author: Sognier, Judge.

text:
    A89A1745.
    JUMP et al. v. BENEFIELD et al.
    (388 SE2d 864)
   Sognier, Judge.

Benard Jump and Elaine Willis Jump brought suit against Clyde Wallace Benefield, Sr. and his son, Clyde Wallace Benefield, Jr., seeking damages for the death of their minor son, Travis Jay Jump, who was a passenger in a truck driven by Benefield, Jr. which collided with a truck driven by a third party. Judgment was entered on a jury’s verdict in favor of the Benefields, and the Jumps appeal.

The record reveals that on June 15, 1986, Benefield, Jr. drove the decedent from Eatonton south to Milledgeville in the Benefield pickup truck. Although the weather had been fair that afternoon, on the return trip to Eatonton, as they crossed a bridge near the Putnam County line, it began to rain or mist. Rain had fallen there and to the north earlier, and according to Benefield, Jr.’s testimony, water “was puddled up heavy” at the end of the bridge, and he lost control of the truck when it hit the standing water. The truck hydroplaned, turned sideways in the roadway and, after crossing the centerline, struck a pickup truck driven by Elizabeth Jones which was traveling in the southbound lane. The Benefield truck then spun around and came to rest facing the road at the opposite shoulder after the impact. The collision caused multiple injuries to Travis Jay Jump, from which he died. Benefield, Jr. testified that he traveled that route frequently and was familiar with the fact that the road “dipped” at the end of the bridge and that water normally accumulated there after a rain.

There were material conflicts in the evidence adduced with respect to the condition of the tires on the Benefield truck. Both appellees testified that a few days prior to the collision they noticed that all four tires on the truck were worn and needed to be replaced. However, Benefield, Sr., who had been a mechanic at State inspection stations and had sold tires for approximately 20 years, testified at trial that the tires were not below the minimum requirements for tread; that he measured the right front tire a few days prior to the collision and estimated that “with the miles that [his son] was driving, . . . [the tires] would last him four or five months,” but he was planning to replace them the following week, when he was in Atlanta. Trooper C. J. Harris of the Georgia State Patrol testified similarly that the tires were worn, but not unsafe. Herbert J. Childs, an accident investigator hired by appellants, testified that he gauged each of the tires after the collision and recorded the measurements. Childs testified that “each of the four tires was worn down to or below the 2/32nds minimum tread required.” On cross-examination, however, Childs admitted that none of the measurements he recorded was actually below the required 2/32nds minimum tread requirement, but testified that was due to the method he routinely uses, whereby anything between l/32nd and 2/32nds is recorded as 2/32nds.

There were similar conflicts in the evidence regarding the speed of the Benefield truck at the time control of the vehicle was lost. Benefield, Jr. testified that he was traveling about 40 to 45 miles per hour when he lost control. Luther O. Cox, appellants’ expert in accident reconstruction, testified that based on his calculations made after viewing photographs taken by Childs, it was his opinion the Benefield truck was traveling at least 55 miles per hour at the beginning of the loss of control.

1. Appellants contend the trial court erred by charging the jury on the legal principle of act of God, arguing that because “ ‘[t]he term “act of God” in its legal sense applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them/ [cit.]” Sampson v. Gen. Elec. &c. Corp., 78 Ga. App. 2, 8 (3) (50 SE2d 169) (1948), the evidence adduced at trial was insufficient to support such a charge, as witnesses to the collision testified that although the road was wet, if it was raining at all at the time of the incident, the rain was very light. However, the record reveals that the act of God claimed by appellees was a combination of the sudden nature of the rain (the weather having been fair and the road dry until the bridge) and the unusual amount of standing water (Benefield, Jr. having testified that although he was aware that water usually accumulated at the end of the bridge after a rain, the standing water at the end of the bridge on that day “was puddled up heavy” and covered a much larger area than usual).

In the case at bar the trial court did not instruct the jury that the weather conditions present would be considered an act of God, but simply defined “act of God” for the jury, and left it to them to determine whether the facts, as brought out by the evidence presented, fit that definition. As noted by appellees, such “definitive charging” was approved in this context in Feathers v. Wilson, 157 Ga. App. 753, 754-755 (2) (278 SE2d 434) (1981). Having determined that there was evidence, however slight, of unusual weather conditions, and noting that “[i]t is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions, [cits.],” id. at 753 (1), we must agree with appellees that the trial court did not err by giving this charge.

2. Appellants also enumerate as error the trial court’s instructing the jury regarding the legal principle of accident. Appellants do not contend the trial court’s charge, which was taken from Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983), was an incorrect statement of the law, but that here, as in Meacham v. Barber, 183 Ga. App. 533, 537-538 (4) (359 SE2d 424) (1987), there was no evidence that the collision might have occurred without negligence on the part of Benefield, Jr., and that the charge was, therefore, inapplicable. However, because Trooper Harris testified that the size and weight of the Benefield vehicle, a Toyota pickup with an empty bed, would be a factor in explaining why that vehicle hydroplaned while other vehicles driving under the same conditions did not, and because the condition of the tires and the speed of the Toyota truck were facts which were in dispute, the jury was authorized to conclude that the collision was not proximately caused by the negligence of appellees. “[T]he jury was fully charged as to the issue of negligence and was told that an incident must be wholly free from negligence or it cannot be a legal accident. [Appellants’ evidence] raised an issue of operation of the [truck] within the speed limit and in a careful and prudent manner with the slide occurring wholly without warning and wholly without his control. It was for the jury to determine that issue. Where the jury is authorized under the alternatives submitted by the evidence to find that the collision was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident. [Cit.] Under the facts presented to the jury, the trial court did not err in submitting the issue of accident to the jury. [Cit.]” Reed v. Heffernan, 171 Ga. App. 83, 87 (318 SE2d 700) (1984).

Decided November 8, 1989

Rehearing denied November 21, 1989

Sell & Melton, Mitchell P. House, Jr., for appellants.

Robert S. Slocumb, George D. Lawrence, for appellees.

3. Appellants contend the verdict is strongly against the weight of the evidence and, in fact, contrary to the evidence. “[W]eighing the evidence is a function for the jury and the trial court, not an appellate court. [Cits.]” Verde v. Granary Enterprises, 178 Ga. App. 773 (1) (345 SE2d 56) (1986). “On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (1) (342 SE2d 694) (1986). “[W]here the evidence is in conflict and a properly instructed jury resolves the conflicts against the [appellants], and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm. [Cit.]” Hester v. Baker, 180 Ga. App. 627, 631-632 (6) (349 SE2d 834) (1986). We have determined in Division 2 of this opinion that the evidence was in conflict concerning material issues of fact, and that the jury was authorized to conclude that the collision was not proximately caused by appellees’ negligence but resulted from an unforeseen or unexplained cause. Accordingly, we find the verdict was supported by some evidence, and affirm.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A2071, A89A2072.
    SAVANNAH BANK & TRUST COMPANY et al. v. WEINER et al.; and vice versa.
    (388 SE2d 725)
   Deen, Presiding Judge.

Savannah Bank & Trust Company and Samuel Varnedoe as co-trustees under the will of Hattie V. Saussey brought suit against Aron G. Weiner, as administrator of the estate of Carolyn Lewis, deceased, individually and d/b/a The Newsprint Cafe, alleging that Mrs. Lewis entered into a lease agreement with them and that on July 26, 1983, a fire started in the room above the leased premises, which was caused by the negligent storage of Mrs. Lewis’ personal belongings. Appellants sought $17,816.01 in damages. Mrs. Lewis answered, denied the allegations in the complaint, and counterclaimed, alleging that the plaintiffs had a duty to inspect the premises, that they breached their contract by failing to inspect properly, and that they were also negligent in failing to properly maintain the property. She claimed that she suffered $70,000 in damages as a result of their negligence and that this negligence was the proximate cause of her damages.

Both parties moved for summary judgment on the issue of damages. After reviewing the report by the fire inspector, which found that the weather on the day in question was extremely hot, the room was not air-conditioned and poorly ventilated, and that the fire was caused by the refraction of sunlight from stored crystalware onto some adjacent paper or cardboard, which ignited, the trial court held that no reasonable person could have anticipated that a fire would start by spontaneous combustion, and that the defendant was not negligent. The court further found that this same rule applied to the defendant’s counterclaim for negligent failure to inspect. The court went on to examine the plaintiffs’ claim for damages for breach of contract and found that the plaintiffs might have a claim for lost profits or rents, but not the value of the fire loss. It further held that the only disputed matter in this case is whether or not use of the second-floor room for storage purposes was permitted; the amount of damages that would arise if such use was found to be unauthorized. The court granted the defendant’s motion for partial summary judgment on the issue of negligence and found against the defendant on the counterclaim for negligent inspection. Both parties appeal.

1. In Case No. A89A2071, appellants contend that Mrs. Lewis leased the premises at 150 Whitaker Street in Savannah for the operation of a stand-up restaurant and stored her personal effects and other items which had no direct relationship to the restaurant on the second floor of the premises, an area not leased to her and for which she paid no rent. Appellants claim that these items were negligently stored in paper and cardboard, in a tightly packed condition, in close proximity to a window which had direct access to sunlight, and that the area was unventilated.

Appellee contends that the lease in effect at the time of the fire does not state that it is limited to the first floor of 152 Whitaker Street, that she knew that she had access to the second floor from her restaurant, and that she believed she had permission to use the second floor for storage. She further asserts that the official investigation report attributed the cause of the fire to spontaneous combustion; i.e., the intense heat of the sun on a box of crystalware located near a window.

An accident is “an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). “Negligence consists of exposing another to whom one owes a duty, or exposing oneself, to a foreseeable unreasonable probability of harm . . . [W]hat the reasonably prudent person would . . . have foreseen as likely to happen ... is the key to the question of reasonableness. [Cit.] ‘Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake.’ [Cits.]” Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (227 SE2d 336) (1976). A party is required only to foresee and guard against that which can be reasonably anticipated to happen, not against that which is only remotely and slightly possible. Eckerd-Walton v. Adams, 126 Ga. App. 210, 213 (190 SE2d 490) (1972).

In his deposition, Chief McLendon explained how the fire occurred and that spontaneous combustion was a very rare occurrence, but that it could occur even in a cool house. He did not think that there was anything Mrs. Lewis could have done to foresee the fire. We therefore find no error in the trial court’s ruling that the incident in question was unforeseeable as a matter of law. Witt v. Atcheson, 166 Ga. App. 188 (303 SE2d 523) (1983). See Standard Oil Co. v. Harris, 120 Ga. App. 768, 775 (172 SE2d 344) (1969).

2. Aron G. Weiner as administrator of the estate of Carolyn Lewis cross-appeals, contending that the trial court should have granted him full summary judgment on the issue of Mrs. Lewis’ negligence and erred in holding that an issue of fact remained as to the plaintiffs’ claims for lost profits or lost rent under a breach of contract theory.

“When the movant for summary judgment presents evidence which shows that there is no genuine issue of material fact, the movant has met his burden, and the burden then shifts to the other party to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.” Culwell v. Lomas & Nettleton Co., 148 Ga. App. 478, 479 (251 SE2d 579) (1978). At no point did the plaintiffs amend their complaint to assert a new theory of recovery. The complaint only sought to recover damages for Mrs. Lewis’ alleged negligence. The trial court’s order creates issues not raised by the pleadings or the evidence before it. Indeed, an examination of the record reveals that this case is a subrogation action instituted by plaintiffs’ insurance carrier to recover the costs associated with repairing the damage caused by the fire. The plaintiffs’ alleged lost profits for breach of contract were not in issue.

Decided November 9, 1989

Rehearing denied November 21, 1989

Clark & Clark, Fred S. Clark, for appellants.

Karsman, Brooks & Callaway, David R. Smith, for appellees.

Accordingly, we find that the trial court erred in failing to grant full summary judgment to the defendant.

Judgment affirmed in part and reversed in part.

Birdsong and Benham, JJ., concur.


text:
    A89A2113.
    JOHNSON v. THE STATE.
    (388 SE2d 866)
   Sognier, Judge.

Calvin C. Johnson, Jr. was convicted of rape, aggravated sodomy, and burglary, and he appeals.

In his sole enumeration of error, appellant contends the trial court erred by admitting evidence of independent crimes and transactions. At trial the victim of the crimes for which appellant was convicted testified that she went to sleep the evening of March 8, 1983 and was awakened when a man sat on her back. A belt had been placed around her neck and was tightened until she lost consciousness, but when she recovered she discovered the man was having anal intercourse with her. Afterwards the man took cream or lotion she kept beside her bed, placed it on both his and her genital areas, then raped her. Still holding the belt around her neck the man got up and turned on a light, at which time the victim saw her attacker so that later she was able to identify him as appellant. Appellant turned off the light and took the pillowcase off a pillow on the bed and placed it over the victim’s head. Appellant asked the victim for money, looked through her purse and dresser drawers, then led her downstairs with the belt around her neck in search of money before releasing her and leaving. Subsequent to reporting the attack the victim discovered that $25 to $30 had been taken from her purse. Appellant had gained entry to the victim’s apartment through an unlocked door.

The State introduced three incidents at trial which occurred on the evening of March 6, 1983, the early hours of March 7, 1983, and the early hours of March 9, 1983. Lisa Campbell testified that on the evening of March 6, 1983 while she was showering, she heard a door shut. Wrapped in a towel she went into her living room to find a man she identified as appellant standing there. He had gained entry into her apartment through an unlocked window. He inquired whether someone named Jim lived there; Campbell said no and asked him to leave, but did not wait for a reply, deciding instead to run into her bathroom, lock the door, put on her bathrobe, and leave the apartment.

The next incident occurred within hours of the Campbell incident and at an apartment a few doors down from where Campbell lived. The victim of the March 7, 1983 incident testified that she was in bed asleep when she awoke with a belt around her neck. The March 7th victim identified her attacker as appellant. She stated appellant looked for cream, but could not find any. He then raped her, placed a pillowcase on her head, and led her around her apartment with the belt still around her neck searching for money. He took money from the victim’s purse. The victim managed to escape and after hunting for her, appellant left. Evidence established he had gained entry into the victim’s apartment by taking the window screen off and removing the window.

Bonita Bedford testified that in the early hours of March 9, 1983, she heard someone at the front door of her apartment. A black male tried to persuade her to open the door, claiming he lived two doors down from Bedford, which Bedford knew was a lie. A few moments after he seemed to have left, Bedford went to a front window to ascertain his departure and saw a man, whom she later identified as appellant, coming through the bushes within eighteen inches of the window, arms raised to reach for the window. She told him again to leave and closed the drapes.

Demonstrative evidence and testimony was introduced at trial which established the close physical proximity of the apartments where these incidents occurred to the apartment where the victim of the crimes for which appellant was convicted lived.

Generally, evidence of similar crimes and acts of the defendant is inadmissible because it tends to place the defendant’s character into evidence in violation of OCGA § 24-9-20 (b). Franklin v. State, 189 Ga. App. 405, 407 (376 SE2d 225) (1988). “Evidence of similar crimes [or transactions] is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime [or transaction]. Second, there must be sufficient similarity or connection between the independent crime [or transaction] and the offense charged.’ [Cit.]” Oller v. State, 187 Ga. App. 818, 819-820 (2) (371 SE2d 455) (1988). See also Barnes v. State, 191 Ga. App. 424, 425 (1) (382 SE2d 164) (1989).

We are satisfied that sufficient evidence was adduced at trial to establish that appellant was in fact the perpetrator of the three incidents presented by the State. Indeed, appellant acknowledges the identification of him by the March 7th rape victim was sufficient. As to Campbell, she testified that appellant was standing in her living room and that she engaged him in conversation. Although Bedford observed appellant only briefly out her window, she testified that he was only eighteen inches from her and that the porch light which was on at her neighbor’s apartment and the street lights enabled her to see appellant’s face. Campbell, Bedford, and the March 7th victim all stressed that their identification of appellant was aided by his uniquely prominent eyes.

We are satisfied also that there exists a sufficient similarity of connection between the three alleged offenses and the crimes charged. The similarities between the attack on the March 7th victim and the rape and burglary charged are striking in that both involved the use of a belt around the victims’ throats, the use of or the search for cream, the use of pillowcases over the victims’ heads, and the pulling of the victims by the belts through the apartments in a search for money. We find no error in the admission of the evidence of the attack on the March 7th victim. Since there need not be a charge or conviction relating to the similar offense for it to be admissible, Henderson v. State, 182 Ga. App. 513, 516 (356 SE2d 241) rev’d on other grounds, 257 Ga. 618 (362 SE2d 346) (1987), we do not agree with appellant that admission of the March 7th attack was error where appellant, after his conviction on the instant charges, was acquitted upon trial of charges brought as a result of the March 7, 1983 attack.

As to Campbell and Bedford, “[t]he admissibility of ‘other crime’ evidence is a matter determined by the trial court.” (Citations and punctuation omitted.) Mincey v. State, 186 Ga. App. 839, 840 (2) (368 SE2d 796) (1988). “ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.]” Oller, supra at 821 (2). The evidence showed both the physical proximity of the locations of the Campbell and Bedford incidents to the location of charged crimes and the temporal proximity of these events. Both instances involved females who lived in apartments and who appeared to be alone. In the Campbell incident, as with the charged crimes, the evidence showed that appellant had opened an unlocked door and entered without invitation of the occupant. We find the incidents here show sufficient similarities to make the introduction of the similar acts not unlawful. See Nelson v. State, 181 Ga. App. 481, 483 (352 SE2d 804) (1987).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided November 8, 1989

Rehearing denied November 21, 1989

Michael R. Hauptman, for appellant.

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


author: Pope, Judge.

text:
    A89A1039.
    CLEVELAND v. THE STATE.
    (388 SE2d 748)
    Decided November 21, 1989.

      Arleen E. Gardenhire, for appellant.

      E. Byron Smith, District Attorney, for appellee.
   Pope, Judge.

Appellant-defendant was ordered by this court on March 20, 1989, to file a brief and enumerations of error. To date, he has failed to do so.

1. Notwithstanding defendant’s failure to comply with the rules and order of this court, we decline to dismiss his appeal, but instead we will review the record and transcript and make a decision based upon the merits of the case. Conyers v. State, 183 Ga. App. 591 (1) (359 SE2d 454) (1987).

2. Defendant was convicted on two counts of selling cocaine to an undercover GBI agent. In each instance, the buy was made in daylight and the agent positively identified defendant. We have reviewed carefully the record and transcript and find no error.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Birdsong, Judge.

text:
    A89A1340.
    In the Interest of M. J. H., a child.
    (388 SE2d 738)
   Birdsong, Judge.

M. J. H. was adjudicated delinquent upon a petition alleging violation of Section 16-13-30 of the Georgia Controlled Substances Act for “possess [ion] with the intent to distribute a derivative of cocaine at 1-285 and U. S. 41, Cobb County, Georgia, on the 26th day of November, 1988.” The petition also alleged violation of OCGA § 16-11-106, “Possession of Firearm During Commission of Certain Crimes (Party to a crime), in that he did have in his possession a firearm to wit: a .22 caliber revolver while possessing with intent to distribute a controlled substance [on November 26, 1988].”

On appeal M. J. H. asserts the trial court erred in refusing to dismiss the petition against M. J. H., because of the State’s failure to prove anything more than mere presence at the scene of a crime in relation to M. J. H. Secondly, M. J. H. asserts the petition should have been dismissed for fatal variation in the allegata and probata, inasmuch as “crack,” the substance found in possession, is not technically a “derivative” of cocaine, but is in fact cocaine. Finally, M. J. H. contends the adjudication of delinquency is contrary to the law and principles of justice and equity. Held:

1. The facts apparently not in dispute are these: On November 26, 1988, the arresting officers made the traffic stop of a late model Chevrolet traveling eastbound on 1-285 in Cobb County, Georgia, at 2:30 a.m. As the vehicle was stopped in the emergency lane of 1-285, two plastic bags, one containing 20 small plastic bags of crack cocaine and the other containing 26 small plastic bags of crack cocaine, and a .22 caliber handgun were thrown out of the passenger’s window onto the ground approximately three feet from the vehicle. The arresting officers removed all five juveniles from the vehicle. No identification was produced by any of the five juveniles. Upon discovering the contraband and the handgun a few feet from the vehicle, the officers conducted a pat down of all the juveniles. No other weapons were discovered. The five juveniles were taken into custody and charged with possession of cocaine with intent to distribute and possession of a firearm during the commission of a crime. The arresting officers then conducted a search of the vehicle incident to arrest. The search produced $200 hidden under the back seat. In addition, quantities of cash were found on three of the juveniles but no money was found on M. J. H.

The State’s crime lab expert testified that the items seized were cocaine and, chemically speaking, not a derivative of cocaine. The witness acknowledged however, that there is a distinction between how the word “derivative” is used in chemical terminology and how the word is used by laymen; that a “derivative” of cocaine, in laymen’s terms, refers to other forms of cocaine besides the white powdery substance most commonly recognized. Crack cocaine is one such form.

In defense, three of appellant’s co-defendants took the stand. Only the driver (A. B.), and appellant did not testify. The evidence showed that A. B. and K. B. T. and appellant’s brother (A. H.), as well as D. P. had been selling drugs since about 1:00 or 2:00 in the afternoon before the arrest. The passenger in the front seat, co-defendant K. B. T., testified that the driver, co-defendant A. B., had tossed the crack cocaine into K. B. T.’s lap when the driver noticed the police pulling up behind the vehicle. In addition, co-defendant K. B. T testified that a handgun was tossed into his lap from one of the defendants in the back seat. Appellant, M. J. H., was seated in the back, on the left-hand side of the vehicle. The contraband and the handgun were in plain view for over two minutes prior to being tossed out the passenger’s window.

According to Officer Reeves, it seemed K. B. T. was the only one who could have thrown articles out of the window at the time of the stop, and it did not appear that any of the people in the back seat could have thrown the items out.

Officer Reeves testified his search of appellant’s person revealed nothing of pertinence, and that the sole reason appellant was arrested for possession of cocaine and a weapon was his spatial proximity to those items. The second arresting officer also acknowledged that the reason for M. J. H.’s arrest is that he was in a car where somebody possessed cocaine.

After the denial by the court of appellant’s motion to dismiss, three of appellant’s co-defendants took the stand and testified that they had in fact been out selling drugs for a lady in DeKalb County, but that M. J. H. was not involved in such activity. Generally, the testimony of these three totally exonerated appellant of any possession or distribution of cocaine, but D. P. said on cross-examination that he assumed appellant knew D. P. had the cocaine, “because I was out there [selling] it in front of his face,” but that he never told appellant he “had told [the lady] on the phone to bring me any more.”

Appellant contends, obviously, that the evidence is insufficient to support a finding that he had knowledge or possession of the cocaine and the gun, and that mere presence at the scene of a crime is all that was proved. Specifically, he cites Shirley v. State, 166 Ga. App. 456-457 (304 SE2d 468): “The evidence does not show actual possession by Tharpe, and to support a [showing] that he was in constructive possession of the contraband the circumstantial evidence must be both consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979). ‘A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.’ Id. No such connection was shown in this case. At most, the state’s evidence showed that Tharpe rode in an automobile with three other persons, all of whom who had equal opportunity to commit the crime. In fact, the evidence showed actual possession by Shirley, not the other three defendants. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. Huncke v. State, 137 Ga. App. 299, 300 (223 SE2d 492) (1976). Applying these principles to the facts of the instant case, the evidence is insufficient to support Tharpe’s conviction of possession of the contraband.”

The State argues, however, this case is controlled by Blaise v. State, 185 Ga. App. 653 (365 SE2d 499), where constructive possession was shown by more than mere “spatial proximity,” with evidence appellant had equal access and was party to the crime and, thus, was in joint constructive possession of the contraband. But Blaise is significantly distinguished from this case. In Blaise, appellant had been in a van with the proven drug dealer for seven hours, during which the van stopped at residences of two suspected drug dealers, and then went to a lounge known as a common place for street sales.

In this case, appellant M. J. H. was shown to have been in this Chevrolet for approximately one hour before it was stopped. The only competent evidence that M. J. H. took part in any drug activity was D. P.’s statement that he assumed M. J. H. knew he had cocaine because “I was out there [selling it] in front of his face.” Moreover, we must reject as hearsay certain evidence advanced by the State that M. J. H. was involved as the “muscleman,” based upon statements by appellant’s co-passengers A. H. and K. B. T. that “the lady” had got appellant there or put him there to watch or protect D. P. because of a prior threat made against D. P. Therefore, if the evidence argued by the parties were all that arose in the case, we would be inclined under Shirley, supra, to say the adjudication of guilt was insupportable because all that was competently shown was M. J. H.’s mere presence, for an hour, in a car peopled with drug dealers; and even if he “assumedly” saw one of them sell drugs, this still does not, to the exclusion of every other reasonable hypothesis, prove that he did see it, and does not prove joint possession. In fact, there was exonerating evidence that while the others had been selling drugs since early in the afternoon of that day, M. J. H. had joined them an hour before, looking for his brother A. H., and was only in the car hitching a ride to a party with the others.

Thus, the evidence argued by the parties on appeal leaves more questions than answers. However, when we comb the record, we find the evidence that legally persuaded the trial court of M. J. H.’s delinquent involvement in the crimes. The three co-defendants who testified, A. H., D. P., and K. B. T., all testified that they were directly involved in the sale of drugs for “the lady,” who was A. B.’s (the driver’s) aunt. A. B. did not testify. The “lady,” Melody Banks, controlled the drug dealers; she provided them with the drugs, apparently directly and with the assistance of her nephew A. B., and set them up or assigned them to certain locations or areas, and then, when they returned to her with their sale money, she gave them their “cut.” Melody Banks was a powerful woman who could put “a contract” out on anyone who threatened her operations or one of her dealers, and had been known to do so, having allegedly had one boy shot in the leg. K. B. T. had in fact seen this boy on crutches, and was therefore very afraid of Melody Banks. These three witnesses appeared, from the record, to be testifying under great emotional pressure of fear, to the point of tears and often stammering and even being praised by officers of the court for their courage in testifying despite their fear of the consequences. But, although D. P. was aware there was no evidence to convict him, he testified because he “felt that everybody else was fixing to get guilty, and we’re the ones [who] should be guilty and not [M. J. H.] ’cause he didn’t do [anything].”

The three passengers testified generally, as follows: K. B. T. and A. H. and the driver A. B. (Melody Banks’ nephew) had gotten a “package” from Melody Banks,' about $500 worth each, at about 1:00 or 2:00 p.m. and had been selling drugs all that day. D. P. was in another project near Fulton Industrial, selling drugs. M. J. H. evidently had made no appearance, but at some point late at night, apparently, he went to Melody Banks’ house to look for his brother, A. H., Melody Banks took M. J. H. in her car to where D. P. was “stationed”; since D. P. and M. J. H.’s brother were very close, M. J. H. knew that wherever D. P. was, he would find A. H.

However, D. P. also testified that he and M. J. H. were “out there, and then I called her and told her to come pick us up”; when he called the lady, D. P. told her on the phone to bring him more drugs, but he testified he did not tell M. J. H. he had told “the lady” to bring more cocaine. Apparently soon thereafter, A. B. (who had been selling drugs in another area with K. B. T. and A. H.) came and picked up D. P. and M. J. H. in his car (which according to one of the witnesses, was actually Melody Banks’ car). Evidently when they were stopped by police, they were on their way “back to Decatur ... to take the lady the money back” from their sales, after which they had intended to go to a party at the National Guard Armory in Marietta in Cobb County. It was maintained by all that M. J. H.’s only design was to get with his brother and go to the party in Marietta.

All of this evidence, when resolved in favor of the adjudication as we are required to do on appeal, points directly to the conclusion that M. J. H. was not merely present at the scene of a crime, but was a knowing participant. According to D. P., he and appellant M. J. H. were together at their location before “the lady” came and before D. P. called her to tell her to bring more drugs, which she did. The evidence is resolved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, by the conclusion that Melody Banks did not merely drive to D. P.’s location to deliver M. J. H. so that M. J. H. could find his brother when the whole group of drug sellers rendezvoused, but that M. J. H. was already with D. P. when the lady drove to their location to bring more drugs. D. P. sold drugs in front of M. J. H.’s face. When A. B. and K. B. T. and appellant’s brother A. H. arrived, the group altogether had a large amount of drugs unsold, and not very much money, relatively speaking. D. P. admitted the $200 found stuffed under the seat was his; although the State has not made it entirely clear, it appears the only other money found in possession of the others was no more than $60-70.

The only reasonable deduction is that instead of being on their way to deliver their money to Melody Banks, the group was just beginning their drug odyssey or was continuing it afresh after she had just delivered more drugs to D. P. in M. J. H.’s presence. The record is clear that the entire night’s activities, and all the actors, were solely and thickly involved in the sale of cocaine for Melody Banks.

Even if the evidence could be resolved to show that M. J. H. had simply called at Melody Banks’ house to find his brother, the evidence is so redolently charged with Banks’ reputation as a powerful woman who controlled a drug dealing ring, that it is unreasonable to hypothesize M. J. H. did not know what his brother and D. P. were doing in association with Melody Banks.

And going further, even if M. J. H. ostensibly had initially no idea of Melody Banks’ reputation and activities, or what his brother was doing in association with Melody Banks, or how it was that he could find his brother through her or by going to her house, it is utterly unreasonable to hypothesize that M. J. H. could not have soon known and suspected what they all were doing. The evidence which attempts to exonerate M. J. H. in this fashion points instead directly to a “ring” or association of young men (juveniles) who were doing something as a group, or in groups, for or under direction of Melody Banks. Not to be facetious, but only to make the point clear, it had to be known to M. J. H. that Melody Banks was not directing from her house a service which kept social tabs on certain persons and provided chauffeur services for them and their friends and relatives, but was clearly engaged in directing an illegal activity. In the best light of all the evidence, M. J. H. had full knowledge of the nature of the evening’s activities when he went to Melody Banks’ house and had her drive him to where D. P. was selling drugs; he was there when D. P. was selling drugs “in front of his face,” and he then got in a car with D. P. and others, including his brother A. H., who he knew were directly involved with Melody Banks and her activities, and who he therefore knew possessed and had been selling and were selling and carrying drugs.

We find the evidence strongly provides the basis from which a rational trier of fact could adjudicate delinquency upon the charges alleged, as party to the crimes, in joint possession of the contraband and drugs, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided November 21, 1989.

Greene & Davis, Kenneth R. Croy, for appellant.

Thomas J. Charron, District Attorney, Amy H. McHesney, Assistant District Attorney, for appellee.

It follows that the adjudication was not contrary to the evidence or the law, nor contrary to equity and justice.

2. We find no merit in appellant’s argument that the petition should have been dismissed because it charged him with possession of and intent to distribute a “derivative” of cocaine, where as it was proved that the proven drug, “crack,” is not technically a derivative of cocaine but is cocaine. The State’s laboratory expert testified that in laymen’s terms, a “derivative of cocaine” refers to other forms of the white powdery substance known generally as cocaine. A variance between the allegations and proof is not fatal under DePalma v. State, 225 Ga. 465 (169 SE2d 801), if the accused has definitely been informed by the petition of the charges against him so that he may be enabled to present his defense and not be surprised by the trial evidence, and so that he may be protected against prosecution for the same offense. Id. pp. 469-470.

The original detention complaint filed against M. J. H. in Cobb County Juvenile Court on November 28, 1988, charged him with possession of “suspected cocaine (‘crack’) . . . being (2) clear plastic bags containing (46) individual bags containing suspected ‘crack’. . . .” There is no reasonable probability that appellant misunderstood the formal complaint against him to describe a different “form” of cocaine than “crack.” In fact, appellant points to no evidence of surprise, and no actual harm in having to defend against the charge of possessing a “derivative” of cocaine (in laymen’s terms, “crack”) as opposed to “cocaine.” The variation here is technical and trivial, under all the circumstances of this case. See Foster v. State, 142 Ga. App. 805, 807 (237 SE2d 455). It would certainly not allow him to be tried again for possession of “cocaine” under the same evidence. The variation, if it truly was one, was therefore not fatal.

Judgment affirmed.

Been, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1590.
    ADAMS v. THE STATE.
    (388 SE2d 747)
    Decided November 21, 1989.

      Jimmy D. Berry, Roger L. Curry, for appellant.

      Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of child molestation. He now appeals. Held:

In his sole enumeration, defendant contends the trial court erred in charging the jury on voluntary intoxication as a defense, arguing that he did not testify or otherwise raise voluntary intoxication as a defense. More specifically, defendant contends that “he did not request a charge on intoxication being a defense that would negate any intent that he had formed during the evening of [the offense].”

Although defendant did not raise voluntary intoxication as a defense, the evidence showed that defendant was voluntarily intoxicated at the time he molested the victim. “ ‘Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. (Cit.) Hence, the trial court did not err by charging the jury on (voluntary intoxication as a defense.)’ Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988).” Lovell v. State, 189 Ga. App. 311, 312 (2), 313 (375 SE2d 658).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1904.
    DUFFY et al. v. THEATRICAL ELECTRONICS CORPORATION.
    (388 SE2d 743)
   McMurray, Presiding Judge.

Theatrical Electronics Corporation (plaintiff) filed an action in the State Court of Fulton County, Georgia, to domesticate a default judgment entered against James T. Duffy, d/b/a Cinema ‘N’ Drafthouse International, Inc., and Cinema ‘N’ Drafthouse International, Inc. (defendants) in the General Court of Justice, Superior Court Division, of Mecklenburg County, North Carolina. Defendants denied all allegations of the complaint and raised several defenses, including an allegation that the North Carolina court lacked personal jurisdiction over the defendants.

At a bench trial, plaintiff introduced evidence of North Carolina’s long arm statute, which provides, in pertinent part, as follows: “A court of [North Carolina] having jurisdiction of the subject matter has jurisdiction over a person . . . [i]n any action which . . . [a]rises out of . . . services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant. . . .” North Carolina Gen. Stat. § 1-75.4 (5) (b). Plaintiff also presented evidence showing that it provided specialized services to defendants in North Carolina at the direction of defendant Duffy, an officer of the corporate defendant, and that defendants’ failure to pay for these services was the subject of the North Carolina lawsuit. The trial court found “that the North Carolina Court had personal jurisdiction of the defendants pursuant to the North Carolina long arm statute” and the trial court domesticated the North Carolina judgment, entering a judgment “in favor of the plaintiff and against [defendants] in the principal amount of $11,374.17, with interest in the amount of $3,501.70 thereon at eight percent per annum from June 21, 1985 to April 26, 1989, plus post judgment interest at the legal rate, plus Court costs.” This appeal followed. Held:

Defendants contend in one enumeration that the trial court “erred in finding . . . that there were sufficient ‘contacts’ with the State of North Carolina by the defendants so as to ‘trigger’ the provisions of the North Carolina long arm statute. . . .” The contention is without merit.

The place of performance provision of North Carolina’s long arm statute is sufficient “to satisfy the ‘minimum contacts’ requirement set forth in Intl. Shoe Co. v. State of Wash., 326 U. S. 310 (66 SC 154, 90 LE 95) (1945). See also McGee v. Intl. Life Ins. Co., 335 U. S. 220, 223 (78 SC 199, 2 LE2d 223) (1957). As stated in Gardner Engineering Corp. v. Page Engineering Co., 484 F2d 27, 32 (8th Cir. 1973), ‘it is apparent that the place of performance of a customized contract of this type is a contact of such quality as to support jurisdiction.’ Accord Ferron v. Anclote Psychiatric Center, 169 Ga. App. 699 (314 SE2d 714) (1984), holding that a contract for the performance of services by a psychiatric center in Florida was enforceable in that state against a Georgia resident who had purchased the services.” G & H Constr. Co. v. Daniels Flooring Co., 173 Ga. App. 181, 182 (2), 183 (325 SE2d 773). Consequently, since the services contract sued upon in the case sub judice was the result of services provided to defendants in North Carolina, it follows that the North Carolina court was statutorily authorized to assert personal jurisdiction over defendants.

Decided November 21, 1989.

David R. Wininger, for appellants.

Karl M. Terrell, for appellee.

Judgment affirmed.

Car ley, C. J., and Beasley, J., concur.

       “[T]he laws of other states, when properly authenticated and proved, ‘shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of such state. . . .’ OCGA § 24-7-24 (a) (2). Compare Borg-Warner &c. Prods. v. May, 154 Ga. App. 482, 483-4 (2), (3) (268 SE2d 770) (1980).” Tandy Computer Leasing v. Smith, 186 Ga. App. 101, 102 (2), 103 (366 SE2d 417).


text:
    A89A1921.
    WILLIAMS v. THE STATE.
    (388 SE2d 884)
   McMurray, Presiding Judge.

On January 14, 1989, in the early morning hours, DeKalb County Police Department officers went to the Dial Inn near the intersection of Interstate 85 and Shallowford Road to try to find cocaine. In the motel parking lot, they were approached by Teri Lynn Hayes who asked them for a “light.” The officers complied. Then one of the officers asked Hayes if she knew where they could buy some cocaine. She said, “ ‘No, I am sorry, I don’t.’ ”

The officers observed Hayes get into a van driven by David M. Brown. As the officers left the parking lot, Brown signalled by blinking the headlights at them several times. The police officers stopped and Hayes approached them once again. She said, “ T can get you a quarter bag of rock.’ ” The officers replied, “ ‘That’s fine.’ ” Hayes told the officers to follow the van to the next exit.

The officers followed the van to the Golf Land Motor Lodge at the intersection of Interstate 85 and Chamblee-Tucker Road. Hayes got out of the van and approached the officers. One of the officers gave her $25 in marked currency. In short order, Hayes went to a room in the motel, returned to the van and gave Brown the currency. Then, she waited with the officers while Brown went into a room in the motel. When Brown returned (after about five minutes), he motioned to Hayes and she rejoined him in the van. Brown gave something to Hayes; she returned to the officers and gave them a clear plastic bag containing cocaine. In the meantime, Brown returned to the same motel room.

When Brown was out of sight, Hayes was arrested. Then the officers proceeded to the motel room which Brown entered. Defendant Williams opened the motel room door and inside the officers saw Brown sitting on a bed. He was immediately placed under arrest and searched. The marked currency was not on him. Thereupon, the officers searched defendant. They found the marked currency in his pocket. They also found cocaine (1.2 grams) and marijuana (2.2 grams) on his person. Thereupon, defendant was arrested.

Via indictment, defendant was accused of possession of cocaine with intent to distribute and possession of marijuana. Defendant filed a motion to suppress evidence and, following a hearing, the motion was overruled. At the conclusion of the motion to suppress hearing, defendant informed the court that he wished to waive his right to a jury trial and to be tried by the court, sitting without a jury, based on the evidence adduced at the motion to suppress hearing. Accordingly, the parties stipulated that the evidence presented at the motion to suppress hearing would be considered by the court in determining defendant’s guilt or innocence. Based on that evidence, the trial court found defendant guilty upon each count of the indictment. This appeal followed the imposition of sentence. Held:

1. In his first enumeration of error, defendant contends the trial court erred in overruling his motion to suppress evidence. In this regard, defendant argues that the search of his person was illegal because the officers did not have probable cause to arrest him before they conducted the search. He did not contend that the officers conducted an illegal search in that they acted outside their territorial jurisdiction.

In considering the legality of a search without a warrant, we must determine whether the search was reasonable under the particular circumstances confronting the officer at the time the search was made. As it is said: “ ‘[Reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberations; it is determined by the foresight of the policeman on the scene who must act in the public interest in a very short space of time. The reasonableness of his action must be judged in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine.’ Croker v. State, 114 Ga. App. 43 (1) (150 SE2d 294).” Menaghan v. State, 132 Ga. App. 380, 382 (2-a) (208 SE2d 150).

In the case sub judice, the trial judge was warranted in concluding that the search of defendant was reasonable. Why? Because at the time the search was made, the facts and circumstances within the knowledge of the officers were sufficient to warrant a prudent person to believe that defendant had committed or was committing a crime. Durden v. State, 250 Ga. 325, 326 (297 SE2d 237). After all, while the drug deal was being transacted, Brown made two visits to the room occupied by defendant; defendant was the only other person in the room at the time of Brown’s arrest; and the marked currency, which had been given to Brown, was not found on his person. Given these facts, it was reasonable for the officers to conclude that defendant was holding the marked currency and was involved in selling the cocaine to the officers. Thus, the officers acquired “probable cause” to arrest defendant — and there was likely to be a failure of justice if the officers delayed the search and arrest of defendant until a warrant was obtained. See Durden v. State, supra at 327 (1). The trial judge did not err in overruling defendant’s motion to suppress evidence.

Decided November 21, 1989.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

2. In his second enumeration of error, defendant contends the State failed to prove venue. In this regard, he points out that although the State demonstrated that the sale of cocaine and defendant’s arrest took place at the intersection of Interstate 85 and Chamblee-Tucker Road, it failed to demonstrate that that intersection is located in DeKalb County. We disagree.

“This is not a situation where extraterritorial aid was invoked, as provided for in the Georgia Mutual Aid Act. OCGA § 36-69-1 et seq. There was and is no contention that the [DeKalb County police officers] acted outside [their] territorial jurisdiction. . . . Thus the State is at least entitled to an inference that [the officers] acted with authority, which would be within [DeKalb County]. It is a ‘well settled principle that public officials shall be presumed to have performed their duties . . . unless clearly proven otherwise.’ Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 192 (2) (c) (336 SE2d 562) (1985); OCGA § 24-1-1 (6).” Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525).

Defendant did not contest venue in the trial court. Thus, while it was incumbent upon the State to establish venue beyond a reasonable doubt, slight proof would have sufficed. Carter v. State, 146 Ga. App. 681 (247 SE2d 191).

Under the particular facts and circumstances of the case sub judice, we are satisfied that the “slight evidence” standard was met and venue was proven to be in DeKalb County, Georgia, beyond a reasonable doubt.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1977.
    CHAPMAN v. NATION.
    (388 SE2d 744)
   Sognier, Judge.

Helen Nation brought a dispossessory action against Russell F. Chapman after purchasing Chapman’s home at foreclosure proceedings instituted by her. The trial court entered judgment in favor of Nation, and Chapman appeals.

The parties stipulated the following facts: In order to complete the construction of his home, on May 22, 1986 appellant executed a promissory note to appellee for $55,200. Monthly payments were due on the 20th of each month beginning June 20, 1986 and each month thereafter until May 20, 1993, when a final, balloon payment was due. The note provided that if any installment was not paid when due, the entire unpaid principal balance would, at the option of the holder and without notice to the maker, become due and payable. On the same date appellant also executed a deed to secure debt, which was duly recorded.

During the first two years after execution of the note and security deed, several late payments were made and accepted. On April 6, 1988, when the February and March 1988 payments had not been made, appellee notified appellant by certified mail of her intention to foreclose. The letter was never claimed. However, on April 7, appellant’s wife paid appellee $2,586.19 and entered into an agreement with appellee, signing “[a]s [a]gent for Russell F. Chapman.” The agreement set forth the manner in which the funds paid were to be disbursed and provided that appellee would postpone foreclosure proceedings for 30 days, that appellant agreed that no further notice was necessary to inform him of such foreclosure proceedings, and that “[appellant] hereby recognizes that even though the payments have been brought current, the Promissory Note has already been declared in default and that [appellee’s] acceleration of the maturity of the debt remains unchanged and that nothing contained in this document shall be considered a waiver of her right of acceleration or stop her from foreclosing the mortgage in May, in accordance with the provisions contained in the Promissory Note and Deed to Secure Debt.”

Nevertheless, another notice of foreclosure was sent on May 3, 1988, which was claimed by appellant’s wife. The sale was advertised for 5 weeks, beginning May 6, 1988, and on June 7, 1988 appellee bought the property on the courthouse steps, and a deed under power was thereafter executed and recorded.

1. Appellant contends that the trial court erred by finding that there was a lawful foreclosure and that appellee was entitled to possession, because there had been a mutual departure from the terms of the original note, and thus, pursuant to OCGA § 13-4-4, appellee was required to notify appellant that she intended to rely on the exact terms of the original agreement before properly declaring a default. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 10-14 (1) (195 SE2d 417) (1973). However, “[f]or a departure from the terms of a contract to be sufficient to require notice by one of the parties of his or her intention to insist upon strict compliance with the contract, the departure must be mutual and intended, such that the parties have essentially a new agreement concerning the requirements of the original contract. [Cits.] Although [appellant] may have unilaterally interpreted [appellee’s] acceptance of several of his late payments as a waiver of the necessity to strictly comply with the specified payment schedule, there is no evidence that that was [appellee’s] intention. In fact, [appellee’s] . . . expression of displeasure with the late payments shows that [she] did not intend to waive the requirement that [appellant] make his future payments on the 20th day of each month. [Cits.]” Duncan v. Lagunas, 253 Ga. 61, 62-63 (1) (316 SE2d 747) (1984). Appellee testified that she frequently had to call appellant’s wife to get even the late payments, and that all late payments were protested either by her personally or by her financial assistant. Accordingly, we find no mutual departure. Id.

2. Appellant maintains the trial court’s rulings were also improper because the loan was not in default at the time of the May 3rd notice of foreclosure. We find no merit in this contention. Appellee’s election to accelerate was made on April 6th, when the loan was in default and prior to her acceptance of the payments made on April 7th. “Where the election to accelerate is declared prior to the tender of arrearage, the rights of the parties are the same as if the entire note had by its terms become due immediately upon default. The entire debt being due, the mere acceptance of part-payment thereon does not amount to a waiver of the prior default or undo the maturity of the remainder of the indebtedness, nor set it forward to the date originally fixed under the terms of the original contract. [Cits.]” Philyaw v. Fulton Nat. Bank, 139 Ga. App. 28, 30 (227 SE2d 811) (1976).

Moreover, even assuming that the default had been cured, it is uncontroverted that the 1986 and 1987 property taxes were not paid until appellee paid them on June 15, 1988, after the foreclosure sale. The deed to secure debt provided that “if [appellant] shall fail to pay any taxes assessed against said property when same becomes due, then the total principal debt hereby secured shall become due and payable at once at the option of the holder.” Thus, the failure to pay taxes operated as a default as well, allowing appellee to accelerate the debt and authorizing foreclosure pursuant to the security deed. Jones v. Hamilton Mtg. Corp., 139 Ga. App. 239, 242 (1) (228 SE2d 170) (1976). See also Bozeman v. Horton, 245 Ga. 188, 189 (1) (263 SE2d 922) (1980).

3. We need not address appellant’s contention that the agreement signed by his wife was not binding on him, as our decision that foreclosure was proper and affirmance of the trial court’s award of possession to appellee do not rest on the validity of that agreement.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided November 21, 1989.

Little & Adams, Sam F. Little, for appellant.

J. Tracy Ward, for appellee.


text:
    A89A2029.
    FREEMAN v. CITY OF BRUNSWICK et al.
    (388 SE2d 746)
   McMurray, Presiding Judge.

On July 20, 1988, pro se plaintiff Freeman filed his “civil rights complaint” against defendant City of Brunswick and against three Brunswick police officers, defendants Jordan, Holloway, and Haddock. The complaint alleges that the individual defendants, while acting under color of state law, illegally arrested plaintiff and deprived plaintiff of his right to due process of law, right to equal protection of the law, and right to be secure in his person, liberty, effects, and property, and to be free from unreasonable searches and seizures. The incident during which plaintiff was placed under arrest for possession of cocaine and of less than one ounce of marijuana allegedly occurred on September 13, 1985. See Freeman v. State, 182 Ga. App. 654 (356 SE2d 718).

Defendants answered, denying the averments of plaintiff’s complaint and raising numerous defenses. Subsequently, defendants filed their joint motion for summary judgment. Plaintiff appeals from the grant of defendants’ motion for summary judgment. Held:

Plaintiff contends that summary judgment was granted to defendants without notice to plaintiff in that defendants did not perfect service upon plaintiff. See Jackson v. Bekele, 152 Ga. App. 417, 421 (2) (263 SE2d 225). “The record shows that service was perfected by mail. This is permissible. [OCGA § 9-11-5 (b).] Standing unrefuted this fact of service in the record controls.” Farr v. Farr, 120 Ga. App. 762 (172 SE2d 158). See also Allen v. Bd. of Tax Assessors of Paulding County, 247 Ga. 568 (277 SE2d 660). Nothing in the record shows an attempt by plaintiff to refute the fact of service prior to this appeal, therefore this enumeration of error is without merit. Tyson v. Automotive Controls Corp., 147 Ga. App. 409 (1) (249 SE2d 99).

Additionally, we note that the grant of defendants’ motion for summary judgment was correct on the merits. The alleged deprivation of plaintiff’s constitutional rights occurred on September 13, 1985, and the complaint in the case sub judice was filed on July 21, 1988. Plaintiff’s claim having arisen more than two years prior to the filing of this action, plaintiff’s claim is barred by the statute of limitation set out in OCGA § 9-3-33. Even viewing plaintiff’s claim as arising under 42 USCA § 1983, the applicable statute of limitation remains the two-year period provided by OCGA § 9-3-33. Wilson v. Garcia, 471 U. S. 261 (105 SC 1938, 85 LE2d 254); Williams v. City of Atlanta, 794 F2d 624, 627 (2) (11th Cir. 1986).

Decided November 21, 1989.

William J. Freeman, pro se.

Dickey, Whelchel, Brown & Readdick, B. Kaye Katz, for appellees.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2068.
    JACKSON v. THE STATE.
    (388 SE2d 881)
   Sognier, Judge.

David Lewis Jackson was convicted of trafficking in cocaine and he appeals.

1. Appellant contends the evidence was insufficient to support his conviction and therefore the trial court erred by denying his motions for a directed verdict of acquittal, for judgment notwithstanding the verdict, and for a new trial. Construed to support the verdict, the evidence adduced at trial showed that Hialeah, Florida police were contacted by a United Parcel Service (UPS) supervisor who told the Florida police a package containing suspected cocaine hád been brought to the office. Detective Thomas Kellogg of the Hialeah Police Department testified he opened the package and found cold cream jars containing what later was determined to be 72.8 grams of powder and rock cocaine. The package was addressed to “John Jackson” at “39 Butler Street, Camilla, Georgia.” Georgia police officials were contacted and Detective Kellogg brought the package to Georgia. The contents of the package, which had been examined and counted by Kellogg, were reexamined and recounted by Georgia police officials when Kellogg turned the package over to Investigator David Forrester of the Camilla Police Department. The package was rewrapped and then Steve Maddox, a UPS investigator who testified that he worked with Georgia authorities on the matter, on April 13, 1988 attempted to deliver the package at the address on the package. He stated that a woman answered the door and, in response to his statement that he had a package for “John Jackson,” told him to deliver the package to The House of Music on Butler Street. Maddox obtained directions from the woman and, after consulting further with police authorities, took it as directed to The House of Music where the store clerk, Rosa Lyons, accepted it.

Glenda Marcus, appellant’s sister, testified that on April 13, 1988 she lived at 39 Butler Street (which her testimony indicates is also known as 494 Butler Street Apartment 39) and that she was the person who instructed Maddox to take the package to The House of Music because appellant had told her to do so. She stated he explained to her that he was expecting to receive clothing from the UPS.

Lyons testified that on April 12, 1988 appellant asked her to accept a UPS package on his behalf because his sister was not at home. She stated appellant told her that the package would be in the name of John Jackson and its address would be “Butler Street, 39.” Lyons wrote the address on a notepad and accepted money from appellant to cover charges on the package. When the package did not arrive, Lyons returned the money and the paper from the notepad with the address to appellant. On April 13, appellant returned to the store and asked her again to accept the package, telling her there would be no charges on the package. Shortly thereafter Michael Harris came into the store and repeated the message. Lyons stated she told Harris she had spoken with appellant and noted that if there was no charge on the package, the UPS would leave it on the porch at appellant’s sister’s residence. When Maddox arrived to deliver the package, Lyons stated that because she knew the package was coming she agreed to sign for it. The owner of The House of Music confirmed Lyons’ account of the events and added that he heard appellant state that the package was coming out of Florida.

Harris testified that early on April 13 he met appellant and that appellant pointed out a black van and told Harris that the van belonged to Jeff Barker, a narcotics officer. Harris testified that appellant stated he did not want his sister (Marcus) to pick up the package of clothes and jewelry he was expecting.

Other evidence established that the paper, identified by Lyons as the piece of notepad paper on which she had written the address given her by appellant, was found in the trash at the home of Velma Scott, appellant’s girl friend.

Appellant testified at trial that he was expecting to receive clothing from his brother who lived in Florida and denied knowing anything about the package in question or telling Lyons the address on the package.

OCGA § 16-13-31 (a) (1) provides that the offense of trafficking in cocaine is committed by “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine. . . .” The case law cited by appellant in which “actual” possession is required to establish the elements of trafficking in cocaine is not applicable to the April 1988 charged crime here since OCGA § 16-13-31 (a) was amended, effective March 28, 1988, by deleting the word “actual.” Thus, the question is whether there was evidence of possession of the contraband by appellant. “There is no requirement that the proof of . . . possession be by direct and not circumstantial evidence. It is the latter which authorized the [conviction] here. Secondly, to be convicted, [appellant did not have] to ‘directly commit the crime.’ OCGA § 16-2-20 (b) (1). [Appellant] is a party to the crime not only if he directly commits it but also if he ‘(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.’ [Cit.]” Heath v. State, 186 Ga. App. 655, 657 (368 SE2d 346) (1988). We find the circumstantial evidence was sufficient to sustain appellant’s conviction. OCGA § 24-4-6. The Federal Constitutional standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), on which appellant relies, was also met.

2. Lyons testified that when appellant came into The House of Music on April 12 to ask her to accept a package for him, she told him she would have to get the approval of her employer, Faulk. She also testified that she talked with Faulk about the matter, told him what appellant had said, and that he gave her permission to accept appellant’s package. Faulk later testified that appellant came to the store that day wanting to know if UPS had left a package for him. Because Lyons was not present, Faulk handled the matter, telling appellant no package had arrived. The prosecutor then asked Faulk if Lyons had talked to him about a package, to which Faulk responded, “[s]he had showed me some money that he [appellant] had left, along with a note, you know, with a name on it, and said if the package come — ” Defense counsel interrupted with a hearsay objection, the overruling of which is enumerated as error.

We need not determine whether, as the State argues, Faulk’s testimony constituted part of the res gestae, but see Fuqua v. State, 183 Ga. App. 414, 419 (359 SE2d 165) (1987), since, even assuming, arguendo, that Faulk’s testimony was inadmissible hearsay, we find the admission of this testimony into evidence harmless because other admissible evidence presented at trial by Lyons established the same facts to which Faulk testified. “ ‘(P)roof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. [Cit.]’ [Cit.]” Pittman v. State, 183 Ga. App. 12, 15 (3) (357 SE2d 855) (1987). Brown v. State, 234 Ga. 632 (217 SE2d 150) (1975), questioned in Painter v. State, 237 Ga. 30 (226 SE2d 578) (1976), which appellant cites in support of his argument, is not applicable here in that the hearsay objection sustained therein was to a question which the defense asked a police officer regarding the actions of another witness, who was available at trial but who had not yet testified.

3. Appellant argues the trial court erred by denying his motion for mistrial based on two instances where evidence was admitted which allegedly placed appellant’s character into issue. As to the first matter, the record reveals and appellant in his brief acknowledges that defense counsel’s timely objection prevented any such evidence being presented insofar as Investigator Barker’s testimony is concerned. Where there is nothing in the record to support a contention of error, nothing is presented to this court for review. See Shells v. State, 168 Ga. App. 442 (309 SE2d 664) (1983). As to the other matter raised by appellant, on direct examination appellant testified that he had lived next door to Lyons for six years and that Lyons knew him either under his given name or as “Pop” Jackson, but not as “John Jackson.” On cross-examination, the prosecutor challenged appellant’s testimony that he had lived there for six years, asking “[t]here was a period of time, for a couple of years, that you weren’t there, were you?” Appellant responded, “[t]hat’s correct, when I got incarcerated.”

Decided November 21, 1989.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Robert G. Dunn, Ron S. Smith, Assistant District Attorneys, for appellee.

“A defendant in a criminal case may testify in his own behalf. Tf a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.’ OCGA § 24-9-20 (b). We agree with the State that the [prosecutor’s] initial question to appellant constituted proper cross-examination of testimony appellant had given on direct about [the length of time he had lived next to Lyons.] ‘ “(I)t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. (Cit.)” (Cits.)’ [Cit.] . . . [I]t was appellant who introduced his character into evidence by discussing his criminal record in the response he chose to give to the prosecutor’s proper cross-examination as to appellant’s direct examination testimony. [Cit.]” Mitchell v. State, 193 Ga. App. 214 (387 SE2d 425) (1989). Therefore, we find no merit in appellant’s enumeration of error.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Beasley, Judge. McMurray, Presiding Judge, Sognier, Judge,

text:
    A89A1190.
    OAMI v. DELK INTERCHANGE, LTD.
    (388 SE2d 706)
   Beasley, Judge.

Plaintiff Delk Interchange, Ltd., entered into a five-year lease of premises in a shopping center with defendant, Chaim Oami, commencing May 1, 1985. The minimum monthly rent during the first year was $1,250. It was to increase annually. In the event of default, the lease provided in part: “Any installment of rent or any other charge or money obligation herein required to be paid by Tenant which is not paid when due shall bear interest at the rate of eighteen (18%) percent per annum or at the maximum rate allowed by law, whichever is less, from the due date until paid and the Landlord may treat any such charge or money obligation as additional rent hereunder. Tenant shall, in addition, pay a service charge of $10.00 per day and Landlord may treat such charge as additional rent hereunder.”

Beginning in January 1986, defendant repeatedly paid the rent late. Accumulated late interest charges and service fees were added on defendant’s account. Between January and August 1986, defendant voluntarily paid the late charges and service fees on at least two occasions. The late payments continued, however, and on June 11, 1987, plaintiff filed a proceeding against tenant holding over seeking “(a) possession of the premises; (b) past due rent of $5,438.64; (c) rent accruing to the date of judgment or vacancy at the rate of $1,570 per month; (d) late charges and service charges of $12.65 per day.”

Defendant answered and made a partial payment of $1,490 for the June rent. Defendant stipulated that the receipt of that amount by plaintiff did not prejudice plaintiff’s right to insist upon a writ of possession. Defendant was ordered to pay the monthly rental payments as they became due.

After discovery, plaintiff moved for summary judgment, which was granted in the amount of $4,093.64. Essentially, this sum represented late interest charges and service charges in accordance with the default provision.

Defendant asserts, inter alia, that the trial court erred in granting summary judgment because a question of fact remains as to whether the late interest charges and service charges constitute a penalty.

After examining the record and the law, we hold that the damages provided for in advance by the parties to this ordinary commercial lease, in the event the tenant did not pay the rent when due, are liquidated and as a matter of law not a penalty.

According to this standard lease for the shopping center premises, the determinable amount specified in the article on “Defaults and Remedies” would be incurred whenever the tenant defaulted in its promises to meet any monetary obligation when due. The lease set out the graduated rent per square foot for each of the five years, in a special stipulation.

The provision at issue contemplated that if the tenant stayed in possession without paying rent on time, it could cure the default by paying the additional, easily calculated amount set by the predetermined formula. The landlord would be entitled to a fixed interest return on the rent not had in hand for its cash flow when due, with a daily surcharge to service the default and its consequences. The surcharge of $10 per day would amount to about $300 per month on the $1,250 to $1,578 per month lease.

Thus both landlord and tenant agreed in advance about the monetary consequences of late payments. For the tenant it was regarded as a cost of doing business, as is illustrated by its paying the additional rent without dispute on at least two occasions.

When a contract is breached, “[d]amages are given as compensation for the injury sustained. . . .” OCGA § 13-6-1. Parties to a contract, recognizing that a breach might occur because the contract relates at least in part to future events, may agree in advance what they will consider the damages to be, so as to avoid a lengthy and costly dispute about them should a breach occur and additionally to let each party know how much a breach will cost. So, since “ ‘ “[competent parties are free to agree to whatever provisions in lawful contracts that they may choose . . . [i]f the parties agree what the damages for breach shall be, the damages are liquidated, and unless the agreement violates some principle of law, the parties are bound thereby. [OCGA §§ 13-6-1; 13-6-7.]” ’ [Cits.]” Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980). See also Fortune &c. Co. v. Dept. of Transp., 242 Ga. 531, 533 (250 SE2d 401) (1978), for a similar articulation of the rule.

“In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.’ [Cits.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

It is the burden of the defaulting party, here the defendant tenant, to show that the liquidated provision is a penalty. Liberty Life Ins. Co. v. Hartley Constr. Co., 258 Ga. 808 (375 SE2d 222) (1989). The plaintiff-landlord, as the movant for summary judgment, has shown that there is no question of material fact which must be resolved and could be resolved in defendant’s favor before the court decides the enforceability of the contract provision as a matter of law, as is its duty. Liberty Life, supra at 809.

Because of the nature of the contract and the relationship of the parties and the non-receipt of funds on time in a market of fluctuating interest rates over a five-year period, the injury to landlord which would be caused by late payments would be difficult or impossible of accurate estimation. Second, it is evident from the provision itself, and from the fact that the parties abided by it in the past, that the parties intended at the time of contracting to provide for damages rather than for a penalty. Third, the certain amount, which was adjusted to the length of tardiness, was a reasonable pre-estimate of the probable loss. Merely charging the legal rate of interest for the forced loan would not compensate the landlord-“lender” for the costs associated with its borrowing operating funds at the then-market rate.

The landlord has met the three-part test set out in Southeastern Land Fund, supra, and applied in Liberty Life, supra. The commendable effort of the parties to avoid a lawsuit by negotiating in advance what a particular type of default by the tenant will cost it, should be encouraged. The landlord relinquished in advance its right to prove potentially greater damages, and the tenant gained the benefit of knowing in advance the price of this specific default. The trial court correctly granted summary judgment to the landlord.

Judgment affirmed.

Carley, C. J., Deen, P. J., Birdsong and Pope, JJ., concur. McMurray, P. J., Banke, P. J., Sognier and Ben-ham, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I cannot agree that the damages provided in the lease agreement are liquidated and not a penalty as a matter of law. Accordingly, I dissent.

“In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: ‘First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.’ [Cits.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340). In making this inquiry, we must keep in mind that “in cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damage actually shown, rather than a liquidation of the damages.” Mayor &c. of Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 728 (62 SE 475).

“[Wjhether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable. [Cit.] Where the parties do not undertake to estimate damages in advance of the breach . . . the amount, even though called liquidated damages, is instead an unenforceable penalty. [Cit.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 228, supra.

An examination of the record in the case sub judice demonstrates a failure on the part of plaintiff to establish the late interest charges and service charges as a reasonable pre-estimate of the loss. Asked how plaintiff arrived at the $10 per day service charge, plaintiffs agent simply deposed that that amount was “printed on the form.” Thus, it would appear that the service charge was to bear no real connection to the actual loss incurred by plaintiff in the event defendant failed to pay the monthly rent timely.

Concerning the intention of the parties, plaintiff’s agent averred that the service charge “provides a penalty for a tenant who is consistently a slow payer.” Although the agent also deposed otherwise, this averment must be construed against plaintiff in weighing its motion for summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). At the very least, it demonstrates the existence of a genuine issue of material fact regarding the parties’ intention.

Besides, I think the lease agreement itself casts doubt upon the intention of the parties. Unlike Krupp Realty Co. v. Joel, 168 Ga. App. 480 (309 SE2d 641), in which the lease agreement contained a flat monthly charge for the failure to timely pay the rent, the lease agreement in the case sub judice contains a service charge which accrues daily, in addition to interest charges. Given this, I am inclined to view the lease agreement as imposing a penalty rather than as providing liquidated damages. As it is said: “In determining whether a designated sum that is to be paid to one party in the event that the other breaches the contract is a penalty, we must ascertain whether it was inserted for the purpose of deterring the party from breaching his contract, and of penalizing him in the event he should do so, or whether it was a sum which the parties in good faith agreed upon as representing those damages which would ensue if the contract should be breached. If A borrows $100 from B, agreeing that if he does not repay it by October 1, he will pay $1 per day as liquidated damages for the detention thereof, this is plainly a penalty, an attempt to coerce prompt performance of the contract, rather than an attempt to estimate what the legal damage to B will be; for the law fixes the legal damages in such a case at the lawful rate of interest.” (Emphasis supplied.) Florence Wagon Works v. Salmon, 8 Ga. App. 197, 199 (68 SE 866).

I am authorized to state that Judge Sognier and Judge Benham join in this dissent.

Decided November 1, 1989

Rehearing denied November 22, 1989

Aiken & Ward, Lewis E. Hassett, Annette K. McBrayer, for appellant.

Silfen, Segal, Mills & Fryer, Keith E. Fryer, for appellee.

Sognier, Judge,

dissenting.

I concur fully and specially with Presiding Judge McMurray’s dissent. The monthly rental is $1,250. If this amount is 30 days late, at the rate of $10 per day, $300 will accrue. This is a service charge of 24 percent per month or 288 percent per year, all in addition to the 18 percent per annum interest charge on late payments. I find it difficult to decide on summary judgment that this is a proper liquidated damage rather than a penalty.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.


text:
    A89A1381.
    TAMAS v. CITY OF ATLANTA.
    (388 SE2d 721)
   Birdsong, Judge.

Edward F. Tamas appeals the dismissal of his petition for a declaratory judgment concerning the use of his property in the City of Atlanta (the City). This case is part of a continuing dispute between appellant and the City over the property which is located in the Druid Hills Historic District. The property is zoned residential, but Tamas wants to convert it to office use. Earlier efforts to do so were unsuccessful and an appeal of those decisions was pending in the Supreme Court of this state at the time this action was filed.

This appeal is based upon an application for a certificate of appropriateness which must be issued by the city’s Urban Design Commission before the property can be used for offices. Tamas contends that he submitted a proper application for the certificate, and since the application was not acted upon within 45 days, it was deemed approved according to local ordinance. He, therefore, began to advertise the property as office space until the City compelled him to stop.

The City contends, however, that under the ordinance the 45-day rule only applies to complete applications, and that Tamas’ application was incomplete because it did not contain the information required. Further, the City contends that Tamas was advised that the application did not conform to the regulations, but that he left it with the Commission anyway. The City also contends that within the 45-day period the incomplete application was returned to Tamas and that the deficiencies were again noted in the letter returning the application.

Tamas sought a declaratory judgment that his application for the certificate of appropriateness was granted by operation of law when his application was not acted upon within the time prescribed (Count I); that the use of the zoning ordinance is unlawful because it conflicts with state law (Count II); that the zoning ordinance was unconstitutional (Count III); and that he be awarded certain sums as damages (Count IV). The City answered the petition and then moved to dismiss the petition. The motion contended that as to Count I the zoning ordinance only applied to completed applications, as to Count II the zoning ordinance is specifically exempted from the conflicting state laws; and as to Counts III and IV, the claims had not been brought to local zoning authorities or were barred by res judicata. The trial court granted the motion to dismiss without explanation.

The sole enumeration of error is that the trial court, erred as a matter of law in granting the motion to dismiss. Held:

Appellant’s brief asserts that only three procedural vehicles are available to secure the dismissal of his petition, i.e., dismissal for failure to state a claim, judgment on the pleadings, and summary judgment; and seeks to demonstrate why each is not applicable to this case. We note from the record that no title was given the motion other than a motion to dismiss. Further, mere nomenclature is not important, Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22), as it is the substance and function of the motion which controls. Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845). Appellant’s arguments may be technically correct in general, but they are not particularly relevant to this appeal.

The real issue presented here is whether declaratory judgment is available in this case in view of the available administrative procedures which can be followed by appeal to the superior court. Of course, the trial judge properly dismissed Count III since constitutional challenges in these cases cannot be raised for the first time in the superior court (Lafave v. City of Atlanta, 258 Ga. 631, 632 (373 SE2d 212)) and properly dismissed Count IV since damages may not be recovered in a declaratory judgment action. Calvary &c. Church v. City of Rome, 208 Ga. 312 (66 SE2d 726). Moreover, Count II is meritless because the terms of the state law which Tamas alleges are in conflict with the local ordinance exempt the City from its application; and, further, this argument was raised for the first time in the superior court.

Generally, courts should not intervene in the administrative process (Flint River Mills v. Henry, 234 Ga. 385, 386-387 (216 SE2d 895)), because to do so would needlessly disrupt normal procedure and burden the courts with decisions inceptively beyond their expertise. Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226). Further, administrative agencies provide high expertise within their specialized fields generally unavailable in the courts and their decisions are not to be “taken lightly or minimized by the judiciary.” Bentley v. Chastain, 242 Ga. 348, 350-351 (249 SE2d 38).

Decided November 9, 1989

Rehearing denied November 22, 1989

Richard P. Parker, for appellant.

Edward Tamas, pro se.

Robert L. Zoeckler, Marva Jones Brooks, David D. Blum, for appellee.

In this instance, Tamas asked the trial court to intervene in a process within the jurisdiction of the administrative agency vested with the authority to make such decisions and to declare whether the agency correctly returned his application for the additional information which the agency deemed necessary to evaluate his application for a certificate of appropriateness. For the court to do as Tamas sought would be an unwarranted intervention in the administrative process and would frustrate the beneficial purpose of the agency. Courts generally should not intervene in the administrative process as an agency performs its administrative function. To permit a declaratory judgment at each stage of an administrative proceeding would totally frustrate the process. The trial court properly refused to entertain the declaratory judgment action. George v. Dept. of Natural Resources, 250 Ga. 491, 492-493 (299 SE2d 556).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1578.
    McDEVITT & STREET COMPANY et al. v. TRAMMELL.
    (389 SE2d 3)
   Birdsong, Judge.

Pursuant to our grant of a discretionary appeal, McDevitt & Street Company (McDevitt) and Aetna Casualty & Surety Company (Aetna) appeal from an order of the superior court again remanding this workers’ compensation appeal to the full board. The record shows that Jimmy L. Trammell sustained an injury under circumstances giving rise to a workers’ compensation claim.

After an award by an administrative law judge in favor of Trammell regarding a change of condition, McDevitt and Aetna appealed to the superior court. In January 1986, the superior court first remanded the claim to the full board to determine whether a physician relied on opinion evidence in reaching his findings and conclusions and whether he relied on recognized guidelines in determining the degree of disability. The order contained no indication that the full board was directed to return the appeal to the superior court after its decision, or that the superior court retained jurisdiction over the appeal.

The full board forwarded the matter to an ALJ to receive evidence pursuant to the mandate of the superior court and for all appropriate action based on the evidence received and the order of the superior court. After receiving evidence from the physician concerned by deposition, the ALJ issued an award answering the questions posed in the superior court’s order, finding that Trammell had zero percent permanent partial disability to the body based on approved guidelines, and directing that Trammell be paid benefits for a temporary total disability. McDevitt and Aetna appealed the ALJ’s award to the full board, and the full board made the ALJ’s award its award, except that, apparently because of the remand from the superior court, it struck those portions of the ALJ’s award granting Trammell temporary total disability benefits. Although neither party so requested, the full board “remitted” the claim to the superior court for further disposition. Thereafter, neither party appealed the award.

When 18 months passed without action by the supérior court, Trammell moved for a decision on the remittal. After submission of briefs, the superior court again remanded the claim to the full board to accomplish the tasks specified in its order of January 1986. The court’s order recited that the ALJ had gone beyond the court’s earlier order by considering evidence unnecessary for clarification of the specific issues on which the remand was based, and that the full board did not answer the questions asked in the original remand order.

McDevitt and Aetna contend that the trial court erred by considering the motion because no timely appeal was taken from the full board’s award of February 1987, and the full board lacked authority to remit the claim to the superior court. McDevitt and Aetna also assert that even if the superior court had jurisdiction over the appeal, the remand to the full board was error since the “any evidence rule” required the superior court to affirm the full board’s award.

Trammell contends, however, that the February 1987 award was interlocutory because the award remitted the appeal to the superior court for disposition and it neither granted nor denied compensation, and further, the award was not otherwise appealable to the superior court. Trammell also contends that the award could not be affirmed under the “any evidence rule” because the issue of Trammell’s change of condition was not properly before the superior court. Held:

1. Central to disposition of this appeal is whether the State Board of Workers’ Compensation has authority to remit a case to the superior court, without appeal by a party. Workers’ compensation law is statutory in origin and procedure, Continental Ins. Co. v. McDaniel, 118 Ga. App. 344, 345 (163 SE2d 923), and “ ‘[t]he [full board] is an administrative body and it possesses only the jurisdiction, power, and authority granted to it by the legislature.’ Robinson v. Zurich Ins. Co., 131 Ga. App. 795, 796 (207 SE2d 209).” McGinty v. Alfred Simpson & Co., 188 Ga. App. 718, 719-720 (374 SE2d 217).

Decided November 9, 1989

Rehearing denied November 22, 1989.

Cone & Shivers, E. Scott Slappey, for appellants.

Consequently, we must look to the terms of the statute to determine the authority of the board. Appeals of workers’ compensation cases to the superior courts are provided for in OCGA § 34-9-105, and the right of appeal is granted to the parties, not the board, OCGA § 34-9-105 (b). Further, no authority is granted elsewhere in the law to authorize the board to remit appeals to the superior court, and, in particular, interlocutory appeals in workers’ compensation cases are not authorized. Garner v. Owens-Illinois Glass Containers, 134 Ga. App. 917, 920 (216 SE2d 709). Accordingly, that part of the full board’s award which attempted to remit the award to the superior court was not authorized and had no legal effect.

Further, the January 1986 order of the superior court does not provide authority for the full board to remit the case to the superior court. The order remanding the case to the full board was the “equivalent of setting aside the finding and award of the board, and, further, the superior court lost jurisdiction upon the entering of its order.” General Motors Corp. v. Martin, 119 Ga. App. 279 (167 SE2d 211).

Since the February 1987 award denied Trammell compensation, it was an appealable order, Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 320 (88 SE2d 492), and it became final when no timely appeal was filed. OCGA § 34-9-105 (a). Thus, the superior court was without jurisdiction to act on Trammell’s motion, and had no jurisdiction to conduct further appellate review in this case.

Consequently, the order of the superior court again remanding the case is in error and must be reversed.

2. In view of our disposition of this issue, we need not address the other contentions of the parties.

Judgment reversed with direction that the trial court enter judgment dismissing the appeal for lack of jurisdiction.

Deen, P. J., and Benham, J., concur.

Floyd, E. Doolittle, for appellee.