author: Eldridge, Judge.

text:
    A97A2491.
    BROWN v. THE STATE.
    (493 SE2d 230)
   Eldridge, Judge.

Appellant Donnie Brown challenges his March 1997 conviction in the Bibb County Superior Court for drug trafficking. We affirm.

The facts, viewed in the light most favorable to the verdict, are as follows: on December 5, 1996, Investigator Robert Spires of the Macon Police Department received information from a reliable confidential informant (“RCI”) regarding drug activity. Investigator Spires testified that the RCI reported that he had recently observed a light blue Dodge Charger, Georgia tag number CSJ491, in the Antioch Road area with two or three males inside; that one of the occupants was named “Donnie”; that at least one “cookie” of crack cocaine was in the car; that the car had just left the area; and that the car would return to the area in approximately one hour. Brown did not object to the introduction of this evidence.

Investigator Spires testified that he ran a computer check on the tag number and found that the tag was registered to Ronald Milner. Investigator Spires, along with other narcotics investigators, set up surveillance at locations on Antioch Road. Within 15 minutes of the time frame given by the RCI, a car matching the description appeared. Investigator Spires pulled the car over; Milner was driving the car, while Brown was seated in the front passenger’s seat and Spencer Charles Leonard was seated in the rear.

Investigator Spires informed Milner why he had been stopped and asked for consent to search the vehicle, which Milner granted. After Milner, Brown, and Leonard exited the vehicle, Investigators Chris Patterson and Harry Colbert conducted the search of the vehicle. Investigator Patterson discovered a brown paper bag between the two front bucket seats, under the edge of the driver’s seat and the hump. One “slab” of crack cocaine had fallen out of the bag and was in plain view from the front passenger’s seat; the bag contained additional pieces of crack. According to Investigator Spires, all three of the co-defendants had access to the drugs. After the bag was pointed out by Investigator Patterson, Investigator Spires took the bag and drugs into, custody. When questioned, all of the defendants denied ownership or knowledge of the crack. No drugs, drug-related paraphernalia, or drug-related money were found on Brown. The defendants stipulated to the introduction at trial of the certified copy of the State Crime Laboratory report regarding the seized cocaine; the analysis showed 30.5 grams of 69 percent purity for cocaine.

Brown, Leonard, and Milner were charged with trafficking in cocaine. Prior to the March 1997 trial, Leonard and Milner made a motion to reveal the identity of the RCI; following a hearing, the motion was denied. Brown did not participate in the motion, nor did he move separately to identify the RCI.

On March 26, 1997, Brown was found guilty of trafficking in cocaine; he was sentenced to thirty years, ten to serve, on March 27, 1997. Brown moved for a directed verdict and an acquittal notwithstanding the verdict, which were denied; his subsequent motion for a new trial also was denied. He timely appealed. Held:

1. In his first enumeration of error, Brown asserts that the trial court erred in not requiring the State to reveal the name of the RCI. However, Brown never moved to reveal the RCI’s identity at trial. Therefore, this complaint is waived. Kemp v. State, 218 Ga. App. 842 (463 SE2d 385) (1995); Wilson v. State, 191 Ga. App. 833 (383 SE2d 197) (1989).

Further, contrary to Brown’s assertions, the trial court did not err in failing to hold an in camera hearing on this issue when no such hearing was requested by Brown. Kemp, supra at 843; cf. Thornton, 238 Ga. 160, 165 (231 SE2d 729) (1977) (finding that the trial court erred in failing to hold a hearing to determine if disclosure of RCI’s identity was required); Keith v. State, 238 Ga. 157 (231 SE2d 727) (1977).

Even if Brown had moved to identify the RCI, the trial court would have been justified in denying his request for the same reasons this Court upheld the denial challenged by one of Brown’s co-defendants, Spencer Charles Leonard. See Leonard, supra. In Leonard, supra, this Court noted that the co-defendants were being prosecuted for possession of cocaine at the time of the arrest, not at the time the RCI alerted the police. Under the circumstances, therefore, the RCI was a “mere tipster” who provided information about criminal activity, but who otherwise had not witnessed or participated in the offense or the contemporaneous arrest. See Wells v. State, 212 Ga. App. 60, 63-64 (441 SE2d 460) (1994); Johnson v. State, 164 Ga. App. 501, 504 (297 SE2d 38) (1982); see also Thornton v. State, supra at 165; cf. Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534) (1989) (informer witnessed the crime); Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988) (informer witnessed the crime). As such, the RCI’s identity was privileged and disclosure was not required. Thornton, supra at 165; Wells, supra at 63-64.

The fact that the RCI told Investigator Spires that he believed that one of the car’s occupants was named “Donnie” does not transform the RCI into an informer-witness or otherwise change this analysis. There was no dispute at trial that Donnie Brown was in the car with the drugs at the time the stop was made and the drugs were seized. The actual witnesses to the arrest, the police officers and Mil-ner, testified and were subject to cross-examination at trial. Further, since the RCI was not present at the time of the arrest, his testimony regarding Brown would have been hearsay and inadmissible. See Thornton, supra at 165. As such, there was no abuse of discretion on the part of the trial court in refusing to order the State to reveal the RCI’s identity.

2. Brown asserts that, in refusing to order the identification of the RCI, the trial court violated his Sixth Amendment right to confront witnesses against him. However, as decided in Leonard, supra, and re-affirmed in Division 1, supra, the RCI in this case was not a witness to the crime for which Brown was charged. As such, there was no violation of Brown’s constitutional rights under the Sixth Amendment.

3. In his third enumeration, Brown asserts that the trial court erred in denying his motion for a new trial, which was based in part on the State’s alleged violation of his rights under Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963) (“Brady”). Brady requires the disclosure of all evidence which is favorable to the defendant when it is material either to the defendant’s guilt or punishment. Id. at 87.

In this case, Brown asserts that the RCI’s statement to police officers was material to Brown’s guilt, in that the statement referred to a participant named “Donnie.” However, the RCI in this case was a mere tipster, see Division 1, supra, so that “the tipster’s identity could not be material to the guilt or innocence of the defendant under Brady or be relevant and helpful to the defense under Roviaro [v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956)]. The public policy of the state toward non-disclosure would not be overcome and the state may rely on its privilege. It follows, therefore, that if the trial court initially determines that the informer was merely a pure tipster, his identity would be privileged, and no further inquiry would be necessary.” Thornton, supra at 165.

In addition, even if the RCI’s reference to “Donnie” was somehow determined to be relevant, the statement was clearly inculpatory as to Brown’s participation in the criminal activity. As such, it was not discoverable under Brady, which requires only the disclosure of exculpatory evidence. Brady, supra at 87.

Further, contrary to Brown’s assertions, the State was not required to disclose the statement by the RCI pursuant to Brady simply because it may have had impeachment value. This Court has held that the mere possibility that evidence sought from an unidentified source could be used to impeach a witness is not enough to demand disclosure of the evidence or the identity of the source under Brady. Moore, supra at 390.

As such, there was no violation by the State of Brown’s rights under Brady, so that Brown was not entitled to a new trial on that basis.

4. Brown asserts that the trial court erred in denying his motion for acquittal notwithstanding the verdict. However, Georgia law does not provide for such motion in a criminal proceeding. Rhyne v. State, 209 Ga. App. 548 (434 SE2d 76) (1993), aff’d, 264 Ga. 176 (442 SE2d 742) (1994); State v. Bilal, 192 Ga. App. 185, 186 (384 SE2d 253) (1989); Lamons v. State, 176 Ga. App. 290 (335 SE2d 652) (1985), rev’d on other grounds, 255 Ga. 511 (340 SE2d 183) (1986). When “made in the alternative with a motion for a new trial in a criminal case, ... [a motion for acquittal notwithstanding the verdict] is treated simply as a motion for new trial.” Bilal, supra at 186; Lamons, supra at 291. Therefore, we will consider this enumeration as a challenge to the trial court’s denial of Brown’s motion for a new trial.

Decided October 30, 1997.

Nancy A. Atkinson, for appellant.

OCGA § 16-13-31 (a) (1) defines the offense of trafficking in cocaine as when a person “knowingly sells, manufactures, delivers, or brings into this state or ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine[.]” The evidence in this case showed that Brown was in the front passenger seat of the car at the time it was stopped by Investigator Spires; that he had been in the car for at least 30-45 minutes; and that a slab of cocaine was found in plain view near the hump between the front seats. Co-defendant Milner’s witness testified that he overheard Brown offer Milner $1,000 “to take the drug charge” while the men were in the Bibb County Law Enforcement Center holding cell. The witness also testified that he heard Leonard confront Brown about why Brown had not thrown the drugs out of the window prior to being stopped by the police officers.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this Court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). A review of the evidence in the light most favorable to the verdict reveals that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Brown was in close proximity to the cocaine in the car, that he knew of the presence of the drugs, that the drugs were jointly possessed by Leonard and Brown, and that, therefore, Brown was guilty of drug trafficking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant, supra at 464; see also Leonard, supra at 792 and cases cited therein.

Judgment affirmed.

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

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Assistant District Attorney, for appellee.

       See also Leonard v. State, 228 Ga. App. 792 (492 SE2d 747) (1997), the appeal of Brown’s co-defendant, Spencer Charles Leonard.

       Notably, a pretrial hearing on this issue was held upon motion by Brown’s co-defendants; however, no transcript was available for review. As a result, the trial court’s decision that the identity of the RCI was privileged will not be disturbed.

       Notably, Brown did not cross-examine the officers about the RCI’s statement regarding “Donnie”; as such, he waived any defense as to an asserted misidentification by the RCI. See Nicely v. State, 197 Ga. App. 206 (397 SE2d 630) (1990).

       Co-defendant Milner, who testified in his own behalf, was acquitted.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A1607.
    KIM et al. v. PLATT.
    (493 SE2d 249)
   Pope, Presiding Judge.

On July 12, 1993, plaintiff Injoo Kim and defendant Lisa Platt were involved in an automobile accident. Nearly two years after the accident, plaintiff and her husband, Youngho Kim, filed suit against defendant seeking recovery for the personal injuries plaintiff allegedly suffered in the accident and for loss of consortium. Because defendant had moved to Clark County, Nevada, prior to the filing of plaintiff’s lawsuit, plaintiff attempted service on defendant pursuant to Georgia’s Long Arm Statute. OCGA § 9-10-90 et seq. That statute allows for service on a nonresident in the same manner provided for in this state by any person authorized to make service under the law of the foreign jurisdiction in which service is to be made. See OCGA § 9-10-94. Accordingly, plaintiff sought to have a Clark County Deputy Sheriff serve defendant at her residence by either personal service upon defendant or notorious service, which, under the facts and law relevant to this case, would require leaving a copy of the summons and complaint at defendant’s “dwelling house or usual place of abode with some person of suitable age and discretion then residing therein” (Emphasis supplied.) OCGA § 9-11-4 (d) (7); see Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989) (notorious service is not sufficient when process is left with a person who does not actually reside at the dwelling house or abode of the defendant at the time of service).

On July 3, 1995, Clark County Deputy Sheriff Berni went to defendant’s residence, but defendant was not at home. Defendant’s 17-year-old sister, Brandy Busbee, was at the residence however, and the deputy left a copy of the summons and complaint with her to give to defendant, which Busbee did. The return of service Berni submitted stated that the abovementioned documents had been left with Busbee and, in preprinted form, that Busbee was “domiciled at the residence of defendant.”

On December 14, 1995, defendant filed an answer in which she raised the defenses of insufficiency of service of process and lack of jurisdiction, and the record shows that she has never waived or acknowledged service in this case. Approximately eight months after filing her answer, defendant moved to dismiss the suit against her on the ground that she had not been properly served with process within the two-year statute of limitation for personal injury claims set forth in OCGA § 9-3-33 in that the only attempted service on her to date was the notorious service on Busbee which defendant claimed was insufficient because, contrary to the preprinted statement in the return of service, Busbee did not reside with defendant at the time of such service. Plaintiff and her husband appeal from the trial court’s grant of defendant’s motion to dismiss. Finding no error, we affirm.

“When a defendant in a lawsuit challenges the sufficiency of service, [the defendant] bears the burden of showing improper service. The return [of service] can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995).” (Citation and punctuation omitted.) Cushman v. Raiford, 221 Ga. App. 785, 787 (472 SE2d 554) (1996). While a return of service imports verity and itself is prima facie evidence concerning the facts recited therein, it is not conclusive and may be traversed and set aside by proof that such facts are untrue. Id.; Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). Such proof may be presented, along with other evidence, in the form of “sworn statements made on personal knowledge.” Hudson v. Williams, 188 Ga. App. 726, 727 (374 SE2d 220) (1988). Sorrow v. Seloff, 177 Ga. App. 87 (1) (338 SE2d 482) (1985).

Here, defendant submitted her own affidavit in support of her motion to dismiss. In the affidavit, defendant unequivocally stated that Busbee did not reside at defendant’s abode at the time Berni attempted service of process or at any time prior thereto, and that on the date in question, Busbee was merely a visitor. Defendant’s affidavit was consistent with her sworn deposition testimony, which in addition to the above, asserted that at the time of the attempted service Busbee was still in high school and resided with her father, stepmother and several other siblings at a residence different from that of defendant.

Defendant further submitted the sworn deposition testimony of one of her brothers and Busbee in support of her motion. According to both defendant’s brother and Busbee, Busbee had never resided with defendant and, as contended by defendant, lived with her father and stepmother at all relevant times. Busbee also testified that on the date in question she told Berni that she did not live with defendant, and it is undisputed that Berni never asked Busbee for any identification in an effort to determine her residence. Additionally, defendant presented Busbee’s driver’s license for the period in question. The license corroborated defendant’s contention that Busbee lived at her father and stepmother’s residence on the date Berni attempted to serve defendant.

Based on the above, it was within the trial court’s sound discretion to conclude that defendant had presented evidence sufficient to overcome the presumption that the statement contained in the return of service concerning Busbee’s residence was true. Yelle, 216 Ga. App. at 47; Webb, 202 Ga. App. at 91. And, in light of the evidence submitted by defendant regarding Busbee’s residence at the time of service, we conclude that the trial court, as the factfinder in matters regarding the sufficiency of service, could have determined that defendant did not receive adequate service of process and that it lacked personal jurisdiction over defendant as a result. Id.; Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989); Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989). The fact that Berni stated in an affidavit submitted in opposition to defendant’s motion to dismiss that Busbee had told him she resided with defendant at the time he left copies of the summons and complaint with Busbee does not demand a different conclusion. This is so because the trial court, as factfinder, could have discounted Berni’s recollection of events as set forth in his affidavit based on the fact that over a year had passed between the service attempt and the date of Berni’s affidavit, and the fact that Berni’s affidavit is at odds with the return of service regarding the very date on which service was attempted.

Decided October 31, 1997.

Joseph N. Blau, for appellants.

Russell, Stell, Smith & McLockin, John E. Stell, Jr., for appellee.

Consequently, the trial court did not err in granting the motion to dismiss.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       The return of service signed by Berni states that notorious service was made on Bus-bee on July 3, 1995. Berni’s affidavit, however, states that service was perfected on June 29, 1995.


author: Blackburn, Judge.

text:
    A97A1899.
    OBI v. THE STATE.
    (493 SE2d 246)
   Blackburn, Judge.

* Kenneth Obi appeals his conviction, following the entry of a guilty plea, on four counts of using a fictitious name to obtain a driver’s license. Obi filed a pro se notice of appeal on April 28, 1997, and filed a motion for appointment of appellate counsel on May 28. On June 2, Obi filed a pro se appellate brief, but did not file enumera-firms of error or separately enumerate errors in his brief. Following the appointment of appellate counsel, counsel filed a supplemental brief asserting two enumerations of error. Obi’s motion for permission to file such supplemental brief with enumerations is hereby granted, and we shall consider the enumerations set forth therein.

1. Obi contends that the trial court failed to ascertain the factual basis for Obi’s guilty plea as required by Uniform Superior Court Rule 33.9. That rule provides that, “[notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such a plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.”

In her supplemental brief, Obi’s counsel states that “there is no indication anywhere in the record that the trial court was so satisfied at the time it accepted the plea. The only reference to a factual basis was made by the prosecutor when he said that ‘(T)he facts are somewhat convoluted as to how it was discovered that Mr. Obi had been using false or fictitious names to obtain [a] Georgia driver’s licensed]’ . . . That was all that was said about the facts surrounding the crime.” (Emphasis supplied.)

This statement does not even approach an accurate representation of the facts in the record. In fact, after the prosecutor made the above statement, he stated that “on the occasions listed in the bill of indictment Mr. Obi did attempt to get a Georgia driver’s license with regards to count one in the name of Jerome McDowell. With regards to count two again in the name of Jerome McDowell on the date listed. With regard to count three in the name of Steve Kelly Gibson on the date listed in the bill of indictment. And with regards to count four again in the name of Jerome McDowell on the date listed in the bill of indictment. And I do have in the file photocopies of separate driver’s license with Mr. Obi’s picture on these driver’s license in the name listed in each count of the bill of indictment.” The prosecutor later informed the court of the specific locations in Fulton County where the incidents had occurred. Obi’s trial counsel informed the court that “Mr. Obi was a taxicab driver and his license had been suspended and, of course, being a taxicab driver that was his only way of making a living and that was the reason behind getting the license under these different names.” Obi then admitted to the court that he was pleading guilty because he had committed the crime.

Moreover, after Obi expressed concerns about double jeopardy because of a prior conviction, the court questioned Obi and the attorneys regarding such conviction. Obi’s attorney informed the court that Obi had previously been convicted in a different county on a different charge of providing a false name. The attorney stated that this related to a different incident from those involved in the present case, and that he had explained to Obi that they were different offenses. The judge stated that he was satisfied that they were separate offenses and that there were no double jeopardy concerns.

2. Obi also contends that he received ineffective assistance of counsel because his trial counsel erroneously advised him as to the consequences of his plea.

“A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However, ... [a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.” (Punctuation omitted.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996); see also Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997).

In Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996), the Supreme Court held that where a defendant appeals a guilty plea on the grounds of ineffective assistance of counsel, “[t]he issues which he seeks to ra^se on appeal can be developed only in the context of a post-plea hearing.” Id. at 422. Accordingly, the defendant may not file a direct appeal where the only evidence in the record is the transcript of the guilty plea hearing. Rather, the defendant’s proper remedy is to file a motion to withdraw his guilty plea and appeal the denial of that motion. Id.

In this case, as in Caine, Obi contests the effectiveness of his trial counsel and the voluntariness of his plea. However, he has not filed a motion to withdraw his guilty plea raising this issue, and the only evidence in the record is the transcript of his guilty plea hearing. Accordingly, under the Supreme Court’s decision in Caine, Obi cannot raise this issue in this direct appeal of his conviction. See Broadwell v. State, 224 Ga. App. 193, 194 (3) (480 SE2d 215) (1997). We note that “the trial court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered,” id., and that “[Obi’s] only available remedy is habeas corpus.” Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995); see also Grantham, supra at 636. We thus deny Obi’s motion to remand this case to the trial court for an eviden-tiary hearing.

Were this issue properly before us on the basis of the existing record, it is clear that the record does not support Obi’s claim of ineffective assistance of counsel. “In challenging the effectiveness of plea counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty but would have insisted on going to trial.” Cummings v. State, 225 Ga. App. 239, 240 (483 SE2d 605) (1997). The transcript of the guilty plea hearing clearly reflects that Obi was advised in open court of his rights and the consequences of his plea. The prosecutor advised Obi, in the presence of his attorney and the judge, of the presumption of innocence and the right to a jury trial, and that Obi waived these rights by pleading guilty. Obi acknowledged that he had discussed his case with his trial attorney, that he was satisfied with the attorney’s representation, and that he did not need any more time to talk with the attorney about the case. He acknowledged that he understood the judge could impose a sentence of one to five years in jail on each count, up to a total of twenty years, and that the judge was not bound by the State’s recommended sentence. He acknowledged that he was entering the plea freely and voluntarily, and that no one had made any promises other than the recommended sentence, which was in fact imposed by the judge.

Decided October 31, 1997.

Elaine T. McGruder, for appellant.

Kenneth Obi, pro se.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Thus, regardless of his attorney’s failures, if any, Obi was advised in open court of the rights he was waiving by pleading guilty, and he acknowledged his understanding of such rights and the consequences of his plea. Accordingly, the evidence of record does not show that there is a substantial probability that Obi would have insisted on going to trial but for his attorney’s alleged failures. See Cummings, supra at 240-241.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A1326.
    THE STATE v. COOPER.
    (493 SE2d 1)
   Birdsong, Presiding Judge.

This is a prosecution against Daniel Trent Cooper for driving under the influence of alcohol and drugs, possession of marijuana and failure to maintain lane. The trial court suppressed the results of urinalysis testing showing Cooper’s urine was 0.04 percent grams blood/alcohol, and contained cocaine and metabolites of cocaine. Cooper moved to suppress the urine test results on grounds that the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation (GBI) has not established rules relating to urine testing in compliance with the Administrative Procedure Act, OCGA § 50-13-3. The trial court granted defendant’s motion to suppress. Held:

Defendant Cooper argues that under OCGA § 40-6-392, blood tests are inadmissible if the testing method has not been approved by the GBI/DFS, and that in implementing OCGA § 40-6-392 (a) (1) the GBI/DFS is required to enact and publish rules of approved testing methods. State v. Holton, 173 Ga. App. 241 (326 SE2d 235). Cooper contends that Rules of Georgia Bureau of Investigation (“Techniques and Methods”) Rules & Regulations of the State of Georgia, Section 92-3-96, actually excludes urinalysis as an approved method, by providing that if the result of a screening test is positive for alcohol, “either a blood or breath test to determine alcohol concentration is mandatory, except in those cases where a blood test is forbidden by law.”

The State concedes that the publication of the GBI/DFS Rules and Regulations does not contain any rules approving or regulating drug or alcohol testing of urine samples. However, the State contends that the mere fact that an approval of urinalysis testing does not appear in the GBI/DFS rules does not mean there are no published rules regulating the testing of urine samples for alcohol and drug content.

The Administrative Procedure Act at OCGA § 50-13-2 (6) defines “rule” as “each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.” (Emphasis supplied.) According to this language, any published “standard,” or “statement of general applicability,” “policy,” “procedure,” or “practice requirements” by the GBI/DFS which approves urine testing will suffice as a rule published by the GBI/ DFS.

The State’s expert witness testified that the DFS Standard Operating Procedures include urinalysis testing, and that urinalysis methods as used in this case are approved by the DFS, that they have been the same since the early 1970’s, that they are published in the DFS Standard Operating Procedures manual and are available for public inspection. Defendant Cooper does not dispute the existence of written Standard Operating Procedures which approve urine testing, but he says they are not “published.” However, appellant does not contend the bureau’s SOPs for urinalysis are not available for public inspection in a printed form, which is a form of publishing. The evidence shows compliance with OCGA § 50-13-3 (b), which requires “rules” (which include “standards,” “policies,” “procedures” and “practices”; OCGA § 50-13-2 (6)) to be published and available for public inspection.

The language in Section 92-3-96 of the Rules of the Georgia Bureau of Investigation (“Techniques and Methods”) Rules & Regulations of the State of Georgia, that “either a blood or breath test to determine alcohol concentration is mandatory,” requires a type of test which is not in issue. The fact that this Rule does not mention urine testing does not exclude urine testing as an approved method of testing, and it does not mean the GBI/DFS may not elsewhere approve urine testing, as the expert testified has been done.

Decided September 16, 1997

Reconsideration denied November 3, 1997

Gerald N. Blaney, Jr., Solicitor, Rosanna M. Szabo, Assistant Solicitor, for appellant.

Steven M. Reilly, for appellee.

Clark & Towne, David E. Clark, amicus curiae.

The GBI is strongly advised to include all approved methods of testing and operating procedures in a clear publication and to specifically comply with the requirements of § 40-6-392 and the Administrative Procedure Act (State v. Holton, supra), to avoid forcing the State to litigate continuously the validity of the GBI/DFS test methods under the Administrative Procedure Act. See, e.g., Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) and Corner v. State, 223 Ga. App. 353 (477 SE2d 593).

Judgment reversed.

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


author: Beasley, Judge.

text:
    A97A1490.
    POWELL et al. v. NORMAN ELECTRIC GALAXY, INC. et al.
    (493 SE2d 205)
   Beasley, Judge.

This appeal arises from a suit between neighboring landowners over the issue of whether a billboard lease is a renewal, extension, or novation. The Powells seek removal of the billboard, trespass damages, and damage to their asphalt parking lot caused by Pabian Outdoor Advertising’s equipment when replacing the billboard.

Although plaintiffs seek injunctive relief, this Court has jurisdiction, according to the Supreme Court’s construction of Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (2). Saxton v. Coastal Dialysis &c., 267 Ga. 177 (476 SE2d 587) (1996). Compare Crystal Blue Granite Quarries v. McLanahan, 261 Ga. 267 (404 SE2d 266) (1991), which also involved judicial construction of a business lease and a prayer for equitable relief but preceded Saxton as well as Saxton’s predecessors Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993), and Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991). On the understanding that this Court has jurisdiction of this case, we move to the issues.

1. The billboard, leased by defendant Norman Electric Galaxy, Inc. to defendant Pabian Outdoor Advertising, Inc., perches atop a pole on Norman’s property and overhangs property owned by plaintiffs John and Eva Powell. Thus it occupies a portion of their airspace. See OCGA § 44-1-2 (b). Although the Powells acknowledge that Norman and Pabian originally had a leasehold right to maintain the overhanging billboard based on a ground lease to which the Powell deed was subject, they claim that right terminated when Norman and Pabian executed a new lease with new terms. The owner of the soil beneath an overhanging structure may be entitled to ejectment or an action for trespass. Thrasher v. City of Atlanta, 178 Ga. 514, 529 (173 SE 817) (1934).

On cross-motions for summary judgment, the trial court ruled in favor of Norman and Pabian and dismissed the complaint. Because the new lease contains different terms, it is a novation, the right to occupy the airspace above Powells’ property expired, and the Powells are entitled to summary judgment as to the liability of Pabian.

The relationship of the parties as it relates to this airspace is as follows. Before the Powells and Norman owned their adjoining properties, Mark Investment Company owned both properties as one tract. In 1988, Mark conveyed a ground lease to Pabian for a billboard. This original lease between Mark and Pabian provided that, for an annual rental of $4,200, Pabian could “construct ], operat[e], and maintain[ ]” the billboard for a five-year term from “Jan. 1987” to “Jan. 1992.” It gave Pabian a right of “ingress and egress over [Mark’s] premises” for the purpose of maintaining, removing, or replacing the advertising display. According to its terms, unless Pabian or Mark gave 90 days’ written notice at the end of the five-year term, the lease automatically extended for another five-year term. If neither party gave notice at the end of this second period, the lease would repeatedly extend for one-year terms until a party gave the required 90 days’ notice.

The lease and the parties speak of “renewal,” but extension is actually what was provided for. “A stipulation intended merely to lengthen the time upon terms and conditions stated in the lease is an extension.” Crystal Blue, supra at 267 (1) (lease provided for extension, not renewal). An extension does not contemplate a new agreement.

In May 1990, Mark sold to Norman that portion of the property on which the pole and part of the sign were located and assigned to Norman “all the rights and privileges” of the Pabian lease. In April 1991, Mark sold the rest of its property to the Powells. The Powells concede that their deed, although silent as to the lease and the encroachment, is subject to the lease because a recorded plat referred to in their deed showed the billboard overhanging their property.

The five-year term of the original ground lease expired in January 1992. Although there is no evidence in the record that Pabian or Norman gave notice to prevent an automatic five-year renewal, they executed a new lease on January 17,1992. The printed form is identical to the original lease and is for a term of five years beginning January 1, 1992. But this lease provided for an annual rental of $5,400 in quarterly installments of $1,350 instead of a single annual payment of $4,200 due at the beginning of the year. This lease, like the original one, also provided for one five-year automatic extension and yearly extensions after that, absent a party’s 90 days’ notice. Under the original lease, the automatic renewals would have become year-to-year in 2002, not 2007 as set up in the new lease.

In late 1991 or early 1992, Pabian began planning to remove the billboard and to replace it with a smaller sign. Pabian and Norman claim Mr. Powell granted Pabian permission to use his parking lot for this purpose but unreasonably revoked his permission in March 1992, as Pabian was beginning to erect the smaller sign. Powell claims he revoked his permission because Pabian reneged on its promise to pay him for the use of the parking lot. The Powells also claim Pabian’s equipment caused $600 damage to their asphalt.

Pursuant to the original ground lease assignment, Norman received only the rights Mark retained in the lease to Pabian. If the original lease expired or terminated, so did Norman’s right to lease the airspace over the Powells’ property. Norman and Pabian claim that because the January 1992 lease document merely represents a “renewal” as provided by the original lease to which the Powells’ property rights are subject, Norman’s right to lease the airspace to Pabian did not expire but continued.

The January 1992 lease represented a novation extinguishing the original lease. “An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject matter embraced by the original contract. Hennessy v. Woodruff, 210 Ga. 742, 744 (82 SE2d 859) (1954).” Chewning v. Huebner, 142 Ga. App. 112, 113 (235 SE2d 573) (1977). See also Knight v. First Fed. &c., 151 Ga. App. 447, 454 (3) (260 SE2d 511) (1979) (new promissory note, with amount owed, interest rate, and date of maturity different from original note, constituted novation rather than renewal of original note). Although Norman and Pabian contend they merely intended this lease to represent a continuation or renewal of the original agreement, material terms differ. And “ ‘where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intent of the parties.’ ” Rohm & Haas Co. v. Gainesville Paint &c. Co., 225 Ga. App. 441, 443-444 (2) (b) (483 SE2d 888) (1997). The very fact that a new lease was executed shows that a substitution ending the old lease was intended, for if the parties had intended the first lease to continue, no action on their part was necessary. Automatic extension (not “renewal”) was expressly provided for.

Decided October 15, 1997

Reconsiderations denied November 3, 1997

William R. McCracken, for appellants.

The documents show the “four essential requisites of a novation: (1) a previous valid obligation, (2) the agreement of the parties to a new contract, (3) a mutual intention by the parties to substitute the new contract for the old one, and (4) the validity of the new contract.” Ga. Income Property Corp. v. Murphy, 182 Ga. App. 101, 103 (1) (354 SE2d 859) (1987).

Thus, paradoxically, by agreeing to the new lease Norman and Pabian extinguished the old and thereby extinguished the correlative rights to lease and to occupy the airspace above the Powells’ property. To the extent the lease purports to grant Pabian the right to occupy any area over the Powells’ property, the lease might be subject to the defense of partial failure of consideration; however, it remains a valid contract. See Speir v. Nicholson, 202 Ga. App. 405, 408 (2) (414 SE2d 533) (1992) (partial failure of consideration creates a claim for breach of contract).

The Powells were entitled to summary judgment on the issue of trespass in that Pabian acquired no right to the airspace under the new lease and Norman had no such right to convey.

2. Genuine issues of material fact exist as to damages, including the Powells’ claim that Pabian injured the asphalt in its parking lot. In their motions for summary judgment, neither defendant made any mention of this claim and presented no evidence piercing an essential element. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The trial court erred by granting summary judgment to defendants on an issue not raised by their motions. See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). Plaintiffs’ motion, which sought judgment only as to liability and not on the issue of damages, properly leaves the latter for jury resolution.

Judgment reversed with direction.

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

Jolles & Slaby, Isaac S. Jolles, Lambert & Roffman, Allan R. Roffman, Marvin J. Reitman, Jr., for appellees.

       The exact address of this property is unclear from the record.


author: Smith, Judge. Beasley, Judge,

text:
    A97A1621.
    DURR v. THE STATE.
    (493 SE2d 210)
   Smith, Judge.

Darrell Durr was charged with rape and aggravated sodomy. A jury found him guilty of rape and not guilty of aggravated sodomy. His motion for new trial was denied.

Durr admitted having sexual relations with the victim, but maintained that the sex was consensual. His partner, however, was a developmentally disabled woman who, although twenty-one years old chronologically, had a mental age of between five and six. A psychologist testified that the victim’s I.Q. was 36, placing her in the moderately mentally handicapped category.

1. Durr contends the trial court erred in charging the jury that the element of force necessary to support a rape conviction was automatically supplied by law. Durr’s enumeration mischaracterizes the actual charge.

The court charged the jury that “in cases of incapacity to consent the element of force is automatically supplied by law.” (Emphasis supplied.) And this portion of the charge was preceded by other careful instruction: the three elements necessary to a rape conviction, i.e., carnal knowledge of a female, forcibly, and against her will; and detailed instruction, taken from Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), regarding the effect on these elements of a victim’s incompetence to consent. In Drake, the Supreme Court noted that “[i]t is true that sometimes mere lack of consent imputes force, but this is true only where children are not involved. . .. Tn the ordinary case the force to which reference is made is not the force inherent in the act of penetration but is the force used to overcome the resistance of the female. When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.’ ” Id. at 234-235 (1).

Here, the trial court charged the jury that “when the alleged victim is physically or mentally incompetent to knowingly and intelligently give consent to the sexual act, then the requirement of force is found in what is called constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant, if any.”

The trial court also charged the jury that the State’s burden could not be discharged by a mere showing that the alleged victim suffered from a mental disability; the State had the burden of proving beyond a reasonable doubt that the victim’s disability rendered her incapable of knowing and intelligent consent to the alleged sexual act, and whether or not the State had discharged this burden was for the jury to decide. This charge was an accurate statement of the law, and it did not mislead the jury. See generally Ely v. State, 192 Ga. App. 203, 206 (5) (384 SE2d 268) (1989).

2. Durr also asserts that the evidence was insufficient to support his conviction of rape because the evidence showed no forcible act and also showed that the victim was able to consent and did so.

Durr is correct that the evidence presented at trial did not prove that the rape was committed with actual force. And the element of force must be proved when a defendant is charged with forcible rape upon a minor victim. We note that although the special concurrence insists that cases decided by our Supreme Court subsequent to Drake have essentially overruled Drake sub silentio in this regard, none of the cases cited in the special concurrence is a case in which the defendant was charged with forcible rape. Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987), involved aggravated sodomy; Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987), involved sodomy and incest; and Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997), involved malice murder, to which the defendant interposed a defense of justification because he acted to prevent the molestation of his five-year-old child. See also Luke v. State, 222 Ga. App. 203 (474 SE2d 49) (1996). But Drake holds that a defendant may be convicted of forcible rape even absent a showing of actual force when the crime is committed against an adult female incapable of giving knowing and intelligent consent to the act. Id. at 234. The principle in Drake is applicable only when the charge is forcible rape of a minor; it is applied to preserve the distinction between forcible rape and statutory rape. Otherwise, the statute making the latter a crime is meaningless. When the victim is not a child but a mentally incapacitated adult incapable of giving valid consent to a sexual act, the principle mandating that force be proved is simply not applicable. The jury in this case was properly instructed that the issue of whether the victim was capable of knowingly and intelligently consenting to sexual intercourse was for the jury to decide. Whitaker v. State, 199 Ga. 344, 349-350 (1) (34 SE2d 499) (1945).

The jury asked to be recharged on this issue, and a detailed recharge was given, after which the jury indicated that its question had been answered. The verdict shows that the jury believed the victim was incapable of giving knowing and intelligent consent, and the evidence presented supports that conclusion.

The victim testified she did not want Durr to have sex with her and that she tried to scream but was afraid to do so. She testified she could not read and could write only minimally. Two police officers testified that it was readily apparent that the victim was retarded, and the State and Durr stipulated to her retardation. The State’s expert witness, a school psychologist certified by the State, testified she had evaluated the victim twice and that the victim’s mental age and capacity were equivalent to that of a child between the ages of five and six. The victim therefore had the intellectual capacity and understanding of a five- to six-year-old child, characterized by a short memory, the need for short answers, and an inability to relate cause and effect.

Given this evidence, the jury was authorized to conclude that the victim was unable to give proper consent to sexual intercourse. It follows that notwithstanding the lack of evidence of force, the evidence was sufficient to authorize the jury to convict Durr of rape under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Drake, supra; Whitaker, supra.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur specially because of the statement in Division 2 that “the element of force must be proved when a defendant is charged with forcible rape upon a minor victim.” Drake v. State, 239 Ga. 232, 233-235 (1) (236 SE2d 748) (1977), involving a nine-year-old girl, does say that. But a decade later, the Supreme Court said in Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) (1987), that “[a] five-year-old child cannot consent to any sexual act. [Cit.] Sexual acts directed to such a child are, in law, forcible and against the will. [Cit.]” Cooper was convicted of aggravated sodomy, which requires proof that the act was done “with force and against the will” of the victim. OCGA § 16-6-2.

For the first quoted proposition Cooper cited Drake and McFall v. State, 235 Ga. 105, 106 (218 SE2d 839) (1975), but Drake had said McFall was wrong because it affirmed a conviction of forcible rape on a jury charge that “ ‘the law supplies the essential element of force’ ” when the victim is under age 14. Drake, supra, 239 Ga. at 233. Drake separates “force” from “against the will” (or nonconsent) both as to meaning and as to the requirement of proof.

For the second quoted proposition Cooper cited Carter v. State, 122 Ga. App. 21 (176 SE2d 238) (1970). Carter’s conviction of aggravated sodomy on a seven-year-old girl was affirmed despite a challenge to the jury charge. The Court of Appeals stated that the act of sodomy on a child “could not be simple sodomy, but would always be aggravated sodomy . . . because the ‘with force and against the will’ element of the crime is automatically supplied by the commission of the crime on a person, such as a young child of 7 years of age, who has neither the physical nor the mental capacity to give consent as a matter of law.” 122 Ga. App. at 22. But Drake, decided later, separated the two concepts (“force” and “against the will”) instead of considering them as one element in minor cases.

Decided October 23, 1997

Reconsideration denied November 3, 1997

L. Clark Landrum, for appellant.

A few months after Cooper the Supreme Court repeated that “[sjexual acts directed to children are, in law, forcible and against the will,” citing Cooper. Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342) (1987). Richardson went on to say: “The pattern of sexual exploitation presented in this case was also, as a matter of law, forcible and against the will, because of the step-daughter’s age at onset, and because of her familial relationship.” (Emphasis supplied.) Id. at 747 (2). Defendant’s conviction of incest and sodomy against his daughter during the time she was 12 to 17 was affirmed. Once again the concepts of “force” and “against the will” were fused in a minor’s case. Richardson was quoted as controlling in Huggins v. State, 192 Ga. App. 820 (1) (386 SE2d 703) (1989), a conviction of aggravated sodomy on an eight-year-old boy, and in Luke v. State, 222 Ga. App. 203, 205 (1) (a) (474 SE2d 49) (1996).

That is still the law. This year, Brown v. State, 268 Ga. 154 (486 SE2d 178) (1997), held that child molestation constitutes a forcible felony for the purpose of establishing the defense of justification. Both Richardson and Cooper, as well as the Court of Appeals cases of Huggins and Luke, are cited for the statement that “[c]hild molestation is, by its very nature, a crime involving a forcible and violent act.” Id. at 155. The Court explained: “Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts ‘are, in law, forcible and against the will’ of a child. Cooper v. State, supra; Luke v. State, supra.” Id. The victim in Brown was five. Luke, supra at 206, ruled that the age of consent was 14 at the time and noted it is 16 currently.

Durr’s victim was not a minor, so the issue of the meaning of the element of force need not be resolved under the rubrics which would apply had she been a child by age.

C. Paul Bowden, District Attorney, Holli G. Martin, Assistant District Attorney, for appellee. •

       Although a police officer who responded to the rape call testified that the victim initially told him Durr had “drug” her into the bedroom, he testified that she later recanted this allegation and admitted she went with Durr voluntarily.


text:
    A97A1720.
    THOMAS v. AMERICAN GLOBAL INSURANCE COMPANY.
    (493 SE2d 12)
   Birdsong, Presiding Judge.

Appellant/plaintiff Reginald B. Thomas appeals the order of the superior court granting appellee/defendant American Global Insurance Company’s motion for summary judgment.

This suit arises out of injuries sustained in an automobile collision. Dwayne Thomas was visiting his mother, Jo Helen Wesley, while he was on leave from the United States Marine Corps. While at home he drove his mother’s Mitsubishi automobile and was involved in an automobile collision with a car driven by appellant. Dwayne Thomas had not obtained his mother’s permission to drive the Mitsubishi.

Appellee Global had issued a policy of insurance to Wesley providing liability coverage for her Mitsubishi vehicle. When notified of the accident, appellee took the position that no coverage existed for Dwayne Thomas because of the terms of a named driver exclusion signed by the insured, Wesley, and refused to defend the subsequent negligence action brought by appellant against Dwayne Thomas.

Appellant obtained a default judgment against Dwayne Thomas in the amount of $1,500,000. Apparently, Thomas then assigned his claims against appellee Global to appellant, who brought this direct action against appellee. A claim for “a tort cause of action for compensatory damages for loss of property resulting from an insurer’s bad faith” may be assigned. See, e.g., Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 196 (7) (489 SE2d 53). The trial court granted appellee Global’s motion for summary judgment, and appellant appeals enumerating two errors. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). But, rules of contract construction and interpretation are separate from those rules allocating burdens of proof at trial and on motion for summary judgment. Richard Haney Ford v. Ford &c. Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282).

2. Appellant contends that the trial court erred by granting summary judgment because the named driver exclusion was ambiguous on its face and lacked the essential contractual elements of a specific subject matter and mutuality thereby rendering the endorsement invalid and unenforceable.

(a) The named driver exclusion is not ambiguous on its face as to the essential element of subject matter, that is, there exists no ambiguity as to which insurance policy the exclusion applies.

The entire insurance contract and the pertinent application forms should be examined in arriving at the construction of the named driver exclusion. See OCGA § 13-2-2 (4); McGee v. Southern Gen. Ins. Co., 194 Ga. App. 783 (391 SE2d 669) (declaration page must be construed with remainder of the insurance contract). Moreover, “ ‘^Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ ” Sapp v. State Farm Fire &c. Co., 226 Ga. App. 200, 201 (a) (486 SE2d 71).

The application for automobile insurance for Wesley’s Mitsubishi automobile lists only Wesley as a vehicle operator; both Dwayne Thomas and his sister are listed as other residents of the household. The second page of the application, in the section pertaining to underwriting information, answers in the affirmative the question, “Is there anyone in the household you wish to exclude?” The application further contains the handwritten notation, “See exclusion agree[ment],” at the end of this question. The application is signed by Wesley. Although not identifying the policy number to which the named driver exclusion applies, the exclusion agreement unequivocally excludes both Teresa Thomas and Dwayne Thomas from coverage, which is consistent with the intent of Wesley as clearly revealed in her application for insurance for her Mitsubishi. The exclusion also reflects that both Teresa and Dwayne are “Insured under AIG 7539035,” the policy pertaining to Wesley’s Toyota automobile. This driver exclusion bears the form designation “DR 8906 (6/89)” in the top right-hand corner of the document. The declaration page of the Mitsubishi policy and the renewal notices issued to Wesley list among the applicable forms of the policy, DR8906, although the date of this form is not listed on the declaration page or on any of the renewal notices. Considering all pertinent insurance documents in their totality, we are satisfied that no ambiguity exists as to subject matter and that the named driver exclusion applies to Policy No. AIG 7545021, the insurance contract pertaining to Wesley’s Mitsubishi. Where, as here, the terms of a written insurance contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent. Park ’N Go &c. v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500). Additionally, assuming arguendo, that ambiguity had existed, applying the applicable rules of contract interpretation and construction, OCGA §§ 13-2-2 and 13-2-3, and considering the parol evidence contained in the deposition testimony of Wesley and the affidavit and deposition testimony of the Director of Underwriting & Operations for appellee insurance company, any ambiguity would be resolved and it would become clear and unequivocal that the named driver exclusion applied to the insurance contract pertaining to Wesley’s Mitsubishi automobile. Moreover, the record establishes that a cancellation notice was issued regarding insurance policy AIG7539035-01, pertaining to Wesley’s Toyota, with cancellation to become effective on September 16, 1990; yet, the renewal notice pertaining to Wesley’s insurance, issued December 4, 1990 on her Mitsubishi automobile still listed among the forms applicable thereto the DR8906. This particular extrinsic evidence would serve to explain that the DR8906, named driver exclusion, did not pertain to the insurance policy issued on the Toyota but rather pertained to the insurance policy issued on the Mitsubishi. While contract construction generally is the exclusive duty of the court, without resort to extrinsic evidence, after the application of pertinent rules of contract construction to the contract, extrinsic evidence becomes admissible to explain any remaining ambiguity. Holcomb v. Word, 239 Ga. 847, 848 (238 SE2d 915). Moreover, parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself. Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523).

(b) The named driver exclusion is not ambiguous on its face as to the essential element of mutuality. Having concluded that the named driver exclusion is not ambiguous as to subject matter or even if ambiguous initially that such ambiguity is resolved by applying the statutory rules of contract construction and interpretation, we find it clear from examining the insurance contract in its totality that the parties mutually assented to the inclusion of the named driver exclusion, pertaining to Teresa and Dwayne Thomas, as a part of the contract of insurance issued to Wesley as to her Mitsubishi automobile. There remaining no ambiguity and the policy being clear as to its terms, we look only as to these terms in ascertaining the intent of the parties. Park ’N Go &c., supra; the mutual intent of both the insurer and the insured, Wesley, was that the policy of insurance on the Mitsubishi would include a named driver exclusion, excluding both Teresa and Dwayne Thomas from coverage under that policy.

3. Appellant further contends that the trial court erred by granting summary judgment because the named driver exclusion was void as against public policy. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (policy provision excluding liability coverage where insured is attempting to avoid apprehension or arrest); but compare Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785 (476 SE2d 82); Atlanta Cas. Co. v. Cash, 209 Ga. App. 123 (1) (433 SE2d 311), citing Fountain v. Atlanta Cas. Co., 204 Ga. App. 165, 167 (3) (419 SE2d 67); compare Progressive Preferred Ins. Co. v. Browner, 209 Ga. App. 544 (433 SE2d 401); see discussion Jenkins & Miller, Ga. Auto. Ins. Law including Tort Law (1996 ed.), § 12-9 (named driver exclusion).

Decided October 14, 1997

Reconsideration denied November 3, 1997

Simpson, Gray & Cross, Ralph F. Simpson, Joseph I. Carter, for appellant.

This issue, as enumerated, is not preserved for appeal. Contrary to the claim in appellant’s brief that this issue has been adequately preserved, examination of appellant’s pertinent citations to the record reveals that this issue was not raised in proper form in the trial court before the motion for summary judgment was granted. Compare Venture Design, Ltd. v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (invalidity of indemnity agreement as contrary to public policy not properly raised before the trial court so issue not considered on appeal). In this case, the issue of public policy was not properly raised for judicial determination until appeal. After summary judgment is granted to a movant, a nonmov-ant may not raise an argument or defense not asserted in the trial court. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 766 (4) (431 SE2d 746). Moreover, as a general rule, a party must stand or fall upon the position taken in the trial court. See, e.g., Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877); there exists no compelling reason to depart from these general rules in this case.

Additionally, even assuming appellant had properly and timely raised the issue of public policy before the trial court, his second enumeration of error, as crafted, does not reasonably raise an issue whether the named driver exclusion was only partially unenforceable, that is, unenforceable only to the extent that it would not provide liability coverage in the amount required by the financial responsibility law of this State when there exists no other uninsured motorist coverage for the claims of the injured party against the excluded driver. See generally Cotton States, supra; Ga. Auto. Ins. Law, supra. Because this issue is beyond the reasonable scope of appellant’s enumeration of errors, it would not have been preserved for appeal even had it been timely raised before the trial court. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649), cases cited therein and progeny.

Judgment affirmed.

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

Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, for appellee.


text:
    A97A1079, A97A1164.
    In THE INTEREST OF B. C. P., a child (two cases).
    (493 SE2d 258)
   Beasley, Judge.

Tonia Pennyman appeals the juvenile court’s award finding her son to be deprived within the meaning of OCGA § 15-11-2 (8) and placing temporary custody in his paternal grandmother, appellee Dorothy Paige. Pennyman enumerates three errors: (1) the juvenile court lacked jurisdiction; (2) the juvenile court found deprivation without clear and convincing evidence; and (3) the juvenile court wrongly failed to provide Pennyman with counsel and the cost of the transcript on appeal. The appeal was taken both directly and by application under OCGA § 5-6-35 (a). We granted the application due to a perceived ambiguity in the procedure for appealing deprivation judgments. That appeal is now consolidated with the direct appeal, which has been ruled to be the proper procedure. See In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).

At the time of the hearing in October 1996, Pennyman was age 25 and her son B. C. P., born January 18,1994, was over two and one-half. B. C. P.’s father, Dorothy Paige’s son Benny, was then incarcerated. Pennyman, who was not married to Benny, lived in the Paige home for about one year before B. C. P.’s birth and afterward for about four months. While there, the Paiges never asked her for money and refused offers to help defray expenses. When the boy was four months old, he and Pennyman moved to Thomaston where she found employment which lasted until June or July 1995. She was employed part-time thereafter, although she had not worked for over one month prior to the deprivation hearing. When Pennyman worked, her mother or Mrs. Paige kept the boy. Mrs. Paige never objected to doing so. At some point, the Paiges volunteered to pay for day care in Griffin.

In July 1995, apparently about the same time day care began, Pennyman voluntarily signed documents by which the probate court of Lamar County granted temporary guardianship of B. C. P. to the Paiges. After that, the boy lived with the Paiges during the week and with his mother on most weekends. Virtually no evidence was presented that the child received anything other than good care when he was with Pennyman, the Paiges, Pennyman’s mother, or in day care.

In September 1996, a dispute arose about when and under what conditions Pennyman could see the boy or retrieve him from day care. On October 6, after the child spent a weekend with his mother, Pen-nyman told Mr. Paige she was ready to take care of the child herself. Mr. Paige asked for one more week under the current arrangement and took the child back. The next day, the Paiges’ lawyer wrote to Pennyman to complain that she failed to provide the Paiges notice when she got her son from day care. The letter does not question Pen-nyman’s care of the child but reminded Pennyman that the Paiges were B. C. P.’s guardians, and a copy of the guardianship order was enclosed. Pennyman did not receive the letter until Friday, October 11. The following Tuesday (October 15), after an unsuccessful attempt on Monday, Pennyman obtained revocation of the temporary guardianship granted to the Paiges and retrieved B. C. P. from day care by showing the revocation of guardianship order to the day care operator. About four hours later “investigators” arrived at Pen-nyman’s house and said they had court orders to take B. C. P.

Meanwhile, on October 10, Mrs. Paige filed the deprivation petition in Spalding County that led to this appeal. The juvenile court held an ex parte emergency hearing on that same day and ordered the child to be placed in the “exclusive custody of Dorothy C. Paige until further order of this Court.” It further ordered “that if necessary a deputy of the Spalding County Sheriff’s Department . . . shall assist the petitioner in taking the child in question into custody wherever [sic] depending upon the present location of the child pending the 72-hour hearing.” The 72-hour hearing was scheduled for October 15, and the order stated that Pennyman and Benny Paige “are hereby notified to attend the emergency hearing. . . .” It is undisputed that Pennyman received notice only after the hearing was held and after authorities picked up the child. When Pennyman did not appear on October 15, the hearing was rescheduled and held on October 18. Pennyman appeals the resulting judgment.

1. The first issue is jurisdictional. Pennyman contends the petition does not properly allege the child was then presently deprived because Mrs. Paige had temporary guardianship when she filed the petition on October 10, and therefore the juvenile court’s jurisdiction was not invoked under OCGA § 15-11-5 (a) (1) (C). She also contends the deprivation petition is in fact a custody dispute in disguise that falls outside juvenile court jurisdiction.

OCGA § 15-11-5 provides that a juvenile court shall have “exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action: (1) Concerning any child: . . . (C) WTho is alleged to be deprived. . . .” See In the Interest of J. P, supra, 267 Ga. 492. This jurisdiction extends to custody controversies involving a deprived child. In re J. R. T., 233 Ga. 204, 205 (210 SE2d 684) (1974). Of course, merely using the word “deprivation” in a petition does not invoke the juvenile court’s jurisdiction.

“[I]n a custody controversy in the nature of habeas corpus the juvenile court has concurrent jurisdiction to decide the issue only if the case is transferred to the juvenile court by proper order of the superior court. . . .” Id. at 205; OCGA § 15-11-5 (c). The words “in the nature of habeas corpus” have been used to describe situations where it is clear that a parent is simply attempting to obtain custody of a child rather than protect the child from alleged deprivation. Griggs v. Griggs, 233 Ga. 752 (213 SE2d 649) (1975). In Griggs, the children were already living with their father when he filed a petition in juvenile court alleging that returning the children to their mother, who had legal custody, would cause irreparable harm. The Supreme Court has not limited its analysis of whether a deprivation proceeding is in the nature of habeas corpus to disputes between parents. In J. R. T, a custody dispute between a father and the child’s maternal grandparents was found to be “in the nature of habeas corpus.” In re J. R. T., supra at 205-206.

Paige’s petition alleges “[tjhat said child is without proper parental care or control, subsistence, education as required by law, or other care and control necessary for his physical, mental or emotional health or needs.” At the time the petition was filed, according to the Lamar County guardianship order, it was Paige’s duty “to see that the ward is adequately fed, clothed, sheltered, educated, and cared for, and that the ward receives all necessary medical attention.” In addition, OCGA § 29-2-1 provides: “The power of a guardian over the person of his ward shall be the same as that of the parent over his child, the guardian standing in place of the parent. In like manner it shall be the duty of a guardian to protect and maintain and, according to the circumstances of the ward, to educate him.” As Paige had assumed the status and obligations of a parent by way of the guardianship, “she stands ‘in loco parentis.’ ” Clabough v. Rachwal, 176 Ga. App. 212, 214 (335 SE2d 648) (1985). Thus, Mrs. Paige herself had the legal duty, pursuant to the guardianship order and Georgia law, to provide for the child beginning July 12, 1995, and continuing through and including October 15, 1996, the day temporary guardianship ceased.

Her claim in Spalding County juvenile court that the child was deprived as of October 10, 1996, is a transparent attempt to use the juvenile court system to seek custody of the child. Custody disputes cloaked as deprivation actions are not within the exclusive original jurisdiction of the juvenile courts of Georgia. Lewis v. Winzenreid, 263 Ga. 459, 462 (435 SE2d 602) (1993) (juvenile court should not entertain a deprivation proceeding brought by one parent against another); In the Interest of M. A., 218 Ga. App. 433, 434 (461 SE2d 600) (1995) (“Only the superior court may make the determination that a deprivation proceeding between parents is not a custody dispute”); In the Interest of W. W. W., 213 Ga. App. 732, 733-734 (1) (445 SE2d 832) (1994) (where entire record shows that subject of controversy is a custody dispute, “the juvenile court has concurrent jurisdiction to hear and determine custody issues only when the case is transferred by the superior court” (emphasis omitted)).

If Mrs. Paige had legitimate concerns about the care B. C. P. was receiving while in Pennyman’s custody on weekends and other times, she could seek custody of the child pursuant to her powers as a guardian. Beavers v. Williams, 194 Ga. 875, 877-878 (23 SE2d 171) (1942). She could have attempted to enforce her rights by a habeas corpus proceeding or by a proper action in equity. Id. at 878. Because Paige’s claim is in the nature of a habeas corpus proceeding and it has not been transferred to juvenile court from superior court pursuant to OCGA § 15-11-5 (c), the juvenile court did not have jurisdiction of the subject matter. The case should have been dismissed sua sponte, as every court is obligated to assure its own jurisdiction as a threshold matter. OCGA § 9-11-12 (h) (3).

2. Because the juvenile court lacked jurisdiction over what amounted to an attempt to gain legal custody, appellant’s enumeration of error challenging the sufficiency of the evidence is moot.

3. Pennyman’s final enumeration is that the court erred by failing to comply with three statutory procedural requirements and by denying her request for appointment of counsel and cost of transcript on appeal.

The first omission complained of relates to the requirements of OCGA §§ 15-11-26 (b) and 15-11-23. We do not address the merits for two reasons. One is that an enumeration may relate only to one ruling, one subject, and not constitute a collection of several matters. “When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 ([cit.]) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991). Accord Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383) (1993). The other reason is that the issue was not raised in the trial court or ruled on by it, and thus there is nothing to review in this regard. “As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below. [Cit.]” Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 577 (1) (442 SE2d 860) (1994).

The second and third issues raised are sufficiently related to one another and were jointly raised and ruled on below, so we are not adverse to their combination in one enumeration.

Pennyman sought appointed counsel and the costs for the transcript on appeal after the court ordered temporary custody to the Paiges. She sought this as alternative relief in the event the court denied her motion “for reconsideration” of its order, although she did not present it in a separate motion. That would have been more appropriate, as this request was being made for the first time, so there was nothing about it for the court to “reconsider.”

Transcript costs are to be provided to an indigent parent appealing a deprivation action. Although the statutes are silent, the Supreme Court of Georgia has spoken. Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976), held that an indigent parent whose parental rights have been terminated is entitled to “a paupered copy of the transcript” for use in appealing the decision of the trial court. Id. Although the right in termination cases now stems from OCGA § 15-11-85 (b) and not OCGA § 15-11-30, the latter root still provides a firm base for government-provided transcripts in deprivation cases. The Supreme Court expressly referenced the predecessors to OCGA §§ 15-11-30 and 15-11-26 (e) as authority for the right to a paupered transcript. It applied the venerable principle of implication, “in est de jure.”

With respect to counsel, Pennyman asked the court specifically to appoint her present counsel, who served as counsel throughout the proceedings below and here. (She did not seek appointed counsel prior to the effort to appeal.) The court denied reconsideration of its previous order and also denied the costs of the transcript and the appointment of the named counsel, who the court acknowledged was provided by the Georgia Legal Services Program.

OCGA § 15-11-30 (b) states that “a party is entitled to representation by legal counsel at all stages of any proceedings alleging delinquency” and that if the person is indigent as defined in subsection (a), the court must provide counsel. See also OCGA § 15-11-26 (e) (to assure early understanding, the summons is to notify the party summoned of this right). “Proceedings” has been used by the legislature to refer to appeals as well as lower court happenings. See, e.g., OCGA § 5-6-39 (a) (3) (“proceedings on appeal”); OCGA § 9-12-89 (“proceeding in the appellate court”); OCGA § 17-17-12 (a) (3) (“appellate court proceedings”). “It is presumed that the legislature knows and enacts statutes with reference to the existing law, including the decisions of the courts, and when there is nothing in the enactment to indicate that the words used were to have a new and different meaning they should be construed as having the same meaning that was attached to them before the enactment.” Buckhead Doctors’ Bldg. v. Oxford Finance Co., 115 Ga. App. 52, 55 (153 SE2d 650) (1967). To be fully meaningful, the right to appointed counsel under OCGA § 15-11-30 for “all stages of any proceedings” includes the appellate process.

Pennyman filed an affidavit of indigence along with her motion and brief, and the affidavit was not traversed. In the absence of a specific instruction in OCGA § 15-11-30 setting out a procedure for determining indigence as defined in subsection (a), OCGA § 9-15-2 details the method which may be employed. See Morris v. Dept. of Transp., 209 Ga. App. 40 (432 SE2d 638) (1993). The court must use its discretion and make a finding regarding indigence. Livingston v. State, 221 Ga. App. 563, 569 (2) (472 SE2d 317) (1996); Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996).

There is no record or indication of inquiry or hearing on this matter, just a denial of the request, although in its order granting temporary custody the juvenile court found that Pennyman had not worked for over a month prior to the hearing in mid-October and had no income for herself. The court concluded that, based on these and other facts, she was not in a position to provide for the child. The affidavit of indigence with respect to the right to counsel and transcript costs was dated several weeks later, mid-November.

Mrs. Paige did not and does not contest Pennyman’s indigence but responds that she did in fact have counsel and obtained from some source the costs of the transcript, so she can show no injury by the denial of her requests. But that is no answer. The fact that a nongovernmental legal services organization volunteered to represent Pennyman does not absolve the State of its statutory obligation to provide indigent persons with counsel pursuant to OCGA § 15-11-30. That is demonstrated by In re M. A. F., 254 Ga. 748, 753 (334 SE2d 668) (1985).

The record in this case strongly suggests that Pennyman is an “indigent person,” as defined by OCGA § 15-11-30 (a), just as was true in In re M. A. F., supra. If so, she was entitled to court-appointed counsel on appeal, and a transcript, which is a fact for the trial court to determine. The problem now is that the appellate work has been done, and it is too late for the trial court to exercise its discretion to select counsel, which is normally its prerogative. Gibbs v. State, 168 Ga. App. 417, 419 (309 SE2d 412) (1983); Harris v. State, 138 Ga. App. 388, 390 (226 SE2d 462) (1976). In the case of In re M. A. F., appellant brought a separate appeal from the adverse indigency ruling, which was combined with the other appeals in the Supreme Court’s opinion on the merits of the appeal, but the Supreme Court did not answer the question we now face even though it was present there. The Nix case, on the other hand, first proceeded on the appeal of the denial of a paupered transcript; the mother filed a separate notice of appeal from the order adversely affecting her parental rights, which apparently was held in abeyance. So when it was held that Nix was entitled to a government-provided transcript, the case was reversed with direction for the readying of the main appeal, which could not have proceeded without the transcript. Here the appellant has combined her dissatisfaction with both orders in one appeal. The solution is for present counsel to be appointed, albeit after the fact to a large extent, if the trial court finds that Pennyman was indigent.

Decided November 3, 1997.

Dianne N. Paglialonga, Vicky O. Kimbrell, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Mullins & Whalen, Harold A. Sturdivant, for appellee.

The judgment of the juvenile court is reversed, and the case is remanded with direction that the court conduct a hearing on Pen-nyman’s indigency as of the time of the motion for reconsideration, and, if indigency is found, that an order be entered entitling Pen-nyman to the appointment of current counsel as appellate counsel plus the costs of the transcript at government expense.

Judgment reversed and case remanded.

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


text:
    A97A1107.
    PARSON v. THE STATE.
    (493 SE2d 256)
   Pope, Presiding Judge.

Defendant Floyd Parson was convicted by a jury of arson, burglary, and misdemeanor stalking. On appeal, he challenges the admission of evidence of other offenses he committed against the same victim (his former common-law wife) and her family. Concluding that (1) the evidence was properly admitted because the other offenses were logically connected to those charged in this case, and (2) the trial court’s charge adequately informed the jury of the limited purposes for which it could consider this evidence, we affirm.

In this case, defendant was charged in two counts with breaking into his ex-wife’s house, stealing her VCR, and setting her bed on fire. The third count involved a separate incident in which defendant threw a piece of metal through a window of his ex-wife’s home, after being ordered to stay away The evidence of other offenses showed that over the course of their relationship (more than ten years), defendant subjected the victim to numerous beatings and threats, including the threat to burn her house down. He broke into her mother’s house and stole checks and into her own house where he attacked their son. He frequently took her car without permission and at other times cut her tires, broke the windshield of her car, or threw things through the window of her home.

1. Defendant argues that the trial court erred in admitting evidence of his other offenses because the other offenses were not sufficiently similar to those charged in this case. But under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), there must be sufficient similarity or sufficient connection between the other offenses and the charged offenses “so that proof of the former tends to prove the latter.” After a USCR 31.3 (B) hearing, the trial court explicitly determined that although the other offenses were not similar to the charged offenses, they were all sufficiently connected to the charged offenses to be legally relevant because they were all part of an ongoing pattern of intimidating and harassing conduct toward the victim and her family. This determination was not clearly erroneous. Cf. Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992) (trial court’s determinations regarding admission of evidence of other offenses are reviewed under clearly erroneous standard). Nor did the trial court err in determining that the other offenses were offered to show defendant’s bent of mind, motive, intent, mode of operation, and course of conduct or in determining that there was sufficient evidence to show that defendant committed the other offenses. Accordingly, the evidence of other offenses was properly admitted. See also Hawkins v. State, 264 Ga. 484 (2) (448 SE2d 214) (1994) (prior threat to commit charged offense is legally relevant to show intent and continuing course of conduct).

2. Defendant also contends reversal is warranted because the trial court failed to properly instruct the jury on the purposes for which it could consider the evidence of other offenses. Specifically, he points out that the trial court instructed the jury that it could consider the evidence of other offenses in relation to identity as well as to defendant’s state of mind. We note that defendant did not submit a written request to charge the jury on the purposes for which it could consider evidence of the other offenses, even though the court’s decision to admit the evidence of those offenses was issued well before trial; nor did he point out to the court at trial that it had added identity to the purposes for which the evidence could be considered, even though the court could have easily corrected its error at that time.

In Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997), we recently held that even in the absence of a request to charge, the trial court must always adequately instruct the jury on the limited purposes for which evidence of similar incidents or transactions may be considered. We reversed in Belt due to the court’s failure to give a limiting instruction on the similar transaction evidence. But in Belt, the court failed to give any limiting instruction at all, leaving the jury free to consider the evidence for any purpose it chose. Here, the court did instruct the jury on the purposes for which they could consider the evidence of similar incidents, but in doing so mistakenly included a purpose which was not even at issue in the case. Under these circumstances (i.e., the inaccuracy in the instruction was minor and the defendant failed to submit a written request to charge), we conclude the court’s instruction adequately informed the jury about the limits on its consideration of evidence of similar incidents.

Decided November 3, 1997

Ronald R. Parker, for appellant.

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

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


text:
    A97A1859.
    STEWART et al. v. TURNER.
    (493 SE2d 251)
   Blackburn, Judge.

Norma June Stewart and Shannon M. Stewart (collectively defendants) appeal the entry of default judgment against them, contending that the court erred in denying their motion to open default and in ruling on the motion without a hearing. They also contend that the court erred in entering default judgment against the minor Shannon Stewart without appointing a guardian ad litem.

On October 2,1996, Robert S. Turner, as personal representative of the estate of Mae Turner Aderholt, filed a complaint against Norma June Stewart and her minor daughter, Shannon Stewart. The complaint alleged that Norma June Stewart fraudulently obtained a power of attorney from Aderholt, transferred certain of Aderholt’s real property to Shannon Stewart, and transferred certain personal property to herself. The complaint sought the rescission of such transfers as well as actual and punitive damages against both defendants. On October 4, 1996, Norma June Stewart, individually and as Shannon’s mother and guardian, signed an acknowledgment of service. Shannon also signed the acknowledgment of service.

Although defendants’ attorney appeared at depositions after the complaint was filed, defendants did not file an answer to the complaint. On January 30, 1997, the trial court signed a default judgment setting aside the various conveyances but reserving the issue of damages for a later hearing. Howéver, this judgment was not entered by the clerk until February 3, 1997. On January 31, 1997, after the default judgment was signed but before it was entered, defendants filed a motion to open default. On February 4, 1997, after the default judgment was entered, defendants filed a motion to strike and stay the judgment. On March 10, 1997, the trial court entered an order denying the motion to open default and providing that the default judgment entered on February 3, 1997, remained in full effect.

1. Defendants contend the trial court erred in ruling on their motion to open default without holding a hearing.

Uniform Superior Court Rule 6.3 provides that “[u]nless otherwise ordered by the court, all motions in civil actions . . . shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” The rule also requires oral argument on motions for summary judgment upon proper written request. An earlier version of Rule 6.3 also provided that “[o]ral argument on any motion shall be permitted upon written request.” However, this provision was deleted by amendment effective May 7, 1987. Accordingly, unless a hearing is specifically required by Rule 6.3, a trial court’s failure to conduct a hearing will not constitute reversible error absent abuse of discretion. See Datz v. Brinson, 208 Ga. App. 455, 456 (4) (430 SE2d 823) (1993).

We note that defendants did not request a hearing when they filed their motion to open default. In their motion to strike and stay the default judgment, they requested a hearing on the motion to open default, although they did not file a separate pleading requesting such hearing. Compare USCR 6.3 (request for oral argument on summary judgment motion must be “made in a separate pleading . . . entitled ‘Request for Oral Hearing’ ”). Nevertheless, even if defendants’ pleading constitutes a request for an oral hearing, the court was not required to grant such request, as this case does not involve a motion for summary judgment, for a new trial, or for judgment n.o.v. See Johnson v. Lomas Mtg. USA, 201 Ga. App. 562, 564 (2) (411 SE2d 731) (1991) (“Rule 6.3 authorized the court to refuse oral argument as to Johnson’s remaining motions [other than motion for summary judgment]”).

Contrary to defendants’ assertions, Livesay v. King, 129 Ga. App. 751 (201 SE2d 178) (1973), does not conflict with Rule 6.3 and does not change the result in this case. In Livesay, which was decided prior to the adoption of the Uniform Superior Court Rules, we held that it was error to grant a defendant’s motion to open a default pursuant to an ex parte order. Id. at 752. However, we did not hold that a party seeking to open a default was automatically entitled to an oral hearing upon request. Thus, Livesay does not conflict with Rule 6.3. Nor does Dennis v. Nat. Bank of Ga., 182 Ga. App. 634 (356 SE2d 563) (1987) require a different result. In that case, we noted that “[u]nder Rule 6.3, appellant need only have requested an oral hearing [on his motion to open default], and it would have been granted.” Id. at 635. However, that case was decided prior to the May 7, 1987 amendment deleting the requirement that a hearing be held upon request. Accordingly, the trial court did not err in failing to hold a hearing on the motion to open default.

2. Defendants contend the trial court erred in denying their motion to open the default. “Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the ‘showing’ required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense.’ Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citations and punctuation omitted; emphasis in original.) C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990). “The sole function of an appellate court reviewing a trial court’s [denial] of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.” Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993).

The trial court in this case did not err in refusing to open the default under OCGA § 9-11-55 (b), as defendants failed to show under oath the existence of a meritorious defense. Defendants did not submit an affidavit in support of their motion to open default and did not attach a verified answer to their motion. The motion recited that “[t]he Defendants have a meritorious defense in that their actions were lawful and not in violation of any duty,” and defendants’ attorney filed a certificate stating that the facts set forth in the motion were true and correct. However, apart from the fact that this statement was not verified by the defendants, but only by their attorney, such conclusory statement cannot constitute the showing of a meritorious defense required to open default. “While there is no requirement that the affidavit contain ‘great detail’ concerning the defense, some factual information must be provided.” (Citation omitted.) Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 835 (4) (360 SE2d 280) (1987).

Moreover, defendants failed to offer to plead instanter. Although the motion to open default recites that an answer was attached thereto, no such answer was in fact attached, and no answer appears in the record. Cf. Grayson & Hollingsworth, Inc. v. C. Henning Studios, 194 Ga. App. 531, 532-533 (391 SE2d 8) (1990) (proposed answer, although attached to motion, not sufficient because not verified). Because defendants failed to satisfy the four conditions for opening default, the trial court did not err in refusing to open the default under OCGA § 9-11-55 (b).

3. Defendants contend that the court erred in entering judgment against the minor child, Shannon Stewart, without appointing a guardian ad litem for such child.

OCGA § 29-4-7 provides that “[w]hen a minor is interested in any litigation pending in any court in this state and he has no guardian or his interest is adverse to that of his guardian, such court may appoint a guardian ad litem for the minor.” “A trial court exercises discretion whether to appoint a guardian ad litem pursuant to the provisions of OCGA §§ 29-4-7 and 9-11-17 (c). ... [A] guardian ad litem need not be appointed for a minor who has a regular guardian, except in case the interest of the minor is adverse to that of his guardian.” (Punctuation omitted.) Dee v. Sweet, 224 Ga. App. 285, 287-288 (1) (480 SE2d 316) (1997).

In this case, it appears that the interests of the minor, Shannon, may be adverse to those of her mother. From a review of the complaint, it appears that the acts of fraud alleged by plaintiff were committed by the mother, and that Shannon, whose age is not apparent, may have been merely an unwitting recipient of the mother’s fraudulent transfer. Therefore, although her mother acted fraudulently in transferring Aderholt’s assets to Shannon, Shannon was not a party to the fraud. Although the transfer of the real estate to Shannon could be rescinded on account of the mother’s fraud, Shannon might not be personally liable for damages. Moreover, although Shannon’s age is not apparent from the record, we note that a minor below the age of criminal responsibility is immune from liability for a tort. Barrett v. Carter, 248 Ga. 389 (283 SE2d 609) (1981); OCGA § 51-11-6.

Since the complaint shows that Shannon’s interests may be adverse to those of her mother, the trial court had an affirmative duty, prior to entering judgment against the child, to exercise its discretion in determining whether the appointment of a guardian ad litem was necessary to protect the child’s interests. The fact that the mother did not move for appointment of a guardian ad litem does not change this duty, since, if her interests are adverse to Shannon’s, her failure to request a guardian cannot waive Shannon’s right to representation. As the trial court failed to exercise its discretion in the first instance, we remand this case to the trial court for exercise of such discretion. If the court determines that appointment of a guardian is necessary, the judgment against Shannon shall be vacated. If the court determines that appointment of a guardian is not necessary, the judgment against Shannon shall stand affirmed, subject to Shannon’s right to appeal such determination. Nothing in this ruling affects the validity of the default judgment with respect to the mother, which stands affirmed.

Decided November 3, 1997

Sean A. Black, for appellants.

Adams, Clifton, Sanders & Smith, Janney E. Sanders, for appel-lee.

Judgment affirmed in part and remanded.

Pope, P. J., and Johnson, J., concur.

       “Until entered in accordance with the provisions of OCGA § 9-11-58 (h), a judgment is inchoate and of no effect for any purpose.” Zeitman v. McBrayer, 201 Ga. App. 767 (2) (a) (412 SE2d 287) (1991).

       There is no contention that Shannon was not properly served with the lawsuit. In order to perfect service on a minor, service must be made on “the minor, personally, and also to his father or his mother or his guardian or his duly appointed guardian ad litem.” OCGA § 9-11-4 (d) (3). In the acknowledgment of service, both Shannon and her mother acknowledged service of the summons and complaint.


text:
    A97A2317.
    MASSEY v. THE STATE.
    (493 SE2d 255)
   Blackburn, Judge.

After pleading guilty to burglary, Massey was sentenced to serve a split sentence of twelve years, the first five years in confinement and the remaining seven years on probation. As a condition of probation, Massey was banished from the counties comprising the Southern Judicial Circuit. Massey contends that this banishment violates both the Eighth Amendment to the United States Constitution and Art. I, Sec. I, Par. XVII of the Georgia Constitution.

As Massey made no objection to the sentence in the trial court, neither of the constitutional issues he now raises was preserved for appellate review. This Court will not consider constitutional issues which were not raised below. Ogletree v. State, 211 Ga. App. 845, 846 (1) (440 SE2d 732) (1994). Furthermore, this is not a case of “exceptional circumstances” where the Court will excuse the failure and take notice of the error sua sponte. Presha v. State, 220 Ga. App. 124 (469 SE2d 293) (1996).

Decided November 3, 1997.

Andrew W. Clark, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

“[Massey] has the burden to show the probation condition is unreasonable. He does not contend that banishment itself is unreasonable but that it is excessive in length. We affirmed a banishment of ten years, with no discussion about length, in Edwards v. State, 173 Ga. App. 589, 590-591 (1) (327 SE2d 559) (1985). [Massey’s] probation condition was imposed on a sentence of lawful duration, and is of recognized utility. As the State points out, [Massey] could have been banished to prison for the entire [12] years.” (Citations omitted.) Id. at 125.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The Southern Judicial Circuit includes the counties of Brooks, Colquitt, Echols, Lowndes, and Thomas, of the latter of which Massey was a lifelong resident.