text:
    A94A2391.
    MILLER v. INGLES MARKET, INC.
    (449 SE2d 166)
   McMurray, Presiding Judge.

Ingles Market, Inc. (appellee) has filed a motion to dismiss this appeal pursuant to OCGA § 5-6-48 (c), arguing that there was an unreasonable and inexcusable delay in the transmission of the record to this court due to Carol L. Miller’s (appellant) failure to timely pay the costs of preparing the appellate record. Appellee asserts that it was unable to press a motion to dismiss this appeal in the trial court because appellant did not notify appellee of the filing of a notice of appeal (as required by OCGA § 5-6-37) or otherwise inform appellee of the appeal via notice or correspondence of any kind. Appellee supports this allegation via affidavit identifying a letter from appellate counsel apologizing for his “gross oversight” and contends it did not find out about the appeal until receipt of a notice of docketing from the Georgia Court of Appeals.

OCGA § 5-6-48 (c) authorizes dismissal of a party’s appeal “where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs.” “Under that Code section, only the trial court has the authority to dismiss an appeal for failure to file a transcript timely. ‘The cause for delay in the processing of the appeal is a fact issue for determination in the trial court,’ and in making that determination, the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse. (Citation and punctuation omitted.) Barmore v. Himebaugh, 205 Ga. App. 381, 382 (422 SE2d 255) (1992).” Beavers v. Gilstrap, 210 Ga. App. 46 (1), 47 (435 SE2d 267).

Decided October 7, 1994.

Charles G. Wright, Jr., for appellant.

Leitner, Warner, Moffitt, Williams, Dooley, Carpenter Napolitan, David W. Noblit, for appellee. H

In the case sub judice, appellee alleges that appellant waited more than 20 days to pay costs after the trial court clerk mailed a receipt of the amount of said costs. Further, it appears the trial court was never provided an opportunity to make the requisite fact determination regarding whether the trial court clerk’s notice of the amount of the costs was sufficient under OCGA § 5-6-48 (c) (i.e., notice mailed by registered or certified mail) and whether any such delay in paying costs was unreasonable, inexcusable, and caused by appellant. Consequently, since it appears appellee was not to blame for failing to file a motion to dismiss this appeal in the trial court, the appropriate course of action is to remand the case to the trial court to make that determination and rule on [appellee’s] motion to dismiss. See Smith v. Ga. Power Co., 183 Ga. App. 295 (358 SE2d 879) (1987); Hosch v. Pickett, 172 Ga. App. 13 (321 SE2d 777) (1984). Of course, while failure to notify appellee of the filing of a notice of appeal is not grounds for dismissal of this appeal, OCGA § 5-6-48 (a), such omission may be a factor in the trial court’s determination of whether anj such delay in paying costs was unreasonable, inexcusable and causee by appellant. See Hatfield v. Great American Mgmt. &c., 190 Ga App. 534, 535 (2) (379 SE2d 544).

Judgment vacated and case remanded with direction.

Pope, C J., and Smith, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1423.
    McDUFFIE et al. v. CRITERION CASUALTY COMPANY.
    (449 SE2d 133)
   Birdsong, Presiding Judge.

James B. McDuffie et al. appeal from the order of the superio; court granting summary judgment to appellee Criterion Casualt] Company (Criterion) in a declaratory judgment suit. ]

Defendant Juanita Price applied for an insurance contract witl appellee Criterion and was issued an insurance binder, dated December 31, 1991. Price tendered a check, equivalent to the first policy premium installment as part of the transaction, and also contemporaneously signed and dated an insurance application. This application pertinently provided “checks, drafts, and money orders are accepted subject to collection only,” and Price subsequently agreed therein that “if my premium remittance is not honored by the bank, no coverage will exist.” However, a certificate of insurance binder was issued to Price bearing the typed notation “HELD COVERED AS OF 12-31-91 11:35 a.m.” This same certificate provides that the effective date of the binder is January 1, 1992, as of 12:01 a.m., standard time, with an expiration date of February 1, 1992, 12:01 a.m., standard time. In italicized print, the certificate of insurance binder expressly states: “This is to certify that the coverage designated by checkmark has been placed in force for the insured named above [Juanita Price]”; thereafter, an “x” check appears on the binder certificate as to certain bodily injury and property damage liability coverage.

On January 3, 1992, an automobile driven by Price collided with a taxicab driven by appellant James B. McDuffie. On January 9, 1992, Criterion received a property damage claim from the taxicab company, which it paid on January 16, 1992. On February 18, 1992, Price’s premium check was presented for payment and dishonored by her bank due to insufficiency of funds; Criterion notified Price by letter dated February 28, 1992, that her policy was therefore null and void and demanded reimbursement for the property damage claim previously paid to the taxicab company.

On April 15, 1992, Criterion received notice of McDuffie’s personal injury claim and responded by letter that a policy was not in force or effect at the time of the collision. Subsequently, appellants McDuffie filed suit against Price for damages arising from the collision; Criterion agreed to defend Price, with reservation of rights until a judicial determination was made as to the issue of coverage. Criterion then filed a declaratory judgment suit. Price did not file an answer but the McDuffies did timely answer. Thereafter both Criterion and the McDuffies filed a motion for summary judgment in the declaratory action suit. The trial court concluded that the honoring of the check presented for payment was a condition precedent to the existence of a contract of insurance and that the return of the check for insufficient funds rendered the contract of insurance void ab initio for failure of the condition precedent. The trial court granted summary judgment to appellee Criterion and denied summary judgment to appellants McDuffie. Held:

An insurance binder is a statutorily recognized form of contract for temporary insurance. OCGA § 33-24-33. Binders, which are issued on an application for insurance, are usually sketchy agreements, in comparison to the typical insurance policy, and are intended to provide temporary protection pending an investigation of the insured or pending issuance of the formal written policy providing the coverage requested by the insured. The insurance binder is a contract created for the convenience of the insured to provide immediate insurance coverage without subjecting the insured to risk of loss occasioned by a delay in effecting coverage. Fort Valley Coca-Cola &c. Co. v. Lumbermen’s Mut. Cas. Co., 69 Ga. App. 120, 124 (1) (24 SE2d 846); Jenkins & Miller, Ga. Auto. Ins. Law Including Tort Law (1993 ed.). § 1-1. The only language or conduct necessary to create an insurance binder contract is that which shows a meeting of the minds. Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 423 (373 SE2d 515). As a general rule an insurance binder, being recognized by law as a lega vehicle for providing immediate, temporary insurance coverage “must be a contract in praesenti [cit.] and the actual payment of premium is not a condition precedent to its validity. [Cit.]” Greene v Commercial Union Ins. Co., 136 Ga. App. 346, 347 (1) (221 SE2c 479); see Jourdan v. First Nat. Ins. Co., 203 Ga. App. 155, 156 (416 SE2d 162); Howell v. United States Fire Ins. Co., 185 Ga. App. 154 155 (2) (363 SE2d 560); Cincinnati Ins. Co. v. Stuart, 139 Ga. App 80, 81 (227 SE2d 771); but compare Rowell v. Ga. Cas. &c. Co., 109 Ga. App. 631, 633 (2) (136 SE2d 917).

However, an insurance company may fix the terms of its policief and binders as it wishes, provided such provisions are not contrary t law. See Ga. Farm Bureau Mut. Ins. Co. v. Musgrove, 153 Ga. App 690, 692 (266 SE2d 228). Accordingly, we must examine in light of th< circumstances here attendant, and in their totality, both the applica tion for insurance and the certificate of insurance binder to determin< the contractual intent of the parties. An insurance binder contract like an insurance contract, is governed by the ordinary rules of con tract construction and should be construed to ascertain the intent 0 the parties. Borders v. Global Ins. Co., 208 Ga. App. 480, 481 (2) (43 SE2d 854). Payment of premiums is not within itself a condition pre cedent to the creation of an insurance binder contract, unless by ex press terms of the binder or by necessary implication such payment i made a condition precedent to any liability of the insurer on the in surance binder contract. Cf. American Intl. Life Ins. Co. v. Harts field, 147 Ga. App. 213, 215 (2) (248 SE2d 518); 7 AmJur2d, Automc bile Insurance, § 8. This exception should be strictly construed to b compatible with the general rule of Greene, supra, as above-discussec and with the following general rule of contracts which disfavors con ditions precedent: “ ‘Conditions may be precedent or subsequent. . condition precedent must be performed before the contract become absolute and obligatory upon the other party. The breach of a cond tion subsequent may destroy the party’s rights under the contract may give a right to damages to the other party, according to a true construction of the intention of the parties.’ [Cit.] ‘The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.’ [Cit.] Further, ‘(w)here the rules of construction will allow, equity seeks always to construe conditions subsequent into covenants and to relieve against forfeitures.’ [Cit.] No precise technical words are necessary to create a condition subsequent. [Cit.] Neither are precise technical words necessary to create a covenant. However, ‘[w]ords such as “on condition that,” “¿/,” and “provided,” are words of condition, and in the absence of indication to the contrary, the employment of such words in a contract creates conditions precedent.’ ” (Emphasis supplied.) Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (1b) (388 SE2d 916). Examination of the insurance application reveals that payment of the premium installment was expressly agreed by the parties thereto to be a condition precedent to the existence of coverage. Further, the insurance application clearly reveals the insurance company’s intent that if premium remittance was dishonored no coverage of any type would exist. Price agreed to this provision, and had an inherent contractual obligation to act in good faith to adhere to the terms of her agreement. Clearly she was aware of the insurance company’s intent that only if her premium remittance was honored would coverage exist. Even assuming arguendo that Price had intended that no condition precedent be created by her express agreement thereto, nevertheless she was aware of the insurer’s existing intent to the contrary. OCGA § 13-2-4 provides: “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” Thus, the true meaning to be attributed to this contractual agreement was that no coverage of any type, whether predicated upon the terms of an insurance binder or policy would exist if, as here, Price’s premium remittance was dishonored.

As the premium payment condition was a condition precedent, the trial court did not err in granting summary judgment to appellee Criterion.

Additionally, as a general rule, “ ‘[a] check is not payment until itself paid unless explicitly taken with a contrary understanding.’ ” Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 839 (2) (413 SE2d 430). The record establishes that it was not the parties’ intent that mere tender of the check would constitute payment, and the binder contract should be so interpreted. OCGA § 13-2-3. When the check was dishonored, there resulted a total failure of consideration for the binder as well as to any policy of insurance. Total failure of consideration for the binder also renders such contract null and void; failure of consideration, if proved, is sufficient to defeat an action or contract. Riberglass, Inc. v. ECO Chemical Specialists, 194 Ga. App 417, 418 (1) (390 SE2d 616).

Decided September 26, 1994

Reconsideration denied October 11, 1994 —

Sorenson & Haskell, George 0. Haskell III, for appellants.

Chambless, Higdon & Carson, Joseph H. Chambless, Emmitti H. Griggs, Jon C. Wolfe, for appellee.

Appellant’s remaining contentions in support of his enumeratior of error are without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Pope, Chief Judge.

text:
    A94A1207.
    WRIGHT v. OVERNITE TRANSPORTATION COMPANY.
    (449 SE2d 167)
   Pope, Chief Judge.

The claimant in this workers’ compensation action was injured ii early 1991. In an earlier proceeding, the board ruled that becaus claimant’s employer failed to explain the panel of physicians to hir and subsequently controverted his claim, claimant was entitled t choose his own treating physician. This ruling was affirmed by th superior court and we denied employer’s application for discretionar review in August 1992. Thus, the issue of employer’s liability for th disputed claim was resolved and employer was paying for claimant’ medical care in February 1993, when claimant changed treating phy sicians. Because claimant failed to seek board authorization for thi change pursuant to OCGA § 34-9-200 (b), employer refused to pa for the new physician’s treatment. Claimant took his claim to th board and convinced it that such authorization was not necessary The superior court reversed, however, holding that board authoriz; tion was necessary for a change of physicians under these circuir stances. We granted this discretionary appeal to determine whethe the superior court’s holding was correct, and we now affirm.

1. Claimant argues that because he had the right to choose h: original treating physician, he has absolute control over his medic; treatment and can change his treating physician whenever he wan1 until he has completely recovered from his injury. The latter dot not necessarily follow from the former, however. See Chesapeake Masonry Corp. v. Wiggington, 327 SE2d 121 (Va. 1985) (even though claimant had right to choose treating physician because employer denied his claim and failed to provide panel, once claimant chose doctor that doctor became his authorized treating physician, and claimant could not refuse his care and change to another doctor without approval); cf. also Worley Bros. Granite Co. v. Hall, 109 Ga. App. 720 (137 SE2d 312) (1964) (even though employer allowed claimant to choose his original treating physician, claimant did not have right to change to another physician without approval).

As a general rule, a claimant cannot change to a new treating physician without petitioning the board for approval under OCGA § 34-9-200 (b). See Holcombe v. Brown Transp. Corp., 253 Ga. 719 (324 SE2d 446) (1985); OCGA § 34-9-201 (e) (previously OCGA § 34-9-201 (d)). Nonetheless, if the employer is failing to provide medical care, the claimant need not seek approval before going to a new doctor, and the employer cannot later complain that the treatment was unauthorized. See Boaz v. K-Mart Corp., 254 Ga. 707 (1) (334 SE2d 167) (1985); Ga. Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984), aff’d, 253 Ga. 766 (327 SE2d 226) (1985); Capital Atlanta v. Carroll, 213 Ga. App. 214 (2a) (444 SE2d 592) (1994). This is because the statutory requirement of petitioning for approval of a change “presupposes present treatment is being allowed and is appropriate only if existing medical assistance still continues.” Brasill, 171 Ga. App. at 570.

The timing of the employer’s failure to provide care is crucial, íowever; where the claimant changes doctors at a time the employer s providing medical care, the employer’s subsequent termination of nedical care and controversion of the claim does not excuse the claimant’s failure to petition for a change “at the time other medical services were sought.” K-Mart Corp. v. Anderson, 166 Ga. App. 421, 123 (304 SE2d 526) (1983). Cf. State of Ga. v. Tungler, 181 Ga. App. 11 (1) (351 SE2d 248) (1986); Scandrett v. Talmadge Farms, 174 Ga. App. 547 (2) (330 SE2d 772) (1985) (both holding that claimant can-lot ignore panel and choose own doctor before employer has opportu-lity to furnish treatment and refuses to do so).

Thus, the pivotal question is whether the employer was providin medical care at the time the claimant changed doctors: if so, th claimant was required to petition the board for approval before h could change physicians or treatment. Cf. Boaz, 254 Ga. at 709-71 (emphasizing that the claimant could choose a new doctor because h was not currently receiving treatment from authorized treating phys: cian); Capital Atlanta, 213 Ga. App. at 216 (3a) (holding petition fc approval of referral was not necessary because employer had contrc verted claim “at the time of the referral”).

In this case, employer was providing medical care for claimant £ the time claimant changed physicians. Just as a subsequent refusal t provide medical care does not excuse a claimant from petitioning fc a change if the employer was providing care at the time of the chang neither does a prior refusal to provide benefits excuse the claimax from filing such a petition once the dispute is resolved in the clain ant’s favor and the employer is providing medical care. According! the superior court was correct in its ruling that the new physician treatment was unauthorized.

2. Claimant also contends he had the right to change physiciar once without board authorization under Board Rule 201 (e). Th rule, which became effective in July 1992, provides that “[w]hen case has not been controverted . . . and when the employer did n< have a posted panel or had an invalid panel, the employee is autho ized to select a physician who is not listed on the employer’s pane That physician so selected becomes the authorized treating physicia and the employee may make one change from that physician to ai other physician without approval of the employer and without an o der from the board.” It is arguable that this rule is invalid because enlarges the substantive rights of claimants, see Holt Svc. Co. v. Motlin, 163 Ga. App. 283 (1) (293 SE2d 741) (1982); and it is furth arguable that the rule would not apply here anyway, since claimant right to choose his original treating physician was based not on er ployer’s failure to post a valid panel but on its failure to adequate explain the panel, as well as its subsequent controversion of tl claim. Even assuming that the rule is valid and otherwise applicab] however, we conclude that the rule would not apply here becau claimant’s injury occurred before the rule became effective, and t rule cannot be retroactively applied. See Hall v. Hartford Ins. Grou 146 Ga. App. 751 (247 SE2d 570) (1978).

Decided October 11, 1994.

James K. Lange, Ralph E. Lamar IV, for appellant.

Hunter, Lewis & Brannon, Charles W. Brannon, Jr., for appellee

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       In essence, claimant suggests that in every case either the claimant or the employer h “medical control” for the duration of the case, and that the procedures for changing phy¡ ians or treatment set forth in OCGA § 34-9-200 (b) are solely for the use and benefit of the arty without control. However, regardless of the limited choices and decisions the statute .llows the parties to make under various circumstances, the reality is that the board retains medical control” in every case: “The legislative intent to have the board resolve such dis-mtes by its hearing and ordering powers can be seen from the fact that virtually every aspect if compensation under OCGA §§ 34-9-200 and 34-9-201 is to be effected pursuant to the oard’s judgment and order. Specifically, OCGA § 34-9-200 (a) makes the decision concern-g what treatment and in what dollar amount the employee is entitled a decision for the Board.” Holcombe v. Brown Transp. Corp., 253 Ga. 719, 721 (324 SE2d 446) (1985).

       We note that the newly amended version of OCGA § 34-9-201 (effective July 19 requires employers to post a valid panel of physicians in subsection (b) and imposes the d\ to adequately explain the panel to workers in subsection (c). Subsection (f) then provii that the worker may select his own treating physician if the employer fails to comply w subsection (b), but it does not mention the employer’s failure to comply with subsection


author: Blackburn, Judge.

text:
    A94A2251.
    GLEATON v. HAZELWOOD FARMS, INC. et al.
    (449 SE2d 170)
   Blackburn, Judge.

This dispute concerns the apportionment of attorney fees he-neen former and present attorneys representing employee, Jacquelyn rleaton, in a workers’ compensation claim.

The record reflects that former attorney Alvin L. Kendall resented his client with a $15,000 employer’s settlement offer at a me after his fee contract had been approved by the State Board of Workers’ Compensation (Board). In doing so, he indicated that this as the employer’s final offer. Thereafter, the employee discharged Kendall and hired present attorney Stephen Lerner, and Lerner’s fee jreement was mailed to the Board. Further discovery and renewed ittlement negotiations were conducted by Lerner and the employer icreased its settlement offer to $30,000.

Before settling the case, Lerner sent a letter to Kendall advising im of the potential for settlement and requesting Kendall make a aim for attorney fees. Kendall failed to respond. Subsequently, a ;ipulated agreement was approved by the Board in which Kendall’s ame was included as the former attorney for the employee. The jreement provided for the division of attorney fees by binding agreement of counsel, i.e., Kendall and Lerner, or, in the event no agree-ent could be reached, the fee was to be held in escrow by counsel for íe employer until an award from the Board directing payment of ;torney fees was issued.

Inasmuch as Kendall and Lerner failed to reach agreement as to ie attorney fees due them, the matter was heard before an adminis-ative law judge (ALJ) of the Board. The ALJ awarded all attorney es to Kendall because Lerner failed to provide for his fee in the ttlement agreement. The Appellate Division of the Board reversed e ALJ’s order and awarded $5,000 to Kendall and $5,000 to Lerner. pon appeal to the superior court, the trial court reversed, and Ler-¡r appeals the trial court’s order on the ground that it is violative of e “any evidence” rule. We agree.

Decided October 12, 1994.

Stephen M. Lerner, for appellant.

Alvin L. Kendall, Greene, Buckley, Jones & McQueen, F. TayU Putney, for appellees.

It is well-settled that findings of fact by the Board, when supported by any evidence, are conclusive and binding on reviewini courts and judges lack authority to set aside an award based on sucl findings of fact for disagreement with the conclusions reached. See J & L Foods v. Brooks, 214 Ga. App. 438 (448 SE2d 19) (1994); How ard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65 (1976).

In the instant case, the Appellate Division found that the reason able value of services provided by counsel in this matter was $5,000 t< Kendall and $5,000 to Lerner. This is supported by evidence of recon indicating, among other things, that present counsel Lerner repre sented the claimant during the conduct of substantial discovery, in eluding taking the deposition of the claimant. Additional efforts oi behalf of the claimant are implicit, at least in some measure, in th final settlement agreement which doubled the initial offer.

Kendall contends that our former decisions of Don Mac Gol Shaping Co. v. Register, 185 Ga. App. 159 (363 SE2d 583) (1987) and Yates v. Hall, 189 Ga. App. 885 (377 SE2d 887) (1989) mandate tha he should be awarded all attorney fees in this case as a matter of lav The foregoing decisions, however, may be distinguished from the fací of the case at bar in that in each case counsel was unaware of settle ment negotiations prior to the issuance of the final settlement agree ment.

Furthermore, the present case is distinguishable from our decision in Bass v. Annandale at Suwanee, 187 Ga. App. 209 (369 SE2 529) (1988), in that the issue of attorney fees was here expressly ac dressed in the settlement agreement whereas the settlement agret ment in Bass was silent in this respect.

Since the Appellate Division’s finding as to the apportionment c attorney fees is supported by evidence of record, the trial court erre by reversing the Board’s award of the same.

Judgment reversed.

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


text:
    A94A2379.
    HOLMES et al. v. THE STATE.
    (449 SE2d 172)
   Blackburn, Judge.

Following a joint bench trial, appellant Anderson Holmes a/k/a iolmes Anderson was convicted of trafficking cocaine, improper lane ¡hange, and giving a false name; and appellant Chris Anthony Dudley vas convicted of trafficking cocaine. On appeal, both Dudley and iolmes challenge the trial court’s denial of their joint motion to sup-jress.

At the motion to suppress hearing, Officers Richard Daly and iJark Whitwell of the narcotics unit of the Clayton County Police De->artment testified that at approximately 6:25 p.m. on October 6,1993, hey were in a patrol car parked in the median of Interstate 75 when hey observed a Ford Bronco traveling in the left southbound lane in ixcess of the posted speed limit. Without using any signals, the ironco then proceeded into the right lane and slowed down suddenly n front of another vehicle and nearly caused a collision. Based upon heir observation of those traffic violations, the officers activated their mergency lights and proceeded behind the Bronco. After traveling a hort distance, Holmes, the driver of the Bronco, pulled to the right f the roadway into the emergency lane. Dudley was a passenger in he vehicle. .

When Officer Daly asked Holmes for identification and proof of isurance, Holmes gave the officer Dudley’s license and insurance ard, stating that he did not have his license with him. He asked Iolmes to exit the vehicle and step to the rear of the vehicle. He then sked Holmes for his name, and Holmes supplied the officer with a fise name. Dudley informed the officer of Holmes’ correct name, and Iolmes was subsequently placed under arrest for giving the officer a fise name.

Officer Whitwell asked Dudley to exit the vehicle and for consent ) search the vehicle, which Dudley owned. Dudley consented to a iarch. During the search, Officer Whitwell found large bricks of co-fine in brown paper bags in the glove compartment. Both men were ibsequently taken into custody and transported to the Clayton ounty Police Department.

Both Holmes and Dudley testified that Holmes was driving the ronco with the flow of traffic and did not change lanes until the of-cers pulled behind them and activated their emergency lights. Dud-y further testified that when he exited the vehicle, Officer Whitwell ut him against the truck and frisked him but did not ask him if he >uld search the vehicle.

1. The defendants maintain that the investigatory stop of the ve-ele was pretextual and not based upon a reasonable suspicion of iminal conduct, and therefore violated the state and federal constitutions.

“Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops ... are analogous to Terry-stops [of vehicles], and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. In determining when an investigatory stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalic purpose.” (Citations and punctuation omitted.) Anthony v. State, 211 Ga. App. 622, 625 (4) (441 SE2d 70) (1993). In reviewing the trial court’s order on a motion to suppress, it must be viewed most favorably to uphold the trial court’s judgment. See Tate v. State, 264 Ga. 53 (1) (440 SE2d 646) (1994).

Holmes was observed driving the Bronco in excess of the postee speed limit and making an abrupt lane change which almost caused £ collision. We cannot say that a reasonable officer would not hav< stopped the vehicle, therefore, defendants’ contention that their post detention statements were tainted is without merit.

2. Defendants argue that the search of the vehicle was constitu tionally impermissible because the officers did not have probabk cause to believe that the vehicle contained evidence of a crime. Thi contention is without merit as Dudley consented to the search of hi¡ vehicle.

Although Dudley denied having given consent to the searcl “[w]here there is a conflict in the evidence on the motion to sup press, the ruling of the trial court will be upheld where there is evi dence to authorize a finding in support of his order.” (Citations an< punctuation omitted.) State v. Holton, 205 Ga. App. 434, 437 (2) (422 SE2d 295) (1992). “[I]nherent within the denial of this suppression motion is the trial court’s finding that appellant^’] consent to searcl I was made voluntarily. [Since] a question of credibility had existed re garding the voluntariness of the consent to search, insofar as the trie court’s ruling reflects a resolution of this question of credibility i favor of the State, we find no error as such is supported by the evi dence.” (Citations and punctuation omitted.) O’Donnell v. State, 20 Ga. App. 829, 833 (1) (409 SE2d 579) (1991). Valid consent to search eliminates the need for probable cause and results in a waive of Fourth Amendment rights related thereto. See Calixte v. Statt 197 Ga. App. 723 (2) (399 SE2d 490) (1990). In addition, since th investigatory stop was legal it did not taint Dudley’s consent to tb search of his vehicle. See Wilson v. State, 210 Ga. App. 886 (43 SE2d 867) (1993). In view of our determination, we need not address whether Holmes had standing to challenge the search. See O’Donnell, supra.

Decided October 12, 1994.

Joseph A. Maccione, for appellants.

Robert E. Keller, District Attorney, Per B. Normark, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.


author: Smith, Judge.

text:
    A94A0948.
    CRAIG v. RED LOBSTER RESTAURANT et al.
    (449 SE2d 307)
   Smith, Judge.

We granted an application for discretionary appeal in this workers’ compensation case in order to review the superior court’s ruling n light of Dart Container Corp. v. Jones, 209 Ga. App. 331 (433 SE2d 417) (1993). We reverse, because we conclude that the superior eourt erred in setting aside the full board’s decision awarding benefits.

Barbara Craig suffered a compensable back injury in a fall at vork and underwent two surgeries, which did not relieve her pain. She was referred to a psychiatrist for pain control, then underwent an VTRI which indicated persistent disc herniation and led to recommen-lation of a third operation. Because she had suffered severe depression after her first two surgeries, the neurosurgeon sent Craig to a isychologist to determine her psychological fitness for surgery. His eferral letter asked the psychologist to evaluate “treatment and man-tgement of depression resulting from chronic pain due to work injury o cervical spine.”

The employer/insurer, Red Lobster and Liberty Mutual (“Red jobster”) refused to pay the psychologist’s bills on the ground that Craig’s depression was caused by earlier traumatic events in the laimant’s life, not her work-related injury. The ALJ found that the laimant had sufficiently and convincingly linked her work-related ac-ident to the need for psychological services. He found that Red Lob-ter was responsible for paying for them and assessed attorney fees or its unreasonable defense of the claim. Red Lobster appealed to the ull board, again stating that the only issue was the causal connection ietween Craig’s injury and her psychological treatment. The full oard affirmed the ALJ’s award, and Red Lobster appealed to the superior court.

Decided September 22, 1994

Reconsideration denied October 14, 1994

Bennie H. Black, for appellant.

Hines & Head, Myrick C. Shinall, for appellees.

The superior court found sufficient evidence to support the board’s award. It also found, however, that the board had not considered an issue raised for the first time by Red Lobster in the superior court. Red Lobster contended to the superior court that the referral of Craig to the psychologist was unauthorized because she had not initiated a change of physician or treatment proceeding pursuant to OCGA §§ 34-9-201 (d) and 34-9-200 (b), which are mandatory. Brown v. Transamerica IMS, 200 Ga. App. 272 (407 SE2d 430) (1991); Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35) (1992); but see Capital Atlanta v. Carroll, 213 Ga. App. 214, 217 (3) (a) (444 SE2d 592) (1994) (noting legislative overruling of Lee and Brown effective July 1, 1994). After finding that the board had not considered this issue, the court set aside the board’s decision and remanded the case for its consideration.

This case is controlled by Dart Container Corp. v. Jones, supra, in which the identical issue of failure to initiate a change of physician or treatment proceeding was raised by the employer for the first time in the superior court. This court held that issues not raised to the board cannot be considered on appeal and declined to hold that the superior court erred in affirming the board’s award. 209 Ga. App. at 331-332. In this case, the superior court erroneously relied on the alleged failure to institute a change of physician proceeding to reverse the decision of the full board awarding compensation to Craig. Since the superior court also found that there was sufficient evidence tc support the award of compensation, its decision must be reversed.

Judgment reversed.

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


text:
    A94A2122.
    LEWIS v. THE STATE.
    (449 SE2d 535)
   Birdsong, Presiding Judge.

Matthew J. Lewis appeals his conviction of driving under the in fluence of alcohol (Count 1), driving with an open containe (Count 2), driving with an expired license (Count 3), and drivin with no insurance (Count 4). He pled guilty to Counts 2 and 3 an was convicted on a jury verdict of Counts 1 and 4. Held:

1. The trial court did not err in denying appellant’s motion for directed verdict; the evidence was legally sufficient to support appellant’s conviction of driving under the influence of alcohol (Count 1). Appellant’s first and second enumerations of error are without merit.

“OCGA § 40-6-391 (a) (1) makes it unlawful for a person to ‘drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive. . . .’ There is no requirement that the person actually commit an unsafe act.” Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268). “Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which is manifested by boisterousness, indecent condition or act, or by vulgar, profane, loud ar unbecoming language”; “[t]he offense of driving under the influance of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved.” (Emphasis supplied.) State v. Tweedell, 209 Ga. App. 13 (432 SE2d 619). Moreover, driving i motor vehicle while under the influence of alcohol may be estab-ished by circumstantial evidence. Schoicket v. State, 211 Ga. App. 336, 637 (2) (440 SE2d 65).

The police were investigating a male juvenile on a bicycle who vas loitering at a Big H store; the store had been closed for some ;ime and there were no lights on. While the investigation was continuing, appellant pulled up to the store’s gas pump in his Maverick au-;omobile. The arresting officer approached and asked appellant what re was doing there; appellant replied that he wanted to get gasoline. While asking to see appellant’s license and proof of insurance card, ;he officer noticed an open container of Keystone beer sitting beside ippellant. Appellant had a strong odor of alcoholic beverage upon his >reath and body. Appellant was asked to get out of the vehicle. Both ippellant’s driver’s license and insurance card had expired. Appellant vas given an alphabet field sobriety test; he started to recite the al-)habet but “around the letter ‘M’ he started losing his place, started ransposing in the middle of the letters.” Appellant took the alphabet est twice; he could not complete it successfully. When asked to take i “heel to toe test,” appellant became kind of defiant and refused to «operate. At that point, appellant appeared to become frustrated md “just leaned back against his car” and would not do anything ¡lse. Appellant was then placed under arrest for DUI. Prior to his irrest appellant exhibited the following additional manifestations of >eing under the influence of alcohol: watery eyes, paleness of face, nd slurred speech. Two unopened cans of Keystone beer subse-[uently were found in the car in addition to the one open can. At the ounty jail, appellant refused to submit to intoximeter testing after ieing given a second implied consent warning. At trial the arresting fficer opined, based on the evidence of appellant’s manifestations of alcohol, his performance and nonperformance of certain field sobriety evaluations, and his refusal to submit to intoximeter breath testing, that appellant was a less safe driver. The arresting officer, who had approximately ten years service, had received training at the police academy regarding sobriety testing and had received training based on the National Highway Traffic Safety Administration Manual. The officer also testified he found it strange that appellant would pull up to the gas pump of a closed store that was “pretty dark.”

A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive. Church v. State, 210 Ga. App. 670 (436 SE2d 809); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737); Chance v. State, 193 Ga. App. 242 (387 SE2d 437); compare McFarland v. State, 210 Ga. App. 426 (436 SE2d 541). Whether a police officer qualifies as an expert for such purposes rests in the discretion of the trial court. See Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, supra. Further, when as in this case, sufficiency of the evidence also is challenged by a motion for directed verdict, the proper appellate test is that of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Review of the transcript reveals ample evidence from which any rational trier of fad could have found beyond a reasonable doubt that appellant was guiltj of driving under the influence of alcohol (Count 1). Id.

2. The trial court sustained the State’s objection to the following two questions posed by appellant’s counsel during cross-examinatior of the arresting officer: Whether probable cause is a far cry from proo: beyond a reasonable doubt and “it is your understanding, is it not that the facts necessary to establish probable cause are much less than the facts necessary to convict a person beyond a reasonably doubt?” The trial court did not err in its rulings. The trial court exerl cises discretion in determining the scope of a defendant’s thorouglfi and sifting cross-examination. See Jackson v. State, 157 Ga. App. 604, 605 (3) (278 SE2d 5). The record does not support a finding thaw the trial court abused its discretion in sustaining the State’s objecl tions. In substance the questions posed called upon the law enforce! ment officer to inform the jury of his personal belief as the standard of proof required to sustain a criminal conviction of appellant. It ifl the duty of the trial court to instruct the jury as to the applicable lav! and the duty of the jury to take the law from the trial court’s instrucH tions and to apply it to the facts which they determine from the evil] dence adduced at trial. State v. Freeman, 264 Ga. 276, 277 (444 SE2d 80). A trial court does not abuse its discretion when it prevents a law enforcement officer from expressing his opinion as to the standard of proof required to sustain a criminal conviction of the accused.

Decided October 14, 1994.

Robert W. Chestney, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeff P. iiviatkowski, Assistant Solicitors, for appellee.

We also note appellant argued to the jury that the facts necessary to sustain an arrest based on probable cause were “nowhere near proof beyond a reasonable doubt” necessary for criminal conviction, and he was afforded great latitude in presenting his version of the reasonable doubt concept and informing the jury of their duty to acquit appellant if they had a reasonable doubt in their minds as to appellant’s guilt.

3. Appellant’s contention that the trial court erred in refusing to instruct the jury on the difference between the evidence necessary for probable cause to make an arrest and that required for conviction is without merit.

Examining the charges in their totality (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we conclude the trial court fully and iccurately charged the jury as to the presumption of innocence, the State’s burden of proof beyond a reasonable doubt, the legal defini-;ion of reasonable doubt, and that if the State fails to prove the defendant’s guilt beyond a reasonable doubt it would be the jury’s duty ;o acquit the defendant. A trial court does not err in failing to give )ther charges in the exact language requested where the court’s :harge in its totality substantially and adequately covers the funda-nental legal principles contained in these requests. See Harrison v. Hate, 257 Ga. 528, 531 (4) (361 SE2d 149).

Moreover, appellant did not contend at trial that there was a lack >f probable cause for appellant’s arrest. A fair risk therefore would ixist that a charge which merely distinguished “between the evidence lecessary for probable cause to make an arrest, and the evidence re-luired for conviction” would confuse the jury. A trial court does not rr when it refuses to give a confusing or misleading instruction. Jones v. State, 200 Ga. App. 519, 521 (2c) (408 SE2d 823).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1633.
    WILLIAMS v. THE STATE.
    (449 SE2d 532)
   Smith, Judge.

Richard Kevin Williams was convicted by a jury on four counts of aggravated assault, OCGA § 16-5-21 (a) (2); one count of misdemeanor criminal trespass, OCGA § 16-7-21 (a); and one count of felony obstruction of an officer, OCGA § 16-10-24 (b). He appeals following the denial of his motion for new trial.

1. Williams challenges the sufficiency of the evidence to support his convictions.

From the evidence presented at trial, the jury was authorized to believe that after being ordered out of the apartment he shared with Cynthia Gaudy and her three children, Williams was escorted from the property without incident by Cobb County police officer David Schroeder. Schroeder testified that Williams appeared to have been drinking, smelled of alcohol, and was acting irrationally.

Williams returned to the apartment the same evening, knockec on the door, and asked to speak with Gaudy. She refused to let hiir enter. When he insisted, she and the three children barricaded themselves in an upstairs bedroom. Williams then broke the back dooi open and entered the apartment. Williams threw household objects around, knocked down another bedroom door, then obtained thre< knives from the kitchen. While he brandished the knives, Gaudy ant her daughters huddled in a closet and her son cowered on the othe side of the room. Gaudy called 911, and she convinced Williams t( give the knives to her daughter just as the police arrived. A neighbor Alissa Smith, observed Williams breaking down the back door an< saw him in the bedroom holding a knife.

Upon their arrival, Cobb County police officers ordered William away from the closet. He failed to respond, and after a struggle, the handcuffed and arrested him. Williams struggled with the police oí ficers when they attempted to place him in the patrol car, kicking pushing, and injuring one officer.

As he was being led out by the police, he shouted to Gaudy tha he would “get her.” Gaudy and her children were terrified during th incident. Gaudy was charged a total of $330 for the damage to th apartment.

This enumeration is without merit. The fact that Williams agree to be responsible for the rent or that Gaudy’s name alone was on tbj lease only because Williams agreed to make that change as an a< comodation to Gaudy for the purpose of regaining custody of her chi dren did not entitle him to terrorize the apartment’s occupants, vai dalize the property, or obstruct the officers. We have no hesitation i finding this evidence sufficient to authorize the jury to find Willian guilty of four counts of aggravated assault, one count of misdemeam criminal trespass, and one count of felony obstruction of an officer, under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Williams asserts error in the trial court’s denial of his motion For mistrial, made on the ground that on two occasions during Gaudy’s testimony his character was impermissibly placed in issue.

On direct examination, the prosecutor asked Gaudy why she requested that the apartment manager call the police earlier in the day. Before being stopped by a defense objection, Gaudy replied: “Because ! know he’s capable — I know Richard is capable —.” In his brief, Williams refers to .this as an allusion to Williams’s capability of vioence. However, Gaudy did not state what Richard was capable of, md never completed the sentence. The defense informed the court ;hat it wished to make a motion, but asked the court to allow it to be nade later “so we don’t delay the court,” and the court agreed.

The defense took no further action until a second “incident” oc-:urred during cross-examination. Gaudy was questioned about living irrangements in the apartment, and the following colloquy took >lace: “Q: While you were — you and Richard were living in that ipartment from July through September 24, I think your children oined you? A. Uh-huh. (Affirmative response.) Q. Where did you tay? A. In the bedroom to the right. Q. Where did Richard stay? A. Jp until September 24? Q. You’re under oath, Miss Gaudy. A. Rich-rd was in jail. Q. Which bedroom did he stay in? A. In the bedroom o the right. [DEFENSE COUNSEL]: Your Honor, I would like to aake a motion at this time.”

Defense counsel then moved the court for a mistrial, arguing that he offending answers were not responsive to the questions and improperly injected Williams’s character into the proceedings. The trial ourt denied the motion. The trial court offered to ascertain whether he remarks had any prejudicial effect on the jury, instruct the jury to ompletely remove the prejudicial information from their minds, and/ r give a curative instruction. Defense counsel specifically declined his offer.

The decision whether to grant a mistrial lies within the discretion the trial court. We must determine whether the court abused its icretion in denying the motion for mistrial, considering, among íer factors, the nature of the statement, the other evidence in the >e, and the action taken by the court and counsel concerning the propriety. Shropshire v. State, 210 Ga. App. 241, 243 (2) (435 SE2d (2) (1993).

Although the trial court gave no specific reason for the denial of 3 motion as to the response on direct examination, it is apparent it no prejudice resulted from Gaudy’s answer because the witness ver finished the sentence.

Decided October 14, 1994.

Alice C. Stewart, for appellant.

Thomas J. Charron, District Attorney, Christina A. Craddod Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, fc appellee.

With regard to the ruling on the cross-examination response, Williams had been arrested on an unrelated charge on September 25, only one day after September 24, the date Gaudy’s children joined the household and the same date Gaudy asked about before responding to defense counsel’s question. The trial court found that because the two dates were so close in time, Gaudy may have confused the two dates, but her answer was responsive to the question. Relying upon Henson v. State, 168 Ga. App. 210, 211-212 (2) (308 SE2d 555) (1983), the court ruled that defense counsel could not complain because he had taken a risk by propounding a “dangerous question” to Gaudy.

We agree with the trial court’s ruling. The fact that in Gaudy’s answer she gave an incorrect statement of fact does not make tha1 answer non-responsive. Defense counsel knew that because Williams had been in jail just one day after the date about which he was questioning the witness, a possibility existed that in responding to the question the witness might confuse the dates and mention Williams’s arrest. Under Henson, supra, in these circumstances, defense counse “will not be heard to object to the answer, no matter how prejudicia it may be, if the answer is a direct and pertinent response to the ques tion.” (Citations and punctuation omitted.) Id. at 212 (2).

Moreover, because curative instructions were offered and refused Williams cannot now complain of the testimony. Bromley v. State 259 Ga. 377, 380 (4) (380 SE2d 694) (1989). Considering all these fac tors and the overwhelming evidence of Williams’s guilt, we find n< abuse of discretion in the trial court’s denial of his motion for mis trial. Shropshire, supra.

Judgment affirmed.

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

       We note that even when a witness’s non-responsive answer impacts negatively on t| defendant’s character, it does not place the defendant’s character in issue under OCGA § 9-20 (b). Nelson v. State, 204 Ga. App. 409, 410 (419 SE2d 502) (1992).


text:
    A94A1703.
    SANWA LEASING CORPORATION v. STAN HUNT CONSTRUCTION COMPANY, INC. et al.
    (449 SE2d 347)
   Smith, Judge.

Sanwa Leasing Corporation obtained a default judgment against Stan Hunt and Stan Hunt Construction Company, Inc. in Michigan. It then sought to domesticate that judgment in Hall County, Georgia, pursuant to OCGA § 9-12-130 et seq. Appellees moved to vacate or set aside the foreign judgment, alleging the Michigan court lacked jurisdiction over them and the judgments were predicated upon a contract procured by fraud. The trial court granted appellees’ motion, and Sanwa brings this appeal.

We affirm. First, Sanwa’s contention that the trial court based its ;rant of appellees’ motion upon Sanwa’s failure to respond is belied i>y the trial court’s order, which states that the motion was considered ay the court.

Second, addressing the merits of the appeal, when suit is brought to domesticate a foreign judgment, that judgment may be attacked collaterally on the ground that the foreign court in which the judgment was obtained lacked personal jurisdiction over the defendants. If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists, and the burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993).

Sanwa states in its brief that its burden was satisfied by paragraph 18 of the lease contract on which the Michigan action was based. However, that contract is not a part of the record. The burden is on appellant to show error by the record; we cannot consider statements in the brief in lieu of the record. See Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 279 (433 SE2d 388) (1993).

Since the record fails to reveal any evidence to the contrary, we must assume that the trial court’s ruling was correct. Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (2) (397 SE2d 6) (1990).

Judgment affirmed.

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

Decided October 14, 1994.

Walden G. Housman, Jr., for appellant.

Carey, Deal, Jarrará & Walker, Tom Jarrará, for appellees.

       We note, however, that paragraph 18, as recited in Sanwa’s brief, is not a “forum selec-;ion” clause such as has been held sufficient to negate lack of jurisdiction. See Regency Mall Assoc. v. G. W.’s Restaurant, 213 Ga. App. 225 (444 SE2d 572) (1994); Brown, supra. It is nerely a “choice of law provision,” providing that in case of conflict of laws, Michigan law nust be used.


text:
    A94A1802.
    BROWN v. THE STATE.
    (449 SE2d 538)
   Smith, Judge.

Tyrone Brown was convicted by a jury of two counts of armed robbery, one count of possession of a firearm by a convicted felon, and one count of possession of a firearm in the commission of a crime. His motion for new trial was denied, and he appeals.

1. In his first enumeration, Brown contends he should have been granted a new trial because the verdict was contrary to the evidence and strongly against the weight of the evidence. However, this court passes only on the sufficiency of the evidence, not its weight. Sheats v. State, 210 Ga. App. 622, 623 (2) (436 SE2d 796) (1993). Brown’s argument essentially attacks the credibility of three witnesses to the crimes charged. Viewed to support the verdict, the testimony of these witnesses, as related in Brown’s own statement of the facts, was clearly sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Brown enumerates separately five particularized instances of alleged ineffective assistance of counsel.

(a) Brown asserts that trial counsel erred in failing to object to the denial of his motion to suppress the eyewitness identifications ofl the robbery victims. We assume Brown is referring to the failure ofl his trial counsel to object at the time this evidence was presented at! trial. “In the interest of brevity,” Brown merely refers us “to the facts! previously cited in Enumeration of Error I. to show that the trial! court should have granted” his motion. This is no substitute for legal! argument. Since we are presented with no basis for concluding that the trial court committed reversible error in ruling this evidence admissible in the first instance, we cannot say that trial counsel erred in failing to preserve the issue for review. See generally Abreu v. State, 206 Ga. App. 361, 362-363 (1) (425 SE2d 331) (1992).

(b) Brown claims his trial counsel failed to subpoena a witness who would have impeached the credibility of a former co-defendant who testified against Brown as part of a plea bargain. However, tria counsel testified at the new trial hearing that Brown never mentionec or made reference to the witness she supposedly failed to subpoena Moreover, Brown does not claim that with reasonable diligence tria counsel would have discovered the existence of the witness and sub poenaed him to testify. Finally, Brown alleges at most a “possibility” that this witness’s testimony might have resulted in his acquittal. The true test, however, is whether all of trial counsel’s alleged errors combined are such that a reasonable probability exists that in the absence of such errors a more favorable verdict would have been reached. Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). This particular allegation of error adds little if any weight to Brown’s ineffective assistance claim.

Decided October 14, 1994.

William A. Dowell, for appellant.

Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for appellee.

(c) During its case-in-chief, the State elicited from a police officer an improper comment on Brown’s lawful exercise of his right to remain silent. On motion for new trial, the court found that trial counsel waived the error by failing to timely object, but applying the analysis found in Hill v. State, 250 Ga. 277, 281-284 (4) (295 SE2d 518) (1982), the court reached the “inescapable conclusion” that the error waived was harmless. Brown does not challenge the court’s conclusion regarding the magnitude of the error, nor does he challenge the well-reasoned, legally sound, and helpful analysis employed in the court’s order denying his motion for new trial.

Of Brown’s two remaining “enumerations” with respect to ineffective assistance, one was not argued before the trial court, and it is only the correctness of the trial court’s determination that no new trial was warranted, based on the grounds and evidence presented, that is under review here; the other enumeration has been abandoned under Court of Appeals Rule 15 (c) (2).

Applying the standard of Gross, supra, we find no error in the trial court’s denial of Brown’s motion for new trial on any and all of the grounds asserted.

Judgment affirmed.

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

       “Q: Okay, after the Defendant was subsequently arrested on the warrant, did you have an opportunity to interview him?
      “A: Yes, I did have an opportunity, and advised him of his rights and he refused to talk to me.”


text:
    A94A1154.
    BROWN v. CITY OF MARIETTA.
    (449 SE2d 540)
   Birdsong, Presiding Judge.

Frank L. Brown has filed a direct appeal under OCGA § 5-6-34 (a) of his conviction for driving under the influence of alcohol. He contends the trial court erred by denying his motion to suppress and motion in limine to suppress the results of a breath test, and the superior court erred by affirming the trial court. Brown alleges the arresting officer lacked probable cause for his arrest and the videotape of his arrest, made by the police car’s video camera, shows he was not under the influence at the time of his arrest. Held:

1. Brown filed a direct appeal in this case because the decision by a panel of this court in Wilson v. City of Riverdale, 203 Ga. App. 250 (416 SE2d 825) held that “appeals from superior court reviews made pursuant to OCGA § 40-13-28 are directly appealable under OCGA § 5-6-34 (a).” That decision was a reaction to Walton v. State, 261 Ga. 392 (405 SE2d 29), in which our Supreme Court held that traffic cases appealed to superior courts under OCGA § 40-13-28 are not de novo appeals. In reaching this result, the Supreme Court rejected the reasoning in Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521), and expressly disapproved its conclusion that in such cases the reviews were special hybrid de novo proceedings. Instead, the Supreme Court held that defendants in traffic appeals are “entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Walton, supra at 394.

Based upon the Walton opinion, a panel of this court held that “Anderson, [supra,] will no longer be followed and that appeals from superior court reviews made pursuant to OCGA § 40-13-28 are directly appealable under OCGA § 5-6-34 (a).” Wilson v. City of Riverdale, supra at 250.

Upon further consideration, however, the question that should have been addressed was not merely whether reviews of traffic offenses under OCGA § 40-13-28 were de novo reviews, but whether the General Assembly intended that appeals from superior courts in traffic cases should be subject to the discretionary appeals procedures of OCGA § 5-6-35 (a) (1).

“We begin our analysis with the ‘golden rule’ of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. When! literal reading of the statute produces such an absurdity, the appel-l late court must then seek to make sense out of the statute, while be-| ing faithful to the legislative intent. To divine the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected.” (Citations and punctuation omitted.) Telecom*USA v. Collins, 260 Ga. 362, 363-364 (393 SE2d 235). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

Before the 1986 amendment to OCGA § 40-13-28 there was no question but that these appeals were subject to the discretionary appeals procedures. Under the terms of former OCGA § 40-13-28 such appeals were de novo investigations, and thus unquestionably were included within the discretionary appeals procedures by OCGA § 5-6-35 (a) (1). Therefore, the question is whether the 1986 amendment to OCGA § 40-13-28 that changed the scope of review in the superior court from a de novo investigation to a review of the record was also intended to change the method of appeal from the superior court in such cases from discretionary appeals under OCGA § 5-6-35 (a) (1) to direct appeals under OCGA § 5-6-34 (a). We find no evidence that the General Assembly intended that result.

The preamble to Ga. L. 1986, pp. 982, 983, § 15, which amended OCGA § 40-13-28, provides that the purpose of the amendment was “to provide that all appeals of convictions under Article 2 of Title 40 shall be on the record of the hearing below ánd not by . . . jury trial.” Nothing in the amendment or the preamble suggests that the amendment was intended to change the appellate procedure in such cases. Moreover, by eliminating the de novo procedures, the General Assembly’s purpose was to eliminate duplicative and burdensome retrial of cases in the superior court and in some cases to eliminate second jury trials. See Ga. State Univ. L. Rev., Vol. 2, pp. 167, 168 (1986). Therefore, we find no reason to conclude that the General Assembly intended this amendment to alter the existing appellate procedures for these cases. To do so would demand the conclusion that the General Assembly intended to eliminate duplicative retrials in the superior court and substitute instead duplicative appeals in the appellate courts.

Consideration of the purpose of the discretionary appeals procedures does not reveal a different legislative intent. The predecessor to OCGA § 5-6-35 (a) (1), Code Ann. § 6-701.1, was enacted by the General Assembly as Ga. L. 1979, p. 619, because of the “massive caseload in the appellate courts” (C & S Nat. Bank v. Rayle, 246 Ga. 727, 729 (273 SE2d 139)), and the section “was enacted to ameliorate the appellate courts’ massive case loads.” Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588 (408 SE2d 103).

Further, although the scope of the discretionary appeal procedures has been expanded over time, there has been no change in the text of this particular section: “Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings” shall be as provided for in the discretionary appeals procedure. See Code Ann. § 6-701.1 (a) (1); OCGA § 5-6-35 (a) (1).

The Supreme Court found that the “[t]he clear intent of section (a) (1), above, was to give the appellate courts (particularly the Court of Appeals which has jurisdiction of workers’ compensation cases not involving the constitutionality of a law) the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case).” C & S Nat. Bank v. Rayle, supra at 730. Nothing in the legislative history of OCGA § 5-6-35 or its predecessor, however, suggests that the purpose was to require applications for appeal only in cases of reviews by de novo or certiorari. Instead, the use of “de novo” and “certiorari” apparently was intended to make clear that the discretionary appeals procedures would apply to the full range of reviews of lower court judgments by superior courts.

Therefore, given the legislative intent for enacting the discretionary appeals procedures, it is our conclusion that Wilson v. City of Riverdale reached the wrong result. Construing OCGA §§ 5-6-35 (a) (1) and 40-13-28 according to their real intent and meaning and not so strictly as to defeat the legislative purpose (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97)), we must conclude that the General Assembly did not intend to remove traffic appeals under OCGA § 40-13-28 from the discretionary appeals procedures. Looking “to the purpose and intent of the legislature” (Enfinger v. Intl. Indent. Co., 253 Ga. 185, 186 (317 SE2d 816)), and “ ‘the natural and most obvious import of the [statutory] language’ ” (Earth Mgmt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455)), we hold that appeals to the appellate court from superior court reviews in traffic cases under OCGA § 40-13-28 are subject to the discretionary appeals procedures. See also City of Jesup v. Bennett, 226 Ga. 606, 608 (176 SE2d 81): “The real intention, when collected with certainty, will always, in statutes, prevail over the literal sense of terms.’ (Punctuation deleted.) Therefore, all appeals from judgments of superior courts in such cases must follow the procedures in OCGA § 5-6-35 (a). Accordingly, 30 days after the date this decision is publishec in the official advance sheets, any direct appeals in these cases filec under OCGA § 5-6-34 (a) will be dismissed.

2. Since Brown brought this direct appeal under the law as it ex isted at the pertinent time, we must address his allegations notwith standing our overruling today of Wilson v. City of Riverdale. Brown alleges the municipal court erred by denying his motion to suppress or motion in limine because the State failed to carry its burden of establishing probable cause for his arrest. In particular, he contends the trial court erred by refusing to substitute its judgment for that of the police officer in that the trial court failed to suppress the evidence of the breath test even though the trial court purportedly found that based upon the evidence before the court the judge would not have found probable cause for Brown’s arrest.

Decided October 17, 1994.

Awtrey & Parker, J. Lynn Rainey, for appellant.

Examination of the transcript, however, shows the trial court’s comment was limited to the evidence about Brown’s condition as shown on the videotape. The trial court’s ultimate ruling, however, was not based only on the evidence shown on the videotape. The trial court recognized that some of the factors the arresting officer relied on in deciding to arrest Brown were not revealed on the videotape, e.g., the tape could not show the odor of alcohol on Brown’s breath, the degree to which Brown’s eyes were bloodshot, or the degree of difficulty Brown had in touching his nose with his finger.

Further, the transcript also shows that notwithstanding the trial court’s reluctance to interpose its judgment for that of the arresting officer on whether there was probable cause for the arrest, the trial court did make an independent judgment on whether there was probable cause for Brown’s arrest. As this judgment is fully supported by the officer’s testimony and the evidence shown on the videotape, we find that the trial court did not err by denying Brown’s motion to suppress or motion in limine. See Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689); State v. Swift, 232 Ga. 535, 536 (207 SE2d 459); Anderson v. State, 133 Ga. App. 45, 47 (209 SE2d 665).

3. Brown’s allegation of error by the superior court in conducting its appellate review of his traffic offense misapprehends the responsibility of the superior court when sitting as an appellate court under OCGA § 40-13-28 reviewing convictions for violation of traffic offenses. He was not entitled to a de novo review. Walton v. State, supra. Instead, he was “entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, [supra].” Id. at 394. Accordingly, considering the record, the superior court did not err by affirming the municipal court’s denial of Brown’s motion to suppress or motion in limine.

Judgment affirmed.

Pope, C. J., Beasley, P. J., Andrews, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., and Ruffin, J., concur in judgment only.

Robert I. Donovan, for appellee.


author: Andrews, Judge.

text:
    A93A1607.
    A93A1608.
    DEAL v. HANDSON et al. HCA HEALTH SERVICES OF GEORGIA, INC. v. HANDSON.
    (449 SE2d 692)
    Decided September 15, 1994
    Reconsideration denied October 18, 1994.

      Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, for Deal

      Alston & Bird, Judson Graves, Richard R. Hays, Daniel A. Kent for HCA Health Svcs.

      Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson Kimberly M. Carlisle, Jeffrey E. Tompkins, Divida Gude, for Hand son.
   Andrews, Judge.

In Deal v. Handson, 210 Ga. App. 499 (436 SE2d 519) (1993), this court reversed the trial court’s judgment which denied defendants’ Motion to Dismiss the Handsons’ complaint based, in our Division 2, on the insufficiency of the OCGA § 9-11-9.1 affidavit. In Handson v. HCA Health Svcs, of Ga., 264 Ga. 293 (443 SE2d 831) (1994), the Supreme Court reversed our opinion, finding the affidavit adequate. Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court.

Judgments affirmed.

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


text:
    A94A1088.
    EVANS et al. v. STATE OF GEORGIA.
    (449 SE2d 302)
   Blackburn, Judge.

Appellants, Sara Augusta Evans and James Danny Gaddis, ap peal the forfeiture judgment rendered against them and in favor o the State. After a bench trial, the trial court determined that appel lants’ property was used to facilitate a violation of the Georgia Con trolled Substances Act (GCSA) in the manufacture and growing o marijuana. The trial court condemned approximately 5.1 acres to th State. On appeal, appellants assert the searches made of their hous and yard were illegal and that the forfeiture of their property consti tutes cruel and unusual punishment.

1. In their first enumeration of error, appellants contend the trial court erred in determining that the property on which the marijuana was located was outside the curtilage of the house. Appellants argue that they had a reasonable expectation of privacy in that portion of their property which was their backyard and the officers’ warrantless search of their property was illegal.

A helicopter pilot with the Governor’s Task Force on Marijuana Identification and Eradication sighted marijuana on appellants’ property near the river. A ground team, consisting of two marked vehicles and several law enforcement personnel, was notified of the location of the marijuana. As the ground team approached appellants’ house, Gaddis saw their approach and started running through the woods toward the river. Sergeant Doyle with the Cherokee County Sheriff’s Department, testified he was concerned that Gaddis would destroy evidence or jeopardize the ground team’s safety. When Sergeant Doyle caught Gaddis, Gaddis was pulling marijuana plants from the ground with both hands.

Pretermitting the issue of whether the marijuana was located within the curtilage of appellants’ residence, we find that the officers were justified in their seizure of the marijuana. The officers needed no warrant to approach the appellants’ house to make investigative inquiries. Gilreath v. State, 247 Ga. 814, 819-821 (279 SE2d 650) (1981). Thereafter, Gaddis’ flight toward the location of the marijuana created sufficient exigent circumstances to justify the officers’ concern regarding potential destruction of evidence. “Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.” (Citation and punctuation omitted.) State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198) (1989).

2. In their second enumeration of error, appellants contend that the search of their house was unlawful. Appellants first argue that the search of the house was illegal as it was based on the officers’ prior unlawful search of their yard. This contention is without merit as we determined in Division 1 that the officers’ search of the yard was valid. Appellants next argue that Evans’ consent to search the house was obtained improperly. However, this objection was not raised with the trial court, and we are presented with nothing to review. See Porado v. State, 211 Ga. App. 728 (3) (440 SE2d 690) (1994).

3. The trial court determined the appellants’ property was used to facilitate a violation of the GCSA in the manufacturing of marijuana. Therefore, pursuant to OCGA § 16-13-49 (d) (3), the trial court condemned appellants’ property to the State. Appellants enumerate as error the trial court’s ruling, and assert the forfeiture of the entire property on the basis of the discovery of 8.8 ounces of marijuana was cruel and unusual punishment and an excessive fine outlawed by the Eighth Amendment to the United States Constitutior and Art. I, Sec. I, Par. XVII of the Georgia Constitution. This issue has not been addressed previously by a Georgia court.

Article I, Section I, Paragraph XVII of the Georgia Constitutior provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shal any person be abused in being arrested, while under arrest, or ir prison.” Appellants’ argument regarding cruel and unusual punish ment is without merit. The cruel and unusual punishment provisions of the Georgia Constitution relate to punishment imposed upon con viction of a criminal offense. Hill v. State, 119 Ga. App. 612 (3) (168 SE2d 327) (1969). The present action is a civil forfeiture action rathe: than a criminal action.

The prohibition against excessive fines provision of the Georgh Constitution has been applied to punitive damages assessed in civi proceedings. See Colonial Pipeline Co. v. Brown, 258 Ga. 115 (3) (d (365 SE2d 827) (1988). In Colonial Pipeline, the Georgia Supremi Court determined that the relevant inquiry in determining if the ex cessive fines clause is applicable in a certain situation is whether “th( purpose of the deprivation is among those ordinarily associated witl punishment, such as retribution, rehabilitation, or deterrence.” (Cita tion and punctuation omitted.) Id. at 120, quoting Ingraham v. Wright, 430 U. S. 651 (97 SC 1401, 51 LE2d 711) (1977).

We recognize that the State’s interest in forfeiture proceeding has been described as the prevention of further misuse of the prop erty by the guilty party. State of Ga. v. Sewell, 155 Ga. App. 734, 73 (2) (272 SE2d 514) (1980); Hallman v. State of Ga., 141 Ga. App. 52 (2) (233 SE2d 839) (1977). Pretermitting whether this previously rec ognized interest can be considered some form of punishment, we rec ognize that without excluding the statute’s remedial purpose, it als serves, at least in part, as punishment. See Austin v. United Stated 509 U. S_(113 SC 2801, 125 LE2d 488, 503) (1993) (interpretin the application of the Eighth Amendment of the United States Cor stitution to the federal forfeiture statute, 21 USC § 881). The stat ute’s provision expressly excluding innocent owners from its applies tion supports this position. Compare OCGA § 16-13-49 (e) with 2 USC § 881 (a) (4) and (a) (7). (Both the United States and Georgi forfeiture statutes provide an innocent owner defense.) “If forfeitur had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner.” Austin, supra, 125 LE2d at 502.

Decided August 17, 1994

Reconsideration denied October 18, 1994 —

Garland, Samuel & Loeb, Donald F. Samuel, for appellants.

Garry T. Moss, District Attorney, Margaret E. Daly, Assistant

In Austin, supra, the Supreme Court declined to establish guidelines for determining whether a forfeiture is unconstitutional as excessive. 125 LE2d at 506. However, in Justice Scalia’s special concurrence he suggested that the inquiry focus on “determining what property has been ‘tainted’ by unlawful use” rather than the value of forfeited property. Id. at 509. Justice Scalia noted that “[s] cales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal.” Id.

OCGA § 16-13-49 (d) (3) provides that all property used directly or indirectly in any manner to facilitate a violation of the GCSA punishable by imprisonment for more than one year is declared to be contraband in which no person has property rights. The provision of the statute requiring that all such property be forfeited further supports our adoption of Justice Scalia’s analysis. Upon the trial court’s factual determination that the property was used directly or indirectly to facilitate a GCSA violation, such property would be subject to forfeiture regardless of its value. “The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.” Austin, supra at 509 (Scalia, J. concurring). See also United States v. One Parcel Property &c. Missouri, 831 FSupp. 736 (E.D. Mo. 1993).

In the present case, twenty-four marijuana plants were found growing on the land surrounding the house and ten plants were found growing in the house. Although the marijuana plants seized were small, totaling only 8.8 ounces, an expert in growing marijuana testified each plant was capable of producing 2.4 pounds of marijuana. However, the expert noted that in Georgia a conservative estimation of one pound per plant is normally used. The expert identified the variety of the marijuana confiscated as sinsemilla which can cost up to $3,000 per pound.

Under the facts of this case, we find that the forfeiture of the subject property did not violate the excessive fines provision of the Georgia Constitution or the United States Constitution.

Judgment affirmed.

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

District Attorney, Gary D. Bergman, Thomas W. Hayes, for appellee.

       The differences between OCGA § 16-13-49 and 21 USC § 881 argued by the State arrecognized by this court in State of Ga. v. Wilbanks, 208 Ga. App. 422 (1) (430 SE2d 66 (1993), do not implicate our present inquiry.


author: Johnson, Judge. Andrews, Judge,

text:
    A94A1424.
    WOOD v. THE STATE.
    (449 SE2d 308)
   Johnson, Judge.

Carol Wood appeals the denial of her motion to suppress and subsequent conviction on one count of possession of amphetamines. Wood was arrested after a search of her home conducted by the Rome/Floyd Metro Task Force, pursuant to a search warrant, yieldec a plastic bag containing amphetamine residue. She asserts that the trial court erred in denying her motion to suppress because the affidavit supporting the search warrant did not establish probable cause.

1. The affidavit upon which the search warrant was issued statec that a reliable informant related to the affiant that he had been tole by an unidentified third party that he had seen methamphetamines at Wood’s home. According to the affidavit, the reliable informan) told the officer that this unidentified third party did not know that he would be passing the information along to the police. The reliable informant had no independent knowledge of these facts, but stated tha1 his source “had no reason to lie” to him. Compare State v. Law, 208 Ga. App. 744 (432 SE2d 110) (1993), in which the informant actuallj saw the contraband but a third party identified it as such for him.

“In determining whether an affidavit sufficiently establishes th< probable cause necessary for issuance of a warrant, we employ th< totality of the circumstances analysis enunciated in Illinois v. Gates 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted b} [the Georgia Supreme Court] in State v. Stephens, 252 Ga. 181 (31 SE2d 823) (1984), with the admonition that prudence counsels tha Gates be considered as the outer limit of probable cause. Under tha analysis, the task of the issuing magistrate is simply to make a practi cal, common-sense decision whether, given all the circumstances se forth in the affidavit before him, including the veracity and basis o knowledge of persons supplying hearsay information, there is a fai probability that contraband or evidence of a crime will be found in ¡ particular place. And the duty of a reviewing court is simply to ensur that the magistrate had a substantial basis for concluding that proba ble cause existed. In addition, [the Georgia Supreme Court] has cau tioned attesting officers and magistrates to make every effort to se that supporting affidavits reflect the maximum indication of reliabil ity.” (Citations, punctuation and emphasis omitted.) Gary v. State 262 Ga. 573, 577 (422 SE2d 426) (1992).

The facts surrounding the affidavit upon which the magistrate re lied in issuing the search warrant in this case are similar to those i: Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993), in which this court noted: “[T]he ‘totality of the circumstances’ analysis applies also in situations in which there are two informers.” Id. at 81. A deficiency created by the fact that the reliability of either source has not been established can be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause. Id. at 82. In Munson the affiant corrected the deficiency by conducting an independent investigation of the information, verifying not only Munson’s address, but also by involving another law enforcement agency which further investigated and confirmed that marijuana was growing at the location indicated by the informant. The affiant in this case, however, did nothing more to corroborate the information of the reliable informant than to confirm Wood’s address, the make of her car and her hair color. Nothing whatsoever was done to corroborate the unidentified third-party’s information. These steps, which merely verified Wood’s identity but did not tie her to the commission of any crime, do not constitute corroboration so as to cure the deficiency created by the affiant’s reliance on information from a source whose reliability had not been established. No matter how truthful or sincere the information from the reliable source, the crucial question is the unidentified third-party’s reliability, and that is simply not established in the affidavit. “ ‘Our decisions applying the totality of circumstances analysis have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.’ [Cit.]” (Punctuation omitted.) State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823) (1984). In this case, the independent investigation done by the police in an effort to corroborate the information was insufficient. See Davis v. State, 214 Ga. App. 36 (447 SE2d 68) (1994).

We acknowledge that in doubtful or marginal cases preference should be afforded to upholding the warrant. Mincey v. State, 180 Ga. App. 898, 900 (350 SE2d 852) (1986). Nonetheless, we find here that the uncorroborated statement of an unnamed third-party source, as filtered through a reliable informant to a police affiant, did not give rise to probable cause sufficient to support the issuance of a search warrant. The trial court erred in denying Wood’s motion to suppress.

2. In light of our holding in Division 1 above, we need not address Wood’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., Beasley, P. J., Blackburn, Smith and Ruffin, JJ., concur. Pope, C. J., Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent as I believe the warrant is supported by probable cause. Although the majority purports to apply the totality of circumstances analysis, it bases its decision solely on the fact that the unidentified third-party’s reliability is not established by the affidavit or otherwise. However, under the totality of circumstances analysis, the issuing magistrate is to make a practical, common-sense decision whether there is a fair probability contraband will be found in a particular place based on all the circumstances described in the affidavit before him, not just the veracity of persons supplying hearsay information. See Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). We have specifically stated that “although information regarding the reliability of the informant is highly relevant to the totality oi circumstances determination, the absence of significant informatior regarding reliability is not necessarily fatal to an affidavit.” Munsor v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993). Indeed, we have said that a grudging or negative attitude by reviewing courts towarc warrants is inconsistent with the desire to encourage police officers tc use the warrant process and with the recognition that once a warran has been obtained, intrusion on the interests protected by the Fourtl Amendment is less severe. Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986). We have further said that preference shoulc be accorded to upholding warrants in doubtful or marginal cases. Id

While the majority purports to adhere to these standards, in nr view, its opinion represents a return to the two-pronged Aguilar Spinelli requirement of demonstration of the informant’s reliability and basis of knowledge. However, we rejected this test ai “hypertechnical and divorced from the factual and practical consider ations of everyday life on which reasonable and prudent men, not le gal technicians, act” in order to allow magistrates, many of whom an not lawyers, to make a practical, common-sense decision as t< whether probable cause exists. See Munson, supra at 82.

Looking at the totality of circumstances and applying a practica common-sense analysis, I would find the warrant was supported b; probable cause. The affidavit stated that Source B had told Source i that he had been in Wood’s residence, described as 1616 Wax Roac and had seen a quantity of methamphetamine in Wood’s possessior Source A, who by all accounts was a reliable informant, had furthe told the affiant that he knew of no reason for Source B to lie and tha Source B did not know this information would be communicated t the police. Source A also told the affiant that Wood, who was appai ently known by both Sources A and B, had red hair and drove a whit Chevy Caprice. Police, by independent investigation, corroborate that Wood had red hair, drove a white Chevy Caprice, and lived s the address in question.

Contrary to the majority’s assertion, I do not find the informe tion provided by Source B to be completely unreliable. Rather tha detracting from the unwitting, third-party’s reliability, the fact .the the unwitting did not know the reliable informant would commun cate this information to police has been considered an indicator of reliability. See State v. Hockman, 171 Ga. App. 504, 505-506 (320 SE2d 241) (1984); see also Munson, supra at 82, n. 1. Furthermore, the independent investigation conducted by police corroborated that Wood lived at the house where Source B said he saw the contraband in Wood’s possession and that Wood and her car fit the description given by the reliable informant. In my view, the independent investigation conducted by the police was not insufficient since the police corroborated all the details of the information provided by both sources that they possibly could. Certainly, it cannot be argued that the police should have asked Source B if his information was true since it is likely that Source B, who did not know the information would be communicated to the police, would have alerted Wood to such an inquiry. Because I find there was some indication of the reliability of Source B and that the police did provide corroboration of the information obtained by both sources, I would hold that probable cause existed to believe contraband was located at Wood’s home and that the trial court properly denied the motion to suppress. See Mincey, supra at 900; Hockman, supra at 506.

Decided September 27, 1994

Reconsideration denied October 18, 1994 —

Lorie A. Moss, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Pope and Presiding Judge Birdsong join in this dissent.


text:
    A94A0939.
    UNITED STATES FIDELITY & GUARANTY INSURANCE COMPANY v. MYERS et al.
    (449 SE2d 359)
   Andrews, Judge.

The incident which underlies this lawsuit is an automobile accident which occurred on June 20, 1990, between vehicles driven by Leon Myers, Sr., and Rochelle Lakes. Leon Myers, Sr.,. Vincent Kimberly, Leon Myers, Jr., Edward Myers and Rose Mary Myers commenced their action against Lakes and her employer, Courier Dispatch Group, on August 20, 1991. Lakes and Courier Dispatch filed their answer denying liability on October 3, 1991.

According to the Myers and Kimberly, at the December 21, 1992 deposition of a witness to the accident, they became aware of the existence of a phantom driver’s involvement in the accident. Thereafter, on January 19, 1993, the Myers and Kimberly filed a motion to add as a party defendant “John Doe” and to amend their complaint, which motion the trial court granted on March 30, 1993.

United States Fidelity & Guaranty Insurance Company (“USF&G”) was served with the complaint, as the uninsured motorisl carrier, on April 13, 1993. USF&G subsequently filed its answer to the suit. On July 13, 1993, USF&G filed a motion to dismiss, arguing tha1 the Myers and Kimberly had failed to serve it within the two-yeai statute of limitation and that the suit should be dismissed. The tria court found that the statute of limitation was tolled from August 20 1991, until December 21, 1992, and denied the motion to dismiss USF&G filed an application for interlocutory review, which w( granted and this appeal followed.

In its sole enumeration of error, USF&G claims that the tria court erred in denying its motion to dismiss since it was not server within the two-year statute of limitation as required by Bohannon v J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989) am Peoples v. State Farm &c. Ins. Co., 211 Ga. App. 55 (438 SE2d 167 (1993). See also State Auto Ins. Co. v. Reese, 191 Ga. App. 818 (383 SE2d 157) (1989). USF&G contends that under these cases, the plain tiffs’ failure to serve USF&G before the expiration of the limitatioi period should bar the complaint against USF&G. We agree.

“As discussed in both Bohannon [v. Futrell, 189 Ga. App. 34( (375 SE2d 637) (1988)] and Reese, OCGA § 33-7-11 (d) requires service on the uninsured motorist carrier within the time allowed for ser vice on the defendant in the tort action. Compliance with the statu tory mandate does not confer party status on the carrier. Se< Bohannon at 341 (1). Instead, the carrier has the option of becomin¡ a party and filing its pleadings, or filing pleadings on behalf of th defendant owner or operator or both, or doing nothing. Therefore, th question of whether or not [USF&G] was timely served as the unin sured motorist carrier is not dependent on its status as a party to th suit by amendment. See OCGA § 9-11-4 (c). Nor is the issue notice o harm to the carrier, but squarely the timeliness of service. See Rees at 819 (1). The carrier must be served at the outset, ‘as though (it were actually named as a party defendant.’ OCGA § 33-7-11 (d). A1 though a plaintiff has the option of naming his carrier as a party de fendant or not, he has no option regarding service. The law require that the insurer be served so that it, not merely the insured, can as sess its potential liability from the time litigation commences agains the tortfeasor.” Peoples, supra at 56.

The Myers and Kimberly claim that Bohannon and its progen are inapposite and cite Horne v. Carswell, 167 Ga. App. 229 (30 SE2d 94) (1983) and Jefferson Pilot Fire &c. Co. v. Burger, 176 Ga. App. 471 (336 SE2d 591) (1985), as support for their position. The argue that the addition of the “John Doe” defendant should be governed under the principles applicable to OCGA § 9-11-15 (c) and that the instant situation differs from that in which it is discovered that a known motorist is uninsured.

Decided October 18, 1994.

William M. Schiller, Jane C. Taylor, for appellant.

Bush & Miller, Betty B. Walker, MacDougald & Hendon, W. Zachary Hendon, Jr., for appellees.

In Bohannon, 259 Ga. 162, supra, the Supreme Court rejected the argument that the statute of limitation on a claim under the uninsured motorist act should not run until it is determined that the negligent motorist is uninsured, and instead adhered to the rule that “the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” Id. at 163. Although Bohannon involved a known motorist who was later determined to be uninsured, the same rationale applies here where the possible existence of an uninsured motorist was subsequently discovered.

Generally, the uninsured motorist carrier’s right to be served timely is independent of any service considerations applicable to the defendant tortfeasor. Cf. Peoples, supra at 57. In some rare circumstances, the statute of limitation may be tolled for the defendant tortfeasor, and the period of time for serving the uninsured motorist carrier is extended commensurately. See, e.g., State Farm &c. Ins. Co. v. Harris, 207 Ga. App. 8 (427 SE2d 1) (1992) (statute tolled during bankruptcy automatic stay) and Jefferson Pilot, supra (statute tolled between death of defendant and appointment of estate administrator). However, no such circumstances are present in the instant case, and the trial court erred in finding that the statute of limitation was tolled until the plaintiffs discovered the possible existence of a phantom driver.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.