text:
    A96A0747.
    SOUTHERN ORCHARD SUPPLY v. BOYER.
    (472 SE2d 157)
   Smith, Judge.

This case arises out of injuries sustained by Benjamin Boyer when a metal pipe he was holding contacted high voltage wires. On May 3, 1993, Boyer was employed as a farm laborer by Southern Orchard Supply (Southern Orchard). He was assigned the task of replacing irrigation pipe that ran between two fields on opposite sides of a road. High voltage lines some 25 feet off the ground ran along the roadway. After debris was discovered in the pipe, Boyer and another worker attempted to clean it out. To force the debris out of the pipe, which was 30 feet long, they raised it on its end. In so doing, the aluminum pipe came too close to one of the high voltage wires, and Boyer was injured. He brought this action against Southern Orchard alleging that Southern Orchard negligently failed to report work to be performed near the power lines and thus caused his injuries.

Southern Orchard moved for summary judgment on the grounds that Boyer had equal knowledge of the open and obvious danger posed by the power lines and failed to use ordinary care for his own safety. Evidence was presented that Boyer knew the high voltage lines ran overhead near where he was working. He was also aware of the danger posed by the wires if he approached them too closely. Although he contended he was being careful to avoid the wires, he also acknowledged that he could have moved the pipe to a different location farther from the power lines before attempting to clean out the debris. Despite his knowledge of the presence of the lines and the danger they posed, he and the other worker lifted one end of the pipe into the air near the high voltage lines. Boyer admitted that he was not looking up when he and the other worker were attempting to raise the pipe.

In his response to Southern Orchard’s motion, Boyer contended that Southern Orchard failed to comply with the provisions of the “High-voltage Safety Act,” OCGA § 46-3-30 et seq., regarding the reporting of certain work to be performed within ten feet of power lines. This failure, according to Boyer, was negligence per se and precluded summary judgment to Southern Orchard. The trial court denied Southern Orchard’s motion, and we granted its application for interlocutory appeal. We conclude that the motion for summary judgment was erroneously denied and reverse.

Boyer has no claim against Southern Orchard under a premises liability theory. It is undisputed that Boyer had knowledge of the existence of the power lines and their potential danger. An employee who has knowledge of a hazardous condition equal to that of his employer cannot recover. “In an action by a servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.” (Citation and punctuation omitted.) Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 99 (2) (303 SE2d 284) (1983) (physical precedent only as to Division 6). See also Clayton v. Larisey, 190 Ga. App. 512 (379 SE2d 789) (1989). Here, in spite of his knowledge of the high voltage wires and their danger, Boyer, without looking up, attempted to lift a long section of the aluminum pipe into the air near the lines. He failed to exercise ordinary care for his own safety, and it was his own negligence that proximately caused his injury. This failure to exercise ordinary care is fatal to his claim. See Ga. Power Co. v. Purser, 152 Ga. App. 181 (262 SE2d 473) (1979); Leonardson v. Ga. Power Co., 210 Ga. App. 574 (436 SE2d 690) (1993) (plaintiff attempted to move tree despite adjacent power line, which he knew was dangerous; summary judgment to power company affirmed).

Obviously aware of these facts that preclude recovery, Boyer attempts to impose liability on Southern Orchard through the High-voltage Safety Act. OCGA § 46-3-33 does provide that a person or business intending to perform work within ten feet of a high voltage line must provide notice to the utilities protection center at least 72 hours prior to such work being performed and must guard against danger by undertaking certain measures prescribed in subsection (2). The Act, however, is directed only toward “those businesses, whether giant corporations or one-man concerns, whose usual activities would foreseeably bring their employees within close proximity to voltage lines.” (Emphasis supplied.) Savannah Electric & Power Co. v. Holton, 127 Ga. App. 447, 451 (193 SE2d 866) (1972). See also Johnson v. Richardson, 202 Ga. App. 470 (414 SE2d 698) (1992). The kinds of activities intended to be covered under the Act “are not random or casual exposures to lines.” Savannah Electric, supra at 450.

Here, Southern Orchard’s business involved growing vegetables, which includes irrigating them. The installation of the pipes usually required that they be raised only 10-12 inches to connect one to the other, not 25 feet into the air. Although Boyer was in the vicinity of high voltage lines while replacing pipe and was injured, the only reason he came into contact with one of them was because he chose to attempt to raise a pipe near the line, without looking up at the line, rather than move to a different, safer location.

We note that Buckner v. Colquitt EMC, 206 Ga. App. 69 (424 SE2d 299) (1992), cited by Boyer, is distinguishable. In Buckner we stated, “One maintaining high tension lines must maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them.” (Emphasis omitted.) Id. at 70. Boyer makes no claim against the power company maintaining the wires, but against his employer. Moreover, Southern Orchard had no reason to expect that, in a routine operation usually involving lifting pipes 12 inches off the ground, an employee would decide to stand a 30 foot pipe on end under a power line with full knowledge of the line’s proximity. Boyer’s exposure to the line was a “random or casual” one, not reasonably foreseeable by Southern Orchard, and the High-voltage Safety Act is not applicable.

Decided June 3, 1996.

Chambless, Higdon & Carson, Marc T. Treadwell, Swift, Currie, McGhee & Hiers, Christopher D. Balch, for appellant.

Emerson Carey, Jr., for appellee.

Because Boyer had actual knowledge of the existence of the lines and failed to exercise ordinary care for his own safety and because Southern Orchard is not liable under the High-voltage Safety Act, the trial court erred in denying Southern Orchard’s motion for summary judgment.

Judgment reversed.

Pope, P. J, and Andrews, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A96A0735.
    RABON v. DEPARTMENT OF TRANSPORTATION.
    (472 SE2d 105)
   Johnson, Judge.

As part of a road-widening project, the Department of Transportation (“DOT”) filed this proceeding to condemn a portion of land on which David Rabón, Jr.’s residence is located. In response to the condemnation action, Rabón filed a petition to annul, set aside and dismiss the taking, a response to the petition in which he demanded just and adequate compensation for the taking, and a notice of appeal demanding a jury trial as to the amount of compensation. After a hearing, the trial court denied Rabon’s petition to annul, leaving the question of value for a jury. Rabón obtained a certificate of immediate review from the trial court and applied for an interlocutory appeal of that ruling. We denied Rabon’s application for interlocutory appeal, but while his application was pending, Rabón filed this direct appeal. As the DOT points out in its motion to dismiss, Rabon’s direct appeal is premature.

“Where an appeal to a jury as to value is pending, the judgment of condemnation under the special master’s condemnation procedure is not a final judgment subject to review. Consequently, this appeal must be dismissed. However, appellant will be entitled to appeal directly and raise all issues regarding the condemnation of his property when the issue of just and adequate compensation is no longer pending below and all issues have become final.” (Citations, punctuation and emphasis omitted.) Stafford v. Bryan County Bd. of Ed., 212 Ga. App. 6, 7 (440 SE2d 774) (1994); see Coffey Enterprises &c. v. Dept. of Transp., 159 Ga. App. 903 (286 SE2d 44) (1981).

Appeal dismissed.

McMurray, P. J., and Ruffin, J., concur.

Decided May 16, 1996

Reconsideration denied June 4, 1996.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, David P. Thatcher, for appellant.

Dwyer & White, Carmen Smith, Weekes & Candler, Frank J. Rhodes, Jr., for appellee.


author: Blackburn, Judge.

text:
    A95A0989.
    MARTIN v. THE STATE.
    (474 SE2d 195)
    Decided June 4, 1996.

      James M. Mullís, for appellant.

      Keith C. Martin, Solicitor, for appellee.
   Blackburn, Judge.

In Martin v. State, 217 Ga. App. 860 (460 SE2d 92) (1995), we reversed the trial court’s denial of Michael DeWayne Martin’s motion in limine to suppress his breath test results based upon the law existing at the time of the rendition of our decision. See former OCGA § 40-5-67.1. Thereafter, in the 1995 Extraordinary Session, the Georgia legislature amended OCGA § 40-5-67.1, and the Supreme Court granted Martin’s application for certiorari.

In its opinion, the Supreme Court recognized that our original opinion was correct when issued. However, the Supreme Court was bound to apply the law as it existed at the time of its consideration of the case. In doing so, the Supreme Court determined that the new amendment to OCGA § 40-5-67.1 rendered the trial court’s decision to deny Martin’s motion in limine to suppress his breath test correct. Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0161.
    LIVINGSTON v. THE STATE.
    (472 SE2d 163)
   Blackburn, Judge.

Ronnie Wayne Livingston appeals his conviction for DUI and obstruction of an officer.

On November 12, 1994, Officer Alan Edward Smithwick of the Clayton County Police Department stopped Livingston after observing the vehicle Livingston was driving weave and cross the fog line. After smelling alcohol on Livingston’s breath, Officer Smithwick requested the assistance of a member of the Clayton County DUI Task Force. Officer Shawn R. Witmer responded to the request. Officer Witmer determined that Livingston was intoxicated after observing his demeanor and conducting various field sobriety tests. Livingston was then arrested and later charged with obstructing an officer as well as driving under the influence of alcohol to the extent it was less safe to drive.

1. Livingston argues that the trial court erred in permitting Officer Witmer to testify to the following: “being that alcohol is a depressant, it affects the central nervous system which affects the person’s ability to perform some of these [field sobriety] tests.” Livingston asserted that this testimony constituted a medical conclusion and was offered without the proper foundation. We disagree, finding the present matter analogous to our decision in Kimbrough v. State, 215 Ga. App. 303 (450 SE2d 457) (1994).

In Kimbrough we determined that an undercover narcotics officer could offer his opinion, without being qualified as an expert witness, as to the street value of seized cocaine. “It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert. ... To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.” (Punctuation omitted.) Id. at 303. The record reflected that Officer Witmer had five years of law enforcement experience, he had 40 to 50 hours of special training in DUI detection including field sobriety testing, and he had participated in approximately 500 DUI arrests. We find a proper foundation had been laid for him to testify about the effects of alcohol consumption on the body and how field sobriety tests are designed to detect someone who has been drinking. Accordingly, the trial court did not abuse its discretion in overruling Livingston’s objection.

2. In his second and third enumerations of error, Livingston asserts that the evidence was insufficient to support his convictions for DUI and obstructing an officer. These enumerations are without merit. Livingston admits that he was drinking prior to his arrest. Additional evidence, viewed in the light most favorable to the verdict, shows that the vehicle Livingston was operating weaved and had difficulty staying within its lane just prior to Officer Smithwick’s stop. At the time of the stop, alcohol could be smelled on Livingston’s breath, his speech was slurred, he was unsteady on his feet, and he had difficulty performing various field sobriety tests. At the time of his arrest, Livingston became uncooperative and combative, resisting the officers’ attempts to handcuff him. We note further that a videotape of the stop and the arrest was viewed by the jury during the course of the trial. Thus, we find the evidence sufficient to enable a rational trier of fact to find Livingston guilty of both the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 4, 1996.

Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J, concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I fully concur in the opinion and judgment except that it should be noted, at the least, that the State did not file a brief despite its obligation to do so. Court of Appeals Rule 13 provides expressly that “a brief shall be filed by the appellee in all criminal appeals when the State is the appellee.” The importance of fulfillment of this mandate by the State’s officers is confirmed by the twice-repeated warning that failure subjects the violator to contempt. Court of Appeals Rules 13 and 26 (b). We have chosen not to impose any sanction in this case, but we do not even have an explanation for the absence of the State’s brief.


author: Ruffin, Judge.

text:
    A96A0330.
    LEE v. GORE.
    (472 SE2d 164)
   Ruffin, Judge.

Jimmy Lee was Chief Tax Appraiser of Haralson County from 1990 until he was removed from office on January 11, 1994. On February 1, 1995, Lee filed a complaint against Mira Reggie Gore and several other defendants for libel, slander, conspiracy to libel and slander, and interference with employment. He alleged Gore conspired to publish a petition entitled “Petition to Dismiss Jimmy Lee as Chief Assessor for the Haralson County Board of Tax Assessors” and that this petition contained falsehoods about him. The trial court awarded summary judgment to Gore based on the one-year statute of limitation for libel and slander actions. Lee appeals this order.

In his sole enumeration of error, Lee asserts the trial court “erroneously failed to take into consideration that the statute of limitations in this case is two (2) and four (4) years, based upon the claim of interference with trade or profession by the Plaintiff, rather than simple slander or libel, which would have a one (1) year statute of limitations.” Specifically, Lee contends his complaint should be liberally construed to include a cause of action for interference with a property right. For reasons which follow, we affirm in part and reverse in part.

1. Count 2 of Lee’s complaint, the only count addressing Gore, states Gore is being sued “in tort for libel, slander and conspiracy to libel and slander.” According to the complaint, Gore conspired to publish a “Petition to Dismiss Jimmy Lee as Chief Assessor for the Haralson County Board of Tax Assessors.” “This petition, which is libelous per se, was on it’s [sic] face and in it’s [sic] purpose designed to totally interfere with the employment position, trade or profession of the Plaintiff as an employee of Haralson County to-wit: Chief Tax Assessor. As such each of the Defendants is jointly and severely [sic] liable in tort for said interference with Plaintiff’s trade or profession.” Paragraph 23 of the complaint alleges “Defendants committed slander per se against the Plaintiff designed specifically, as is set forth in the petition itself, to totally destroy Plaintiff’s trade or profession in a malicious, willful, tortuous [sic] manner.” Paragraph 28 of the complaint requests “[f]or this slander and libelous interference with Plaintiff’s profession, each Defendant should be held liable to Plaintiff. . . .” Furthermore, paragraph 32, subsection d, requests that the defendants be declared liable “in tort for the malicious, willful libel and slanderous interference with his profession as Chief Tax Assessor . . . and that Plaintiff be awarded special damages from each of them equivalent to all the pay he has lost from the date of his wrongful discharge. . . .”

It is clearly established in Georgia that an individual has a valuable property right in his employment, trade or profession and that this property right is subject to a four-year statute of limitation. OCGA § 9-3-31; Taylor v. Greiner, 156 Ga. App. 663, 665 (3) (275 SE2d 737) (1980), modified on other grounds, 247 Ga. 526 (277 SE2d 13) (1981). It is not disputed by either party that if Lee’s complaint alleges a cause of action for tortious interference with employment, the applicable statute of limitation has not expired and the trial court’s grant of summary judgment based on the statute of limitation defense is improper as to this particular claim. The dispute is whether Lee’s complaint alleges a claim for tortious interference with employment. We believe it does.

Under the Georgia Civil Practice Act, pleadings need only “give notice of what the adverse party may expect to meet, rather than to frame issues. ... It now suffices to plead conclusions, whether of fact or of law, provided the pleading is sufficiently definite so as to give fair notice to the opposite party of the precise nature of the matters thereby raised and sufficiently inform the court to determine the question presented.” (Citations omitted.) Woods v. Canady, 126 Ga. App. 389 (1) (190 SE2d 920) (1972). Pleadings will be liberally construed in light of this purpose and will be “construed to serve the best interests of the pleader. [Cit.]” Rodgers v. Ga. Tech Athletic Assn., 166 Ga. App. 156, 161 (2) (b) (303 SE2d 467) (1983). “When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place the defendant on notice of the claim against him. [Cits.]” Walton v. James & Dean, Inc., 177 Ga. App. 77, 78 (1) (338 SE2d 516) (1985).

' In the present case, the facts alleged in Lee’s complaint present four theories upon which Lee may recover: (1) slander, (2) libel, (3) conspiracy to libel and slander, and (4) tortious interference with employment. “A petition must be judged by both its allegations of fact and its specific prayers. Some of the damages sought here are subject to demurrer as being appropriate only to an action for injury to the reputation; others, including the plaintiff’s loss of salary income constitute property damage rather than damage resulting from injury to the person.” Dale v. City Plumbing &c., 112 Ga. App. 723, 728 (146 SE2d 349) (1965).

The elements of a claim for tortious interference with employment include the existence of an employment relationship, interference by one who is a stranger to the relationship, and resulting damage to the employment relationship. Hylton v. American Assn. &c., 214 Ga. App. 635 (2) (448 SE2d 741) (1994). In addition, it must be shown that the alleged intermeddler acted maliciously and without privilege. Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (c) (464 SE2d 390) (1995); Wilkinson v. Trust Co. of Ga. Assoc., 128 Ga. App. 473, 475 (3) (197 SE2d 146) (1973). In Gallaher v. Teeple, 183 Ga. App. 31 (357 SE2d 808) (1987), the Court addressed the issues of slander and tortious interference with a business interest. In that case the Court held that the following allegations served as bases for recovery of damages for tortious interference with business: (1) defendants’ votes to revoke plaintiffs’ licenses, (2) “false and misleading” information which “was presented to the court and to the public” and “was done with malice, solely for the purpose of causing damage to Plaintiffs,” and (3) secret meetings by the defendants in preparation for the presentation of false and misleading information concerning the operation of plaintiffs’ businesses. Id. at 33-34.

Based on the foregoing, we find that Lee’s complaint does, in fact, assert a cause of action for tortious interference with employment. “This is true although elements appropriate to a libel action are involved, where the [employment] is the thing legally threatened, and the publication of the words is merely an instrument and incident of this result.” Dale, supra at 728. Accordingly, the trial court erred in granting complete summary judgment based on the one-year statute of limitation for injuries to reputation. See OCGA § 9-3-33. In so ruling, we do not address the merits of Lee’s claim for tortious interference with employment.

2. As for Lee’s causes of action for libel, slander and conspiracy to libel and slander, we conclude the trial court correctly applied the one-year statute of limitation relating to injuries to reputation, and we affirm the grant of partial summary judgment as to these claims.

While Lee correctly notes that the statute of limitation for injuries to the person is two years (OCGA § 9-3-33), he fails to cite any persuasive authority showing his slander, libel and conspiracy to libel and slander claims are subject to this two-year statute of limitation. Hill v. Crabb, 166 Ga. App. 387 (304 SE2d 510) (1983), cited by Lee in support of his argument, is not helpful. Although the Hill court recognized the distinction between injuries to the person and injuries to the reputation, the case did not address “whether the action was based in slander or as a tort against the person.” Id. at 388.

It is well established that claims for slander, libel and conspiracy to libel and slander involve injuries to the reputation and not injuries to the person. Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 655 (3) (269 SE2d 867) (1980). Even injuries to an individual’s credit and financial standing in the community are construed as an action for damage to the plaintiff’s reputation, subjecting such a claim to the one-year statute of limitation. Sicklesmith v. Citizens Bank &c., 101 Ga. App. 533 (114 SE2d 319) (1960).

3. In addition, contrary to Lee’s assertions in his brief, which we note were not raised in the trial court, his complaint does not set forth causes of action for emotional distress or humiliation. The complaint also does not set forth a cause of action for loss of earning capacity. These claims are separate and distinct from tortious interference with employment and were not pled in the complaint. Wishful thinking cannot permútate Lee’s claims for slander, libel and conspiracy to libel and slander into injuries to his person. They are simply injuries to his reputation and, as such, are subject to the one-year statute of limitation set forth in OCGA § 9-3-33.

Since the alleged defamation occurred prior to Lee’s job loss on January 11, 1994, the causes of action for slander, libel, and conspiracy to libel and slander raised in the complaint filed on February 1, 1995 were time-barred. Accordingly, we affirm the trial court’s grant of summary judgment on these three claims.

Judgment affirmed in part and reversed in part.

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

Decided June 4, 1996.

Ted B. Herbert, for appellant.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jack F. Witcher, for appellee.


author: Smith, Judge.

text:
    A96A0509.
    STRICKLAND et al. v. VAUGHN.
    (472 SE2d 159)
   Smith, Judge.

Appellants Dexter and Vanessa Strickland brought this wrongful death action against Bobby Howard Wilson, Joel Gaines, a City of Hartwell police officer, and Kenneth Vaughn, the Sheriff of Hart County. On April 7, 1989, the Stricklands’ child was killed in a collision between the car in which he was riding and a car owned and driven by Wilson. Wilson was driving without a license, without insurance, and while under the influence of alcohol.

Approximately six months earlier, on October 3, 1988, Wilson had been arrested and charged with habitual violator and driving under the influence, and his car had been impounded by the Hart County Sheriff’s Department. In January 1989, Wilson approached Gaines, a longtime acquaintance, and asked if he would store the vehicle while Wilson was in jail so that Wilson could avoid the storage charges in the impoundment yard. Gaines agreed and asked Vaughn to release the vehicle to him. On or about January 20, 1989, Vaughn released the vehicle to Gaines, who took it to his home. Gaines believed the car to be inoperable because its battery was dead.

On March 11, 1989, after his release from jail, Wilson approached Gaines and asked for his vehicle back. Gaines told him that since he had no driver’s license or insurance, he should have a relative remove the car. Wilson told Gaines he would have the car towed to his home, but he removed the car himself while the Gaineses were away from home, and he was driving it 27 days later when he collided with the Stricklands’ vehicle.

Mr. and Mrs. Strickland brought this wrongful death action against Wilson, Gaines, and Vaughn, contending it was foreseeable that when Vaughn released the vehicle to Gaines, Wilson would obtain the vehicle, drive it while intoxicated, and cause a collision. Gaines moved for and was granted summary judgment on the basis of absence of proximate cause and presence of an intervening cause. The Stricklands’ application for appeal of this judgment was dismissed for lack of jurisdiction. Vaughn then moved for and was granted summary judgment on the same basis, and this appeal followed.

“A cause of action for negligence requires (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” (Citations and punctuation omitted.) Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991). We do not reach the issue of proximate cause because the Stricklands have shown no duty on the part of Vaughn to refuse to release Wilson’s car from impoundment. “One of the problems arising out of the question of duty is the parties’ status and their relation to each other. Does the defendant owe the duty to this plaintiff? If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. What duty a defendant owed a plaintiff is a policy problem — a matter of law.” (Citations and punctuation omitted.) Id.

It is undisputed that the car was Wilson’s property. “The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.” OCGA § 51-10-1. “This statute embodies the common law action of trover and conversion. [Cits.] It authorizes the recovery of damages where a government official, without lawful authority, has temporarily deprived an individual of his or her property. [Cits.]” Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991). Vaughn’s authority to deprive Wilson of his property, therefore, must be provided by statute in derogation of the common law giving Wilson the right to possession.

A number of interrelated statutes provide for the removal or impoundment of motor vehicles. See, e.g., OCGA § 40-6-206 (police officers authorized to remove unattended, stolen, uninsured, or otherwise hazardous vehicles), OCGA § 40-11-3 (peace officers authorized to remove abandoned vehicles), OCGA § 25-3-2 (fire department authorized to remove vehicles obstructing access). All serve a similar purpose: the removal of an immediate danger from the roadways of the state. Motor vehicles that pose a traffic hazard or are unattended may be (but are not required to be) removed by law enforcement officials. The statutes focus on the ability of the car’s owner or driver to remove the hazard from the roadway: a police officer is authorized to remove a vehicle, for example, if “[t]he person or persons in charge of such vehicle are unable to provide for its custody or removal,” or “the person driving or in control of such vehicle is arrested,” or the vehicle is stolen or abandoned, and hence not under the control of its owner. See OCGA §§ 40-6-206 (c) (l)-(5); 40-11-3 (a).

Similarly, in the context of search and seizure law, impoundment has been held unnecessary “[w]hen the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed.” (Citation and punctuation omitted.) Reed v. State, 195 Ga. App. 821, 822 (395 SE2d 294) (1990). See also Strobhert v. State, 165 Ga. App. 515, 516 (301 SE2d 681) (1983). Impoundment, then, is not required even at the time of the offense if the vehicle will not constitute an immediate danger on the roads of the state. The record reflects no evidence that Gaines was unreliable, unauthorized or incapable of removing Wilson’s vehicle, or that the vehicle was incapable of being safely removed.

The Stricklands contend that if law enforcement officers are initially authorized to remove or impound a vehicle, they have a duty to retain possession indefinitely. This contention is not supported by the law. The statutes require only the vehicle’s removal to a “garage or other place of safety,” OCGA §§ 40-6-206 (c) and 40-11-3 (a), not necessarily into the custody of the authorities, and “the law is blank as to its ultimate disposition.” Wilkinson v. Townsend, 96 Ga. App. 179, 181 (99 SE2d 539) (1957) (decided under former Ga. Code Ann. § 68-1669 (b)). Therefore, “detention of the property by the garage against the demands of the owner amounts to a conversion.” Id. There was no showing that Wilson’s vehicle was being “held” by the sheriff as evidence in a criminal investigation, as in Mays v. Lampkin, 207 Ga. App. 739 (429 SE2d 113) (1993). Moreover, this Court in Lampkin recognized the obligation of the garage owner to return the vehicle as soon as the “hold” for evidentiary purposes was released. Id. at 740 (1). Finally, the Stricklands fail to recognize that the language of these statutes is permissive or discretionary, not mandatory.

No legal authority, and certainly no mandate, existed at the time of these events for the sheriff to withhold possession of Wilson’s vehicle indefinitely. At the time, the only authority in the motor vehicle code for the permanent withholding of a vehicle was the forfeiture statute for vehicles with altered or removed vehicle identification numbers. OCGA § 40-11-20. The Stricklands acknowledge that OCGA § 40-6-391.2, providing a legal procedure for the seizure and forfeiture of the vehicle of a habitual violator, was not enacted until after the events giving rise to this action. Their insistence that Vaughn should nevertheless be held to the requirements of the statute is without merit; in effect, they argue that Vaughn had a duty to retain indefinitely the property of another without statutory authority to do so. This position is without support in Georgia law. See generally Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (1) (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989) (no mandatory duty or even authority to make arrest of intoxicated person occupying parked automobile in order to protect him from later, self-inflicted harm).

Other than reliance on these statutes, the Stricklands have presented no evidence of a duty on the part of Vaughn to retain Wilson’s vehicle. In a single affidavit presented in opposition to both motions for summary judgment, a former law enforcement officer gave his opinion that a release of a vehicle to an owner with “deviant driving patterns” should involve “extra precautions to insure the vehicle does not easily fall into the control of the owner by a reasonable vigil of the vehicle, secured in a place that the owner could not get it, or only with great difficulty.” The affidavit, however, does not specify what those precautions should be, the statute, regulation, or other authority on which they are based, or the length of time for which such a vehicle should or could be held. Furthermore, we are considering the propriety of Vaughn’s release of the vehicle to Gaines, not Gaines’ subsequent actions, and it appears that Vaughn’s release of the vehicle to a law enforcement officer for storage while the owner was in jail satisfies the standard proposed by the Stricklands’ witness.

The Stricklands allege that Vaughn should have known that Wilson would improperly obtain his car from Gaines and then drive it while intoxicated. But in opposing summary judgment, they cannot stand on their pleadings; they have the burden of producing evidence to support their allegations and create a genuine issue of material fact. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47) (1991). The only evidence on the record shows that Vaughn released the vehicle to Gaines, a City of Hartwell police officer who was authorized by Wilson to remove the vehicle for storage at another location. Despite the Stricklands’ unsupported assertions of collusion between Gaines and Wilson, there is no evidence that any wrongful intent existed on Gaines’ part at the time Vaughn released the vehicle or that Vaughn knew of any intention on the part of Gaines to allow Wilson to obtain the car.

In sum, the Stricklands have demonstrated no duty, statutory or otherwise, on the part of Vaughn to retain possession of Wilson’s impounded vehicle indefinitely. In the absence of a mandatory statutory provision for condemnation and forfeiture, Vaughn breached no duty in releasing Wilson’s vehicle to Gaines. A grant of summary judgment must be affirmed if it is right for any reason, Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993), and consequently we affirm the trial court’s grant of summary judgment to Vaughn.

Decided June 4, 1996.

Moffett & Henderson, John W. Henderson, Jr., Wheeler & Watson, David K. Wheeler, James A. Watson, for appellants.

McClure, Ramsay & Dickerson, John A. Dickerson, Walter J. Gordon, Joanna B. Hannah, Joe B. Sartain, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       This is the second appearance of this litigation before this Court. See Strickland v. Wilson, 205 Ga. App. 91 (421 SE2d 94) (1992) (addressing issue of ante litem notice).

       Similar forfeiture statutes exist in other contexts, e.g., OCGA § 16-13-49 (drug forfeitures). See also OCGA § 16-16-2, enacted in 1995, allowing (but not requiring) the forfeiture of motor vehicles used to facilitate burglary or armed robbery.


text:
    A96A0636.
    WASHINGTON et al. v. SOUTH GEORGIA MEDICAL CENTER et al.
    (472 SE2d 328)
   Blackburn, Judge.

Kenneth Washington, Sr., individually, and his wife Cynthia Washington, individually and as next friend of her son Kenneth Washington, Jr., appeal the trial court’s dismissal of their action for failure to comply with discovery.

The Washingtons brought this medical malpractice action against Dr. Roy Swindle and South Georgia Medical Center d/b/a South Georgia Medical Center Foundation, Inc. (hospital) asserting that, as a result of the defendants’ negligence, Mrs. Washington and her son were injured during the child’s delivery.

Swindle and the hospital separately moved to sanction the plaintiffs when Mr. and Mrs. Washington failed to appear for their depositions which had been noticed by Swindle. Swindle’s motion was filed on September 1, 1995, and the hospital’s motion was filed on September 5, 1995. A hearing on these two motions was scheduled and noticed. When the hearing took place on September 20, 1995, the Washingtons were not in attendance. On October 5, 1995, 34 days after Swindle’s motion was filed and 30 days after the hospital’s motion was filed, the trial court took the matter under advisement, signing an order dismissing the Washingtons’ action based upon their wilful failure to attend their depositions. The day of the order’s entry, the Washingtons filed a written response to the motions wherein the Washingtons’ attorney asserted that their failure to appear at their depositions was not wilful but was the result of a calendaring mistake that occurred in her office. This written response was not timely as to Swindle’s motion. The response was timely, however, as to the hospital’s motion, coming on the last possible day for a response to be filed. The Washingtons appeal the dismissal of their claims against both Swindle and the hospital.

1. In their first and second enumerations of error, the Washingtons assert that the trial court abused its discretion in dismissing their complaint and in determining that they wilfully failed to appear at their depositions.

“ ‘There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.’ ” Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (424 SE2d 807) (1992). With regard to Swindle’s motion, at the time the trial court entered its order, the only evidence in the record reflected: that the Washingtons failed to respond to numerous letters from Swindle concerning when their depositions should be scheduled; that they failed to appear at the deposition despite receiving notice from Swindle; that they failed to file a timely response to Swindle’s motion for sanctions; and they failed to attend the trial court’s hearing on Swindle’s motion. From this evidence, the trial court could determine that the Washingtons’ failure to comply with their discovery obligation to Swindle was intentional. Stolle, supra; see also Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994) (A trial court’s finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it).

Having determined that the Washingtons’ failure to appear at the depositions was wilful, the trial court was authorized to dismiss the Washingtons’ claims against Swindle pursuant to OCGA § 9-11-37 (d). Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981). It has repeatedly been held that the appellate courts will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion. Knox Enterprises v. Timbermen, Inc., 215 Ga. App. 390, 394 (450 SE2d 834) (1994). As the record reveals no abuse of discretion on the part of the trial court, we affirm its order dismissing the Washingtons’ claims against Swindle.

Moreover, we note that the trial court was under no obligation to consider the Washingtons’ untimely response to Swindle’s motion. See Wimberly v. Karp, 185 Ga. App. 571, 572 (365 SE2d 131) (1988) (“ ‘Since appellant failed to comply in any way with the Rules under which he was supposed to operate, he cannot be heard to complain that the wheels of justice have rolled over him’ ”).

2. The Washingtons contend that the trial court erred in taking the defendants’ motions for sanctions under advisement prior to the expiration of the response period. As outlined above, with regard to Swindle’s motion, this enumeration is without merit as the trial court took the matter under advisement after the response period ended. With regard to the hospital’s motion, however, the trial court did take the matter under advisement prematurely. See Fairfield Plantation Action Comm. v. Plantation Equity Group, 215 Ga. App. 746 (1) (452 SE2d 147) (1994) (The trial court may take motions under advisement after the response period has ended). As the trial court based its decision, in large measure, on the failure of the Washingtons to offer any response to the hospital’s motion, this error was harmful. Accordingly, we reverse and remand so that the trial court may consider the response proffered by the Washingtons and determine what sanctions, if any, are merited.

The special concurrence suggests that upon remand, the hospital’s motion for sanctions should fail because “[t]he hospital cannot obtain sanctions for the plaintiffs’ failure to attend depositions that it did not ask for” citing Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (2) (384 SE2d 202) (1989). Singleton is distinguishable from the present action as it concerned a plaintiff’s failure to respond to written discovery propounded by the movant’s co-defendant rather than failure to attend a deposition noticed by the movant’s co-defendant. In that case, the movant suffered no expense of preparation or attendance as a result of the plaintiff’s failure to answer the co-defendant’s interrogatories or document requests.

Parties approach depositions in a manner far different than they approach written discovery. Often when one party notices a deposition of an opponent, his co-party will attend. If the deponent does not appear, the co-party suffers expense even though he did not notice the deposition. All parties similarly situated, who have been damaged by a party’s failure to attend a properly noticed deposition, should be entitled to rely on the failing party to follow the law and attend his deposition regardless of which party originally noticed the deposition. Employing Chief Judge Beasley’s analysis, such reliance would be discouraged. Not only would the result be unfair, it would cause a tremendous waste of litigation resources — particularly in complex, multi-party litigation — where all litigants would be forced to file duplicative deposition notices for no purpose other than to protect their right to sanctions in the event of the deponent’s nonappearance.

Accordingly, upon remand, in considering the hospital’s motion, the trial court is authorized to exercise its discretion in imposing reasonable sanctions in this case.

Decided June 4, 1996.

Ruby L. Knight, Elizabeth Pelypenko, for appellants.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, for appellees.

Judgment affirmed in part and reversed in part and case remanded with direction.

Birdsong, P. J, concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur fully in Division 1, but with respect to Division 2 concerning the hospital, the trial court should also take into account, on remand, that the hospital did not notice plaintiffs for deposition and that the notice served by the doctor’s attorney does not indicate the deposition is requested by both defendants. Nor did the doctor’s attorney purport to act for the other defendant in noticing the depositions. A prospective deponent is entitled to know who requests his testimony, that is, which party or parties will be the interrogator, so the deponent can adequately prepare. It is a simple thing to give notice.

The hospital cannot obtain sanctions for the plaintiffs’ failure to attend depositions it did not ask for. As stated and applied in Johnson v. Martin, 137 Ga. App. 312, 314 (223 SE2d 465) (1976), “there is no authority for a co-defendant to become the beneficiary of a dismissal under CPA § 37 (d) merely because of a failure of the plaintiff to comply with the other co-defendant’s discovery actions.” Although that case involved plaintiff’s failure to serve answers or objections to interrogatories and a response to a request for inspection of documents, rather than failure to attend a deposition, the rule applies equally because OCGA § 9-11-37 (d) covers “Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.” The rule was again applied in Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (2) (384 SE2d 202) (1989), where the requested discovery was comprised of interrogatories and the production of documents. The remedy is provided for the party who has been wronged.

On remand, resolution of the issue should be guided by the Supreme Court’s statement in Shrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991): “We have cautioned against the use of these harsher sanctions [dismissal and default] except in extreme cases, [cit.], and have held that the trial court must find wilfulness as a predicate to imposing the sanctions.” See also Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).


text:
    A96A0074.
    GALVEZ v. GALVEZ.
    (472 SE2d 492)
   Blackburn, Judge.

We granted Angela Galvez’s petition for interlocutory review of the trial court’s order denying her motion to dismiss Paul Lewis Galvez’s complaint for domestication of divorce decree and for change of custody.

The parties were divorced in Florida in June 1993. Angela was awarded primary physical custody of the parties’ two minor children. Since the divorce, Angela and the children resided in Kentucky until June 1995 when they moved to North Carolina. In July 1995, the father filed his complaint in Glynn County, Georgia, the county of his residence, asserting that the children were in his custody for their summer visitation. The complaint further alleged that the minor daughter had been molested by the mother’s live-in boyfriend, and that it was in the best interests of the minor children that the Glynn County court assume jurisdiction in order to protect them from the mistreatment and neglect they suffer when in the care of their mother. The complaint, therefore, alleges that jurisdiction is based on the emergency jurisdiction provision outlined in OCGA § 19-9-43 (a) (3) (B). See Youmans v. Youmans, 247 Ga. 529, 532 (276 SE2d 837) (1981).

The children’s mother filed a motion to dismiss for lack of jurisdiction which alleged that she presently lives in North Carolina with her parents and has not been living with the boyfriend whom the children’s father accused of abusing the children. At the hearing on the motion to dismiss, the trial court allowed both sides to present oral argument. The mother’s counsel asserted that acts of molestation had occurred — not by the boyfriend as alleged in the petition, but by the boyfriend’s 17-year-old son, who was prosecuted for the molestation, found guilty, and incarcerated. Furthermore, the mother moved away from the boyfriend and has put the children in counseling. Despite the mother’s attorney’s indication that out-of-state witnesses were present and ready to offer evidence as to these factual allegations, the trial court denied the motion to dismiss without hearing any evidence. The trial court reasoned that “in order . . . to do any of these things that you have mentioned, that is to establish the whereabouts of this alleged live-in boyfriend and these other matters about the question of any possible child molestation, I have to get into the merits of [the] complaint. So, I’m going to overrule and deny your Motion To Dismiss.”

In Osgood v. Dent, 167 Ga. App. 406, 408 (306 SE2d 698) (1983), we determined that “[b]ecause appellee alleged that the child was in need of emergency protection, the trial court was authorized under OCGA § 19-9-43 (a) (3) (B) ... to take temporary jurisdiction.and even to make an award of temporary custody. Under the statutory provisions cited, supra, however, the court was under a duty before proceeding further, and a fortiori before retaining jurisdiction to undertake to modify the out-of-state decree, to ascertain whether the allegations contained in appellee’s petition regarding appellant’s legal status . . . were valid, and whether the petitioner had complied with the statutory requirements and was entitled to bring further proceedings in the Georgia courts.” (Emphasis supplied.) In the present case, the trial court did not comply with this duty as no evidence is contained in the record before us. This error was clearly harmful because the facts argued by the mother’s counsel, if established, leave the court without jurisdiction as it would appear that no emergency situation currently exists.

Therefore, as the trial court failed to ascertain by evidence presented the validity of the jurisdictional grounds asserted in the complaint, this case is remanded. Upon remand the trial court is directed to hold an evidentiary hearing on the mother’s motion to dismiss. Pursuant to OCGA § 19-9-64, such hearing shall be given calendar priority and handled expeditiously. This ruling protects the best interests of the children and is consistent with the purposes of the Uniform Child Custody Jurisdiction Act.

We further note that the trial court is also required to domesticate the foreign divorce decree before it will have the authority to modify visitation or child support. See Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979) and Pearson v. Pearson, 263 Ga. 400, 401 (435 SE2d 40) (1993); however, this was not the issue presented by this appeal.

Decided June 5, 1996.

Kathryn A. Hall, James K. Murphy, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, for appellant.

R. Dean Weiss, for appellee.

Judgment reversed and case remanded with direction.

Birdsong, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that the judgment must be reversed and the case remanded for further action in the trial court, but the primary reason is the fact that the court was attempting to change a foreign decree and it did not have jurisdiction to do so. Whether the issue was raised on appeal or not, it must be addressed if the record shows that jurisdiction was not established. That is the case here. The record affirmatively shows that the trial court had not acquired jurisdiction to modify the decree, even to apply the emergency measures of OCGA § 19-9-43 (a) (3) (B). See OCGA § 15-1-2. Sweatman v. Roberts, 213 Ga. 112, 113 (97 SE2d 320) (1957). Petitioner father is seeking a change of custody, but he is also properly praying for domestication of the Florida divorce decree. It contains the original order awarding custody.

Respondent mother moved for dismissal of the entire action, which the court denied based on its finding that the father had established the court’s jurisdiction of the parties and of the subject matter “according to OCGA § 19-9-43 (a) (3) (B).” The court was without authority to make a ruling of this nature, however, because the foreign judgment had not yet been domesticated. As held in Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979), and as stated in Pearson v. Pearson, 263 Ga. 400, 401 (435 SE2d 40) (1993), a case in which the rule of Blue was applied, “Georgia permits modification of a foreign divorce decree only after domestication of that judgment.” (Emphasis in original.)

Before the cited Code section can be activated in this case, the trial court must consider and rule on the domestication issue. Pearson, supra. Thereafter, if the foreign judgment is domesticated, the court may treat it as a local decree and modify it according to the laws of Georgia. Blue, supra at 23.

       Although the complaint fails to set out the places where the children have lived within the last five years as required by OCGA § 19-9-49 (a) (2), the mother’s verified motion to dismiss sets forth the states in which the children have resided.

       At the same time the complaint was filed, the father obtained an ex parte restraining order against the mother which provided the father with temporary custody of the children.

       OCGA § 19-9-41 establishes the purposes of the legislature’s passage of the Uniform Child Custody Jurisdiction Act (UCCJA), which include assuring “that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” OCGA § 19-9-41 (a) (3). An additional purpose of the UCCJA is to “[djeter abductions and other unilateral removals of children undertaken to obtain custody awards.” OCGA § 19-9-41 (a) (5).


text:
    A96A0158.
    HEIGHT v. THE STATE.
    (472 SE2d 485)
   Ruffin, Judge.

A jury convicted Michael Height of two counts of selling cocaine and one count of possession with intent to distribute. Height appeals from the court’s judgment of conviction, and we affirm.

1. In his first enumeration of error, Height challenges the sufficiency of the evidence.

Viewed in a light most favorable to support the verdict, the evidence at trial showed that the Newton County East Metro Drug Enforcement team was investigating Height for selling cocaine. As part of the investigation, a confidential informant arranged for Height to sell Agent Chaneyfield a half-ounce of crack cocaine at a local convenience store parking lot. When the informant and Agent Chaneyfield arrived at the store parking lot, the informant contacted Height on his digital pager and informed him they had arrived. Shortly thereafter, Height arrived driving a burgundy Dodge Shadow, accompanied by two companions, Derrick Mathis and Christopher Thomas. Height immediately left the car and went inside the convenience store. Thomas then approached Agent Chaneyfield and the informant, removed from his pocket a plastic bag containing cocaine, and conducted the sale. Agent Chaneyfield testified that when he asked Thomas about the weight of the cocaine, Thomas responded that it “was kind of light . . . next time it would be better. . . .” When Thomas returned to the Dodge Shadow after the sale, Height exited the store, joined his companions in the car, and drove away.

The task force arranged for a second cocaine sale to be conducted later the same evening. In this transaction, Agent Thomas arranged for Timothy Bell to sell him one ounce of cocaine in a shopping center parking lot. At the time Bell did not have any cocaine, so he called Height to obtain cocaine from him. When Agent Thomas arrived at the parking lot, he paged Bell to inform him he had arrived. A few minutes later, Bell arrived in a pickup truck with a companion, Daniel Petty. The two exited the car and looked around the parking lot, then Petty started “waving his arms in the air as if to signal somebody.” Petty informed Agent Thomas that the cocaine was on the way. Shortly thereafter, Height drove his burgundy Dodge Shadow into the parking lot and met with Bell and Petty. After approximately five minutes, Bell and Petty met Agent Thomas at the pickup truck and completed the cocaine sale. As Agent Thomas was leaving the parking lot, Bell and Petty returned to Height’s car, at which time Petty gave the proceeds from the sale to Height.

Height was arrested for the two cocaine sales approximately five months later. When officers informed him he was under arrest, Height removed a plastic bag from his pants which contained three smaller plastic bags of crack cocaine. The officers also recovered from Height approximately $800 in cash and a pager.

Although Height denied participating in either of the sales, and contends there was no evidence presented that he personally conducted the sales, we find there was sufficient evidence presented that he was a party to the crimes to authorize his convictions. OCGA § 16-2-20. See also Stevens v. State, 210 Ga. App. 355 (1) (436 SE2d 82) (1993). Likewise, there was sufficient evidence to support the trial court’s denial of Height’s motion for a directed verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Decker v. State, 217 Ga. App. 803 (1) (459 SE2d 586) (1995).

2. Height asserts that the trial court erred in allowing the State to strike four African-Americans from the jury venire in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Because the prosecutor offered purportedly race-neutral reasons for his strikes, we need not address whether Height established a prima facie case of discrimination. Parker v. State, 219 Ga. App. 361, 362 (1) (464 SE2d 910) (1995) (physical precedent only). As to the reasons offered by the prosecutor, they must be legitimate, race-neutral, and related to the particulars of the case. Id.

The record shows that the prosecutor struck the first African-American because the juror stated that Height was her friend and because she knew his mother and accomplices Bell and Petty. The juror stated that she was related to Petty and that her relationship would affect her ability to decide the case fairly and impartially. The trial court was authorized to find that this was a legitimate, race-neutral reason that was related to the case. See Davis v. State, 263 Ga. 5 (10) (426 SE2d 844) (1993).

A second African-American struck by the prosecutor also stated that she was Height’s friend. The prosecutor stated he struck this juror because she was Height’s friend and because he previously prosecuted her brother for murder. Based on these facts, the prosecutor felt that the juror may harbor some prejudice against the State generally and him personally for the prosecution. The trial court was authorized to find that this was a legitimate, race-neutral reason that was related to the case. See id.; Henry v. State, 265 Ga. 732 (2) (462 SE2d 737) (1995).

The prosecutor struck another African-American because she stated she was Height’s friend and he felt that the juror may be prejudiced or have some discomfort due to the friendship. The trial court was authorized to find that this was a legitimate, race-neutral reason that was related to the case. See Davis, supra.

The prosecutor struck the last African-American because the juror stated he was Height’s friend and because the prosecutor noticed the juror had difficulty hearing. The prosecutor stated that due to the juror’s friendship with Height, he may have some prejudice or discomfort and that due to his hearing problem he may have problems following the testimony. The trial court was authorized to find that these were race-neutral reasons that were related to the case. See id.; Williams v. State, 195 Ga. App. 648 (394 SE2d 601) (1990).

Although Height argues that the prosecutor failed to strike another African-American who stated she knew Height, the transcript shows that this juror stated only that she went to school with Height, and unlike the jurors the prosecutor struck, did not state that she was Height’s friend. Based on the foregoing, we find no error in the trial court’s denial of Height’s Batson challenge.

3. Height asserts the trial court erred in admitting Agent Chaneyfield’s testimony that when he asked Thomas about the weight of the bag in the first sale, Thomas responded that it “was kind of light . . . next time it would be better. . . .” We disagree. “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. The trial court did not abuse its discretion in admitting this statement as part of the res gestae. See Mobley v. State, 218 Ga. App. 739 (3) (463 SE2d 166) (1995); Bostic v. State, 173 Ga. App. 494 (4) (326 SE2d 849) (1985).

4. Height asserts the trial court erred in restricting his cross-examination of the Georgia Bureau of Investigation forensic scientist who tested the cocaine.

The transcript shows that the following exchange occurred between Height’s attorney and the forensic scientist during cross-examination: “Q. Have you made mistakes because of the vast pressure of work at the crime lab? A. Not that I’m aware of. Q. Has anybody there made mistakes?” The court sustained the State’s relevance objection to this latter question.

The trial court did not abuse its discretion in sustaining the State’s objection. Height has pointed to no evidence showing that any other crime lab employees tested the substances identified as cocaine. Accordingly, the question was of marginal, if any, relevance. Jeffers v. State, 263 Ga. 133 (2) (429 SE2d 519) (1993). We find no error.

5. Height asserts that the trial court erred in allowing a State’s expert witness on drug investigations to testify concerning the relevance of items Height possessed at the time of his arrest. Specifically, Height points to three portions of the expert witness’s testimony.

First, Height contends the trial court erred in admitting the expert’s testimony that the three small bags of cocaine that Height removed from his pants were consistent with the amount and manner of packaging of cocaine intended for sale. Because such testimony “is not necessarily within the scope of the ordinary layman’s knowledge and experience!,] . . . [it] was properly admissible under OCGA § 24-9-67. [Cit.]” Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991).

Second, Height contends the trial court erred in admitting the expert witness’s testimony that drug dealers typically carry a large amount of cash. However, the record reflects that although Height initially objected to this testimony, after some discussion concerning the grounds for his objection, he withdrew it. Accordingly, we will not consider this objection on appeal. Young v. State, 217 Ga. App. 575 (3) (458 SE2d 391) (1995).

Likewise, although Height contends that the trial court erred in allowing the expert to testify concerning the relevance of the pager found on Height, the transcript shows that he never objected to this testimony. Accordingly, we do not consider this objection. Id.

6. Height asserts the trial court erred in giving the State’s charge on mere presence. However, the transcript of the charge conference shows that after the trial judge read the entire charge he would give on presence, which included the State’s requested charge that Height previously objected to, Height’s trial counsel stated: “I like that a lot better, yes . . [t]hat puts them into context.” Because Height acquiesced in the court’s ruling that it would give the State’s requested charge, he cannot complain on appeal. Pressley v. State, 197 Ga. App. 270 (4) (398 SE2d 268) (1990). An embraced error is one for which appellate courts lack enthusiasm. Moreover, the requested charge is a correct statement of the law and was adjusted to the evidence presented. See id.; Stoe v. State, 187 Ga. App. 171 (3) (369 SE2d 793) (1988).

7. Height asserts the trial court erred in failing to give his request to charge on circumstantial evidence and mere presence in the vicinity of drugs. We disagree. The transcript shows that the court’s charge covered circumstantial evidence, mere presence and association, and the elements of each offense. These principles are substantially the same as those stated in Height’s requested charge. “ Tt is not necessary that the jury be given the exact language requested where the same principles fairly are given to the jury in the general charge. (Cits.)’ [Cit.]” Trotter v. State, 216 Ga. App. 612, 614-615 (3) (455 SE2d 121) (1995). Accordingly, this enumeration is without merit.

8. In his last enumeration of error, Height asserts that the trial court erred in failing to give a complete charge on jury deliberation. In his brief, Height merely recites the language of the Suggested Pattern Jury Charge and states that the charge given “resulted in an inadequate charge to the jury.” Court of Appeals Rule 27 (c) (2) provides that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Because this enumeration of error is not supported by citation of authority or argument, it is deemed abandoned.

Decided June 5, 1996.

Lee Payne, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A96A0425, A96A0426.
    HENDRICKS v. BLAKE & PENDLETON, INC.; and vice versa.
    (472 SE2d 482)
   Judge Harold R. Banke.

In this suit on a bond posted to discharge a materialman’s lien, Blake & Pendleton, Inc. (“Blake”), a building materials supplier, alleged that the surety on the bond, Howard R. Hendricks, Jr. d/b/a Hendricks Contracting Company (“Hendricks”), owed it for plumbing materials furnished at the direction of a bankrupt subcontractor. After the trial court entered judgment in Blake’s favor but declined to award prejudgment interest, this appeal and cross-appeal ensued.

This case arose after H. Hendricks Contracting, Inc. agreed to act as general contractor for the Griffin Corporation in the construction of a laboratory. A subcontractor on the job, Ronald Radney d/b/a Radney Plumbing Contractors (“Radney”), ordered over $16,000 in materials from Blake. After Blake shipped the materials, invoiced Radney, and never received payment, it contacted Griffin and Hendricks seeking payment and ultimately filed and recorded a timely lien on the property. After Blake filed the lien, Radney filed a bankruptcy petition and Griffin paid Hendricks over $123,900. Approximately a month after the lien was filed, Hendricks executed a property bond to release the lien which listed “Hendricks Contracting Company, a Georgia Corporation,” as principal and Howard R. Hendricks as surety. The latter pledged certain property in consideration of the lien’s discharge. It is undisputed that Blake was never paid for the materials. Held:

1. The trial court reached the proper verdict. Hendricks does not dispute that Radney owed Blake for the materials or the measure of damages. Instead, Hendricks maintains that Blake’s claim is preeluded by its failure to sue the proper party, H. Hendricks Construction Company, as principal on the bond, due to the lack of privity of contract between Blake and Howard Hendricks individually.

We disagree. It is undisputed that Blake satisfied the statutory requisites required to prevail on the underlying lien by (1) substantially complying with its contract to supply the materials and (2) filing a claim of lien against the improved property. OCGA § 44-14-361.1 (a) (1), (2); Palmer v. Duncan Wholesale, 262 Ga. 28, 29 (413 SE2d 437) (1992). Radney’s intervening bankruptcy relieved Blake of the necessity of complying with OCGA § 44-14-361.1 (a) (3) by commencing an action for recovery of the amount of his claim against the contractor or subcontractor. OCGA § 44-14-361.1 (a) (4). Before the time expired for Blake to proceed in rem against the property improved, Hendricks executed the bond. Id. The requisites of OCGA § 44-14-361.1 (a) thus presented no barrier to Blake’s entitlement to the lien.

Hendricks relies on Ben Hill Ready Mix &c. v. Prather, 160 Ga. App. 149 (286 SE2d 481) (1981), for the argument that Blake sued the wrong party. That case is distinguishable because no intervening bankruptcy relieved the materialman from the obligation to sue the contractor or subcontractor to whom the material was furnished. Moreover, that case involved no property bond.

Clearly, the property bond posted under OCGA § 44-14-364 (a) did not relieve Blake of the burden of proving its entitlement to the underlying lien, but simply served as a substitute for the lien, thereby removing a legal impediment to the property’s free conveyance. Roberts v. Porter, Davis &c., 193 Ga. App. 898, 902 (3) (389 SE2d 361) (1989); North v. Waffle House, 177 Ga. App. 162, 163 (1) (338 SE2d 750) (1985); Hinkel, Construction Mechanics’ & Material-men’s Liens (2nd ed. 1994), § 8-2. But the bond provided the necessary contractual link between Blake and Hendricks individually. As in any contract, thq liability of a surety on a bond is governed by the intention of the parties as expressed in the agreement. See Barge & Co. v. Oakwood Steel Co., 128 Ga. App. 597, 598 (197 SE2d 405) (1973). The bond at issue stated that the principal and the surety “bind ourselves and our legal representatives and successors, jointly and severally, unto . . . [Blake] in the amount of $16,854.96.” Because the materialman may “ ‘sue the principal and the surety jointly, or at his option he may sue either the principal or the surety alone,’ ” the corporate contractor was not an indispensable party and the verdict must stand. Noland Co. v. Commercial Ins. Co., 141 Ga. App. 285, 286 (1) (233 SE2d 259) (1977); see Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191 (393 SE2d 270) (1990).

2. The trial court erred in declining to award prejudgment interest. Prejudgment interest is allowable on all liquidated demands where the amount owed is fixed and certain. Walter E. Heller & Co. v. Aetna Business Credit, 158 Ga. App. 249, 264 (4) (c) (280 SE2d 144) (1981). The damages in this case were sufficiently liquidated to permit prejudgment interest at seven percent per annum because the value of the underlying debt was not disputed, only certain amounts credited against the debt. Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 255 (2) (342 SE2d 694) (1986); Turner Constr. Co. v. Elec. Distrib., 202 Ga. App. 726, 727 (2) (415 SE2d 325) (1992). However, liquidated demands “bear interest from the time the party shall become liable and bound to pay them.” OCGA § 7-4-15. Hendricks individually did not become liable and bound to pay the debt until after he became the surety and Blake demanded payment solely from him. See Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 155 (5) (418 SE2d 616) (1992). From the record, it appears that occurred when the complaint in this action was filed on March 15, 1991. Thus, the prejudgment interest of seven percent per annum must be calculated on the liquidated damages of $15,791.06 from that date.

Decided June 5, 1996

O. Wayne Ellerbee, for appellant.

James E. Jarvis, Jr., for appellee.

3. Blake requests damages for a frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in this appeal, we cannot conclude it was filed solely for purposes of delay. Accordingly, Blake’s motion for imposition of frivolous appeals damages is denied.

Judgment affirmed in Case No. A96A0425 and reversed in Case No. A96A0426.

Pope, P. J., and Smith, J., concur.


text:
    A96A0523.
    MORGAN v. BARNES.
    (472 SE2d 480)
   Judge Harold R. Banke.

In this personal injury action, David Morgan sued William David Causey, Deputy Wilbur A. Barnes, individually and in his official capacity, Sheriff Robert N. Reece in his official capacity, and Jones County. The trial court granted summary judgment to Barnes individually on official immunity grounds, and this appeal ensued.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that this case arose after Deputy Barnes received a dispatch instructing him to stop a suspicious red car entering Jones County which had eluded two Bibb County officers. Barnes observed the car, which Causey was driving, saw it run a stop sign, and followed. Barnes radioed in the tag and learned that the license was listed to a car lot, leading him to believe there was a high probability the car was stolen. Barnes then activated his siren and lights and gave chase. Pursuing the red car, Barnes crested a hill and observed it alongside Morgan’s Hyundai on the two-lane road. Barnes braked and decided to run his car into a creek near the road to avoid a collision. However, Morgan pulled over to the side of the road, and Barnes lost control and collided with Morgan’s car. Held:

Barnes individually was entitled to official immunity. The 1991 amendment to Art. I of the Georgia Constitution governs this action which was filed after January 1, 1991. Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d 476) (1994). The amendment states in pertinent part: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). This language applies to officers and employees of counties as well as those of state departments and agencies. See Gilbert, 264 Ga. at 747 (2). Because there is no evidence that Barnes acted with malice or intent to injure and it is undisputed that Barnes was acting within the scope of his authority as a law enforcement officer when he pursued the red car, this case turns on whether Barnes was performing a ministerial or discretionary function at the time of the collision. See id. at 753 (6). We have held that an officer responding to an emergency when a collision with an uninvolved third party occurred was performing a discretionary act, while the conduct is ministerial if the officer was returning to routine patrol at the time of the collision. McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) (443 SE2d 505) (1994).

Decided June 5, 1996.

Karen K. Daniels, for appellant.

Groover & Childs, Duke R. Groover, Frank H. Childs, Jr., for appellee.

The record shows that Barnes decided to pursue the car after learning it had eluded two Bibb County officers and determining the car could have been stolen. Barnes testified that he had abandoned other chases he felt might endanger himself or others. His decision to pursue this car in the early morning hours when traffic was minimal, made in response to reports that it had eluded police and under a reasonable perception that it could be stolen, called for the exercise of personal deliberation and judgment and was therefore discretionary. See id.; see also Logue v. Wright, 260 Ga. 206, 207-208 (392 SE2d 235) (1990). Because nothing in the record raises a triable issue as to the discretionary character of Barnes’ conduct, summary judgment was properly granted. Compare McLemore, 212 Ga. App. at 865 (4) (evidence raising issue of whether officer was returning to routine duty precluded summary judgment).

Judgment affirmed.

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

       Paula Morgan and her daughters, Chicarro and Chiquita Morgan, initially joined in this action, but subsequently were granted a voluntary dismissal without prejudice.


author: Beasley, Chief Judge.

text:
    A96A0536.
    UPSHAW v. THE STATE.
    (472 SE2d 484)
   Beasley, Chief Judge.

An indictment charged that Upshaw “did unlawfully make an assault upon the person of Randy Phillips by shooting him with a certain gun, an instrument which when used offensively against a person is likely to result in serious bodily injury” (OCGA § 16-5-21).

At trial, Phillips testified as follows. Upshaw and Harris appeared at his house. Upshaw had a pistol, which Phillips attempted to take away. During the struggle, Upshaw shot Phillips once and attempted to shoot him again in the head, but the gun did not discharge. According to Phillips, Harris did not become involved in the altercation.

The sole defense witness was Harris, who had recently been tried for and convicted of murder. Harris maintained that he, rather than Upshaw, struggled with and shot Phillips over a dispute concerning the payment of money for marijuana. Harris acknowledged that Upshaw drove him to and from Phillips’ house, but he said Upshaw did not know why they were going to Phillips’ house and even tried to stop the altercation between Phillips and him after it had begun.

Decided June 5, 1996.

Brimberry, Kaplan & Brimberry, John P. Cannon, for appellant.

Britt R. Priddy, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.

On the basis of Harris’s testimony, the State requested a jury instruction on parties to a crime so as to include the instances of indirect commission. Upshaw objected on the ground that the evidence was not sufficient to show that Upshaw was concerned in the commission of the crime charged in that he was not even indirectly a party to the shooting committed by Harris. The court overruled Upshaw’s objection and ultimately instructed the jury on direct and indirect parties to a crime in accordance with OCGA § 16-2-20 (a) and (b) (1), (2), (3), and (4). In regard to subsection (b) (3), the court in its charge substituted the word “helps” for the statutory phrase “aids or abets.”

In his sole enumeration of error, Upshaw contends that since his indictment did not allege that he was anything other than a direct perpetrator, the court erred in charging the jury that he could be convicted under a theory of indirect concern because that imported other methods of commission not included in the indictment.

The error enumerated by Upshaw on appeal concerns the allegations of the indictment, whereas the objection raised by him at trial concerned the evidence. Although these issues are different, they are interrelated, so we will address both.

The court did not err in overruling the objection raised by Upshaw at trial. “The jurors are in fact entitled to believe or disbelieve all or any part of the testimony of any witness; and, being the exclusive judges of the credibility of the witnesses, they may accept whatever evidence they deem most reasonable and credible. [Cits.]” Miller v. State, 174 Ga. App. 703, 704 (2) (331 SE2d 616) (1985). The jurors were thus entitled to believe part of Harris’s testimony and disbelieve other parts, thereby finding that if Harris was the direct perpetrator, Upshaw aided and abetted him in the commission of the crime.

The contention advanced by Upshaw on appeal is similarly without merit. Since Upshaw had notice of the testimony to be presented by his own defense witness, and since it was this testimony which authorized the jury to find that Upshaw was an aider and abetter, the court did not err in giving the complained-of charge. See Whitaker v. State, 246 Ga. 163, 167 (12) (269 SE2d 436) (1980); see also Jenkins v. State, 172 Ga. App. 715, 716 (4) (324 SE2d 491) (1984).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A0626.
    PIRKLE v. THE STATE.
    (472 SE2d 478)
   Beasley, Chief Judge.

Pirkle was charged with four counts of pointing a gun at another (OCGA § 16-11-102). Proceeding pro se, he was tried and convicted in an unreported bench trial. He then retained counsel and moved for a new trial, alleging he had not made a knowing and intelligent waiver of his right to jury trial. Ga. Const. 1983, Art. I, Sec. I, Par. XI; OCGA § 9-11-38. He appeals the denial of that motion.

“ ‘Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. Patton v. United States, 281 U. S. 276 (50 SC 253, 74 LE2d 854) (1930). However, defendant’s consent need not be in a particular, ritualistic form . . . Since form is unimportant, the only real issue is whether (appellant) intelligently agreed to a trial without jury. . . .’ [Cits.]” Johnson v. State, 157 Ga. App. 155 (1) (276 SE2d 667) (1981). When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant “personally, knowingly, voluntarily, and intelligently waived his right to a jury trial. [Cit.]” Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994); see Sims v. State, 167 Ga. App. 479 (1) (306 SE2d 732) (1983). The State may prove this “by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citations and punctuation omitted.) Bowens v. State, 194 Ga. App. 391, 392 (2) (390 SE2d 634) (1990).

Pirkle signed a form entitled “Waiver of Formal Arraignment/ Acknowledgement of Court Date, Accusation(s) for Pointing a Gun at Another X 4 cnts.” It included the printed statement: “The Defendant waives Formal Arraignment, list of witnesses and Jury Trial and pleads Not Guilty.” In Payne v. State, 217 Ga. App. 386 (460 SE2d 297) (1995), the accused had signed a form which read, “ ‘Comes now defendant in the within matter and acknowledges receipt of copy of accusation and list of witnesses, waives benefit of counsel, formal arraignment, trial by jury and pleads (Not) guilty.’ ” Id. at 387. We held that “This form, standing alone fails to establish that Payne knowingly or intelligently waived rights guaranteed him by the U. S. and Georgia Constitutions.” Id.

The form used in this case is not materially distinguishable. The distinctions do not rescue Pirkle’s form from a judgment of deficiency. Neither the capitalization of the words nor the clerk’s administrative notation of “n-jury” beside the trial date assure that defendant’s waiver of his constitutional right was intelligent, although the inclusion of the words in the arraignment form are some indication that Pirkle was superficially aware he was waiving a trial by jury. This is not conclusive of that fact, as it does not state that he understood the consequence, i.e., that he was surrendering a significant constitutional right and opting for a trial by the judge himself. Nor does it establish that he was making “a conscious choice,” in the words of Jones, supra, to waive trial by jury. The inadequacy of the wording is increased by its comparison with the primary focus of the form, the right to counsel, which is quite fully explained. The form, like that in Payne and Keegan v. State, 221 Ga. App. 487 (472 SE2d 107) (1996), constitutes insufficient evidence.

Decided June 5, 1996.

Banks & Stubbs, Rafe Banks III, for appellant.

Daniel T. Stringer, Solicitor, Leslie C. Abernathy, Assistant Solicitor, for appellee.

The motion for new trial should have been granted, as in Capelli v. State, 203 Ga. App. 79 (2) (416 SE2d 136) (1992). Although there was not even a written form in that case, as there is here, that variant does not avoid the conclusion because, according to Payne, the form does not meet the State’s burden of showing “ ‘the waiver was made both intelligently and knowingly.’ ” Capelli, supra at 79.

The remedy in this case, as in Capelli, is not to remand for inquiry, as was done in Payne and in Lawal v. State, 201 Ga. App. 797 (412 SE2d 864) (1991). In those two appeals the State was given an opportunity to fill a silent record. In Pirkle’s case, the State has already had that chance, at the hearing on the motion, and failed to supply the evidence which was lacking because the form merely contained a bare statement. Compare Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) (1995) (affidavit of attorney showing deliberate, intelligent waiver); Sims, supra at 480 (1) (affidavit of attorney showing deliberate, intelligent waiver). See also Stephens v. State, 176 Ga. App. 187 (1) (335 SE2d 473) (1985).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0432.
    EASTMAN CUTTING ROOM SALES CORPORATION v. OTTENHEIMER & COMPANY, INC.
    (472 SE2d 494)
   Birdsong, Presiding Judge.

Eastman Cutting Room Sales Corporation appeals a judgment, following a bench trial, in favor of Ottenheimer & Company, Inc., on Eastman’s claim under OCGA § 11-2-702 (“Seller’s remedies on discovery of buyer’s insolvency”) for reclamation of equipment sold to Ottenheimer.

After the trial, the trial court found that under an agreement between Eastman and Ottenheimer, Eastman began delivery of the equipment in question in February 1995, the last delivery was made on May 26, 1995, and the equipment was fully installed by June 28, 1995. The trial court further found that on July 2, 1995, Eastman demanded reclamation of the property pursuant to OCGA § 11-2-702, that Eastman did not perfect a security interest in the property, and that Ottenheimer did not make any misrepresentation of solvency within the three months before the property was delivered.

The trial court also found that all of the equipment was received by Ottenheimer within the meaning of OCGA § 11-2-702 (2) on or before May 26, 1995, when Eastman delivered the equipment and Ottenheimer took possession of it. Thus, the trial court found that Eastman’s demand for reclamation on July 2, 1995, was not made within ten days of delivery of the equipment and denied Eastman’s complaint for reclamation.

This appeal followed. Eastman alleges that the trial court erred by holding that Ottenheimer received all of the equipment in question on or before May 26,1995, by finding that Eastman’s demand for reclamation was untimely, and by holding that Eastman was not entitled to reclamation of the equipment under OCGA § 11-2-702 (2). Held:

Under OCGA § 9-11-52 (a) the findings of trial courts in non-jury trials “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” “ ‘Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.’ ” (Citation omitted.) Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (390 SE2d 52).

Review of the transcript shows evidence to support the trial court’s findings. No witness testified that any equipment was delivered after May 26, 1995, and other witnesses testified that except for the final equipment that was delivered on May 26, the equipment was in place in March 1995. Under this evidence the findings of the trial court cannot be disturbed.

Moreover, we find the trial court’s determination that the equipment was delivered by May 26 fully consistent with OCGA § 11-2-103 (1) (c) (“receipt” means taking physical possession of goods) and OCGA § 11-2-401 (2) (title passes on physical delivery). Statutes are to be construed in accordance with their real intent and meaning (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97)), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5).

Accordingly, we find no error.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur because the evidence does not demand a finding that receipt did not occur until installation was complete. The seller seeks to enforce the remedy provided by OCGA § 11-2-702 (2): “Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten days after the receipt. . . .” In this article on sales, “receipt” of goods means taking physical possession of them. OCGA § 11-2-103 (1) (c).

Seller Eastman had a contract for sale and installation of some industrial equipment. It was one entire contract, not separate contracts for equipment and installation; it merely itemized the various components of the agreement, including a $5,000 charge for installation which was then credited as a discount. Seller was to provide installers and operator training. Did buyer Ottenheimer take “physical possession” before the machinery was fully installed?

Eastman claims “receipt” did not occur until June 28, when the final technician was at the buyer’s place of business and pushed the button to make the machinery operational. Eastman cites Fleming v. Runyan, 571 S2d 1213 (Ala. Civ. App. 1990), and In re First Software Corp., 72 BR 403 (Bkrtcy. D. Mass. 1987).

Ottenheimer, on the other hand, relies on Stone v. Nolan, 171 Ga. App. 644 (320 SE2d 781) (1984), and Cotton States Mut. Ins. Co. v. Gomez, 192 Ga. App. 76 (383 SE2d 567) (1989), although these cases do not include installation as part of the contract; they involved motor vehicles, so it is easy to see when “receipt” and “physical custody” occurred. Buyer also cites In re Rawson Food Svc., 846 F2d 1343, 1347 (11th Cir. 1988).

If “receipt” means when title passed, then OCGA § 11-2-401 (2) is relevant, i.e., “at the time and place at which the seller completes his performance with reference to the physical delivery of the goods.” Appellant says this did not occur until installation was complete but that even if this were not so, the parties had an express agreement that “receipt” would occur at that event because installation is part of the contract, so the contract “explicitly” provides “otherwise.”

I agree with what the majority author wrote in another case: “We believe uniform codes ought to be interpreted uniformly.” B & P Lumber Co. v. First Nat. Bank of Atlanta, 147 Ga. App. 762, 764 (2) (250 SE2d 505) (1978). But I find nothing directly on the point in issue here. In re First Software Corp., cited by Eastman, is the only case I have found interpreting the requirement in UCC § 2-702 (2) that the seller make a demand to reclaim goods within ten days after the buyer’s “receipt.” It involved a related provision of the federal Bankruptcy Code which also allows a seller to reclaim goods sold to a debtor by making a demand before ten days after receipt of such goods by the debtor. 11 USC § 546 (c) (1). The debtor had ordered goods from the sellers, which the sellers installed in the debtor’s warehouse. After the sellers completed installation and demanded payment, the debtor filed a bankruptcy petition.

The Bankruptcy Court held that the ten-day reclamation period began to fun upon the sellers’ delivery of the goods to the debtor, thereby rejecting the sellers’ argument that the period began to run when title passed to debtor upon sellers’ installation of the goods. In so holding, the court found it helpful to turn to the UCC for guidance. It noted that § 2-702 refers to receipt rather than title, that § 2-103 (1) (c) states that “receipt” means taking physical possession of the goods, and that § 2-401 states that each provision of Article 2 with regard to the rights and remedies of the seller applies irrespective of title to the goods except when the provision refers to such title. The court held that acceptance of the sellers’ argument would contort the plain meaning of the Bankruptcy Code and the cited UCC sections.

Eastman in its contract makes a distinction between “delivery” (which is arguably the seller’s side of “receipt”) and “installation.” Forty thousand dollars is due “on delivery” (which is one event) and payments are due to begin 30 days after “installation” (which apparently means another event). Payment of $50,000, approximately one-third of the purchase price, by “delivery,” would also indicate buyer was taking physical possession of the goods then, rather than not until installation was complete. In Fleming, supra, the seller was not entitled to payment until he installed the fixtures.

Under UCC § 2-401 (2), title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods “[u]nless otherwise explicitly agreed.” It also states that each provision of Article 2 with regard to the rights, obligations, and remedies of the seller and buyer applies “irrespective of title to the goods except where the provision refers to such title.”

Decided June 6, 1996

John F. McClellan, Jr., for appellant.

Shaw, Maddox, Graham, Monk & Boling, James D. Maddox, for appellee.

Thus it is clear that the seller completes his performance with reference to the physical delivery of the goods when he delivers the goods prior to completion of installation. Delivery is the other side of the coin from receipt.

Buyer was allowing this expensive equipment to be physically delivered and installed (and was using some of it with loaner parts which seller supplied) even in the month up until it turned all of its assets over to an assignee for the benefit of its creditors, because of its financial trouble. The seller first got word of the buyer’s financial collapse the same day its employees finished final installation. Now it all is available for other creditors, and the court must hold that the seller acted too late to reclaim it free of other creditors’ demands.