author: MlKELL, Judge.

text:
    A01A1114.
    DOVER v. MATHIS.
    (549 SE2d 541)
   MlKELL, Judge.

Ben Dover appeals the trial court’s grant of summary judgment to Sonny Mathis d/b/a State-Wide Realty & Auction (“Mathis”) and its denial of Dover’s summary judgment motion in this breach of contract case. For reasons stated below, we reverse the trial court’s grant of summary judgment to Mathis and affirm the denial of Dover’s motion for summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that Dover and Mathis are licensed real estate brokers. Dover contends that Mathis agreed to pay him a one percent commission from the sale of a parcel of real estate if Dover produced a purchaser who presented the highest bid for the property. Conversely, Mathis contends that there was no such agreement. Mathis sold the property to W. B. Jones, who Dover contends is the purchaser he supplied to buy the property.

Dover filed an action against Mathis alleging breach of contract seeking to recover the remaining commission owed, which totaled $11,019.53. Dover attached to his complaint what he alleged to be a balance sheet from Mathis showing that Mathis deducted fees from the proposed commission, resulting in a balance due and paid to Dover of $8. Mathis denies that he sent this balance sheet to Dover but admitted that he paid him $8. Both parties filed motions for summary judgment.

Decided May 29,2001.

Kenneth G. Lawrence, for appellant.

Moore & Studstill, Daniel L. Studstill, for appellee.

On appeal, Dover argues in two enumerations of error that the trial court erred by failing to apply appropriately the summary judgment standard. Specifically, the trial court weighed credibility and made findings of material facts in dispute. We agree.

The evidence presented on summary judgment consisted of opposing affidavits of Dover and Mathis as to whether they entered an oral agreement. In deciding that there was no agreement, the trial court appears to have found Mathis’ affidavit more credible than Dover’s. However, “the trial court cannot in considering summary judgment weigh the evidence or determine its credibility.” Instead, “[w]here there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.” Accordingly, we reverse the grant of summary judgment to Mathis and affirm the denial of Dover’s summary judgment motion.

Judgment affirmed in part and reversed in part.

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

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

       (Citation omitted.) State Farm Fire &c. Co. v. Martin, 174 Ga. App. 308, 309 (329 SE2d 577) (1985).

       (Citations omitted.) Spoon v. Herndon, 167 Ga. App. 794, 795 (1) (307 SE2d 693) (1983).


source: Caselaw Access Project

license: Public Domain

text:
    A01A1170.
    KRAFT v. DALTON.
    (549 SE2d 543)
   MlKELL, Judge.

Paula Kraft hired Robert A. Dalton to finish her basement and subsequently sued him for breach of contract for failure to complete the project. The jury returned a verdict in favor of Kraft, awarding $12,222.65 in general damages and $4,777.35 as expenses of litigation, pursuant to OCGA § 13-6-11. Dalton moved for judgment notwithstanding the verdict as to the jury’s award of general damages and as to the award of expenses of litigation. The motion for j.n.o.v. regarding the general damages was denied in open court. After taking the second motion under advisement, the trial court granted Dalton’s motion for j.n.o.v. on the award of expenses of litigation. Kraft filed this appeal. We reverse. “A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.” (Citations and punctuation omitted.) Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (2) (496 SE2d 546) (1998). See also Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867 (490 SE2d 536) (1997). Furthermore, we have held that “[t]he question of attorney fees under [OCGA § 13-6-11] is one for the jury, and will be upheld on appeal if there is any evidence to support it.” LeBrook, Inc. v. Jefferson, 210 Ga. App. 650, 651 (1) (437 SE2d 360) (1993).

Applying the “any evidence” standard to the jury’s verdict in the case sub judice, we conclude that the court erred in granting Dalton’s motion for j.n.o.v. as to the award of the expenses of litigation. OCGA § 13-6-11 provides that “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense,” a jury may award the expenses of litigation as a part of the damages. A review of the record indicates that the jury’s award was supported by evidence that Dalton acted in bad faith in his dealings with Kraft. “[T]he elements of bad faith that will support a claim for expenses of litigation must relate to (defendant’s) acts in the transaction itself prior to this litigation, not to the motive with which it defended the litigation.” (Citations omitted.) Driggers v. Campbell, 247 Ga. App. 300, 304 (4) (543 SE2d 787) (2000). “Whether or not [Dalton] acted in bad faith in [his] contractual relations is an issue for the jury to determine.” (Citations omitted.) Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 750 (7) (542 SE2d 151) (2000) (bad faith may be found in the defendants’ carrying out the provisions of the contract).

The evidence showed that in March 1998, Kraft hired Dalton to finish her basement at the rate of $30 per hour. Dalton estimated that the cost of the work would be approximately $7,000 and would not exceed $10,000. Kraft gave him a $3,000 deposit. Dalton represented to Kraft that he had performed similar work on several other basements and that he possessed the skills necessary to complete the renovations. The parties did not have a written contract. According to their oral agreement, Kraft left blank checks for Dalton periodically, and he was supposed to provide her with itemized statements; however, he gave her only one such statement. Kraft quickly became unhappy with Dalton’s work on the basement. She testified that the four doors Dalton installed were different heights, that one of the doors would not close properly, that the corners in the basement were “bubbling” and “round,” and that the work was “sloppy.” Kraft further testified that the walls were “lumpy” and that it did not appear that the drywall mud had been sanded smooth before the walls were painted. According to Kraft, when she initially expressed her concerns to Dalton, he blamed the defective work on his assistant and told Kraft that he would fix the problems.

In June of that year, realizing that the costs had exceeded the agreed-upon budget and that the renovation was not yet complete, Kraft told Dalton that she would not pay him further until he had fixed the defects in the work he had already performed. According to Kraft, Dalton became angry and refused to correct the defects until she paid him more money. Kraft testified that Dalton “dared” her to sue him as follows: “He asked me what I was going to do about it if he didn’t [correct the defects], because I couldn’t make him. And he said, what are you going to do, sue me? . . . [Y]ou haven’t got the nerve.” Kraft went to Dalton’s home a few days later to ask him again to correct his errors, and he told her she would have to sue him. While at Dalton’s home, Kraft observed building materials from her basement that Dalton had removed and placed in his garage.

Kraft contacted six contractors before she located one who would complete the work Dalton had started. Bryan Schatz, a licensed general contractor with a bachelor of science degree in mechanical engineering, whom Kraft ultimately hired, provided detailed expert testimony at the trial regarding the numerous electrical, plumbing, and structural defects in Dalton’s work. Schatz testified that the defects were so extensive that all of Dalton’s work had to be removed and the job essentially started from scratch.

Based on the foregoing and viewing the evidence in favor of the verdict, there was an evidentiary basis for the jury’s conclusion that Dalton acted in bad faith in his dealings with Kraft by falsely representing that he possessed the skill to perform the renovations, failing to complete the project in a workmanlike manner, removing the building supplies from Kraft’s home, and ultimately forcing Kraft to file suit. Even assuming, arguendo, that there was a bona fide controversy to preclude recovery for stubborn litigiousness or causing unnecessary trouble and expense, the jury was authorized to award Kraft the expenses of litigation based on Dalton’s bad faith. See Williamson, supra at 750-751. See also Graves v. Diambrose, 243 Ga. App. 802, 803-804 (2) (534 SE2d 490) (2000). Accordingly, the trial court erred in granting Dalton’s motion for j.n.o.v.

Decided May 29, 2001.

Talley & Darden, Charles L. Davis, Jr., for appellant.

Harry W. Krumenauer, for appellee.

Judgment reversed.

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

       After judgment was entered, Dalton filed a notice of appeal; however, the court subsequently dismissed the notice for failure to pay the bill of costs. Thus, it is not a part of this appeal.

       As a preliminary matter, we reject Dalton’s contention that this appeal is not properly before this Court. Dalton is correct that OCGA § 5-6-35 (a) (10) requires that an appellant file an application for discretionary appeal for an award of attorney fees pursuant to OCGA § 9-15-14; however, the award in this case was made under OCGA § 13-6-11. Furthermore, a j.n.o.v. constitutes a final order that is directly appealable without application. OCGA § 5-6-34 (a) (1).


author: Pope, Presiding Judge.

text:
    A01A0026.
    SMITH v. WALDEN et al.
    (549 SE2d 750)
   Pope, Presiding Judge.

John and Marilyn Walden sued Conley Smith for breach of contract, fraud and misrepresentation. Essentially, the Waldens alleged that Smith duped them into purchasing certain real property at an inflated price. They claimed that in addition to receiving an offset for their rental payments, they were entitled to have the $79,995 purchase price reduced by $50,000, the amount a third party, the Bryants, paid Smith for a corner section of the property. The trial court awarded summary judgment to Smith on the Waldens’ breach of contract and fraud claims. The Waldens unsuccessfully appealed that judgment. Walden v. Smith, 249 Ga. App. 32 (546 SE2d 808) (2001).

In this appeal, Smith contends that he is entitled to summary judgment on the Waldens’ negligent misrepresentation claim. We agree. At the outset, we note that the claim appears foreclosed by the express terms of the lease/purchase agreement precluding any oral modifications and by the Statute of Frauds because no modification in writing was ever made. Moreover, assuming arguendo that the Waldens’ claim was not otherwise foreclosed, it cannot survive summary judgment in the absence of any evidence to show the exercise of due diligence.

According to John Walden’s uncontradicted testimony, the Bryants refused to reveal to him the price they paid for the corner piece of property. Walden testified that when he asked the Bryants if they were “happy about what you paid for this [they] looked at me . . . and they did not say anything.” When he repeated the question, saying, “Well, what did you give for it,” the Bryants responded, “We told Conley [Smith] we would not talk about it.” At that point, despite being on notice that something might be amiss, the Waldens admittedly undertook no further action to ascertain the actual price. John Walden conceded that he never asked Smith to show any proof or documentation as to the purchase price paid by the Bryants. Since the Waldens offered no evidence of justifiable reliance, an essential element of this tort, Smith was entitled to judgment as a matter of law. Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (3) (469 SE2d 242) (1996).

Decided May 30, 2001.

Earrar & Corbin, Christopher L. Corbin, for appellant.

Hatcher, Johnson, Meaney & Gothard, Ross L. Hatcher III, for appellees.

The Waldens attempt to avoid this outcome by contending that Smith and John Walden had a “confidential relationship.” Consequently, they claim they were entitled to rely upon Smith’s representation that he obtained only $10,000 from the Bryants for the property. But mere friendship and close fellowship, without more, do not create a fiduciary relationship. Kienel v. Lanier, 190 Ga. App. 201, 203 (2) (378 SE2d 359) (1989); see Bowen v. Hunter, 241 Ga. App. 204, 207-208 (525 SE2d 744) (1999). The parties here were plainly engaged- in a business transaction with each other in an effort to advance their own separate objectives. See Kienel, 190 Ga. App. at 204 (2). In any event; after the Bryants refused to tell John Walden how much they had paid Smith for the corner portion of the property, the Waldens were on notice to investigate further. Buggay, 220 Ga. App. at 452 (3). This they failed to do. It follows that summary judgment should have been granted to Smith on this claim also.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.


author: Ruffin, Judge.

text:
    A01A0050.
    DUREN v. PACCAR, INC.
    (549 SE2d 755)
   Ruffin, Judge.

Peyton Duren was killed when a tractor-trailer truck manufactured by Paccar, Inc. collided with his pickup truck. Duren’s surviving spouse, Tammy Duren, sued Paccar, alleging the company is liable under state tort law for defectively designing and manufacturing the truck. Paccar moved for summary judgment, arguing that state law is preempted by federal law, which bars Duren’s claim. The trial court granted Paccar’s motion, and Duren appeals. For reasons that follow, we reverse.

Summary judgment is appropriate where the moving party establishes “that there is no genuine issue as to any material fact and that the [movant] is entitled to a judgment as a matter of law.” On appeal from the grant of summary judgment, we review the trial court’s judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.

Viewed in this light, the evidence shows that on the day of the incident, May 3, 1997, Mildred Anderson was driving a truck tractor pulling an empty trailer. Immediately before the fatal collision, Anderson applied her brakes to avoid hitting a car in front of her, causing the truck to suddenly jackknife and swerve into oncoming traffic. The truck ultimately collided with the car driven by Peyton Duren.

The truck Anderson was driving was made by Paccar and came off the manufacturing line on September 19, 1996. When Paccar manufactured the truck, it did not install any safety devices to prevent jackknifing during braking when the truck is pulling a lightly loaded trailer. At the time, there were three safety devices that Paccar could have installed on the truck to reduce the risk of jackknifing: an antilock braking system (“ABS”), a load sensitive proportioning valve (“LSV”), and a manual limiting valve (“MLV”).

Although Paccar maintains that it offered an ABS as “standard” equipment on the truck driven by Anderson, her employer, who leased the truck, stated that he was never informed of the need for an ABS or that it was available on the truck he leased. Instead, it appears that the dealership that ordered the truck merely deleted the “standard” ABS as a feature for the truck, without informing Anderson’s employer. According to Paccar’s manager of product safety and compliance, the cost of the ABS was then “returned to the dealer for not ordering ABS.” Thus, the truck was not equipped with an ABS, nor was it equipped with a LSV or a MLV, which were not available as either standard or optional features on the truck.

In her complaint, Duren alleged, among other counts, that Paccar is liable under state product liability law because the truck lacked a safety device to prevent it from jackknifing. In its motion for summary judgment, Paccar argued that the safety devices that it could have installed on the truck were not required under federal standards, which preempted state law. The trial court granted the motion, and on appeal Duren asserts that the trial court erred because the federal law concerning these safety devices did not preempt state tort law.

In addressing this issue, we note initially that as a general rule, “compliance with federal standards or regulations will not bar manufacturer liability for design defect as a matter of law.” This is because under the risk-utility analysis applied to claims of design defects, compliance with federal standards or regulations is only one factor, among many, that the jury may consider in deciding the question of reasonableness. Where, however, Congress has expressed its intent, through federal laws or regulations, that federal law should preempt state law, any state law that conflicts with the federal law “is without effect.” Federal law may preempt state law by: “(1) express preemption; (2) field preemption (regulating the field so extensively that Congress clearly intends the subject area to be controlled only by federal law); and (3) implied (or conflict) preemption.” Here, Paccar contends that the federal law expressly and impliedly preempts state law.

1. Express Preemption. To determine whether Congress intended to expressly preempt state product liability law, we must review the federal regulatory history concerning braking standards for heavy trucks such as the one involved here. The standard at issue, Motor Vehicle Safety Standard 121, was originally promulgated by the National Highway Traffic Safety Administration (“NHTSA”) in 1970 with a proposed effective date of January 1, 1972. The standard generally required a braking system which would stop a truck within a certain distance without the truck leaving its lane of travel. That standard, however, received considerable opposition from the truck manufacturing industry, and the effective date was postponed to 1974. Because that standard required the installation of an ABS, and there were unforeseen problems developing the new braking system, in 1978 the Court of Appeals for the Ninth Circuit suspended its implementation.

In the early 1990s NHTSA revisited braking standards for large trucks. In 1992, NHTSA issued an Advance Notice of Proposed Rulemaking which discussed the brake designs and equipment under consideration. After noting the relative merits of several braking systems, including ABSs and LSVs, NHTSA found that ABSs appeared “to be the most reliable method of preventing loss of stability and steering control,” and invited comment on its findings.

In 1993, after the comment period, NHTSA proposed amending Standard 121 to expressly require that all large trucks be equipped with ABS. On March 10, 1995, NHTSA published its final ruling requiring large trucks to be equipped with ABS. NHTSA reviewed industry recommendations concerning an implementation schedule for the revised Standard 121 and decided to adopt a schedule requiring that “truck tractors manufactured on or after March 1, 1997 [,] ... be equipped with ABS.” Consistent with this decision, NHTSA announced that the amendment would “become effective on March 1, 1997.” Standard 121 was thus amended to provide, in part, that “[e]ach truck tractor manufactured on or after March 1, 1997, shall be equipped with an antilock brake system.”

Duren points out that Standard 121 was not in effect when the truck was manufactured and argues that the absence of a standard cannot preempt state tort law proscribing the design and manufacture of dangerous and defective products. This is an overly broad interpretation of the law. More appropriately stated, a “federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left ¿¿reregulated, and in that event would have as much preemptive [effect] as a decision to regulate.” Such is the case “where the failure of federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.”

This is not such a case. Under the federal preemption statute applicable to motor vehicle safety standards, Congress gave states at least limited authority to impose their own standards. The statute provides that

[w]hen a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.

It is evident from a plain reading of this statute that, because the revised Standard 121 was not “in effect” when Paccar manufactured the truck in 1996, Congress and NHTSA intended to allow states to adopt their own braking standards for large trucks and, conversely, did not intend for the lack of an effective standard to preempt state tort law. Thus, until the effective date of the revised Standard 121, states would have been authorized to require manufacturers to install any of the various safety devices at issue, including ABSs, LSVs, or MLVs.

The United States Supreme Court seemingly construed the statute in this manner in Freightliner Corp. v. Myrick, relied on by Duren and decided only five weeks after NHTSA published its final ruling requiring ABS installation. In Myrick, the Court ruled that because the preemption provision applies only when there is no express federal standard “in effect,” and the only applicable standard had been suspended, the states were free to maintain their own safety standards. The Court further ruled that the absence of a federal regulation did not itself constitute regulation which preempted state law. This is because NHTSA did not affirmatively state that there should be no regulation; rather, the lack of a federal standard stemmed from the decision of the Ninth Circuit suspending the standard.

Conspicuously absent from the Court’s opinion, however, is any reference to NHTSA’s recent ruling which effectively lifted the suspension on Standard 121. Indeed, the Court observed that “to this day [NHTSA] still has not taken final action to reinstate a safety standard governing the stopping distance of trucks and trailers.” Paccar attributes the omission to the fact that the Court was considering only the “pre-revision Standard 121.” Alternatively, Paccar suggests that the Court “obviously was unaware” of the NHTSA ruling five weeks earlier.

It is unclear whether the Court in Myrick inadvertently overlooked the recently published amendment to Standard 121 or whether it considered the amendment irrelevant and therefore unworthy of discussion. It is clear, however, that unlike the truck at issue in the instant case, the trucks at issue in Myrick were manufactured several years before NHTSA even announced that it was revisiting the standard suspended by the Ninth Circuit. Thus, the amended standard clearly would not have applied to those trucks.

In any event, as stated above, “[w]hether federal statutes or regulations preempt state law is ‘a question of congressional intent.’ ” Based on the plain language of the federal preemption statute, which expressly preempts state law only when a federal “safety standard is in effect,” and NHTSA’s equally clear ruling that the amendment “become [s] effective on March 1, 1997,” Congress obviously did not intend to preempt state law until March 1, 1997.

Likewise, there is no evidence that Congress gave NHTSA exclusive authority to issue safety standards. Instead, the preemption statute clearly implies that states could impose safety standards on truck manufacturers until the federal government put a different standard “in effect.” And, even where a safety regulation is “in effect,” a savings clause enacted by Congress establishes that, under some circumstances, states are still authorized to impose stricter standards. Because Standard 121 was not “in effect,” we need not determine whether Congress intended the savings clause to have such significance in this case. For these reasons, we conclude'that, under the regulatory scheme at issue, federal Standard 121 did not expressly preempt state tort law.

2. Implied Preemption. Federal law may impliedly preempt state law where “state and federal law actually conflict, so that it is impossible to comply with both, or state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” In this case, Paccar argues that Duren’s common law claim frustrates the purposes and objectives of NHTSA in promulgating the revisions to Standard 121 and that the standard therefore impliedly preempts Duren’s state tort law claims.

Again, Duren relies on the Court’s decision in Myrick to support the argument that Standard 121 does not impliedly preempt state law. In Myrick, the Court ruled that the plaintiffs’ lawsuits did not

frustrate the accomplishment and execution of the full purposes and objectives of Congress. In the absence of a promulgated safety standard, the Act simply fails to address the need for ABS devices at all. Further, Standard 121 currently has nothing to say concerning ABS devices one way or the other, and NHTSA has not ordered truck manufacturers to refrain from using ABS devices. A finding of liability against petitioners would undermine no federal objectives or purposes with respect to ABS devices, since none exist.

It is questionable whether this reasoning applies here. As stated above, Myrick is distinguishable because the trucks at issue in that case were manufactured well before NHTSA even considered reinstating the ABS requirement. Thus, it is quite possible that the Court considered the reinstated and revised standard irrelevant. Furthermore, although the effective date of the revised Standard 121 was delayed two years, NHTSA promulgated the standard requiring installation of ABSs in trucks approximately eighteen months prior to the date the truck at issue was manufactured. For these reasons, we agree with Paccar that Myrick is distinguishable and does not preclude a finding of implied preemption.

However, we disagree with Paccar’s contention that the policy considerations justifying the delayed effective date of the ABS requirement would be frustrated by allowing Duren to maintain her state tort claims. Paccar analogizes this case to Geier v. American Honda Motor Co., where the United States Supreme Court recently considered the reasons underlying NHTSA’s phased-in implementation of an airbag safety requirement. In Geier, the plaintiff was injured in an automobile accident and sued Honda, the manufacturer of her automobile, because her car was not equipped with an airbag. An existing federal safety regulation required auto manufacturers to equip some, but not all, automobiles with airbags. In considering whether to recognize a state common law claim that all automobiles should have airbags, the Court looked to the legislative history and intent underlying the standard. This history, the Court found, made it

clear that the standard deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and [the standard] would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote [the standard’s] safety objectives.

Paccar contends that the same reasoning should apply here. It cites to the legislative history in which NHTSA discussed the implementation schedule for the new ABS requirement and argues that NHTSA favored a phased-in implementation to decrease the compliance costs, reduce the burdens on manufacturers, and allow manufacturers more time to engineer quality ABS installations. According to Paccar, requiring truck manufacturers to install an ABS prior to the standard’s effective date would frustrate the agency’s accomplishment of these objectives.

The legislative history reveals that during the comment period, the trucking industry advocated a phased-in implementation of the ABS requirement over a four-year period ending in 1999. The trucking industry argued that this was necessary “to allow manufacturers the opportunity to offer a wider selection of ABS[,] ... to provide time to improve existing systems [, and because] ... a phase-in was essential to users because it would allow experimentation with different systems, thereby increasing public acceptance of the ABS mandate.” NHTSA, however, rejected this proposal, favoring instead a schedule that would provide “efficient implementation of Congress’s desire that NHTSA require heavy vehicles to be equipped with ABSs. . . . Truck tractors, the vehicle type with the largest potential safety benefit from ABS, are required to comply with the rule first.” In rejecting the trucking industry’s request for a phased-in schedule for heavy trucks, NHTSA emphasized that such a schedule “would have resulted in needless and protracted delay, thereby resulting in a significantly less safe highway environment.” Importantly, NHTSA found that

[s]uch a delay is unnecessary given the current state of development for ABS. At the time of publication of this final rule, six of the seven major U. S. manufacturers of heavy trucks . . . have publicly announced that some or all of their product line of truck tractors, and in some cases single-unit trucks, will be equipped with ABS, as standard equipment, beginning with the 1995 model year. . . . Thus, it appears that the marketplace has already addressed [the industries’] concern that manufacturers cannot meet increasing market demand for ABS.

Thus, it does not appear that Duren’s state law claims frustrate the policy considerations raised by Paccar.

Paccar also argues that “[w]hen asked to clarify that states could not impose a retroactive mandatory requirement, through regulation or tort law, NHTSA responded by stating that states could only enforce a standard identical to the one promulgated by the Agency.” We read NHTSA’s response differently. NHTSA responded to the request for clarification by citing to the federal preemption statute, stating: “NHTSA notes that the statute (formerly known as the ‘National Traffic and Motor Vehicle Safety Act of 1966’) clearly addresses the issue of preemption at 49 USC [§] 30103 (b). That provision states that when a Federal motor vehicle safety standard is in effect, a State generally may only prescribe an identical standard.” Again, the effective date of the ABS requirement was March 1, 1997, six months after Paccar manufactured the truck at issue.

Finally, in support of its contention that Standard 121 impliedly preempts state law, Paccar cites a May 31, 1996 final ruling in which NHTSA made technical amendments to Standard 121. That ruling, according to NHTSA, “substantially clarifies and simplifies this safety standard without changing any of its substantive requirements.” As with the original ruling, the stated “effective” date was March 1, 1997, but under a section titled “Supplementary Information,” NHTSA noted that “Standard No. 121. . . will take mandatory effect on March 1, 1997, with optional compliance for vehicles manufactured before that date”

Though we agree with Paccar that this statement indicates that NHTSA intended to make compliance with Standard 121 temporarily optional, we disagree that this statement, standing alone, was intended to give the standard preemptive effect. We are unaware of any authority, and Paccar has cited none, which would require that an optional federal standard, that is not yet in effect, preempt state law. Furthermore, the intended purpose of the standard was to “reduce traffic accidents and deaths and injuries resulting from traffic accidents.” Considering this purpose, along with Congress’s “desire that NHTSA require heavy vehicles to be equipped with ABSs,” and NHTSA’s finding that in light of existing technology any delay would have been “needless,” a state law requiring such a safety device would not “stand [ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Decided May 30, 2001

Hicks, Casey & Barber, William T. Casey, Jr., Mark A. Barber, Mark W. Wortham, Buzzell, Graham & Welsh, Timothy K. Hall, Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, David S. Hagy, Catherine Smith-Jones, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, for appellee.

King & Spalding, Chilton D. Varner, Reynolds & McArthur, Charles M. Cork III, amici curiae.

Accordingly, we conclude that Standard 121 does not expressly or impliedly preempt Georgia’s tort law. The issue of whether Paccar’s failure to include an ABS, a LSV, or a MLV rendered the truck defective is for a jury to resolve. Although compliance with federal standards or regulations is probative of Paccar’s reasonableness under the risk-utility analysis, it is but “a piece of the evidentiary puzzle.” It follows that the trial court erred in granting Paccar’s motion for summary judgment.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 9-1L56 (c).

       See Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000); Gentry v. Volkswagen of America, 238 Ga. App. 785 (521 SE2d 13) (1999).

       To the extent that the trial court granted summary judgment to Paccar because Anderson’s employer rejected this “standard” equipment, the court erred. A factual issue clearly exists concerning whether the ABS was a standard feature or optional equipment.

        Doyle v. VolkswagenwerkAktiengesellschaft, 267 Ga. 574, 577 (481 SE2d 518) (1997).

       See id.

       (Punctuation omitted.) Gentry, supra at 787 (2).

       Id.

        See Paccar, Inc. v. Nat. Hwy. Traffic Safety Admin., 573 F2d 632, 636 (9th Cir. 1978).

       See id.

       See id. at 637.

       See id. at 640, 645-646.

       See 57 FR 24212 (1992).

       Id.

       Id.

       See 58 FR 50738 (1993).

       See 60 FR 13216 (1995).

       Id. at 13252.

       Id. at 13216.

       49 CFR § 571.121, S5.1.6.1 (b) (2001).

       (Punctuation omitted; emphasis in original.) Lewis v. Brunswick Corp., 107 F3d 1494, 1502 (11th Cir. 1997) (quoting Arkansas Elec. Cooperative Corp. v. Arkansas Public Svc. Comm., 461 U. S. 375, 384 (103 SC 1905, 1912, 76 LE2d 1) (1983)).

       (Punctuation omitted.) Id.

       (Emphasis supplied.) 49 USC § 30103 (b) (1) (2001) (formerly codified at 15 USC § 1392 (d)).

       514 U. S. 280 (115 SC 1483,131 LE2d 385) (1995).

       Id. at 286.

       See id.

       See id. at 287.

       Id. at 285-286.

        See Myrick v. Fruehauf Corp., 795 FSupp. 1139, 1140 (N.D. Ga. 1992).

        Irving v. Mazda Motor Corp., 136 F3d 764, 767 (11th Cir. 1998).

       60 FR 13216.

       See Geier v. American Honda Motor Co., 529 U. S. 861 (120 SC 1913, 1918, 146 LE2d 914) (2000) (discussing savings clause codified at 49 USC § 30103 (e) (2001), formerly codified at 15 USC § 1397 (k)).

       We note that the savings clause referenced above “does not bar the ordinary working of conflict pre-emption principles.” (Emphasis in original.) Id. at 869.

        Lewis, supra at 1500.

       (Citation and punctuation omitted.) Myrick, supra, 514 U. S. at 289-290.

       Supra; see note 32.

       Id. at 864-865 (discussing Federal Motor Vehicle Safety Standard 208).

       Id. at 875.

       60 FR at 13252.

       Id.

       (Emphasis supplied.) Id.

       (Emphasis supplied.) Id.

       60 FR 63965, 63976 (1995).

       61 FR 27288 (1996).

       (Emphasis supplied.) Id. at 27289.

       49 USC § 30101 (2001).

       60 FR at 13252.

       Id.

       (Punctuation omitted.) Lewis, supra at 1500.

        Doyle, supra at 577.


author: Ellington, Judge.

text:
    A01A0055.
    GEORGIA LIFE & HEALTH INSURANCE GUARANTY ASSOCIATION v. GILMAN PAPER COMPANY DEFERRED COMPENSATION SAVINGS & INVESTMENT PLAN.
    (549 SE2d 751)
   Ellington, Judge.

Georgia Life & Health Insurance Guaranty Association (“the Association”) appeals from the trial court’s order granting summary judgment in favor of Gilman Paper Company Deferred Compensation Savings & Investment Plan (“the Plan”) and from the order denying the Association’s motion for summary judgment. This suit arises from the Plan’s purchase of a guaranteed interest contract (“GIC”) from a life insurance company that later went bankrupt. The Plan requested coverage for losses attributable to the GIC from the Association’s guaranty fund because the Plan had participants residing in Georgia. The Association, however, denied coverage because the GIC was an unallocated annuity contract and the Plan trustee and holder of the GIC was not a Georgia resident, as required under OCGA § 33-38-2 (b) (2). The Plan sued the Association pursuant to OCGA § 33-38-1 et seq.,.seeking to recoup its participants’ losses. Both parties moved for summary judgment. On July 1, 2000, the trial court, without opinion, denied the Association’s motion for summary judgment and granted the Plan’s motion. It is from this order that the Association appeals. Because we find that the GIC at issue is an unallocated annuity contract held by a nonresident trustee, and is, therefore, excluded from coverage under OCGA § 33-38-2 (b) (2), we must reverse the order of the trial court.

The standards applicable to motions for summary judgment were announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In reviewing a grant of summary judgment, this Court conducts a de novo review of the law and of the evidence, Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997), giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). So viewed, the record reveals the following.

The Plan is a defined contribution plan established by Gilman Paper Company, a Delaware corporation based in New York, New York. The Plan, established pursuant to the Employee Retirement Income Security Act, 29 USC § 1001 et seq., and § 401(k) of the Internal Revenue Code, was designed to permit employees to save part of their incomes on a tax-deferred basis for the purpose of retirement or other significant life events. The participants contributed to the Plan by payroll deduction. They could choose from among a variety of investment fund options, could divide their contributions among those options, and could move their investment from one fund into another. However, the participants did not control investment decisions made within the funds. Those decisions were made by the Plan’s investment committee.

In November 1987, the Plan invested in a GIC from Executive Life Insurance Company (“ELIC”). The ELIC GIC was issued to T. Rowe Price Company, the Plan’s trustee and a resident of Baltimore, Maryland. In 1990, the Bank of New York, a New York resident, replaced T. Rowe Price as trustee. The GIC became an asset of the Plan’s Fixed Income Fund. The Association presented expert testimony explaining that a GIC is a contract issued by an insurance company which provides a guaranteed return on funds deposited with it. A GIC is a vehicle for providing a fixed rate of interest for plan participants upon their retirement. The ELIC GIC was a standard annuity contract paying a fixed annual interest of 9.4' percent. It was issued to the Plan’s corporate trustee and not to any individual plan participant. The GIC explicitly provided: “The Trustee of the Plan named in the application is the Owner of this contract at issue. . . . The Owner may exercise every contract right and enjoy every contract privilege without the consent of any participant. Any surrender or withdrawal will be made by the Company only at the Owner’s written request.” There was no evidence adduced showing that any individual plan participant had an identifiable interest or specific allocation in this GIC or in any other GIC in the Fixed Income Fund. Further, the instrument creating the Plan itself provided that “[t]he sole interest of each Participant and his respective Beneficiaries under the Plan shall be to receive the benefits provided for hereunder as and when the same shall become due and payable with the terms hereof, and neither any Participant nor any such Beneficiary shall have any right, title, or interest in or to any asset of the Plan.”

In 1991, ELIC was declared insolvent and ordered liquidated by the courts of its domicile state, California. At the time of ELIC’s insolvency, the Bank of New York had already replaced T. Rowe Price as the Plan’s trustee. ELIC’s bankruptcy estate paid the Plan about 60 percent of the value of the GIC. The Plan later filed a claim with the Association seeking compensation from the Association’s guaranty fund for any remaining losses. Finding that the ELIC GIC was unallocated and that the trustee who held the GIC was a nonresident, the Association denied coverage under OCGA § 33-38-2 (b) (2). For the reasons which follow, we agree that the Association’s coverage decision was correct as a matter of law and that the trial court should have entered summary judgment in its favor.

1. The Plan’s ELIC GIC is an unallocated annuity contract. The Georgia legislature adopted with few modifications the Life & Health Insurance Guaranty Association Model Act drafted by the National Association of Insurance Commissioners. See Ga. L. 1981, pp. 1336, 1337, § 1; Oxendine v. Commr. of Ins. of North Carolina, 229 Ga. App. 604, 606 (1) (494 SE2d 545) (1997). Although the term “unallocated annuity contract” is not defined in the Georgia Life & Health Insurance Guaranty Association Act, OCGA § 33-38-1 et seq., we are guided by the definition provided in the Model Act upon which the Georgia Act is based. In 1985, the Model Act was amended to provide: “ ‘Unallocated annuity contract’ means any annuity contract or group annuity certificate which is not issued to and owned by an individual, except to the extent any annuity benefits are guaranteed to an individual by an insurer under such contract or certificate.” Life & Health Insurance Guaranty Association Model Act of 1985, § 5 (N).

The Association presented expert testimony on the-industry definition of an unallocated annuity contract, a definition consistent with thát contained in the Model Act. The expert stated that “unallocated annuity” and “unallocated funding obligation” are “terms of art connected with the fields of insurance and pension plan funding.” He explained that with an allocated funding obligation, the insurer assumes the-employer’s duty to pay specific benefits to specific participants; however, in an unallocated funding obligation, the insurer has no contractual responsibility to the individual plan participants. Further, the expert opined that in the case of the ELIC GIC, “where there is only one owner of the contract, the plan trustee, and the contract contains no commitment from the insurer to individual plan participants, nor any allocation or apportionment by the insurer of contract interests to the individual plan participants, the annuity or funding agreement is considered unallocated.” The expert’s definition of an unallocated annuity contract and the expert’s opinion that the ELIC GIC meets that definition are conclusions supported by case law from other jurisdictions. See, e.g., Dynamic Systems v. Boozell, 312 111. App.3d 326 (726 NE2d 1156) (2000); Unisys Corp. v. Texas Life &c. Ins. Guaranty Assn., 943 SW2d 133 (Tex. App. 1997).

In Unisys Corp., the Texas Court of Appeals, considering an ELIC GIC like the one at issue here, explained:

For purposes of enhancing investments for retirement, insurance companies may issue contracts to corporate entities charged with financial management of large sums of money. These [ELIC GICs] were such contracts; under their terms, no policy was issued to participating employees until the employee exercised the option to request the bank trustee to direct Executive Life to contract individually with the participant. . . . The contracts indicate that Executive Life made no guarantees to anyone other than the bank trustee. Specifically, the “trustee may exercise every contract right and enjoy every contract privilege without the consent of any participant.” The participants had no contractual remedy against Executive Life in the event the bank trustee acted contrary to their wishes. Executive Life did not owe an individual participant any benefits until the participant exercised the election, through the bank trustee, to contract separately and individually with Executive Life. Because no benefits were guaranteed to any individual plan participant, the Executive Life contracts do not fall within the exception to unallocated annuity contracts.

(Emphasis in original.) Id. at 138.

Because the evidence shows that the ELIC GIC was a typical annuity contract bearing interest át a fixed rate, that it was neither issued to nor owned by any individual plan participant, that its sole owner at the time of ELIC’s insolvency was a corporate plan trustee, and that the GIC itself provided that no plan participants have any rights of ownership, we hold the GIC was an unallocated annuity contract. See Dynamic Systems, 312 111. App.3d at 332-335; Unisys Corp., 943 SW2d at 140.

2. Coverage for the Plan’s ELIC GIC is limited by statute. The Georgia Life & Health Insurance Guaranty Association Act was enacted for this express purpose:

[T]o protect policy owners, insureds, beneficiaries, annuitants, payees, and assignees of life insurance policies, health insurance policies, annuity contracts, and supplemental contracts, subject to certain limitations, against failure in the performance of contractual obligations due to the impairment or insolvency of the insurer issuing such policies or contracts.

(Emphasis supplied.) OCGA § 33-38-1. To provide this protection, the Association assesses its member insurers to fund a guaranty pool from which benefits may be paid to covered claimants. Id. The Act provides coverage for “unallocated annuity contracts issued by [its] member insurers, except as limited by this chapter .” (Emphasis supplied.) OCGA § 33-38-2 (a). “[I]n the case of unallocated annuity contracts,” coverage under the Act extends only “to the persons who are the contract holders and who . . . [a]re residents.” OCGA § 33-38-2 (b) (2) (A). Further, “ ‘[r]esident’ means any person who is domiciled in this state at the time a member insurer is determined to be an impaired or insolvent insurer and to whom contractual obligations are owed. A person may be a resident of only one state, which, in the case of a person other than a natural person, shall be its principal place of business.” OCGA § 33-38-4 (13). The Plan does not contest the fact that its trustee is a nonresident. Coverage for unallocated annuity contracts under the Act is limited, “[w]ith respect to any one contract holder covered by an unallocated annuity contract . . . [to] $5 million in benefits irrespective of the number of such contracts held by that contract holder.” OCGA § 33-38-7 (9). Thus, the plain language of the Act provides up to $5 million in coverage for unallocated annuity contracts, but only when those contracts are held by Georgia residents, or by nonresidents when the issuing insurer was domesticated in Georgia, neither of which is the case here. As explained in Division 1 above, the Plan’s trustee is the sole holder and owner of the ELIC unallocated annuity contract. The Plan’s trustee was a resident of New York. Because, at the relevant time, the ELIC GIC was owned by a nonresident trustee, the Plan failed to carry its burden of showing it was entitled to coverage. Consequently, the trial court erred in granting the Plan’s motion for summary judgment and denying the Association’s motion for summary judgment.

Decided May 30, 2001.

Mabry & McClelland, Wilbur C. Brooks, Chambers, Aholt & Rickard, Dale C. Ray, Jr., for appellant.

John D. Marshall, for appellee.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.

       We reject the Plan’s argument that because the plan participants were “beneficial owners” of the GIC, it was allocated. Every court that has considered this argument in like circumstances has rejected it. See, e.g., Bennet v. Virginia Life, Accident &c. Assn., 251 Va. 382 (468 SE2d 910) (1996); Dynamic Systems, 312 111. App.3d at 332-335; Unisys Corp., 943 SW2d at 140. As the Unisys court explained, “Individual contributors do not ‘own’ or ‘hold’ contracts over which they have no control and in which they are allocated no benefits until they have elected to create individual contracts with Executive Life via the bank trustee.” Unisys Corp., 943 SW2d at 140.


text:
    A01A0271.
    ARMSTRONG v. THE STATE.
    (549 SE2d 545)
   Ruffin, Judge.

A jury found Jamie Armstrong guilty of criminal attempt to violate the Georgia Controlled Substarices Act. On appeal, Armstrong challenges the sufficiency of the evidence. Armstrong also asserts that the trial court erred in denying his motion to suppress and in admitting two letters into evidence without proper authentication. Armstrong’s assertions lack merit, and we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the evidence shows that Armstrong, Shameik Blount, and Raymond Hines lived in North Carolina. Blount had known Armstrong since junior high school, and Hines had known Armstrong since high school.

In February 1999, the three men drove to Atlanta, Georgia, to an apartment shared by two brothers, Yusef and Kairi Alexander. According to Blount, both he and Armstrong had nine millimeter semi-automatic guns that they wanted to trade for marijuana. Blount and Armstrong showed the guns to Yusef, who then placed a call to Rufus Caster. Yusef believed Caster would be able to obtain the marijuana. The next day, Caster came to the apartment, and Blount and Armstrong showed him their guns. Caster indicated that he would provide a pound of marijuana in exchange for one gun.

Caster left, and when he returned, he had a bag full of marijuana. Blount testified that Caster wanted both guns in exchange for the bag of marijuana, which evidently amounted to less than two pounds. However, Caster agreed to accept one gun in exchange for the drugs, and he took Blount’s. Armstrong kept his gun. Caster asked Blount for some bullets, which Blount provided.

After the exchange took place, a shot was fired in the apartment. No one saw who fired the shot, but it struck Caster in the head and killed him. Armstrong grabbed the bag of marijuana, and he, Blount, and Hines fled the apartment and drove back to North Carolina. Blount and Armstrong were subsequently arrested and extradited to Georgia. While the two men were in jail, Blount received two, unsigned notes, addressed to him, threatening him if he “snitched.” Blount testified that, after receiving these notes, he saw Armstrong, who made what Blount believed was a threatening gesture.

According to Hines, on the drive from Georgia to North Carolina, Armstrong threatened to kill him and his family if he told anyone what had happened. Hines testified that, to avoid putting his family in danger, he fled to New York, where he remained for almost one year. After he returned to North Carolina, he, too, was arrested and extradited to Georgia to face criminal charges.

Armstrong, Blount, and Hines were charged with murder, felony murder, and attempt to violate the Georgia Controlled Substances Act. Prior to trial, Blount and Hines pled guilty to the drug charge and agreed to testify for the State. During the trial, both Blount and Hines testified that Armstrong rode with them to Georgia. In addition, Yusef and Kairi Alexander identified Armstrong as the man who arrived with Blount.

Notwithstanding this eyewitness testimony placing Armstrong at the scene of the crime, Armstrong took the stand and denied going to Georgia with Blount and Hines. To buttress his defense, Armstrong introduced the testimony of his mother and girlfriend, who claimed that Armstrong was in North Carolina when the crimes took place. The jury evidently found this testimony incredible. Although the jury acquitted Armstrong of murder and felony murder, it convicted him of attempting to violate the Georgia Controlled Substances Act.

Contrary to Armstrong’s contention on appeal, this evidence is sufficient to support his conviction. Indeed, given the testimony of Blount and Hines, the evidence of Armstrong’s guilt can fairly be characterized as overwhelming. “As for the believability of [Armstrong’s] alibi evidence and the credibility of the witnesses, those were matters to be resolved by the . . . factfinder.” Here, the jurors, as the factfinders, were clearly authorized to reject the testimony of Armstrong’s mother and girlfriend. Because the evidence was sufficient to support Armstrong’s conviction, we affirm.

2. Armstrong alleges as error the trial court’s failure to suppress evidence of his identification during a pretrial lineup and at trial. Specifically, Armstrong argues that his identification at trial by Yusef and Kairi Alexander was tainted by an impermissibly suggestive prior photo array shown to these witnesses. In determining whether a pretrial identification procedure violates due process, the test is whether the procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” In evaluating whether there is such substantial likelihood of misidentification, the factors considered include: the witness’ opportunity to observe the defendant at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description; the level of certainty demonstrated by the witness at the time of identification; and the length of time between the crime and the identification.

Here, we find no danger of irreparable misidentification as both Yusef and Kairi Alexander had ample opportunity to observe Armstrong. Both brothers testified that Armstrong was in and out of their apartment over a two-day period. In fact, Yusef spent a significant amount of time with Armstrong, playing cards with him and riding in a car with him. As the Alexanders’ association with Armstrong was far from fleeting, we find it highly unlikely that the photo lineup resulted in their misidentification of Armstrong.

Moreover, a claim of an impermissibly suggestive lineup is subject to a harmless error analysis. Pretermitting whether the lineup was suggestive, both Blount and Hines, who had known Armstrong for years, placed him at the scene of the crime. Thus, any error in admitting Yusef’s and Kairi’s identification of Armstrong was harmless.

Decided May 30, 2001.

Sara M. Yeager, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Kristin L. Wood, Assistant District Attorneys, for appellee.

3. On appeal, Armstrong contends that the trial court erred in admitting evidence of the two notes Blount received while in jail. Armstrong argues that the letters were not properly authenticated and should have been excluded. We disagree. “Authentication of a writing may be proved by circumstantial evidence.” Here, the notes Blount received threatened him if he “snitched.” According to Blount, Armstrong was the only person against whom he had agreed to testify. Given this fact, there is at least circumstantial evidence that Armstrong penned the notes. Assuming, for the sake of argument, that the notes were not properly authenticated, Armstrong still would not be entitled to reversal. Given the overwhelming evidence of Armstrong’s guilt, any alleged error would be harmless.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       The jury acquitted Armstrong of murder and felony murder charges.

       See Bluain v. State, 242 Ga. App. 125 (1) (529 SE2d 155) (2000).

       See Knight v. State, 242 Ga. App. 363, 364-365 (1) (528 SE2d 855) (2000).

        Shepherd v. State, 245 Ga. App. 386, 387 (1) (537 SE2d 777) (2000).

       Id.

       (Punctuation omitted.) McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993), overruled in part on other grounds, Jones v. State, 272 Ga. 900, 901-903 (2) (537 SE2d 80) (2000).

       See Marshall v. State, 233 Ga. App. 573, 575 (2) (a) (504 SE2d 764) (1998).

       See id. at 576.

       See McGee, supra.

       See id.

       (Punctuation omitted.) Weathers v. State, 198 Ga. App. 871, 872 (3) (403 SE2d 449) (1991).

       Id.

       See Malaguti v. State, 273 Ga. 398, 403 (3) (543 SE2d 1) (2001).


author: Smith, Presiding Judge.

text:
    A99A1860. A99A1861.
    GEORGIA PUBLIC SERVICE COMMISSION et al. v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION. GEORGIA POWER COMPANY v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION.
    (550 SE2d 413)
   Smith, Presiding Judge.

In Ga. Public Svc. Comm. v. Sawnee Elec. Membership Corp., 242 Ga. App. 156 (529 SE2d 186) (2000), this court considered the trial court’s order concerning the applicability of the large load exception to the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq. We concluded, that the trial court erred in reversing the decision of the Public Service Commission, which had found the exception to be applicable under the particular facts of the case. Our decision was reversed in Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702 (544 SE2d 158) (2001). Our decision in this case is therefore vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed.

Decided May 31, 2001.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Alan Gantzhorn, William R. Phillips, Assistant Attorneys General, for appellant (case no. A99A1860).

Troutman Sanders, Kevin C. Greene, Susan P. Wilkerson, for appellant (case no. A99A1861).

Sutherland, Asbill & Brennan, James A. Orr, Charles B. Jones III, for appellee.

McCullough Sherrill, John A. Sherrill, Corin M. McCarthy, amici curiae.

Judgments affirmed.

Pope, P. J., and Miller, J., concur.


author: Johnson, Presiding Judge.

text:
    A01A0750.
    HILL v. THE STATE.
    (552 SE2d 430)
   Johnson, Presiding Judge.

Craig Hill was indicted for fourteen offenses, including six armed robberies and an aggravated assault. On April 8, 1992, while represented by counsel, Hill pled guilty to four counts of armed robbery, and the state agreed not to prosecute the remaining counts. On May 7, 1992, the trial court sentenced Hill to four life sentences, to be served concurrently. The same day, Hill’s attorney filed an application to have the sentences reviewed by the superior court sentence review panel. The sentence review panel affirmed Hill’s sentences.

In October 2000, Hill filed a “Motion to Correct Sentence.” In it, he claimed that the sentences imposed on the guilty pleas were void because (1) the sentences were outside the legal limits of the law at the time of sentencing, and (2) they resulted from his receiving ineffective assistance of counsel. The trial court denied the motion, holding that the sentences were legally imposed and noting that it was without authority to modify the sentences outside of the term in which they were imposed. We agree with the trial court and affirm, adding that Hill’s contention regarding ineffective assistance of counsel is not reviewable by this Court.

Decided May 31, 2001.

Craig Hill, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

1. In general, a motion to vacate a sentence is not an appropriate remedy in a criminal case after the term in which the judgment was entered has passed. An exception exists where a sentence is void, i.e., where the court has imposed punishment which the law does not allow. However, Hill’s sentences are lawful. Life imprisonment is authorized for armed robbery, just as it was at the time of Hill’s sentencing. And, contrary to Hill’s position, it is well settled that the giving of a life sentence does not violate statutory authority mandating that a sentence be for a determinate number of years.

2. Inasmuch as Hill’s ineffective assistance of counsel claim was not discussed in the plea and sentencing hearing, and there is no transcript of a post-plea hearing, the merits of that claim cannot be determined wholly by. reference to the existing record. Because the claim requires development in a post-plea hearing, Hill’s remedy is to pursue a habeas corpus action.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998).

       Id.

       See OCGA § 16-8-41 (b); Williams v. State, 208 Ga. App. 716 (1) (431 SE2d 469) (1993).

       See Parker v. State, 216 Ga. App. 649 (455 SE2d 360) (1995); Null v. State, 216 Ga. App. 641, 642-643 (455 SE2d 359) (1995).

       See Hodges v. State, 271 Ga. 466 (520 SE2d 689) (1999); Grantham v. State, 267 Ga. 635, 636 (481 SE2d 219) (1997).


author: Andrews, Presiding Judge.

text:
    A01A0704.
    MONTGOMERY v. THE STATE.
    (549 SE2d 463)
   Andrews, Presiding Judge.

Maurice Montgomery appeals from the judgment of conviction entered on a jury verdict finding him guilty of trafficking in cocaine by possessing over 200 grams of a substance containing a mixture with a purity of ten percent or more of cocaine in violation of OCGA § 16-13-31. We find no error and affirm the judgment of conviction.

1. Montgomery claims the evidence was insufficient to support the conviction.

In support of the trafficking charge, the State produced direct and circumstantial evidence showing that Montgomery went to Kendall Caldwell’s house to complete a drug deal involving cocaine and that the deal went bad and the other parties involved, Caldwell and Jason Tillman, attacked and shot Montgomery.

Caldwell’s next-door neighbor, Esson, testified that he saw Montgomery arrive at Caldwell’s house driving a Ford Explorer and saw him enter the house wearing a black leather jacket. A few minutes later Esson heard gunfire from Caldwell’s house and saw Caldwell jumping out a window from the house. Esson then saw a man wearing a red sweatshirt run out of Caldwell’s house and drive off in the Ford Explorer, followed by Caldwell, who drove off in a white car. Another neighbor, who lived two doors down from Caldwell’s house, testified that shortly after he heard a gunshot, Montgomery appeared at his front door. Montgomery, who was bleeding and wearing only boxer shorts and one shoe, pounded on the door yelling that someone was trying to kill him.

Police responded to a 911 call reporting the shooting and describing the suspects and the cars they were driving. Based on this information, police stopped a Ford Explorer driven by Tillman, who was wearing a red sweatshirt, and stopped a white Acura driven by Caldwell. Tillman was covered in blood, and a Ruger .45 caliber handgun missing the ammunition clip was recovered from the front driver’s side floorboard. Caldwell had $3,200 in his pocket, and a spent shell casing fell from his clothing when he exited the car. Following a trail of blood to a neighbor’s house, police found that Montgomery had broken into the house and was lying inside barely conscious, bleeding from a gunshot wound to his leg and other wounds to his head and arms.

Inside Caldwell’s house, police saw broken furniture and glass and blood splattered around the house. A bloody black leather jacket was lying on the floor with one sleeve pulled inside out. Also found in the house were pants with a gunshot hole through one of the legs, a torn t-shirt, a bloody sock, and an ammunition clip for a Ruger .45 caliber handgun. A wallet containing Montgomery’s driver’s license was found in the pants.

When a police officer picked up the black leather jacket, a bag containing a substance suspected to be cocaine fell out of the jacket. The substance was weighed and tested at the Georgia State Crime Lab and found to be 247.9 grams of a substance containing 61 percent cocaine.

Montgomery gave a statement in which he told police he was visiting with his friend, Caldwell, when he was attacked by Tillman and Caldwell for no apparent reason. He said he was beaten in the head with a gun, shot in the leg by Caldwell, and had his clothes pulled or ripped off, at which point he escaped and ran to an adjacent house for help. When asked about the black leather jacket found at Caldwell’s house, Montgomery denied having any knowledge of the jacket or of the cocaine found in the jacket. Despite evidence of extremely cold weather conditions on the day at issue, Montgomery said he was wearing only a t-shirt when he arrived at Caldwell’s house. In prior sworn testimony given by Montgomery at a bond hearing, he said that he did not see a black leather jacket inside Caldwell’s house and that neither Caldwell nor Tillman was wearing a jacket.

In testimony given at the trial, Montgomery again denied knowledge of the black leather jacket or of the cocaine and repeated the version of events he gave in his earlier statement to police. He also presented witnesses who testified that he was not wearing a jacket on the day at issue.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the guilty verdict, and the defendant no longer enjoys a presumption that he is innocent of the charges. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). Although there were contradictions in the evidence, it was the jury’s duty in reaching its verdict to weigh the evidence and determine the credibility of the witnesses. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). The evidence, both direct and circumstantial, was sufficient to allow the jury to reach the reasonable conclusion that, when Montgomery arrived at Caldwell’s house, he was wearing the black leather jacket that police later found inside the house containing over 200 grams of 61 percent pure cocaine; that Montgomery either brought the cocaine to the house or obtained it after he arrived there in the course of an attempted drug deal; and that the bloodstained jacket containing the cocaine was forcibly pulled off Montgomery’s body, leaving one sleeve pulled inside out during a struggle that erupted during the attempted deal. The evidence was sufficient to exclude every reasonable hypothesis save that of Montgomery’s guilt and to allow the jury to conclude that he was guilty beyond a reasonable doubt of trafficking in cocaine. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Montgomery claims the trial court erred by allowing a police officer to testify that the black leather jacket appeared to belong to Montgomery when this was an issue of fact for determination by the jury.

Before the officer gave the objected-to testimony on redirect, he had been subjected to the following cross-examination by defense counsel:

Q: And he [Montgomery] denied that the black jacket was his?
A: That’s correct.
Q: At that point, you were not really sure who was in possession of this cocaine, were you? You had three suspects, right?
A: At that point, yes, sir.
Q: So you charged all of them, didn’t you?
A: We charged the other two with the assault on Mr. Montgomery. We also charged them with the trafficking charge because it was found in that house, and we charged Mr. Montgomery because it appeared it was his jacket, and he was also in the house.
Q: When you say it was in his jacket, he denied that was his jacket, didn’t he?
A: Yes, he did.
Q: And at that point, the young man, Esson, who had given a statement, said he saw someone getting out with a black jacket on?
A: Uh-huh (affirmative).

It was not improper for the prosecutor to follow up on the above line of questioning pursued on cross-examination that was intended to cast doubt on whether the police had any basis to charge Montgomery with trafficking in cocaine. On redirect, the prosecutor was allowed to show that the officer charged Montgomery with trafficking because, based on the information he gathered, he had a reasonable belief that the jacket containing the cocaine belonged to Montgomery. This was not an improper invasion of the jury’s determination on an ultimate issue of fact. Compare Williams v. State, 254 Ga. 508, 510-511 (330 SE2d 353) (1985).

3. Montgomery contends the trial court should have sua sponte granted a mistrial when a police officer made a reference to statements given by Montgomery’s co-defendants, who were tried separately and were not called by the State as witnesses at Montgomery’s trial. The statements had been excluded as hearsay by the trial court’s grant of a motion in limine.

The reference at issue came during cross-examination and immediately after the quoted sequence of testimony set forth in Division 2, above, in which defense counsel was attempting to show that police did not have any basis for charging Montgomery with trafficking in cocaine.

Decided May 16, 2001

Reconsideration dented June 1,2001

Sexton & Sexton, Giles D. Sexton, James D. Sexton, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Q: When you say it was in his jacket, he denied that was his jacket, didn’t he?
A: Yes, he did.
Q: And at that point, the young man, Esson, who had given a statement, said he saw someone getting out with a black jacket on?
A: Uh-huh (affirmative).
Q: That’s why Mr. Montgomery was charged?
A: We had that statement as well as statements from the other two defendants.
The Court: Well, no. All we are talking about are the statements of witnesses that are here today.

Defense counsel made no objection or motion for a mistrial after the officer referred to “statements from the other two defendants.” Assuming defense counsel was not required to object or move for a mistrial to preserve a claim that the motion in limine order was violated (Reno v. Reno, 249 Ga. 855 (295 SE2d 94) (1982)), and further assuming that the claimed error was not induced by counsel’s question, we nevertheless conclude that the brief reference to the existence of the statements in this context was not error. Although the statements were excluded as hearsay by the grant of the motion in limine, the record shows that the officer did not refer to their substance in an effort to prove the truth of matters asserted therein, but referred to the statements only to explain why he arrested Montgomery and charged him with trafficking in cocaine. This testimony was admissible under OCGA § 24-3-2, not as hearsay, but as original evidence to explain conduct. Davis v. State, 242 Ga. 901, 906 (252 SE2d 443) (1979).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       Montgomery, Caldwell, and Tillman were named as co-defendants in a six-count indictment. Montgomery was tried separately from his co-defendants after a severance motion was granted.


author: Phipps, Judge.

text:
    A01A0787, A01A0893.
    CENTRE POINTE INVESTMENTS, INC. v. FRANK M. DARBY COMPANY (two cases).
    (549 SE2d 435)
   Phipps, Judge.

The Frank M. Darby Company sued Centre Pointe Investments, Inc. to recover a brokerage commission it allegedly had earned in negotiating a lease between Centre Pointe and a nonparty, ICTS. A jury found that the Darby Company was the procuring cause of the lease and awarded it damages under a theory of quantum meruit. The jury also found that the Darby Company was entitled to attorney fees and litigation expenses, which the trial court later awarded.

In Case No. A01A0787, Centre Pointe appeals the damages award, arguing that the Darby Company was not the procuring cause of the lease, that the Darby Company failed to prove quantum meruit damages, and that the trial court improperly admitted evidence of settlement negotiations. In Case No. A01A0893, Centre Pointe appeals the award of attorney fees, arguing that there was no evidence it acted in bad faith. For reasons that follow, we affirm in both cases.

At trial, real estate broker Kevin Darby testified that on December 12, 1997, he received a call from F. B. Ayazi, who represented a company called ICTS that was seeking commercial office space in Atlanta. Darby compiled listings of various properties, including a building owned by Centre Pointe, and showed them to Ayazi on December 16. Ayazi expressed interest in the Centre Pointe property. He asked Darby to find out if Centre Pointe could meet several unique requirements of ICTS and to solicit a lease proposal. Darby did so.

On December 17, Rodney Scogin of Centre Pointe faxed Darby a “proposal that attempts to accommodate your client.” Darby relayed the proposal to Ayazi and took him to see the property. Based on additional requests from Ayazi, Darby faxed a counterproposal to Scogin.

On December 19, Scogin faxed Darby a revised proposal incorporating the additional requests. Again, Darby relayed the proposal to Ayazi, with information about another building in which Ayazi had expressed interest. Ayazi told Darby that he was considering both the Centre Pointe building and another property and wanted to consider his options over the holidays.

Also on December 19, Darby faxed Scogin a copy of the Darby Company’s standard commission agreement, which calls for payment by the landlord of the first month’s rent plus four percent of the remaining lease payments. According to Darby, this “first and four” arrangement is the standard broker commission in metro Atlanta for commercial office leases. Scogin did not respond to Darby’s fax of the commission agreement, which Darby interpreted to mean that “there was no problem” with it.

In early January 1998, Darby called Ayazi “to restart negotiations and find out if [ICTS was] ready to move forward” on the Centre Pointe property. Ayazi told Darby to contact Scogin and continue the negotiations. Darby called Scogin, who said that he had received a letter from Ayazi stating that the Darby Company was no longer representing ICTS in the transaction. Darby repeatedly tried to contact Ayazi, who would not return his phone calls. According to Darby, Ayazi never told him that ICTS was terminating the Darby Company’s services.

Darby asked Scogin to fax him a copy of the letter from Ayazi to Centre Pointe. The letter stated that ICTS wanted to negotiate directly with Centre Pointe, and it contained several counterproposals to Centre Pointe’s revised lease proposal. Darby did not receive a copy of the letter, which was dated January 2, 1998, until after this litigation began.

Darby testified that he had asked Scogin if the Darby Company “would be protected on the deal and still paid our . . . full commission,” and that Scogin had said, “don’t worry about it. . . you’re fine, you’re protected. ... It just seems Mr. Ayazi wants to negotiate some final detail points.” According to Darby, it was not unusual for a tenant to negotiate final details of a lease agreement directly with the landlord, and in such cases the broker still would receive its commission. Darby wrote Scogin a letter on January 5, 1998, confirming that pursuant to their conversation, the Darby Company would receive a full commission in the event a lease was signed and would put forth its best efforts to consummate a deal. Centre Pointe did not respond to the letter.

Darby testified that he contacted Scogin several times regarding the status of the deal and Scogin never indicated an intention not to pay the Darby Company’s commission. Eventually, on January 9, Scogin told Darby that ICTS and Centre Pointe had signed a lease. According to Darby, Scogin reiterated that Centre Pointe would pay the broker commission and offered to send Darby copies of the pertinent pages of the lease so that the Darby Company could calculate the commission. Those pages were sent on January 15. That same day, the Darby Company sent Centre Pointe an invoice for $50,818.08 for its commission.

Centre Pointe did not pay the invoice. Darby called Scogin, who, he claimed, “made a variety of excuses” for the nonpayment, including ICTS’s tenuous financial situation and questions regarding the validity of the lease. In mid-February 1998, Scogin offered to pay the Darby Company five percent of the lease payments, but Darby refused to accept that amount.

In April 1998, the Darby Company sued Centre Pointe to recover the commission as billed, alleging theories of breach of contract, procuring cause, and quantum meruit. At trial, the jury rejected the contract claim, but found that the Darby Company was the procuring cause of the lease and was entitled to quantum meruit damages in the amount of $50,818.08. The jury also concluded that the Darby Company was entitled to attorney fees. After an evidentiary hearing, the court awarded attorney fees in the amount of $37,342.

Case No. A01A0787

1. To recover a commission under a quantum meruit theory, the Darby Company must show that (1) it performed services valuable to Centre Pointe; (2) Centre Pointe knowingly accepted those services; (3) it would be unjust for Centre Pointe to accept the services without compensating the Darby Company; (4) the Darby Company expected compensation when it rendered the services; and (5) the Darby Company was the procuring cause of the lease. To prove that it was the “procuring cause” of a lease, a broker ordinarily must show that “there were negotiations still pending between the broker and the prospective [tenant] and that the owner was aware that negotiations were still pending at the time he consummated the [lease].” However,

where the owner knowingly interferes with the negotiations between the [tenant] and the broker, it becomes unnecessary to show negotiations were pending when the [lease] was consummated. [Cits.] The broker can thus make out a prima facie case by showing “that negotiations for the [lease] were set on foot through his efforts, that he performed every service required by his employment which it was possible to perform, and that the failure on his part to personally consummate the trade was due to the interference of the defendant.”

Centre Pointe contends that the Darby Company was not the procuring cause of the lease and that it did not knowingly accept the Darby Company’s services. The Darby Company’s theory at trial was that Centre Pointe and ICTS colluded to exclude the Darby Company from the deal before the lease was consummated. Centre Pointe claims there was no evidence it interfered with any negotiations between the Darby Company and ICTS. Centre Pointe points to Darby’s testimony that he had “no clue” why ICTS terminated the Darby Company’s brokerage services.

We affirm the jury’s verdict if there is any evidence to support it. Taken in the light most favorable to the Darby Company, the evidence showed that the timing and circumstances of ICTS’s termination of the Darby Company’s services were suspicious. ICTS and Centre Pointe signed a lease just seven days after the termination. Darby learned of the termination not from Ayazi, who had told him to continue negotiations with Centre Pointe, but from Scogin. Scogin promised to fax Darby a copy of the termination letter, but did not do so. Despite repeated efforts, Darby was not able to reach Ayazi to confirm the termination. In addition, Scogin testified that he had “serious concerns” about the deal because ICTS was financially troubled and would need an initial period of free rent. This evidence was sufficient to permit the jury to infer that Centre Pointe interfered with the Darby Company’s brokerage relationship because it did not want to pay the commission. Although Scogin denied any collusion and professed surprise at the termination, the jury was not required to believe him, particularly as his testimony was inconsistent on multiple points.

Centre Pointe also argues that the Darby Company was merely an “undisclosed agen[t] after-the-fact” that “conceal [ed] its intention to seek payment from Centre Pointe,” in violation of statutory and regulatory requirements that brokers timely disclose the existence of a brokerage relationship to all parties involved in the transaction. However, Scogin testified that he knew while the negotiations were taking place that the Darby Company was representing ICTS, and he acknowledged receiving a copy of the Darby Company’s standard commission agreement within days of the beginning of negotiations. Moreover, Darby testified that Scogin assured him on multiple occasions before the lease was signed that Centre Pointe would pay the Darby Company’s commission. Thus, there is evidence that Centre Pointe accepted the Darby Company’s services with full knowledge that the Darby Company expected payment.

2. Centre Pointe claims that the Darby Company failed to prove quantum meruit damages because it submitted no evidence of the time it spent on the transaction or its hourly rate for services.

The measure of recovery in quantum meruit is the reasonable value of the services rendered to the party who received them. “Value, as any other matter to be proved, may be shown circumstantially or inferentially as well as directly or positively.” Determining the reasonable value of the services is the task of the jury, whose finding will not be disturbed if there is any evidence to support it.

Here, the Darby Company sought quantum meruit damages in an amount equal to the commission calculated according to the standard agreement it sent to Centre Pointe. This was prima facie proof of the value of the Darby Company’s services, even though the jury rejected the Darby Company’s contract claim. The Darby Company also presented evidence that this amount was the standard “first and four” broker commission for commercial real estate leases in the area. Scogin admitted that Centre Pointe had paid “first and four” commissions to brokers on “numerous occasions.” Moreover, there was evidence that Centre Pointe would collect more than $800,000 in rent from ICTS over the life of the lease and that ICTS was current on all payments as of the date of trial. This evidence was sufficient to support the jury’s damages award.

3. Before trial, Centre Pointe moved in limine to block the introduction of evidence of Scogin’s offer to pay the Darby Company five percent of the ICTS lease. Rejecting Centre Pointe’s claim that the offer was an inadmissible settlement negotiation, the trial court allowed the evidence. We find no abuse of discretion.

The case of Campbell v. Mut. Svc. Corp., a suit by a real estate broker to recover a commission from a seller, is controlling. There, the broker testified that he called the seller after the sale asking for his commission and the seller offered to pay him $5,000. We held: “the plaintiff in the present case simply made a demand under the terms of his contract and there was a counter-offer which was not in the nature of a proposition made with a view to compromise. The testimony does not indicate any effort of the parties to reach a settlement. [Cit.]”

Here, as in Campbell, Darby called Scogin and demanded payment in accordance with the commission agreement. Scogin made a counteroffer. Nothing in the record shows that this counteroffer was made with a view to compromise.

Case No. A01A0893

4. Centre Pointe contends that the award of attorney fees to the Darby Company was unjustified because there was no evidence that Centre Pointe acted in bad faith and there was a bona fide controversy between the parties.

OCGA § 13-6-11 permits the recovery of attorney fees when the defendant has acted in bad faith. Bad faith may be found when the defendant acts with “some interested or sinister motive,” but cannot be based on a mere refusal to pay a just debt. Whether the plaintiff is entitled to attorney fees is a question for the jury, whose determination will be affirmed if there is any evidence to support it.

As discussed in Division 1, there was evidence suggesting that Centre Pointe and ICTS deliberately excluded the Darby Company from the deal on the eve of its consummation to avoid paying the commission. In addition, contrary to Centre Pointe’s contention that the Darby Company never demanded a commission until after the lease was signed, there was evidence that Scogin knew that the Darby Company was acting as a broker for ICTS and expected a commission and that he repeatedly misrepresented to Darby that the Darby Company “would be protected” on the deal. Although the evidence of Centre Pointe’s sinister motive was largely circumstantial, we cannot say it was insufficient as a matter of law.

As for Centre Pointe’s argument that there was a bona fide controversy, that issue is relevant only when a plaintiff seeks attorney fees because the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble or expense. It does not apply when the plaintiff alleges bad faith by the defendant.

Judgments affirmed.

Smith, P. J., and Barnes, J., concur.

Decided May 14, 2001 —

Reconsideration denied June 1, 2001 —

James L. Bass, Arthur F. Millard, for appellant.

Allen W. Groves, Steven M. Staes, for appellee.

       The jury’s verdict initially included interest, but the court excluded that portion of the award.

        Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 596 (11) (533 SE2d 136) (2000).

       (Punctuation omitted.) Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358, 363 (1) (300 SE2d 186) (1983); see also Pittard Machinery Co. v. Mitsubishi Intl. Corp., 192 Ga. App. 270, 271 (2) (384 SE2d 423) (1989).

        Kraft Land, supra.

        Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990); Clark v. United Ins. Co., 199 Ga. App. 1, 3 (1) (404 SE2d 149) (1991).

       See Perimeter Realty, supra at 597 (whether broker was “procuring cause” of sale was jury question where there was evidence that buyer and seller decided to negotiate sale without presence of broker after broker brought them together).

       For example, Scogin first testified at one point that he receives faxed copies of brokerage commission agreements “all the time,” but later stated that he has “never had one come across a fax machine.” In addition, Scogin gave three inconsistent explanations for the lease agreement’s failure to list the Darby Company as a broker for ICTS. See Rubin v. Fields, 237 Ga. App. 207, 209 (1) (515 SE2d 180) (1999) (jury was free to reject testimony of witness who made self-contradictory statements).

       See OCGA § 10-6A-4 (b).

       See OCGA § 9-2-7; Atlanta Limousine Svc. v. Nichols, 155 Ga. App. 742 (272 SE2d 584) (1980).

       (Citations and punctuation omitted.) Futch v. Guthrie, 176 Ga. App. 672, 673-674 (2) (337 SE2d 384) (1985).

        Atlanta Limousine Svc., supra at 742-743.

       See G. Carbonara & Co. v. Helms, 205 Ga. App. 547, 548 (423 SE2d 36) (1992).

       152 Ga. App. 493 (263 SE2d 202) (1979).

       Id. at 494 (2).

       See also Turner Broadcasting System v. Europe Craft Imports, 186 Ga. App. 286, 289 (3) (367 SE2d 99) (1988); Williams v. Smith, 71 Ga. App. 632, 642-643 (9) (31 SE2d 873) (1944).

       (Punctuation omitted.) M & H Constr. Co. v. North Fulton Dev. Corp., 238 Ga. App. 713, 715 (1) (519 SE2d 287) (1999).

        Sass v. First Nat. Bank of Cherokee, 228 Ga. App. 7 (491 SE2d 76) (1997).

       See Southern Co. v. Hamburg, 220 Ga. App. 834, 841 (4) (470 SE2d 467) (1996) (finding of bad faith may be based on circumstantial evidence).

       See Sass, supra at 7 (1).


text:
    A01A0260.
    BRACKINS v. THE STATE.
    (549 SE2d 775)
   Andrews, Presiding Judge.

Eddie Brackins, Jr. appeals pro se from the judgment of conviction entered on jury verdicts finding him guilty of possession of cocaine, felony obstruction of an officer, misdemeanor obstruction of an officer, attempting to elude an officer, reckless driving, and driving without a current license plate.

1. Brackins claims the evidence was insufficient to support the convictions. The State presented testimony from a Cobb County police officer who attempted to stop the car Brackins was driving because the car had a temporary dealer tag rather than the usual State license plate, and the officer believed the car might be stolen. When the officer activated his blue lights and siren, Brackins sped away from the officer at high speeds. In attempting to elude the officer, Brackins drove recklessly on the wrong side of the road and eventually drove into a yard, through a fence, and hit a tree. The pursuing officer saw Brackins exit from the driver’s seat and run from the car. A female passenger in the car with Brackins remained at the scene. The officer pursued Brackins on foot catching up to him and ordering him to stop on several occasions, but Brackins started to run again on each occasion. When the officer finally caught Brackins, he resisted and fought with the officer, then ran off again and escaped.

Based on information provided to police by the passenger in the car, the driver was identified as Brackins. During an inventory search of the car, officers found a windbreaker which appeared too large for the female passenger. In one pocket of the windbreaker officers found $1,286 in cash and in the other pocket a bag of suspected cocaine. The substance in the bag later tested positive for cocaine at the State Crime Lab. Three days after Brackins escaped from the officer, he was found and arrested by the same officer. While being transported to the police station, Brackins asked the arresting officer what happened to his money. At the trial, the officer who chased and fought with Brackins identified him as the person he saw exit and run from the car.

Reviewed in the light most favorable to the guilty verdict, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Brackins had constructive possession of the cocaine found with the money in the windbreaker in the car he was driving. OCGA § 16-13-30; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 216 Ga. App. 842, 843-844 (456 SE2d 229) (1995). Evidence that Brackins fled on foot from the officer after being told to stop and violently struggled with the officer was sufficient to sustain the convictions for felony and misdemeanor obstruction. OCGA § 16-10-24 (a), (b). The evidence was also sufficient to prove beyond a reasonable doubt that Brackins was guilty of reckless driving and attempting to elude the officer when he led the officer on a high-speed chase driving on the wrong side of the road and wilfully failed to bring his car to a stop after the officer activated his patrol car’s blue lights and siren. OCGA §§ 40-6-390; 40-6-395 (a).

However, the only evidence presented by the State to support the charge of driving the car without a current license plate was testimony by officers that the car had a temporary dealer tag. The State presented no evidence that the tag on the car was not a valid temporary tag issued by a dealer at the time of sale pursuant to OCGA § 40-2-8. Accordingly, the evidence was insufficient to sustain the guilty verdict on this charge, and the conviction for driving without a current license plate must be reversed.

2. Brackins contends he was improperly tried by accusation instead of by indictment in violation of OCGA § 17-7-70.

All of the charges against Brackins in this case, including the two felony charges of possession of cocaine and felony obstruction of the officer, were brought by way of accusation. OCGA § 17-7-70.1 gave the State specific authority to try Brackins by accusation on the charge of possession of cocaine upon a finding of probable cause pursuant to a commitment hearing or Brackins’s waiver of the right to this hearing. Since the record shows there was a commitment hearing and a finding of probable cause, the State was authorized to try the cocaine possession charge by accusation. However, OCGA § 17-7-70.1 provides no authority to try a felony obstruction charge by accusation.

In order to try the felony obstruction charge by accusation instead of by grand jury indictment, the State had to comply with the requirements of OCGA § 17-7-70. Pursuant to OCGA § 17-7-70 (a), the State was authorized to try Brackins by accusation on the felony obstruction charge if Brackins waived indictment by a grand jury in writing. Nothing in the record shows that Brackins, in writing, waived indictment by a grand jury. Since the written waiver by Brackins was a necessary prerequisite to the jurisdiction of the trial court, the conviction for felony obstruction of the officer is void and must be reversed. Roberson v. Balkcom, 212 Ga. 603 (94 SE2d 720) (1956).

Decided June 1, 2001

Eddie Brackins, Jr., pro se.

Patrick H. Head, District Attorney, Ann B. Harris, Dana J. Norman, Assistant District Attorneys, for appellee.

3. Brackins claims his trial and appellate counsel were ineffective for various reasons, including trial counsel’s failure to file a pretrial motion to suppress evidence and the failure of appellate counsel (prior to being discharged by Brackins) to raise this failure as an ineffective trial counsel claim in the trial court.

The record shows that none of these claims of ineffective trial counsel was raised in the trial court even though Brackins’s appointed appellate counsel raised various other claims of ineffective trial counsel in an amended motion for new trial which was denied. Less than two weeks after Brackins’s appellate counsel filed a notice of appeal, Brackins discharged him and elected to proceed pro se on appeal. Because the claims of ineffective trial counsel raised by Brackins are being raised for the first time on appeal and were not raised at the earliest practicable moment in the trial court in the amended motion for new trial, these claims were waived. Glover v. State, 266 Ga. 183, 184 (465 SE2d 659) (1996). Brackins’s claim that prior appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness in the trial court is ultimately based on the same ineffective trial counsel claims which were waived under Glover v. State. Accordingly, this claim was also waived, and any ineffectiveness claim must now be addressed by habeas corpus.

4. Brackins’s remaining claims present nothing for appellate review because they were not raised or ruled upon in the trial court (Knight v. State, 216 Ga. App. 200, 201 (453 SE2d 798) (1995)), or they were abandoned under Court of Appeals Rule 27 for lack of supporting argument or citations to authority or the record.

Judgment affirmed in part and reversed in part.

Eldridge and Miller, JJ, concur.

       See Berry v. State, 248 Ga. App. 874 (547 SE2d 664) (2001), where we ruled that the presence of a dealer tag, standing alone, does not provide reasonable suspicion to stop a car for the purpose of investigating whether the car might be stolen.