author: Andrews, Presiding Judge.

text:
    A99A1531.
    EMPIRE DISTRIBUTORS, INC. et al. v. HUB MOTORS COMPANY.
    (524 SE2d 264)
   Andrews, Presiding Judge.

Susan Oik, as president of Empire Distributors, appeals from the trial court’s grant of Hub Motors’ motion for summary judgment on Oik’s complaint for fraudulent inducement and breach of a duty of good faith and fair dealings in negotiating several leases for Ford vans and trucks. Because the trial court correctly found that Oik failed to show she reasonably relied on the salesman’s representations, we affirm.

This suit involves five leases: two Ford vans that Oik leased in November 1991, and three trucks that she leased in October, November and December 1992. Oik’s complaint alleges that one of Hub’s salesmen fraudulently induced her to lease trucks for her business instead of purchasing the trucks. Oik became unhappy with the leases when Empire’s vice-president started questioning the wisdom of leasing the vehicles because she “wasn’t happy with the residual” value at the end of the lease period. Several weeks after she entered into the last lease, Oik consulted her accountant who informed her it was costing her $15,093 more to lease the trucks than to purchase them. Oik claims that the reason she decided to lease the trucks and vans instead of purchasing them was the salesman’s assurance that the interest rate available on a lease vehicle was just as good if not better than the interest rate Oik could get from her own bank if she bought the trucks and vans.

Hub Motors filed a motion for summary judgment on Oik’s complaint, which the trial court granted. The trial court found that Oik could not show she reasonably relied on the salesman’s representations and also had not shown any damage resulting from leasing the vehicles instead of purchasing them. We agree.

1. The essential elements of fraud are: (1) a representation made by the defendant, (2) with the knowledge that it was false, (3) and with the intention of deceiving the plaintiff; (4) a reasonable reliance upon the representation by the plaintiff; and (5) loss by the plaintiff as a proximate result of the misrepresentation. Evans Toyota v. Cronic, 233 Ga. App. 318, 319-320 (503 SE2d 358) (1998). Here, Oik’s only evidence on the issue of damages is a letter from her accountant stating that the additional cost to Empire to lease the vehicles as opposed to buying them is $15,093.68. The accountant included several pages of amortization schedules with the letter. Based on this, Oik claims she was damaged by this amount. Even assuming this letter is sufficient to show damages, Oik cannot show that she reasonably relied on the salesman’s representations concerning the interest rate she would be paying or that her loss was a proximate result of these misrepresentations.

There was deposition testimony that there are many reasons why a company may prefer to lease rather than buy vehicles, even if it were paying a higher interest rate for the lease than it would for the purchase, and it is difficult if not impossible to compare payments made under a lease with payments made on a purchase. Nevertheless, even assuming that the total cost under the lease compared with the total cost under a purchase was the only important factor for Oik, she had all the figures she needed to determine whether the lease was more expensive than the purchase. She testified at her deposition that she had already negotiated a sales price with the fleet manager at Hub Motors before she went to the salesman’s office to discuss a lease. The lease papers she signed gave all charges and fees, the amount due at inception, the amount of the payments, the length of time of the lease and the residual value of the truck or van at the end of the lease. Therefore, Oik could easily compare how much she would pay under the lease with how much she would pay on a purchase.

Oik also claims that the salesman refused to give her the cap cost or what she contends is the actual price of the vehicle under the lease and, therefore, she was unable to determine what rate of interest they were charging her. But, Oik’s claim is not that she was damaged because she is paying more interest than she was led to believe; rather, Oik’s claim is that it cost her some $15,000 more to lease than to purchase. Because this information was readily available to her at the time she signed the lease, she cannot show that she reasonably relied on the salesman’s statements about the equivalent interest rate. See Garcia v. Charles Evans BMW, 222 Ga. App. 121 (473 SE2d 588) (1996). A buyer must exercise ordinary diligence and use the means available to him to verify representations. Oik’s admitted “blind reliance” on the salesman’s representations when the means of knowledge were at hand shows an unjustified lack of due diligence. Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 876 (463 SE2d 713) (1995). Oik never consulted with her accountant until after she had signed five leases over a period of about a year. The only reason she discussed it with him then was because the vice-president of her company complained that the residual values of the trucks were too high after 24 months of payments; yet the number of payments, the amount of the payments, and the residual value were clearly listed on the leases and were apparent to Oik before she signed them.

Decided October 29, 1999.

Elizabeth Pelypenko, for appellants.

Misner, Scott & Grate, Steven J. Misner, for appellee.

In addition, we note that the cases cited by Empire concern a failure to disclose a fact which the other party could not discover by the exercise of ordinary prudence and caution, and therefore, they are not on point. Likewise, contrary to Oik’s argument, Evans Toyota, supra, does not apply in this case. In Evans Toyota, the salesman convinced Cronic to buy a used truck by assuring him the truck was fully covered under the manufacturer’s warranty. At the time, the salesman knew the truck had been in an accident and was repaired with nonToyota authorized parts and labor and, therefore, could not be covered under the warranty. Id. at 320. Unlike this case, the customer could not have discovered that the truck was repaired with nonauthorized parts.

Thus, because Oik could not have reasonably relied on any representations by Hub Motors’ salesman in determining whether it would cost more to lease or purchase the vehicles and because any loss suffered by Oik was not the result of the salesman’s alleged misrepresentations, the trial court correctly granted Hub Motors’ motion for summary judgment on Oik’s fraud claim.

2. Oik also claims the trial court erred in granting summary judgment on her claim for breach of good faith and fair dealings. The trial court correctly found that the count alleging this claim referred only to the performance of duties under the contract and because Oik alleged bad faith and fraud only in the inducement of the contract itself and not in the performance of the contract, Hub Motors was entitled to summary judgment on this claim. See Southern Business Machines v. Norwest Financial Leasing, 194 Ga. App. 253, 256 (390 SE2d 402) (1990) (a duty of good faith and fair dealing is implied in all contracts in this state, but there can be no breach of this duty where a party to the contract has done what the provisions of the contract expressly give him the right to do). Oik argues on appeal that evidence was presented on this issue, but fails to point to any evidence in the record that Hub Motors breached an implied duty of good faith in the performance of the contract. This enumeration of error is without merit.

3. Hub Motors’ motion for penalty for frivolous appeal is denied.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A1592.
    A99A1593.
    In the Interest of M. M., a child. In the Interest of D. M., a child.
    (524 SE2d 274)
   Barnes, Judge.

Following an adjudicatory hearing in the DeKalb County Juvenile Court, M. M. and D. M. (collectively “the minors”) were found delinquent on the charge of burglary in violation of OCGA § 16-7-1. The minors appeal, contending the State failed to prove the elements of burglary beyond a reasonable doubt and that the evidence presented at the hearing was insufficient to support their adjudications of delinquency. We disagree and affirm.

On appeal we must view the evidence in the light most favorable to the findings and adjudication of the juvenile court to determine if a rational trier of fact could have found, beyond a reasonable doubt, that the juveniles committed the offense charged. In the Interest of R. L.W., 225 Ga. App. 253, 254 (483 SE2d 361) (1997); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Further, we must “construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact, [and] [i]ssues of the credibility of the witnesses and the resolution of conflicts in the evidence fall within the province of the trial court.” (Citations omitted.) In the Interest of R. A. W., 197 Ga. App. 225 (398 SE2d 261) (1990).

Viewed in this light, the record shows that on May 26, 1998, at approximately 5:35 p.m., Judy Doyle returned to her apartment after work to retrieve her son’s baseball glove for his practice that afternoon. When Doyle tried to open the front door, she discovered the inside chain was attached, and she heard blinds rattling at the sliding glass door in the back of her apartment, as if someone were leaving.

Doyle immediately ran around the outside of her apartment building to the back of her apartment, which was located on the ground floor. As she approached her apartment, she saw the minors running away from her apartment and toward her and their apartment. When she saw them, they were on the grass next to her concrete patio, which was outside the sliding glass doors where she had heard the blinds rattling. The juveniles were not carrying anything as they ran toward their apartment, but one of them asked Doyle, “What’s wrong, Ms. Judy?”

Doyle did not respond and continued running to her apartment, where she found that the sliding glass door was open. She immediately went next door to call the police. After calling the police, Doyle noticed her grill, which the minors had borrowed the previous day, on the patio of their apartment. When she retrieved it, she also saw her son’s baseball glove on the minors’ patio, just outside their door. She testified that this glove had been on her kitchen counter when she left for work that morning.

Doyle then returned to her apartment and discovered that her computer monitor, television, answering machine, cordless phone, a bracelet, two gold rings, a watch, a jar of coins, video games, two video game players, and all of her compact discs were missing. None of the missing items was located in a search of the minors’ apartment two days after the burglary. The minors were the only people Doyle saw behind her apartment after she interrupted the burglary.

One of the minors, M. M., testified that he arrived home from school around 3:00 p.m., went straight to his room, and stayed there all afternoon because he was “on punishment.” He further testified that he did not see Doyle on the day of the burglary or commit the burglary.

The other minor, D. M., testified that after he arrived home from school, he returned Doyle’s grill to her patio. His aunt, however, told him to bring the grill back to their apartment because he had not cleaned it, and D. M. said he complied with her request. He claimed that he stayed indoors the rest of the afternoon watching television with his aunt and denied seeing Doyle that day.

The minors contend these facts do not satisfy the elements of burglary beyond a reasonable doubt. At the adjudication hearing, the State was required to prove the minors made an unauthorized entry into Doyle’s apartment with the intent to commit a theft. OCGA § 16-7-1. The evidence shows that Doyle did not give anyone permission to enter her apartment, that no one else should have been in her apartment, that a rear bedroom window was broken when she came home, and that many valuable items were missing. This evidence shows beyond a reasonable doubt that a burglary took place at Doyle’s apartment. The issue before us is whether the evidence sufficiently shows that the minors committed the burglary.

The minors contend the circumstantial evidence against them is insufficient to support their burglary convictions because it is also consistent with innocence. The evidence linking the minors to the burglary, which is entirely circumstantial, consists of Doyle’s testimony that she saw the minors running away from her patio after she interrupted the burglary and the fact that her son’s glove had been removed from her apartment and placed outside the minors’ patio door.

This circumstantial evidence is sufficient only if it is inconsistent with the minors’ innocence. McGinnis v. State, 183 Ga. App. 17, 19 (2) (358 SE2d 269) (1987). Every inference of innocence need not be excluded, however, only those that are reasonable. Id.

In this case, the minors contend there are reasonable explanations for their presence outside Doyle’s apartment that are consistent with innocence. Specifically, they claim they could have been playing or returning the grill when Doyle saw them. We might be persuaded by this argument but for the fact that both of the minors testified to the contrary. M. M. testified he never saw Doyle and never went outside, and D. M. claimed he never saw Doyle and remained indoors after moving the grill back to his apartment. This is inconsistent with Doyle’s testimony that she saw both of them, and that at the time she saw them, the grill was already at the minors’ apartment. We cannot find that circumstantial evidence is consistent with a reasonable hypothesis of innocence when a defendant’s direct testimony contradicts that hypothesis. Thus, the minors’ presence outside the apartment can be used to support the conclusion that they committed the burglary.

Decided October 29, 1999.

Phyllis R. Williams, for appellants.

Jonath A. Morrow, Solicitor, Lori B. Duff, Assistant Solicitor, for appellee.

With regard to the location of the glove, the minors contend that the glove cannot be used to support their burglary convictions, apparently relying on the principle that “proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary,” even though “it is sufficient to create an inference that the defendant is guilty of the burglary. . . .” Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). While either piece of circumstantial evidence alone might not be sufficient to support the minors’ adjudications, both of them taken together are adequate to support the juvenile court’s finding that the minors committed the delinquent act of burglary beyond a reasonable doubt.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A2251.
    STEWART et al. v. STEWART.
    (524 SE2d 267)
   McMurray, Presiding Judge.

Appellants-plaintiffs (collectively the “plaintiffs”) Richard Stewart, M.D., and Beth Stewart Messina, formerly Beth Stewart Crichlow, individually and as assignees of W. Seaborn Ashley, Jr., executor of the estates of Cora Williams Stewart (“Mrs. Stewart”) and Frances Stewart Core, appeal the joint judgment entered upon the jury’s verdict in the underlying action for damages against appelleedefendant John B. Stewart, Jr. (“defendant”).

In July 1991, Mrs. Stewart and her stepdaughter, Core, executed general powers of attorney in favor of defendant to enable him to manage their assets and to provide for their needs as they grew older. Approximately four months earlier, acting under a power of attorney given her by her stepdaughter following a stroke in the mid-1980s, Mrs. Stewart had invested the proceeds from the sale of certain real property she owned jointly with her stepdaughter in subordinated debentures issued by defendant’s wholly owned company, Stewart Finance Company, Inc. As she had done with nearly $250,000 in other cash assets since the 1970s, Mrs. Stewart designated the defendant as co-owner of the subordinated debentures with right of survivorship.

Core died in 1992. After Mrs. Stewart was admitted to a nursing home a year later, defendant, under the power of attorney she had given him, opened a joint Merrill Lynch account in their names. Therein he deposited the stock which Mrs. Stewart owned individually, sold the same and made personal investments with the proceeds in the amount of $228,247.25. Later in 1993, the defendant, again acting pursuant to the power of attorney Mrs. Stewart had given him, “cancelled” the subordinated debentures he held jointly with Mrs. Stewart, crediting them to the capital account of his finance company in the amount of $244,782.64. Other undisputed evidence showed that defendant, as Mrs. Stewart’s attorney-in-fact, used certain certificates of deposit owned jointly with Mrs. Stewart as collateral for personal and company loans.

Mrs. Stewart died in 1996. In April 1997, plaintiffs brought the underlying action individually and as assignees of the estates of Mrs. Stewart and Core seeking an accounting and recovery of funds in defendant’s name by right of survivorship, alleging fraud, conversion, and breach of fiduciary duty. The trial court denied defendant’s pretrial motion for partial summary judgment as to plaintiffs’ claims on behalf of the Core estate for want of standing to pursue an accounting of defendant’s use of Core’s money as non-beneficiaries under the Core will. At trial in January 1999, defendant moved to dismiss plaintiffs’ claims on behalf of the Core estate upon the grounds urged by his motion for partial summary judgment. The trial court, with substituted judge presiding, dismissed such claim without prejudice. The jury determined that the asset transfers made to himself personally as Mrs. Stewart’s attorney-in-fact were proper. Fundamentally at issue in this case is whether Mrs. Stewart intended the actions of her attorney-in-fact, the defendant. Held,-.

1. Plaintiffs contend the trial court erred in denying their motions for directed verdict, judgment notwithstanding the verdict (“j.n.o.v.”), and motion for new trial. In their motions for directed verdict and j.n.o.v., plaintiffs argue that defendant breached his duty of loyalty to Mrs. Stewart under the power of attorney she had given him by: (a) cancelling their jointly held subordinated debentures and crediting the value thereof to his company’s capital account, and (b) making personal investments using the proceeds derived from the sale of her stocks which he deposited in a joint Merrill Lynch account. Plaintiffs make the same argument in support of their motion for new trial upon the general grounds. Our decision in the case sub judice is controlled by the binding authority of LeCraw v. LeCraw, 261 Ga. 98 (401 SE2d 697), and Jordan v. Stephens, 221 Ga. App. 8 (470 SE2d 733), and we must affirm.

In Georgia,

“sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). See also Godwin v. Johnson, 197 Ga. App. 829, 830 (1) (399 SE2d 581) (1990) (OCGA § 7-1-813 (a) applied equally to certificates of deposit).

Jordan v. Stephens, 221 Ga. App. at 8-9 (1), supra. Moreover, while a power of attorney creates a fiduciary relationship requiring a duty of loyalty to the principal, such duty does not foreclose making gifts of the principal’s property: (a) in the absence of fraud in obtaining the power of attorney, (b) the power of attorney expressly confers the right to transfer stocks, and (c) the evidence indicates that the principal indicates the intent that transfer should occur. Id., citing Wheeless v. Gelzer, 780 FSupp. 1373 (N.D. Ga. 1991). See also LeCraw v. LeCraw, 261 Ga. at 99, supra. There is no evidence that the instant power of attorney was obtained by fraud. The power of attorney expressly authorized defendant to transfer stocks, and there was evidence that Mrs. Stewart consented to the transfers complained of after conferring with the defendant.

That Mrs. Stewart gave her consent knowingly is also supported by other evidence. While Mrs. Stewart’s attending physician and defendant’s wife acknowledged that Mrs. Stewart had uncommunicative days after entering the nursing home in 1993 at the age of 98, both agreed that she was fully rational and alert on other days. The social director at the nursing home agreed. Moreover, there was no dispute at trial as to Mrs. Stewart’s mental status at the time she made defendant her attorney-in-fact in 1991. In this regard, defendant testified that apart from ensuring that Mrs. Stewart and her stepdaughter were fully cared for throughout the remainder of their lives, Mrs. Stewart placed no restriction on his use of their jointly owned funds and intended that he should have whatever remained at her death. There is no claim that the defendant failed to provide the care that this agreement required of him.

The standard of review of the trial court’s denial of plaintiffs’ motions for directed verdict and j.n.o.v. is the any evidence standard. Horton v. City of Macon, 144 Ga. App. 380, 382 (2) (241 SE2d 311). The any evidence standard is also applicable to our review of plaintiffs’ motion for new trial. Howard v. Rivers, 266 Ga. 185 (1) (465 SE2d 666); Burnet v. Bazemore, 122 Ga. App. 73, 74 (176 SE2d 184). We conclude that there is evidence that Mrs. Stewart intended that the defendant should receive the gifts which resulted from defendant’s transfer of their subordinated debentures and the sale of stock she owned individually. Accordingly, the trial court properly denied plaintiffs’ motions for directed verdict, for j.n.o.v., and for new trial thereon.

2. Plaintiffs also contend that the trial court erred in denying their motion in limine to foreclose the introduction of evidence of Mrs. Stewart’s intent as it related to defendant’s authority to manage her financial affairs on her behalf. In this regard, plaintiffs argue that defendant’s testimony concerning his longtime relationship with Mrs. Stewart and the manner in which he managed her financial affairs before and after he was given her power of attorney was improper as seeking to expand his authority under the general power of attorney Mrs. Stewart gave him. We disagree.

In this case, as in Jordan v. Stephens, 221 Ga. App. at 9 (1), supra, the primary issue for consideration was Mrs. Stewart’s intent as to defendant when he established the joint accounts. OCGA § 7-1-813 (a). See also LeCraw v. LeCraw, 261 Ga. at 99, supra. This was a jury question. Godwin v. Johnson, 197 Ga. App. at 831 (1), supra. See White v. White, 262 Ga. 168 (415 SE2d 467) (“Hearsay evidence is admitted only in specified cases from necessity.” OCGA § 24-3-1 (b)). Consequently, the trial court properly denied plaintiffs’ motion in limine as to evidence of Mrs. Stewart’s intent.

3. Plaintiffs next enumerate that the trial court erred in denying their motion to excuse two jurors for cause.

After plaintiffs’ counsel moved to disqualify the jurors, the trial court asked the following question of the jurors:

Ms. Turner and Mr. Brock, at the beginning of this trial, you all took an oath, as everyone else did in the room, to be fair and impartial. And you’ve indicated in your answers that you have a relationship of some type with either a party or a witness in this case. And the question I have is this. Can you listen to the evidence that’s produced and listen to the instructions on the law that I give you at the end of the trial and live up to your oath, that is, be fair and impartial to both parties and reach a decision that speaks the truth [?] Do you think you can do that? I’ll have to have a yes or no answer.

Both jurors responded, “Yes.”

It is well settled that trial courts exercise broad discretion in qualifying jurors. Hardy v. Tanner Med. Center, 231 Ga. App. 254, 256 (4) (499 SE2d 121). On appeal, that discretion will not be disturbed in the absence of manifest abuse. Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (I) (1) (b) (224 SE2d 739) (trial court refused to disqualify jurors whose families had been patients of that medical internist defendant). Moreover, the law presumes potential jurors to be fair and impartial. While this presumption is rebuttable, it is the objecting party’s burden to do so. Cohen v. Baxter, 267 Ga. 422, 424 (2) (479 SE2d 746). After reviewing the record, we cannot say that plaintiffs met their burden of rebutting this presumption. The trial court, therefore, did not abuse its discretion in declining to remove jurors Turner and Brock.

14. There is no merit to plaintiffs’ contention that the trial court erred in denying their motion for directed verdict as to plaintiffs’ claims for damages arising from defendant’s use of certificates of deposit owned jointly with Mrs. Stewart as collateral on loans made to Stewart Finance Company and to defendant personally. There was, however, no evidence that defendant’s use of jointly owned certificates of deposit increased his company’s capacity to obtain loans at the bank. In any event, defendant’s testimony, corroborated by the bank president who loaned him money upon his pledge of the certificates of deposit in issue, was that no money used as collateral was ever lost or diminished in value.

“Where a party makes a claim for a monetary sum . . . it is incumbent upon him to present evidence showing the amount of loss in a manner in which the jury can calculate the amount of loss with a reasonable degree of certainty. An allowance for damages cannot be based on guesswork.”

DeJong v. Stern, 162 Ga. App. 529, 530 (1) (292 SE2d 115), citing Tendrift Realty Co. v. Hayes, 140 Ga. App. 896 (1) (232 SE2d 169); Hip Pocket v. Levi Strauss & Co., 144 Ga. App. 792, 794 (242 SE2d 305).

Plaintiffs had the burden of showing that there was some diminution in the value of Mrs. Stewart’s estate that would have caused injury to them as beneficiaries of her estate as a result of the use of her jointly owned certificates of deposit as collateral. That evidence not having been offered, the trial court properly granted defendant’s motion for directed verdict thereon.

Decided October 29, 1999

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., H. Samuel Atkins, Jr., for appellants.

Chambless, Higdon & Carson, Thomas E Richardson, Kim H. Stroup, Peter J. Rice, Jr., for appellee.

5. Plaintiffs lastly enumerate that the trial court erred in dismissing without prejudice their claims as assignees of the estate of Frances Stewart Core.

Inasmuch as plaintiffs were neither beneficiaries nor creditors of Core’s estate, they were not proper parties to assert any claims on behalf of the estate at the time these were assigned to them. OCGA § 53-7-104. Neither were they proper parties at the time of trial. OCGA § 53-7-45. Accordingly, the trial court properly dismissed plaintiffs’ claims as assignees of Core’s estate due to lack of standing. Williams v. Theus, 186 Ga. App. 401, 402 (367 SE2d 288).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Mrs. Stewart’s doctor referred to clinical notes he had made in 1993 indicating that she talked rationally in July 1993 and “very intelligently” a month-later. Defendant’s wife indicated that she could be “clear as a bell” on some days and that she always seemed to know her until the last month of her life.

       OCGA § 53-7-104, effective until January 1, 1998, provided:
      If the administrator or executor, for any cause, shall decline to litigate any claim, he may assign the claim to a distributee or creditor, who may at his own expense prosecute the same. After the payment of expenses, any proceeds recovered shall be distributed by the administrator or executor.
      (Emphasis supplied.)

       OCGA § 53-7-45, effective July 1,1998, provides:
      Personal representatives are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate. A personal representative who declines to litigate any claim may assign the claim to a creditor or an heir of an intestate estate or a beneficiary of a testate estate for the purpose of prosecuting the claim at that person’s own expense and, after reimbursement of the expenses to the creditor, heir, or beneficiary, any remaining proceeds shall be paid over to the personal representative for administration.
      (Emphasis supplied.)


author: Blackburn, Presiding Judge.

text:
    A99A2254.
    WILSON v. STATE OF GEORGIA.
    (525 SE2d 708)
   Blackburn, Presiding Judge.

Floyd Wilson appeals the trial court’s order granting summary judgment to the State in this drug forfeiture action brought pursuant to OCGA § 16-13-49. Wilson contends that the trial court erred in failing to hold a hearing as required by OCGA § 16-13-49 (o) (5) and that the evidence was insufficient to support any forfeiture because it did not establish possession of more than one gram of cocaine as required by OCGA § 16-13-49 (e). Because Wilson failed to file an answer to the State’s in rem complaint for forfeiture, his contentions are without merit, and we affirm.

Decided October 12, 1999

Reconsideration denied November 1, 1999.

Floyd Wilson, pro se.

An interest holder in property that is the subject of the forfeiture action may file an answer to the State’s complaint within 30 days after service of the summons and complaint. See OCGA § 16-13-49 (o) (3). If no answer is made within that time frame, the trial court is required to order the disposition of the property. See OCGA § 16-13-49 (o) (4) (“[i]f... no answer has been filed, the court shall order the disposition of the seized property as provided for in this Code section”). Contrary to Wilson’s contention, a hearing is required only when an answer is filed. OCGA § 16-13-49 (o) (5).

A forfeiture action is a civil action, and the State’s burden of proof is not that required in a criminal trial. The Code section governing forfeiture provides that, unless rebutted, the forfeiture of property is presumed to be appropriate where the State establishes probable cause that:

(A) The person has engaged in conduct giving rise to forfeiture; (B) The property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after the period; and (C) There was no likely source for the property other than the conduct giving rise to the forfeiture.

OCGA § 16-13-49 (s) (3). The evidence presented by the State established probable cause that Wilson possessed cocaine with the intent to distribute. Therefore, it was unnecessary for the State to establish possession of more than one gram of cocaine merely because he had pled guilty to possession of cocaine rather than possession with intent to distribute. See OCGA § 16-13-49 (e) (property subject to forfeiture if “used to facilitate a transaction in or a purchase of or sale of a controlled substance”).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

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


author: Phipps, Judge.

text:
    A99A1024.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al. v. HUNCKE et al.
    (524 SE2d 302)
   Phipps, Judge.

This case presents the question of whether a homeowner’s policy provides coverage for a motorized all terrain vehicle (“ATV”) in a field 400 yards from the insured’s residence, while operated for recreational' purposes by a 14-year-old nonrelative nonresident of the insured’s home.

The facts, which are largely undisputed, are as follows. Edward Morton allowed 14-year-old Patricia Huncke to operate his four-wheel drive ATV for her recreation. The ATV was not registered as a motor vehicle. She lost control of the ATV in a field next to Morton’s home and crashed into a parked automobile approximately 400 yards from the home. Goldie Simpson was in the automobile, and she was severely injured in the collision. She sued Huncke and Morton for damages.

Georgia Farm Bureau Mutual Insurance Company insured Morton through a homeowner’s policy. Farm Bureau filed a complaint for declaratory judgment and injunctive relief, seeking an order declaring that its policy did not cover Simpson’s injuries, and then moved for summary judgment. Simpson opposed Farm Bureau’s motion on the grounds that her injuries were not excluded from coverage under the policy and that Huncke was an insured under the policy. The motion was denied by the trial court. Because we find that the policy excludes coverage for claims arising out of the entrustment of a vehicle by the insured to a third party as in this case, and that there is no applicable exception, we reverse.

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. [Cit.]
In construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured.

Farm Bureau points to the exclusions listed in Section II of its policy. The policy will not cover bodily injury or property damage arising out of “the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person.” Simpson claims that the policy contains exceptions to this exclusion.

There are four exceptions to the policy’s entrustment exclusion. Only exceptions (2) and (4) could be applicable. Under exception (2), the policy’s entrustment exclusion would not apply to “a motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and . . . owned by an insured and on an insured location.” The “insured location” includes the “insured premises,” which is the residence and associated grounds or premises used in connection with the insured premises. The incident took place adjacent to Simpson’s home, 400 yards from Morton’s residence, and there is no evidence that it occurred on grounds associated or used in connection with Morton’s residence. Therefore, exception (2) does not apply.

Exception (4) is not restricted to an incident on the “insured location.” It states that the entrustment exclusion does not apply to “a vehicle or conveyance not subject to motor vehicle registration which is . . . used to service an insured’s residence.” Was the ATV a vehicle used to service Morton’s residence?

The ATV was used for children’s recreation and to scout Morton’s agricultural fields. Children’s recreational use of the ATV is not service of Morton’s residence pursuant to exception (4). Recreational use may be a benefit to the insured, but for the exception to apply the recreational benefit must be related to the residence. Under these facts, any such benefit was not related to the residence. Nor does use of the ATV to scout Morton’s agricultural fields have a nexus to his residence, so exception (4) does not apply.

Farm Bureau also denies coverage under the policy because it claims the ATV was “subject” to motor vehicle registration, although it was not registered, and because Huncke is not an “insured” under the terms of the policy. Because we have found that the policy excludes coverage for Simpson’s injuries on other grounds, we do not need to address other policy coverage issues raised by Farm Bureau.

Decided November 1, 1999.

Brown & Livingston, Joseph H. Cowart, for appellants.

Calvin A. Rouse, for appellees.

Simpson’s injuries arose out of Morton’s entrustment of his ATV to Huncke, and the policy excluded coverage for those injuries absent an applicable exception: The trial court erred when it denied Farm Bureau’s motion for summary judgment because the policy excludes coverage for a claim arising out of the facts in this record.

Judgment reversed.

Barnes and Ellington, JJ, concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citations and punctuation omitted.) Atlantic Wood Indus. v. Lumbermen’s Underwriting Alliance, 196 Ga. App. 503, 505 (2) (396 SE2d 541) (1990).


text:
    A99A1135.
    HUTCHINS v. J. H. HARVEY COMPANY.
    (524 SE2d 289)
   Phipps, Judge.

Minnie T. Hutchins filed a slip and fall action against J. H. Harvey Company, claiming its negligence caused her fall and resulting injury. J. H. Harvey sought summary judgment, claiming Hutchins failed to show (1) what caused her fall, (2) that J. H. Harvey had actual or constructive knowledge of the alleged foreign substance, or (3) that she exercised ordinary care for her own safety. Hutchins appeals the trial court’s order granting J. H. Harvey’s motion. Because we find that issues of fact remain regarding all three issues, we reverse.

At approximately 9:00 a.m. on March 31, 1996, Hutchins went into a J. H. Harvey supermarket to buy a few items on her way to a church meeting. Shortly after she entered the store, Hutchins pulled a shopping buggy out of the line of buggies, straightened out the wheels, and began to walk behind it. As she started to walk forward, she slipped and fell on her hands and knees. Hutchins admitted at deposition that, before she fell, she did not see anything on the floor. She also testified, however, that something on the floor soiled her dress. Hutchins was looking at the buggy, not the floor, when she fell and did not expect any thing, to be on the floor near the door.

After she fell, Hutchins discovered a nine-inch puddle of clear liquid on the floor. Hutchins conceded that if she had been looking for it, she probably could have seen the puddle.

After Hutchins got up, J. H. Harvey’s manager, Keith Rice, came over to where she had fallen and asked her if she wanted to fill out an accident report. Hutchins said she did and went to Rice’s office to fill out the report. In her portion of the report, Hutchins did not mention what caused her fall.

Rice testified at deposition that he checked the floor where Hutchins had fallen by getting down on his knees and feeling the floor. He noticed that Hutchins’s shoes, pumps with one and a half-inch heels and leather soles, had left a black skid mark on the floor where she fell, but he saw nothing that would have caused her to fall. Rice instructed one of his employees to take photographs of the floor where Hutchins fell. In his portion of the accident report, Rice stated that he found nothing on the floor where Hutchins fell.

Hutchins’s son was waiting outside in the car for her. When told that his mother had fallen, he came into the store and went straight to the office (at the front of the store) where she was sitting. He never looked at the spot where she fell. Hutchins’s son then went to the back of the store to get the items his mother had come to buy and saw someone cleaning the floors with a machine. Based on his experience in the cleaning industry, Hutchins’s son was familiar with the cleaning machine in use. He testified at deposition that the machine would leave some moisture on the floor after cleaning and it would take about 20 to 30 minutes to dry. He also testified he did not see any excess water on the floor where it was being cleaned and that the person operating the machine was doing a good job.

Rice testified at deposition that a J. H. Harvey employee was responsible for running the cleaning and buffing machines every morning and that the procedure took about an hour and 15 minutes. According to Rice, the machine used a reddish-pink cleaning liquid that was dispensed by the operator onto the brushes to clean the floor. There were additional brushes and a vacuum system behind the first row of brushes, which picked up all of the liquid so that it was dry as the operator walked behind the machine. Rice conceded that if the operator dispensed too much liquid, the pads could become saturated and excess liquid would be thrown out the sides. The operator should have picked up any excess liquid as he proceeded with the cleaning.

Rice also testified that J. H. Harvey’s inspection procedures required the floor to be swept and inspected every two hours. In addition, spot cleaning was performed if, for example, a customer dropped an item and the floor required cleaning.

When the store was swept, the employee who did it recorded the time of sweeping on a sweep card. Based on the sweep card for March 31, the floors were swept and inspected between 7:17 a.m. and 7:47 a.m., but not between 7:47 a.m. and about 9:00 a.m., the time when Hutchins fell. Rice testified that there could have been sweeping not reflected on the sweep cards, but he was not aware of any.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law. “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.”

1. To prove negligence in a slip and fall premises liability case, the plaintiff must show (1) the defendant had actual or constructive knowledge of the foreign substance, and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. A plaintiff who alleges she slipped on a foreign substance must present some evidence of a foreign substance on the ground where she slipped.

Hutchins testified that she saw a clear puddle of liquid on the floor where she fell and that it soiled her dress. Rice, on the other hand, testified that there was nothing on the floor where Hutchins fell and that photographs were taken to prove the absence of any foreign substance. But the photographs do not conclusively show whether anything was on the floor at the time. Hutchins’s testimony, which has not been clearly refuted, is sufficient to create a genuine issue of material fact regarding the presence of a foreign substance on the floor where she fell.

2. Next, Hutchins must show that J. H. Harvey had actual or constructive knowledge of the foreign substance. Hutchins makes no claim that J. H. Harvey had actual knowledge of the hazard causing her fall. She may establish constructive knowledge by either of two methods. She must show that an employee of J. H. Harvey was in the immediate area of the hazard and easily could have seen the substance, or she must show that the foreign substance remained on the floor long enough that ordinary diligence by J. H. Harvey should have discovered it.

Hutchins testified that she was not sure if anyone actually saw her fall, but that a J. H. Harvey employee saw her as she was getting up. According to Hutchins, the employee who saw her get up worked at the cash register. Hutchins was not looking at the floor and did not see the liquid until she was actually on the floor. And there is no evidence that an employee who could have seen the clear liquid prior to Hutchins’s fall was working nearby.

Hutchins claims that J. H. Harvey had constructive knowledge of the substance because the employee cleaning the floor knew that he had dispensed the liquid on the floor and failed to clean it up. Although a jury could infer that the liquid on the floor came from the cleaning machine, Hutchins’s son testified that the employee operating the machine was at the back of the store shortly after his mother fell. Hutchins’s son also testified that he saw no excess water on the floor where the employee was operating the machine and it appeared that the employee was doing a good job. Viewing these facts in a light most favorable to Hutchins, we see no reasonable basis on which to conclude that the employee operating the cleaning machine had knowledge (which could be imputed to J. H. Harvey) of the liquid on the floor at the front of the store.

Having failed to establish that a J. H. Harvey employee was in the immediate vicinity when she fell, Hutchins must use the second method of proving constructive knowledge.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

In addition, on a motion for summary judgment, the owner must demonstrate its inspection procedures before the plaintiff must show how long the hazard has been present.

J. H. Harvey presented evidence of its general inspection procedures and the procedures utilized the day Hutchins fell. We cannot conclude as a matter of law, however, that J. H. Harvey’s inspection procedures were reasonable under the circumstances. The length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location. Rice testified that he was not aware of any sweeping or inspection between 7:47 a.m. and the time Hutchins fell (between 9:00 a.m. and 9:10 a.m.), a period of at least one hour and fifteen minutes, and that the substance could have been on the floor that long. Under these circumstances, we find that the reasonableness of J. H. Harvey’s cleaning and inspection procedures was for the jury to determine.

Decided November 1, 1999

Rodney M. Keys, for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

3. J. H. Harvey contends Hutchins failed to exercise reasonable care for her own safety because she was looking at the shopping buggy when she fell and probably could have seen the liquid if she had been looking for it. In Robinson v. Kroger Co., the Supreme Court of Georgia rejected any requirement that an invitee look continuously at the floor for defects because “the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” Hutchins’s failure to look at the floor as she began pushing her shopping buggy forward does not establish that she failed to exercise reasonable care for her own safety as a matter of law. In addition, Hutchins may not have seen the clear liquid even if she had been looking down as she walked. J. H. Harvey is not entitled to summary judgment on this issue.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Emphasis omitted.) Id.

        Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997).

        Williams v. EMRO Marketing Co., 229 Ga. App. 468, 469 (2) (494 SE2d 218) (1997); Bradley v. Red Food Stores, 179 Ga. App. 39, 40 (345 SE2d 127) (1986).

        Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).

        Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999); see Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999); Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

       Id.

        J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 469 (1) (b) (522 SE2d 749) (1999); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

       See id. (failure to inspect supermarket floor for period of one hour and forty-two minutes prior to fall gave rise to jury question on reasonableness of procedures); Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (498 SE2d 565) (1998) (failure to inspect fast food restaurant during twenty-minute period may be unreasonable).

        Robinson, supra at 743.


author: Miller, Judge.

text:
    A99A1314.
    SCOTT v. THE STATE.
    (524 SE2d 287)
   Miller, Judge.

In the presence of a confidential informant who arranged the transaction, Bennie Scott and two other men purchased five pounds of marijuana from an undercover agent and stated they intended to sell it. The transaction was recorded on video and audio tape. Convicted of possession of marijuana with intent to distribute, Scott enumerates as error (i) the court’s denial of his motion for continuanee, (ii) the admission of an independent offense, and (iii) the court’s failure to probate or suspend all or part of his sentence.

1. Two years before trial, Scott requested the informant’s identity, address, and criminal record. Although the trial court denied the request, the State provided the information four days before trial. Scott moved for a continuance, arguing that he did not have enough time to obtain certified copies of the informant’s convictions nor to interview the informant before trial. In response, the State stipulated to the informant’s prior convictions and agreed the informant would testify only that the audio tapes of his conversations with Scott were unchanged. Ordering that Scott could interview the informant prior to the start of the trial, the court denied the continuance.

Denial of a motion for continuance lies within the discretion of the trial court, and unless manifestly abused, the denial thereof will not be disturbed. Because the trial court provided Scott’s counsel an interview with the informant before trial, Scott’s rights were adequately protected. Moreover, Scott’s counsel cross-examined the informant extensively on his criminal record and the arrangement of the sale. The trial court did not abuse its discretion in denying Scott’s motion for continuance.

2. Scott also argues the trial court erred by admitting evidence of an independent offense. To prove a common course of conduct, the State introduced evidence of Scott’s 1977 conviction for possession with intent to distribute marijuana.

Jones v. State reiterated the standard for admitting similar transactions:

Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for any independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime.

The evidence showed that eighteen years earlier Scott was in a vehicle in the same geographical area as this case, when the police searched his car pursuant to information from a reliable confidential informant and found ten pounds of marijuana. Scott argues that the only similarity between the two cases is the marijuana. We do not agree. Both cases occurred in Chatham County, only two miles apart. Both were sales of marijuana to Scott in large enough quantities to indicate intent to distribute. In both cases, Scott was accompanied by two males and intended to use a vehicle to transport the contraband. The court’s finding that there was sufficient similarity between the two crimes for the limited purpose of proving a similar course of conduct and intent was not clearly erroneous.

Decided November 1, 1999.

E. Jerrell Ramsey, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

3. Finally, Scott argues that the trial court erred in failing to consider probating part of his sentence. The trial court initially sentenced Scott to ten years without parole under OCGA § 17-10-7 (c). Scott moved to correct the sentence, arguing he should be sentenced under OCGA § 17-10-7 (a). The trial court amended the order and sentenced Scott to ten years under OCGA § 17-10-7 (a), thereby eliminating the denial of parole.

During sentencing, the trial court received evidence of Scott’s five drug-related felony convictions. The trial court considered two convictions as recidivist under OCGA § 17-10-7 (a) and the remaining three as prior bad acts. The trial court exercised discretion in determining Scott’s sentence on two separate occasions and delivered a sentence within the limits of the law. This court will not disturb a sentence within the statutory limits. Any question as to the excessiveness of the sentence is a matter for a sentence review panel.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       OCGA § 16-13-30.

       At trial the State in fact had the informant testify to other matters, but Scott raised no objection. Failure to object waives the State’s non-compliance with a stipulation. Garrett v. State, 173 Ga. App. 292 (2) (325 SE2d 911) (1985).

        Pulliam v. State, 236 Ga. 460, 462 (224 SE2d 8) (1976); Wellons v. State, 144 Ga. App. 218, 219 (2) (240 SE2d 768) (1977).

       See OCGA § 17-16-8 (a); McLarty v. State, 238 Ga. App. 27, 29-30 (2) (516 SE2d 818) (1999).

       236 Ga. App. 330, 332 (1) (511 SE2d 883) (1999).

       (Citation and punctuation omitted.) Id. at 332 (1) (b).

        Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985) (the lapse of 19 years between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility). Compare Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991) (where an event 31 years in the past was too remote for similar transaction evidence).

        Duque v. State, 228 Ga. App. 391, 392 (2) (491 SE2d 841) (1997).

       See OCGA § 17-10-6. See generally Harden v. State, 239 Ga. App. 700, 701 (3) (521 SE2d 829) (1999); Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510) (1981).


author: Smith, Judge.

text:
    A99A1419.
    CARLSON v. THE STATE.
    (524 SE2d 283)
   Smith, Judge.

Gary Carlson was convicted of the offense of misdemeanor possession of marijuana. After the denial of his motion for new trial, Carlson filed this appeal to challenge two evidentiary rulings by the trial court and the court’s refusal to give two requested jury instructions.

When viewed in a light most favorable to the verdict, the evidence showed the following. While on bicycle patrol, Officer David Meadow observed Carlson and another person behind some bushes bordering a bank parking lot and near an automatic teller machine. As Officer Meadow immediately moved closer to investigate, he saw Carlson thrust his right hand into his trouser pocket. When Officer Meadow asked Carlson to remove his hand, he noticed a clear plastic sandwich bag protruding from the pocket. The bag appeared to contain marijuana. Although Carlson then shoved the bag back down into his pocket, he was placed under arrest for violating the Georgia Controlled Substances Act.

The trial court refused to qualify defense witness Alan Gordon, a self-described “marijuana specialist,” as an expert but did allow Gordon to testify According to Gordon, because he personally suffers from a genetic condition that causes anxiety and impairs his immune system, he regularly uses marijuana for its medicinal benefits. Gordon testified that his use of marijuana improved the functioning of his immune system.

Carlson admitted to possessing the marijuana in question, but claimed that smoking marijuana enhanced his physical state. Carlson testified that he suffers from a muscular problem in his throat, stomach, and esophagus for which marijuana provides more effective treatment than prescription drugs. Carlson admitted, however, that the marijuana at issue had not been prescribed by a doctor. Nor did Carlson offer any competent medical evidence as to his alleged medical condition, what drugs had lawfully been prescribed for him, or how those drugs had affected his condition.

1. Carlson contends that the trial court erred by refusing to allow his defense witness to be qualified as an expert concerning the therapeutic and medicinal effects of marijuana.

The qualification of a witness as an expert lies entirely within the sound discretion of the trial court, and the exercise of such discretion will not be disturbed absent a showing of abuse. Thomas v. State, 239 Ga. 734, 736 (4) (238 SE2d 888) (1977). Whether a witness has such learning and experience in a particular science or profession as would support the claimed expertise is for the court to decide. Barrow v. State, 235 Ga. 635, 639 (5) (221 SE2d 416) (1975). A witness’s mere assertion of his own expertise in a particular field is not enough. Goodman v. Lipman, 197 Ga. App. 631, 632-633 (2) (399 SE2d 255) (1990). Such determinations must be based on evidence of the witness’s education, training, or experience in the pertinent field of study. Id. at 633.

Gordon, the founder and executive director of the Drug History Institute, was asked on voir dire about his self-proclaimed expertise concerning marijuana. Gordon claimed he knew about marijuana’s therapeutic and medicinal benefits from having “been an avid user for more than a decade,” from being “deeply immersed in the underground culture,” and from having studied the drug. Gordon admitted that he had not conducted any scientific or laboratory research or published any scholarly articles other than one “self-published work” on the Internet. Nor had Gordon earned any academic degree beyond the bachelor’s level. In these circumstances, Carlson failed to show that the trial court abused its discretion in declining to deem Gordon an expert “as to the effects of marijuana on the body.” Thomas, 239 Ga. at 736 (4); Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 712 (1) (225 SE2d 80) (1976) (whether a witness is qualified to testify as an expert is a legal question for the court).

2. Carlson asserts that the trial court’s exclusion of his expert’s testimony about the beneficial use of marijuana for certain physical ailments precluded him from adequately presenting his sole defense of justification.

Gordon was permitted to testify on the basis of his personal knowledge about how using marijuana had alleviated his own anxiety problems and enhanced his immune system. But no evidence indicated that Gordon had any firsthand knowledge about Carlson’s alleged medical condition or any possible treatment for it. Even had Gordon been qualified as an expert, when an expert’s opinion is based solely on out-of-court hearsay not subject to any exception to the hearsay rule, that testimony is inadmissible. McEver v. Worrell Enterprises, 223 Ga. App. 627, 631 (2) (478 SE2d 445) (1996).

3. In two enumerations of error, Carlson contends that the court erred in refusing to give the jury charges he requested on the defense of justification and the definition of an affirmative defense. We disagree.

A request to charge must be legal, apt, precisely adjusted to some principle of law in the case, and authorized by the evidence. Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 138 (2) (308 SE2d 378) (1983). Because charges must be adjusted to the facts and the law, if any portion of a requested charge is confusing, misleading or an incorrect statement of the law, the trial court may properly refuse to give the charge. Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

Affirmative defenses are those in which the defendant admits doing the act charged but seeks to justify, excuse, or mitigate his conduct. Hightower v. State, 224 Ga. App. 703, 704 (2) (481 SE2d 867) (1997). Under OCGA § 16-3-20, the defense of justification applies only in the particular situations delineated by the legislature or when such defense can “stand upon the same footing of reason and justice as those enumerated in this article.” OCGA § 16-3-20 (6). See Hightower, supra.

Here, Carlson sought the following instruction on justification: “I charge you that if you find the defendant’s conduct was justified, this is a defense to prosecution for any crime based on that conduct.” After noting that no evidence had been offered to show that Carlson was in lawful possession of the marijuana, the trial court refused to give this instruction.

Plainly, Carlson lacked any recognized legal basis that would excuse his conduct. Although the legislature has authorized certain qualified physicians under the supervision of the State Board of Medical Examiners to provide marijuana on a compassionate basis to “ [c] ancer patients involved in a life-threatening situation in which treatment by chemotherapy or radiology has produced severe side effects,” or to “[g]laucoma patients who are not responding to conventional controlled substances,” Carlson did not assert that his drug use fit within either exception. OCGA § 43-34-123 (b) (1), (2); see also OCGA § 43-34-121 (e). Nor did Carlson claim he was a patient participant in a designated program and thereby entitled to immunity from prosecution under OCGA § 43-34-126.

In seeking this charge, Carlson was effectively attempting to supplant the legislature’s decision not to establish an exception to the crime of possession of marijuana when the marijuana is purportedly being used for medicinal purposes but has not been prescribed by an authorized physician for one of the permitted therapeutic uses. See Blincoe v. State, 231 Ga. 886, 889 (4) (204 SE2d 597) (1974) (under its police power, the State has the right to determine which harmful substances are illegal to possess). The requested instruction could have misled the jury into believing that it could acquit Carlson if it found that Carlson’s conduct was justified because he thought that he derived some benefit from using the marijuana, notwithstanding the apparent illegality of possessing it. See Love v. State, 271 Ga. 398, 402 (3) (517 SE2d 53) (1999); Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989) (when the charge being sought is not required by the evidence, it is properly refused). Since the requested instruction on justification was properly denied, a charge defining an affirmative defense would not have been properly adjusted to the evidence or law. Jones, supra.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided November 1, 1999.

Christine E. Robbins, for appellant.

Kenneth W. Mauldin, Solicitor, Phillip C. Griffeth, Karl D. Cooke, Jr., Assistant Solicitors, for appellee.


text:
    A99A1456.
    THREATT v. THE STATE.
    (524 SE2d 276)
   Andrews, Presiding Judge.

Theodore Threatt appeals from the judgment of conviction entered on jury verdicts finding him guilty of driving a vehicle while he was under the influence of alcohol (DUI) to the extent that he was a less safe driver and improper lane change.

Threatt claims that his Fourth Amendment right to be secure from unreasonable searches and seizures was violated when a police officer entered his home without a warrant and without his consent to question him about a report received from a concerned citizen that he had been seen by the citizen just minutes before erratically weaving his car across lanes of traffic. Because the officer did not have both probable cause to arrest and exigent circumstances when he entered Threatt’s home, the entry violated the Fourth Amendment, and the trial court erred by admitting evidence obtained inside the home during the questioning. Since we cannot find beyond a reasonable doubt that the evidence admitted in violation of the Fourth Amendment did not contribute to the jury’s guilty verdict on the DUI charge, Threatt is entitled to reversal of the conviction and a new trial on this charge. There was no error in the trial court’s refusal to suppress additional evidence lawfully obtained by the officers outside of Threatt’s home, which evidence was sufficient to support the guilty verdicts.

Threatt also claims that his Fifth Amendment right not to incriminate himself was violated when the officer obtained incriminating evidence by questioning him while he was in custody without advising him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). As to this claim, we find that Threatt was not in custody at the time he was questioned; therefore, Miranda did not apply and there was no violation of the Fifth Amendment.

We agree with Threatt’s contention that the trial court’s instructions to the jury on improper lane change were inconsistent and so confusing that it was likely the jury was unable to render an intelligent verdict based on the charge alleged in the accusation. Therefore, Threatt is also entitled to reversal of the conviction and a new trial on this charge.

Threatt’s additional claims challenging the sufficiency of the evidence and other jury instructions are without merit.

The facts are as follows: Eldonnette Colleado testified that she was driving home with her daughter when she saw a man, later identified as Threatt, driving in an erratic manner. After Threatt almost ran her off the road and she saw him swerving from lane to lane, Colleado called the police from her car on a cellular phone and reported the erratic driving. While staying on the phone with the police and seeing Threatt continue to swerve across lanes of traffic, Colleado followed Threatt to his home, where Threatt parked his car and went inside. Colleado reported her location to the police, stopped a short distance from Threatt’s home, and waited for the police. A police officer met Colleado at that location in a few minutes. According to Colleado, the officer arrived about 20 minutes after she began following the car.

The police officer testified that, before he arrived, he had been informed by police radio that Colleado was following a car being driven in an erratic manner, and that he had been en route in an attempt to intercept the car. Before he was able to do so, however, the officer received word that Colleado had followed the car to where it was parked at an apartment complex. The officer said that about ten minutes passed from the time he received the report that Colleado was following the car to the time he arrived to where Colleado was waiting near the parked car. When the officer arrived, Colleado told him that the car had almost hit her on two occasions and that she had seen the car running other cars off the road and erratically weaving from lane to lane. She told the officer that she followed the car to the apartment complex and watched the driver, whom she and her daughter described to the officer, park the car and enter one of the apartments. From his police car, the officer checked the license tag on the parked car and found that it was registered to Threatt. The officer also felt the hood of the car and determined that it was still hot from being recently driven.

Based on this information, the police officer, along with another officer who arrived at about the same time, knocked on the door of the apartment no more than 15 minutes after receiving the radio report that Colleado was following the car. When a woman answered the door, one of the officers saw a man inside the apartment who matched the description given to him by Colleado and her daughter. Without a warrant and without obtaining consent to enter, the officer stepped a short distance — about two feet — inside the apartment. The officer testified that he did so for the purpose of investigating his suspicion that the man had been driving under the influence of alcohol. The officer also stated that, because evidence of alcohol in a suspect’s blood diminishes with the passage of time, he entered the apartment to investigate his suspicion and to prevent destruction of evidence.

The officer identified himself to the man, asked whether he was Theodore Threatt, and told him that he was there to investigate a report that he had just been seen driving his car in an erratic manner. The man confirmed that he was Threatt. At that point, the officer testified he was close enough to Threatt to smell the odor of alcohol about Threatt’s person. While still standing inside the apartment, the officer then asked Threatt if the car parked outside was his, if he had been driving it, and whether he had been drinking any alcoholic beverages. During the questioning, the other officer remained just outside the door to the apartment. Threatt admitted that the car was his and that he had been recently driving it. According to one officer, Threatt first responded that he had not been drinking, then said that he started drinking after he drove the car home. The other officer testified that Threatt said he had not had anything to drink since he drove the car home. At no time before or during the questioning did the officers ask Threatt to step outside his apartment. There was no evidence that Threatt refused to cooperate with the investigation or that he attempted to use his home as a sanctuary to evade or delay the investigation.

After Threatt was questioned inside his apartment, the officers asked Threatt to step outside his apartment so that Colleado and her daughter could see him. Threatt complied, and Colleado’s daughter identified him as the man driving the car she and her mother had been following. Outside the apartment, the officers further observed that Threatt’s eyes were glassy and red and that he had a strong odor of alcohol about his person. After Threatt failed or refused to complete field sobriety tests, the officers arrested Threatt, charged him with DUI, and read him his implied consent rights. Threatt later refused to take the state-administered breath test to determine his blood alcohol content. Both officers testified that, in their opinions, Threatt was under the influence of alcohol at the time of his arrest, and in that condition he was a less safe driver. As similar transaction evidence, the State also introduced evidence of Threatt’s previous DUI charge.

Threatt and his wife testified that he had driven his car home about an hour before the officers came to their apartment. Threatt said that he had no alcoholic beverages before he drove home, but that after he arrived home he drank several vodka and grapefruit juice drinks during the hour which passed before the officers arrived. Threatt denied telling the officers that he had not consumed any alcoholic beverages after arriving home.

1. On these facts, Threatt moved to suppress all evidence gathered during the investigation and subsequent arrest on the basis that the officer’s entry into his home to question him without a warrant or consent to enter was an unreasonable search or seizure in violation of the Fourth Amendment.

With the information possessed by the two officers, they were entitled to knock on the outer door of the apartment without violating the Fourth Amendment. Pickens v. State, 225 Ga. App. 792, 793 (484 SE2d 731) (1997); Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981). When Threatt’s wife opened the door, one of the officers could see a man inside the apartment who matched the description of the man given to him by Colleado and her daughter. At that point, the officers had information from Colleado, a known concerned citizen, and from their own investigation corroborating elements of Colleado’s report, that the man had committed the offense of reckless driving. We need not decide whether this information was sufficient under the circumstances to provide the officers with probable cause to arrest for reckless driving, or whether it was a basis for only a brief investigatory detention pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Given the reported erratic driving, the circumstances were also sufficient to give the officers a reasonable articulable suspicion for a brief Terry investigation into whether the man was under the influence of alcohol or some other drug while he was driving.

The issue is whether under these circumstances the officer’s non-consensual, warrantless entry into Threatt’s apartment violated the Fourth Amendment.

It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.

(Citation and punctuation omitted.) Welsh v. Wisconsin, 466 U. S. 740, 748 (104 SC 2091, 80 LE2d 732) (1984). In giving effect to these Fourth Amendment protections, the U. S. Supreme Court has held that to justify a nonconsensual, warrantless intrusion into a person’s home, there must exist probable cause for the arrest or search inside the home and a showing of exigent circumstances. Id. at 749; Payton v. New York, 445 U. S. 573, 583-590 (100 SC 1371, 63 LE2d 639) (1980); Steagald v. United States, 451 U. S. 204, 211 (101 SC 1642, 68 LE2d 38) (1981); Carranza v. State, 266 Ga. 263, 264-266 (467 SE2d 315) (1996); Griffith v. State, 172 Ga. App. 255, 256-257 (322 SE2d 921) (1984) (physical precedent). Furthermore, the underlying offense supporting the intrusion must be of sufficient gravity to justify the exception to the warrant requirement. Welsh, 466 U. S. at 750-753. For example, when an arrest in a home is at issue, even if exigent circumstances are present, warrantless, nonconsensual entry is unreasonable where the suspected activity is a minor, noncriminal traffic offense. Id.

Applying these holdings, we conclude that, upon a showing of probable cause to arrest for the offenses of DUI (OCGA § 40-6-391) or reckless driving (OCGA § 40-6-390), either of these offenses is a sufficiently serious criminal activity to justify an officer’s warrantless, nonconsensual entry into a suspect’s home to arrest the suspect — if exigent circumstances exist to justify the entry. Since the officer had no probable cause to arrest Threatt for DUI before entry was made into his home, the suspicion that Threatt drove his car under the influence of alcohol provided no basis for the officer’s entry into Threatt’s home to investigate that suspicion without a warrant or consent. Even if there was probable cause to arrest Threatt for reckless driving before the officer entered Threatt’s apartment, we find that exigent circumstances did not exist justifying a nonconsensual, warrantless entry to arrest for this offense. The reckless operation of the car and the consequent threat to public safety had ended. With two officers present, one could have gone to obtain an arrest warrant, while the other stayed to ensure that Threatt did not leave. As to the reckless driving, there was no fear of destruction of evidence if the arrest was delayed in order to obtain a warrant. Moreover, there was no evidence that Threatt attempted to evade or delay any investigation or arrest by refusing to come out of his apartment or by refusing entry to the officers. Yet the officers did not ask Threatt to come out of his apartment until after an officer had entered the residence and questioned him, nor did the officers seek permission to enter. Under these circumstances, the State failed to carry its burden to show the existence of exigent circumstances justifying the nonconsensual, warrantless entry. Hamrick v. State, 198 Ga. App. 124, 126 (401 SE2d 25) (1990); Clare v. State, 135 Ga. App. 281, 284-285 (217 SE2d 638) (1975).

It follows that the questioning of Threatt inside his apartment violated his Fourth Amendment right to be secure in his home from unreasonable searches or seizures. The trial court should have granted Threatt’s motion to suppress to the extent it sought to exclude all evidence obtained during the questioning inside the apartment.

We find no error, however, in the trial court’s refusal to exclude other evidence obtained outside the apartment after Threatt complied with the officer’s request to step outside. Outside the apartment, the officers observed clear signs that Threatt was under the influence of alcohol, and he was positively identified as the driver of the car seen just a few minutes earlier by Colleado and her daughter erratically weaving from lane to lane. The officers attempted to administer field sobriety tests to Threatt, but he failed or refused to complete them. At that point, Threatt was arrested and charged with DUI.

The Fourth Amendment protections accorded to Threatt inside his home were not designed to protect against evidence lawfully obtained outside the home which gave the police probable cause to arrest at that point. Carranza, 266 Ga. at 268. We conclude this evidence was from an independent and lawful source and therefore was not subject to suppression as the indirect fruits of the unlawful questioning inside the apartment. Id.; Dorsey v. State, 212 Ga. App. 479, 481 (441 SE2d 891) (1994); compare Griffith, 172 Ga. App. at 255-258 (subsequent evidence was the fruit of an illegal arrest inside the home); Clare, 135 Ga. App. at 285-286.

Nevertheless, because evidence obtained inside the apartment was erroneously admitted in violation of the Fourth Amendment, we must determine if the error was harmless. Error of constitutional dimension is harmless only if it can be determined beyond a reasonable doubt that it did not contribute to the jury’s guilty verdict. Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967). Part of the erroneously admitted evidence was the officer’s testimony that Threatt stated he had not consumed any alcoholic beverages since he arrived at his apartment after driving the car. This evidence directly contradicted Threatt’s defense at trial that he drank no alcohol before he drove the car, but that he consumed several alcoholic drinks at his apartment just before the officers arrived. Under these circumstances, we cannot say beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the jury’s guilty verdict on the charge of DUI. As to the charge of improper lane change, given the eyewitness testimony supporting this charge, we find beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the jury’s guilty verdict.

Accordingly, Threatt’s conviction for DIJI must be reversed, and Threatt is entitled to a new trial on this charge.

2. Threatt claims he was in custody when he was questioned by the officer inside his apartment and that statements he made during this questioning without being given warnings pursuant to Miranda v. Arizona, 384 U. S. 436, violated his Fifth Amendment right not to incriminate himself. He contends the trial court erred by denying his motion in limine to exclude those statements.

Miranda warnings must be given before questioning a suspect who is in custody. Under Miranda, a suspect is considered to be in custody when a reasonable person in the suspect’s position would conclude that his freedom of action has been restrained to the degree associated with a formal arrest. Miranda, 384 U. S. at 444; Stansbury v. California, 511 U. S. 318, 321 (114 SC 1526, 128 LE2d 293) (1994); Smith v. State, 236 Ga. App. 548, 550 (512 SE2d 19) (1999). Although the police officer briefly questioned Threatt from a position a couple of feet inside his apartment, we find nothing in this encounter which would have caused a reasonable person to believe that his freedom of action had been more than temporarily restrained by the questioning. Id. at 551. No arrest was made inside the apartment. After the brief questioning, the officer requested that Threatt step outside the apartment, and Threatt complied. Only after Threatt was identified by Colleado’s daughter outside the apartment as the driver of the car, and Threatt failed or refused to complete field sobriety tests administered by the officers, was he formally arrested and charged with DUI. Under these circumstances, we find no clear error in the trial court’s denial of the motion in limine on the basis that the questioning inside the apartment was noncustodial and no Miranda warnings were required.

3. There is no merit to Threatt’s contention that the properly admitted evidence was insufficient to support the guilty verdicts.

There was sufficient evidence to support the guilty verdict on the charge that Threatt drove his car while under the influence of alcohol to the extent that he was a less safe driver. The State presented testimony from Colleado and her daughter that Threatt was recklessly swerving his car from lane to lane and running other cars off the road. Further testimony was presented from Colleado and two police officers that, less than fifteen minutes after Threatt arrived in his car at his apartment, the officers observed signs outside the apartment that Threatt was under the influence of alcohol to the extent that, in their opinion, he would have been a less safe driver in that condition. Based on the short period of time between Colleado’s observation of Threatt’s erratic driving and the police officers’ observation of signs that Threatt was intoxicated, a jury could conclude beyond a reasonable doubt that Threatt drove his car while under the influence of alcohol to the extent that he was a less safe driver. Duggan v. State, 225 Ga. App. 291, 293-294 (483 SE2d 373) (1997). Although Threatt testified that he had been home for about an hour before the officers arrived, and that all the signs of intoxication observed by the officers resulted from alcohol he consumed after he arrived home, whether this was a reasonable explanation was for the jury to decide. Cantrell v. State, 230 Ga. App. 693, 695 (498 SE2d 90) (1998). Even if the evidence was circumstantial, it was sufficient to exclude every reasonable hypothesis except that of guilt, and was sufficient to support the conclusion that Threatt was guilty of the charged DUI beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence was also sufficient for the jury to find Threatt guilty beyond a reasonable doubt of improper lane change as charged in the accusation. Jackson v. Virginia, 443 U. S. 307.

4. We agree, however, with Threatt’s contention that the trial court’s instruction to the jury on the charge of improper lane change was inconsistent, was likely to confuse the jury, and that reversal and a new trial are required as to this offense.

The accusation charged Threatt with improper lane change in that he “change [d] lanes without first ascertaining that such movement could be made with due caution and safety of others.” The accusation substantially tracked the language of OCGA § 40-6-48 (1) which provides that a vehicle be driven within a single lane “and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” The accusation incorrectly cited OCGA § 40-6-123 (b) as the Code section related to the allegations in the accusation. Section 40-6-123 (b) requires that a driver give a signal of intention to change lanes sufficient to alert other drivers approaching from the rear or from the opposite direction.

Threatt does not complain that this constituted a fatal variance in the accusation — a variance between the Code section cited and the allegations in the accusation goes only to the form of the accusation. Selley v. State, 237 Ga. App. 47, 50-51 (514 SE2d 706) (1999). Rather, Threatt complains that the trial court first instructed the jury by reading the language of the accusation charging him with an improper lane change in violation of OCGA § 40-6-48 (1), then later read OCGA § 40-6-123 (b) and told the jury that he was charged with improper lane change in violation of that Code section.

Because these instructions were inconsistent and likely confused the jurors to the extent that they could not render an intelligent verdict on the charge alleged in the accusation, reversal and a new trial are required on the charge of improper lane change. Reece v. State, 210 Ga. 578, 579 (82 SE2d 10) (1954).

Decided November 1, 1999.

Melvin E. Cooper, for appellant.

Roxann G. Daniel, Solicitor, David B. Ranieri, Russell B. Poole, Assistant Solicitors, for appellee.

5. Contrary to Threatt’s contentions, the trial court did not introduce new evidence into the case, confuse the jury, or commit reversible error by instructing the jury on the law related to noncustodial investigatory detention and Miranda warnings.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

       We note that, when an officer has probable cause to arrest for the offense of DUI, the need to prevent destruction of evidence (which may occur by the dissipation of alcohol from a DUI suspect’s blood while a warrant is obtained) may constitute an exigent circumstance which could justify a nonconsensual, warrantless entry into the suspect’s home to arrest the suspect. See State v. Tosar, 180 Ga. App. 885, 888 (350 SE2d 811) (1986).

       In light of our ruling in Division 1, supra, we need not address Threatt’s contention that statements he made inside the apartment during questioning should have been excluded for additional reasons.


text:
    A99A1997.
    THOMAS et al. v. PHILLIPS et al.
    (524 SE2d 298)
   Phipps, Judge.

Timothy Thomas contracted with Phillips & Gilkey Builders, Inc. (PGBI) for the construction of a home for himself and his wife. After Thomas and PGBI charged each other with breach of contract because construction was not completed in a timely fashion, a dispute concerning PGBTs retention of $77,000 in earnest money was submitted to mediation/arbitration before Edward Henning d/b/a Henning Mediation & Arbitration Service, Inc. (HMAS). Henning found that a final settlement agreement had been orally agreed upon and entered an award in favor of the Thomases and against PGBI and its principals, Phillips and Gilkey.

PGBI, Phillips, and Gilkey (the PGBI plaintiffs) claimed that no final settlement agreement was ever reached and brought this action against the Thomases and HMAS to vacate the arbitration award. The Thomases counterclaimed for enforcement of the settlement agreement and recovery of litigation expenses.

The Thomases appeal the trial court’s denial of their motion for partial summary judgment on their counterclaims and the court’s sua sponte grant of summary judgment to Phillips and Gilkey on the question of whether the purported settlement agreement can be enforced against them individually. Because we find that the Thomases were not entitled to partial summary judgment and that the sua sponte grant of summary judgment to Phillips and Gilkey was supported by the record, we affirm.

PGBI and Thomas were the only parties to the arbitration agreement and the underlying contract. Henning, the Thomases and their attorney Clark, and Phillips and PGBI’s attorney Moore were present at the arbitration proceeding. Gilkey was not there but participated by communicating with Phillips, Moore, and Henning by telephone.

Arbitration commenced on July 15, 1997. On the afternoon of July 17, arbitration shifted to a mediation between the Thomases and Phillips with Henning as mediator. The parties agreed that the ensuing settlement discussions could not be used in evidence upon any renewal of the arbitration proceedings.

On the evening of July 17, the Thomases and attorney Clark and Phillips and attorney Moore reconvened before Henning. Henning, the Thomases, and Clark testified that during mediation Phillips and the Thomases orally agreed to a final settlement of the dispute under which the Thomases would be given a $53,000 cashier’s check the following day, with mutual releases to be executed by the Thomases, PGBI, and Phillips and Gilkey individually.

Moore, however, testified that, although Phillips and Thomas did agree to these settlement terms, he previously had made clear in settlement discussions that no agreement would be binding until it was reduced to writing. According to Moore, he and Clark continued to negotiate remaining terms after the evening meeting on July 17, but no final agreement was reached because the Thomases refused to include confidentiality and non-disparagement provisions in the written agreement. According to the Thomases and Clark, these were new terms PGBI insisted on after the final oral settlement agreement was reached. Clark acknowledged that she and Moore exchanged drafts of the settlement agreement after the evening meeting. She testified that this was merely to add boilerplate language. The PGBI plaintiffs suggest that confidentiality and non-disparagement provisions qualify as boilerplate in a settlement agreement such as this.

On July 21, Henning entered a written arbitration award which, among other things: found that a binding settlement of the issues had been consummated; awarded the Thomases the principal sum of $53,000, against PGBI, Phillips, and Gilkey, jointly and severally; and released each of the above parties from claims of the others arising from the purchase agreement.

Because Clark later conceded that the non-disparagement provision was a material issue on which no agreement was reached, the trial court ruled that there was no meeting of the minds in a final settlement. The court determined that there were material issues of fact about whether the award was valid and enforceable and whether the Thomases are entitled to recover litigation expenses. Also the court ruled that the award was entered against individuals who did not consent to be bound by and did not participate in the arbitration proceedings. Although the latter ruling is somewhat ambiguous, the parties interpret it as a sua sponte grant of summary judgment to Phillips and Gilkey on the issue of their personal liability on the settlement agreement. We will abide by this interpretation.

1. First the Thomases contend that the court erred in granting summary judgment sua sponte in favor of Gilkey and Phillips as to their individual liability for the settlement.

Although Georgia law allows a trial court to grant summary judgment sua sponte, the grant must be proper in all other respects. Among other things, this means that the record must support the judgment. A de novo standard of review applies to an appeal from a grant of summary judgment. Whether summary judgment is granted or denied, we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the losing party. But “[a]n oral settlement must be definite, certain[,] and unambiguous. For such an agreement to be binding on the parties, it should be clear that it is full and complete, covers all issues, and is understood by all litigants concerned.”

Phillips and Gilkey participated in the arbitration as representatives of PGBI and not in their individual capacities. The written draft of the settlement agreement exchanged between Clark and Moore indicates that both attorneys understood that the settlement funds were to be paid by PGBI, not by its principals. Clark testified that, during settlement discussions on July 17, Gilkey said that if the settlement were to be effectuated the next day, he would have to advance the money to PGBI because of an insufficiency of funds in the corporate bank account. The record does not show that Gilkey assumed personal liability to the Thomases by agreeing to advance the settlement money to PGBI. The documentary evidence and Clark’s testimony thus support the PGBI plaintiffs’ position.

Henning testified that Gilkey and Phillips each provided personal assurance that the Thomases would get the settlement money, and that Phillips said he would be responsible for payment of the funds. Although Henning also testified that Gilkey said that his personal money would be used to fund the settlement, Henning acknowledged that Gilkey did nothing to indicate or agree that he would be personally bound by the settlement agreement. Henning concluded that Gilkey had agreed to be personally liable because he had said “I’ll send the money.” When viewed in its totality, Henning’s testimony does not constitute evidence which clearly and unambiguously shows that either Phillips or Gilkey intended to agree to be personally liable to fund the settlement agreement.

For the foregoing reasons, the court did not err in its grant of summary judgment to Phillips and Gilkey on this issue.

2. Next the Thomases contend that, as a matter of law, a final settlement was reached, and, therefore, they are entitled to recover their litigation expenses.

Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. ... If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement it must follow that a valid and binding contract was not made.

The parties could have entered a final settlement of this case without addressing non-disparagement or confidentiality issues, because these are not essential terms of a settlement agreement. And during mediation on July 17, Phillips and the Thomases unquestionably entered into an oral agreement to settle the case, if the Thomases were paid $53,000 the next day and mutual releases were executed by all concerned. Although it is clear that these parties did not discuss non-disparagement or confidentiality provisions in reaching their oral settlement, Moore’s testimony would authorize a jury to find that they entered into mediation with the understanding that no settlement agreement would be binding until reduced to writing. The parties did not expressly address the question of whether the oral agreement would be final before being reduced to writing. Therefore, the evidence is not indisputable that the parties agreed to dispense with the condition imposed by counsel. Thus we agree with PGBI that the Thomases were not entitled to summary judgment on their counterclaims for enforcement of the oral settlement agreement and recovery of litigation expenses.

Judgment affirmed. Johnson,

C. J., and McMurray, P. J., concur.

Decided November 1, 1999

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Lord, Bissell & Brook, Frank G. Goldman, J. Robert Persons, for appellants.

Kitchens, Kelley & Gaynes, David F. Cooper, Byrne, Moore & Davis, Francis X. Moore, John H. Patteson, Jr., for appellees.

        Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996).

       Id.

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

       See id. (grant of summary judgment); State Farm &c. Ins. Co. v. American Hardware &c. Ins. Co., 224 Ga. App. 789, 791 (1) (482 SE2d 714) (1997) (denial of summary judgment).

       (Citation and punctuation omitted.) Tekin v. Whiddon, 233 Ga. App. 645, 648 (2) (504 SE2d 722) (1998); compare Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983) (ordinarily for an attorney to bind his client to a settlement agreement, agreement must be in writing if there is a dispute as to terms).

       (Citations and punctuation omitted.) Tekin v. Whiddon, supra; see Bridges v. Bridges, 256 Ga. 348, 350 (1) (349 SE2d 172) (1986).


text:
    A99A2075.
    STRICKLAND v. THE STATE.
    (524 SE2d 305)
   Blackburn, Presiding Judge.

Monte Ray Strickland appeals the trial court’s denial of his motion in limine to suppress all evidence gathered against him in the underlying prosecution for DUI. Strickland contends that the arresting officer did not have probable cause to subject him to field sobriety tests and to charge him with DUI. Because the officer’s observations of Strickland were sufficient to show probable cause to arrest him for DUI, we affirm the trial court’s denial of Strickland’s motion in limine.

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.”

State v. Bowen, 231 Ga. App. 95 (498 SE2d 570) (1998).

So viewing the evidence, it reveals that Corporal Dove with the Peachtree City Police Department stopped Strickland’s stepson for operation of a golf cart while underage. The boy’s stepfather was notified, and Strickland arrived to pick up his stepson driving a truck. When the officer approached Strickland, she noticed that his eyes were bloodshot, his speech was slow, and there was a strong odor of alcoholic beverages on his breath. Strickland admitted that he had been drinking that day. At that point, Dove asked Strickland to perform the horizontal gaze nystagmus, walk and turn, and one-leg stand tests, the results of which were consistent with being under the influence of alcohol. Officer Dove then placed him under arrest for DUI.

Strickland’s contention that the officer had no reason to suspect that he was impaired and driving under the influence prior to the field sobriety tests belies the uncontroverted evidence that his eyes were bloodshot, his speech was slow, there was an odor of alcoholic beverage about him, and that he admitted to having consumed alcoholic beverages. This evidence was sufficient to justify further investigation, the results of which were sufficient to show probable cause to arrest him for driving under the influence. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); Whitener v. State, 201 Ga. App. 309, 310 (410 SE2d 796) (1991). Accordingly, the trial court did not err by denying Strickland’s motion in limine.

Decided November 1, 1999.

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

Steven L. Harris, Solicitor, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.