author: Sognier, Judge. Deen, Presiding Judge,

text:
    76318.
    COX et al. v. GENERAL MOTORS CORPORATION.
    (369 SE2d 525)
   Sognier, Judge.

Nick and Lisa Cox filed an action in multiple counts against General Motors Corporation, alleging that an automobile they purchased was defective. The jury returned a verdict in favor of General Motors, and after denial of their motion for a new trial, the Coxes appeal.

In their sole enumeration of error, appellants contend the trial court deprived them of their right to a fair and impartial jury verdict by impermissibly expressing an opinion when responding to a question posed by the jurors during the course of their deliberations. The question posed by the jurors was as follows: “We, the jury, think there should be some monetary award. The amount can’t be agreed on. We do agree that the $13,000 revocation on the automobile should should [sic] not be allowed. We agree that G.M. acted in good faith and there was never a breach of maintenance contract.” After thorough discussion with counsel, and general agreement of the parties, the court called the jury back into the courtroom and responded to their question on the record, instructing them that rather than rereading any portions of the charge, she would state that “the question of damages like the question of liability falls strictly within your duties and province as members of the jury. Therefore, you may set damages in accordance with the evidence, in accordance with the law as you have been charged at whatever level you see fit, if any.” Appellants do not except to this portion of the recharge, and admit that these instructions were completely in accordance with the agreements reached by the court and the parties moments before. However, the court went on to state: “And in saying that, I’m saying that before you get to the question of damages you must decide the issue of liability. There would be no damages if there is no liability. Therefore, damages or the level of damages, if any, would be awarded based upon your judgment and assessment of the entire case, all of the facts and circumstances of the case, the law as you have been charged in line with whether or not there exists liability, and that is the issue for you to decide.” Appellants enumerate as error this latter portion of the recharge, contending that it placed undue emphasis on liability, thereby impermissibly intimating the opinion that the jury’s previously announced intention to award damages in favor of appellants was wrong. We do not agree.

First, “ ‘[t]he jury have the right and power to correct or change their verdict at any time before it has been finally recorded and they have been discharged.’ [Cits.]” Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 432 (2) (263 SE2d 171) (1979). Thus, appellants may not rely on the jury’s indication that it was considering a monetary award in favor of them.

Second, it is clear that unlike the situation in Garner v. Young, 214 Ga. 109 (103 SE2d 302) (1958), Benefield v. Benefield, 224 Ga. 208 (160 SE2d 895) (1968), and Graham v. Malone, 105 Ga. App. 863 (126 SE2d 272) (1962), cases cited by appellants, in which the trial court’s remarks clearly expressed an opinion and removed at least one issue from jury consideration, in the case sub judice the trial court’s answer did not itself express an opinion. Rather, because the jury did not ask the court about liability but the trial court’s response made reference to that issue, appellants’ objection to the recharge is based on a perceived overemphasis on the question of liability. However, the trial court “has a discretion in supplementing the charge or in giving an additional charge to the jury.” Southern R. Co. v. Lee, 59 Ga. App. 316, 319 (6) (200 SE 569) (1938), cited in Barnes v. State, 71 Ga. App. 9, 13 (29 SE2d 919) (1944). The trial court’s statement in the case sub judice did not give undue prominence to the contentions of either party, and was not violative of OCGA § 9-10-7. The recharge was neither repetitive nor prejudicial. See generally Whitmire v. Woodbury, 154 Ga. App. 159, 160 (3) (267 SE2d 783) (1980), modified on other grounds, Woodbury v. Whitmire, 246 Ga. 349 (271 SE2d 491) (1980). Further, it is uncontroverted that in its original charge the trial court instructed the jury that “anything the court may have done or said during the trial of this case did not intend to hint, intimate or otherwise suggest to you which of the parties should prevail in this case. Whichever of the parties should prevail in this case is a matter strictly for you as fair, impartial and conscientious jurors to determine.” “Where it is contended . . . that an excerpt from the charge of the court is error as containing an expression of opinion on what has been proved, the excerpt will be considered in its context and with the charge as a whole, including a statement of the court that nothing [s]he has said should be construed as an expression of opinion on [her] part. [Cit.] ” Imperial &c. Co. v. Modernization &c. Co., 96 Ga. App. 385 (1) (100 SE2d 107) (1957). We find no error in the trial court’s answer to the jury’s question.

Decided May 16, 1988.

Carol D. Sweet, for appellants.

Myra H. Dixon, for appellee.

Judgment affirmed.

Deen, P. J., concurs and also concurs specially. Carley, J., concurs in the judgment only.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, a brief comment will be made as to the case of Southern R. Co. v. Lee, 59 Ga. App. 316 (200 SE 569) (1938), cited in the majority opinion. It was written by Presiding Judge Stephens with Judge Felton concurring and Judge Sutton dissenting. In 1938 when this case was written there were six judges on our court, and a two-to-one decision would not go whole court, as it would today. Therefore, a two-to-one decision during that era would have precedential value, whereas today it would become a whole court case and considered by all nine judges.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76695.
    SALTER v. THE STATE.
    (369 SE2d 798)
   Banke, Presiding Judge.

The appellant was convicted of obstructing an officer. His sole contention on appeal is that the evidence was insufficient to support the jury’s verdict.

Decided May 16, 1988.

Verna L. Smith, for appellant.

Carl A. Veline, Jr., Solicitor, James F. Garnett, Assistant Solicitor, for appellee.

The appellant was stopped by a Georgia State Patrol officer on suspicion of driving under the influence and was given a field sobriety test. Based on the test results, he was informed by the trooper that he was under arrest for driving under the influence of alcohol and was told to get into the patrol car. The trooper testified that the appellant refused to enter the patrol car and that, as he was attempting to handcuff the appellant, the appellant attempted to strike him. A scuffle ensued in which the appellant sustained a head injury. The appellant’s version of the arrest was somewhat different from the trooper’s. He testified that he was struck on the head while attempting to lock up his vehicle and that the trooper threatened to shoot him when he ran into the roadway seeking assistance for his injury. Held-

OCGA § 16-10-24 makes criminal the knowing and wilful obstruction or hinderance of any law enforcement officer in the lawful discharge of his official duties. Whether or not the actions of appellant constituted such conduct was for the jury to decide. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). We hold that, pursuant to the standard of review set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to support the appellant’s conviction.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    76116.
    CHEROKEE INSURANCE COMPANY v. GRAVITT.
    (369 SE2d 779)
   Birdsong, Chief Judge.

Cherokee Insurance Company, the defendant below, brings this appeal from the grant of summary judgment to C. Kyle Gravitt, and the denial of its motion for summary judgment. This is the second appearance of this issue before this court. See Cherokee Ins. Co. v. First Nat. Bank of Dalton, 181 Ga. App. 146 (351 SE2d 473). The facts were stipulated at trial for consideration of motions for summary judgment submitted by both parties. However, that stipulation is incomplete, it omits the fact that Gravitt sold his shares in Roller Disco to another, and on appeal, the appellant refused to include the exhibits referred to in, and attached to, the stipulation, i.e., the promissory note and deed to secure debt from the purchaser in the assumption agreement to the seller in the assumption agreement. In 1980, Gravitt purchased land in Rome, Georgia, to construct a roller skating rink and obtained a construction loan from the First National Bank of Dalton in the amount of $300,000, for use in construction of the rink and purchasing equipment for operations. Gravitt executed a promissory note in that amount and a security deed on the property in favor of the bank on September 10, 1980. In July, 1980, Gravitt had formed the Roller Disco Corporation to operate the roller rink business but never transferred ownership of the land or building to Roller Disco.

Although the point is not contained within the stipulated facts, the prior appeal on this issue shows that “[i]n September 1983, Gravitt purportedly sold all the outstanding common stock of Roller Disco to [Edgar Lee] Cagle. ...” 181 Ga. App. at 146. Cagle signed a promissory note in the amount of $300,000 and a deed to secure debt to Gravitt. However, Gravitt did not execute a warranty deed transferring the property to Cagle, Roller Disco, or any other entity. We must note the omission from the record on appeal of Cagle’s promissory note and deed to secure debt, whose contents are crucial to a determination of whether a lien or mortgage was conveyed by Cagle to Gravitt.

On September 2, 1983, Cagle obtained insurance from Cherokee in the amount of $580,000 on the building and $100,000 on the personalty, naming Roller Disco as the insured, First National Bank of Dalton as first mortgagee, and Gravitt as the second mortgagee. On September 16, 1983, Gravitt, individually and d/b/a Roller Disco, the First National Bank and Cagle entered into an assumption agreement concerning the promissory note and security deed from Gravitt to First National. In the assumption agreement, Gravitt was designated as the “seller” and Cagle as the “purchaser,” with the bank declared to be the “mortgagee.” The stated intent of the agreement was “to sell and convey the whole of the real property described in such deed to secure debt to Purchaser, and Purchaser desires to purchase said real property subject to the deed to secure debt above referred to.” Gravitt was paid $2,000 by Cagle, leaving a balance due of $298,000. In the assumption agreement, Gravitt remained obligated to pay the bank the sum of $300,000 he had obtained on September 10, 1980, which was secured by his deed to secure debt on the property he had executed in favor of First National.

Cagle entered into possession of the property and land, and thereafter on October 6, 1983, the building and its contents were burned. On December 20,1985, Cagle entered a plea of guilty to arson of the building in the United States District Court in Rome. Cherokee filed a declaratory judgment action against First National, Gravitt and Cagle, as to its liability under its insurance policy on the building. The trial court granted First National’s motion for summary judgment in the amount of $226,535.01 and $40,490.80 interest. Cherokee’s appeal was decided by this court in favor of First National and the Supreme Court denied certiorari.

Gravitt had originally filed a counterclaim in Cherokee’s action, but because all rights had accrued between the parties, a motion to dismiss the declaratory judgment action was granted and Gravitt’s counterclaim became the complaint and Cherokee became the defendant. Gravitt amended his complaint and requested judgment on two counts. Count 1 alleged he was the holder of a promissory note in the amount of $300,000 (from Cagle), secured by the property which is the subject matter of the action which was insured by Cherokee, and named Roller Disco as insured and Gravitt as the second mortgagee, that the insured building burned, Cherokee denied liability, and Gravitt contended he was entitled to insurance proceeds up to the amount owed him by Cagle — $298,000. Count 2 alleged First National was the holder of the first deed to secure debt against the insured property and that Gravitt was liable to the bank on a promissory note, and the assumption agreement between the bank, Cagle and himself retained him jointly and severally liable with Cagle on the original note, and Cherokee had denied liability of his indebtedness to the bank in the amount of $226,535.01.

Gravitt moved for partial summary judgment as to three issues: (1) that he had an insurable interest in the insured property, (2) that he was an insured under the policy, and (3) “Defendant! ] [Cherokee’s] proposed counterclaim, as assignee of the First National Bank, against Plaintiff [Gravitt] be dismissed or, in the alternative, summary judgment be granted that any sum due to Defendant, as said assignee, by Plaintiff is insured to the benefit of Plaintiff under the policy. . . .” Held:

Appellant contends that appellee cannot be a loss payee as a mortgagee, because he is not a mortgagee. Appellee’s retort is that that issue has been determined adversely to appellant in the first appeal of this case. In the former appeal, we found that First National was a mortgagee and because of the insurance policy’s inclusion of a “New York standard” clause, which provides that a loss which is payable to a mortgagee, its position shall not be affected by any act or neglect of the mortgagor, the arson by the mortgagor did not void insurance coverage for the loss to the mortgagee. First National and Gravitt were both named as mortgagees in the policy, but in the former appeal it was incorrectly stated that “[a] deed and a deed to secure debt on the property were recorded showing Roller Disco as the debtor and Gravitt as the secured party. . . .” (Emphasis supplied.) 181 Ga. App. at 146. Both parties to this appeal have stipulated that Gravitt has never executed a deed to Roller Disco, Cagle, or any other entity. Cherokee argues that since Gravitt never executed a deed to Cagle or Roller Disco, Cagle never had title and could not execute a valid security deed to Gravitt, because a non-owner cannot convey what he does not own. See generally, Pindar, Ga. Real Estate Law & Procedure § 21-7. Cherokee claims that if Cagle had no title, he could pass none in this security deed, and “there was no consideration for the promissory note and security deed . . . there was no debt, there was no mortgage, and Appellee is not a mortgagee.” We cannot concur with this conclusion.

Appellant has ignored that all parties to the purported sale, Gravitt, Cagle, and First National were fully aware that Gravitt had purchased the property, borrowed $300,000 from First National and executed his promissory note and a security deed to First National. Hence, at the time of the purported sale from Gravitt to Cagle there was in existence a security deed from Gravitt passing title to the property to First National as security for his loan. The assumption agreement recognized this fact as the basis for Gravitt not executing a deed to Cagle, for it clearly shows what was intended and attempted by these parties, i.e., Gravitt was the “seller,” Cagle was the “purchaser,” and First National was the “mortgagee.” The stated intent was “to sell and convey the whole of the real property described in such deed to secure debt to Purchaser, and Purchaser desires to purchase said real property subject to the deed to secure debt above referred to [from Gravitt to First National]" (Emphasis supplied.) In the assumption agreement, Gravitt remained liable on his original promissory note to First National, which was secured by his security deed to the bank. Thus, Gravitt passed his title to the bank and he had nothing left to pass to Cagle except his equity. See Pindar, supra, § 21-49. The assumption agreement attested to the intent of all parties for Gravitt to sell the property to Cagle and Cagle gave his promissory note to Gravitt and secured it with his security deed. Cagle paid $2,000 to Gravitt and went into possession of the property. Hence, there was consideration on both sides — Cagle paid $2,000 to Gravitt, executed a promissory note and deed to secure debt, and delivered them to Gravitt. Gravitt gave possession of the property and the Roller Disco Corporation to Cagle. First National retained Gravitt’s promissory note and security deed on the property. Cherokee recognized these agreements and the insurable interests of Cagle as purchaser of Roller Disco Corporation, and the realty, and the mortgagee’s interests represented by the instruments evidencing these debts by Cagle and Gravitt.

Our Code provides that “[n]o particular form is necessary to constitute a mortgage. However, a mortgage must clearly indicate the creation of a lien and must specify the debt for which it is given and the property upon which it is to take effect.” OCGA § 44-14-31. Further, such mortgage “is only security for a debt and passes no title.” OCGA § 44-14-30. Decisions of the appellate courts of this state have distinguished between mortgages and deeds to secure debt, pointing out that a deed to secure debt conveys title, while a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820, 823 (140 SE2d 36), citing Loftis v. Alexander, 139 Ga. 346, 349 (77 SE 169). Hence, even if the purported deed to secure debt from Cagle to Gravitt was ineffective to pass title, as contended by appellant, it could be effective as a mortgage if it possessed the attributes required by the code. Thus, our appellate courts have held that a purported conveyance of real estate can be a mortgage despite provisions contained therein describing it as a deed (Camp v. Teal, 44 Ga. App. 829 (1) (163 SE 233)), and conversely an instrument in the form of a security deed is not a mortgage merely because it recites it was given to secure a described note. Richey v. First Nat. Bank, 180 Ga. 751 (3) (180 SE 740).

The so-called “security deed” from Cagle to Gravitt (which appellant contends is ineffective) and the assumption agreement between the bank, Cagle and Gravitt, met the requirements of OCGA § 44-14-31 as to the contents of the mortgage, that is, the creation of a lien, the debt for which it is given, and the property upon which it is to take effect. This code section has dispensed with the formalities of a mortgage in determining its genus. Hopkins v. West Publishing Co., 106 Ga. App. 596, 599 (127 SE2d 849). All parties to the assumption agreement treated Cagle and Gravitt as seller and purchaser and although the promissory note and deed to secure debt from Cagle to Gravitt was not included in the record before us, we must assume that they support the judgment of the trial court in finding that Gravitt “stands in the same position as FIRST NATIONAL (albeit as Second Mortgagee after FIRST NATIONAL).” The court found Gravitt was “the holder of a promissory note (EXHIBIT “F”) secured by a security deed on the realty, (EXHIBIT “G”) which provides that the debtor [Cagle] shall ‘maintain a sufficient amount of fire insurance on building on this property with loss payable to second party to protect the interest of the party of the second part.’ ” Hence, it is clear that the court had before it sufficient evidence to show the creation of a lien, the debt for which it is given, and the property upon which it is to take effect.

Appellant argues, on motion for rehearing, that we are in error to discuss the “security deed from Gravitt to First National” for “Gravitt is claiming the right to be paid $298,000 in consideration for the transfer of property to Roller Disco that he never made” and that the trial court had previously found for First National “in the principal amount of $226,535.01 . . . that amount has been paid and is no longer an issue in the case.” Counsel ignores his enumerated error that “[t]he trial court erred in granting Appellee Gravitt’s Motion for Summary Judgment.” The third element of that motion was for judgment on “Defendant’s proposed counterclaim, as assignee of the First National Bank, against Plaintiff, be dismissed or, in the alternative, summary judgment be granted that any sum due to Defendant, as said assignee, by Plaintiff is insured to the benefit of Plaintiff under the policy. . . .” Hence, it appears that Cherokee took an assignment from First National when it paid its judgment in the former appeal and raised a “proposed counterclaim” against Gravitt in the present action. Although the issues surrounding the liability of Gravitt to First National on the original note and deed to secure debt may have been determined as between Cherokee and First National on the first appeal of this case, when Cherokee took an assignment from First National and filed a “proposed counterclaim” against Gravitt, it became germane to this appeal and the trial court’s grant of summary judgment on this issue. However, appellant did not include in the record on appeal its answer, the alleged “counterclaim,” or its assignment from First National. Now that appellant contends this issue should not have been included in our opinion, that element of the grant of summary judgment is considered abandoned.

Further, we find the trial court did not err in finding that Gravitt had an “insurable interest” in the insured property. “[I]nsurable interest” means “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” OCGA § 33-24-4 (a). Title is not the only determinative factor, but the insured must have an insurable interest in the property, whether it be “ ‘slight or contingent, legal or equitable.’ ” Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 591 (307 SE2d 107). Gravitt has a “substantial economic interest in the safety or preservation of the insured property,” as he remained liable on his promissory note to the bank, and he and Cagle both had a “ ‘slight or contingent, legal or equitable’ ” interest (Tomkus v. Parker, 236 Ga. 478 (1) (224 SE2d 353)) in the insured property which would have been enforceable either in law or equity had the fire not occurred and the debts paid. See Georgia Farm Bureau Mut. Ins. Co. v. Smith, 179 Ga. App. 399 (1) (346 SE2d 848); Pindar, supra, § 21-49.

Whether we classify Gravitt as a “mortgagee,” or as a party with an equitable interest in the property insured, he was a named mortgagee and had an insurable interest in the property, and Cherokee was required to pay only for the loss it insured to the parties insured. We find no merit to appellant’s claim of error in the partial grant of summary judgment to appellee and the denial of appellant’s motion.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

Decided April 28, 1988

Rehearing denied May 17, 1988

C. King Askew, for appellant.

Sam F. Little, for appellee.


author: Carley, Judge. Deen, Presiding Judge,

text:
    76234.
    BESS v. THE STATE.
    (369 SE2d 784)
   Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of aggravated child molestation, one count of statutory rape, and one count of child molestation. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. “Under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), ‘(i)f the defendant can establish a prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory challenges, the prosecutor must explain his exercise of peremptory challenges, and demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges.’ [Cit.]” Hillman v. State, 184 Ga. App. 712 (1) (362 SE2d 417) (1987). In response to appellant’s Batson motion, the trial court ruled that a prima facie case of racial discrimination had been made and it then asked that the prosecuting attorney give an explanation for her exercise of peremptory strikes to remove eight of nine potential jurors who were black. After hearing the prosecuting attorney’s explanations for striking the eight black potential jurors, the trial court found no Batson violation, holding that the explanations which had been offered were of sufficient racial neutrality so as to rebut appellant’s prima facie case of racial discrimination. Appellant enumerates the trial court’s ruling in this regard as error.

“In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. The explanation ‘need not rise to the level justifying exercise of a challenge for cause,’ but it must be ‘neutral,’ ‘related to the case to be tried,’ and a ‘ “clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’ [Cit.] The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.” Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). Appellant’s prima facie case was not a weak one. As noted, of the forty-two prospective jurors nine were black and, of those nine, all but one was eliminated by peremptory strikes. Accordingly, our review of the trial court’s acceptance of the prosecuting attorney’s reasons for using her peremptory strikes to eliminate eight black prospective jurors must be from the perspective of a relatively strong prima facie case of racial discrimination in the employment of those strikes.

On appeal, appellant concedes that it is only as to seven of the eight black prospective jurors who were eliminated that he questions the trial court’s finding of a racially neutral explanation. “Although the prosecutor may not strike from assumptions based solely upon race, he ‘may strike from mistake, or from ignorance, or from idiosyncracy.’ [Cit.]” Killens v. State, 184 Ga. App. 717, 719 (2) (362 SE2d 425) (1987). That the prosecuting attorney in this case used peremptory strikes to eliminate two of the seven black veniremen in question because they stated that they knew appellant is a racially neutral justification and the trial court was authorized so to find. See McCormick v. State, 184 Ga. App. 687, 688 (362 SE2d 462) (1987). Likewise, the trial court’s acceptance as a sufficient explanation that another black veniremen had been stricken from the jury because there was reason to believe that he might have been the subject of a criminal investigation was not error. See McCormick v. State, supra at 689. Three of the black female veniremen were stricken from the jury on the basis that, in the opinion of the prosecuting attorney, they would be “good” jurors to serve in certain other criminal cases which might possibly be reached during the period of their jury duty. Specifically, the prosecuting attorney expressed a belief that, because of their apparent conservative nature, two of the women would be more “appropriate” jurors, from the State’s point of view, in a drug case wherein the defendant was a black female, whereas it was believed that the third, who lived in a high crime area, would be a better juror in upcoming cases which dealt with drugs and stolen property. In addition, the prosecuting attorney felt that the third female, as the result of her age, might be exceptionally offended by the nature of the testimony in this case. For purposes of rebutting a Batson prima facie case, those reasons are all sufficiently racially neutral and the trial court was authorized to make such finding. See generally Hillman v. State, supra. “The trial court’s findings are, of course, entitled to ‘great deference,’ [cit.], and will be affirmed unless clearly erroneous.” Gamble v. State, supra at 327. Under this standard, we find that, as to these six prospective jurors in question, the prosecuting attorney’s reasons were racially neutral and we affirm the trial court’s findings that, as to them, appellant’s prima facie case of racial discrimination was rebutted.

It is the explanation given as to the seventh black prospective juror which presented the trial court the most difficulty and which, on appeal, has likewise given us the most concern. This prospective juror was a black female and the reason given for the use of a peremptory strike to remove her from appellant’s jury was that she was over forty and had no children. The prosecuting attorney was of the opinion that, from the State’s point of view, a childless female who was past her prime child-bearing years would not necessarily be an appropriate juror to serve in a case, such as this, wherein the alleged victim was a child. Our review of the record indicates that this ostensibly racially neutral explanation is weak, not on the merits of the explanation itself but on the existence of a factual premise to support the applicability of that explanation to the prospective juror. There is no affirmative support in the record for the conclusion that this prospective juror was childless. The prosecuting attorney apparently based her assumption that the prospective juror had no children merely on the fact that the juror was presently single. However, it would not necessarily follow from the fact that the prospective juror was presently single that she was also presently childless. Moreover, there is some doubt whether the marital status of the prospective juror as a single woman was itself a valid assumption on the part of the prosecuting attorney. However, the law provides that a prosecuting attorney’s explanation, even if it is based upon mistake or ignorance, may be sufficient to rebut a prima facie Batson showing (see Killens v. State, supra), so long as it is not “ ‘ “whimsical or fanciful” ’ but is ‘neutral,’ ‘related to the case to be tried,’ and a ‘ “clear and reasonably specific,” explanation of [the] “legitimate reasons” for exercising the challenges.’ [Cit.]” Gamble v. State, supra at 327 (5). In this case, there is no contention that anything in the record would show that the prospective juror was not childless. Accordingly, it cannot be said that the explanation or, even if based upon mistake or ignorance, was whimsical or fanciful. Compare Gamble u. State, supra. Moreover, in response to an inquiry from the trial court, the prosecuting attorney stated that a childless white female of similar age would have been stricken in this case and there is nothing to indicate that this is not true. Compare Gamble v. State, supra. Accordingly, we hold that, notwithstanding the relatively “weak explanation” given for striking this particular juror, it was sufficient and that the trial court did not err in concluding that, as to all black prospective jurors eliminated by peremptory strikes, the State rebutted appellant’s prima facie Batson showing. “A court charged with the duty of determining whether the prosecuting attorney] has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor’s proffered justifications are questionable.” Gamble v. State, supra at 327 (5). “The duty of deciding whether the defendant established intentional discrimination lies in the trial court. [Cit.] A trial court’s finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it ‘largely will turn on evaluation of credibility.’ [Cit.] ‘Thus, we may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. [Cit.]’ [Cit.]” McCormick v. State, supra at 688.

2. “[Appellant] contends the pre-evidentiary charge rendered by the trial court [contained an incorrect statement concerning the credibility of witnesses]. He also asserts that the trial court intimated an opinion concerning [his] guilt ... in the pre-evidentiary charge. Our examination of the pre-evidentiary charge reveals no such defects. Moreover, a complete and accurate charge was given upon the conclusion of the evidence. Accordingly, we find no error. [Cits.]” Phillips v. State, 183 Ga. App. 194 (1) (358 SE2d 480) (1987).

3. Over appellant’s hearsay objection, a social worker was allowed to testify that the victim had told her of having been sexually molested by appellant. The trial court overruled appellant’s objection, specifically citing OCGA § 24-3-16 as the authority for its ruling. The trial court’s ruling is enumerated as error.

OCGA § 24-3-16 provides that: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” See Sanders v. State, 182 Ga. App. 581, 584 (3) (356 SE2d 537) (1987). Appellant contends that the trial court erroneously failed to make a specific finding on the record as to the reliability of the circumstances surrounding the statement. While the trial court made no such explicit finding, it did specifically base its decision to overrule appellant’s objection upon the provisions of OCGA § 24-3-16. Accordingly, the trial court’s ruling was a sufficiently implicit finding that the circumstances which surrounded the victim’s statement to the social worker provided “sufficient indicia of reliability.”

Appellant further contends, that the trial court’s implicit finding that the circumstances provided a “sufficient indicia of reliability” was erroneous. However, the trial court was authorized to find that, considering the social worker’s testimony as to the circumstances under which the statement was made to her, there was sufficient indicia of the victim’s reliability.

4. Appellant enumerates as error the trial court’s charge to the jury on the crime of simple battery as a lesser included offense. Appellant’s contention is that, under the trial court’s charge, the jury was instructed that it would be required to find him not guilty of all four counts charged in the indictment before it would be authorized to consider the issue of his guilt of the lesser included offense of simple battery. The record shows that the trial court instructed the jury that “there’s a lesser included offense as to each of these counts and that is the offense of Simple Battery which I [have] given you the definition for. If you’re not satisfied as to the guilt of the Defendant beyond a reasonable doubt as to any of these four counts which are charged in the bill of indictment, but do believe the Defendant is guilty of the offense of Simple Battery, [then mark the verdict form accordingly].” It is clear from the record that the trial court’s instruction could not have misled the jury in its deliberations as to appellant’s guilt of a lesser included offense.

5. Appellant’s remaining enumeration relates to the fact that the victim overheard a discussion between the court and counsel with regard to appellant’s offer to plea bargain. Appellant waited to make his offer until the trial court had first found, outside the presence of the jury, that the victim was, despite her age, a competent witness. Appellant then made his offer to plea bargain while the victim was still on the stand. Thus, if it was error to discuss the topic of appellant’s plea bargain in the presence of the victim, it was error which was induced by appellant. Appellant, having made the initial tactical decision to await the determination of the victim’s competency to testify, cannot benefit from the error, if any, that resulted from his further decision to offer his plea bargain immediately upon the establishment of the victim’s competency. “A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. [Cits.]” Jackson v. State, 234 Ga. 549, 553 (216 SE2d 834) (1975). “ ‘Induced error is impermissible and furnishes no ground for reversal: [Cit.]” Garrett v. State, 153 Ga. App. 366, 370 (4) (265 SE2d 304) (1980).

Judgments affirmed.

Sognier, J., concurs. Deen, P. J., concurs dubitante.

Deen, Presiding Judge,

concurring dubitante.

A brief statement of the facts is appropriate most of the time even in cases of child abuse, in order to gain a real understanding of what occurred in the case. Appellant was the boyfriend of the victim’s mother. The latter had three other small children. The victim was eight years of age. She was found competent by the court, testified, and was cross-examined. The mother testified that her daughter admitted to her in front of defendant that he “messed” with her and that he did not deny it. She said defendant told Detective Conner that he “didn’t know what he could have did because he was doing, doing — when he was on that stuff.” (Emphasis supplied.)

Anatomical drawings and explicit testimony were given, detailing forced acts of his placing his private parts, mouth, and tongue inside the body of the victim. Some argue and articulate that recital of even minimal facts in heinous drug, porn, obscenity, and sexual cases involving abuse of small children should not ever be necessary in deciding these types of delicate, emotional cases. One judge on our court recently opined: “While I find appellant’s conduct reprehensible, I share Justice Smith’s view, set forth in a dissenting opinion as follows: ‘As a result of this being such an emotion-filled area of the law at this time, we are ignoring the time-honored rules of evidence and are creating new rules for child abuse and molestation cases in order to obtain convictions of those who are perceived guilty of those heinous crimes. . . . Those accused of other crimes should not be provided greater evidentiary protection than those accused of child molestation.’ State v. Butler, 256 Ga. 448, 454-455 (349 SE2d 684) (1986).” Ward v. State, 186 Ga. App. 503, 507 (368 SE2d 139) (1988).

It is the view of this writer that many times those accused of child abuse and molestation are actually provided greater evidentiary protection than those accused of other crimes, i.e., burglary of a bank and embezzlement of an insurance company. Usually those convicted of the latter type crimes are faced publicly with detailed recital of the facts of their misdeeds in written opinions, and further the opinions are usually 'always reported for the bench, bar, and public to see and know what they have done to the bank and insurance company. In the former cases, on many occasions, probably in deference to the youthful victim, the facts and acts of defendants are swept under the rug or are scantily mentioned, if at all; furthermore, many times the opinions are unreported under our Rule 37 (b), a type of further censorship of facts, so that no one really knows what occurred to the innocent, abused children, as shown by the trial transcript. “[M]ost of our [obscenity] decisions . . . have been given without opinion and have thus failed to furnish . . . guidance.” Jacobellis v. Ohio, 378 U. S. 184, 200 (84 SC 1676, 12 LE2d 793) (1964). See Motes v. State (Case No. 75795, unpublished opinion, decided April 28, 1988) and many other similar type cases unreported under Rule 37 (b). One might inquire, “How many ways can sodomy be committed?”; or, “How many ways can one rob a bank?” Should facts in the former be consistently omitted and unreported, while those in the latter are always repeated and reported?

Our court cannot treat the victims in emotion-filled areas of the law, such as child abuse, differently from victims in other areas of criminal law. Likewise, all criminal defendants coming before this court must be given the same protection, not less, not greater, but all must be fed substantially out of the same spoon. We must not let it be said that “the judicial system has been complicitous in the further harm to the child.” Dixon v. Dixon, 183 Ga. App. 756, 759 (360 SE2d 8) (1987). To keep quiet as to the facts, acts and attacks (whether involving sex, drugs, pornography) is precisely that to which the actor or attacker ardently aspires.

Decided May 4, 1988

Rehearing denied May 18, 1988

Michael S. Bennett, C. Richard Williams, Jr., for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, David Miller, Stephen J. Pearsall, Assistant District Attorneys, for appellee.


author: Sognier, Judge.

text:
    76160.
    SMITH et al. v. YOUNG et al.
    (369 SE2d 798)
   Sognier, Judge.

Eugenia P. Smith and Kay P. Norris, nieces of James Dailey Swilling, filed a three-count complaint after Swilling’s death against Mary Jo and Alfred L. Young, Swilling’s sister and brother-in-law. The first count sought to void the proceedings which had been initiated by Mary Jo Young, in which she had been appointed guardian of the person and property of Swilling, and in which Swilling was subsequently restored to competency. Counts two and three alleged fraud and undue influence by the Youngs in the transfer of certain property to them by Swilling during his lifetime, and sought an accounting, as well as compensatory and punitive damages. The Youngs answered and filed a counterclaim for abusive litigation, and both sides moved for summary judgment. The trial court denied the motion of Smith and Norris for summary judgment and granted that of the Youngs as to the main claim, but left the Youngs’ counterclaim pending below. Smith and Norris appeal.

1. Appellants contend the trial court erred by granting summary judgment in favor of appellees because Swilling was not a resident of Cobb County, and consequently the Probate Court of Cobb County lacked jurisdiction to entertain the guardianship proceedings. The record reveals that in July 1982, Swilling, a Stephens County resident, was in an automobile accident and suffered a severe head injury which rendered him incompetent. He was treated at Stephens County Hospital, but was transferred to an Atlanta hospital for further treatment, and then admitted to a convalescent center in Cobb County, which is the county of residence of appellees. Shortly after Swilling was admitted to the convalescent center, appellee Mary Jo Young applied for letters of guardianship.

OCGA § 29-5-6 (a) (1) provides, in pertinent part, that “[a]ny interested person . . . may file a petition under oath for the appointment of a guardian. The petition shall be filed with the probate court in the county where the alleged incapacitated person resides or is found, provided that the probate court of the county where the proposed ward is found shall not have jurisdiction to hear any guardianship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing such an action.” We do not agree with appellants that Sorrells v. Sorrells, 247 Ga. 9 (274 SE2d 314) (1981) held that the “or is found” portion of the venue provision in OCGA § 29-5-6 (a) (1) was unconstitutional, nor do we agree that Sorrells supports appellants’ argument that because Swilling lacked the capacity to change his domicile from Stephens County to Cobb County, the Probate Court of Cobb County necessarily lacked jurisdiction over the guardianship proceedings. Rather, in Sorrells, the Supreme Court held that “[although we do not find this statutory scheme to be unconstitutional per se, we do conclude that under Art. VI, Sec. XIV, Par. VI of the Georgia Constitution . . . , where a person files an application for the appointment of a guardian of an allegedly mentally incompetent state resident, the allegedly mentally incompetent person is entitled to have the application for guardianship heard in the probate court of the county of his or her residence. Where . . . the representative of the alleged incompetent files a plea to the court’s jurisdiction on the ground that the alleged incompetent is a resident of another county, the plea should be sustained if it is determined that the alleged incompetent is, in fact and in law, a resident of the other county.” (Footnotes omitted.) Id. at 11 (2). The court added, however, in a footnote, that “[o]ur holding . . . does not affect applications for guardianship for state residents where no plea to the court’s jurisdiction is filed.” Id. fn. 3. Since it is uncontroverted that no plea to the court’s jurisdiction was filed in the guardianship proceeding, and that Swilling was at the time of the proceeding “found” in Cobb County, the Probate Court of Cobb County did not lack jurisdiction over the proceedings.

Nor do we find merit in appellants’ argument that the Probate Court of Cobb County lacked jurisdiction over the guardianship proceedings because the line on the printed guardianship application form which alleged the proposed ward’s residence in Cobb County was crossed out. The application recited that Swilling was located at the nursing home in Cobb County, and since the court’s jurisdiction was not challenged, under Sorrells, supra, that was sufficient. The holding in Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 827 (5) (200 SE 203) (1938), cited by appellants, was limited to probate courts “in matters connected with the administration of the estate of a minor,” and is thus inapplicable. However, even as to such matters, Campbell held that “the necessary jurisdictional facts need not be made to appear on the face of the record.” Id. Similarly, Jones v. Woods, 158 Ga. App. 391 (280 SE2d 418) (1981), is distinguishable, because unlike the situation in Jones, it is clear that the guardianship application in the case sub judice did set forth facts sufficient to confer jurisdiction on the Probate Court of Cobb County. As appellants have not shown that the guardianship proceedings were void, the trial court did not err by denying their motion for summary judgment on that ground.

2. Appellants also allege the trial court erred by granting summary judgment in favor of appellees because the evidence submitted by appellees in support of their motion for summary judgment was insufficient to pierce appellants’ allegations of fraud and undue influence, and thus an issue of fact exists as to whether appellees exerted undue influence on Swilling, which requires resolution by a jury. We do not agree.

In response to appellees’ interrogatories, appellants alleged eight instances of fraud or undue influence. Five of the allegations concerned the guardianship proceedings or Young’s behavior as guardian, which acts were approved by the probate court, thus estopping appellants from challenging them here. See generally Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986). In their sixth allegation, appellants asserted that appellees disposed of several wills. However, appellants failed to produce evidence that any wills existed other than an irregular and incomplete one which appellants admit was invalid, whereas appellee Mary Jo Young testified that no other wills were found.

In the final two allegations appellants asserted that undue influence was exerted by appellees upon Swilling in convincing him to convey to appellees a one-half interest in his home and his car. However, no evidence was submitted by appellants in support of these allegations in their interrogatory answers. Although appellants maintain that the conveyances resulted from the enfeeblement of Swilling’s mind, the record establishes that both transfers were made after Swilling’s restoration to competency. It is further uncontroverted that appellees alone cared for Swilling personally after his release from the nursing home, and took charge of his business during his entire convalescence, and that even before his accident, Swilling had trusted his sister enough to have placed her name on several bank accounts and certificates of deposit jointly with his own. Thus, we agree with the trial court that appellees presented evidence that pierced appellants’ allegations of fraud and undue influence, and since appellants failed to come forward with evidence supporting their allegations, appellees were entitled to summary judgment. See generally Howard v. American Business Equip., 184 Ga. App. 550, 551 (2) (362 SE2d 127) (1987).

Decided May 18, 1988.

Thomas M. Strickland, for appellants.

James E. Cornwell, Jr., for appellees.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    76171.
    BROOKS v. THE STATE.
    (369 SE2d 801)
   Carley, Judge.

Appellant was tried before a jury on an accusation charging him with two counts of driving under the influence. Count One alleged a violation of subsection (a) (2) of OCGA § 40-6-391, which prohibits the act of driving or having physical control of a moving vehicle while “[u]nder the influence of any drug to a degree which renders [one] incapable of driving safely. . . .” Count Two alleged a violation of subsection (a) (3) of OCGA § 40-6-391, which prohibits the same acts while “[u]nder the combined influence of alcohol and any drug to a degree which renders [one] incapable of driving safely. . . .” The jury returned a verdict of guilty as to each count. Following the trial court’s denial of his motion for new trial, appellant appeals from the judgments of conviction and sentence entered on the verdicts.

1. The general grounds are enumerated. Appellant urges that the State failed to introduce evidence which would authorize a finding that he was under the influence of anything other than alcohol.

However, there was probative testimony given by the arresting officer as a witness for the State to the effect that, based upon his specialized training and experience and his personal observations and knowledge, appellant had presented the appearance and conduct of one who was under the influence of drugs or a combination of drugs and alcohol, rather than one who was under the influence of alcohol alone. Appellant himself testified that he had had only one alcoholic drink. Yet, there was evidence that when appellant was stopped, his face was flushed, his eyes were “bugged wide open,” he appeared to be “spaced out,” he fumbled for his driver’s license, he was unsteady on his feet, he had to balance himself on the side of the car, and he could not successfully complete the field tests. There was no explanation offered by appellant for his on-the-scene behavior and condition other than that he was tired and that the officer was mistaken in his assessment of the circumstances. After deliberately wiping white powder off his nose, nostrils, and moustache on the way to the police station, appellant refused to submit to either the blood or urine tests for determining alcohol or drug content, as had been requested by the officer, who had also explained the requirement to appellant and who had stated that he suspected cocaine usage. This refusal itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. OCGA § 40-6-392 (c); Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983).

The evidence upon which the jury verdict was based is sufficient to sustain a finding that appellant was under the influence of drugs beyond a reasonable doubt. It meets the test articulated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After giving curative instructions, the trial court denied appellant’s motion for mistrial, which motion had asserted that certain remarks made by the State’s counsel in his closing argument were improper. Appellant enumerates as error the denial of his motion for mistrial.

“[Wjhere, during oral argument, [the prosecuting attorney] makes statements deemed by the defendant to be improper and upon a motion for mistrial the court immediately instructs the jury not to consider such argument, no harmful error appears in the overruling of the motion unless it is manifest that an abuse of the court’s discretion has occurred. [Cit.] No such abuse of the trial court’s discretion occurred here.” Sprayberry v. State, 174 Ga. App. 574, 578 (5) (330 SE2d 731) (1985). See also Black v. State, 167 Ga. App. 204, 206 (3) (305 SE2d 837) (1983).

3. Appellant’s motion for new trial alleged the existence of juror misconduct. The trial court’s failure to find this ground for the motion for new trial to be meritorious is enumerated as error.

In support of this ground of the motion for new trial, appellant submitted only the affidavit of his own counsel. In that affidavit, appellant’s counsel related statements which had been made to him by a juror concerning her conduct during the course of the trial. “[T]he verdict may not be impeached by the affidavit of a third person establishing the utterance by a juror of remarks which may impeach his verdict. [Cit.] Appellant sought to impeach the verdict in precisely this manner which, under similar circumstances, has repeatedly been disallowed by both this court and the Supreme Court. [Cits.] The trial court thus properly denied appellant’s motion for new trial based upon this ground.” Arnold v. State, 166 Ga. App. 313 (1) (304 SE2d 118) (1983).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.

Decided May 18, 1988.

Joseph M. Winter, for appellant.

Ralph T. Bowden, Jr., Solicitor, Gregory A. Adams, Jr., Lee B. Perkins, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.


author: Pope, Judge.

text:
    76262.
    WALKER et al. v. CASTELLO et al.
    (369 SE2d 527)
   Pope, Judge.

Defendant Battista, by and through her husband, entered into a contract with defendant Castello, an automobile dealer, for Castello to attempt to sell her Mercedes automobile. Plaintiffs Annie Mae and Jessie Walker negotiated with Castello to purchase the Mercedes. On June 5, 1985, the Walkers delivered the negotiated purchase price to Castello and took possession of the Mercedes. At the time of purchase, the Walkers were not aware the automobile was owned by a third party. Battista had given her consent to the sale only if she could obtain proceeds from the sale no later than June 5, 1985. When Battista’s husband arrived at the dealership on June 5, he was told by Castello the sale could not be finalized for two to three months, the time it would take for Battista to obtain certain documents certifying the imported car had been converted to meet federal standards. These terms were not acceptable to Battista and she demanded either her money for the sale of the car or the return of the car. Castello persuaded the Walkers to return the car under the apparent pretense that he could obtain a certificate of title on the car only if it was returned for a few days. When the Walkers returned the car Castello delivered it to Battista and simply retained the proceeds of the sale. After repeated calls and visits by the Walkers, Castello claimed he could not obtain a certificate of title on the original automobile and offered to order them a brand new Mercedes in place of the car they had returned. The Walkers agreed. In the meantime, Castello permitted the Walkers to drive his wife’s Mercedes. That car was repossessed by the bank. Castello never delivered another car to the Walkers and never refunded their money. Eventually, Castello pled guilty to a criminal RICO charge. Plaintiffs brought this action for breach of contract and conversion against defendants. Plaintiffs appeal the trial court’s grant of summary judgment to defendant Battista and the denial of summary judgment to plaintiffs on their claim for conversion.

1. Plaintiffs’ first two enumerations of error contend the court erred in denying their motion for summary judgment against defendant Battista on the claim for conversion. Plaintiffs are correct in arguing they obtained all the rights to the automobile originally held by defendant Battista when they purchased the automobile from the dealer to whom it had been entrusted. See OCGA § 11-2-403 (2). Unfortunately, this ill-fated transaction did not end with the initial purchase and delivery of the car. After returning the car to the dealer in hopes this would enable him to obtain a proper certificate of title, plaintiffs eventually agreed to give up their claim to the automobile in exchange for the dealer’s promise to order them a new and different automobile. This subsequent agreement with the dealer revoked any right or title plaintiffs had to the automobile in question and revested title back to the original owner, defendant Battista. See OCGA § 11-2-401 (4); Tennessee-Va. Construction Co. v. Willingham, 117 Ga. App. 290 (1) (160 SE2d 444) (1968). Therefore, defendant Battista’s possession (and subsequent sale) of the automobile was lawful and plaintiffs are not entitled to summary judgment on their claim against Battista for unlawful conversion.

Decided May 18, 1988.

Charles R. Desiderio, for appellants.

Carol V. Clark, Teresa L. Perrotta, for appellees.

2. Plaintiffs’ final two enumerations of error contend the court erred in granting summary judgment to defendant Battista. We agree with the trial judge that plaintiffs’ only remedy for their loss is against defendant Castello and not against defendant Battista.

The record shows the agreement to order a new car in place of the automobile plaintiffs originally purchased was made solely between plaintiffs and defendant Castello. Defendant Battista was not a party to the agreement to order a new car. Absolutely no facts exist to support plaintiffs’ claim that defendant Castello was acting as agent for defendant Battista in negotiating this separate agreement with plaintiffs since the only agreement between Castello and Battista concerned the consignment and sale of the original automobile. Plaintiffs’ agreement to forego their rights to the original car they purchased and to order a new car through Castello would serve as a novation of the original purchase contract. The original contract for the purchase of Battista’s Mercedes was at an end. It was the subsequent agreement to order a new car which was breached. Plaintiffs have no claim against defendant Battista for defendant Castello’s failure to perform under the subsequent contract.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    76447.
    JUSTICE v. R. D. C., INC. et al.
    (369 SE2d 493)
   Deen, Presiding Judge.

Mary Ruth Justice was injured on January 12, 1979, while on the job at Rossville Spinning Mills when she fell and fractured her right wrist. She was treated by an approved physician who reduced the fracture, applied a cast, and instructed her to keep her right arm elevated and to take certain medications for pain. The doctor’s notes indicated that on her fourth post-operative office visit on March 28 he noted that the wrist was healing satisfactorily and that she showed “diffuse tenderness to palpitation about the right shoulder” on examination, and that she had “limited internal rotation with the right shoulder.” He prescribed range of motion exercises to the shoulder, hands and wrist and noted that she had “100% temporary impairment.” He stated that he planned to take X-rays of the right wrist and shoulder prior to her next visit scheduled in approximately four weeks. Visits on April 27, May 8, May 18, June 8, June 12, June 14, July 26, and Sept. 5, all indicate that Ms. Justice continued to have problems with her shoulder and that she was treated for it and for her wrist. On her October 17 visit, the doctor noted that she had about “80% to 90% of ROM of the right shoulder in comparison to the left. She has about 80% of ROM of the right wrist in comparison to the left. ... I feel that the patient has 50% total impairment at this time.” She was advised that she could return to work on October 22. Notes on subsequent visits all discuss the shoulder problem as well as the wrist. On January 26, 1980, she was rated as having a 20 percent temporary impairment. On April 10, 1980, her employer terminated her employment because of her inability to do her work. In May she began working at a movie theatre part-time at a lower hourly rate of pay. On October 2, 1980, the doctor’s notes reveal that she had little discomfort in the shoulder, but the right forearm had 80 percent to 90 percent ROM, and she was rated as having a 20 percent permanent physical impairment.

On March 18, 1981, the employer made a “final payment” of thirty-two weeks of disability pay for the 20 percent permanent partial disability to the hand. The employer continued paying medical benefits for all her medical treatment to her wrist and shoulder. On August 26, 1982, the attending physician rated her right upper extremity as being 20 percent temporarily impaired, and on October 12, 1982, he rated her as having a “20% permanent physical impairment/ loss of physical function to the right upper extremity as a whole.” The doctor’s notes of February 3, 1983, show that the impairment is unchanged. In January of 1984, some five years after the wrist was fractured, the doctor notes that she has very little discomfort in it, but that she had pain at extremes of motion or after using her hand for any length of time. She was doing well with her shoulder, but subsequent visits indicated that she was still having pain in the wrist and right shoulder.

The doctor’s fee statement shows that the employer paid all her medical expenses, including X-rays for treatment to her wrist and shoulder, but ceased paying her medical bills on November 17, 1983. After she filed a claim for workers’ compensation benefits and a hearing was held, the employer and its insurer accepted liability for the balance of the physician’s treatment.

The Administrative Law Judge found that the employer/insurer raised a defense of statute of limitations under OCGA § 34-9-104, that temporary partial disability benefits due since April 1980 were not paid, that the doctor’s permanent partial disability rating of 20 percent to the employee’s right upper extremity assigned August 26, 1982, was due but not paid, and that the statute of limitations is tolled under the holding in Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (338 SE2d 742) (1985). The ALJ denied both parties’ request that attorney fees be assessed against the other. The claimant was awarded $103.85 per week from April 10, 1980, to May 20, 1980, and $36.90 per week from May 20, 1980, to October 5, 1985, and $103.85 from October 5, 1985, for her disability rating of 20 percent to the upper extremity, with credit to be taken for previously paid weekly income benefits for the 20 percent permanent partial disability to her right hand by reducing the total number of weeks paid. The Full Board affirmed.

The award was reversed on appeal to the superior court. That court held that the board failed to apply OCGA § 34-9-104. It further found that a disability rating not assigned to the shoulder for some seventeen months after the board was notified of termination of the “PPD” benefits, and the finding that her shoulder problems were causally related to her on-the-job accident, were based on a medical report dated November 14, 1986, some seven years after the accident and five years after the benefits were terminated, and four years after the disability rating was assigned. This court granted Ms. Justice’s petition for a discretionary appeal.

1. In Holt’s Bakery v. Hutchinson, supra, this court held that where there is evidence to support a finding that a claimant was potentially due other income benefits at the time of the compensable injury and was not paid such benefits, OCGA § 34-9-104 (b) is not applicable.

The evidence as set forth above showed that the claimant was treated for her shoulder problem, along with her wrist injury, as early as two months after her right wrist was fractured. Indeed, the evidence shows that the problem manifested itself after she was required to keep her right forearm elevated. The employer/insurer at no time disputed medical payments for X-rays and other medical treatments for the shoulder. In determining what is meant by “potentially due” under Holt’s Bakery, supra, this court held that “potential” means “not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it.” MARTA v. Ledbetter, 184 Ga. App. 518, 519 (361 SE2d 878) (1987). The ALJ found that such evidence existed, and we agree. Thus the trial court erred by failing to apply the “any evidence” rule. Chevrolet-Pontiac-Canada &c. Corp. v. Millar, 182 Ga. App. 889 (357 SE2d 598) (1987).

Decided April 25, 1988

Rehearing denied May 19, 1988.

Timothy A. Deere, for appellant.

John C. Bruffey, Jr., James C. Weidner, for appellees.

2. To recover attorney fees pursuant to OCGA § 34-9-108, a party must prove that the other party “brought, prosecuted and defended in whole or in part without reasonable grounds” the matter in issue. The ALJ found that the doctor’s notes do not mention a shoulder problem until several months after the claimant’s injury and did not tie the shoulder problem to the wrist injury until much later. The ALJ found that the failure to file WC-3 forms and the failure to pay the physicians’ medical bills were not without reasonable grounds. The failure to pay permanent partial disability was also not without reasonable grounds, as the employer had paid a previous rating on the hand, and the employee was released for return to work in 1980 without restrictions. Moreover, the employer/insurer was not informed of the claim for total disability or indemnity for total disability for reduced income. As there was some evidence to support these findings of fact, we find no error. Chevrolet-Pontiac-Canada &c. Corp., supra.

Judgment reversed.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    76033.
    GEORGIA TURKEY FARMS, INC. v. HARDIGREE.
    (369 SE2d 803)
   Beasley, Judge.

Mrs. Hardigree sought to recover certain funds from the appellant on behalf of her deceased husband’s estate. The case was tried before the judge without a jury on the following stipulated facts.

Georgia Turkey Farms is a Georgia cooperative marketing association of which the deceased was a member in good standing at the time of his death. As a member of the cooperative Hardigree acquired property interests in the form of stock in the association, revolving fund certificates issued in return for capital contributed to the association, and retained proceeds of the association. Revolving fund certificates represent payments for business conducted with the association by its members. Retained proceeds constitute payments credited to members for business with non-members. At Hardigree’s death on August 12, 1980, the amounts credited or allocated to him on the association’s books were $500 in capital stock, $47,185.09 in revolving fund certificates, and $11,040.70 in retained proceeds. An additional $4,175.07 in retained proceeds was credited to Hardigree’s account on December 31, 1980.

Pursuant to the bylaws of the association, the board of directors offered to pay the estate Hardigree’s $500 in capital stock and to begin paying out his revolving fund certificates and retained proceeds as they came due, without interest, as was provided for all living members.

By letter of October 28, 1980, Mrs. Hardigree made demand on behalf of the estate for payment in full of Hardigree’s property interest at the time of his death. She contended that the estate was entitled to receive payment within one year of his death under OCGA § 2-10-86 (b) (12) and as was done previously with respect to a member of the association who withdrew in February 1976.

On December 20, 1980, the association amended its bylaws under the procedures in OCGA § 2-10-86 (a) to provide: “In the event a member ceases to be an eligible member, either by death or otherwise: His one share of common stock shall be redeemed at $500; his revolving fund certificates will be paid at the same time as other certificates of that series; and no interest will be paid on those revolving fund certificates . . . ; the retained proceeds that have been allocated to a former member will, if funds are available, be paid in annual installments; and no interest will be paid.” Previously, no bylaw required distribution upon a member’s death or at any certain time measured from that event. The estate was notified of this amendment and a schedule of proposed payments to be made over a six-year period pursuant thereto.

Mrs. Hardigree filed suit, asserting that this amendment constituted an abuse of discretion on the part of the board of directors in that it would defeat the vested rights of the association shareholders and that the mandatory language of OCGA § 2-10-86 required that similar treatment be afforded to deceased members as given to the member who withdrew in 1976. Accordingly she sought immediate repayment of all funds and interest for any sums not paid within one year of Hardigree’s death.

The association countered that the statutory language dealing with repayment to members of their capital investment in the event of death was permissive and was mandatory only if a member was expelled or withdrew his membership; and that the provision further authorized cooperatives to exercise full discretion to adopt bylaws in regard to the redemption of capital upon the death of a member. By the time judgment was entered on August 25, 1987, the estate had been repaid Hardigree’s entire property interest in the manner adopted by the amendment of the bylaws. The association appeals the trial court’s holding that the estate was also entitled to interest on that amount since August 12, 1981, one year after Mr. Hardigree’s death, which was computed to be $17,337.99.

The questions are whether the controlling statutory language or original bylaws required redemption of Hardigree’s retained capital (also referred to as “patronage allocations” or “equity credits”) within one year of his death upon demand, and whether the post-demand amendment to the bylaws could affect the estate’s claim.

1. OCGA § 2-10-86 provides:

“(a) Each association incorporated under this article, within 30 days after its incorporation, shall adopt for its government and management a code of bylaws not inconsistent with the powers granted by this article. A majority vote of a quorum of the members or stockholders attending a meeting shall be sufficient to adopt or amend the bylaws when notice of the proposed bylaw or bylaws is given prior to the meeting.
“(b) Under its bylaws each association may provide for any or all of the following matters: . . .
“(12) The manner of determining the value of a member’s interest and provision for its purchase by the association upon the death or withdrawal of a member or stockholder, upon the expulsion of a member or forfeiture of his membership, or, at the option of the association, by conclusive appraisal by the board of directors, provided that in case of the withdrawal or expulsion of a member, the board of directors shall equitably and conclusively appraise his property interests in the association and shall fix the amount thereof in money, which shall be paid to him within one year after such expulsion or withdrawal.”

Mrs. Hardigree contends that the omission of the word “death” in the proviso to subsection (b) (12) after it had been included in the first part was merely a clerical error or omission and that it was not the legislative intent to exclude deceased members from the mandatory one-year period for repayment of investments. Georgia law and cases, as well as decisions from other states construing similar statutory provisions governing cooperative associations, convince us that this interpretation is not consistent with the purposes of such legislation. Nor does such a construction comport with the rule that “[statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indent, Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987).

In subsection (a) of OCGA § 2-10-86 the legislature in mandatory language directs that associations “incorporated under this article, within 30 days after its incorporation, shall adopt ... a code of bylaws not inconsistent with the powers granted by this article.” Subsection (b) is an enabling provision in permissive language and suggests that these associations in their bylaws adopted pursuant to subsection (a) “may provide for any or all of the following [twelve] matters.” (Emphasis supplied.) The twelfth of these optional matters, quoted above, is the one at issue here. Even if item (b) (12) is considered mandatory, it makes a specific exception only as to expelled or withdrawn members, which Hardigree was not. There is nothing in the statutory language to imply that the omission of the word death from the mandatory payment requirement was simply a “clerical error.”

“[T]he general rule is that where ‘the language of a statute is clear, direct, and positive, leading to no absurd results, and affording a suitable, if not a sufficient remedy for an existing evil, courts should be governed by the obvious meaning and import of its terms.’ [Cits.] . . . So, this court has held that language contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act. [Cits.]” Barton v. Atkinson, 228 Ga. 733, 738-739 (1) (187 SE2d 835) (1972).

A similar statutory provision was considered in Driscoll v. East-West Dairymen’s Assn., 122 P2d 379, 380 (Cal. App. 1942). The court rejected an argument that under the statutory language reciting that an association “may provide for ‘ . . . the manner of determining the value of a member’s interest and provision for its purchase by the association upon the death or withdrawal of a member’... no discretion nor alternative remains in the association in regard to its bylaws; in other words, that all associations are commanded to adopt by-laws and that such by-laws are set forth in the section quoted. . . . The legislature, in adopting the provisions setting up a voluntary non-profit organization, would not ordinarily cast the mandatory provisions in permissive form. If it had been the legislative intent to set up a rule of conduct for all such associations and to prescribe and limit the rights and liabilities accruing through membership therein, it would have done so without the unnecessary mechanics of separate by-laws for each organization to be thereafter formed.” Accord Claassen v. Farmers Grain Co-op., 490 P2d 376 (Kan. 1971); Evanenko v. Farmers Union Elevator, 191 NW2d 258 (N.D. 1971). We agree and conclude that OCGA § 2-10-86 grants to cooperative associations full discretion to adopt bylaws relating to the redemption of capital interests in the event of a member’s death, without any limitation on the time this redemption is to occur.

2. We further conclude that the association was authorized to amend its bylaws to provide the time and manner of such redemption after Mr. Hardigree’s death and Mrs. Hardigree’s demand for immediate payment was made, because no existing bylaw required such payment in the event of death and in the absence of any statutory or contractual right to immediate payment, the time for payment remained in the discretion of the board of directors. The statute allows amendments to be made at any time pursuant to proper notice and a quorum vote, which occurred here and is not contested. “Redemption of patronage allocations is a matter within the discretion of the directors of the co-operative. It is well established that ‘equity credits allocated to a patron on the books of a co-operative do not reflect an indebtedness which is presently due and payable by the co-operative to such patron. Such equity credits represent patronage dividends which the board of directors of a co-operative, acting under statutory authority so to do, has elected to allocate to its patrons, not in cash or other medium of payment, which would immediately take such funds out of the working capital of the co-operative, but in such manner as to provide or retain capital for the co-operative . . . and at the same time reflect the ownership interest of the patron in such retained capital. Equity credits are not an indebtedness of a co-operative . . . but represent an interest which will be paid to them at some unspecified later date to be determined by the board of directors.’ ” Howard v. Eatonton Co-op. Feed Co., 226 Ga. 788, 791 (2) (177 SE2d 658) (1970). See also the 1985 edition of 18 AmJur2d 292, Cooperative Assns., § 23, which contains substantially the same language as Howard quoted from an earlier edition but makes clear that “[e]quity credits are not an indebtedness of a cooperative which is presently due and payable to the members, . . .” (Emphasis supplied.) It adds: “The death of a member does not automatically cause his interest to vest,” citing Evanenko, supra.

The bylaws of the association in effect at the time of Mr. Hardigree’s death followed the statutory directive by providing for distribution of capital interests at the discretion of the board of directors, which consisted of the entire membership in the association, in the following manner:

“Section 3. Revolving Capital. In order to further the cooperative character of this association, the association shall revolve its capital evidenced by revolving fund certificates and by credits from time to time as funds are determined by the board of directors to be available for that purpose, but, except as hereinafter provided, the capital that is selected to be retired in a given year, in whole or on a pro rata basis, shall be the oldest, by years, outstanding and unexhausted capital of the type selected.
“Notwithstanding any other provisions of these bylaws, the board of directors at its discretion shall have the power at any time to pay off or retire or secure a release or satisfaction of any revolving fund certificates and capital reserve credits to compromise or settle a dispute between the owner thereof and the association, or for the purpose of facilitating the settling of an estate of a deceased or bankrupt owner thereof or to close out the owner’s interest when he has moved from the territory served by the association.”

It was noted by the North Dakota Supreme Court in regard to a similar provision, “that the patronage credits constitute an interest of the patron in the cooperative which is contingent and not immediately payable. This interest becomes vested only when the board of directors, in the exercise of its sound discretion, determines that such payment can be made in cash without causing undue financial hardship to the cooperative. It is difficult to see why the death of a member would automatically cause his interest to vest. This would be in clear violation of the principle behind the law relating to cooperative associations, that the vesting of such interest should be the result of a positive declaration by the board of directors, acting in the exercise of its discretion, determining when such interest should vest. The board surely would have the authority, if the financial condition of the cooperative warranted such action, to declare such interest due as of the date of a member’s death. However, the board cannot be compelled to jeopardize the financial status of the cooperative by being forced to make such payment, as a matter of law, on the death of any member.” (Indention omitted.) Evanenko v. Farmers Union Elevator, supra at 261, 262.

We agree that the estate’s vested interest in Hardigree’s equity credits did not include any vested right to patronage redemption at a time other than in the sole discretion and sound business judgment of the board of directors, as no statute or pre-existing bylaw or contractual right required otherwise. See 18 AmJur2d, Cooperative Assns., § 14 (1985 ed.).

When Mrs. Hardigree made her demand for immediate payment, there had been no previous death of a member. The only member who had withdrawn was entitled to receive just $6,898, a sum which the board then found financially feasible to redeem in full. However, the board feared that the large amount demanded by the Hardigree estate could jeopardize the financial status of the association, especially if further deaths or withdrawals occurred to drain its finances. It then acted to amend its bylaws in order to formulate a consistent, rather than an ad hoc, policy for redemption of patronage dividends. The manner adopted was to provide that such credits be paid out at the same time and rate to deceased or withdrawn members as to current members, and without interest. As this was a legitimate business concern, the action of the board of directors was fully within its discretion. The amendment did not abrogate any contractual right vested in Hardigree prior to his death, for earlier payment to his estate on account of his death.

Decided May 19, 1988.

W. Woodrow Stewart, for appellant.

Gregory IF. Blount, for appellee.

Ronald E. Barab, amicus curiae.

“Permeating each of the conclusions herein is the general consideration that cooperative marketing associations are fostered and encouraged by legislative enactment and judicial construction; that the inception of these organizations was deemed to be for the personal benefit of members only to the extent that the individual profited through the operation of the enterprise; and that the paramount concern was not the advancement of the individual interest as such. Furthermore, a member’s demand for service is responsible for the creation of a cooperative association and as a means of marketing his produce during the period of his membership, and there is no logical ground upon which a member should be permitted to withdraw his interest at the expense of disturbing the financial condition or the life of the association.” Claassen v. Farmers Grain Co-op., supra at 381. Since the association has already redeemed all the equity credits held by Hardigree at the time of his death, and he is entitled to no interest thereon under any statutory or contractual right existing at the time of his death to payment within one year, and the bylaws as amended provide otherwise, judgment awarding such interest was in error.

Judgment reversed.

Birdsong, C. J., and Banke, P. J., concur.


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    76102.
    VIRGIL v. KAPPLIN.
    (369 SE2d 808)
   Banke, Presiding Judge.

The appellee, Irving J. Kapplin, sued the appellant, James L. Virgil, to recover on three unpaid promissory notes. The trial court granted summary judgment to Kapplin, and this appeal followed.

Kapplin was part owner of and leasing agent for the Westgate Shopping Center, while Virgil was president of R. M. V. Enterprises, Inc., a lessee of the shopping center. In May and June of 1980, Kapplin allegedly made certain loans to R. M. V. and to Virgil personally totalling $63,500, to permit certain leasehold improvements to be made to additional shopping center space that R. M. V. intended to occupy. Each of the first two of these loans was for $30,000 and was evidenced by a promissory note in that amount, undisputedly signed by Virgil solely in his representative capacity as follows: “R. M. V. ENTERPRISES, INC., /s/ James L. Virgil, Pres. (SEAL).” However, on the reverse side of both of these notes appeared the following typewritten statement, also purportedly signed by Virgil: “I, James L. Virgil, do hereby personally guarantee the payment of this note for R. M. V. Enterprises, Inc.” The third promissory note was in the amount of $3,500 and contained no reference to R. M. V. Enterprises. It was signed by Virgil as follows: “James Virgil Pers. (SEAL).” Held:

1. While Virgil admits having signed the two $30,000 instruments in his capacity as president of R. M. V. Enterprises, he asserts that a factual question remains as to whether he signed the guarantees appearing on the reverse sides. Kapplin averred by affidavit that he had insisted on Virgil’s personal guarantee as a condition to extending the loans to the corporation and that Virgil had executed both of the guarantees in his presence. Kapplin’s testimony that Virgil signed the reverse sides of the notes was supported by the affidavit of an expert to the effect that the signatures on the front and reverse sides of the two notes had been executed by the same person.

Although Virgil initially testified in his deposition that he was “not sure” whether the signatures on the reverse sides of the notes were his, he ultimately testified that, to the best of his knowledge, they were not. In an affidavit later submitted in opposition to Kapplin’s motion for summary judgment, Virgil flatly stated that he did not sign “the guarantees sued upon.” In addition, he produced expert opinion testimony to the effect that the signatures appearing on the reverse sides of the documents had been placed there prior to the placement of the typewritten signature lines. As Virgil’s testimony on this issue cannot be construed as contradictory, we apply the general rule, expressed in Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971), that on motion for summary judgment all evidence is to be construed against the movant. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29-30 (343 SE2d 680) (1986). Accordingly, we conclude that a genuine issue of fact remains as to whether Virgil signed the guarantees sued upon, and we consequently reverse the grant of summary judgment against him with respect to the two corporate notes. See generally Alghita v. Universal Investment &c. Co., 167 Ga. App. 562 (307 SE2d 99) (1983).

2. Virgil further asserts that, even assuming he signed the reverse sides of the two $30,000 notes, a factual issue would remain as to the effect of the signatures, based on the evidence that the guarantee language was typed on the instruments after the signatures. We find this contention to be without merit. “Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.” OCGA § 11-3-402. “Unless the indorsement otherwise specifies (as by such words as ‘without recourse’) every indorser engages that upon dishonor and any necessary notice of dishonor and protest he will pay the instrument according to its tenor at the time of his indorsement to the holder or to any subsequent indorser who takes it up, even though the indorser who takes it up was not obligated to do so.” OCGA § 11-3-414 (1).

3. Virgil further contends that if he guaranteed the corporate notes, the guarantees are unenforceable due to lack of consideration. This contention is also without merit. “The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit . . . given to his principal. ...” OCGA § 10-7-1 (emphasis supplied). See generally Beard v. McDowell, 174 Ga. App. 793, 795 (331 SE2d 104) (1985). It is undisputed that credit was extended to the corporate principal.

4. The appellee’s claim is not barred by the doctrine of laches. “The equitable doctrine of laches is not applicable to suits at law. . . . [E]ven if the doctrine of laches could be invoked in a suit at law, it could not be invoked during the period during which a statute of limitation would be applicable.” Columbus Bank &c. Co. v. Dempsey, 120 Ga. App. 5, 6 (169 SE2d 349) (1969). The notes in question were executed in 1980 and were under seal. Actions to enforce instruments under seal may be brought within 20 years after the right of action has accrued. See OCGA § 9-3-23.

5. Virgil asserts that a factual question remains as to whether the parties reached an accord and satisfaction with respect to the indebtedness represented by the notes. This contention is premised on statements contained in Virgil’s deposition and in a counter-affidavit which he submitted in opposition to Kapplin’s summary judgment motion to the effect that a settlement of the claim had been reached as part of the settlement of litigation between himself and a subsequent owner of the shopping center. These conclusory statements clearly do not tend to establish that an accord and satisfaction was reached by the parties to the present litigation. See generally OCGA § 13-4-101. Accordingly, we find this enumeration of error to be without merit.

Decided May 19, 1988.

William G. Quinn III, for appellant.

Bernard M. Gerber, for appellee.

6. With regard to the $3,500 note, Virgil asserts that he intended the notation next to his signature to read “Pres.” rather than “Pers.,” so as to indicate that he was also signing that note solely in his representative capacity as president of R. M. V. Enterprises. We find this contention to be totally without merit. The plain and unambiguous language of the note reflects that it was executed by Virgil in his individual capacity, for it contained no reference whatsoever to the corporation. We accordingly affirm the grant of summary judgment as to that instrument.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Beasley, J., concur.


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    76119.
    BASS et al. v. ANNANDALE AT SUWANEE, INC. et al.
    (369 SE2d 529)
   Sognier, Judge.

We granted the application for discretionary appeal made by Charles Bass from the order of the Superior Court of Gwinnett County reversing the State Board of Workers’ Compensation’s award of attorney fees to Bass.

Appellant represented Shirley Edwards when her employer, appellee Annandale at Suwanee, Inc., and its insurer, Georgia Insurance Company (hereinafter referred to collectively as “appellee”), suspended payment of the benefits Edwards had earlier been awarded as the result of a work-related injury. Based on his finding that the suspension of benefits and the defense of the matter were unreasonable, the administrative law judge by order dated June 20, 1984 assessed attorney fees against appellee pursuant to OCGA §§ 34-9-221 (i) and 34-9-108 (b) in an amount equal to 33 and 1/3 percent of the weekly income benefits recoverable by Edwards.

Edwards dismissed appellant in April 1985 and subsequently entered into settlement negotiations with appellee which resulted, in January 1986, in settlement of her case for $23,000. Appellant played no part in the settlement negotiations and the settlement agreement is silent as to the June 20, 1984 attorney fees award. The Board approved the settlement in an order which the parties agree contains only a notation of “N/A” in reference to such attorney fees.

Appellant’s motion for attorney fees on the lump sum settlement was heard by the administrative law judge who awarded appellant 33 and 1/3 percent of the settlement sum. This award was affirmed by the Board but was reversed by the superior court on the basis that the Board-approved settlement agreement terminated appellant’s right to attorney fees by superseding the June 20, 1984 award and not otherwise specifically providing or awarding attorney fees to appellant.

Decided May 19, 1988.

Casper Rich, for appellants.

John C. Parker, Jennifer L. Houser, for appellees.

We agree with appellant that his appeal is virtually identical to the recent decision in Don Mac Golf Shaping Co. v. Register, 185 Ga. App. 159 (363 SE2d 583) (1987) and that the factual distinctions which do exist between the cases present no basis for reaching a conclusion different from that reached in Don Mac Golf Shaping Co. The employer’s argument in Don Mac Golf Shaping Co. mirrors the basis stated by the superior court for its reversal of the Board’s award of attorney fees to appellant. Thus, the rationale of Don Mac Golf Shaping Co. is equally applicable here and accordingly, we reverse the superior court’s ordér reversing the award of attorney fees to appellant by the Board with direction that the superior court affirm the Board’s order.

Judgment reversed with direction.

Deen, P. J., and Carley, J., concur.


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    76266.
    PACK et al. v. STATE OF GEORGIA.
    (369 SE2d 530)
   Beasley, Judge.

The State condemned $43,808.56 in currency belonging to Pack and Reuben which was seized lay drug agents when the two were arrested and charged with possession of controlled substances. Pack and Reuben appeal the overruling and denial of their Motion to Set Aside Order, of Forfeiture and Motion for New Trial. The basis of the motion and appellants’ sole contention on appeal is that publication of the forfeiture proceedings for two weeks in a newspaper with local circulation in Lowndes County, as provided for in OCGA § 16-13-49 .(e), was insufficient notice to them as out-of-state residents so as to be violative of the due process provisions of the state and federal constitutions.

On its face, the statute “ ‘affords adequate notice ... so as to comport with due process of law as required by the Federal Constitution and the Georgia Constitution.’ ” Tant v. State, 247 Ga. 264, 266 (1) (275 SE2d 312) (1981). See also Lang v. State, 168 Ga. App. 693, 695 (2) and (3) (310 SE2d 276) (1983); Palmer v. State, 250 Ga. 219, 220 (1) (a) (297 SE2d 22) (1982). Therefore, the only question remaining is whether or not the notice provision was unconstitutionally applied.

Decided May 19, 1988.

J. Converse Bright, for appellants.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Not only did the State publish notice of the proceedings as required under OCGA § 16-13-49 (e), but it also attempted personal service on the defendants as well. The addresses at which the State attempted personal service were supplied by the defendants themselves to the drug agents at the time of arrest. Pack could not be served at the Ohio address he had given because he was not known at that address. The process server made twelve attempts to serve Reuben at the Florida address he had given.

Appellants compare their situation to that in Robinson v. Hanrahan, 409 U. S. 38 (93 SC 30, 34 LE2d 47) (1972), but it is dissimilar. In Robinson, the State mailed notice of the forfeiture proceeding to the defendant’s home even though the State knew that the defendant was in jail. The notice was deemed not reasonably calculated to apprise the defendant of the proceedings and thus violative of due process. Here, by their own statements, defendants had been released on bond at the time that the district attorney received notification of the seizure of the money, and the State went beyond what was required by the statute in attempting to directly notify defendants of the proceedings. Whereas in Robinson the State knew where the property owner was when it sent notice elsewhere, in the present case the State’s knowledge was based on the information supplied by the property owners themselves, which it relied on to effect notice. Due process was not offended by the application of the notice provisions of OCGA § 16-13-49 (e) in this case, under either constitution.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.