text:
    A92A0462.
    JARALLAH v. PICKETT SUITE HOTEL et al.
    (420 SE2d 366)
   Cooper, Judge.

Appellant was employed by appellee hotel as an assistant food production manager in September 1987 when he fell onto a concrete floor and suffered a head injury. An ALJ found appellant disabled as a result of the injury and awarded appellant workers’ compensation benefits for total disability in November 1988. In December 1989, appellees requested a hearing on a change in condition, asserting that appellant had returned to work as a caterer; that he had generated income from his work; and that he suffered a new accident as the result of a January 1989 automobile accident. After a hearing, an ALJ concluded that appellant had not experienced a change of condition which would authorize the employer to suspend disability income benefits; that the employer remained responsible for the payment of expenses related to appellant’s orthopedic problems; that appellant’s claims for family/marital/sexual counseling should be paid by the employer; and that the insurer should be ordered to establish a charge account or a direct billing system with a pharmacy in order to furnish necessary medicines to appellant. Appellees appealed to the State Board of Workers’ Compensation, and the full board ordered independent psychiatric and orthopedic evaluations of appellant. The full board, after de novo consideration of all the evidence, as well as the additional evidence ordered, concluded that appellant’s income benefits should be suspended due to appellant’s ongoing, income-producing catering business; that appellees are not responsible for appellant’s orthopedic claims since his current problems are the result of a new accident; that appellees are responsible for expenses relating to appellant’s continuing mental and emotional problems; and that appellant’s claims for a prescription charge account and payment for family/marital/sexual counseling should be denied. The superior court affirmed the award of the full board under the “any evidence” standard, and appellant then brought the instant appeal, raising four enumerations of error.

1. Appellant first contends that the full board suspended his income benefits on grounds other than a change in condition and that the findings of the full board did not support the decision to suspend the benefits. Although the full board did not recite the phrase “change of condition” in its decision, it did state as follows: “[I]t has been shown by substantial evidence that the employee’s mental/emotional problems have not prevented him from operating a catering business out of his home. Based on the employee’s demonstrated ability to engage in self-employment activities, the Board finds that a suspension of income benefits is warranted at this time. . . . Based on [appellant’s] numerous admissions regarding his self-employment activities, the Board finds that [appellant’s] catering business has been ongoing. The Board does not find credible [appellant’s] claim that his self-employment activities were of limited duration. Having found that the employee has hidden his outside earnings from the employer/insurer, the employer/insurer’s request for authorization to suspend income benefits should be granted.” OCGA § 34-9-104 (a) defines “change of condition” as “a change in the wage-earning capacity, physical condition or status of an employee.” We have held that “ ‘[i]n order for the board to terminate an employee’s eligibility for benefits, the evidence must prove an improved economic condition. [Cit.] This is proved by evidence that the employee’s physical condition has improved to the point that he has either already returned to work or has the ability to return to work. . . . [Cits.]’ [Cit.]” Fairway Transp. v. Brewer, 192 Ga. App. 871, 872 (386 SE2d 674) (1989). See Hopper v. Continental Ins. Co., 121 Ga. App. 850 (1) (176 SE2d 109) (1970). Further, in Carrollton Coca-Cola Bottling Co. v. Brown, 185 Ga. App. 588, 594 (2) (365 SE2d 143) (1988), we held that the issue of a change of condition must be addressed by the full board “[i]f the facts show [the claimant] is able to work and to some particular degree is working.” (Emphasis omitted.) The text of the full board’s decision, together with the full board’s findings set forth in its award, evidence to us that the full board’s decision was based upon the proper statutory standard of change in condition.

The full board set forth five detailed findings of fact supporting its decision regarding a change of appellant’s economic condition. The record verifies the full board’s findings that appellant admitted to catering at least four or five, and possibly more, events while he was receiving disability benefits; that appellant told an insurance investígator that he was self-employed as a caterer and that he earned $250 per week; that appellant gave the investigator a business card indicating he was in the catering business; that appellant indicated that he was self-employed on a patient information sheet; that an investigator testified to conversations with appellant in which he agreed to cater a party for her and in which he stated he was currently involved in catering another event; and that appellant indicated that he owned his own catering service and earned $25,000 per year when he purchased a new car. There was medical evidence in the record as to the mental and emotional impairment of appellant, and the opinion of the full board stated that all the evidence had been considered. Despite the medical evidence, the full board concluded that appellant had undergone an economic change of condition for the better. “ ‘The Full Board is not “ ‘bound in every way to accept the literal statements of a witness before it, merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts and in still other ways the question of what is the truth may remain an issue of fact, despite uncontradicted evidence in regard thereto.’ [Cits.]” [Cit.]’ [Cit.]” Raley v. Lanco Paint & Drywall, 190 Ga. App. 462, 465 (3) (379 SE2d 196) (1989). “ ‘The superior court was required to construe the evidence in the light most favorable to the employer as the party who prevailed before the Full Board. [Cit.]’ [Cit.]” Fairway Transp., supra at 871. “The law is well established that a finding of fact by the [full board], when supported by any evidence, is conclusive and binding upon the court, and . . . neither the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.” (Citations and punctuation omitted.) Skelton v. Dept. of Transp., 191 Ga. App. 835, 836 (383 SE2d 162) (1989). There being some evidence to support a conclusion that appellant has undergone an economic change of condition for the better, the superior court did not err in affirming the decision of the full board with respect to the change of condition.

Appellant, however, also contends that the full board’s decision to suspend his income benefits cannot be supported because the full board failed to make specific findings on the amount of wages appellant is making or is capable of making after the change in condition. Such a finding is not necessary as an element of proof to support a determination of a change in condition; however, a showing of a specific amount of wages is necessary so that “ ‘an intelligent calculation can be made of the compensation to be paid.’ ” Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 224, 225 (251 SE2d 138) (1978). See also Zurich American Ins. Co. v. Drivas, 143 Ga. App. 232, 233 (237 SE2d 726) (1977); Hardeman v. Liberty Mut. Ins. Co., 124 Ga. App. 710 (1) (185 SE2d 789) (1971). In its award, the full board recites appellant’s contradictory admissions that he earned $250 per week and $25,000 per year. While this evidence supports the conclusion that an economic change of condition had occurred, the full board made no findings to support a determination that appellant’s current wages are such as would require a suspension of all income payments. As appellant points out, if his wages were found to be $250 per week, then he may still be entitled to receive partial benefits since his wages with the employer were originally determined to be in excess of $250 per week. Therefore, as to this issue, we reverse the superior court with direction to remand to the full board for the entry of findings as to appellant’s post change of condition wages and a calculation of the benefits, if any, to which appellant is entitled as a result of those findings. Compare Newton, supra.

2. Appellant next argues that the full board’s decision to deny payment for appellant’s orthopedic expenses was not supported because it was based on an erroneous finding of fact. The full board made several detailed findings of fact to support its decision that appellant suffered a new injury as a result of the automobile accident in January 1989 and that his physical problems cannot be attributed to the work related injury at the hotel. The full board found in part that appellant sought no further medical treatment for his orthopedic problems from June 1988 until a few days after the automobile accident. Appellant brings our attention to a statement by his treating psychiatrist that the psychiatrist had been administering medication for appellant’s physical problems since June 1988 per an agreement with the physician who first treated these problems. Even if the full board did misstate this fact, “a misstatement of significant testimony is a ground for remand to the Board only ‘where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.’ [Cit.]” Murray County &c. v. Wilbanks, 190 Ga. App. 611 (3) (379 SE2d 559) (1989). In light of the remaining detailed findings that do support the full board’s decision, including the board-ordered independent medical report, we do not think that a different understanding of the contested evidence would have resulted in another conclusion by the full board. Since the award of the full board was authorized under the “any evidence” standard, “it must be affirmed even though the award was based on an erroneous finding and conclusion of fact. [Cit.]” Liberty Mut. Ins. Co. v. Thomas, 99 Ga. App. 124, 125 (1) (108 SE2d 180) (1959).

3. In his third enumeration, appellant asserts that the award should be remanded to the full board for the entry of findings of fact with respect to the denial of payments for appellant’s family/marital/ sexual counseling. We agree. OCGA § 34-9-200 (a) states that “[t]he employer shall furnish the employee entitled to benefits under this chapter such medical, surgical . . . and other treatment, items, and services which are prescribed by a licensed physician . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” The claimant bore the burden of “proving that the services for which [he] sought compensation were such to ‘give relief’ directly to [his] work-related injury and were exclusively for [his] benefit.” Berry College v. Storey, 199 Ga. App. 298 (2) (404 SE2d 640) (1991). Since “[t]he purpose behind OCGA § 34-9-200 (a) is to provide services prescribed by a licensed physician which ‘give relief’ to the work-related injury of the employee exclusively . . . , the employer is liable under [the statute] to compensate the injured employee for the full amount of [such services] only where the factfinder determines that all those services are for the exclusive benefit of the injured employee and directly give relief to the work-related injury. Otherwise, the employer is liable only for a proportional share of the [services] to relieve the work-related injury of the employee exclusively. . . .” Id. at 299-300. In its award, the full board made no findings to support or explain its decision to deny appellant’s claim for marital counseling. The full board did, however, acknowledge appellant’s continuing mental and emotional problems and ordered that the employer remain responsible for the costs to treat such problems. The record reflects that appellant’s treating psychiatrist recommended an ongoing program of family/ marital therapy involving appellant’s wife as an integral part of his overall therapy and treatment of his disability. Although we agree with appellees that any portion of this treatment that in effect treats appellant’s wife or any other member of his family is not compensable under OCGA § 34-9-200 (a), see Berry College, supra, the full board failed to make findings indicating whether the remaining portion of such treatment is or is not compensable under the statutory standard. Accordingly, we reverse the superior court on this issue with direction to remand to the full board for the entry of such findings.

4. In his fourth enumeration, appellant contends that the full board’s decision to deny a prescription charge account was erroneous because OCGA § 34-9-200 (a) requires an insurer to establish a direct billing system with a pharmacy. Appellant bases his argument on the amended statutory language which states that the employer “shall furnish” the services to the employee, rather than stating that the employer shall furnish compensation for the services. Appellant cites no authority which would make a prescription charge account mandatory, and we decline to so hold. The statutory language indicates that the full board, in its judgment, would have the authority to authorize a direct billing system, but such a system is not mandatory in every case. Especially in light of the full board’s findings regarding a change in appellant’s economic condition and his ability to work and generate income, the superior court was correct in affirming the full board’s decision to deny appellant’s request for a prescription charge account.

Decided June 26, 1992.

George, Trammell & Bartles, Lavinia B. George, Alex B. Wallach, for appellant.

Cone & Shivers, Judith A. Hodges, for appellees.

Judgment affirmed in part and reversed and case remanded with direction in part.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A0774.
    RUSS v. THE STATE.
    (420 SE2d 373)
    Decided June 26, 1992.

      Steven W. Reighard, for appellant.
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of violating Georgia’s Controlled Substances Act, i.e., possession of a controlled substance (“cocaine”) with intent to distribute. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his requests to charge on the law of circumstantial evidence.

In Robinson v. State, 261 Ga. 698 (410 SE2d 116), the Supreme Court of Georgia reversed that defendant’s convictions on two counts of armed robbery because the trial court failed to charge the law of circumstantial evidence, holding that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Id. at 699. In the case sub judice, the State presented circumstantial evidence showing that defendant Russ committed the crime charged in the indictment. Consequently, the trial court erred in failing to charge on the law of circumstantial evidence and defendant’s conviction must be reversed. Robinson v. State, 261 Ga. 698, 700, supra.

2. In his remaining two enumerations, defendant contends the trial court inappropriately commented upon the evidence during the jury charge and the trial court erred in denying his challenge to the array. Any such error is unlikely to occur upon retrial. Consequently, it is unnecessary to address these enumerations.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.'


text:
    A92A0873.
    HUTCHINS v. THE STATE.
    (420 SE2d 374)
    Decided June 26, 1992.

      Patrick G. Longhi, for appellant.

      Lewis R. Slaton, District Attorney, William M. Akin, Henry A. Hibbert, Carl P. Greenberg, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of trafficking in heroin. This appeal followed. Held:

Defendant contends there is insufficient evidence linking him to heroin found in a room in which he was apprehended. This contention is without merit.

A confidential police informant purchased heroin at an apartment in which defendant rented a room. Armed with this information and a search warrant, law enforcement officers raided the apartment and found defendant and two other persons in a bedroom of the apartment. Defendant was standing next to a bed which supported a plate containing over four grams of a mixture containing heroin. Five loaded handguns, drug paraphernalia, items used in the business of trafficking heroin and over $1,000 in United States currency were also found on the bed. This evidence and evidence that the heroin, money, drug paraphernalia, items used in the business of selling heroin and weapons were within arm’s reach of defendant, authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of trafficking in heroin. OCGA § 16-13-31 (b); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Nelson v. State, 197 Ga. App. 898 (1) (399 SE2d 748).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0898.
    ROBB v. CSX TRANSPORTATION, INC.
    (420 SE2d 370)
   McMurray, Presiding Judge.

On November 21, 1989, plaintiff brought suit against defendant seeking damages for a hearing loss injury under the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq. Defendant answered the complaint, denying liability and asserting, inter alia, a statute of limitation defense. Following discovery, defendant moved for summary judgment. The trial court granted the motion, ruling that plaintiff’s suit was time barred as a matter of law. Plaintiff appeals. Held:

In his deposition, plaintiff testified as follows: “Q. When is the first time you noticed any kind of problem with your hearing? A. Early in the last decade, I noticed my ears ringing at times. Q. When you say the last decade, are you talking about the 1980’s? A. Yes. Q. So it would have been in the early 1980’s? A. Yes. Q. Was there any particular times when you notice your ears ringing? A. Yeah, I can recall several different events, occurrences. . . . There was one occasion back around 1980 when I had to run a train a long distance with a horn stuck, blew for 50 miles and several hours. Just early in ‘87, a pop-off valve blew close to my face. All of those were painful and traumatic. Q. Were you ever exposed to car retarder noises, say, before 1980? A. Yes. Q. Do you remember there being occasions when that would leave your ears ringing or there would be a period of time afterwards where you weren’t able to hear as well? A. Yes. Always for a short time after a loud noise, your hearing suffers and your ears ring some. . . . Q. That incident where the horn stuck, did you see any doctor about that afterwards? A. No. Q. How long did your ears ring after that? A. That was several days. That was one of the more traumatic things that happened that I recall over the years. Q. Aside from ringing, were you not able to hear as well for a few days? A. Yes. Q. And that was what, 1980? A. Approximately ‘79 to ‘80. Q. Did you make out any kind of an accident report or incident report regarding that? A. No, not that I remember. I didn’t know that I was injured. I just thought that I was exposed to some noise there and it would wear off. It’s like getting cut or scraped, you know, things heal. Q. When did you first notice that you couldn’t hear as well in a room where there was more than one person talking? A. ‘86 or ‘87, become increasingly aware of it. Q. Was that the first thing that told you that you might have some problem with your hearing? A. Yeah. . . .

“Q. When is the first time that you noticed any kind of problem, not necessarily as bad as it is today, but the first time you noticed it? A. ‘83. Q. What did you notice back then? A. My ears rang a little . . . Occasionally. ... I’d notice it two or three times a month maybe. Q. Did you ever notice it when you were away from work at that time? A. Yeah. ... I thought it’s probably from noise. Q. From noise at work? A. Yeah, but it never was persistent or constant. Q. Do you experience a ringing in your ears occasionally or all the time now? A. All the time now. It never stops. . . . Q. When did you first notice ringing in your ears on more than just an occasional basis, more than just two or three times a week? A. ‘87.”

On April 20, 1989, plaintiff answered a hearing loss questionnaire by stating that he experienced (1) a ringing in the ears, (2) a hard time understanding words in a noisy environment, (3) the muffling of familiar sounds and (4) a need to watch a person speak to understand the words. Regarding the approximate dates of these experiences, plaintiff responded that they were “progressive over [the] last 10 years.”

Plaintiff was seen by Dr. Ethan F. Staats, an otolaryngologist, on April 4, 1991. Dr. Staats deposed that plaintiff told him he noticed a decline in his hearing in the “early 1980’s and it had gradually become worse.” Asked if he was given a specific year, Dr. Staats responded: “No, he — the onset of it was vague and gradual. According to him, it began — according to my notes, somewhere around ‘80 to ‘83.”

In an affidavit, Dr. Staats deposed: “Noise-induced hearing loss is usually a cumulative permanent loss of hearing that develops gradually over years of exposure to hazardous noise. This latent occupational disease involves a long, slow progressive process that slowly wears away an individual’s hearing. Because of the cumulative nature of this injury, [it] is not usually discernible at the time of exposure and it is virtually impossible to correlate the progression of the disease with specific exposures on specific dates. . . . [B]ecause of the progressive nature of this occupational disease, victims who have not been made aware of the correlation between noise exposure and hearing loss do not ordinarily attribute the loss of hearing to their exposure to noise. ... A large part of the reason industrial workers, including [plaintiff], are not aware of their loss is because of a common condition known as Temporary Threshold Shift (TTS). In the course of my practice and research experience as an Otolaryngologist and as a hearing conservation professional, I have learned that the phenomenon of TTS is a difficult impediment to the education and awareness of workers to the danger of noise. Because of the fact that symptoms of TTS tend to ‘disappear’ by the next work day, noise-exposed workers tend to believe that they are not experiencing any form of underlying or permanent hearing loss. Those of us who have been trained in the effects of noise and are aware of the fact that TTS, while not permanent injury, is indicative of the underlying process of damage which, if not controlled, will eventually result in noise-induced, permanent threshold shift. Workers who have not been trained, or who do not understand this phenomenon, commonly believe just the opposite precisely because of the fact that TTS is, by definition, temporary.”

Section 56 of Title 45, United States Code, provides that “[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.” Thus, in deciding whether plaintiff’s cause of action is time barred, we must determine “the day the cause of action accrued.”

It is relatively easy to determine the day a cause of action accrued in the context of an immediate, recognizable injury. When it comes to an occupational illness which is not immediately apparent, on the other hand, it is hard to pinpoint the date of accrual. The United States Supreme Court recognized this problem in Urie v. Thompson, 337 U. S. 163 (69 SC 1018, 93 LE 1282), a FELA case in which the employee alleged he contracted silicosis over the course of his long employment: “ ‘[N]o specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently, the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substances manifest themselves.’ [Cit.] ” Id. at 170.

Urie v. Thompson, 337 U. S. 163, supra, intimated that a plaintiff cannot avoid the statute of limitation by choosing to ignore the early signs and symptoms of his disease. Id. at 170. The Supreme Court made this clear in United States v. Kubrick, 444 U. S. 111 (100 SC 352, 62 LE2d 259), a Federal Tort Claims Act case, in which it was said that a plaintiff has a duty to investigate an injury and the cause of the injury when he experiences symptoms of an injury. Id. at 123. Thus, it has been held that “a claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known. Dubose v. Kansas City Southern Ry. Co., 729 F.2d 1026 (5th Cir.), cert. den. 469 U. S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984); Jones v. Maine Cent. R. Co., 690 F.Supp. 73 (D.Me. 1988).” McCoy v. Union Pacific R. Co., 796 P2d 646 (Or. App. 1990).

At what point did the effects of the noise in plaintiff’s workplace manifest themselves? Plaintiff contends the effects did not manifest themselves until 1987. In this regard, plaintiff argues that any prior manifestations of hearing loss were only temporary and that he did not notice any lasting effects until he experienced a “constant, tinnitus, or ringing in his ears. . . .” We cannot accept plaintiff’s contention.

It is clear to us that plaintiff’s hearing loss manifested itself at least by 1983 and that plaintiff knew at that time that his condition was caused by on-the-job noise: In his deposition, plaintiff admitted that as early as 1983 he experienced a ringing in his ears two or three times a month. In his 1989 responses to a hearing loss questionnaire, plaintiff acknowledged that his hearing problems became progressively worse over a ten-year period. Moreover, plaintiff told Dr. Staats that he experienced a hearing loss in the early 1980s. Thus, plaintiff knew or should have known of a work-related injury long before the three-year limitation period. “That [plaintiff’s] injury had not reached its maximum severity in [the early 1980s] but continued to progress does not affect this result.” Fries v. Chicago & Co. Transp. Co., 909 F2d 1092, 1096 (7th Cir. 1990).

Decided June 26, 1992.

Jones & Granger, Charles M. Hardman, J. Ashton Moss, for appellant.

Alston & Bird, Jack H. Senterfitt, Linda G. Carpenter, for appellee.

Relying upon the affidavit of Dr. Staats, plaintiff argues, in effect, that as an industrial worker he could not be expected to know that his initial hearing problems were serious enough to seek medical attention. We disagree. “The accrual of a claim under FELA, however, does not require that the plaintiff be disabled . . . [W]hether or not plaintiff’s condition was bad enough to cause him to go to the doctor is irrelevant, if, as the evidence here shows, he knew of his condition and its cause.” McCoy v. Union Pacific R. Co., supra at 649.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1105.
    WALKER v. THE STATE.
    (420 SE2d 375)
   McMurray, Presiding Judge.

Defendant Walker appeals his conviction of the offenses of aggravated child molestation and child molestation. The sole enumeration of error addresses the sufficiency of the evidence to authorize defendant’s conviction. Held:

The primary witness presented by the State was the victim, defendant’s mentally retarded daughter, who was eight years of age at the time of trial. While conceding that the victim was competent to testify under the terms of OCGA § 24-9-5 (b) as addressed in Sizemore v. State, 201 Ga. App. 431, 432 (2) (411 SE2d 505), defendant questioned, in the light of the victim’s mental difficulties and history of prevarication, whether the evidence thus put before the jury was sufficient to support the verdict. While couched in terms of the sufficiency of the evidence, the issue actually posed by defendant is one of credibility. “ ‘ “It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.)” (Cit.)’ Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990).” Cole v. State, 200 Ga. App. 318, 319 (2) (408 SE2d 438). See also Nguyen v. State, 201 Ga. App. 132, 133 (410 SE2d 340); Fitz v. State, 201 Ga. App. 83, 85 (410 SE2d 186); Dobbs v. State, 199 Ga. App. 793, 795 (4) (406 SE2d 252). Viewing the evidence in a light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Williams v. State, 201 Ga. App. 866, 867 (3) (412 SE2d 586).

Decided June 26, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Anne G. Maseth, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0409.
    AMASON v. KROGER COMPANY et al.
    (420 SE2d 314)
   Sognier, Chief Judge.

John Bradford Amason brought suit against the Kroger Company and its employees Mike Nichols and Gregory Gilpin, asserting claims for false arrest, malicious prosecution, false imprisonment, and simple battery. The defendants were granted partial summary judgment on the false arrest and false imprisonment claims, and Amason appeals from the judgment as to the false imprisonment count.

At approximately 9:00 p.m. on Sunday, May 15, 1988, appellant and an acquaintance, David Parrot, and their wives entered a Savannah grocery store of appellee Kroger. Appellee Nichols, an off-duty Savannah police officer employed by Kroger as a security guard, noticed appellant and Parrot because they appeared intoxicated and he overheard Parrot joke with appellant that he wanted to go to jail. Anticipating possible trouble from the two men, Nichols informed appellee Gilpin, the acting store manager, of his concerns and then watched them as they walked around the store. Upon observing Parrot take a beer from the store cooler and drink it, Nichols approached, displayed his identification, and arrested Parrot. Nichols testified by deposition that appellant’s behavior then became loud and unruly and that as a result he repeatedly ordered appellant to leave Kroger property but appellant refused and instead shouted and cursed at Nichols. After Gilpin interceded, appellant eventually walked outside the store and stood beside the exit doors.

After Nichols prepared a written report on Parrot’s arrest, he went outside to look for appellant and discovered he had not left the business premises. Nichols deposed that in response to appellant’s protest that he had been ordered only to leave the store, he again instructed appellant to leave Kroger property and wait for his wife elsewhere. When appellant refused, Nichols arrested him for criminal trespass, handcuffed him, and escorted him to the store manager’s office for preparation of a report. Appellant and Parrot subsequently were transported to jail by an on-duty police officer summoned to the scene, where they were held for several hours until bond was posted. Appellant later was acquitted of criminal trespass.

1. The only essential elements of a claim for false imprisonment are a) detention and b) the unlawfulness of that detention. Reese v. Clayton County, 185 Ga. App. 207, 208 (363 SE2d 618) (1987). The record shows without dispute that appellant was detained by appellees; therefore, the question presented is whether appellees have pierced appellant’s allegation that the detention was unlawful. The trial court granted summary judgment to appellees on the false imprisonment claim based on a finding that appellant was arrested pursuant to a valid warrant and thus the detention was lawful. We agree with appellant that the trial court’s finding concerning the warrant was in error, for the record shows that Nichols did not swear to the warrant charging appellant with criminal trespass until 11 days after appellant was arrested, and thus the arrest was not made pursuant to a valid warrant. See id. at 207-208; compare Perry v. Brooks, 175 Ga. App. 77 (2) (332 SE2d 375) (1985). Nonetheless, since a judgment that is right for any reason will be affirmed, we must determine whether the summary judgment may be upheld on any other basis. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

2. When an arrest is made without a warrant, the person making the arrest is liable in tort “unless he can justify [the arrest] under some of the exceptions in which arrest and imprisonment without a warrant are permitted by law; and the burden of proving [such an] exception is upon the person making the arrest or inflicting the imprisonment.” (Citations and emphasis omitted.) Collins v. Sadlo, 167 Ga. App. 317, 318 (306 SE2d 390) (1983). An arrest for a crime may be made without a warrant if the offense is committed in the presence or within the immediate knowledge of the arresting officer or individual. OCGA § 17-4-20 (a). See OCGA § 17-4-60. This exception presupposes that probable cause to arrest existed, Sadlo, supra at 319; therefore, to avoid liability for false imprisonment it must be shown not only that the arrest was valid but also that the arresting officer had probable cause to believe the charged offense had been committed. Sadlo, supra at 318-319.

The offense of criminal trespass, the charge on which Nichols arrested appellant, occurs if, inter alia, a person “[r]emains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.” OCGA § 16-7-21 (b) (3). It is undisputed that Nichols arrested appellant because he personally observed that appellant failed and refused to leave Kroger premises after being ordered to do so by an authorized representative of Kroger who had displayed proper identification. Since appellant was arrested by an off-duty police officer working as a security guard in whose presence appellant appeared to have committed the offense of criminal trespass, the warrantless arrest was legal. Haile v. Pittman, 194 Ga. App. 105, 106 (2) (389 SE2d 564) (1989).

Appellant, however, contends that there is a factual dispute as to whether he was ordered to leave Kroger’s property or merely to leave the store, and thus a jury question exists on the issue of probable cause to arrest. To the extent that the adequacy of the notice is disputed, we do not agree with appellant that this factual dispute is material. “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-3; see Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (2) (a) (406 SE2d 796) (1991). Thus, the question is not whether every element of the crime had been established without dispute before the arrest was made, but whether there is any evidence Nichols acted only with a desire to harm appellant.

The record is devoid of evidence to suggest that Nichols acted out any motivation other than a desire to protect the property and patrons of Kroger and to prevent appellant from disrupting the store or offending the other shoppers. Nichols was concerned about appellant and Parrot from the time they entered the store because of their apparent intoxication and suspicious comments, but he did not confront them until Parrot committed a crime in his presence. Even after that event, Nichols did not take any action against appellant until appellant became disruptive. Appellant admitted in deposition testimony that Nichols repeatedly told him to leave before the arrest occurred, and he acknowledged that he argued with Nichols and Gilpin in a loud voice. There is no evidence that Nichols knew appellant or harbored any ill will toward him for any reason. Compare Gantt, supra at 38-39 (2). Under these circumstances, we hold that the existence of probable cause may be determined as a matter of law and thus no material fact question remains for jury consideration. See Carruth v. Roberts, 189 Ga. App. 247, 249 (1) (375 SE2d 499) (1988); compare Gantt, supra. Summary judgment for appellees on the false imprisonment claim accordingly was warranted as a matter of law. See Haile, supra; Carruth, supra at 249 (2).

Decided June 4, 1992

Reconsideration denied June 29, 1992.

Ray C. Smith, for appellant.

Brannen, Searcy & Smith, Joseph J. Berrigan, for appellees.

Judgment affirmed.

Cooper and Andrews, JJ., concur. McMurray, P. J., disqualified.

       Amason originally filed a notice of appeal from the trial court’s judgment in its entirety. However, in his brief filed with this court Amason expressly concedes the trial court’s ruling on the false arrest claim was correct and abandons his appeal from that portion of the judgment.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0473.
    PHILLIPS v. THE STATE.
    (420 SE2d 316)
   Birdsong, Presiding Judge.

James K. Phillips appeals his judgment of conviction of rape, armed robbery and burglary, and the sentence.

Shortly before the rape incident, appellant was observed by a neighbor of the victim standing across the street looking in the direction of the victim’s and the witness’ windows.

The rape victim testified that she had never seen her assailant before the incident; she heard her bedroom door open and saw a man wearing a hat and holding a knife; there was little light in the bedroom; she could see the man had socks on his hands, which he later discarded; she screamed and the man jumped on her; he told her to be quiet or he would kill her; the assailant forced her to go downstairs to give him money and she could see his face well as it became illuminated by window light when he was standing facing the window; she gave the man all the money she had in her wallet and he also took certain jewelry; she could see the assailant clearly when he was sitting on the sofa counting the money; the assailant then raped her on the living room sofa; he thereafter pulled her into the bathroom, turned on the light, and told her to stay there; she could see part of his face in the bathroom light as he turned partly toward her; she made an in-court identification of appellant as the person who raped her; a photograph of appellant depicted how her assailant looked the night of the incident (the person had a short, small mustache in the photograph); State Exhibit 19 is the hat worn by the assailant that night; the incident lasted approximately 30-40 minutes; after the incident she went into shock and could not give the police an immediate description of her assailant; at the hospital she told an officer that the person who raped her had no facial hair.

Later that night after returning to her apartment complex, the victim described her assailant to one officer as being a black male, approximately 25-30 years of age, at least six feet tall, slender build, curly-like hair, clean shaven as far as she could tell, dark complexion, and wearing a T-shirt and a jacket. Another officer testified that the victim described her assailant to him that night as being between five feet ten and six feet tall, medium build, black male, no glasses, and no facial hair.

The apartment of the rape victim was next door to a vacant apartment in which appellant was found five days later. Appellant was convicted of committing burglary in this vacant apartment. The owner of the premises previously had observed that the back sliding door of the apartment had been “jimmied” open and that the electric stove burners had been left on. Subsequently, he found a black male in the apartment; the stove burners were on; the man’s pants and shirt were lying across open cabinet doors apparently drying over the stove. The intruder put his pants and shirt on and asked to retrieve his wallet and shoes. The owner who was carrying a gun told the intruder to accompany him to the office, but once outside the intruder started to back away and appeared to be getting ready to flee. The owner called for the intruder to stop and fired two warning shots into the ground, but appellant ran into a wooded area where he was found about 20 minutes later by the police. The police brought appellant back to the apartment complex and the owner identified him to the police as the intruder. Examination of the apartment showed the lock had been popped loose on the sliding glass door. Nothing was taken from the apartment and only the back sliding door was damaged. The owner made an in-court identification of appellant as the person who had intruded into the apartment without permission.

After the State rested, the defense rested without calling any witnesses in behalf of appellant. Held:

1. Appellant asserts that he was denied his right to counsel at the lineup because it was held after the date originally set for his preliminary hearing. However, it appears that at the time of the lineup appellant had not been indicted for rape, the offense at issue at the lineup, but had been indicted on the unrelated charge (Count IV) of burglary of a vacant apartment occurring several days after the rape. The rape indictment was not returned by the Grand Jury until December 1990. A preliminary hearing on the unrelated burglary charge had been scheduled for September 13, 1990, but the hearing was postponed so the rape allegations could be investigated and the lineup was conducted on September 17, 1990. Appellant subsequently was tried on four counts, including the rape count and the count of burglary of the vacant apartment.

No federal constitutional right to counsel exists at a pre-indictment lineup. Evans v. State, 201 Ga. App. 20, 26 (3) (410 SE2d 146). “The Sixth Amendment right [to counsel] is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (Emphasis supplied and punctuation omitted.) McNeil v. Wisconsin, 501 U. S _ (111 SC 2204, 115 LE2d 158, 166-167). “The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to ‘protec(t) the unaided layman at critical confrontations’ with his ‘expert adversary,’ the government, after ‘the adverse positions of government and defendant have solidified’ with respect to a particular alleged crime.” (Second emphasis supplied.) Id., 115 LE2d at 168. “The right does not apply with respect to one offense where adversary proceedings have been commenced with respect to a different offense, but not that offense.” 22 CJS, Criminal Law, § 286, citing inter alia, U. S. ex rel. Hall v. Lane, 804 F2d 79, 80 (1) (7th Cir.), cert. den. Hall v. Lane, 480 U. S. 921 (107 SC 1382, 94 LE2d 696). Thus, “ ‘the viewing of the (defendant at the) lineup took place during (the) investigatory (stages) of the [rape offense] at a time when appellant was not required to have counsel present.’ ” Williams v. State, 178 Ga. App. 581, 586 (4) (344 SE2d 247). Nor would the mere showing of a photograph of appellant to the victim before the lineup constitute a “critical stage” requiring the presence of counsel. Durham v. State, 185 Ga. App. 163, 167 (4) (363 SE2d 607).

2. Appellant further asserts that the trial court erred in admitting the rape victim’s pretrial and in-court identification of appellant, as the pretrial identification procedure was so tainted as to require exclusion of the in-court identification, because it was both impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification.

Specifically, appellant claims that the victim was aware prior to the lineup that there was an individual in jail who may or may not have been her assailant; that appellant was staring directly at the victim when she entered the viewing room (appellant could not see the victim at this time, although she could see him) and, that prior to the lineup she was shown a picture of appellant Phillips. There exists no testimony whether the police conducted a photo lineup or photo spread and whether the photo of appellant was or was not shown individually or during the course of a photo lineup or photo spread. The record merely reflects that sometime prior to the lineup, the victim was shown Phillips’ picture, and that no notations or comments were made to the victim in reference to Phillips’ presence and participation in the lineup. However, the record does establish that the photograph taken of appellant at the time of his arrest was not shown to the victim. Otherwise, the type of picture shown and the circumstances and date of its showing are not established by the record, and we will not speculate as to these matters. The mere fact the victim was at some unknown time and under some unknown circumstances shown a picture of the person she subsequently identified in the lineup would not taint, as a matter of law, the pretrial identification procedure.

The victim was informed several days earlier a lineup would be conducted, that an individual was in jail who fit the description of her attacker, and this individual may or may not have raped her. She was not told the position in which that individual would appear in the lineup, but under some undisclosed circumstance was shown a picture of appellant prior to trial. Appellant was informed that a physical lineup would be held on September 13, and was advised that if he wanted an attorney present that he needed to notify one and make sure the attorney wanted to be there. Appellant never stated he wanted an attorney, but could not afford one.

The lineup was conducted in a special room equipped with a “one-way mirror” so that the lineup participants could not see the victim. Five people, including appellant, participated in the lineup. The other participants were chosen based on having similar physical features, such as height, weight, complexion, age, and mustache, as appellant had at the time of the lineup. Appellant was allowed to choose his number 3 position in the lineup. Routine police lineup procedures were used. Before the lineup, the victim was told the police could not help her in any way with her identification; that each person would hold a card with a number or have a number above them; and she had to look at any person she suspected as being the assailant carefully and state that it is or is not him. The victim focused her eyes on appellant as soon as she entered the viewing room, stared at him, and without hesitation made a positive identification. She was asked to look at all lineup participants, which she did, and thereafter affirmed her positive identification of appellant. The victim asked the police to have appellant speak, but the police required all lineup participants to speak the same words starting with the participant on the left. When appellant spoke, the victim was able to identify bis voice. The victim was not told she should pick appellant; rather, she was told the police suspected someone or a lineup would not be held, but there was no guarantee, and if she did not see her assailant not to worry as the police would continue to look for him and she should not feel bad if he was not there. The police never confirmed or denied the accuracy of the victim’s pretrial identification to her. Photographs were taken of the lineup. The investigating police officer testified he charged appellant with rape immediately after the lineup and a preliminary hearing was held on the charges on September 18, 1990.

“The test for determining whether a due process violation occurred in cases such as this ‘is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, [409 U. S. 188 (93 SC 375, 34 LE2d 401)].” Martin v. State, 193 Ga. App. 581, 582 (1) (388 SE2d 420). Considering these factors, we conclude that under the totality of the circumstances, the procedures used in this case to identify appellant were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. Moreover, assuming arguendo some taint had occurred in the pretrial identification, a witness’ in-court identification may be admitted if it has an “independent origin.” See generally McCoy, supra; Martin, supra. Again, considering the totality of the circumstances, we find that the victim’s in-court identification also had independent origin.

Appellant’s enumeration of error regarding the denial of his motion to suppress pretrial and in-court identification is without merit.

3. Appellant asserts there was insufficient evidence to support the verdict and judgment of conviction of the three counts of which he was convicted. We disagree.

As to his conviction of burglary of the vacant apartment, appellant specifically argues that the State failed to prove the element of intent to commit a felony or theft therein in respect to the burglary charge. “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters . . . any building . . . designed for use as the dwelling of another or enters or remains within any other building ... or any room or any part thereof.” OCGA § 16-7-1 (a). The evidence uncontrovertedly establishes that appellant, without lawful permission, was taking and using electricity in the apartment to heat the stove burners to dry his clothing. OCGA § 16-8-5 pertinently provides that “[a] person commits the offense of theft of services when by deception and with the intent to avoid payment he knowingly obtains services, accommodations ... or the use of personal property which is available only for compensation.” The usual definition of “accommodations” is: (a) lodging, (b) food and lodging, and (c) a seat, berth or other facilities for a passenger on a train, plane, etc. Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989 ed.). The surreptitious and unauthorized entrance and use of a vacant apartment is one of the forms of obtaining “accommodations” clearly encompassed within the meaning of OCGA § 16-8-5. Further, a “service” is “the supplying or supplier of utilities or commodities, as water, electricity, gas, required or demanded by the public.” Webster’s, supra. We are also satisfied that the surreptitious and unauthorized use of electricity or electrical energy is one of the forms of obtaining “services” within the meaning of OCGA § 16-8-5. See Kitchens v. State, 159 Ga. App. 94, 96 (4) (282 SE2d 730) (appellant “unlawfully reconnected the meter serving his apartment and thereby obtained electrical service to which he was not entitled (i.e., theft of services))”; cf. Reynolds v. State, 101 Ga. App. 715 (1a) (115 SE2d 214) (theft of water). We need not decide whether electricity or electrical energy also is a form of personal property described in OCGA § 16-8-5. See generally 50 AmJur2d, Larceny, § 77; 52A CJS, Larceny, § 3 (1) b.

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 all offenses (Counts I, III, and IV) of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant’s assertion that the trial court erred in denying his motion for new trial is without merit. See Divisions 1-3 above.

5. Appellant’s final enumeration of error is that he was denied effective assistance of counsel. Appellant claims his trial defense counsel was inadequate because he failed to call witnesses who could testify that appellant wore a mustache and was wearing it on the day the crime was committed, as the victim admitted she had told the police her assailant did not have any facial hair. Appellant contends such evidence could have induced reasonable doubt and resulted in the acquittal of the defendant.

Appellant’s trial defense counsel filed a motion for new trial raising the general grounds; the issue of effective assistance of counsel was not therein raised. On October 4, 1991, the trial court overruled (denied) the motion for new trial. On October 21, 1991, appellate counsel filed a notice of appearance on behalf of appellant. Appellate defense counsel did not attempt to file either an amended or extraordinary motion for new trial, but did file a timely notice of appeal. Appellate defense counsel asserts that appellant was denied effective assistance of counsel as one of appellant’s enumerations of error on appeal.

In view of the posture of this case, we cannot determine, as a matter of law, whether appellant was denied effective assistance of counsel. Compare Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598). We find Johnson v. State, 259 Ga. 428 (2) (383 SE2d 115) to be controlling, and accordingly will remand this matter to the trial court for an evidentiary hearing on the issue of ineffectiveness of trial defense counsel.

Decided June 4, 1992

Reconsideration denied June 11, 1992

Paul McGee, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

Judgment affirmed as to Divisions 1, 2, 3, and 4. Case remanded for appropriate action as to Division 5. Andrews, J., concurs.

Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 through 4 and reluctantly concur in the remand of the case. Defendant had an opportunity to raise the issue of alleged ineffectiveness of trial counsel prior to the filing of the notice of appeal by extraordinary motion for new trial. OCGA § 5-5-41. See dissents in Weems v. State, 196 Ga. App. 429, 431 (395 SE2d 863) (1990), and Kinney v. State, 199 Ga. App. 354 (405 SE2d 98) (1991); special concurrence in Shavers v. State, 200 Ga. App. 76 (406 SE2d 803) (1991); McGraw v. State, 199 Ga. App. 389, 390 (2) (a) (405 SE2d 53) (1991).


text:
    A92A0541.
    ELLIS et al. v. CURTIS-TOLEDO, INC.
    (420 SE2d 756)
   Sognier, Chief Judge.

Gerald and Elaine Ellis bring this appeal from the trial court’s grant of summary judgment to Curtis-Toledo, Inc. in its action against them based upon a personal guaranty.

In its complaint against appellants, appellee alleged that it was owed a debt on account and that appellants had guaranteed that debt. Attached to the complaint were copies of the purported guaranty agreement executed by appellants and the account statement showing an amount owed for purchases made by Action Compressor and Pump Services (“Action”) from appellee. Appellants answered denying liability and asserted the defense of res judicata based on appellee’s failure to join appellants in a prior suit in which it had obtained judgment against Action. In response to appellee’s requests for admission, appellants admitted they had signed a guaranty agreement, that summary judgment had been entered in the prior action against Action, and that they were officers of Action and had knowledge of its business and legal activities, but denied liability on the guaranty. The trial court’s order granting summary judgment in favor of appellee specifically recited that appellants’ defense of res judicata was not applicable to this action and that, as appellants had admitted signing the guaranty agreement, appellee was entitled to judgment as a matter of law.

1. We find no merit in appellants’ contention that the trial court erred by finding that their affirmative defense of res judicata was inapplicable here. Three prerequisites are necessary for the successful assertion of a res judicata defense based on a prior suit. There must be (1) identity of parties and (2) identity of the cause of action in both suits; and (3) the prior adjudication must have been by a court of competent jurisdiction. Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (270 SE2d 883) (1980). Since the prior suit against Action was based upon an account and the instant action was brought upon a written guaranty, no identity of the cause of action existed, and the trial court did not err by finding that res judicata did not bar this action. See generally Crowe v. Congress Fin. Corp., 196 Ga. App. 36, 39-40 (3) (395 SE2d 321) (1990).

2. Nevertheless, we find the trial court erred by granting summary judgment to appellee. Summary judgment is granted only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). The movant has the original burden of making this showing. Lawson Prods. v. Rousey, 132 Ga. App. 726, 727 (1) (209 SE2d 125) (1974). Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. Weldon v. Del Taco Corp., 194 Ga. App. 174-175 (390 SE2d 87) (1990). In this case, it was unnecessary for appellants to present rebuttal evidence or respond to the motion because “the evidence [appellee] presented did not establish a prima facie case entitling [appellee] to summary judgment. The guaranty agreement, upon which [appellee] relies, left blank the name of the [principal] debtor. In Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982), this court held that when a contract of guaranty omits the identity of the principal debtor, even through a scrivener’s error, it fails to satisfy the Statute of Frauds and renders the contract unenforceable.” Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259-260 (411 SE2d 87) (1991). Compare Schroeder v. Hunter Douglas, Inc., 172 Ga. App. 897, 898-899 (2) (324 SE2d 746) (1984) (guaranty sufficient to comply with requirements of Statute of Frauds because of reference in document to other writings supplying missing terms). Accordingly, as appellee failed to make a prima facie showing of its entitlement to summary judgment, the trial court erred by granting summary judgment in its favor despite appellants’ failure to raise this issue below. See generally Northside Bldg. Supply, supra.

Decided June 4, 1992

Reconsideration denied June 29, 1992.

William G. Maston, Birney 0. Bull, for appellants.

Ackerman, Woodard & Butler, Jeffrey M. Butler, Greer, Klosik & Daugherty, Robert J. McCune, for appellee.

3. Our decision in Division 2 renders unnecessary consideration of appellants’ other enumerations of error.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A0737.
    BAIRD v. BAIRD et al.
    (420 SE2d 342)
   Johnson, Judge.

Appellees Elena and Leah Baird brought this action against their mother, Ms. Judith Baird, to recover funds placed in trust for them by their paternal grandparents. The corpus of the trusts was in the form of stock in the Baird Bread Company. The stock was held by their father, Roland Baird. Subsequent to the gifts of stock, Mr. and Ms. Baird divorced. Ms. Baird was given custody of the children and Mr. Baird maintained possession of their stock. Mr. Baird, pursuant to an agreement with Ms. Baird, sold the subject stock back to Baird Bread and turned over the proceeds to Ms. Baird for the benefit of the children. Appellees contend that their mother breached her fiduciary duty as trustee by converting the trust proceeds for her own personal benefit.

After a jury trial, a special verdict was returned in favor of appellees in the amount of $94,324.72 principal and pre-judgment interest, and $64,130.21 in attorney fees and costs. Ms. Baird appeals from the verdict and the denial of her motion for new trial.

1. Ms. Baird contends that the trial court erred in granting appellees’ motion in limine which precluded the introduction of Mr. Baird’s prior conviction of the federal misdemeanor crime, Conspiracy In Restraint of Interstate Trade & Commerce (15 USC § 1). 15 USC § 1 provides, in pertinent part, “[e]very person who shall make any such contract or engage in any such combination or conspiracy . . . shall be deemed guilty of a misdemeanor.” 15 USC § 1 (1890). Ms. Baird asserts that the crime is one of moral turpitude and, therefore, proper for use as impeachment evidence against him. We disagree.

It is well-settled in this state that a witness in a civil case may be impeached by proof of conviction of a misdemeanor if it appears that such offense was one involving moral turpitude. Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). “[C]rimes involving moral turpitude are ‘restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (Cit.)’ [Cit.]” Seaboard Coast Line R. Co. v. West, 155 Ga. App. 391, 393 (271 SE2d 36) (1980). Crimes malum in se are those inherently immoral, whereas crimes malum prohibitum are those not inherently immoral but are simply forbidden by law.

A federal court, in interpreting the statute under which Baird was convicted, noted that the word “conspiracy” in 15 USC § 1 refers merely to an agreement or contract which is forbidden by law and is not intended to be interpreted as having an opprobrious connotation. (Emphasis supplied.) Webster Motor Car Co. v. Packard Motor Car Co., 135 FSupp. 4, 9 (D.C.D.C. 1955), rev’d on other grounds 243 F2d 418, 100 U. S. App. D.C. 161, cert. den. 355 U. S. 822 (78 SC 29, 2 LE2d 38), reh. den. 355 U. S. 900 (78 SC 259, 2 LE2d 197), reh. den. 357 U. S. 923, (78 SC 1358, 2 LE2d 1363).

It appearing to this court that a federal court previously determined Conspiracy In Restraint of Trade to be a crime malum prohibitum rather than malum in se, we find that it is not a crime of moral turpitude and therefore a prior conviction of this misdemeanor offense cannot properly be used as a tool for impeachment of a witness. Accordingly, the trial court did not abuse its discretion in granting appellees’ motion in limine.

2. Ms. Baird further contends that the trial court erred in charging the jury on pre-judgment interest and in allowing the final judgment to incorporate an award of pre-judgment interest because the case involved unliquidated damages. This enumeration is without merit.

Evidence produced at trial in the form of testimony and bank records indicated that checks in the amount of $24,000 were placed by Ms. Baird in separate trust accounts for appellees. The transcript reveals that on March 28, 1979, with additional interest accrued, one of the appellees had an account balance of $25,060 and the other appellee had an account balance of $24,969.64. The balances of the accounts after taxes were paid on April 26, 1991, and April 27, 1991, were $22,444 and $22,353, respectively. Further evidence presented at trial showed that by June 20, 1979, Ms. Baird had removed all of the money and accrued interest from one account and by June 29, 1979, she had removed all of the money and interest from the other account. At that time, according to Ms. Baird’s deposition, she commenced to commingle the monies from the two accounts with her own.

Liquidated damages are those that are for a “certain and fixed” amount. International Indem. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239) (1986); see also Nisbet v. Lawson, 1 Ga. 275, 287 (1846). It is “a sum which cannot be changed by the proof; it is so much or nothing. ...” Nisbet at 287. In the instant case, the evidence in the form of bank records indicates that the principal and pre-judgment interest represented a liquidated, rather than an unliquidated amount in damages in that they were capable of calculation to a certainty.

Decided June 10, 1992

Reconsideration denied June 29, 1992

Lawson & Daniell, John W. Lawson, Roy B. Daniell III, for appellant.

Branch, Pike, Ganz & O’Callaghan, Alfred B. Adams III, for appellees.

Furthermore, one who has wrongfully detained money belonging to another, is chargeable with interest thereon from the time he received it. See Allen v. Allen, 198 Ga. 269 (31 SE2d 483) (1944); see also Anderson v. State of Ga., 2 Ga. 370 (1847).

The evidence produced at trial indicates that the appellees’ money was spent by their mother. Ms. Baird did not present any evidence accounting for the subject funds. The jury determined that Ms. Baird breached her fiduciary duty as trustee of her daughters’ accounts and was, therefore, liable for the interest accrued on the subject accounts from the time she received the proceeds checks from Mr. Baird.

“The trial court must give jury instructions on all issues raised by the pleadings or the evidence; the instructions should be adjusted to the evidence actually presented at trial.” Vinson v. E. W. Buschman Co., 172 Ga. App. 306, 310 (323 SE2d 204) (1984). Accordingly, the court did not err in charging the jury on principles of law involving pre-judgment interest as it was a material issue in the instant case.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0099.
    KOSAL et al. v. THE STATE.
    (420 SE2d 621)
   Sognier, Chief Judge.

Pyda and Chanary Kosal were convicted of arson in the burning of their Douglas County residence, and they appeal from the denial of their motion for new trial.

Late on the night of March 21, 1988, the Douglas County Fire Department received calls from appellant Pyda Kosal and another person who was driving through the neighborhood that the back of appellants’ split-level home was on fire, and fire fighters arrived at the scene five minutes later. Fire Department Division Chief Scott Spencer testified that as he scrutinized the fire scene while the fire fighters were working to bring the fire under control, he observed conditions that caused him to suspect the fire had been deliberately set. He noted that the house seemed to contain few family photographs or other personal belongings; the size and rate of burning of the fire were consistent with the use of an accelerant; and he could ascertain no apparent accidental cause of the blaze. County and state arson investigators testified that they had concluded from an examination of the scene that the fire had been intentionally set by the pouring of a flammable liquid onto the floor and carpet in the stairway and bedrooms. Each witness testified extensively concerning the bases for his conclusion, listing as primary indicators the presence of obvious pour patterns at several points in the house, which shows an accelerant was used; the fact that the fire obviously had multiple points of origin; and the presence of burn patterns consistent with the pour patterns and use of an accelerant and inconsistent with an accidental fire. The investigators ruled out all other causes of the fire, including the explanation Mr. Kosal had given police. The investigators also testified that the two-story addition appellants had recently built themselves was poorly constructed, and noted that in their experience the desire to obtain insurance proceeds to rebuild an inferior structure was a common motivation for arson.

The conclusions of the arson investigators were consistent with the findings of an investigator engaged by appellants’ insurer to determine the cause of the blaze and by a private arson investigator originally employed by appellant’s counsel. In addition, the insurance investigator testified that he tested the kerosene heater in the bedroom and affirmatively determined that it did not cause the fire. The evidence also established that appellants regularly used that and two other kerosene heaters in the portion of the house in which the fire occurred and that they stored kerosene, a flammable liquid, in the house.

Additional evidence was adduced that appellants were experiencing financial problems at the time of the fire and that the house was fully insured. Both appellants had worked for a furniture manufacturer for several years, but Mr. Kosal had resigned his position the previous summer to start a residential construction business. The evidence established that at the time of the fire appellants had numerous past due bills; foreclosure proceedings had been instituted by their second mortgage holder two months earlier and halted after appellants borrowed the necessary funds from a friend; appellants had written a number of bad checks in the months prior to the fire; and several lawsuits had been filed against Mr. Kosal in connection with his construction business. Ms. Kosal testified that for several months before the fire, she worked a full day at the factory and then went to her husband’s construction job sites to help so that he could finish the jobs and get paid.

Appellants testified that on the night of the fire they awoke around midnight and discovered a blaze between the kerosene heater and the wall in their bedroom. Mr. Kosal testified that he unsuccessfully attempted to put out the fire with water and a fire extinguisher. He ran downstairs to phone for help, but the telephone was not working. Appellants then fled the home with their small son and drove to a nearby pay phone and called the fire department. Appellants denied intentionally setting the fire.

1. Appellants contend in three enumerations of error that the trial court erred by denying their motions to suppress the evidence seized in three searches of their residence. They contend Mr. Kosal’s consent to the first two searches was not freely and voluntarily given, and that evidence obtained in the third search, made pursuant to a warrant, should be suppressed as fruit of the unlawful first searches.

(a) Mr. Kosal’s consent to the first search was obtained in the early morning hours while the fire was being brought under control. He was seated with fire department investigator Don Leasher in the front seat of Leasher’s marked car, and two other fire department officials stood beside the car on appellant’s side. Leasher testified that he made no threats or promises of benefit to appellant and that he did not detain appellant in order to obtain his consent. Leasher stated that appellant, a Cambodian national with two years of college education, spoke English well and appeared to have no problems understanding Leasher’s conversation. Leasher testified that he read the consent form, which included the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) to appellant one section at a time, ascertaining after each section that appellant understood. Leasher stated that appellant consented to the search, stated he did not want an attorney, and never withdrew his consent.

Mr. Kosal signed the consent form for the second search two days later after being questioned for several hours at the sheriff’s office by Leasher, another fire department official, and two detectives. Appellants went to the sheriff’s office in response to a telephone request from a detective, and Mr. Kosal was escorted through a locked door into an office in the back of the building. Detective Scott Cosper testified that he gave the Miranda warnings at the beginning of the interrogation, that he made no threats or promises of benefit, and that he read the consent form to Mr. Kosal and ascertained that he understood it. Cosper testified further that Mr. Kosal spoke good English and had no communication problems and that he never mentioned having an attorney or wanting an attorney present during the interrogation. Cosper stated Mr. Kosal was not under arrest and was free to leave at any time, and that he did leave with Ms. Kosal after the questioning was concluded. Other participants in the questioning corroborated Cosper’s recollection of the events.

Mr. Kosal testified that he signed the first consent form only because Leasher told him this was “just procedure” that “everybody ha[d] to do.” As to the second consent, Mr. Kosal testified that during the interrogation he did not feel he was free to leave; that he had called his attorney to come to the sheriff’s office and so informed the detectives, but they told him he did not need counsel; that the detectives screamed at and threatened him; and that he felt he had to sign whatever they asked. However, Mr. Kosal also testified that he did not object to the officers searching his house and that he had been willing to answer their questions. Ms. Kosal testified that as she waited in the lobby while her husband was being questioned at the sheriff’s office, she saw their attorney arrive in the lobby and confer with an officer. She stated the attorney left about an hour later without having been allowed to see Mr. Kosal.

The State bears the burden of proving that consent to a warrant-less search was freely and voluntarily given, and voluntariness is determined by looking to the totality of the circumstances. E.g., Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338) (1989). Factors to be considered include the age, education, and intelligence of the accused, the length of any detention of the accused, whether the accused was advised of his constitutional rights, the prolonged nature of the questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. Id. When a defendant moves to suppress evidence, the trial judge sits as trier of the facts, and the judge’s findings are analogous to a jury verdict and should not be disturbed by an appellate court if there is any evidence to sustain them. Jones v. State, 200 Ga. App. 519 (1) (408 SE2d 823) (1991).

As to the first search, Mr. Kosal testified that his wife and a friend who spoke excellent English also were present while he talked with Leasher and that he understood he was not under arrest. Under these circumstances, and considering also Leasher’s testimony concerning appellant’s consent, we reject appellant’s contention that the presence of several fire department officials was so oppressive as to require a finding of coercion. See Williamson v. State, 142 Ga. App. 177 (1) (235 SE2d 643) (1977); see also Suddeth v. State, 162 Ga. App. 460 (1) (291 SE2d 430) (1982). Likewise, given the totality of the circumstances, Mr. Kosal’s testimony that he did not understand he could refuse to authorize the search provides no basis for reversal. See United States v. Watson, 423 U. S. 411, 424-425 (96 SC 820, 46 LE2d 598) (1976); see also Suddeth, supra.

With regard to the second search, we need not decide whether Mr. Kosal was in custody at the time he signed the consent form because “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” Watson, supra at 424; see Howard v. State, 185 Ga. App. 465, 466 (1) (364 SE2d 600) (1988). Although the evidence as to Mr. Kosal’s claim that he requested his counsel be present is in conflict, the trial judge concluded he had not clearly invoked his right to counsel, and we find evidence in the record to support that conclusion, especially considering Mr. Kosal did not testify at the hearing that he wished to consult with counsel and cease the interrogation, but testified instead that he had been willing to continue and that he did not object to the searches. See generally Steward v. State, 182 Ga. App. 659, 660 (1) (356 SE2d 890) (1987).

(b) Having found that Mr. Kosal’s consent to the first two searches was freely and voluntarily given, we hold that the subsequent search warrant, the issuance of which was based on the evidence obtained from the first two searches, was valid. See Giles v. State, 197 Ga. App. 895, 897 (2) (400 SE2d 368) (1990). Accordingly, the trial court did not err by denying appellants’ motion to suppress.

2. The evidence was sufficient to authorize a rational trier of fact to find appellants guilty of arson beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Skinner v. State, 188 Ga. App. 458-459 (373 SE2d 271) (1988). Contrary to appellants’ assertion, the State did exclude every reasonable hypothesis other than the guilt of the accused and expressly rebutted appellants’ theory that the fire was caused by the kerosene heater. See Bragg v. State, 175 Ga. App. 640-642 (1) (334 SE2d 184) (1985).

3. Appellants’ enumeration concerning the trial court’s refusal to allow their trial counsel to listen to a tape recording of the calls made to the fire department the night of the fire presents no reversible error. Appellants have failed to show either that they were entitled to obtain production of the tape by subpoena or that its contents, which merely corroborated defense testimony that two calls reporting the fire were made, were relevant to a material issue in the case. Compare Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990). Even assuming, without deciding, that the tape was subject to review under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), the trial judge listened to the tape and determined it contained no exculpatory material. The burden is on appellants to establish a Brady violation, Cromer v. State, 253 Ga. 352, 358 (6) (320 SE2d 751) (1984), and that burden has not been satisfied here because appellants “ ‘ha[ve] not come forward with anything to suggest a suppression of material, exculpatory information by the state. . . .’ [Cit.]” Id.

4. Appellants next contend the trial court erred by not requiring the State to produce, pursuant to appellants’ motion under OCGA § 17-7-211, any reports prepared by the county, state, and insurance company arson investigators. OCGA § 17-7-211 (b) provides that upon proper written request from the defendant, the State must produce copies of “any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant.” The term “written scientific reports” is defined in the statute as GBI Forensic Sciences Division reports, autopsy reports, blood alcohol test reports, “and similar type reports that would be used as scientific evidence by the prosecution in its [case] against the defendant,” id. at (a), and has been held to include written reports of “tests which generally are carried out during the course of the investigation of a crime,” State v. Mulkey, 252 Ga. 201, 203 (312 SE2d 601) (1984), but not to include “the body of scientific experience, training, and knowledge which the . . . specialist brought to the stand in his capacity as an expert.” Id.

Pretermitting the question whether appellants properly preserved this issue for appeal, we agree with the State that any reports prepared by the county and state arson investigators did not constitute “scientific reports” within the meaning of OCGA § 17-7-211 because their analyses of the fire scene were based upon their general knowledge gleaned from experience and training rather than on any tests performed on material taken from the scene. See Mulkey, supra; see also Ramsey v. State, 165 Ga. App. 854, 856-857 (2) (303 SE2d 32) (1983). To the extent that the insurance investigator’s report fell within the definition of “scientific reports” in OCGA § 17-7-211 (which we cannot ascertain with certainty because the report was not admitted into evidence or otherwise included in the appeal record), the report originated from and was maintained by a neutral third party not employed by the State, and the investigator was listed as a witness in advance of trial. When “ ‘ “the defendant is told of the information or knows as much as the prosecution does and has an equal opportunity to obtain the document from a non-affiliated witness, it is not a violation of [OCGA § 17-7-211] for the state to fail to produce it in response to a demand for scientific reports.” ’ [Cit.]” Sanders v. State, 199 Ga. App. 671, 674 (405 SE2d 727) (1991); see Paggett v. State, 188 Ga. App. 174, 175 (372 SE2d 504) (1988). Moreover, appellants failed to object at trial to any testimony of the investigator that may have been based on the report, and thus they waived their objection to the admission of any scientific test results contained in the report. Ford v. State, 256 Ga. 375, 379 (2) (c) (349 SE2d 361) (1986).

5. Appellants having provided neither argument nor citation of authority as to their enumeration concerning the alleged failure of the prosecution to produce their custodial statements, that enumeration is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

6. In two enumerations of error appellants contend the trial court erred by refusing to enforce a subpoena duces tecum appellants served on the fire department and to issue a writ of habeas corpus ad testificandum sought by appellants. With regard to the subpoena, pretermitting the question whether it was enforceable, the trial court reviewed in camera the evidence appellants sought under the subpoena and concluded it was not relevant to any issue in the trial. Likewise, the request for the writ was subject to extensive discussion at trial, and the court denied the request on the basis that even if the witness did testify as appellants contended he would, that testimony would not be relevant to appellants’ case, “The trial court has a wide discretion in determining what evidence is relevant and material, and we find no abuse of that discretion here. [Cit.]” Scott v. State, 178 Ga. App. 222, 225 (4) (343 SE2d 117) (1986).

Decided June 29, 1992.

John A. Pickens, for appellants.

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

7. Appellants’ challenge to the trial court’s failure to charge on circumstantial evidence in the exact language they requested is without merit, for in a case involving almost identical requested and actual charges, this court held that the language of the charge given “actually covered the same principles of law” as the charge requested by the defendant, Strickland v. State, 164 Ga. App. 845, 849 (7) (297 SE2d 491) (1982), and thus it was not error to fail to give the instructions requested by appellants. Id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0509.
    DRENNEN et al. v. FIRST HOME SAVINGS BANK.
    (420 SE2d 376)
   Sognier, Chief Judge.

First Home Savings Bank, S.L.A. brought suit on two promissory notes against the maker, Richmond Hill Venture, Inc. (RHV), an Alabama corporation registered to do business in Georgia, and six individual guarantors of the notes, all of whom are Alabama residents. RHV filed for bankruptcy protection soon after suit was filed, and the individual defendants moved to dismiss on the ground of lack of personal jurisdiction. The trial court denied their motion and granted the bank’s motion for summary judgment, and the individual defendants appeal.

The promissory notes were given in connection with construction and equipment financing extended by appellee to RHV for the construction of a motel in Bryan County, Georgia. Appellant Gerald Drennen, Sr. travelled to Georgia in 1985 to inspect and purchase the property on which the motel later was built. Appellants formed RHV in 1986 to buy the tract from Drennen and develop the motel, and the first shareholders’ meeting was held in Georgia. All appellants were shareholders in RHV, and appellants Gerald Drennen, Sr., Howard Culbreth, and Charles Bullard were elected officers and directors. RHV sought construction financing from an Alabama loan broker, who arranged for the loans from appellee, a New Jersey corporation. All negotiations concerning the corporate loans and the guarantees required of appellants were conducted between parties in Alabama and New Jersey. The loans were closed and the guarantees signed in Birmingham in 1987 and 1988, and subsequent payments were made to appellee’s New Jersey office.

Several of the appellants visited the motel site during the project construction, and all have travelled to the motel on various occasions in connection with their motel management and oversight responsibilities. On May 29, 1990, appellee notified RHV and each appellant that the loans were in default, and appellants Drennen, Sr. and Charles Bullard subsequently met at the motel with representatives of appellee to discuss the status of the loans and to consider workout options. Appellee filed this action on January 22, 1991.

1. Appellants contend the trial court erred by denying their motions to dismiss for lack of personal jurisdiction made on the ground that they had no contacts with Georgia that would provide a basis for the exercise of jurisdiction in this action under OCGA § 9-10-91 (1). In order for a forum to exercise jurisdiction over a nonresident defendant who transacts business in the forum, “(1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum . . .; (2) The plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant within the forum; and (3) If (and only if) the requirements of Rules 1 and 2 are established, a ‘minimum contact’ between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of ‘fair play’ and ‘substantial justice.’ ” (Footnotes omitted.) Shellenberger v. Tanner, 138 Ga. App. 399, 404-405 (227 SE2d 266) (1976); see Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285) (1973). The due process inquiry turns on the question whether the defendant has purposefully availed himself of the privilege of doing business in the forum state and has purposefully derived benefits from this interstate activity so that his contacts with the' forum state are such that he reasonably should anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 473-475 (105 SC 2174, 85 LE2d 528) (1985); see White House, Inc. v. Winkler, 202 Ga. App. 603, 604 (415 SE2d 185) (1992).

Appellants maintain that this test cannot be met because their contacts with Georgia stemmed from the construction and management of the motel rather than the making of the notes and guarantees, and thus the instant cause of action does not arise out of their activities within the forum. The act giving rise to the instant suit against appellants for nonpayment of the loans was appellants’ execution of the guarantees, Strickland v. Foundation Life Ins. Co., 129 Ga. App. 614, 616 (200 SE2d 306) (1973), and the record shows that the guarantees were entered into between Alabama and New Jersey residents and were neither negotiated nor executed in Georgia. However, in considering questions of personal jurisdiction our inquiry is not limited to the execution of the guaranty contracts alone, as “the contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” (Citations and punctuation omitted.) Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (380 SE2d 303) (1989); see White House, supra at 604-605. Personal jurisdiction has been found for actions against nonresident guarantors when sufficient contacts existed between the defendants and the overall transaction to establish that the defendants purposefully availed themselves of the privilege of doing business within the state. See id. (extensive negotiations between California resident and Georgia corporation and commitment by nonresident to continuing obligations to resident plaintiff held sufficient to authorize jurisdiction over nonresident); Strickland, supra at 615-616 (1) (individuals who were nonresidents at time suit was filed had executed guarantees in Georgia to secure loans to a Georgia business enterprise); accord Georgia R. Bank &c. Co. v. Barton, 169 Ga. App. 821 (315 SE2d 17) (1984) (jurisdiction valid against nonresident with ongoing relationship with Georgia bank who was sued in connection with several personal notes made with bank, the arrearages on which had been the subject of several meetings with bank personnel in Georgia).

Having considered all the elements of the instant transaction, we hold that the trial court properly concluded appellants had purposefully transacted business within Georgia so as to establish legally sufficient contacts. Appellants executed the personal guarantees in order to induce appellee to make the notes to RHV, and the proceeds of those notes were used to construct and equip a motel in Georgia owned and operated by RHV, a corporation registered to do business in Georgia. The loans were secured by real property and fixtures located in Georgia. Given that RHV was incorporated for the express purpose of constructing and operating the motel, the parties undoubtedly intended for the loan payments to be made from the proceeds of the motel’s Georgia operations. By constructing the motel in Georgia from the loan proceeds and by travelling to Georgia periodically to oversee its continued operation and to discuss the loan defaults with appellee’s Georgia representatives, appellants established a continuing relationship with Georgia in connection with the guarantees. See White House, supra at 605; Barton, supra. Furthermore, the guarantees contained a Georgia choice of law clause, which, when combined with the ongoing relationship between the parties, reinforces appellants’ deliberate affiliation with Georgia and the reasonable foreseeability of litigation here. Burger King, supra at 482.

In Lazzaro v. Charlevoix Lakes, 310 NW2d 295 (Mich. App. 1981), a case involving facts similar to those presented here, the Michigan Court of Appeals found that personal jurisdiction could be exercised by a Michigan court and that such jurisdiction was consistent with due process. We find that court’s analysis persuasive here, as the facts of this case demonstrate the same purposeful business activity out of which the cause of action arises. Georgia courts, like those in Michigan, construe the transacting business component of the long-arm statute to extend the State’s jurisdiction to the full extent permitted by procedural due process, Warren v. Warren, 249 Ga. 130, 131 (287 SE2d 524) (1982), and under the circumstances presented here requiring appellants to appear in Georgia does not offend traditional notions of fair play and substantial justice. See Lazzaro, supra at 297-299; see generally White House, supra. Accordingly, we hold the trial court did not err by denying appellants’ motion to dismiss.

2. Appellants contend the grant of summary judgment to appellee on the merits of its claims under the guarantees was error because material fact questions remain concerning whether appellee properly gave notice of RHV’s default to appellants and allowed' them the contractually provided time to cure the default. We do not agree. The record shows that RHV was in default on the notes, that appellee gave notice of this default to appellants, that their partial payment failed to cure the default, and that appellee brought suit well after the four-month period allowed for curing of the default. Appellants’ contention that the October notice of continued default was not sufficient because it was sent only to RHV is without merit, as appellants admit they received actual notice of this continued default and the guarantees do not provide that notice to appellants be given in any specific manner in order to be effective. Compare Orkin Exterminat ing Co. v. Stevens, 130 Ga. App. 363, 369 (203 SE2d 587) (1973). Likewise, appellee gave notice of its intent to enforce the attorney fees provision of the guarantees in its complaint, and appellants have failed to demonstrate how this notice, which they obviously received, was insufficient. Accordingly, the trial court properly granted summary judgment to appellee. See generally Remler v. Coastal Bank, 179 Ga. App. 25 (345 SE2d 79) (1986).

Decided June 29, 1992.

Barrow, Sims, Morrow & Lee, Charles W. Barrow, for appellants.

Oliver, Maner & Gray, James L. Pannell, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.