text:
    A90A0872.
    COKER v. K-MART CORPORATION.
    (399 SE2d 249)
   McMurray, Presiding Judge.

Plaintiff Coker filed this action for malicious prosecution against defendant K-Mart Corporation. The case was tried before a jury which returned a verdict in favor of plaintiff in the amount of $202,000 general damages and $310,833 aggravated damages. Thereafter, based on its conclusion that the evidence demanded a finding that defendant had probable cause to conclude that plaintiff had committed the offense of shoplifting, the trial court granted defendant’s motion for judgment notwithstanding the verdict. Plaintiff appeals, seeking a judgment consistent with the verdict. Held:

On December 15,1984, plaintiff and her husband went to defendant’s retail store to pick up layaway merchandise. There was a delay at the layaway department so plaintiff looked around the store while her husband waited in line. First, plaintiff looked in the nearby record and tape department, found a tape she was interested in buying and carried it back over to her husband. After they decided not to purchase the tape, she returned it to the record and tape department, then walked over to the ladies department where she talked to her aunt and uncle for about ten minutes before walking over to the menswear department. After looking around the menswear department plaintiff walked back to layaway to see if her husband had gotten the layaway merchandise. After finding that her husband was still waiting, plaintiff walked over to the cosmetics department.

While browsing in the cosmetics department plaintiff saw a lipstick which appeared from the packaging to be a color she would like. Thé package had a color card but did not permit plaintiff to see the color of the lipstick itself. After removing a lipstick package from a wire display rack, plaintiff noticed that another package had been torn apart. Plaintiff removed the torn package from the display and put the first package back. Plaintiff then took the lipstick out of the torn package as she walked over to the cologne counter and laid the package down on the counter. After she rolled the lipstick up and looked at the color, plaintiff sprayed some cologne samples on herself and then walked, with the lipstick in her hand, towards the automotive department, past the toothpaste to some displays of Christmas decorations that she stopped to look at. From the Christmas decorations, plaintiff walked back through toys, by the jewelry counter, by the cash registers and service desk to the handbag department. Plaintiff was in the handbag department when she saw her husband out in the parking lot. At that time, plaintiff saw an open handbag on display nearby, threw the lipstick in the handbag, and proceeded to leave the store, leaving the handbag containing the lipstick behind.

As plaintiff walked out of the store, she was stopped at the door by defendant’s security officer and voluntarily accompanied him back into the store. In the store, an assistant manager had the lipstick package and asked plaintiff if she knew where the lipstick was. Plaintiff, who had been joined by her husband, answered affirmatively and proceeded to point out the handbag where she had thrown the lipstick. Defendant’s security officer recovered the lipstick from the handbag.

Plaintiff and her husband then accompanied defendant’s security officer and assistant manager to an office where they were joined by a female employee of defendant. At the office, plaintiff’s purse was searched and then her person was searched by the female employee. Neither of these searches disclosed any property belonging to defendant.

While in the office, plaintiff was subjected to repeated verbal abuse in the course of defendant’s employee’s attempt to persuade plaintiff to sign a statement confessing shoplifting. Plaintiff refused to sign and a police officer was summoned. The police officer issued plaintiff a “citation” charging her with shoplifting and took her into custody. As plaintiff was escorted by police from the store in handcuffs, defendant had all of its employees lined up on each side of the center aisle of the store so that they could watch her come down the aisle.

Upon the trial of the criminal shoplifting charge, plaintiff’s motion for directed verdict of acquittal was granted. Plaintiff then filed this action against defendant.

“ ‘The essential elements of a claim for malicious prosecution are “(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. (Cits.)” (Cit.)’ Wilson v. Bonner, 166 Ga. App. 9 (303 SE2d 134) (1983).” Munford, Inc. v. Anglin, 174 Ga. App. 290 (1), 291 (329 SE2d 526). “Malice may be inferred from a total lack of probable cause, OCGA § 51-7-44, so the focus need be only on whether there was any evidence that K Mart lacked probable cause to instigate and carry on a criminal prosecution against [plaintiff] for shoplifting. That ‘is the gravamen of this tort.’ Day Realty Assoc. v. McMillan, 247 Ga. 561, 562 (277 SE2d 663) (1981).” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257). See also in this regard, OCGA § 51-7-60.

“ ‘What facts and circumstances amount to probable cause is a pure question of law.’ South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 7 (182 SE 61) (1935); Hearn v. Batchelor, 47 Ga. App. 213, 214 (170 SE 203) (1933). (Emphasis supplied.) Thus, although ‘(l)ack of probable cause shall be a question for the jury, under the direction of the court,’ OCGA § 51-7-43, this is not without qualification. For if the material facts are essentially undisputed, whether or not probable cause existed is for determination by the court. Melton v. LaCalamito, 158 Ga. App. 820, 823 (282 SE2d 393) (1981); Arnold v. Eckerd Drugs, 183 Ga. App. 211, 212 (358 SE2d 632) (1987); Fisher [v. Kentucky Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877)].” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226, 227, supra. See also Wilson v. Wheeler’s, Inc., 190 Ga. App. 250, 252 (1) (378 SE2d 498). The case sub judice is one of those in which the material facts are undisputed. Defendant did not present any evidence at trial and relies upon the theory that plaintiff’s evidence shows that defendant did not lack probable cause to conclude that plaintiff was shoplifting.

The test of probable cause stated in OCGA § 51-7-60 is whether plaintiff “had so conducted [herself] or behaved in such manner as to cause a man of reasonable prudence to believe that [she], at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14.” See Wilson v. Wheeler’s, Inc., 190 Ga. App. 250, 252 (1), supra, and K Mart Corp. v. Griffin, 189 Ga. App. 225, 226-228, supra.

The offense of theft by shoplifting (OCGA § 16-8-14 (a)) is committed when a person “alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment;... (3) Transfers the goods or merchandise of any store or retail establishment from one container to another. . . .” The enumerated acts stated are two of five stated in OCGA § 16-8-14 (a), the stated acts being those upon which defendant relies for its conclusion that there was probable cause for the prosecution of plaintiff.

We must first point out that commission of any of the enumerated acts in OCGA § 16-8-14 (a) in the absence of the requisite intent is not a crime. Otherwise, any person would become a shoplifter under OCGA § 16-8-14 (a) (1) merely by lifting an item of displayed merchandise from the shelf. Therefore, a merchant observing a shopper commit one of the acts enumerated in OCGA § 16-8-14 (a) must also examine the situation for some indication of the shopper’s intent. Probable cause to believe the offense of theft by shoplifting has occurred can exist only when there are circumstances which would cause the hypothetical “reasonably prudent” man to believe that the shopper has the specified criminal intent.

In the case sub judice, it is uncontroverted that plaintiff committed two of the acts enumerated in OCGA § 16-8-14 (a). Plaintiff walked about the defendant’s store with the lipstick in her hand. The lipstick was clearly in plaintiff’s possession and may have been somewhat concealed in plaintiff’s hand. Plaintiff committed the act described in OCGA § 16-8-14 (a) (1). It is also uncontroverted that plaintiff removed the lipstick from a display package and later placed it in a handbag which was on display. Thus, plaintiff also committed the act described in OCGA § 16-8-14 (a) (3).

It follows that the critical issue in the case sub judice is whether plaintiff appeared to have the requisite criminal intent. We hold that she did not.

In examining the circumstances presented in the case sub judice, we must consider the appearances known to defendant at the time the criminal proceedings are set in motion. Wilson v. Wheeler’s, Inc., 190 Ga. App. 250, 252 (1), supra. Plaintiff attempted to leave the store without the lipstick. Surely, this did not suggest criminal intent. Furthermore, is not the sudden discard of unwanted merchandise prior to departing a store common behavior of honest shoppers? While we hardly approve of the plaintiff’s manner of discarding the lipstick, we cannot say that it more probably suggests a criminal intent rather than mere expediency. Plaintiff’s removal of the lipstick from the display package for examination did not suggest any criminal intent. Nor was theft suggested by plaintiff continuing to hold the lipstick in her hand as she shopped, the lipstick was never placed in plaintiff’s purse or pocket, and was discarded before she attempted to leave the store.

Plaintiff’s evidence proves the elements of her claim for malicious prosecution, including lack of probable cause for her prosecution. Compare K Mart Corp. v. Griffin, 189 Ga. App. 225, 226-228 supra. The trial court erred in granting defendant’s motion for judgment notwithstanding the verdict.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.

Decided November 8, 1990

Rehearing denied November 26, 1990

D. William Garrett, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, John C. Stiuarius, for appellee.


source: Caselaw Access Project

author: Pope, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    A90A1056, A90A1057.
    F. S. ASSOCIATES, LTD. v. McMICHAEL’S CONSTRUCTION COMPANY, INC.; and vice versa.
    (399 SE2d 479)
   Pope, Judge.

This case involves a contractor’s attempt to enforce a material-man’s lien against an owner/developer for improvements made on behalf of the owner’s tenant. The contractor, McMichael’s Construction Company, Inc. (“McMichael’s”), brought an action against the owner, F. S. Associates, Ltd. (“F.S.A.” or “landlord”), to enforce a material-man’s lien against property which was developed as a shopping center known as Hunting Creek Plaza. Both parties filed motions for summary judgment as to the enforceability of the lien. F.S.A. also requested partial summary judgment on its counterclaim for slander of title. F.S.A. appeals from the grant of summary judgment on the lien and denial of summary judgment on its counterclaim, and McMichael’s cross-appeals from the denial of its request for prejudgment interest on its lien claim.

Case No. A90A1056

1. The evidence shows Jerry Willard, a restaurateur, and F.S.A. entered into a lease under which Willard was to operate a restaurant in the second largest space in the shopping center. The lease was to commence 120 days after the landlord notified tenant that the premises were all ready for commencement of the tenant’s finish work or the date the tenant opened the premises for business, whichever occurred first. Therefore, contrary to the finding in the lower court’s order, the lease was not contingent upon the tenant’s making improvements to the premises. The landlord granted the tenant an allowance of $59,400 toward the costs of improvements to be made by the tenant to the otherwise unfinished space. However, any costs in excess of this amount were incurred at the tenant’s sole discretion. The tenant was required to submit plans for improvements to the landlord for its approval. However, the testimony showed the purpose of this requirement was to assure the tenant’s finishes were compatible with the overall image of the shopping center.

Construction costs on the contract between the tenant and his contractor amounted to over $200,000. The landlord paid the tenant the $59,400 construction allowance specified in the lease and the tenant passed that payment on to the contractor. However, the contractor was never paid a balance due of $129,109. This is the amount claimed in the plaintiff/contractor’s complaint against the owner.

OCGA § 44-14-361 permits contractors to have a special lien on real estate for which they furnish labor, service or material “if they are furnished at the instance of the owner ... or some person acting for the owner. . . .” Id. at (b). The central issue in this case is whether, or more accurately, to what extent, the tenant was the agent of the landlord in contracting for the construction work performed by plaintiff. Here, it can be said that the landlord approved the construction contract only to the extent of the $59,400 allowance for improvements it granted to the tenant. For purposes of enforcing the lien, the tenant became the agent of the landlord for up to $59,400 in contract costs. However, although the landlord consented to improvements made in excess of the allowance, it cannot be said that the landlord became a party to the contract for any improvements exceeding that amount. It is common for a landlord to permit or consent to improvements made by a tenant, but mere consent to improvements does not mean the landlord approves the contract between the tenant and the contractor in such a manner as to make the property subject to the contractor’s lien. See Nunley Contracting Co. v. Four Taylors, 192 Ga. App. 253 (384 SE2d 216) (1989). “Mere knowledge by the lessor of the improvements does not give rise to the lien.” Accurate Constr. Co. v. Dobbs Houses, 154 Ga. App. 605 (269 SE2d 494) (1980). Neither does the fact that the improvements became the landlord’s property upon termination of the tenant’s lease create a basis for imposing a lien against the landlord. The landlord’s equitable interest in improvements is not subject to a lien. MCC Powers v. Ford Motor Co., 184 Ga. App. 487, 488 (3) (361 SE2d 716) (1987). “ ‘Under Georgia law, a materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute (OCGA § 44-14-360 et seq.). (Cits.)’ PPG Indus. v. Hayes Constr. Co., 162 Ga. App. 151 (1) (290 SE2d 347) (1982).” Id. at 488.

In Bennett Iron Works v. Underground Atlanta, 130 Ga. App. 653 (204 SE2d 331) (1974), this court held the contractor’s lien was enforceable against the landlord because the amount sought under the lien was within the terms of the contract between the landlord and the tenant for rent concessions or payments to cover the costs of improvements at issue in the lien. The same facts existed in Columbus Square Shopping Center Co. v. B & H Steel Co., 150 Ga. App. 774 (258 SE2d 600) (1979), relied upon in the dissenting opinion below. In the case now before us, the amount sought under the lien is more than double the amount of the allowance agreed upon and actually paid by the landlord for tenant finishes. Thus, it cannot be said that these additional improvements were, in the language of the materialman’s lien statute, “furnished at the instance of the owner . . . or some person acting for the owner. . . .”

It is common practice in the real estate business for a landlord to give a tenant an allowance to finish or redesign leased space. What the tenant chooses to spend in addition to the allowance is beyond the discretion or legal responsibility of the landlord. An owner may be liable to a contractor of the owner’s lessee only in the amount that the owner contracted with the lessee to be liable. See Consolidated Lumber Co. of Ga. v. Ocean Steamship Co., 142 Ga. 186 (1) (82 SE 532) (1914). Cf. Stevens v. Ga. Land Co., 122 Ga. 317 (50 SE 100) (1905) (which held that a supplier to a contractor may not enforce a lien against the owner of property for materials supplied to the contractor in an amount exceeding the contract price agreed upon between the owner and the contractor). To hold otherwise would subject the owner to unlimited liability for its tenant’s debts. In concluding otherwise, the lower court relied solely on cases from other jurisdictions which, unlike Georgia, have construed their respective material-man’s lien laws liberally to protect the interest of the materialman. See Dybvig v. Willis, 59 Ida. 160 (82 P2d 95) (1938); Lennox Indus. v. City of Davenport, 320 NW2d 575 (Iowa 1982); Newport v. Hedges, 358 SW2d 441 (Mo. App. 1962); John P. Kane Co. v. Kinney, 174 NY 69 (66 NE 619) (1903). By contrast, the Supreme Court of Georgia has held that Georgia’s materialman’s lien law, being in derogation of common law, “should be dealt with according to the strictest rules of strict construction.” Green v. Farrar Lumber Co., 119 Ga. 30, 33 (46 SE 62) (1903).

The undisputed evidence in this case shows the landlord promptly paid the tenant the $59,400 construction allowance agreed upon between them and the tenant passed that payment on to the contractor. Thus, the landlord is relieved by accord and satisfaction of its contractual obligation to the plaintiff contractor and the trial court erred in granting summary judgment to plaintiff on the lien and denying defendant’s motion for summary judgment in regard to the lien.

2. Even though the owner is entitled to summary judgment on the claim of lien, the trial court did not err in granting summary judgment to the contractor on the owner’s counterclaim for slander of title. Clearly the filing of a notice of lien is an encumbrance upon title. However, to prevail on a claim for slander of title the act or words in question must be false and malicious. OCGA § 51-9-11. The notice of lien filed in this case contained no false statements. The notice correctly recited that the lien was claimed for furnishing materials to the owner’s tenant for the improvements of real estate belonging to the owner. Henceforth, the filing of a notice of lien against property for materials furnished to the owner’s tenant, in an amount exceeding that which the owner agreed to be liable, may be actionable. However, whether a materialman’s lien could be enforced against an owner under these circumstances is an issue never before directly addressed by the appellate courts of this State. In order to preserve the contractor’s alleged right to collect on a lien against the property, the contractor was required to file the notice of lien in a timely fashion. See OCGA § 44-14-361.1 (a) (2). Thus, even though we hereby rule that the contractor was not entitled to enforce the lien under these circumstances, at the time it filed the notice of lien, the contractor was entitled to the privilege against liability for slander, provided by OCGA § 51-5-7 (3), for statements made in good faith to protect the speaker’s interest.

Case No. A90A1057

Because we ruled in the preceding case that the owner was entitled to summary judgment on the contractor’s claim of lien, it follows that the trial court did not err in denying the contractor’s claim for prejudgment interest on the claim of lien.

Judgment reversed in part and affirmed in part in Case No.

A90A1056. Judgment affirmed in Case No. A90A1057.

Carley, C. J., Banke, P. J., Birdsong, Sognier, Beasley and Cooper, JJ., concur. Deen, P. J., and McMurray, P. J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. A few weeks after Willard had agreed to construct and lease the restaurant, he obtained financing, and F.S.A. notified him that his 120-day construction period had begun. Prior to this time, Willard had begun negotiation with McMichael’s to construct the restaurant. Willard’s architect prepared plans and forwarded them to McMichael’s. They were reviewed, and construction costs were estimated at $230,000. Shortly thereafter, Willard met with F.S.A. to review the restaurant plans, and it approved them. The agreement between F.S.A. and Willard provided that a construction allowance be paid to Willard, and that the restaurant and all its fixtures and improvements belonged to F.S.A. Shortly before construction was completed, an F.S.A. representative inspected the premises and found the improvements to be a “tremendous asset to the landlord.” After Willard filed Chapter 7 bankruptcy, F.S.A. took possession of the premises and leased them to another tenant at a higher rental rate.

Case No. A90A1056

1. OCGA § 44-14-361 (a) (2) permits contractors to have a special lien on real estate for which they furnish labor, services, or materials if (b) “they are furnished at the instance of the owner, contractor, or some person acting for the owner or contractor.” Materialman’s liens “are creatures of statute and must be strictly construed as they relate to classes of persons who may claim a lien and the improvements and kind of property on which it may be obtained. Other than these, the weight of authority holds that the courts should give the statutes a fair and equitable construction. [Cit.]” Atlanta Jewish Comm. Center v. Tom Barrow Co., 130 Ga. App. 608, 609 (203 SE2d 921) (1974). In determining whether McMichael’s was within the class of persons who may claim a lien, we note that OCGA § 44-14-361 clearly envisions that an agent of the owner of the property can authorize the use of labor, services, or materials, which could subject the owner’s property to a lien if the contractor is not paid. The sole question is therefore whether Willard was the agent of F.S.A. in contracting for the construction of a restaurant, which F.S.A. required to be built to its specifications within 120 days of signing the rental agréement.

In Columbus Square Shopping Center Co. v. B & H Steel Co., 150 Ga. App. 774, 777 (258 SE2d 600) (1979), the leases, which were to take effect 60 days after delivery of the premises to the tenant, provided for a construction allowance to the tenant by reducing the rent by a fixed amount for 12 months. The tenant, in turn, contracted with B & H Steel for goods, materials, and labor, which were used to improve the property owned by the shopping center. After the tenant failed to pay the contractor, it filed a lien against the property owned by the shopping center company. This court, in affirming the jury verdict, noted that a tenant cannot order work done on the landlord’s property and charge the owner for the work unless there is a relationship between himself and the landlord other than lessor and lessee whereby the landlord expressly or impliedly consents to the contract under which the improvements are made. “There need be no contract between the materialman and the true owner, but there must be a contract between the true owner and some person for erection of the improvements.” Id. at 777. As in the Columbus Square case, the record shows that there was a contract between the tenant and the landlord signed prior to the effective date of the lease, which required the tenant to make improvements to the landlord’s property, and a stated allowance was to be given to the tenant for construction purposes. At the end of the lease, all the improvements and fixtures on the property were to become the property of the landlord. There was also a contract between the tenant and the contractor, which was approved by the landlord as to cost and design. After the restaurant was constructed, the landlord’s representative who inspected the premises felt that it would provide the landlord with a substantial benefit. Accordingly, I believe that the trial court did not err in finding that the tenant acted as the landlord’s agent in contracting for the improvements, and the lien was valid.

2. I would also agree with the trial court that there was no issue of fact as to the amount of the lien. The balance owed to McMichael’s under the construction contract ($129,109), and not the partial construction allowance ($59,400) under the lease, determines the amount of the lien. Under OCGA § 44-6-2, Willard’s interest merged with F.S.A.’s fee interest when Willard abandoned the leasehold, and the amount sought by McMichael’s was less than the contract amount. See Bennett Iron Works v. Underground Atlanta, 130 Ga. App. 653 (204 SE2d 331) (1974).

Case No. A90A1057

McMichael’s cross-appeals and argues that the trial court erred as a matter of law in omitting prejudgment interest on its liquidated lien claim. It claims that while the lien law does not specifically allow prejudgment interest, this law is to be liberally construed in favor of contractors, and that such interest was tacitly approved in Columbus Square Shopping Center Co., supra.

I further believe that the trial court erred in omitting prejudgment interest on McMichael’s lien, although Georgia’s lien law does not specifically allow prejudgment interest. In reviewing Columbus Square Shopping Center Co., supra, the issue of prejudgment interest was not addressed by the court. In the instant case the amount of damages was liquidated as there was no issue of fact as to the amount of the lien. A liquidated debt is for an amount certain and fixed. International Indem. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239) (1986). OCGA § 7-4-15 permits the recovery of prejudgment interest on “[a]ll liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, [and this amount] bear[s] interest from the time the party shall become liable and bound to pay them.” Accordingly, F.S.A. was bound to pay the contractor at the time the lien attached. The trial court therefore erred in not awarding prejudgment interest to McMichael’s.

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

Decided September 10, 1990

Rehearing denied November 26, 1990

Chamberlain, Hrdlicka, White, Johnson & Williams, George L. Murphy, Jr., for appellant.

Kilpatrick & Cody, H. Quigg Fletcher III, for appellee.


author: Sognier, Judge. McMurray, Presiding Judge,

text:
    A90A1217.
    NUNNELLEY et al. v. BROWN et al.
    (399 SE2d 219)
   Sognier, Judge.

Arne and Doyle Nunnelley brought suit against Heart Strings, Inc., and Barbara Brown and Beth Slocum, both individually and as co-partners in Heart Strings, seeking damages for injuries incurred by Arne Nunnelley when she slipped and fell at The Victorian Tea Room, a restaurant owned and operated by the defendants. The trial court granted the defendants’ motion for summary judgment, and the Nunnelleys appeal.

In her deposition appellant Arne Nunnelley stated that she and a friend went to The Victorian Tea Room to have lunch. She walked down the sidewalk, which was unpainted concrete, up a step and across several feet of “porch” to the front door of the restaurant. The step and porch were covered in black carpet, and a yellow strip of tape was on the step. Ms. Nunnelley testified that the tape could be seen when entering the restaurant, but that she did not notice it at that time. Ms. Nunnelley remembered entering the restaurant without incident, spending approximately 45 minutes at lunch, and departing in full possession of her mental faculties. After exiting the front door and stopping on the porch to look at items displayed in windows, she walked across the porch to the sidewalk. Ms. Nunnelley stated that she “did not remember” and “didn’t realize” there was a step down to the sidewalk, testifying that “I don’t remember what I was looking at. I suppose I was looking at where I was walking.” Ms. Nunnelley fell and broke her wrist and a toe. The weather at the time of her fall was sunny, and all surfaces were dry.

“Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go. In order for a plaintiff to recover, two elements must be proven: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of this knowledge, assumes the risks and dangers incident to the known condition.” (Citations and punctuation omitted.) Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988). The record here reveals that appellant Arne Nunnelley knew about the presence of the step, having traversed it less than an hour earlier, that she had consumed no alcohol or taken any medication to impair her mental faculties, and that by her own testimony she was not distracted by the window displays from exercising due caution for her own safety.

Appellants argue, however, that because of Ms. Nunnelley’s testimony that from the slope of the porch, neither the step nor the yellow warning strip on the step was visible upon exiting the restaurant, but rather it appeared that the black carpet sloped directly into the sidewalk, a material issue of genuine fact has been raised whether an optical illusion was created so as to negate Ms. Nunnelley’s knowledge of the existence of the step. In support of this argument they cite Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (349 SE2d 241) (1986). In that case the plaintiff, distracted by the need to watch for passing vehicular traffic, fell over a slightly elevated unpainted concrete bumper which, in the rain, tended to merge visually with the surrounding pavement. In contrast, the step in the case at bar was marked by yellow tape visible to all who entered the restaurant, the weather was clear and sunny, and there was nothing to distract Ms. Nunnelley from seeing either the step or the drop from the end of the porch to the sidewalk. We thus find Shackelford, supra, distinguishable. The evidence establishing that appellant Arne Nunnelley’s knowledge of the defective or dangerous condition equalled or exceeded the proprietors’ knowledge, appellees have carried their burden of negating at least one of the essential elements of appellants’ case. Motes, supra at 69. Accordingly, the trial court property granted summary judgment in favor of appellees.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Pope and Beasley, JJ, concur. Carley, C. J., McMurray, P. J., and Cooper, J., dissent.

McMurray, Presiding Judge,

dissenting.

In my view, the decision in the case sub judice is controlled by Whitley v. Hulon, 194 Ga. App. 363 (390 SE2d 598), therefore, I respectfully dissent. As in Whitley, the case sub judice involves allegations of a defective premises which prevented plaintiff Arne Nunnelley from accurately discerning what lay in her path. In Whitley, poor lighting caused the slope of a ramp to blend together with a parking lot. In the case sub judice, an optical illusion created by the slope of a porch caused it to appear to slope directly into the sidewalk, thus concealing the presence of a step. While plaintiff had recently traversed the path into the establishment where a colored tape provided notice of the step, the path out did not afford similar warnings. Whether plaintiff exercised a reasonable lookout and whether a warning sign should have been posted are questions of fact which should be resolved by a jury. See also Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90).

Decided October 15, 1990

Rehearing denied November 26, 1990

Thomas J. Crownover, for appellants.

Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, for appellees.

I am authorized to state that Chief Judge Carley joins in this dissent.


author: Cooper, Judge.

text:
    A90A1250.
    BRANTLEY v. EDWARDS et al.
    (399 SE2d 215)
   Cooper, Judge.

Appellee Edwards, while operating an automobile owned by the county and while acting within the course of his employment with the county, was involved in an automobile accident with appellant. Appellant brought an action for personal injuries against Edwards, the county and the county’s commissioners, seeking actual and punitive damages. The trial court granted summary judgment to the county and the commissioners based on sovereign immunity, and this appeal followed.

1. “Sovereign immunity extends to the State and all of its political subdivisions, including its counties, departments, and agencies, unless such immunity is expressly waived by constitutional provision or legislative enactment. [Cits.]” Ostuni Bros. v. Fulton County Dept. of Public Works, 184 Ga. App. 406 (1) (361 SE2d 668) (1987). Appellant contends that appellees waived their sovereign immunity by the purchase of liability insurance which covered the accident involving appellee Edwards. See Toombs County v. O’Neal, 254 Ga. 390 (1) (330 SE2d 95) (1985). However, appellees submitted the uncontroverted affidavit of the county’s executive assistant, which stated unequivocally that at the time of the accident, the county was not covered by any policy which provided coverage for the accident. Appellant having submitted no evidence that the governing authorities of the county elected to provide any type of insurance for its vehicles or that the governing authorities applied for a certificate of self-insurance pursuant to OCGA § 40-9-101, the trial court did not err in granting summary judgment to the county and its commissioners. See Shuman v. Dyess, 175 Ga. App. 213 (1) (333 SE2d 379) (1985).

2. Appellant also contends that the county and the commissioners are liable for failing to provide insurance for county motor vehicles pursuant to OCGA § 33-34-10, which provides that “[n]o motor vehicle shall be licensed by this state until the owner or insured has furnished proof . . . that there is in effect the minimum insurance coverage required by this chapter or that there is in effect an approved self-insurance plan. . . .” However, OCGA § 33-24-51 provides: “A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state. . . .” (Emphasis supplied.) As to the county, we have determined in Division 1, supra, that there was no waiver of the county’s sovereign immunity. “The test for determining liability of a public official or agent acting in his public capacity is not that applied to counties but is rather whether or not the complained of act was discretionary (quasi-judicial) or ministerial in nature.” Shuman v. Dyess, supra at 215. “Damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. [Cit.] Where a public official is ‘exercising a discretionary power, the courts are not warranted in interfering unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen.’ [Cit.]” Nelson v. Spalding County, 249 Ga. 334 (2a) (290 SE2d 915) (1982). The decision whether to provide insurance being made discretionary by statute, we find no error in the grant of summary judgment to the commissioners and the county.

3. Appellant raises in her supplemental brief an error regarding a change of venue which was not previously listed in the enumeration of errors filed with the court. “ ‘A brief cannot supply an enumeration of error. “Enumerations of error cannot be enlarged by means of statements in brief of counsel to include issues not made in the former.” (Cits.)’ [Cit.]” Holland v. Kicklighter, 189 Ga. App. 138 (3) (375 SE2d 129) (1988). Therefore, we will not address the matter raised in appellant’s supplemental brief.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Decided October 10, 1990

Rehearing denied November 26, 1990

George P. Graves, E. Graydon Shuford, for appellant.

Maddox, Starnes & Nix, John A. Nix, Donald C. Suessmith, Jr., for appellees.


author: Birdsong, Judge.

text:
    A90A1348, A90A1416.
    FOSKEY et al. v. WILLIAMS BROTHERS TRUCKING COMPANY, INC. et al.; and vice versa.
    (399 SE2d 484)
   Birdsong, Judge.

John and Velma Foskey appeal the jury verdict of one dollar to the defendants on defendants’ counterclaim in this personal injury collision case, and the verdict against them as plaintiffs. Defendants Williams Brothers Trucking Company, Inc. et al. assert a cross-appeal to be considered in the event a new trial is awarded to the Foskeys.

The collision occurred as John Foskey was driving a 30-year-old farm tractor up an incline to Samples Body Shop on Highway 56 in Toombs County. As Mr. Foskey attempted to enter the shop driveway, he gave a left-turn hand signal as he immediately began his turn. Williams Brothers’ truck, driving behind Foskey, had moved into the left opposite-travel lane to pass the tractor. The truck was traveling 35-40 mph (according to the driver) or 50 mph (according to the investigating officer). The speed limit was 55 mph. Mr. Foskey was traveling 5-10 mph; he knew the truck was approaching from behind but did not see the truck move to pass him until the collision occurred. The left front of his tractor hit the right front of Williams Brothers’ truck; the truck driver steered to the left in an attempt to avoid collision. Where the collision occurred, the highway was divided by a solid yellow line indicating a no-passing zone, but where the truck had moved out to pass, the centerline was broken, indicating passing allowed. The truck driver testified he never saw Mr. Foskey make a left-turn hand signal. Held:

1. In appeal A90A1348, appellants Foskey enumerate three errors concerning the testimony and evidence of defendant Williams Brothers’ expert witness. None of these assertions constitutes harmful error justifying or authorizing a reversal and new trial.

Appellants Foskey contend it was error to allow the expert to use and testify concerning a diagram exhibit which showed the lay of the highway, and upon which he had prior to trial depicted his reconstruction of the positions and movement of the two vehicles. The grounds for alleged error are that Williams Brothers had not produced this expert’s diagram and depictions in response to certain interrogatories.

The trial court considered appellants’ objection at length. The record shows Williams Brothers provided the expert’s name more than a year prior to trial, and stated his testimony would be based upon “the laws of physics and computations of speed and distance.” Appellants then deposed the Williams Brothers’ expert at length, yet made no inquiry of him as to his expected testimony concerning his computations of speed and distance or the foundation therefor.

As the trial court aptly reasoned, the diagram was identical to another exhibit introduced which simply showed the road layout; the expert properly could have used that other exhibit at trial and drawn or indicated upon it his expert opinion as to the relative positions and paths of the vehicles based on the evidence, so the exhibit as it contained his depictions was not error in itself. See Savannah Ice Delivery Co. v. Ayers, 127 Ga. App. 560, 561 (194 SE2d 330). The exhibit was not sent out with the jury, so the expert’s depictions were not unfairly emphasized. Moreover, appellants had the opportunity to fully cross-examine the witness as to the accuracy of the depictions. Id.

As to the claim of surprise, appellants had a full year’s notice and the opportunity of a thorough deposition to discover the expert’s calculations and conclusions. So, even if appellants could properly complain here of noncompliance with a particular interrogatory as to production of diagrams, no harm is shown by the expert’s testimony concerning this one at trial.

As to appellants’ complaint that it was wrong to let the expert testify as to relative “fault,” it is well settled that the expert could give his opinions as to calculations of speed and distance and when he does so, he is not testifying as to “fault”; moreover, in any case, the jury can accept or reject the expert’s testimony. See Whidby v. Columbine Carrier, 182 Ga. App. 638, 641-649 (356 SE2d 709) (overruled on other grounds in Pender v. Witcher, 194 Ga. App. 72, 73-74 (389 SE2d 560); but see Witcher v. Pender, 260 Ga. 248 (392 SE2d 6), reversing Pender v. Witcher and sustaining Whidby v. Columbine Carrier in the principle overruled). None of the expert’s testimony which appellants reference as impermissibly intrusive asserts that the plaintiff was unequivocally at fault. Testimony by an expert as to what one party or the other should have done or could have done in the factual or hypothetical circumstances is arguably within the realm of his expertise and is not per se inadmissible as being testimony upon the ultimate jury question of actual fault and liability. Wherever this expert made statements which the trial court did deem intrusive, the trial court sustained an objection or rebuked the witness sua sponte, and appellants did not ask for more. Perry v. Intl. Indem. Co., 169 Ga. App. 818 (315 SE2d 13). Admissibility of evidence rests in the trial court’s sound discretion, and wherever the evidence is of doubtful relevance or competence, it should be admitted and its weight left to the jury. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (377 SE2d 15).

2. The trial court in limine instructed counsel not to advise the jury that plaintiffs Foskey had retained an expert who did not testify! In closing argument, defendants’ counsel stated, “did they have an expert come down here and tell. . . their side?” This did not amount to impermissible argument that plaintiffs had an expert whom they did not call to testify; it merely states what was already clear to the jury, i.e., that no expert testified for the plaintiffs. In any case, the trial court sustained appellants’ objection to the argument, and appellants requested no further action or instruction so as to put the trial court on notice that it had not done enough and should do more. Averette v. Oliver, 128 Ga. App. 54 (195 SE2d 925). Appellants therefore have no grounds to complain on appeal.

3. The evidence clearly authorized jury charges on avoidance of consequences, assumption of risk, and sudden emergency. Where there is evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. East Side Auto Parts v. Wilson, 146 Ga. App. 753 (247 SE2d 571).

4. The trial court did not err in charging the jury as to “roadway obstruction” pursuant to OCGA § 40-6-40. In Smith v. Lott, 246 Ga. 366 (271 SE2d 463), the Supreme Court plainly recognized that a slow-moving farm vehicle could constitute a roadway obstruction, and whether it does so is a jury question. The trial court’s instruction was that a vehicle driver can drive to the left of the centerline to avoid an obstruction, providing any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard. Appellants argue that this charge authorizes a driver to pass a slow-moving vehicle in a no-passing zone. We disagree. Apparently the jury found the farm tractor to be so slow-moving as to amount to an obstruction, or to create a sudden emergency allowing defendants to act in avoidance of circumstances. In such instances, appellants’ driver would have been authorized to move to avoid the obstruction, yielding the right-of-way to any person traveling in the proper direction. This includes passing in a no-passing zone, if the passing is made to avoid an obstruction. It does not amount to authority to violate the law as to “passing zones.” The charge was authorized. East Side Auto Parts v. Wilson, supra.

5. Appellants Foskey contend it was harmful error to charge that where the evidence on each side is equally balanced, where the jury believes the witnesses on each side equally credible, where the jury believes the evidence is just as strong on one side as the other, then the plaintiff would not have carried the burden of proving his case by a preponderance, and the jury should find in favor of the defendant.

Decided September 11, 1990

Rehearing denied November 26, 1990

Stubbs & Associates, M. Francis Stubbs, Joseph D. McGovern, for appellants.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellees.

Appellants contend this charge authorizes a verdict on the defendants’ counterclaim notwithstanding the defendants’ failure to prove their counterclaim case to a preponderance, thus placing the burden upon plaintiffs to disprove defendants’ counterclaim. We do not find in this case that this charge justifies reversing the verdict and ordering a new trial. The plaintiffs did not make this precise objection below (see Warren v. Jenkins, 190 Ga. App. 442, 443 (379 SE2d 19)); and, in any case, the jury was otherwise properly charged as to the defendant’s burden of proof on its own counterclaim.

In view of the jury’s finding of a verdict in favor of defendant for one dollar, it is clear the jury considered the evidence and was not misled to award the defendants an undeserved amount upon defendants’ counterclaim. The verdict reflects the jury’s understanding that defendants could not be awarded the damages they claimed merely because plaintiffs had failed in some degree to bear the burden of proof to the preponderance.

6. There being no reversible error in the trial of the case with regards to the plaintiffs Foskey, they are not entitled to a new trial and the trial court did not err in denying one.

In their cross-appeal, Williams Brothers et al. have asserted errors to be considered in the event a new trial was granted to the plaintiffs; otherwise, they do not complain of the one dollar verdict in their favor. Accordingly, we are authorized to consider moot the questions raised in the cross-appeal.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A1495.
    GOODMAN v. VILSTON, INC.
    (399 SE2d 241)
   Sognier, Judge.

Vilston, Inc., the successor to the lessor’s interest in a commercial lease, brought suit in Gwinnett County against the lessees, William Barry Goodman and James A. Beesley, for damages resulting from an alleged breach of the lease agreement. Goodman appeals from the denial of his motion to set aside the default judgment entered against him.

The record reveals that appellant and Beesley leased the subject premises, a retail space in a shopping center in DeKalb County, for a video rental business. Beesley, a Gwinnett County resident, was served with process by a Gwinnett County deputy sheriff, and on January 9, 1989, appellant, a Tennessee resident, ultimately was personally served with process in Tennessee pursuant to the Long Arm Statute, OCGA § 9-10-91. After appellant failed to file responsive pleadings, appellee obtained a default judgment against him on May 26. Appellee settled its claim against Beesley and dismissed him with prejudice on October 31. In November, appellee instituted proceedings in Tennessee to domesticate its judgment against appellant. On January 5, 1990, appellant moved the Gwinnett County court to set aside the judgment for lack of personal jurisdiction.

1. Appellant contends the Gwinnett County court did not have jurisdiction over him because no provision of the Long Arm Statute was applicable. We do not agree, for we find that the trial court had jurisdiction pursuant to OCGA § 9-10-91 (4), which authorizes exercise of personal jurisdiction over a nonresident defendant who “[o]wns, uses, or possesses any real property situated within this state.” See Moore v. Moore, 255 Ga. 308 (336 SE2d 804) (1985). The leasing of real property in Georgia for operation of a retail establishment and execution of a lease agreement that contained a Georgia choice of law clause created the “substantial connection . . . between the controversy, [appellant], and property within this state” to satisfy the minimum contacts requirement as described in Regante v. Reliable-Triple Cee, 251 Ga. 629, 630 (1) (308 SE2d 372) (1983). Appellant, like the defendant in Hart v. DeLowe Partners, 147 Ga. App. 715, 716 (2) (250 SE2d 169) (1978), invoked the benefits and protection of this state’s real property law, and this privilege included “the concomitant obligation to defend a suit in Georgia concerning an alleged breach of the [lease] contract. [Cit.]” Id. at 716-717 (2) (B).

2. Appellant’s remaining enumeration raises the question whether venue against him was proper in Gwinnett State Court, and if not, whether he waived any objection thereto. The complaint alleged that appellant was “subject to the jurisdiction and venue” of the Gwinnett State Court because he “transacted] business in the State of Georgia.” When jurisdiction is obtained under the Long Arm Statute, venue is proper “in any county wherein the business was transacted, the act or omission occurred, or the real property is located.” OCGA § 9-10-93. Accordingly, given that the DeKalb County courts had jurisdiction over appellant pursuant to OCGA § 9-10-91 (4), long arm venue against appellant lay in DeKalb County, the county where the real property is located, and not in Gwinnett County where the action was filed. Dodd v. Simpson, 191 Ga. App. 369 (381 SE2d 585) (1989).

“One who, being properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court at a proper time or the defense is waived. ‘Allowing a case to go to default judgment is no better than allowing a case to be tried on the merits before coming in with a technical defense.' [Cit.]" Allen v. Alston, 141 Ga. App. 572, 573 (2) (234 SE2d 152) (1977). Appellant contends, however, that he did not waive his defense of lack of venue because venue originally was proper against him in Gwinnett County, the county of Beesley’s residence, because he and Beesley were joint obligors, but became improper only after Beesley was dismissed. We do not agree. The constitutional provision he cites provides that “[s]uits against joint obligors . . . residing in different counties may be tried in either county.” Ga. Const., Art. VI, Sec. II, Par. IV (1983). This constitutional mandate is codified at OCGA § 9-10-31, which provides that joint obligors “may be subject to an action as [joint obligors] in the same action in any county in which one or more of the defendants reside.” These provisions have been applied to obtain venue in actions against Georgia residents who live in different counties (Shell v. Watts, 229 Ga. 474 (192 SE2d 265) (1972)); in suits involving an individual Georgia resident and a Georgia corporation whose corporate residence was not in the forum county (Motor Convoy v. Brannen, 194 Ga. App. 795 (391 SE2d 671) (1990)); and in actions against Georgia residents and foreign corporations registered in Georgia and doing business in the state (Jones v. Chandler, 88 Ga. App. 103 (76 SE2d 237) (1953)).

Appellant has not cited, nor has our research disclosed, any case involving a Georgia resident and an individual residing outside the state in which the joint obligor provisions have been applied to obtain venue against the non-Georgian in the county where the Georgian resides rather than where venue would lie against the non-Georgian under OCGA § 9-10-93. However, the opposite approach — setting venue against the Georgian in the county where long arm venue lies against the non-Georgia defendant — has been rejected by our appellate courts. Holding that the joint obligor provisions apply only when the defendants are Georgia residents, the Supreme Court has ruled that in a suit against a Georgia resident and a foreign corporation not registered to do business in Georgia, venue against the Georgian cannot lie in the county in which venue is proper against the foreign defendant under the Long Arm Statute because that statute does not make the foreign corporation a “resident” for purposes of joint obligor venue. Bergen v. Martindale-Hubbell, 245 Ga. 742, 743 (2) (267 SE2d 10) (1980). Accord Weitzel v. Griffin & Assoc., 192 Ga. App. 89 (383 SE2d 653) (1989); see generally Gary, “Annual Survey of Georgia Law: Trial Practice and Procedure,” 32 Mercer L. Rev. 225, 230-232 (1981).

We find this rationale equally applicable in the circumstance present in the instant case. Venue is a component of jurisdiction over the person, which has been defined as “the power of a court to render a personal judgment, or to subject the parties” to the rulings of the court. (Punctuation omitted.) Williams v. Fuller, 244 Ga. 846, 849 (262 SE2d 135) (1979). As a general rule, our Constitution provides that for in personam actions, venue lies in the county of the defendant’s place of residence. Ga. Const., Art. VI, Sec. II, Pars. I, VI (1983). Although the joint obligor provision of the Constitution provides one exception to that rule, both it and the corresponding Code section clearly are addressed to “residents,” whether individual or corporate. A foreign corporation registered to do business in Georgia is deemed to “reside” in Georgia for venue purposes, OCGA § 14-2-510, but an individual who lives in another state does not “reside” in Georgia. See OCGA § 9-10-90. While the Long Arm Statute provides for jurisdiction and venue over the person of such an individual where he or she has minimum contacts with the forum, that statute does not make the non-Georgian a “resident” of Georgia; it merely provides for exercise of a Georgia court’s jurisdiction over the person. Weitzel, supra at 90. Therefore, an individual defendant who lives outside the State does not “reside” in Georgia so as to be subject to the joint obligor venue provisions, and venue against the nonresident individual is proper only where authorized by the Long Arm Statute. Accordingly, venue in the case sub judice was proper against appellant only in DeKalb County, and was never proper in Gwinnett County.

In reaching this conclusion, we recognize that its effect is to preclude use of the joint obligor provisions in actions involving defendants who are Georgia residents and non-Georgia defendants who are not deemed by statute to “reside” in the state whenever long arm venue against the non-Georgian lies in a county other than that of the Georgia defendant’s residence. In such circumstances, separate suits against the resident and nonresident defendants may be required, thereby making litigation against joint obligors more cumbersome. Nonetheless, we are constrained by the legislative language and the interpretation given to it by the Supreme Court to reach this result. Any correction of this anomaly must be left to the General Assembly.

Since venue was improper at the time suit was filed, appellant waived any objection to venue by failing to raise the issue after he was properly served with process and before judgment was entered against him. Allen, supra at 574. Accordingly, we affirm the denial of appellant’s motion to set aside.

Judgment affirmed.

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

Decided November 6, 1990

Rehearing denied November 26, 1990

Stokes & Associates, Fred J. Stokes, for appellant.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellee.


author: Banke, Presiding Judge.

text:
    A90A1630.
    HARRIS v. THE STATE.
    (399 SE2d 221)
   Banke, Presiding Judge.

On appeal from his conviction of possessing cocaine in violation of the Georgia Controlled Substances Act, the appellant contends that the state’s evidence failed as a matter of law to rebut his defense of entrapment.

The appellant was arrested after purchasing a quantity of crack cocaine from an undercover agent who was selling it on a street corner. There was evidence that drugs had often been sold at this location in the past, and the appellant admitted at trial that he had in fact gone there on the night in question for the specific purpose of buying cocaine. The police officer who made the sale wore a body transmitter, and his conversation with the appellant was recorded. The officer spoke first, saying, “Hey man, what’s up?” The appellant replied, “fifty,” which, he acknowledged, he meant as a request for a fifty-dollar piece of crack cocaine. The officer responded that he did not have any “fifties” but that he did have some “twenties,” meaning twenty-dollar rocks. The appellant agreed to purchase two “twenties” and was arrested immediately after the money changed hands. The officer testified that he had handed the appellant a bag of cocaine prior to the arrest from which to make his selection. The appellant denied ever having had possession of the cocaine but conceded that if he had not been arrested, he would have completed the purchase. Held:

The evidence clearly was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant had a criminal predisposition to purchase and possess cocaine. See generally Hampton v. United States, 425 U. S. 484 (96 SC 1646, 48 LE2d 113) (1976). The appellant’s reliance on Harpe v. State, 134 Ga. App. 493 (214 SE2d 738) (1975), as authority for a contrary holding is misplaced, as it does not appear that similar evidence of criminal predisposition was present in that case. Rather, the defendant there testified without dispute that he had made the drug sale in question at the request of an undercover agent who, after identifying himself as such, had asked for his assistance in catching two asserted “dope pushers” and had furnished him the contraband with which to make the sale. The defendant’s testimony regarding the transaction in that case was consistent with that of the two undercover agents to whom he had sold the drugs, and there were no circumstances suggestive of any prior involvement in drug dealing on his part. In the case before us, on the other hand, the appellant’s predisposition to commit the crime was well established.

Decided October 22, 1990

Rehearing denied November 26, 1990

B. Samuel Engram, Jr., for appellant.

Britt R. Priddy, District Attorney, for appellee.

“It does not constitute entrapment where a defendant approaches a police officer with an offer to commit a crime, if that officer then plays a role in order to provide the defendant with an opportunity to commit the intended offense.” Orkin v. State, 236 Ga. 176, 195 (223 SE2d 61) (1976). Construing the evidence in favor of the verdict, we hold that a rational trier of fact could reasonably have rejected the appellant’s entrapment defense and found him guilty beyond a reasonable doubt of criminal possession of cocaine. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1878.
    CALIXTE v. THE STATE.
    (399 SE2d 490)
   Birdsong, Judge.

John Bonel Calixte a/k/a Joe Taylor appeals a bench trial judgment of conviction for trafficking in cocaine and the sentence. Appellant was searched at Hartsfield Atlanta International Airport and found to be carrying over 200 grams of 75 percent pure cocaine. He asserts two enumerations of error, the validity of which depends upon the legality of the search. Held:

1. A stipulation was entered regarding testimony introduced at the suppression motion hearing of appellant and a narcotics officer. Their testimony varies substantially regarding the conduct of the search. On appeal, evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidénce sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

2. The circumstances surrounding the search when viewed in a light most favorable to the verdict reflect the following: Investigator Prattes, a female investigator who has over 15 years law enforcement experience, and a female GBI agent observed appellant deplane from an inbound flight from Miami at Hartsfield Atlanta International Airport. The two agents wore casual clothing and their weapons were concealed. Miami is a known drug source city. Appellant had an unkempt appearance and his shirt was hanging outside his trousers. It is not uncommon, in Prattes’ experience, that a lot of drug traffickers who are carrying drugs on their body will wear either oversized shirts or shirts outside their trousers to conceal any apparent bulges. Appellant was carrying a small suitcase, and he “briskly” walked up the concourse. The two officers discussed appellant briefly and elected to follow him to observe his actions. Prattes observed appellant look over his left shoulder twice and then look over his right shoulder with a less obvious movement, as if he was looking to see if anyone was following him. The officers approached appellant from the rear; Prattes had her police credentials in her hand. She identified herself as a police officer, and asked if she could talk with appellant “for a minute.” She repeated her request, and appellant “stopped on his own.” Although Prattes did walk by appellant’s side to show her badge, she did not walk in front of, stand in front of, or “put [her] hands on [appellant] until he gave [his] consent” to search. Appellant was not aware of the GBI agent behind him until after he stopped and put his bag down. Prattes asked appellant whether she could see his airline ticket; appellant initially produced only his boarding pass, but upon request gave the investigator his entire ticket envelope. Prattes noticed that there were no baggage claims attached to the ticket, the ticket was paid for with cash, and the ticket was for a one-way flight purchased that same day. Prattes considered this significant because drug traffickers do not carry excess baggage, and they do not check bags so that they can exit the airport as quickly as possible. Further, drug traffickers often travel on one-way tickets and occasionally on round-trip tickets with a quick turnaround flight time. Moreover, it is quite common for tickets purchased by drug traffickers to be issued the same day as the flight, as it is quite common for them to make last-minute reservations. Also, drug traffickers purchase a lot of the tickets for cash to preclude a tracing of a ticket to them. Appellant was asked and stated that the reason for his trip was to visit his sister for two or three weeks. Prattes found it unusual that he had such a small suitcase in which to carry clothes. After obtaining the ticket, Prattes asked appellant his name. He appeared to be “trying to read the name on the ticket,” which led Prattes to believe appellant could not remember the name thereon. Appellant said his name was “John”; when asked his last name, appellant attempted to look at the ticket again and then replied, “Calixte.” This was his true name, but the ticket was issued in the name of “Joe Taylor.” Traveling under another name is another drug courier characteristic. After being confronted with the discrepancy between the names, appellant asserted the ticket had been issued to his brother, Joe Taylor. At this point, Prattes observed appellant “was becoming visibly shaken” and seemed to be searching for answers. Due to appellant’s nervousness and inconsistent answers, the investigator believed he was “lying.” Appellant was asked to produce identification and, after flipping “back and forth” among cards in his wallet, he produced a Florida driver’s license. Prattes told appellant the officers were narcotics agents and asked if he would “cooperate and allow me to search you and your bag. We could do it here or either go to a private area if you prefer.” Appellant replied, “Well, okay, you can do it here if you want.” Prattes responded that she would rather conduct the search in a private area away from the traffic, and as the three moved towards an alcove three to five feet away, Prattes dropped something. She bent over to retrieve the object and observed appellant “attempting to conceal” a “bulge” in his lower abdominal area. As soon as they entered the alcove area, Prattes asked appellant, “Is it still okay for me to search you?” and appellant again responded affirmatively by saying, “Yes.” Prattes felt a “large, hard, unnatural bulge in [appellant’s] groin area.” She immediately stopped and placed appellant under arrest. Search of appellant then revealed cocaine taped to his underwear underneath a lady’s panty girdle. Prattes testified appellant neither was threatened nor was he physically forced to do anything.

Appellant testified to a substantially different version of the events, claiming an officer got in front of him and stopped him and placed her hand upon him. He was ordered to show his ticket, and believed he had to do what the officers said. He did not want to be searched, and he did not voluntarily consent. Appellant made an admission in open court that he did not see the accompanying GBI agent until he set his bag down; and that the investigator asked him if he would consent to search his person and his bag, but that he said nothing in response to her questions either when first asked or later when asked in the side-room or alcove area.

“Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. [Cits.]” Verhoeff v. State, 184 Ga. App. 501, 503 (2) (362 SE2d 85). In the denial of the suppression motion, inherent therein is the trial court’s finding “that appellant’s consent to search was made voluntarily.” See Garcia v. State, 195 Ga. App. 635, 637 (1) (394 SE2d 542). Further, viewed in its entirety, the suppression motion hearing transcript independently “shows that [during the police-citizen encounter] appellant was not subjected to any duress or coercion, and that he freely, voluntarily and intelligently consented to the search of his person and his personal belongings.” (Citations and punctuation omitted.) Santone v. State, 187 Ga. App. 789, 791 (1) (371 SE2d 428). “Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” Mallarino v. State, 190 Ga. App. 398, 403 (379 SE2d 210). Appellant never withdrew either of his voluntary consents.

“[A] police officer may in appropriate circumstances and in an appropriate manner [as done in this case] approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function [the two officers were] discharging when [they] decided to approach petitioner. . . . [The investigator] had observed [appellant] go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” (Emphasis supplied.) Terry v. Ohio, 392 U. S. 1, 22 (88 SC 1868, 20 LE2d 889). “On the facts of this case [viewed in a light most favorable in support of the verdict] no ‘seizure’ of the [appellant] occurred. The events [of the police-citizen encounter] took place in the public concourse. The [female] agents wore no uniforms and displayed no weapons. They did not summon the [appellant] to their presence, but instead approached [him] and identified themselves as [law enforcement] agents. They requested, but did not demand to see the [appellant’s] identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.” United States v. Mendenhall, 446 U. S. 544, 555 (100 SC 1870, 64 LE2d 497). According to the officers, appellant twice thereafter gave his voluntary consent to search before any search or seizure occurred. An individual may waive his Fourth Amendment rights by voluntarily consenting to a search; valid consent eliminates the need for both probable cause and a search warrant. Walton v. State, 194 Ga. App. 490, 492 (2) (390 SE2d 896).

Appellant’s assertions of error regarding the denial of his suppression motion are all without merit; the search was reasonable and the seizure of drugs also was lawful.

3. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided October 22, 1990

Rehearing denied November 26, 1990.

Paul S. Weiner, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.


author: Pope, Judge.

text:
    A90A0723.
    CALVERT ENTERPRISES, INC. v. GRIFFIN-SPALDING COUNTY HOSPITAL AUTHORITY.
    (399 SE2d 287)
   Pope, Judge.

Plaintiff brought suit against defendant alleging defendant had breached the contract entered into by the parties pursuant to which plaintiff was to perform collection services for defendant on its accounts. Defendant answered and counterclaimed, denying its liability to plaintiff; defendant also filed a request for interlocutory injunction, seeking to require plaintiff to return defendant’s records and to remit monies plaintiff collected on defendant’s accounts. On September 1, 1989, the trial court entered an order enjoining plaintiff from further collection efforts on defendant’s behalf. Plaintiff was also ordered to remit to defendant two-thirds of the monies it had collected for defendant, to pay the remaining one-third into the registry of the court, and to return defendant’s records.

On September 25, 1989, defendant filed- a motion for contempt against plaintiff, contending that plaintiff had failed to comply with the court’s September 1 order. A hearing was held on October 20, 1989, at which time plaintiff was adjudged to be in wilful contempt of the court’s previous order. Plaintiff was ordered to comply with the court’s September 1 order, to submit an acceptable bond to the defendant, and to pay defendant $500 in attorney fees. After orally announcing its judgment, the court informed plaintiff’s representative that it was going to do her a favor and buy her lunch at the Spalding County Jail. The trial judge admonished plaintiff’s representative that if plaintiff failed to comply with the court’s order within seven days, the jail would be her residence. Plaintiff’s counsel immediately announced her intent to appeal the court’s ruling and moved for a supersedeas. The trial court deferred ruling on the request for supersedeas and plaintiff’s representative was transported to the jail for lunch. The trial court subsequently granted plaintiff’s request for supersedeas, thereby suspending execution of the court’s contempt judgment. Plaintiff appeals.

1. Plaintiff does not challenge the trial court’s order insofar as it found plaintiff in wilful contempt of the trial court’s September 1 order. Rather, plaintiff enumerates as error the trial court’s refusal to rule immediately on the request for supersedeas and the trial court’s order insofar as it required plaintiff’s agent to eat lunch at the jail. We agree that the trial court’s actions in this case were without authority and constituted reversible error. Although the trial court did not characterize its action in requiring plaintiff’s representative to have lunch at the jail as part of the contempt sentence, that was clearly the result of the court’s actions in ordering plaintiff to be placed in immediate, if temporary, custody.

The next question is whether OCGA § 5-6-13 was properly invoked. Subsection (a) of that section provides that “[a] judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted or adjudged to be in contempt of court a supersedeas upon application and compliance with the provisions of law as to appeal and certiorari, where the person also submits, within the time prescribed by law, written notice that he intends to seek review of the conviction or adjudication of contempt. It shall not be in the discretion of any trial court judge to grant or refuse a supersedeas in cases of contempt.”

The record shows that immediately after the court announced its contempt order, the following transpired:

“Plaintiff’s counsel: Your Honor, I have a notice of intent to seek appeal which invokes the automatic supersedeas.
“The Court: I’ll take it up after while. I’ll look at it before I leave.
“Take Ms. Calvert out to the jail, please, ma’am.
“[Plaintiff’s counsel]: Your Honor, I believe that because of that supersedeas it automatically stops all that.
“The Court: Ms. Bradford, I’d be careful if I was you. I’ll send you out there to eat lunch if you’re not careful. I’ll take this up in a little while.
“Take this lady out with you.”

Defendant acknowledges in its brief that “[plaintiff], through counsel, attempted to present a Notice of Intent to Appeal and Motion for Supersedeas to the Court” at the October 20 hearing. As shown by the recitations from the transcript, the court acknowledged the notice but refused to act on it until after lunch, at which time its immediate custody order had been carried out. The record shows the order was not signed until October 26 and for some unexplained reason, the notice and order were not filed with the court until December 4. However, pretermitting the issue of when the written notice of intent to appeal was actually filed, it is clear from the record before us that the written notice was submitted to the court on October 20, before the temporary custody order was carried out. The plaintiff having complied with the provisions of OCGA § 5-6-13, the trial court was without authority to delay its ruling until its punishment was complete. The statute calls a mandatory halt as matter of right. Cody v. Cody, 221 Ga. 677, 679 (146 SE2d 778) (1966). Thus, under the facts of this case, we agree that the trial court erred in refusing to rule immediately on the request for supersedeas.

Decided November 26, 1990.

Nancy A. Bradford, for appellant.

Smalley & Cogburn, Robert H. Smalley, for appellee.

2. Defendant’s motion to dismiss this appeal on the basis of mootness is denied. See, e.g., United Food &c. Union v. Amberjack, Ltd., 253 Ga. 438 (321 SE2d 736) (1984).

Judgment reversed. Motion to dismiss appeal denied.

Deen, P. J., and Beasley, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A2075.
    CRAIN v. THE STATE.
    (399 SE2d 289)
   Beasley, Judge.

Appellant pled guilty to driving under the influence and driving without a driver’s license in his possession. He was sentenced to 12 months’ probation on the first charge (plus fine and surcharges), and to a consecutive 12 months’ probation plus a $350 fine on the second. Upon motion, the court modified the latter sentence by reducing the fine from $350 to $10, in accordance with OCGA § 40-5-29. Error is enumerated in the court’s allowing the 12-month probation portion of the sentence on this second charge to stand.

OCGA § 40-5-120 (6) makes it a misdemeanor to violate OCGA § 40-5-29 (a), which requires that a licensee have his or her driver’s license in possession when operating a vehicle. OCGA § 17-10-3 (a) (1) is the general law reciting the maximum punishments for misdemeanors. It states that it applies “except as otherwise provided by law . . . .” OCGA § 40-5-29 provides that for this specific misdemeanor, when the operator proves in court that he or she is actually licensed, the penalty for this failure to carry is a fine of up to $10.

When the legislature first required carrying the license, it provided in the same section the penalty for refusal to exhibit the license to a legal officer. Ga. L. 1937, pp. 322, 346, art. 4, § 7. The maximum was $50 and 6 months’ imprisonment to work on public works. That punishment was carried forward when the law was amended in 1951. Ga. L. 1951, pp. 598, 600, § 4. Then when the law was revised in 1975, the offense was made subject to general misdemeanor punishment, except for instances in which the driver did not have the license in his or her possession but produced it in court. Ga. L. 1975, pp. 1008, 1018, § 68B-210; p. 1041, § 68B-401 (7). It was at this time that the legislature instituted the exception and limited the penalty for it, within the self-contained subsection.

The affirmative duty which the legislature has imposed on licensed drivers is obviously an effort to expedite identification of a person, as an authorized driver or not, who is stopped on the road by an officer or as a result of a collision. Easily accessible and convenient tangible proof is no doubt one of the very purposes for which the State issues the document in the first place.

By expressly reducing the punishment to a fine of $10 in the limited circumstance carved out from general misdemeanor treatment, when otherwise the maximum would be $1,000, a term of up to 12 months, or both, the legislature has given this version of the offense a minimal status in the hierarchy of penal behavior. Such a nearly 99 percent reduction in the imposable fine for the driver’s failure clearly indicates an intention to treat it almost as a mere warning.

It is inconceivable that the legislature would be primarily concerned with reducing the risk to the offender’s pocketbook without a concomitant concern for his or her liberty. To say that a person can be imprisoned for 12 months but subjected to only a $10 fine, or less, would be to ignore the reduction in status sought to be achieved as well as the nature of the subject offense as particularized. Yet such would be the result of affirmance. It would also ignore the legislature’s awareness of the intractable and chronic problem of insufficient jail and prison space and inadequate probation resources even for major felonies.

If the legislature meant to provide the imbalanced array of maximum sentences for the carved-out instances of the offense, it should have been more clear. “[I]t is our duty to construe penal statutes ‘strictly against the State and liberally in favor of human liberty. . . .’” Olson v. State, 166 Ga. App. 104, 110 (5) (303 SE2d 309) (1983). Even if there is uncertainty as to what is intended, which we think there is not, “ ‘the accused is entitled to have the lesser of two penalties administered.’ ” Id.

Judgment reversed.

Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Carley, C. J., concurs in the judgment only. Deen, P. J., and McMurray, P. J., dissent.

Deen, Presiding Judge,

dissenting.

Under OCGA § 17-10-3 (a) (1), “Except as otherwise provided by law,” misdemeanors are ordinarily punishable “either: (1) [b]y a fine not to exceed $1,000.00 or by confinement in the county . . . jail . . . or other such place . . ., for a total term not to exceed 12 months, or both.” OCGA § 40-5-29 (c) limits to $10 the fine to be imposed for a violation of that statute. Contrary to appellant’s allegation and the majority’s conclusion, there is no evidence of a legislative intent to limit punishment for violation of OCGA § 40-5-29 in any way other than the dollar amount of the fine. The trial court’s construction of the statute, and its refusal to modify the remainder of the sentence, was therefore correct.

Decided November 26, 1990.

Judson R. Knighton, for appellant.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

I must therefore respectfully dissent.

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


author: Deen, Presiding Judge.

text:
    A90A2248.
    EUBANKS v. THE STATE.
    (399 SE2d 290)
   Deen, Presiding Judge.

Jon Kerry Eubanks was granted an appeal from the revocation of his probation in accordance with the provisions of OCGA § 5-6-35 (a) (5). Appellant’s counsel contends that the trial court erred in failing to grant a continuance when the evidence was uncontroverted that Eubanks was incompetent to stand trial at the time of the hearing, and that the State failed to show by a preponderance of the evidence that the defendant had violated the terms of his probation or committed a new felony.

1. Two psychiatrists who had treated Eubanks for a number of years were called to testify on his behalf. Both agreed that he was a manic depressive and had a long history of emotional problems. Dr. Jacobs saw him the day before the hearing and testified that the defendant was not legally insane, knew right from wrong, was not subject to a delusional compulsion, and was prone to exaggerating both his symptoms and the degree of his mental illness. Dr. Jacobs felt that Eubanks was competent to stand trial, understood the charges against him, understood the possible consequences of his conviction, and was able to cooperate with his attorney in his defense.

Dr. Damon, the second psychiatrist, had treated Eubanks on many occasions and also saw him the day before the hearing. She felt that his violent behavior was largely caused by his anti-social personality rather than his mental illness. She agreed with Dr. Jacobs that he had a long history of exaggerating his symptoms, and used his illness to manipulate others for his benefit. She also agreed that he was not legally insane. At one point she testified that she could not determine whether he was competent to stand trial, but stated that he understood the charges against him and the consequences of conviction, and that he was capable of cooperating with his attorneys and participating in his defense. Later, however, she stated that she was unable to determine whether he was competent to stand trial, and she did not consider him to be presently competent.

Decided November 26, 1990.

Waddell, Emerson, George & Buice, Hulane E. George, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Assistant District Attorney, for appellee.

The defendant bears the burden of proof on the issue of competence to stand trial. Banks v. State, 246 Ga. 178, 181 (269 SE2d 450) (1980). The issue to be determined by the court is whether the defendant is aware of the charges against him, the possible consequences of his case, and whether he is able to communicate with his attorneys and participate in his defense.

The issue of competence was a factual issue to be resolved by the trial court, and although Dr. Damon’s testimony was conflicting, there was sufficient expert testimony given by both Dr. Damon and Dr. Jacobs to support the court’s conclusion that Eubanks was competent to stand trial. We find no error in the trial court’s refusal to grant a continuance.

2. On February 16, 1990, Eubanks entered a guilty but mentally ill plea to charges of uttering bad checks. He received a five-year sentence on each count and was ordered to make restitution in the amount of $3,145.56, pay a probation fee, pay $325 in attorney fees, and pay a $1,000 fine. On March 19, 1990, he was arrested for violating the terms of his probation because he had paid no restitution or any part of the fine. While in jail awaiting a hearing, he was placed in isolation, where he set fire to his clothing, and the jail had to be evacuated.

The State proved by a preponderance of the evidence, as required under OCGA § 42-8-34.1 (a), that Eubanks had violated the terms of his probation, and then committed an additional crime after he was arrested. We find no error in the trial court’s decision to revoke his probation.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1054, A90A1055.
    DOVE v. CARVER; and vice versa.
    (399 SE2d 216)
   Cooper, Judge.

This appeal and cross-appeal arise out of an order apportioning the proceeds from the settlement of a wrongful death action.

Appellant and appellee/cross-appellant were married in 1970 and a daughter and son were born to them in 1971 and 1973, respectively. In 1974, appellant and appellee were divorced and the court entered an order giving custody of the minor children to appellee and ordering appellant to pay child support in the amount of $30 per month for each child. In April 1987, their daughter died and appellee brought a wrongful death action alleging malpractice on the part of one of the daughter’s physicians. Subsequently, appellee agreed to a settlement of the lawsuit and appellant was added as a party-plaintiff. Because appellant and appellee could not agree on how the proceeds of the settlement were to be divided, a hearing was held to determine the distribution of the proceeds. At the hearing, appellant argued that he was entitled to 50 percent of the proceeds from the wrongful death action, while appellee contended that appellant was not entitled to any of the proceeds because of his failure to support the child. The trial court found that appellant paid only $300 as child support from the time of the divorce through July 1987, at which time a consent judgment was entered into against appellant in the amount of $8,720 for past due child support; that appellant regularly exercised his visitation rights with his daughter, including buying occasional gifts and other necessary items for her; and that appellant did not forfeit his parental rights to his daughter. The trial court, after determining that certain expenses, including the amount of the consent judgment, should be deducted from the proceeds and paid directly to appellee, ordered that the remaining proceeds be divided into 16 equal parts and apportioned to appellant and appellee as follows: 50 percent to each for the years 1971-1975 and 1985-1987; and 90 percent to appellee and 10 percent to appellant for the years 1975-1985. In the main appeal (case no. A90A1054), appellant contends that the trial court erred in reducing his recovery to 10 percent for the years of 1975-1985, and in the cross-appeal (case no. A90A1055), appellee contends that appellant was not entitled to any share of the proceeds of the settlement.

Case No. A90A1054

“The prima facie right to recover for the wrongful death of a child who leaves neither spouse nor child undoubtedly belongs to both parents even where those parents are divorced.” Ramos v. Ramos, 173 Ga. App. 30 (1) (325 SE2d 415) (1984). “If the parents are living together and not divorced, the right shall be in the parents jointly.” (Emphasis supplied.) OCGA § 19-7-1 (c) (2) (A). OCGA § 19-7-1 (c) (2) (C), which governs the recovery for the wrongful death of a child when the parents of the child are divorced and living apart, provides: “If both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as if they were not separated or living apart." (Emphasis supplied.) The same statute further explains that the proceeds from such recovery shall be “divided between the parents.” Although concluding that the case was governed by OCGA § 19-7-1 (c) (2) (C) as it existed prior to the 1987 amendment, the trial court found that the statute did not require it to divide the proceeds from the settlement into equal shares. We disagree and reverse. The 1987 amendment to OCGA § 19-7-1 (c) provides: “For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. . . . The judge shall fairly determine the percentage of the judgment to be awarded to each parent.” However, the 1987 amendment only applies to causes of action arising on or after July 1, 1987 (Ga. L. 1987, p. 619, Sec. 2). In Sapp v. Solomon, 252 Ga. 532 (2) (314 SE2d 878) (1984), the Supreme Court noted that if the father of a child born out of wedlock could establish that he had provided support for the child in accordance with the appropriate standard, then he would be entitled to one-half of any recovery for the wrongful death of the child. Therefore, we conclude that the trial court’s apportionment of the proceeds into anything other than equal shares was erroneous. Accordingly, we reverse that part of the trial court’s order which reduces to 10 percent appellant’s share of the proceeds.

Case No. A90A1055

In her cross-appeal, appellee contends that the trial court erred in awarding any percentage of the proceeds to appellant because of appellant’s failure to reasonably support the minor child. In Sapp v. Solomon, supra, the Supreme Court addressed the issue of whether a father’s right to participate in the recovery for the wrongful death of a child born to him out of wedlock is defeated by the father’s failure to support the child. The court held that “in order for a biological father to participate in a recovery based upon the wrongful death of his child born out of wedlock, he must have provided, during the lifetime of the child, such financial support as shall have been reasonable under the facts and circumstances of the case, bearing in mind the needs of the child and the ability of the father to pay. [Cit.]” Sapp v. Solomon, supra at 532-533. In Ramos v. Ramos, supra, this court addressed the question of whether the parent of a child born during the marriage but deceased after the divorce of the parents could lose the right to share in the proceeds of a wrongful death action for the homicide of the child. In that case, we preliminarily recognized that under Sapp there was at least one instance where a parent’s right to a share of the wrongful death proceeds could be forfeited, and while noting that even under the Sapp standard the statutory right to share in the proceeds had not been forfeited, we proceeded to apply the standard of abandonment articulated in Blackburn v. Blackburn, 249 Ga. 689 (2) (292 SE2d 821) (1982) (there must be clear and convincing evidence of a parent’s unfitness before terminating parental rights) and Thrasher v. Glynn County Dept. of Family &c. Svcs., 162 Ga. App. 702 (293 SE2d 6) (1982) (in order to find abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely the parental relation), to determine that the father had not terminated his parental rights by abandonment. Because the case sub judice does not involve a child born out of wedlock, we find that it is controlled by Ramos. The trial court found that appellant exercised his visitation rights with the child; that he occasionally bought her small presents, school clothes and other necessary items; that during the summers of 1985 and 1986 the daughter lived with and was supported by appellant; that appellant’s ability to make a living has always been limited by his skills; and that although appellant’s contribution to the child may have been paltry, appellant’s parental rights had not been terminated. Inasmuch as our review of the record shows ample evidence to support the trial court’s ruling that appellant had not forfeited his parental rights, we must affirm. Consequently, appellant is entitled to one-half of the wrongful death proceeds, subject to the payment to appellee of the amount of the consent judgment plus all costs as determined by the trial court.

Decided October 10, 1990

Rehearing denied November 27, 1990

Morris & Webster, Craig A. Webster, for appellant.

Walters, Davis, Smith, Meeks & Pittman, W. Edward Meeks, Jr., for appellee.

Judgment reversed in Case No. A90A1054. Judgment affirmed in Case No. A90A1055.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1108.
    MARSH v. WRIGHT MEMORIAL MORTUARY.
    (399 SE2d 232)
   Pope, Judge.

Plaintiff Lonzetta Marsh filed this action against Wright Memorial Mortuary alleging she had been injured in an automobile accident which occurred during a funeral procession conducted by the mortuary. The evidence shows the mortuary is a proprietorship solely owned by Joe Wright. It is undisputed that Joe Wright was never personally served. Instead, the complaint was served at Mr. Wright’s place of business upon his daughter, who does not reside with him. The mortuary (which we note is not a proper legal entity and therefore cannot be a defendant in this case, but for simplicity’s sake will be referred to, hereinafter, as “defendant”) filed an answer which raised the defense of insufficiency of service of process. Defendant also raised a cross-claim against its co-defendant and filed a motion to join plaintiff’s husband as a necessary party and a motion to transfer the case to another judge handling a related claim, pursuant to Uniform Superior Court Rule 3.2. Prior to trial, defendant filed a motion to dismiss on the ground of insufficiency of service and a motion for summary judgment on both substantive grounds and also on the ground of insufficiency of service. The trial court granted defendant’s motion to dismiss and denied plaintiff’s motion to amend the complaint to correct the misnomer of defendant and to rename the defendant “Joe Wright d/b/a Wright Memorial Mortuary.” Plaintiff appeals.

1. The issue in this case is whether defendant waived the defense of insufficiency of service by filing a cross-claim, a motion to transfer the case and a motion to join a necessary party. Plaintiff argues these acts demonstrated an intent to relinquish the previously asserted defense and to consent to the jurisdiction of the trial court by seeking affirmative relief from the court. In order for a defendant’s acts to serve as a waiver of his previously asserted objection to jurisdiction, “his acts or omissions to act, relied on, should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.” (Citations and punctuation omitted.) Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1984). In Worley Bros. Granite Co. v. Haskins, 105 Ga. App. 444 (124 SE2d 663) (1962), this court held that a defendant in an attachment proceeding had wáived his earlier objection to personal jurisdiction by filing a counterclaim (referred to as a “cross-action”) against the plaintiff because defendant thus assumed the position of a plaintiff seeking affirmative relief. Here, defendant filed a cross-claim against the co-defendant but the claim merely sought indemnity or contribution from the co-defendant in the event a judgment was entered against defendant. Otherwise, the cross-claim did not seek affirmative relief.

By filing a motion to transfer and a motion to add plaintiff’s husband as a necessary party to the action the defendant did seek affirmative action from the trial court, but it cannot be said defendant was seeking affirmative relief for a claim. Instead of seeking to file a claim against another party, as was the case in Worley Bros. Granite Co., defendant merely asked the trial court to require another party with a related claim to join in the present action against defendant. Defendant might not be entitled to dismissal of the complaint if it had submitted to the jurisdiction of the trial court in regard to the husband’s joint consortium claim. However, the record shows the husband dismissed his claim with prejudice without ever filing a claim or joining the action in any manner. Requesting the transfer of plaintiff’s claim to another judge already handling a related claim in no way relinquished the defenses raised to plaintiff’s claim. Merely filing a motion requesting the court for an affirmative ruling does not waive a timely raised objection to jurisdiction on the ground of insufficiency of service. See Roberts v. Bienert, 183 Ga. App. 751 (2) (360 SE2d 25) (1987) (in which this court held the defendant did not waive the defense of insufficiency of service by filing a motion for summary judgment on the substantive merits of plaintiff’s complaint). Thus the defendant did not waive its objection to jurisdiction on the ground of insufficiency of service and the trial court did not err in granting defendant’s motion to dismiss.

2. Having ruled that defendant was entitled to dismissal of plaintiff’s complaint for insufficiency of service of process, it follows that the trial court did not err in denying plaintiff’s motion to amend the complaint to correct the misnomer of defendant. Defendant was never subject to the jurisdiction of the trial court because service of process was never perfected. The two-year period of limitation having long since expired (the date of the alleged negligent act was November 19, 1986), plaintiff’s claim against defendant is now barred.

Decided November 5, 1990

Rehearing denied November 27, 1990

Waycaster, Corn & Murray, Richard K. Murray, Cynthia N. Johnson, for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Brinson, Askew & Berry, Hendrick L. Cromartie III, for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.