text:
    A98A0423.
    LEWIS et al. v. TURNER BROADCASTING SYSTEM, INC. et al.
    (503 SE2d 81)
   Judge Harold R. Banke.

Marsha Diane Lewis and 21 other dissatisfied TBS shareholders (“appellants”) instituted the underlying action to challenge the $7.5 billion merger between Turner Broadcasting System (“TBS”) and Time Warner, Inc. (“Time Warner”). Appellants sued TBS, Time Warner, Tele-Communications, Inc. (“TCI”), Ted Turner, and 12 members of TBS’ board of directors.

The appellants did not elect to exercise the statutory right of appraisal under OCGA § 14-2-1302 but chose to file a separate action. They alleged, inter alia, that the merger vote by the TBS board was fraudulent and violated State law as well as the TBS bylaws and articles of incorporation in that the directors who voted to approve the merger plan were “interested” or “affiliates” and required by the TBS bylaws to abstain. They contended that Turner and the controlling shareholders of TCI, as well as all the individually named defendants, breached a fiduciary duty. They also brought a derivative claim for breach of fiduciary duty for waste and usurpation of corporate opportunity.

In granting judgment on the pleadings on the fraud claim, the trial court determined that this count necessarily failed because it was not fraud “in connection with the vote approving the merger” and because the allegations for fraud lacked sufficient particularity. No appeal of that ruling on the issue of fraud was undertaken. The court also rejected the claim that the TBS board vote violated the TBS bylaws and articles of incorporation. Held:

1. The appellants contend that the trial court erred in granting summary judgment on their claim that the merger vote was invalid. Of the fifteen directors eligible to vote on the merger, nine abstained. The appellants claim that four of the six who voted violated the TBS bylaws in so doing because they were “interested” within the meaning of TBS bylaws.

Article XII, section 3 (c) of the TBS bylaws requires an interested director to abstain from voting. According to the bylaws, “[flor purposes of this paragraph (c), a director shall be deemed to have an interest in a matter submitted to the Board for its approval only if (i) such matter is the approval of an agreement or transaction to which the Company . . . and such director or any of his or her affiliates are parties or (ii) such director otherwise determines that he or she either directly or through his or her affiliates has an interest in the matter and advises the Board that he or she has determined to abstain from the vote on such matter.”

It is undisputed that none of the four directors at issue was a party to the merger. Nor did the appellants offer any evidence that any of these four directors determined that he had “an interest in the matter and so advised the Board.” On the contrary, one of the directors, Robert Shaye, testified without dispute, that each director reviewed the definition of “interested director” in the TBS bylaws and that each separately determined on his or her own whether they would be disqualified from voting by being “interested.”

Nor did the appellants cite any authority which would permit the substitution of an objective standard for “interested” in place of the subjective standard plainly set forth in subsection 3 (c) (ii). Thus, the appellants failed to prove that either subsection (i) or (ii) was triggered. In the absence of evidence of a disputed material fact, the award of summary judgment was proper on this issue. OCGA § 9-11-56 (c). Compare City of Thomasville v. Shank, 263 Ga. 624, 625-626 (2) (437 SE2d 306) (1993).

2. The appellants contend that the trial court erred in granting the motion for judgment on the pleadings on their claim that the vote approving the merger was invalid because the voting directors were “affiliates” of an “interested” party, Turner, and were required by the TBS bylaws to abstain.

On motion for judgment on the pleadings, the trial court is required to accept all well pleaded material allegations of fact as true, but need not adopt a party’s legal conclusions based on these facts. OCGA § 9-11-12 (c). ALW Marketing v. McKinney, 205 Ga. App. 184, 186 (1) (421 SE2d 565) (1992). In considering such motion, a trial court may properly consider exhibits attached to and incorporated in answers. Shreve v. World Championship Wrestling, 216 Ga. App. 387, 388 (1) (454 SE2d 555) (1995). Here, it is undisputed that the TBS bylaws, a copy of which was attached to the answer, do not define “affiliate.”

Absent ambiguity, the construction of a contract is a question of law for a court. OCGA § 13-2-1. Where the words in a contract are plain and obvious, they must be given their literal meaning. United States Fire Ins. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987). Here, the plain language at issue does not bar voting by an affiliate of Turner as the appellants assert. Instead, subsection (i) of the bylaws requires abstention only if “such director or any of his or her affiliates are parties” (Emphasis supplied.) This unambiguous language merely requires that a director abstain when he or one of his affiliates is a party to the transaction. See Hunnicutt v. Southern Farm &c. Ins. Co., 256 Ga. 611, 612 (4) (351 SE2d 638) (1987) (construction of unambiguous contract is a question of law for the court). The appellants’ effort to impute the status of “affiliate” to the four directors based on their individual employment relationships with Turner is unpersuasive. A convoluted interpretation cannot be substituted for the straightforward language contained in the bylaws. Johnston v. Almand, 213 Ga. App. 553, 555 (2) (b) (445 SE2d 347) (1994) (when contract terms are clear and unambiguous, they must be enforced according to their terms).

3. The appellants assert that the trial court erred in granting judgment on the pleadings with respect to their claim that the premium paid to TBS Class C shareholders in connection with the merger violated TBS’ articles of incorporation.

Prior to the merger, in a Joint Proxy Statement Prospective, TBS notified its shareholders of their right to dissent under OCGA § 14-2-1302. Where a merger is consummated, a record shareholder is entitled to dissent from and to obtain payment of the fair market value of his shares. OCGA § 14-2-1302 (a) (1). Such dissenting shareholders, however, are precluded from challenging the corporate action creating their entitlement “unless the corporate action fails to comply with procedural requirements of this chapter or the articles of incorporation or bylaws of the corporation or the vote required to obtain approval of the corporate action was obtained by fraudulent and deceptive means, regardless of whether the shareholder has exercised dissenter’s rights.” OCGA § 14-2-1302 (b).

Inasmuch as the appellants’ claims of fraud and violation of TBS bylaws were not viable, the appellants cannot show they had any right to collaterally attack the merger. Compare Croxton v. MSC Holding, 227 Ga. App. 179, 181 (1) (489 SE2d 77) (1997) (individual shareholder could seek to enforce a separate employment contract). We decline to address the merits of the instant claim because it does not involve fraud or misrepresentation. Grace Brothers v. Farley Indus., 264 Ga. 817, 820, n. 11 (450 SE2d 814) (1994) (“ ‘only “actual fraud” involving traditional notions of deception, permits collateral attack on the corporate action.’ ”). Thus, the statutory appraisal remedy was their exclusive remedy, notwithstanding the fact that they did not opt to pursue it. Grace Brothers, 264 Ga. at 821 (3). To hold otherwise would encourage future dissenting shareholders to circumvent the statutory appraisal process to skirt the risk of receiving a lower price or having costs assessed. See Columbus Mills v. Kahn, 259 Ga. 80, 82 (3) (377 SE2d 153) (1989).

Decided June 10, 1998.

Chitwood & Harley, Martin D. Chitwood, Christi C. Mobley, for appellants.

Troutman Sanders, John J. Dalton, James A. Lamberth, for appellees.

4. The appellants claim that the trial court erred in granting judgment on the derivative claim for waste of TBS’ assets. We disagree. When the merger was consummated, their TBS stockholders’ shares of TBS common stock were automatically converted into shares of Time Warner. Former shareholders have no standing to maintain a shareholders’ derivative action. Grace Brothers, 264 Ga. at 818 (1).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       “In the event that a director has an interest either himself or herself or through his or her affiliates, in any matter submitted to the Board for its approval (an ‘interested director’), such interested director shall abstain from the vote on such matter....”

       Although TBS stock was listed on the American Stock Exchange, Inc., a national securities exchange, the TBS directors adopted a resolution conferring dissenter’s rights to common share stockholders under the provisions of OCGA § 14-2-1302 (c) (2).

       Appellants implicitly assert that Class C shareholders were overcompensated under the share exchange ratio, so, at bottom, appellants’ claim is about money. In fact, in their reply brief, they state that an appropriate remedy would be “cancellation of Class B shares which significantly diluted the equity interest of TBS public shareholders, as well as monetary damages for such violation.”

       In their brief, appellants contend that this claim is asserted on behalf of TBS for damages caused by the improper actions of the Company’s directors. Yet, the count is styled “Derivative Claim for Breach of Fiduciary Duty For Waste and Usurpation of Corporate Opportunity,” and is plainly asserted against TBS as the style of the case indicates.


source: Caselaw Access Project

author: Andrews, Chief Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A98A0719.
    McCORMICK et al. v. ACREE et al.
    (503 SE2d 88)
   Andrews, Chief Judge.

Brenda and Elco McCormick appeal from the trial court’s order dismissing their complaint. The sole issue on appeal is whether the trial court erred in finding the complaint was void because the McCormicks’ counsel was not a member in good standing of the State Bar of Georgia and, therefore, was not authorized to practice law at the time he signed the complaint. For the reasons which follow, we hold the complaint was not void but merely voidable and, accordingly, we reverse the judgment of the trial court.

The McCormicks filed their complaint on December 15, 1992. Their attorney, Chevene B. King, signed the complaint. OCGA § 9-11-11 (a) requires that all pleadings be signed by either the party, if not represented by an attorney, or by at least one attorney of record if the party is represented by an attorney. State Bar of Georgia Rule 1-203 provides that, with some exceptions, “[n]o person shall practice law in this State unless such person is an active member of the State Bar of Georgia in good standing; . . State Bar Rule 1-204 states: “No person shall be deemed a member in good standing: (a) while delinquent after September 1 of any year for nonpayment of the license fee prescribed. . . .” It follows from the rules above that an attorney who has not paid his bar dues is not a member in good standing of the State Bar and, therefore, is not authorized to practice law in this state. It is undisputed that King had not paid his bar dues at the time he signed the complaint and therefore was not a member in good standing of the State Bar of Georgia.

The McCormicks amended their complaint on October 13, 1993, adding the name of an attorney who was a member in good standing at the time the complaint was filed. No pretrial order had been filed at the time of the amendment. On August 12, 1996, defendants filed a motion to dismiss, alleging that plaintiffs’ complaint was void because their attorney was not a member in good standing when the complaint was filed. The trial court granted the motion, finding that because the complaint was not filed in accordance with OCGA § 9-11-11 (a), it was void and a nullity and could not be amended. This appeal followed.

On appeal, the McCormicks argue that Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556 (332 SE2d 46) (1985) controls the issue in this case. Aeree and Memorial Hospital of Adel, the two defendants remaining in the case, argue that Bandy is no longer the law because it was not followed in Howell v. Styles, 221 Ga. App. 781 (472 SE2d 548) (1996); Magnan v. Miami Aircraft Support, 217 Ga. App. 855 (459 SE2d 592) (1995); and LeaseFirst v. Paulk, 200 Ga. App. 497 (408 SE2d 707) (1991). We disagree. Bandy is directly on point and has not been overruled, tacitly or otherwise.

In Bandy, as in this case, the complaint was signed by an attorney not licensed to practice law in Georgia. Plaintiffs sought to amend the complaint by adding the signature of a Georgia attorney. We held that since the plaintiffs had sought promptly to cure the defect and since no pretrial order had been filed as of the time of the amendment, the trial court erred in dismissing the complaint. Bandy, supra at 557.

In support of this holding, the court in Bandy cited MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 43 (230 SE2d 26) (1976) for the proposition that OCGA § 9-11-15 (a) is to be liberally construed in favor of allowing amendments particularly when the opposing party is not prejudiced. Bandy, supra at 557. Bandy analogized this situation to those cases where an attorney or party failed to sign or verify a pleading; in which case, the pleading is not null and void but rather has an amendable defect. Id. See also MCG Dev. Corp., supra at 43; Edwards v. Edwards, 227 Ga. 307, 308 (180 SE2d 358) (1971); Cook v. Walker, 161 Ga. 551, 554 (131 SE 288) (1926).

Appellees’ argument that Howell, Magnan, and LeaseFirst have implicitly overruled Bandy overlooks the dispositive issue in Bandy which was not present in any of the above cases; namely, whether plaintiffs should be allowed to amend their complaint under OCGA § 9-11-15 (a). Howell is similar to this case in that the attorney representing the defendant was allegedly delinquent in paying his bar dues. But, there was no request to substitute an attorney in good standing with the State Bar. Further, the issue in that case was whether the requests for admissions were a nullity because they were not signed by an attorney authorized to practice law in the state. We held the requests were a nullity if the attorney was not authorized to practice law and, therefore, the plaintiff was not required to respond to them. Howell, supra at 784. There is nothing in this opinion which can be construed as tacitly overruling the holding in Bandy.

Likewise in Magnan, the attorney who represented the defendant was a Florida attorney who was never specially admitted under Uniform Superior Court Rule 4.4. Therefore, we held that he could not file pleadings on behalf of the defendant. Magnan, supra at 859. Again, this is not the same as the issue decided in Bandy.

LeaseFirst also concerned an out-of-state attorney who did not comply with Uniform Superior Court Rule 4.4. In that instance, the attorney signed an affidavit for a garnishment form as the attorney for LeaseFirst. We held the trial court correctly dismissed the garnishment because, although the attorney could have signed as an agent and the affidavit would have been valid, he instead signed as attorney for the party and, therefore, the affidavit could not be considered. LeaseFirst, supra at 499.

These cases are all distinguishable from Bandy in that they do not involve OCGA § 9-11-15 (a) which allows a party to amend his pleadings without leave of court prior to the entry of a pretrial order. Therefore, following the holding in Bandy and mindful of case law requiring a liberal construction of OCGA § 9-11-15 (a) in favor of allowing the amendment, we hold that the complaint as filed was not void but merely voidable and the defect in the complaint was cured by the amendment. Accordingly, the trial court erred in dismissing the complaint.

Judgment reversed.

Blackburn, J., concurs. McMurray, P. J., concurs specially.

Decided June 10, 1998.

Chevene B. King, Jr., for appellants.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, Alexander & Vann, George R. Lilly II, for appellees.

McMurray, Presiding Judge,

concurring specially.

Under the controlling authority of Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556, 557 (1) (b) (332 SE2d 46), the “absence of a signature by an attorney in compliance with Rule 1-203 [and 1-204], Rules of the State Bar of Georgia and OCGA § 9-11-11 (a) was a defect which [plaintiff-appellants] timely cure[d] by amending the complaint to add the name and signature of a Georgia attorney [in full compliance -with the applicable State Bar Rules], Because no pre-trial order had been entered, the trial court erred [in] refusing to allow [plaintiffs to] amend. OCGA § 9-11-15 (a); Downs [v. Jones, 140 Ga. App. 752, 753 (1) (231 SE2d 816)].” Consequently, the majority correctly holds the trial court in the case sub judice erred in dismissing the complaint. I do not join in the characterization of that complaint as being only “voidable,” as opposed to “void.” It is enough to say the pleading defect is amendable, and was, in this instance, timely cured. I respectfully concur in the judgment only.

       Ring did not pay his 1992-1993 bar dues by September 1,1992. Accordingly, from September 1,1992, until December 30,1992, when Ring paid the dues and the late fee, he was not a member in good standing of the State Bar of Georgia.


author: Andrews, Chief Judge.

text:
    A98A0725.
    WELBORN v. THE STATE.
    (503 SE2d 85)
   Andrews, Chief Judge.

Gregory Kermit Welborn appeals from his conviction of DUI, OCGA § 40-6-391 (a) (5) (alcohol concentration of .10 grams or more), arguing that the officer lacked an articulable suspicion for their initial encounter, as well as other errors.

1. Before addressing the merits, however, it is incumbent upon us to consider our jurisdiction of the case, since timely filing of the notice of appeal is necessary to confer jurisdiction upon this Court. OCGA § 5-6-38 (a); Simmons v. State, 228 Ga. App. 470 (491 SE2d 908) (1997); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997).

Here, sentence was imposed on October 9, 1997, followed by Welborn’s filing of a Motion in Arrest of Judgment on October 14, 1997, which asserted that there was insufficient evidence of venue and Welborn’s actual control of the vehicle. While a motion in arrest of judgment will extend the time for filing a notice of appeal, OCGA § 5-6-38 (a), as pointed out in the trial court’s order of November 14, 1997, a motion in arrest of judgment is only appropriate for addressing any nonamendable defect appearing “on the face of the record,” OCGA § 17-9-61, which, in a criminal case, consists of the indictment, plea, verdict, and judgment, Hall v. State, 202 Ga. 42, 46 (2) (42 SE2d 130) (1947). The matters addressed in the motion here, however, were properly the subject for a motion for new trial, which also will extend the filing time. OCGA § 5-6-38 (a).

The trial court correctly determined, and we agree, that the substance of the motion and not its nomenclature controls how the motion is to be viewed, making the appeal timely. In the Interest of C. I. W., 229 Ga. App. 481, 483 (1) (494 SE2d 291) (1997). Nonetheless, we take this opportunity to impress upon counsel the need for precision in these matters so that consideration of the merits, and not jurisdiction, is paramount.

2. Welborn moved to suppress evidence of the stop and the Intoxilyzer results due to lack of articulable suspicion. Because the evidence regarding the stop of Welborn was undisputed, the trial court’s application of the law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Officer Martin was on patrol in Dillard around midnight on February 23, 1997. As he was traveling north on Highway 441, he met a red Jeep, driven by Welborn, heading south. There was no other traffic. The Jeep was signaling a left turn, but passed several entrances without turning. Martin acknowledged that driveways in Dillard were close together and that it was reasonable to signal in advance of a turn. Nonetheless, based on this, Martin turned around and followed. Welborn was going 30 to 35 mph in a 40 to 45 mph zone, which was appropriate, and was not weaving or committing any other traffic violations.

The highway north of Dillard had no turn lane, but gradually tapered into one near the post office, in the direction Welborn was traveling. Martin testified that, where the tapering begins, hash marks appear in the turn lane which serve as a “no man’s lane” until the full width of the turn lane is achieved. According to Martin, Welborn “appeared to be going straight [although still signaling a left turn] and then he just turned [left, although the turn was not unsafe]. He never entered the turning lane which . . . starts at the post office.” (Emphasis supplied.) The post office is approximately 100 feet from Franklin Street, onto which Welborn turned left, followed by Martin. After traveling a short distance, Welborn pulled off the highway into the parking lot of a closed business, where he stopped. According to Martin, stopping in such a lot was not in violation of any law. All of this occurred within one tenth of a mile of Martin’s first sighting Welborn. At that point, Martin testified at trial that “with a combination of all the things that had happened [he] blue lighted him and pulled in behind him.” Welborn got out of the Jeep and Martin administered field sobriety tests, which Welborn did not pass.

“There are ‘ “ ‘three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief “seizures” that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. (Cits.)’ ” (Cit.)’ Alexander v. State, 166 Ga. App. 233, 234 (2) (303 SE2d 773) (1983). ‘In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. . . . The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.’ (Citations omitted.) State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996).” McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

The encounter here is of the second type and Welborn argues that the stop was “unreasonably pretextual” because Martin lacked specific and articulable suspicion of criminal activity.

Regarding pretext, “[t]he United States Supreme Court has held, however, that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, 517 U. S. [806] (116 SC 1769, 135 LE2d 89) (1996).” Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

Under the circumstances of this case, absent an observed traffic violation, there was no particularized and objective basis for Martin’s belief that Welborn was engaging in or about to engage in criminal activity or unsafe driving. State v. Templeman, 229 Ga. App. 6 (492 SE2d 902) (1997); Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997); State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994); Streicher v. State, 213 Ga. App. 670, 672 (445 SE2d 815) (1994); see State v. Golden, 210 Ga. App. 800 (437 SE2d 492) (1993).

Decided June 10, 1998.

Stockton & Stockton, Lawrence A. Stockton, Jr., for appellant.

Michael H. Crawford, District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

Our consideration, therefore, focuses on Martin’s contention that Welborn made an improper left turn under OCGA § 40-6-120 (a) (2) which states, in pertinent part, that “[t]he driver of a vehicle intending to turn at an intersection shall do so as follows: ... (2) Left turn. The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle.” OCGA § 40-6-123 (a) provides that “[n]o person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Code Section 40-6-120 . . .” and also requires giving an appropriate and timely signal.

Martin’s testimony that Welborn made an abrupt left turn from the through lane instead of the turn lane is not disputed and, therefore, this traffic violation authorized Martin’s initial encounter with Welborn. Although Welborn argues that the traffic violation was not the primary reason Martin approached Welborn, it was part of the reason since Martin gave him a warning for that violation, and that is sufficient. Whren, supra; State v. Bowen, 231 Ga. App. 95, 96 (498 SE2d 570) (1998); State v. Diamond, 223 Ga. App. 164, 165 (477 SE2d 320) (1996); Allenbrand v. State, 217 Ga. App. 609 (458 SE2d 382) (1995).

Therefore, the trial court’s denial of Welborn’s motion was not error.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Regarding the officer’s testimony concerning the stop, a motion in limine is the appropriate vehicle for seeking exclusion of the testimony for constitutional violations. State v. Roe, 211 Ga. App. 129 (1) (438 SE2d 186) (1993).

       No transcript of the motion to suppress hearing has been filed with this Court and the trial court has certified that there is none filed there. Therefore, we consider the trial evidence only. Fritzius v. State, 225 Ga. App. 642, 645 (484 SE2d 743) (1997).

       Welborn’s argument concerning the inapplicability of this Code section is not contained in the record and, therefore, we will not consider it here for the first time.


author: Blackburn, Judge.

text:
    A98A1553.
    HOWARD v. THE STATE.
    (503 SE2d 78)
   Blackburn, Judge.

Willie James Howard appeals his conviction for theft by taking in connection with the theft of an automobile. In his sole enumeration of error, Howard contends that the evidence was insufficient to support the conviction because the State produced no witnesses who saw Howard steal the automobile.

Decided June 10, 1998.

Genelle, Jennings & Associates, Nicholas E. White, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant defendant here no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

At approximately 7:30 a.m. on July 24,1997, Quentin Mullis, the mayor of McRae, Georgia, parked his pickup truck in front of city hall as he arrived for work. Mullis left his keys in the console of the truck. At about 9:00 a.m., Mullis noticed that his truck was missing and notified the police. At about 6:00 p.m. the next day, police officers in Alma, Georgia, located the truck in the parking lot of a club. Howard was sitting in the driver’s seat of the truck, and a female companion was sitting in the passenger seat. Howard and the female were arrested and taken to the police station. As a police officer was issuing citations to Howard and his companion for congregating in the parking lot, Howard told the officer not to write a ticket for the female because she had nothing to do with him taking the truck.

Howard later gave a statement to a McRae police officer after being informed of his Miranda rights. Howard told the officer that he had been drinking before he saw the truck parked in front of city hall. He said he got in the truck and drove it first to his sister’s house, and then to Jacksonville, Douglas, and Alma. The written statement, signed by Howard, was entered into evidence at trial.

The above facts were sufficient for the jury to find Howard guilty beyond a reasonable doubt of the offense of theft by taking.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A98A0442.
    ENGLAND v. THE STATE.
    (502 SE2d 770)
   Smith, Judge.

Jenny Carol England was charged by accusation with DUI, OCGA § 40-6-391 (a) (1), no proof of insurance, OCGA § 40-6-10, violation of the open container law, OCGA § 40-6-253, and operating a motor vehicle without first obtaining a valid driver’s license after receiving notice that she was a habitual violator, OCGA § 40-5-58. She pled guilty to all counts and received a felony sentence. England subsequently moved for withdrawal of the guilty plea and filed a “motion to enter valid judgment.” From the denial of these motions she appeals.

1. England contends the trial court erroneously denied her motion to withdraw her guilty plea. On the day trial was to begin, she announced to the court that she was not ready to proceed because her witnesses were not available. The witnesses were not under subpoena. When the trial court refused to continue the case, England then pled guilty. She now claims' the plea was involuntarily made because her only other option was to go to trial without her witnesses and because the trial court indicated that the penalty against her might be more severe if she went to trial.

A trial court’s ruling on a motion to withdraw a guilty plea after sentencing is pronounced will not be disturbed absent an abuse of discretion. Moore v. State, 225 Ga. App. 860, 861 (2) (485 SE2d 552) (1997). We find no such abuse of discretion in this case.

The court informed England of the charges against her, that she could be sentenced up to six years in prison, and that the burden was on the State to prove her guilt beyond a reasonable doubt. The court further explained to England that she waived her rights to a jury trial, to cross-examine and subpoena witnesses, and to testify if she desired. England acknowledged that she wanted to give up those rights and plead guilty. She also acknowledged that she was driving under the influence of alcohol in December 1995, that she did not have proof of insurance when she was stopped, that her vehicle contained an open container of beer, and that she was operating her vehicle after having been declared a habitual violator. The trial court’s explanation to England of the rights she was waiving by pleading guilty and her acknowledgment that she committed the crimes to which she pled guilty satisfy us that her plea was voluntarily made. See Harper v. State, 225 Ga. App. 510, 511 (484 SE2d 307) (1997); Johns v. State, 223 Ga. App. 553, 554 (1) (479 SE2d 388) (1996).

The unavailability of England’s own witnesses when her case was called to trial is not imputable to the trial court or to the State. It was England’s “duty to ensure the presence of such witnesses by issuance of subpoenas. [Cits.]” Byron v. State, 229 Ga. App. 795, 799 (6) (495 SE2d 123) (1997). Furthermore, the trial court’s statement that the penalties against England might be more severe if she went to trial affords no basis for finding that her plea was involuntarily made. In determining whether her plea was voluntary, “the determinative issue is whether the plea represents a voluntary and intelligent choice among the alternative courses of action available to [England]. That [she] would not have pleaded but for the desire to avoid receiving a longer sentence is not the type of coercion which prevents a plea from being free and voluntary.” (Citations and punctuation omitted.) Moore, supra at 862 (2).

We also reject England’s argument that the trial court erroneously required her to prove that her plea was involuntary. England correctly argues that the State faces the burden of showing that a guilty plea was voluntarily made. See, e.g., Johns, supra at 553. Here, the trial court apparently did ask England to come forward with evidence in support of her motion to withdraw. But regardless of what the court asked England to do, the State fulfilled its burden. It is well settled that the State can meet its burden of showing that a guilty plea was voluntarily made by showing on the record of the guilty plea that the defendant was aware of the rights he or she waived and the possible consequences of entering a plea. King v. State, 215 Ga. App. 139, 140 (1) (449 SE2d 870) (1994). The State has pointed to the record of the guilty plea hearing; it affirmatively shows that England was aware of the nature of the charges against her as well as the possible consequences of her plea. We find no merit in this argument.

Finally, England maintains that her plea was not “knowingly” made, claiming that she did not understand “the law in relation to the facts.” The record belies this contention, as England acknowledged that she had driven a motor vehicle after being declared a habitual violator and that she understood the possibility that she could be sentenced to six years in prison.

2. (a) On appeal from the denial of her “motion to enter valid judgment,” England contends she should have been sentenced only for a misdemeanor violation of OCGA § 40-5-58. She first claims that the felony sentence entered was unlawful because OCGA § 40-5-58 prescribes both a felony offense and a misdemeanor offense, and the language of the accusation did not specify the felony.

It is true that under OCGA § 40-5-58 (c) (1), a driver may be convicted of either a felony or misdemeanor. See Hyde v. State, 205 Ga. App. 754, 755 (424 SE2d 39) (1992). Reciting OCGA § 40-5-58, the accusation here charged England with the offense of habitual violator in that, on December 28, 1995, “without first obtaining a valid drivers licenses [sic], [she] operate[d] a motor vehicle in this state after receiving notice that she was a habitual violator, that her licenses [sic] was revoked, and that it was unlawful for her to operate a motor vehicle in this state.” England claims that this language charged her only with a misdemeanor violation because it failed to allege the date of the notice of revocation or the fact that her conduct occurred within five years of revocation.

This argument addresses an alleged defect in the accusation and therefore should have been raised on special demurrer. “By charging in an indictment [or accusation] a crime capable of being committed in more than one way, a failure to charge the manner in which the crime was committed subjects the indictment to a proper special demurrer. [Cit.]” State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d 506) (1979). England did not make this challenge to the accusation by way of special demurrer prior to pleading guilty, however, and consequently has waived her right to raise the argument on appeal. See Dunbar v. State, 209 Ga. App. 97, 98 (432 SE2d 829) (1993); Ivie v. State, 151 Ga. App. 496, 497 (2) (260 SE2d 543) (1979).

(b) England also argues that she was guilty as a matter of fact only of a misdemeanor violation of OCGA § 40-5-58. She bases this claim on the language contained in the notice of revocation, dated May 11, 1991, which listed the three prior DUI convictions on which habitual violator status was based. The notice recited: ‘Your driver’s license and privilege to operate a motor vehicle in this state is revoked for a minimum of (5) five years from date license surrendered.” The notice then required England to surrender her driver’s license to the State Department of Public Safety. England argues that the language stating that her license was revoked for five years from the “date license surrendered” misled her into believing that she “surrendered” her license for purposes of beginning the five-year revocation period in September 1989 when she was stopped for DUI in 1989 and therefore that by driving six years later, in December 1995, she committed only a misdemeanor.

We find no merit in England’s argument for three reasons. First, as a matter of law, the five-year revocation period began in May 1991, when England was notified of her status as a habitual violator. See Hyde, supra, 205 Ga. App. at 754-755 (notice that license has been revoked as habitual violator essential element of violation of OCGA § 40-5-58 (c) (1)). See also OCGA § 40-5-60 (all revocations effective on day driver receives actual knowledge or legal notice, whichever occurs first). England, who does not deny that she received the notification in May 1991, drove a motor vehicle in December 1995, well within that five-year period, and therefore was subject to felony punishment.

Second, although England’s notice stated that her license was revoked for five years from the “date license surrendered,” it further required her to then surrender any driver’s license in her possession to the State Department of Public Safety, giving her the address to which it must be surrendered and suggesting that she use certified mail. The clear import of the notice was that the “surrender” date of England’s license was the date on which the license was turned over to this agency.

Connelly v. State, 181 Ga. App. 261 (351 SE2d 702) (1986), cited by England, is not controlling. In Connelly, defendant drove outside the five-year revocation period but without having obtained a valid driver’s license. We concluded that the notice sent to defendant could have led him to believe that his habitual violator status would automatically expire within five years of revocation. The facts of this case are distinguished from those in Connelly. Here, England drove within the five-year revocation period, a felony violation. In Connelly, defendant committed only a misdemeanor offense by driving outside the five-year period without first obtaining a valid license. Furthermore, the issue in this case is not whether the notice could have led England to believe that the revocation period automatically expired, but whether it misled her into believing that the revocation period began in September 1989 rather than May 1991. A reading of the notice as a whole clearly shows that the date of surrender contemplated by the notice was the date that the license was surrendered to the State Department of Public Safety.

Third, we have determined in Division 1 that England’s guilty plea was knowing and intelligent. It is clear from the transcript of the guilty plea hearing that England knew she was pleading guilty to a felony, as she acknowledged that by entering a guilty plea, she could receive up to six years in prison as a result of her violation. If she questioned whether she was entering a plea to a felony charge she should have raised the issue during the hearing. She failed to do so and cannot now complain. See Harper, supra, 225 Ga. App. at 512 (intelligent and voluntary guilty plea amounts to waiver of defenses known and unknown).

3. England also claims she was denied effective assistance of counsel when she pled guilty and was sentenced for felony habitual violation. But this claim was not preserved for our review, as England’s new counsel, who argued England’s motion to enter valid judgment, failed to raise the claim first in the trial court. See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

Decided June 11, 1998.

James C. Bonner, Jr., for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Pamela D. Brophy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The trial court stated to England’s defense counsel, “I’m sure you’ve told her that she faces a substantial risk by going to trial, because at that point there is no recommendation that the Court would be inclined to follow.”


author: McMurray, Presiding Judge.

text:
    A98A0419.
    MORRISON v. THE STATE.
    (502 SE2d 470)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of three counts of armed robbery. This appeal followed the denial of defendant’s motion for new trial. Held:

In three enumerations of error, defendant contends the trial court erred in allowing the State to introduce evidence of his two prior armed robbery convictions.

“OCGA § 24-9-20 (b) provides, in pertinent part: Tf a defendant . . . wishes to testify ... he may so testify in his own behalf. If a defendant testifies he . . . may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.’ ‘As a general rule the presumption that one is of good character is included within the general presumption of innocence, or, if not included within it, it at least accompanies the presumption of innocence. Furthermore, the only pertinent question upon the issue raised by an accusation of crime and the defendant’s plea of not guilty is whether the defendant is guilty of the crime charged; and if the evidence establishes his guilt, the character of the accused is entirely immaterial.’ Ward v. State, 14 Ga. App. 110, 111 (80 SE 295) (1913). A jury is forbidden, ‘although they have . . . evidence of the character and nature of the defendant, to convict him “upon general principles,” as that expression is sometimes used in general parlance.’ Green v. State, 172 Ga. 635, 640 (158 SE 285) (1931). Thus, no evidence of a criminal defendant’s general bad character or prior convictions shall be admissible against him at trial unless and until such defendant shall have first put his character in issue. See OCGA § 24-9-20 (b). It follows that the State cannot rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence of other witnesses or by his own testimony. See Murray v. State, 157 Ga. App. 596 (1) (278 SE2d 2) (1981).” Phillips v. State, 171 Ga. App. 827 (2) (321 SE2d 393). In short, “[w]hen the defendant has put his character in issue or denied a prior crime, the State is entitled to make ‘an unbridled attack on the defendant’s character or credibility by introducing evidence of past wrongdoing[.]’ (Phillips v. State, 171 Ga. App. 827, 831[, supra] (special concurrence)!!,] cited with approval in [Jones v. State, 257 Ga. 753, 759 (363 SE2d 529)]).” Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846).

Decided April 30, 1998

Reconsideration denied June 12, 1998

Benjamin Gratz, Jr., for appellant.

Carnell Morrison, pro se.

C. Paul Bowden, District Attorney, for appellee.

In the case sub judice, defendant testified at trial that, “as far as robbing the Western Union [a victim of one of the crimes charged] or anybody, I didn’t do that.” Explaining this direct testimony upon cross-examination, defendant testified that he “didn’t rob nobody.” This testimony is like the testimony in Brown v. State, 237 Ga. 467, 468 (228 SE2d 853), where the defendant “said he never robbed anybody and never stole anything. [In Brown, the Supreme Court of Georgia] held: ‘Once a defendant “opens the door” for character evidence, specific events may be used in testing the extent and foundation of the defendant’s knowledge and the correctness of his testimony on direct examination.’ See also Darden v. State, 236 Ga. 897 (2) (225 SE2d 904) (1976).” Shepherd v. State, 239 Ga. 28, 29-30 (2) (235 SE2d 533). It thus follows, in the case sub judice, that defendant’s testimony that he did not rob “anybody” opened the door to his character and the State’s inquiry about defendant’s prior armed robbery convictions. The trial court, therefore, did not err in allowing evidence of defendant’s prior felony convictions at trial.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Judge Harold R. Banke.

text:
    A98A0137, A98A0138.
    STEELE v. GROT; and vice versa.
    (503 SE2d 92)
   Judge Harold R. Banke.

Richard E. Steele and John B. Grot owned two businesses together. They were co-guarantors on four business credit cards, each in the name of either Steele, Grot, or other employees. Grot’s and Steele’s business connections were dissolved on May 1, 1992, via reciprocal stock redemption agreements which did not mention corporate liabilities. After Steele severed those business connections, Grot continued to do business and continued to use the credit cards, including the card in Steele’s name. Grot contends that Steele never submitted written notice to anyone that he wanted to withdraw his guarantee and that there is no written provision in the redemption agreements which relieved him of this personal liability. In April 1995 the lender Bank called on both parties to honor their guarantee and pay $21,270.70 plus interest at 18 percent per annum for the unpaid credit card charges.

Grot paid the entire amount to the bank and filed this suit for contribution from his co-guarantor, Steele. Steele showed that the card in his name was used after he left the businesses and that the credit cards were used for unauthorized personal purchases such as for electronic toys, private club dues, purchases from the House of Yamaha for private use, clothing from Parisians and Dunn’s, gifts from Unique gift shop, boating supplies, an Alaskan Cruise, hunting equipment and other obviously personal items such as shoes. The credit card statements show an overwhelming number of purchases made at establishments which would commonly be made for personal use. Grot contends the Internal Revenue Service did a complete review of these charges and determined that the credit charges were legitimate business expenses.

The trial court granted summary judgment to Grot, giving judgment against Steele for $11,044.54 and court costs but awarding no attorney fees. Steele appeals, enumerating as error that the trial court erred in granting Grot’s motion for summary judgment because there are genuine issues as to material facts and Grot was not entitled to judgment as a matter of law, and that the trial court erred in making this the final judgment for the same reasons. Held:

Case No. A98A0137

1. Where persons guaranty the same principal and one person pays more than an equal share of the sum, he may compel contributions from his co-guarantor. OCGA § 10-7-50. McCaughey v. Murphy, 225 Ga. App. 874, 878 (485 SE2d 511); Dever v. Lee, 188 Ga. App. 483, 486 (373 SE2d 224). To the creditor both parties are equally bound, and if one pays more than his equal share he may seek contribution from the other. McCaughey, supra. The right of contribution arises not when the joint obligation is made but when one obligor pays more than his share of the liability. Sherling v. Long, 122 Ga. 797, 798 (50 SE2d 935). However, “[s]ince the right to contribution is inherently equitable in nature, the rule logically follows that where co-obligors have received unequal benefits from the common obligation, the portion of the contribution that each must bear is according to the benefit that each has received.” 18 AmJur2d, Contribution, § 23. The presumption that each co-obligor benefited in an equal degree is subject to rebuttal by proof that there was an inequality of benefits received. Id. Steele is entitled to offer such proof and would be entitled to a set-off in the amount determined not to be his just share.

Grot contends he is entitled to this judgment, in part, because Steele never submitted written notice to anyone that he wanted to withdraw his guarantee. This is off the point, for Steele’s contention that he does not owe Grot half of the money Grot paid to the bank is not an attempt by Steele to “withdraw his guarantee” to the bank. It is an assertion that he does not fairly owe the amount of contribution demanded by Grot. Moreover, the fact that there is no written provision in the redemption agreements which relieves Steele of this personal liability is not controlling, for neither does any provision in the redemption agreements make Steele liable to Grot full “equal” contribution for charges made by Grot and others for their personal use.

It seems obvious that neither Grot nor Steele intended to pay for the other’s personal purchases, and neither intended to allow the other to unjustly enrich himself under a purported right of contribution. To carry these points, it is not necessary for Steele to show a “novation” between himself and Grot, nor is it relevant that Steele forgot about the business credit cards when he parted company with Grot. Even if Steele also used the credit cards for a personal purpose, the fact remains, it appears that neither of the parties intended to pay for the other’s abusive personal use. Further, the evidence which Grot says proves the IRS approved these charges as business expenses is conclusory and speculative hearsay given by Grot in his deposition, wherein he merely contends the IRS did an audit. Even if there had been competent evidence that the IRS determined all these charges to be business expenses would clearly be evidence only of a finding by a government body made for its purposes; it would not be conclusive evidence of the fact itself.

Construing the evidence in favor of the respondent Steele on Grot’s motion for summary judgment (Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442)), there are extensive issues of fact as to the nature of the credit charges made. Grot has a legal right to contribution for Steele’s equal share of that debt (McCaughey, supra), but in fact Steele’s fair share may not be half of the credit card debt. If Grot and others under his authority or knowledge spent more than half the total guaranteed amount on personal items, Steele may be entitled to a set-off of the total amounts unfairly charged to him for personal use by Grot and others.

Case No. A98A0138

2. The ruling in Division 1 renders moot Grot’s cross-appeal ascribing error to the trial court’s denial of attorney fees to him and denial of interest on the amount of contribution awarded from the time Grot paid the bank the money owed. Accordingly, the cross-appeal must be dismissed.

Decided June 12, 1998.

F. Houser Pugh, for appellant.

Richard E. Flowers, for appellee.

Judgment reversed in Case No. A98A0137; appeal dismissed in Case No. A98A0138.

Johnson, P. J., and Smith, J., concur.


text:
    A98A0770.
    BOOMERSHINE PONTIAC-GMC TRUCK, INC. v. SNAPP.
    (503 SE2d 90)
   Judge Harold R. Banke.

Pursuant to the grant of an interlocutory appeal under OCGA § 5-6-35 (a) (10), Boomershine Pontiac-GMC Truck, Inc., appeals the award of attorney fees and expenses of litigation under OCGA § 9-15-14 to Clyde K. Snapp.

This appeal arises from litigation initiated by Boomershine against Snapp, Amit Construction, and Buckhead Pipeline for breach of contract and fraud connected with the purchase of a pick-up truck by Amit Construction. Although the truck was purchased in the name of Amit Construction, apparently Snapp was to be the actual owner because he was to pay for the truck and Snapp, through Buck-head Pipeline, was the owner of the truck given as a trade-in for the new truck. In its complaint, Boomershine contended that Snapp was deceptive in his dealings with Boomershine because, contrary to Snapp’s representations, the title he provided on the trade-in truck was defective because the mileage was inaccurate, that Snapp fraudulently misrepresented the mileage on the trade-in, and that Snapp wrongfully withheld the title to the trade-in until he was paid $2,500. Additionally, Boomershine alleged that Snapp breached his contract with Boomershine because he failed to turnover the title to the trade-in vehicle as Boomershine contends he agreed to do.

Snapp answered Boomershine’s complaint and filed a counterclaim against Boomershine alleging breach of contract and fraud in this transaction and also alleged a claim under OCGA § 13-6-11. The substance of Snapp’s complaint was that Boomershine failed to pay him the $2,500 it promised and that Boomershine fraudulently reduced the value of his trade-in.

Buckhead Pipeline also answered Boomershine’s complaint, but Amit, Construction failed to answer the complaint and a default judgment was entered against it. Later, Boomershine, without leave of court, purported to dismiss Buckhead Pipeline (see Manning v. Robertson, 223 Ga. App. 139 (476 SE2d 889)), and then attempted to revive its case against Buckhead Pipeline by first filing a renewal action under OCGA § 9-2-61 and when that action was dismissed, by moving for leave of court to add Buckhead Pipeline as a party. After this motion was denied, Boomershine proceeded against Snapp and also obtained a judgment against Amit Construction for $6,610.

Ultimately, the case against Snapp was tried to a jury. After the trial court directed a verdict in favor of Snapp on all of Boomershine’s claims, the jury found for Boomershine on Snapp’s counterclaims.

Subsequently, Snapp moved for award of attorney fees under OCGA § 9-15-14. The motion asserted a claim under OCGA § 9-15-14 (a) alleging that there was a complete lack of any justiciable issue of fact or law for Boomershine’s complaint against Snapp, and that this was shown by the trial court’s grant of a directed verdict, and also asserted a claim under OCGA § 9-15-14 (b) because Boomershine unnecessarily expanded the proceedings by dismissing Buckhead Pipeline and then attempting to bring Buckhead Pipeline back in the case.

The trial court granted the motion in an order which states in its entirety: “Defendant’s motion for attorneys fees pursuant to OCGA § 9-15-14 having been presented to the court, and after consideration by the court of the defendant’s motion and supporting documents, argument of the parties, pleadings, and all other matter of record, and after consideration of all applicable and controlling law,

“It is hereby ORDERED that defendant’s motion for attorneys fees in the amount of $12,899.45 is GRANTED, so ORDERED this 11th day of September, 1997.”

After the trial court granted Snapp’s motion, Boomershine obtained permission for a discretionary appeal. Boomershine now contends that the award of attorney fees must be reversed because the trial court’s order fails to make specific findings necessary to authorize an award of attorney fees under OCGA § 9-15-14, the trial court granted the motion without holding an evidentiary hearing, the trial court erred by considering evidence that it ex parte requested from Snapp and without giving notice or an opportunity to respond to Boomershine, and the trial court erred by granting the motion because no evidence was admitted that supported the motion. Held:

1. As the order awarding attorney fees to Snapp fails to state whether the award is made under OCGA § 9-15-14 (a) or (b) and fails to set forth the findings necessary to support such an award (see Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31); MacDougald v. Phillips, 213 Ga. App. 575, 576 (1) (445 SE2d 357)), the award must be vacated and the case remanded for reconsideration of this issue. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606). Additionally, upon remand the burden will be upon Snapp to prove his costs of attorney fees and the reasonableness of those costs (id.), and Boomershine is entitled to an evidentiary hearing at which it might confront and challenge the value and the need for the legal services claimed. Cohen v. Feldman, 219 Ga. App. 90, 92 (464 SE2d 237).

Decided June 12, 1998.

Stephen C. Whicker, for appellant.

McKinney & Salo, Jan McKinney, for appellee.

2. Because of our disposition of this case in Division 1, supra, Boomershine’s other enumerations of error are moot.

Accordingly, the order of the trial court is vacated and the case remanded for further proceedings consistent with this opinion.

Judgment vacated with direction.

Johnson, P. J, and Smith, J., concur.


author: Pope, Presiding Judge.

text:
    A98A0233.
    REHEIS v. AZS CORPORATION.
    (503 SE2d 36)
   Pope, Presiding Judge.

We granted discretionary appeal in this case involving an admi n - istrative order and civil penalty issued pursuant to the Georgia Hazardous Waste Management Act, OCGA § 12-8-60 et seq. AZS Corporation held a “corrective action permit” requiring it to rehabilitate groundwater at the site of its former operations in Atlanta. In early 1996, the Environmental Protection Division of the Department of Natural Resources (“EPD”) alleged that AZS had violated the permit. After conducting an evidentiary hearing on the matter, an administrative law judge (“ALJ”) required AZS to comply with the requirements of the corrective action permit and assessed a civil penalty against the company for its wilful violation of those requirements. Challenging the ALJ’s decision, AZS sought judicial review in the superior court, which found the compliance order and penalties improper because the EPD had not first engaged in attempts to remedy the violations by “conference, conciliation, or persuasion” as required by OCGA § 12-8-71 (a). Because we find the ALJ’s decision supported by evidence, we must reverse the superior court’s judgment.

Under the Administrative Procedure Act, review of an ALJ’s decision by a superior court is done without a jury and is confined to the evidence and testimony received by the ALJ. OCGA § 50-13-19 (g). “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19 (h). The superior court’s review of evidentiary issues is limited to determining whether factual findings are supported by “any evidence.” Hall v. Ault, 240 Ga. 585, 586 (242 SE2d 101) (1978).

The superior court found as a matter of law that the EPD failed to follow the requirements of OCGA § 12-8-71 (a), which provides: “[w]henever the [EPD] has reason to believe that a violation of [the hazardous waste statutes, regulations, or EPD order] has occurred, the [EPD] shall attempt to remedy the same by conference, conciliation, and persuasion. In the case of failure of such conference, conciliation, or persuasion to correct or remedy any violation, the [EPD] may issue an order directed to such violator. . . . The order . . . may direct that necessary corrective action be taken within a reasonable time to be prescribed in the order.” The ALJ, however, found that the EPD had engaged in the required attempts at conciliation before it issued a compliance order and sought civil penalties. Under the circumstances of this case, we find that the ALJ’s determination on that issue presented a question of fact, not law, which was supported by evidence. Therefore, the superior court erred in substituting its factual judgment for that of the ALJ.

The facts of this case are detailed and complex. Evidence allowed the ALJ to find that in 1987, the EPD determined that AZS’s facility contained hazardous waste and that the law required AZS to clean the site. The agency issued AZS a “corrective action permit.” Pursuant to the permit, it appears AZS put in place devices to extract and remove contaminated groundwater. Progress on the remediation was reviewed after five years, and in 1993 the permit was amended. Among the requirements of the permit, as amended, were that AZS (1) maintain “proof of financial assurance” of its ability to complete the cleanup; and (2) continue its groundwater monitoring and remediation efforts.

In October 1994, however, the bank which issued AZS’s letter of credit — i.e., its “financial assurance” — notified the EPD that the letter of credit would soon expire. Despite the EPD’s follow-up letter to AZS reminding the company of its duty to maintain proof of financial assurance, the company failed to do so beyond June 30, 1995. It appears that, by this time, AZS was a defunct corporation dependent on its parent Japanese corporation for funding. Perhaps because of its financial situation, in early 1995 AZS began attempting to convince the EPD to allow it to end the remediation efforts by showing the EPD that the remaining contaminants posed little risk to human health.

On September 28, 1995, AZS sent the EPD a report entitled “Risk Evaluation of the Environmental Conditions at the AZS Chemical Site” (the “September report”), which outlined AZS’s argument that its site posed no health risk. At the same time, AZS’s attorney sent the EPD a letter in which he argued that the September report “demonstrates that the site has reached a level of cleanliness which will allow AZS to begin a monitoring program leading to closure of this site in the near future.” To preserve the limited assets of the corporation for such monitoring, he continued, AZS would “ceas[e] all activity at the site pending the EPD’s response to the Report.” AZS then stopped all of the required remediation efforts at the site.

Because the EPD did not understand AZS’s statement that it would “cease all activity,” the agency did not discover until a December 1995 inspection that AZS had stopped complying with the corrective action plan in late September. On January 4,1996, the EPD notified AZS of the violation, asked that AZS restart the remediation systems, and pointed out that any request to modify the permit would require public notice and participation. AZS’s attorney responded a few days later that the September report “is expected to serve as the basis for a Permit modification” and that the company would not continue the “costly and wasteful” remediation process required by the existing permit. In a phone conference a few days later with AZS’s environmental consultants in charge of the site, the EPD learned that AZS would also provide no proof of financial assurance on the project until the EPD responded to AZS’s September report. On February 6, 1996, the EPD sent AZS another notice of violation containing a proposed “consent order” which would have required AZS to restart remediation and pay a $50,000 penalty. AZS declined to comply. On February 9, 1996, the EPD responded to the September report and offered to meet to discuss AZS’s plans to submit a proper permit modification request. In a February 28, 1996 response letter, AZS’s attorney told the EPD that any efforts the agency made to enforce the existing remediation permit would “forfeit[ ] further remediation efforts” by AZS. The EPD issued the administrative compliance order on April 17, 1996, and the administrative hearing ensued. Evidence showed AZS never corrected its violations of the existing remediation permit and did not apply for a modification of the permit or variance from the permit’s requirements until July 1996.

To determine whether these facts establish the necessary “conference, conciliation, and persuasion” called for in OCGA § 12-8-71 (a) we must consider the legislative intent behind the statute. It is evident that voluntary compliance with the state’s “regulation of the generation, transportation, storage, treatment, and disposal of hazardous wastes” is the objective determined by the legislature to best accomplish the goal of a high quality environment in Georgia, which goal is set out in the declaration of public policy. To achieve voluntary compliance when a violation is detected, the director is to initiate informal dialogue and discourse in an effort to work out a resolution with the offender so the violation is remedied quickly and agreeably, without the compulsion of a formal order.

The director has a duty to “attempt to remedy” the unlawful condition. The means by which this is to be gained is “by conference, conciliation, and persuasion.” In other words, the parties are directed by law to try to work it out first. “Conference” between EPD director or designee and apparent violator means “an act of consulting together” or “the interchange of views,” and is generally but not always done in a meeting for the purpose of discussion and interchange of opinions.

“Conciliation,” the second means or method of reaching a remedy, is “the effort to establish harmony and goodwill” and cooperation. It generally means “the intervention in a dispute by an outsider who seeks to achieve agreement between the disputing parties.” Although the legislature did not require that an outside conciliator be hired to carry out this means of resolution, the director would be authorized to follow this course if in the director’s judgment it would be more successful than conciliation undertaken directly. The third means, “persuasion,” is “an act or the action of influencing the mind by arguments or reasons offered or by anything that moves the mind or passions or inclines the will to a determination.”

There being no Georgia legislative history on this practical approach to resolving conflict, and no prior judicial construction of it, we consider its use elsewhere to get a sense of how it has been understood by other courts. Missouri’s Hazardous Waste Management Law uses this same language but no Missouri decision has defined it. It is also present in Ohio’s Civil Rights Act, in Title VII of the federal Civil Rights Act of 1964, and in the Federal Election Campaign Act of 1971.

The Ohio Supreme Court has defined it as “an accomplished effort at meaningful conciliation” and as a good-faith attempt to conciliate. Another Ohio court was more definitive: “The words ‘conference, conciliation’ and ‘persuasion’ as used in the statute . . . are limited to conscientious efforts on the part of the [state agency] to resolve a dispute. . . . Directives and ultimata issued by the [state agency] do not, however, comport with such legislative intent. . . .”

A federal court required that under such language “[t]he defendants must have a fair opportunity to review and respond to the [government agency’s] findings and have notice of precisely what activities have been found to be violations of the Act. . . . Furthermore, assuming there is adequate notice of the charges, there must be a good faith, affirmative attempt to conciliate every allegation. . . . Where the [government agency] acts in good faith and reasonably responds to the position of a defendant during conciliation, it satisfies its obligation to attempt conciliation.”

So it is that, by statute, these informal means are to be tried first, before the power of government by way of enforceable order compelling certain action is imposed. It is a form of due process.

With this in mind, and considering the public policy which the legislature charges the EPD to implement, a review of the history of the dispute between the two parties before it moved to the level of the ALJ supports his finding that the director fulfilled his statutory obligation, albeit unsuccessfully, before issuing the order.

The ALJ specifically found that AZS wilfully and flagrantly violated the corrective action plan when it allowed the proof of financial assurance to lapse, shut down its remediation operations, and refused to comply with the permit until the EPD responded to its September report, even though that report did not constitute a request to modify the existing permit and even though AZS did not request modification of the permit or a variance from the permit’s requirements until July 1996. The ALJ also found that the EPD discussed the violations with AZS and gave AZS a chance to comply without penalties. This conclusion is supported by evidence. The EPD wrote AZS on January 4, 1996, asked the company voluntarily to comply, and explained that the hope of a future modification did not excuse compliance with the existing permit. The blunt response from AZS’s attorney was that AZS would do none of the required remediation until the EPD responded to its September report, even though that report did not constitute a request for variance or modification of the permit. AZS did not contend that the EPD’s remediation requirements were legally improper; rather, the company claimed that its alternate plan would be less expensive and would provide little risk of harm to humans. But as the ALJ found, “[t]he requirement to confer and attempt to conciliate or persuade a violator to return to compliance does not mean [that the EPD] is required to somehow compromise and require less than compliance.” A finder of fact could determine that AZS hoped its flagrant violations of the law would force the EPD to compromise, and that the EPD acted reasonably in attempting to convince the company to comply with reasonable remediation demands while seeking modification of the permit. The superior court incorrectly substituted its judgment for that of the ALJ on this issue, and its holding must be reversed.

Decided May 28, 1998

Reconsideration denied June 15, 1998.

Thurhert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Timothy J. Ritzka, Assistant Attorney General, for appellant.

Peyton S. Hawes, Jr., Kimberly A. Dymecki, for appellee.

Our reversal of the superior court’s holding renders it unnecessary for us to address the EPD’s remaining enumerations of error. As the superior court’s order reflects that AZS raised constitutional issues which were not addressed, we remand this matter to the superior court for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Beasley and Ruffin, JJ., concur.

       OCGA § 1-3-1 (a) (“[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly”); see Pennington & Evans v. Douglas &c. R. Co., 3 Ga. App. 665, 675 (3) (60 SE 485) (1908) (look to purpose of act).

       OCGA § 12-8-61.

       Webster’s Third New International Dictionary, p. 475.

       Id. at 471.

       Id. at 1688.

       Mo. Rev. Stat. § 260.410.2.

       Cf. Mueller v. Missouri Hazardous Waste Management Comm., 904 SW2d 552 (Mo. Ct. App. 1995).

       Ohio Rev. Code § 4112.05 (B).

       42 USCA § 2000e-5 (b).

       2 USCA § 437g.

        State ex rel. Republic Steel Corp. v. Ohio Civil Rights Comm., 339 NE2d 658, 661 (Ohio 1975).

        Sowers v. Ohio Civil Rights Comm., 252 NE2d 463, 473, 478 (Ohio Ct. Common Pleas 1969).

        Federal Election Comm. v. National Rifle Assn. &c., 553 FSupp. 1331, 1338-1339 (D.D.C. 1983).


author: Beasley, Judge.

text:
    A98A0597.
    GRAND UNION COMPANY v. MILLER.
    (503 SE2d 49)
   Beasley, Judge.

Strickland, a security guard employed by Big Star Food Market, arrested Miller and Nicely after his fellow security guard Fox informed him that he had observed them shoplifting. When criminal charges against Miller were nolle prossed, she filed a complaint against Grand Union Company d/b/a Big Star Food Markets for malicious prosecution and false imprisonment. Big Star, in moving for summary judgment, contended that a covenant by Miller not to sue Fox absolves it of liability. Miller amended her complaint to add claims that Big Star negligently hired, retained, and supervised Fox and Strickland, and that these store employees had committed an assault and battery on her. The court denied Big Star’s motion for summary judgment. We granted its application for interlocutory appeal.

Miller was riding home from work with her friend Nicely one night when, according to Miller, Nicely stopped at Big Star to buy cigarettes and wine and Miller accompanied her inside. Miller testified that while shopping, Nicely told her that she did not have enough money to pay for the merchandise and asked Miller to go out to the car and get more from Nicely’s husband. As Miller was exiting the store, she was stopped by Strickland.

While Miller and Nicely were shopping, Fox was observing customers from a concealed catwalk and communicating with Strickland over a two-way radio. Strickland testified that Fox informed him that Nicely put a package of cigarettes in her purse as she and Miller were facing each other and looking up and down the aisles. Strickland decided to stop both women because Fox said they were both involved in the shoplifting.

Strickland stopped Miller after she had cleared the checkout line but before she exited the store. Miller testified that Strickland grabbed her by the arm and told her she needed to come with him because she had something that belonged to the store. Strickland’s testimony was that he came up beside Miller and put her in an “escort position,” a method used by him for detaining all suspected shoplifters. This involved his reaching behind her and putting his hands on the back of her arms so he could control her if she were uncooperative. He escorted her to a confrontation room in the rear of the store.

There is conflicting evidence on the question of where Nicely was positioned when she was stopped. Strickland testified that after stopping Miller, he apprehended Nicely in the checkout line. Nicely likewise testified she was in the checkout line when stopped by Strickland. Fox testified she had cleared the checkout line.

After Fox descended from the catwalk, both women were taken to the confrontation room, where Strickland questioned Nicely and Fox questioned Miller. As a matter of general procedure, Strickland attempted to have the women sign statements admitting the attempted shoplifting. They refused and were turned over to law enforcement authorities.

Fox told the police he observed both women conceal the cigarettes in Nicely’s purse and attempt to leave without paying. He filed a shoplifting incident report against Miller based on bis observations, and Strickland filed one against Nicely. The reports, which Fox verified as true and correct, stated that Miller and Nicely were facing each other as Nicely put the cigarettes in her purse. Fox initiated the criminal prosecution against Miller and testified at the trial of Nicely, who was convicted of theft by shoplifting.

When Miller’s criminal defense attorney Steve Cook (who is also one of the lawyers representing her in this suit) threatened to sue Fox, Fox contacted Cook and executed an affidavit in which he stated he had not observed Miller conceal any shoplifting by Nicely or attempt to assist Nicely in shoplifting. The criminal charges against her were nolle prossed because of Fox’s affidavit. In exchange, Miller executed a covenant not to sue Fox.

Big Star did not learn of the covenant until it deposed Fox, although in a transcript of a recorded telephone conversation between Cook and Fox, Cook assured Fox he had made Big Star aware of the covenant. During the conversation, Fox informed Cook that Big Star’s attorney had attempted to contact him and that he, Fox, was apprehensive about having to be deposed or appear in court. Cook attempted to assure Fox that the case would be settled and suggested that he “remain on the sidelines for a little bit. . . .” Following this advice, Fox refused to talk to Big Star’s attorneys and even changed his telephone number to prevent them from contacting him. Because of the resultant delay in subpoenaing Fox, Big Star did not serve Miller with notice it would depose him until after discovery closed. Miller sought a protective order prohibiting the taking of his deposition, but the court denied the motion.

In deposition Fox revised the statements in his affidavit and testified that, although Miller was at the other end of the grocery aisle when Nicely shoplifted the cigarettes, he did observe Miller “watching out for somebody ... so Nicely could put the cigarettes in her purse.” Nonetheless, he maintained that he would not have prosecuted Miller, because “at the very end” he thought she may have “changed her mind and decided not to assist Nicely in shoplifting.” But he testified that he had not told Strickland he did not think Miller was guilty of shoplifting or should not be arrested.

During the recorded telephone conversation, Fox initially stated that, to the best of his recollection, he did not tell Strickland “not to lock [Miller] up.” After Cook repeatedly stressed how important it would be to Miller’s case if Fox had made such a statement, Cook again asked whether Fox had told Strickland not to arrest Miller. Fox responded, “Uh, I believe I did it’s been a while. ... I believe that’s what I told him.”

In his deposition, Fox initially denied telling Strickland he did not think Miller was guilty of shoplifting or suggesting she not be prosecuted. When shown a transcript of his telephone conversation with Cook, Fox testified he did not remember what he had told Strickland. Strickland testified that Fox never made any such statement, and neither Miller nor Nicely testified they heard anything said to that effect.

1. The court erred in denying Big Star’s motion for summary judgment on Miller’s claim for malicious prosecution, because the criminal prosecution against her terminated as a result of her covenant not to sue Fox. Although the covenant is not in the record, it is undisputed that one was executed.

“ ‘It is essential to the maintenance of an action for malicious prosecution that the plaintiff shall prove that the prosecution not only terminated, but terminated in [her] favor. (Cit.) Such termination may be caused by the voluntary abandonment of the case by the party who instituted the prosecution. But the rule seems to be well settled that where the termination of the prosecution has been brought about by compromise and agreement of the parties, an action for malicious prosecution can not be maintained. (Cit.)’ [Cit.]”

2. The trial court also erred in denying Big Star’s motion for summary judgment insofar as Miller seeks to hold it liable for false imprisonment, assault and battery on a theory of respondeat superior based on the conduct of Fox.

Where an employer’s liability for the tortious acts of its employee rests on the doctrine of respondeat superior, a covenant not to sue the employee bars the plaintiff from maintaining an action against the employer. Posey v. Med. Center-West and Harris v. Hanna Creative Enterprises combine to produce this principle.

“The holding in Posey[, supra,] abolished in Georgia the venerable rule that the release of one tortfeasor works a discharge of all other joint tortfeasors. It replaced that rule with the common-sense idea that a release discharges only the parties it was intended to release. . . . [Cit.]” Thornton v. Ware County Hosp. Auth. Posey also abolished the distinction between a release and covenant not to sue in the area of torts. “In Harris[, supra], this court held that an employer whose liability for the negligent acts of its employee rests only on the doctrine of respondeat superior is not a joint tortfeasor to whom the rule set forth in Posey applies. A claim against such an employer is, therefore, barred by a previous release of the employee. [Cit.]” Thornton recognized that under the law as it existed prior to Posey, the execution of a covenant not to sue the employee did not bar the plaintiff from maintaining an action against the employer. Conversely, under current law, the execution of a covenant not to sue the employee does bar plaintiff from suing the employer.

3. Big Star was likewise entitled to summary judgment on Miller’s claim for false imprisonment based on Strickland’s conduct.

Under OCGA § 51-7-60, the owner or operator of a mercantile establishment and its agents and employees are given qualified immunity from claims of false imprisonment arising from the detention or arrest of suspected shoplifters where both conditions (1) and (2) of the statute are met. Under the first, it must be shown that the owner, operator, agent, or employee reasonably believed that the person detained was engaged in shoplifting. Under the second, the manner of detention or arrest and the length of time during which the plaintiff was detained must be reasonable.

Arguments advanced by the parties raise the following questions: (a) Did the facts related by Fox lead Strickland reasonably to believe Miller was engaged in shoplifting? (b) Was Strickland’s manner of detaining Miller unreasonable because his conduct violated guidelines for the apprehension and prosecution of suspected shoplifters contained in a Big Star employees’ manual?

(a) The facts undisputably related by Fox to Strickland from the store’s catwalk provided a reasonable basis for Strickland’s detention of Miller. The statement made by Fox to Cook during the recorded telephone conversation, to the effect that Fox later told Strickland Miller should not be turned over to police, does provide some evidence in support of her claim of malicious prosecution. But that claim is barred for reasons given in Division 1, supra.

(b) Miller argues that Strickland’s manner of detaining her was unreasonable because he violated guidelines in the employees’ manual prohibiting him from touching her, attempting to take her confession, or accusing her of stealing.

Where, as here, the employee is authorized to detain suspected shoplifters, the manual does not prohibit such employee from touching the suspect or attempting to take a confession. Although the manual does prohibit a security guard from using the words “steal or stole,” there is no evidence Fox or Strickland uttered these words. The evidence does not support Miller’s claim that Strickland’s manner of detaining her was in violation of Big Star’s written guidelines and was unreasonable. Moreover, failure to adhere to such guidelines does not necessarily demonstrate unreasonableness, just as compliance with such guidelines does not automatically demonstrate reasonableness.

4. Similarly, Big Star should have been granted summary judgment on Miller’s claims of assault and battery for Strickland’s conduct.

An assault occurs “ ‘[wjhere all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.’ ” No evidence is referenced to show that Miller was placed in such fear. Although any unlawful touching is a physical injury to the person and actionable as a battery, Strickland’s act of detaining Miller was legally authorized and consequently did not constitute a battery.

5. The court erred in denying Big Star’s motion for summary judgment as to Miller’s claim against it for negligent supervision of Strickland and Fox. The claim is based on assertions that in detaining and deciding to prosecute her, Strickland and Fox violated written guidelines of Big Star of which they were unaware. Issues relating to some of the alleged violations have been resolved in Division 2, supra. This division resolves the remaining issues as to this cause of action.

Big Star’s supervisory security personnel gave Strickland and Fox on-the-job training. Although the two men were never given a copy of the policy manual itself, they were given other pertinent written materials and were verbally provided with guidelines for detaining and prosecuting suspected shoplifters.

The Big Star manual specifies that a suspected shoplifter should not be stopped “prior to clearing checkout” and should be prosecuted only when he or she has “concealed the merchandise prior to going to the checkout line and the individual cleared the checkout with the merchandise and without paying for it.” These guidelines extend more protection to shoplifting suspects than is legally required, as there are circumstances in which an individual who has taken possession of and concealed store merchandise is chargeable with shoplifting even though he or she has not passed through the checkout line or exited the store without paying. In Racquemore v. State, for example, defendant was seen stuffing two packages of meat into the waist of his trousers and pulling his shirt down over them. Although he returned this merchandise to the display case after store personnel who were watching his actions began following him, the evidence was sufficient to support his conviction of theft by shoplifting.

Strickland was verbally instructed that under circumstances such as those present in Racquemore, he could detain a suspected shoplifter before the suspect cleared the checkout line. Big Star is not chargeable with negligence for this instruction. It is uncontested that Strickland stopped Nicely because he was informed by Fox that she had surreptitiously placed the cigarettes in her purse. Given this representation by Fox, Strickland’s decision to stop her before she cleared the checkout line was not unreasonable.

Although Fox and Strickland were required to fill out incident reports after detaining suspected shoplifters, they were not told to put anything in the reports that was not true. Both testified they were instructed not to detain anyone unless they were absolutely sure the suspect had shoplifted store merchandise. Consistent with these instructions, they were told to prosecute any suspect who had been detained unless the suspect signed a form agreeing to pay a civil recovery. Any decision by Fox or Strickland to arrest Miller for shoplifting, even though they were not certain she had aided and abetted Nicely, would have been contrary to clear directives given during their training and thus would not be chargeable to negligent supervision by Big Star.

6. It was error to deny Big Star’s motion for summary judgment on Miller’s claim for negligent hiring and retention of Strickland and Fox.

An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. There is no evidence Big Star knew or should have known of any propensity by Strickland or Fox to arrest suspected shoplifters without reasonable suspicion.

7. Big Star has also raised issues concerning whether attorney Cook violated Standards 46, 47, 48, 56, and 57 of Rule 4-102 of the Rules & Regulations of the State Bar of Georgia. Since Big Star did not move to exclude evidence or dismiss claims because of these alleged violations, the issues have not been adjudicated at the trial level and therefore have not been preserved for appellate review.

Decided June 4, 1998

Reconsideration denied June 15, 1998

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., for appellant.

Steven L. Beard, Steven A. Cook, for appellee.

Judgment reversed.

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

        Laster v. Star Rental, 181 Ga. App. 609 (1) (353 SE2d 37) (1987).

       257 Ga. 55 (354 SE2d 417) (1987).

       208 Ga. App. 549 (430 SE2d 846) (1993).

       215 Ga. App. 276, 277 (1) (450 SE2d 260) (1994).

        Crim v. Jones, 204 Ga. App. 289, 290, n. 1 (419 SE2d 130) (1992).

        Thornton, supra.

        Gerry v. K-Mart, 222 Ga. App. 364, 365 (2) (474 SE2d 260) (1996).

        Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878 (2) (429 SE2d 264) (1993).

        Brown v. Super Discount Markets, 223 Ga. App. 174 (477 SE2d 839) (1996).

        Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 179 (2) (325 SE2d 844) (1984); Brown v. Winn-Dixie Atlanta, 194 Ga. App. 130, 132 (389 SE2d 530) (1989).

        Kemp v. Rouse-Atlanta, Inc., supra, 207 Ga. App. at 880 (3).

        Haile v. Pittman, 194 Ga. App. 105, 106 (3) (389 SE2d 564) (1989).

       204 Ga. App. 88 (1) (418 SE2d 448) (1992).

       The reasonableness of a detention is usually but not always a jury question. See Brown v. Super Discount Markets, supra, and cits.

        Fortune v. Principal Financial Group, 219 Ga. App. 367, 371 (1) (465 SE2d 698) (1995).