author: Andrews, Judge.

text:
    A93A2261.
    THE STATE v. EVANS.
    (442 SE2d 287)
   Andrews, Judge.

The State appeals the trial court’s dismissal of the indictment charging Evans with interference with lawful custody.

Charles and Susan Evans divorced in December 1990 and entered into an agreement regarding custody and support of and visitation with their two children. The agreement was incorporated into the final decree. Ms. Evans was given custody of the two children, with visiting rights in Mr. Evans. She lived in Morgan County, within 100 miles of his residence in Fulton County. The agreement provided, as pertinent here, that “the FATHER will be responsible for or provide for the children’s transportation to his home for visitation with FATHER; for so long as she lives within one hundred (100) mile radius of the FATHER, the MOTHER shall be responsible for or provide for picking up the children at the end of visitation with the FATHER.”

Mr. Evans was charged under OCGA § 16-5-45 (c) (2), which states that interstate interference with custody occurs “when the person removes a minor or committed person from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation.” (Emphasis supplied.) The indictment specifically charged that Evans did “remove [the child] from this state in lawful exercise of a visitation right and upon the expiration of the period of lawful visitation did further intentionally retain possession of the minor in another state for the purpose of keeping the minor away from the individual having lawful custody of the minor, [the mother].”

Defendant Evans initially filed a general demurrer to the Morgan County indictment, contending that venue was properly in Fulton County since, under the terms of the agreement, that is where Ms. Evans would pick up the child, not Morgan County, the domicile of the mother and child and to which they would have eventually returned. The demurrer was converted to a motion to dismiss and the court held an evidentiary hearing.

The court heard testimony from Ms. Evans. The State and defendant Evans basically agree that the following occurred. Defendant gave notice under the agreement of his intention to exercise his two-week visitation with the child beginning July 14, 1991. Although he did not pick the child up until July 17, 1991, he did travel to Morgan County to pick her up as provided in the agreement. On July 28, 1991, the mother arrived at defendant’s Fulton County address to pick up the child and found a note stating that, since visitation had not begun until July 17, the child could not be picked up until July 31. The mother returned to defendant’s house on July 31, but defendant refused to turn the child over to her. Police were called but were unable to resolve the dispute because the mother did not have her court decree with her and the dates of the visitation had not been reduced to writing. As she left the premises, defendant yelled that he would take the child and “You’ll never see her again.” She returned with her court documents on August 1, to find both defendant and child gone. The mother continued her efforts to locate the child, then six years of age, but was unsuccessful until the child was recovered from the father after an automobile accident in Columbus, Georgia.

The court’s order dismissing the indictment stated that, it being “clear that the parties expected the child to be returned by the Father to the Mother on July 31, 1991, at his residence in Fulton County as provided in the Divorce Decree. The critical venue code provision is OCGA § 16-5-45 (c) (2) [set out above]. . . . While different factual variations could result in venue in the county of residence of the custodian, the venue statute . . . clearly provides that the offense is deemed to be committed in the county to which the minor was to have been returned. This court accordingly concludes as a matter of law that venue of this criminal action lies in Fulton County. . . ."

This order assumes, without any authority cited, that the agreement of two parties can alter the terms of a legislative enactment for purposes of determining venue, i.e., by agreeing to physically pick the child up in Fulton County, the mother somehow altered the intent of the venue statute.

In OCGA § 17-2-2, the general criminal venue statute, subsection (a) provides that actions shall be tried “where the crime was committed, except as otherwise provided by law.” Subsection (i) states that “[t]his Code section is cumulative and shall not supersede venue provisions found in other parts of this Code.” Section 16-5-45 (c) (2) is such a provision.

Whatever the agreement might provide, the charge is that, sometime in the evening of July 31, defendant took the child, left Georgia, and kept the child in another state after his lawful period of visitation ended at midnight on July 31.

Decided March 11, 1994.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellant.

Guy E. Davis, Jr., for appellee.

As stated in Stroud v. State, 200 Ga. App. 387 (408 SE2d 175) (1991) , which discussed the differences in the kidnapping and interference with custody statutes, “the offenses differ in the classification of the victim which each statute seeks to protect — ... the lawful custodian whose custody has been interfered with in the case of interference with custody.” Id. at 390. See Sawyer v. State, 112 Ga. App. 885, 888 (2b) (147 SE2d 60) (1966).

Assuming, without deciding, that the venue provision merited statutory interpretation, the legislature is deemed to have understood this difference and to have acted upon it. OCGA § 1-3-1. The logical conclusion is that, where a parent lawfully removes the child from the state, but unlawfully retains custody out of state, the legislature intended that the victim’s domicile, i.e., the custodial parent, should be the venue of any criminal prosecution.

Here, the court also erred in making findings of fact on the venue issue, including the subjective intent of the accused. These factual issues are for the jury. Davis v. State, 203 Ga. App. 106 (416 SE2d 375) (1992) . Even assuming that the State is unable to prove venue in Morgan County, “reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven.” Hernandez v. State, 182 Ga. App. 797, 798 (1) (357 SE2d 131) (1987). See Avery v. State, 149 Ga. App. 414 (1) (254 SE2d 408) (1979).

Therefore, the dismissal of the indictment was error.

Judgment reversed.

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

       Defined in subsection (a) (1) as “any child . . . whose custody is entrusted to another individual by authority of law.”


source: Caselaw Access Project

author: Beasley, Presiding Judge. Smith, Judge,

license: Public Domain

text:
    A93A2300.
    CATO v. THE STATE.
    (441 SE2d 900)
   Beasley, Presiding Judge.

An accusation was filed against appellant alleging that he did “drive and was in actual physical control of a motor vehicle while under the influence of alcohol to the extent that it was less safe for him to drive.” OCGA § 40-6-391 (a) (1). The jury found him guilty. He appeals.

Lumpkin County Deputy Sheriff Cochran testified that at approximately 9:00 p.m. on June 16, 1992, he stopped appellant at a license check and asked him for his driver’s license, which he could not produce. As they began to converse, Cochran noticed that appellant emitted a very strong odor of an alcoholic beverage, his speech was slurred, and his eyes were bloodshot. When appellant stepped from the jeep, as requested by Cochran, he was unsteady on his feet. He twice attempted to take an alco-sensor test, but he did not blow into it properly despite instructions by Cochran; he only gave a partial sample, which did register positive for alcohol.

When Cochran asked appellant to perform other field sobriety tests, he would not. Cochran asked whether he had been drinking, and appellant responded affirmatively. There were a couple of beers in a cooler behind the driver’s seat in the jeep. In the officer’s opinion, appellant was under the influence of alcohol to the extent that he was less safe to drive. Cochran placed him under arrest, read him the Georgia implied consent warning, and asked him to submit to a state-administered blood test which he refused.

Appellant testified, as did his mother, that his severe allergies were bothering him at the time and he was taking Benadryl, an over-the-counter allergy medication. As a result, his eyes become red, watery, and swollen, and he becomes drowsy and sometimes dizzy. He had taken a heavy dose of Benadryl during the noon hour. He did not deny that he had drunk one or two beers just after he finished his job, before driving. When the officer complained that he was not blowing hard enough, he explained that he had bad respiratory problems and was on medication. He refused the blood test because he was told that if he took it he would be kept in jail overnight, but that he could be released on bond if he refused the test. If hé were jailed overnight, he would have been late for his job the next morning. He further testified that he did not know how the medication might react to the test.

Of appellant’s two enumerated errors, only the second need be addressed. In it he complains of the court’s refusal to give a requested charge on the law of circumstantial evidence under OCGA § 24-1-1 (3) (“ ‘Direct evidence’ means evidence which immediately points to the question at issue”); OCGA § 24-1-1 (4) (“ ‘Indirect evidence’ or ‘circumstantial evidence’ means evidence which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed”); and OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused”).

The law requires that “where the State’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991); Johnson v. State, 210 Ga. App. 99, 100 (1) (435 SE2d 458) (1993); see Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993). A failure to charge on OCGA § 24-4-6 is not reversible error where the case is not close or doubtful, the charge on reasonable doubt is full and fair, and no other reasonable hypothesis save that of guilt was offered. Langston, supra at 178.

The trial court recognized that this case is dependent in part on circumstantial evidence through its charge to the jury that “[circumstantial evidence is the proof of facts and circumstances by direct evidence from which you may then infer related or connected facts which are reasonable and justified in the light of your experience from day-to-day life.” The court also charged the jury, “Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence.” It defined direct evidence as “the testimony given by a witness who has seen or heard the facts about which they testify.” Consequently, appellant’s second enumeration is without merit to the extent that it complains of the court’s failure to define direct and circumstantial evidence in its jury charge. That does not end the matter.

The State maintains that the evidence did not offer any reasonable hypothesis of innocence, because appellant’s argument that he was rendered less safe by the Benadryl rather than by the alcohol does not constitute a defense to the DUI charge under OCGA § 40-6-391 (b). The provision first states, “The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section.” The second part states that “such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.”

The court charged the jury on OCGA § 40-6-391 (b). However, as the court also charged, the question for jury determination was whether appellant was so affected by the alcohol that it was less safe for him to operate the vehicle than it would have been if he were not so affected by the alcohol. Consequently, it was a jury question as to whether evidence of appellant’s Benadryl use gave rise to a reasonable hypothesis save that of guilt of the crime charged under OCGA § 40-6-391 (a) (1). He was not charged with driving under the influence of any drug under OCGA § 40-6-391 (a) (2) or under the combined influence of alcohol and any drug under OCGA § 40-6-391 (a) (3). We are unable to say that this case is not close or doubtful as to whether the influence of alcohol rendered his driving less safe. Compare Johnson, supra; Langston, supra.

Judgment reversed.

Cooper, J., concurs. Smith, J., concurs specially.

Decided March 11, 1994.

Robert E. Andrews, for appellant.

David C. Turk III, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.

Smith, Judge,

concurring specially.

For the reasons stated in my dissent in Mims v. State, 209 Ga. App. 901 (434 SE2d 832) (1993), I believe this case is controlled by Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991). The State’s case here depended, at least in part, on circumstantial evidence, and defendant’s trial counsel requested a jury charge in the language of OCGA § 24-4-6. Under the circumstances presented here, the refusal to give such an instruction was error, and that error was not harmless.


author: Smith, Judge.

text:
    A93A2398.
    EPPERSON v. EPPERSON.
    (442 SE2d 12)
   Smith, Judge.

Appellee Robert J. Epperson sought and obtained in the probate court temporary guardianship over the person and property of his father, Verner Lee Epperson, due to advanced age and physical illness or disability. OCGA § 29-5-1 (a). The father appealed to the superior court for de novo review of the determination that he needed a guardian. OCGA §§ 5-3-2; 5-3-29. The superior court “affirmed” the probate court’s ruling, finding “by clear and convincing evidence that the respondent is incapacitated by reason of physical illness and disability to the extent that the respondent lacks sufficient capacity to make significant responsible decisions concerning himself, and that respondent is incapable of managing his estate, and that the appointment of a guardian is necessary because his property would be wasted or dissipated, and further because his property is needed for the support, care and well-being of the respondent.” Verner Epperson appeals to this court from that ruling. See OCGA §§ 29-5-11 (b); 5-6-35 (a) (1).

The evidence shows that Mr. Epperson, who was 79 at the time the superior court heard the case, has suffered two strokes in the past. After his second stroke, Robert Epperson testified that his father became unmanageable and that his mother could not take care of him. At that point Mr. Epperson was placed in Starcrest Nursing Home in Cartersville, Georgia, where he has resided ever since. Robert Epperson testified that prior to being admitted to Starcrest, his father drove an automobile contrary to doctor’s orders, and that he was “heavily on sleeping pills.” Verner Epperson’s son and wife both testified that they could not control him prior to the time he entered Star-crest. Robert Epperson confirmed that if his father were allowed to go home, his mother would have to move out due to the stress and potential for verbal abuse.

Valerie Boatright, director of nursing for Starcrest, confirmed that Mr. Epperson needed total assistance when he first arrived, but that he had been classified as a “minimal assist” for a year or longer. Boatright defined “minimal assist” as needing “supervision and some assistance at times.” She described Mr. Epperson as “very oriented” and lucid. She testified that “he can ambulate, he can walk, he can feed himself, he can dress himself, if he falls he can get up, if his shoe comes off he can put it back on, you know, he can dó all of those things, but I think he would need some supervision, and just like I said, he is in a nursing home and he is minimal assistance. He might need assistance with, you know, washing your back or stepping over something, you know, like a large step or something, he would need some assistance in that.” Boatright testified that, in her opinion, Mr. Epperson could return home with assistance.

Cathy Crabtree, charge nurse at Starcrest, testified that Mr. Epperson is alert, oriented, and cooperative. Crabtree also testified that in her opinion, Mr. Epperson should be discharged and allowed to go home once home assistance could be provided for him. When pressed, however, she conceded that such assistance would necessarily entail help with medication, bathing, paying bills, preparing meals, and transportation. The court inquired of Crabtree “whether or not [Mr. Epperson] could survive independently without any type of assistance.” Crabtree conceded that he could not.

Mr. Epperson also testified on his own behalf. He stated that he wanted to go home even if his wife moved out, because he “love[s] home,” and “like[s] to be at home.” Mr. Epperson also testified that prior to being admitted to Starcrest, he had lived at the same address since 1937. Mr. Epperson offered that if his wife stayed with him after he went home, he would “let her be boss,” and “do what she says do.”

Finally, Mr. Epperson relies upon the letter of a court-appointed psychologist, Dr. Isralsky, who concluded that Epperson is competent and able to manage his affairs. Dr. Isralsky also expressed the opinion that Mr. Epperson can be managed at home in a less restrictive environment, despite family concerns of potential abusiveness towards Mrs. Epperson if he returned home.

We find the record sufficient to support a finding by clear and convincing evidence that Mr. Epperson needs a guardian over his person and property. Mr. Epperson’s son testified that his effort to be named guardian was initiated by his father’s assertions to personnel at Starcrest that he was “leaving” and “going home.” Starcrest officials informed Robert Epperson that they did not have the power to keep him there if he wished to leave. Cathy Crabtree testified that Mr. Epperson could not survive on his own. The trial judge was authorized also to consider testimony that Mr. Epperson is “headstrong” and “always gets what he wants,” as well as testimony that Mr. Epperson has previously driven an automobile against doctor’s orders, and has abused sleeping pills in the past. This evidence is sufficient to support a finding by clear and convincing evidence that, because of advanced age and physical disability, and Mr. Epperson’s apparent lack of understanding of the “significant responsible decisions” he would otherwise need to make himself prior to leaving Starcrest in order to ensure his very survival, a guardian should be appointed over his person and property. OCGA §§ 29-5-1; 29-5-11. We find no error.

Decided March 11, 1994.

T. Neal Brunt, for appellant.

H. Boyd Pettit III, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A2421.
    GEE v. THE STATE.
    (442 SE2d 290)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery. He appeals from the judgment of conviction and sentence and the denial of his motion for new trial.

The evidence showed that on October 15, 1990, the Citizen’s Bank in Byromville was robbed of $38,000 by two armed men wearing baseball caps, gloves and masks. A stolen car used by the robbers was abandoned behind a house outside Byromville. The baseball caps worn by the robbers were discovered inside the house along with a pair of surgical gloves. The evidence revealed that at the house, the men met up with a third man who transported the robbers out of the area where they eventually made contact with two others involved in the robbery. Several days later, police searched an apartment in College Park pursuant to a warrant and discovered Marcus J. Winfield, later identified as one of the robbers; two others who assisted in the staging of the crime; $3,000 bound by dated Citizen’s Bank of ‘Byromville straps; loose straps from the bank; a Federal Reserve Sank strap which had been in the Citizen’s Bank’s vault and surgical gloves. Five persons, including appellant, were subsequently arrested and charged with armed robbery. A bank employee testified that the taller of the two men pointed a gun at her and ordered her to place her hands on the counter while the second man removed money from the vault. The employee positively identified appellant during the trial as the taller robber. Although appellant was wearing a ski mask at the time of the robbery, the employee testified that she remembered appellant’s “piercing” eyes. Another employee testified that one of the robbers was . approximately 5T1" to 6' in height and weighed 170-180 pounds, and the other man was approximately 5'6" and weighed approximately 150 pounds. Videotape from a surveillance camera which captured the entire robbery and still photographs made from the tape were introduced at trial. All five defendants were convicted of armed robbery. The shorter gunman was identified as Marcus J. Winfield. His conviction was affirmed by this court in Winfield v. State, 210 Ga. App. 849 (437 SE2d 849) (1993).

1. Appellant contends the trial court erred in refusing to grant a continuance due to his involuntary absence from the courtroom on the second day of the trial. Prior to the commencement of the trial on the second day, appellant’s counsel moved for a continuance on the ground that appellant was experiencing car trouble in Atlanta and would not be able to get back to court in Vienna, Georgia, until noon. The trial court denied the motion on the ground that appellant knew the trial would begin at 9:00 a.m. and had a duty to be present. Appellant did not arrive until 2:45 p.m., during the direct examination of the State’s sixth witness. The prosecutor moved for revocation of appellant’s bond which the court denied. Appellant’s counsel explained that appellant got a traffic ticket at 9:25 that morning in East Point, Georgia, for running a red light and driving with a suspended license. He was arrested and was further delayed because he had to arrange for bond. Appellant contends his absence was involuntary and he was prejudiced by the trial court’s refusal to grant a continuance because he was denied the right to be present when the State presented the majority of the evidence against him, including the testimony of the only witness who could identify him.

“Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial. [Cits.]” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). Appellant was free on bail, was over 100 miles away from Vienna at the time the trial commenced on the second day and failed to make sufficient arrangements to arrive in court on time; therefore, he waived his constitutional right to confrontation. Winfield, supra; Byrd, supra.

2. Appellant contends the evidence was insufficient to establish his guilt beyond a reasonable doubt. Appellant specifically questions the identification by the bank employee and the general quality of the videotape and photographs of the robbery. “ ‘Questions of the weight to be given evidence and to the credibility of witnesses are solely for the jury.’ [Cit.] The evidence was sufficient to enable a rational trier of fact to find [appellant] guilty beyond a reasonable doubt of the offense of which [he] was convicted. [Cits.]” Carroll v. State, 208 Ga. App. 316, 317 (1) (430 SE2d 649) (1993).

Decided March 11, 1994.

Wright & Hyman, G. Russell Wright, for appellant.

John C. Pridgen, District Attorney, for appellee.

3. Appellant enumerates as error the denial of his motion for new trial based on newly discovered evidence, specifically an admission by appellant’s half-brother that he, rather than appellant, committed the robbery. “A defendant seeking a new trial based on newly discovered evidence must satisfy the court as to six requirements, including that the evidence [has come to his knowledge since the trial and that it was not owing to the want of due diligence that he did not acquire it sooner]. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). ‘Failure to show one requirement is sufficient to deny a motion for a new trial.’ [Cit.]” Cofield v. State, 204 Ga. App. 776, 778-779 (2) (420 SE2d 597) (1992). In his appellate brief, appellant admits knowing of his brother’s alleged participation in the robbery at the time of his trial but not to the extent of the information contained in his brother’s affidavit which was admitted at the hearing on the motion for new trial. However, appellant was free on bond at the time of his trial, and there is no evidence of due diligence on the part of appellant in obtaining for trial further evidence of his brother’s involvement in the robbery. We find no error in the trial court’s denial of appellant’s motion for new trial on the basis of newly discovered evidence. See Clayton v. State, 203 Ga. App. 843 (4b) (418 SE2d 610) (1992).

Judgment affirmed.

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


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A0167.
    MERCIERS v. THE STATE.
    (444 SE2d 416)
   Andrews, Judge.

Merciers was convicted of violating the Georgia Controlled Substances Act and, as a first offender, was placed on five years probation. Two years later Merciers stipulated that he had violated the conditions of his first offender probation, appeared before the court for a hearing, and the court issued an order entitled “Amended Order to Conform Sentence upon Defendant’s Adjudication of Guilt,” which sentenced Merciers to confinement for two years. Here Merciers appeals.

Appeals from orders revoking probation must be made by application filed within 30 days of the date of the revocation order. See OCGA § 5-6-35 (a) (5); Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711) (1985); see also Anderson v. State, 177 Ga. App. 130, 131 (1) (338 SE2d 716) (1985) (physical precedent). Because no such application was filed in this case, the appeal must be dismissed for lack of jurisdiction.

Decided March 11, 1994.

Word & Flinn, T. Michael Flinn, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Jeffrey W. Hunt, Assistant District Attorneys, for appellee.

Case dismissed.

Johnson, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I reluctantly concur because of the decision in Dean v. State, 111 Ga. App. 123, 124 (1) (338 SE2d 711) (1985).

It is important to note, however, that this is not in actuality an appeal from an order of revocation of probation as covered by OCGA § 5-6-35 (a) (5). Appellant does not challenge the revocation, which occurred on June 8,1993. Instead, he complains about the subsequent order amending his sentence, which was entered on September 17. A direct appeal is the appropriate avenue to seek review.

That is true for another reason as well. Even if this were considered an appeal from the order of June 8, as amended September 17, the order of June 8 is more than a mere revocation of probation. It comprises an adjudication of guilt and sentence thereon. OCGA § 42-8-60. Prior to that time, defendant had not been convicted. Priest v. State, 261 Ga. 651 (409 SE2d 657) (1991). Thus it would be an appeal from the original conviction.

OCGA § 5-6-35 (a) (5) contemplates that permission first be obtained when only a probation revocation is at stake, defendant already having had opportunity for direct appeal of his conviction. Considering that the categories for which application must be made are relatively minor (subsection (6)), or some review has already been had (subsection (1)), or the appeal is not from the adjudication of the underlying dispute (subsection (4)), subsection (5) would not appear to contemplate revocations under the First Offender Act. This is in keeping with subsection (7), which covers denials of extraordinary motions for new trial “when separate from an original appeal.” As here, such appellants already had a right to appeal the adjudication of guilt. That was the case in Scriven v. State, 179 Ga. App. 513 (346 SE2d 906) (1986).


author: McMurray, Presiding Judge.

text:
    A94A0265.
    SIMS v. THE STATE.
    (442 SE2d 292)
   McMurray, Presiding Judge.

Defendant Sims appeals his conviction of the offense of enticing a child for indecent purposes. Held:

1. Defendant’s first enumeration of error questions the sufficiency of the evidence to authorize his conviction. The evidence stated in the light most favorable to upholding the verdict shows that defendant approached the nine-year-old female victim as she was waiting to get on a bus after school, chased her around the bus, and told her that he wanted her to go in the woods with him and conduct oral sodomy upon him. While defendant argued that there was no evidence of asportation, the requirement that this element of the crime be proven was satisfied by the evidence that defendant had chased the victim around the bus. Morris v. State, 179 Ga. App. 228, 229 (4) (345 SE2d 686). The evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of enticing a child for indecent purposes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant’s remaining enumeration of error complains of the admission of similar transaction evidence. The similar transaction involves a 13-year-old female who defendant approached after school, started chasing, and told to come to him. This young woman testified that she ran from defendant because she was frightened of him.

Defendant contends that the State failed to show a sufficient connection or similarity between the crime charged and the similar transaction. Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649). However, we find the two incidents to be sufficiently similar. In both incidents, defendant approached a young child on the street shortly after school hours and chased her when she withdrew. It is not necessary that the similar transaction involve conduct identical to that which is the basis of the prosecution. The test is not the number of similarities between the incidents, rather, similar transaction 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 man of criminal character. Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670); Gearin v. State, 208 Ga. App. 878, 882 (3) (432 SE2d 818); Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87); Blige v. State, 205 Ga. App. 133,134 (2) (421 SE2d 547).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided March 11, 1994.

Bates, Kelehear, Starr & Toland, Harlan M. Starr, for appellant.

Jack 0. Partain III, District Attorney, for appellee.


author: Beasley, Presiding Judge.

text:
    A92A1845.
    McKENNA et al. v. GRAY.
    (444 SE2d 417)
    Decided March 14, 1994.

      Heyman & Sizemore, William H. Major, William B. Brown, Robert B. Langstaff, for appellants.

      Thomas W. Malone, Lawrence J. Pond, for appellee.
   Beasley, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, McKenna v. Gray, 263 Ga. 753 (438 SE2d 901) (1994), the decision in McKenna v. Gray, 207 Ga. App. 444 (428 SE2d 370) (1993), is hereby vacated and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court for proceedings not inconsistent herewith.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1742.
    MARRET et al. v. SCOTT et al.
    (441 SE2d 902)
   Cooper, Judge.

This is the fourth appearance of this contract action before this court. See Scott v. Thompson, 193 Ga. App. 487 (388 SE2d 371) (1989), aff’d 260 Ga. 164 (393 SE2d 447); Scott v. Thompson, 201 Ga. App. 443 (411 SE2d 508) (1991); Scott v. Thompson, 202 Ga. App. 746 (415 SE2d 508) (1992). The case was initially filed against ten guarantors to enforce two promissory notes in the total principal amount of $250,000. The jury returned a verdict for plaintiffs against the ten guarantors in the principal amount plus interest and attorney fees; however, the trial court ordered a new trial based on the jury’s failure to determine the guarantors’ obligation under certain capital gains provisions. In the first appeal, this court affirmed the trial court’s grant of a new trial on the issues of capital gains, interest and attorney fees but held that a new trial was unnecessary on the issue of the principal amount of the notes. Scott, 193 Ga. App. at 488.

After receipt in the trial court of the remittitur but prior to entry of any judgment thereon, four of the ten guarantors entered into a “COVENANT NOT TO SUE AND NOT TO ENFORCE JUDGMENT” with plaintiffs, settling the claims against them in consideration of a payment of approximately $197,000. Thereafter, the trial court certified a judgment of $250,000 as final pursuant to OCGA § 9-11-54 (b) and a writ of fieri facias was issued against all guarantors. The six non-settling guarantors then moved the court to set aside the judgment on the grounds that the order did not delineate between joint and several and proportional liability and plaintiffs’ receipt of $197,000. As a consequence, the trial court entered an order, superseding its previous judgment, which established proportional liabilities as to all of the guarantors (“the November 26 judgment”).

Prior to the retrial, the six non-settling guarantors moved unsuccessfully for summary judgment on the ground that the Covenant not to Sue and Not to Enforce Judgment with the four settling guarantors amounted to a release of all remaining guarantors. On the eve of retrial, the four settling guarantors were voluntarily dismissed from the action, and the case proceeded against the six remaining guarantors. The second jury returned a special verdict in favor of guarantors, finding that the agreement amounted to a novation, composition and release of their liability as to the capital gains provision, interest and attorney fees. On appeal, however, the judgment rendered on that verdict was reversed because of evidentiary errors during the trial. Scott, 201 Ga. App. at 445.

During the third trial, the six guarantors again argued that plaintiffs’ agreement with four of the guarantors also released them. The trial court denied motions for directed verdict on this issue, and the jury returned a verdict for plaintiffs against each guarantor, apportioning liability. From the final proportional judgment entered only against the six remaining guarantors, appellants bring this appeal. Appellants are four of the six non-settling guarantors, and appellees are the original plaintiffs.

1. Appellants enumerate as error the denial of their motion for directed verdict on the issues of release, composition and novation and upon the theory that, as a matter of law, the agreement is a promise not to enforce a judgment rather than a covenant not to sue.

(a) Appellants contend that appellees’ acceptance of less than the total sum owed under the notes was a composition which discharged them as co-sureties on the notes. OCGA § 10-7-20 provides in part that the “release of or compounding with one surety shall discharge a cosurety.” “ ‘To “compound” ... is “to compromise, to effect a composition, to obtain discharge from a debt by the payment of a smaller sum.” ’ [Cit.]” Spencer v. Southtrust Bank &c., 208 Ga. App. 538, 539 (430 SE2d 853) (1993). However, in this case, each guarantor is a limited surety, liable only for a proportionate share of the underlying debt. Co-sureties within the meaning of OCGA § 10-7-20 are those who are “joint sureties ... to the same obligation.” (Emphasis supplied.) Black’s Law Dictionary (4th ed. 1951). Accord Daprano v. Sherwin-Williams Co., 166 Ga. App. 811, 812 (305 SE2d 655) (1983). Appellants here are concatenated limited sureties. The November 26 judgment established that the sum of their total individual liabilities equals the principal amounts of the notes, but no one surety is jointly liable with another for the same portion of the debt. As appellants are not jointly liable, they are not co-sureties within the meaning of OCGA § 10-7-20 and so were not discharged by the settlement agreement entered into by appellees with fewer than all of the limited guarantors.

(b) Appellants urge that the settlement agreement, entered into without their knowledge and consent, amounted to a novation which released them as sureties. “Any change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him.” OCGA § 10-7-21. However, because appellants are not jointly liable for the same portions of the total debt to appellees, any novation by virtue of the settlement agreement would not operate to release them from their own individual limited liabilities. “We are well aware of the long standing rule urged by [appellants]. . . . This rule is based on the rationale that such a release causes injury or impairment to the obligation of the co-maker or co-guarantor. The injury generally arises because the co-guarantor is both jointly and severally liable on the entire note. In the instant case we have a different situation. Although the note in question is jointly guaranteed, each guarantor has specifically limited his liability thereon to his own interest. Under these circumstances, there can be no injury to [appellants] by the [settlement with the covenantees as to their own individual proportionate liability].” (Indention omitted; emphasis supplied in part.) Holcombe v. Eng, 163 Ga. App. 343, 344 (294 SE2d 568) (1982). The trial court did not err in denying appellants’ motion for directed verdict on the grounds of composition or novation.

(c) Appellants contend that the agreement is a promise not to enforce a judgment rather than a covenant not to sue. “ ‘A covenant not to sue is not a release, but it is to be distinguished from a release, and the distinction, although technical or artificial, is clear. The difference is one of intent and grows out of the construction placed on the terms of the instrument, since a covenant not to sue is not a present abandonment or relinquishment of a right or claim but merely an agreement not to enforce an existing cause of action, and, although it may operate as a release between the parties to the agreements, it will not release a claim against joint obligors. . . .’ [Cit.]” (Emphasis supplied.) Mercantile Nat. Bank v. Founders Life Assur. Co. of Fla., 236 Ga. 71, 73 (1) (222 SE2d 368) (1976). See also Crim v. Jones, 204 Ga. App. 289, 291 (419 SE2d 130) (1992). On the other hand, OCGA § 9-13-74 provides: “An agreement for a valuable consideration never to enforce a judgment or execution shall release the judgment or execution.” (Emphasis supplied.) Appellants rely on Weems v. Freeman, 234 Ga. 575 (216 SE2d 774) (1975) for the proposition that the agreement must be construed as an agreement never to enforce a judgment.

In Weems, during the pendency of an action for nuisance and trespass, two of three alleged joint tortfeasors agreed to settle with the plaintiff upon payment of specified sums. They were not dismissed from the pending litigation; rather judgment against all tortfeasors would be pursued, but it was agreed that only the non-settling defendant would be obligated thereunder and only for a one-third share of the judgment. Although the agreement was captioned as a covenant not to sue, the Georgia Supreme Court concluded that in substance the agreement was a promise never to enforce the judgment against the settling joint tortfeasors, which released that non-settling joint tortfeasor. Recognizing that a valid covenant not to sue may be entered into during the pendency of litigation, the Weems court went on to hold: “it is a non sequitur to claim that there is a covenant not to sue and yet at the same time continue the action [to judgment] against those who are parties to the agreement. This type settlement is in reality an agreement not to enforce the judgment against any defendant who is a party to the agreement.” Id. at 576-577. Although the uncodified common law rule of releases as applied in Weems has been overruled in Georgia in the context of a tort action (see Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987); Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992)), the analysis remains viable in the context of a contract action against joint obligors or joint guarantors. See J & S Properties v. Sterling, 192 Ga. App. 181, 183 (384 SE2d 194) (1989) (Deen, P. J., and Ben-ham, J., concurring specially). Nevertheless, we find Weems to be distinguishable in material respects.

“ ‘ Weems v. Freeman does not stand for the proposition that an otherwise valid covenant not to sue automatically becomes a general release in the mere event that a suit is subsequently instituted jointly against the covenantees and others.’ ” (Emphasis in original.) Revis v. Forsyth County Hosp. Auth., 170 Ga. App. 366, 370 (317 SE2d 237) (1984). “It is obvious that the ultimate holding of Weems v. Freeman is premised upon: (1) The continuation of litigation against all defendants after a purported covenant not to sue has been executed in favor of some defendants; and (2) the eventual rendering of an ostensibly valid judgment against all defendants, which judgment would in fact be unenforceable as against those who are covenantees. It is only in those circumstances that a purported original covenant not to sue becomes, in effect, an agreement not to enforce a judgment pursuant to OCGA § 9-13-74.” (Emphasis supplied in part.) Bevill v. North Bros. Co., 168 Ga. App. 97, 100 (2) (308 SE2d 215) (1983). Here, unlike in Weems, the settling guarantors were dismissed from the action before retrial, and the final judgment was not entered against them. Accordingly, no existing judgment, pursuant to which both appellants and the settling guarantors were joint debtors, has been extinguished by the settlement agreement, regardless of its ultimate characterization as a mere covenant not to sue or as a promise never to enforce a judgment. See Moore v. Smith, 78 Ga. App. 49, 53 (1) (50 SE2d 219) (1948). Although the body of the agreement recites that appellee-covenantors “will not enforce any judgment” against the covenantees, it also expressly states that the covenantors have not accepted payment in complete satisfaction and that it is not intended as a release, and further expressly retains the right to pursue the remaining non-settling guarantors, identifying them by name. These circumstances are evidence of an intent to enter into a covenant not to sue. Weems, supra at 576.

“ ‘The primary consideration in the construction of such instruments is whether they show an intention on the part of the [creditor] to acknowledge a full satisfaction of his damage and injury, and so to relinquish the cause of action and extinguish the liability of all persons involved ... , or whether they show an intention only to accept a satisfaction of a part of the claim. And the intention of the parties, as shown by the instrument, will be given effect regardless of what the parties may call the instrument.’ [Cit.]” Bevill, supra at 98. See also OCGA § 13-2-3. As the language employed in the agreement is contradictory, in some respect, even after application of the rules of contract construction, the trial court correctly denied appellants’ motion for directed verdict and submitted to the jury the question of the true intent of the contracting parties to this settlement agreement. See generally Robert Half of Atlanta v. Diversitech Corp., 208 Ga. App. 427, 428 (430 SE2d 800) (1993).

2. Appellants further contend that they are entitled to a pro tanto reduction in the $250,000 judgment against them for the amounts received in settlement. This argument is rendered moot by the entry of the November 26 judgment, which superseded the court’s previous joint and several judgment, so as to establish a limited proportional liability for each guarantor. See Moore, supra at 53 (1).

Judgment affirmed.

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

Decided March 14, 1994.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Mark A. Johnson, for appellants.

Stevens & Associates, Ronald S. Stevens, for appellees.


text:
    A93A1838, A93A1839.
    HASSELL v. THE STATE (two cases).
    (442 SE2d 261)
   Andrews, Judge.

Hassell was charged by accusation and tried by a jury for driving under the influence of alcohol, reckless driving, attempting to elude an officer, and failure to render aid. He was convicted of the first three offenses and acquitted of the last.

Case No. A93A1838

1. The accusation originally filed contained five counts. Numerous general and special demurrers were filed concerning this document and, on November 3, during pretrial hearings on various motions, the assistant solicitor announced the filing of an amended accusation pursuant to OCGA § 17-7-71 (f). The fifth count was dropped, the name of the street was omitted from the reckless driving count, and a change was made in the count of which Hassell was acquitted. These changes were effected by obliterating the omitted items on the originally filed accusation and copying it by xerographic means without retyping it. The signature line bore the typed name of the solicitor beneath it and the original had been signed with his name by “SLM.”

After the jury was impanelled and sworn on November 9, counsel made his motion asserting a special demurrer and his right to discharge and acquittal based on the lack of an original amended accusation and the fact that the solicitor did not personally sign it. The motion was denied by written order the next day and Hassell filed his direct notice of appeal that same afternoon, resulting in this appeal.

This issue is not properly addressed by direct appeal and the trial court, in the exercise of its discretion, refused to issue a certificate of immediate review. See Reed v. State, 205 Ga. App. 209, 210-211 (422 SE2d 15) (1992). Therefore, the appeal in Case No. A93A1838 must be dismissed. Ivey v. State, 210 Ga. App. 782 (437 SE2d 810) (1993).

Case No. A93A1839

2. The first enumeration in the direct appeal of the judgment entered on the jury’s verdict is that the court erred in denying the general demurrers filed regarding the reckless driving and attempting to elude counts.

These two counts charged Hassell “with the offense of RECKLESS DRIVING, a misdemeanor, for that said accused, in the county of Cobb, on the 16th day of June, 1992, did operate a motor vehicle in a reckless manner with total disregard for the Safety of persons and property”; and that he “did willfully fail and refuse to bring his vehicle to a stop when given a visual signal of blue lights and an audible signal of siren to bring his vehicle to a stop, said signals being given by P. S. Hines, a uniformed police officer in an official police vehicle.”

“ ‘The true test of the sufficiency of an indictment that will withstand a general demurrer is laid down by Judge Bleckley ... as follows: “if all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.” ’ [Cit.]” Gower v. State, 71 Ga. App. 127, 128 (1) (30 SE2d 298) (1944). See Drewry v. State, 201 Ga. App. 674 (1a) (411 SE2d 898) (1991).

The accusation, taken as a whole; was sufficient. Reed, supra; Staples v. State, 199 Ga. App. 551, 552, n. 1 (405 SE2d 551) (1991).

3. Four of the remaining enumerations require consideration of the evidence. Viewed in favor of the verdict, the evidence showed that, at approximately 4:00 a.m. on June 16, 1992, two marked police cars and a paddy wagon were parked at a gas station near the Windy Hill exit to 1-75. The five officers had just finished another call.

Officer Hines was sitting in his patrol car facing the street when he and other officers heard the squeal of tires and saw a blue 1989 Grand Prix do a near 180-degree spin in the intersection of Windy Hill and the expressway ramp and then proceed north up 1-75. As soon as Officer Zunde got in the car with Hines, pursuit began. Hines immediately activated the flashing headlights and blue lights of his patrol car. There was very little traffic and Hines saw the car about a half mile ahead and estimated the speed at more than 80 mph. The next exit was Delk Road and the Grand Prix, followed by Hines’ car, exited. While on the ramp, Hines activated the siren. The Delk Road exit has a sharp turn to the right, which Hassell was unable to execute.

Davis, on his way to work, was in the westbound lane leaving the traffic signal at the top of the ramp when he saw a car being chased by police cars come up the eastbound ramp at a high rate of speed, go through the adjacent grass strip after missing the curve and hitting a metal sign, jump the six-inch concrete median, and become airborne. As Davis hit his brakes, the car landed in front of his pickup and spun out, striking his truck in the front and spinning it around. The car, now facing eastbound in the westbound lane of Delk Road, continued to move, crossed back over the median and continued down Delk Road. Davis saw the flashing lights and heard the sirens.

Hines and Zunde came up the ramp and saw Hassell as he crossed the median for the second time. The car, which had three flat tires and was leaking either oil or transmission fluid, proceeded about a half mile before it stopped. Neither Hines nor Zunde noticed any brake lights come on when the car stopped. The car’s left side and right front were badly dented and the driver’s side window was shattered.

The officers, with weapons drawn due to suspicious movements by Hassell in the car, approached as Hassell got out the passenger’s door. He was stumbling and holding on to the car for support. He had a graze on his nose and a quarter-inch cut over his left eye. There was a strong odor of alcoholic beverage about him and several beer containers, some full and some empty, were on the floorboard.

(a) There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime of attempting to elude an officer, there is no merit to the third enumeration. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

(b) Hassell, although he denied making the statement, filed a motion in limine to exclude Hines’ testimony that Hassell responded affirmatively to Hines’ question of whether he had driven “drunk” all the way from Alabama.

Pretermitting the issue of whether Hassell was in custody at the time the question was asked, there is no question of the “voluntariness” of the answer given, only a difference of opinion as to the nature of the question. Therefore, any failure to give Miranda warnings was harmless as a matter of law. Arizona v. Fulminante, 499 U. S. 279 (111 SC 1246, 113 LE2d 302) (1991).

(c) Hassell testified and acknowledged that he had driven from Alabama and had consumed at least two beers before and during the trip as well as having at least three bourbon and Cokes at a lounge before attempting to drive back to a hotel on Delk Road. He enumerates as error the court’s allowing into evidence his refusal to take the state-administered breath test.

He contends that he wanted medical treatment first and would have been willing to take the test after treatment. He acknowledges, however, that he was read the warnings and, at that time, he declined. He contends, however, that he was injured and shaken by the accident and was, therefore, incapable of refusing.

“Even if, as appellant seems to allege, he was unconscious or semi-conscious, and thereby incapable of refusing to consent to the test, the results of the test were nevertheless admissible. OCGA § 40-5-55 (b); Rogers v. State, [180 Ga. App. 310 (348 SE2d 888) (1986)]; Rogers v. State, 163 Ga. App. 641, 643 (1) (295 SE2d 140) (1982).” Holmes v. State, 180 Ga. App. 787, 788 (1) (350 SE2d 497) (1986). Lankford v. State, 204 Ga. App. 405, 406 (1) (419 SE2d 498) (1992).

Any factual disputes regarding the giving of the warning and the lack of consent were for resolution by the trial court. Holmes, supra.

(d) The seventh enumeration alleges that the court erred in allowing introduction of the field sobriety tests administered by the officers before placing Hassell under arrest.

The pre-trial motion concerning the field sobriety tests and the objection voiced at trial and here is that the tests administered lacked an adequate scientific basis or foundation.

The court did not allow the introduction of the Horizontal Gaze Nystagmus Test, so we need not consider that, even though this court has concluded admission of such evidence is not error. Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992).

Hassell was also asked to stand on one leg for 30 seconds and to repeat the alphabet. He was unable to complete either test. He was also administered the alco-sensor test, which registered positive for presence of alcohol.

These tests were admissible and not subject to the objections raised. See Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982); Manley, supra.

4. Hassell complains of the admission of a similar crime, contending that there was insufficient similarity with the charged crime.

Prior to trial, the notice and hearing required by USCR 31.3 (B) were provided. At trial, the officer involved in the 1990 incident testified that on August 1, 1990, he was patrolling in Cobb County in a marked police car when he noticed a small sports car approaching his vehicle at a high rate of speed. It was approximately 2:30 a.m. He clocked the car on his radar and made a U-turn to pursue the 1990 red 280ZX. He activated his lights and siren and pursued the car at speeds of over 100 mph. The car did not slow down and the officer momentarily lost sight of it. As he came around a curve, he saw a red 280ZX parked by the roadside with two men standing by it. He stopped and learned that Hassell owned the car and had been driving. Hassell smelled of alcoholic beverage, had slurred speech, watery eyes, and failed the field sobriety tests.

Decided March 1, 1994

Reconsideration denied March 15, 1994

William C. Head, for appellant.

Ben F. Smith, Jr., Solicitor, Mary L. Kendall, Barry E. Morgan, Assistant Solicitors, for appellee.

The evidence was admissible and the court properly instructed the jury as to its limited purpose. Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992); Lankford, supra at 408 (5).

5. While Hassell complains that he was not afforded adequate discovery, he was afforded all pretrial discovery afforded by the statutes of this state and the trial court conducted an in camera review of the prosecutor’s file and concluded there was no exculpatory material. There was no error.

Appeal dismissed in Case No. A93A1838. Judgment affirmed in Case No. A93A1839.

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

       We note that the trial court’s order fully and correctly addressed the merits and properly denied the special demurrer and motion for discharge and acquittal. E.g., Ivey, supra; Gibson v. State, 187 Ga. App. 769 (1) (371 SE2d 413) (1988); Hillman v. State, 67 Ga. App. 292 (20 SE2d 91) (1942).

       Hassell acknowledged affirmatively answering the question of whether he had driven all the way from Alabama.


author: Blackburn, Judge.

text:
    A91A2022, A91A2023.
    DEPARTMENT OF CORRECTIONS v. FINNEY; and vice versa.
    (442 SE2d 13)
   Blackburn, Judge.

Shirley Finney successfully pursed a claim of racial discrimination in a disciplinary action against the Georgia Department of Corrections before the Georgia Office of Fair Employment Practices (OFEP) under the Fair Employment Practices Act, OCGA § 45-19-20 et seq. After the administrative hearing before a special master, Finney was awarded reinstatement, back pay, and reasonable attorney fees, notwithstanding the fact that Finney did not incur any attorney fees because her attorney had been provided by OFEP. On appeal, the Superior Court of Baldwin County affirmed the decision of the special master. Thereafter, we granted the Department of Corrections’ application for discretionary appeal.

In Dept. of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992), we held that the special master’s award of attorney fees to Finney was inappropriate because Finney’s attorney was provided by OFEP at its expense and at no charge to Finney. Based upon this holding, we did hot address the issue raised by Finney in her cross-appeal that she was entitled to attorney fees under OCGA § 45-19-39 (c) because we concluded that the issue was moot.

The Supreme Court granted Finney’s petition for writ of certiorari, and in Finney v. Dept. of Corrections, 263 Ga. 301 (434 SE2d 45) (1993), the three-justice plurality held that under the Fair Employment Practices Act, attorney fees are not authorized for the special master proceeding where fees are not incurred by the successful complainant. In so holding, the Court relied upon OCGA § 45-19-38 (d), which specifically limits any monetary award to the actual damages incurred by the complainant. The plurality, however, remanded the case to this court for a determination of whether Finney may be eligible for attorney fees under OCGA § 45-19-39 (c) for judicial review of the special master’s award, and if so, whether the superior court erred in failing to make such an award of attorney fees, inasmuch as these issues were not addressed by this court earlier. The court recognized that Finney’s entitlement to a recovery under OCGA § 45-19-39 (c) is a separate and distinct issue from her entitlement to a recovery of fees in the special master proceeding.

“OCGA § 45-19-39 (c) provides that ‘(i)f, upon judicial review of any order of a special master . . . , the court rules in favor of the complainant, then the court may in its discretion render an award of reasonable attorney’s fees and costs of litigation in the superior court to the complainant.’ ” (Emphasis supplied.) Bd. of Regents v. Moore, 210 Ga. App. 623, 624 (436 SE2d 789) (1993). Recently, in Robinson v. Dept. of Corrections, 211 Ga. App. 134 (438 SE2d 190) (1993), we remanded the case to the trial court for an exercise of its discretion under this Code section, because the court denied the complainant’s request for attorney fees based upon our decision in Finney. However, as the Robinson court noted, OFEP’s compensation for a complainant’s attorney under the Fair Employment Practices Act is limited to special master’s proceedings. See OCGA § 45-19-27 (3).

In the case sub judice, as in Robinson, although the trial court ruled in favor of Finney on the Department of Corrections’ appeal of the order of the special master, the trial court failed to exercise its discretion to determine whether Finney was entitled to attorney fees for this review pursuant to OCGA § 45-19-39 (c). Consequently, the case is remanded to the trial court for the exercise of its discretion in accordance with that Code section.

Case remanded with direction.

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

Decided March 15, 1994.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellant.

Stroup & Coleman, Robert H. Stroup, for appellee.


text:
    A93A1922.
    YATES v. TRUST COMPANY BANK OF MIDDLE GEORGIA.
    (442 SE2d 293)
   Cooper, Judge.

Appellant sued appellee to recover for the alleged conversion of her funds after appellee exercised its right of set-off and redeemed a savings certificate owned by appellant to satisfy a loan owed by appellant’s son. Appellant appeals from the trial court’s order granting appellee’s motion for judgment on the pleadings for failure to state a claim upon which relief can be granted. OCGA § 9-11-12 (b) (6).

“ ‘For the purposes of the [motion for judgment on the pleadings], all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.’ . . . [Cits.]” ALW Marketing Corp. v. McKenney, 205 Ga. App. 184, 186 (1) (421 SE2d 565) (1992).

Under this standard, the pleadings show that on January 11, 1985, appellant obtained a savings certificate from appellee in the amount of $10,000 bearing an interest rate of 9.50 percent per annum. Terry Yates, appellant’s son, was also listed as a co-owner of the savings certificate. The savings certificate contained an automatic renewal provision under which the certificate would renew at the prevailing interest rate every 18 months. The certificate automatically renewed three times between January 11, 1988 and January 11, 1991, and each time appellee paid the accrued interest. The next scheduled renewal date was July 11, 1992; however, exercising its right of set-off as provided in the savings certificate, on July 3, 1992, appellee redeemed the savings certificate to satisfy an automobile loan which was in default and owed by Terry Yates to appellee. The savings certificate contains the following set-off provision: “RIGHT OF SET OFF: Issuer may at any time set off against this Certificate any obligation owed to it by one or more of the registered holders.” Appellant alleged that she never signed the savings certificate or any other document obligating her to pay Terry Yates’ debts. She charged that appellee’s set-off against the savings certificate for the obligation of someone other than herself constituted a conversion of property and a wilful, wanton and malicious disregard of her property interest in the savings certificate. Appellant seeks a sum equal to the face amount of the savings certificate, all accrued interest, including the interest which would have accrued on July 11, 1992, and punitive damages.

At the core of appellant’s complaint and her four enumerations of error is the premise that she is the 100 percent owner of the funds on deposit and the right of set-off is an illegal contract to which she never agreed which obligates her to answer for the debt of her son. However, to the contrary, this case is controlled by Simpson v. Ga. State Bank, 159 Ga. App. 310 (283 SE2d 278) (1981).

“[I]f a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the account in which the party has ... a present right of withdrawal. The amount of the account subject to setoff is that proportion to which the debtor is . . . beneficially entitled and, in the absence of proof of net contributions, an equal share with all parties having present rights of withdrawal.” OCGA § 7-1-821. The pleadings show that appellant supplied all of the funds which comprised the account, and Terry Yates had no beneficial entitlement. “However, the right to set-off as shown in [OCGA § 7-1-821], supra, is also ‘subject to any contractual provision,’ and the contract here by and between the parties authorized the bank ‘to [setoff against this Certificate any obligation owed to it by any one or more of the registered holders. It provides further that if the Certificate is issued in the name of more than one individual, it shall be deemed to be issued to them as joint tenants with the right of survivorship and not as tenants in common].’ . . . Under the above set of circumstances, even through the debtor ([Terry Yates]) was not beneficially entitled to any of the funds, the financial institution ([appellee]) had a right of set off under the contractual provisions shown above. [Cit.]” Simpson, supra at 313 (1).

Appellant attempts to distinguish Simpson from the instant case on the basis that the plaintiff in Simpson signed the depositor’s contract which contained the set-off provision; however, she never signed the savings certificate. Therefore, the set-off provision is unenforceable, citing the statute of frauds. This contention is wholly without merit. Moreover, we note that while making this argument, appellant concedes that the savings certificate created a contract between the parties, even though the certificate does not bear her signature. See generally Spurlock v. Commercial Banking Co., 138 Ga. App. 892, 900 (227 SE2d 790) (1976). In fact, a portion of the relief appellant seeks in this case is the payment of accrued interest as provided in the savings certificate. In addition, examination of the certificate reveals that it is a standard form which only allows for one “Authorized Signature,” which in this case appears to be the signature of a bank official. In our view, appellant is estopped to deny the existence of a contract as it appears that at every renewal term, appellee paid the accrued interest and renewed the certificate of deposit under the “Automatic Renewal” provision of the same savings certificate, and each time appellant accepted payment of the accrued interest. The set-off provision is but another contractual provision of the savings certificate. At this juncture, appellant cannot be heard to argue that she is not bound by this particular provision, which has always been a part of the contract, because it does not bear her signature. Furthermore, the bank’s renewal of the certificate, payment of accrued interest and appellant’s acceptance of the interest constituted either full performance or part performance which takes the contract out of the operation of the statute of frauds. See OCGA § 13-5-31. “If one of the parties has not signed, his acceptance is inferred from a performance under the contract, in part or in full, and he becomes bound. . . . Written signature to a contract is to afford mutuality, but is not the only method of obtaining mutuality. Part performance by both parties satisfies the requisites of mutuality and the statute of frauds.” (Citations and punctuation omitted.) Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237, 240 (3) (421 SE2d 773) (1992).

We also reject appellant’s contention that the set-off provision is a guaranty or created an obligation for her to answer for her son’s debt. “The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal, the principal in either instance remaining bound therefor. Sureties, including those formerly called guarantors, are jointly and severally liable with their principal unless the contract provides otherwise.” OCGA § 10-7-1. There is no language in the savings certificate that would make appellant personally liable, as a guarantor, for her son’s debts. Furthermore, as appellee correctly points out, prior to the default, appellant had an absolute right to withdraw all of the funds from the bank and had she done so or if the proceeds of the certificate of deposit were insufficient to pay Terry Yates’ debts by set-off, appellee would have absolutely no claim against appellant, personally and individually, to satisfy Terry Yates’ obligation to appellee.

We find no error in the court’s grant of appellee’s motion for judgment on the pleadings for failure to state a claim upon which relief can be granted.

Judgment affirmed.

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

Decided March 15, 1994.

Adams & Hemingway, Ward Stone, Jr., Gregory G. Schultz, for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., H. J. Strickland, Jr., for appellee.


text:
    A93A2341.
    KLEBER v. COBB COUNTY.
    (442 SE2d 296)
   Cooper, Judge.

Appellant Ronald Kleber appeals from the trial court’s order dismissing his appeal from a contempt order for failing to file the transcript of the contempt hearing in a timely manner.

Appellant owns real property in Cobb County, Georgia, zoned single-family residential, which he uses for the storage and restoration of inoperative automobiles. Appellee Cobb County filed a petition for an injunction against appellant seeking to remove four junk vehicles from his property. In July 1990, the trial court issued an order directing appellant to bring his property into compliance with Cobb County’s junk car ordinance by removing the four vehicles. When appellant failed to comply, appellee filed a citation for contempt and both parties entered into a consent order providing that appellant would apply for a land-use permit to store and repair junk vehicles on his property. The Board of Commissioners rejected appellant’s application for the permit and he was given 60 days to bring his property into compliance with the junk car ordinance. When appellant failed to comply, appellee filed another petition for contempt. In November 1991, the trial court issued a final order, finding appellant was no longer entitled to legal non-conforming use status and permanently enjoining appellant from using the property for the purpose of parking and restoring non-compliance vehicles.

Appellee then filed the instant petition for contempt. After a hearing, the trial court, on October 6, 1992, issued an order finding appellant in wilful contempt of the court’s July 1990 and November 1991 orders and ordering him incarcerated until he complied with the court’s orders. Appellant filed a notice of appeal the same day. In May 1993, the trial court granted appellee’s motion to dismiss the appeal on the ground there had been an unreasonable and inexcusable delay in filing the hearing transcript. This appeal followed.

1. Appellee has moved to transfer this case to the Supreme Court on the ground it is an equity case because appellant is seeking reversal of the order holding him in contempt for violating the permanent injunctions issued in the earlier cases. “Whether an action is an equity case . . . depends upon the issue raised on appeal, not upon how the case is styled nor upon the kinds of relief which may be sought by the complaint.” (Emphasis in original.) Beauchamp v. Knight, 261 Ga. 608, 609 (2) (409 SE2d 208) (1991). The issue on appeal is whether the trial court erred in dismissing appellant’s appeal from the contempt order for failing to file the transcript in a timely manner — an issue of law. Accordingly, jurisdiction over this case lies in this court, and appellee’s motion to transfer is denied. See Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

2. Appellant argues the trial court abused its discretion in dismissing the appeal because counsel’s failure to file the hearing transcript was not unreasonable nor inexcusable. As noted above, counsel for appellant filed a timely notice of appeal on October 6, 1992. In support of its motion to dismiss the appeal, appellee submitted an affidavit of the court reporter that, as of April 7, 1993, neither appellant nor his attorney had ordered the transcript nor paid its cost. Appellant’s counsel, however, testified by affidavit that he recalled telling his secretary in late November 1992 to order the transcript from the court reporter, secure an estimate of its cost, and determine when it would be ready. He did not know preparation of the transcript was conditioned on payment in advance, and he paid promptly when apprised of this. The record reveals that appellant’s counsel did file a request for an extension of time to file the transcript on December 21, 1992; however, it was never ruled upon by the trial court. Appellant’s counsel’s secretary testified by affidavit that she left a message on the court reporter’s answering machine in mid-December requesting the transcript, an estimate of its cost, and when it would be ready. The court reporter called back during the secretary’s lunch hour and left a message as to the cost and that the transcript would not be available until January. Appellant also submitted an affidavit of the court reporter stating that she did recall a conversation with someone from appellant’s counsel’s office about the transcript in November 1992. The court reporter also stated that by May 14,1993, appellant’s counsel had ordered the transcript and paid a deposit for it.

“A trial court has the authority to dismiss an appeal ‘where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.’ OCGA § 5-6-48 (c).” A. Roberts Corp. v. Roberts, 207 Ga. App. 663, 664 (428 SE2d 671) (1993). “The trial court has a very broad discretion in deciding whether or not to dismiss for delay. [Cits.]” Barmore v. Himebaugh, 205 Ga. App. 381, 382 (2) (422 SE2d 255) (1992).

The evidence supports the trial court’s determination that appellant’s counsel did not actually order the transcript from the court reporter until May 1993, seven months after the filing of the notice of appeal, and that appellant offered no reason for such delay which was unreasonable and inexcusable. Moreover, even if we were to assume that counsel’s secretary did request the transcript in mid-December, which was already after expiration of the time for filing the transcript, the evidence reveals that appellant’s counsel “took no further action to assure that it was prepared and filed until after” appellee had moved to dismiss the appeal five months later. Dept. of Human Resources v. Patillo, 196 Ga. App. 778 (397 SE2d 47) (1990) (dismissal upheld where counsel requested transcript but made no inquiry as to its status for four months).

While appellant argues that it was the trial court’s responsibility to rule on his request for an extension of time, the trial court did not dismiss the appeal because of appellant’s failure to obtain an extension, but due to his unreasonable delay in filing the transcript. Furthermore, the mere fact that appellant filed a motion for an extension did not deprive the trial court of its dismissal authority since it is within the trial court’s discretion to grant such an extension. See Hooper v. Southern Bell Tel. &c. Co., 195 Ga. App. 629 (1) (394 SE2d 798) (1990). Moreover, appellant’s request for an extension was untimely as it was filed after expiration of the 30-day period for filing the transcript. OCGA §§ 5-6-39 (d); 5-6-42; see also Hooper, supra at 630. For the foregoing reasons, we find no abuse of discretion in the trial court’s dismissal of appellant’s appeal based on appellant’s unreasonable and inexcusable delay in ordering the transcript.

3. Appellant also argues that the contempt order in this case and the injunction orders and contempt orders issued against him in the other three cases concerning his violation of the junk car ordinance are void because he was not properly served in the original injunction action. We first note that appellant’s notice of appeal in this case appealed only the trial court’s order dismissing his appeal from the contempt order. In any event, we do not have the underlying contempt order before us for review since the trial court has dismissed the appeal from that order and our review of this case is confined to the propriety of the trial court’s dismissal of that appeal. See Minor v. Minor, 173 Ga. App. 428 (327 SE2d 229) (1985). Appellant, however, seeks to have this court review in this appeal not only the contempt order in this case, but judgments against him in three prior cases, none of which are before this court in the instant appeal. Clearly, this court lacks jurisdiction to review the judgments in those cases since appellant has not filed a proper notice of appeal from those orders. See Banks v. Green, 205 Ga. App. 589 (423 SE2d 31) (1992).

Decided March 15, 1994.

Daniel L. Britt, Ted B. Herbert, for appellant.

Bentley, Bentley & Bentley, Fred D. Bentley, Sr., W. Anthony Moss, for appellee.

Moreover, appellant first raised the issue of insufficiency of service of process in the original injunction action when he obtained new counsel who, in June 1993, filed a motion to set aside both the contempt order in this case and the orders issued against appellant in the three prior cases on the ground of improper service in the original action. The trial court has not yet ruled on the motion to set aside, apparently because of the pendency of the instant appeal. Thus, there is nothing for this court to review at the present time since the motion to set aside has not yet been decided and the contempt order itself is not before this court for review. Appellant may seek to appeal this issue once the trial court has ruled on his motion to set aside. See OCGA § 5-6-35 (a) (8).

Judgment affirmed.

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

       It should be noted that appellant acknowledged in his answer that he was properly served in the instant case.


text:
    A93A2590.
    DARBY et al. v. MATHIS et al.
    (441 SE2d 905)
   Smith, Judge.

Billy Darby was injured when he was struck by a vehicle operated by Mark Mathis. He and his wife brought an action against Mathis and served Southern Guaranty Insurance Company, as their uninsured motorist insurance carrier, with a copy of the complaint pursuant to OCGA § 33-7-11 (d). Southern Guaranty answered in its own name and cross-claimed against Mathis for any sums required to be paid under its uninsured motorist coverage. The Darbys previously had executed a general release in favor of Stacey Ann Mathis, Mark D. Mathis, and Atlanta Casualty Company, Mathis’s liability insurance carrier, in exchange for $15,000. Mathis and Southern Guaranty each moved for summary judgment on the basis of this release, and their motions were granted by the trial court.

1. The Darbys first contend the trial court erred in granting summary judgment to Mathis on the basis of the general release, asserting that the release applied only to Mathis’s negligence and not to any wilful or intentional act on his part. This contention is without merit. “A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general. The cardinal rule of construction is to determine the intention of the parties. But no construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Hopkins v. Hopkins, 186 Ga. App. 530, 531 (367 SE2d 825) (1988).

The Darbys released “any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from a[n] auto accident which happened on or about the 16th day of November, 1990 at or near Duluth, Ga.” The wording of this release applies by its terms not to negligence, which is never expressly mentioned, but to “any and all claims, demands, rights, and causes of action of whatsoever kind or nature.” Had the Darbys wished to make a partial or pro tanto settlement on negligence claims alone, reserving a claim or cause of action against Mathis for alleged intentional or wilful torts, an express declaration to that effect could have been made in the release. See, e.g., Wiggins v. Dyer, 178 Ga. App. 593, 594 (2) (344 SE2d 264) (1986). No such reservation having been made, the plain and unambiguous language of the release controls, and any and all causes of action the Darbys may have had against Mathis are barred. The trial court did not err in granting summary judgment to Mathis.

2. The Darbys also contend that the trial court erred in granting summary judgment in favor of their uninsured motorist carrier on the issue of liability. The courts of this state have not addressed the precise issue presented: whether a general release in favor of an underinsured tortfeasor and his liability carrier, given in exchange for a settlement, operates to bar the injured party from further recovery against his uninsured motorist coverage.

However, some established general principles of Georgia law apply. “[U]nder the provisions of both the Georgia Uninsured Motorist Act (OCGA § 33-7-11) and appellant’s own automobile insurance policy, the insurer was obligated only to pay the insured all sums which the insured shall be ‘legally entitled to recover’ as damage from the owner or operator of an uninsured motor vehicle. OCGA § 33-7-11 (a) (1).” Williams v. Thomas, 187 Ga. App. 527, 528-529 (370 SE2d 773) (1988). It is therefore a condition precedent to an action against an uninsured motorist carrier “that suit shall have been brought and judgment recovered against the uninsured motorist.” (Emphasis in original; citations and punctuation omitted.) Id. (Exclusivity provisions of Workers’ Compensation Act, OCGA § 34-9-11, barred judgment against defendant and recovery under uninsured motorist policy.)

The courts of several other states have addressed this issue in the context of a policy which requires that the insured be “legally entitled” to recover damages from the underinsured motorist. In Buchanan v. Buchanan, 350 SE2d 175 (N.C. App. 1986), the North Carolina Court of Appeals concluded that a general release executed in favor of an underinsured motorist and his liability carrier acted as a bar to recovery against the uninsured motorist carrier. “Having settled and signed a release, neither plaintiff nor [his spouse] can recover further damages from the parties covered by [the liability carrier]. Both plaintiff and [his spouse] fully intended to release [the tortfeasor], and they are now no longer ‘legally entitled to recover’ from such parties. When the release was signed, the [uninsured motorist carrier] was also released as a matter of law because of the derivative nature of the insurance company’s liability. Once the plaintiff released all claims against [the tortfeasor], there is no basis of liability on which the defendant insurance company can be held responsible under the terms of the policy.” 350 SE2d at 177. See also Nationwide Mut. Ins. Co. v. Nacchia, 628 A2d 48, 52 (Del. 1993); LeFranc v. Arnica Mut. Ins. Co., 594 A2d 382 (R.I. 1991); Sullivan v. American Cas. Co., 582 NE2d 890, 896 (Ind. App. 1991), vacated on other grounds, 605 NE2d 134 (Ind. 1992); United States Fidelity &c. Co. v. Cascio, 723 SW2d 209, 210 (Tex. App. 1986); but cf. Sparler v. Fireman’s Ins. Co., 521 A2d 433 (Pa. Super. 1987) (release will not be construed beyond express consideration recited). Moreover, an insured’s settlement with and release of a tortfeasor from liability for a loss, thereby depriving an uninsured motorist carrier of its right to subrogation, provides a complete defense to an action on the policy. Porter v. MFA Mut. Ins. Co., 643 P2d 302, 305 (Okla. 1982). “What [the insured] should have done was make settlement with [the under-insured motorist’s] carrier by means of a partial release, conditioned on the reservation of whatever rights and interests the uninsured motorist insurance company . . . might have or claim thereafter against the tort-feasor.” Id.

Southern Guaranty’s policy includes underinsured motorist coverage under the uninsured motorist coverage provisions of the policy. The policy provides for payment of “compensatory damages . . . which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle.’ ” The policy further provides that “ [i]f we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them.” As noted in Division 1 of this opinion, the general release given to Mathis bars further action against him, thus eliminating any legal entitlement of the Darbys to recover damages from him under the terms of OCGA § 33-7-11 and the policy. The general release also terminated Southern Guaranty’s right of subrogation under the terms of the policy. As noted above, a pro tanto or partial release expressly reserving these causes of action against Mathis would avoid this result. See also OCGA § 33-24-41.1 (effective April 20, 1992; therefore not applicable here).

Decided March 15, 1994.

Steve A. Didio, for appellants.

Michael L. Wetzel, Bentley, Karesh & Seacrest, Robin Depe trillo, Karsten Bicknese, for appellees.

The decisions of Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980) and U. S. Fidelity &c. Co. v. Lockhart, 124 Ga. App. 810 (186 SE2d 362) (1971), aff’d 229 Ga. 292 (191 SE2d 59) (1972), cited by the Darbys, do not demand a different result. Southern Guaranty elected to file an answer in its own name and thus became a party to the action. See generally Bohannon v. Futrell, 189 Ga. App. 340, 341-342 (1) (375 SE2d 637) (1988), aff’d 259 Ga. 162 (377 SE2d 853) (1989). However, this does not constitute, as the Darbys contend, a general waiver of all defenses and conditions precedent to coverage under the policy. As we noted in Moss, filing an answer in its own name allows the uninsured motorist carrier to assert any coverage defenses without resorting to a separate declaratory judgment action. 154 Ga. App. at 170. (Summary judgment proper where insured failed to comply with reporting requirement of policy.) In Lockhart, the insurer waived its defenses, not by participating in the civil action, but rather by negotiating for a settlement after direct suit against it and by repeatedly assuring its insured that the uninsured motorist claim would be paid. 124 Ga. App. at 811-812. The Darbys’ reliance on Allstate Ins. Co. v. McCall, 166 Ga. App. 833 (305 SE2d 413) (1983), aff’d 251 Ga. 869 (310 SE2d 513) (1984), ignores this court’s observation both in McCall and elsewhere that “the filing of an answer by the uninsured motorist carrier in its own name does not by itself eliminate the requirement that a judgment first be obtained against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. [Cit.]” Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990).

The Darbys, having settled with and released Mathis, are not “legally entitled” to recover any amount from him and have by the release impaired Southern Guaranty’s right of subrogation against Mathis. The trial court therefore did not err in granting Southern Guaranty’s motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

        State Farm Mat. Auto. Ins. Co. v. Lorenz, 202 Ga. App. 123 (413 SE2d 782) (1991), cited by the Darbys, did not reach this issue but instead determined that the insured’s action was barred by the statute of limitation. 202 Ga. App. at 125 (3).


text:
    A94A0339.
    HILL v. THE STATE.
    (442 SE2d 298)
   Blackburn, Judge.

This is the second appearance of this case before this court. After a jury trial, Paul Houston Hill filed a pro se appeal and in Hill v. State, 193 Ga. App. 401 (387 SE2d 910) (1989), we affirmed his conviction of armed robbery, motor vehicle theft, kidnapping, false imprisonment, and two counts of aggravated assault. Thereafter, pursuant to Hill’s habeas corpus petition, the United States District Court for the Northern District of Georgia ordered that Hill have counsel appointed for him for the purpose of bringing the subject appeal. The facts of this case are set out in detail in Hill, supra.

1. Hill enumerates as error the trial court’s denial of his motion to sever the trial of co-defendant Brazzie Boyd Emmett. This enumeration was raised in Hill’s pro se appeal and was decided adversely to him. Id. at 402 (5). In consideration of Hill’s new appeal, we have reviewed this issue again.

“ ‘Whether to sever the trials of co-defendants is a matter of discretion with the trial judge, and, absent abuse, his decision will not be disturbed by the appellate court. OCGA § 17-8-4; Glover v. State, 188 Ga. App. 330 (373 SE2d 39) (1988). Factors to be considered by the court in its exercise of discretion are as follows: (1) Will the number of defendants create confusion as to evidence and law relative to the separate defendants? (2) Is there a danger that evidence admissible against only one defendant (or, where there are more than two defendants, only against certain ones of them) will nevertheless be considered against another?; and (3) Are the defendants’ respective defenses antagonistic to the defenses, or the rights, of another? Glover v. State, supra at 331. It is the defendant who has the burden of showing, on his motion to sever, that any of the named criteria are applicable so as to prejudice his defense.’ Causey v. State, 192 Ga. App. 294, 297 (4) (384 SE2d 674).” Carson v. State, 208 Ga. App. 534 (1) (431 SE2d 156) (1993).

Hill argues Emmett’s guilty plea, accepted as to some of the offenses charged, created confusion as to the evidence and law that would apply between them; that Emmett’s testimony regarding his own criminal record and past drug use was not admissible against Hill; and that their defenses were antagonistic to each other. However, Hill failed to meet his burden of showing that he was prejudiced as required by law. Emmett’s testimony was admissible against Hill whether Hill and Emmett were tried together or separately. During the trial, Hill’s attorney sought to introduce Emmett’s previous criminal convictions for impeachment purposes and evidence of the pending criminal charges to show Emmett’s interest in cooperating with the State. Furthermore, “[t]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials.” (Citations and punctuation omitted.) Jordan v. State, 210 Ga. App. 30 (1) (435 SE2d 256) (1993).

Decided March 15, 1994.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.

2. In his second enumeration of error, Hill contends that the trial court erred in denying his motion for directed verdict. During his first appeal, we reviewed the sufficiency of the evidence and determined that “the evidence against appellant [was] more than sufficient to enable a rational trier of fact to find him guilty of the offenses charged. . . .” Hill, supra at 403-404. Having reviewed the record in the light most favorable to the verdict, we again conclude that a rational trier of fact could have found Hill guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.