text:
    A90A2260.
    HIGHFIELD v. THE STATE.
    (402 SE2d 125)
   Sognier, Chief Judge.

Terry Highfield was convicted of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, and was sentenced for those crimes and as a recidivist. He appeals.

1. Appellant enumerates the general grounds. At trial, Gary Livingston testified that after being tailgated by a red sports car, he stopped, got out of his car, and spoke to the driver of the car, whom he identified as appellant. He stated that appellant, who was the only person in the car, asked if he knew where drugs could be purchased. After Livingston responded negatively, appellant drove on. Livingston started walking up the sidewalk and saw appellant’s car stop and appellant engage some men at the corner in conversation. Livingston then heard shooting, which he stated was coming from appellant’s car because he then saw the men by the car running away and gunfire coming from the driver’s side of the vehicle. Livingston testified that after the first few shots, he observed appellant’s arm extend out the driver’s window and could see a gun in his hand. He saw the arm pointed in the direction of a yard where several children were playing. Anthony Wade, an eleven year old boy, testified that on the day in question, he, his brother, and another boy were playing football when he saw a red car pull up nearby and stop. He identified appellant as the driver of the car. Wade saw two men walk to the car and talk with appellant briefly. He then heard two shots fired from the car and saw appellant look at him. Wade said he saw the gun in appellant’s hand, and when it turned to point at him, he ran. Upon hearing a gunshot Wade fell to the ground, intending to pretend to be hit, but he actually was shot in the back. The State also introduced into evidence a certified copy of appellant’s prior conviction for burglary and theft by receiving stolen property.

We find from the evidence adduced at trial that a rational trier of fact was authorized to find appellant guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Ray v. State, 191 Ga. App. 881, 882 (1) (383 SE2d 364) (1989).

2. The trial court did not err by admitting opinion testimony by Sergeant Ralph Bishop and Officer Rick Peace, respectively 18 year and eight year veterans of the Rome Police Department, that the victim had been shot. See Tanner v. State, 163 Ga. 121, 126-127 (7) (135 SE 917) (1926).

3. Appellant contends the trial court erred when it refused on the basis of untimeliness to conduct a hearing on his motion to suppress the .32 calibre pistol recovered by the police from his residence. Although appellant pled not guilty several months earlier, he argues that his motion to suppress was timely because he did not learn about the seizure of the pistol until April 26, 1990. His motion to suppress was filed May 8, 1990, the day after his counsel announced ready at the call of the trial calendar. “Although [OCGA § 17-5-30] does not provide for a specific time when such motion must be filed, it is clear that it shall be filed before trial as the purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained. (A) failure to interpose a timely motion to suppress . . . constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question.” (Citations and punctuation omitted.) Dixson v. State, 191 Ga. App. 410 (1) (382 SE2d 357) (1989). Given that appellant had learned of the pistol’s seizure ten days before he announced ready to proceed to trial at the call of the trial calendar but nevertheless did not file his motion until the day after he had announced ready, we find no error in the trial court’s ruling that the motion was untimely. See generally Holton v. State, 243 Ga. 312, 316-317 (3) (253 SE2d 736) (1979). Compare Collier v. State, 171 Ga. App. 214 (319 SE2d 51) (1984) (motion to suppress timely when filed prior to the calling of the docket on the morning of trial, before issue had been joined). Furthermore, we note that the transcript establishes that the search that uncovered the pistol was conducted with the voluntary consent of the woman who lived at the residence with appellant. See Rucker v. State, 250 Ga. 371, 375 (11) (297 SE2d 481) (1982).

Decided February 6, 1991.

Danny W. Crabbe, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2180.
    WRIGHT v. THE STATE.
    (402 SE2d 807)
   Cooper, Judge.

Appellant brings this pro se appeal from her misdemeanor convictions of obstruction of a law enforcement officer (OCGA § 16-10-24) and maintaining a disorderly house (OCGA § 16-11-44). She alleges seven enumerations of error.

Upon review of the record of appellant’s convictions, it does not appear that the trial court advised appellant of her right to have counsel appointed for any appeal she might wish to pursue. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984). “While a defendant has a right to pursue an appeal pro se, Ga. Const. 1983, Art. I, Sec. I, Par. XII, Cochran v. State, supra, it must be preceded by an appropriate waiver of the right to appellate counsel.” Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155) (1987). Accordingly, this appeal is dismissed without prejudice and remanded to the trial court so that the appropriate instructions can be given to appellant consistent with Cochran v. State, supra, and Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981).

Decided February 7, 1991.

Carolyn Wright, pro se.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

Appeal dismissed and case remanded.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A89A2353.
    NELSON et al. v. FELTON PEARSON COMPANY, INC. et al.
    (402 SE2d 807)
    Decided February 8, 1991.

      Saveli & Williams, John M. Williams, Richard G. Farnsworth, for appellants.

      Bovis, Kyle & Burch, D. Scott McPherson, Steven J. Kyle, Terry L. Yewell, Christina A. Craddock, Charles M. McDaniel, Jr., for appellees.
   Cooper, Judge.

This court having entered a judgment in the above-styled case at 195 Ga. App. 92 (392 SE2d 274) (1990) vacating the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court in Felton Pearson Co. v. Nelson, 260 Ga. 513 (397 SE2d 431) (1990), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Sognier, Chief Judge.

text:
    A90A1975.
    A90A1976.
    JUSTUS v. JUSTUS et al. JUSTUS v. JUSTUS.
    (402 SE2d 126)
   Sognier, Chief Judge.

Randall C. Justus brought suit against his former wife, Anne Marie Justus, and William E. Kelley, seeking damages for fraud and deceit. Anne Marie Justus and Kelley moved for summary judgment, which was denied, and the case was tried before a jury. At the close of the plaintiff’s evidence the trial court granted a directed verdict in favor of the defendants, and Randall Justus appeals. Anne Marie Justus cross appeals from the trial court’s denial of her motion for summary judgment.

The record reveals that the Justuses were married in 1961 and divorced in 1985. There were two children born during the marriage, Randall, Jr., and Deena, both of whom had attained majority at the time of this action. Evidence adduced at trial showed that Randall had instituted the divorce proceedings because he was seeing another woman at the time. After the divorce, Anne Marie revealed to Randall that more than 20 years earlier she and her then pastor, Kelley, had engaged in sexual relations on one occasion; that shortly thereafter she realized she was pregnant; and that approximately nine months later their daughter Deena was born. Anne Marie testified that because she was having sexual relations with her husband during the same time period she always considered it a very remote possibility that Kelley could have been Deena’s biological father. However, after the Justuses divorced, Deena’s child developed hematologic problems and, to help her grandchild, Anne Marie sought out Kelley (whom she had not seen in over 20 years) to ask that he submit to blood tests to determine the possibility of his being Deena’s father. Deena and Randall were tested as well. The results of the blood tests showed that Kelley was the biological father of Deena to a 99.76 percent probability and that it was a scientific impossibility for Randall to be Deena’s biological father.

1. We find that the issue raised in Anne Marie Justus’s cross appeal is dispositive as to her, and consequently we address it first. In the cross appeal, Anne Marie contends the trial court’s denial of her motion for summary judgment was error because she was entitled to summary judgment on the ground of res judicata. We agree.

We note initially that ordinarily, the denial of a motion for summary judgment is not reviewable after verdict and judgment. See Brown Realty Assoc, v. Thomas, 193 Ga. App. 847 (1) (389 SE2d 505) (1989). That rule rests upon the sound reason that after verdict and judgment, any question of the denial of summary judgment is moot, because the reviewing court is able instead to review the evidence adduced at trial. Id. In this case, however, a directed verdict was granted to Anne Marie at the close of Randall’s case-in-chief. Because she had no opportunity at trial to present the evidence upon which her motion for summary judgment was based (her affirmative defense of res judicata), we address her contention that the trial court erred by denying her motion for summary judgment.

Addressing the merits of that contention, the record shows that prior to the institution of this action, Randall had sought to set aside the divorce decree in Catoosa County under OCGA § 9-11-60 (d). In that action, to which Kelley was not a party, Randall alleged fraud and deceit on the part of Anne Marie, contending that under OCGA § 19-6-1 (b), she was not entitled to receive alimony because of her adultery, and seeking recovery of all sums expended by him in support of Deena. In its final order, the Catoosa County Superior Court denied Randall the relief he sought on the basis that OCGA § 19-6-1 (b) provides that a party is barred absolutely from receiving alimony only where “it is established . . . that the separation between the parties was caused by that party’s adultery or desertion,” and the evidence showed that the separation between these parties had been caused by Randall’s, rather than Anne Marie’s, conduct. After this court and the Supreme Court denied appellant’s application for discretionary appeal in that case, Randall then instituted this action seeking damages for fraud and deceit. It is thus readily apparent from a review of the pleadings in both actions that the issue raised in this action was raised in the prior litigation as well.

Moreover, even had it not been raised in the previous action it could have been, and OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Accordingly, Randall’s action against Anne Marie is barred as a matter of law, see Booker v. Booker, 107 Ga. App. 339 (130 SE2d 260) (1963), and the trial court erred by denying her motion for summary judgment. See id. at 341-342.

2. In the main appeal, Randall contends the trial court erred by granting a directed verdict to Anne Marie and Kelley. Our holding in Division 1 makes it unnecessary that we consider whether appellant’s contention has merit as to Anne Marie, because appellant’s action against her is barred by the doctrine of res judicata. However, since Kelley was not a party to the prior suit, Randall’s enumeration of error must be addressed as it pertains to Kelley.

Randall’s action against Kelley is premised upon Kelley’s alleged concealment of the fact that he was Deena’s father. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. It cannot be denied that paternity is material in this case. There is no indication in the record, however, that Randall ever inquired of Kelley regarding Deena’s paternity, and even assuming that Kelley possessed such knowledge as a fact, appellant has cited no authority, and we have found none, suggesting an affirmative duty on Kelley’s part to disclose it to Randall. See generally Block v. Voyager Life Ins. Co., 251 Ga. 162, 164-166 (303 SE2d 742) (1983) (applicant for insurance under no duty to disclose specific health information if not requested by insurer). Moreover, imposing on Kelley and others in circumstances similar to those presented here an affirmative duty to disclose their paternity of children born within another’s marriage would hinder, rather than advance “[t]he preservation of the family unit[, which] is of such utmost importance in this state that it has recently been given stature in our state constitution: ‘To . . . promote the interest and happiness of the citizen and of the family, ... we the people of Georgia ... do ordain and establish this Constitution.’ . . .” Clabough v. Rachwal, 176 Ga. App. 212, 213-214 (335 SE2d 648) (1985). We hold, therefore, that under the circumstances present here, no affirmative duty existed on Kelley’s part to disclose to Randall that Deena was his child. Because no duty existed, Kelley could not have been guilty of a breach of duty by failing to disclose the information, and thus a directed verdict in his favor was proper.

“By the great weight of authority, one appealing the denial of a motion for directed verdict may not raise for the first time on appeal a ground not specifically raised in the original motion. [Cits.]” (Emphasis supplied.) Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83, 84 (295 SE2d 841) (1982). In Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299-300 (2) (352 SE2d 185) (1986), in an en banc decision, this court held that this rule should also be applied when considering appeals from the grant of a motion for directed verdict. In the present case, the trial court did not grant the directed verdict on the basis that Kelley had no duty to disclose, but rather on the basis that Randall had failed to carry his evidentiary burden of showing that Kelley knew that he was Deena’s father. Nevertheless, we find that here, as in Green v. Knight, 153 Ga. App. 183, 184-185 (1) (264 SE2d 657) (1980) (cited in Grabowski as an exception to the rule created there, id. at 300, n. 1), this ground was covered in the general ground asserted (failure to show the elements necessary for fraud by concealment, which, as in Green, could not be cured upon reopening the plaintiff’s case), making this case, like Green, supra, an exception to the Grabowski rule. Accordingly, we find that we may apply here the principle that “ ‘[w]here the judgment of the trial court is proper and legal for any reason, it will be affirmed regardless of the reason assigned. (Cit.)’ [Cit.]” Haywood v. Aerospec, Inc., 193 Ga. App. 479 (2) (388 SE2d 367) (1989). The trial court’s grant of a directed verdict to Kelley was proper. See generally Sarver v. Orrington, 193 Ga. App. 42, 43 (b) (387 SE2d 4) (1989).

Decided February 11, 1991..

Gleason, Davis & Dunn, John W. Davis, Jr., David J. Dunn,.Jr., for appellant.

Ronald C. Goulart, John R. Emmett, for appellees.

Judgment affirmed as to Kelley and vacated as to Anne Marie Justus in Case No. A90A1975. Judgment reversed in Case No. A90A1976.

McMurray, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    A90A2105.
    CONNER INSURANCE AGENCY, INC. v. STRAUCH.
    (402 SE2d 129)
   Carley, Judge.

Appellee-plaintiff brought this tort action, seeking to recover for appellant-defendant’s alleged negligent failure to keep in force a specific policy of automobile insurance. The case was tried before a jury and resulted in a verdict in appellee’s favor. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. According to appellee, his truck had been destroyed and the policy that he thought would provide coverage had been cancelled. On the cross-examination of appellee, appellant attempted to inquire into the specifics of how the truck had been destroyed. The trial court refused to allow appellant to pursue this line of inquiry, ruling that it had “nothing to do with this particular case.” This evidentiary ruling is enumerated as error.

Since appellant’s alleged negligence consisted of the failure to keep in force a specific policy of automobile insurance, the issue of how the vehicle had been destroyed was clearly relevant. Unless the destruction of the vehicle was an insurable event under the terms of that policy, appellant’s alleged negligence would not be a proximate cause of appellee’s injury. Appellant’s alleged negligent failure to keep in force a specific policy which would not cover the destruction of appellee’s truck could not be a basis of recovery. It follows that the trial court’s refusal to allow appellant to pursue this relevant line of inquiry was reversible error. “The right to cross-examine a witness by the opposite party is very broad, and much latitude should be allowed counsel to subject the witness, particularly, if he is the opposite party himself, to a thorough and sifting cross-examination; and it would seem that this right ought not to be denied the defendant where the plaintiff is on the stand and it is sought to elicit from him such evidence as would authorize the jury to find in favor of the defendant.” Williamson, Inman & Co. v. Thompson, 50 Ga. App. 564, 565 (4) (179 SE 289) (1935).

Decided February 11, 1991.

William K. Blackstone, for appellant.

Miles, Baker & Morris, Keith M. Morris, for appellee.

2. Appellee tendered a document which had purportedly been prepared by one of appellant’s employees. The trial court admitted this document into evidence over appellant’s objection that, in the absence of a foundation laid pursuant to QCGA § 24-3-14, it was inadmissible hearsay. This evidentiary ruling is enumerated as error.

The document itself was clearly hearsay. Rodgers v. Cumberland Volkswagen, 167 Ga. App. 826, 828 (307 SE2d 721) (1983). It was, therefore, error to fail to sustain appellant’s objection to its admission into evidence. City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. 45, 47 (2) (292 SE2d 868) (1982). Appellee’s reliance upon Acker v. Corinthian Condominium Corp., 145 Ga. App. 288, 292 (2) (243 SE2d 683) (1978) is misplaced. That case relates to the failure to sustain a best evidence, not a hearsay, objection.

3. Hearsay is admissible as impeaching evidence if it shows that a witness has made a prior inconsistent statement as to a relevant matter. American Fidelity &c. Co. v. McWilliams, 55 Ga. App. 658, 662 (7) (191 SE 191) (1937). It follows that, when appellee attempted to elicit such purported impeaching evidence, the trial court did not err in failing to sustain appellant’s hearsay objection. Appellant made no further objection that the purported impeaching evidence did not relate to a relevant matter and we express no opinion as to that question.

Judgment reversed.

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


text:
    A90A2308.
    EVANS v. THE STATE.
    (402 SE2d 131)
   Sognier, Chief Judge.

Jerry Evans was convicted by a Chatham County jury of voluntary manslaughter and four other charges stemming from his possession and use of a handgun during the crime. He appeals from the denial of his motion for an out of time appeal.

The jury’s verdict was rendered on May 17, 1989, and appellant was sentenced on May 26. The transcript of the sentencing hearing reveals that after sentence was imposed, the trial judge informed appellant, who was represented by appointed counsel, that he had the right to appeal the verdict and to appeal his sentence to the sentence review panel. The court continued, “Let me caution you that you must file the sentence appeal within thirty days from today or, if you appeal the guilty verdict, you must file your sentence appeal within thirty days from receipt by the Clerk of notice that your conviction has been upheld by the appellate courts.” Appellant’s appointed counsel consented to continue representing appellant and to “determine whether or not he wishefd] to appeal either or both of these matters.” Counsel then filed a petition for sentence review on June 13, 1989, and the sentence was affirmed on April 24, 1990. Three weeks later, appellant filed his pro se motion for permission for an out of time appeal, contending appointed counsel had declined to file an appeal from the conviction and judgment and did not explain that appellant could obtain another appointed attorney to maintain the appeal. The trial court denied this motion on June 29, 1990, but did order the preparation of a trial transcript.

Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out of time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). An out of time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. Henry v. Hopper, 235 Ga. 196, 197-198 (219 SE2d 119) (1975); Cannon, supra at 742. Thus, disposition of appellant’s motion requires a determination whether the ultimate responsibility for the failure to file a timely appeal rested with appellant or with counsel. Cannon, supra.

After a review of the record below, we are- unable to ascertain whether that issue was adequately addressed. No hearing was held on appellant’s motion, and we cannot determine from the available evidence whether the failure to file an appeal was the result of appellant’s inaction. Our difficulty in ascertaining the answer to this question is compounded by the fact that trial counsel did file a sentence review petition and apparently remained as appellant’s counsel until that petition was denied in April 1990. If, as appellant contends, the decision not to file an appeal was made by appointed counsel rather than by appellant, he is entitled to pursue an out of time appeal with appointed counsel. Allen v. Hopper, 234 Ga. 52 (214 SE2d 508) (1975). Further, while the trial judge advised appellant at the sentencing hearing that he had the right to file appeals from both the judgment and the sentence, the court did not expressly state that appellant could obtain substitute counsel if he desired, and appellant contends he was not so advised by trial counsel. If appellant did not receive adequate information concerning his right to obtain another appointed attorney should trial counsel not wish to represent him on appeal, he is likewise entitled to an out of time appeal. See Bell, supra at 811.

Decided February 11, 1991.

Jerry Evans, pro se.

Spencer Lawton, Jr., District Attorney, for appellee.

Under these circumstances, we must vacate the lower court’s order and remand with direction that a hearing be conducted on appellant’s motion and a new order entered in accordance with this opinion. See Cannon, supra at 743.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Carley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A2316.
    SINGLETON v. THE STATE.
    (402 SE2d 132)
   Birdsong, Presiding Judge.

Rickey Singleton pleaded guilty under three indictments to offenses including forgery and robbery, numbered 232, 517, and 516. The trial court apparently did not award Singleton the sentence on the robbery count for which he had plea bargained. Singleton’s appeal involves only the robbery count under Indictment No. 516.

Appellant contends that after he was advised of the withdrawal of his speedy trial demands, his attorneys waived and withdrew his speedy trial demands without his knowledge or consent; that he timely filed pro se a “general demand for compliance with the law and refusal to waive rights”; and that he also filed a demand for discharge and acquittal for the State’s failure to try him within two terms of his speedy trial demand pursuant to OCGA § 17-7-170. All these motions were filed before he pleaded guilty and was sentenced. He contends he was denied hearing on his motions, and was denied access to the courts, with the result that he “succumbed” to pleading guilty. Held:

Documents appended to appellant’s pro se appeal brief show that shortly after receiving notice that his attorneys had waived and withdrawn his speedy trial demands, appellant did timely file a “general demand for compliance with law and refusal to waive rights”; but this demand was titled “Indictment No. 517,” which is not the robbery indictment and prosecution that is the subject of this appeal.

In his notice of appeal, appellant specified the appeal was of the conviction upon Indictment No. 516. Appellant directed the clerk of the trial court to prepare and submit to this court “all motions, papers, documents and transcripts of any hearings or sentencing on the matter.” There is no suggestion this was not done. Appellant was represented by one attorney in the robbery prosecution under Indictment No. 516 which is the subject of this appeal, and by another attorney in the other two prosecutions under Indictment Nos. 517 and 232. The record of proceedings under Indictment No. 516 contains no indication that appellant made any objection to his attorney’s waiver of speedy trial demand in this case (Indictment No. 516), nor is there any suggestion that the attorney knew of the “general demand for compliance with law and refusal to waive rights” which appellant apparently had filed in the prosecution of Indictment No. 517.

Thus, the only objection by appellant to his attorney’s waiver of speedy trial demand was the one filed as to Indictment No. 517, for which appellant makes no appeal. The appeal record as to Indictment No. 516 contains the trial court’s order accepting the plea of guilty. This order states that the trial court had affirmatively determined that the plea to Indictment No. 516 was freely and voluntarily made, was justified by fact, and that “there has been a knowing and intelligent waiver of . . . the right to trial by jury . . . confrontation of witnesses, and . . . the privilege against self-incrimination.” Moreover, there is nothing in the record which would indicate the trial court had notice of any objection by appellant to the waiver of his speedy trial demand as to Indictment No. 516. This being the only evidence of record as to the circumstances of the plea, we are unauthorized to consider appellant’s unsupported assertions in his brief that the waiver of speedy trial demand as to Indictment No. 516 was without his knowledge or consent, or that he made any objection thereto. See Howell Mill &c. v. Gonzales, 186 Ga. App. 909, 911 (368 SE2d 831). “ ‘When there is nothing in the record to support the contention of error, there is nothing presented to this court for review.’ ” Ekstedt v. Charter Med. Corp., 192 Ga. App. 248, 249 (384 SE2d 276). According to the record, the plea to Indictment No. 516 is valid; a valid guilty plea waives all defenses, known and unknown. Williams u. Caldwell, 229 Ga. 453, 454 (192 SE2d 378); Reliford v. State, 193 Ga. App. 363 (388 SE2d 21).

It should be noted that appellant’s actions on his behalf, in filing a general objection to the waiver of any rights following the waiver of speedy trial demand, specifically applies only to Indictment No. 517. The conclusion arises that if appellant had any objections to the waiver in his robbery case (Indictment No. 516), he knew how to make it but failed to do so, but instead he merely attempts on appeal to have his plea vacated by relying upon an objection made in the prosecution of another indictment. Appellant offers no explanation why he should be allowed to do this, and we find no authority for it. Accordingly, we find no basis on which he can now impeach his plea.

Decided February 11, 1991.

Rickey Singleton, pro se.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Banke, Presiding Judge.

text:
    A90A2332, A90A2333.
    TOUCHET v. HOLLY ISLES ESTATES; and vice versa.
    (402 SE2d 317)
   Banke, Presiding Judge.

Touchet sued Holly Isles Estates to recover for injuries allegedly sustained as the result of a fire which occurred in a restaurant leased to her by Holly Isles. The complaint alleged that subsequent to the effective date of the lease, the plaintiff had notified the defendant of certain “breaker problems with the electrical and air conditioning unit[s],” and that the appellant’s injuries had proximately resulted from the defendant’s negligence in failing to correct those problems. The case was tried before a jury, which rendered a verdict in favor of the defendant landlord. The plaintiff has appealed from the judgment entered on that verdict, and the defendant has cross-appealed, enumerating as error the denial of its motion for a directed verdict.

The lease agreement provided that the landlord was to be “responsible for the roof and exterior walls, with [the tenant] being responsible for all other maintenance.” The plaintiff testified that she encountered the fire in the women’s rest room upon returning to the premises one night after business hours. The plaintiff called as a witness an electrician who testified that he had inspected the premises after the fire and had observed that certain electrical wires in the area of the rest room were “tear dropped,” indicating that they had short-circuited. However, this witness, who had no training in fire investigation, was unable to state whether the fire had resulted from an electrical shortage.

An investigator from the office of the state fire marshal testified that he had detected the odor of an accelerant in the rest room upon inspecting the premises after the fire and had observed a “pour burn pattern” on the floor, indicating that a flammable liquid had been ignited there. In addition, a plastic gallon jug was retrieved from the burned premises which was shown to have contained paint thinner. The investigator testified that in his opinion the fire was of an incendiary origin and had not resulted from an electrical shortage. Held:

Decided February 11, 1991.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, William M. Shingler, Sr., for appellant.

Alexander & Vann, William C. Sanders, for appellee.

1. The court did not err in refusing to instruct the jury regarding the general duty of a landlord to make repairs, since there was a specific lease provision covering this subject. See Pharr u. Burnette, 158 Ga. App. 473 (1) (280 SE2d 881) (1981). Nor did the court err in failing to give the plaintiff’s requested charge regarding the landlord’s liability for physical harm to the tenant resulting from dangerous conditions existing on the premises, inasmuch as the charge given by the court covered the principles in question in language which was actually more favorable to the plaintiff than the language of the requested charge. See generally Spicewood, Inc. v. Dykes Paving &c. Co., 185 Ga. App. 397 (4) (364 SE2d 298) (1987)#

# 2. Any error in the charge relating to calculation of damages was harmless since “the jury exonerated] the defendant.” Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987).

3. Our review of the other charges objected to by the plaintiff reveals that they were correct statements of law and were properly adjusted to the evidence. See generally YMCA v. Bailey, 112 Ga. App. 684 (14) (146 SE2d 324) (1965); International Indus, v. Dantone, 147 Ga. App. 247 (248 SE2d 530) (1978).

4. The evidence did not demand a verdict in favor of the plaintiff. “On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment.” Locke v. Vonalt, 189 Ga. App. 783 (1) (377 SE2d 696) (1989). The jury was clearly authorized to conclude from the evidence in this case that the fire had not resulted from any act or omission on the part of the defendant landlord.

5. The issues raised in the cross-appeal are rendered moot by the foregoing.

Judgment affirmed.

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


text:
    A90A2376.
    CONKLIN v. ZANT et al.
    (402 SE2d 319)
   Sognier, Chief Judge.

Robert Conklin, an inmate at the Georgia Diagnostic & Classification Center at Jackson, filed a pro se action in superior court alleging that prison officials had unlawfully appropriated funds from his inmate account to satisfy an order of restitution imposed after a prison disciplinary action resulted in his being found guilty of damaging state property. Conklin presented the action in forma pauperis, and the trial court refused to allow it to be filed on the ground that it “fail[ed] to set out sufficient grounds upon which relief may be granted.” Conklin appeals from this ruling, contending the trial court improperly denied filing under the standard set forth in OCGA § 9-15-2 (d). We agree and reverse.

OCGA § 9-15-2 (d) provides, in pertinent part, that “[w]hen a civil action is presented for filing [with an affidavit of indigence in lieu of a filing fee] by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.”

In the complaint, appellant alleged that the Department of Corrections lacked authority to order restitution in appellant’s case because OCGA § 17-14-3, empowering the Department to order inmates to make restitution, is restricted to cases in which restitution is a condition of some “relief,” and no relief, as defined in OCGA § 17-14-2 (6), was ordered in his case. We intimate no opinion as to the ultimate merit of appellant’s arguments, which have not been passed on below, “ ‘for “this court will review and correct only such error as was made in the trial court. . . . (Cit.)” [Cit.]’ [Cit.]” Westwind Corp. v. Washington Fed. &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479) (1990). We have found no authority, however, addressing the argument made by appellant, and it is conceivable that a court might construe the statutes involved to afford appellant relief. Accordingly, as the complaint presented by appellant does not demonstrate “on its face ... a complete absence of any justiciable issue of law or fact,” the trial court erred by denying filing.

Judgment reversed and case remanded with direction.

McMurray, P. J., concurs. Carley, J., concurs in the judgment only.

Decided February 11, 1991.

Robert Conklin, pro se.

Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, for appellees.


author: Beasley, Judge.

text:
    A91A0520.
    MORMAN v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (402 SE2d 320)
    Decided February 11, 1991.
   Beasley, Judge.

This is a direct appeal from an order denying a biological father’s motion to intervene, OCGA § 9-11-24, as a plaintiff in an action for the wrongful death of his three-year-old illegitimate daughter. In the order, the court also made a determination that the father would not be entitled to any proceeds of the action. The parties had agreed that the court would determine the issue of judgment apportionment, see OCGA § 19-7-1 (C) (6), at the time it considered any right of intervention.

The denial of a motion to intervene is not a final judgment and thus, is reviewable under the interlocutory appeal procedure. See OCGA § 5-6-34; Wallace v. Bledsoe, 244 Ga. 674 (261 SE2d 399) (1979); Atlanta Dev. Co. v. Peel & Sons, 189 Ga. App. 453 (377 SE2d 552) (1988). The denial of apportionment in this pre-judgment circumstance is also an interlocutory matter inasmuch as the case is still within the breast of the trial court and subject to further action in this regard, although not with regard to movant.

Pursuant to the interlocutory appeal procedure, appellant obtained a certificate of immediate review from the court’s order and petitioned this Court. The application for interlocutory appeal was dismissed because the certificate of immediate review was filed 16 days after issuance of the order sought to be appealed, making it untimely. See OCGA § 5-6-34 (b). The present direct appeal from the interlocutory ruling is unauthorized and therefore, must likewise be dismissed. Compare Kipp v. Rawson, 193 Ga. App. 532, 535 (4) (a) (388 SE2d 409) (1989) in which the failure to follow interlocutory appeal procedure was not fatal to consideration of a denial of intervention because the denial was reviewable as part of the timely review of a subsequent final judgment.

Appeal dismissed.

Banke, P. J., and Carley, J., concur.

Walbert & Hermann, Paul D. Hermann, Paul W. Roop II, Herbert E. Phipps, for appellant.

Perry, Walters & Lippitt, Jesse W. Walters, Jones, Cork & Miller, Thomas C. Alexander, for appellees.


text:
    A90A1841.
    ROTHELL v. CONTINENTAL CASUALTY COMPANY.
    (402 SE2d 283)
   Beasley, Judge.

On November 8, 1987, Rothell, an over-the-road trucker, was injured when he was standing inside a trailer, unloading it. Freight shifted, hit him in the back, and knocked him out of the trailer onto the ground. Rothell demanded payment of $5,000 basic personal injury protection (PIP) benefits from Continental Casualty Company, which had issued insurance on the vehicle for a period beginning April 1, 1987. At the date of policy issuance, the statutory definition for “operation, maintenance, or use of a motor vehicle” did include “conduct in the course of loading or unloading the vehicle” if the conduct occurred “while occupying” the vehicle. OCGA § 33-34-2 (9) prior to amendment effective July 1, 1987. The policy language tracked the statute to exclude coverage for injury sustained “in the course of loading or unloading any motor vehicle unless the conduct occurs while such person is occupying such motor vehicle.”

The demand was denied on the basis that the incident and injury did not qualify for coverage under OCGA §§ 33-34-2 (1) and 33-34-2 (9) because, as amended effective July 1, 1987, its broader exclusion automatically modified the insurance policy to block coverage for Rothell’s claim. The amendment crafted a larger net so as to exclude “[l]oading or unloading a motor vehicle by any person acting within the course of his employment in any business.”

Rothell sued for the PIP benefits as well as statutory penalties, attorney fees, and punitive damages for bad faith. Both parties sought summary judgment. The trial court granted judgment in favor of the insurer and denied it to Rothell, concluding that under the policy provisions the amended statutory definition of “operation, maintenance or use of a motor vehicle” had been incorporated into the policy and excluded coverage for Rothell’s mishap.

Rothell correctly contends on appeal that the trial court erroneously concluded that the statutory amendment modified the policy to reduce coverage and thus excluded his claim.

Insurance is a matter of contract and contract law rules and interpretations apply. Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498) (1986). Consideration is necessary for the valid modification of the coverage provisions of an insurance policy when such modification substantively alters coverage. See Georgia Mut. Ins. Co. v. Ragan, 122 Ga. App. 56, 57 (176 SE2d 230) (1970). See also Adair v. American Liberty Ins. Co., 116 Ga. App. 805, 806 (2) (159 SE2d 174) (1967); Great American Ins. Co. v. Lipe, 116 Ga. App. 169, 173 (4) (156 SE2d 490) (1967); United States Fid. &c. Co. v. Watson, 106 Ga. App. 748, 754 (2) (128 SE2d 515) (1962).

Decided January 25, 1991

Rehearing denied February 12, 1991

David H. Fink, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellee.

The parties entered into a contract which included express terms of coverage and noncoverage. The contract could not be unilaterally altered to the detriment of the insured by depriving the insured of coverage previously had and paid for, without some corresponding benefit. There was no evidence that the insured received any premium reduction or any consideration whatsoever for a broadening of the exclusion and lessening of coverage.

Statutory exclusions are not compulsorily read into an insurance policy when, as here, the policy provides greater coverage than that mandated by statute. See Ethridge v. Travelers Indem. Co., 186 Ga. App. 812, 814 (368 SE2d 542) (1988). Consequently, no modification occurred.

The fact that the policy contained a “conformance of statutes” provision stating it would conform to state law and that the coverage afforded would be “at least as extensive as the minimum” required by state law, did not, by the clear language of the provision, automatically incorporate subsequent statutory amendments providing less coverage than provided by the contract. Rather, it only ensured that the coverage did not contravene public policy by falling below the minimum requirements of the state law.

It was error to grant summary judgment to the insurer.

Moreover, inasmuch as it was undisputed that Rothell was occupying the covered vehicle at the time of his injury, see Kelley v. Integon Indem. Corp., 253 Ga. 269 (320 SE2d 526) (1984); Holsey v. Allstate Ins. Co., 193 Ga. App. 782 (389 SE2d 11) (1989), and there was no pursued basis to exclude coverage other than the unfounded claim of automatic reduction of coverage, Rothell was entitled to summary judgment in his favor on the issue of basic PIP coverage under the policy.

Judgment reversed.

Pope and Andrews, JJ., concur.


text:
    A90A2089.
    HOLCOMB v. THE STATE.
    (402 SE2d 520)
   Beasley, Judge.

Holcomb, convicted of selling cocaine, OCGA § 16-13-30 (b), appeals, contending the evidence was insufficient and the giving of a jury charge was error.

1. Viewed in favor of the verdict, Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985), the evidence showed that an undercover GBI agent approached Holcomb and Randolph, who were standing in the middle of a street frequently used by drug sellers. The agent previously had purchased cocaine from Randolph. The agent asked Holcomb if the price was still $600 and defendant Holcomb responded affirmatively. The agent gave defendant Holcomb $600 and Randolph handed the agent the cocaine.

Although defendant argues that his version of events and part of Randolph’s testimony should have been believed, such determinations of credibility and resolution of conflicts in the evidence are for the jury; this court does not reweigh the evidence but only determines its legal sufficiency. OCGA § 24-9-80; Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990). The evidence was sufficient to enable any rational trier of fact, by applying to it the standard of “beyond a reasonable doubt,” to find defendant guilty of having committed the act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant complains of the giving of the following charge: “[t]he object of every legal investigation is the discovery of the truth.”

That was given in the context of what followed: “By your verdict in this case, you are to speak the truth, as to the facts and issues tried before you. The word ‘verdict’ comes down to us from an old Latin term that means to speak the truth. Your sworn duty as jurors is to return a verdict that is a true verdict. You have no responsibility for and you should not consider in any way any possible consequences of that verdict, whatever it may be, only that it is a true verdict.” The court also fully charged the jury on “reasonable doubt.”

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982).

Decided January 17, 1991

Rehearing denied February 12, 1991

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Assistant District Attorney, for appellee.

The objection voiced was that the object of a criminal trial is to determine whether or not the state has proven the defendant’s guilt beyond a reasonable doubt, regardless of whether defendant actually committed the act. Defendant argued, “I don’t think that time honored principle really applies in a criminal case.” Defendant cites Daniel, Ga. Criminal Trial Practice, § 25-1, fn. 4 (1986 ed.). See also subsequent editions. Cf. Groves v. State, supra, fn. 1.

The objected-to instruction is verbatim the first part of OCGA § 24-1-2, which continues: “The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” This section of the evidence code capsulizes the raison d’etre for the rules which govern trials. It is not limited by its terms to civil trials. The precept given to the jury states the goal for which the trial process has been developed and continues to be refined, with innumerable safeguards such as the rules of evidence to assure accuracy and fairness. The “reasonable doubt” principle is the standard by which the evidence is measured. It is a very high standard, a stern and demanding guard against mistake of fact. This tool, which is a burden on the State, was given to the jury with an unconditional mandate that it be used in the jury’s search for truth.

It was not incorrect to give the objected-to charge. As stated by the United States Supreme Court, “ ‘the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence,’ Delaware v. Van Arsdall, 415 US 673, 681, 89 L Ed 2d 674, 106 S Ct 1431 (1968). . . .” Colorado v. Connelly, 479 U. S. 157, 166 (107 SC 515, 93 LE2d 473, 484) (1986). See also Montgomery v. State, 156 Ga. App. 448, 451 (1) (275 SE2d 72) (1980). The manner in which it is done must pass the test alluded to by defendant, as explained in Jackson v. Virginia, supra. It is his right to have this test applied. But the test is the means and not the end. The end is truth.

Judgment affirmed.

Pope and Andrews, JJ., concur.

       “Verdict” originated from the Latin “veredictum.” It does not literally mean “to speak the truth,” but translates “a true declaration.” Black’s Law Dictionary, p. 1730 (4th ed. 1968). Groves u. State, 162 Ga. 161, 162 (132 SE 769) (1926).


text:
    A90A1582.
    DRYWALL SUPPLY OF AMERICA, INC. v. DIVERSIFIED SHELTER GROUP, LTD.
    (402 SE2d 321)
   Cooper, Judge.

Appellee, a developer of residential subdivisions, owned certain residential lots and also served as the general contractor for the construction of houses on those lots. Appellee contracted with George Borbas d/b/a Falcon Drywall to furnish and install drywall in the residences. Borbas, in turn, contracted with appellant to supply the drywall materials needed for the residences. Appellee paid Borbas in full by February 4, 1988, yet Borbas did not pay appellant for any of the materials supplied by appellant. Borbas apparently absconded from Georgia, and on February 16, 1988, appellant filed several liens on appellee’s property. Suit was then brought by appellant against appellee to foreclose those liens. Appellee filed a motion for summary judgment and supported the motion with an affidavit of appellee’s vice president, dated November 1, 1989, which stated that “[appellee] has paid Falcon Drywall the full and complete amount which it owes Falcon Drywall, and [appellee] owes nothing which it has withheld from Falcon Drywall. The amount paid to Falcon Drywall was the agreed price of the labor, services and materials provided by Falcon Drywall.” Appellee submitted a supplemental affidavit of its vice president dated January 2, 1990, which listed the total agreed price for labor, services and materials for the construction of each of the residences in question and then stated “[t]he above amounts listed as the full amounts of labor, services, materials on each of the above-listed lots were paid in full by [appellee], as general contractor. The amounts representing the agreed price and reasonable value of the labor, services and materials paid to Falcon Drywall were paid in full by [appellee].” The trial court granted appellee’s motion for summary judgment on the ground that the affidavits submitted dissolved appellant’s liens pursuant to OCGA § 44-Í4-361.2, and it is from this order that appellant appeals.

1. Appellant first argues that the court erred in granting summary judgment because the affidavits submitted by appellee failed to state that all bills or all claims for labor and materials had been paid. The crux of appellant’s argument is that the affidavits did not specify that all suppliers and materialmen, including all those not contracting directly with the general contractor, had been paid. OCGA § 44-14-86!.2 states that a materialman’s or subcontractor’s lien shall be dissolved if the owner shows that “[t]hey . . . have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished, . . ., that the agreed price or reasonable value of the labor, services, or materials have been paid. . . .” We do not agree with appellant’s construction of the statutory language. In Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985), we held that an affidavit which states that the general contractor “has paid in full or has otherwise satisfied all obligations” sufficiently complies with the statute so as to dissolve liens against the owner. The affidavits submitted by appellee satisfy the requirements of the statute, and we do not believe the legislature intended the construction advanced by appellant. As stated in Lowe’s of Ga. v. Merwin, 156 Ga. App. 876 (2) (275 SE2d 812) (1981), wherein this court construed the statutory predecessor of OCGA § 44-14-361.2, “it was not incumbent upon [appellee] to produce, in addition to the contractor’s sworn affidavit, evidence that he (the owner) made full payment to the contractor and that the contractor in turn properly disbursed payment to all valid claims of materialman.” “ ‘(I)nasmuch as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor. (Cit.)’ [Cits.] Construing OCGA § 44-14-361.2 (a) (2) (A) in favor of [appelleedebtor], we find the general contractor’s affidavit in substantial if not complete compliance with the statute and affirm the trial court’s grant of summary judgment to [appellee].” (Emphasis in original.) Dixie Concrete, supra at 866. We recognize the possibility that a contractor’s affidavit submitted in circumstances such as the instant case may work a hardship against one in [appellant’s] position, “but to hold otherwise would equally effect a hardship against [appellee]owner, who would then be forced to pay twice for improvements to his property.” Lowe’s of Ga., supra at Division 1. The case cited by appellant, Siplast, Inc. v. Inland Container Corp., 172 Ga. App. 341 (323 SE2d 187) (1984) is unpersuasive since the defendant therein never obtained a contractor’s affidavit at all.

2. Appellant next enumerates that the court erred in granting summary judgment because appellee’s affidavits were given almost two years after appellant’s liens were recorded, and therefore the affidavits were not sufficient to dissolve the liens. Appellant argues that OCGA § 44-14-361.2 (a) (2) (B) prevents a contractor’s affidavit from dissolving the liens if it were given at a time that the liens had already been filed. However, this section of the statute only applies when the affidavit is given in connection with the three transactions enumerated. According to the statute, an affidavit given in connection with the specified transactions will not dissolve previously filed liens or notices of liens. None of the enumerated transactions is involved in the instant case, and the record reveals that the full payment was in fact made to Falcon Drywall prior to the filing of the liens. We understand appellant’s concerns that an inconsistency may result in that an affidavit offered by appellee at this time in connection with a sale of the property would not dissolve the liens whereas an affidavit offered in the instant circumstances will dissolve the liens. However, until the legislature specifically addresses this issue, we determine that their intent complies with the plain wording of the statute and there is no prohibition to dissolving previously recorded liens when the affidavit is not given as part of the enumerated transactions so long as the actual payments were made prior to the lien filing.

Decided February 12, 1991.

Awtrey & Parker, Barbara H. Martin, for appellant.

Swift, Currie, McGhee & Hiers, Jane C. Barwick, D. Todd Markle, for appellee.

3. Appellant finally contends that the affidavits were not effective to dissolve the liens because the owner and the contractor were the same entity. We agree with the trial court that the clear language of OCGA § 44-14-361.2 (a) (2) (A) — “the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished” — does not prohibit the statute’s application when the owner and the contractor are the same entity. There is no argument made that appellee was not actually performing the duties of general contractor, and it appears that appellee was in substance the bona fide general contractor for the project and therefore was an appropriate entity under the statute to provide the affidavit. Appellant cites Builders Supply Co. v. Thomas, 118 Ga. App. 830 (166 SE2d 33) (1968) as support for its argument. This case construes a predecessor statute, and therefore our construction of the current statute is controlling. We disapprove of any contrary holdings in Builders Supply. The trial court’s grant of summary judgment to appellee was not in error.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1593.
    EVANS v. THE STATE.
    (402 SE2d 323)
   Cooper, Judge.

Appellant appeals her conviction by a jury of obstruction of a police officer and the resulting sentence.

1. Appellant first argues that the evidence presented at trial does not support the conviction. According to the testimony of the two police officers at the scene, they responded to a call regarding a domestic fight at the appellant’s residence. This was the third call that day involving members of appellant’s family and in the vicinity of appellant’s residence. When they arrived at appellant’s house, appellant was in the yard, was obviously upset and was talking about some fellow who took her car. She then told them that everything was all right and she did not need them anymore. As the officers were leaving, they saw appellant’s vehicle swerving down the road, spinning its tires up Appellant’s driveway and being driven erratically until it stopped in appellant’s yard. The officers saw that appellant’s boyfriend, Major Veal (“Veal”), was driving the car. On one of the earlier calls in the day, one of the officers had seen Veal drinking alcohol, had smelled alcohol on his breath and had noticed that his speech was slurred. Both officers were aware that Veal did not have a driver’s license because they knew his license had been turned into the police station as a lost license. The officers walked up to Veal as he got out of the car, and they could both smell a strong odor of alcohol about him. The officers then advised Veal that they were placing him under arrest for driving under the influence, and they were going to take him to the police station for a breath test. At that point, appellant began to curse and told the officers that they were not going to take Veal anywhere, and when they began to handcuff Veal, appellant physically pushed through to prevent the arrest. One of the officers held her hand and nudged her back to prevent interference and told her that if she continued she also would be arrested. The officer testified that appellant got progressively more violent and was fighting the officer by pulling, scratching, slapping, pulling hair and pushing the officers. A fracas ensued involving appellant, Veal and many other people who appeared from the neighborhood. The officers managed to subdue appellant and certain others and placed them under arrest. The doctor who examined appellant when she was taken to the police station testified that she was antagonistic and was fighting, cursing and admitted to heavy alcohol consumption. Veal testified at trial that he had taken appellant’s car on an errand, and when he returned, the officers approached appellant and began to yell at her. When she told them to get out of her yard, one of the officers pushed her with both hands at which point Veal told the officer not to push appellant like that. Veal stated that the officers then placed him under arrest with no explanation and began to hit and cut his hands with the handcuffs. A fight then broke out, with the officers hitting appellant and attempting to choke Veal. Both officers testified that they did not hit or push appellant prior to the commencement of the fight. Viewing the evidence in a light most favorable to the verdict, the evidence is sufficient to sustain a finding of guilt of the offense charged by a rational trier of fact beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next contends that she was justified in resisting and in trying to prevent the arrest of Veal because that arrest was without probable cause and was illegal. Since Veal is not an appellant in this case, the issue of the probable cause to arrest him has not been directly raised. However, assuming arguendo that the arrest was unlawful, it has been held that “ ‘[i]n resisting an unlawful arrest, one is justified in using force, but only such force as is reasonably necessary to prevent the arrest, i.e., force proportionate to the force being used in the unlawful detention. (Cits.) Thus, an arrestee is never justified in assaulting an arresting officer unless the officer has assaulted him first. . . .’ [Cit.]” Sosebee v. State, 169 Ga. App. 370 (1) (312 SE2d 853) (1983). In the instant case, “there was ample evidence upon which a rational trier of fact could have concluded beyond a reasonable doubt that appellant was not assaulted by the police officers and that the appellant resisted the arrest with disproportionate force. It follows that the jury was entitled to reject [her] defense of justification. . . .” Id. at Division 1.

Decided February 12, 1991.

Waddell, Emerson, George & Buice, Hulane E. George, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

3. Appellant finally argues that she was justified in resisting Veal’s arrest because the officers used unreasonable force. “ ‘An appellate court considers only the sufficiency and not the weight of the evidence. (Cit.) The evidence, while not without conflict, authorized the jury to believe that appellant did not act in self-defense. (Cit.)’ [Cit.]” Steele v. State, 166 Ga. App. 24, 26 (2) (303 SE2d 462) (1983).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2307.
    THE STATE v. FREEMAN.
    (402 SE2d 529)
   Birdsong, Presiding Judge.

The State of Georgia appeals the sentence imposed upon Jonathon Russell Freeman. Freeman (hereinafter defendant) was indicted for malice murder and felony murder in Count 1 and for possession of a firearm by a convicted felon in Count 2. Although the grand jury apparently did not return an indictment with a separate recidivist count, the second count averred that defendant had been convicted previously in the same court and on the same day of certain felony offenses, to-wit: in criminal case no. 82-167 of one count of entering an automobile and of two counts of burglary, and in criminal case no. 82-168 of one count of entering an automobile. Appellant was found not guilty of malice murder and felony murder, but guilty of voluntary manslaughter and possession of a firearm by a convicted felon.

The trial court, over protestation by the State, sentenced appellant on the manslaughter count to five years and upon the service of two years confinement, the remaining three years to be served on probation, and on the possession of a firearm count to two years confinement to run concurrently with the confinement adjudged for the manslaughter count.

The State asserts the sentence is void as it erroneously fails to provide for a 20-year sentence of the recidivist defendant, pursuant to OCGA § 17-10-7 operating in conjunction with OCGA § 16-5-2. Held:

1. OCGA § 16-5-2 (b) provides the punishment for voluntary manslaughter “shall be . . . imprisonment for not less than one nor more than 20 years.” OCGA § 17-10-7 (a) provides pertinently that “[a]ny person convicted of a felony offense in this state . . . which . . . would be a felony and sentence to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense.” (Emphasis supplied.) Thus, if OCGA § 17-10-7 is operative in this case the trial court would be required to impose the maximum sentence upon the defendant legislatively prescribed for voluntary manslaughter, and only then could it exercise its discretionary power to probate or suspend the maximum sentence imposed.

2. In McCoy v. State, 168 Ga. App. 598, 599 (310 SE2d 2), this court considered an appeal from a defendant’s conviction of armed robbery, kidnapping and possession of a firearm by a convicted felon. The defendant contended on appeal the trial court improperly sentenced him as a recidivist because it considered convictions not final. We affirmed judgment and denied motion for rehearing holding, “the [S]tate also established without objection that the defendant had been convicted and sentenced to confinement for a 1977 robbery, and this fact was properly alleged in the indictment. Thus, the trial court was both authorized and required to sentence the defendant as a second offender pursuant to OCGA § 17-10-7 (Code Ann. § 27-2511).” However, the reported facts do not reflect whether the 1977 robbery averment was contained within a recidivist count in the indictment or solely within the count for possession of a firearm by a convicted felon.

Subsequently, in King v. State, 169 Ga. App. 444 (313 SE2d 144), this court considered the “first impression issue” of whether the State can use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for that offense under the repeat offender statute, OCGA § 17-10-7. The King court persuasively concluded “the General Assembly did not intend that the allegation and evidence of a prior felony conviction, necessary for conviction under OCGA § 16-11-131 (Code Ann. § 26-2914), could also be used to punish a defendant as a repeat offender under OCGA § 17-10-7 (a) (Code Ann. § 27-2511); and did intend that the punishment provisions established for the offense be the only standard applied in sentencing.” Id. at 445. Accordingly if, within the meaning of King, proof was necessary of each of the averments of prior felony offenses found in the count of possession of firearm by a convicted felon for defendant’s conviction under OCGA § 16-11-131, that same evidence could not be utilized to support defendant’s enhanced punishment as a repeat offender under OCGA § 17-10-7. King, supra.

The State elected to aver in the possession of firearm by felon count each of defendant’s prior felony offenses; moreover, in view of the consolidation for trial of the two previous indictments, defendant is deemed to have only one prior conviction for purposes of OCGA § 17-10-7. OCGA § 17-10-7 (c); see generally Queen v. State, 182 Ga. App. 794 (1) (357 SE2d 150); Dobbs v. State, 180 Ga. App. 714 (2) (A) (350 SE2d 469). “Although listing a defendant’s entire record on the [face] of an indictment has been discouraged, [cit.], the [S]tate is not limited to alleging and proving only one prior felony conviction when proof of a felony conviction is an element of the crime charged.” (Emphasis supplied.) Favors v. State, 182 Ga. App. 179 (2) (355 SE2d 109); Head v. State, 170 Ga. App. 324, 326 (3) (316 SE2d 791), rev’d on other grounds, 253 Ga. 429 (322 SE2d 228). However, if the State elects to aver in a possession of firearm by felon count that the defendant has been convicted of more than one prior felony offense, such averment is descriptive of the manner in which the offense was committed and, as such, the State must make an honest attempt to prove the offense “as laid” (see generally Ross v. State, 195 Ga. App. 624 (1) (b) (394 SE2d 418) and cases therein cited); any other holding would permit the State to list all of an offender’s prior offenses without any intent to prove each of the averments and merely to enflame the jury. Accordingly, once the State elects to aver, either in whole or in part, the defendant’s criminal conviction record, proof of such averments becomes necessary within the meaning of King, supra, and these averred offenses subsequently cannot be considered for punishment enhancement under OCGA § 17-10-7. Thus, it behooves the State to make a careful determination at the onset whether to aver all of defendant’s prior criminal convictions in the possession of firearm by felon count and thus be able to introduce evidence of all those offenses in its case-in-chief, or whether to withhold for sentencing purposes some of the averments for use in a separate recidivist count or notice and thus to forego usually its ability to introduce that particular evidence of prior convictions before the jury in a non-capital case.

3. As reflected above, the indictment returned against defendant by the grand jury did not contain a recidivist count. In Riggins v. Stynchombe, 231 Ga. 589, 592-593 (203 SE2d 208), the Supreme Court concluded that under the two-step sentencing procedure then in effect, “one must be indicted as a recidivist in order to impose recidivist punishment. . . .” Id. at 593; see e.g., Aldridge v. State, 158 Ga. App. 719, 721 (4) (282 SE2d 189); Brown v. State, 144 Ga. App. 509, 510 (2) (241 SE2d 621); see Harris v. State, 40 Ga. App. 228 (149 SE 153). However, in State v. Hendrixson, 251 Ga. 853 (310 SE2d 526), the Supreme Court, after noting “Riggins arose during the short life of a two-step felony sentencing procedure,” concluded that “[b]ecause Riggins stands for the proposition that it is error to disclose to the jury prior convictions before a determination of guilt, [cit.] the only purpose for their inclusion in the indictment is to give the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.” (Emphasis supplied.) Id. at 854. The court then stressed that OCGA § 17-10-2 (a), since the 1974 Act, contains an express curative proviso “different from inclusion of prior offenses within an indictment,” which broadly provides “that only such evidence in aggravation as the [S]tate has made known to the defendant prior to his trial shall be admissible” at the presentencing hearing. (Emphasis deleted.) Id. at 854-855. Thus, Hendrixson, supra, correctly placed substance over form by holding that the important requirement was that the defendant be given an “unmistakable advance warning that the prior convictions will be used against him at sentencing” (Id. at 854; accord Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487)), so that he will have “enough time to rebut or explain any conviction record” (Queen v. State, 131 Ga. App. 370, 374 (4) (205 SE2d 921)). As “the only purpose for inclusion of prior offenses in an indictment” is to give this warning (Anderson, supra at 256), it is readily apparent that such affirmative notice can be given by other acceptable means, and there no longer exists an absolute necessity to allege prior offenses in an indictment. Anderson, supra. The validity of this conclusion is supported by the fact that in cases such as this a “defendant had no right to a jury determination of [the recidivist] issue,” because “recidivism is an issue only in the sentencing phase of a trial.” Gary v. State, 186 Ga. App. 231 (366 SE2d 833); LaPalme v. State, 169 Ga. App. 540 (313 SE2d 729).

In this case, however, not only was there no recidivist charge contained in the indictment, the record does not contain any other af firmative notice to defendant that his prior felony offenses would be used against him for recidivist purposes during sentencing. It is well-established that “[t]here is a presumption that sentence was correctly imposed” (see, e.g., Jones v. State, 233 Ga. 662, 663 (3) (212 SE2d 832)), and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety (see Jones, supra at 663 (3)).

Decided February 12, 1991.

Michael H. Crawford, District Attorney, for appellant.

Thompson, Fox, Chandler & Homans, David A. Fox, for appellee.

Examining the record in its entirety, including the lack therein of either a recidivist count in the indictment or other timely affirmative notice of use of a prior felony conviction for recidivist purposes, we find that appellant has failed to overcome the presumption that the trial court properly imposed punishment upon the defendant.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A89A2330.
    FULTON COUNTY v. DANGERFIELD et al.
    (403 SE2d 253)
    Decided February 12, 1991.

      Robert G. Young, for appellant.

      Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, Abraham A. Sharony, for appellees.
   Beasley, Judge.

On certiorari our decision affirming the trial court in Fulton County v. Dangerfield, 195 Ga. App. 208 (393 SE2d 285) (1990) was reversed in part in Fulton County v. Dangerfield, 260 Ga. 665 (398 SE2d 14) (1990). Accordingly, our decision in Division 1 is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed and case remanded.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope and Andrews, JJ., concur. Cooper, J., disqualified.


text:
    A90A2338.
    SAMUEL v. THE STATE.
    (402 SE2d 325)
   Birdsong, Presiding Judge.

Appellant, Anthony Samuel, appeals his sentence and conviction of possession of less than one ounce of marijuana and possession of (crack) cocaine, a controlled substance.

At the suppression motion hearing, the State’s sole witness, Detective Moore of the Chatham County Police, testified as follows: He received a tip from a confidential informant that a black male, later identified as appellant, would be in room 204 at the Master Host Inn in Savannah, Georgia, and would be in possession of a large but undetermined quantity of crack cocaine for sale. The black male would be operating a black BMW automobile. The informant also stated the black male was to meet two white males and a white female at the inn, and that these persons would be driving a brown Z-28 automobile. Detective Moore had previously worked with the informant who had given reliable information in the past which had resulted in arrests.

The police went to the inn between the early morning hours of 3:00 and 3:30 a.m. Detective Moore testified that after the police got to the motel “we verified all the information.” Detective Moore first proceeded to check room 204, and he observed a white male, later identified as Alfred Morris Harold, “standing guard outside.” Moore testified that in the area of drug control it is common for someone who is making a sale or anything that is drug related to have a lookout stationed outside the hotel room.

After watching the room, Moore determined “that there was someone in there.” He then observed that the BMW automobile described by the confidential informant was “downstairs.”

The police next went to the motel office to ascertain who and what vehicle was registered to room 204. Motel personnel verified that the vehicle belonged to the person occupying room 204.

As they were continuing to verify information in the motel office and attempting “to get together a search warrant,” the police observed appellant leaving the motel in the black BMW which the confidential informant had told them about. Although they had never seen appellant actually enter or exit room 204, Detective Moore and his partner followed, and subsequently had a marked patrol unit stop appellant even though they did not observe him commit any traffic offenses. The detectives stopped appellant based on the information obtained from their confidential informant as verified by information obtained and observations made at the motel.

When the marked patrol unit turned on its “take-down” light and appellant started to exit his vehicle, Detective Moore “could see a bag hanging out of [appellant’s] back pocket with green leafy material in it.” Moore immediately seized the bag, determined to his satisfaction that it was in fact marijuana, and then placed appellant under arrest for possession of marijuana. Thereafter appellant was searched and a clear plastic ziplock bag was found in his front pocket containing several pieces of an off-white, rock-like substance that subsequently tested positive for crack cocaine. After the search two white females were found in room 204.

Appellant with the trial court’s consent subsequently entered a plea of guilty to both of the above counts upon condition he retain his right to appeal the denial of the motion to suppress. His sole enumeration on appeal is that the trial court erred in denying his suppression motion. Held:

1. The tip was received from a confidential informant who previously had provided reliable information resulting in arrests. Although not all of the information supplied by the informant was subsequently verified, the police did verify that: room 204 was occupied; a black BMW was parked “downstairs”; the BMW belonged to the person occupying room 204; and a black male, later identified as appellant, left the motel driving the black BMW. Additionally, Detective Moore observed, in the early morning hours, a white male who appeared to be acting as a lookout outside of room 204, and in his experience Moore was aware that lookouts were customarily posted outside motel rooms during drug activity therein. Thus, in addition to and independent of the past reliability of the confidential informant, “it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.” Alabama v. White, 496 U. S._ (110 SC 2412, 110 LE2d 301). Assuming arguendo that the information supplied by the previously reliable confidential informant was not sufficiently corroborated in this instance to provide probable cause to arrest and search appellant, when significant aspects of the confidential informant’s information were verified, as here occurred, there was reason to believe not only that the confidential informant was honest with respect to the matter but also that he was sufficiently well informed to justify the investigative stop of appellant’s automobile. Compare Alabama v. White, supra; Jones v. State, 195 Ga. App. 868 (2) (395 SE2d 69) and Radowick v. State, 145 Ga. App. 231 (1) (244 SE2d 346). Here, even more so than in Alabama v. White, supra, the tip provided to the police is sufficiently corroborated to furnish reasonable suspicion that appellant was engaged in criminal activity at the motel, and accordingly the timely investigative stop of appellant’s automobile after he unexpectedly departed the crime scene did not violate the Fourth Amendment. Alabama v. White, supra, slip op. at 5. Moreover, the founded suspicion of the police, based on all the existing circumstances, that appellant was engaged in criminal activity at the motel provides a basis from which this court can determine that appellant’s subsequent investigative stop was not based on arbitrary or harassing police conduct. See generally Mallarino v. State, 190 Ga. App. 398, 401 (379 SE2d 210).

2. As the investigative stop of appellant’s automobile was lawful, the conduct of the police in this regard did not serve to otherwise taint appellant’s subsequent arrest and search incident to arrest. As appellant exited his vehicle, Detective Moore immediately observed, hanging out of defendant’s rear pocket and in plain view, a plastic bag containing a leafy green material therein. At this point, based on Detective Moore’s obvious routine contact with contraband while performing police duties in the area of drug control and the information previously obtained and personal observations previously made by him, it would be immediately apparent that the substance in the bag was contraband.

The plain view doctrine will support a warrantless search and seizure if, as here, the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. State v. Webb, 193 Ga. App. 2, 4 (2) (386 SE2d 891); Griffin v. State, 180 Ga. App. 189 (348 SE2d 577). Contraband lawfully found in plain view need not be ignored and can be seized. See Michigan v. Long, 463 U. S. 1032, 1050 (103 SC 3469, 77 LE2d 1201).

3. Having lawfully seized the green leafy substance and having verified that it was marijuana, Detective Moore would then have probable cause to believe appellant had committed the offense of possession of marijuana and, accordingly, he could lawfully arrest appellant on that basis. See generally QCGA § 17-4-20 (a). Upon placing appellant in a state of lawful arrest, Detective Moore could and did conduct a search incident to arrest of the appellant’s person. “When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless ‘search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ [Cits.] Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.” United States v. Chadwick, 433 U. S. 1, 14-15 (97 SC 2476, 53 LE2d 538); see Chimel v. California, 395 U. S. 752, 762-763 (89 SC 2034, 23 LE2d 685). Accordingly, appellant was subjected to a lawful warrantless search of his person incident to his arrest that resulted in the lawful seizure of the crack cocaine.

Decided February 12, 1991.

William S. Lewis, for appellant.

Spencer Lawton, Jr., District Attorney, Peter B. Hoffman, Assistant District Attorney, for appellee.

The trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1723.
    In the Interest of B. R. S.,; a child.
    (402 SE2d 281)
   Carley, Judge.

Based upon an allegation that appellant-mother’s child was deprived, appellee-Georgia Department of Human Resources sought the termination of her parental rights pursuant to OCGA § 15-11-81 (b) (4). The trial court conducted a hearing, found that the child was deprived, and terminated appellant’s parental rights. Appellant appeals from the termination order.

1. “ ‘The juvenile court’s termination of appellant’s parental rights must be based upon clear and convincing evidence which supports the following findings: “(i) The child is a deprived child . . .; (ii) The lack of proper parental care or control by [appellant] is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A). If clear and convincing evidence of these elements exists, the juvenile court must then have given consideration to the best interests of the child before it ordered the termination of appellant’s parental rights. See OCGA § 15-11-81 (a). . . . ‘ “On review of such a decision (terminating parental rights), the standard is whether[,] after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody have been lost. (Cit.)” [Cit.]’ [Cit.]” In the Interest of K. P. E., 196 Ga. App. 759, 760 (397 SE2d 39) (1990).

B. R. S. is the second of appellant’s three children. The evidence shows that he was discovered by police in a filthy motel room with appellant’s third husband. The child, who was not quite two years old at the time, was without clothes, was crying profusely, and exhibited multiple bruises and cigarette burns on his body. Appellant’s husband pled guilty to a charge of cruelty to children. Appellant pled guilty to charges of simple battery and reckless conduct. Appellant urges that it was her husband, and not she, who was responsible for the deprivation of the child and that, therefore, there is no clear and convincing evidence to support the juvenile court’s finding of her lack of proper parental care or control pursuant to § 15-11-81 (b) (4) (A) (ii). However, the record clearly shows that appellant “did nothing to protect her children from the physical and emotional abuse to which her husband subjected them, although she knew he was prone to violence and had harmed her and them in the past.” In the Interest of Y. P., 188 Ga. App. 554, 555 (373 SE2d 657) (1988). See also In re D. C., 176 Ga. App. 30 (335 SE2d 148) (1985). “[PJarental unfitness supporting a termination of parental rights can be caused ‘ “ ‘either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.’ ” ’ [Cit.]” (Emphasis supplied.) In the Interest of E. P. N., 193 Ga. App. 742, 748 (2c) (388 SE2d 903) (1989).

2. A ground of objection to the juvenile court’s consideration of certain evidence which was not raised below is waived and will not be considered on appeal. See In the Interest of J. L. Y., 184 Ga. App. 254, 258 (3) (361 SE2d 246) (1987); In the Interest of D. S., 176 Ga. App. 482, 485 (2) (336 SE2d 358) (1985); Brown v. Dept, of Human Resources, 157 Ga. App. 106 (1) (276 SE2d 155) (1981).

3. Appellant urges that it was error to terminate her parental rights without her first having been provided an opportunity to rehabilitate herself.

Appellant has cited no authority for the proposition that the opportunity for rehabilitation is a prerequisite to the termination of her parental rights. In full compliance with applicable statutory requirements of OCGA § 15-11-81 (b) (4) (A) (iii), the juvenile court found that the deprivation of the child resulting from appellant’s parental unfitness is likely to continue or will not likely be remedied, and there is sufficient clear and convincing evidence to support the findings in this regard. See In re A. N.Y., 181 Ga. App. 499 (353 SE2d 8) (1987); In the Interest of J. I. H., 191 Ga. App. 848, 850 (3) (383 SE2d 349) (1989). “ Tn a case such as this, a plea of additional time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child where there is no indication but the promise to suggest hope of improvement. [Cits.]’ [Cit.]” In the Interest of B. L., 196 Ga. App. 807, 810 (3) (397 SE2d 156) (1990). See also In the Interest of E. P. N., supra at 747 (2b, c).

Decided January 17, 1991

Rehearing denied February 13, 1991.

Constance M. Boughan, for appellant.

Lisa Pledger, pro se.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Margot M. Cairnes, Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.

4. After the termination of parental rights, the juvenile court “shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage.” OCGA § 15-11-90 (a) (1). However, there is no comparable statutory provision which mandates that, prior to the termination of parental rights and as a prerequisite thereto, the juvenile court must make a similar attempt. See In the Interest of P. F. J., 174 Ga. App. 47, 48 (2) (329 SE2d 194) (1985). As noted, there is clear and convincing evidence to authorize the juvenile court’s findings that appellant was responsible for the deprivation of the child and that her parental unfitness is likely to continue or is not likely to be remedied. Compare In the Interest of K. E. B., 190 Ga. App. 121 (378 SE2d 171) (1989). There is nothing in the record which otherwise casts doubt on the determination that a complete severance of appellant’s parental rights was appropriate. Compare Jones v. Dept, of Human Resources, 168 Ga. App. 915, 916 (310 SE2d 753) (1983).

Judgment affirmed.

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


text:
    A90A1819.
    TOWER FINANCIAL SERVICES, INC. v. MAPP et al.
    (402 SE2d 286)
   Carley, Judge.

The relevant facts in the instant appeal are as follows: Johnny Lee Mapp died intestate. He was survived by his wife, Mrs. Beatrice Mapp, and by appellee-plaintiffs, his three children from a previous marriage. After the death of her husband, Mrs. Mapp applied for a loan from appellant-defendant. In connection with her application for the loan, Mrs. Mapp misrepresented that she held title in fee simple absolute as to certain realty inherited from her late husband. Appellant made the loan to Mrs. Mapp and took back a security deed to the property whereby she purported to convey fee simple absolute. Appellant recorded its security deed. After this transaction between appellant and Mrs. Mapp, appellees filed the instant tort action, alleging that appellant had negligently or wrongfully interfered with their interests in the realty. The case was tried before a jury and a verdict awarding appellees compensatory damages, punitive damages, and attorney’s fees was returned. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdict.

1. Appellant enumerates the general grounds, urging that the evidence will not authorize a finding of its tort liability to appellees.

The evidence shows that, prior to making the loan to Mrs. Mapp, appellant commissioned an attorney to conduct a title search on its behalf. This title search failed to disclose the existence of appellees’ interests in the property. Appellees urge that appellant’s tort liability can be premised upon this allegedly negligent title search. However, the purpose of appellant’s commission of the title search was exclusively to protect its own interests as a potential lender and there obviously is no evidence that appellees themselves otherwise relied to their detriment upon the results of that title search. See generally Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198) (1987); American Mut. Liability Ins. Co. v. Jones, 157 Ga. App. 722 (278 SE2d 410) (1981). If the title search was negligently conducted, it is appellant who was injured by its reliance thereon, insofar as appellant would not have the anticipated security for its loan to Mrs. Mapp.

It is of no consequence to appellant’s tort liability that the title search was conducted by an attorney who was employed by it. Appellant could be held vicariously liable to appellees for the negligence of its employee if its employee had violated a duty that he owed to appellees. OCGA § 51-2-1. However, even assuming that the attorney was an employee rather than an independent contractor, it is clear that, in conducting the title search, he owed a duty to protect appellant’s interests as a secured party, but he had no duty to appellees. See generally Horn v. Smith & Meroney, P. C., 194 Ga. App. 298 (390 SE2d 272) (1990).

Appellees further urge that their recovery in tort can be premised upon appellant’s unlawful interference with their realty in violation of OCGA § 51-9-1. However, there is no evidence that appellant ever interfered with appellees’ possessory interests in the realty. Compare Orr v. Floyd, 95 Ga. App. 401 (97 SE2d 920) (1957). Appellant’s only act was to record a security deed from Mrs. Mapp. It is undisputed that Mrs. Mapp was appellant’s debtor and that she did have an interest in the property. Thus, appellant’s act of filing the security deed could be “wrongful” towards appellees only insofar as the security deed erroneously purported to convey to appellant a greater interest in the realty than Mrs. Mapp in fact owned. However, this error in the security deed had no legal effect whatsoever on appellees’ actual title to the property. See Copelin v. Williams, 152 Ga. 692 (1) (111 SE 186) (1922). “A tenant in common cannot convey a greater interest than he owns, and his deed will be treated as conveying only his undivided interest even though it may purport to convey the entire fee.” Pindar, Georgia Real Estate Law, § 7-84, pp. 300-301 (3d ed.). The erroneous security deed itself might constitute a cloud on appellees’ title which could be removable at equity, but the mere act of filing the deed clearly would not be actionable in tort unless it constituted a slander on appellees’ title in violation of OCGA § 51-9-11. See Weyman v. City of Atlanta, 122 Ga. 539 (50 SE 492) (1905). However, there is no evidence that, in filing the security deed, appellant acted with malice. See Harmon v. Cunard, 190 Ga. App. 19 (378 SE2d 351) (1989). Compare Lincoln Log Homes Marketing v. Holbrook, 163 Ga. App. 592, 594 (2) (295 SE2d 567) (1982).

Decided January 28, 1991

Rehearing denied February 13, 1991.

Glass, McCullough, Sherrill & Harrold, E. Paul Sabiston, R. Phillip Shinall III, Terrance McQuade, Betsy B. McCall, for appellant.

Antonio L. Thomas & Associates, Antonio L. Thomas, Kendall & Kendall, Alvin L. Kendall, for appellees.

Construing the evidence most favorably for appellees, the most that was arguably shown was that appellant filed an erroneous security deed which created a cloud on appellees’ co-tenancy in the property. There is absolutely no evidence to authorize a finding that, in so doing, appellant incurred any liability in tort to appellees. It follows that the judgment must be reversed.

2. Appellant’s remaining enumerations of error are moot.

Judgment reversed.

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


text:
    A90A2082.
    GREENE v. KEENER.
    (402 SE2d 284)
   Beasley, Judge.

In a bench trial, plaintiff Greene lost her suit to rescind the sale of an antique secretary, and to recover it. The Supreme Court transferred this appeal, as not being an equity case. 1983 Const, of Ga., Art. VI, Sec. VI, Par. Ill (2).

Viewed in favor of the judgment, the evidence showed the following. Greene placed on sale several pieces of antique furniture from her mother’s estate in Valdosta. Because she lived in Atlanta she authorized her cousin to show the furniture. Keener inquired about the price of the secretary and was informed that it would be $4,200. Greene intended the price to be $6,000 and was unsure whether she wanted to sell it, but in conversation with Keener she agreed to sell it for $4,200. Keener said he was very interested and “the only thing I wanted to do was to be sure it blended in with the rest of our furniture.” After some discussion it was agreed that Keener could take the secretary home and see if it matched his other furniture.

The night after Keener had the secretary taken to his home, Greene called and informed him that she no longer wanted to sell the secretary and asked that he return it. Keener said “hold on a minute,” and went to speak with his wife. He inquired if she liked the piece and she responded yes. At the trial there was a dispute as to what Keener then told Greene. Taking the version favorable to the prevailing party, Keener informed her that “she liked the secretary” and “would like to keep” it.

The trial court determined that there was a valid binding contract for the sale. On appeal Greene contends that there was a mutual rescission of the contract. However, it was not necessary that the parties mutually rescind the contract because it was undisputed that Greene revoked her offer before there was an acceptance by Keener.

“An offer to contract may be withdrawn by the offeror before its acceptance by the offeree.” Remington Cash &c. Co. v. Orr Drug Co., 45 Ga. App. 66 (1) (162 SE 921) (1931). This is true even where the contract provides that it remain open for a stated time. State Hwy. Dept. v. MacDougald Constr. Co., 54 Ga. App. 310 (1) (187 SE 734) (1936). “The consent of the parties being essential to a contract, until each has assented to all the terms the contract is incomplete. Until assented to, each party may withdraw his proposition.” Milner Hotels v. Black, 196 Ga. 686, 691 (27 SE2d 402) (1943). To effectively terminate, there must be notification of the revocation by the offeror which is communicated to the offeree prior to acceptance by the latter. See 17 AmJur2d 374-376, Contracts, §§ 35; 36 and 37; 17 CJS 706, Contracts, § 50.

When the secretary was taken to Keener’s home the contractual status was substantially equivalent to that found in Stone Mountain Properties v. Helmer, 139 Ga. App. 865 (229 SE2d 779) (1976). The sale was conditioned upon the item being satisfactory to the purchaser. At that point the contract was unenforceable on the part of the seller and lacked mutuality, but once Keener did agree that the secretary “fit in” with his furniture at home a contract could be formed. Helmer, supra at 869. The evidence unequivocally demonstrates that Keener had not made that determination prior to Greene’s informing him that the deal was off. Her action revoked the offer before acceptance by the seller could occur.

“ ‘[I]f both parties meet, one prepared to accept and the other to retract, whichever speaks first will have the law with him; and this question is one of fact to be decided by the jury.’ ” Helmer, supra at 870 quoting from 17 CJS 708, Contracts, § 50 (a). Both parties testified that Greene told Keener she did not want to sell and it was only afterwards that Keener discussed the issue with his wife and then relayed her assent indicating a desire to keep the secretary. As a matter of law, communication of the withdrawal of the offer occurred prior to acceptance.

Decided January 25, 1991

Rehearing denied February 13, 1991

David F. Sandbach, Jr., for appellant.

William P. Langdale, Jr., for appellee.

Applying OCGA § 9-11-52 (a), the trial court erred in determining that there was a valid contract for the sale of the secretary.

Judgment reversed.

Pope and Andrews, JJ., concur.