text:
    A90A0449, A90A0450.
    FREEMAN v. THE STATE (two cases).
    (392 SE2d 330)
   Birdsong, Judge.

Appellant, Mute Freeman a/k/a Louis E. De Broux, Jr., appeals his misdemeanor conviction in Case No. A90A0449 for simple assault in violation of OCGA § 16-5-20, and his misdemeanor convictions in Case No. A90A0450 for attempting to elude in violation of OCGA § 40-6-395 and obstruction of law enforcement officer in violation of OCGA § 16-10-24.

In both cases appellant contested, inter alia, the jurisdiction of the court and asserted a plea of mute. The trial court entered pleas of not guilty in appellant’s behalf. Held:

I. Case Nos. A90A0449 & A90A0450

1. Review of the transcripts in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged in both Case No. A90A0449 and Case No. A90A0450 of which appellant was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. In both cases appellant pled mute, and now asserts that in both cases the state court lacked both personal and subject matter jurisdiction. This assertion is without merit.

The offenses averred in both accusations were misdemeanor offenses. The accusations in both cases were sufficient within the meaning of OCGA § 17-7-71. See Division 8, below. Regarding subject matter jurisdiction, state courts have jurisdiction to try criminal cases involving misdemeanors. Ga. Const, of 1983, Art. VI, Sec. III, Par. I; OCGA §§ 15-7-4 (1); 33-34-12.2. Regarding personal jurisdiction, OCGA § 17-2-1 (b) pertinently provides that “a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, by his own conduct... if: (1) [t]he crime is committed either wholly or partly within the state.” In the case sub judice, there is undisputed testimony that the misdemeanor crimes of attempting to elude and obstruction of a law enforcement officer of which appellant was convicted occurred in DeKalb County, Georgia. Further, appellant was identified in both cases as the perpetrator of the offenses, and incidentally, this evidence was not controverted by other evidence of record. Accordingly, the record affirmatively establishes that the State Court of DeKalb County exercised both personal and subject matter jurisdiction over appellant. Compare Robinson v. State, 182 Ga. App. 423 (2) (356 SE2d 55).

3. Any errors asserted in the notice of appeal of these cases which were supported neither by argument nor citation of authority in appellant’s brief are deemed to have been abandoned. Court of Appeals Rule 15 (c); Adams v. State, 187 Ga. App. 340 (3) (370 SE2d 197).

4. Appellant’s first, second, and third enumerations of error in each of these cases are without merit.

The trial court in both cases instructed the jury as follows: “Members of the jury, you are the judges of both the law and the facts of this case.” This charge embodies a correct principle of law and was tailored adequately to the operative circumstances of this case. See generally Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a).

The trial court’s refusal to allow the jury to be given and to use in their deliberations copies of the Constitutions of the United States and of Georgia, was not error. Appellant’s request that the jury be provided with such legal authority was in substance a request that the jury be provided written instructions in the form of copies of both of these documents. Clearly both documents contain certain pronouncements of law totally irrelevant to the disposition of Case Nos. A90A0449 and A90A0450. A trial judge in a criminal case is required to deliver a charge tailored to the indictment and adjusted to the evidence. State v. Braddy, 254 Ga. 366, 368 (330 SE2d 338). Providing the jury with copies of both these entire documents in question would have violated this requirement. Moreover, providing the jury with these documents in toto would create a fair risk of confusion and might reasonably draw the jury away from the true issues in dispute. Under these circumstances it would have constituted harmful error for the trial court to grant appellant’s request. Compare Crosby v. State, 150 Ga. App. 555 (2) (258 SE2d 264). Accordingly, we find the trial court did not commit reversible error in either Case No. A90A0449 or A90A0450 by denying appellant’s requests.

5. The trial court did not abuse its discretion in refusing to answer appellant’s demand for a bill of particulars. Ward v. State, 188 Ga. App. 372 (2) (373 SE2d 65). A bill of particulars is not a recognized pleading in this state. Id. The accusations in both cases informed appellant of the charges against him in sufficient detail. There was no error of constitutional magnitude or otherwise.

6. There was no error of constitutional magnitude or otherwise in denying appellant’s request to be represented by a non-lawyer counsel. Cruickshank v. State, 258 Ga. 544 (372 SE2d 223), citing Lebrun v. State, 255 Ga. 406 (2) (339 SE2d 227); Robinson v. State, 182 Ga. App. 423 (5) (356 SE2d 55) and cases therein cited; United States v. Wright, 568 F2d 142 (1) (3) (USCA 9th Cir.); accord United States v. Hoffman, 733 F2d 596 (3) (USCA 9th Cir.).

7. Appellant asserts that he has been prosecuted maliciously, necessitating case reversal. We disagree. “From the beginning of our criminal justice system prosecutors have exercised the power of prosecutorial discretion in deciding which defendants to prosecute.” State v. Hanson, 249 Ga. 739, 742-743 (1) (295 SE2d 297). We find no breach of discretion in the prosecution of either Case No. A90A0449 or A90A0450, nor do we find selective prosecution occurred in either case, within the meaning of Sabel v. State, 250 Ga. 640 (4) (300 SE2d 663).

II. Case No. A90A0449

8. Appellant asserts that it was error not to grant his oral motion to dismiss on the grounds the statute of limitation had expired.

The averred offense occurred on May 13, 1986. On August 27, 1986, the State filed an accusation in the State Court of DeKalb County charging appellant with simple assault, on May 13, 1986, by placing B. J. Krise in reasonable apprehension of being hit in the face in violation of OCGA § 16-5-23. On August 28, 1989, an amended accusation was filed charging appellant with simple assault, on May 13, 1986, by placing B. J. Krise in reasonable apprehension of being hit in the face in violation of OCGA § 16-5-20.

OCGA § 17-3-1 (d) provides that prosecution for misdemeanors must be commenced within two years after the commission of the crime. However, the period of limitation runs from the commission of the offense to the date of filing of the indictment or accusation (Cain v. State, 144 Ga. App. 249 (1) (240 SE2d 750)) and not from the onset of trial. Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584).

As the date of the filing of the original accusation was within two years of the date of the offense of simple assault, we find that the statute of limitation had not run so as to bar prosecution. Moreover, the original accusation stated the offense of simple assault so plainly that the nature of the offense could be easily understood by both the appellant and the jury. Thus, it shall be deemed “sufficiently technical and correct.” OCGA § 17-7-71 (c). Moreover, prior to trial, the prosecuting attorney may amend an accusation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation. OCGA § 17-7-71 (f). The original accusation was valid within the meaning of OCGA § 17-7-71 (c), and the subsequent authorized amendment of the accusation, after the two-year period, did not serve to negate the prior valid commencement of prosecution for the misdemeanor offense which occurred before the expiration of the operative statute of limitations.

9. Appellant asserts that the trial court erred by letting stand the State’s remarks in closing argument that appellant had intended to harm the alleged victim of the averred simple assault.

The record reflects that appellant did not timely object at trial to the State’s closing argument. Failure to do so constitutes waiver. Davis v. Jones, 189 Ga. App. 569 (3) (377 SE2d 163). Moreover, during closing argument, the parties may draw remote deductions and inferences from the evidence, and there is no basis for objection even if the deductions and inferences are illogical or unreasonable. Callahan v. State, 179 Ga. App. 556 (347 SE2d 269).

10. Appellant asserts that the trial court erred in declining to issue a directed verdict when the State’s only witness, the averred victim, testified under oath she had perpetrated an actionable offense, to wit: theft by conversion against appellant.

Review of the record reveals that the State’s witness did not make an admission in judicio to any offense of theft. The record is void of any affirmative evidence that the witness obtained possession of appellant’s check without his permission or that she declined to return it promptly to him after he made an express demand for its return. In any event, “a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). The posture of the evidence in this case does not demand a verdict of acquittal within the meaning of Taylor.

11. Appellant asserts that the trial court erred in requiring as part of the sentence that he undergo psychiatric examination and that he be barred from any communication with the averred victim in violation of Georgia Constitution of 1983, Art. I, Sec. I, Par. XVII. We disagree.

The record in this case is replete with evidence supporting the reasonableness of the sentencing conditions imposed by the trial court. “The probation and suspension statutes in Georgia vest broad discretion in trial judges. . . . [A]ny reasonable condition imposed for probation or suspension of a sentence by a trial court should ... be approved.” West v. State, 160 Ga. App. 855, 856 (4) (287 SE2d 694). “ ‘(T)his court is not empowered to modify a sentence which is within the statutory limits and lawfully imposed.’ ” Morrison v. State, 181 Ga. App. 440 (352 SE2d 622). Accordingly, appellant’s assignment of error is without merit.

Moreover, the trial record reflects that in response to the trial court’s order that appellant not contact the averred victim, appellant replied, “I fully understand that, and I don’t intend to.” And, that in response to the prosecutor’s recommendation that appellant undergo psychiatric evaluation and treatment, if necessary, appellant replied, “I wholeheartedly agree with that,” and thereafter informed the trial judge, “I totally completely agree with the representative of the State with regard to that matter.” Thus, not only did appellant fail to make timely objection as to the matters of which he now complains, he acquiesced in the trial court’s ruling and thereby aided in causing the resulting conditions to be imposed. Therefore, appellant has preserved no issue as to these matters for our review. Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536); Rush v. Southern Property Mgmt., 121 Ga. App. 360, 361 (173 SE2d 744).

III. Case No. A90A0450

12. Appellant asserts that the trial court erred in failing to grant his oral motion to dismiss on the grounds that the statute of limitation, OCGA § 17-3-1, had expired, thereby barring his prosecution.

The averred offenses of attempting to elude and obstruction of a law enforcement officer occurred on May 25, 1986. On July 23, 1986, the State filed an accusation in the State Court of DeKalb County charging that appellant, on May 25, 1986, committed the offense of attempting to elude by wilfully attempting to elude a pursuing police officer after being given both visual and audible signals to stop in violation of OCGA § 40-6-395; and, that appellant, on May 25, 1986, committed the offense of obstruction of a law enforcement officer by knowingly and wilfully obstructing Trooper J. M. Gordon, a law enforcement officer, in the lawful discharge of his official duties by physically resisting arrest and fleeing from Trooper Gordon in violation of OCGA § 16-10-24.

Decided March 15, 1990

Mute Freeman, pro se.

Ralph T. Bowden, Jr., Solicitor, Andrew Rogers, Assistant Solicitor, for appellee.

This accusation was valid and “sufficiently technical and correct” within the meaning of OCGA § 17-7-71 (c). Accordingly, we are satisfied, for the reasons enumerated in Division 8, above, that the statute of limitation had not run, and that this enumeration of error is without merit.

Appellant’s remaining enumerations of error and assertions, contained in both Case Nos. A90A0449 and A90A0450, are without merit.

Judgments affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A1387.
    MOORE v. BUTLER.
    (392 SE2d 285)
   Deen, Presiding Judge.

The facts of this appeal from an adoption proceeding are fully-delineated in this court’s previous opinion, Moore v. Butler, 192 Ga. App. 882 (386 SE2d 678) (1989), and will not be repeated here. In that opinion, this court affirmed the trial court’s determination that the incarcerated father did not provide for the care and support of the child for over a year prior to the filing of the adoption petition and that it was in the best interests of the child to be adopted, pursuant to OCGA § 19-8-6 (b). By order dated January 19, 1990, however, the Supreme Court remanded this case for reconsideration in light of its recent decision in Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989).

In Thorne v. Padgett, the Supreme Court held that OCGA § 19-8-6 (b) “permits the trial court to sever the parent’s right in his child even in the face of overwhelming evidence that the parent had justifiable cause for not supporting the child. In this regard OCGA § 19-8-6 (b) circumvents the constitutional requirement that a natural parent’s rights in his child may not be terminated absent a showing, by clear and convincing evidence, of his unfitness. . . . Because OCGA § 19-8-6 (b) forecloses an inquiry into the reasons for a parent’s failure to provide care and support, thus depriving that parent of a meaningful opportunity to be heard, it denies due process.”

In view of the Supreme Court’s invalidation of OCGA § 19-8-6 (b), the trial court’s grant of the adoption petition in the instant case pursuant to that statutory provision must now be reversed.

Decided March 8, 1990.

Gary M. Newberry, for appellant.

Leonard A. Baldwin, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Birdsong, Judge.

text:
    A89A1813.
    SOUTHERN STORE & RESTAURANT EQUIPMENT COMPANY et al. v. MADDOX.
    (392 SE2d 268)
   Birdsong, Judge.

Southern Store & Restaurant Equipment Company and Bobby Chesser appeal from a judgment against them, based on a jury verdict, in favor of Wylene Maddox on her fraud claim arising from the purchase of a restaurant. Appellants contend the trial court erred by denying their motions for a directed verdict at the close of Maddox’s case and at the close of the evidence and by denying their motion for judgment n.o.v. or in the alternative for a new trial. They contend that Maddox did not prove actionable fraud.

At trial Maddox testified that in the course of buying the restaurant, representations were made to her by Chesser and his agents about income from the restaurant, about the condition of equipment in the restaurant, including the air conditioning, and about water which had collected in the kitchen. In general, Maddox testified they represented the equipment’s condition was excellent because the owner of the restaurant owned a restaurant equipment store and kept everything in good working order. They also said the restaurant took in around $500 a day. In particular, Maddox testified the seller’s agent told her the restaurant was air conditioned, showed her the switch, and turned it on. Since it was a cool day, however, she could not tell how well it worked. She also testified she asked about water in the kitchen and was told that it came from a recent severe rain.

After Maddox purchased the restaurant, however, she found none of these things to be true. For example, when she turned on the air conditioning and it would not work, she found there was no compressor for it. Also, she later learned that the water in the kitchen came not from rain, but from water leaking from the freezer. Further, she testified generally that very little, if any, of the equipment worked properly, inter alia, the stove would not stay lighted, the sandwich table shocked anyone who touched it. Nevertheless, Maddox opened the restaurant and for the first few days made a reasonable income, but when the customers wanted air conditioning she could not supply, they stayed away. Consequently, Maddox, within approximately ten days of opening, sent Chesser a letter giving notice that she considered the contract broken.

Appellants contend that Maddox failed to prove actionable fraud because, even if her contentions about the equipment were true, Maddox could not rely blindly on their representations but must have used diligence to verify the status of the equipment, that any misrepresentations they might have made were mere “puffing,” and finally, Maddox must have tendered the restaurant to them. Held:

1. In determining whether the trial court erred by denying appellants’ motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329).

“A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b).” Id. Viewing the evidence in that fashion, we cánnot conclude that it demanded a verdict for appellants.

The evidence shows the sellers made at least two significant misrepresentations, to wit, that the air conditioner worked and the water was from the rain. Further, the evidence also shows the lack of air conditioning was the primary reason for Maddox’ closing. “ ‘ “Questions of fraud, the truth and materiality of representations made by a (seller), and whether the (buyer) could have protected [her]self by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” ’ [Cits.]” del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333). With this evidence it was a jury question whether additional diligence was necessary since we cannot conclude that the evidence is plain and indisputable that Maddox did not exercise proper diligence on at least these issues. Further, “ ‘ “[cjoncealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded. . . .” ’ ” Denny v. D. J. D., Inc., 186 Ga. App. 727, 728 (368 SE2d 329). Moreover, considering the number of defects in the equipment Maddox testified about, a jury question would also be present on whether she was required to have each piece of equipment in the restaurant checked. “Whether the operative facts and circumstances establish actionable fraud ‘is a matter peculiarly within the province of a jury to determine.’ [Cits.]” Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 513 (376 SE2d 393).

Appellants’ argument that any misrepresentations constituted mere “puffing” is not supported by the evidence. The transcript shows that even at trial their witnesses made no such contentions, and to the contrary, maintained that the equipment was in excellent condition, was being used in other restaurants, and that no misrepresentations were made.

Decided March 5, 1990

Rehearing denied March 16, 1990

Elkins & Gemmette, James A. Elkins, Jr., for appellants.

Charles C. Carter, for appellee.

Additionally, although appellants’ brief argues it was error to deny their motions because the evidence failed to show Maddox tendered the restaurant to appellants, review of the transcript and record shows that neither the motions for directed verdict, nor the motion for judgment n.o.v. or for new trial, included that contention as a basis for the motion. Accordingly, it could not have been error to deny the motions on that basis, and the issue cannot be raised for the first time on appeal. Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

2. Appellants also enumerate as error the denial of their motion for a new trial. A denial of a motion for a new trial on evidentiary grounds will be reversed only if there is no evidence to support the verdict. Ricketson v. Fox, 247 Ga. 162, 163 (1) (274 SE2d 556); Mathis v. Dept. of Transp., 185 Ga. App. 658 (365 SE2d 504). Whether the verdict is contrary to the weight of the evidence or strongly against its weight is a question vested in the trial judge’s discretion, and this court has no power to grant a new trial on those grounds. The only question for this court is whether there is any evidence sufficient to authorize the verdict. Green v. Dillard, 176 Ga. App. 574, 575 (337 SE2d 55), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 857 (360 SE2d 415). Since there is evidence authorizing the jury’s verdict (McNeil v. Cowart, 186 Ga. App. 411, 412 (367 SE2d 291)), the trial court did not err by denying the motion.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A0212.
    DAILY v. THE STATE.
    (392 SE2d 554)
   Sognier, Judge.

Wyman R. Daily was convicted on two counts of violating the Georgia Controlled Substances Act, and he appeals.

1. Appellant contends the evidence was insufficient to support his conviction for possession of cocaine with intent to distribute. At trial, Officer S. H. Ledford of the Gwinnett County Police Department testified that he went undercover with an informant who, together with a juvenile, arranged for Ledford to purchase contraband at a prearranged location. Ledford observed a green Oldsmobile arrive at the scene and identified appellant as the person in the passenger seat of the vehicle. Ledford stated that at first the informant dealt with appellant because Ledford heard appellant state that “he [appellant] did not know me, that he would not sell the cocaine to me.” Under Ledford’s direction the informant began to bargain with appellant over the price, which eventually entailed involving Ledford in the conversation. Ledford stated after the negotiations concluded, he gave appellant certain funds and received in exchange a small pack of white powder, later identified as cocaine. Backup officers were then called in and appellant and the driver of the vehicle, his co-defendant Calvin Snow, were arrested. A plastic bag containing fourteen smaller bags of white powder (later identified as cocaine), similar to the one Ledford had purchased from appellant, was subsequently discovered under the driver’s seat.

Appellant argues that the evidence adduced to support his conviction for possession of cocaine with intent to distribute merely placed him in the vicinity of the contraband (the fourteen bags of cocaine under the driver’s seat) and thus was not sufficient to authorize his conviction on that charge, citing Shirley v. State, 166 Ga. App. 456 (304 SE2d 468) (1983). In Shirley, appellant Tharpe was a passenger in a car with three others who had ridden to a lake together to go fishing. The contraband was found in a gym bag belonging to one co-defendant located in front of a seat occupied by another co-defendant. We find Shirley distinguishable from the case sub judice in that here appellant was a passenger in a vehicle which was driven to a prearranged location for a rendezvous with a potential purchaser of contraband; the details of the sale were negotiated by appellant, who also received the payment and delivered the contraband to the undercover officer; and the sale involved a small plastic bag of cocaine similar to the other small plastic bags of cocaine found under the driver’s seat. We find that the evidence adduced was sufficient for a rational trier of fact to have found beyond a reasonable doubt, under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), that appellant was in joint constructive possession of the fourteen bags of cocaine and possessed the contraband with the intent to distribute it.

2. Appellant contends the trial court erroneously denied his motion for a mistrial made after his character was improperly placed into evidence. The transcript reveals that counsel for appellant’s co-defendant, on cross-examination of Officer Taylor inquired, “[t]his wasn’t the first time that you had had an encounter with a sales transaction with [appellant] is it?” Appellant’s counsel thereupon moved for a mistrial. Taylor did not respond to the question in the presence of the jury, and appellant’s counsel declined the trial court’s offer to give curative instructions to the jury.

Decided March 7, 1990

Rehearing denied March 16, 1990

Michael S. Greene, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Debra K. Turner, Assistant District Attorneys, for appellee.

We need not here determine what effect, if any, the fact that the objectionable question was posed by co-defendant’s counsel rather than by an attorney for the State has on appellant’s motion, because “[w]hen counsel for [appellant] declined to accept the court’s offer to instruct the jury in regard [to the disputed matter] he waived any rights under his motion for mistrial since under [OCGA § 17-8-75] we do not know what the instructions would have been to the jury in regards to rebuke of counsel and to remove any improper impression from the jurors’ minds. We find no abuse of discretion here. [Cits.]” Sheets v. State, 143 Ga. App. 510, 511 (1) (239 SE2d 196) (1977).

3. Appellant contends the trial court erred by failing to charge the jury that the conviction of one defendant did not necessitate the conviction of the other defendant. The record reveals that appellant did not request such a charge, and when asked, by the trial court whether there were any objections, appellant’s counsel neither objected to the charge as given nor reserved the right to later object. Thus, appellant has waived the right to raise the issue on appeal. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A0656.
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. BURNETTI.
    (393 SE2d 526)
   Pope, Judge.

This court having entered a judgment in the above-styled case at 192 Ga. App. 593 (385 SE2d 446) (1989) affirming the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 259 Ga. 794 (387 SE2d 570) (1990), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Beasley and Cooper, JJ., concur.

Decided March 16, 1990.

Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III, Frank O. Brown, Jr., for appellant.

Carter & Butt, Eugene D. Butt, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A1703.
    KNOTHE v. ROSE.
    (392 SE2d 570)
   McMurray, Presiding Judge.

Plaintiff Knothe, a German citizen, and defendant Rose, a British national, were married in the Federal Republic of Germany (West Germany) on June 1, 1973, and, except for a period of time in 1976, the family lived in West Germany until 1981, when a divorce action was commenced in a West German court. The judgment in the divorce proceeding awarded custody of the couple’s two daughters to plaintiff, and defendant was required to pay child support of 555 Deutsche Marks per month. In 1984 the defendant was transferred to the United States by his employer.

On November 12, 1986, plaintiff brought an action in the Amtsgericht Dortmund, a district court in West Germany, seeking modification of child support. Service was attempted upon defendant by mail in February of 1987, but defendant refused to acknowledge service. The documents were returned to the West German Consulate General’s office in Atlanta along with a request that any future service include an English translation of the documents.

Subsequently, the documents were served upon defendant by a United States Marshal on July 17, 1987. These documents had been translated into English. Defendant responded by writing the West German court that he could not appear in West Germany for that action because he was unemployed. The West German court acquired information as to defendant’s salary with his former employer and based on that amount, proceeded to enter a judgment on March 17, 1988, increasing defendant’s child support obligation to 905 Deutsche Marks per month, retroactive to November of 1986.

On May 2, 1988, plaintiff filed a complaint in the Superior Court of Douglas County seeking to domesticate the West German judgment. Plaintiff moved for summary judgment in toto or for partial summary judgment. The superior court denied plaintiff’s motion concluding that the West German court lacked personal jurisdiction over defendant and that the West German decree cannot be enforced because the child support modification order is retroactive. We granted plaintiff’s application for interlocutory appeal and now she appeals the failure of the superior court to enter an order under OCGA § 9-11-56 (d) simplifying and narrowing the issues for trial, particularly insofar as the superior court failed to find that the West German child support decree should be enforced. Held:

While the full faith and credit clause does not apply to judgments and decrees of foreign countries, we may nonetheless recognize and enforce foreign judgments by application of the doctrine of “comity.” “In Ritchie v. McMullen, [159 U. S. 235 (16 SC 171, 40 LE 133)] the Supreme Court of the United States held that a judgment rendered by a court having jurisdiction of the cause and of the parties, upon regular proceedings and due notice or appearance, and not procured by fraud, in a foreign country, by the law of which,. . ., a judgment of one of our own courts, under like circumstances, is held conclusive of the merits, is conclusive as between the parties in an action brought upon it in this country, as to all matters pleaded and which might have been tried in the foreign court.” Coulborn v. Joseph, 195 Ga. 723, 730 (25 SE2d 576). It is also required that the foreign judgment be grounded on those fundamental concepts of justice to which we are accustomed. See id at 733. Defendant contends that the West German judgment at issue fails to satisfy these criteria in several respects.

Defendant contends that the West German judgment violates Georgia public policy. In examining such a contention, we are not so concerned with whether the rule applied by the foreign court is precisely the same as under Georgia law, as we are primarily concerned with whether the foreign rule is consistent with or repugnant to our underlying goals, values, and objectives. See Yates v. Lowe, 179 Ga. App. 888, 889 (348 SE2d 113) and Karimi v. Crowley, 172 Ga. App. 761, 762 (324 SE2d 583). Additionally, to the extent that a generally enforceable foreign judgment is, as to some ancilliary issue, contrary to Georgia policy, it may be modified after domestication but before enforcement, by the Georgia court. Blue v. Blue, 243 Ga. 22 (252 SE2d 452).

Defendant contends that Georgia public policy is violated since the increase in child support is awarded retroactively. While it is true that modifications of child support operate only prospectively in Georgia, we must also consider our provision for temporary modification of child support under OCGA § 19-6-19 (c). We cannot say that the effect of a retroactive award is significantly different from a temporary modification under our statute since both provide an increased level of support for the period while the proceeding for modification is pending. Even in the absence of our statutory provision for temporary modification, the West German judgment which is retroactive only to the time that the proceeding for modification was initiated does not offend our fundamental values.

Defendant’s contention that the West German judgment violates Georgia public policy by involuntarily imposing child support until the children have completed college, or in other words, beyond the age of 18 years at which child support terminates under Georgia law by virtue of OCGA § 19-7-2, is not supported by the record. Both of the children in the case sub judice are younger than 18 years of age. The West German judgment merely provides for the commencement of an increased level of child support payments and does not specify the date of termination of the child support payments. Nor is there any evidence concerning a statutory termination date under West German law. Thus, the issue of when the child support payments will be terminated remains for determination. The issues raised by this contention are not ripe for review.

Defendant acknowledges that the Georgia Foreign Money Judgments Recognition Act, OCGA § 9-12-110 et seq., does not govern the case sub judice since it does not apply to “a judgment for support in matrimonial or family matters.” OCGA § 9-12-111 (1). Nonetheless, defendant contends that this statute provides persuasive grounds to refuse recognition of this West German judgment particularly insofar as it conditions enforcement of the foreign judgment upon a showing that the West German courts would recognize and enforce similar judgments from Georgia courts. While we fail to see the relevance of OCGA § 9-12-110 et seq. to this case, it is true that reciprocity lies at the heart of the doctrine of comity. Contrary to defendant’s assertion, plaintiff’s evidence sufficiently establishes that West Germany recognizes and enforces foreign judgments, including those modifying child support payments, subject to conditions substantially similar to those we impose under Coulborn v. Joseph, 195 Ga. 723, supra. We find no merit in defendant’s suggestion that plaintiff’s evidence is deficient because it refers to foreign judgments (in relation to West Germany) in general and fails to specifically state that judgments of Georgia or the United States would be enforced in West Germany.

The West German court’s exercise of jurisdiction over defendant was consonant with our due process notions of fair play and substantial justice. Defendant’s marriage, maintenance of a matrimonial domicile, divorce, continued residence after divorce, and continuing obligations to his two daughters who continued to reside there, establish defendant’s minimum contacts with West Germany such that plaintiff’s maintenance of her action there does not offend our notions of due process. Smith v. Smith, 254 Ga. 450 (330 SE2d 706).

Nor is there any merit in defendant’s contention that he was not afforded adequate notice and a reasonable opportunity to be heard in West Germany. Defendant received the complaint in the West German action and the summons of the West German court but failed to properly respond. We cannot criticize the West German court’s failure to excuse defendant, on the basis of his letter pleading his dire financial circumstances at that time, as undoubtedly no court in Georgia would view such a letter as a proper response to a summons either. As he failed to respond properly to the complaint and summons, defendant has no grounds upon which to complain of any lack of further notice.

Decided March 16, 1990.

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Drew, Eckl & Farnham, Benny C. Priest, for appellee.

Contrary to defendant’s assertion, plaintiffs motion for summary judgment requested in the alternative for “an order granting partial summary judgment, and limiting the issues for trial.” On appeal the failure to grant a partial summary judgment is enumerated as error. Consequently, this is not a case where plaintiff’s entitlement to partial summary judgment is not properly raised. Compare Butts v. Ga. Cas. &c. Co., 179 Ga. App. 819, 820-822 (348 SE2d 94). While a lower court should enter an order pursuant to OCGA § 9-11-56 (d) only where “practicable” (Intl. Indem. Co. v. Odom, 174 Ga. App. 6, 8 (329 SE2d 307)), the entry of such an order is entirely practicable in the case sub judice. In failing to rule, that the West German judgment be domesticated and is enforceable as to its terms, the superior court abused its discretion. The West German judgment should be made the judgment of the superior court. Edmonds v. Bates, 178 Ga. App. 69, 73 (342 SE2d 476).

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1915.
    PIGGLY WIGGLY SOUTHERN, INC. v. EASTGATE ASSOCIATES, LTD.
    (392 SE2d 337)
   Pope, Judge.

Piggly Wiggly Southern, Inc. (PWS) appeals from the grant of partial summary judgment to appellee Eastgate Associates, Ltd. (Eastgate). We granted this interlocutory appeal to consider whether the trial court decided properly the question of the measure of damages in this anticipatory breach of lease action. The pertinent facts are without dispute. Eastgate, a real estate developer, was developing a shopping center in LaGrange. The parties entered into an agreement in June 1986 by which PWS agreed to lease 38,000 square feet of space in the planned 65,000-foot development for a 20-year term. However, before construction of the shopping center began, the management of PWS changed. The new management decided not to operate a store in LaGrange and in February 1987 it notified Eastgate of its intent. Eastgate accepted the tender of breach and brought suit for breach and for specific performance. The trial court denied Eastgate’s motion for summary judgment regarding specific performance as premature and granted partial summary judgment to Eastgate on the issue of damages while denying PWS’s motion for summary judgment. In its order, the trial court held that Eastgate’s damages were to be calculated from the time of breach until the expiration date of the lease and included “the excess of the rent stipulated in the lease contract over the reasonable value of the premises . . . reduced to present value.” In addition, the trial court held that Eastgate was entitled to special damages pursuant to OCGA § 13-6-2 to include “the excess of rent which would have been paid to Eastgate by the other tenants in the shopping center over the reasonable rental value of the premises dedicated to other tenants . . . calculated from the time of the breach until the time the lease was to expire, reduced to present cash value . . . and . . . special expenses incurred by Eastgate at PWS’s direction as a part of the contract or as a consequence of PWS’s breach, less such benefits from such special expenses that have accrued or will accrue to Eastgate.” Held:

We affirm in part and reverse in part. PWS argues that the measure of damages set by the trial court is improper because it is beyond the intention of the parties to the lease and includes elements that are too remote and speculative, namely lost profits from other shopping center tenants’ leases and additional rent provided in the lease based on gross sales. Eastgate argues that PWS’s status as the “anchor tenant” of the proposed shopping center, that is, the tenant with the largest space and the tenant that will draw customers in large numbers sufficient to create business for the “satellite tenants,” must be recognized and that the trial court’s order properly measures the damage flowing from the anticipatory breach of the lease by the “anchor tenant” PWS.

Resolution of this appeal requires several steps. We must first determine what the measure of damages is to a lessor for the lessee’s anticipatory breach. PWS cites the case of Szabo Assoc. v. PeachtreePiedmont Assoc., 141 Ga. App. 654 (1) (234 SE2d 119) (1977) for the proposition that the proper measure is “ ‘the difference between the rental price agreed upon and the actual value of the premises at the time of the breach. . . .’” Id. at 655. However, a reading of Strickland v. Flournoy, 95 Ga. App. 315 (1) (97 SE2d 638) (1957), the case cited by the court in Szabo for the proposition, shows that the court in Szabo erred in stating the law. Strickland stands for the proposition that “[t]he measure of damages for the breach of a lease contract by the lessor is the difference between the rental price agreed upon and the actual value of the premises at the time of the breach.” (Emphasis supplied.) Accord Kenny v. Collier, 79 Ga. 743 (2) (8 SE 58) (1887). Thus, in discussing the hypothetical situation of an accepted tender of anticipatory breach (which was not present in that case), the court in Szabo mistakenly applied the rule applicable to lessors in an anticipatory breach situation to lessees who anticipatorily breach. Because the court was discussing a hypothetical, the statement was dicta. However, the statement is erroneous and should not be followed.

As a practical matter, we find that the generally accepted rule for the lessee’s anticipatory breach to be virtually the same as that for the lessor’s breach. As stated by the court in Arthur Treacher’s &c. v. Chillum Terrace, 272 Md. 720 (327 A2d 282, 288) (1974), “the proper measure of damages to be applied [is] the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach. . . .” PWS argues that damages must be measured at the time of performance and not at the time of breach, citing Phosphate Mining Co. v. Atlanta Oil &c. Co., 20 Ga. App. 660, 661 (93 SE 532) (1917). However, that case involves the sale of goods; we will follow the generally accepted rule for anticipatory breach of a lease by the lessee. See Annot., 85 ALR3d 514. Thus, we find that the trial court correctly stated the measure of damages flowing directly from the contract based on the agreed minimum rent.

Whether PWS may be liable for the loss of additional rent based on gross sales and for damages resulting from the loss of other tenants in the shopping center depends on whether PWS had an obligation of continuous operation during the term of the lease. Such an obligation may be express or implied. The lease in question contains no express provision requiring PWS to operate a business on the premises. Paragraph 10 of the lease states that “Lessee may use the leased property in any lawful manner.” Paragraph 18 of the lease permits PWS to assign the lease. In determining whether a right of continuous operation may inure to the benefit of the lessor, the court in Kroger Co. v. Bonny Corp., 134 Ga. App. 834 at 838-839 (216 SE2d 341) (1975), said “covenants would be implied only where the implication must arise from the language used or was indispensable to effectuate the intention of the parties, and that when the rental to be received under a lease is based on a percentage of the gross receipts of the business, with a substantial minimum, there is no implied covenant that the lessee will operate its business in the leased premises throughout the term of the lease.” (Citations and punctuation omitted.)

Although the trial court did not expressly find that PWS had an implied obligation of continuous operation, it did so implicitly by finding that PWS was the “anchor tenant.” In this, we find that the trial court erred. The lease allowed PWS to use the premises in any lawful manner, was freely assignable and, in Paragraph 9 (d) (vii), PWS expressly disclaimed any representation or warranty as to the sales volume it expected to make in and from the premises. Under the factors set out in Kroger v. Bonny, supra, we find as a matter of law that PWS had no implied obligation of continuous operation. It follows that PWS has no liability for the lost profits to Eastgate from the other tenants. It also follows that PWS is not liable for damages based on percentage of sales, having disclaimed any projections in the lease contract.

Decided March 16, 1990.

Paul, Hastings, Janofsky & Walker, John G. Parker, Marshall D. Orson, Ronald T. Coleman, Jr., for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, Robert L. Todd, James D. Comerford, Harold N. Hill, Jr., for appellee.

Eastgate is allowed to seek those special damages that flow directly from PWS’s breach — those “special expenses incurred by Eastgate at PWS’s direction as a part of the contract or as a consequence of PWS’s breach, less such benefits from such special expenses that have accrued or will accrue to Eastgate,” as stated by the trial court. Although we reject PWS’s argument that special damages (other than incidental damages) are never allowable, we must hold that under the terms of the contract made by the parties in this case, no further special damages are possible. Even though there is evidence that the parties intended that PWS would begin operation of its grocery business (e.g., the lease contained clauses dealing with permitted competition within the shopping center and specifications for construction of the space to accommodate the grocery business) and that PWS knew that its role as “anchor tenant” was critical to obtaining and keeping financing for the development and to attract other tenants to the shopping center, no obligation to begin operations exists in the lease contract, nor can one be implied. The two clauses discussed above allowing PWS to use the space for any lawful purpose and allowing PWS to freely assign the lease contract defeat the claim that PWS at least obligated itself to begin operating its business on the leased premises.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A89A2213.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. GEORGIA MUTUAL INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    A89A2214.
    (392 SE2d 574)
   Beasley, Judge.

These appeals arise from the third trial of this case, mandated by State Farm &c. Ins. Co. v. U. S. Fidelity &c. Co., 190 Ga. App. 220 (378 SE2d 400) (1989) and will be addressed together. The facts and procedural history are contained in State Farm, supra, and will be supplemented only as needed.

Case No. A89A2213

1. USF&G, insurer of the other vehicle involved in the collision, objected to the following interrogatory submitted to the jury in the third trial: “At the time of the collision, was Roscoe Brown a person employed or engaged in any way in a car business? [Car Business — means a business or job where the purpose is to sell, lease, repair, service, transport, store or park motor vehicles.]”

USF&G argues that this interrogatory failed to include any requirement that the jury consider the purpose for which the car was being used at the time and that the jury be required to find that the purpose was in furtherance of the car business.

Because the State Farm clause here is of the newer type, the inquiry as phrased was proper. As stated in State Farm, supra at 222 (2), “[s]ince the applicable exclusion was of the ‘newer type,’ the relevant focus was upon Mr. Brown and not upon the use to which the jeep was being put at the time of the collision.”

The clause did not contain the same language as the one in controversy in Haley v. State Farm &c. Ins. Co., 130 Ga. App. 258 (202 SE2d 838) (1973). The exclusion in that clause was that the car be used by a person “while such person is employed or otherwise engaged in an automobile business . . . .” (Emphasis supplied.) The inquiry was appropriately whether the vehicle, which had been borrowed by a service station owner from his brother to go and service a car, was being used as an instrumentality of the business. Cincinnati Ins. Co. v. Perimeter Tractor &c. Repair, 192 Ga. App. 243, 244 (1) (384 SE2d 449) (1989).

Smith v. State Farm &c. Ins. Co., 193 Ga. App. 347 (387 SE2d 623) (1989) dealt with two separate automobile exceptions, one in the car wash business owner’s policy, which was the older type and applied if the car was being used by any person “while that person is working in any car business,” and one contained in the car owner’s policy, which was the same newer type clause at issue in this case. The lower court’s grant of summary judgment to State Farm was affirmed. This court focused on the fact that the car wash owner was driving the car to its owner’s home at the time of the collision, and was thus then engaged in an automobile business. The rationale also covered the second exclusion, it being broader than the first, and is consistent with the decision in the present case.

2. The clause is not subject to the ambiguity urged in USF&G’s second enumeration.

Case No. A89A2214

3. Georgia Mutual is insurer for Brown, the repairman for Lamineck’s jeep, which Brown was driving at thé time of the collision. It enumerates the failure of the trial court to allow evidence from it as to the Use-of-Other-Automobile exception in its policy, which included a “repair shop” exclusion of the old type. State Farm, supra at 222 (2). This issue was presented to the trial court in Georgia Mutual’s initial proposed pretrial order, submitted prior to the first trial.

In its initial pretrial order, the court phrased three interrogatories for the jury’s response, including “Did the accident of October 11, 1986 arise out of the operation of an automobile repair shop?” The order further provided that if that question were answered in the negative, then Georgia Mutual coverage would be found to apply. This question was appropriate as to the Georgia Mutual “repair shop” exclusion. Id. Thus, the issue which it is now contended should have been submitted again was specifically presented to and decided by the jury in the first trial. Its answer was “no.”

Although State Farm, insurer for Lamineck’s jeep, moved for and was granted a new trial, no such motion was filed by Georgia Mutual. The court specifically held in its amendment to the pretrial order, under which the second and third trials were conducted that “By verdict returned ... , a jury determined that the accident . . . did not arise out of the operation of an automobile repair shop and the question of permissive use being, by Court construction of the contract, irrelevant to coverage of the policy under Georgia Mutual . . . , the Judgment . . . stands as to . . . Georgia Mutual .... The effect whereof being that the Georgia Mutual . . . policy affords coverage relative to the accident. . . which coverage shall be primary if for any reason State Farm . . . coverage is found to be excluded in the retrial of this case.”

The court ruled that Georgia Mutual was not a party to the motion filed by State Farm and that the court was not empowered to sua sponte grant such a motion beyond thirty days of the original judgment, which rulings were correct. OCGA § 5-5-40; Hill v. O’Bryan Bros., 104 Ga. 137, 141 (1) (30 SE 996) (1898).

Decided March 16, 1990.

Geer & Rentz, Donald D. Retnz, for USF&G.

John T. Croley, Jr., for State Farm.

John D. Varnell, for Georgia Mutual.

Georgia Mutual did not appeal after the second trial and is precluded from presenting the issue to this court. OCGA §§ 9-12-40 & 9-12-42; Blakely v. Blakely, 232 Ga. 60, 61 (205 SE2d 205) (1974); City of Macon v. Pasco Bldg. Systems, 191 Ga. App. 48, 50 (380 SE2d 718) (1989).

4. The second enumeration deals with the court’s rulings on the State Farm exclusion. The objection now raised was not made by Georgia Mutual at the trial and will not be considered here for the first time. Jackson v. Easters, 190 Ga. App. 713, 715 (3) (379 SE2d 610) (1989).

Judgment affirmed.

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


author: Pope, Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    A89A2226.
    HALL v. CANAL INSURANCE COMPANY.
    (392 SE2d 340)
   Pope, Judge.

Appellant Hall was involved in a motor vehicle accident, resulting in the initiation of a personal injury action against him by Matthew Milton. Hall’s motor vehicle liability insurer, appellee Canal Insurance Company, entered a defense on his behalf pursuant to a reservation of rights and then filed a declaratory judgment action seeking a ruling that no coverage existed under the policy. Milton’s uninsured motorist carrier, Southern General Insurance Company, undertook Hall’s defense in the declaratory judgment action and ultimately obtained a ruling that Hall was covered under the Canal policy. Ostensibly still acting on Hall’s behalf, Southern General then filed a motion pursuant to OCGA § 33-7-11 to recover its legal costs and attorney fees expended in defending Hall in the declaratory judgment action. This appeal is from the denial of that motion. Held:

OCGA § 33-7-15 (a) states that all motor vehicle liability insurance policies covering motor vehicles principally garaged or principally used in this state must contain a provision requiring the insured “to send his insurer, as soon as practicable after the receipt thereof, a copy of every summons or other process relating to the coverage under the policy and to cooperate otherwise with the insurer in connection with the defense of any action or threatened action covered under the policy.” Under OCGA § 33-7-15 (b), noncompliance by the insured with such a policy provision “shall constitute a breach of the insurance contract which, if prejudicial to the insurer, shall relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.” Subsection (b.1) of the statute goes on to provide: “In the event the insurer denies coverage and it is determined by declaratory judgment or other civil process that there is in fact coverage, the insurer shall be liable to the insured for legal cost[s] and attorney’s fees as may be awarded by the court.” (Emphasis supplied.) It is the latter provision which forms the basis for the claim at issue in this appeal.

We have found no other cases interpreting OCGA § 33-7-15 (b.1), and the parties agree that this is an issue of first impression. We hold this provision to be inapplicable under the circumstances of the present case. It is clear from the record and the briefs of the parties that the claim for legal costs and attorney fees is being made not by the “insured” but by the insurer for one of the insured’s co-defendants in the declaratory judgment action. While the appellant argues that the public good would be served by interpreting the statute to allow uninsured motorist carriers also to recover their legal costs and attorney fees expended due to an unwarranted denial of coverage by an insurer, we are not at liberty to disregard the plain wording of the statute simply to advance our own notions of what the law ought to be. See generally Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

In addition, although the language of subsection (b.l) does not expressly limit recovery of attorney fees only to situations of non-cooperation by the insured, placement of the subsection in the context of OCGA § 33-7-15 leads to the conclusion that the legislature did intend to so limit the application of the subsection; “It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948).

Judgment affirmed.

Carley, C. J., McMurray, P. J., Birdsong and Cooper, JJ., concur. Deen, P. J., Banke, P. J., Sognier and Beasley, JJ., concur specially.

Banke, Presiding Judge,

concurring specially.

OCGA § 33-7-15 (b.1) provides not even arguable support for Southern General’s claim for attorney fees, since it is an insurer rather than “the insured,” and since the insured’s claim for coverage was denied on the basis of a policy exclusion rather than any asserted failure on his part “to cooperate . . . with [the appellee] in connection with the defense of any action or threatened action covered under the policy.” Thus, there being no discernible basis upon which reversal of the trial court’s judgment might reasonably have been anticipated, I would impose a $500 penalty against Southern General Insurance Company, as the true party in interest, for filing a frivolous appeal. See Court of Appeals Rule 26 (b).

Decided March 16, 1990.

Jenkins & Eells, Frank E. Jenkins III, Jeffrey W. Frazier, for appellant.

Crim & Bassler, Harry W. Bassler, for appellee.

I am authorized to state that Judge Sognier joins in this opinion.

Beasley, Judge,

concurring specially.

I concur in the majority’s holding but not entirely with the reasoning and the breadth thereof.

When the record and the statutory provision are scrutinized together, one need go no farther than the first proviso in the legal costs section. It says in (b.1): “In the event the insurer denies coverage. . . .”

Canal did not deny coverage. What it did was defend Hall under a reservation of rights in the tort action against him and bring a declaratory judgment action to judicially ascertain its legal obligations. It alleged that it “is in great doubt as to whether it is responsible to provide coverage to . . . Hall .... arising out of the . . . collision,” and it asked the court to “declare [its] duties and obligations ... if any” and to stay underlying civil actions until this question was answered.

This is not a denial of coverage.

Thus Hall does not even get out of the batter’s box in his quest for legal costs and there is no need to consider calls on other balls thrown.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.


text:
    A90A0082.
    THOMPSON v. THE STATE.
    (392 SE2d 732)
   Sognier, Judge.

Leslie Keith Thompson was convicted of the offense of possession of amphetamine in violation of the Georgia Controlled Substances Act, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He brings this appeal.

1. Appellant enumerates the general grounds. Construed to uphold the verdict, the evidence at trial showed that Captain James Wheeler and Detective Jerry Wynn of the Douglas County Sheriff’s Department went to a service station known to the officers as a place where drug transactions regularly occurred. Wheeler testified that when possible he would drive by the service station on a daily basis and that he used the location to train new police officers assigned to his division because of the large number of drug transactions that occurred at the station. On the date in question, Wheeler testified he and Wynn drove into the parking lot of the service station and parked near a van where he had observed a number of people, including appellant and a co-defendant, Angela Bridges, congregating. Wheeler stated appellant was in the driver’s seat of the van and was talking to someone standing by the window. Appellant and that third person then looked at Wheeler before the third person walked around the van and sat in the passenger seat. Wheeler observed appellant sit up and appear to get something out of his pocket, and then saw money in appellant’s hand. Based on his extensive experience in investigating narcotics transactions, which is detailed in the transcript, Wheeler concluded that such a transaction was occurring. He approached the van as the third person left and Bridges entered the van. Wheeler identified himself to appellant, checked appellant’s driver’s license, and asked appellant and Bridges what they were doing there. At Wheeler’s request, appellant and Bridges exited the van at which time Wheeler observed needle marks on appellant’s arm. Appellant told Wheeler they were “working on the motor in his van.” Wynn then observed what both officers believed to be a piece of rock cocaine on the seat of the van. Based on the discovery of that item, the officers began to search the van. They located a satchel, which had appellant’s initials on it, on the floor board between the two front seats. Wheeler found two small plastic bags containing powder, later identified as amphetamine, in a cigarette box inside the satchel, as well as a metric scale and a tray for rolling cigarettes, items which Wheeler testified were typically used in drug transactions to weigh drugs and roll marijuana cigarettes. Wheeler also testified that appellant, when released on bond, came to see him (Wheeler) and requested the return of the satchel and other items inside the satchel, which appellant told Wheeler belonged to him.

Wheeler identified a shotgun he found in a hidden compartment inside the roof of appellant’s van, which had been rigged with wire so that the gun would swing down when the wire was pulled. Wheeler testified the van had been impounded but was later taken without authorization from the police parking lot, and that appellant was driving the vehicle when Cobb County police subsequently recovered it.

Also admitted into evidence was a certified copy of appellant’s prior felony convictions on drug charges as well as scientific tests performed on appellant’s blood and urine revealing the presence therein of amphetamine.

Contrary to appellant’s arguments, we find that the evidence outlined above was sufficient to have enabled a jury to conclude beyond a reasonable doubt that appellant was a convicted felon in possession of the shotgun in the van. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence was also sufficient for the jury reasonably to have found that appellant was the owner of the satchel containing the narcotics, and that he was in joint possession of the amphetamine with Bridges while in possession of the shotgun in the van. We need not address appellant’s equal access arguments since “[t]he presence of [amphetamine] in a defendant’s bodily fluids is considered to be direct positive evidence of possession of [amphetamine]. [Cit.]” Cauthen v. State, 177 Ga. App. 565, 566 (1) (340 SE2d 199) (1986). Accordingly, there was sufficient evidence produced at trial to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of possession of amphetamine. Jackson v. Virginia, supra; Stevens v. State, 165 Ga. App. 814, 815 (1) (302 SE2d 724) (1983).

2. We find no merit in appellant’s second and third enumerations. The trial court did not err by refusing to consider appellant’s motion to suppress, which the trial court found was untimely filed on the day of trial, and no written extension for a late filing had been requested prior to trial. USCR 31.1; Van Huynh v. State, 258 Ga. 663, 664 (2) (373 SE2d 502) (1988). “The holding of [Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) (1961)], that all evidence obtained by searches and seizures in violation of the Fourth Amendment of the Federal Constitution is inadmissible in state courts, is only an exclusionary rule and does not affect the competence of evidence admitted without timely challenge. [Cit.] In Georgia the exclusionary rule is firmly embedded in our statutory law; [OCGA § 17-5-30] establishes a procedure for suppression of evidence obtained by unlawful search and seizure. This statute specifically provides that the motion to suppress evidence illegally seized ‘shall be in writing and state facts showing [that] the search and seizure were unlawful.’ The record in the case sub judice reveals that appellant’s motion was made [untimely.] A motion to suppress which is procedurally defective is properly overruled. [Cit.] ... It was therefore not error for the trial judge to overrule appellant’s [untimely] motion to suppress evidence. Nor can appellant’s motion be upheld as an oral objection to evidence obtained by unlawful search and seizure. ‘Since the Act of 1966, an oral objection to evidence obtained by unlawful search and seizure is not sufficient unless preceded by suppression of the evidence pursuant to a motion to suppress in compliance with the Act. . .[.] Failure to interpose a timely motion to suppress in compliance with the Act amounts to a waiver of the constitutional guaranty in respect to the search and seizure in question.’ [Cits.]” Graves v. State, 135 Ga. App. 921-922 (219 SE2d 633) (1975).

Decided March 16, 1990.

Leslie Keith Thompson, pro se.

Alden W. Snead, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

3. Contrary to appellant’s assertion, the transcript reflects that appellant was present during the sentencing phase of the trial and was afforded every opportunity to present evidence in extenuation or mitigation of punishment, as required by OCGA § 17-10-2 (a). The transcript reflects appellant’s co-defendant, Bridges, took advantage of the opportunity but appellant did not. The trial judge stated he denied appellant’s request for a presentence investigation based on “the record and the recidivism charge,” and we find no abuse of his discretion in so doing. See Galloway v. State, 165 Ga. App. 536 (2) (a) (301 SE2d 894) (1983).

4. Appellant raises for the first time on appeal the alleged ineffective assistance of his trial counsel. The record reveals that appellant filed the motion for new trial pro se, and that at some point a Douglas County public defender became his appellate counsel. “As in Hightower v. State, 189 Ga. App. 553, 556 (376 SE2d 717) (1988), ‘the issue of ineffective assistance of counsel was first raised on appeal, and was not the subject of an amended motion for new trial. Therefore, Smith (v. State, 255 Ga. 654 (341 SE2d 5) (1986)) controls and this case must be remanded for an evidentiary hearing. (Cits.)’ [Cit.]” Jones v. State, 194 Ga. App. 746 (2) (_ SE2d _) (1990).

Judgment affirmed and case remanded.

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


author: Banke, Presiding Judge.

text:
    A90A0083.
    CARLISLE v. TRAVELERS INSURANCE COMPANY.
    (392 SE2d 344)
   Banke, Presiding Judge.

On December 21, 1988, the appellant, Shirley Carlisle, filed suit against Wesley Frazier to recover for injuries allegedly sustained in an automobile accident which took place on December 28, 1986. On January 3, 1989, the appellee, Travelers Insurance Company, was served as the áppellant’s uninsured motorist coverage carrier. Travelers answered in its own name and moved to be dismissed from the case on the ground that it had not been served within the two-year statute of limitation. See OCGA § 9-3-33. The trial court granted the motion, and this direct appeal followed. Held:

Decided March 16, 1990.

Mitchell, Coppedge, Wester, Bisson & Miller, Joseph T. Leman, for appellant.

R. Chris Irwin & Associates, David L. Whitman, for appellee.

“ ‘Unless the court in an order dismissing one of multiple defendants makes an express determination of finality as set out in (OCGA § 9-11-54 (b)) ...[,] the case is still pending in the trial court and the procedure for interlocutory appeals must be followed. [Cit.]’ [Cit.]” All Risk Ins. Agency v. Rockbridge Sanitation Co., 166 Ga. App. 728 (305 SE2d 390) (1983). In dismissing the claim against Travelers, the trial court did not make such a determination. Thus, inasmuch as the claim against the alleged tortfeasor remains pending below, the order sought to be appealed is not directly appealable. See generally OCGA § 5-6-34 (a); Coley Fertilizer Co. v. Gold Kist, 174 Ga. App. 471 (330 SE2d 597) (1985). The appeal is accordingly dismissed.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0138.
    KENNY v. THE STATE.
    (392 SE2d 344)
   Sognier, Judge.

Johnny Kenny was convicted of simple battery and he appeals.

Appellant contends in his sole enumeration of error that the trial court erred by charging the jury that “the defendant’s flight from the scene of the offense is circumstantial evidence of his guilt and of his knowledge of his guilt, and you may but are not required to make an inference from flight, if flight be proven to you. It is a settled rule of evidence in this State that evidence of flight may be submitted to the jury and that they may infer guilt therefrom.” Pretermitting the issue whether statements by appellant’s counsel during the charge conference constituted an endorsement of the exact language charged by the trial court, see Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975), we do not agree with appellant that the syntax used in the charge resulted in an unauthorized comment on the evidence by the trial court. Specifically, appellant argues that the failure to charge the second sentence first and to place the “if flight be proven to you” clause at the beginning of its sentence resulted in a charge which improperly instructed the jury that appellant did flee from the scene of the offense and was evidence of his guilt.

Decided March 16, 1990.

John D. McCord III, for appellant.

Ralph T. Bowden, Jr., Solicitor, Richard Read, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

The jury was thoroughly charged on circumstantial evidence and was instructed that no comment made by the trial court was “intended to express any opinion about the facts of this case, . . . upon the evidence or upon the guilt or innocence of the defendant.” “It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.]” Clark v. State, 153 Ga. App. 829, 831 (2) (266 SE2d 577) (1980). While we do not endorse the unnecessarily convoluted language employed in the charge of which complaint is made, when put together and considered in context with the charge as a whole, we find no harmful error in the charge. Id.

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    A89A1881.
    PACE et al. v. M. E. HUNTER & ASSOCIATES, INC. PACE et al. v. BEN-TOM CORPORATION.
    A89A1882.
    (392 SE2d 545)
   Carley, Chief Judge.

The facts, insofar as they are relevant, are as follows: On the evening of December 20, 1986, 16-year-old appellant-plaintiff Mark Pace drove his vehicle to a series of parties and, over a five-hour period, drank several beers. Having apparently decided to return home, he drove down Northcrest Road for the purpose of gaining access to I 1-85 South. Some 200 feet from the foot of the Northcrest Road bridge over I-85, he drove under a set of overhead signs directing motorists to cross the bridge to gain access to I-85 South. At the foot of the bridge, he drove under another set of overhead signs directing motorists to cross the bridge and turn right to gain access to 1-85 South. At the far end of the bridge, there was another set of overhead signs which directed motorists to make an immediate right turn to gain access to I-85 South. Despite these overhead signs, appellant crossed the bridge and turned left onto Frontage Road and continued to drive in the erroneous belief that he was on the access road to 1-85 South. There were no signs along Frontage Road to warn motorists of a sharp curve in the roadway. He lost control of his vehicle in the curve and was injured when his vehicle overturned.

As the result of his injuries, appellant Mark Pace and his parents brought this suit against appellee-defendants M. E. Hunter & Associates, Inc. (Hunter) and Ben-Tom Corporation (Ben-Tom). Hunter and Ben-Tom are the contractors for the erection of signs along Northcrest and Frontage Roads. The complaint alleged that the overhead directional signs that had been erected along Northcrest Road were negligently placed so as to misdirect those motorists seeking access to I-85 South onto Frontage Road, and further alleged that the failure to have erected the curve warning signs that were scheduled for placement along Frontage Road was a negligent omission. Hunter and Ben-Tom answered, denying the material allegations of the complaint. Subsequently, Hunter and Ben-Tom separately moved for summary judgment and the trial court granted both motions. The appeals from the trial court’s orders on the two motions for summary judgment are hereby consolidated for appellate disposition in this single opinion.

Case No. A89A1881

1. As against the allegation regarding the negligent placement of the directional signs along Northcrest Road, Hunter produced uncontroverted evidence that those signs had been erected in compliance with the plans and specifications of the Department of Transportation (DOT) and had been accepted by DOT. Accordingly, summary judgment was correctly granted in favor of Hunter as to this allegation of its liability for the mishap. C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987).

2. As against the allegation regarding the negligent omission of curve warning signs along Frontage Road, Hunter does not contend that a breach of the contractual duty that it owed to erect those warning signs may not support a tort action brought by one who alleges that he was injured as the result of the absence of those signs. Instead, Hunter urges that appellants failed to prove that it was contractually obligated to have erected the curve warning signs along Frontage Road before December 20, 1986, so as to demonstrate that the absence of those signs on that date was a breach of its contract.

The record does show that appellants adduced no affirmative evidence that the absence of curve warning signs along Frontage Road on the date of the injury was, under the terms of Hunter’s contract, a breach thereof. However, the initial evidentiary burden was on Hunter as the movant for summary judgment and, unless and until that evidentiary burden was met, appellants were not required to show that a genuine issue of material fact remained as to Hunter’s breach of its contractual duty. The record demonstrates that Hunter did not adduce affirmative evidence to show that the absence of curve warning signs along Frontage Road on the date of the injury was not, under the terms of its contract, a breach thereof. Accordingly, summary judgment in favor of Hunter was not authorized on the basis that no genuine issue of material fact remained as to its breach of contract in failing to have erected the warning signs along Frontage Road prior to December 20, 1986.

3. Hunter’s primary contention in the trial court and on appeal is that summary judgment in its favor was authorized because the negligence of appellant Mark Pace was the proximate cause of his injuries.

Although there is evidence that appellant Mark Pace had several beers earlier in the evening, there is no evidence that he was driving under the influence of alcohol at the time of the mishap. Although the evidence also shows that, after turning off Northcrest Road, appellant Mark Pace drove down the unlighted Frontage Road at a speed which would not permit him to discover the existence of the curve so as to negotiate it safely, this would not demand a finding that, as a matter of law, he was negligent and that it was his negligence, rather than the alleged negligence of Hunter in failing to erect curve warning signs, which was the proximate cause of his injuries. “Ordinarily, what is negligence, contributory negligence, proximate cause, etc., are questions of fact for the determination of the jury, and it is only in plain and unmistakable cases that the court will undertake, as a matter of law, to solve such questions. It is not necessarily such a lack of ordinary care on the plaintiff’s part as will defeat a recovery for the operator of a properly equipped automobile to drive it in the night at such a rate of speed that he can not stop it within the limit of his vision ahead. Whether he is to be chargeable with negligence or not depends upon what is reasonable under all the circumstances; and unless the facts shown unmistakably point to but one conclusion, the decision of that question is especially one for determination by the jury.” Doby v. W. L. Florence Constr. Co., 71 Ga. App. 888, 895 (1) (32 SE2d 527) (1944). See also Turkett v. Central of Ga. R. Co., 117 Ga. App. 617 (161 SE2d 362) (1968). Accordingly, summary judgment in favor of Hunter was not authorized on the basis that no genuine issue of material fact remained as to whether appellant Mark Pace’s own negligence was the proximate cause of his injuries.

4. The trial court correctly granted summary judgment in favor of Hunter as to its liability for the alleged negligent placement of the directional signs along Northcrest Road. The trial court erred in granting summary judgment in favor of Hunter as to its alleged negligence in failing to have erected the curve warning signs along Frontage Road.

Case No. A89A1882

5. As against the allegation regarding the negligent placement of the directional signs along Northcrest Road, Ben-Tom produced evidence that those signs had been erected in compliance with the plans and specifications of DOT and had been accepted by DOT. In opposition, appellants produced the affidavit of an expert who averred that the placement of the signs was not in exact compliance with DOT’S plans and specifications. Appellants did not, however, produce any evidence to controvert Ben-Tom’s showing that DOT had accepted the work. Thus, while a genuine issue of material fact might remain as to compliance with DOT’s plans and specifications, the trial court nevertheless correctly granted summary judgment in favor of Ben-Tom on the basis that the work had been accepted by DOT. “The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor’s failure to properly carry out his contract. [Cits.]” Young v. Smith & Kelly Co., 124 Ga. 475, 476 (52 SE 765) (1905).

6. Appellants relied upon the theory of respondeat superior in alleging that Ben-Tom was vicariously liable for Hunter’s failure to have erected the curve warning signs along Frontage Road prior to December 20, 1986. In support of its motion for summary judgment, Ben-Tom produced its contract with Hunter. Under the terms of that contract, Ben-Tom merely retained the right to dispense with Hunter’s services in the event that Hunter failed to perform. This evidence showed that, in erecting the curve warning signs along Frontage Road, Hunter was an independent contractor, not Ben-Tom’s servant. State of Ga. v. Goolsby, 191 Ga. App. 161 (381 SE2d 299) (1989). In opposition, appellants produced nothing to authorize a finding that Ben-Tom was Hunter’s master or was otherwise vicariously liable for Hunter’s alleged negligence. Accordingly, the trial court correctly granted summary judgment in Ben-Tom’s favor as to its liability for Hunter’s alleged negligent failure to have erected the signs along Frontage Road.

Judgment affirmed in part and reversed in part in Case No. A89A1881. Judgment affirmed in Case No. A89A1882.

McMurray, P. J., and Beasley, J., concur.

Decided March 1, 1990

Rehearings denied March 20, 1990

Lawson & Davis, G. Thomas Davis, W. Anthony Moss, Lela L. Smith, for appellants.

Fain, Major & Wiley, Charles A. Wiley, Jr., Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., M. Diane Owens, Greene, Buckley, DeRieux & Jones, Steven J. Misner, for appellee (case no. A89A1881).

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Pat M. Anagnastakis, for appellee (case no. A89A1882).