author: Eldridge, Judge.

text:
    A98A1166.
    FULTON v. THE STATE.
    (503 SE2d 54)
   Eldridge, Judge.

On April 13, 1997, the defendant-appellant, William Levon Fulton, was with his girl friend, Harriet Hamilton, in the parking lot of the Burger King in Savannah, Chatham County, at 2:00 a.m.

Arthur Williams, the victim, encountered Hamilton. Hamilton testified for the defense that she asked the victim for a light, and he cursed her. This led to “words,” and an angry argument resulted. Williams testified that he did not have a gun. Hamilton testified that the victim took a pistol out of the trunk of a car. Hamilton told the victim that she was going to get her gun and went to her car for her pistol.

The victim told the defendant to do something about Hamilton getting her gun. The defendant took the gun from Hamilton and went to Williams with the pistol in his possession.

The victim denied that they scuffled or traded blows, but Hamilton testified that the victim began to tussle and then exchanged blows. Hamilton never saw the victim strike the defendant but saw the defendant strike the victim with his fist; the pistol was in his pants all during the fight.

Hamilton claimed ownership of the pistol. The defendant had an extensive record of prior felony convictions.

The victim testified that the defendant struck him in the head with the cylinder of the pistol as soon as the defendant got close to him, causing injury and leaving the marks of the cylinder on his face. The evidence was in conflict; defendant’s witnesses testified that the defendant never struck the victim with the pistol, only his fist. The police found blood on the pistol in defendant’s possession.

The defendant was indicted for aggravated assault with a deadly weapon; possession of a firearm during the commission of a felony, i.e., aggravated assault; possession of a firearm by a convicted felon; and the criminal use of an article with an altered serial number, the pistol. Defendant was indicted as a recidivist.

At trial on September 12, 1997, defendant was convicted of simple battery as a lesser included crime and possession of a firearm by a convicted felon; he was acquitted of all the remaining charges. Defendant was sentenced as a recidivist on that date.

Defendant’s motion for new trial was denied, and defendant appeals.

1. Defendant’s first enumeration of error is that the trial court erred in charging simple battery as a lesser included offense of aggravated assault. We do not agree.

An offense is included in the crime indicted under OCGA § 16-1-6 when: “(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person ... or a lesser kind of culpability suffices to establish its commission.” See Strickland v. State, 223 Ga. App. 772 (479 SE2d 125) (1996).

Under the facts of this case, the jury was authorized to believe: that the defendant struck the victim but that he did not strike the victim with a deadly weapon; that the pistol was not used in a fashion that was deadly; that the defendant did not intend to use the pistol as a deadly weapon in slapping the victim in the face with the cylinder of the revolver which reduced the risk of the injury; that the bruised face was a less serious injury from being struck in the face than a blow to other areas of the head in a different fashion and with a different part of the gun; or that the defendant struck the victim with his fist while he was grasping the gun in his fist. Such possible factual determinations by the jury make the crime a lesser included offense as a matter of fact. See Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982); Stephens v. Hopper, 241 Ga. 596 (247 SE2d 92) (1978) . All of such permissible possible factual findings would constitute a lesser included offense of aggravated assault by striking the victim with a pistol, a deadly weapon. See OCGA § 16-1-6; Messick v. State, 209 Ga. App. 459 (433 SE2d 595) (1993); Williams v. State, 144 Ga. App. 130 (240 SE2d 890) (1977). Under the facts of this case, simple battery can be factually a lesser included offense of aggravated assault. See Guevara v. State, 151 Ga. App. 444 (260 SE2d 491) (1979). Where the evidence authorizes a charge on the lesser included offense, it is not error for the trial court to charge the jury on such lesser offense. Rodriguez v. State, 211 Ga. App. 256 (439 SE2d 510) (1993); see also Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Clarke v. State, 239 Ga. 42 (235 SE2d 524) (1977); State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

2. The defendant’s second enumeration of error is that the jury’s verdict of guilty as to possession of a firearm by a convicted felon is mutually exclusive of its verdict of not guilty regarding criminal use of an article with an altered identification mark. We do not agree.

“ ‘The general rule dispensing with the necessity for consistency as between acquittals and guilty verdicts under a multicount indictment or information is not ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.’ ” Dumas v. State, 266 Ga. 797, 799 (471 SE2d 508) (1996). “Mutually exclusive” means that the jury’s findings as to the elements of one offense must exclude or preclude the jury’s finding with regard to an element of a second offense as a matter of law. Id. at 800.

Here, the evidence was that the altered serial number was concealed under the hand grips, which had to be removed to reveal such condition. However, Hamilton testified that it was her gun, that she had possessed the pistol for several months, and that she did not know that the serial number had been removed. Further, Hamilton testified that, prior to the defendant taking the gun from her, the defendant had never had the gun in his possession. Thus, the jury was authorized to find that the defendant had no knowledge that the serial number on the gun had been altered.

OCGA § 16-9-70 (a), criminal use of an article with an altered identification mark, requires knowledge and intent as essential elements of the offense: “which he knows the . . . serial number . . . has been removed for the purpose of concealing or destroying the identity of such article.” See Power v. State, 260 Ga. 101 (390 SE2d 47) (1990); Blair v. State, 144 Ga. App. 118 (240 SE2d 319) (1977); Rogers v. State, 139 Ga. App. 656 (229 SE2d 132) (1976). The testimony of Alcohol, Tobacco & Firearms (“ATF”) Agent Randy Beach gave rise to circumstantial evidence of possession of the pistol, but not of knowledge of the altered serial number on the pistol. There was no evidence of guilty knowledge and intent as to the altered number, so that the trial court would have had to direct a verdict on that charge if the motion had been made. Power v. State, supra; Gadonna v. State, 164 Ga. App. 582 (298 SE2d 556) (1982); Rogers v. State, supra. Therefore, the jury was authorized to acquit, because the State had failed to prove the essential elements of knowledge and intent as to the offense of possession of the pistol with “altered serial number” beyond a reasonable doubt, even though possession of the pistol, itself, was proven. Power v. State, supra. Accordingly, the verdicts were not “mutually exclusive,” because the evidence proved beyond a reasonable doubt that the defendant, a convicted felon, had possession of the firearm.

3. The third enumeration of error is that the jury’s verdict of guilty as to possession of a firearm by a convicted felon was mutually exclusive of its verdict of not guilty on the aggravated assault charge. We do not agree.

The State’s case, as well as the defense case, proved beyond a reasonable doubt that the defendant had possession of a firearm and was a convicted felon. Division 1 is dispositive of the factual determination that the pistol was not used in an aggravated assault. However, the jury found beyond a reasonable doubt that defendant had possession of Hamilton’s pistol, whether or not he used it as a deadly weapon.

4. The fourth enumeration of error is that the trial court erred in allowing the testimony of Randy Beach into evidence over objection of the defense. We disagree.

The testimony of ATF Agent Randy Beach was relevant and material to show possession of the pistol by the defendant prior to April 13, 1997, both for the possession by a felon count and the altered serial number count, because the defendant made admissions that were circumstantial evidence of possession and control of the pistol prior to the assault in that he sought to obtain a silencer for the pistol. The testimony also was an attempt to prove that the defendant possessed a pistol with an altered serial number.

OCGA § 24-9-20 prohibits the State from introducing evidence of the defendant’s bad character unless such evidence is relevant and material for another evidentiary purpose. Where evidence that is probative for some other purpose incidentally places the defendant’s character in evidence, such evidence does not violate the statutory prohibition and is admissible. Samuels v. State, 223 Ga. App. 275 (477 SE2d 414) (1996); see also Hales v. State, 250 Ga. 112 (296 SE2d 577) (1982). The trial court did not abuse its discretion in the admission of such evidence.

5. The fifth enumeration of error is that the trial court erred in refusing the defendant’s motion to place the victim’s prior acts of violence before the jury. We do not agree.

Uniform Superior Court Rule (“USCR”) 31.6 mandates that the defense give written notice to the prosecution at least ten days prior to trial of the intent to use evidence of the victim’s prior acts of violence and for the trial court to hold a hearing. Although on the day of trial, September 9, 1997, the defendant filed a written notice of the intent to present evidence of justification, such notice did not comply with USCR 31.6 by giving ten days written notice. On September 10, 1997, the trial court denied the defense motion to use evidence of the victim’s prior acts of violence. See Chandler v. State, 261 Ga. 402, 407-408 (3) (405 SE2d 669) (1991); see also USCR 31.6; Johnson v. State, 266 Ga. 380, 381 (2) (467 SE2d 542) (1996); Watkins v. State, 264 Ga. 657, 662 (4) (449 SE2d 834) (1994); Johnson v. State, 229 Ga. App. 586 (494 SE2d 382) (1997). Failure to file the written notice within ten days and failure to identify the witness, give the address and telephone number, and the approximate date of the occurrence are grounds to exclude such evidence. USCR 31.6 (B); Johnson v. State, 229 Ga. App. at 589. “There was no abuse in [the] exercise of the trial court’s discretion, especially considering that appellant’s untimely notice did not contain all of the relevant information required by USCR 31.6 (B). It follows that the evidence was not erroneously excluded.” Armstrong v. State, 265 Ga. 18, 19 (2) (453 SE2d 442) (1995). See also Young v. State, 228 Ga. App. 233, 234 (491 SE2d 404) (1997).

6. Defendant’s last enumeration of error is that the trial court erred in allowing copies of the defendant’s prior convictions into evidence without a showing as to the voluntariness of defendant’s guilty plea. We do not agree.

Decided June 4, 1998

Reconsideration denied June 17, 1998

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

The defense, upon tender of evidence of the prior convictions, was afforded an opportunity to object and raised no objection. This enumeration of error was raised for the first time in defendant’s amended motion for new trial. The defendant waived such error by not timely raising the objection at trial when the trial court could cure the error by requiring such showing, because the defendant could not sit back in silence regarding the alleged error and gamble on the outcome of the trial to later raise the issue. See Spencer v. State, 260 Ga. 640 (398 SE2d 179) (1990). The defendant must timely raise, prior to, at trial, or at sentencing, the issue of voluntariness of prior guilty pleas under Boykin v. Alabama, 395 U. S. 238, 242 (89 SC 1709, 23 LE2d 274) (1969), before the burden of proof is placed upon the State to establish a valid waiver. Pope v. State, 256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986). The objection to voluntariness must be raised at the time that the prior conviction is tendered for admission before the trial court. See id.; Gadson v. State, 197 Ga. App. 315, 317-318 (4) (398 SE2d 409) (1990); Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796) (1988). Where, as under the facts of this case, the objection was not raised until motion for new trial, this error of proof of voluntariness of prior guilty pleas was not preserved for appellate review. See Pugh v. State, 214 Ga. App. 470, 471 (3) (448 SE2d 16) (1994); Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A1208.
    LEE v. RESTAURANT MANAGEMENT SERVICES.
    (503 SE2d 59)
   Eldridge, Judge.

On September 23, 1996, Charles Lee filed a complaint in the Superior Court of Bibb County against Restaurant Management Services d/b/a Shoney’s Restaurant (“RMS”), seeking damages for injuries Lee allegedly sustained after swallowing a tainted bandage that was in a bowl of soup he was eating at Shoney’s. Lee obtained a default judgment on November 19,1996, when RMS failed to answer his complaint.

RMS filed a motion to set aside the default judgment on Decernber 2, 1996. Attached to the motion was an affidavit from RMS’ insurance administrator who testified that she faxed Lee’s complaint to their insurance company; that this procedure is the one she “customarily” follows “regarding claims and suits of this type set forth in the captioned action”; that the insurance company had never failed to hire counsel to file an answer on behalf of RMS in any suit she had forwarded to them; and that RMS had no reason to believe that the insurance company had not caused an answer to be filed in this case. Apparently, RMS did not determine whether the fax transmission reached its insurance agent or whether an answer was filed in this case.

Four days later, on December 6, 1996, the trial court granted RMS’ motion to set aside based upon the contents of the affidavit. The trial court grounded its actions upon its “inherent power” to reverse, correct, revoke, modify, or vacate a judgment within the term of court that such judgment was rendered; the trial court determined that, based upon OCGA § 9-11-60 (d) (2), RMS’ failure to answer Lee’s complaint in a timely manner “was due to mistake unmixed with negligence or fault on Defendant’s [RMS’] part.” Lee requested a certificate of immediate appellate review, which request was refused by the trial court. The case went to trial, and a verdict was returned for the defendant. Held:

1. The judgment at issue was rendered in November 1996. A new term of court began in Bibb County on December 2, 1996. OCGA § 15-6-3 (23) (A). Accordingly, the trial court set aside its judgment outside the term of court in which it was issued, and the trial court’s decision to set aside its judgment was not simply an “exercise of sound discretion” as to a judgment still in the “breast of the court.” See Piggly Wiggly v. McCook, 216 Ga. App. 335 (454 SE2d 203) (1995). The general rule is that after expiration of the term at which a judgment is entered, it is out of the power of the court to modify and revise the judgment in any matter of substance or in any matter affecting the merits.

However, in Wright v. Archer, 210 Ga. App. 607 (436 SE2d 775) (1993), we permitted a default judgment to be set aside outside the term of court in which it was entered when the limited requirements of OCGA § 9-11-60 (d) (2) were met. Thus, herein we examine whether the trial court correctly applied the specific criteria of that Code section in setting aside the instant default judgment.

2. Prior to 1986, OCGA § 9-11-60 provided for the “Complaint in equity” in which a judgment from any of this State’s courts of law could be set aside in a court of equity (superior court) “for fraud, accident or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.” OCGA § 9-11-60 (e); see Ga. L. 1986, p. 295. The old statute also provided an avenue in a court of law for a “Motion to set aside,” but that vehicle was narrowly construed and related only to non-amendable defects appearing on the face of the record, lack of jurisdiction (subject matter or personal), or an affirmative showing that no claim in fact existed. Id.; OCGA § 9-11-60 (d).

In 1986, however, the legislature amended OCGA § 9-11-60 specifically to eliminate the “Complaint in equity” and its related equitable measures for setting aside judgments. Ga. L. 1986, p. 294. The equitable notions of “fraud, accident, or mistake unmixed with the negligence or fault of the complainant” were added to the “Motion to set aside” remedy at law. OCGA § 9-11-60 (d) (2). Thus, a party no longer had to file separately in a court of equity in order to challenge a judgment from a court of law based upon “fraud, accident, or mistake.” The venue remained the same; judicial economy was served.

However, through the legislature’s actions, formerly separate, “equitable” measures were necessarily integrated with remedies at “law.” As a consequence, while recognizing that a “Motion to set aside” pursuant to OCGA § 9-11-60 (d) (2) is ostensibly a remedy at law, this Court has utilized the many years of precedent established through requests in equity to set aside a judgment based upon “fraud, accident, or mistake.” Included therein are traditional equitable concepts such as “[i]f a party, by reasonable diligence, could have had knowledge of the truth, equity shall not grant relief.” OCGA § 23-2-29. In fact, such concept is embodied in that portion of OCGA § 9-11-60 (d) (2) which proscribes any “negligence” or “fault” on the part of the complainant. See, e.g., Richardson v. Indus. Welding &c. Supplies, 238 Ga. 144 (231 SE2d 760) (1977); Hurt Building v. Atlanta Trust Co., 181 Ga. 274 (182 SE 187) (1935). Accordingly, we necessarily examine this “remedy at law” in “equitable terms.”

Here, Lee claims the trial court abused its discretion in granting RMS’ motion to set aside the default judgment pursuant to OCGA § 9-11-60 (d) (2), because RMS was negligent in failing to ensure that an answer was filed on its behalf. We are constrained to agree. The essence of the “mistake” alleged by RMS is that it relied upon its insurance agent to handle the matter. This assertion of “mistake” is simply insufficient to support setting aside an otherwise valid judgment at law.

Decided June 4, 1998

Reconsideration denied June 17, 1998

John T. McKnight, for appellant.

Jones, Cork & Miller, Jerry A. Lumley, Alan G. Snipes, for appellee.

“One who has obtained a judgment at law according to the prescribed method [Lee], and who is not chargeable with any conduct which would amount to fraud or imposition upon the adverse party in relation to the judgment, will not be interfered with by a court of equity for the mere reason that a stranger[] perpetrated a fraud [or mistake] which prevented the other party to the judgment from interposing a defense. The remedy of the party who is the victim of such fraud [or mistake] at the hand of a stranger to the plaintiff is not by resort to a court of equity to have the judgment set aside, but by seeking proper redress against him who perpetrated the fraud [or mistake].” (Citations, punctuation and emphasis omitted.) Bagwell v. Parker, supra at 315; Shilliday v. Dunaway, supra at 407-408. Accordingly, the trial court erred in granting the motion to set aside Lee’s default judgment pursuant to OCGA § 9-11-60 (d) (2), and RMS’ proper remedy is to seek redress against its insurer. Bagwell v. Parker, supra at 315.

Further, RMS’ actions did not demonstrate “reasonable diligence” in addressing Lee’s complaint. Shilliday v. Dunaway, supra at 408; OCGA § 23-2-29. Even a modest follow-up might have uncovered the insurer’s failure to answer Lee’s complaint and the reason why, which reason has still not been revealed. However, such was not done. Based on the record herein, there is no evidence that the “fault” for this “mistake” lies with anyone other than the named party to the litigation, i.e., RMS, who is charged under the law with the responsibility to ensure that an answer to the complaint was filed. Accordingly, the trial court erred in granting the motion to set aside Lee’s default judgment pursuant to OCGA § 9-11-60 (d) (2), because the alleged mistake is not “unmixed with the negligence or fault” of RMS in failing to interpose a defense to Lee’s suit.

3. Our decision in Division 2 renders Lee’s other enumerations of error moot.

Judgment reversed.

McMurray, P. J, and Blackburn, J., concur.

        City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971); Gobles v. Hayes, 194 Ga. 297, 300 (21 SE2d 624) (1942); Pledger v. State, 193 Ga. App. 588 (388 SE2d 425) (1989); Adams Drive, Ltd. v. All-Rite Trades, 136 Ga. App. 703 (222 SE2d 174) (1975); compare Young Constr. v. Old Hickory House #3, 210 Ga. App. 559 (436 SE2d 581) (1993).

       OCGA §§ 23-2-1; 9-3-21.

       See, e.g., Marsh v. Way, 256 Ga. 46 (343 SE2d 686) (1986); Shilliday v. Dunaway, 220 Ga. App. 406 (469 SE2d 485) (1996); Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726) (1987); Bagwell v. Parker, 182 Ga. App. 313, 315 (355 SE2d 463) (1987).

       A “stranger” in the legal sense is a non-party to the suit. Shilliday v. Dunaway, supra at 408, n. 2.


author: Ruffin, Judge.

text:
    A98A0043, A98A0044.
    CITY OF LAWRENCEVILLE v. DAVIS; and vice versa.
    (502 SE2d 794)
   Ruffin, Judge.

On March 28, 1996, the Municipal Court of Lawrenceville convicted Clifford Davis of driving under the influence of alcohol. Davis appealed to the superior court, and the City of Lawrenceville (the “City”) moved to dismiss the appeal. The superior court subsequently denied the City’s motion to dismiss and ultimately reversed Davis’ conviction based on the sufficiency of the evidence. In Case No. A98A0043, we granted the City a discretionary appeal to review the superior court’s order denying its motion to dismiss. In Case No. A98A0044, Davis cross-appealed asserting that notwithstanding the superior court’s reversal of his conviction, it erred in finding that there was sufficient evidence of venue. For reasons which follow, we reverse the superior court’s order denying the City’s motion to dismiss and therefore find it unnecessary to address Davis’ cross-appeal.

Case No. A98A0043

1. The record shows that after he was convicted, Davis filed a motion for new trial in the municipal court. On November 7, 1996, the municipal court denied Davis’ motion, and on December 6, 1996, he appealed his conviction to the Superior Court of Gwinnett County pursuant to OCGA § 40-13-28. The City moved the superior court to dismiss the appeal on the ground that it was filed more than 30 days after the date the municipal court entered the judgment of conviction. See OCGA § 5-3-20 (a). The City argued that because the municipal court did not have jurisdiction to consider Davis’ motion for new trial, the motion did not toll the 30-day time limit for filing appeals. In ruling on the City’s motion to dismiss, the superior court found that the municipal court had authority to consider Davis’ motion for new trial, and because he appealed within 30 days of the denial of that motion, his appeal was timely. We disagree.

OCGA § 5-3-20 (a) requires that “[a]ppeals to the superior court shall be filed within 30 days of the date the judgment, order, or decision complained of was entered.” Although, as a general rule, a motion for new trial will extend the time for filing the appeal, the extension is predicated on the requirement that the trial court has jurisdiction to grant the motion for new trial. See Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 35) (1991); Bowen v. Ball, 215 Ga. App. 640 (451 SE2d 502) (1994). If a trial court is not so authorized, then the motion for new trial will not toll the 30-day time period in which an appeal must be filed. Id.

OCGA § 5-5-1 expressly authorizes certain courts to grant motions for new trial. OCGA § 5-5-1 (a) provides that “[t]he superior, state, and city courts shall have power to correct errors and grant new trials in cases. . . .” Similarly, OCGA § 5-5-1 (b) authorizes probate courts to grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15. However, this is not the exclusive list of courts which may grant new trials. “Art. VI, Sec. I, Par. IV of the Georgia Constitution of 1983 provides, in pertinent part: ‘each superior court, state court, and other courts of record may grant new trials on legal grounds.’ ” (Emphasis in original.) In the Interest of T. A. W., 265 Ga. 106, 107 (454 SE2d 134) (1995). Thus, in T. A. W. the Court held that although a juvenile court is not authorized to grant new trials by OCGA § 5-5-1, because it is a court of record it nevertheless has such power. Id. (citing OCGA § 15-11-65 (b) designating juvenile courts as courts of record).

In this case, the superior court found that the municipal court was authorized to consider Davis’ motion for new trial because (a) the Municipal Court of Lawrenceville is a city court which is expressly authorized to grant new trials by OCGA § 5-5-1, and (b) even if the Municipal Court of Lawrenceville is not a city court, it is a court of record. We disagree with both findings.

(a) The Municipal Court of Lawrenceville is not a city court. In reviewing the applicable legislation to determine whether the municipal court is a city court, we must “look diligently for the intention of the General Assembly. . . .” OCGA § 1-3-1 (a). The enabling legislation permitting the establishment of municipal courts is found under OCGA § 36-32-1 (a), which provides that “[e]ach municipal corporation of this state shall, unless otherwise provided in the local law relating to a particular municipal corporation, be authorized to establish and maintain a municipal court having jurisdiction over the violation of municipal ordinances and over such other matters as are by general law made subject to the jurisdiction of municipal courts. Any such court shall be styled as a municipal court.” Under OCGA § 36-32-1 (a), if a court of a municipal corporation is titled as, inter alia, a recorder’s court, then such court is a municipal court.

In contrast to municipal courts, city courts are limited to cities having a population of at least 300,000 people, are created by special act of the General Assembly and are specifically designated as courts of record. OCGA § 15-8-1; Ga. L. 1967, p. 3360, § 1 (in effect at the time of Davis’ municipal court trial); see also Ga. L. 1996, p. 627, § 1 (effective July 1, 1996). Furthermore, while OCGA § 36-32-1 (a) requires municipal courts to be styled as “municipal courts,” legislation creating city courts specifically requires such courts to be denominated “as the city court of such city.” See Ga. L. 1967, p. 3360, § 1; see also Ga. L. 1996, p. 627, § 1. The jurisdiction of city courts is generally limited to state law and local ordinance traffic offenses, and they were created to alleviate the burden of enforcing such laws in densely populated cities. Ga. L. 1967, p. 3360, § 2 (a); Ga. L. 1996, p. 627, § 2. Finally, in contrast to municipal courts, which are courts of the municipalities in which they are located, the legislature created city courts as part of the state court system. See OCGA § 36-32-1 (a); Ga. L. 1996, p. 627, preamble; Ga. L. 1967, p. 3360, preamble; see also editorial note to Code 1933, § 24-2204 (discussing history of city courts).

The Municipal Court of Lawrenceville was established as part of the charter for the City of Lawrenceville (the “Charter”). See Ga. L. 1986, p. 4961, § 4.10. Under the Charter, adopted in 1986, the court is titled the “Recorder’s Court of the City of Lawrenceville.” See. id. Pursuant to OCGA § 36-32-1 (a), the court is therefore a municipal court. There is absolutely no provision in the Charter and we are aware of no special acts which designate that court as a city court. Furthermore, unlike OCGA § 5-5-1 (a), which expressly authorizes city courts to grant new trials, there is nothing in the Charter’s municipal court jurisdictional provisions which afford that court the same authority. See Ga. L. 1986, p. 4961, § 4.13. Under these circumstances, we conclude that the superior court erred in finding that the Municipal Court of Lawrenceville is a city court with the power to grant new trials.

(b) We similarly find that the Municipal Court of Lawrenceville is not a court of record which would be authorized to grant new trials. In DeKalb County v. Deason, 221 Ga. 237 (144 SE2d 446) (1965), the Supreme Court of Georgia reviewed authorities from various jurisdictions to determine what constitutes a court of record. The Court found the following characteristics “indicative that a particular court is a court of record: (1) the court has power to fine and imprison; (2) the court exercises its functions independently of the person of the magistrate; (3) the court proceeds according to the course of the common law; (4) the court has a seal; (5) the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the record of the court and are of such high and supereminent authority that their truth is not to be called in question[.]” Id. at 238. With regard to the last characteristic, the Court observed: “It is generally accepted that the one essential feature necessary to constitute a court of record is that a permanent record of the proceedings of the court must be made and kept. A definition of such record generally accepted is that it is a precise history of a suit from its commencement to its termination, including conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts. [Cits.]” Id.

In Bowen, supra, we looked to these characteristics in determining whether the Rockdale County Magistrate Court was a court of record that could grant motions for new trial. Relying on Crosby v. Dixie Metal Co., 227 Ga. 541 (181 SE2d 823) (1971), we found that the mandates of OCGA § 15-6-61, which sets forth the record-keeping duties of the superior court clerks, satisfied the permanent record requirement discussed in Deason, supra. Bowen, supra at 642. Upon finding that magistrate courts are not required to keep the type of records mandated by OCGA § 15-6-61, we concluded that the magistrate court was not a court of record. Id.

We similarly conclude that the Municipal Court of Lawrenceville is not a court of record. Unlike superior courts and other courts of record, the City’s Charter does not require the municipal court to keep any records, much less the detailed and permanent records provided for under OCGA § 15-6-61. See Ga. L. 1986, p. 4961, §§ 4.10-4.15. Compare Ga. L. 1983, p. 4444, § 24 (establishing the Municipal Court of Columbus and Muscogee County as a court of record). Finally, although the superior court found in its order that the Municipal Court of Lawrenceville is required to keep permanent records, the superior court cited no applicable authority to support its finding. In the absence of any such authority, the superior court’s finding is erroneous. Accordingly, we conclude that the Municipal Court of Lawrenceville is not a court of record and was therefore not authorized to consider Davis’ motion for new trial. See Bowen, supra.

Decided June 17, 1998

Webb, Tanner & Powell, Steven A. Pickens, for appellant.

Charles A. Mullinax, James E. Howard, for appellee.

Under these circumstances, Davis’ motion for new trial did not toll the time in winch he was required to appeal the municipal court’s judgment. Because the appeal was not filed timely, the superior court erred in denying the City’s motion to dismiss. See id.

2. Our decision in Division 1 makes it unnecessary to consider the City’s other enumerated error in Case No. A98A0043.

Case No. A98A0044

3. Our decision in Case No. A98A0043 renders moot Davis’ assertion regarding the sufficiency of evidence establishing venue.

Judgment reversed in Case No. A98A0043. Case No. A98A0044 dismissed as moot.

Pope, P. J., and Beasley, J., concur.

       From the commencement of this case, the prosecuting party has been designated as the “City of Lawrenceville.” Inasmuch as the issue has not been raised, we do not address whether the prosecuting party should properly be designated as the “City of Lawrenceville” or “The State.”


text:
    A98A0184.
    HADID v. BEALS et al.
    (502 SE2d 798)
   Ruffin, Judge.

Mohamad Hadid directly appeals the trial court’s order granting judgment to defendants D. Kent Beals and Joseph Lett. Because we find that the trial court’s order was interlocutory, we dismiss the appeal.

The record shows that Hadid obtained a consent judgment against Atlanta Travel Service, Inc. (“ATS”). During postjudgment discovery, Hadid learned that ATS’s only asset was an office safe which could not be located. Hadid filed the instant action seeking to pierce ATS’s corporate veil and hold ATS’s shareholders, Beals and Lett, liable for the consent judgment. Beals and Lett answered the complaint and admitted both the existence of the consent order and that they were shareholders. Beals also filed a counterclaim against Hadid in which he alleged that Hadid was hable for abusive litigation “pursuant to O.C.G.A. §§ 51-7-80 through 51-7-85” and 9-15-14.

When the case was called for trial, Lett moved to dismiss based on a lack of personal jurisdiction and both defendants moved to dismiss based on res judicata. After reviewing responsive materials filed by Hadid, the trial court entered judgment in favor of both defendants on Hadid’s complaint. Although the trial court referred to the judgment as a “final judgment,” the court did not resolve Beals’ counterclaim. Hadid filed this direct appeal asserting that the trial court erred in granting judgment to the defendants.

Decided June 17, 1998.

Baylor B. Banks, for appellant.

Ragsdale, Beals, Hooper & Seigler, Gary W. Hatch, Kilpatrick Stockton, William F. Long III, for appellees.

In light of Beals’ pending counterclaim, the trial court’s judgment is interlocutory, and because Hadid filed a direct appeal, we have no jurisdiction to consider the matter. See Hogan Mgmt. Svcs., P. C. v. Martino, 225 Ga. App. 168 (2) (483 SE2d 148) (1997). In this regard, OCGA § 9-11-54 (b) provides that “[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. . . .” (Emphasis supplied.) Under this Code section, the mere designation of a judgment as “final” is not controlling. See Eckland v. Hale & Eckland, P.C., 231 Ga. App. 278 (498 SE2d 358) (1998). OCGA § 9-11-54 (b) clearly requires that there must be “an express determination that there is no just reason for delay.” See id.; Martino, supra.

Because the trial court’s order in this case is devoid of any such express determination, and Hadid failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), we do not have jurisdiction and accordingly dismiss the appeal. See Eckland, supra.

Appeal dismissed.

Pope, P. J., and Beasley, J., concur.

       Our decision here does not address the viability or merits of Beals’ abusive litigation counterclaim which he purportedly filed pursuant to OCGA §§ 51-7-80 through 51-7-85, and 9-15-14.


author: Pope, Presiding Judge.

text:
    A98A0282.
    G. MANSOUR, INC. v. MANSOUR’S, INC.
    (503 SE2d 304)
   Pope, Presiding Judge.

Plaintiff G. Mansour, Inc. claims that it was fraudulently •induced to enter into a sublease agreement with defendant Man-sour’s, Inc. G. Mansour, Inc. appeals the grant of summary judgment to Mansour’s, Inc. We affirm.

This case involves complicated business relationships between the various members of one family. “In determining whether the trial court properly granted summary judgment... we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party.” Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997). The record shows that Nasor and Mary Mansour opened Mansour’s Department Store in LaGrange, Georgia in 1917. In the 1940’s, the Mansours’ three sons, Nasor, Jr., Alfred, Sr. and George, Sr., began working in the store and later incorporated the business under the name, Mansour’s, Inc. (“Man-sour’s”), the appellee in this case. During this period, Mansour’s sold ladies’, children’s and men’s clothing. Over time, the Mansour brothers began bringing their own sons into the business.

By 1977, however, the Mansour brothers agreed that George, Sr. would leave Mansour’s and spin off the men’s clothing department into his own company. Mansour’s retained the ladies’ and children’s departments. This decision was based upon a number of factors, including George, Sr.’s belief that the merchandise he purchased for the men’s department was being monitored by his brothers and his disagreement with the allocation of expenses given to that department by the store’s comptroller. As a part of the spin-off from Man-sour’s, George, Sr. formed a new corporation, appellant G. Mansour, Inc. (“G. Mansour”), to run his men’s clothing store.

At around the same time, but prior to the completion of the spinoff, George, Sr. opened a jeans store called “The Tab” as a completely independent business and formed a separate corporation called G. Mansour & Sons, Inc. to operate the store. The Tab began selling jeans products, but eventually expanded into other ladies’ and children’s clothing, even carrying some of the same lines as Mansour’s. To that extent, therefore, it competed with Mansour’s for business. Appellant G. Mansour later acquired G. Mansour’s & Sons, Inc. including The Tab, and became a direct competitor of Mansour’s to the extent of The Tab’s business. Two of George Sr.’s sons, Beau and Jerry, left Mansour’s to join him and a third son, Ricky, in running the new business.

By late 1983, Mansour’s had decided to open a store in Columbus, Georgia. Mansour’s planned to lease 60,000 square feet of retail space in Columbus, and to designate 10,000 square feet of that space either for its own men’s department or for a sublease to an outside men’s store. After Mansour’s had discussions with several retailers about using the space, it agreed to sublease the 10,000 square feet to G. Mansour. All the terms of this agreement were negotiated between Freddie Mansour, president of Mansour’s, and Beau Mansour, then president of G. Mansour; no other Mansour family members participated in the discussions. One of the terms agreed upon at Mansour’s insistence was that G. Mansour would close its jean store, The Tab. That and other terms were memorialized in a letter from Beau Man-sour to Freddie Mansour in November 1983 and later incorporated into the parties’ sublease.

The parties’ dispute centers around terms that do not appear either in the November 1983 letter or the sublease. G. Mansour asserts that Beau and Freddie Mansour also agreed to the following terms: (1) that Mansour’s would act as agent for G. Mansour in negotiating the lease agreement on the Columbus property in an effort to get a better rental rate; (2) that G. Mansour would not be allowed to negotiate directly with the property manager on the terms of its sublease; and (3) that G. Mansour would get the same rental rate in its sublease that Mansour’s received on its lease. This assertion is based on conversations that George Sr., Ricky and Jerry Mansour each had with Beau Mansour and upon Ricky Mansour’s recollection that Nase Mansour, an officer of Mansour’s, told him when the sublease was signed that G. Mansour and Mansour’s would be paying the same rental rate. Freddie Mansour denies that he and Beau ever agreed to these terms, and Nase Mansour denies making any such representation. The record contains no testimony from Beau Mansour.

On June 11, 1984, Mansour’s entered into a 20-year lease agreement on the Columbus property. Under the terms of the lease, Man-sour’s was to pay a rental rate of $390,000 per year, or $6.50 per square foot. Mansour’s and G. Mansour then entered into a renewable five-year sublease on July 25, 1994. The sublease called for an annual rental rate of $90,000 per year, or $9 per square foot. G. Man-sour did not review the original lease Mansour’s signed on the property before it signed the sublease, and, in fact, never asked for or saw a copy of the lease until 1992, eight years later.

The parties’ sublease specifically provided that it was not to be construed as creating a. relationship of principal and agent or joint venture between the parties, but simply that of lessor and lessee. The sublease also contained a merger clause that stated: “This lease contains the entire agreement between the parties concerning the demised premises and no prior oral or written statements or representations, if any, of any party hereto or any representative of a party hereto, not contained in this lease shall have any force or effect. The lease shall not be modified or amended except by an agreement in writing executed by the parties.”

G. Mansour exercised its option to renew the sublease on two occasions. The first occurred before the corporation claims it was aware of the discrepancy in rental rates and the second time occurred after it initiated litigation against Mansour’s.

1. G. Mansour claims that it was fraudulently induced into signing the sublease by Mansour’s misrepresentations regarding the negotiations on the property and the respective rental rates the parties were paying. “A party claiming he or she was fraudulently induced to enter a contract has two possible remedies: (1) to promptly rescind the contract after discovering the fraud and sue in tort for the recovery of the contract’s consideration, as well as any other damages resulting from the fraud; or (2) affirm the contract and sue for damages resulting from the fraud. Where the party elects the second option and affirms the contract, however, he or she is bound by its terms.” (Citations omitted.) Kaye v. Ryland Group, 228 Ga. App. 742, 743 (492 SE2d 729) (1997).

It is clear that G. Mansour has chosen the second option and affirmed the sublease. After learning that it was not paying the same rental rate as Mansour’s, G. Mansour continued to conduct its business under the sublease and even renewed it for a second time. “ ‘Ordinarily (one) who knowingly accepts and retains any benefit under a contract which he has been induced to make by fraud, after he has knowledge of such fraud, affirms the validity of the contract and will not be heard thereafter to repudiate it. [Cits.]’ Legg v. Hood, 154 Ga. 28, 29 (2) (113 SE 642) (1922).” Hamilton v. Advance Leasing & Rent-A-Car, 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

Thus, the sublease’s merger provision “would estop [G. Mansour] . . . from arguing that [it] relied on representations other than those contained in the contract.” (Citations omitted.) Kaye v. Ryland Group, 228 Ga. App. at 743. “The presence of a merger clause ... is determinative if the defrauded party has not rescinded but has elected to affirm the contract. . . .” (Citations and punctuation omitted.) Hamilton v. Advance Leasing, 208 Ga. App. at 850 (2); see Garcia v. Charles Evans BMW, 222 Ga. App. 121, 122 (473 SE2d 588) (1996) (a plaintiff’s failure to rescind lease containing merger clause “is fatal to his claim in tort for fraud”). Under these circumstances, G. Mansour has waived its right to rely on any alleged oral misrepresentations that Mansour’s was acting as its agent or that the two companies were paying identical rental rates.

2. G. Mansour further claims that summary judgment was improper because a jury question remains as to whether a confidential relationship existed between the parties. G. Mansour contends it was relying on that relationship in signing the sublease and thus should not be bound by the terms of the agreement. However, “[i]t is well established that ‘the mere fact that one reposes trust and confidence in another does not create a confidential relationship. In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.’ (Citations and punctuation omitted.) Kienel v. Lanier, 190 Ga. App. 201, 203 (2) (378 SE2d 359) (1989). Moreover, courts have held that a confidential and fiduciary relationship is not presumed between brothers or close, personal friends, but ‘must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.’ (Citation and punctuation omitted.) Hancock v. Hancock, 223 Ga. 481, 486 (1) (c) (156 SE2d 354) (1967); Charles v. Simmons, 215 Ga. 794 (1) (113 SE2d 604) (1960).” Harish v. Raj, 222 Ga. App. 248, 250 (1) (474 SE2d 624) (1996) (affirming trial court’s summary judgment to defendant on issue of confidential relationship).

Even if G. Mansour could show the parties “ ‘owed each other a fiduciary duty in other respects, there is no basis in this case for an inference that a fiduciary or confidential relationship existed between them with respect to the transaction at issue! (Emphasis in original.) [Cit.]” Allen v. Hub Cap Heaven, 225 Ga. App. 533, 537 (4) (484 SE2d 259) (1997). Although the Mansour family had a history of intertwined business dealings, the record demonstrates that in this transaction the parties were operating at arms’ length. Mansour’s made the decision to open a store in Columbus completely independent of G. Mansour. George Mansour, Sr. and Jerry Mansour testified that they learned of Mansour’s decision to move to Columbus by reading about it in the paper and that Mansour’s was committed to go to Columbus before it began talking to G. Mansour. Mansour’s spoke with several retailers before negotiating with G. Mansour to sublease the extra space in Columbus. Mansour’s and G. Mansour were to some extent competitors during the time of the negotiations, and Mansour’s required the closing of G. Mansour’s competing store as a condition for the sublease. Further, Ricky Mansour testified that he was concerned that G. Mansour did not have its own attorney review the sublease at the time it was signed because Mansour’s and G. Mansour were on different “sides” of the sublease.

The sublease, therefore, was not part of a transaction in which the parties “ ‘joined together as partners, promoters, joint venturers, or otherwise, to achieve a common business objective. Rather, the parties were engaged in a transaction with each other in an effort to further their own separate business objectives. Under such circumstances, (one party) was not under any duty to represent or advance the (other’s) interests. [Cit.]’ (Emphasis in original.)” Id. Under these circumstances, the trial court correctly could have found that no confidential relationship existed as a matter of law.

Decided June 17, 1998.

Denney, Pease, Allison & Kirk, John W. Denney, Elizabeth S. Morgan, for appellant.

Willis, McKenzie & Long, Charles J. Willis, Dewey R. McKenzie, Jr., for appellee.

Judgment affirmed.

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

       Throughout the relevant time, the three Mansour brothers also were shareholders and directors of Mansour Realty, Inc., but no transactions involving this corporation are at issue in the case.

       Although G. Mansour asserts in response to a request to admit that it renewed the sublease the second time “under protest of the rental rate,” there is nothing in the record to reflect this protest or any reservation of rights in that regard.


author: Beasley, Judge.

text:
    A98A0576.
    RICKETSON et al. v. BANKERS FIRST SAVINGS BANK, FSB et al.
    (503 SE2d 297)
   Beasley, Judge.

This case presents the question of whether a certain right of first refusal to buy property was a personal covenant (contract) or a covenant running with the land (servitude). The Ricketsons appeal the bench trial decision that the covenant was personal as to the original parties and not enforceable against Bankers First Savings Bank and Federal Paperboard Company, successors in title.

In May 1987 the Ricketsons purchased 177.32 of 318.19 acres of land owned by William Greene, Jr. The unrecorded closing statement, but not the recorded deed, stated: “Seller covenants that on any future sales of any remaining portion of any property that W. A. Greene, Jr., will offer a first right of refusal on the remaining property which right of refusal by Purchasers and the price paid in full not later than thirty (30) days from the date that a bona fide offer and contract to purchase is executed. Failure on the part of the Purchasers to give written notice of their intention to exercise the right of refusal within ten (10) days from the date of written notice of the intended sale shall terminate Purchasers’ right of refusal and all rights of in and to remaining lands of Seller.”

Greene’s remaining land was the subject of several transactions before the one at issue. In June 1988, Greene gave a security deed on the property to Trust Company Bank. In March of the following year, the Ricketsons’ closing attorney recorded his personal affidavit stating that the closing documents from the Ricketsons’ purchase provided that the Ricketsons “have first refusal on the remaining property belonging to W. A. Greene, Jr.” Three weeks later, Greene gave a security deed on the property to appellee Bankers First Savings Bank, FSB, subject to the Trust Company deed, and “subject to the right of first refusal as reflected by the affidavit. . . .”

The next year, 1990, Greene filed for bankruptcy and applied to the bankruptcy court to abandon his remaining 140.87 acres to Bankers First in liéu of foreclosure in extinguishment of the debt to the bank. This debt included the Trust Company Bank debt because Bankers First had purchased that debt from Trust Company and had taken an assignment of the corresponding deed to secure debt. The court approved and the property was transferred to Bankers First by a deed in lieu of foreclosure on June 25. Three days later, Greene’s father, W. A. Greene, Sr., purchased the property from Bankers First and took title by warranty deed. He borrowed the purchase money from Bankers First and executed a deed to secure debt to the bank.

The Ricketsons learned of these events sometime “around” that same June. Although the Ricketsons submitted an offer to purchase the property during the bankruptcy proceeding, they never specifically made demand or sued Greene or Bankers First for any violation of the right of first refusal in connection with the two June property transactions.

In September 1991, the Ricketsons received a joint letter from both Greenes which gave notice of a third party’s contract to buy some of the remaining land then owned by the father and offered to sell pursuant to the Ricketsons’ “first right of refusal” contained in the closing statement. As a result, Greene, Sr. sold approximately 46 of the remaining acres to the Ricketsons.

Greene, Sr. was unable to meet his obligations under the purchase money note in July 1993. Bankers First foreclosed the remaining 95.19 acres, taking title pursuant to a deed under power of sale. The bank sold the property to Federal Paperboard in June 1994.

In this suit filed in November 1995, the Ricketsons allege the sale to Federal Paperboard was made in violation of their right of first refusal. They do not contest any of the earlier transfers. Questions were raised at trial about where certain deeds were recorded, the effect of the affidavit and of the September 1991 letter, and whether Federal Paperboard had actual or constructive notice of the covenant. The trial court’s ruling, based solely on a determination that the covenant did not run with the land, is the subject of both enumerations of error.

1. A covenant running with the land binds subsequent owners with or without notice of the covenant. The benefit or the burden of a covenant may run to the covenantee’s or the covenantor’s successors respectively. The Ricketsons contend the burden of the affirmative covenant ran to obligate seller Greene’s successors in interest and constituted a servitude on the 95.19 acres which landed in the hands of Federal Paperboard.

Georgia courts have expressed the requirements of running with the land thusly: “ When the covenant is of a collateral nature to the land, it is a personal obligation and does not run with the land. . . . A covenant runs with the land when either the liability for its performance or the right to enforce it passes to the assignees of the land itself. In order that it may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties.’ Atlanta Consolidated St. R. Co. v. Jackson, 108 Ga. 634, 638-9 (34 SE 184) (1899), quoting from 2 Kerr on Real Prop. § 1218.”

Similarly, quoting from American Jurisprudence, this Court has recognized that “ ‘[i]t is essential ... to the creation of a covenant running with the land that it attach to, or be annexed to, some interest or estate therein and that it relate to or concern the land or estate conveyed and the use, occupation, or enjoyment thereof. ... In the event that the act to be performed is merely collateral to the land and does not relate to the property demised, then the assignee is not charged, though named in the covenant. The covenant is merely personal, and does not affect the land demised. Unless the agreement of the parties contains some element of a covenant which runs with the land, it can not be enforced at law, and a future grantee will hold the land free and clear.’ ” But where the covenant conveys access to an interest in land, such as an easement, which is appurtenant to the land, it will be construed as running with the land in the absence of language clearly showing the intention to create mere personal interests.

Aside from all questions of proper recordation of the covenant, the effect of the affidavit,, or who had actual or constructive notice of the covenant, the decisive issue is whether the burden imposed by the covenant on Greene affects the nature, quality, value, use, occupation, or enjoyment of the 95.19 acres.

The burden of the covenant is the obligation to sell the land to the Ricketsons rather than to someone else at the same price the latter is willing to pay. If the right is exercised, the only difference in result is who owns the property. The nature, value, use, quality, occupation and enjoyment of the property remain unchanged. The covenant does not run with what was Greene’s remaining land.

Hornsby v. Holt is not on point. The Supreme Court addressed whether a right of first refusal is breached by a sale under power of a security deed. There is a similar transaction here, the June 25, 1990 transfer to Bankers Trust, but it is not the subject of this suit. Hornsby may be authority for setting aside that transaction but not for the sale to Federal Paperboard. Similarly, in Hinson v. Roberts the sale in question was the first by the covenantor (through his estate) and not a subsequent transaction for which the right would have to run with the land. Scott v. Lester is likewise. Neither Hasty v. Health Svc. Centers, Shiver v. Benton nor Columbia Nitrogen Corp. v. Dean’s Power Oil Co. involves any question of whether a right of first refusal runs with the land.

2. The language of the covenant does not require a different result by indicating that it runs with the land or that it applies to Greene’s successors or assigns. Although the absence of these words is not determinative, their absence is relevant. “A promise respecting the use of land may be intended to be purely personal. It may be intended to be performed by the promisor only and to be binding upon him alone. There is no rule of law which will prevent such an intention from being effective. On the other hand, it may be intended that the successors of the promisor shall be bound as he was bound. Though it is possible that they may not become bound even though it was intended that they should be, since intention alone is not enough to cause them to be bound, they will not be bound unless it was intended that they should be.”

Decided June 17, 1998

Jay M. Sawilowsky, for appellants.

Warlick, Tritt & Stebbins, Charles C. Stebbins III, for appellees.

Such an intention was not expressed by the parties, the covenant was not recorded, and no action was taken to enforce the obligation until suit was filed against subsequent owners of the land. Greene’s obligation to the Ricketsons did not encumber the land so as to bind the appellees, as it was merely contractual and personal to Greene.

Judgment affirmed.

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

        Wardlaw v. Southern R. Co., 199 Ga. 97, 98 (1) (33 SE2d 304) (1945).

       See Jones v. Gaddy, 259 Ga. 356, 359 (2) (380 SE2d 706) (1989). See generally Powell on Real Property, Vol. 9, § 60.04 [1] (1998).

        Copelan v. Acree Oil Co., 249 Ga. 276, 277-278 (2) (290 SE2d 94) (1982). See also Restatement of the Law Third, Property (Servitude) § 1.3 (Tentative Draft No. 7, April 15, 1998) (definition).

        Goldberg v. Varner, 72 Ga. App. 673, 676, 677 (34 SE2d 722) (1945).

        Barton v. Gammell, 143 Ga. App. 291 (238 SE2d 445) (1977). See also Feckoury v. Askew, 244 Ga. 128, 130 (259 SE2d 70) (1979) (covenant of appurtenant easement runs with land).

       Cf. Feider v. Feider, 699 P2d 801, 803-804 (Wash. App. 1985) (right of first refusal did not touch and concern land or run with land of grantee).

       257 Ga. 341 (359 SE2d 646) (1987).

       256 Ga. 396 (349 SE2d 454) (1986).

       242 Ga. 730 (251 SE2d 257) (1978).

       258 Ga. 625 (373 SE2d 356) (1988).

       251 Ga. 284 (304 SE2d 903) (1983).

       136 Ga. App. 879 (222 SE2d 602) (1975).

        Feckoury v. Askew, supra, 244 Ga. at 129.

       See Jones v. Gaddy, supra, 259 Ga. at 358 (2) (court must determine grantor’s intent).

       Restatement of Property § 531, Comment a (1944).


author: Smith, Judge.

text:
    A98A0756.
    A98A0757.
    LANE et al. v. KEN THOMAS OF GEORGIA, INC. et al. CHARLES EVANS BMW, INC. v. LANE et al.
    (503 SE2d 94)
   Smith, Judge.

Reese and Geraldine Lane brought suit against Ken Thomas of Georgia, Inc. d/b/a Ken Thomas BMW (Thomas BMW), Charles Evans BMW, Inc. (Evans BMW), and BMW of North America, Inc. (BMW NA), seeking damages for injuries allegedly suffered by Geraldine Lane and loss of consortium when the doors and windows of a BMW car driven by Geraldine Lane “locked up,” causing her to become trapped and unable to exit the car.

After discovery, all three defendants filed motions for summary judgment. The trial court granted the motions of Thomas BMW and BMW NA, finding that no genuine issues of material fact remained as to these defendants. The court granted partial summary judgment to Evans BMW, finding that no genuine issues of material fact remained as to any issue except Evans BMW’s negligence.

In Case No. A98A0756, the Lanes appeal from the grant of summary judgment to Thomas BMW and BMW NA and the grant of partial summary judgment to Evans BMW. In Case No. A98A0757, Evans BMW cross-appeals from the denial of its motion for summary judgmént on the issue of negligence. Our review persuades us that no genuine issue of material fact remains for jury resolution as to any of the Lanes’ claims against any of the defendants. We conclude that the trial court was correct in granting summary judgment to Thomas BMW and BMW NA on all issues but incorrect in denying summary judgment on all issues to Evans BMW. We therefore affirm the judgment below in the main appeal and reverse the judgment below in the cross-appeal.

In September 1994, Reese Lane purchased a 1995 BMW 525 car for his wife. Although the Lanes resided in Columbus, the car was purchased in Gwinnett County from Evans BMW. Several months later, in February 1995, the Lanes received notice of a recall campaign concerning the car. The notice stated that a defect existed in the central locking system, making it susceptible of being unintentionally engaged, thereby trapping someone in the car. The notice instructed the Lanes to contact their authorized BMW dealer for a free repair. The Lanes returned to Evans BMW on April 8, 1995 for this recall campaign repair. They waited while the recall campaign repair and some other scheduled maintenance work was done and drove the car home to Columbus.

On February 21, 1996, Geraldine Lane drove the BMW home from work. According to her, the car “locked up” in her driveway, trapping her in the car. Unable to open the locked doors or break the glass even after beating on it with her umbrella and her shoe, she eventually escaped by opening the sunroof. While climbing out she bruised her right thigh. The car was towed to Thomas BMW in Columbus.

Ronnie Carroll, the Parts and Service Director for Thomas BMW, testified by affidavit that the general control module in the Lanes’ car when it was towed in was removed, tested, and found to be operating properly. Carroll testified on his deposition that the car’s history was first checked on the dealership’s computer, which showed that the recall campaign repair in issue had been performed at Evans BMW. Carroll tested the general control module in the car to see if it was performing properly. He also instructed his technicians to remove the module governing the locking mechanism and replace it with another module, so the car could be tested with a replacement module. The car performed properly with both modules. In addition, the computer showed no fault codes in the system that would indicate any fault in the last 100 starts. After he learned from a BMW NA representative that the general control module removed from the Lanes’ car was the correct module, it was reinstalled in their car, and Carroll informed both Reese Lane and the Lanes’ attorney. Since that time, however, Geraldine Lane has refused to drive the car.

The Lanes filed this action alleging breach of contract, breach of warranty, fraud, conspiracy to defraud, negligence, strict liability, and loss of consortium, alleging they suffered serious physical and mental injuries. On appeal, their enumeration of errors consists simply of two very general statements that the trial court erred in granting both summary judgment and partial summary judgment.

1. We note initially that the Lanes have not presented argument as to their theory of strict liability. It is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

2. The Lanes argue that several contracts were breached. On appeal, they identify for the first time these contracts allegedly breached. They claim that the recall campaign notice constituted an offer and that taking their BMW to Evans BMW constituted an acceptance of the offer, forming a valid contract. They also claim they were third party beneficiaries of a contract between BMW NA and each of the dealerships to perform the recall campaign repairs. But, the Lanes’ complaint did not specify the contract the defendants are alleged to have breached. And in the trial court, the Lanes produced nothing but generalized conclusory statements that a contract existed and was breached. It is well established that they cannot now remedy their failure to establish this theory below. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 766 (4) (431 SE2d 746) (1993). But even if their attempt on appeal to remedy this omission in various ways is considered, their contentions lack merit.

The Lanes have not established the existence of any contracts, and the defendants argue persuasively that none existed among these parties. But we need not address the existence of the contracts because, even if we assume they existed, the Lanes have not demonstrated a breach on the part of any of the defendants. “[I]n response to a summary judgment motion, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” Richard Haney Ford v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 319 (2) (a) (461 SE2d 282) (1995). The Lanes did not do so.

Their brief reveals that they base their speculation of wrongdoing supporting their theories of recovery, both in contract and tort, upon conversations with unidentified persons in which they were told that the wrong replacement general control module was placed into their car. This constituted incompetent hearsay.

This hearsay is in turn “supported” by their showing that the service information bulletin sent to dealers specified a part number for the general control module that ended in the numerals “574,” while the part placed in their car bore a number ending in the numerals “571.” But this “support” fails because the discrepancy between the two numbers was explained adequately and completely in the testimony and affidavits relied upon by the defendants in support of their motion for summary judgment.

Ronnie Carroll testified that several persons at BMW NA, whom he called for assistance, explained to him why the module in the Lanes’ car had a number stamped on it that was different from the number specified in the service information bulletin associated with the recall campaign repair. In an affidavit, the parts manager at Evans BMW also explained the discrepancy. BMW does not manufacture the components; it purchases various components from different manufacturers. The number ending in “571” on the replacement module was the “casting number” or “manufacturing number” given the part by its manufacturer, to aid in identifying where or when it was manufactured, and is not a valid BMW part number. The identical part was assigned the number ending in “574” by BMW.

The technician at Evans BMW who performed the repair stated in an affidavit that the defective general control module was replaced with the proper replacement part. The service manager at Evans BMW stated in an affidavit that the repair was done properly.

The mere allegation that Geraldine Lane was unable to exit her car did not demonstrate that any of the defendants breached any contract by failing to perform the recall repair. Motorola v. Ward, 223 Ga. App. 678, 679 (1) (478 SE2d 465) (1996). The Lanes only speculated that the defendants either failed to repair the defective module or replaced it with an incorrect part. The defendants, on the other hand, presented affirmative evidence that the module was replaced properly in accordance with the recall campaign directive. The trial court did not err in granting summary judgment to all defendants on the Lanes’ claim for breach of contract.

3. The Lanes’ claim of breach of warranty is similarly without merit. Like their breach of contract claim, the Lanes have failed to show even the existence of a warranty, much less a breach. No warranty was extended by any of these defendants in connection with the sale of the car to the Lanes. It is undisputed that Evans BMW sold the Lanes the car “as is.” Under Georgia law, implied warranties are excluded by that term if it is in writing and conspicuous. OCGA § 11-2A-214 (3) (a). The term appears on the bill of sale in bold and conspicuous letters, and any warranty was therefore excluded. The only warranty extended in connection with the purchase was that offered by the manufacturer, which is not a party to this litigation.

Evans BMW did not offer any warranties for the recall repair. Evans BMW offers warranties on workmanship and materials only on non-warranty repairs, when the work is paid for by the customer. The Lanes point to no warranties offered them by BMW NA or Thomas BMW. But even if the Lanes could show that such warranties existed, they cannot show a breach. BMW NA did not manufacture the car. It was designed and manufactured by a German company. BMW NA did administer the recall campaign and send out the notices. But it manufactured no parts, and the evidence showed that the recall campaign repair was accomplished properly. It is undisputed that no failures have occurred since the incident on February 21, 1996. Thomas BMW had no contact with the Lanes or their car before that time. And Thomas BMW presented competent evidence that the module reinstalled by it was the correct module.

When the defendants produced evidence that no warranties existed or were breached, the Lanes could no longer rest on their aliegations. They had a duty to come forward with evidence creating a genuine issue of fact on this issue or suffer summary judgment against them. Because they failed to do so, the trial court did not err in granting summary judgment to all defendants on this issue. Richard Haney Ford, supra.

4. The same is true with regard to the Lanes’ allegations of fraud. It appears that the fraud alleged lies in the representation that the recall repair was done properly when it was not. They again appear to maintain that simply because “the uncontroverted evidence is that the lockdown incident occurred exactly as described by Plaintiff Geraldine Lane and as previously predicted by BMW NA,” a fraud was perpetrated. The Lanes have simply thrown up their hands, claiming that “the switching of modules has made it impossible to determine what module was in the car originally, what module was put in the car by Charles Evans and what module was actually tested by Ken Thomas. All of these issues involve subtleties that cannot be answered as a matter of law and must be submitted to a jury for resolution.” We do not agree.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). The Lanes cannot present such evidence with regard to any of these defendants. They cannot show, for example, that they suffered any damage as a result of Thomas BMW’s actions because the car has not malfunctioned since it was worked on at Thomas BMW. They cannot show scienter or intent to induce as these pertain to the remaining defendants because Reese Lane testified on his deposition that he did not believe BMW NA or Evans BMW intended to trap Geraldine Lane in her car. Additionally, and perhaps most importantly, they cannot point to any representations made by any of the defendants that were false and known to be false. The trial court did not err in granting summary judgment in favor of all defendants on the Lanes’ fraud claim.

5. Because the Lanes cannot support their fraud claim against any of the defendants, it follows that they cannot support their assertion of a claim for conspiracy to defraud.

6. The same facts underlie the Lanes’ claim against the defendants sounding in negligence. All defendants produced competent evidence that they acted properly and without negligence. The Lanes again rested upon the same unsupported allegations regarding the placing of an incorrect module in their car. As discussed above, this was insufficient to avoid summary judgment. Because no genuine issue of material fact existed with regard to any of the defendants, including Evans BMW, the trial court was correct in granting summary judgment on this issue in favor of Thomas BMW and BMW NA, but erred in denying Evans BMW’s motion for summary judgment on this issue.

Decided June 17, 1998.

Peter G. Williams, for Lane et al.

William P. Claxton, Jennifer M. Daniels, for Charles Evans BMW, Inc.

Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, for Ken Thomas of Georgia, Inc.

7. Defendant Thomas BMW has moved this Court to impose sanctions upon the Lanes pursuant to Court of Appeals Rule 15 (b) for pursuing a frivolous appeal. We agree with Thomas BMW that the Lanes and their attorney had no reason to believe they could prevail on any of their theories of recovery, at least as to Thomas BMW. Accordingly, we impose jointly upon the Lanes and their counsel a penalty of $500.

Judgment affirmed in Case No. A98A0756. Judgment reversed in Case No. A98A0757.

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


author: Blackburn, Judge.

text:
    A98A1216.
    TOMKO v. THE STATE.
    (503 SE2d 300)
   Blackburn, Judge.

Craig Tomko appeals his conviction for driving under the influence to the extent that it was less safe to drive. Because the trial court erred in refusing to give a requested jury charge tracking OCGA § 24-4-6, we reverse.

On the night of November 14, 1996, a police officer observed Tomko’s car traveling 53 mph in a 35-mph zone and, consequently, stopped the vehicle. When the officer asked for identification, he detected the odor of alcoholic beverages and noticed that Tomko’s eyes were glassy. Tomko admitted he had been drinking. The officer asked Tomko to perform several field sobriety tests: the. horizontal gaze nystagmus (HGN), the nine step walk and turn, and the one leg stand. Tomko performed poorly on each of the tests, leading the officer to believe he was an impaired driver. The officer then took a preliminary breath test from Tomko that showed a positive result for alcohol. Tomko was later administered an Intoxilyzer 5000 test that revealed a blood-alcohol concentration of 0.089. This test result was noted on the Uniform Traffic Citation (UTC) issued to Tomko. That test and its result, however, were suppressed by the trial court and is not an issue on appeal. The State prosecuted the case under OCGA § 40-6-391 (a) (1), without the suppressed evidence, arguing that Tomko was under the influence of alcohol to the extent that he was a less safe driver. Tomko moved to dismiss the case and the trial court denied said motion.

1. Tomko argues that the trial court erred in denying his motion to dismiss the case and in refusing to grant a directed verdict of acquittal on the basis that the State failed to prove every element of the DUI offense charged. Tomko argues that because the UTC contained a notation that his blood-alcohol concentration was 0.089, the State was required to prove that blood-alcohol test result to obtain a DUI conviction even though he had been charged under the “less safe” provision of OCGA § 40-6-391 (a) (1). Absent such proof, Tomko argues, there was a fatal variance between the allegata and probata. We do not agree, for if this were true, every suppression of a breath test would result in a dismissal of the case. The inclusion on the UTC of a test result, does not preclude the State from proving its case by other admissible evidence.

The UTC charged Tomko with “DUI (Alcohol) in Violation of Code Section 40-6-391 (a) (1).” This Code provision makes it illegal to drive while “[ujnder the influence of alcohol to the extent that it is less safe for the person to drive.” The test result, which is noted on the UTC in a separate section pertaining to tests administered, is simply not a part of the formal charge made. Although we have held that such notations and remarks on a UTC may apprise the defendant of the nature of the charges against him, see Shannon v. State, 205 Ga. App. 831, 833 (3) (424 SE2d 51) (1992), that does not necessarily mean they constitute formal allegations which must be proven at trial. In this case, the blood-alcohol test result was not alleged as part of the offense charged. Tomko’s arguments, therefore, are without merit.

2. Tomko contends the trial court erred in refusing to give his requested charge no. 1, which stated that “to warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the theory of guilt, but shall exclude every other reasonable theory other than the guilt of the accused.” The written request, which substantially tracks the language of OCGA § 24-4-6, is a correct statement of the law. “Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) and Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) established the bright-line rule that it is error to fail to give a request to charge on the law of circumstantial evidence as set forth in OCGA § 24-4-6 when the State’s case includes both direct and circumstantial evidence.” (Emphasis omitted.) Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995).

Here, the trial court charged the jury on the definitions of direct and circumstantial evidence and the difference between them. However, no charge on the principle embodied in OCGA § 24-4-6 was given. Tomko reserved his objection to the charge. Thus, the pivotal question is whether the State presented circumstantial as well as direct evidence of Tomko’s guilt. Waits v. State, 232 Ga. App. 357 (501 SE2d 870) (1998).

“We first note that the very fact that the trial court deemed it necessary to instruct the jury on the definition of circumstantial evidence and on the difference between circumstantial evidence and direct evidence indicates that the trial court believed the State’s case depended on both circumstantial and direct evidence, lending credence to [Tomko’s] argument.” Waits, supra.

“The distinction between direct and circumstantial evidence has best been explained this way: Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite.” Stubbs v. State, 265 Ga. 883, 885 (2) (463 SE2d 686) (1995). Applying this definition, the officer’s observation that Tomko was traveling in excess of the speed limit was direct evidence of both speeding and an unsafe act. Also, the positive result of the preliminary alcohol breath test was direct evidence that Tomko had consumed alcohol. “By the same token, the opinion testimony of a trained officer based upon his observation of an accused that the accused was impaired and a less safe driver is consistent only with the conclusion that the accused was driving in violation of OCGA § 40-6-391 (a) (1). It, too, is direct evidence.” Waits, supra. “But the evidence upon which the officer’s opinion is based must be characterized as circumstantial. Failing field sobriety tests, for instance, may be caused by illness or handicap; the odor of alcohol about one’s person may derive from alcohol inadvertently spilled on one’s clothing by another. This evidence is certainly admissible and sometimes sufficient. It is nevertheless circumstantial in nature. We conclude, therefore, that the State’s evidence of [Tomko’s] guilt did include some circumstantial evidence and that the trial court should have given the requested charge on OCGA § 24-4-6.” Id.

Considering the evidence adduced in this case, we cannot find the failure to give the requested charge harmless. Substantially the same evidence was adduced by the State in Waits and we found that it was not overwhelming. Id. Therefore, we must conclude that the failure to give this requested charge requires reversal.

Judgment reversed.

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

Decided June 17, 1998.

Jamie S. Wingler, for appellant.

June D. Green, Solicitor, Steven E. Kellis, Assistant Solicitor, for appellee.


text:
    A98A1348.
    In the Interest of M. G., a child.
    (503 SE2d 302)
   Blackburn, Judge.

M. G. appeals his delinquency adjudication only on the charge of robbery on the sole basis of the insufficiency of the evidence. A petition alleging delinquency was filed in juvenile court accusing M. G., a child, of the offenses of robbery, simple battery, and theft by taking. Following a bench trial in juvenile court, M. G. was found delinquent on all counts, but appeals only the robbery charge. We affirm for the following reasons.

“In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile[ ] committed the acts charged. In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991); see generally Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).” In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997). The standard of review on appeal in a case of a juvenile adjudication is the same as that for any criminal case. In the Interest of M. J. F., 191 Ga. App. 792 (1) (383 SE2d 173) (1989).

A person commits robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of force, intimidation, or sudden snatching. See OCGA § 16-8-40; Kurtz, Criminal Offenses & Defenses in Ga. (4th ed.), p. 770.

Viewed in the light most favorable to the verdict, the evidence shows that on April 24, 1997, Nayvadius Wilburn and Aaron Knight rode two bikes owned by Wilburn, one green and one red, to Shoal Creek Park to play basketball. As they were playing basketball, M. G. came onto the court, grabbed Wilburn around the neck, choked him, and forced him onto the ground. Wilburn fled the park.

Knight testified that he rode the red bike, the subject of the robbery charge, up the hill away from the park. M. G. rode up alongside Knight on the green bike, pushed him off the bike and ordered, “Give me the bike.” Knight gave M. G. the bike and ran away.

Decided June 17, 1998.

Linda A. Pace, for appellant.

Jonath A. Morrow, Solicitor, Jimmy L. Tarver, Lori B. Brudner, Assistant Solicitors, for appellee.

M. G. contends he was never in possession of the red bike. Although M. G. testified as to a different chain of events contradicting the victim’s testimony, “[cjonflicts in the testimony of the witnesses . . . [are] a matter of credibility for the [finder of fact] to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the [finder of fact’s] verdict will be upheld.” (Citations and punctuation omitted.) Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997). Knight testified that M. G. took the bike from him, by pushing him and commanding him to turn the bike over. The bike was never returned to its owner, Wilburn. Therefore, the elements of the State’s case for the charge of robbery have been met. OCGA § 16-8-40. The evidence construed in the light most favorable to the prosecution was sufficient to authorize the judge to adjudicate M. G. delinquent on the charge of robbery.

Judgment affirmed.


author: Birdsong, Presiding Judge.

text:
    A98A0682.
    WHITE v. THE STATE.
    (503 SE2d 26)
   Birdsong, Presiding Judge.

Earnest Ray White appeals his convictions of aggravated assault, burglary and kidnapping with bodily injury. White was sentenced to life in prison on the kidnapping charge and to 20 years on each of the other crimes with all sentences to run concurrently. Although White was also charged with harassing telephone calls, the jury acquitted him of that offense.

The victim testified that before the incident giving rise to these charges she had been introduced to White at a health club and that when they were introduced she had the opportunity to observe him in well lighted conditions from a distance of about three feet. Later, at her home, she was attacked by someone who grabbed her from behind, forced her into her home, and attempted to take off her pants. During her struggle with her attacker, she noticed that her assailant had on a shirt with a name tag and the name began with “Ray.” Ultimately, she broke free, grabbed a gun that she had, and forced her assailant to leave. At the time of the attack, she got a good look at her assailant in well lighted conditions, and after the incident she was able to provide a detailed description to the police.

Later, while the victim was at the police station assisting in the preparation of a composite drawing of the man who attacked her, her boyfriend, who was also present, observed the composite drawing and identified White to the police, but not to the victim, as the person in the drawing. Subsequently, the victim picked out a photograph of White as the person who attacked her, and then picked out White in a lineup. The victim also identified White’s voice as that of the person who had been making unwanted telephone calls to her. During the trial, the victim also made an in-court identification of White as the man who attacked her.

The victim’s boyfriend testified that he had known White for several years prior to the attack and had socialized with him somewhat frequently. As a consequence, he was able to identify White from the composite drawing the police prepared with the victim. Further, he was present at the lineup, saw the man the victim identified, and immediately knew him to be White.

White’s sister-in-law, ex-wife, and co-workers testified that they were with White at such times that, if believed, could have provided an alibi for him. Additionally, White also testified and denied that he committed any of the crimes for which he was charged and also stated that he was either at work or having lunch with his mother at the time the victim claims she was attacked.

On appeal, White contends the trial court erred by denying his motions for a directed verdict of acquittal and for a new trial because the prosecution did not rebut his alibi defense for which he had given proper notification under OCGA § 17-16-5. He asserts that as a result of the notification of alibi defense, the State has not carried its burden of proving his guilt beyond a reasonable doubt. Held:

Although White separated his arguments into two enumerations of error, they both concern the sufficiency of the State’s evidence. Therefore, we shall consider the two enumerations in the same discussion because the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187). Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, White no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we do not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Decided May 27, 1998

Reconsideration denied June 18, 1998

Lawrence E. Maioriello, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Nancy B. Johnson, Assistant District Attorneys, for appellee.

The transcript shows that the victim in this case made both an out-of-court and an in-court identification of White as the man who attacked her and forced his way into her home. This testimony alone is sufficient to support the convictions. Thus, having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found White guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, supra; Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

We find no support in our law for White’s contention that his alibi defense placed the burden on the prosecution to file a rebuttal to the notification under OCGA § 17-16-5 (b). Although this new Code section on alibi is part of the recent reciprocal discovery laws passed by our legislature, it is a means for discovery by the State. Thus, obligations under OCGA § 17-16-5 are triggered not by a defendant’s notice, but by the State’s demand. OCGA § 17-16-5 (a). Consequently, the State had no obligation to file a formal reply to White’s notice; White’s enumeration of errors are without merit.

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A98A0844.
    ROSS v. THE STATE.
    (503 SE2d 308)
   McMurray, Presiding Judge.

Defendant Claud W. Ross, Sr. was tried before a jury and found guilty of aggravated stalking (Counts 1 and 2), family violence battery (Count 3), family violence simple battery (Count 5), and cruelty to children in the first degree (Count 6). His motion for new trial was denied and this appeal followed. Held:

1. Defendant first contends the trial court erred in allowing the State’s Attorney to comment and refer to similar transaction evidence in the State’s opening statement. He argues this procedure amounts to introduction of similar crimes before the State has put up its case-in-chief, and so conflicts with the holding of the Supreme Court of Georgia in Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423). We disagree.

Before opening statements commenced, defendant objected to certain demonstrative evidence listing both the charged crimes and certain similar transactions previously ruled admissible. The trial court ruled “[i]n the opening [statement] it’s not evidence and . . . [did] not limit either [attorney]. . . . [B]ut during the trial of the case, [the State’s Attorney was directed] first to cover what [defendant’s] charged with now, [before] going into similar crimes, [at which point, the trial court intended] to charge the jury as to the purpose for that.”

“A prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case. Burroughs v. State, 186 Ga. App. 40, 43 (366 SE2d 378).” Flournoy v. State, 221 Ga. App. 96, 97 (1) (470 SE2d 488) (physical precedent). In the case sub judice, the trial court had previously ruled the similar transaction evidence admissible. “The State’s reference to such evidence in opening statement does not improperly place [defendant’s] character in evidence before trial, for [admissible similar transaction evidence] does not improperly place [defendant’s] character in evidence at all.” (Emphasis omitted.) Flournoy v. State, 221 Ga. App. 96, 97 (1), supra.

2. Next, defendant contends the trial court erred in refusing to grant a mistrial.

During the State’s direct examination of defendant’s 14-year-old son, the following transpired in the presence of the jury: “[STATE’S ATTORNEY]: As you look back over the course of your . . . young life, you said you can’t think back to a time when your mom and dad weren’t arguing? [Whereupon, defendant objected:] [DEFENSE COUNSEL]: Your Honor, I think [the State’s Attorney] needs to deal with the similar transaction if he’s going to go into anything. . . . THE COURT: Well, you would be allowed to do that at this point in time if he can remember any of it. [DEFENSE COUNSEL]: Your Honor, [the State’s Attorney] made it clear to me about [excluded proof of] prior difficulties between the parties on both parts, and what’s good for the goose is good for the gander. [STATE’S ATTORNEY]: Well, Your Honor, I don’t have any problem with pulling out the file on that man[, whereupon defendant moved for a mistrial].”

The trial court then held a conference at the bench, outside the hearing of the jury, during which the trial court admonished the State’s Attorney “don’t refer to . . .a file any more. . . . Understand, don’t refer to it because it makes it sound worse.”

“If a court overrules a motion for a mistrial [but] gives corrective instructions, and thereafter counsel fails to request further instructions or [fails to] renew the motion for a mistrial, an enumeration raising this ground is without merit. Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977).” Tidwell v. State, 219 Ga. App. 233, 237 (4) (464 SE2d 834). The record in the case sub judice reflects defendant did not thereafter renew his motion or object to the court’s rebuke to the State’s Attorney. Consequently, the denial of the mistrial was not preserved for appellate review. Woodham v. State, 263 Ga. 580, 582 (3) (439 SE2d 471).

Decided June 18, 1998.

Richard Thurman, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Johnson, Judge.

text:
    A98A0584.
    A98A0585.
    NORTH FULTON MEDICAL CENTER, INC. v. STATE HEALTH PLANNING AGENCY. NORTHSIDE HOSPITAL, INC. v. NORTH FULTON MEDICAL CENTER, INC.
    (503 SE2d 47)
   Johnson, Judge.

These appeals involve the validity and application of an administrative agency rule allowing an applicant to relocate an ambulatory surgical center without having to meet certain criteria required for opening a new facility. For the reasons which follow, the superior court judgment affirming the agency’s decision granting the application is reversed in Case No. A98A0584. Case No. A98A0585 is dismissed as moot.

Northside Hospital sought to open a new ambulatory surgical center. OCGA § 31-6-40 (b) requires that anyone proposing to develop or offer a new health care facility apply to the State Health Planning Agency and obtain a certificate of need (“CON”), unless the proposed activity is excluded from the statute. To obtain a CON an applicant must show, among other things, that the center will serve at least 150,000 people (the “service requirement”). Rule 272-2-.09 (1) (b) (3) (iii) (Official Rules & Regulations of the State of Georgia). North-side’s application was repeatedly declined by the planning agency because it did not meet the service requirement. Northside subsequently bought an existing surgical center in another area that met the service requirement in its location, relocated the facility, and sought to operate at the new location without having to meet the CON service requirement. The agency approved the application.

North Fulton Medical Center, as a competitor of Northside, challenged the approval, arguing that the agency was not authorized to exempt relocating facilities from CON review. North Fulton sued the State Health Planning Agency, and after a series of court battles, the agency adopted a new rule purporting to exempt certain relocating facilities from compliance with the CON requirements (“Rule I”). The validity of Rule I was challenged in HCA Health Svcs. &c. v. Roach, 265 Ga. 501, 502 (2) (458 SE2d 118) (1995). In HCA Health Svcs., the Supreme Court noted that relocation of a facility was not one of the exemptions provided for in the statute and that the new rule evidenced an attempt by the agency to add to the legislative list of exemptions established by OCGA § 31-6-47 (a). Id. at 503. The Supreme Court struck down Rule I in its entirety and held that relocations must satisfy statutory CON requirements. Id.

Thereafter, the agency adopted a second relocation rule (“Rule II”) purporting to allow relocation applicants to obtain agency approval without establishing that various criteria, including the CON service requirement, were met. See Rules 272-2-.09 (20); 272-2-.09 (1) (b) (3) (iii) (Official Rules & Regulations of the State of Georgia). Northside applied for and was granted a relocation permit under Rule II. North Fulton appealed the agency’s decision, this time challenging the validity of Rule II as well as the agency’s finding that Northside met the requirements of Rule II.

In Case No. A98A0584, North Fulton appeals from the superior court’s judgment affirming the decision of the administrative agency. In Case No. A98A0585, Northside appeals from the same decision, but takes issue only with the standard of review applied by the superior court and requests that we apply a different standard on appeal.

The Supreme Court of Georgia’s decision in North Fulton Med. Center v. Stephenson, 269 Ga. 540 (501 SE2d 798) (1998), is dispositive of the issues raised in these appeals. Finding that the agency acted beyond the scope of its administrative powers in promulgating the rule, the Supreme Court in North Fulton Med. Center held that relocation Rule II is invalid. Because the superior court affirmed the agency’s decision based on its finding that Northside satisfied that rule, the judgment of the superior court in Case No. A98A0584 must be reversed. The case is remanded to the trial court with direction that it enter judgment consistent with the holding of the Supreme Court. The issue raised in Case No. A98A0585 is moot, and that appeal is dismissed.

Judgment reversed and remanded in Case No. A98A0584. Appeal dismissed in Case No. A98A0585.

Birdsong, P. J., and Smith, J., concur.

Decided June 4, 1998

Reconsiderations denied June 16,1998 and June 19,1998.

Jones, Day, Reavis & Pogue, Michael J. McConnell, Ruth H. Gershon, David J. Bailey, for North Fulton Medical Center, Inc.

Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, Kathlynn L. Butler, for Northside Hospital, Inc.

Thurhert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, William W. Calhoun, Assistant Attorney General, Clyde L. Reese III, for State Health Planning Agency.