text:
    A97A2423.
    NEALY v. THE STATE.
    (498 SE2d 119)
   Smith, Judge.

Willie George Nealy was indicted by a Monroe County grand jury on one count of sale of cocaine. He was convicted by a jury, his motion for new trial was denied, and he appeals. We find no error and affirm.

1. Nealy asserts the general grounds. Construed to support the verdict, the evidence shows that officers of the Monroe-Forsyth narcotics task force organized an undercover surveillance operation at an apartment complex. The manager of the apartments gave the narcotics task force access to a vacant apartment, and officers conducted surveillance from that site using “very powerful binoculars” and electronic equipment. They observed Nealy standing in the parking lot with another individual known as “Little Ed.” A truck pulled into the parking lot, Nealy approached the truck, and one of the officers testified that they saw him display “a handful of what we call crack rocks” to the driver of the car. Nealy handed three or four rocks to the driver, and the driver gave Nealy some money. The officers gave this information to the “take-down units,” and the truck was stopped and searched. Four rocks of crack cocaine were found inside a work glove in the glove compartment. Nealy was arrested later in the day; the arresting officer found no drugs but found $194 in his pants pocket. The chemical analysis of the rock cocaine was tendered by certificate pursuant to OCGA § 35-3-16 (b).

This evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Perry v. State, 214 Ga. App. 444, 446 (4) (448 SE2d 74) (1994) (appellant observed selling drugs by surveillance team; cash but no drugs found on appellant when arrested).

2. Nealy asserts that the admission of a certificate of drug analysis in lieu of a live witness pursuant to OCGA § 35-3-16 (b) was error, citing Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996). In that decision, the Supreme Court held this Code section unconstitutional because it violated criminal defendants’ right of confrontation. But here, in response to the trial court’s inquiry, Nealy expressly stated that he had no objection to the certificate’s admission. Under these circumstances, Nealy has waived any objection to the admission of the certificate. Jones v. State, 225 Ga. App. 673, 677-678 (6) (484 SE2d 702) (1997); In the Interest of D. L. S., 224 Ga. App. 660, 661 (2) (482 SE2d 418) (1997); Lee v. State, 223 Ga. App. 438, 439 (2) (477 SE2d 872) (1996).

3. During deliberations, the jury foreman sent a note to the trial court asking, “Was there evidence of cocaine deposits in Ne[a]ly’s pocket at the time of arrest?” The trial court called in the jury and stated, “Having discussed it with counsel, the court’s answer is this question cannot be answered by the court, the jury must remember. I’m very sorry.” Nealy objected on the ground that “they should be told that the jury should look to the evidence to determine if that question was answered or not by the witnesses and evidence presented in the case.”

On appeal, Nealy contends for the first time that this note from the jury was “tantamount” to a request for a recharge on the law. But he did not reserve the right to object to the charges until motion for new trial or appeal; he objected on grounds that did not include the error enumerated here. Nealy therefore waived the objection to the charge made on appeal. Whatley v. State, 196 Ga. App. 73, 76 (2) (395 SE2d 582) (1990).

Decided February 24, 1998.

Thomas J. Barrett, Jr., for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

But even assuming that Nealy successfully preserved this objection for appellate review, it has no merit. The trial court is forbidden to express or intimate an opinion as to what has or has not been proved by the evidence. OCGA § 17-8-57. Moreover, the jury’s question clearly and expressly inquired after evidence of a fact: whether cocaine residue was found in Nealy’s pocket. It was not, as Nealy contends, a request for instruction on the law. It was proper for the trial court to instruct the jury that they must remember the evidence. Williams v. State, 146 Ga. App. 543, 544 (246 SE2d 729) (1978). “Telling the jury to remember what the evidence was, when the jurors have a question relating to that, is one thing; telling the jury to reconstruct in their minds what the judge charged as to the legal principles to be applied to the facts as they found them from the evidence, is quite another.” Brown v. City of Fitzgerald, 177 Ga. App. 859, 861 (1) (341 SE2d 476) (1986). The trial court did not err in its reply to the jury’s question.

Judgment affirmed.

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

       The trial court inquired if there was “a substitute report from the crime lab.” The prosecutor responded, ‘Yes, I have a report and a certificate attached to it.” The court asked, “Is there any objection to that, [counsel],” and defense counsel responded, “No, your honor.” The trial court then instructed the jury regarding the Code section and the substitution of a report in lieu of a live witness.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A2439.
    TAYLOR v. THE STATE.
    (498 SE2d 113)
   Beasley, Judge.

Taylor and Pritchett were charged with possession of cocaine with intent to distribute. They were tried jointly and convicted of possession of cocaine. OCGA § 16-13-30. Taylor was given a sentence of 25 years imprisonment without possibility of parole because this was his fourth felony conviction. OCGA § 17-10-7 (c). He appeals the order denying his motion for new trial. We previously affirmed Pritchett’s conviction in an unpublished opinion in Case No. A96A1270.

At approximately 8:30 p.m. on February 11, 1994, Officer Wheeler (head of the narcotics investigation division of the Douglas County Sheriff’s Department) and Officer Jewell (a member of the sheriff’s department’s DUI task force) were patrolling Interstate 20 while it was misting rain. They observed a car being driven at a speed of 45 mph in the center lane of the highway. They stopped the car because it was creating a traffic hazard as other vehicles were having to swerve to avoid hitting it, and operation of a car in this manner is sometimes an indication of DUI. Jewell approached Taylor, the driver, and Wheeler approached Pritchett, the front seat passenger.

While questioning Pritchett as he remained in the car, Wheeler detected the odor of marijuana and had Pritchett exit the car. In response to questioning by Wheeler, Pritchett stated that he did not have any weapons or drugs and then gave his consent to a search of his person. No contraband was found. After Taylor admitted to Jewell that he had been drinking, Jewell administered an alco-sensor test which was positive but did not show that Taylor was intoxicated. He refused to submit to a urine test but consented to a search of his vehicle for drugs, which was performed within five minutes after the car was stopped. On the floor between the front seats, Wheeler immediately found 81 individually wrapped rocks of cocaine inside a napkin. Taylor and Pritchett were arrested for possession of cocaine.

1. For a number of reasons, Taylor contends that the court erred in denying his motion to suppress the cocaine and other evidence obtained as a result of the traffic stop. All is considered in the following context: ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. [Cits.]” State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

(a) First, Taylor argues that the stop was without legal authorization.

“It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense. [Cit.]” Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994). The evidence supports a finding that the officers observed Taylor violate OCGA § 40-6-184 (a) (1): “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.”

(b) Taylor next argues that the stop was pretextual, in that the underlying purpose of the officers was to investigate and search for drugs.

The federal constitutional test for determining whether a traffic stop is pretextual was articulated in Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996). As restated hi Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997): “when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. ... In other words, if the driver of a stopped car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence can no longer be based on the argument that the stop was pretextual — at least under federal law.” The Whren test supplants the test previously applied in such cases as Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987), which measured the stop only by federal constitutional law. Taylor made, and makes on appeal, no independent claim based on state constitutional law, so we do not address it. The evidence authorized the trial court to find that the stop in this case was valid.

(c) Taylor also contends that his continued detention after it was determined that he was not intoxicated exceeded the stated purpose of the investigative stop.

The fact that the vehicle was being driven so slowly as to create a traffic hazard authorized the officers to investigate the condition of the driver. See Pupo v. State, 187 Ga. App. 765 (1) (371 SE2d 219) (1988); Gabbidon v. State, 184 Ga. App. 475, 476 (2) (361 SE2d 861) (1987). It also authorized a stop for a traffic violation. Officer Wheeler’s detection of the odor of marijuana after the stop was initiated provided reasonable suspicion both that marijuana was present in the car and that Taylor had been driving under the influence of drugs. See OCGA § 40-6-391 (a) (2). Having effected a valid traffic stop, the officers were authorized to request consent to search the automobile. Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996). The stop did not exceed the bounds of a brief investigative detention, so Taylor’s consent to search was not the product of an illegal detention. The evidence supports the court’s finding that his consent was freely and voluntarily given. See Davis v. State, 194 Ga. App. 482, 483 (1) (391 SE2d 124) (1990); compare Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988).

(d) Taylor also maintains that the investigative stop should have ended before Officer Wheeler conducted his search, because Officer Jewell previously shined his flashlight through the car windows and briefly entered the car without observing any contraband. There is no evidence that Taylor withdrew his consent after Jewell conducted his cursory search. Thus, the court was authorized to find that each officer’s search of the car was within the scope of consent given by Taylor. See Aranda v. State, 226 Ga. App. 157, 159 (2) (486 SE2d 379) (1997).

(e) Lastly, Taylor argues that any consent by him to search the car did not authorize the officers to open the napkin in which the contraband was found. He cites State v. Corley, supra, and State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). Both cases are distinguishable. In each, the officer asked merely for permission to “look inside” the vehicle. The court held that the extent of the consensual investigation did not extend to the seizure and examination of any items or containers in the car, which would constitute a full-blown search. In this case, as in Thomas v. State, 201 Ga. App. 292, 293 (1) (410 SE2d 786) (1991), and Garcia v. State, 207 Ga. App. 653, 656 (1) (c) (428 SE2d 666) (1993), the defendant consented to a full-blown search of his automobile. See also Gossett v. State, 199 Ga. App. 286, 287 (1) (c) (404 SE2d 595) (1991).

2. Taylor contends that the trial court erred in denying his motion to strike the testimony of a law enforcement officer concerning the number of bags of cocaine (approximately 100) found in Taylor’s possession during an arrest which led to his prior conviction of possession of cocaine with intent to distribute. This offense was admitted in evidence as a similar transaction. Taylor argues that the officer’s testimony was hearsay because it was based on information contained in a police report reviewed by the officer while he was testifying and not on his refreshed memory. See Williams v. State, 257 Ga. 788, 789 (6) (364 SE2d 569) (1988) (OCGA § 24-6-69 permits a witness to use a document to refresh his memory but requires the witness to testify from his memory); Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996) (motion to strike hearsay evidence proper).

The court denied the motion to strike on the ground that the officer’s testimony was based on his refreshed memory. Even if this ruling was in error, admission of hearsay testimony as to the exact number of bags of cocaine seized was harmless beyond a reasonable doubt, because the officer remembered seeing the bags, remembered their being counted, and from personal knowledge testified there were “a good many.” Taylor does not challenge the admissibility of the conviction itself; he admitted being in possession of the cocaine in this current case; and he was not convicted of possession with intent to distribute.

3. Finally, Taylor contends that the court erred by not granting his motion for mistrial due to the State’s failure to file a copy of material examined by the court in camera pursuant to his pretrial motion under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

At the beginning of the trial, Taylor requested that the court inspect certain material and that the State make a sealed copy of it and file it with the clerk. The court granted the request. During the course of the trial, the court affirmed that it had inspected the material and found nothing favorable to Taylor. When the trial ended, Taylor inquired whether the State had filed a copy of the material. The prosecuting attorney responded in the negative, and Taylor moved for a mistrial. The court denied the motion on the ground that there is no requirement that such material be filed within any particular time.

Decided February 24, 1998

Scott K. Camp, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Despite Taylor’s argument, a mistrial was not required under Popham v. State, 138 Ga. App. 876, 878 (2) (227 SE2d 825) (1976). Popham. held that the defendant was entitled to a mistrial where the record showed that the State had not turned its entire file over to the court for an in camera Brady inspection. See Benefield v. State, 140 Ga. App. 727 (232 SE2d 89) (1976). Taylor has made no such showing.

Taylor’s remedy for the State’s failure to file the inspected material was to request that it be filed. Although Taylor did make such a request in conjunction with his motion for mistrial, the court did not rule on it, and Taylor did not raise this issue in his motion for new trial. Taylor has not asked this Court to order the filing, nor need we do so sua sponte. See OCGA § 5-6-48 (d). “ As a general rule, “ '(w)e will not call up the [S]tate’s files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material.’ ” (Cit.)’ [Cit.]” Brown v. State, 201 Ga. App. 98 (1) (410 SE2d 196) (1991).

Judgment affirmed.

McMurray, P. J., and Smith, J, concur.


author: Pope, Presiding Judge.

text:
    A97A2458.
    THE STATE v. BURTON.
    (498 SE2d 121)
   Pope, Presiding Judge.

Defendant Deborah Burton was stopped on November 16, 1995, after she was observed weaving. After being informed of her implied consent rights pursuant to OCGA § 40-5-67.1 (b), defendant consented to having her blood and urine tested for alcohol and drugs. Defendant’s blood tested positive for cocaine, and defendant was charged with DUI, driving without a license, weaving, and possession of cocaine.

Defendant filed a motion to suppress the evidence of cocaine in her blood, arguing that she consented to have her blood tested only for the purpose of determining whether she was driving under the influence, and that using the results of the test to charge her with possession of cocaine exceeded the scope of the consent given. The trial court agreed and granted the motion to suppress. The State appeals.

Decided February 24, 1998.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

Kathleen J. Anderson, for appellee.

We recently decided this issue adversely to the State. In State v. Frazier, 229 Ga. App. 344 (494 SE2d 36) (1997) and State v. Jewell, 228 Ga. App. 825 (492 SE2d 706) (1997), we held that the results of blood or urine testing of a driver who was tested for drugs or alcohol after being informed of his implied consent rights under OCGA § 40-5-67.1 (b) could only be used as a basis for driving-related criminal charges, finding that “[a]ny other purpose would exceed the scope of the consent given.” State v. Frazier, 229 Ga. App. at 345.

Under our statutory scheme, the holder of a Georgia driver’s license who is reasonably believed to be driving under the influence must submit to blood or urine testing to determine whether he is under the influence. But that driver does have a choice — he can refuse the testing, a decision that will result in the automatic suspension of his Georgia driver’s license, or in the case of an out-of-state license holder, the suspension of his right to drive on Georgia highways, for a minimum period of one year. OCGA § 40-5-67.1 (b) (2). And although the choice may not involve attractive alternatives, it is a choice that can only be free, voluntary and unrestrained if the full consequences are known. Common sense and reason dictate that a driver, who is informed that he is being tested “for the purpose of determining if you are under the influence of alcohol or drugs,” id., and who is further informed that he will lose his driving privileges if he does not consent to be tested, will reasonably believe, unless informed otherwise, that he is being tested only to determine whether he has committed a driving-related offense. And common sense and reason also dictate that a driver who believes that he is being tested only to determine whether he is guilty of the misdemeanor offense of driving under the influence may make a different choice from one who knows he may also be charged with a felony offense arising from violating the Georgia Controlled Substances Act. The trial court’s order suppressing the evidence of cocaine insofar as it relates to the possession of cocaine charge is affirmed.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Smith, Judge.

text:
    A97A0095.
    SOUTHEASTERN SECURITY INSURANCE COMPANY v. EMPIRE BANKING COMPANY.
    (498 SE2d 282)
   Smith, Judge.

Empire Banking Company, the lienholder listed on a policy of insurance issued by Southeastern Security Insurance Company covering a Toyota truck owned by Valerie Stalvey, brought suit against Southeastern to recover under the policy’s collision coverage. We granted Southeastern’s application for interlocutory appeal from the trial court’s order denying its motion for summary judgment and granting that of Empire. Later, however, we dismissed the appeal as improvidently granted, having concluded that direct appeal could have been taken because of the grant of summary judgment to Empire. The appeal now returns to this Court after reversal of that dismissal by the Supreme Court. Southeastern Security Ins. Co. v. Empire Banking Co., 268 Ga. 450 (490 SE2d 372) (1997). We now consider the appeal on its merits.

Empire’s suit was filed when its collision coverage claim was denied by Southeastern. The denial was based on the ground that no coverage existed because it was undisputed that Timothy Corbitt was operating the truck with Stalvey’s permission at the time of the collision in issue and that Stalvey knew Corbitt did not have a valid driver’s license. Southeastern took the position that this conduct on the part of the insured barred coverage under a policy exclusion.

The language relied upon by Southeastern is as follows: “Coverage does not apply to loss . . . while your insured car is driven, operated or used with your permission by a person whom [sic] you know . . . does not have a valid driver’s license.” The trial court’s order does not provide the basis for the ruling below. We therefore must decide if the trial court’s ruling was right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

1. Southeastern contends the trial court erred in granting summary judgment to Empire because it is clear that this exclusion bars coverage under the facts of this case. We agree.

The undisputed facts show that Corbitt’s license had been suspended following his conviction of a second DUI and that it remained suspended at the time of the collision. Stalvey was aware that Corbitt had no valid driver’s license, but she nevertheless gave Corbitt permission to drive her truck. Unlike the language of the exclusion in Hurst v. Grange Mut. Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996), this exclusion is unambiguous. In Hurst the Supreme Court construed an exclusion barring coverage to any person operating a vehicle “without a reasonable belief that person is entitled to do so.” Overruling earlier decisions to the contrary, the Supreme Court held that such a clause is ambiguous because it requires analysis of the reasonable belief of the driver, which could focus on the driver’s permission from the owner of the car but could also focus on permission from the State in the form of a valid driver’s license. Because the language was ambiguous, the Supreme Court construed it in favor of the insured, holding that it excludes from coverage only non-owner drivers without a reasonable belief they were operating the vehicle with the permission of the owner. Id. at 716-717 (4).

In Hurst, the Supreme Court noted specifically that “[t]here is no question that an insurer has a right to restrict the operation of vehicles insured by it to persons legally qualified to operate an automobile. [Cit.] All semblance of ambiguity is removed by an exclusion relieving the insurer from liability should the vehicle be driven in violation of any law as to drivers’ licenses. [Cit.]” Id. at 717 (5). It is therefore clear that the exclusion in issue here is unambiguous and that it barred coverage.

Empire argues that the exclusion is nevertheless ambiguous because the placement of the “Exclusions” section (including the unlicensed driver exclusion) within Part III of the policy makes it unclear whether these exclusions apply to all coverages in Part III, including collision coverage, or only to the coverages immediately preceding the exclusions. But this construction is strained and unreasonable. Moreover, the “Index of Policy Provisions” and the overall organization of the policy show clearly that the exclusions section in issue applies to all three types of coverage available in Part III, including collision.

2. We also agree with Southeastern that the exclusion in issue was not void as against public policy, as urged by Empire. In Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989), the “unlicensed driver exclusion” was found not to violate public policy when the victims of the unlicensed driver had access to other insurance funds. Id. at 865. See also Hurst, supra at 717 (5). But Travelers involved liability insurance and the rationale for that holding was the protection of innocent third parties. This case addresses only the applicability of such an exclusion to collision insurance. Even though Empire was not a party to the insurance contract, it was not a stranger to Stalvey. The lack of evidence showing that other insurance funds were available to Empire is immaterial here. If Empire had concerns about Stalvey’s collision coverage, it had the option of requiring her to present the policy for examination.

3. We agree with Southeastern that even if neither Empire nor Stalvey received a copy of the policy prior to the collision, they are bound by the exclusion. A party may be bound by the terms of a policy even when not having physical possession of it. Brown v. Mack Trucks, 111 Ga. App. 164, 165 (141 SE2d 208) (1965). The general rule is that insureds are chargeable with knowledge of the contents of their policies. Fowler v. Prudential Prop. &c. Co., 214 Ga. App. 766, 767 (449 SE2d 157) (1994). Empire alleged the existence of the policy and is chargeable with knowledge of its contents. Brown, supra. “Insured persons under an insurance policy are presumed to know its conditions if they intend to rely upon its benefits, or else they must find out those conditions.” Cotton States Mut. Ins. Co. v. Hipps, 224 Ga. App. 756, 757 (481 SE2d 876) (1997).

Decided February 24, 1998.

Brennan, Harris & Rominger, Mason White, for appellant.

Berrien L. Sutton, for appellee.

That is particularly true when, as in this case, the policy in issue is a renewal policy. Ga. Farm Bureau Mut. Ins. Co. v. Owens, 178 Ga. App. 446 (343 SE2d 699) (1986) (when policy had been renewed every year, insured had notice of existence of actual policy and non-receipt or non-possession would not excuse failure to comply with operative terms). But see Investor’s Nat. Life Ins. Co. v. Norsworthy, 160 Ga. App. 340 (287 SE2d 66) (1981) (when policy is one of group insurance, master policy may contain exclusions not referenced in insured’s certificate so that certificate notifying insured it does not contain entire agreement must be delivered to insured).

Moreover, although no evidence was presented by Southeastern as to actual mailing, the application signed by Stalvey included a notice warning her that “[f]ailure to list all operators and household members may, at the company’s option, void this policy.” Although Stalvey testified she did not know Corbitt when she signed this application, she was on notice that all drivers must be identified to the insurance company or her coverage could be voided.

We find no basis on which the trial court’s ruling may be supported. The exclusion was valid, and it barred coverage. The grant of summary judgment to Empire and the denial of Southeastern’s motion for summary judgment must be reversed.

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A98A0447.
    RIGGINS v. THE STATE.
    (498 SE2d 117)
   Birdsong, Presiding Judge.

Charles Riggins appeals his conviction of aggravated assault, possession of a firearm during the commission of a felony, discharge of a firearm near a public highway, and carrying a pistol without a license. He enumerates two errors. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). The evidence so viewed is as follows: Appellant was living with Tameika McDaniel, as husband and wife. McDaniel went to the Elks Club and departed with the victim Larry Thomas. Appellant found Tameika sitting in Thomas’ car and parked his car so as to block Thomas’ car. McDaniel exited Thomas’ car and walked toward her friend’s apartment. Appellant exited his car carrying a pistol. He threatened to shoot McDaniel if she knocked on her friend’s door. Appellant approached the driver’s side of Thomas’ car, broke the door glass, and fired one shot into the car striking Thomas on the middle finger of his left hand. (Note: Both the victim and an eyewitness, who was delivering newspapers in the area, testified that appellant was armed with a pistol when he approached the victim’s car, that he broke the glass in the victim’s car and fired his pistol.) Thomas grabbed a gun and returned fire shooting appellant twice in the abdomen. Appellant fled the scene seeking medical assistance. Thomas remained at the crime scene until the EMT and law enforcement officers arrived. A review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err in denying appellant’s motion for a new trial. The motion was based on the claim of newly discovered evidence, that is, the newly expected testimony of McDaniel that Thomas had lied when he testified, appellant was not armed that evening, and that she had seen Thomas’ hand on the night of the incident and the position of the wound showed he had shot himself in the back of the hand. (Note: An EMT testified that he could not determine the direction from which the bullet entered the victim’s hand.) During a previous hearing on a motion to dismiss, McDaniel had elected to assert her spousal privilege not to testify against appellant, her common-law husband. However, she was present in the courtroom during trial, and she informed appellant’s counsel of her contentions and prospective testimony after the jury began deliberations. However, appellant’s counsel did not affirmatively seek on the record to reopen its case and have the jury recalled from its deliberations.

The standard for granting a new trial based on newly discovered evidence is the six-requirements test of Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792). “All six requirements must be complied with to secure a new trial.” Id.

Decided February 24, 1998.

Ralph L. Phillips, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Appellant has failed to show that the evidence has come to his knowledge since the trial. Rather, it is admitted in judicio in appellant’s brief (see generally State v. Griffin, 204 Ga. App. 459 (419 SE2d 528)) that the evidence became known to appellant’s attorney “after the jury received evidence and began deliberations.” The evidence at issue is not newly discovered within the meaning of Timber-lake, supra. “ '[E]ven after jury deliberations have begun, the trial court, in the sound exercise of discretion, may reopen the evidence and allow the admission of new evidence.’ ” Gardner v. State, 263 Ga. 197, 198 (2) (429 SE2d 657); Childs v. State, 257 Ga. 243, 255 (357 SE2d 48); State v. Roberts, 247 Ga. 456, 458 (277 SE2d 644). Appellant’s remedy was immediately to make a proffer of the evidence to the trial court and the circumstances surrounding its belated discovery, and to move for the reopening of the evidence. Appellant failed to seek this remedy. “ ' “A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” ’ ” (Citations omitted.) Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145); accord Bruce v. State, 259 Ga. 798 (2) (b) (387 SE2d 886).

Additionally, having examined the trial record and the hearing transcript on appellant’s new trial motion, we find appellant has also failed to show that the testimony of appellant’s common-law wife, McDaniel, probably would produce a different result should a new trial be conducted. For each of these independent reasons, we find that the trial court did not err in denying appellant’s motion for new trial based on the alleged newly discovered testimony of McDaniel.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2412.
    WOODS et al. v. DEPARTMENT OF TRANSPORTATION.
    (498 SE2d 371)
   Beasley, Judge.

In Woods v. Dept. of Transp., 225 Ga. App. 29 (482 SE2d 396) (1997), we reversed the trial court’s denial of Woods’ motion for attorney fees under OCGA § 9-15-14 and remanded for reconsideration. The Supreme Court granted certiorari and reversed our decision in Dept. of Transp. v. Woods, 269 Ga. 53 (494 SE2d 507) (1998). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Decided February 25, 1998.

Vinson, Talley, Richardson & Cable, James G. Richardson, Michael R. Wing, for appellants.

Thurbert E. Baker, Attorney General, George P. Shingler, Daniel M. Formby, Deputy Attorneys General, Charles A. Evans, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A97A0026.
    BENNETT v. THE STATE.
    (497 SE2d 406)
    Decided February 25, 1998.

      Wallace C. Clayton, Amelia G. Pray, for appellant.

      David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.
   Beasley, Judge.

In Bennett v. State, 225 Ga. App. 284 (483 SE2d 612) (1997), we affirmed the trial court’s grant of the State’s motion to set aside an order which had granted Bennett’s extraordinary motion for new trial. The Supreme Court granted certiorari and reversed in Bennett v. State, 268 Ga. 849 (494 SE2d 330) (1998). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A97A1707.
    BOLT v. THE STATE.
    (498 SE2d 371)
   Ruffin, Judge.

Eric Bolt was arrested for cultivating marijuana in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30). We granted Bolt’s Application for Interlocutory Appeal to consider whether the trial court erred in denying his motions to suppress evidence obtained through a search warrant and to reveal the identity of the confidential informant who provided police with information concerning the offense. For reasons which follow, we affirm.

1. “ ‘When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. (Cit.) The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. (Cits.) Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. (Cit.)’ ” State v. Burnett, 220 Ga. App. 133, 134 (469 SE2d 324) (1996).

Viewed in this light, the evidence shows that Officer Craig Fowler of the Marietta Police Department received information from a confidential informant who reported that she observed marijuana growing in an apartment house. The informant, a former marijuana user who had on numerous occasions provided reliable information to Fowler, reportedly saw a large marijuana plant in the apartment when the window blinds were open. After receiving the information, Officer Fowler confirmed the location of the apartment and spoke with the complex manager. According to Officer Fowler, the manager told him that Bolt lived in the apartment and that “[Bolt] had raised some suspicion to her because he had changed the lock on his apartment and would not allow any entry into his apartment, even for maintenance work.”

Based on this information, Officer Fowler applied for a search warrant. According to Fowler, he completed a written affidavit and provided oral testimony to the magistrate in support of his application. Although the original affidavit was missing from the magistrate court’s files, at the suppression hearing the State produced a copy kept in the police department files. Officer Fowler testified that although there was a pencil mark on the copy, it was a true and accurate reproduction of the affidavit he submitted to the magistrate court. Upon executing the search warrant, police found approximately 30 marijuana plants growing in Bolt’s apartment, along with cultivating equipment, guns and other weapons.

Bolt asserts that evidence of the contraband should have been suppressed because there was no evidence that Officer Fowler filed a supporting affidavit for the search warrant and because the original affidavit, if one existed, was never located and introduced into evidence. We disagree.

OCGA § 17-5-31 provides that “[n]o search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” We have held that the mere failure to file a supporting affidavit after a warrant has issued is a technical irregularity not affecting the substantial rights of the accused. Sampson v. State, 165 Ga. App. 833 (2) (a) (303 SE2d 77) (1983). In this case, Officer Fowler’s uncontested testimony shows that he submitted a supporting affidavit to the magistrate who issued the warrant. Even if Officer Fowler failed to ensure that the affidavit was filed with the clerk after the magistrate issued the warrant, under Sampson, such was a technical irregularity not affecting Bolt’s substantial rights. See id.

Decided February 25, 1998.

Fraser & Fraser, Mark S. Fraser, for appellant.

Thomas J. Charron, District Attorney, Andrew J. Saliba, James Albertelli, Assistant District Attorneys, for appellee.

We similarly find no merit in Bolt’s assertion that the copy of the affidavit was inadmissible. Officer Fowler’s uncontradicted testimony showed that the copy was a true and accurate reproduction of the affidavit he submitted to the magistrate court. Under the circumstances, Bolt’s assertion that the lost original merited the grant of his motion raises no more than a technical irregularity which is insufficient to exclude the contraband from evidence. See Cayce v. State, 192 Ga. App. 97 (2) (383 SE2d 648) (1989).

2. We also find no merit in Bolt’s assertion that the trial court erred in denying his motion to disclose the identity of the confidential informant. The evidence shows that the informant merely provided police with information about suspected criminal activity. There was no evidence that the informant was paid for the information, that the informant participated in the offense in any manner or had access to the apartment, or that the informant was present during the search or arrest. Under these circumstances, the informant was a mere tipster whose identity was absolutely privileged. See Thornton v. State, 238 Ga. 160, 163 (2) (231 SE2d 729) (1977) (illustrating differences between an informer-participant, informer-witness and mere tipster); Branch v. State, 248 Ga. 300 (2) (282 SE2d 894) (1981) (informer who was not paid for information, who took no part in offense and was not present at time of offense was mere tipster); and Johnson v. State, 164 Ga. App. 501 (4) (297 SE2d 38) (1982) (informer who did not participate in alleged crime and was not present at the search and arrest was mere tipster; physical precedent only). The trial court did not err in denying Bolt’s motion.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J, concur.


text:
    A97A2057.
    HULSEY et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (498 SE2d 122)
   Ruffin, Judge.

C. C. Hulsey, Jr. and other property owners sued the Department of Transportation (“DOT”), one of the DOT’s contractors and a timber harvesting company for inverse condemnation and negligence arising out of the siltation of a lake. Upon motion made by the DOT at trial, the trial court dismissed two of the property owners, J. B. Jones and Ann Jones, on the ground that there was no evidence they owned any part of the allegedly damaged lake property. The trial court also granted the DOT’s motion for directed verdict against the remaining plaintiffs, Hulsey and Reginald Jones, finding that they failed to establish a date of the alleged taking by the DOT. Finally, the trial court granted a directed verdict in favor of the timber company, Inland Container Corporation (“Inland”), on appellants’ claim for negligence. All four plaintiffs join in this appeal asserting these decisions as error. For reasons which follow, we affirm in part and reverse in part.

A directed verdict is appropriate where “ ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a). ... A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review.” Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994).

The evidence at trial reveals that in October 1990, the DOT contracted with Wright Brothers Construction Company (“Wright Brothers”) to build a 2.3 mile portion of a four-lane highway. It appears as though Wright Brothers commenced construction sometime in early 1991. At this time, Wright Brothers cleared and graded a strip along the right of way approximately 200 feet wide through very hilly terrain encompassing pine or hardwood forest, with groundcover consisting of sand, silty loam with leaves and brush. The grading work required Wright Brothers to excavate approximately three million cubic yards of earth. Most of the valleys along the highway path contained streams, and many of these valleys were filled to properly grade the property for the highway. Several of these streams flow into a nearby ten-acre lake, of which Hulsey owns approximately five or six acres. Appellant Reginald W. Jones, Sr. also owns a portion of the lake, and appellants J. B. and Ann Jones own a parcel of property adjacent to the lake.

According to Hulsey, prior to 1991 the lake was usually clear, sometimes cloudy and never muddy. Hulsey testified that after the road construction began, however, “[e]very time it rained the . . . lake got muddy.” Hulsey further testified that when he investigated the situation, he saw that where the highway project was graded, trees and earth were plowed into the stream bed. He stated that rainwater washed the graded dirt into the stream bed and that the sediment ultimately ended up in his lake. Robert Wright, Wright Brothers’ vice-president, acknowledged that despite erosion control devices, approximately one percent of the sediment ended up in the lake.

In July 1992, appellants employed engineer James Roberts to further evaluate the cause of the lake siltation. At that time, Roberts walked the entire area following every tributary to discover the origin of the silt. According to Roberts, he “always came up onto the highway that was being built, and the creeks — the draws with the creeks from the highway construction all were very much full of silt.”

The project was substantially completed in 1995, at which time the DOT installed concrete flumes to prevent soil from gashing out of drainage areas. In October 1995, Roberts performed tests on the lake bed and determined that there was 32,500 cubic yards of silt in the lake. After attributing some of the silt to other causes, Roberts concluded that approximately 20,000 cubic yards of silt resulted from the highway construction.

An appraiser testified concerning the value of Hulsey’s house, surrounding property and his portion of the lake as of January 24, 1991 and the value of the same property on October 1, 1995. Based on these two appraisals, the appraiser concluded that the lake siltation resulted in a 45 to 50 percent depreciation in the fair market value of Hulsey’s property. The appraiser provided similar testimony concerning the relative values and depreciation in market value of the property owned by Reginald Jones, Sr.

1. J. B. and Ann Jones assert that the trial court erred in dismissing them from the action because there was sufficient evidence showing their property suffered consequential damages as a result of the DOT’s siltation of the lake. They argue in their appellate brief that their “damages are capable of being calculated by determining the depreciation of the fair market value of their property.” We find no merit in this contention.

“ ‘Consequential damages to a contiguous tract of land having a different ownership from that in which the taking occurs may be real and may in fact exist, but a separate owner’s claim for consequential damages to his land contiguous to the tract where the taking occurs cannot be asserted in a condemnation action. Consequential damages to “the remainder of the tract in which the taking occurs” are the only consequential damages that may be recovered in the condemnation action.’ [Cits.]” Exxon Corp. v. Dept. of Transp., 202 Ga. App. 43, 44 (2) (413 SE2d 238) (1991). Compare Lee v. City of Atlanta, 219 Ga. App. 264, 266 (3) (464 SE2d 879) (1995) (compensatory damages for taking of easement on condemned property are authorized).

Here, the evidence is clear that J. B. and Ann Jones do not own any of the lake but merely own a parcel of property adjacent to the lake. It is also clear that their inverse condemnation action against the DOT rested upon alleged consequential damages to their own property resulting from siltation of the contiguous lake. Even if the value of the Jones’ property depreciated as a consequence of the siltation, the authority is clear that such damages cannot be asserted in a condemnation action. See Exxon Corp., supra. Accordingly, the trial court did not err in dismissing J. B. and Ann Jones from the action on this ground.

2. Appellants assert that the trial court erred in granting a directed verdict against them and in favor of the DOT. The DOT based its motion on the ground that appellants failed to present any evidence proving the date of the alleged taking. Because we find that there was some evidence establishing the date of the alleged taking and the value on that date, we reverse the trial court’s grant of a directed verdict in favor of the DOT.

When private property is taken for public use, the owner is entitled to the value of the property as of the date of taking. See Wright v. MARTA, 248 Ga. 372, 373 (283 SE2d 466) (1981). Consequential damage to property is also a “taking” entitling the owner to compensation. See id.; see also Richmond County v. Williams, 109 Ga. App. 670 (a), (b) (137 SE2d 343) (1964). The date of taking, which is the effective date for determining the amount of just and adequate compensation, must be established because losses occurring before this date are not compensable. Habersham Downs Homeowners’ Assn. v. Dept. of Transp., 212 Ga. App. 686 (4) (442 SE2d 868) (1994); Aeree Oil Co. v. Dept. of Transp., 216 Ga. App. 586, 588 (1) (455 SE2d 590) (1995), rev’d on other grounds, 266 Ga. 336 (467 SE2d 319) (1996).

There are direct, formal condemnation cases which hold that the “date of taking” is the date on which compensation is tendered or paid to the landowner. See DeKalb County v. Daniels, 174 Ga. App. 319 (2) (329 SE2d 620) (1985) and cases cited therein. These cases, however, are inapplicable to situations in which property is taken or damaged by the State for public road or street purposes. In such situations, our Constitution does not command, as a prerequisite for the taking, that just and adequate compensation be “first paid,” but rather allows the landowner to be compensated after the taking. See Ga. Const. of 1983, Art. I, Sec. III, Par. I (b). Compare id. at Par. I (a). Moreover, defining the “date of taking” as the date in which compensation is paid is illogical in inverse condemnation cases such as this, where the public entity disputes the mere existence of the taking. Under these circumstances, it is unlikely that any compensation will be voluntarily paid by the public entity.

We are unaware of any Georgia authority establishing a means for determining the “date of taking” in inverse condemnation cases. We believe, however, that where there is continuous governmental activity that damages private property, it makes sense to utilize a “ ‘date of stabilization’ ” of the impact as the date of taking, as has been done by courts in other jurisdictions. See 5 Nichols on Eminent Domain, pp. 110-111, § 18.16 (1997); see also United States v. Dickinson, 331 U. S. 745, 747-749 (67 SC 1382, 91 LE 1789) (1947); Smart v. City of Los Angeles, 169 Cal. Rptr. 174, 176 (1981). “This method measures the date of the governmental ‘taking’ as of the point in time when the damaging activity has reached a level which substantially interferes with the owner’s use and enjoyment of his property. [Cit.]” Id. at 176. Prior to the time of stabilization, landowners may be uncertain whether the governmental invasion was of such a degree that they should seek compensation. Furthermore, fixing the date of taking at an earlier time may lead to piecemeal assessments of the damages because the landowner will not know when the causative factors of the damage will stabilize. After the damage has stabilized, however, the landowner will be well-situated to evaluate the full extent of the damage to his or her property and the amount of compensation necessary to redress the damage. See Dickinson, supra.

Under the foregoing rule, we find that there was evidence in this case showing a date of taking. That evidence revealed that in the latter part of 1995 most of the construction was complete and the DOT installed concrete flumes to prevent soil from washing out of drainage areas. Evidence further showed that at that time the landowners assessed the damage to the lake and the diminution in their property values. Thus, because there was some evidence showing a date of taking and the valuation of damages on that date, the trial court erred in granting a directed verdict in favor of the DOT. See Carden, supra.

3. Finally, appellants assert that the trial court erred in granting a directed verdict to Inland on their claim that the company’s negligent harvesting activity caused silt to flow into the lake. We disagree.

The evidence relating to alleged siltation caused by Inland’s conduct showed that in 1993 the company clear cut and harvested 155 acres of timber in the drainage basin leading to the lake. As part of the harvesting project, Inland regraded existing roads and constructed less than a quarter mile of new secondary roads. Inland’s district supervisor testified that erosion control devices in the harvested area included some silt fences along the roads, which were placed there by Wright Brothers, and turnouts with holding areas to stop and collect the sediment before it ran down the hill toward the stream. Roberts, the appellants’ engineer, testified that when he first visited the harvested area in March 1996, he did not see any erosion control devices, and based on this observation and the condition of the roads, he concluded that silt must have flowed into the streams.

Decided February 25, 1998

Gammon & Anderson, Joseph N. Anderson, for appellants.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General,Daniel B. Simon III, for appellees.

The foregoing does not constitute any evidence of Inland’s negligence. Rather, it merely shows that Inland utilized erosion control devices during its harvesting, and that these same devices were gone when Roberts visited the site approximately two and one-half years later. Appellants have cited no evidence showing silt from the property flowed into the stream, but merely speculate that this must have occurred. It is well established that “ ‘[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ [Cit.]” Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990). Accordingly, because there was no evidence supporting appellants’ claim, the trial court properly granted a directed verdict to Inland. See Carden, supra.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Eldridge, J, concur.


text:
    A97A2102.
    AUTREY v. UAP/GA AG CHEM, INC.
    (497 SE2d 402)
   Ruffin, Judge.

UAP/GA AG CHEM, Inc. (“UAP/GA”) sued Walter Autrey, Jr. to enforce a guaranty agreement executed by Autrey. The trial court denied Autrey’s motion to dismiss the action based on lack of personal jurisdiction and granted UAP/GA’s motion for summary judgment. Autrey appeals, and we affirm.

1. The trial court properly granted summary judgment to UAP/ GA. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Autrey, the nonmoving party, the evidence shows that since 1984 he has been a shareholder and the president of Hamilton Turpentine Company (“Hamilton”). Hamilton is a Florida corporation which, until 1996 operated a commercial vegetable growing business. In 1988, Hamilton established an account to purchase agricultural products from UAP/GA on credit, and from that time until 1994 UAP/GA was Hamilton’s largest supplier of agricultural products. In 1994 a dispute arose between Hamilton and UAP/GA. At the time, Hamilton owed UAP/GA $665,360 on the open account, but apparently claimed it was due a set-off against a portion of the balance because of crop damage allegedly caused by defective fertilizer Hamilton purchased through UAP/GA.

In early July 1995, Autrey went to the offices of UAP/GA in Albany, Georgia to discuss Hamilton’s delinquent account with UAP/ GA. According to Autrey, representatives of UAP/GA agreed that if Hamilton executed a promissory note for the delinquent principal and interest and Autrey guaranteed the note, UAP/GA would assist Hamilton in settling its claim for crop damage against the manufacturer of the allegedly defective fertilizer. Accordingly, on July 21, 1995, Autrey met with an UAP/GA representative in Cecil, Georgia, where he executed a $877,529.94 promissory note on behalf of Hamilton and a personal guaranty for the debt. When Hamilton failed to satisfy the note by its October 1, 1995 due date, UAP/GA demanded payment from Autrey under the guaranty. UAP/GA filed the instant complaint in Superior Court of Lowndes County after Autrey also failed to satisfy the note.

(a) Autrey asserts that the trial court erred in granting summary judgment to UAP/GA because an issue of fact exists concerning whether he was induced by fraud to execute the guaranty. Autrey contends in his appellate brief that the only reason he executed the guaranty was because representatives of UAP/GA agreed that in exchange for the promise “it would arrange payment” for the crop damage Hamilton suffered due to the allegedly defective fertilizer.

In support of his argument, Autrey cites his own deposition testimony where he stated that UAP/GA representatives told him “that they already had talked to the insurance company on the fertilizer dispute and they were ready to get that settled and they would pay a claim and all that sort of stuff.” Autrey added that UAP/GA “pretty much assured [him] that we could sit down and meet and show them what we had and they would pay a product liability claim.” This same testimony also shows, however, that the parties’ alleged agreement contained no specific promises. Autrey acknowledged that UAP/GA representatives never told him that they had a “settlement figure or settlement agreement in hand[,]” only that “they would help [him] try and get it settled[.]” Autrey further conceded that it was never established whether the purported settlement agreement involved UAP/GA’s insurance company, the fertilizer manufacturer’s insurance company or both insurance companies. Finally, Autrey’s testimony clearly shows that the parties never agreed to the amount of the alleged settlement.

We agree with UAP/GA that the alleged agreement was simply too vague to establish fraud. “Although fraud can be predicated on a misrepresentation as to a future event where the [promisor] knows that the future event will not take place, fraud cannot be predicated on a promise which is unenforceable at the time it is made.” (Citations and punctuation omitted.) Bridges v. Reliance Trust Co., 205 Ga. App. 400, 403 (2) (422 SE2d 277) (1992). The parties must agree on all essential terms for a contract to be enforceable. See Poulos v. Home Fed. Sav. &c. Assn., 192 Ga. App. 501, 503 (2) (385 SE2d 135) (1989). “If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must still follow that a valid and binding contract was not made as of the earlier date. Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” (Citations and punctuation omitted.) Id.

In this case, the evidence of record is clear that the alleged fraud was predicated on a promise which was unenforceable at the time it was made. As stated above, Autrey’s own deposition testimony shows that UAP/GA representatives never told him that they had a “settlement figure or settlement agreement in hand[,]” only that “they would help [him] try and get it settled[.]” There was no agreement as to the amount of the purported settlement or as to which insurance company would pay the settlement. Construing the evidence in a light most favorable to Autrey, it shows only that UAP/GA agreed that it would settle the dispute under terms and conditions to be agreed on in the future. Such an announced determination, without agreement on the essential terms of the settlement, was unenforceable and therefore insufficient to form the basis of Autrey’s fraud defense. See id.; Bridges, supra. Accordingly, the trial court did not err in granting UAP/GA summary judgment on this ground.

(b) The trial court also correctly rejected Autrey’s claim that the guaranty lacked consideration. The record shows that the guaranty agreement was under seal and recited that it was “[i]n consideration of the sum of Five Dollars ($5.00) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by [Autrey]. . . .” “A contract under seal raises a prima facie presumption of consideration, which is rebuttable. [Cit.] Thus, although a contract under seal imports consideration [cit.], the defense of failure of consideration can be asserted. [Cit.] However, any nominal consideration recited in sealed instruments is sufficient as a matter of law. [Cits.]” Jolles v. Wittenberg, 148 Ga. App. 805, 807 (2) (253 SE2d 203) (1979). It follows that the consideration recited in the sealed guaranty executed by Autrey was sufficient as a matter of law. See id.

2. The trial court did not err in denying Autrey’s motion to dismiss based on lack of personal jurisdiction. “ ‘Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.]’ ” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435) (1993). “[I]f a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. [Cits.]” Id. at 540.

There is abundant evidence in this case establishing the trial court’s personal jurisdiction over Autrey. That evidence shows that although Autrey claims a Florida residence has been his domicile since 1993, he formerly lived and worked in Georgia. In fact, Autrey was mayor of Valdosta, Georgia from 1986 to 1988. He owned a securities business there from 1987 to 1992 and still owns a house in Valdosta where he lives 25 percent of the time. In addition, Autrey currently owns 22 percent of the Valdosta Plant Company located in Cecil, Georgia, and has outstanding loans with a Georgia bank.

In 1988, Autrey began doing business with UAP/GA which is located in Albany, Georgia. As stated above, from that time until 1994, UAP/GA was Hamilton’s largest supplier of agricultural products. In early July 1995, Autrey went to the offices of UAP/GA in Albany, Georgia to discuss Hamilton’s delinquent account with UAP/ GA. It was there that the parties negotiated and agreed that Hamilton would sign a promissory note and Autrey would execute the guaranty. Three weeks later UAP/GA representatives met with Autrey at the Valdosta Plant Company he owns in Cecil, Georgia, where he executed both the note and the guaranty. Finally, Autrey was personally served with process in this action at his residence in Valdosta, Georgia.

Decided February 25, 1998.

Langdale, Vallotton, Linahan, Threlkeld & Wetherington, William P. Langdale, Jr., William P. Langdale III, for appellant.

Gardner, Willis, Sweat & Goldsmith, Deena L. Plaire, for appellee.

Pretermitting consideration of Autrey’s other contacts with Georgia, evidence showing that he negotiated and executed the personal guaranty in Georgia “is a sufficient minimum contact to empower a court of this state to exercise personal jurisdiction over [him]. [Cits.]” Outlaw v. John R. Bartlett Foundation, 166 Ga. App. 381, 382 (1) (304 SE2d 507) (1983). Similarly, evidence that Autrey was personally served with process at his Georgia residence is alone sufficient to provide a basis for the trial court’s personal jurisdiction over him. See Humphrey v. Langford, 246 Ga. 732 (273 SE2d 22) (1981). Thus, the trial court properly denied Autrey’s motion to dismiss for lack of personal jurisdiction.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A1925.
    GARDNER et al. v. KINNEY.
    (498 SE2d 312)
   Beasley, Judge.

Gardner and Ballard sued Ray Kinney, essentially alleging he was required to repay $10,000 earnest money they paid in connection with a “Purchase and Sale Agreement” relating to certain property in Butts County, Georgia. Kinney counterclaimed alleging fraud and seeking compensatory and punitive damages, plus the costs of litigation and attorney fees “because Plaintiffs have been stubbornly litigious and have put Defendant to unnecessary trouble and expense to defend himself.” According to the pre-trial order, Kinney asserted he was entitled to “damages in at least the amount of the earnest money paid to him, and more, because of the fraudulent representations made.”

The verdict was against Gardner and Ballard on their claims and facially in favor of Kinney on his counterclaim. The jury awarded no compensatory damages but did award Kinney costs of litigation and attorney fees. Plaintiffs’ motion for new trial was denied.

Gardner and Ballard’s sole enumeration of error is that the jury was not authorized to award Kinney fees and costs because it awarded no damages for fraud.

First, we reject Kinney’s argument that he implicitly recovered damages because he was allowed to keep the earnest money. Return of the earnest money was the relief the plaintiffs sought against Kinney, but the jury found they were not entitled to it. Status quo was maintained. Kinney defeated the plaintiffs’ claims against him; either he did not prove fraud or he did not prove damages for fraud so as to prevail on his ¿ounterclaim. He confuses compensation for fraud with entitlement to earnest money for failure of the sale to close.

When a defendant asserts a claim for relief independent of a claim for litigation expenses incurred in defending against a plaintiff’s case-in-chief, defendant may recover litigation expenses incurred in prosecuting such an independent claim in accordance with OCGA § 13-6-11. Kinney’s fraud counterclaim is an independent claim for relief.

The remaining question is whether fees and costs may be awarded for stubborn litigiousness where the defendant is awarded zero damages on his counterclaim. Ga.-Carolina Brick &c. Co. v. Brown addressed whether a plaintiff could recover litigation expenses under what is now OCGA § 13-6-11 where he is awarded substantially less than demanded in actual damages. The court held that he could and in so doing explained that evidence of bad faith or stubborn litigiousness is logically independent from whether the plaintiff recovered all the damages he sought. Thus, “where there is actual bad faith or stubborn litigiousness in the evidence, attorney fees are authorized under [OCGA § 13-6-11], regardless of the amount of the recovery.”

The Supreme Court, without reference to Ga.-Carolina Brick, subsequently determined in Steele v. Russell that fees and costs are not recoverable where the jury awarded no damages to a defendant on his counterclaim. In Steele, counterclaimants sought nominal damages for trespass, plus expenses of litigation. The verdict was in favor of the counterclaim only in that, although the jury awarded no nominal damages, it. awarded $3,419.87 in fees and costs. The Supreme Court held that “because the jury refused to award appellees any damages for the trespass alleged in their counterclaim, appellées were not entitled to recover any of the expenses of litigation they incurred in prosecuting the counterclaim and the trial court erred by awarding such.” The unauthorized portion of the judgment was reversed.

Thus there is a distinction between some amount and no amount. Because litigation expenses (costs and attorney fees) are wholly ancillary, they are not recoverable when no damages are awarded. “ ‘OCGA § 13-6-11 does not create an independent cause of action. That statute merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages. (Cit.)’ Brown v. Baker, 197 Ga. App. 466, 467 (2) (398 SE2d 797) (1990).” Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 826 (426 SE2d 905) (1992). So, as in Steele, we must likewise reverse that portion of Kinney’s judgment. See also First Union Nat. Bank v. Big John’s Auto Sales, 203 Ga. App. 797 (417 SE2d 416) (1992).

Decided February 26, 1998.

Lawrence E. Harrington, for appellants.

Johnny B. Mostiler, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., Ruffin and Eldridge, JJ., concur in the judgment only.

        Ballenger Carp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 432 (274 SE2d 786) (1980).

       153 Ga. App. 747, 750 (2B) (266 SE2d 531) (1980).

       Id. at 750-754.

         Id. at 754.

       262 Ga. 651, 652 (2) (424 SE2d 272) (1993).

       Id. at 652.

       For this reason, the statement in Gibson v. Southern Gen. Ins. Co., 199 Ga. App. 776, 777 (1) (406 SE2d 121) (1991) that “OCGA § 13-6-11 creates a cause of action” is erroneous; it is not a separate cause of action but rather merely an additional element of damages which are afforded. The error was repeated in Aetna Cas. &c. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 647 (2) (442 SE2d 778) (1994).


text:
    A97A2009.
    A97A2010.
    AUTRY v. THE STATE. HOLLOWAY v. THE STATE.
    (498 SE2d 304)
   Birdsong, Presiding Judge.

Christopher Autry and Jason Lee Holloway were tried together and convicted of aggravated assault with intent to rob and aggravated battery, for their violent and vicious assault upon a woman who was standing at the entrance to a store in a shopping center. The 71-year-old woman and her daughter were standing at a drink dispenser when the woman was struck on the right side of her face by someone who took her purse as she fell. She was knocked unconscious. Her injuries included a broken shoulder, a ruptured sinus, spinal damage and cracked teeth. Her daughter was walking towards the parking lot, but, hearing the victim scream, she turned around and saw two young men pulling her mother down by her purse. The two men took off running when the daughter screamed; she then saw her mother lying motionless in a pool of blood. A store manager who was standing nearby heard the screaming and saw a couple of “figures” running across the parking lot whom he recognized as two young men who had walked by him not five minutes earlier. He ran into the parking lot, saw the two figures getting in a car, and asked them what was happening. Both Autry and Holloway responded that they had not done anything. The man who was later identified as Christopher Autry had the woman’s purse but threw it in the store manager’s direction. The store manager managed to grab Holloway, but Autry ran away. He was later captured and was identified by the store manager. A girl who had been with Autry and Holloway before the assault on the victim testified to the conversations between Autry and Holloway about getting money in a way that was not going to be “right” and that she and another friend let them out of her car in the parking lot and waited for them; she saw them running to the car and she saw Holloway get caught. She drove away to pick up Autry after he ran; when she found him, he said he had “snatched” an old lady’s purse.

Following the denial of their motions for new trials, Autry and Holloway filed separate appeals which we have consolidated for disposition. Holloway contends the evidence was insufficient to support the convictions against him because, although he was with Autry before the aggravated assault and robbery and there is no doubt that he was one of the two figures seen running across the dark parking lot of the shopping center after the assault, nevertheless only one witness, the victim’s daughter, connected Holloway to the assault on her mother. Autry enumerates four errors including the insufficiency of the evidence, the admission of “gruesome” color photographs of the injured victim which were inflammatory and were also cumulative, and the denial of his motion for severance or separate trial. Held:

Case No. A97A2009

1. We have examined the evidence and find it sufficient to enable a rational trier of fact to find Autry guilty of the offenses of which he was convicted, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The credibility of the witnesses and the weight to be given the evidence are the sole province of the jury (King v. State, 224 Ga. App. 400 (480 SE2d 385)), and it is not for appellant or this Court to decree which witness is credible and whose testimony is consistent, self-serving or less weighty.

2. The trial court did not err in admitting color photographs of the assault victim showing her injuries. These photographs were evidence to the issue of aggravated battery. The complaint that photos of the injured victim are “inflammatory” or “cumulative” of other evidence is not a ground to exclude them from evidence. OCGA § 16-5-24 as alleged in the indictment required proof that the victim had been “severely disfigured” as a result of the malicious attack. Photographs which are relevant to any issue in the case are admissible although they will have an effect upon the jury which the defendant feels is damaging to him; jurors are generally deemed to have normal common sense, and in these cases, on these records, we do not well receive the suggestion that the jury will convict a defendant of a crime merely because they have seen the true extent of the victim’s injuries. Photographs showing a severely injured victim may, however gruesome, be relevant to the trial of her alleged assailant and they are not objectionable merely because there is other evidence of the severity of those injuries. Bullard v. State, 263 Ga. 682 (436 SE2d 647); McGee v. State, 260 Ga. 178 (391 SE2d 400); Richards v. State, 251 Ga. 447 (306 SE2d 302); Brown v. State, 250 Ga. 862 (302 SE2d 347); Marks v. State, 210 Ga. App. 281 (435 SE2d 703); Lewis v. State, 180 Ga. App. 369 (349 SE2d 257).

Decided February 26, 1998.

Thurmond, Mathis & Patrick, Adrian L. Patrick, David T. Wooten, for appellant (case no. A97A2009).

Pete, Pete & Associates, Anthony T. Pete, Janet S. Willy, Thomas J. Killeen, for appellant (case no. A97A2010).

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

3. Whether to sever the trials of co-defendants is a matter of discretion with the trial judge, and we -will not disturb that discretion unless it has been abused. OCGA § 17-8-4; Causey v. State, 192 Ga. App. 294 (384 SE2d 674). To be entitled to a severance, the appellant must have made a clear showing of prejudice resulting from joinder of these trials amounting to denial of due process, rather than the mere possibility that a separate trial would improve appellant’s chance of acquittal. Tanner v. State, 176 Ga. App. 77 (335 SE2d 133). Considering particularly the evidence in this case, which showed without strong dispute that Autry was the person who was most active in the crimes against the victim while his co-defendant’s participation was less strongly remarked, there was no denial of due process in the joinder of these trials either from confusion of evidence, antagonistic defenses or unfair implication as to Autry of acts committed by his co-defendant. See Murphy v. State, 246 Ga. 626 (273 SE2d 2).

Case No. A97A2010

4. Jason Lee Holloway’s sole complaint is of the sufficiency of the evidence to sustain his convictions of the offenses. We have reviewed the evidence and find it fully sufficient to persuade a rational trier of fact, beyond a reasonable doubt, of Holloway’s full guilty participation in the offenses of which he was convicted. Jackson v. Virginia, supra.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.