired a vested right to use the property in conformity with the original zoning. The principle of equitable estoppel is applied to determine whether “the landowner, relying in good faith upon some act or omission of the government, has made a substantial change in position or incurred such extensive obligation and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired. [Cits.]” Georgia courts have held that:

where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit.

Decided March 6, 2001.

James L. Bass, for appellant.

Mitchell & Mitchell, Terry L. Miller, for appellee.

Here, the only change of position alleged by the Crisis Network is the purchase of the Hopkins house property. However, the purchase of land by itself does not confer a vested right to a particular use upon the purchaser. Moreover, there is no evidence that the Crisis Network purchased the property in reliance upon an assurance from a zoning official that the property could be used as a domestic violence shelter in the R-l zone. To the contrary, the property was purchased despite warnings that it could not be so used. According to its executive director, the Crisis Network purchased the property believing it was a good investment even if it could not be used as a shelter. Under these circumstances, we find that the Crisis Network did not acquire a vested right to use the property as zoned on the purchase date.

3. A local zoning ordinance must be free of discrimination both on its face and in its application. But a zoning amendment does not discriminate against a property owner merely because the amendment may have originated from complaints by neighbors of the property owner. The Crisis Network has not been singled out as it contends, because the amended ordinance is applicable to all property owners in R-l zones. “[T]he fact that some . . . officials may have been aware that the existing ordinance could be amended and that [the Crisis Network] could not meet the requirements of a stricter ordinance does not mean that [it] has been singled out. . . .”

Thus, we find no merit in the Crisis Network’s argument that the amendment was enacted for discriminatory purposes.

Judgment affirmed.

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

        Rainwater v. Coweta County Bd. of Zoning Appeals, 123 Ga. App. 467, 468 (181 SE2d 540) (1971).

       The amendment was adopted on October 13, 1998.

       See generally Recycle & Recover v. Ga. Bd. of Natural Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996). The record contains no determination regarding whether the original zoning allowed for use of the subject property as a domestic violence shelter.

        Cohn Communities v. Clayton County, 257 Ga. 357, 358 (1) (359 SE2d 887) (1987).

       Id.; Barker v. County of Forsyth, 248 Ga. 73, 76 (2) (281 SE2d 549) (1981); WMM Properties v. Cobb County, 255 Ga. 436, 439 (1) (d) (339 SE2d 252) (1986).

       See 4 Rathkopf, The Law of Zoning and Planning, § 50.04 (d), pp. 50-47, 50-48; Anderson’s American Law of Zoning (4th ed.), § 6.21, pp. 544-547.

       Compare City of Atlanta v. Westinghouse Elec. Corp., 241 Ga. 560 (246 SE2d 678) (1978).

       See, e.g., Shoemake v. Woodland Equities, 252 Ga. 389, 392 (1) (313 SE2d 689) (1984).

        Warren v. City of Marietta, 249 Ga. 205, 207 (3) (288 SE2d 562) (1982).

       Id.

         (Punctuation omitted.) Id.

       On appeal, the Crisis Network has not challenged the legality of the process through which the amendment was adopted.