author: Cooper, Judge.

text:
    A93A1351.
    McCOY et al. v. H. N. R. INVESTMENT GROUP, L. P.
    (437 SE2d 355)
   Cooper, Judge.

Appellee-plaintiff H. N. R. Investment Group, L. P., as the successor in interest to Harry Norman Realtors, brought this action to recover a real estate broker’s commission allegedly due from appellant-defendants, the McCoys. After limited discovery, cross-motions for summary judgment were filed. Appellants appeal from the order of the trial court granting appellee’s motion and denying their motion.

Viewed in the light most favorable to appellants, the evidence adduced below would authorize the following material facts: Appellants, as owners, entered into an agreement with appellee, as agent, under which appellee was to locate a tenant to lease certain residential real estate located in Fulton County, Georgia. The agreement is captioned EXCLUSIVE LISTING AGREEMENT and provided, in part, that appellee shall have the “exclusive right to lease the property for a minimum of 90 days . . . until terminated by 30 days prior written notice” and specified a commission due upon leasing. The agreement further specified that “[i]f Owner sells the property to a tenant (or his spouse) obtained hereunder, during or after the lease’s term, Owner shall pay Agent a commission of 7 [per cent.] of the sales price.” In answers to interrogatories, appellants admitted that a tenant had been found through the efforts of appellee. Appellants paid appellee a leasing commission in the amount of one month’s rent out of a year’s lease. The lease expired on August 31, 1991 and appellants agreed with the tenant to extend the lease on a month-to-month basis. Without the further assistance or efforts by appellee, appellants negotiated directly with the tenant and entered into a purchase and sale agreement with her. Closing took place on April 27, 1992. Appellants argue that their motion for summary judgment was erroneously denied because appellee indisputably performed no acts leading to the consummated sale. Alternatively, it is urged that summary judgment was erroneously granted to appellee because a jury question exists as to whether appellee’s efforts were reasonably related in time to the actual sale.

1. Appellants’ second argument will be addressed first. It is contended that, because there is no express contractual termination date after which appellee will no longer be entitled to a commission for having procured a tenant who subsequently buys, a jury should determine a reasonable time.

“When the owner of real estate has authorized a broker to sell it, without setting a time limit, he is bound to exercise good faith towards his agent and not captiously withdraw the property for the purpose of defeating the agent’s commission about to be earned. If no time limit is fixed in a contract authorizing an agent to sell real estate, then, under the law, he has a reasonable time within which to do so; and what is a reasonable time is an issue to be determined by the jury. [Cits.]” Wood v. Planzer, 73 Ga. App. 731, 734 (1) (37 SE2d 813) (1946). While it is true that the agreement entered into among appellants and appellee does not identify an express termination date, it does provide that the agency was terminable at will by either party upon 30 days written notice. There is no such written notice of termination in the record and appellants do not claim that they ever took this step to terminate the agency. Accordingly, there is no jury question as to the duration of the agency nor as to whether the agency was still in existence at the time appellants sold their home to the tenant procured by appellee. The authorities relied upon by appellants to show the existence of a fact question for jury resolution are inapposite, and appellants have failed to demonstrate any error on the part of the trial court in granting appellee’s motion for summary judgment on this basis.

2. Urging that the undisputed evidence shows that appellee failed to procure the sale of their residence, appellants enumerate as error the denial of their motion for summary judgment and the grant of appellee’s motion.

As a general rule, “[t]he fact that property is placed in the hands of a broker to sell shall not prevent the owner from selling, unless otherwise agreed. The broker’s commissions are earned when, during the agency, he finds a purchaser who is ready, able and willing to buy and who actually offers to buy on the terms stipulated by the owner.” OCGA § 10-6-32. However, “ ‘[i]t is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract. (Cit.) And, “a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” [OCGA § 1-3-7.] Thus, it is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. (Cit.)’ [Cit.]” Kurc v. Herren, 196 Ga. App. 331, 332 (1) (396 SE2d 62) (1990). “[T]his ancient rule is applicable to all the private relations in which [persons] may place themselves towards each other.” Western & Atlantic R. Co. v. Bishop, 50 Ga. 465, 472 (1) (1873). It follows that the owner and broker are free to vary or add to the contractual duties which, when fulfilled during the agency, define completed performanee by the broker entitling him to his commissions. In such cases the general rule as to what is required of the broker in order to be entitled to commissions is modified accordingly. See Phinizy v. Bush, 129 Ga. 479 (3) (59 SE 259) (1907).

Decided October 26, 1993.

Louis K. Polonsky, for appellants.

McLain & Merritt, Robert B. Hill, for appellee.

The owners here, by promising to pay the broker a sales commission in the event they sell their home to a tenant “obtained” under the leasing agreement, have defined the circumstances under which the broker is deemed to have procured the sale. The statutory and common law elements of procuring the sale have been “modified accordingly,” Phinizy v. Bush, supra, and cases applying the general rule are not applicable to this action. It follows that the failure of appellee to establish that it procured the sale in compliance with the common law rule is no basis for granting appellants’ motion for summary judgment.

The circumstances whereby an owner agrees to pay a sales commission to the broker procuring a tenant who subsequently buys from the owner admit of the same economic consequences to the owner as when a broker procures a lessee who also purchases an option to buy. “In such a case the broker’s right to commissions does not accrue until the option has been exercised. When, however, the option has been exercised, his right of action is complete. [Cits.]” Snead v. Wood, 24 Ga. App. 210, 216 (2) (100 SE 714) (1919). Since it is admitted that appellee procured the tenant to whom appellants sold their house “during or after the lease’s term” and also during the term of the agency, the broker’s contractual obligations are fulfilled. The owners sold their home to a tenant procured by the broker and, under the unambiguous terms of their agreement with the broker, owe the sales commission provided for therein. The trial court correctly granted appellee’s motion for summary judgment as to its entitlement to real estate sales commissions.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A1396.
    FROELICH et al. v. THE STATE.
    (437 SE2d 358)
   McMurray, Presiding Judge.

On February 23, 1993, Jerome J. Froelich, Jr., Fred Tokars, Tim Huhn, Andy Pennington and Kirk Walsh (petitioners) filed a motion to quash subpoenas directing Huhn, Pennington and Walsh to appear before the Cobb County Grand Jury. Petitioners alleged that Tokars is a suspect in a police investigation; that Froelich is Tokars’ attorney; that Froelich hired Huhn, Pennington and Walsh to conduct an investigation on behalf of Tokars and that subpoenas issued for Huhn, Pennington and Walsh to appear before the grand jury for the improper purpose of uncovering information that is subject to the attorney-client privilege.

On February 23, 1993, the State’s attorney affirmed at a hearing on the motion to quash that subpoenas had issued for Huhn, Pennington and Walsh to appear before the grand jury at 4:00 p.m. on February 24, 1993. At 10:41 a.m. on the day Huhn, Pennington and Walsh were to appear before the grand jury, the trial court entered an order denying petitioners’ motion to quash “with the condition that questioning by the State be limited to the names and addresses of witnesses the investigators have interviewed.” This direct appeal was filed at 11:24 a.m. on the day Huhn, Pennington and Walsh were to appear before the grand jury. Held,-.

Relying on Patterson u. State, 248 Ga. 875 (287 SE2d 7), this court held in In re Hall County Grand Jury Proceedings, 175 Ga. App. 349 (333 SE2d 389), that a direct appeal is authorized from an interlocutory order compelling testimony of a witness before the grand jury. Id. at 350 (1), supra. In Patterson, the primary reason for allowing direct review of the interlocutory order denying a defendant’s plea of double jeopardy was that the defendant’s rights would be significantly undermined if appellate review was postponed until final disposition of the underlying criminal action. Patterson v. State, 248 Ga. 875, 876, supra. In the case sub judice, the record indicates that the trial court’s denial of petitioners’ motion to quash is not an interlocutory matter requiring immediate review so as to protect petitioners. Specifically, the record is silent as to disposition of the February 24, 1993, grand jury proceedings that inspired issuance of grand jury subpoenas to Huhn, Pennington and Walsh. Consequently, this court ordered the parties to submit “briefs regarding the issue of mootness and this Court’s power to rule on issues raised in this appeal.”

In supplemental briefs, the parties affirmed that the grand jury proceeding which spawned the case sub judice adjourned after indictment of individuals who are not parties to this appeal. Thus, any decision regarding the denial of petitioners’ motion to quash would be of no benefit to petitioners, thereby rendering the issues raised in this appeal moot. In re Hall County Grand Jury Proceedings, 255 Ga. 241 (338 SE2d 864); Brown u. Taylor, 193 Ga. App. 134 (387 SE2d 25). Nonetheless, petitioners contend the issues raised in the case sub judice are not moot because the State “can attempt to obtain the same undiscoverable, privileged material sought in the grand jury subpoenas at the trial of the defendants by use of similar subpoenas.” This contention is without merit.

There is no indication in the record that Huhn, Pennington or Walsh will be summoned to testify in the underlying criminal proceedings. However, assuming the contrary, petitioners “ask this court to do what it is not authorized to do: to render an advisory opinion on hypothetical and legal questions that have not arisen but which [petitioners] fear may arise at a future date. Board of Commrs. of Walton County v. Dept. of Public Health, 229 Ga. 173 (2) (190 SE2d 39) (1972).” Cheeks v. Miller, 262 Ga. 687, 689 (425 SE2d 278).

Alternatively, petitioners appear to concede that the denial of their motion to quash is moot, arguing that appellate review is necessary because the alleged error is capable of repetition and is likely to perpetually evade appellate review. See Citizens for Ethical Government v. Gwinnett Place Associates, L.P., 260 Ga. 245 (1) (392 SE2d 8); Multimedia WMAZ v. State, 256 Ga. 698, 699 (1) (353 SE2d 173); R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1) (292 SE2d 815). We do not agree.

Although procedural circumstances similar to the eleventh-hour hearing conducted on petitioners’ motion to quash are capable of repetition, there appears to be no reason why the alleged error raised in this appeal will eternally evade judicial review. In fact, an appeal from an order compelling testimony before the grand jury which was alleged to be privileged reached this court under similar procedural circumstances via expedited appeal in In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, supra. We therefore cannot say that an advisory opinion is mandated in the case sub judice. Chastain v. Baker, 255 Ga. 432, 434 (339 SE2d 241). It follows that this appeal must be dismissed as moot.

Appeal dismissed.

Johnson and Blackburn, JJ., concur.

Decided October 26, 1993.

McKenney & Froelich, Jerome J. Froelich, Jr., for appellants.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

       This court is authorized in relying on the parties’ admissions regarding disposition of the grand jury investigation which forms the basis of the case sub judice as “[i]t is well-established that a party to a trial may make admissions in judicio in their pleadings, motions, and briefs. Brownlow v. City of Calhoun, 198 Ga. App. 710, 711 (402 SE2d 788); Time Ins. Co. v. Lamar, 195 Ga. App. 452 (2) (393 SE2d 734); Summerlot v. Crain-Daly Volkswagen, 138 Ga. App. 839 (227 SE2d 463). When an admission is so made ‘it is a solemn admission in judicio. As such, it is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert the admission, even if it is untrue.’ Green, Ga. Law of Evid. (3rd ed.), Admissions § 233.” Bannister v. State, 202 Ga. App. 762, 763 (1b), 766 (415 SE2d 912).

       The same logic reveals that this direct appeal is not authorized under In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, supra, as the rights of petitioners are not undermined by the absence of appellate review. Compare Patterson v. State, 248 Ga. 875, 876, supra.


author: Blackburn, Judge.

text:
    A93A1557.
    LeBROOK, INC. v. JEFFERSON et al.
    (437 SE2d 360)
   Blackburn, Judge.

The appellees, Cheryl and Gerald Jefferson, brought the instant action for damages against LeBrook, Inc., the appellant, and Calvert Lee Bruker, the president and sole shareholder of the corporation, based upon negligence, fraud, and breach of an express warranty. At trial, after the close of evidence, both Bruker and LeBrook moved for directed verdicts. The trial court denied both motions.

The jury subsequently returned a verdict in favor of the Jeffersons on all counts. Based upon an election made by the Jeffersons pursuant to OCGA § 9-2-4, the trial court entered a judgment against LeBrook only on the breach of warranty claim, awarding the Jeffersons $4,225 in damages and $6,000 in attorney fees. This appeal follows the trial court’s subsequent denial of LeBrook’s alternative motion for a judgment notwithstanding the jury’s verdict or new trial.

The Jeffersons initially executed a contract with LeBrook on January 13, 1990, for the purchase of a newly-constructed home. However, the home was not built according to specifications approved by the Veterans Administration, and as a result, a builders warranty and commercial warranty were required by the lender. The Jeffersons contemplated rescinding the contract but were assured by Bruker that he could provide the required warranties. An amended contract was executed between the parties on March 6, 1990, wherein Bruker represented that he would provide a one-year warranty on workmanship, a two-year warranty on the home’s systems, and ten-year warranty on the home’s structure.

Based upon the assurances made by Bruker, the Jeffersons purchased the home on March 8, 1990, and at that time, an application was completed for coverage with a commercial warrantor. It is undisputed that the application was completed by Bruker’s brother as the builder of the home because LeBrook was not registered with a homebuyers’ warranty corporation, a requirement for participation in the commercial warranty program. Neither the application nor the enrollment fee was forwarded to the warrantor, and consequently, the property was not enrolled under the commercial warranty program.

Approximately two months after closing, the Jeffersons discovered water in the crawl space underneath their home, and Bruker was notified of the defective condition. In August 1991, after the expiration of LeBrook’s one-year warranty on workmanship, Bruker’s sole attempt to eliminate the water accumulation failed. Thereafter, this action ensued.

1. LeBrook initially asserts that the trial court erred in admitting testimony as to the reasonable value of attorney fees, and in instructing the jury on this issue. Specifically, LeBrook maintains the Jeffersons’ failure to comply with the written requirements of the one-year warranty on workmanship and the conflicts in the expert testimony as to the cause of the defective condition presents a bona fide controversy which bars recovery. We disagree.

“[Attorney] fees and expenses are generally not allowed [under OCGA § 13-6-11] unless the defendant has acted in bad faith, been stubbornly litigious, or caused unnecessary trouble and expense, in which case the jury may allow them.” Gwinnett County Bd. of Tax Assessors v. Network Publications, 208 Ga. App. 15, 18 (429 SE2d 696) (1993). Cf. Williams Tile &c. Co. v. Ra-Lin & Assoc., 206 Ga. App. 750 (426 SE2d 598) (1992). However, it is only necessary to show the existence of one of these statutory conditions in order to authorize such an award. Fine & Block v. Evans, 201 Ga. App. 294 (411 SE2d 73) (1991). The question of attorney fees under this section is one for the jury, and will be upheld on appeal if there is any evidence to support it. Spring Lake &c. Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990). See also Mays v. Lampkin, 207 Ga. App. 739 (2) (429 SE2d 113) (1993).

Considering the totality of the circumstances in the case sub judice, particularly Bruker’s single attempt to repair the defect after the expiration of the warranty, we conclude that there is evidence to support the jury’s finding that LeBrook, through its agent, Bruker, acted in bad faith. Accordingly, enumerations 1 and 2 are without merit.

2. We reject the corporation’s argument that the trial court erred in instructing the jury on the issues of fraud, deceit, and misrepresentation. The evidence produced at trial shows that Bruker made false representations to the Jeffersons on his ability to obtain a commercial warranty in order to induce them to execute the amended contract. The Jeffersons justifiably relied on the representations to their detriment and sustained a financial loss. Castellana v. Conyers Toyota, 200 Ga. App. 161 (407 SE2d 64) (1991). As we stated in Lingo v. Brasington, 202 Ga. App. 813, 814 (415 SE2d 534) (1992), “ ‘[w]here there is evidence . . . upon a particular point, it is not error for the court to charge the law in relation to that issue. (Cit.)’ [Cit.]”

Decided October 26, 1993.

Johnston, Wilkin & Williams, William J. Williams, for appel- • lant.

Dunstan, Dunstan & Cleary, James R. Dunstan, for appellees.

3. In its third enumeration of error, LeBrook argues that the trial court erred in instructing the jury on the issue of contract for work or services. However, this charge was given in light of the duty placed upon LeBrook to construct the Jeffersons’ home in a skillful and workmanlike manner, and based upon the Jeffersons’ third count of negligent construction. LeBrook has conceded that the Jeffersons’ negligent construction claim is supported by the evidence. Considering the jury instructions as a whole on the issue, we cannot say that the trial court erred in so instructing the jury. See Holmes v. State, 205 Ga. App. 168 (421 SE2d 311) (1992).

4. LeBrook further maintains that a directed verdict or in the alternative, a judgment n.o.v. was warranted on the fraud and breach of warranty claims. However, “[a] directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted.) Parks v. Howard, 197 Ga. App. 405, 407 (4) (398 SE2d 308) (1990). In view of our holding in Division 2 above, we find that the trial court did not err in denying LeBrook’s motions for directed verdict and motion for judgment n.o.v. Accordingly, LeBrook’s fifth enumeration is without merit.

5. We reject LeBrook’s assertion that a new trial was warranted based upon the trial court’s rejection of the jury’s initial verdict. As we stated in Neiman-Marcus v. Gammage, 191 Ga. App. 510, 511 (382 SE2d 208) (1989), “[i]t is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form.” (Citations and punctuation omitted.) In addition, the trial court did not abuse its discretion in denying LeBrook’s motion for a new trial based upon the issues addressed in this appeal. See Mansfield v. Pizza Hut, 202 Ga. App. 601 (415 SE2d 51) (1992).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       LeBrook forwarded payment to the commercial warrantor on February 7, 1992, and the commercial warranty was issued on February 14, 1992.


text:
    A93A1703.
    WHEELER v. THE STATE.
    (437 SE2d 823)
    Decided October 26, 1993.

      Jones & Jones, L. Earl Jones, Stefanie D. Jones, for appellant.

      Britt R. Priddy, District Attorney, Johnnie M. Graham, Assis

      tant District Attorney, for appellee.
   Blackburn, Judge.

The trial court denied appellant Robert Wheeler’s motion to suppress. We granted Wheeler’s application for interlocutory appeal and this appeal followed.

On January 8, 1993, at approximately 4:37 p.m., Officer George Camp of the Albany Police Department stopped the vehicle which Wheeler was driving. Officer Camp testified that Wheeler had committed no traffic violations and he had no reason to believe Wheeler was about to violate the law. Due to several burglaries in the area, the Albany Police Department had instructed its officers “to stop any vehicle or anybody within that area to give an F.I. — it is a field interview. . . .” During Officer Camp’s testimony, he agreed that the sole reason that he stopped Wheeler was because Wheeler was a black man. No composite description of the burglar was available at the time of the instant stop. We find that the stop of Wheeler for the reason stated was impermissible and that the trial court should have granted Wheeler’s motion to suppress the evidence obtained subsequent to the stop.

“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 of vehicles are analogous to Terry-stops 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.” (Citations and punctuation omitted.) Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987).

Being of the same race as a reported burglar provides no reasonable suspicion of criminal conduct by anyone including the appellant. To hold otherwise would authorize stops of any citizen who happens to be of the same race as a reported criminal.

The trial court’s suggestion that the stop of Wheeler was justified by a roadblock analogy is without merit as there was no roadblock involved herein. Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332) (1989). See also Weeks v. State, 206 Ga. App. 431 (425 SE2d 421) (1992).

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1975.
    THE STATE v. BARNES.
    (436 SE2d 798)
   Blackburn, Judge.

The appellee, Carl Barnes, was charged with driving under the influence of alcohol and having no proof of insurance. The trial court granted his motion to suppress, on the grounds that the arresting officer had illegally stopped Barnes’ vehicle, and the State appeals.

At the hearing on the motion to suppress, the arresting officer testified that on September 3, 1992, he was assigned to a task force to stop drug and prostitution activity in the Flat Shoals Road/Fayetteville Road area of DeKalb County. Residents in that area had specifically complained of such activity occurring at a particular car wash. At 12:56 a.m., the officer observed Barnes drive into the parking lot of the car wash and pick up a known prostitute and drug user who was standing by the facility’s motor housing. He pulled into the parking lot after Barnes drove away rapidly when he noticed the officer. The officer followed Barnes out of the parking lot, and then stopped Barnes’ vehicle because of his suspicion that either a drug transaction or act of prostitution was about to transpire.

After making the stop, the officer asked for Barnes’ driver’s license and proof of insurance. Barnes fumbled around in his wallet but was unable to produce either item. Barnes’ speech was slurred as he looked for his driver’s license, and there was a strong odor of alcohol on his breath. The officer also noticed that Barnes’ eyes were bloodshot. When Barnes refused to take some field sobriety tests, the officer arrested him for DUI and no proof of insurance. He did not charge the prostitute with any offense, or take her into custody.

“Reasons for brief investigatory stops need not rise to the level of probable cause to make an arrest, but merely to the level of articulable suspicion that the law was being violated. [Cits.]” Harris v. State, 205 Ga. App. 813, 814 (423 SE2d 723) (1992). “ ‘What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . .’” State v. Holton, 205 Ga. App. 434, 436 (422 SE2d 295) (1992). The trial court’s findings on questions of fact and credibility at a suppression hearing must be accepted on appeal unless clearly erroneous. Harris v. State, supra.

In the instant case, the basis for Barnes’ motion to suppress, and for the trial court’s grant of that motion, was that the arresting officer stopped Barnes’ vehicle solely because he had picked up a known prostitute. However, that conclusion overlooks several other, undisputed circumstances surrounding the decision to stop Barnes’ car: there had been recent complaints from area residents regarding drug and prostitution activity at a particular car wash; the passenger picked up by Barnes at that car wash was a known prostitute and drug user; the police officer’s experience had taught him that drug transactions and prostitution often occur together; Barnes arrived at the car wash at 12:56 a.m., not a normal time to wash a car; and Barnes attempted to drive away rapidly when he realized that the officer had observed him picking up his prostitute passenger.

Decided October 26, 1993.

Ralph T. Bowden, Jr., Solicitor, R. Javoyne Hill, Cliff Howard, Assistant Solicitors, for appellant.

Teddy R. Price, for appellee.

These undisputed circumstances supplied the arresting officer with the necessary “founded suspicion” that criminal activity was about to occur, authorizing the brief investigatory stop of Barnes’ car. The trial court’s effort to protect the rights of the citizenry is commendable; however, the court failed to consider the totality of the circumstances in erroneously suppressing the State’s evidence, and must be reversed.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2003.
    THOMPSON v. THE STATE.
    (436 SE2d 799)
   Blackburn, Judge.

In a one-count indictment, the appellant, Gerald Edward Thompson, and a co-defendant, Charles Milton Poag, were indicted for the armed robbery of a convenience store. Following a trial by jury, Thompson was convicted of the offense and sentenced to 18 years in prison. This appeal followed.

At trial, the evidence produced by the state showed that on the afternoon of August 29, 1992, Poag and Thompson arrived at the convenience store in a blue Ford Fairmont. Poag initially entered the store, purchased a soft drink, and returned to the automobile. Thompson never entered the store. However, while Poag was inside the store, he stood at an inoperable pay phone located in front of the store, with his head down, and later joined Poag at the automobile.

Poag subsequently reentered the store, and while wielding a knife, struck the cashier on the side of her body, and demanded that she surrender the contents of the store’s register. He further instructed her to remove the cord from the store’s telephone. The cashier gave Poag approximately $1,600 in cash, food stamps, and the telephone cord. The two men subsequently fled the store’s parking lot in the Ford Fairmont at a high rate of speed. The state and counsel for the defense stipulated that Poag and Thompson were apprehended in Kansas on September 21, 1992, in the automobile in question and in possession of a knife. The cashier identified the knife as the weapon used in the robbery.

Poag was the only witness presented by the defense. He testified that he robbed the convenience store alone as a “spur of the moment” act and that Thompson was unaware of his intention to commit the offense. He admitted that he was the owner of the automobile in question and had driven the automobile to the store on August 29, 1992. He further admitted that he and Thompson spent the robbery proceeds in Georgia and during their road trip to California.

1. In enumerations 1 and 3, Thompson asserts the general grounds. He initially contends that the trial court erred in denying his motion for a directed verdict of acquittal, and further asserts that the evidence was insufficient to support the jury’s verdict. We disagree.

A directed verdict of acquittal is proper only “where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a).” (Citation and punctuation omitted.) Wright v. State, 205 Ga. App. 149, 151 (4) (421 SE2d 331) (1992). “On appeal we must view the evidence in the light most favorable to the verdict, [Thompson] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. [Cit.] Further, we do not speculate which evidence the jury chose to believe or disbelieve. [Cit.]” Harmon v. State, 208 Ga. App. 271, 272 (1) (430 SE2d 399) (1993).

In the case sub judice, the evidence of Thompson’s participation in the robbery venture is in conflict. While Thompson’s mere presence at the scene is not sufficient to convict him of being a party to a crime, the jury was authorized to infer his criminal intent from his conduct before, during, and after the commission of the crime. Sands v. State, 262 Ga. 367 (2) (418 SE2d 55) (1992); Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993); Grace v. State, 262 Ga. 746 (4) (425 SE2d 865) (1993). The jury could infer that Thompson’s actions during the robbery were consistent with that of an individual maintaining a lookout. Moreover, Thompson’s action of accompanying Poag both before and after the robbery in the cross-country excursion and spending spree was consistent with his participation in the criminal enterprise.

Decided October 26, 1993.

James W. Lovett, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Having reviewed this evidence under the appropriate standards of appellate review, we conclude that a rational trier of fact could find beyond a reasonable doubt that Thompson was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 209 Ga. App. 138 (433 SE2d 106) (1993). Consequently, enumerations 1 and 3 are without merit.

2. During the state’s case-in-chief, Investigator Jackie Edmond-son, of the Brooks County Sheriff’s Department, testified that in the course of his investigation of the robbery, he located Bobby Clark, an acquaintance of Poag and Thompson. The state was unsuccessful in attempting to locate Clark prior to trial. Over Thompson’s objection, the trial court allowed Edmondson to relate a conversation that he had with Clark after the robbery which led to the issuance of arrest warrants for the two men. According to the investigator, Poag told Clark on the day of the robbery that he had to go to the bank to obtain some money. Approximately forty-five minutes later, the two men returned to Clark’s home with pockets full of money.

In his second enumeration, Thompson maintains that the trial court erred in admitting this out-of-court hearsay testimony. We disagree.

“Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. [Cit.]” Matthews v. State, 194 Ga. App. 386, 387 (2) (390 SE2d 873) (1990). See also Dawson v. State, 205 Ga. App. 394 (2) (422 SE2d 280) (1992). Our Supreme Court has held that the facts and circumstances surrounding a defendant’s arrest are relevant and admissible during the trial of a criminal case. Clements v. State, 226 Ga. 66 (1) (172 SE2d 600) (1970); Ivester v. State, 252 Ga. 333 (2) (313 SE2d 674) (1984). While the statement of the out-of-court declarant would not havé been admissible as evidence of Thompson’s guilt of the offense charged, it was nevertheless relevant and admissible to establish the events leading to the arrest of the two men. Aaron v. State, 203 Ga. App. 658, 659 (1) (418 SE2d 66) (1992). Accordingly, we find no error in the trial court’s admission of this testimony. See also Evans v. State, 201 Ga. App. 20, 26 (4) (410 SE2d 146) (1991).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       On April 5, 1993, prior to Thompson’s trial by jury, Poag pled guilty to the offense.


text:
    A93A2018.
    K MART CORPORATION v. BRIGHT.
    (436 SE2d 801)
   Blackburn, Judge.

The appellee, Marjorie Bright, injured her back while at work at K Mart on June 12, 1989, and thereafter was awarded workers’ compensation benefits. In the course of her authorized medical treatment, Bright was referred to the DeKalb Pain Clinic, where she was also treated by a staff psychiatrist for depression that developed as a consequence of the back injury.

Eventually, Bright became dissatisfied with the care provided at the pain clinic, and in November 1990 she sought psychiatric care from Dr. Howell Slaughter, who was not on K Mart’s panel of physicians. Bright did not seek authorization from her employer for this psychiatric care, and instead paid for the services through her regular health insurance coverage.

Bright was hospitalized from April 22, 1991, through May 5, 1991, due to severe depression. During the hospitalization, Dr. Slaughter also arranged for a neurological consultation by Dr. Howard Rosing. Afterwards, Bright requested that K Mart pay the medical expenses associated with the hospitalization, and K Mart controverted the claim.

At the hearing on the claim, Dr. Slaughter testified that he had recommended Bright’s hospitalization on an emergency basis on April 22, 1991, because of a significant increase in the severity of her depression. At the time, he had been concerned that she might become suicidal without immediate intervention. Prior to April 1991, he had not noted any suicidal tendencies on Bright’s part.

The Administrative Law Judge found that K Mart had not refused or failed to provide medical care for Bright before her request for payment of the hospitalization expenses. However, based upon Dr. Slaughter’s testimony, Bright’s claim for the hospitalization expenses was found to be compensable as an emergency under OCGA § 34-9-201 (c). The appellate division of the State Board of Workers’ Compensation and the superior court affirmed that award, and this discretionary appeal followed.

Generally, an employer is not responsible for medical services furnished by a non-panel physician utilized by an employee in disregard of the requirement to select a physician from the panel maintained by the employer. Owens-Illinois v. Champion, 203 Ga. App. 736 (417 SE2d 703) (1992). However, under OCGA § 34-9-201 (c), if an employee is unable to select a panel physician because of an emergency or similarly justifiable reason, that selection requirement is inapplicable.

Decided October 26, 1993.

Robert L. Kiser, for appellant.

Charles W. Wrinkle, for appellee.

“An emergency is an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency.” (Citations and punctuation omitted.) Armstrong v. Allstate Ins. Co., 135 Ga. App. 278, 279 (217 SE2d 486) (1975). As testified to by Dr. Slaughter, Bright’s significantly increhsed depression met that definition of emergency at the time of her hospitalization on April 22, 1991. Dr. Slaughter’s testimony thus compels us to uphold the Board’s determination in this case, inasmuch as the Board’s findings will not be disturbed on appeal where there is any evidence to support them. McLeroy Plumbing Svc. v. Starks, 201 Ga. App. 270 (410 SE2d 756) (1991).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2033.
    SUPER DISCOUNT MARKETS, INC. v. CONEY.
    (436 SE2d 803)
   Blackburn, Judge.

The appellee, Joyce H. Coney, brought the instant complaint for damages against the appellant, Super Discount Markets, Inc. d/b/a Cub Foods (Cub), based upon injuries that she received on November 23, 1988, when she was struck in the abdomen and knocked into a display by 14 shopping carts that had been negligently guided by an employee of Cub. In response to the complaint, Cub asserted several defenses. Upon completion of discovery, the case proceeded to trial by a jury, and the jury awarded Coney damages totaling $95,850, which included $50,000 for pain and suffering, $3,850 for past medical expenses, $10,000 for past lost wages, and $32,000 in future lost wages. This appeal follows the denial of Cub’s motion for a new trial.

1. In enumerations 1 and 2, Cub asserts that the trial court’s charge to the jury on the loss of future earnings was erroneous because Coney failed to prove any lost future earnings with reasonable certainty and failed to establish any permanent impairment based upon the medical evidence produced at trial. We conclude otherwise.

Although in general, all future earnings or diminished future earnings are uncertain and difficult of ascertainment, this does not mean that a plaintiff should be denied a recovery. Michaels v. Kroger Co., 172 Ga. App. 280; 286 (322 SE2d 903) (1984). In order to recover, however, there must be evidence from which the jury can estimate, or reasonably infer the loss or decrease in the earning capacity. Id. Where evidence is presented on the permanency of a plaintiff’s injury, the effect of the injury on earnings, and the monetary amount thereof, a jury charge on the loss of future earnings is authorized. Gilbert v. Parks, 140 Ga. App. 550 (1) (a) (231 SE2d 391) (1976).

In the case sub judice, Coney testified that since the incident, she has been limited in her ability to work overtime hours due to continued back pain stemming from the incident. As we stated in Rosenfeld v. Young, 117 Ga. App. 35 (2) (159 SE2d 447) (1967), the jury was authorized to infer from the evidence the nature and the extent of Coney’s original injuries and from her condition as testified to at the time of the trial that her injuries were at least in some degree permanent and would result in some amount of permanent impairment. Contrary to Cub’s contentions, expert opinion testimony is not required to establish the permanency of an injury. Macon R. & Light Co. v. Streyer, 123 Ga. 279 (3) (51 SE 342) (1905). See also Southern R. Co. v. Clariday, 124 Ga. 958 (53 SE 461) (1906). Coney testified that she did not have any problems with her back prior to the incident. However, since the incident, she has experienced pain while sitting for prolonged periods, reaching downward, and upon lifting heavy objects. Based upon this testimony, we conclude that there was sufficient evidence to infer that her injuries, particularly her back injury, would result in some permanent impairment.

In support of her claim of diminished earnings resulting from the incident, Coney submitted tax records for the years 1984 through 1991. Coupled with the testimony of plaintiff and witnesses, this evidence provided a sufficient basis for the jury to estimate Coney’s pecuniary loss of future earnings. Accordingly, the charge on future lost earnings was authorized, and the trial court did not err in failing to grant a new trial on this basis.

2. Cub further challenges the appropriateness of the trial court’s charge to the jury on Coney’s loss of past earnings. However, this court has recognized that lost earnings are recoverable if the proof is reasonably certain and not based upon mere speculation or guesswork. Johnstone v. Malone Office Equip. Co., 192 Ga. App. 137 (384 SE2d 208) (1989). Coney produced evidence showing her income both before and after the November 23, 1988 incident. Based upon this and other evidence, the jury could determine with reasonable certainty the extent of Coney’s wages lost from the date of the incident through the time of trial. Accordingly, this enumeration is without merit.

3. Cub next argues that the trial court erred in admitting testimonial conclusions contained in a “General Liability Loss Notice” form prepared by Cub’s security personnel that Coney had been struck in the abdomen by carts steered by an employee of Cub, specifically asserting that the statements contained within the report were inadmissible hearsay, and were not within any of the recognized exceptions. We disagree.

Decided October 26, 1993.

Drew, Eckl & Farnham, G. Randall Moody, Jennifer D. Welch, for appellant.

John M. Hyatt, for appellee.

“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. In Waller v. State, 80 Ga. App. 488 (2) (56 SE2d 491) (1949), we held that a photostatic copy of a log made by a radio dispatch operator was admissible because the log was made contemporaneously with the chase of the defendant. In the case sub judice, the evidence showed that the incident report in question was made approximately 30 minutes after Coney was struck. Although the report contained the conclusion of the security personnel that the teenager was a “worker,” implying his employment with Cub’s store, in Bentley v. State, 131 Ga. App. 425, 429 (8) (205 SE2d 904) (1974), we recognized that such conclusions are admissible as a part of res gestae if, as in this case, it is spontaneous rather than a reasoned one arrived at after thoughtful deliberation. Accordingly, the statement contained in the incident report was properly admitted as a part of the res gestae, and the trial court did not err in denying Cub’s motion for new trial on this ground.

4. We likewise reject Cub’s argument that the trial court erred in admitting the statements by an unidentified person to Coney and her daughter which implied that the individual who struck Coney with the shopping carts was an employee of Cub’s store. The declarations were made within minutes after the event and were also part of the res gestae. Cf. Harris v. Strickland, 204 Ga. App. 889 (4) (421 SE2d 91) (1992). Accordingly, we find no error in the trial court’s denial of a new trial on this ground.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2190.
    STELL v. THE STATE.
    (436 SE2d 806)
   Blackburn, Judge.

The appellant, David Stell, was convicted of child molestation, statutory rape, and incest, with all charges involving his ten-year-old daughter. The trial court sentenced him to 20 years’ imprisonment for the child molestation conviction, the other two charges having merged, and this appeal followed.

At trial, Stell’s daughter recalled visiting her father over Thanksgiving weekend in 1989. One night during that visit, Stell called her over to his bed, removed her clothes, and engaged in sexual intercourse with her. Afterwards, Stell warned her not to tell anyone what had happened. The victim also recalled an earlier occasion when Stell fondled her breasts and vagina. She finally told her mother about the incident about three weeks later, after inquiring whether Stell had previously molested her older half-sister.

The victim’s half-sister was allowed to testify that Stell began molesting her from the time she was about four years old and continued to do so until late 1989, when she was about thirteen years old. The molestation included fondling, sexual intercourse, and oral sex.

1. The testimony of the victim’s half-sister was admitted as evidence of similar transactions. Stell contends that the trial court erred in not conducting the “similar transaction” hearing to determine the admissibility of that evidence prior to conducting voir dire, and in disallowing defense counsel to question the prospective jurors during voir dire as to whether evidence of similar transactions would prejudice them against Stell.

Stell cites no authority for the proposition that the similar transaction hearing should be held prior to a jury being impaneled, and we are aware of none. Rule 31.3 of the Uniform Superior Court Rules only requires that the trial court “shall hold a hearing at such time as may be appropriate . . . out of the presence of the jury.” We find no error in the trial court’s holding the hearing after voir dire in this case.

With regard to the trial court’s limitation on the voir dire, although Stell was entitled under OCGA § 15-12-133 to examine the individual jurors as to “any matter or thing which would illustrate any interest of the juror in the case,” “[hypothetical questions involving evidence or requiring a response from a juror which might amount to a prejudgment of the case are improper and should be excluded from the examination of prospective jurors. [Cit.]” Pinion v. State, 225 Ga. 36, 37 (165 SE2d 708) (1969). The trial court thus did not err in prohibiting defense counsel’s examination of the prospective jurors regarding their possible reaction to evidence of similar transactions.

2. Stell next contends that the trial court erred in admitting the similar transaction evidence, on the grounds that those other transactions involving his stepdaughter were not sufficiently similar to the acts for which he was charged. Before a trial court may admit evidence of an independent offense, among other things it must first determine that there is a sufficient connection or similarity between the independent offense and the crime charged, so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). In the instant case, we agree with the trial court that the similar transactions recounted by Stell’s stepdaughter were almost identical to the crime charged involving his natural daughter. The trial court did not err in admitting that evidence of similar transactions.

3. Stell also contends that the trial court erred in admitting the victim’s testimony about the fondling incident that occurred approximately three weeks before the sexual abuse during Thanksgiving weekend of 1989, without notice and a hearing pursuant to Rule 31.3 of the Uniform Superior Court Rules. However, inasmuch as that testimony concerned an act of child molestation involving the same victim that occurred within the period of limitations, and was part of the pattern of molestation of the subject victim, Rule 31.3 does not apply. Murphy v. State, 195 Ga. App. 878 (5) (395 SE2d 76) (1990).

4. The trial in this case took two days to complete. Stell was present during the first day, but failed to appear on the second day. At the hearing on his motion for new trial, Stell claimed that his car broke down in Atlanta at approximately 6:00 a.m. on his way to the courthouse. However, he acknowledged that he had not contacted his attorney or the court to report this difficulty prior to the completion of the trial around 2:00 p.m. that day.

When Stell failed to show up for the second day of trial, defense counsel unsuccessfully moved for a continuance, and subsequently renewed that motion several times throughout the trial, on the grounds that there was no evidence that Stell voluntarily waived his right to be present during his trial. On appeal, he contends that the trial court erred in denying that motion.

When an accused is present at the beginning of the trial, but thereafter voluntarily absents himself from the proceeding, he waives his right to be present at the remainder of the trial. Miller v. State, 122 Ga. App. 869 (179 SE2d 265) (1970). OCGA § 17-8-23 provides for a continuance where a party is providentially prevented from attending the trial, and counsel for the absent party states in his place that he cannot go safely to trial without the absent party’s presence. However, where counsel does not know the reason for his client’s absence and is thus unable to make that formal motion for continuance, the trial court may assume that the defendant has voluntarily absented himself from the trial. Smith v. State, 139 Ga. App. 515 (228 SE2d 705) (1976). Accordingly, the trial court properly denied Stell’s motion for continuance.

Decided October 26, 1993.

Lindsey & Jacobs, Tamara Jacobs, Richard H. Bishoff, for appellant.

Johnnie L. Caldwell, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

5. Stell also contends that the trial court erred in allowing the prosecutor to comment on Stell’s flight. During examination of a witness, the prosecutor remarked that he would ask the witness to identify the defendant “but that would be kind of hard to do since he’s not with us today.” The trial court, however, granted defense counsel’s motion to strike that comment, and Stell has presented nothing for this court to review in that regard.

During closing argument, the prosecutor commented on Stell’s flight after the first day of trial, to which defense counsel objected on the grounds that there was no evidence to support such argument. However, a defendant’s failure to appear in court after the first day of trial constitutes some evidence of flight, and the trial court properly overruled the objection. Carruth v. State, 155 Ga. App. 666 (272 SE2d 531) (1980).

6. Also, during closing argument, the prosecutor suggested to the jury that although it did not owe the prosecutor or the trial court anything, the jury did owe something to the victim, i.e., a duty to protect her from such criminal acts. On appeal, Stell argues that this comment constituted reversible error, but he does not elucidate why. Review of the trial transcript also reveals that he failed to object to this argument during closing argument itself, and thus waived the objection. Cole v. State, 200 Ga. App. 318 (5) (408 SE2d 438) (1991).

7. Lastly, Stell contends that the evidence was insufficient to support his conviction. However, viewed in the light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find Stell guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lott v. State, 206 Ga. App. 886 (4) (426 SE2d 667) (1992).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1400.
    DEPENDABLE COURIER SERVICE, INC. v. DINKINS.
    (436 SE2d 719)
   Cooper, Judge.

Pursuant to OCGA § 9-2-61, appellee-plaintiff Dinkins brought this renewal action, seeking to recover from appellant-defendant for injuries allegedly sustained in an automobile collision. Cross-motions for summary judgment were argued before the court on the applicability of the statute of limitation. Appellant appeals from the order of the trial court granting appellee’s motion for summary judgment and denying appellant’s motion.

The following facts were stipulated: The automobile collision occurred on November 20, 1986. On November 18, 1988, a tort action was filed in the State Court of Fulton County. Service of process was attempted but not accomplished on November 22, 1988. The Fulton County marshal notified appellee’s former counsel that appellant was not to be found in Fulton County. Counsel for the parties agreed to a consent order transferring the case to DeKalb County where venue was proper, and an order of transfer was entered on November 14, 1990. Appellant did not waive any objections to service. The case was docketed in DeKalb County on January 14, 1991. However, appellant was not served with the summons and complaint until February 21, 1992, 13 months later. In response to appellant’s motion for summary judgment based upon the running of the statute of limitation, this DeKalb action was voluntarily dismissed without prejudice on June 23, 1992. The instant renewal action was filed on July 30, 1992 and appellant was served the next day.

“Actions for injuries to the person shall be brought within two years after the right of action accrues. . . .” OCGA § 9-3-33. “Where service [of process] is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” (Emphasis supplied.) (Citations and punctuation omitted.) Freemon v. Dubroca, 177 Ga. App. 745 (2) (341 SE2d 276) (1986). The plaintiff’s diligence in serving a defendant with the summons and complaint must be measured from the time that the statute of limitation would have run and where, as here, a prior complaint was subject to dismissal for failure to timely serve the defendant, the plaintiff’s voluntary dismissal of that voidable action followed by timely service of the renewed complaint as allowed by OCGA § 9-2-61 is not determinative of the merits of a subsequently filed motion predicated upon the expiration of the statute of limitation and the alleged lack of due diligence. Hobbs v. Arthur, 209 Ga. App. 855 (2) (434 SE2d 748) (1993) (overruling Collier v. Marsh, 203 Ga. App. 322, 333 (2) (416 SE2d 849) (1992) and Jones v. Cropps, 197 Ga. App. 313, 314 (2) (398 SE2d 295) (1990)). We are mindful that Hobbs u. Arthur, supra, was not decided until after the trial court’s rulings in the instant action. Nevertheless, “ a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that [may have been] correct at the time it was rendered, . . . where the law has been changed in the meantime and where such application of the new law will impair no vested right. . . .” City of Valdosta v. Singleton, 197 Ga. 194, 208 (3) (28 SE2d 759) (1944). These cross-motions were decided under an erroneous theory of the applicable law. A judgment based upon an erroneous theory of law must be reversed.. Meyers v. Glover, 152 Ga. App. 679, 683 (3) (263 SE2d 539) (1979). The order of the trial court granting appellee’s motion for summary judgment and denying appellant’s motion is reversed. The case is remanded with direction that the trial court reconsider appellant’s motion in light of the authority of Hobbs v. Arthur, supra.

Decided October 5, 1993

Reconsideration denied October 27, 1993

Dremer & Black, Richard W. Brown, for appellant.

Simmons & Toliver, Joseph H. King, Jr., for appellee.

Judgment reversed and case remanded with direction.

Beasley, P. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1640.
    GLOVER v. COLBERT.
    (437 SE2d 363)
   Beasley, Presiding Judge.

In July 1990, Glover sued Colbert for damages sustained in a vehicular collision in January 1990. In 1992, a jury returned a verdict in favor of Glover for $5,000. The court entered judgment in the amount of $2,500, after deducting $2,500 pursuant to former OCGA § 33-34-9 (b) as a result of Glover’s receipt of medical-expense PIP benefits under the Motor Vehicle Reparations Act (“Act”). OCGA § 33-34-1 et seq. We granted Glover’s application for discretionary appeal.

OCGA § 33-34-4 (a) (2) provided for a minimum of $5,000 in required no-fault benefits, which included necessary medical expenses not to exceed $2,500. OCGA § 33-34-4 (a) (2) (A). OCGA § 33-34-9 (b) provided that any person eligible for such benefits was precluded from pleading or recovering in an action against a tortfeasor those damages for which compensation was available for such loss. The Act was repealed effective October 1, 1991. Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992).

In Terry, supra, plaintiff sued her automobile insurer for penalties and punitive damages under OCGA § 33-34-6 because of the insurer’s failure to make timely payment of benefits. The Act was repealed during the pendency of the action. This Court held that Terry’s action had been abrogated under the well-settled principle that repeal of a law authorizing recovery of a penalty defeats the right to recover the penalty unless the right has become vested contractually or through the securing of a final nonappealable judgment. Id. at 225.

“ ‘Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, ... in respect to transactions or considerations already past, must be deemed retrospective.’ [Cit.]” London Guarantee &c. Co. v. Pittman, 69 Ga. App. 146, 157 (25 SE2d 60) (1943). “A repealing act will not be given a retroactive operation so as to divest previously acquired rights. [Cit.]” Whittle v. Jones, 198 Ga. 538 (32 SE2d 94) (1944).

As later recognized in State Farm Mut. Auto. Ins. v. Young, 207 Ga. App. 355, 357 (427 SE2d 835) (1993), the Court in Terry noted that our Supreme Court has recognized that construing a statute to relieve against penalties and forfeitures does not violate the constitutional rights of the complaining party because a person has no vested rights to a forfeiture or penalty. Id. at 227. Terry concluded that the mere mention of the act in Terry’s insurance policy did not give her a contractual right to bring an action to recover penalties and punitive damages or relate to her coverage, but rather created a remedy when timely payments were not made. Id. at 225 (n. 1), 227. It stated that the General Assembly did not indicate whether it intended repeal to have retroactive application, id. at 224-225, but that it did provide in the repealing statute that no-fault coverage in existence on October 1, 1991, would remain in effect until changed by specific request of the policyholder and reflected by endorsement to the policy or until the renewal date of the policy. Id. at 225 (n. 1). Consequently, in State Farm Mut. Auto. Ins. Co. v. Sills, 208 Ga. App. 184 (430 SE2d 32) (1993), Terry was characterized as holding that repeal of the Act is retroactive with respect to available remedies but not with respect to coverage.

This is consistent with Gold v. Pioneer Fund, 107 Ga. App. 855, 860 (132 SE2d 144) (1963), which holds that “the repeal of a statute without reservation takes away all remedies given by it and even defeats all actions and proceedings pending under it at the time of its repeal. . . . [Cits.]” See also Fulton County v. Spratlin, 210 Ga. 447 (1) (80 SE2d 780) (1954), and Mullins v. First Gen. Ins. Co., 253 Ga. 486, 488 (322 SE2d 265) (1984) (plurality opinion).

If the repeal of a statute without reservation takes away a remedy or cause of action, it would seem that it would take away a defense such as that available to a tortfeasor under the No-Fault Act, especially in actions filed after the effective date of the repeal. This would appear to be the intent of the legislature, where, as here, no saving clause was enacted. However, other decisions, including those of our Supreme Court, hold that plaintiffs do acquire vested rights in causes of action and that tortfeasors do acquire vested rights in statutory defenses. Spengler v. Employers Commercial Union Ins. Co., 131 Ga. App. 443 (206 SE2d 693) (1974) (holding that by statute the subrogation rights of the payor of workers’ compensation benefits became vested upon giving notice) distinguished Spratlin, supra, on the ground that Spratlin had no vested right in his particular cause of action. Id. at 449.

Decisions exemplified by Pritchard v. The Savannah Street & Rural Resort R. Co., 87 Ga. 294, 299 (13 SE 493) (1891), give retroactive effect to a law if it “affect[s] the remedy only.” Within the meaning of these decisions, laws which affect the remedy only are remedial statutes, which are “laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same.” Id. at 297; see Biddle v. Moore, 87 Ga. App. 524 (74 SE2d 552) (1953). A remedial statute has also been defined as one remedying defects in the common law. Black’s Law Dictionary Revised 4th Ed., p. 1457 (1968). ‘“[T]he defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective, remedy.’ [Cits.]” Pritchard, supra at 299.

These decisions also countenance the retroactive application of procedural laws. “ ‘The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties ... A law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions . . . No person has a vested right in any course of procedure. . . .” Id. Gold involved a law relating to service of process, i.e., a procedural law.

In Biddle, this Court held that certain amendments to the Code — authorizing the personal representative of a deceased person to recover funeral, medical, and other necessary expenses incurred by the decedent prior to his death, and providing for the survival of causes of action in the personal representative — constituted new substantive rights in the representative and therefore were not remedial in nature to the extent of being given retrospective operation. Biddle held that “[t]he fact that no such right of action existed was, ipso facto, a perfect defense for the tort-feasor, when sued by the personal representative of an estate, as to these items of damage. It has been held that a right of defense should be held as inviolate as a right of action. [Cit.] In Thomas v. Town of Savannah Beach, 66 Ga. App. 178 (17 SE2d 747), it was held that an act, passed subsequently to the death of the claimant’s husband, changing the amount which might be set off by an employer in a workmen’s compensation proceeding, was not applicable, since ‘any rights which the employer or the tortfeasor may have had as respected the amount recoverable against either of them were fixed and vested as of the date of the homicide and could in no wise be changed by any subsequent statute.’ ” 87 Ga. App. at 525-526.

Likewise in Enger v. Erwin, 245 Ga. 753 (267 SE2d 25) (1980), the Supreme Court held that an act of the General Assembly, repealing a statute providing a cause of action for alienation of affections and making the repeal applicable to pending suits, constituted an unconstitutional retrospective application. The Court observed that “[a] constitutional act of the legislature has been found to be the equivalent of a contract and the rights created thereby may not be impaired by subsequent legislation. [Cits.]” Id. at 754. Citing F. H. Ross & Co. v. White, 224 Ga. 324 (161 SE2d 857) (1968), the Court recognized that although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only. As stated in Enger, the Court in F. H. Ross “found the right of contribution between joint tortfeasors to be such a substantive right, that the rights of the parties in this negligence case were fixed at the time of the event upon which liability depended, and that the right of contribution, having been made available by a statute passed since that event, did not apply.” 245 Ga. at 754. “In a negligence case the substantive rights of the parties are fixed at the time of the injury or event on which liability depends.” F. H. Ross, supra at 325 (2).

The general rule is that a tortfeasor cannot diminish the amount of his liability by pleading payments to the plaintiff under the terms of a contract between plaintiff and a third party who was not a joint tortfeasor and that under these circumstances there is no violation of the rule of torts that the plaintiff is not entitled to a double satisfaction for his injuries. Thompson v. Milam, 115 Ga. App. 396, 397 (154 SE2d 721) (1967). OCGA § 33-34-9 (b) changed this rule, pro tanto, by providing that a plaintiff could not recover against a tortfeasor damages for which minimum, mandatory no-fault compensation was available for such loss. Under previously cited cases, this gave the tortfeasor a statutory right which became fixed at the time of the collision. As held in Walker v. Willis, 210 Ga. App. 139 (435 SE2d 621) (1993), the subsequent repeal of the statute does not apply, for the reasons given in that case and herein.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided October 27, 1993.

Nicholas & Weeks, Joe A. Weeks, for appellant.

Long, Weinberg, Ansley & Wheeler, Frederick N. Sager, Jr., Prince A. Brumfield, for appellee.


author: Andrews, Judge.

text:
    A93A1644.
    CHURCH v. THE STATE.
    (436 SE2d 809)
   Andrews, Judge.

Patricia Ann Church was charged with driving under the influence to the extent that it was less safe for her to drive under OCGA § 40-6-391 (a) (1), physically controlling a moving vehicle while her blood-alcohol concentration was in excess of that allowed under OCGA § 40-6-391 (a) (4), and failing to maintain her lane in violation of OCGA § 40-6-48. She was convicted of driving under the influence to the extent that it was less safe for her to drive and appeals.

Evidence at trial was that at about 11:15 p.m. on March 25, 1992, Officer Clark stopped Church for failing to stay in her lane of traffic. Officer Clark observed the vehicle Church was driving cross over the lane lines several times and observed her brake in a jerking manner. Clark suspected that Church was driving under the influence, turned on his video camera and pulled her over; After stopping her, Officer Clark smelled alcohol and requested that she perform field sobriety tests, which she failed. The aleo-sensor test he administered indicated that she had been drinking. Officer Clark administered a second alcosensor test, which again indicated that she had been drinking. Church admitted that she had consumed some alcohol. Officer Clark placed her under arrest, handcuffed her and read her the implied consent card. Church then indicated that she would take the breath test. Officer Clark recalled that Church did not indicate that she wanted an additional test of her own.

Officer Merrifield testified that he administered the intoximeter breath test on Church at approximately 11:46 that evening. He stated that the test registered .13 percent.

Church also testified. She stated that she had consumed one-and-one-half glasses of wine on the evening in question.

1. In her first enumeration of error, Church contends that the trial court erred in failing to exclude the results of the State-administered breath test on the grounds that she was not afforded the opportunity to have an independent chemical test despite her request pursuant to OCGA § 40-6-392 (a) (3).

In addition to Officer Clark’s testimony regarding the sequence of events, the videotape he made of the incident was introduced and is an exhibit to the record before us now. In that videotape, during the field sobriety tests, Church stated: “If you were going to arrest me would you take like a blood test; still you would put me in jail and I would still go to jail for DUI, right?” After this statement, Officer Clark administered a second alco-sensor test, read Church the implied consent warnings and arrested her. When advised of her right to an independent test, she then stated: “it won’t matter and you know that.” Officer Clark was present during the administration of the breath test and Church never mentioned an independent test.

Officer Clark testified that until he viewed the videotape he did not recall Church mentioning an independent test. The trial court denied Church’s motion to exclude the results of the intoximeter test on the basis that Church had requested the test prior to the reading of the implied consent warnings, and thus prior to her right to an additional test having attached.

Church contends that her questions regarding a blood test constituted a request for an independent test under OCGA § 40-6-392 (a) (3). We disagree. Church, who had not been read the implied consent rights, was simply clarifying the procedure which would be followed if she was arrested. Her response after being told that she was entitled to an independent test is consistent with our interpretation that her statement was not a request. The conflict “having been resolved in favor of the State, that is, the trial court having concluded that defendant did not effectively communicate to the officers any desire for an additional test, the trial court did not err in denying defendant’s motion to suppress the evidence.” (Citation omitted.) Magher v. State, 199 Ga. App. 508 (1) (405 SE2d 327) (1991). Because of our conclusion that no adequate request was made under OCGA § 40-6-392 (a) (3), we do not reach the issue of when the right to exercise this choice attached. See generally Duckett v. State, 206 Ga. App. 651 (426 SE2d 271) (1992); State v. White, 188 Ga. App. 658 (373 SE2d 840) (1988).

2. In her second enumeration of error, Church argues that the trial court erred in allowing Officer Clark to testify as to the ultimate issue of fact before the jury, that in his opinion Church was a less safe driver. She contends this was an inadmissible legal conclusion and that in so testifying, Officer Clark invaded the jury’s province. Church’s arguments in this regard were decided adversely to her in Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) (1989); see also Fisher v. State, 177 Ga. App. 465 (1) (339 SE2d 744) (1986).

3. Thirdly, Church contends that the trial court erred in its failure to grant her motion for directed verdict since the State proved only her breath-alcohol content, not her blood-alcohol content. Pretermitting issues arising out of the fact that Church was acquitted on charges under OCGA § 40-6-391 (a) (4), we find her arguments in this regard misplaced. See Page v. State, 202 Ga. App. 828 (1) (a) (415 SE2d 487) (1992); Fudge v. State, 184 Ga. App. 590 (5) (362 SE2d 147) (1987).

Decided October 27, 1993.

Clark, Justice, Harkins & Croy, Kenneth R. Croy, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Mary W. Kendall, Assistant Solicitors, for appellee.

4. In her final enumeration, Church contends that the trial court erred in sentencing her to a misdemeanor of a high and aggravated nature in that it erroneously allowed into evidence a Department of Public Safety printout to prove her prior DUI convictions. Specifically, citing Baldasar v. Illinois, 446 U. S. 222 (100 SC 1585, 64 LE2d 169) (1980), and Burgett v. Texas, 389 U. S. 109 (88 SC 258, 19 LE2d 319) (1967), she claims that the evidence of her previous DUI convictions was improper since there was no showing that she had either been represented by counsel, or had waived counsel in these previous cases.

There is no contention that Church was sentenced to serve time in conjunction with the previous convictions. Again, based on Dotson v. State, 179 Ga. App. 233, 234 (3) (345 SE2d 871) (1986), we reject Church’s argument. See generally Stillwell v. State, 161 Ga. App. 230, 232 (288 SE2d 295) (1982).

Judgment affirmed.

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


text:
    A93A2152.
    McCOY v. THE STATE.
    (437 SE2d 366)
   Andrews, Judge.

McCoy was found guilty by a jury on all six counts of an indictment charging him with six separate offenses of selling cocaine in violation of OCGA § 16-13-30 (b). Prior to trial, the State gave the defendant notice that it would use the defendant’s prior conviction for possession with intent to distribute cocaine in aggravation of punishment as a basis for imposition of life imprisonment under the recidivist provision of OCGA § 16-13-30 (d) applicable to conviction of a second or subsequent offense. Based on the defendant’s prior conviction, the trial court sentenced McCoy to life imprisonment on Count 1; a consecutive life term of imprisonment on Count 6, and on Counts 2, 3, 4 and 5, life terms concurrent with each other, and concurrent with the two consecutive life terms imposed under Counts 1 and 6.

In his sole enumeration of error, McCoy claims the separate life sentences imposed as recidivist punishment for convictions under each count of the indictment were void. He argues that the trial court was required to treat the convictions on the six counts in the indictment as only one conviction for which he could be sentenced for one life sentence. In support of this position McCoy cites a portion of the recidivist statute, OCGA § 17-10-7 (c), which states: “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

Decided October 27, 1993.

Straughan & Straughan, Mark W. Straughan, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

The provisions of subsection (c) of OCGA § 17-10-7 place limitations on the use of prior convictions used as a basis for imposing enhanced recidivist punishment. See Philmore v. State, 263 Ga. 67, 70 (428 SE2d 329) (1993); State v. Freeman, 198 Ga. App. 553, 555 (402 SE2d 529) (1991); Darty v. State, 188 Ga. App. 447 (373 SE2d 389) (1988). The life sentences in this case were imposed for convictions on each count of the indictment pursuant to the mandatory life sentence recidivist provision of OCGA § 16-13-30 (d) based on the defendant’s one prior conviction. The trial court properly imposed a mandatory life sentence for each offense. Jones v. State, 202 Ga. App. 162 (413 SE2d 784) (1991); State v. Sears, 202 Ga. App. 352, 354 (414 SE2d 494) (1991); OCGA § 17-10-10.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A93A1044.
    HARDEN v. THE STATE.
    (436 SE2d 756)
   Johnson, Judge.

William Harden, Jr., was convicted of homicide by motor vehicle in the first degree, operating a motor vehicle after being declared a habitual violator, and driving under the influence of alcohol. Harden appeals his convictions and the denial of his motions for a directed verdict as to the homicide by motor vehicle and driving under the influence of alcohol charges.

On April 12, 1991, Harden was driving along a curved, wet highway when his pickup truck swerved off the road, skidded and struck a tree. Harden’s passenger was killed. Harden had been drinking, though the deputy sheriff who arrived at the scene did not detect the presence of alcohol on Harden’s breath. Harden was slightly injured and was taken to a hospital. There he met a state trooper who was investigating the fatal accident. The trooper asked hospital personnel to conduct a blood-alcohol test on Harden and was told that a lab technician would perform the procedure. Thereafter, someone in a hospital uniform appeared and withdrew Harden’s blood. The state trooper knew nothing about the person’s qualifications. At trial, the State offered no other evidence of the person’s qualifications.

1. Harden asserts that the trial court erred in admitting the results of his blood-alcohol test into evidence because the State failed to prove that a qualified person withdrew his blood as required by OCGA § 40-6-392. We agree. The evidence should not have been admitted.

“When a person shall undergo a chemical test at the request of a law enforcement officer [under Code section 40-5-55], only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein.” (Emphasis supplied.) OCGA § 40-6-392 (a) (2).

This court has construed OCGA § 40-6-392 “as establishing a mandatory requirement applicable in any criminal case arising out of an alleged violation of OCGA § 40-6-391 and in which that violation is an essential element of the asserted criminal liability. The mandatory requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.” (Punctuation omitted.) Munda v. State, 172 Ga. App. 857, 858 (1) (324 SE2d 799) (1984). This burden may be satisfied in at least two ways. First, as is generally the practice in other circuits throughout Georgia, the State may call as a witness the person who withdrew the blood and have that person testify as to his or her qualifications. See Thurman v. State, 172 Ga. App. 16, 17 (1) (321 SE2d 780) (1984); Gooch v. State, 155 Ga. App. 708, 711 (6) (272 SE2d 572) (1980). Secondly, the State may present a certificate from the Secretary of State or the Department of Human Resources that the person was, at the time the blood was drawn, licensed or certified in one of the professions listed in OCGA § 40-6-392 (a) (2). OCGA § 40-6-392 (e). We note that there would be no reason for the legislature to include this subsection on how qualifications may be proven at trial if it was not necessary for qualifications to be proved.

The State argues that it would be unreasonable to expect a law enforcement officer to ascertain the qualifications of the person withdrawing the blood before the procedure can be performed. We agree that such an expectation would be unreasonable. However, that argument misses the point. A law enforcement officer is not expected to know the qualifications of the person withdrawing the blood. All that is required, in terms of qualifications, is that the State prove at trial that the person who performed the procedure was qualified. Here, the State attempted to prove that the person who withdrew Harden’s blood was qualified through the testimony of a state trooper who knew nothing about her qualifications. The trooper could only testify to what hospital personnel had told him. This testimony is clearly hearsay. “Hearsay evidence has no probative value even if it is admitted without objection.” (Citations and punctuation omitted.) Shaver v. State, 199 Ga. App. 428, 429 (1) (405 SE2d 281) (1991); see also Brown v. State, 206 Ga. App. 800, 802 (427 SE2d 9) (1992). Because the only evidence offered by the State as to the qualifications of the person who withdrew Harden’s blood was inadmissible hearsay having no probative value, the State has failed to present any competent evidence showing that the mandatory requirements of OCGA § 40-6-392 (a) (2) have been met. Breach of the requirement renders evidence of the blood test offered by the State inadmissible to establish a presumption that the alleged drunken driver was driving under the influence. Munda, supra. Therefore, we hold that the trial court erred in admitting evidence of the blood-alcohol test.

Although the test results were erroneously admitted, we must also determine whether, under the facts of the case, the admission was harmless error. When Harden presented his case, he admitted that he and his friend had consumed about two pitchers of beer before he got into the truck and that he drank more beer while he was driving. On cross-examination, Harden flatly admitted that he was not sober at the time of the accident. Based upon this evidence, a reasonable trier of fact could have found him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Morris v. State, 205 Ga. App. 650 (423 SE2d 54) (1992).

Thus, any error in the admission of the test results would not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdicts. Johnson v. State, 204 Ga. App. 246, 247-248 (4) (419 SE2d 107) (1992).

2. Harden also claims that the trial court erred in denying his motion for a directed verdict because, when the State rested, there was no evidence proving that he was driving under the influence. We disagree.

“A directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense. Bethay v. State, 235 Ga. 371, 374-375 (219 SE2d 743) (1975); Hawkins v. State, 195 Ga. App. 739 (395 SE2d 251) (1990).” (Punctuation omitted.) Tyler v. State, 198 Ga. App. 685, 687-688 (2) (402 SE2d 780) (1991). As discussed in Division 1 above, there-was a conflict in the evidence introduced during the course of the trial and the evidence did not demand a verdict of acquittal. Instead, the evidence in the case was sufficient to support the guilty verdicts. Therefore, the court did not err in denying Harden’s motion for a directed verdict.

Decided October 14, 1993

Reconsideration denied October 28, 1993.

O. Dale Jenkins, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

3. Harden also contends that the trial court erred in recharging the jurors, upon their request, on the issue of intent. Although Harden’s argument is not clear, he appears to claim that during the recharge the judge intimated his opinion as to Harden’s guilt, which would be improper under OCGA § 17-8-57. We have examined the recharge and disagree. Furthermore, we note that Harden failed to specifically object to the recharge at trial and has therefore waived the issue for purposes of appeal. Butts v. State, 198 Ga. App. 368, 369 (2) (401 SE2d 763) (1991).

Judgment affirmed.

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

       Harden apparently does not appeal the habitual violator conviction. In his motion for a directed verdict, he only mentioned the DUI and the vehicular homicide charges. In addition, Harden testified on cross that he had been declared a habitual violator. Only the third enumeration of error has any application to the habitual violator charge.


text:
    A93A1073.
    PICCADILLY PLACE CONDOMINIUM ASSOCIATION, INC. v. FRANTZ.
    (436 SE2d 728)
   Johnson, Judge.

Piccadilly Place Condominium Association, Inc. brought this action against unit owner Mark Frantz seeking a mandatory injunction and damages in connection with alleged violations of section 7 (f) of the declaration of condominium for Piccadilly Place and OCGA § 44-3-106 (a) (3). Specifically, the association sought a court order requiring Frantz to remove security storm doors and burglar bars which Frantz had installed on the doors and the interior of the windows of his condominium unit without the prior written approval of the Architectural Control Committee (ACC). Frantz answered, asserted several counterclaims and filed a motion for judgment on the pleadings, which was granted by the trial court. The association appeals.

1. In the motion, Frantz argued that he had obtained the requisite prior approval for the installation of the doors from Joe Shulz, a member of the board of directors of the condominium association and a member of the ACC. This fact was acknowledged by the association at a hearing on the motion, and therefore it is clear that the trial court correctly granted Frantz’s motion with regard to the doors. The association’s claim with respect to the windows demands closer scrutiny.

It is uncontested that Frantz is an owner of a unit in Piccadilly Place Condominium and therefore is bound by the terms of its declaration which constitutes a set of covenants running with the property. The association seeks to apply the use restriction contained in section 7 (f) of the declaration of condominium to the bars installed on the interior surface of Frantz’s windows. That section reads: “No planting or gardening shall be done, and no fences, hedges, or walls shall be erected or maintained upon the property subjected hereto, except such as have been installed in accordance with the initial construction of the buildings located thereon or as approved by the Association’s Board of Directors or their designated representative. ...” The trial court, noting that burglar bars are not fences, hedges or walls, correctly found section 7 (f) inapplicable. As Justice Carley recently stated in his dissent in Prime Bank v. Galler, 263 Ga. 286 (430 SE2d 735) (1993), “ ‘[covenants running with the land must be strictly construed and clearly established. . . .’ Columbia Valley Rec. Cntr. v. Massie, 223 Ga. 151, 152 (1) (154 SE2d 215) (1967).” Id. at 289. Applying that principle to section 7 (f), it clearly does not contemplate burglar bars.

The association asserts, in its single enumeration of error, that the trial court erred by finding that OCGA § 44-3-106 (a) (3) does not give the association the right to control the exterior of a condominium unit. This is a misstatement of the trial court’s holding. The trial court found only that “OCGA § 44-3-106 (a) (3) is inapplicable to the present situation.” We agree. OCGA § 44-3-106 (a) (3) provides: “Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the power to [g]rant or withhold approval of any action by one or more unit owners or other persons entitled to occupancy of any unit if such action would change the exterior appearance of any unit. ...”

The trial court found that the installation of burglar bars on the interior of the unit does not affect the unit’s exterior appearance because they are not attached or affixed to the exterior of the unit. The court compared the interior bars to blinds, shutters or curtains which, although they may be visible from the outside of the unit, are not part of the exterior, and therefore are not controlled by the statute.

Decided October 12, 1993

Reconsideration denied October 28, 1993

Weinstock & Scavo, Michael Weinstock, James J. Scavo, Hillard J. Quint, for appellant.

Mark Frantz, pro se, for appellee.

“As a general rule, the owner of land in fee has the right to use the property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established.” (Citations and punctuation omitted.) Reid v. Standard Oil Co. of Ky., 107 Ga. App. 497, 499 (1) (130 SE2d 777) (1963). As with covenants, statutes restricting an owner’s use of property must be strictly construed. “Since statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms.” (Citations and punctuation omitted.) Fayette County v. Seagraves, 245 Ga. 196, 197-198 (1) (264 SE2d 13) (1980). OCGA § 44-3-106 (a) (3) constitutes a delegation of authority to the condominium association and must be construed strictly against the party seeking to restrict the use of property. Strictly construing the statute and applying it to the facts of this case, we conclude that the trial court did not err in its interpretation of the statute. Although the burglar bars may have been visible from the outside, they were not an impermissible alteration of the exterior of the unit.

2. Frantz’s motion for frivolous appeal sanctions is denied.

Judgment affirmed.

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

       The covenants of many condominium and/or homeowner associations contain provisions which allow the association to control alterations to the interior of units, which are visible from the outside. Such a use restriction would have achieved the appellant’s goal in this case with respect to the interior burglar bars.


text:
    A93A1173.
    CLARK et al. v. SCHWARTZ.
    (436 SE2d 759)
   McMurray, Presiding Judge.

Plaintiff Schwartz originally filed this action seeking an accounting following the dissolution of an alleged partnership for the practice of law. Defendants Clark & Smith, P. C., Emory L. Clark and Hoke Smith III denied that they had ever been in a partnership with plaintiff. The original complaint was replaced in toto by an amended complaint which stated an action for damages and sought to recover the value of plaintiff Schwartz’s interest in the alleged partnership. Upon the trial of the case, a jury returned a verdict in favor of plaintiff in the amount of $84,265.66, including prejudgment interest, and against defendants Clark and Smith. Defendants appealed and raise several issues including whether the evidence presented at trial was sufficient to authorize the jury’s verdict. Held:

We find that the evidence and law requires a conclusion that there was no partnership, and consequently the verdict awarding the value of an interest in a partnership was not authorized. The trial court erred in entering a judgment predicated on the verdict of the jury and in denying defendants’ motions for directed verdict, j.n.o.v., and new trial predicated on the insufficiency of the evidence.

“A partnership is an association of two or more persons to carry on as co-owners a business for profit.” OCGA § 14-8-6 (a). A partnership results from a contract, either express or implied. Huggins v. Huggins, 117 Ga. 151, 155 (1) (43 SE 759). A contract is not complete and enforceable until there is a meeting of the minds as to all essential terms. OCGA § 13-3-2; Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241); Sierra Assoc., Ltd. v. Continental Illinois Nat. Bank &c. Co. of Chicago, 169 Ga. App. 784, 791 (3b) (315 SE2d 250).

In the case sub judice, the scales of justice are heavily weighted by substantial evidence on both sides of the question of whether there was a partnership agreement. However, there is no proof of a meeting of minds as to at least one essential term, what portion of the alleged partnership was plaintiff’s. Plaintiff’s amended complaint alleges: “There was never an agreement reached between Plaintiff on the one hand, and Defendants on the other, as to Plaintiff’s exact percentage interest in the partnership with Defendants in the law firm.” This allegation was borne out by the evidence at trial. At the same time the evidence rebutted any presumption in favor of an equal division of ownership shares among partners since it was uncontroverted that Clark and Smith were to retain a disproportionate share of the alleged partnership. Under these circumstances the jury lacked any rational basis upon which they could derive from the evidence, as to the value of the purported partnership, the value of plaintiff’s interest therein. The jury’s verdict must be viewed as predicated on speculation and thus void.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

Decided October 14, 1993

Reconsideration denied October 28, 1993

Smith, Howard & Ajax, John A. Howard, Maria A. Salterio, Kenneth B. Hodges III, for appellants.

Kutak & Rock, Thomas R. Todd, Jr., Angela M. Gottsche, for appellee.