text:
    A95A1294.
    ESLINGER v. KEITH.
    (463 SE2d 501)
   Birdsong, Presiding Judge.

Appellee Maurine Neal, through her attorney in fact Amos Keith, filed a dispossessory proceeding against Donald Eslinger as a tenant holding over. Maurine Neal is the owner of a 300-acre tract of land, a large part of which is used for farming. She entered into a series of crop leases with Eslinger whereby he could live and work on the farm and would receive a portion of the proceeds from the crops he harvested. The last ten-year lease entered in January 1984 provided that “all other lease agreements prior to this current date will be cancelled by the signing of this [lease].” When the last lease expired in January 1994, Neal notified Eslinger to vacate the premises. Eslinger refused. He claimed that before he entered this last lease, Neal had orally granted him a life estate in 200 acres of the property, on which he was to live and farm. Neal denied that she had granted any such life estate. The trial court granted summary judgment to Neal and this appeal followed. Held:

‘A grant of summary judgment must be affirmed ... if it is right for any reason.’ ” Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746). Eslinger contends the 1984 lease cancelled only prior leases, whereas his life estate is not a “lease.” Although the lease does purport to supersede only prior “leases,” the trial court correctly granted summary judgment to Neal because the two concepts of Eslinger’s claimed interests are antagonistic and inconsistent. See Grist v. Foster, 246 Ga. 565 (272 SE2d 297). As a matter of fact, if Eslinger had a life estate in 200 of the 300 acres there would have been no point or necessity for him to enter a lease of the entire 300 acres.

Decided August 30, 1995

Reconsideration denied October 17, 1995

Clifford S. Lancey, for appellant.

William W. Keith III, Karen E. Luffman, for appellee.

Moreover, OCGA § 44-7-9 states: “The tenant may not dispute his landlord’s title . . . while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord’s title, or while he is taking any position that is inconsistent with the position that the landlord’s title is defective.” Eslinger recognized and assented to Neal’s full title interest in the entire 300 acres by signing a crop lease of the entire 300 acres for an additional ten years after he allegedly received a life estate interest in 200 of those acres. As holder of a life estate, Eslinger would be entitled to the profits from crops or emblements sowed by him during his life (OCGA § 44-6-85; Cheshire v. Keaton, 184 Ga. 29 (190 SE 579)), so if he had in fact received a life estate in 200 acres of the property as he claimed, there would have been no reason to enter into a lease with Neal for the entire 300 acres. By executing the lease Eslinger expressly recognized Neal’s full title interest in the property as a matter of law pursuant to OCGA § 44-7-9 and now is estopped from taking the inconsistent position of claiming a life estate in 200 acres of the property.

The grant of judgment to Neal was correct.

Judgment affirmed. Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1113.
    WILLIAMS v. THE STATE.
    (463 SE2d 58)
   McMurray, Presiding Judge.

Defendant was tried before a jury, along with a co-defendant, and found guilty of rape. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Although defendant’s first enumeration of error is somewhat unclear, he appears to complain that the trial court erred in failing to grant a mistrial after certain details of a police officer’s trial testimony were revealed to be inconsistent with the officer’s testimony at a preliminary hearing. This issue was not preserved for appellate review because defendant failed to assert a motion for mistrial. Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828). However, assuming the contrary, inconsistencies in the investigating officer’s testimony were a matter of credibility for the jury, not a basis for mistrial. OCGA § 24-9-80.

Decided October 17, 1995.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

2. Defendant’s second enumeration of error is not supported by citation of authority or argument in his brief and is thereby deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

3. Defendant challenges the sufficiency of the evidence in his final enumeration of error. The victim’s testimony that defendant committed acts which constitute the crime charged is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Fields v. State, 216 Ga. App. 184, 187 (3) (453 SE2d 794).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       Defendant’s first enumeration of error provides as follows: “The State’s testimony at the preliminary hearing as to what statements the victim made at the initial interview was not the truth. When the interviewing officer took the stand at trial, he claimed that he made a mistake at the preliminary. The interview was sealed as part of the trial.” Argument supporting this enumeration of error provides (in part) as follows: “The State, by giving erroneous testimony as to the victim’s statement at the preliminary hearing deceived the defense and denied the defense a fair trial in this case. This error cannot be cured. It demands a mistrial. . . . We feel that such conduct by the State is such that it demands a mistrial if not an acquittal. Trial by ambush is not tolerated by this Court.”


text:
    A95A1424.
    HOLLAND v. THE STATE.
    (463 SE2d 169)
   McMurray, Presiding Judge.

This appeal followed entry of judgment of conviction and sentence on defendant’s guilty plea for possession of cocaine in violation of Georgia’s Controlled Substances Act. In his sole enumeration of error, defendant contends his guilty plea was not freely and voluntarily entered. Held-.

“Where voluntariness of a guilty plea is challenged, there must be ‘a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.’ Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982) (interpreting Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)).” Green v. State, 265 Ga. 263 (1) (454 SE2d 466).

The transcript of the plea hearing in the case sub judice reveals that the trial court advised defendant of the crime charged and asked defendant whether he had discussed the charge with his attorney and whether defendant understood the nature of the charge. Defendant replied affirmatively to both questions. The trial court then instructed the State’s attorney to explain the factual basis of the charge against defendant. The State’s attorney complied, stating that law enforcement officers caught defendant (while executing a search warrant) in actual possession of cocaine. The trial court then advised defendant of his right to enter a plea of guilty or not guilty for possession of this cocaine, and defendant acknowledged this right. Next, the trial court enumerated and explained in detail the rights defendant would be giving up if he pled guilty and the other consequences of such a plea, carefully inquiring into whether defendant understood the consequences set forth. Defendant indicated that he understood this advice. The trial court advised defendant that he could be sentenced up to 30 years in prison; that he (the trial court) had conferred with defense counsel and the State’s attorney about defendant’s case and that they had discussed a possible sentence in the event defendant decided to enter a plea of guilty. Defendant responded that he understood these circumstances and indicated that he understood the terms of the guilty plea that had been negotiated on his behalf, i.e., the State would recommend that defendant serve 15 years in confinement, concurrent with any time he was presently serving. And after inquiry by the trial court, defendant acknowledged that the court was not required to accept the State’s sentencing recommendation and could even impose a lesser or greater sentence than that suggested by the State. The trial court then asked defendant whether any person had coerced him (including members of defendant’s family) into entering a guilty plea and whether defendant was under the influence of any sort of drugs, medicines or intoxicants. Defendant responded negatively and then made inquiry about the disposition of charges against two co-defendants. The trial court responded (apparently to defendant’s satisfaction) and asked defendant whether he wished to plead guilty or not guilty. Defendant declared that he wished to plead guilty to the crime charged. But the trial court questioned: “Are you pleading guilty freely and voluntarily? [DEFENDANT:] Freely. [THE COURT:] And voluntarily? [DEFENDANT:] Right.” The trial court then turned to defendant’s court-appointed attorney and asked whether he had fully consulted with defendant and whether (in defense counsel’s view) there was any reason for defendant not to enter a guilty plea or for the trial court not to accept such a plea. Defense counsel responded negatively, and defendant affirmed that he was satisfied with the manner in which defense counsel had handled his case. The trial court then accepted defendant’s guilty plea, finding that defendant had freely and voluntarily entered the plea with an understanding of the nature of the charge against him and an understanding of the consequences thereof. We affirm.

Decided October 17, 1995.

Ronald W. Horton, Emmett J. Arnold IV, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

The trial court adequately resolved on the record that defendant fully understood his statutory and constitutional rights, entered his guilty plea voluntarily and with an understanding of the nature of the charge and the consequences of the plea.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1593.
    ROWE v. THE STATE.
    (463 SE2d 21)
   Ruffin, Judge.

Alisha Rowe appeals from the denial of her motion in autrefois convict and plea of former jeopardy. This case presents the “thorny issue” of whether the police officer who cited her for failure to yield the right of way was the “prosecuting officer” under OCGA § 16-1-7 (b). See Selvey v. State, 201 Ga. App. 848 (412 SE2d 611) (1991). Because we answered essentially the same question in the negative in Zater v. State, 197 Ga. App. 648 (1) (399 SE2d 222) (1990) and the trial court faithfully applied Zater in denying Rowe’s motion, we affirm.

The record shows that on July 8, 1993, Rowe’s vehicle collided with a motorcycle in Snellville, and as a result, Corporal C. M. Coats cited her for failure to yield the right of way. Rowe was transported to the hospital for blood and urine testing. Officer Coats advised her that DUI charges could be filed against her upon completion of the chemical testing. On August 20, 1993, the State Crime Laboratory issued a report which revealed the presence of marijuana and a cocaine metabolite in Rowe’s urine. On September 10, 1993, Rowe posted a cash bond in the amount of $82.50 on the failure to yield citation, and on September 15, 1993, the Recorder’s Court of the City of Snellville disposed of the citation with a bond forfeiture. Several weeks later, on October 5, 1993, Officer Coats informed Rowe that based on her test results, he was charging her with DUI. On the same day, Coats issued a written citation. The case was thereafter bound over to the State Court of Gwinnett County where the Gwinnett County Solicitor charged Rowe with three counts of DUI and one count of failure to yield the right of way. Rowe filed a motion for autrefois convict and plea of former jeopardy seeking a dismissal of the charges on the ground that her prosecution in the state court was barred by the final disposition of the case in the recorder’s court.

In the hearing on Rowe’s motion, Jeffrey Kwiatkowski, the Solicitor of the Recorder’s Court of the City of Snellville and a prosecutor in the Gwinnett County Solicitor’s Office at the time in question, testified that he had no knowledge of Rowe’s prosecution in the recorder’s court and that he did not learn of the prior failure to yield charge until Rowe’s motion was filed. Kwiatkowski’s testimony further established that because Rowe paid the stipulated amount of the bond forfeiture, her case was disposed of without his personal involvement.

The trial court granted Rowe’s motion on the failure to yield charge on the ground that the state court prosecution of that charge was barred by the bond forfeiture, but the court denied Rowe’s motion as to the DUI charges. This appeal followed.

“Multiple convictions and successive prosecutions for the same conduct are prohibited under OCGA § 16-1-7 (b): Tf the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.’ ” Zater, supra.

Because the evidence showed that Kwiatkowski was unaware of the recorder’s court proceeding, the trial court held that Rowe failed to satisfy OCGA § 16-1-7 (b), relying on Zater for the proposition that “proper prosecuting officer” under OCGA § 16-1-7 (b) meant only the prosecuting attorney for the State. See id. at 649. In Zater, we expressly rejected the notion that the arresting officer is the “proper prosecuting officer” under OCGA § 16-1-7 (b). Id.

Notwithstanding our holding in Zater, Rowe contends Officer Coats should be deemed the “proper prosecuting officer” because no prosecuting attorney was personally involved in the recorder’s court proceeding and Officer Coats initiated all of the charges against her. While we acknowledge this factual distinction between the two cases, we do not agree that a contrary construction of OCGA § 16-1-7 (b) is required because even if Kwiatkowski had actively prosecuted Rowe, there is no evidence he would have known about the pending DUI charges. The record shows and Officer Coats testified that he made no notation on the failure to yield citation that DUI charges were pending. He did indicate on the accident report that DUI tests were given and charges were pending. But Kwiatkowski testified that he did not see the accident report. Rowe bore the burden of showing that the proper prosecuting attorney had actual knowledge of all the charges. Farmer v. State, 184 Ga. App. 851 (363 SE2d 62) (1987). Although it stands to reason that in the course of prosecuting this case Kwiatkowski might see the accident report and therefore learn about the pending DUI charges, Rowe did not establish that fact by the evidence. Accordingly, the trial court did not err in finding that Rowe failed to satisfy OCGA § 16-1-7 (b) and denying her motion in autrefois convict and plea in bar.

Decided September 19, 1995

Reconsideration denied October 18, 1995

Rich & Smith, Randolph G. Rich, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, William F. Bryant, Assistant Solicitors, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A1885.
    ZOHOURY et al. v. ZOHOURI et al.
    (463 SE2d 141)
   Smith, Judge.

This appeal involves the third-time dismissal rule established by OCGA § 9-11-41 (a). Appellants Nasser Zohoury, Southeastern Apartment Corporation, and World Capital Corporation brought this action against 12 defendants, seeking damages for fraud, negligence, breach of fiduciary duty, and conversion. Appellees answered and counterclaimed, contending that appellants brought multiple lawsuits against appellees for the purpose of harassment and interference with their business. Appellants acknowledge the existence of at least five other actions involving these parties.

According to appellees, the sole purpose of these lawsuits was to file meritless lis pendens notices. It does not appear from the record that appellants have conducted any discovery. In response to interrogatories and requests for production, appellants each served a single blanket objection, requiring appellees to file a motion for sanctions and to compel.

At the hearing on appellees’ motion to dismiss or in the alternative to compel for failure to respond to discovery, appellants voluntarily dismissed in open court. Appellees then asked that the dismissal be made a dismissal with prejudice under OCGA § 9-11-41 (a): “the filing of a third notice of dismissal operates as an adjudication upon the merits.” The trial court concluded the voluntary dismissal in open court was on the merits because appellants had dismissed their claims more than three times. The trial court dismissed the action with prejudice, and ordered the clerk to dismiss and cancel the related lis pendens notices.

1. Appellants raise 12 enumerations of error, all pertaining to the dismissal of this action with prejudice under OCGA § 9-11-41 (a). “The unambiguous language of that statute provides that a third notice of dismissal from any court of an action based upon the same claim operates as an adjudication on the merits.” Harris v. Sampson, 162 Ga. App. 241, 243 (290 SE2d 165) (1982). Appellants acknowledge that more than two claims against appellees have been dismissed without prejudice, but contend that three of the prior actions against appellees should not be considered as previous dismissals of the same claim because they were in the form of third-party complaints. OCGA § 9-11-41 (c), however, explicitly provides: “This Code section also applies to the dismissal of any counterclaim, cross-claim, or third-party claim.” (Emphasis supplied.) See T.V. Tempo v. T.V. Venture, 182 Ga. App. 198, 199-201 (1) (355 SE2d 76) (1987) (Setoff counterclaim filed by defendant was claim rather than defense, and barred as having been sought in three previous actions).

2. Appellants also contend that certain third-party claims against appellees should not be considered previous claims for purposes of OCGA § 9-11-41 (a) because they were not “proper” third-party claims and were therefore void. Assuming without deciding that dismissal of a void action would not constitute a dismissal under OCGA § 9-11-41 (a), appellants have failed to show that their previous claims were void. It is axiomatic that a third-party action must seek indemnity or some other claim derivative from the main action; it may not simply tender a substitute defendant. Lamb v. K. M. Ins. Co., 208 Ga. App. 746 (431 SE2d 744) (1993). Appellants are incorrect, however, in assuming that an improper third-party action is therefore void or a nullity, rather than simply subject to a defense. The named third-party defendant must move to dismiss for failure to state a claim, if the defect appears on the face of the pleadings, or for summary judgment, as in Lamb. A voluntary dismissal without prejudice of such a claim is a dismissal within the meaning of OCGA § 9-11-41 (a).

3. Appellants similarly maintain that some of the earlier dismissals should not be considered for purposes of OCGA § 9-11-41 (a), because they were duplicative of prior pending actions and thus subject to dismissal under OCGA § 9-2-5 (a). This argument is likewise without merit. As stated in the Code section, the existence of a prior pending action is “a good defense” to a second action, but this does not, without more, render the second action void or a nullity.

4. Appellants also contend the dismissal with prejudice was improper because some or all of the actions should have been consolidated under OCGA § 9-11-42 (a). This contention is without merit, because that Code section requires the consent of all parties for consolidation. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248 (461 SE2d 877) (1995). The case cited by appellants, Johnson v. Freeman, 160 Ga. App. 431 (287 SE2d 314) (1981), does not demand a contrary result. In Johnson, four simultaneous and apparently identical actions were filed by a party pro se. He later retained counsel, who dismissed the pro se actions by means of a single document and filed a substitute complaint. This, the court held, was “but one dismissal,” 160 Ga. App. at 432 (1), not four. Appellants have failed to show how the actions filed and dismissed by counsel on their behalf in three jurisdictions fall within the unusual circumstances described in Johnson.

5. Because appellants had already entered a voluntary dismissal in open court, they contend the trial court had no jurisdiction once they had dismissed their complaint, and its order was for this reason a nullity. A trial court, however, must have the power to limit and define actions taken by the parties before it. In Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914 (315 SE2d 434) (1984), the trial court entered a default judgment approximately seven years after the action ran into default, even though OCGA § 9-11-41 (e) provides for an automatic dismissal after the passage of five years without entry of an order. This Court held that entry of judgment was within the court’s inherent power, was justified by the interest of judicial economy and fairness to the prevailing party, and could be accomplished without reference to evidence outside the existing record. 169 Ga. App. at 915. Where the defendant was in default, never filed a motion to open default, and the case was effectively at an end, no further action was necessary to conclude it. Entry of a judgment achieved the desired purpose of removing unresolved and inactive litigation from the court records. 169 Ga. App. at 916. Similarly, appellants’ case, on the basis of facts acknowledged in the record, was at an end under the third dismissal rule of OCGA § 9-11-41 (a). All that remained for appellees to do “was to have judgment entered in [their] favor.” Id. Judicial economy and fairness are best served by allowing the trial court to determine the applicability of OCGA § 9-11-41 (a) at the time of the third dismissal, rather than requiring appellees to remain in suspense awaiting the filing of yet another action against them.

While the attempted dismissal in Faircloth was automatic under OCGA § 9-11-41 (e) instead of voluntary under subsection (a), the court’s inherent power to enter orders in the interest of judicial economy is particularly applicable in this case. The trial court did nothing more than reduce to writing the legal effect accomplished by operation of law with the third voluntary dismissal. Otherwise, as appellees point out, appellants can continue to file actions, record lis pendens notices, and involve appellees in ceaseless litigation, “regardless of whether one or one hundred voluntary dismissals [have] been filed,” dismissing without prejudice as soon as a motion to dismiss is set for hearing or at the hearing itself.

Decided October 3, 1995

Reconsideration denied October 18, 1995

Richard A. Coleman, for appellants.

Long, Weinberg, Ansley & Wheeler, Kathryn S. Whitlock, George A. Koenig, Weissman, Nowack, Curry & Zaleon, Teresa R. Perrotta, Stokes, Lazarus & Carmichael, Derek W. Johanson, J. Michael Welch, Antonio L. Thomas, for appellees.

6. Appellants’ remaining enumerations of error are without merit. Their complaint that appellees’ oral motion at the hearing should have been made in writing is foreclosed by OCGA § 9-11-7 (b) (1) (motion shall be made in writing “unless made during a hearing or trial”). Under USCR 6.2, the trial court had discretion to hear the matter without waiting 30 days for a response. See Kidd v. Unger, 207 Ga. App. 109, 110-111 (2) (427 SE2d 82) (1993). The trial court clearly had the authority to cancel the lis pendens notice once the underlying action was dismissed with prejudice. See OCGA § 44-14-612. The claim of “promissory estoppel” which appellants attempt to raise was not made in any enumeration of error, and their enumerations of error cannot be enlarged to include it. State Farm &c. Ins. Co. v. Hudson, 215 Ga. App. 218, 219 (1) (450 SE2d 286) (1994). Finally, appellants’ complaint regarding the trial court’s imposition of a supersedeas bond is meritless because the parties entered a consent order on that bond.

7. In their brief, appellants ignore well-established and controlling law, selectively omit controlling portions of the Code sections relied upon, and attempt to appeal matters not raised and matters consented to by the parties below. For these reasons, we conclude the appeal is frivolous and impose a penalty of $1,000 against appellants and their counsel pursuant to Court of Appeals Rule 15 (b).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       It should be apparent that such an exception would allow incompetent or malicious plaintiffs to file an infinite number of void actions, thus wholly vitiating the purpose of the rule.


author: Birdsong, Presiding Judge.

text:
    A95A2099.
    BABY DAYS, INC. et al. v. BANK OF ADAIRSVILLE.
    (463 SE2d 171)
   Birdsong, Presiding Judge.

Appellants/defendants Baby Days, Inc. et al. appeal from the judgment entered in favor of appellee/plaintiff Bank of Adairsville. This case arises out of a series of commercial lending transactions from appellee bank to appellant Baby Days and its president, appellant John J. Holmes. All parties moved for summary judgment; the trial court granted appellee’s motion and denied appellants’ motion. Judgment was entered against appellants on the Baby Days’ note, together with interest and attorney fees.

On about August 9, 1990, appellant John J. Holmes executed a $126,216 promissory note (“Holmes’ personal note”) to appellee bank; this was the original principal amount for the purchase of a commercial building (“Adairsville property”). The security agreement provisions within the note contained the following “dragnet” clause: “SECURED OBLIGATIONS: Until terminated in writing, this security agreement secures the payment of this note and all other debts borrower may now or in the future owe to lender (including, but not limited to, all other notes, insurance premiums, overdrafts, letters of credit, guaranties and all extensions, renewals, refinancings and modifications of this note and of such other debts).” Relatively contemporaneously with Holmes’ personal note, appellant John J. Holmes executed a deed to secure debt (“Holmes’ security deed”) in favor of appellee bank to secure payment of Holmes’ personal note. The security deed provided it was to “secure to lender (a) the repayment of the indebtedness evidenced by the note, with interest thereon.” The Adairsville property (building and real property) constituted the collateral for the Holmes’ personal note.

On about November 24, 1992, appellant Baby Days executed a $195,514.85 promissory note (“Baby Days’ note”) as a working capital (corporate) loan to finance its operation. This loan was directly secured by accounts receivable, equipment, inventory and a certificate of deposit. Baby Days’ note contained the following provision: “SECURITY: ...(b) This note may be secured by prior or subsequent security documents notwithstanding that such security is not indicated hereon.” Relatively contemporaneously with the Baby Days’ note, appellants John J. Holmes and Mary Emma Holmes executed loan guaranty agreements guaranteeing the Baby Days’ note. Edison Industries, Inc. also guaranteed payment of Baby Days’ note. In February 1993, Baby Days first defaulted on Baby Days’ note; appellant John J. Holmes defaulted on Holmes’ personal note on May 1, 1993. Appellee accelerated the Baby Days’ note on June 24, 1993. On July 1, 1993, under a claimed right of setoff, appellee applied a $25,000 Bank of Adairsville certificate of deposit against the debt claimed due and owing under Baby Days’ note. Approximately two weeks later, also under a claimed right of setoff, appellee applied a $201.93 Baby Days’ bank balance against the remainder of the debt due and owing under the Baby Days’ note; during this same time period, appellee applied a $3,416.09 bank balance against the amount claimed due and owing under the Baby Days’ note. After this setoff, a balance remained on the Baby Days’ note. On September 7, 1993, appellee exercised its power of sale under the Holmes’ security deed and bid the Adairsville property for itself for $135,000; although the deed under the power of sale was filed on September 20, 1993, the sale under the power was not confirmed in a confirmation proceeding pursuant to OCGA § 44-14-161. Appellee contends it did not confirm the foreclosure sale and seek a deficiency judgment against John J. Holmes on his personal debt because the current market value of the building roughly equalled the outstanding balance of the debt. Since September 1993, appellee has been unable to sell the building; in June 1994, appellee attempted without success to auction the building for $65,000.

Appellee commenced two suits for the balance due on the Baby Days’ note; the first suit was filed against appellants Baby Days, John J. Holmes and Mary Emma Holmes and the second suit was filed against appellant Edison Industries. The suits were consolidated; appellee filed a motion for summary judgment, and appellants filed summary judgment cross-motions. The trial court granted appellee’s motion and denied appellants’ cross-motions.

Appellants contend that John J. Holmes had a single debt to appellee arising out of several contracts, bound together by “dragnet” clauses, secured by a single security agreement, and collateralized by a single piece of realty which was foreclosed upon without subsequent confirmation of the foreclosure sale. Further, they contend that such lack of confirmation barred appellee’s action for a deficiency judgment (see generally OCGA § 44-14-161 (a)) against John J. Holmes. Moreover, appellants assert that the obligations of Mary Emma Holmes and Edison Industries are affected by appellee’s failure to confirm the sale of the Adairsville property because they are co-sureties with John J. Holmes, and appellee’s claim against Mary Emma Holmes and Edison Industries was satisfied and barred under OCGA § 10-7-20 when appellee compounded John J. Holmes’ obligation as a co-surety and thereby caused a release of the obligations of Mary Emma Holmes and Edison Industries. Held:

1. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). Any doubt as to the existence of a genuine issue of material fact is resolved against the movant. See Kelly v. Vargo, 261 Ga. 422, 423 (1) (405 SE2d 36).

2. Appellants’ contention that the trial court erred in granting summary judgment in favor of appellee bank and against appellant John J. Holmes is without merit.

There exists no case directly on point with the facts attendant this case. However, we find that the rationale and legal precedent of Salter v. Bank of Commerce, 189 Ga. 328 (6 SE2d 290); Breitzman v. Heritage Bank, 180 Ga. App. 171 (348 SE2d 713) and Vaughn & Co. v. Saul, 143 Ga. App. 74 (237 SE2d 622) are most persuasive and controlling. Compare Devin Lamplighter Ltd. v. American General Finance, 206 Ga. App. 747 (1) (426 SE2d 645) (two separate debts, evidenced by two separate notes, and secured by two separate security deeds) where the failure to confirm foreclosure under the second security deed did not bar appellee from suing on the remaining independent, separate, unsecured obligation.

We find notwithstanding the existence of only one security deed that Holmes’ personal note arose from a separate and distinct personal debt while that of the Baby Days’ note arose from a separate and distinct corporate debt: (a) The loans were not to the same debtor; (b) the debtors executed the loan instruments at different times; (c) each loan was for a separate and distinct purpose — Holmes’ personal loan was to purchase commercial real property, and the Baby Days’ corporate debt was to obtain working capital to finance its operation; and (d) the corporate debt was backed by certain securities not serving as collateral as to Holmes’ personal note and loan. As in Vaughn & Co., supra at 77, “[w]e hold that the present action is not to recover a deficiency judgment on the debt for which foreclosure was had, but to recover on a separate, subsequent and different note [two years] later for a different debt and for which a conveyance of other property was made as security. The note sued upon is a separate transaction from that which was the basis for foreclosure, is not within the prohibition of [OCGA § 44-14-161 (a)], and [appellee bank] was not barred from bringing action thereon.” As appellee bank does not seek a deficiency as to the secured Holmes’ personal debt but recovery on a separate corporate debt, albeit that this corporate debt was guaranteed by others including John J. Holmes, “the fact that the [appellee] did not seek to have the sale of the realty confirmed is irrelevant to [appellants’] liability. See Vaughn & Co.[, supra at 75 (1)]. It follows that the trial court did not err in granting summary judgment in favor of the [appellee and against appellant John J. Holmes].” Breitzman, supra at 172. Nor do we find it necessary to deviate from Vaughn & Co. and Breitzman merely because the dragnet clause pertaining to the Holmes’ personal loan documents conceivably could be construed as indirectly subjecting the foreclosed real property (that served as direct collateral to Holmes’ personal loan) to constitute additional collateral, through the medium of the Holmes’ guaranty documents, for the corporate loan. The real property did not serve directly as collateral to the corporate loan, and we will not allow the separate legal character of the corporate loan to be defeated by such indirect méans. Moreover, we agree with appellee bank that adopting appellants’ argument “would set [a] dangerous precedent for our current credit system.” We recognize that there exists no prior precedent for our construction of the effect of the dragnet clause in view of John J. Holmes’ guaranty of the separate corporate loan. Nevertheless, “[t]here can not be a precise precedent for everything. Where there is a clearly established principle, the lack of a precedent is no obstacle. There must some time be a first precedent.” Crosby v. Potts, 8 Ga. App. 463, 466 (69 SE 582). Moreover, our holding today is consistent with the well-established appellate principle that “[t]he law does not entitle one to profit by his own wrong.” (Emphasis supplied.) State Hwy. Dept. v. W. L. Cobb Constr. Co., 111 Ga. App. 822, 827 (2) (143 SE2d 500).

3. As the effect of our above ruling is to hold that appellee bank did not release or compound the obligations of John J. Holmes represented by his personal guarantee of the Baby Days’ corporate loan, appellants’ contention that Mary Emma Holmes and Edison Industries were released by operation of OCGA § 10-7-20 (release of or compounding with one surety shall discharge a co-surety) is without merit.

Even assuming John J. Holmes had been released from his personal guarantee, nevertheless Mary Emma Holmes and Edison Industries expressly waived any defense that they might have which was related to their OCGA § 10-7-20 claim by virtue of the terms of their guaranty documents. The guaranty documents were signed by Mary Emma Holmes in her individual capacity and John J. Holmes as President of Edison Industries, respectively. Each guaranty document pertinently provided: “All diligence in collection . . . and notice of non-payment, dishonor and default, and of the acceptance of this guaranty . . . are hereby expressly waived. . . . Authority and consent are hereby expressly given said creditor from time to time, and without notice of the undersigned, to give and make such . . . settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty, including the taking or releasing of security and surrendering of documents.” (Emphasis supplied.) A guarantor may consent in advance to a course of conduct which would otherwise result in his discharge, and this includes the waiver of defenses otherwise available to a guarantor. Jones v. Dixie &c. Div., O’Brien Corp., 174 Ga. App. 67, 69 (2)

Decided October 19, 1995

James W. Penland, for appellants.

Joe Frank Harris, Jr., for appellee.

(329 SE2d 256). Thus, Mary Emma Holmes and Edison Industries waived their right to claim their own discharge having expressly consented to appellee’s unilateral compromise of the scope of indebtedness and liabilities by any resulting release of security, including any resulting release of John J. Holmes from his individual guaranty. Compare Twisdale v. Ga. R. Bank &c. Co., 129 Ga. App. 18, 21 (1) (b) (198 SE2d 396).

Appellants’ remaining enumeration of error 5 is without merit. The respective loan guaranty documents clearly provided on their face that Mary Emma Holmes guaranteed Baby Days’ debt to the extent of $195,514.85, and Edison Industries guaranteed Baby Days’ debt to the extent of $200,000.

Judgment affirmed. Johnson and Smith, JJ., concur.


text:
    A95A1721, A95A1937.
    LINDO v. THE STATE (two cases).
    (463 SE2d 148)
   McMurray, Presiding Judge.

Defendant was indicted for child molestation in that he did have forcible intercourse with an 11-year-old child. The evidence adduced at a jury trial reveals that defendant began a romantic relationship with the victim’s mother in 1991 and that defendant was thereby a frequent overnight visitor into the victim’s home. On the evening of April 3, 1993, the mother left the victim (then 11 years of age) and her younger brother at home alone, instructing the children, “if [defendant] comes [while I am away,] let him in and . . . tell him [I will] be back later on that night.” Later that evening, defendant appeared at the victim’s home and began ringing the doorbell and rapping on a window. Aroused from sleep, the victim opened the door and allowed defendant to gain entry pursuant to her mother’s instructions. The child then returned to bed.

After looking around the house, defendant went to the bedroom where the victim was sleeping and asked the child, “Where is everybody?” Defendant left the room after the victim responded, but soon returned, placing the child in his lap and “rocking [her] back and forth.” Defendant then pinned the victim on the bed and began “wiggling.” Soon thereafter, defendant removed portions of the young girl’s clothing and forced her to endure sexual intercourse. After this invasion, the child fled to her sister’s room, locked the door and waited for her mother to return home.

The mother returned home at about 1:30 in the morning and found the victim standing at a window, “saying mommy, mommy [and] holding herself, holding her stomach.” Before the mother could determine the reason for the child’s distress, defendant appeared from a nearby bedroom and, using “lip motions,” instructed the child, “Don’t tell.” The mother then separated the victim from defendant, and the child informed her mother about the sexual assault. The mother immediately confronted defendant with the charges. Defendant replied, “She must have been dreaming.”

The jury found defendant guilty of child molestation, and the trial court entered a twelve-year sentence, eight years to serve in prison. Defendant filed a motion for new trial and a motion to be released on bond pending appeal. The trial court denied both of these motions, finding (in a separate order) that “[defendant is originally from Jamaica, and at the trial of this case, there was evidence that he intended to return to Jamaica[, and since defendant] is now under a sentence of eight years in prison to be followed by four years on probation, this court concludes that there is a substantial risk of flight if he is released at this time.”

Defendant filed an appeal from the denial of his motion for new trial in Case No. A95A1721 and a separate appeal from the denial of his motion for bond pending appeal in Case No. A95A1937. We now consider both appeals. Held:

Case No. A95A1721

1. Defendant contends the evidence was insufficient to support his conviction for child molestation, arguing that uncorroborated inconsistencies in the victim’s testimony diminished the value of her testimony. This contention is without merit.

The victim’s testimony regarding the manner in which defendant committed the crime charged, along with her mother’s testimony that the child reported the assault immediately after commission of the crime charged, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Morales v. State, 210 Ga. App. 414, 415 (1) (436 SE2d 528). The victim’s credibility was properly resolved by the jury. Fuller v. State, 211 Ga. App. 104, 106 (6) (438 SE2d 183).

2. Defendant next contends he was denied effective assistance of counsel, arguing that his trial attorney failed to investigate the victim’s background, failed to file any pre-trial discovery motions and was not familiar with circumstances under which the victim may have been impeached. Defendant also contends his trial attorney ineffectively failed to “preserve voir dire, opening or closing statements.” Finally, defendant claims that trial counsel’s “other errors included not objecting to leading questions on direct examination in several instances, . . . placing [his] reputation for honesty at issue, . . . calling a doctor whose practice is limited to diseases of individuals between 17 and up, . . . not attempting to cast any doubt on the child’s story by offering possible reasons for her to fabricate, and failing to move for a directed verdict of acquittal.”

“To show inadequacy of trial counsel, a defendant must establish not only that counsel’s conduct fell below an objective standard of reasonableness, but, further, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97).” Kimbrough v. State, 215 Ga. App. 303, 305 (5) (450 SE2d 457). Defendant has made no such showing in the case sub judice. Defendant produced no proof which could have been used to his advantage at trial, but was not; he fails to allege (on appeal) any error which would be uncovered via a transcript of “voir dire, opening or closing statements” and he fails to offer any compelling authority or argument refuting the trial court’s finding that the “other errors” allegedly committed by defense counsel at trial were not prejudicial to defendant, not supported by the record or not outside the realm of discretionary trial tactics. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless it is clearly erroneous. Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163).” Kimbrough v. State, 215 Ga. App. 303, 305 (5), supra. We find no such error in the case sub judice. Accordingly, the trial court did not err in denying defendant’s motion for new trial based on defendant’s claim of ineffective assistance of trial counsel. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674); Zant v. Moon, 264 Ga. 93, 96 (2) (440 SE2d 657).

3. Defendant contends the trial court erred in admitting a videotaped interview of the victim pursuant to OCGA § 24-3-16, arguing that the circumstances of the victim’s statement did not provide sufficient indicia of reliability. See Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65).

Although defense counsel objected at trial to the admission of the videotaped interview, he did not raise the specific ground now asserted on appeal. Under such circumstances, there remains nothing for appellate review. Dupree v. State, 206 Ga. App. 4 (1) (a) (424 SE2d 316). Nonetheless, our review of the victim’s trial testimony and her videotaped interview (which was transcribed but not available for inclusion in the record on appeal) persuades us that the indicia of reliability outlined in Gregg v. State, 201 Ga. App. 238, 240 (3) (b), supra, were present in the case sub judice. “Moreover, as in Gregg, supra at 241 (3) (c), the victim testified at trial and was subject to cross-examination, thereby providing an additional safeguard of [defendant’s] rights.” Dupree v. State, 206 Ga. App. 4 (1) (a), supra. Under these circumstances, the trial court did not err in admitting the videotaped interview of the victim pursuant to OCGA § 24-3-16.

Case No. A95A1937

4. Applying for an expedited appeal in Case No. A95A1937, defendant contends the trial court erred in denying his motion for supersedeas bond and argues that he “is within the class of persons eligible for bond pending appeal [; that he] met his burden of proving himself suitable for bond pending appeal [and that the trial court’s] finding regarding a substantial risk of flight is unsupported by the record.”

This Court will not set aside an order denying a motion for supersedeas bond if there is any evidence to support the trial court’s ruling. Parrish v. State, 182 Ga. App. 247, 250 (8), 251 (355 SE2d 682). In the case sub judice, the trial court denied defendant’s motion to be released on bond pending an appeal based on a finding that defendant poses a significant risk of fleeing the jurisdiction. See OCGA § 17-6-1 (e) (1). Defendant’s own trial testimony supports this conclusion. In fact, both defendant and the victim’s mother testified that defendant was planning to return to Jamaica (defendant’s place of birth) shortly before the incident which gave rise to the case sub judice. Further, defense counsel (now appellate counsel) admitted at the hearing on defendant’s motion for supersedeas bond that defendant has no family in Georgia; that defendant’s mother resides in New York and that defendant “does not have any other representatives [in Georgia] that can help him to deal effectively with his case. . . .” Under these circumstances, we cannot say the trial court abused its discretion in denying defendant’s motion to be released on bond pending appeal.

Decided October 6, 1995

Reconsideration denied October 20, 1995

Charlotte Y. Kelly, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

Judgments affirmed.

Andrews and Blackburn, JJ., concur.

       The trial court rejected defendant’s assertions of ineffective assistance of counsel, finding (in pertinent part) that defense counsel’s “failure to object to leading questions on two occasions during trial clearly did not prejudice the defendant]; that defense counsel’s] failure to call [a physician experienced] in the area [of child sexual abuse cases] was not prejudicial since the testimony of the State’s own expert was beneficial to the defense]; that concerning] the possibility that the victim’s testimony was fabricated, [defense counsel] attempted to impeach the victim through the inconsistencies in her accounts of the molestation [and that defense counsel’s] decision to question the victim’s mother about the defendant’s honesty was a tactical decision.”

       Defense counsel asserted the following objection before the videotape was admitted at trial: “At the time that this video was taken [the interviewing law enforcement officer] attempted to give the young lady an oath and to qualify her for competency as — as having her understand the meaning of giving an oath. And in my review and estimation of it, she never intelligently articulated the fact that she understood that she should give an oath, or the meaning of giving an oath. And it was more of a prompting [by the interviewing officer, Detective Paul Warner of the DeKalb County Police Department’s Youth and Sex Crimes Unit,] than anything else.”


text:
    A95A0873.
    DEAN v. FULTON COUNTY BOARD OF TAX ASSESSORS et al.
    (463 SE2d 64)
   McMurray, Presiding Judge.

Plaintiff Dean filed this action for declaratory judgment and injunctive relief alleging that he is the owner of a parcel of real property in Fulton County, that on March 5, 1993, he was issued a real property assessment notice for the 1993 tax year upon such property and that on September 3, 1993, he was issued a second real property tax assessment notice for the 1993 tax year which showed a higher valuation placed on his property than had the first such assessment. Plaintiff alleges that the defendant Fulton County Board of Tax Assessors was without lawful authority to issue the second assessment notice since it had already assessed the property via the first notice, and that the second assessment was prepared in an unlawful, illegal, and unconstitutional manner. Defendant denied that plaintiff was entitled to any relief and maintained that the second assessment was properly issued to correct an obvious and undisputed clerical error. The complaint further alleges that plaintiff filed a notice of appeal with defendant following receipt of the second assessment notice and that the present action was filed after that appeal was rejected. Plaintiff sought a declaration that his taxes for 1993 should be based on the earlier assessment and that defendant should be enjoined from utilizing the later assessment for any purpose. This appeal is taken from the superior court’s sua sponte dismissal of plaintiff’s action on jurisdictional grounds. Held:

The superior court’s dismissal of plaintiff’s action is predicated upon a number of Supreme Court cases holding that, as a matter of policy and judicial economy, a superior court should not exercise its equitable jurisdiction in tax assessment cases to address issues of valuation, taxability, uniformity, constitutionality, including the constitutionality of appraisal methods, and procedure which may be reviewed via statutory appeal to a county board of equalization pursuant to OCGA § 48-5-311. City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 535 (3) (422 SE2d 651); Wilkes v. Redding, 242 Ga. 78, 79 (247 SE2d 872); Barr v. Jackson County, 238 Ga. 332 (1) (232 SE2d 923); Chilivis v. Kell, 236 Ga. 226, 227 (1) (223 SE2d 117); Chilivis v. Backus, 236 Ga. 88, 90 (222 SE2d 371); Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154 (218 SE2d 759).

Decided October 20, 1995.

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant.

Thomas A. Cox, Jr., for appellees.

Plaintiff contends that the cases relied upon by the superior court as authority for the dismissal are inapposite because the controversy submitted by his complaint, the validity of the second tax assessment which was issued following the earlier unappealed tax assessment, is not within the statutory jurisdiction of county boards of equalization. The argument submitted by plaintiff goes on to cite Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723 (368 SE2d 326) for the proposition that the value of his property for 1993 tax purposes was established by the first notice of assessment. But the facts and circumstances of the case set out in this earlier opinion, which include the property owner’s appeal of second assessments for a number of tax years to the county board of equalization, subsequent appeal to the superior court, and reversal of the superior court, serve to at least implicitly hold that the issue decided in this prior case and also submitted by plaintiff in the case sub judice is subject to appeal to and decision by a county board of equalization pursuant to OCGA § 48-5-311 (e). See also Borland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798 (338 SE2d 16).

Judgment affirmed.

Andrews and Blackburn, JJ., concur in the judgment only.


text:
    A95A1064.
    GANSEREIT v. GANSEREIT.
    (463 SE2d 65)
   McMurray, Presiding Judge.

Ernest J. Gansereit, a resident of New Jersey, brought an action against his brother, Raymond F. Gansereit, to recover $8,000 allegedly due under a promissory note. Raymond F. Gansereit admitted owing the money, but counterclaimed because he felt that his brother (in years past) had cheated him out of his inheritance. Specifically, Raymond F. Gansereit filed a document entitled, “COUNTERCLAIM TO SET ASIDE DEED,” and therein alleged that Ernest J. Gansereit had unduly influenced the brothers’ parents into selling him their New Jersey residence for a fraction of its true market value. In a portion of the counterclaim entitled, “PETITION TO SET ASIDE DEED,” Raymond F. Gansereit asked the trial court to set aside the New Jersey deed transferring his parents’ former residence to Ernest J. Gansereit “so that the home and its contents might be rightfully distributed to the rightful heirs at law[.]”

The trial court entered judgment in favor of Ernest J. Gansereit based on Raymond F. Gansereit’s admission that he owed his brother $8,000, and dismissed Raymond F. Gansereit’s counterclaim, finding no authority for a Georgia court to set aside a New Jersey real property transaction “predicated on a permissive counterclaim completely unrelated to the underlying Georgia action.” This appeal followed. Held:

1. The trial court had no jurisdiction over Raymond F. Gansereit’s permissive “COUNTERCLAIM TO SET ASIDE DEED” and “PETITION TO SET ASIDE DEED.” See OCGA § 9-11-13 (b). No Georgia court has direct power or authority to set aside an instrument transferring title to real property in another state. See 32 ALR3d 1330, 1336, § 3. Such in rem proceedings may only be affected in the jurisdiction where the real property is located. King v. King, 203 Ga. 811, 817 (2) (48 SE2d 465); Chidsey v. Brookes, 130 Ga. 218, 220 (60 SE 529). Nonetheless, Raymond F. Gansereit contends the trial court had authority to set aside the New Jersey deed, arguing that, “in domestic relations litigation, Georgia courts have routinely granted full faith and credit to the decisions reached by courts of other states regarding land located in Georgia.” This argument is without merit.

While an out-of-state divorce decree may indirectly affect the disposition of real property in another state, enforcement of such a decree is not based upon the outside jurisdiction’s power over the affected real property. It is based upon the foreign court’s authority to adjudicate personal rights and equities between parties with competing interest in out-of-state realty. See Economou v. Economou, 196 Ga. App. 196 (6) (395 SE2d 830), and 34 ALR3d 962, 965, § 2. In the case sub judice, Raymond F. Gansereit’s counterclaim is not based upon such in personam principles. It is based upon an alleged fraudulent conveyance and calls for judicial dissolution of the resulting faulty muniment of title, i.e., setting aside the New Jersey deed evidencing the alleged fraudulent transaction. Since the trial court in the case sub judice has no power or authority to effect such affirmative relief, there was no error in dismissing Raymond F. Gansereit’s permissive counterclaim.

Decided October 20, 1995.

Mayer & Beal, Randolph A. Mayer, Andrew M. Beal, for appellant.

J. Houston Lennard, for appellee.

2. Ernest J. Gansereit’s motion to dismiss this appeal is denied. And so is his motion for this Court to impose a penalty for frivolous appeal. See Court of Appeals Rule 15 (b).

Judgment affirmed. Motions to dismiss denied. Motion for penalties for frivolous appeal denied.

Andrews and Blackburn, JJ., concur.


text:
    A95A1125.
    VORTEX PROTECTIVE SERVICE, INC. v. DEMPSEY.
    (463 SE2d 67)
   McMurray, Presiding Judge.

Plaintiff Vortex Protective Service, Inc. (“Vortex”), brought this action for “Equitable Enforcement of Covenant Not to Compete With Subsequent Damages O.C.G.A. § 51-12-5.1,” seeking to enforce a written agreement captioned “EMPLOYEE’S COVENANT NOT TO COMPETE” against a former employee, defendant Todd A. Dempsey. The writing recites “In consideration of the fact that VORTEX PROTECTIVE SERVICE, INC. (the “EMPLOYER” or “VORTEX”) has employed . . . Todd Dempsey . . . [he] agree [d] as follows: ... 1. Noncompetition by Employee. During the term of my employment, I will not directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or and [sic] other individual representative capacity engage or participate in any business of the Employer. ... 2. Non-competition after termination. I agree that upon termination of my employment, whether by my act or by discharge (whether wrongful or otherwise), I will not directly or indirectly, in Spalding County, Georgia, or any county contiguous thereto, enter into or engage generally in direct competition with the Employer in the business of selling, leasing, installing or servicing burglar alarm, fire detection or other security systems of a type which would be in direct competition with those marketed and serviced by the Employer at the time of my termination, either as an individual on my own or as a partner or joint venturer, or as an employee or agent for any person, or as an officer, director or shareholder of a corporation, for a period of two (2) years after the date my employment terminates. This covenant on my part shall be construed as an agreement independent of any other agreements I may have with Vortex concerning my employment. . . . [The Employer may] apply to a court ... to enforce specific performance of this covenant or may apply for injunctive relief or both.” Todd A. Dempsey signed this writing on February 1, 1994, before a notary public, although the writing does not purport to be under seal. It is substantively identical to an earlier agreement signed by Todd A. Dempsey in 1991. In his verified answer, defendant denied any breach of the non-competition covenant, and further contended the same is void and unenforceable as against public policy. He also counterclaimed for tortious interference with contract and violations of the federal Fair Labor Standards Act, 29 USC § 201 et seq.

After limited discovery, Vortex moved for summary judgment, supporting its motion with the following undisputed facts: Vortex has its principal place of business in Griffin, Georgia. According to the affidavit of Dan Dunson, President of Vortex, “Vortex’s primary base is Spalding County and the counties contiguous thereto as set forth in the covenant not to compete’s geographic area.” Todd A. Dempsey left the employ of Vortex in May 1994 and went to work as an “installer/work leader” for another home security firm, Ultimate Security of America, Inc. (“Ultimate Security”), in Fayetteville, Georgia. Ultimate Security’s present customer base is mostly in “Fayette and Clayton counties although [it also has] quite a few in Gwinnett.” Thus, Ultimate Security and Vortex are competitors in the business of selling, leasing, installing, monitoring and servicing burglar alarm, fire detection, and other security systems “in adjacent counties.” Todd A. Dempsey filed his own motion for summary judgment, arguing that “the post employment restraints imposed on him by his former employer Vortex are void as against public policy and therefore are unenforceable as a matter of law.”

The trial court granted defendant’s motion for summary judgment, concluding that, because the agreement “impermissibly prevented [defendant’s] acceptance of unsolicited business, the entire covenant is void.” This direct appeal followed. Held:

1. Vortex’s first enumeration of error contends the trial court erred “in determining that there was no distinction [between] a Covenant Not to Compete and a Covenant Not to Solicit.” In support of this proposition, Vortex argues that “OCGA § 13-8-2.1 clearly establishes a difference between the two.” However, in Jackson & Coker, Inc. v. Hart, 261 Ga. 371, 372 (1) (405 SE2d 253), the Georgia Supreme Court held that this Code section is contrary to Article III, Section VI, Paragraph V (c) of the 1983 Georgia Constitution, “inasmuch as it is one that authorizes contracts and agreements which may have the effect of or which are intended to have the effect of defeating or lessening competition or encouraging monopoly.” Accordingly, the trial court in the case sub judice was correct to determine “whether the restrictive covenants in question are enforceable under the law as it existed prior to the enactment of OCGA § 13-8-2.1.” Jackson & Coker, Inc. v. Hart, 261 Ga. 371, 373 (2), supra. Under the law as it existed prior to the enactment of OCGA § 13-8-2.1, covenants restricting customer solicitation “generally have been governed by the same rules as [covenants not to compete]. [Cits.]” Kloville, Inc. v. Kinsler, 239 Ga. 569, 570 (238 SE2d 344). Accord Ward v. Process Control Corp., 247 Ga. 583 (2), 584 (277 SE2d 671). The situation is different with respect to specific restrictions “concerning disclosure of confidential business information and employee piracy. Wiley v. Royal Cup, 258 Ga. 357, 359-360 (2) (370 SE2d 744) (1988); Lane Co. v. Taylor, 174 Ga. App. 356 (2) (330 SE2d 112) (1985).” Sunstates Refrigerated Sues. v. Griffin, 215 Ga. App. 61, 62 (2) (449 SE2d 858). This enumeration is without merit.

2. In two related enumerations, Vortex contends the trial court erred in holding that its covenant not to compete, ancillary to a contract of employment, was overbroad, unreasonable, and unenforceable in its order granting summary judgment on behalf of Todd A. Dempsey. We do not agree.

“Even though contracts generally restraining trade or tending to lessen competition are against public policy and void under Ga. Const. 1983, Art. Ill, Sec. VI, Par. V (c), and OCGA § 13-8-2, restrictive covenants in employment contracts are deemed only in partial restraint of trade and will be upheld if they are reasonable, founded on valuable consideration, and reasonably necessary to the protected interest, [and] do not unduly prejudice the public interest.” American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 283 (1) (430 SE2d 166). But “contracts in unreasonable restraint of trade are contrary to public policy and void, because they tend to injure the parties making them, diminish their means of procuring livelihoods and a competency for their families; tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and expose them to imposition and oppression; tend to deprive the public of services of [citizens] in the employments and capacities in which they may be most useful to the community as well as themselves; discourage industry and enterprise, and diminish the products of ingenuity and skill; prevent competition and enhance prices, and expose the public to all the evils of monopoly. [Cit.]” Rakestraw v. Lanier, 104 Ga. 188, 194 (30 SE 735). “In determining reasonableness, consideration must be given to the employee’s right to earn a living ([cit.]), and the employee’s ability to determine with certainty the area within which his post-employment activities are restricted. [Cits.] At the same time, the employer has a protectible interest in the customer relationships its former employee established and/or nurtured while employed by the employer ([cit.]), and is entitled to protect itself from the risk that a former employee might appropriate customers by taking unfair advantage of the contacts developed while working for the employer. [Cits.]” W. R. Grace &c. v. Mouyal, 262 Ga. 464, 465 (2), 466 (422 SE2d 529).

(a) In the post-employment restriction at issue, Todd A. Dempsey promised that he would not, directly or indirectly, enter into or engage generally in direct competition in the business of selling, leasing, installing or servicing burglar alarm, fire detection or other security systems, as an individual, employee, shareholder, officer, or partner. There is no language limiting the application of this restriction to those customers or prospective customers Todd A. Dempsey contacted during his employment with Vortex. In its brief, Vortex concedes that, under this language, Todd A. Dempsey “is not only prohibited from performing [security systems installation and services] for former customers of Vortex [with whom Todd A. Dempsey] had personal contact, but he is [also] prohibited from performing the prohibited activities for anyone in the protected areas.” (Emphasis supplied.) “However, ‘a prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad.’ (Emphasis in original.) W. R. Grace &c. v. Mouyal, [262 Ga.,] supra at 467 (2), fn. 2. It was, therefore, unreasonable for [the employer, Vortex] to restrict [Todd A. Dempsey’s] proscribed post-employment competitive activity to ‘any’ [prospective customer . . .], without regard to whether [the former employee] had ever had contact with those [prospects] during his employment. It follows that the trial court [in the case sub judice] correctly found the non-competition restrictive covenant to be unreasonable and, thus, unenforceable.” American Software USA v. Moore, 264 Ga. 480 (1), 483 (448 SE2d 206). Since the post-employment non-competition covenant in this case fails to limit itself expressly to the Vortex customers in the territories serviced by Todd A. Dempsey (and the affidavit of Dan Dunson does not show that Todd A. Dempsey had substantial contacts in Spalding County, Georgia, and all its contiguous counties under a franchise agreement) the reliance Vortex places on Nunn v. Orkin Exterminating Co., 256 Ga. 558 (1), 559 (1) (a) (350 SE2d 425), is ill-founded. There is a vital difference between the territory in which the employer does business and the territory in which the employee does business. Wiley v. Royal Cup, 258 Ga. 357, 358 (1) (370 SE2d 744). “The [Vortex] contract is no more reasonable than if it had [expressly] included the entire State except Rabun’s Gap. In [either] event, it covers territory in which the employer has never [shown it] engaged in [substantial] business; and the territorial scope of such a contract is not made more reasonable by the fact that the employer entertains the hope that some day its [security service] business may extend to every city [and subdivision] within the State[, much less the area defined by every county contiguous to Spalding County, Georgia].” Orkin Exterminating Co. &c. v. Dewberry, 204 Ga. 794, 802 (1), 808 (51 SE2d 669), overruled in part on other grounds, Barry v. Stanco Communications Prods., 243 Ga. 68, 70 (3), 71 (252 SE2d 491).

Decided October 20, 1995.

Shepherd & Johnston, Timothy N. Shepherd, William G. Johnston III, for appellant.

James L. Seigle, for appellee.

(b) The restraint in the case sub judice is overbroad in another way as well. It prohibits not only solicitation of prospective customers, regardless of whether they are former Vortex customers but would also prohibit acceptance of requests for security system business from former Vortex customers, regardless of who initiated the contact and request. Thus, this restriction unreasonably impacts on the ability of the former employee to sustain himself and also limits the public’s ability to choose the provider of such security services. See Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891, 893 (2), 894 (2) (b) (447 SE2d 94).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A1383.
    JUDKINS v. THE STATE.
    (463 SE2d 362)
   Beasley, Chief Judge.

On September 9, 1993, Judkins pled guilty to armed robbery (OCGA § 16-8-41), aggravated assault on a police officer (OCGA § 16-5-21), possession of a firearm by a convicted felon (OCGA § 16-11-131), and possession of a sawed-off shotgun (OCGA § 16-11-122). The conviction was entered on that same date, and defendant was sentenced to imprisonment.

On August 11, 1994, during a subsequent term of court, Judkins moved to withdraw his plea, asserting it was unlawfully induced and not voluntarily entered. The trial court denied the motion as untimely and thus beyond the court’s jurisdiction.

Judkins raised on appeal an issue of ineffective assistance of counsel, and the case was remanded to the trial court for a hearing. However, this should not have been done because the only appealable issue was whether the trial court erred in finding that the motion to withdraw the plea was untimely. If it did, then a question of counsel’s effectiveness could be aired; if it did not, such a question could not be reached.

At any rate, the trial court conducted a hearing on the issue as instructed in the order of remand and discovered that Judkins had already applied for a writ of habeas corpus in the county of his incarceration, as had been suggested by the trial court months earlier. In fact, the petition for writ of habeas corpus had been filed even before Judkins moved to withdraw his guilty plea. He alleged in the habeas action that his plea was involuntary and unknowing and that he had received ineffective assistance of counsel. The trial court on remand also found that the habeas court had denied Judkins’ application on October 9, 1994, in a detailed order and that Judkins then sought review in the Supreme Court of Georgia.

The trial court received the entire record of the habeas proceeding and, in an order dated February 21, 1995, concluded it would be inappropriate to rule on Judkins’ claim of ineffective assistance of counsel with respect to entry of his plea of guilty. The reason given was that the issue was still pending before the Supreme Court on appeal from the habeas court, which had ruled adversely to defendant on the issue. Unknown to the trial court was that, on January 26, the Supreme Court had denied Judkins’ application to appeal the denial of habeas corpus because it found no arguable merit. Supreme Court Rule 36.

1. Judkins enumerates five alleged errors made by the trial court in its order of February 21, 1995. The first four attack the validity of his guilty plea entered in September 1993. Except for the second one, involving a claim of ineffective assistance of counsel, they involve matters not pending before the trial court after this Court’s remand of November 14, 1994. They involve instead matters which were brought or could have been brought to the habeas corpus court, whose decision is not appealable to this Court. Ga. Const., Art. VI, Sec. VI, Par. Ill (4). Consequently, none of these enumerations is properly before us.

Decided October 20, 1995.

Raefeal M. Judkins, pro se.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Laura D. Hogue, Assistant District Attorneys, for appellee.

2. With respect to the enumeration claiming ineffective assistance of counsel in connection with the guilty plea proceeding, that issue is also not properly before us. The trial court did not rule on it because the court understood that the rejection of the claim by the habeas court was pending before the Supreme Court of Georgia. It had in fact been ruled on by the habeas court pursuant to a petition brought by Judkins even before he filed his tardy motion to withdraw the plea of guilty in the trial court. The Supreme Court of Georgia refused to permit the appeal, it not having met that court’s standard as set out in its Rule 36.

3. The fifth enumeration claims that the trial court abused its discretion in failing to hold a hearing on the issue of ineffective assistance of counsel in connection with the entry of the plea. That is the only appealable issue properly before us, and we conclude that the trial court was eminently correct. The issue had already been decided adversely to defendant by the Supreme Court of Georgia, which refused to issue a certificate of probable cause to appeal from the denial of habeas corpus. OCGA § 9-14-52. Not only could the issue of counsel’s effectiveness have been raised in the habeas corpus proceeding, it indeed was raised and expressly ruled on.

As noted in the headnote to Perry v. McLendon, 62 Ga. 598 (1879), “where the legality of the same cause of imprisonment is twice drawn in question between the same parties by successive writs of habeas corpus before the same court, or before different courts of competent original jurisdiction, the judgment on the former writ may be answered in bar of a discharge under the latter.” In that case, Justice Bleckley observed: “Whoever brings the legality of an imprisonment into question by writ of habeas corpus, should, in the first instance, show as much cause for his attack as he can. He must discharge all his weapons, and not reserve a part of them for use in a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.” Id. at 605. This principle of res judicata, found as statutory law in OCGA § 9-12-40, has been applied even more recently to the same circumstances of successive habeas corpus actions and direct challenges to the judgments of conviction. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Wells v. Keith, 213 Ga. 858 (102 SE2d 533) (1958). It applies here as well.

Judgment affirmed.

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

       The motion should have been dismissed rather than denied because, as recognized by the trial court, it had no jurisdiction of it. State v. James, 211 Ga. App. 149 (438 SE2d 399) (1993).


author: Pope, Presiding Judge.

text:
    A95A1676.
    PARKER v. THE STATE.
    (463 SE2d 70)
   Pope, Presiding Judge.

Defendant Herbert Vernon Parker was indicted on two counts of violating Georgia’s Controlled Substances Act and one count of possession of a firearm by a convicted felon. Before the effective date of our holding in Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994), defendant entered a conditional guilty plea in accordance with Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991), and thereby reserved the right to appeal the trial court’s denial of his motion to suppress. Concluding that the trial court did not abuse its discretion in denying the motion, we affirm.

The evidence shows that on June 29, 1993, an informant, who had been arrested on drug charges and had agreed to cooperate with police, told Hall County Sheriff’s Detective Neville that he could arrange to purchase drugs from defendant. The informant placed a telephone call to defendant, and Neville listened in on the call by placing his ear next to the telephone’s receiver. Neville recognized defendant’s voice from prior dealings he had had with defendant. He characterized defendant as a known drug dealer, whom he had arrested in the past. During the conversation, defendant agreed to sell a certain quantity of methamphetamine to the informant. Defendant then told the informant that he would meet him at approximately 5:00 p.m. at a Waffle House in Gwinnett County.

Neville contacted the Gwinnett County police and provided them with the above information. In response to the information, two Gwinnett officers who were personally acquainted with defendant staked out the Waffle House. At approximately 4:55 p.m., prior to the informant’s arrival on the scene, the officers saw defendant at a pay phone in the Waffle House’s parking lot. After placing a call, defendant returned to his car to leave. Fearing that defendant would be lost if he left, the officers blocked his car. Cognizant that defendant previously had been arrested on weapons charges, the officers approached defendant with their guns drawn and demanded that he get out of the car. Defendant complied after fumbling with a brown paper bag, which he dropped between his legs. The officers searched the bag and found one and one-half ounces of methamphetamine. They also recovered $4,000 from defendant and a handgun from a shaving kit on the car’s rear floorboard.

1. In his first enumeration of error, defendant argues that the trial court should have suppressed the evidence seized pursuant to his arrest because the police had no probable cause for the arrest or for a warrantless search of defendant’s person or vehicle. We disagree. This is not a case where the arresting officers were merely relying on a tip from a confidential informant. As set forth above, Neville actually heard the conversation between defendant and the informant, and he relayed the specifics of the conversation to the Gwinnett police. Consequently, when the Gwinnett officers observed defendant appear at the designated time and place, they had probable cause to arrest him. State v. Hancock, 203 Ga. App. 577, 578 (417 SE2d 381) (1992). Any search of defendant was therefore “lawfully conducted pursuant to a lawful warrantless arrest.” (Citation omitted.) Id. Furthermore, based on the information Neville supplied them, the Gwinnett officers had probable cause to believe that contraband would be found in defendant’s car. Thus, their warrantless search of the car also was lawful. See McKinney v. State, 184 Ga. App. 607, 609-610 (2) (362 SE2d 65) (1987).

Decided October 20, 1995.

Phyllis Miller, Steven M. Reilly, for appellant.

Daniel J. Porter, District Attorney, for appellee.

2. In light of the above, defendant’s second enumeration of error is without merit.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A95A1688.
    FINNEY v. MACHIZ.
    (463 SE2d 60)
   Johnson, Judge.

Angel Lantigua was driving his car southbound on Ashford Dun-woody Road in Atlanta when it swerved over the road’s centerline and smashed into Leslie Finney’s northbound van. Jody Machiz, a passenger in the van, sued Finney. Machiz alleges in her lawsuit that she was injured in the collision and that her injuries were caused by Finney’s negligence in driving the van while under the influence of alcohol and cocaine. Finney moved for summary judgment on the ground that her alleged negligence did not proximately cause any of Machiz’s injuries. The trial court denied the motion but granted Finney’s request for a certificate of immediate appellate review of the denial. We granted Finney’s application for interlocutory review.

Finney correctly asserts that she is entitled to summary judgment on the negligence action. “In order to state a cause of action for negligence it is necessary to establish the essential elements of duty, breach of that duty, and proximate cause which amounts to a legally sufficient causal connection between the conduct alleged and the resulting injury. [Cit.] A defendant who pierces the plaintiff’s pleadings by showing that under any theory one essential element is lacking is entitled to summary judgment despite any remaining issues of fact with respect to other essential elements. [Cit.]” Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 806 (1) (415 SE2d 705) (1992). Here, even assuming that there are genuine issues of material fact as to whether Finney breached a duty she owed to Machiz by driving under the influence of alcohol and cocaine, Finney is still entitled to summary judgment because she presented uncontradicted evidence that her alleged negligent conduct did not proximately cause the collision.

“It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. If an injury would have occurred notwithstanding alleged acts of negligence of the defendant, there could be no recovery, in an action for negligence. Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person, the defendant can not be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.” (Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989). The evidence in the instant case plainly and manifestly shows that the collision was caused by the independent, intervening, unforeseeable act of Lantigua’s car crossing the road’s centerline and hitting Finney’s van, not by Finney’s driving while intoxicated.

Finney, the police detective who investigated the accident, and the sole eyewitness to the collision all gave deposition testimony establishing that it was dark and raining at the time of the collision; that Finney was traveling uphill in the center of the northbound lane at a safe speed of approximately 25 mph; that Lantigua was driving downhill at the unsafe speed of 35 mph in the southbound lane; that the tread on his car tires was worn; that his worn tires hydroplaned on the wet, curving road and his car suddenly swerved sideways across the road’s centerline and into Finney’s van; that Finney had approximately one and one-half seconds to react to Lantigua’s skidding car; and that because Lantigua’s car went out of control so rapidly, Finney could not have avoided the accident.

Machiz has failed to produce any evidence rebutting Finney’s evidence that she was unable to avoid the collision through no fault of her own. See Tallman Pools of Ga. v. James, 181 Ga. App. 341, 343 (352 SE2d 179) (1986). Machiz herself cannot contradict the evidence because she has no memory of what happened immediately before, during, and immediately after the accident. Lantigua is also unable to testify due to injuries suffered in the collision. The trial court, in denying Finney’s motion, found that “[Machiz’s] allegations that [Finney’s] actions in driving while intoxicated at least contributed to the cause of the collision are supported by the deposition testimony of Horton McCurdy.” This finding is erroneous. McCurdy, a Georgia Bureau of Investigation toxicologist, gave his opinion that Finney’s intoxication level severely impaired her reaction time and critical judgment. But he further testified that he has no opinion as to whether this impairment played a causative role in the accident. Mc-Curdy’s testimony therefore creates a genuine issue of fact only as to whether Finney’s reaction time was impaired, it does not create an issue as to whether that impairment in any way caused the accident.

Decided October 20, 1995.

Alembik, Fine & Callner, Lowell S. Fine, Kevin S. Green, for appellant.

Gaines C. Granade, for appellee.

“ ‘No matter how negligent a party may be, if [her] act stands in no causal relation to the injury it is not actionable.’ [Cits.]” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984). Thus, Finney’s alleged negligence in driving the van under the influence of alcohol and cocaine is not actionable because the evidence establishes as a matter of law that this negligence played no causative role in the collision. Instead, the sole proximate cause of the accident and Machiz’s injuries was the intervening act of Lantigua’s car suddenly skidding into Finney’s van, which was not foreseeable or avoidable by Finney, was not triggered by her driving while intoxicated, and was sufficient of itself to cause Machiz’s alleged injuries. Because Finney’s conduct did not proximately cause Machiz’s injuries, the trial court erred in denying Finney’s motion for summary judgment. See Hackel v. Bartell, 207 Ga. App. 563, 564 (1) (428 SE2d 584) (1993); Baughcum v. Cecil Key Paving, 190 Ga. App. 21, 23 (2) (378 SE2d 151) (1989).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1781.
    A95A1782.
    A95A1783.
    A95A1784.
    ROCK et al. v. READY TRUCKING, INC. BARTJA et al. v. READY TRUCKING, INC. ROCK v. READY TRUCKING, INC. COYSMAN v. READY TRUCKING, INC.
    (463 SE2d 355)
   Pope, Presiding Judge.

We granted plaintiffs’ application for interlocutory review to consider whether the trial court erred in granting Ready Trucking, Inc.’s (“Ready”) motion to transfer for improper venue and denying plaintiffs’ motions for summary judgment as to venue.

The case arises from a traffic accident in Lowndes County on March 19, 1993, which occurred when a tractor-trailer owned by Ready collided with a van in which plaintiffs were riding. Plaintiffs filed this action in the State Court of Fulton County on May 17, 1994. They served the summons and complaint on Henry Read, Sr., Ready’s designated registered agent for service of process under the Federal Motor Carrier Act, 49 USC § 10330 (b), at his Fulton County residence. At all times relevant to this action, Don Dougherty, Ready’s president, was designated as Ready’s registered agent, and 2717 Campbell Boulevard, Ellenwood, Clayton County, Georgia, was listed as its registered office in documents filed with the Georgia Secretary of State.

Sometime in 1993, however, Dougherty moved to Nevada. He also relocated Ready’s executive office and headquarters and incorporated Ready in Nevada. Dougherty was designated Ready’s registered agent in Nevada in September 1993. Ready proffered a certificate from the Georgia Secretary of State showing it remains in good standing.

After Ready asserted improper venue in its first responsive pleading, plaintiffs moved for summary judgment, arguing venue was proper in Fulton County, the location of Ready’s agent for service of process under the Georgia Motor Carrier Act and regulations promulgated by the Interstate Commerce Commission and the Georgia Public Service Commission. Ready moved to transfer, contending that the case should be tried in Clayton County, the location of its registered office. The trial court granted Ready’s motion to transfer and denied the plaintiffs’ motion for summary judgment.

Venue is determined on the date the suit is filed. McLain Building Materials v. Hicks, 205 Ga. App. 767, 768-769 (423 SE2d 681) (1992). Generally, venue in civil actions against foreign or domestic corporations authorized to transact business in this state lies in the county where their registered offices are maintained and where the cause of action arose if the corporation has an office and transacts business in that county. OCGA § 14-2-510 (b) (1) and (3). OCGA § 46-7-17 (b), which specifically addresses venue in cases against motor carriers, broadens the possible locations for venue. It states that actions for damages “may be brought in the county where the cause of action or some part thereof arose; and if the motor common carrier or its agent shall not be found for service in the county where the action is instituted, a second original may issue and service be made in any other county where the service can be made upon the motor common carrier or its agent. The venue prescribed by this Code section shall be cumulative of any other venue provided by law.” OCGA § 46-7-17 (b).

Because the law treats foreign and domestic corporations identically for venue purposes so long as the corporation is authorized to transact business in this state, and Ready is authorized to transact business in this state, we need not reach the issue of whether Ready is a Georgia or Nevada corporation. OCGA § 14-2-510 (b) (1); Southern Drayage v. Williams, 216 Ga. App. 721, 723 (455 SE2d 418) (1995). Venue in Clayton County was proper under OCGA § 14-2-510 (b) (1) because at all relevant times Ready’s Clayton County office was properly registered with the Secretary of State. OCGA §§ 14-2-1622 (a); 14-5-11 (b) (both foreign and domestic corporations required to annually register address and county of its registered office). No applicable law supports venue in this case in the county of an agent’s residence. Thus, the trial court correctly granted Ready’s motion to transfer.

Plaintiffs’ unsupported argument that OCGA § 46-7-17 (b) authorizes venue in any county where a corporation designates an agent for service lacks merit. They confuse the requisites of service with venue. OCGA § 46-7-17 (b) clearly provides for venue in the county where some portion of the cause of action arose. This venue provision remains unchanged by the statute’s inclusion of an alternative method of service where the motor carrier or its agent is unavailable in the county where the cause of action arose.

Plaintiffs further contend that Ready waived its venue defense by designating a Fulton County resident as its registered agent under the Federal Motor Carrier Act.

This argument fails because the concept of waiver presupposes the intentional or voluntary relinquishment of a known right. See Williams v. Willis, 204 Ga. App. 328, 329 (419 SE2d 139) (1992). Ready was required under 49 USC § 10330 to designate an agent for service of process by filing a form with the Interstate Commerce Commission and the Georgia Public Service Commission. That statute does not even mention venue; thus, Ready could not knowingly have relinquished its venue defense by designating Ready as its agent under 49 USC § 10330. Moreover, the Eighth Circuit cases plaintiffs rely on for their waiver argument construe federal law and therefore are not relevant to this case.

Decided October 20, 1995

Billy E. Moore, Frederick D. Burkey, Calvin A. Rouse, for appellants.

Finally, plaintiffs contend that OCGA § 9-10-33 provides for venue in Fulton County as the location of its agent for service and the place it transacts business, because Ready is a foreign corporation which failed to maintain its registered office. They argue that venue does not lie in Clayton County because Ready’s registered office in Georgia could not be maintained in the absence of its registered agent, who moved to Nevada. They also maintain that effecting service would have been impossible at the registered office in the registered agent’s absence.

OCGA § 9-10-33 provides that “[a] person who is not a citizen of this state, passing through or sojourning temporarily in the state, may be subject to an action in any county thereof in which he may be found at the time when the action is brought.” Assuming without deciding that Ready is no longer a Georgia corporation due to its incorporation in Nevada, the fact that it has been operating continuously from its Georgia office for over 16 years belies the argument that Ready is merely passing through or sojourning temporarily in this state. Cf. McPherson v. McPherson, 238 Ga. 271, 272 (2) (232 SE2d 552) (1977). Plaintiffs offer no relevant authority for their theory that a registered office cannot be maintained in the absence of a registered agent, and we have found none. To the contrary, Georgia law contemplates that registered offices will not be invalidated by registered agents’ absences. OCGA § 14-2-503 (providing for resigning agent’s notification of the Secretary of State if the registered office is being discontinued). In this case, documents filed with the Secretary of State reflected that Ready’s registered office remained in Clayton County. As to plaintiffs’ argument that service in Clayton County was impossible in Dougherty’s absence, the Code provides for service on a corporation in the absence of a registered agent by registered or certified mail, addressed to the secretary of the corporation at its principal office. OCGA § 14-2-504 (b). Such service would not affect venue. Accordingly, venue was proper in Clayton County, the location of Ready’s registered office. OCGA § 14-2-510 (b) (1).

In light of our findings on the motion to transfer, we need not reach the issue of the propriety of the trial court’s denial of plaintiffs’ motion for summary judgment on the venue issue.

Judgments affirmed.

Beasley, C. J., and Ruffin, J., concur.

Dennis, Corry, Porter & Gray, William E. Gray II, Pamela J. Gray, Stephanie F. Goff, for appellee.

       For example, venue may be waived by failing to raise it in an answer, expressly relinquishing the defense after properly raising it, or by failing to elicit a ruling on the issue prior to commencement of trial or entry of judgment. Id.