author: Eldridge, Judge.

text:
    A99A2127.
    WHIRL v. SAFECO INSURANCE COMPANY et al.
    (527 SE2d 262)
   Eldridge, Judge.

This subrogation action, brought under OCGA § 33-7-11 (f), presents an issue of first impression in this state: Does the two-year statute of limitation for a personal injury claim (OCGÁ § 9-3-33) apply to an insurer who brings a subrogation action under OCGA § 33-7-11 (f) to recover for the uninsured motorist personal injury payments it made to its insured, or does OCGA § 33-7-11 (f) create a statutory right of subrogation that gives the insurer, pursuant to OCGA § 9-3-22, twenty years from the date of the collision to file suit? We conclude that, under the plain and unequivocal language of OCGA § 33-7-11 (f), in a subrogation action by an insurer to recover personal injury payments it made to its insured under Georgia’s Uninsured Motorist Act, an insurer is bound by the two-year statute of limitation that is applicable to the insured to whom the insurer is subrogated, because the insurer stands in the shoes of its insured. Thus, we reverse the ruling of the trial court.

On July 13, 1995, Willie E. Richmond was involved in an automobile collision with Shawn Whirl, appellant. When the collision occurred, Whirl did not have liability insurance as required by law. Richmond was insured under an automobile insurance policy issued by Safeco Insurance Company (“Safeco”), appellee. Under the policy’s uninsured motorist provisions, Safeco paid Richmond for damages he sustained as a result of the collision in the amount of $788.04 for property damage and $15,000 for personal injuries.

On October 26, 1998, more than two years after the date of the collision, Safeco instituted this subrogation action against Whirl to recover both the property damage and personal injury uninsured motorist benefits paid to Richmond. Whirl timely answered and raised the affirmative defense that the suit was barred by the statute of limitation for personal injuries. Thereafter, Whirl moved for judgment on the pleadings on the basis that Safeco’s personal injury sub-rogation claim was barred by the statute of limitation since it had not been commenced within two years of the July 13, 1995 collision. On April 14, 1999, the trial court denied Whirl’s motion and held that, under OCGA § 9-3-22, the statute of limitation for a subrogation claim brought pursuant to OCGA § 33-7-11 (f) is 20 years. This Court granted Whirl’s application for interlocutory review, and this appeal followed. Held:

In construing OCGA § 33-7-11 (f) to determine what statute of limitation is applicable,

it is fundamental that the determining factor is the intent of the legislature!,] and we look first to the words of the statute to determine what [the] intent was[,] and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was. In fact, where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.

(Citations and punctuation omitted.) Indus. Indem. Co. v. Walck, 192 Ga. App. 754, 756 (386 SE2d 521) (1989). Moreover,"[w]here possible, effect is to be given to all the words of a statute, and it is firmly established that courts should not interpret a statute so as to render parts of it surplusage or meaningless.” (Citations and punctuation omitted.) In the Interest of R. F. T., 228 Ga. App. 719, 722 (492 SE2d 590) (1997).

The Uninsured Motorist Act was passed by Ga. L. 1963, p. 588. From the inception of such act, the legislature granted the insurer, which pays a claim to its insured under the act, the right to “be sub-rogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made; including the proceeds recoverable from the assets of the insolvent insurer.” Ga. L. 1963, pp. 588, 591, § 1 (h); OCGA § 33-7-11 (f). While OCGA § 33-7-11 does not specifically provide for a statute of limitation within such Code section, it is clear from the overall reading of the statute that a subrogation action must be brought in the name of the insured and must be brought against the tortfeasor as opposed to the tortfeasor’s insurance company. In enacting such Code section,

[i]f the legislature had intended to grant the insurer in this situation the additional authority to bring suit on its own behalf against the alleged tortfeasor, it would have explicitly done so. In other subsections of the statute the legislature expressly gives the insurer the option to proceed in its own name; notably these are instances in which legal proceedings are underway and the insurer is initially in a defensive posture.

(Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Cox, 271 Ga. 77, 79 (515 SE2d 832) (1999). An insurer is not authorized to bring a subrogation action in its own name for uninsured motorist personal injury benefits it paid to its insured, because personal injury benefits cannot be assigned under OCGA § 44-12-24. “[T]hus, any action must be brought in [the insured’s] name as the real party in interest. [Cits.]” Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 270 (2) (486 SE2d 427) (1997).

Additionally, OCGA § 33-7-11 (f) provides that:

[T]he bringing of an action against the unknown owner or operator as “John Doe” or the conclusion of such an action shall not constitute a bar to the insured, if the identity of the owner or operator who caused the injury or damages complained of becomes known, bringing an action against the owner or operator theretofore proceeded against as “John Doe”; provided, further, that any recovery against such owner or operator shall be paid to the insurance company to the extent that the insurance company paid the named insured in the action brought against the owner or operator as “John Doe,” except that the insurance company shall pay its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney’s fees.

Hence, under the plain language of the statute, the insurer, as subro-gee, stands in the shoes of the insured and must pay its proportionate share of costs, expenses, and attorney fees to the insured.

Consequently, the rights to which the subrogee succeeds are the same as, and no greater than, those of the subrogor; therefore, the subrogee’s rights are subject to any limitations incident to them in the hands of the subrogor, and subject to any defenses that might have been urged against the subrogor.

(Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Wel-chel, 257 Ga. 259, 262 (2) (356 SE2d 877) (1987).

Safeco, citing to cases involving other insurance subrogation actions under Georgia’s old no-fault insurance statute, argues that OCGA § 33-7-11 (f) creates a statutory right of action and, thus, the 20-year statute of limitation set forth by OCGA § 9-3-22 is applicable, since OCGA § 33-7-11 (f) does not have a statute of limitation set out within the statute itself. We disagree.

Georgia’s no-fault insurance law was enacted in 1974, 11 years after the legislature enacted the uninsured motorist statute. The no-fault insurance law paid for medical costs and economic loss only, i.e., property damage. Ga. L. 1974, p. 113, repealed Ga. L. 1991, pp. 1608, 1629, § 3.4. When the no-fault statute was enacted, the legislature expressly granted a different right of subrogation to the insurer from that it had previously given the insurer under the uninsured motorist statute. Under the no-fault statute, the legislature specifically stated that a subrogation claim was based on tort law between the insurers; the insurer was required to bring the subrogation claim in its own name and against the tortfeasor’s insurer, not the tortfeasor. See U. S. Fidelity &c. Co. v. Joy Truck Lines, 200 Ga. App. 330 (408 SE2d 142) (1991). The act further granted the insurer the right to bring a direct subrogation claim against the responsible tortfeasor who was uninsured or was not a self-insurer. Such statutory assignment of the right to bring an action directly against the tortfeasor occurred because the claim resulted from a property loss, as opposed to a personal injury claim.

While the no-fault statute was amended several times prior to its being repealed to limit the parameters within which an insurer could bring a claim for subrogation, the right of recovery of the insurer in a subrogation action continued to be based on tort law between the insurers, and the insurer continued to have a direct right of subrogation against an uninsured tortfeasor who was not self-insured. Additionally, the Supreme Court held that under the no-fault statute, “where a case is settled prior to trial, the insurer’s right of subrogation is not barred by its failure to intervene.” Prudential Commercial Ins. Co. v. Michigan Mut. Ins. Co., 261 Ga. 637, 639 (1) (410 SE2d 30) (1991). Hence, under the now repealed no-fault statute, the insurer did not stand in the shoes of its insured but had a separate statutory cause of action which would not have existed except for some act of legislation. Therefore, the 20-year statute of limitation applied.

Decided December 20, 1999

Clifford H. Hardwick, for appellant.

Stuart J. Oberman, for appellees.

This is not the case under the uninsured motorist statute where the insurer’s rights, limitations, and defenses are the same as the insured’s. In the amendments to the Uninsured Motorist Act, which occurred after the enactment of the no-fault statute, the legislature could have amended the Uninsured Motorist Act to give the insurer a cause of action independent of its insured. However, it chose not to do so. Since the language of the uninsured motorist statute is plain and unequivocal, we cannot interpret the legislative intent contrary to that language. Therefore, the insurer, as subrogee, is bound by the two-year statute of limitation for personal injury actions of its insured.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

       This issue was raised previously in State Farm &c. Ins. Co. v. Cox, 233 Ga. App. 296, 298 (502 SE2d 778) (1998), aff’d, 271 Ga. 77 (515 SE2d 832) (1999), but was not ripe for consideration at such time because the issue had not been ruled on by the trial court.

       OCGA § 9-3-33 provides that “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues.”

       “All actions for the enforcement of rights accruing to individuals under statutes . . . shall be brought within 20 years after the right of action has accrued.” OCGA § 9-3-22.

        Hanover Ins. Co. v. Canal Ins. Co., 163 Ga. App. 20 (293 SE2d 509) (1982); U. S. Fidelity &c. Co. v. Ryder Truck Lines, 160 Ga. App. 650 (288 SE2d 1) (1981).

       “Insurers and self-insurers providing benefits without regard to fault... shall be subrogated to the rights of the persons for whom benefits are provided, to the extent of the benefits provided, with the right of recovery and the amount thereof shall be determined by agreement on the basis of tort law between the insurers involved.” (Emphasis supplied.) Ga. L. 1974, pp. 113, 119, § 5 (d).

       “If the responsible tortfeasor is uninsured or is not a self-insurer, the insurer or self-insurer providing benefits shall have a right of action to the extent of benefits provided against such tortfeasor.” Ga. L. 1974, pp. 113, 119, § 5 (d).

       See Hanover Ins. Co. v. Canal Ins. Co., supra; U. S. Fidelity &c. Co. v. Ryder Truck Lines, supra.

       In order for the 20-year statute of limitation set forth in OCGA § 9-3-22 to apply, the rights must arise under a legislative enactment and must not have existed but for the act. Houston v. John Doe, 136 Ga. App. 583 (222 SE2d 131) (1975); Williams v. Clemons, 178 Ga. 619 (173 SE 718) (1934).

       See Burke v. Schroth, 4 Kan. App. 2d 13 (601 P2d 1172) (1979), which held that an insurer’s “right of subrogation is lost if the tort statute of limitations [runs] against the insured under the theory that the right of subrogation is purely derivative as the insurer succeeds only to the rights of the insured, and no new cause of action is created.”


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A2202.
    MILLAR v. FAYETTE COUNTY SHERIFF’S DEPARTMENT et al.
    (527 SE2d 270)
   Blackburn, Presiding Judge.

In this action based on Georgia’s Open Records Act, OCGA § 50-18-70 et seq., Bruce R. Millar appeals the trial court’s denial of his request for an injunction against the Fayette County Sheriff’s Department and Fayette County which would require them to turn over certain public records to him. Because the record shows that (1) the defendants have previously offered to give Millar the records, thereby mooting his claim, and (2) Millar’s motion for equitable relief was premature, we affirm the trial court.

1. The record shows that Millar is an attorney who represents Ricky Charles Ward in a civil rights case against the Fayette County Sheriff’s Department and Fayette County regarding Ward’s allegedly inappropriate arrest. Shortly after this case was filed in federal court and prior to discovery therein, Millar wrote directly to the defendants without contacting their attorney and requested numerous documents, including documents directly relating to Ward’s federal action. Although the defendants agree that the requested documents are public records, they initially refused to produce them on the basis that Millar could request them through discovery in his federal case. Millar then filed a complaint against the defendants, asking the court to force production of the documents pursuant to an injunction.

When the defendants received notice of Millar’s complaint against them, they offered to turn over documents he had requested which “[they] were allowed to turn over under the Open Records Act.” Millar then indicated that he would accept this offer and drop his suit only if the defendants agreed that it “didn’t violate the attorney/ client privilege to contact [the defendants directly without consulting their attorneys].” The defendants refused to make this concession.

As an initial matter, we find no merit in Millar’s appeal because the record indicates that the defendants have agreed to provide him with the records that he has requested. Even if the Open Records Act required disclosure in this case, Millar can ask for nothing more than the records themselves, and the defendants would not be required to make any ancillary promises to him of any nature. Therefore, at the outset, Millar should have accepted the defendants’ offer to produce the requested records rather than attempting to use his lawsuit as leverage to secure a promise from the defendants not to pursue any ethical claims against him.

We exercise our discretion and address whether Millar was entitled to have his Open Records Act request honored notwithstanding discovery rights in connection with pending litigation.

The rights of an individual under the Open Records Act and the rights of a litigant under discovery statutes are separate and distinct, and nothing in this opinion should be read to require any conflation of the two. Any citizen of this State retains a right to the public records he has requested under the Open Records Act. Citizens also have certain rights to pursue discovery in both criminal and civil actions.

Though not directly on point, Hall v. Madison, 263 Ga. 73 (428 SE2d 345) (1993) provides guidance in this situation. The appellant, Hall, was convicted of murder, and this Court affirmed the conviction after rejecting a claim based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Thereafter, Hall filed an Open Records Act request for the district attorney’s prosecution files relating to his case. When the district attorney produced all of the file except his voir dire notes, Hall sought a writ of mandamus to force production of the notes, contending that the information therein would buttress further pursuit of his Batson claim. The Supreme Court denied Hall’s writ, holding:

Hall’s petition for the writ of mandamus pursuant to his Public Records Act request is premature. The law is well settled that mandamus relief is available only if the petitioner has a clear legal right to the relief sought and that there is no other adequate legal remedy. . . . Hall retains the right, available to any civil litigant, to seek the discovery of the voir dire notes in his habeas proceeding. Therein the trial court is at liberty to examine the requested material in camera and to determine whether disclosure is warranted.

(Citation omitted.) Hall, supra at 74. Hall does not negate the above-described statutory rights. Rather it concluded that under the facts of that case, Hall was not entitled to equitable relief to enforce his statutory right under the Open Records Act. Applying the Hall rationale to this case, Millar would likewise not be entitled to equitable relief at this time.

Millar’s request for an injunction to force compliance with the Open Records Act was premature because, at the time the request was made, he retained an adequate legal remedy, namely the right to seek the defendants’ records through discovery procedures in his federal action under the rationale of Hall. Where an adequate remedy at law remains, an equitable remedy is appropriately denied. OCGA § 23-1-4. Therefore, based on analogous Supreme Court precedent, we are constrained to find that the trial court appropriately denied Millar’s request for an injunction.

2. Millar also contends that the trial court erred by finding that he violated Standard 47 of the Rules of the State Bar of Georgia by directly contacting the defendants in Ward’s lawsuit without notifying their attorney. However, the order issued by the trial court makes no such conclusion, although it does describe the manner in which the communication took place. Moreover, this Court does not have the jurisdiction to determine matters of attorney discipline. “The Supreme Court of Georgia is endowed with the inherent and exclusive authority to govern the practice of law in Georgia.” Wallace v. State Bar of Ga., 268 Ga. 166, 167 (1) (486 SE2d 165) (1997).

Decided December 20, 1999.

Lee Sexton, John S. Mixon, Jr., for appellant.

McNally, Fox & Cameron, Philip P. Grant, Thomas, Means, Gil-lis, Devlin, Robinson & Seay, Marvin A. Devlin, Jennifer D. Odom, for appellees.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2281.
    NAJEM v. CLASSIC CADILLAC ATLANTA CORPORATION.
    (527 SE2d 259)
   Eldridge, Judge.

Plaintiff-appellant George Y. Najem challenges the Fulton County State Court’s grant of summary judgment to Classic Cadillac Atlanta Corporation. We affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In this case, Classic Cadillac successfully shifted the burden to Najem, who failed to present any evidence to support his claims.

The following undisputed facts show that Najem visited the showrooms of Classic Cadillac, a new and used car dealership, on April 10, 1997. Najem was accompanied by one of his adult sons. Najem test-drove a 1997 Cadillac Seville and decided to purchase one. Najem specifically wanted the “White Diamond” model of this car. However, because the particular style and color of this car were in demand, Classic Cadillac had only one 1997 STS White Diamond Cadillac Seville on its lot. Najem did not want that car because the mileage was too high and there was noise in the drivetrain. After a Classic Cadillac employee called around and located another 1997 STS White Diamond Cadillac Seville, Najem agreed to buy a car of that make and model for approximately $48,000. He paid deposits totaling $36,000 on the automobile, even though he had not seen or inspected any such car other than the one in the showroom. The buyer’s order, which was signed by Najem, contained a clause whereby the buyer acknowledged that the delivered vehicle may have suffered some “transit and/or storage” damage and released the seller from any claims arising therefrom.

When the car was delivered to the dealership, Classic Cadillac drove the car to another location, installed a sunroof, and conducted a pre-delivery inspection and detail. On April 25, 1997, Najem, accompanied by his two sons, arrived at Classic Cadillac to pick up the car. However, he immediately reported that the floor mats were wet. He also complained because the car’s odometer showed 65 miles and he wanted a car with less than 30 miles on it. After initially refusing to take delivery of the car, Najem changed his mind after Classic Cadillac agreed to install new floor mats. The registration and title documents, which were executed at delivery and signed by Najem, both identified this car as Vehicle Identification Number (“VIN”) 1G6KY5295VU819423. In his deposition, Najem testified that he did not attempt to inspect the car further at the time of delivery, because there was not enough light available and “because we know, as my experience, when I buy [a] car, I never [have] any problem, never.” Najem took the car home that night.

The next morning, Najem discovered a variety of cosmetic defects on the car, such as insufficient paint on the bumpers, a stain on the interior, and excess glue on the sunroof. He called Classic Cadillac and was instructed to bring the car in two days later. Najem’s son took the car to the dealership, where it was detailed and serviced under the warranty. His son picked up the car and took it home. However, when Najem saw the car, he found new scratch marks on the bumpers, paint in the trunk, and additional cosmetic problems. He became enraged at his son for not checking the car before picking it up from the dealership.

When Classic Cadillac’s response to his new complaints did not satisfy him, he reported these problems directly to General Motors. General Motors referred him to another dealership, Capitol Cadillac. After inspecting the car, Capitol Cadillac offered to treat the problems under the warranty at no charge to Najem. However, Najem refused to allow Capitol Cadillac to work on the vehicle.

On May 15,1997, Najem took the car back to Classic Cadillac for service; Najem was not charged for this work. When he picked up the car on May 16, 1997, Najem was still dissatisfied and wanted to return the car to Classic Cadillac for a refund. The owner of Classic Cadillac offered to repurchase the car, but Najem refused his offer because it was too low.

Najem then filed a pro se complaint on June 27, 1997, alleging that Classic Cadillac provided him with a vehicle with specific cosmetic defects. Classic Cadillac responded and moved to dismiss. Najem retained legal counsel, who filed an amended complaint on February 17, 1998, alleging, inter alia, breach of contract and fraud. Classic Cadillac filed a motion for summary judgment on August 7, 1998. The trial court granted the motion on October 20, 1998, and Najem appeals. Held:

1. In his first assertion, Najem contends that the trial court erred in granting summary judgment on his claim that Classic Cadillac breached its contract with him by delivering a different vehicle from that shown on the purchase order. This claim lacks merit.

In response to Najem’s breach of contract claim, Classic Cadillac presented evidence to show that Najem agreed to purchase a 1997 STS White Diamond Cadillac Seville with low mileage, i.e., approximately 50 miles. The Classic Cadillac salesman drafted a purchase order for an automobile with a VTN of 1G6KY5297VU817821 (“ordered vehicle”). It is unclear from the record whether the ordered vehicle was the same vehicle that Najem rejected because of high mileage and noise problems (“showroom vehicle”) or whether it was a separate vehicle. However, it is undisputed that the only available 1997 STS White Diamond Cadillac Seville that Najem looked at prior to delivery was the showroom vehicle. He did not inspect or evaluate another Seville prior to or after delivery.

A few days later, Classic Cadillac delivered to Najem a 1997 STS White Diamond Cadillac Seville (“delivered vehicle”). Najem did not inquire or inspect the car to determine if it had the same VIN as that represented on the order form, nor did he complain that this was not the type, model, and make of the car that he ordered. In fact, he discovered that the VIN was different weeks later, only after he became dissatisfied with Classic Cadillac’s service and urged his daughter to go over the sale documents because he wanted to “find something to catch these people.” During his deposition, Najem acknowledged that the only differences between the two vehicles were the VIN and the minor cosmetic defects.

In response to Classic Cadillac’s affirmative showing, Najem has failed to present any evidence to establish a jury issue as to whether Classic Cadillac failed to substantially comply with its agreement to provide Najem with a specific style, model, color, and year of automobile. OCGA § 13-4-20; Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1) (297 SE2d 222) (1982); see also Lau’s Corp. v. Haskins, supra. Accordingly, the trial court did not err in granting summary judgment on this issue.

2. In his second assertion, Najem contends that the trial court erred in granting summary judgment on his fraud claims, which asserted that Classic Cadillac employees falsely represented that (a) the delivered vehicle was the same vehicle ordered by Najem; and (b) Classic Cadillac repaired the delivered vehicle.

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

(Citations and punctuation omitted.) Howard v. McFarland, 237 Ga. App. 483-484 (1) (515 SE2d 629) (1999). See also OCGA § 51-6-2 (a). “In order to prove the element of justifiable reliance, the plaintiff must show that he exercised his duty of due diligence. [Cit.]” Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). Further, an action for fraud cannot be sustained when based upon alleged misrepresentations which are “immaterial, not relied upon, or which the plaintiff in the exercise of reasonable diligence should have ascertained to be untrue.” Vaughan v. Oxenborg, 105 Ga. App. 295, 299 (124 SE2d 436) (1962).

(a) There is no evidence to support the first fraud allegation. Najem presented no evidence of any statements or other representations by Classic Cadillac that the delivered car had the same VIN as that which appeared on the order form. As such, this case is distinguishable from that relied upon by Najem, Evans Toyota v. Cronic, 233 Ga. App. 318 (503 SE2d 358) (1998), in which employees of defendant Evans Toyota intentionally made numerous fraudulent, material misrepresentations upon which the plaintiff relied.

Decided December 20, 1999.

Drew, Eckl & Farnham, Deana L. Simon, for appellant.

In this case, the record clearly demonstrates that Najem agreed to buy a 1997 STS White Diamond Cadillac Seville and that Classic Cadillac delivered such car to Najem. Classic Cadillac employees made no representations regarding the VIN. Najem never inquired about the VIN of the delivered car and, in fact, admitted that he did not check the VIN at delivery. Najem accepted the car and drove it home. The only complaints expressed by Najem in the first several weeks involved the cosmetic defects. The issue of whether this car had the same VIN as on the order form simply did not arise until weeks later.

Further, since Najem admits that he has never seen the ordered vehicle and has no evidence regarding its condition, he is unable to show how he relied on any alleged misrepresentations that the delivered vehicle was the one he ordered or how he was damaged thereby. Therefore, Classic Cadillac successfully pierced Najem’s pleadings as to this fraud claim, and summary judgment was appropriate.

(b) As to whether Classic Cadillac fraudulently misrepresented its repair of the car, Classic Cadillac presented several work orders demonstrating various services they provided for this car. Najem admitted that Classic Cadillac repaired the cosmetic defects, but that such repairs were not satisfactory. Therefore, the only remaining issue is not whether the services were performed, but the adequacy of such services.

On this issue, Najem asserts that the delivered vehicle should have been restored to the same condition as the ordered vehicle. However, there is nothing in the record to demonstrate the condition of the ordered vehicle or to show that such vehicle was ever discussed in relation to the condition of the delivered vehicle.

Further, Najem’s repeated complaints about the work performed by Classic Cadillac demonstrate that he did not rely upon any representations regarding the quality of such work. As such, Najem’s fraud claim cannot survive summary judgment on this issue. There was no error.

3. Pursuant to this Court’s decision in Division 2, supra, Najem’s remaining assertion is moot.

Judgment affirmed.

Blackburn, P. J., concurs. Barnes, J., concurs in judgment only.

Smith, Gambrell & Russell, Stephen M. Forte, Edward D. Burch, Jr., for appellee.


text:
    A99A2323.
    BAKER v. THE STATE.
    (527 SE2d 266)
   Eldridge, Judge.

Omar Baker challenges the Whitfield County Superior Court’s denial of his motion for new trial, which followed his January 1999 jury trial and conviction for child molestation. We affirm.

The undisputed facts are as follows: In February 1997, Baker had sexual intercourse with a 15-year-old girl, C. W.; Baker was 21 years old at the time. C. W. became pregnant and had an abortion. A few months later, before C. W.’s sixteenth birthday, Baker and C. W. again had sexual intercourse. C. W. became pregnant again and gave birth to Baker’s child in May 1998.

After the sexual activity was reported to police, both Baker and C. W. gave statements to investigating officers which admitted the above facts. Baker was subsequently indicted and convicted of child molestation. His motion for new trial was denied, and he appeals. Held:

1. (a) In his first assertion, Baker contends that the trial court erred in admitting hearsay evidence of a similar transaction. The transaction at issue involved Baker’s sexual relationship with a 13-year-old girl, T. W., in March 1992, when Baker was 16 years old. During the investigation of that case, police officers interviewed T. W.; she told them that she and Baker had engaged in sexual intercourse the night before. When the police questioned Baker, he also admitted that he had sexual intercourse with T. W. However, by the time of this 1999 child molestation trial, T. W. could not be located by officers investigating this case.

During the similar transaction hearing, the State offered a police officer’s testimony about statements T. W. made to her during the 1992 investigation. Baker objected to the testimony on the basis of hearsay. The State moved to admit the evidence under the necessity exception, showing that it had issued a subpoena for T. W.; that the subpoena could not be served in spite of a diligent search; that investigators searched but could not locate T. W. in Whitfield County; that they ran a Georgia driver’s license check and criminal background check on T. W. and did not find her; and that investigators tracked down T. W.’s relative in Kentucky, but the relative did not know where T. W. lived. See OCGA § 24-3-1.

The trial court found that the State had proved that the police testimony about T. W.’s statements met the threshold requirements for the use of hearsay under the necessity exception, i.e., necessity and a particularized guarantee of trustworthiness. Moore v. State, 207 Ga. App. 412, 417 (2) (427 SE2d 779) (1993); see also Holmes v. State, 271 Ga. 138, 139 (2) (516 SE2d 61) (1999) (physical precedent only). For the purpose of demonstrating necessity,

[u]navailability depends upon a showing that the party seeking admission of the hearsay made diligent efforts to find the absent witness and bring the witness to court. The evidence showed that investigators exerted conscientious and repeated efforts to locate her. [Baker] has made no showing that the trial court abused its discretion in deeming the witness unavailable.

(Citations omitted.) Jay v. State, 232 Ga. App. 661, 663 (2) (503 SE2d 563) (1998). See also Holmes v. State, supra; Wilbourne v. State, 214 Ga. App. 371, 373 (2) (448 SE2d 37) (1994); Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (1989).

Once the proponent of the hearsay establishes the declarant’s unavailability, it must also demonstrate that the evidence is “relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered.” (Citation and punctuation omitted.) Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999). See also Holmes v. State, supra; Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998). In this case, the evidence was clearly relevant to the issue of whether Baker committed child molestation by having sexual intercourse with an underage female. See Division 1 (b), infra. Further, the trial court found that the evidence was more probative than prejudicial, and there was apparently no other evidence of Baker’s relationship with T. W. other than his own admissions. The trial court properly determined that the police testimony was necessary.

After the trial court examines all three prongs of the test to determine necessity, it “must then examine whether the hearsay statement is surrounded by particularized guarantees of trustworthiness.” (Citation and punctuation omitted.) Clark v. State, supra at 10 (5). See also Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987). In this case, the trial court found that the truthfulness of the statement was not in dispute, since it was corroborated by Baker’s own admissions during the 1992 investigation and again at trial that he had a sexual relationship with T. W. Moore v. State, supra at 417 (2). Therefore, “[t]he admission of this evidence did not violate his rights under the Confrontation Clause, since there were particularized guarantees of trustworthiness.” Id.

Accordingly, the trial court did not err in finding that police testimony about T. W.’s 1992 statement was admissible under the necessity exception to the hearsay exclusion.

(b) Then, after hearing all of the evidence regarding the relationship between T. W. and Baker, the trial court properly found that it qualified as a similar transaction. Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991); see also Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993) (“Sexual molestation of. . . teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible. [Cits.]”); Moore v. State, supra at 414 (1) (a). There was no issue as to whether Baker was the perpetrator, and Baker conceded that the transactions were, in fact, similar. At trial, the trial court instructed the jury that the evidence was to be considered only as to Baker’s mode of operation, state of mind, and lustful disposition. There was no error.

2. Baker also challenges the sufficiency of the evidence presented on the issue of whether he possessed the requisite intent to be convicted of child molestation, i.e., acting “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

On appeal!,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

The evidence presented at trial included the testimony of C. W., Baker, investigating police officers, and family members. Both C. W. and Baker admitted that they had engaged in sexual intercourse before C. W. turned sixteen years old and that such intercourse resulted in two pregnancies. However, Baker testified that he had “strong feelings” for C. W. and, on appeal, argues that his intercourse with C. W. was an “act of love.” According to Baker, this allegedly demonstrates that he did not have the requisite intent for child molestation. He cited no authority for this proposition.

Decided December 20, 1999.

Michael A. Corbin, for appellant.

KermitN. McManus, District Attorney, for appellee.

In contrast, the State demonstrated intent at trial by showing that, in addition to impregnating C. W. twice, Baker also had sexual intercourse with T. W. in 1992. He knew both C. W. and T. W. were underage when he was having sex with them, that such acts were against the law, and that he could go to jail.

Whether the requisite intent for child molestation existed was a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive. Also, in child molestation cases [,] evidence of other similar or connected sexual offenses against children is admissible to corroborate the testimony of the victim as well as to show the lustful disposition of the defendant. Thus, in considering whether [Baker] had the requisite intent to molest the second victim, the jury was authorized to consider incidents concerning the first victim.

(Citations and punctuation omitted.) McGarity v. State, 224 Ga. App. 302, 304 (2) (480 SE2d 319) (1997). Determinations regarding witness credibility are solely within the jury’s purview. OCGA § 24-9-80. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Jones v. State, 226 Ga. App. 420, 423-424 (3) (487 SE2d 56) (1997). As the jury’s conclusion that Baker possessed the requisite intent was supported by sufficient evidence, this Court will not disturb such finding. Jackson v. Virginia, supra.

Judgment affirmed.

Blackburn, P. J., concurs. Barnes, J., concurs in judgment only.

       Under OCGA § 16-6-4 (a), a person commits child molestation “when he or she does any immoral or indecent act to . . . any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       The voluntariness of Baker’s statements to police is not challenged in this appeal.

       The police officer interviewed T. W. while she was at a hospital emergency room being treated for injuries allegedly inflicted by her stepfather when he found out that she had spent the previous night with Baker.


text:
    A99A2396.
    WILLIAMS v. THE STATE.
    (527 SE2d 272)
   Blackburn, Presiding Judge.

Following a jury trial, Joe E. Williams appeals his conviction of entering an automobile with the intent to commit theft, contending that a showup identification of him was impermissibly suggestive and tainted an in-court identification and, further, that there was insufficient evidence to support the conviction. We affirm.

On appeal from a criminal conviction, our review of the evidence is guided by certain well-established principles. As recognized in cases such as Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997), the evidence is viewed in a light most favorable to the verdict; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); and the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

Brown v. State, 237 Ga. App. 761, 762 (516 SE2d 810) (1999).

The evidence shows that at 1:00 a.m. on March 15, 1998, Wynn Pitts awoke upon hearing a noise. As he was investigating around the house, he looked out a window and saw a bike which did not belong to him in the flowerbed. Aware that someone was probably in the yard or trying to get in the house, Pitts carefully looked out each window of the house. Peering out a window that overlooked the driveway, Pitts saw Williams in his truck, a Blazer, approximately 15 feet away from the window. Because the lights in the Blazer were on and the windows of the Blazer were not tinted, Pitts could plainly see Williams going through the truck’s contents. Pitts watched Williams for two minutes before deciding to activate the alarm on his house. When the alarm sounded, Williams, on his way back to the bike, crossed in front of the window where Pitts was watching. In his excitement, Pitts busted the window, and Williams turned around. The two men looked at each other before Williams left.

Pitts reported the incident to the Columbus Police Department, describing the person as a tall black man on a bicycle, wearing dark clothing and a stocking cap. Officer Mac Blackstock had received a similar description from other people who were victims of similar automobile break-ins in the neighborhood.

Ten days after Pitts’ truck was broken into, Williams was stopped while riding his bicycle at 4:00 a.m. He was wearing dark clothes, a stocking cap and a utility belt that contained a flashlight and a multi-tool instrument that could be used as pliers or other tools. He also had at least one pair of gloves.

Williams was taken to Pitts’ home that morning as a possible suspect in the break-in. When Pitts viewed Williams in the patrol car, he said he looked like the man he saw in his truck. When Williams stepped out of the car, Pitts definitively identified him. At trial, Pitts testified that he had no doubt that Williams was the man who broke into his truck. He said further that he knew Williams, not from when the police brought him to the house, but from seeing him in the truck.

1. Williams contends that the trial court erred in admitting the identification testimony because Pitts’ in-court identification was tainted by the showup at his home. Even assuming, however, that the showup was unduly suggestive, we find the identification testimony was properly admitted.

In exercising its discretion whether an in-court identification was tainted by a pre-trial defect, the trial court must examine the totality of the circumstances. Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972). The court should consider: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness; and (5) the length of the time between the crime and confrontation. Id. In evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where evidence supports the trial court’s ruling, we will not disturb that ruling.

Lowe v. State, 264 Ga. 757, 758 (2) (452 SE2d 90) (1994). If the totality of the circumstances shows that there was a substantial likelihood of irreparable misidentification, the identification is inadmissible. Barber v. State, 236 Ga. App. 294, 295-297 (1) (512 SE2d 48) (1999).

Applying these factors, we find that under the totality of the circumstances there was not a likelihood of irreparable misidentification. Pitts paid close attention to the man in the truck. Pitts, who had an unobstructed view of Williams in the truck from only fifteen feet away, testified that Williams was plainly visible for two minutes in the truck. Pitts also saw Williams’ face quite clearly when Williams turned around after Pitts broke the window. Furthermore, Pitts testified several times that, without a doubt, Williams was the man he saw in his truck and that this identification was based on his opportunity to view Williams in his truck rather than at the showup. Finally, although the time period between the crime and the showup was ten days, because Pitts showed such certainty, we find that this passage of time did not affect his ability to identify Williams. See Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120) (1991) (a showup identification 12 days after the crime was not unnecessarily suggestive under the totality of the circumstances therein).

Decided December 21, 1999.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

2. The evidence was sufficient to authorize the jury to find that Williams was guilty, beyond a reasonable doubt, of entering an automobile with the intent to commit theft. See Jackson v. Virginia, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2101.
    RUSSELL v. BARNETT BANKS, INC. et al.
    (527 SE2d 25)
   Blackburn, Presiding Judge.

Melvin Russell appeals the trial court’s grant of summary judgment to Barnett Banks, Inc. and NationsBank, N.A. (collectively the Bank), contending that the Bank, which had issued a construction loan to him, breached its fiduciary duty by disbursing payments to the builder of Russell’s home for incomplete or substandard work. We find, however, that the Bank was not in a fiduciary relationship with Russell and, therefore, affirm the trial court.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record shows that, on November 29, 1993, Russell executed an adjustable rate note with a principal amount of $135,000 in favor of the Bank. Russell intended to use the proceeds of this loan to build his home. Over the next two years, Russell signed numerous agreements modifying the principal amount of his loan, which ultimately reached $155,000.

In his complaint, dated April 3,1998, Russell alleges that he and the Bank entered into a contract for construction financing as well as the note and a corresponding deed to secure debt. Pursuant to this alleged contract, Russell contends that he was required to choose a builder approved by the Bank, which he did. Thereafter, as construction progressed, the Bank would disburse portions of the principal amount of the construction loan, pursuant to a disbursement schedule, to the builder after its inspector examined work already completed. According to Russell, his approval was also required prior to disbursements being made by the Bank. Russell further alleges that the Bank breached both the contract and a fiduciary duty it owed to him by making disbursements for work which was not properly completed by the builder. Because of these breaches, Russell asked the trial court to enjoin the Bank from foreclosing on his home and to award him compensatory, general, and punitive damages. The trial court correctly refused Russell’s request and granted summary judgment to the Bank.

Although Russell sued the Bank for breach of contract in the trial court, he enumerates as error only the trial court’s ruling that the Bank owed no fiduciary duty to him. Therefore, the breach of contract claim is not before us in this action, and we consider only whether the Bank can be held liable for a breach of any fiduciary duty owed to Russell.

Russell provides no basis for finding that the Bank owed him any fiduciary duty to ensure the quality of the builder’s work before making disbursements.

Confidential relations are defined as those relationships, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc. OCGA § 23-2-58. There is no confidential relationship between a bank and its customers merely because the customer had advised with, relied upon, and trusted the bankers in the past. The same is true of the relationship between savings and loan associations and their customers. There is, moreover, particularly no confidential relationship between lender and borrower or mortgagee and mortgagor for they are creditor and debtor with clearly opposite interests.

(Citations and punctuation omitted; emphasis supplied.) Pardue v. Bankers First Fed. Sav. &c. Assn., 175 Ga. App. 814, 815 (334 SE2d 926) (1985).

There can be no doubt that, as borrower and lender, the interests of Russell and the Bank were opposite in this case. To the extent that the Bank may have been monitoring the work of the builder prior to disbursements, Russell has provided this Court with no evidence contravening the logical conclusion that the Bank participated in such surveillance to protect interests in its collateral. To that end, this case is similar to those in which a borrower sues his lender for failing to notify him of faulty construction.

[0]rdinarily, an action for damages for faulty construction and incidents thereto, by a homeowner or purchaser against a lending or financing authority, will not lie because the lender’s customary participation, the inspection, is normally not made for the benefit of the homeowner, but is made instead for the protection and benefit of the lender. An exception has been recognized when the lender’s financing activity extends beyond that of a conventional construction lender. If any exception to this rule is made, it will have to be based on some clear promise of the lender to perform certain protective functions, and upon a clear and distinct participation in the activity which resulted in the damage. It is certainly not enough to make general allegations that the lender inspected the work, since such inspections are presumed to be for its own financial purposes and are not intended to ensure a quality of work. The lender is not an insurer of the work of the contractor, unless clear promises appear to the contrary.

(Citations and punctuation omitted.) Decoudreaux v. Mut. Fed. Sav. &c., 216 Ga. App. 503, 504-505 (1) (455 SE2d 88) (1995). As Russell can point to no evidence showing such clear promises by the Bank, his claim that the Bank owed him a fiduciary duty regarding the construction of his home is untenable.

Furthermore, we must point out that there is no copy in the record of a construction financing agreement between Russell and the Bank. And, although Russell has attached an unsigned agreement to his appellate brief, it is not a part of the record and cannot be considered as evidence. The Bank, however, in its answer to Russell’s complaint, has admitted that such a contract existed which indeed had a disbursement schedule for payments to Russell’s builder. The Bank farther admitted that disbursements were not made in strict accordance with this schedule. Therefore, viewing the evidence in Russell’s favor, we can conclude the existence of a construction financing agreement with which the Bank did not strictly comply. We cannot, on the other hand, accept the remainder of Russell’s assertion regarding the terms and breach of this contract for, without any copy of the contract, there is absolutely no evidence to support Russell’s claims. For this reason alone, the trial court properly granted summary judgment to the Bank.

Decided December 7, 1999

Reconsideration denied December 23, 1999

Saia & Richardson, Joseph J. Saia, for appellant.

Miller & Martin, William A. DuPre TV, for appellees.

Moreover, throughout the construction of his home, Russell continuously signed agreements modifying his original note. In each modification agreement, Russell made the following covenant: “There are no defenses, set-offs, counterclaims, cross-actions or equities to or against the enforcement of the loan documents executed in connection with the loan.” As such, Russell must be held to his assertions in these modification agreements, and he is estopped from arguing to the contrary on appeal. And though Russell argues to the contrary,

[t]here are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. Hudson v. Windholz, 202 Ga. App. 882, 887 (3) (416 SE2d 120) (1992). See also Thomas v. Eason, 208 Ga. 822, 827 (2) (69 SE2d 729) (1952); Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591, 592 (2) (323 SE2d 839) (1984). None of plaintiffi’s] assertions constitutes any exception to this rule.

(Citations and punctuation omitted.) Williams v. Fortson, Bentley &c., 212 Ga. App. 222, 223 (1) (a) (441 SE2d 686) (1994).

Thus, for all of the reasons set forth above, the trial court appropriately granted the Bank’s motion for summary judgment in this case.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2072.
    MANIGO v. JOHNSON.
    (527 SE2d 282)
   Blackburn, Presiding Judge.

Leroy Manigo, individually and d/b/a L & L Electrical Contractors (Manigo), appeals the trial court’s award of damages to plaintiff Frances Johnson. Following a bench trial, the trial court determined that Manigo breached his written contract with Johnson in which he had agreed to perform certain electrical work by a specific date. The trial court awarded $4,500 to Johnson on her breach of contract claims and awarded Manigo nothing on his counterclaim for breach of contract. On appeal, Manigo raises several claims of error primarily concerning the sufficiency of the evidence supporting the judgment and the trial court’s rulings on evidentiary admissions. However, because Manigo has failed to provide this Court with the full transcript of the trial, we affirm the trial court’s judgment.

“The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them.” CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 302 (1) (464 SE2d 897) (1995).

1. By way of several assertions of error, Manigo contends that the evidence does not support the trial court’s judgment. The underlying bench trial was presented to the court in two days. However, only the second day of the trial was reported by a court reporter. Additionally, the trial court denied Manigo’s motion to create a transcript under OCGA § 5-6-41 (g). Therefore, we are unable to review those assertions which contest the sufficiency of the evidence. See Hall v. Bussey, 207 Ga. App. 310, 311 (3) (427 SE2d 818) (1993) (“ Tn the absence of a transcript of evidence, we must assume that the trial court’s order is supported by sufficient evidence.’ ”).

2. We have reviewed Manigo’s assertions that the trial court erred by denying his attempt to introduce hearsay testimony regarding conversations he had with another person, who was not a party or a witness at trial, and find that the trial court did not abuse its discretion. See Lewis v. Emory Univ., 235 Ga. App. 811, 817 (2) (509 SE2d 635) (1998) (admission or exclusion of evidence reviewed on an abuse of discretion standard).

3. Manigo’s assertion that the trial court erred by denying his motion to compel is without merit. The record conclusively establishes that Manigo filed a motion to compel due to Johnson’s failure to respond to discovery. Thereafter, Johnson responded to Manigo’s discovery request, and the motion to compel was dismissed as moot. Manigo did not file a motion to compel regarding the adequacy of Johnson’s responses which he now argues on appeal. Additionally, Manigo’s counsel admitted at trial that it was too late to complain of Johnson’s responses.

Decided December 23, 1999.

David H. Fritts, for appellant.

Portman & Felser, Jeffrey A. Felser, for appellee.

4. Johnson has filed a motion for damages asserting that Manigo’s appeal is frivolous. Although we do not rule in Manigo’s favor, we decline to assess damages.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2159.
    DEPARTMENT OF HUMAN RESOURCES v. WEST.
    (527 SE2d 280)
   Blackburn, Presiding Judge.

In this 42 USCA § 1983 civil rights action involving a challenge to the constitutionality of O.CGA § 19-11-9.3, the Georgia Department of Human Resources (DHR) appeals the trial court’s award of attorney fees to Michael G. West pursuant to 42 USCA § 1988, contending, among other things, that West was not a prevailing party and, as such, the award of attorney fees was not appropriate. For the reasons set forth below, we agree that West was not the prevailing party and reverse the award of attorney fees.

1. On March 27, 1997, DHR allegedly mailed a notice to West informing him that his driver’s license would be suspended if he failed to pay $3,000 in child support arrearages. On May 2, 1997, DHR mailed a second notice to West informing him that the requested payment of arrearages was overdue and that he was now subject to having his license suspended pursuant to OCGA § 19-11-9.3. Then, on May 7, 1997, West was notified that his license had been suspended by the Department of Public Safety.

In response, West mailed a letter to DHR requesting a hearing to appeal the suspension of his license. DHR informed West that his request was untimely and that his license would remain suspended until his child support obligations had been fulfilled. West later testified, however, that the Department of Public Safety had not officially suspended his license because the notice had not been properly sent by certified mail.

On July 2,1997, West filed a petition for declaratory judgment in the Superior Court of Rockdale County. In this action, West contended that he never received the initial March 27, 1997 notice from the DHR that his license might be suspended. He further argued that his failure to receive notice stemmed from the insufficient notice requirements in OCGA § 19-11-9.3, and he asked the trial court to “declare said statute unconstitutional and order the Department of Human Resources to withdraw and vacate its request to the Department of Public Safety suspending [his] licenses.” West later amended his complaint to request attorney fees pursuant to 42 USCA § 1988.

After a hearing on all issues before it, the trial court held:

Should any respondent make a prima facie showing by sworn affidavit to DHR that he or she did not in fact receive the notice of intent to suspend license, as mailed under GCGA § 19-11-9.3 (f), and thus is requesting a hearing after the 20 days allowed by the statute, the DHR shall not deny the hearing, but shall send the request for a hearing to the office of State Administrative Hearings without any comment that the hearing request was untimely. There shall be no change in the then pending status of the license until such hearing so long as the hearing is held within 45 days of the Department’s receiving the request. If the hearing is not held within said 45 day period, if the license has been revoked, it shall be reinstated until such hearing occurs.

In a later order, the trial court also granted West’s motion for attorney fees. Here, DHR appeals only the award of attorney fees and not the other rulings of the court. As such, we limit our review to such award, and we do not consider the propriety of the trial court’s remaining decisions.

Under 42 USCA § 1983, the court may use its discretion to award the prevailing party, other than the United States, reasonable attorney fees. See 42 USCA § 1988; Logan v. Johnson, 162 Ga. App. 777 (293 SE2d 47) (1982).

[T]he correct standard for determining whether a § 1983 plaintiff prevails is that used by the U. S. Supreme Court in Farrar v. Hobby, [506] U. S. [103, 111] (113 SC 566, 573, 121 LE2d 494) (1992): A plaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff.

(Punctuation omitted.) Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186, 187 (2) (429 SE2d 661) (1993).

In applying this standard, we must closely scrutinize the merits of the § 1983 claim brought by the plaintiff and the relief granted by the trial court. Here, West requested two forms of relief: (1) a declaration that OCGA § 19-11-9.3 was unconstitutional and (2) the issuance of an order to DHR to withdraw and vacate its request to the Department of Public Safety for suspension of West’s license. A review of the trial court’s order reveals that neither form of relief was granted. First, the trial court found OCGA § 19-11-9.3 to be constitutional, contrary to West’s request. Second, the trial court did not issue an order requiring DHR to withdraw or vacate its suspension request. To the contrary, the court held that, within 45 days after a requested hearing, the pending status of a license shall not be changed, and, if the hearing is not held within 45 days, a revoked license shall be reinstated. Thus, in West’s case, the trial court’s ruling did not affect the status of his license, and DHR was not required to vacate its suspension request. The suspension of West’s license remained pending throughout the entirety of the proceedings.

Decided December 23, 1999.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, for appellant.

Ralph S. Goldberg, for appellee.

Therefore, because he received no relief on the explicit merits of his claim, we cannot consider him to be a prevailing party in this action. While we are sympathetic to the actions of the trial court under the sad facts which underlie this case, the law does authorize the result. West is not entitled to attorney fees pursuant to 42 USCA § 1988, and we are constrained to reverse the trial court’s award thereof.

2. Because of our holding in Division 1, we need not consider DHR’s remaining assertions of error.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2365.
    In the Interest of J. B. et al., children.
    (527 SE2d 275)
   Blackburn, Presiding Judge.

Appellant appeals the trial court’s finding that her children are deprived pursuant to OCGA § 15-11-2 (8), contending that: (1) the trial court employed incorrect standards in making its determination of deprivation; (2) she received insufficient notice of the deprivation hearing; and (3) the evidence supporting the court’s ruling was neither clear nor convincing. Because the trial court employed incorrect standards and, therefore, failed to make appropriate findings of fact sufficient to support its finding of deprivation, we must vacate its finding of deprivation and remand this case.

The record shows that appellant and her former husband are the parents of two minor children, a boy and a girl. During divorce proceedings, appellant accused her husband of molesting her daughter, and the trial court awarded sole physical custody of the children to appellant on May 12, 1988. As part of this custody order, the trial court directed appellant to (1) take her children to a therapist for an abuse evaluation to gauge the merit of the accusations of abuse and (2) keep her daughter away from her maternal grandparents and others who might be influencing the child’s testimony.

Appellant wholly failed to comply with the court’s order, and, subsequently, the trial court found her to be in contempt and had her incarcerated. Then, on March 11, 1999, the trial court conducted a deprivation hearing and determined that appellant’s children were deprived in accordance with OCGA § 15-11-2 (8) due to their mother’s contemptuous actions, and it awarded physical and legal custody to the Department of Family & Children Services (DFACS), pending the children’s abuse evaluation. On May 11, 1999, the trial court entered an order in which it authorized DFACS to transfer physical custody back to appellant following its abuse evaluation. The trial court also ordered DFACS to retain legal custody of the children.

1. We find that the trial court erred because it treated this case as a continuation of its prior, final custody determination in the divorce proceedings and, as a result, the finding of deprivation was not supported by the appropriate considerations and findings of fact.

It is well settled that, when ruling on deprivation petitions, findings of fact must be made in accordance with OCGA § 9-11-52 (a). In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994).

Findingts] of fact and conclusions of law are mandatory under OCGA § 9-11-52 (a). The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached. A mere recitation of the events that took place at the trial does not satisfy the requirements of OCGA § 9-11-52 (a). Furthermore, a bare statement of what the court considered in reaching its conclusions is not a recitation of how those facts give support to or what constitutes the separate conclusions.

(Citations and punctuation omitted.) Id.

Yet, in its order finding deprivation, the trial court states:

In this custody and contempt action, this Court is sitting by designation of the Gwinnett County Superior Court. In awarding temporary custody in a divorce action, the trial court is not required to enter findings of fact and conclusions of law. Wilbanks v. Wilbanks, 238 Ga. 660 [(234 SE2d 915)] (1977). Nonetheless, the Court takes judicial notice of all previous findings of fact and conclusions of law and incorporates same as if fully set forth here.

Decided December 23, 1999.

Adrienne R. McFall, J. Hue Henry, Marie E. Bruce, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, John P. Cheeley, for appellee.

This statement shows that the trial court was inappropriately treating a deprivation determination as part of a custody determination which does not require separate, specific findings of fact. Therefore, as the trial court failed to conduct its analysis of the facts appropriately and failed to prepare findings of fact pursuant to the appropriate standard, we must remand this case with direction that the trial court vacate the judgment, prepare appropriate findings of fact employing statutory standards for determination of deprivation, not custody pursuant to divorce, and enter a new judgment.

2. Although appellant contends that the decision of the trial court should be reversed because she received insufficient notice of the deprivation hearing, the record shows that she failed to raise the issue at the deprivation hearing. Appellant’s attorney pointed out that she had not received a deprivation petition prior to the hearing, but she made no objection and, after reading the petition at the hearing, indicated that she was ready to proceed. As such, appellant has waived any right to argue on appeal that she received insufficient notice in this case. In the Interest of S. J. M., 225 Ga. App. 703, 705 (484 SE2d 764) (1997).

3. Because we must remand this case for appropriate findings of fact, we are unable to examine the merits of the trial court’s order at this time. In the Interest of D. L. G., supra.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ., concur.


text:
    A99A2504, A99A2505.
    BURNETTE v. THE STATE (two cases).
    (527 SE2d 276)
   Blackburn, Presiding Judge.

Upon the trial court’s grant of his motion for out-of-time appeal, Raymond Scott Burnette appeals his convictions of three counts of conspiracy to commit violations of the Georgia Controlled Substances Act and felony-bail jumping. In his first appeal, Burnette challenges the sufficiency of the evidence on the conspiracy counts. And in his second appeal, Burnette contends that a fatal variance existed between the indictment and the evidence which required a mistrial on the bail jumping count. Because the evidence sufficiently supported Burnette’s conspiracy convictions and the variance did not affect Burnette’s substantive rights, we affirm.

Case No. A99A2504

1. By three assertions of error, Burnette challenges the sufficiency of the evidence on each of the three counts of conspiracy to commit a violation of the Georgia Controlled Substances Act for which he was convicted.

On appeal from a criminal conviction, our review of the evidence is guided by certain well-established principles. As recognized in cases such as Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997), the evidence is viewed in a light most favorable to the verdict; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); and the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

Brown v. State, 237 Ga. App. 761, 762 (516 SE2d 810) (1999).

In the present case, Burnette and several co-conspirators were indicted on three counts of conspiracy: one to possess with the intent to distribute and sell methcathinone, one to traffic in methamphetamine, and one to possess with the intent to distribute and sell methamphetamine.

“[I]t is unlawful for any person to . . . distribute ... or possess with intent to distribute any controlled substance.” OCGA § 16-13-30 (b). Methcathinone is a controlled substance listed as a Schedule I drug. See OCGA § 16-13-25 (3) (XX). Pursuant to OCGA § 16-13-31 (e), trafficking in methamphetamine is committed by “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine.”

“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. Therefore, in order to support the conspiracy convictions against Burnette, the State was required to first prove the existence of the conspiracy and then establish some act committed by one of the co-conspirators in furtherance of the conspiracy.

The evidence at trial revealed that the Appalachian Drug Task Force was using informants to uncover a drug manufacturing and distributing organization based in Indiana. Specifically, the task force was investigating the actions of Thomas Manues, an indicted co-conspirator from Indiana, and Charles Gaston, an indicted co-conspirator from Georgia. An informant testified that Manues brought drugs from “somewhere up north” to sell in Georgia. Several co-conspirators, including Deanna Bagwell, Delores Gaston, and Charles Gaston, pled guilty to, among other things, conspiracy to possess with the intent to distribute methcathinone, and they testified for the State in Burnette’s trial.

In September 1995, several co-conspirators, including Manues, Gaston, and Burnette, were arrested as a result of the ongoing investigation. The police searched the home of Deanna Bagwell, where Burnette was found after he tried to conceal himself. The police also searched Manues’ van and Gaston’s residence. As a result of these searches, the police seized quantities of methcathinone, over 28 grams of methamphetamine, cutting agents, and marijuana. They also seized a Colt .380 handgun, a shotgun, and $867.

Specifically with regard to Burnette, the evidence revealed that Burnette accompanied convicted drug runners, took drugs with them, and knew they were transporting drugs. Burnette purchased acetone to cure the drugs.

When Burnette was arrested, his jacket pocket contained a bag of marijuana, several baggies of ephedrin, a bag containing an orange powdery substance and $867. The State’s forensic scientist explained that ephedrin could be used to make methcathinone or methamphetamine. The orange powdery substance was not identified.

The state does not need to prove an express agreement between the parties in order to establish a conspiracy. “The essence of conspiracy is a common design, and conduct which discloses a common design may give rise to the inference of conspiracy. (Cit.)” Waldrip v. State, 267 Ga. 739, 747 (10) (b) (482 SE2d 299) (1997). “Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy. (Cit.)” (Punctuation omitted.) Guerra v. State, 210 Ga. App. [102, 103 (1) (435 SE2d 476) (1993)]. Thus, a conspiracy may be proven by direct or circumstantial evidence. Id.

Dalton v. State, 237 Ga. App. 217, 222 (513 SE2d 745) (1999).

Viewing the evidence in the light most favorable to the verdict, we conclude that Burnette’s conduct and companionship with Manues and Gaston were sufficient to authorize the jury to find him guilty beyond a reasonable doubt of the offenses for which he was convicted.

Case No. A99A2505

2. In a separate trial, Burnette was also convicted of felony-bail jumping. OCGA § 16-10-51 (a). On appeal, he contends that the trial court erred in denying his motion for directed verdict after a variance in the location of his last known address was presented at trial.

OCGA § 16-10-51 (a) provides, in pertinent part:

Any person who has been charged with or convicted of the commission of a felony under the laws of this state and has been set at liberty on bail or on his own recognizance upon the condition that he will subsequently appear at a specified time and place commits the offense of felony-bail jumping if, after actual notice to the defendant in open court or notice to the person by mailing to his last known address or otherwise being notified personally in writing by a court official or officer of the court, he fails without sufficient excuse to appear at that time and place.

The felony-bail jumping indictment alleged that: (1) Burnette had been previously charged with three felony offenses; (2) he had been set at liberty on bail on the condition that he would appear for trial; (3) he had received notice of trial by mailing the calendar to his last known address — Route 1, Box 402M, Springfield, Illinois, 47462; (4) he had acknowledged the court appearance by calling his attorney; and (5) he failed to appear in court for a pre-trial motion and for the subsequent trial. During trial, it was acknowledged by the State that Burnette’s correct address was Route 1, Box 402A, Springville, Indiana, 47462. The State further acknowledged that Burnette’s copy of the trial calendar giving him notice of the trial dates was actually mailed to the wrong address.

Burnette contends that a fatal variance between the indictment and the evidence exists because the State did not mail the court calendar to his last known address, as provided in the indictment. The State argues that the statute provides for notice to the defendant by several different methods and because it proved that Burnette received notice by one of those methods, no fatal variance existed.

Decided December 23, 1999.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

[The] discrepancy in the evidence does not constitute a fatal variance. Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

(Citations and punctuation omitted.) Turner v. State, 231 Ga. App. 747-748 (1) (500 SE2d 628) (1998).

In the present case, the indictment alleged that Burnette acknowledged the court appearance by calling his attorney. Additionally, Burnette’s former attorney testified that he had informed Bur-nette both by telephone and in writing of the upcoming court dates. Therefore, it is clear that any variance in Burnette’s last known address did not affect any substantive rights or Burnette’s ability to prepare his defense.

Judgments affirmed.

Eldridge and Barnes, JJ, concur.


author: Barnes, Judge.

text:
    A99A2357.
    DAVISON v. THE STATE.
    (527 SE2d 285)
   Barnes, Judge.

John Davison, Sr. appeals from his simple battery conviction, contending that insufficient evidence supports his conviction and that the trial court erred when it admitted oral and written statements by the victim and a witness as part of the res gestae.

1. We must review Davison’s “challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), construing the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.” Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997). Viewed in this light, the record shows that Davison’s conviction arose out of a domestic dispute with his ex-wife. At the time of this dispute, Davison and his ex-wife had reconciled and were living together with their two children, John, Jr., age twelve, and Ashley, age seven.

The victim, who was the first witness called by the State, testified that the dispute began when Davison came to bed around 9:15 p.m. and asked her about a noise in the hallway. Because she wás deaf in one ear, the victim did not hear the noise and told Davison that she did not hear anything. Davison then left the room and yelled at Ashley, causing her to cry. When he returned to the master bedroom, he was carrying a blow-dryer and blamed the victim for Ashley’s use of the blow-dryer. When the victim explained that it was Davison’s mother’s fault for giving a blow-dryer to the child, the argument escalated and Davison called the victim a “c — t.” When the victim told Davison not to ever call her that, he hit her in the face and started pulling her hair. He then taunted her by repeating over and over: “Hit me b — h. You’re going to jail tonight.” When the victim hit Davison in the mouth as she tried to make him stop pulling her hair, he let her go, started laughing, and told her repeatedly that she was going to go to jail.

The victim further testified that her two children then ran into the room and John, Jr. told his father to “stop it.” He also told his father that he had seen him hit the victim first. After Davison “stomped out of the room,” the victim called the police. While the victim and her two children were waiting for the police to arrive, Davison told them that he would kill them if they told the police what had happened. Two policemen arrived around fifteen minutes later. The victim and her son, John, Jr., then gave oral and written statements to one of the police officers. The victim testified that she could not recall whether she told the police officer that Davison had hit her but acknowledged that she did not state that Davison had hit her in her written statement.

The State called John, Jr. as its second witness. John, Jr. testified that Davison “got mad at my mom, and he hit my mom and called her a C word and grabbed her hair. And she tried to fight him off and hit him in the lip.” While Davison was pulling the victim’s hair, he told her, “Hit me, the B word. You’re going to jail tonight.” He also testified that his father threatened to kill him if he told the police what had happened.

Deputy Wolfe testified that Davison was outside when he arrived at the home approximately five minutes after he was dispatched. The victim and her two children were inside the home, and the victim was “very distraught.” She was crying, her entire face was very red, and she was pulling loose hair out of her head. Deputy Wolfe testified that the victim and her son told him a version of events that was consistent with their trial testimony, including the fact that Davison had hit the victim first. He admitted on cross-examination, however, that his report did not state that the victim had told him her husband hit her and that it should have included this information.

The State published the victim’s and her son’s statements into evidence, over defense counsel’s objections, after Deputy Wolfe’s testimony. In her statement, the victim wrote:

We were arguing about his mother. He grabbed my hair, kept telling me to hit him, and he would have me arrested. He kept pulling my hair until it hurt too much and I hit him. He jumped up and said, I’ll have you arrested now. He threatened my son who saw the whole thing if he told him he was — he was threatened that he would kill him. I called the police.

The son wrote the following in his statement: “He turned around and hit my mom. He also grabbed my mom’s hair. And she was fighting him off and hit him. He also threatened me and told me he would kill me.”

Davison testified that the victim hit him after he called her “the C name” and that he pulled her hair to get her off of him. He denied hitting her in the face at any time during their fight that evening.

2. We find this evidence sufficient to support Davison’s simple battery conviction. “[I]t is the function of the jury, and not this Court, to resolve conflicts in the evidence.” (Citations and punctuation omitted.) Bales v. State, 232 Ga. App. 761, 763 (1) (503 SE2d 607) (1998).

3. In his remaining assertion of error, Davison contends the trial court erred when it admitted the oral and written statements of the victim and John, Jr., based upon the res gestae exception to the hearsay rule. On appeal, “[a] trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless that finding is clearly erroneous.” Copeland v. State, 235 Ga. App. 682, 684 (2) (a) (510 SE2d 124) (1998).

Decided December 28, 1999

Boyce, Ekonomou & Atkinson, Michael G. Lambros, for appellant.

Richard R. Read, District Attorney, Andrea M. Dyer, Assistant District Attorney, for appellee.

Res gestae declarations are those “accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” OCGA § 24-3-3. “Res gestae evidence is usually contemporaneous to the act, but the length of time between the event and the declaration is not conclusive.” (Citation omitted.) Wil-bourne v. State, 214 Ga. App. 371, 372 (1) (448 SE2d 37) (1994).

[W]hat the law altogether distrusts is not after-speech but afterthought. In cases when a statement is narrative rather than exclamatory, the circumstances must be closely scrutinized, because narrative is generally the result of afterthought. If the declarations appear to spring out of the transaction — if they elucidate it — if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous.

(Citations and punctuation omitted.) Sims v. State, 234 Ga. App. 678, 682 (2) (507 SE2d 845) (1998).

Davison argues that, when the victim and John, Jr. were alone together in the house before the police arrived, they could have worked together to come up with a story that helped the victim avoid going to jail. Davison bolsters his argument that the statements could have been deliberately invented with evidence that (1) the victim heard him tell the police dispatcher that they should come to the house because she had hit him; (2) that the victim told her side of the story in response to a police question; and (3) that John, Jr. was present when the victim told her version of events.

We need not address whether the trial court erred in admitting these statements because Davison’s conviction cannot be reversed unless it is highly probable that their admission contributed to the jury’s verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Because we cannot say that this is such a case, any error in the admission of these statements was harmless. See Gadson v. State, 223 Ga. App. 342, 344 (2) (477 SE2d 598) (1996); Gaston v. State, 211 Ga. App. 116, 117 (3) (438 SE2d 107) (1993).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       The victim explained that Ashley liked to place the blow-dryer either in or under her bed because the noise helped her to fall asleep.


text:
    A99A2501.
    PHILLIPS v. THE STATE.
    (527 SE2d 283)
   Barnes, Judge.

Carmen Phillips appeals her sentence on her first driving under the influence conviction, alleging the trial court erred by ruling that Georgia law required it to sentence her to 24 hours in jail. We affirm.

An accusation charged Phillips with driving under the influence to the extent she was a less safe driver, driving with an alcohol concentration of 0.10 grams or more, and driving with a suspended license. The initial traffic citation indicated that a breath test revealed a blood alcohol concentration of 0.11 grams. She pled guilty, and the parties announced to the court that they had negotiated a plea agreement in which Phillips would plead guilty to driving while a less safe driver and the State would enter a nolle prosequi on the charge of driving with a blood alcohol concentration of 0.10 or greater. During the plea hearing, the trial court said, “And I see that you pulled a point count of 0.11. That alcohol was in your system while you were driving. Is that correct?” Phillips answered, ‘Yes, ma’am.”

While Phillips did not plead guilty to driving with a blood alcohol concentration greater than 0.10 grams or more, a violation of OCGA § 40-6-391 (a) (5), she admitted driving with a blood alcohol concentration greater than 0.10 grams. Therefore the trial court was required to sentence her to at least 24 hours in jail under OCGA § 40-6-391 (c) (1) (B), which provides for

[a] period of imprisonment of not less than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender’s alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph.

Phillips argued at the plea hearing that, because she was pleading only to having driven while a less safe driver and the solicitor agreed that she would not present any evidence of blood alcohol concentration, the trial court did not have to sentence her to 24 hours in jail. In response to that argument, the court replied,

I’ve seen that before and I, frankly, feel like it’s a perversion of the law rather than a correct interpretation of the law. So, I am going to give her the 24 hours. ... [I] am pretty convinced from the language [of the statute] that that is just not the intent. ... I do think that it’s pretty clear what they intended was anything that was in existence, and the only time I would feel comfortable in waiving that is when there was a clear question as to the validity of the test. I don’t think we have that here.

Decided December 28, 1999.

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

Louis J. Kirby, Solicitor, for appellee.

“In determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial.” (Emphasis supplied.) Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985). Further, “sentencing courts are authorized to consider in aggravation any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes.” (Citation and punctuation omitted; emphasis supplied.) McClain v. State, 220 Ga. App. 474, 476 (3) (469 SE2d 756) (1996). While the accusation itself was not evidence that the defendant actually was guilty of the crime charged, Graves v. State, 269 Ga. 772, 774 (3) (504 SE2d 679) (1998), when lawful evidence such as the defendant’s admission established she drove her car with a blood alcohol concentration greater than 0.10, the trial court was required to sentence her to serve at least 24 hours in jail pursuant to OCGA § 40-6-391 (c) (1) (B). Therefore, we conclude that the trial court committed no error.

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.


text:
    A99A2294.
    HALL v. HALL.
    (527 SE2d 288)
   Blackburn, Presiding Judge.

In this domestic action, Rosalind Hall appeals from the trial court’s grant of Woodrow Hall’s motion for awards of attorney fees under OCGA § 9-15-14 (a) and (b), contending that the awards were not justified by the evidence. We affirm in part and reverse in part.

Rosalind Hall and Woodrow Hall divorced in January 1990. The divorce decree incorporated a settlement agreement between the parties. It provided for child support and visitation by the father with their disturbed daughter until age 24. Part of that settlement agreement addressed how the Halls would manage their relationship with their then-12-year-old daughter, Danielle, who did not function appropriately for her age. The divorce decree awarded Rosalind Hall sole legal custody of Danielle and awarded Woodrow Hall certain visitation rights. In the ten years since their divorce, the parties’ relationship has deteriorated, ultimately resulting in Rosalind Hall seeking a permanent protective order and Woodrow Hall seeking to enforce whatever rights he had under the settlement agreement.

1. As part of a dispute over his visitation rights, Woodrow Hall filed a petition for declaratory judgment asking the court to determine the parties’ rights and obligations under the settlement agreement and requesting injunctive relief. In her first assertion of error, Rosalind Hall contends that the trial court erred by awarding attorney fees in the amount of $1,500 to the father, under OCGA § 9-15-14 (a) based upon her filing a motion to dismiss and motion for sanctions in response to the petition for declaratory judgment. We agree that this award of attorney fees was not justified.

Under subsection (a), an award of attorney fees is justified if the trial court determines that a

party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.

OCGA § 9-15-14 (a). The standard of review for motions under OCGA § 9-15-14 (a) is the “any evidence” rule. Moore v. Harris, 201 Ga. App. 248, 249 (1) (410 SE2d 804) (1991). However,

[n]otwithstanding the any evidence standard of review, when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.

(Punctuation omitted.) Id. Applying this standard, we find that Rosalind Hall’s motion to dismiss had some factual merit and presented a justiciable issue of law.

Rosalind Hall moved to dismiss, with the other counts of Woodrow Hall’s petition, Count 1 which asked the court to appoint a guardian ad litem for their adult daughter. The Halls agree that their daughter is developmentally delayed but not incompetent. Although the trial court found that it could appoint a guardian ad litem for the Halls’ daughter under either OCGA § 15-11-6 or § 9-11-17 (c), neither of those statutes applies to their daughter.

OCGA § 15-11-6 concerns the appointment of a guardian for a child in juvenile proceedings. OCGA § 9-11-17 (c) concerns the appointment of a guardian ad litem for an infant or incompetent person. Because the Halls’ daughter was 21 years old at the time of the hearing and had not been determined incompetent, she does not fall within either statute. Moreover, the purpose of a guardian ad litem is to represent parties who are under a legal disability, such as minors or incompetents. Even though the trial court has the discretion to appoint a guardian ad litem in some circumstances, it does not generally have the discretion to appoint a guardian ad litem for a competent adult like the Halls’ daughter.

Since Rosalind Hall’s motion to dismiss asserted an arguably meritorious position, there was not a “complete absence of any jus-ticiable issue of law or fact.” The trial court erred in awarding attorney fees under OCGA § 9-15-14 (a).

2. In her second assertion of error, Rosalind Hall contends the trial court improperly awarded attorney fees under OCGA § 9-15-14 (b). This award was based upon Rosalind Hall’s resistance to being deposed and her failure to disclose that she had moved to Florida prior to a lengthy hearing in Georgia on Woodrow Hall’s petition and her motion for a permanent protective order. The trial court awarded $2,500 in attorney fees for the expenses incurred as a result of the mother’s failure to disclose her relocation to Florida and $1,000 for expenses incurred in connection with deposition difficulties under OCGA § 9-15-14 (b). We find this award of attorney fees was proper.

An award of attorney fees is appropriate under OCGA § 9-15-14 (b) if, in the discretion of the trial court,

an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures. ... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

The standard for review of motions under OCGA § 9-15-14 (b) is the “abuse of discretion” rule. Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 703 (4) (452 SE2d 140) (1994).

With regard to Rosalind Hall’s resistance to being deposed, we cannot say that the trial court abused its discretion based upon the. facts before us. Although Rosalind Hall ultimately was deposed in May 1998, her deposition occurred only after five months of repeated attempts to schedule it, including two motions to compel and one consent order in which she agreed to be deposed in January. Rosalind Hall’s obstinate refusal to cooperate in scheduling her deposition supports the trial court’s award of fees.

Decided December 29, 1999.

Alembik, Fine & Callner, Bruce R. Steinfeld, for appellant.

Paula R. Miller, for appellee.

Neither can we say the trial court abused its discretion by awarding attorney fees based on Rosalind Hall’s failure to timely disclose to the trial court that she and her daughter had relocated out of state and were planning on remaining out of state for at least nine months. This news was disclosed only after the parties and the trial court had spent most of a day attempting to fashion a practical solution to an issue regarding Woodrow Hall’s contact with his daughter. Obviously, any solution to that issue would be affected by Rosalind Hall relocating out of state with her daughter.

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ., concur.