text:
    A98A0856.
    GRIER v. BROGDON.
    (505 SE2d 512)
   Beasley, Judge.

In December 1989 J. C. Brogdon agreed to sell Harold Grier land “contingent upon the purchaser obtaining satisfactory financing. The responsibility for arranging such financing is assumed by the purchaser, and in the event that this transaction is not closed as stated, earnest money [$20,000] shall be returned to purchaser in full and this contract shall be deemed null and void. . . .” Grier made sporadic preliminary efforts at obtaining financing. Grier alleged, but did not present evidence, that in February 1992 a bank holding a security deed on the property foreclosed and that Brogdon immediately reacquired the property from the bank and then entered into a contract to sell the property to a third party.

Grier sued Brogdon for specific performance or in the alternative for damages for breach of contract and for the earnest money. The specific performance demand was dropped in June 1993 when Grier canceled his notice of lis pendens in exchange for $50,000, apparently so the third-party sale could close. During the jury trial in April 1997, Grier admitted he had never obtained financing nor tendered any purchase money to Brogdon. Following the presentation of Grier’s evidence, the court directed a verdict against Grier, which he appeals.

1. A directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict.

A directed verdict as to breach of contract was proper in part. The financing contingency provision imposed a good-faith duty on Grier to diligently seek to obtain financing. Because time was not specified, other than the “proposed closing date” was to be 90 days after Grier obtained a firm commitment for financing, performance was required to be completed within a reasonable time. It was unreasonable as a matter of law for Grier not to obtain financing for seven and one-half years from December 1989 until April 1997, during which time (based on his evidence) the property was available to him. Grier presented no evidence that financing was even possible. He presented no legal excuse for failing to achieve financing.

The financing contingency created “a condition precedent to the performance of the primary contractual obligations to buy and sell the property. ... It is reasonable to hold that the obtaining of the loan was a condition precedent to the duty of both parties to render their promised performances (and not a condition precedent to the existence of a valid contract).” “A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.” “[Ujntil compliance with this condition precedent the contract is not enforceable.”

Brogdon’s obligation to sell never having matured, Grier’s claim for breach of contract damages in this regard failed as a matter of law.

2. Nevertheless, Grier was entitled to a return of his earnest money. Where a financing contingency is not fulfilled, “the terms of the contract and the intentions of the parties in a particular case will be determinative of the disposition of the earnest money.”

The preprinted form contract provided that if the sale did not close due to purchaser’s default, the earnest money was to be applied toward seller’s damages caused by the default. The contract then stated, in the preprinted portion, that “[tjhe following special stipulations shall, if conflicting with the printed matter, control.” A typed “special stipulation” stated: “It is agreed and understood by all parties that this agreement is contingent upon the purchaser obtaining satisfactory financing. The responsibility for arranging such financing is assumed by the purchaser, and in the event that this transaction is not closed as stated, earnest money shall be returned to purchaser in full and this contract shall be deemed null and void and both parties shall be considered to be back in same condition as though no contract was entered into.” The special stipulations page was initialed by the parties.

An issue of contract construction is at the outset a question of law for the court to be resolved by a three-step process. “The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.”

Application of the first step provides the answer. Although the provisions concerning the disposition of earnest money in the event of Grier’s default conflict, ambiguity evaporates due to the express provision that in the event of a conflict, the stipulations control. Even going beyond the contract’s own terms, the applicable rule of construction is that “[a] typewritten provision must govern over a conflicting printed one.” Thus, the tailored stipulation for return of earnest money absent a closing, which refund was not contingent on the seeking of financing in good faith, governs as a matter of law.

Decided August 4, 1998

Reconsideration denied August 21, 1998

Giddens, Davidson & Mitchell, Earl A. Davidson, for appellant.

Thompson & Sweeny, Virgil L. Thompson, Jr., Jorgia C. Northrup, Glenn P. Stephens, for appellee.

Brogdon posits that under such a construction Grier would have given no consideration for the contract. Brack v. Brownlee rejected this position, holding that “the payment of money by the purchasers [though returnable on failure of the financing contingency] and the vendors’ promise to sell provided adequate consideration for their contract.”

The court erred in directing a verdict against Grier on his claim for the earnest money. We reverse this portion of the directed verdict and remand the case for proceedings consistent with this opinion.

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

Pope, P. J., and Ruffin, J., concur.

       OCGA § 9-11-50 (a); Roberts v. Chapman, 228 Ga. App. 365, 366 (1) (492 SE2d 244) (1997).

        Brack v. Brownlee, 246 Ga. 818, 819 (273 SE2d 390) (1980); see Century 21 Mary Carr & Assoc. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992); Koets, Inc. v. Benveniste, 169 Ga. App. 352, 354 (2) (312 SE2d 846) (1983), aff’d, 252 Ga. 520 (314 SE2d 912) (1984).

       OCGA § 13-4-20; see Ferguson v. Bank of Dawson, 57 Ga. App. 639, 640 (2) (196 SE 195) (1938).

       (Citations and punctuation omitted.) Brack, supra, 246 Ga. at 822.

       OCGA § 13-3-4.

        Parker v. Averett, 114 Ga. App. 401, 402 (2) (151 SE2d 475) (1966); see Panfel v. Boyd, 187 Ga. App. 639, 645 (3) (371 SE2d 222) (1988).

        Brack, supra, 246 Ga. at 822.

        Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

       (Citation omitted.) Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

        Quinlan v. Bell, 189 Ga. App. 8, 9 (374 SE2d 823) (1988); see OCGA § 13-2-2 (7); Williams v. Physicians &c. Hosp., 249 Ga. 588, 591 (292 SE2d 705) (1982) (“where a contract is partly printed and partly handwritten or typed, the written or typed portions are to be given greater weight in construing the parties’ intent”) (citations omitted); Westminster Group v. Perimeter 400 Partners, 218 Ga. App. 293, 294 (1) (460 SE2d 827) (1995) (“typewritten provision must govern over a conflicting printed one”) (citation and punctuation omitted).

       246 Ga. at 819.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0849.
    SIMMONS v. BEARDEN et al.
    (506 SE2d 220)
   Judge Harold R. Banke.

J. E. Simmons appeals the superior court’s judgment denying his petition against Jimmy Bearden and Church Hill Farm, Inc. (collectively “Bearden”), under OCGA § 44-9-59 to remove obstructions on a private way. Simmons contends the superior court erred by finding he “did not keep the field road open and usable, and therefore did not constitute notice of intention to prescribe against Appellees’ land.” Held:

When Bearden put up a fence to block a field road that ran through his property and the adjacent property of at least one other landowner, Simmons petitioned the probate court to remove the fence. Following an evidentiary hearing, the probate court denied the petition because the court found no evidence that the way had been kept open and in repair. Thereafter, Simmons appealed to the superior court.

In the superior court, the parties agreed to a bench trial and stipulated that the transcript of the evidence presented to the probate court along with any additional evidence the parties submitted would be the evidence in the case. The parties also stipulated that the road on Bearden’s property had been used by Simmons for more than seven years, that it was not more than twenty feet wide, and that Bearden had closed the road on his property.

The superior court found the only evidence showing Simmons kept the road open and in good repair was testimony that some old limbs and dead trees were removed from the road from time to time, but there was no evidence that the road was scraped, ditched, repaired or maintained by Simmons sufficient to give notice to Bearden that Simmons intended to prescribe against Bearden’s title to the road. Based on these findings, the superior court concluded that Simmons failed to establish a private right-of-way over Bearden’s land and denied the petition.

Simmons was required to establish he was in uninterrupted use of the way for seven or more years, the way was not over twenty feet wide, and that he has kept the way open and in repair for at least seven years. Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 (420 SE2d 39) (1992). If Simmons failed to show all of these requirements, he could not prevail. Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993). Because of the stipulation, however, the only factual issue in this case is whether Simmons kept the way open and in repair.

In private way cases the requirement to make repairs “is not so much the repairs as the notice which is given by the repairs.” (Emphasis in original.) First Christian Church v. Realty Investment Co., 180 Ga. 35, 39 (178 SE 303) (1934). “Keeping in repair” is the equivalent of action and affirmative notice of the intention to prescribe. Id. at 43. Mere use alone is not enough. Eileen B. White & Assoc. v. Gunnells, 263 Ga. at 361. “Prescriptive rights are to be strictly construed, and the prescriber must give some notice, actual or constructive, to the landowner he or she intends to prescribe against.” Keng v. Franklin, 267 Ga. 472 (480 SE2d 25) (1997).

The trial court’s finding there was no evidence of repair sufficient to provide notice to Bearden is fully supported by the record. Assuming, without deciding, removal of dead trees and fallen limbs could provide sufficient notice, the evidence does not show that the dead trees and fallen limbs were even removed from Bearden’s property.

Decided August 21, 1998.

Reagan W. Dean, for appellant.

Denney, Pease, Allison & Kirk, John W. Denney, for appellees.

Factual findings of trial courts in bench trials are not set aside unless clearly erroneous. OCGA § 9-11-52 (a). As the clearly erroneous test is the same as the any evidence rule, the fact findings of a trial court will not be disturbed if there is any evidence to sustain them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388) (1989). The factual findings are supported by the record, and the superior court did not err by denying Simmons’ petition.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A1213.
    SALTERS v. THE STATE.
    (506 SE2d 221)
   McMurray, Presiding Judge.

Defendant Jerome Salters, also known, inter alia, as Jerome Jermaine Salter, Kenny Johnson, Minkey, Black Ice, and Jerome Germain Salter, was tried before a jury and found guilty of a single count of armed robbery. The evidence, viewed to support the jury’s verdict, showed that on April 6,1995, defendant took money and gold jewelry from the victim at gunpoint, in the men’s room of the W. W. Law Center gymnasium.

The victim, Thomas Singleton, noticed that “[defendant] was behind [him] with a gun. . . . He [defendant] had cocked the gun, and . . . had the gun pointed. . . . [Thomas Singleton] was looking at [defendant] face-to-face ... [as defendant] had [the gun] pointed in [Thomas Singleton’s] face.” Defendant said: “ ‘Give it up.’ ” Thomas Singleton gave defendant $90 he had in his pocket. “Then [defendant] told [the victim] to lay down on the floor.” Defendant then “noticed [the victim’s] necklace . . . [a]nd told [the victim] to give him . . . [the] necklace, too.” Holding the gun in his right hand, defendant “took [the necklace] with his left hand.” Defendant told the victim “don’t come after him unless [the victim were] strapped.” Thomas Singleton thought defendant’s handgun was a “three-eighty handgun,. . . semiauto[matic]. . . .”

. Within a week, the victim saw defendant at the same gym and so he “hit [defendant] with a chair.” But then the victim fled, “[because he saw defendant] reaching. So, [the victim] thought he still had something.” Thomas Singleton “knew [defendant] from a long time ago. [He had not] seen [defendant] in a while, but [he] knew [defendant, under the name] Minkey.” Defendant was wearing starched black jeans and a green bucket hat, that is, a “hat with a brim. . . .” Thomas Singleton identified State’s Exhibit 24, a photographic lineup, from which he identified defendant as the robber.

David Adams, recreation supervisor at the W. W. Law neighborhood center, noticed defendant “walking around [the center] with a [bucket] hat[,] a Yogi Bear type hat[,] a type a fisherman would use. . . .” The rule is, “once [the youths] set foot in that gym, hats off. . . .” When Thomas Singleton described to Coach Adams “what the [robber] had on . . ., [Coach Adams] realized [he] did see the man in the gym. . . . [But] any time [Coach Adams] got ready to approach [defendant,] he [defendant] kind of turn[ed] away . . . [and then] went out the back door. . . .” Coach Adams confirmed defendant was wearing “a bluish green . . . bucket . . . [with] a white T-shirt on, black pants, black jeans.”

On April 13, 1995, Investigator John Cave of the Violent Crimes Unit, Savannah Police Department, was on patrol in an unmarked detective’s vehicle when he observed defendant walking on Waters Avenue. Defendant “looked at the car, and as [the detectives] exited the car, [defendant] walked into the lane and then took off running. . . .” Investigator Cave “pursued [defendant] on foot.” After defendant was in custody, the detectives “were alerted that a gun was found in the lane, in 31st lane.” State’s Exhibit 23 is a photograph of “the gun that was found in the lane[, on] the grass[,] close to a trash can.” Officer J. D. Moran of the Savannah Police Department identified the handgun found in the lane as “a three-eighty Genell (phonetic), Incorporated . . . automatic.”

Although defendant testified he was home with his mother at the time Thomas Singleton was robbed at gunpoint, the jury found him guilty as charged. Defendant’s motion for new trial was denied and this appeal followed. Held'.

1. In four related enumerations of error, defendant contends the trial court erred in admitting so-called similar transactions evidence. He argues the State failed to show the accused had committed the independent offense; that there was not sufficient similarity between the independent act and the case sub judice; and the State never offered a clear, narrow purpose for the admission of extrinsic offense evidence. He further contends the trial court’s limiting instruction was inadequate.

Stacy Jones testified that on April 5, 1995 (the night before Thomas Singleton was robbed), defendant was walking with an acquaintance of Stacy Jones, known as Jamal. Jamal asked Stacy Jones to give them a ride in Jones’ car. While Stacy Jones was driving, Jamal, seated in the front passenger’s seat, “reached into his jogging pants and pulled out a Glock and cocked it and pointed it towards [Stacy Jones’] head, . . . telling [him] to, ‘Give it up’. . . . But the same time [Jamal] was saying it, [Stacy Jones] had grabbed the barrel of the gun, and [he] and [Jamal were] tussling over it.” Meanwhile, “Jamal was telling [defendant] to shoot [Stacy Jones], talking about, ‘Shoot him, shoot him.’ ” Defendant, in the back seat of Stacy Jones’ car, cried “ ‘Look out,’ ‘cause [Stacy Jones’] car was about to run into another car. . . .” After the car skidded to a halt, Stacy Jones “opened the door . . . still holding the gun, and [he] jumped out and ran across the street. [But] then [Stacy Jones] started running back towards [his] car, and they turned right on Barnard and 38th, and . . . they just kept driving. [Stacy Jones] told [some nearby] boys if any of them got their gun, to shoot [Stacy Jones’] car, ‘cause it’d been hijacked.”

(a) The test for the admissibility of evidence of similar crimes or extrinsic acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a person of criminal character. Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252). In the case sub judice, the trial court determined that defendant’s presence during the attempted armed robbery of Stacy Jones, in which defendant’s companion employed the same phrase, “Give it up,” as was used during the armed robbery of Thomas Singleton, was admissible for the “purpose of proving modus operandi if the jury feels that it does. . . .”

We agree with defendant that the testimony of Stacy Jones is inadequate to demonstrate defendant’s willing participation in the attempted armed robbery committed by the companion Jamal, and that this evidence is not proper “similar crimes” evidence. Cole v. State, 216 Ga. App. 68, 69 (1), 70 (453 SE2d 495). Nevertheless, such evidence is admissible as part of the entire res gestae. The circumstance that defendant witnessed an attempted armed robbery committed in the same manner as the indicted offense is admissible in support of the permissive inference that viewing the prior armed robbery attempt encouraged defendant’s own initial perpetration of the subsequent offense. Turner v. State, 194 Ga. App. 878, 879 (2), 880 (392 SE2d 256). See also Rushin v. State, 269 Ga. 599, 600 (2) (502 SE2d 454); Beasley v. State, 269 Ga. 620, 622 (2) (502 SE2d 235). The trial court’s reasoning was substantially correct and the first three enumerations are without merit.

Decided August 21, 1998

C. Jackson Burch, for appellant.

(b) After Stacy Jones testified and in its general charge, the trial court gave limiting instructions, admonishing the jury that defendant was on trial only for the particular offense alleged in the indictment; that the evidence of another transaction was admitted for the limited purpose of showing identity or modus operandi; and that, before the jury considered any such evidence, they must be satisfied that defendant is the same person as in any extrinsic acts. Defendant contends these instructions were inadequate under Prickett v. State, 220 Ga. App. 244, 245 (2), 246 (469 SE2d 371).

Since, in our view, the evidence is admissible as res gestae and not as similar transactions, the limiting instructions given by the trial court were entirely adequate to focus the jury’s attention on the limited purpose for which the evidence was admitted, even in the absence of an instruction to consider any similarity of the two incidents.

2. Contrary to defendant’s contention, the testimony of Investigator Cave, that defendant fled on sight, did not place defendant’s character in issue, even if defendant were a suspect in a separate criminal investigation, for that suspicion was not mentioned before the jury.

3. The trial court did not abuse its discretion in giving a form of the jury instruction approved in Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528). Tyson v. State, 217 Ga. App. 428 (1) (457 SE2d 690). Additional objections are beyond the scope of the sixth error as enumerated and will not be considered.

4. After the jury foreman informed the court that the jury was at an impasse, the trial court dismissed the jurors for the night, urging them to “try to reach a unanimous verdict, and . . . ask[ing the jurors] to go home and sleep on it, pray about it. Don’t discuss it with anybody. Don’t discuss it with anyone. Don’t allow anyone to discuss in your presence or hearing, or even among yourselves, but sleep on it, pray about it. Come back in the morning, nine o’clock, and . . . continue to talk about it.” This passing reference to nondenominational divine guidance scarcely amounts to the disparagement of mercy disapproved of as improper argument in the sentencing phase of a capital trial, as in Ford v. State, 255 Ga. 81, 92 (8) (i-2), 93 (335 SE2d 567). We find no error. Greene v. State, 266 Ga. 439, 449 (26) (469 SE2d 129); Crowe v. State, 265 Ga. 582, 593 (18) (d) (458 SE2d 799).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A98A1526.
    PHILLIPS v. McCROSKEY.
    (506 SE2d 388)
   Beasley, Judge.

Brenda Phillips filed a malpractice suit against Dr. McCroskey in the wrong county and successfully moved to have the matter transferred to the right county. In the transfer order, the court ordered Phillips, pursuant to USCR 19.1 (F), “to pay all accrued costs of court within twenty (20) days of delivery of the cost bill to Plaintiff’s counsel or the above-referenced matter shall automatically stand dismissed without prejudice.” Phillips received the cost bill on December 11, 1997, but chose not to pay the bill by December 31 in hope that a settlement would obviate it.

On January 6 McCroskey moved to dismiss the action because of Phillips’ failure to pay. The next day the court clerk refused Phillips’ belated attempt to pay the cost bill. Two days later Phillips moved to enlarge the time in which to pay the cost bill, citing OCGA § 9-11-6 (b) (2). Within two weeks the court granted the motion to dismiss and denied the motion to enlarge. The court held that by operation of law the case stood automatically dismissed, and therefore it was without discretion to grant the motion to enlarge. The court also held that even if it had the discretion, it found no excusable neglect under OCGA § 9-11-6 (b) (2) to justify enlargement.

Phillips enumerates three errors: (i) the court ruled on the motion to dismiss before allowing her 30 days to respond to the motion; (ii) the court erred when it stated it had no discretion to enlarge the time to pay costs; and (iii) the clerk should have accepted her attempt to pay costs.

1. USCR 19.1 (F) requires the court to alert plaintiff in a transfer order of the need for timely payment, as it precisely did. USCR 19.1 (G) effectuates this warning, plainly stating that if plaintiff does fail to make timely payment, “the action shall automatically stand dismissed, without prejudice.”

We have not had the opportunity to hold whether this language of USCR 19.1 (G) is self-executing. But we have addressed the same language found in OCGA § 9-2-60 (b), which provides that actions in which no written order is taken for a period of five years “shall automatically stand dismissed. . . .” Interpreting this statute, Dept. of Medical Assistance v. Columbia Convalescent Center held that after the passage of the five years, the case “was dismissed by operation of law . . . and any further action in the case other than dismissal is a mere nullity.” We hold the same is true for automatic dismissals under USCR 19.1 (G).

2. Phillips’ argument that the court erred in ruling before she was allowed 30 days to respond to McCroskey’s motion to dismiss fails for two reasons. First, the motion to dismiss was superfluous because the case automatically stood dismissed as of January l. It took no motion or further action by the court to bring about this result. “An automatic dismissal is one which results as a matter of law from the occurrence of a condition specified in a statute or order of the court, and without any further action on the part of anybody.” The mere passage of time, not human intervention, accomplishes it. Any action to enter an order of dismissal thereon is “a purely ministerial act.” It follows that any response by Phillips to McCroskey’s motion to dismiss would have been futile.

Second, where evidence is not required, a court has the discretion to rule on a motion to dismiss before the 30 days anticipated by USCR 6.2 for a response to be filed expires. No abuse is shown.

3. The court correctly held that following the passage of the 20 days, it had no authority to enlarge the time to pay the cost bill. By that time the case was moribund, and the court had no power to resurrect it by way of a motion to extend the time to pay. Following 20 days without payment, “any further action in the case is a mere nullity,” for the court no longer has jurisdiction over it.

Decided August 21, 1998.

Arthurlyn Combs-Hixson, for appellant.

Cobb, Grabbe & Spillers, Patricia M. Peters, for appellee.

Moreover, the court held that even if it had the power to enlarge the time under OCGA § 9-11-6 (b) (2), it found no excusable neglect to justify doing so. A court’s ruling in this regard is a matter of discretion. Plaintiff admits she intentionally withheld paying the cost bill. This does not constitute a good ground for ignoring a court order that warns of automatic dismissal.

4. Phillips claims the clerk of the court should have accepted payment of the cost bill after the 20-day time limit had expired. But the acceptance of payment would breathe no life into the expired lawsuit.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations omitted.) 203 Ga. App. 535, 536 (1) (417 SE2d 195) (1992).

        Stephens v. Stovall & Co., 184 Ga. App. 78, 79 (1) (360 SE2d 638) (1987) (dismissal “mandatory” and “automatic”); see Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (1989) (“this is mandatory and dismissal occurs by operation of law”) (citation omitted); Freeman v. Ehlers, 108 Ga. App. 640 (134 SE2d 530) (1963) (“[w]here no order is taken, the dismissal results automatically”) (citation omitted).

       See USCR 6.2.

       USCR 19.1 (G).

        Freeman, supra, 108 Ga. App. at 640.

       Id.; see Norton v. Brady, 129 Ga. App. 753 (1) (201 SE2d 188) (1973).

        Kidd v. Unger, 207 Ga. App. 109, 110-111 (2) (427 SE2d 82) (1993); see Butler v. Bolton Road Partners, 222 Ga. App. 791, 792 (1) (476 SE2d 265) (1996) (“numerous cases have found that allowing less than 30 days to respond is not error when a plaintiff can still litigate her claim on the merits”) (citation omitted); Zohoury v. Zohouri, 218 Ga. App. 748, 751 (6) (463 SE2d 141) (1995) (“[u]nder USCR 6.2, the trial court had discretion to hear the matter without waiting 30 days for a response”) (citation omitted).

        Dept. of Medical Assistance, supra, 203 Ga. App. at 536 (1) (“[a]n automatic dismissal . . . results as a matter of law, and the court has no discretion to order it reinstated”) (citations omitted).

       Id.

        Earp v. Kranats, 184 Ga. App. 316, 317 (361 SE2d 217) (1987); see Fulton County v. Corp. of the Presiding Bishop &c., 133 Ga. App. 847, 853 (3) (212 SE2d 451) (1975) (a case that is automatically dismissed is “completely lifeless for all purposes from the date of the dismissal”).

       See Haynes v. Hight, 190 Ga. App. 497, 498 (1) (379 SE2d 21) (1989) (in court’s discretion whether excusable neglect is shown).


text:
    A98A1557.
    SEMICH v. THE STATE.
    (506 SE2d 216)
   Beasley, Judge.

With the blue lights atop their nearby patrol car flashing, Officers Johnson and Wright directed traffic around a damaged utility pole at 1:30 in the morning. Officer Wright observed an approaching vehicle abruptly turn left into a residential driveway, back out, and proceed in the opposite direction. He called Officer Johnson’s attention to the car, and both officers saw it weave within its lane. Suspecting intoxication, they followed in their car and saw the vehicle again weave within its lane after making a left turn. They pulled it over to investigate.

Nicholas Semich, the driver, failed a series of field sobriety tests and registered an alcohol concentration of .151 grams. He was convicted of driving under the influence of alcohol (OCGA § 40-6-391 (a)). On appeal he challenges the denial of his motion in limine to exclude the officers’ testimony as arising from a stop which violated the federal constitution.

“When a police officer makes a stop and restrains an individual’s freedom to depart, that person is seized. The Fourth Amendment requires that the seizure be reasonable to assure the individual is not subject to the discretion of the official in the field. The reasonableness requirement imposed by the Fourth Amendment strikes a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.

“A brief investigative stop of a vehicle by a law enforcement officer is considered reasonable if it is justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Investigative stops of vehicles, like other Terry-type stops, are illegal if based only on an unparticularized suspicion or hunch. There must be a specific, articulable suspicion which is determined by looking at the totality of the circumstances — objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer.”

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

“Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.”

(a) Failure to signal. The parties dwell on Officer Wright’s testimony that Semich did not signal his left turn into the driveway. If Semich’s failure to signal constituted a traffic offense, the stop was clearly authorized. Under OCGA § 40-6-123, no turn signal is required where there are no other moving vehicles in the vicinity. Officer Wright, the only witness to the turn, testified no vehicles were present. Also, weaving within one’s own lane generally does not constitute a traffic offense. No traffic violation occurred.

The issue is whether abruptly turning around at 1:30 a.m. in an apparent effort to avoid visible police, plus weaving within one’s lane, gives police sufficient reason to conduct an investigatory stop, even though these actions do not themselves constitute a traffic offense.

(b) Weaving within lane and furtive conduct. In denying the motion in limine, the court necessarily found these actions justified a reasonable suspicion that Semich was engaged in criminal conduct. Gabiddon v. State, which held that weaving within one’s own lane justified a stop, is not determinative because it also involved a traffic violation of impeding the flow of traffic. Numerous cases have held that weaving out of one’s lane justifies a stop, but such also constitutes a traffic violation. Most of these cases focus on the weaving not as a traffic offense but as an indication that the driver was possibly intoxicated, which in this context authorized police to stop the driver to determine if the suspicion, a reasonable one, was accurate. “This Court has specifically determined that an officer’s observation of a motorist’s ‘weaving’ may serve as sufficient reason to warrant an investigative stop for a possible DUI violation.”

Thus the behavior giving rise to the reasonable suspicion need not be a violation of the law. Roberson v. State held that even if the defendant’s actions “did not amount to a per se traffic violation, under the totality of the circumstances . . . [the officer] had a reasonable, articulable suspicion that [the defendant] was committing a traffic offense.” Analogous is Atkins v. State, in which the officer saw the defendant walk unsteadily across a parking lot and then get in a car and drive away. Atkins held that even though walking unsteadily is not a crime, it can give rise to an articulable suspicion that the defendant was intoxicated and should not be driving.

A 1980 case intimated that weaving within a lane was insufficient to justify a stop. But since then the law has become increasingly more stringent by gradually lessening the degree of intoxication tolerated for drivers and thus criminalizing more behavior under OCGA § 40-6-391.

In 1983 it became illegal per se to drive with an alcohol concentration of .12 grams. In 1988 this per se illegality attached to having .12 grams alcohol concentration within three hours of driving. In 1991 it was moved down to .10 grams for all drivers excepting those under 18, for whom it was moved down to .06. In 1994 the under-18 limit was moved down to .04, and in 1997 it was dropped to .02 and included those under 21.

The smaller amounts of alcohol ingestion are behaviorally manifested by smaller deviations from the norm. Thus less pronounced deviations which can result from lesser alcohol influence can raise a reasonable suspicion of violation. As a result, the police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane. Semich displayed not only two instances of weaving within a lane, but also the furtive conduct of abruptly changing his course of travel as though to avoid encountering police, who . were visibly present. Another fact was the late hour, a time when drunk driving is more common than during the day. Although turning around to avoid police is not alone sufficient to justify a stop, combined with weaving and the late hour it is.

Decided August 21, 1998

J. Robert Daniel, for appellant.

Otis L. Scarbary, Solicitor, Russell B. Mabrey, Jr., Assistant Solicitor, for appellee.

The officers had reasonable and articulable grounds to suspect Semich was engaging in criminal conduct. Denial of the motion in limine was not error.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations and punctuation omitted.) State v. Armstrong, 223 Ga. App. 350, 351 (2) (477 SE2d 635) (1996); see United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

       (Citation, punctuation, and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996) (“ ‘[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred’”) (citations omitted); State v. Bowen, 231 Ga. App. 95, 96 (498 SE2d 570) (1998); Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996).

        State v. Goodman, 220 Ga. App. 169, 171 (2) (469 SE2d 327) (1996); State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994).

       See OCGA § 40-6-48 (1).

       184 Ga. App. 475, 476 (2) (361 SE2d 861) (1987).

       See also Graves v. State, 167 Ga. App. 246, 248 (3) (305 SE2d 913) (1983) (car weaving in own lane and going 35 mph in 55 mph zone justifies stop).

        Bowen, supra, 231 Ga. App. at 96 (veering into curb lane); State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996) (straddling lanes); Strickland v. State, 221 Ga. App. 120, 122 (2) (470 SE2d 508) (1996) (weaving badly over the roadway); State v. Whitfield, 219 Ga. App. 5, 6 (463 SE2d 728) (1995) (weaving over the fog line); Allenbrand v. State, 217 Ga. App. 609 (458 SE2d 382) (1995) (weaving onto the center line); Smith v. State, 216 Ga. App. 453 (454 SE2d 635) (1995) (swerving into different lanes); Huff v. State, 205 Ga. App. 557 (422 SE2d 664) (1992) (weaving across lines); Ramirez v. State, 192 Ga. App. 255 (384 SE2d 279) (1989) (drifting over into emergency lane); Pupo v. State, 187 Ga. App. 765 (1) (371 SE2d 219) (1988) (weaving into emergency lane).

       OCGA § 40-6-48 (1).

        Diamond, supra, 223 Ga. App. at 166 (citations omitted); see Strickland, supra, 221 Ga. App. at 121 (weaving made officer suspicious of DUI); Whitfield, supra, 219 Ga. App. at 6 (erratic driving indicated DUI); Ramirez, supra, 192 Ga. App. at 256 (weaving indicated intoxication or unsafe vehicle); Graves, supra, 167 Ga. App. at 248 (3) (weaving and slow speed may reflect intoxication). Compare Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996) (stop improper because officer “did not observe defendant weave in the highway... or otherwise demonstrate that she was intoxicated”); Goodman v. State, 220 Ga. App. 169, 172 (2) (469 SE2d 327) (1996) (stop improper because officer did not testify defendant “executed the turn in a manner demonstrating that he was intoxicated”).

       230 Ga. App. 179, 181 (495 SE2d 643) (1998).

       See also Castillo v. State, 232 Ga. App. 354, 357 (502 SE2d 261) (1998) (“regardless of whether Castillo’s act of making a sudden and abrupt change in speed and a quick and unsafe turn and backing maneuver near the crest of a hill was a traffic violation, it was nevertheless a sufficiently suspicious and deliberately furtive response to the road check so as to give the trooper at least a reasonable suspicion of Castillo’s criminal activity and to warrant further investigation”) (citation omitted); Armstrong, supra, 223 Ga. App. at 351 (“[e]ven if Armstrong’s behavior did not technically violate the laying drags’ statute, the officer nonetheless had reasonable articulable suspicion to stop him”); Allenbrand, supra, 217 Ga. App. at 610 (1) (“Allenbrand’s eventual acquittal on the charge of failure to maintain lane is equally irrelevant in considering whether the officer had probable cause to stop Allenbrand at the time he observed his vehicle weaving within his lane and eventually crossing the line”).

       209 Ga. App. 70 (432 SE2d 661) (1993).

        Mulling v. State, 156 Ga. App. 404 (1) (274 SE2d 770) (1980).

       Ga. L. 1983, pp. 1000, 1015-1016, § 12.

       Ga. L. 1988, pp. 1893, 1895, § 2.

       Ga. L. 1991, pp. 1886, 1891, 1893, §§ 6, 8.

       Ga. L. 1994, pp. 1600, 1615, § 8.

       Ga. L. 1997, pp. 760, 793, § 23.

       See Castillo v. State, supra at 357 (“[d]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea”) (citation and punctuation omitted).

       See State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994).

       See Graves, supra, 167 Ga. App. at 248 (2) (driving slow and weaving within lane suffices); see also Edwards v. State, 219 Ga. App. 239, 244 (3) (464 SE2d 851) (1995) (late hour was factor in giving rise to DUI suspicion); State v. Slater, 207 Ga. App. 669, 670 (428 SE2d 676) (1993) (same).


text:
    A98A1633.
    KAPLAN et al. v. JOHNSON.
    (506 SE2d 391)
   McMurray, Presiding Judge.

Prior judicial decrees declared that condominium owners such as plaintiff Floyd A. Johnson held an easement in assigned parking spaces as an appurtenance to condominium ownership, “conditioned upon the continued payment of parking charges.” Kaplan v. Helton, 261 Ga. 524, 525 (2), fn. 2 (407 SE2d 747). Plaintiff Johnson subsequently initiated this contempt citation, alleging that defendants Jo Kaplan, Robert L. Pitts, and Jim Williams d/b/a Kaplan-Williams Parking Lot, were in wilful contempt because “Defendants have repainted the parking space lines . . . resulting in . . . substantially smaller spaces, and the relocation of the existing spaces. . . . Plaintiff’s space . . . has been relocated and reduced from nine (9) feet wide to approximately seven (7) feet wide. The substantially smaller space makes it difficult for Plaintiff to park and exit his vehicle.”

The trial court did not construe the original court order, as affirmed by the Supreme Court of Georgia, (“the Helton order”) to mean that “defendants cannot reconfigure or reassign parking lot spaces under reasonable circumstances,” and denied plaintiff’s application for contempt. But this Court reversed that denial, holding the “trial court erred in its interpretation of the Helton order.” Johnson v. Kaplan, 225 Ga. App. 53, 54 (1), 55 (483 SE2d 292). This Court further held “the trial court erred in denying [plaintiff] Johnson’s application for an injunction ordering [defendants] to restore the parking deck to its original configuration[, and] remanded [the case] to the trial court for entry of such an order.” Johnson v. Kaplan, 225 Ga. App. 53, 56 (2), supra.

Decided August 21, 1998.

Louis Levenson, for appellants.

Crim & Bassler, Candler Crim, Jr., Paul L. Hanes, for appellee.

Upon remand, the trial court found defendants in wilful contempt of the Helton order; provided that defendants “may purge themselves of contempt by restoring the parking deck at the Landmark Condominiums to its original configuration. . . .” Defendants were further “enjoined and restrained from maintaining the parking spaces in their present configuration, and [were] permanently enjoined from realigning the parking spaces to deprive Plaintiff of his easement as defined in Helton.” Defendants appeal from this finding of contempt. In two related enumerations of error, defendants contend the trial court erroneously expanded the scope of the Helton order to afford relief “to non-party individuals who brought no claims at the Trial Court level.” Held:

We do not dispute the circumstance that plaintiff Floyd A. Johnson did not qualify as a class representative for all plaintiffs whose interests were identified in the Helton order. The judgment under review, by its express terms, applies only to plaintiff’s interests, and not to all Helton plaintiffs. Nevertheless, under the two express holdings of this Court in the prior appeal, the propriety of the finding of contempt and the entry of a permanent injunction became the law of the case. “ ‘Thus, in this civil action, the (superior) court, as well as this Court, would certainly be bound by the (previous) ruling(s) in ([Kaplan v. Helton, 261 Ga. 524, supra, and Johnson v. Kaplan, 225 Ga. App. 53, supra]), regardless of whether those rulings may be erroneous [or the extent of our previous direction overbroad]. [Cits.]’ [Cit.]” Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608, 609 (1) (475 SE2d 660). The decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below. Eastgate Assoc., Ltd. v. Piggly Wiggly Southern, 200 Ga. App. 872, 873 (1) (410 SE2d 129). That is precisely what happened in the case sub judice.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1795.
    DRURY v. WALL.
    (506 SE2d 646)
   Beasley, Judge.

Carl Drury filed a civil action against Robert Wall in the wrong county, and Wall successfully moved to have the matter transferred to his county of residence. In accordance with Uniform Superior Court Rule (“USCR”) 19.1 (F) and (G), the transfer order a) directed the clerk to compute the court costs and to notify Drury’s counsel in writing of the amount; b) directed that Drury pay the costs within twenty days of mailing or delivery of the cost bill; and c) ordered that in the event Drury did not timely pay costs, “this case shall automatically stand dismissed without prejudice.”

The clerk mailed the cost bill on December 11, 1996, and an employee of the law firm representing Drury, whose responsibilities included picking up the mail, signed the certified receipt for the letter on December 17,1996. Because Drury did not pay the bill until June of 1997, the court formally dismissed the action.

Phillips v. McCroskey recently held that similar to OCGA § 9-2-60 (b), the language “shall automatically stand dismissed” in USCR 19.1 (G) is self-executing. “An automatic dismissal is one which results as a matter of law from the occurrence of a condition specified in a statute or order of the court, and without any further action on the part of anybody.” Once the 20 days passed without payment of the transfer costs, the case was automatically dismissed by operation of law and was no longer pending, and any further action in the case other than documenting dismissal was a mere nullity. Any action to enter an order of dismissal is “a purely ministerial act.”

Drury claims Griffith v. Ga. Bd. of Dentistry commands otherwise. Griffith holds simply that transfer orders are interlocutory and may be appealed only through application. Griffith expressly refused to determine whether the case had been automatically dismissed, for nothing in the record indicated dismissal was an issue.

Decided August 21, 1998

Savage, Herndon & Turner, Brent J. Savage, Robert S. Kraeuter, for appellant.

McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, Michael C. Pruett, for appellee.

Drury contends that the 20 days did not begin to run until his attorney actually received the cost bill. Drury’s counsel testified in November 1997 that he personally “never received” the cost bill. His firm finally did pay the bill in June 1997. USCR 19.1 (G) does not require receipt: “Plaintiff shall pay the costs within 20 days of mailing or delivery of the cost bill; if costs are not paid within that time, the action shall automatically stand dismissed, without prejudice.” The 20 days began running when the clerk mailed the notice on December 11.

Even if receipt were required, an employee of the law firm commissioned to pick up the mail signed the certified mail receipt, just as she had done in the past. Drury’s claim that this employee was not authorized to sign for this certified mail is not supported by the record and under the circumstances would at most constitute a private instruction not binding on third parties. The contention that the agent receiving the mail must have the same supervisory responsibilities as a person receiving service of process is without legal support and runs contrary to OCGA § 9-11-5 (b), which provides that service by mail on a party’s attorney is complete upon mailing, regardless of who actually picks up the mail.

Drury’s final argument, that a wilful refusal to pay must first be shown, is also without basis in the language of USCR 19.1 (G). His citations to cases requiring findings of wilfulness before actions may be dismissed with prejudice are distinguishable, as they rely on other statutes lacking the “automatically dismissed” language.

Dismissal of the action was authorized.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       Mr. Wall has since deceased, and Dianne Wall as executor of his estate has been substituted as the appellee/defendant.

       234 Ga. App. 87 (506 SE2d 388) (1998).

        Phillips, supra at 88 (quoting Freeman v. Ehlers, 108 Ga. App. 640 (134 SE2d 530) (1963)).

        Phillips, supra at 88; see Dept. of Medical Assistance v. Columbia Convalescent Center, 203 Ga. App. 535, 536 (1) (417 SE2d 195) (1992); Nixson v. Chris Leasing, 185 Ga. App. 548, 549 (365 SE2d 135) (1988); Stephens v. Stovall & Co., 184 Ga. App. 78, 79 (1) (360 SE2d 638) (1987); see also Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (1989) (“this is mandatory and dismissal occurs by operation of law”) (citation omitted); Freeman, supra, 108 Ga. App. at 640 (“[w]here no order is taken, the dismissal results automatically1’) (citation omitted).

        Phillips, supra at 88; Freeman, supra, 108 Ga. App. at 640.

       175 Ga. App. 533 (333 SE2d 647) (1985).

       See OCGA § 10-6-50.


author: Pope, Presiding Judge.

text:
    A98A1483.
    GRAHAM v. THE STATE.
    (505 SE2d 268)
   Pope, Presiding Judge.

Charles Graham appeals from his cocaine trafficking conviction. He argues that the trial court erroneously denied his motion to suppress cocaine and other evidence seized from his apartment pursuant to a search warrant because the warrant was based solely on an affidavit that contained false statements. Although the statements challenged by Graham are misleading, they are not false and do not provide a basis for reversal of the trial court’s ruling.

Graham challenges the following portion of the affidavit: “The affiant, who is a sworn and certified law enforcement officer, was contacted by a reliable source of information that wishes to remain confidential. This source is believed to be reliable because within the past month this source has provided information that has led to the seizure of controlled substances. Within the past seventy-two hours, this source has been on the above described premises and has observed a quantity of off white powder substance. This off white powder substance was represented as cocaine to the source by Charles Graham. The source is familiar with cocaine in its various stages of usage, preparation for storage and distribution.”

Graham correctly notes that this portion of the affidavit tends to indicate not only that the informant saw cocaine in Graham’s apartment during the preceding 72 hours, but that on some other occasion in the preceding month the informant gave the police information that led to the seizure of controlled substances. Such an indication is incorrect. The police officer who gave the affidavit explained at the motion to suppress hearing that the informant did not, on separate occasions, give information leading police to a controlled substance and then later also view cocaine in Graham’s apartment; rather, the informant’s giving of information and viewing of cocaine both occurred on one occasion. The officer testified that the informant, whom the officer did not know, contacted the police and told them that Graham was dealing drugs. The officer then set up a “controlled buy” with the informant. Prior to the buy, the officer searched the informant and found that she was not in possession of cocaine. The officer gave money to the informant, who went into Graham’s apartment. After about three minutes in the apartment, the informant left the apartment with cocaine that she said she had purchased from Graham. The next day the officer applied for the search warrant.

The facts of this case are not materially distinguishable from McQueen v. State, 189 Ga. App. 743 (377 SE2d 682) (1989), in which a police officer made statements in his affidavit indicating that the informant had previously given information leading to the seizure of marijuana. But at the motion to suppress hearing the officer revealed that he had been totally unacquainted with the informant prior to the occasion in question, when he had the informant make a controlled buy of drugs from the defendant’s apartment. This Court concluded: “we reject the appellant’s contention that the affiant obtained the warrant through misrepresentation.” McQueen v. State, 189 Ga. App. at 744.

Decided August 5, 1998

Reconsideration denied August 24, 1998.

Robert D. Botts, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Likewise, the officer in the instant case did not obtain the search warrant for Graham’s apartment through misrepresentation. Contrary to Graham’s argument, the contested statements in the affidavit are not false — the informant did in fact give information that led to the seizure of cocaine and the informant did in fact see cocaine in Graham’s apartment. Although the statements are misleading to the extent they fail to indicate that the giving of information and the observation of cocaine refer to the same controlled buy at Graham’s apartment, the information in the affidavit is not false and does not invalidate the search warrant.

“At the hearing on the motion to suppress, there was no evidence that the affidavit upon which the search warrant was issued contained deliberate falsehoods or had been made with reckless disregard for the truth or that the affiant had consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. In the absence of such evidence, the presumption of validity of an affidavit executed in support of a search warrant must stand.” (Citations and punctuation omitted.) Dorminey v. State, 205 Ga. App. 806, 807 (1) (423 SE2d 698) (1992). Here, because the affidavit did not contain deliberate falsehoods and was not made with a reckless disregard for the truth, it was valid. See State v. Thomas, 203 Ga. App. 623, 624 (417 SE2d 328) (1992). Accordingly, the trial court did not err in denying Graham’s motion to suppress. See Brannon v. State, 220 Ga. App. 572, 575 (3) (469 SE2d 716) (1996); McQueen v. State, 189 Ga. App. at 744.

Judgment affirmed.

Ruffin, J., concurs. Beasley, J., concurs in the judgment only.


author: Smith, Judge.

text:
    A98A0787.
    BOARD OF ASSESSORS OF JEFFERSON COUNTY v. McCOY GRAIN EXCHANGE, INC.
    (505 SE2d 832)
   Smith, Judge.

This appeal involves the construction of OCGA § 48-5-48.2, which governs the freeport exemption from ad valorem taxation. McCoy Grain Exchange, Inc., the taxpayer, applied to the Board of Assessors of Jefferson County for such an exemption for the farm products stored on its property in its grain merchandising and storage business. The board of assessors denied the exemption, as did the board of equalization. The taxpayer then appealed to the Superior Court of Jefferson County, which reversed the decision of the board of equalization and granted the exemption. This appeal by the board of assessors ensued. Because we conclude that the trial court erroneously construed the statute governing the exemption and that the version of the statute governing the exemption for the tax years involved here did not contemplate its application to this grain storage business, we reverse the judgment below.

The statute in effect at the time the exemption was sought and denied provided that the freeport exemption may be granted to certain types of tangible personal property, including “[inventory of goods in the process of manufacture or production which shall include all partly finished goods and raw materials held for direct use or consumption in the ordinary course of the taxpayer’s manufacturing or production business in the State of Georgia. The exemption provided for herein shall apply only to tangible personal property which is substantially modified, altered or changed in the ordinary course of the taxpayer’s manufacturing, processing or production operations in this State.” Former OCGA § 48-5-48.2 (1).

McCoy Grain Exchange is in the business of merchandising and storing grain. It purchases raw farm products, including grain, corn, and soybeans, from farmers. These are stored in McCoy’s elevators until sold to mills that convert the raw materials to products such as flour and animal feed. While the farm products are in McCoy’s facilities, they are aerated to prevent mold and treated with certain chemicals to deter insect infestation. It is undisputed, however, that McCoy does not convert or manufacture the raw farm products into other products.

McCoy nevertheless contends that its aeration and chemical treatment of the farm products brought its inventory within the purview of OCGA § 48-5-48.2 (1) because, without those treatments, the products would have been destroyed by mold or insects, and the products therefore were transformed by those treatments from something essentially worthless into products capable of being further processed. It argues that the treatments applied at its facility therefore “substantially modified, altered or changed” the inventory, making it eligible for freeport exemption. We do not agree.

We note initially that the Georgia General Assembly amended OCGA § 48-5-48.2 in 1998, adding a sentence to the language quoted above, now codified as subsection (b) (1). The language added in 1998 provides: “For purposes of this paragraph, the cleaning, drying, pest control treatment, or segregation by grade of grain, peanuts, or other oil seeds, or cotton shall constitute substantial modification in the course of processing or production operations.” Had this amendment been in effect at the times relevant to this action, we would certainly agree that McCoy was entitled to the exemption. But it was not. The amendment in issue became effective July 1, 1998.

It is well established that laws granting exemption from taxation must be construed strictly in favor of the taxing authority. Murray Bakery Products v. Bd. of Tax Assessors of Richmond County, 186 Ga. App. 559 (367 SE2d 852), aff'd, 258 Ga. 484 (371 SE2d 393) (1988). No exemption will be allowed unless it was intended by the legislature. Murray Bakery Products, supra, 186 Ga. App. at 559. We must ascertain, therefore, whether the legislature intended, prior to the 1998 amendment, that “cleaning, drying, pest control treatment, or segregation by grade of grain, peanuts, or other oil seeds, or cotton” should be considered a “substantial modification” entitled to exemption.

Two conflicting principles of statutory construction could be used to determine the legislature’s intent. One “provides that, ‘unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law and not to change it. (Cits.)’ [Cit.]” TEC America v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533, 537 (317 SE2d 637) (1984). Although this principle could be construed to apply only to an original codification, it could also apply here, suggesting that when the legislature amended OCGA § 48-5-48.2 (b) (1) in 1998, it did not change the law, but merely codified for the first time a clarification of the law as it already existed.

But the second principle is more specific, and we find it prevails here. JCS Enterprises v. Vanliner Ins., 227 Ga. App. 371, 373 (3) (489 SE2d 95) (1997). This principle provides that when a statute is amended, “ ‘[f]rom the addition of words it may be presumed that the legislature intended some change in the existing law.’ ” C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). This is further supported by the language in the preamble of the 1998 amendment, which provides that it amended Title 48 “so as to change provisions relating to administration of ad valorem taxation.” Ga. L. 1998, p. 1120.

Given the language in the preamble and the addition of previously nonexistent words to the statute, we must presume that the 1998 amendment was intended to change the law. Since the change made cleaning and pest control of agricultural products “substantial modifications,” it follows that under the prior law they were not. In this case, therefore, the treatments of the agricultural products did not entitle the taxpayer to the freeport exemption under the existing law for the tax years 1994 and 1995, and the trial court erred in granting the exemption.

Decided August 24, 1998.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellant.

Hutcheson & Wynne, Robert M. Wynne, Spivey, Carlton & Eden-field, J. Franklin Edenfield, for appellee.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Michele M. Young, Assistant Attorney General, amici curiae.

Judgment reversed.

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


text:
    A98A1040.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WALKER.
    (505 SE2d 828)
   Smith, Judge.

This action arises out of appellant State Farm’s refusal to pay medical expenses to its insured, Demarcus Walker, after Walker was injured in an automobile accident. In the action filed by Walker against it, State Farm moved for summary judgment on the basis of an endorsement in the policy issued to Walker. The trial court denied summary judgment, and we granted State Farm’s application for interlocutory appeal. Because we conclude that coverage was clearly and unambiguously excluded under the policy terms, we reverse the trial court’s denial of State Farm’s motion.

Following an automobile accident that occurred while Walker was a passenger in a vehicle insured by State Farm, Walker claimed medical expenses totaling $10,671.29 for injuries to his neck, back, and right knee. State Farm denied his claim concerning his knee injury but paid $2,000.50 with respect to his other claims. Walker entered into a settlement agreement with Southern General Insurance, the insurer of the individual driving the other car involved in the collision, under which Southern General paid Walker $15,000. Walker then filed this action against State Farm for failure to pay the total amount of his medical bills.

State Farm moved for summary judgment based on an endorsement on its policy providing in relevant part: “If the injured person has been paid damages for the bodily injury by or on behalf of the liable party in an amount. . . equal to or greater than the total reasonable and necessary medical expenses incurred by the injured person, we owe nothing under this coverage.” In construing this language, we must bear in mind the general principle that we cannot construe clear and unambiguous language in an insurance contract to expand coverage beyond its plain terms. Bold Corp. v. Nat. Union Fire Ins. Co. &c., 216 Ga. App. 382, 384 (1) (454 SE2d 582) (1995). And here, as in State Farm &c. Ins. Co. v. Brewer, 221 Ga. App. 745, 746 (472 SE2d 529) (1996) (physical precedent only), these policy terms “are unambiguous, and they admit of but one reasonable construction; no court can construe the policy to provide more coverage than it plainly and unambiguously provides. The parties contracted against a double recovery for medical expenses for bodily injury from both the liable party and State Farm.” (Citations omitted.) It is beyond dispute that Walker’s settlement with Southern General in the amount of $15,000 exceeds his total claimed medical expenses of $10,671.29. State Farm therefore owes nothing.

Contrary to Walker’s argument, Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997) and OCGA § 33-24-56.1 are not controlling. The Supreme Court in Duncan decided the narrow issue of “whether the complete compensation rule, which requires that an insured be completely compensated for his losses before his insurer can exercise a right of subrogation or reimbursement, is applicable to an insurance policy provision which requires the insured to reimburse the insurer for amounts paid under medical payments coverage.” Id. at 646. The Court concluded that the complete compensation rule does limit the application of such subrogation provisions when the insurance policy “does not contain an express provision to the contrary.” Similarly, OCGA § 33-24-56.1 (f) prohibits benefit providers, including insurers, from reducing liability for medical payments as a set-off against reimbursement claims or withholding benefits as a means of enforcing a reimbursement claim.

But here, in contrast to Duncan or the prohibitions of OCGA § 33-24-56.1, State Farm does not seek reimbursement or subrogation but rather relies on a coverage exclusion. We agree with State Farm that an exclusion is not synonymous with the concept of subrogation; the exclusion in this case defines or limits the circumstances under which an insurer must provide coverage, while the right of reimbursement is dependent on the existence of coverage and arises only if State Farm pays medical expenses under its coverage. State Farm does not seek reimbursement for amounts paid to Walker under medical payments coverage, and neither OCGA § 33-24-56.1 nor Duncan therefore supports Walker’s claim that State Farm is liable. See generally Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499, 501-502 (492 SE2d 268) (1997).

Decided August 24, 1998

Sims, Fleming & Spurlin, John C. Spurlin, for appellant.

Wright & Hyman, Thomas H. Hyman, for appellee.

Nor does Duncan support Walker’s claim that the exclusion is void as against public policy. As discussed above, Duncan addresses only the narrow issue of whether the complete compensation rule limits the applicability of reimbursement or subrogation provisions. And we cannot say that the exclusion here falls within those types of contracts described as violating public policy in OCGA § 13-8-2. Similarly, we cannot say that the exclusion is contrary to good morals and to the law, or that it was “ ‘entered into for the purpose of effecting an illegal or immoral agreement.’ ” Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (328 SE2d 705) (1985). The parties here exercised their freedom of contract by expressly and unambiguously contracting against double recovery, as did the parties in Brewer, supra, and “it is the paramount public policy of this state that courts will not lightly interfere with” this right. (Citations and punctuation omitted.) Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 389 (414 SE2d 521) (1991). See also American Home Assurance Co. v. Smith, 218 Ga. App. 536, 538 (462 SE2d 441) (1995). We find no reason in this case to interfere with the right of these parties to exclude coverage by express agreement. We therefore reverse the trial court’s denial of State Farm’s motion for summary judgment on the issue of coverage.

Judgment reversed.

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

       State Farm also moved for summary judgment concerning Walker’s claims for attorney fees and bad faith penalties. The court granted partial summary judgment as to these issues but denied summary judgment as to “all other claims.”

       One judge on a three-judge panel concurred specially in Brewer. But that special concurrence actually supported the majority on the proposition relied on here.


author: Andrews, Chief Judge.

text:
    A98A1155.
    STEVENSON v. THE STATE.
    (506 SE2d 226)
   Andrews, Chief Judge.

Ronnie Dale Stevenson appeals from the trial court’s denial of his motion for new trial following his conviction of three counts of aggravated assault on Chatham County Police Officers Maston, Davis, and Vance.

1. First considering Stevenson’s fourth enumeration contesting denial of his motion for new trial on the ground of insufficiency of evidence, we view the evidence with all inferences in favor of the jury’s verdict. Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995).

So viewed, it was that around 11:00 p.m. on January 20, 1997, the three officers, along with their lieutenant, all in uniforms and marked cars, were dispatched to a residence on a disorderly person call. Upon arriving, the officers found Stevenson crouched between two cars in the driveway with a propane tank between his legs. There was a three-and-a-half to four-foot hose attached to the tank, and a four- or five-inch flame was coming from it. In the immediate vicinity of Stevenson and the tank were his wife, holding their child, an unidentified man, and the four officers.

Officer Davis approached within 15 feet of Stevenson, identified himself as a police officer and directed Stevenson to put the flame out and put the tank down. After this command was repeated several times, Stevenson refused and told the officers to “stay the f — k back.” After the officers repeated the commands, Stevenson opened the valve of the tank, causing a flame of five or six feet to shoot in the direction of the officers. The officers could all feel the heat of the flames and retreated, drawing their weapons. They continued to direct Stevenson to turn off and drop the tank, which had no regulator.

Officer Davis, also a certified firefighter, was aware that the propane tank posed a danger of exploding like shrapnel if a vacuum created in the tank by the propane level falling caused a drawback of flame into the tank. He was also aware that propane flames could cause third degree burns or even death and that the officers’ polyester uniforms would melt into and burn them if hit by the flame.

Stevenson continued to lunge at the officers with the flame, despite their commands to stop.

Officer Maston retrieved his baton from his car, circled around to Stevenson’s side, and hit him extremely hard on the arm, attempting to knock the tank loose. The blow had no effect on Stevenson, nor did pepper spray shot into his face by Officer Davis. Finally, Officer Mas-ton was able to approach Stevenson from the rear with his baton raised, and Stevenson turned the tank off upon realizing Maston’s presence. Officer Maston pushed Stevenson into Officer Davis, and he was arrested.

Upon being taken into custody, Stevenson stated that “I should have burned you when I had the chance. If I get the chance, I’m going to burn y’all. I’m going to take care of all of you.”

The evidence was legally sufficient, and denial of the motion for new trial on this ground was not error. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McKinney v. State, 218 Ga. App. 633, 635 (2) (463 SE2d 136) (1995).

2. Stevenson’s third enumeration is that the court erred in denying his motion in limine seeking to redact part of a letter he wrote to Officer Davis after the incident. In that letter, Stevenson apologized for his behavior, stating that “I know you — I know in your heart I was not attempting to assault any of you officers. I was drunk and I was having family problems. I was not trying to burn you. I have a bad record as you know.” The reference to his bad record is the portion sought to be omitted because it placed Stevenson’s character in evidence.

The letter was Stevenson’s attempt to explain his lack of intent to harm the officers and to obtain leniency. The objected-to statement went to motive, intent and course of conduct and was material and admissible. Mayes v. State, 229 Ga. App. 372, 373 (2) (494 SE2d 34) (1997). That it incidentally placed his character in issue did not render it inadmissible. Id.; Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991); see Washington v. State, 268 Ga. 598, 600 (2) (492 SE2d 197) (1997).

3. Enumerations 1, 2, 5, and 6 all deal with claimed errors in the charge and will be considered together.

(a) The first enumeration is that the court erred in not charging Stevenson’s Request No. 3 for simple assault as a lesser included offense of aggravated assault upon an officer.

The indictment charged Stevenson with assaulting the officers with “a lighted stream of propane gas, an object which when used offensively against a person, is likely to result in serious bodily injury. . . .”

Trial counsel withdrew the request to charge simple assault, leaving us nothing to review.

Even assuming it had not been withdrawn, however, an accused is entitled to have a charge on a lesser included offense only if there is some evidence of that lesser offense. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Here, however, absent the use of the propane flame, which Stevenson acknowledged could cause serious bodily injury by burning, there was no other evidence of assault. Therefore, there was no error in not giving the requested charge. Wynn v. State, 228 Ga. App. 124, 126 (491 SE2d 149) (1997); Messick v. State, 209 Ga. App. 459, 461 (3) (433 SE2d 595) (1993).

(b) Stevenson complains that the court did not sua sponte charge a definition of “deadly weapon.” The court did read OCGA § 16-5-21 (a) (2) in its entirety to the jury in the charge, including the deadly weapon language. As pointed out by the State, however, Stevenson was specifically charged with assault on an officer with an “object which when used offensively against a person is likely to result in serious bodily injury,” not with assault with a deadly weapon. The indictment and the appropriate section of the statute were also read to the jury during the charge, and there was no error in not charging the definition of deadly weapon. Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997); Harwell v. State, 231 Ga. App. 154, 155-158 (3) (497 SE2d 672) (1998); Blige v. State, 208 Ga. App. 851 (2) (432 SE2d 574) (1993), aff’d, 264 Ga. 166 (441 SE2d 752) (1994).

(c) The fifth enumeration is that the court erred in not specifically charging the jury that Stevenson’s knowledge that the persons assaulted were police officers was an essential element of the crime as required by Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455) (1981).

The indictment was read to the jury at the beginning of the court’s charge and each count charged an assault upon each officer “of the Chatham County Police Department, a peace officer, while said peace officer was engaged in official duty. . . .” The court also charged that intent is an essential element of the crime, that the State was required to prove each element beyond a reasonable doubt, and that a person commits aggravated assault upon a police officer “when that person knowingly commences an aggravated assault upon an officer while the officer is engaged in or on account of performance of official duties.”

Pretermitting whether this charge was deficient as alleged, see Chandler v. State, 204 Ga. App. 816, 820 (3) (421 SE2d 288) (1992); Cornwell v. State, 193 Ga. App. 561, 562 (2) (388 SE2d 353) (1989), we conclude that any such failure was not a substantial error harmful as a matter of law under OCGA § 5-5-24 (c), see Byrd v. State, 156 Ga. App. 522 (2) (275 SE2d 108) (1980), and, under the particular circumstances of this case, was harmless. See Miner v. State, 268 Ga. 67 (485 SE2d 456) (1997).

Here, not only did Stevenson testify that he knew they were police officers, but he also testified that he was the one who called 911, summoning them to the scene. His defense was that he did not intend to harm the officers but was using the propane flame in an effort to get his wife’s attention.

(d) The sixth enumeration is that the court erred in not charging obstruction, Stevenson’s Request No. 4. This request, however, was also withdrawn at the charge conference, leaving us nothing to review.

4. Stevenson’s seventh enumeration is that he should have been sentenced only for aggravated assault, not aggravated assault upon an officer, because the verdict returned was “ambiguous.”

As set out in Division 3 (a), the indictment charged aggravated assault upon an officer. The only offenses upon which the jury was charged pursuant to the indictment were aggravated assault upon an officer, reckless conduct, and disorderly conduct, the latter two requested by Stevenson as lesser included offenses. No written request was made for aggravated assault as a lesser included offense, and it was not error for the court not to sua sponte charge it. State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976); Foster v. State, 218 Ga. App. 569, 570 (3) (462 SE2d 455) (1995).

Here, although the verdict form is not included in the record, it was published in court by the clerk and was that “[w]e the jury find the Defendant guilty of three counts of aggravated assault.”

“OCGA § 17-9-2 provides in part that ‘verdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.’ We must construe verdicts ‘in the light of the pleadings, the issues made by the evidence, and the charge of the court.’ (Citation and punctuation omitted.) Reed v. State, 87 Ga. App. 154 (1) (73 SE2d 223) (1952).” Davis v. State, 225 Ga. App. 627, 630 (4) (484 SE2d 655) (1997).

Considering the indictment, charge, and verdict returned here, we conclude that there is no ambiguity in the verdict and Stevenson was properly sentenced for aggravated assault upon an officer. Davis, supra.

5. Finally, Stevenson contends that his trial counsel was ineffective.

“ ‘A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Stevenson] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.’ (Citations and punctuation omitted.) Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).” Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

Stevenson contends counsel was ineffective in not producing the 911 tape in order to show he called police; withdrawing a request to charge simple assault without consulting him; advising him that he would be sentenced as a recidivist to the statutory maximum if he pled guilty; and failing to introduce the propane tank into evidence.

Trial counsel testified without contradiction that it was his experience that 911 tapes were taped over after a certain period and the tape was no longer available when Stevenson requested it. Further, he stated that, in his opinion, Stevenson’s calling the police was not relevant to what happened after they arrived.

Decided August 24, 1998

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, IanR. Heap, Jr., Assistant District Attorney, for appellee.

As discussed above in Division 3 (a), there was no evidence presented of a simple assault absent the use of the flame from the tank and withdrawing the request, even without consulting Stevenson, was not ineffective assistance of counsel.

There is no dispute that all of the plea bargains offered by the State were contingent upon Stevenson pleading guilty as a recidivist, even though, after conviction, he was not sentenced as a recidivist, solely because the State was unable to timely obtain out-of-state records of his prior convictions. It is unclear how counsel’s accurately describing plea negotiations could ever be ineffective assistance, and it certainly was not here.

Finally, trial counsel testified that not introducing the tank was a tactical decision. Such a decision does not equate with ineffectiveness. Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       The xoinimum sentence for assault upon an officer is five years versus one year for aggravated assault.


text:
    A98A1318.
    ETKIND et al. v. SUAREZ et al.
    (505 SE2d 831)
   Smith, Judge.

Appellants in this action frankly state that “[t]his medical malpractice action seeks to change the law on wrongful birth by obtaining a ruling that Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 [(398 SE2d 557)] (1990)... no longer applies.” As in Abelson, appellants are attempting to bring a “wrongful birth” action against an obstetrician for failure to determine during the mother’s pregnancy that their child was suffering from Down’s syndrome. After a lengthy discussion of the problems inherent in such a cause of action, the Supreme Court of Georgia declined to create one, deferring to the legislature as a more appropriate forum to consider all the policy questions involved. Id. at 718-719. Abelson has been followed repeatedly by this Court. See Gale v. Obstetrics &c. of Atlanta, 213 Ga. App. 614, 615 (1) (445 SE2d 366) (1994) (failure to diagnose Down’s syndrome); Vance v. T.R. C., 229 Ga. App. 608, 614 (494 SE2d 714) (1997) (child has no claim for wrongful birth based on illegitimacy); Spires v. Kim, 203 Ga. App. 302, 303 (2) (416 SE2d 780) (1992) (no claim for wrongful birth based on unspecified birth defect).

Decided August 24, 1998

Myles E. Eastwood, for appellants.

Appellants raise a series of policy arguments, in essence contending that this Court should somehow overrule or distinguish Abelson. But as this Court observed in Gale, supra, “this court has no authority to overrule or modify a decision of the Supreme Court of Georgia as ‘the decisions of the Supreme Court (of Georgia) shall bind all other courts as precedents.’ Ga. Const. 1983, Art. VI, Sec. VI, Par. VI.” Gale, supra at 615 (1).

Relying on one of the dissents in Abelson to point out that medical science has progressed since that decision, 260 Ga. at 723 (Benham, J., dissenting), appellants contend that the case should be distinguished. But the majority in Abelson relied on this same reasoning to conclude that the courts will not create a new cause of action, leaving such decisions to the legislature. Id. at 718. Appellants also cite numerous decisions from other jurisdictions that are wholly irrelevant in the face of a Supreme Court of Georgia decision directly on point. Finally, the multiple constitutional issues raised by appellants were explicitly rejected in Spires, supra.

Nor do we have the authority to transfer this case to the Supreme Court. See Spires, supra. Unlike appellants here, the appellants in Spires “acknowledged in their brief that Abelson ‘is binding upon this court (and that) these issues are appealed for purposes of perfecting the record on any Petition for Certiorari later filed.’ This is, of course, the applicable procedure to be followed in any case wherein this court otherwise has jurisdiction and it is simply urged that controlling Supreme Court authority was wrongly decided. It is this court that has jurisdiction over this medical malpractice case and, in performance of our constitutional function, we hereby affirm the judgment based upon what we believe to be the controlling Supreme Court decision in Abelson. Under the constitution of this state, appellants can now seek a writ of certiorari on the ground that that Supreme Court decision should be overruled becausé it is violative of their due process rights.” Id. at 304.

Judgment affirmed.

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

Alston & Bird, Judson Graves, Sterling G. Culpepper, for appellees.

       We note that certiorari was denied in Spires, 203 Ga. App. 907.


text:
    A98A1370.
    FREEMAN v. THE STATE.
    (505 SE2d 836)
   Smith, Judge.

Carlos Raynald Freeman was charged by accusation with reckless driving and not wearing a seat belt. He was convicted of both charges after a bench trial. He now appeals from the judgment and sentence entered thereon, enumerating only the conviction for reckless driving.

Freeman contends the trial court erred in denying his motion to quash the accusation as invalid for failing to allege that Freeman was driving recklessly in disregard for the safety of persons or property. We find Freeman’s contention completely without merit, and we affirm the judgment below.

We note briefly that although the gist of Freeman’s contention is that the accusation omitted the essential element of disregard for the safety of persons or property, OCGA § 17-7-71 (c) provides that an accusation is sufficient either when it tracks the statutory language or when it is worded “so plainly that the nature of the offense charged may be easily understood” by the factfinder. This accusation charged Freeman with “unlawfully driving] a motor vehicle on a public road in a reckless manner.” This was so plain that the nature of the charged offense was easily understood.

More importantly, “[i]f the defendant, upon being arraigned, demurs to the indictment, . . . the demurrer . . . shall be made in writing.” OCGA § 17-7-111. Freeman’s motion to quash was neither timely nor made in writing, and it was therefore properly denied. Freeman denied his motion was a demurrer, informing the court that it was “an oral motion to quash, . . . which can be done anytime, even during trial.” But our law is clear that “[rjegardless of how these motions are designated, such motions must be made in writing upon the defendant’s being arraigned. [Cit.] Where such motions are not made at the proper time, they are deemed to have been waived. [Cits.]” Bryant v. State, 224 Ga. 235-236 (161 SE2d 312) (1968). Since it is undisputed that this motion was not made in writing and not raised at arraignment, the trial court did not err in denying the motion.

Judgment affirmed.

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

Decided August 24, 1998.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.


text:
    A98A1436.
    MATHEWS v. THE STATE.
    (506 SE2d 225)
   Andrews, Chief Judge.

Gerald Mathews was granted an out-of-time appeal from denial of his motion to modify his probationary sentence after his plea of guilty to rape. In it he contends the trial court improperly denied his request to remove the prohibition on his contacting or associating with the victim of the rape, S. V., also his common-law wife and the mother of his two children. We affirm.

Mathews was tried for rape, but the jury was split between convicting of rape or battery and a mistrial was granted. S. V. testified at that trial and during the sentencing hearing that she was raped and that she was afraid of Mathews, both for herself and her children, and did not want to have contact with him.

On November 14, 1995, Mathews entered his negotiated plea of guilty, agreeing to a sentence of eleven years and five months, which, with credit for the year and five months he had already served, resulted in a probated sentence of ten years. With Mathews’ full understanding, the court imposed as a special condition of probation that he not have any contact with S. V., although arrangements were made for him to have supervised visits with his children.

On August 19, 1997, Mathews filed his motion to modify, in which S. V. unsuccessfully attempted to join. She testified on behalf of Mathews and expressed her desire to renew their relationship and have the special condition removed, although she reaffirmed that he had raped her at their home.

Mathews argued below and here that such a condition violates his constitutional right to freedom of association, although no authority was or is cited for the proposition that imposition of special conditions of probation can amount to such a deprivation.

“In some instances a condition of probation involves a waiver of a defendant’s rights including those protected by state or federal constitutions. However, the conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. [Cit.] Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is ‘related to a legitimate purpose underlying the criminal justice system . . . (or whether defendant’s) loss of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.’ [Cits.] A condition of probation which precludes contact between the perpetrator of a sexual crime and his victim bears a reasonable relation to future criminality especially where a family relationship provided the opportunity for the past criminal conduct. [Cits.]” Tuttle v. State, 215 Ga. App. 396, 397 (2) (450 SE2d 863) (1994).

Decided August 24, 1998.

White & Bloodworth, Michael M. White, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

There was no abuse of discretion in denying the motion to modify. See Gearinger v. Lee, 266 Ga. 167, 169 (465 SE2d 440) (1996).

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


author: Ruffin, Judge.

text:
    A98A1478.
    SCHEIPERS v. THE STATE.
    (505 SE2d 835)
   Ruffin, Judge.

Following a bench trial, Guy Scheipers was found guilty of having a blood alcohol concentration of 0.10 grams or more within three hours after driving or being in actual physical control of a vehicle. See OCGA § 40-6-391 (a) (5). Scheipers contends in his sole enumeration of error that there is insufficient evidence to support his conviction because the machine used to test his breath has a 0.010 margin of error. We disagree and affirm his conviction.

The evidence shows that Scheipers was given a breathalyzer test on an Intoximeter 5000 machine following his arrest for driving under the influence. The first sample revealed a 0.101 blood alcohol concentration. The second sample, which was taken two minutes later, showed a blood alcohol concentration of 0.103. Scheipers argues that his conviction cannot rest upon these test results because the Intoximeter 5000 machine has a margin of error of 0.010. Scheipers made this argument below, and the trial court acknowledged that his “true blood alcohol reading could have been a 0.111 just as well as it could have been a 0.093.” Nonetheless, the trial court found Scheipers guilty of having a blood alcohol concentration of 0.10 grams or more within three hours after driving or being in actual physical control of a vehicle. OCGA § 40-6-391 (a) (5).

Decided August 24, 1998.

Casey & Rowsey, Thomas C. Rowsey, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

We find these test results sufficient to support Scheipers’ conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lanier v. City of Manchester, 205 Ga. App. 597 (423 SE2d 30) (1992); Newton v. State, 191 Ga. App. 664 (382 SE2d 432) (1989). A breathalyzer machine’s margin for error relates “to the weight rather than the admissibility of breathalyzer results.” Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991). “[T]he weight to be given the various evidence is exclusively an issue for resolution by the factfinder.” Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). Accordingly, we cannot say that the trial judge erred in this case.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A98A1509.
    DYBAS et al. v. TOWN OF CHESTER et al.
    (505 SE2d 274)
   Andrews, Chief Judge.

Angelina Dybas appeals from the trial court’s orders granting summary judgment to the Town of Chester and two of its officers in their official capacity and to Dodge County and two of its officers in their official capacity on her claim of negligence in the death of her husband, Jack Dybas. The trial court ruled that the town and county and their officials were entitled to summary judgment on Mrs. Dybas’ claims because she failed to show a special relationship between either the town and its officials or the county and its officials with her husband which created a special duty owed to her husband apart from that owed to the general public. We agree with the trial court and affirm.

This case arose when 89-year-old Jack Dybas was walking back from the post office as he did every day. Mr. Dybas was walking on the right-hand side of the road when a car driven by 13-year-old Summer Rogers struck and killed him. Mrs. Dybas filed a claim against the town and the county alleging they were negligent because they failed to prevent unlicensed children from driving on the public roads.

In their motion for summary judgment, the Town of Chester and its officials submitted the affidavit of Ralph Hosford, the Administrator of the Town of Chester, in which Hosford stated that the town discontinued its police force in early 1988. He stated that since that time, the only law enforcement agency for the town was the Dodge County Sheriff’s Office. Hosford added that Billy Brown, whom Dybas sued in his official capacity as the “law enforcement official” of the town, was not a certified police officer and any reports received by the town concerning underage drivers would have been reported immediately to the Dodge County Sheriff’s Office.

1. In any event, Mrs. Dybas’ claim of negligence against the town and its officers fails because “where failure to provide police protection is alleged, there can be no liability based on a municipality’s duty to protect the general public.” City of Rome v. Jordan, 263 Ga. 26, 28 (426 SE2d 861) (1993).

Mrs. Dybas argues the town can still be found liable for negligence under the “special duty” exception to the public duty doctrine because a special relationship existed between Jack Dybas and the town such that the town owed a special duty to him. We disagree.

In order to determine that a special relationship exists, Mrs. Dybas must prove the following three requirements: “(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.” City of Rome, supra at 29.

A review of Mrs. Dybas’ affidavit submitted with her response to the defendants’ motion for summary judgment and her deposition testimony provides no support for this contention. Mrs. Dybas admitted that she never spoke to Mayor Mullis nor his predecessor, Mayor Howard, about problems with underage drivers and stated she did not know whether or not her husband had ever talked to either of the mayors about the problem. Mrs. Dybas claimed in her deposition that her husband spoke with Billy Brown who said, “He’d take care of it.” However, when asked if anyone with the town ever promised they would do something about the problem and then did not try to do it, Mrs. Dybas answered, “No, nobody said nothing. They just say, you know, it’s too bad.” Therefore, even assuming Mrs. Dybas can meet the first two parts of the test, by her own admission she cannot meet the third part of the test for a special relationship because neither she nor her husband ever justifiably or detrimentally relied on any affirmative undertaking by the town. In fact, Mrs. Dybas stated that no official with the Town of Chester ever promised her they were going to do something and then did not try to do it.

Decided August 24, 1998.

Decker & Hallman, Richard P. Decker, for appellants.

2. Dodge County is entitled to sovereign immunity on Mrs. Dybas’ claims against it and its officers acting in their official capacity. Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d 476) (1994). Although sovereign immunity may be waived in certain instances, Mrs. Dybas makes no claim, and we find no evidence in the record, that the county has waived its sovereign immunity.

As in her claim against the town, Mrs. Dybas argues that her negligence claim against the county survives because a “special relationship” existed between her husband and the county defendants. We find no support for this argument in the record.

As set out above, in order to show a special relationship, the plaintiff must show the following: “(1) an explicit assurance by the municipality [or government entity], through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality [or government entity] that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality’s [or government entity’s] affirmative undertaking.” City of Rome, supra at 29; Washington v. Jefferson County, 221 Ga. App. 81, 82 (470 SE2d 714) (1996). There is nothing in the record or Mrs. Dybas’ deposition concerning any explicit assurance by any county official that it would act on behalf of Mr. or Mrs. Dybas. Indeed, on appeal, Mrs. Dybas does not even argue any specific instance in which any county official gave any assurances to either her or her husband. Nor does she argue her husband relied on any assurance by a county official. Rather, just the opposite. When asked if anybody in the Dodge County Commissioner’s Office or the Dodge County Sheriff’s Office had ever made any promises to Mr. Dybas to protect him while he was walking, Mrs. Dybas replied, “No.”

Accordingly, there has been no showing of any special duty on the part of any of the defendants to protect Jack Dybas from underage drivers. Therefore, Mrs. Dybas failed to show any exception to the public duty doctrine providing that municipalities and counties cannot be subject to liability for failure to provide police protection to the public. Thus, the trial court did not err in granting summary judgment to the town and county and their officials on Mrs. Dybas’ claims of negligence.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Chambless, Higdon & Carson, Thomas F. Richardson, Harrison & Wall, Milton Harrison, Roberts, Roberts & Ingram, Guy V. Roberts, Jr., for appellees.

       Mrs. Dybas also filed a wrongful death claim against the driver of the car and her mother, but that is not before us in this appeal.