text:
    A91A1174. A91A1175. A91A1176.
    DENSON v. CITY OF ATLANTA. GOLDEN v. CITY OF ATLANTA. CITY OF ATLANTA v. MARTA et al.
    (414 SE2d 312)
   Judge Arnold Shulman.

These three appeals arise from an automobile collision which occurred at the intersection of Lee and West Whitehall Streets in the City of Atlanta (“the City”). The two drivers involved in the collision, appellants Denson and Golden, obtained a jury verdict against the city awarding them damages based on a nuisance theory; however, the trial court subsequently granted the city’s motion for judgment notwithstanding this verdict. Case Nos. A91A1174 and A91A1175 are Denson’s and Golden’s respective appeals from that ruling, while case No. A91A1176 is a cross appeal by the City from the dismissal of a third-party complaint which it had filed against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”).

The intersection where the collision occurred is known as the “Lee Street-West Whitehall Street” intersection. Its configuration is somewhat unusual in that to the south of the intersection Lee Street runs one way northbound, while Whitehall Street runs one way southbound. Upon reaching the intersection, Lee Street apparently shifts direction and runs east and west. The intersection is located near the MARTA West End Rail Station, and a series of piers supporting MARTA’s elevated tracks occupy the median between northbound Lee Street and southbound West Whitehall Street. The traffic lights at the intersection are governed by a “conflicts monitor” which automatically switches the signals to a flashing mode whenever a disruption of the normal “stop-and-go” pattern is detected. (The signals may also be switched to the flashing mode manually, if necessary.) Such device is mandated by the Manual on Uniform Traffic Control Devices for Streets & Highways (the “manual”), a body of regulations published by the Federal Highway Administration for the purpose of assuring uniform traffic regulation throughout the country, which has been adopted both by the State of Georgia and by the city.

The city’s Bureau of Traffic & Transportation (“the Bureau”), which is charged with responsibility for maintaining such traffic signals, received a report about 9:00 a.m. on November 13,1986, that the traffic signals at the intersection were flashing red for east-west traffic and yellow for north-south traffic. A repair crew was dispatched; and by 1:00 p.m. the controller mechanism had been replaced, restoring the signal to the normal “stop-and-go” mode. However, at 7:00 the following morning the bureau received a report that the traffic lights at the intersection were again flashing. A repair crew was again dispatched; and the signals were again returned to their normal function, this time through an adjustment to the new controller mechanism.

At some point between 1:00 and 2:00 a.m. on November 15, 1986 (i.e., the following night), a collision occurred at the intersection, between an eastbound and a northbound vehicle. The Atlanta police officer who investigated this accident noted in her report that the signals were operating in the flashing mode at the time, but she assumed that the signals had been switched to that mode intentionally, and she consequently did not report this to the bureau. At approximately 8:00 the next morning, appellant Golden, who was proceeding northbound into the intersection, collided with appellant Denson, who was proceeding eastbound across the intersection. Both drivers observed the flashing signals but were nevertheless unable to see each other until just before the impact.

Denson filed suit against the city on a nuisance theory and against Golden on a negligence theory. Golden cross-claimed against the city on a nuisance theory and counter-claimed against Denson on a negligence theory. The City filed a third-party complaint against MARTA, which moved successfully to dismiss that claim, and Denson thereafter dismissed his counterclaim against Golden. As previously indicated, Denson and Golden ultimately obtained a jury verdict against the city, but the trial court granted the city’s motion for judgment notwithstanding that verdict.

1. “ ‘ “(T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” ’ [Cit.]” Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).

The trial court granted the city’s motion for judgment n.o.v. in this case based on a determination that the evidence was insufficient as a matter of law to support a finding that the “malfunctioning” of the traffic light had constituted a nuisance. The maintenance and operation of traffic signals by a municipality normally is considered a governmental function. Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968). While a municipality is not liable for negligence in the exercise of a governmental function, it may be liable for injury resulting from the maintenance of a nuisance regardless of whether it arises from the exercise of a governmental or a ministerial function. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (3) (249 SE2d 224) (1978).

If the act, omission, or defect alleged to constitute a nuisance is merely negligence, no matter how egregious the result, the municipality will not be liable for damage suffered. See City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974). In determining whether a condition constitutes a nuisance, as opposed to mere negligence, the following guidelines apply: “(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute nuisance, [Cit.]) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious [cits.] [,and] (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition. [Cit.]” City of Bowman v. Gunnells, 243 Ga. 809, 811 (1) (256 SE2d 782) (1979). See also Mayor &c. of Savannah v. AMF, Inc. 164 Ga. App. 122 (295 SE2d 572) (1982); Carter v. Mayor &c. of Savannah, 200 Ga. App. 263 (407 SE2d 421) (1991).

The appellants presented expert testimony to the effect that the intersection was dangerous when the signals were operating in the flashing as opposed to the normal “stop and go” pattern because of the visual obstruction created by the MARTA piers. However, to be liable for the maintenance of a nuisance, “ ‘the municipality must be chargeable with . . . creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury ...,’” and with failing to act within a reasonable time after acquiring knowledge of the condition. Bowman v. Gunnells, supra, 243 Ga. at 810. While the evidence showed that the signals had previously shifted to the flashing mode for several hours on each of the two mornings immediately prior to the appellants’ collision and that the lights had also been operating in that mode at least since approximately 1:00 a.m. the previous night, there is no evidence that anything occurred during any of these periods which would have placed the city on notice that such operation of the signals constituted a dangerous condition. In particular, the occurrence of a single collision at the intersection some seven hours earlier cannot reasonably be deemed to have placed the city on notice of the existence of a dangerous condition, inasmuch as the police officer who investigated that accident was not aware that the lights were malfunctioning and apparently did not believe that their operation in the flashing mode had anything to do with the accident.

Indeed, in a sense the lights were not malfunctioning, in that they were not giving conflicting or inappropriate signals but were operating in the intended back-up mode. Thus, this was not a situation in which any reasonable person would necessarily have realized by mere observation that a dangerous condition existed. Compare Town of Ft. Oglethorpe v. Phillips, supra (municipality held subject to liability for maintenance of a nuisance where mayor, chief of police, and aldermen were aware for period of two weeks that traffic light was flashing either green or red on all sides, and where numerous prior collisions had occurred at the intersection during that period yet no action was taken to repair the defective signal); Mayor &c. of Savannah v. AMF, Inc., supra (holding that protrusion of tree limb onto city street could be considered nuisance where several previous accidents had been caused by other such limbs during the preceding two years); Carter v. Mayor &c. of Savannah, supra (holding that absence of a stop sign from heavily trafficked intersection could be considered (‘inherently dangerous situation” and that one week was sufficient time for the city to have learned of situation and corrected it). Under the circumstances, we hold that the occurrence of a single prior accident at the intersection during the previous night was insufficient as a matter of law to place the city on notice that a nuisance existed, and we consequently hold that the trial court did not err in granting the city’s motion for judgment notwithstanding the verdict.

2. The city’s cross-appeal is rendered moot by the foregoing and is accordingly dismissed.

Judgment affirmed in Case Nos. A91A1174 and A91A1175. Appeal dismissed in Case No. A91A1176.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Cooper and Andrews, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

1. In considering a judgment notwithstanding the verdict, “the jury is the final arbiter of the facts [so] the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict. (Cits.)” Troy v. Interfinancial, Inc., 171 Ga. App. 763, 767 (1) (320 SE2d 872) (1984).

There was evidence from which a jury could find that the city maintained a dangerous condition for a period of time which constituted a nuisance, given that the dangerous condition had existed twice earlier and had been promptly corrected (from which can be inferred an acknowledgment that it was dangerous), that the city knew seven hours before the collision that the dangerous condition existed again (by virtue of its police officer’s knowledge, gained in investigation of a previous collision that occurred under the very same condition), and that although a crew was available to eliminate the danger by returning the traffic signals to the red-yellow-green mode (which was the standard signal for this vision-obstructed, unusually configured intersection), no crew was dispatched until after the collision at bar materialized.

“[O]rdinarily whether a nuisance exists is a question of fact for a jury (cits.). . . .” City of Bowman v. Gunnells, 243 Ga. App. 809, 811 (2) (256 SE2d 782) (1979). The Supreme Court recognized in that case that there is not “a precise legal definition of nuisance that would apply to all situations.” The best that it could do was to synthesize “guidelines” from the prior appellate cases in this State. Applying them to the evidence in this case and allowing all reasonable inferences, the jury could find that a nuisance existed. It is a judgment call here, and neither the trial judge nor we can substitute our judgment for that of the jury, because the law of nuisance does not compel a finding of “no nuisance.”

The first guideline is that “[t]he defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence.” City of Bowman, supra at 811. The flashing lights, which did not signal traffic which was headed in one direction to remain stopped until intersecting traffic was similarly signalled, was an admittedly dangerous condition under the circumstances. The view of drivers coming in either direction was totally obscured by the MARTA piers, and one had to depend on the traffic lights as best one could rather than rely merely on one’s ability to see approaching traffic. This was especially so at night, when the dangerous condition was created. The degree of dangerousness was more acute than existed in the City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974). For one thing, the dangerousness had been demonstrated by an earlier collision. For another, the lights were operating in such a manner as to invite passage by a driver’s having to take a chance that intersecting traffic was not approaching. The physical layout of the streets and the structures erected in the vicinity of the intersection enhanced the degree of dangerousness from that which might be present at an ordinary intersection.

The second guideline is that “[t]he act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious.” City of Bowman, supra at 811. Although four hours was held insufficient in Roberts, supra, here the city knew that another collision had occurred under these conditions, at least seven hours earlier, and did not correct the lights before the city traffic on a mid-week morning commenced. A collision was virtually invited. It did not take a long time for the inadequate traffic signals to be working in only the flashing mode before either of the two collisions occurred.

Decided December 4, 1991

Reconsideration denied December 19, 1991

Branch, Pike, Ganz & O’Callaghan, Gregory J. Digel, Keith J. Reisman, Mitchell & Hersh, Bruce E. Mitchell, for Denson.

Eric C. Silver, for Golden.

Michael V. Coleman, Kendric E. Smith, Sarah I. Mills, Lisa E. Steinmetz, for City of Atlanta.

Carter & Ansley, Robert A. Barnaby II, for MARTA.

This leads to the third guideline, “[fjailure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition.” City of Bowman, supra at 811. Considering that the city had a crew available to correct the lights, that it had experienced the same situation twice earlier, that it knew of another collision occurring under these conditions, and that there was no reason for not promptly dispatching a crew, whether it acted within a reasonable time is governed not by an established legal mandate but rather is for a jury to discern. Here there is sufficient evidence “to show the active operation and maintenance of a dangerous condition and knowingly allowing such condition to continue to the injury of the plaintiff(s).” Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141) (1968).

Applying the law governing judgments notwithstanding the verdict, which in the majority opinion is quoted from Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981), and is repeated in Troy, supra, Denson and Golden are entitled to judgments on the verdicts.

2. I would affirm the dismissal of the city’s third-party complaint against MARTA.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1220.
    FINCH v. FINCH.
    (414 SE2d 245)
   Cooper, Judge.

Appellant appeals from a judgment of the trial court granting appellee’s motion to enforce a settlement agreement.

The parties to this case were formerly husband and wife. After their divorce, the ownership of their former residence was placed in both their names. Sometime after the divorce, appellee, the former husband, conveyed his ownership interest in the property to appellant, the former wife, thus vesting complete ownership of the property in appellant. Several months after this conveyance, appellee filed suit against appellant seeking to set aside the deed, alleging that consideration for the deed was appellant’s promise to remarry appellee. Appellee further alleged that at the time of the conveyance to appellant, appellant had no intention of marrying appellee and therefore the deed was fraudulently induced and lacked consideration. Subsequent to the filing of the suit, counsel for the parties entered into negotiations and reached a settlement agreement whereby the property would be appraised and appellant would then pay one-half of the appraised value of the property to appellee. The trial court found that the parties announced that the case had been settled in open court. As part of the settlement negotiations, counsel for appellee agreed that appellant could inspect the property prior to paying any money to appellee. During this inspection, a disagreement occurred between the parties, and appellant refused to comply with the settlement. Appellee then filed a Motion to Enforce Settlement Agreement, which, after a hearing before the trial court, was granted, and the court entered judgment against appellant for one-half of the appraised value of the property plus interest.

1. Appellant first enumerates that the trial court erred in enforcing the settlement because a condition precedent to the enforceability of the agreement, appellant’s right to inspect the house, was not fulfilled. Despite appellant’s contentions in her brief about the necessity of compliance with the condition precedent before the agreement could be enforced, the evidence adduced at the hearing does not at all support appellant’s position. Appellant testified at the hearing that a settlement agreement was reached and that she consented to that agreement. Appellant' testified as to her understanding of the terms of the agreement, which were not disputed by appellee. Appellant does not contest her attorney’s authority to enter into the agreement, nor do the parties dispute that appellee did agree to allow appellant to inspect the house. Moreover, the evidence is clear that appellant did in fact inspect the house. It was during the inspection that a disagreement arose between appellant and appellee. In her brief, appellant states that her right to inspect was denied because appellee did not want appellant to inspect one bedroom closet; however, appellant’s testimony does not indicate that this was the reason she refused to comply with the agreement. Appellant testified that, as the result of an argument about a camera, appellee stated that he did not want to settle, and therefore appellant refused to settle. Despite appellee’s refusal to settle, appellant did not attempt to enforce the settlement against appellee. Even if appellant was dissatisfied with the extent of her inspection, she nevertheless did not seek to enforce a more complete inspection against appellee. Instead, appellant decided to refuse to settle, and rejected a binding settlement agreement. Even though appellee offered at the hearing to allow a full inspection to the satisfaction of appellant, appellant refused to settle. “[A]n attorney has the authority to enter into settlement agreements and ... an oral agreement is binding upon the client. [Cits.] ‘An attorney of record has apparent authority to enter into agreements on behalf of his client^) in civil actions. Oral agreements if established, are enforceable.’ [Cits.]” Bridges v. Bridges, 256 Ga. 348, 349 (1) (349 SE2d 172) (1986). See Uniform Superior Court Rule 4.12. Contrary to the issues raised in Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983) and LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988), appellant herein never contested the existence of the agreement, the terms of the agreement or her attorney’s authority to enter into the agreement. The trial court found that appellant was allowed reasonable inspection of the property prior to consummation of the transaction. This finding is supported by the evidence and is not clearly erroneous. Parking Co. of America v. Sucan, 195 Ga. App. 616 (1) (394 SE2d 411) (1990). Accordingly, the trial court did not err in enforcing the settlement agreement against appellant and in entering judgment against her.

Decided November 5, 1991

Reconsideration denied December 19, 1991.

Lane & Jarriel, Thomas F. Jarriel, for appellant.

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellee.

2. Appellant also argues that the trial court’s order was in error because the oral settlement agreement violated the statute of frauds as the agreement was a contract for the sale of lands or concerning lands. As this argument was raised on appeal for the first time, we will not consider it. Warren v. Jenkins, 190 Ga. App. 442 (2) (379 SE2d 19) (1989).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1262.
    FINDLEY v. DAVIS et al.
    (414 SE2d 317)
   Cooper, Judge.

In August of 1984, John Clayton Davis (“Davis”) entered into a contract with appellant’s mother (“Mrs. Findley”) whereby Davis would represent Mrs. Findley as legal counsel in connection with the sale of her property once known as Broadview Plaza in Atlanta. The contract provided that Davis’ fee would be eight percent of the sales price unless Davis had to re-activate his real estate license, in which case the fee would be ten percent. The contract was witnessed and signed by appellant. On March 27, 1985, Mrs. Findley died and appellant became the executor of her estate. The following month, on April 9, 1985, the property was sold for $1,250,000, and Davis collected a fee of eight percent, $100,000. Davis was also retained to handle Mrs. Findley’s estate and was paid a fee of five percent of the estate.

In February of 1986, Davis entered into a contract with appellant for legal services in connection with the sale of Lakeview Mobile Home Park which also provided an eight percent fee if Davis could perform the contract in his capacity as an attorney or ten percent if the re-activation of Davis’ broker’s license was necessary. The property was sold for $560,000, and Davis’ fee was $51,000, slightly over nine percent of the sales price. Davis explained in deposition testimony that his fee exceeded eight percent because it was calculated on an original sales price of $650,000, and the purchaser agreed to be responsible for broker fees in exchange for a reduction of the sales price. As indicated below, this particular factor is not contested by appellant.

Personal friendships developed between appellant and Davis and their families, and on May 23, 1987, appellant agreed to loan Davis $147,000 at an interest rate of six percent. Appellant engaged another attorney to prepare the loan agreement and to prepare his will. The parties contemplated that the loan would be used by Davis to pay off his mortgage, thereby allowing him to quit his job as a mechanic at Delta Air Lines and spend more time with his family and appellant. The agreement provided that in the event of Davis’ death the loan would be forgiven. In his will, appellant made a general bequest to Davis of ten percent of the estate plus all of appellant’s personal property, excluding certain bonds. The loan agreement also provided that if Davis’ bequest were diminished, Davis’ obligation to repay the loan would be extinguished.

Later, the relationship between appellant and Davis became strained, and Davis repaid the loan in full with interest and renounced his interest in the will. Appellant retained the legal services of George Brown at a fee of ten percent, who referred the case to the present counsel of record. On December 15, 1989, an action was filed against Davis personally and against his professional corporation (hereinafter “appellees”) wherein appellant alleged legal malpractice, fraud, breach of fiduciary duty and conflict of interest in connection with the two real estate transactions and the personal loan and sought an accounting for fees and expenses billed and paid by appellant. The trial court granted appellees’ motion for summary judgment on all counts asserted in the complaint, and this appeal followed.

1. Appellant enumerates as error the trial court’s determination that the affidavit of George Brown as an expert was insufficient as a matter of law. In their motion for summary judgment, appellees argued that the affidavit failed to meet the requirements of OCGA § 9-11-9.1 (a) because George Brown was not “an expert competent to testify” based on Brown’s previous representation of appellant in this matter and the fact that Brown had a financial interest in the outcome of this suit at the time he submitted his affidavit which he renounced immediately prior to the hearing on the motion for summary judgment. Appellees argue that the goal of OCGA § 9-11-9.1, to reduce the number of frivolous malpractice suits, would be thwarted if parties are allowed to rely on the affidavits of experts whose objectivity is tainted by personal interest in the litigation. This unsupported contention is without merit as we have recognized in an action for malpractice that “[a]n attorney, as well as a physician, may make an affidavit as an expert in his own behalf. [Cits.]” Rose v. Rollins, 167 Ga. App. 469, 471 (2) (306 SE2d 724) (1983). Appellees argued further that according to OCGA § 24-9-25 “[n]o attorney shall be competent ... to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney. . . .” “However, this statutory provision is for the benefit of [appellant] and cannot be invoked by [appellees]. ‘ “The rule that communications between an attorney and his client are privileged, and that the attorney is an incompetent witness to testify thereto, [cannot] be invoked for the benefit of other persons who are strangers to such relationship.” (Cit.)’ [Cit.]” Cleary v. Burlington Indus., 193 Ga. App. 81 (387 SE2d 36) (1989). Since these grounds were the only issues raised with respect to the sufficiency of the affidavit before the trial court and we have determined that neither has merit, we conclude that the trial court erred in finding the affidavit insufficient as a matter of law inasmuch as the trial court did not state any other basis for its decision.

2. Appellant contends that genuine issues of material fact remain as to every ground asserted by appellees in their motion for summary judgment.

(a) Appellant argues that his claims arising from the fees paid to appellees from the Broadview sale and the administration of Mrs. Findley’s estate were not time barred by the four-year statute of limitation applicable to malpractice actions (OCGA § 9-3-25). The Broad-view sale closed, and appellees were paid on April 9, 1985, while the complaint was not filed until December 15, 1989. The final statement for services rendered in the handling of Mrs. Findley’s estate was mailed on December 12, 1985. Appellant maintains that in the course of his confidential relationship with appellees, appellees concealed the unreasonableness of the fees charged, and such concealment constituted fraud which tolled the statute of limitation until appellant discovered the fees were excessive, which occurred immediately prior to the filing of this action. “ ‘The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the eifect of debarring or deterring the plaintiff from his action.’ [Cit.] The only fraud that would toll the statute of limitation in the present action would be fraud actually preventing or deterring appellant from bringing suit for the appellees’ alleged breach of duty in [charging excessive fees]. Appellant has not shown that [he] was prevented or deterred by any act of appellees from discovering the [reasonableness of the fees]. In fact, there is nothing in the record to indicate that appellant would not have discovered that fact at the time the documents were executed if he had chosen to [question the fees at that time or within the following four years].” Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 245 (1) (296 SE2d 788) (1982). Moreover, there was no evidence cited in the record that appellees made any representations or assurances with regard to the reasonableness of the fees. Thus, appellant’s contention is without merit, and we agree that appellant’s claims with respect to the attorney fees from the Broadview sale and the handling of Mrs. Findley’s estate were time barred.

(b) Appellant contends that the fees in connection with the Broadview and the Lakeview Mobile Home Park sales exceeded the value of services allegedly rendered and expenses allegedly incurred by appellees. Because the Broadview claim was time barred, it will not be considered here. With regard to the Lakeview sale, although appellant admits receiving a closing statement, he contends that the statement failed to demonstrate the hours spent and the services performed on his behalf; that an accounting should have been provided to him; and that the fees were unreasonable and excessive in violation of the Canon of Ethics of the State Bar of Georgia.

The record contains a “Contract for Legal Services and Sale of Property” wherein appellant employed appellees to provide representation for all purposes in connection with the Lakeview Mobile Home Park. The contract granted appellees the right to sell the property and recover out-of-pocket expenses and an eight percent commission of the sales price if the matter were handled by appellees in their legal capacity. In pertinent part, the contract states: “The total commission shall be due attorney provided said property is sold. . . .” Although the closing statement of this transaction does not appear in the record, the parties agree that the property sold for $560,000, and appellees were paid a fee based on legal services rendered. Appellant does not contend on appeal nor does the record demonstrate that appellees’ services constituted illegal broker’s services under OCGA § 43-40-1 (2). Compare Starr v. Robinson, 181 Ga. App. 9 (351 SE2d 238) (1986). Appellant concedes that he entered into the contract voluntarily; that he understood its provisions; that appellees committed no fraud to induce him to agree to its terms; that he was never dissuaded from seeking alternate counsel for an opinion on the reasonableness of the fee; that he received the closing statement and never requested an accounting; and that he was satisfied with appellees’ performance and the fee at the time of the sale. Appellant maintains, however, that he did not discover that the fee was excessive until he conferred with new counsel regarding the personal loan immediately prior to bringing this action.

It is not necessary to ascertain the value of appellees’ services because the fee paid to appellees was based on the written contract, which the record demonstrates was executed according to its terms. Drewry v. Robinson, 142 Ga. App. 432, 433 (236 SE2d 108) (1977). “A contract between an attorney and client, where it is stipulated that the attorney shall receive a certain per centum of the amount recovered for services rendered, the same not being champertous, is valid and binding upon both the attorney and the client. [Cit.]” Sellers v. City of Summerville, 208 Ga. 361, 366 (67 SE2d 137) (1951). Appellees argue, relying on Rasmussen v. Nodvin, 174 Ga. App. 203 (329 SE2d 541) (1985) (50 percent contingency fee) and Drewry, supra (lot contingency fee to attorney for services rendered in sale of land), that because the record indisputably demonstrated that their contract for legal services was valid and binding, the eight percent contingency fee was reasonable as a matter of law; however, in both cases, while this court upheld both contingency fee agreements, we made no specific determinations that the fees were reasonable as a matter of law as we are requested to do in this case. In Rasmussen, the court held that the client’s claim based on fraud, “negligent overcharging” and abuse of process and the client’s request that the fee be reduced to a 33 1/3 contingency fee were properly dismissed by the trial court for failure to state a claim. OCGA § 9-11-12 (b) (6). Rasmussen, supra at 206.

In the instant case, appellant contends that appellees’ conduct violated the Canon of Ethics of the State Bar. Appellees deny that any such violation occurred and argue, relying on Roberts v. Langdale, 185 Ga. App. 122 (363 SE2d 591) (1987), that even where such a violation is established, a cause of action is not thereby created. In Roberts, the court adopted the rule that “ ‘ “[a]n alleged violation (of a rule of the Code of Professional Responsibility), standing alone, cannot serve as a legal basis to support plaintiff’s civil action seeking money damages. . . .” [Cit.]’ [Cit.]” Id. at 124. This principle, however, does not bar appellant’s malpractice action. “ ‘ “(I)t is the general rule in the majority of states that in a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)” [Cit.]’ [Cit.]” Id. at 123. In our view, appellant has made such a showing. The Georgia Code of Professional Conduct in Standard 31 prohibits a lawyer from entering into an agreement for a “clearly excessive fee.” The affidavit of George Brown, submitted with the complaint, alleges that appellees’ collection of excessive fees from appellant deviated from “the required standard of skill, care and diligence normally possessed and utilized by other attorneys who represent clients in real estate . . . matters under the same or similar circumstances.” Appellees received their commission on the sale of the Lakeview property after closing.

“[I]n reviewing the evidence on summary judgment in this case, we need only look to the pertinent presumption of law and the expert testimony offered by appellant with regard to appellant’s allegations of malpractice against [appellees]. [Cit.] In this regard, we observe the following: ‘ “It is presumed that [appellees] performed legal services for [appellant] in an ordinarily skillful manner. [Cit.]” [Cit.]’ [Cit.]” (Indention omitted.) Id. at 123. “ ‘This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of a summary judgment in favor of the attorney is proper. Should this presumption be rebutted by expert legal testimony, there is presented for the jury a question of fact.’ [Cit.]” (Emphasis in original.) Rose v. Rollins, supra at 471. Appellees failed to submit expert opinion to establish that their collection of the eight percent contingency fee in connection with the Lake-view sale was within the parameters of acceptable professional conduct exercised by attorneys generally under similar circumstances and to thereby buttress the presumption of care, skill and diligence. See Rose, supra at 471. Instead, appellees submitted their own affidavit which set forth merely their detailed account of the various transactions and legal services performed. In contrast, appellant produced expert testimony that appellees’ collection of excessive fees deviated from the parameters of acceptable professional conduct normally exercised by attorneys representing clients in real estate under like and similar circumstances and therefore met his burden of producing rebuttal evidence demonstrating the existence of an issue for jury resolution. See Graves v. Jones, 184 Ga. App. 128 (1) (361 SE2d 19) (1987). Compare Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978); Roberts, supra at 124.

Hence, the trial court erred in granting summary judgment to appellees on the question of the reasonableness of the fees in connection with the Lakeview Mobile Home Park sale.

(c) Finally, appellant contends that the loan agreement placed appellees in a conflict of interest and that he was damaged by the lost interest he could have earned on the $147,000 loaned to appellee Davis. However, appellant acknowledges that the loan was repaid in full with interest, and the record indicates that appellant agreed to an interest rate below the market rate because of their friendship and with the idea of helping Davis.

Decided December 4, 1991

Reconsideration denied December 19, 1991

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Troutman, Sanders, Lockerman & Ashmore, William N. Withrow, Jr., A. William Loeffler, for appellees.

“It is well-established Georgia law that before an action for a tort will lie, the plaintiff must show he sustained injury or damage as a result of the negligent act or omission to act in some duty owed to him. [Cits.] Although nominal damages can be awarded where there has been an injury but the injury is small, [cit.] where there is no evidence of injury accompanying the tort, an essential element of the tort is lacking, thereby entitling the defendant to judgment in his favor. [Cit.]” Whitehead v. Cuffie, 185 Ga. App. 351, 353 (2) (364 SE2d 87) (1987). An action for legal malpractice cannot be maintained where there is no evidence that the breach of the professional duty proximately caused injury, loss or damage to the client. Id. The record demonstrates that appellant was completely repaid, and we conclude that any loss in interest suffered by appellant was voluntarily assumed and not attributable to appellees. Accordingly, the trial court did not err in granting summary judgment to appellees as to the loan agreement.

Judgment reversed in part and affirmed in part.

Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A91A1270.
    PROFESSIONAL MARKETING DISTRIBUTORS, INC. v. FELDMAN ASSOCIATES, INC.
    (414 SE2d 666)
   Carley, Presiding Judge.

In its capacity as a judgment creditor of Lingard & Associates, Inc. (L&AI), appellee-plaintiff initiated the instant garnishment action against appellant-garnishee. After appellant had answered and denied its possession or control of any garnishable property, appellee filed a traverse, asserting that appellant had acquired L&AI’s inventory and equipment in a “bulk transfer” which did not comply with the applicable provisions of OCGA § 11-6-101 et seq. See Vincent Brass & Aluminum Co. v. Johnson, 149 Ga. App. 537, 538 (2a) (254 SE2d 752) (1979), rev’d on other grounds, 244 Ga. 412 (260 SE2d 325) (1979); American Express Co. S. A. I. v. Bomar Shoe Co., 125 Ga. App. 408 (187 SE2d 922). After conducting a hearing, the trial court sustained the traverse and entered judgment in favor of appellee. Appellant’s application for a discretionary appeal to this court was granted.

1. OCGA § 18-4-20 (c) provides, in relevant part, that “[a] 11 property, money, or effects of the defendant in the possession or control of the garnishee . . . shall be subject to process of garnishment. ...” L&AI’s inventory and equipment had been purchased by appellant prior to the initiation of the instant garnishment proceeding, but there had been no compliance with the notice requirements of OCGA § 11-6-101 et seq. Accordingly, if that purchase was a “bulk transfer” subject to the provisions of OCGA § 11-6-101 et seq., it would be “ineffective against any creditor” of L&AI (OCGA §§ 11-6-104 (1); 11-6-105) and, even though appellant had resold the inventory and equipment, “the proceeds [of that resale] would be subject to garnishment [by appellee].” American Express Co., S. A. I. v. Bomar Shoe Co., supra at 411. Accordingly, the first issue for resolution is whether appellant acquired L&AI’s inventory and equipment in a “bulk transfer.”

Appellant urges the inapplicability of OCGA § 11-6-101 et seq. to its purchase of L&AI’s inventory and equipment, on the ground that L&AI was not an enterprise that was otherwise subject thereto. “The enterprises subject to [OCGA § 11-6-101 et seq.] are all those whose principal business is the sale of merchandise from stock, including those who manufacture what they sell.” OCGA § 11-6-102 (3). Thus, an enterprise whose principal business is the sale of services, rather than the sale of merchandise from stock, would not be included. See Marlick Constr. Co. v. T. Lynn Davis Realty &c. Co., 140 Ga. App. 867 (232 SE2d 147) (1977). However, the evidence in the instant case would authorize a finding that L&AI’s principal business was the sale of book pricing labels which it manufactured. Accordingly, the trial court did not err in finding that L&AI was otherwise subject to OCGA § 11-6-101 et seq.

Appellant further urges that its purchase of L&AI’s inventory and equipment did not constitute a “bulk transfer” as defined in OCGA § 11-6-102 (1) and (2): “A ‘bulk transfer’ is any transfer in bulk and not in the ordinary course of the transferor’s business of a major part of the materials, supplies, merchandise, or other inventory ([cit.]) of an enterprise subject to this article. A transfer of a substantial part of the equipment ([cit.]) of such an enterprise is a bulk transfer if it is made in connection with a bulk transfer of inventory, but not otherwise.” There was evidence that, in the first of two transactions, appellant purchased all of L&AI’s inventory and a substantial part of L&AI’s equipment. Accordingly, the evidence clearly supports the trial court’s finding that this transaction was a “bulk transfer” of L&AI’s inventory within the meaning of OCGA § 11-6-102 (1). “While a transaction may be [a] ‘bulk transfer’ even if it is not a sale of all of a business’s [inventory], certainly a transaction which is a sale of all of a business’s [inventory] must be included with[in] the definition of a ‘bulk transfer.’ ” (Emphasis in original.) In Re Streamlight, 108 B.R. 505, 510 (7) (Bkrtcy. E.D. Pa. 1989). Since there was a “bulk transfer” of all of L&AI’s inventory, it follows that the transfer of a substantial part of L&AI’s equipment that was made in connection therewith was likewise a “bulk transfer” within the meaning of OCGA § 11-6-102 (2).

A few days after the “bulk transfer” discussed above, a second transaction occurred in which appellant purchased some additional pieces of L&AI’s equipment. As previously noted, a transaction involving an enterprise’s equipment is not considered to be a “bulk transfer” unless it is “made in connection with a bulk transfer of [its] inventory. . . .” OCGA § 11-6-102 (2). Appellant urges that the trial court erred in finding that this subsequent purchase of only additional pieces of L&AI’s equipment was a “bulk transfer” within the meaning of OCGA § 11-6-102 (2). “[T]he sale of equipment occurs in connection with a bulk transfer of inventory ... if and only if the purchaser of the equipment has reason to know that a substantial part of the seller’s inventory has been or will be sold in a reasonably contemporaneous transaction.” Republic Steel Corp. v. Canyon Culvert Co., 722 P2d 647, 650 (3) (N.M. 1986). Since appellant had itself acquired all of L&AI’s inventory only a few days before, appellant quite clearly had “reason to know” of that “reasonably contemporaneous transaction.” Accordingly, the evidence authorized the trial court to find that the subsequent purchase of only additional pieces of L&AI’s equipment was itself a “bulk transfer” because it had been “made in connection with” the previous “bulk transfer” of all of L&AI’s inventory.

The trial court did not err in finding that L&AI was generally subject to the provisions of OCGA § 11-6-101 et seq. and that the two purchases of L&AI’s inventory and equipment by appellant were “bulk transfers” subject to the provisions of OCGA § 11-6-101 et seq. Since the two “bulk transfers” had not been effectuated in compliance with those applicable statutory provisions, they were ineffective as against appellee and appellee was authorized to garnish the proceeds realized by appellant upon its resale of L&AI’s inventory and equipment. Accordingly, the trial court correctly sustained appellee’s traverse of appellant’s answer.

2. Prior to appellant’s purchase of L&AI’s inventory and equipment, a perfected security interest therein had been acquired by a local bank and, in addition, ad valorem taxes were owing thereon. Of the agreed purchase price for L&AI’s inventory and equipment, $63,863.67 was paid by appellant in full satisfaction of the perfected security interest and $2,100 was paid by appellant in full satisfaction of the unpaid taxes. When appellant resold the inventory and equipment, it was paid $73,900. The trial court found that the entire $73,900 represented garnishable proceeds realized by appellant from its resale of L&AI’s inventory and equipment. Appellant enumerates this finding as error, urging that it was entitled to set off the $63,863.67 and the $2,100 that it had paid in satisfaction of the liens against L&AI’s inventory and equipment.

Decided December 3, 1991

Reconsideration denied December 19, 1991

Jones & Ledbetter, Howard W. Jones, Joseph D. Little, for appellant.

The lien of the holder of the perfected security interest and the tax lien antedated and had priority over appellee’s lien. The “bulk transfers” of L&AI’s inventory and equipment were merely “ineffective” as against appellee. They did not serve to void L&AI’s sale of its inventory and equipment to appellant or to give appellee priority over the pre-existing lienholders. Accordingly, the inventory and equipment purchased by appellant would not represent garnishable property insofar as the pre-existing liens had priority over appellee’s lien and to the extent that appellant had satisfied those pre-existing liens. “[T]he garnishee has a right to set off against the price which he owes the defendant the amount necessary to clear the liens against the property sold, and such amount [is] not subject to the garnishment proceeding.” Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354, 359 (2) (73 SE2d 771) (1952). Since the inventory and equipment would not represent garnishable property to the extent that appellant had satisfied the pre-existing liens, it necessarily follows that the proceeds realized by appellant upon the resale of L&AI’s inventory and equipment would not represent garnishable funds to the extent that appellant had satisfied those pre-existing liens. Thus, the trial court erred in finding that $73,900 represented the amount of garnishable proceeds realized by appellant from its sale of L&AI’s inventory and equipment. From that amount, the $63,863.67 and the $2,100 that appellant paid in satisfaction of the pre-existing liens must be set off. Accordingly, the judgment in favor of appellee is hereby reversed with direction that the trial court enter a new judgment which is not inconsistent with this opinion.

Judgment reversed with direction.

Judge Arnold Shulman concurs. Beasley, J., concurs in the judgment only.

Hines, Carroll & Niedrach, John F. McClellan, Jr., for appellee.


text:
    A91A1323.
    In the Interest of M. A. K., a child.
    (414 SE2d 288)
   Carley, Presiding Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Although appellant-father originally had custody of his minor child, appellee-mother was granted custody on June 8, 1990. As a result of a subsequent emergency custody proceeding, appellant’s mother, the child’s paternal grandmother, was granted custody. However, the juvenile court restored custody to appellee on October 5, 1990. On November 5, 1990, appellee filed a “motion for contempt” based upon appellant’s purported willful violation of the June 8, 1990 custody order. On March 19, 1991, the juvenile court awarded appellee attorney’s fees pursuant to OCGA § 9-15-14. It is from that latter order that appellant appeals pursuant to this court’s grant of his application for discretionary appeal. OCGA § 5-6-35 (a) (10).

1. “Attorney’s fees and expenses under [OCGA § 9-15-14] may be requested by motion within 45 days after the final disposition of the action.” OCGA § 9-15-14 (e). The juvenile court based its award of OCGA § 9-15-14 (b) attorney’s fees on its conclusion that appellant had asserted positions in “the emergency hearing and custody determination” which lacked substantial justification. However, no timely motion for attorney’s fees pursuant to OCGA § 9-15-14 was ever filed by appellee within 45 days of the final disposition of “the emergency hearing and custody determination” on October 5, 1990. Appellee’s only request for attorney’s fees was that which was contained in her “motion for contempt” filed on November 5, 1990. However, appellee’s “motion for contempt” did not invoke OCGA § 9-15-14 and her non-specific request for attorney’s fees is clearly not construable as a viable request for OCGA § 9-15-14 attorney’s fees based upon the recently concluded “emergency hearing and custody determination.” Appellee’s “motion for contempt” had the legal effect of initiating an entirely new proceeding based upon appellant’s alleged violation of the June 8, 1990 original custody order. Since a motion for OCGA § 9-15-14 attorney’s fees is the prevailing party’s final request in a concluded legal proceeding, a request for attorney’s fees contained in a party’s initial pleading whereby a legal proceeding is commenced obviously does not qualify. See generally Abrahamsen v. McDonald’s Corp., 197 Ga. App. 624, 625 (1) (398 SE2d 861) (1990).

Likewise, the juvenile court’s award cannot be construed as a viable sua sponte award of attorney’s fees pursuant to OCGA § 9-15-14 (b). If the juvenile court was inclined to award, on its own motion, attorney’s fees pursuant to OCGA § 9-15-14 (b) based upon appellant’s asserted position in “the emergency hearing and custody determination,” it should have done so within 45 days of the final disposition of that proceeding on October 5, 1990. The award of March 19, 1991 is obviously too late.

Decided December 2, 1991

Reconsideration denied December 19, 1991.

William R. L. Latson, for appellant

Barry E. Billington & Associates, Barry E. Billington, for appellee.

In the context of the subsequent contempt proceedings an award of OCGA § 9-15-14 attorney’s fees could not be based upon appellant’s conduct in the prior “emergency hearing and custody determination” proceeding. OCGA § 9-15-14 “has been interpreted to govern conduct occurring during the litigation [in which the attorney’s fees are awarded]. [Cit.]” Stone v. King, 196 Ga. App. 251, 253 (3) (396 SE2d 45) (1990). It follows that the instant award of OCGA § 9-15-14 attorney’s fees based upon appellant’s conduct occurring in the previous “emergency hearing and custody determination” proceeding is erroneous and must be reversed.

2. Appellant enumerates as error the juvenile court’s refusal to recuse itself from hearing appellee’s “motion for contempt.”

It does not appear that a final order has ever been entered regarding appellant’s contempt of the June 8, 1990 original custody order. Accordingly, the juvenile court’s order denying appellant’s motion for recusal is interlocutory. No application for an interlocutory appeal from that order has been sought by appellant or granted by this court. Accordingly, this enumeration of error presents nothing for review.

3. Likewise, we have no jurisdiction to address enumerations of error relating to the “emergency hearing and custody determination” which, as noted, was resolved by the juvenile court’s final order of October 5, 1990. A discretionary appeal from that child custody order was neither sought by appellant nor granted by this court.

4. The juvenile court’s order of March 19, 1991, whereby appellee was awarded OCGA § 9-15-14 (b) attorney’s fees is reversed. The contempt proceeding that is pending against appellant for his alleged violation of the June 8, 1990 original custody order is unaffected by this appeal. The “emergency hearing and custody determination” proceeding which was concluded by the final order of October 5, 1990 is likewise unaffected by this appeal.

Judgment reversed.

Beasley, J., and Judge Arnold Shulman concur.


author: Pope, Judge.

text:
    A91A1337.
    THE STATE v. MORRIS.
    (414 SE2d 656)
   Pope, Judge.

Appellee/defendant Howard T. Morris was indicted by a Floyd County Grand Jury for trafficking in cocaine and other violations of the Georgia Controlled Substances Act. The record reveals that defendant did not file any motions prior to trial. On the day of trial, during cross-examination of the arresting officer, the defendant attempted to solicit the name of the informant who gave the police information that led to the arrest of defendant. The officer refused to disclose the identity of the informant. The court dismissed the jury and convened a conference to discuss the matter. During that conference the court informed the State that because the informant had revealed his assistance in this case in two unrelated matters before the court, the case would be dismissed if the officer refused to disclose the informant’s identity. The State refused to recall the witness to disclose the identity of the informant and asked that the court reconsider its ruling or alternatively grant a mistrial. The trial court refused both requests. When the State refused to recall the officer, the trial court dismissed this case. The State appeals from that ruling. The defendant filed a motion to dismiss contending that the State has no right to appeal because the defendant has been placed in jeopardy and this case is not appealable pursuant to OCGA § 5-7-1.

1. We will first consider the issue raised by defendant in his motion to dismiss. “Before the merits of the appeal may be considered, we must determine whether the State has the right to appeal from the trial court’s order. OCGA § 5-7-1 delineates the instances in which the State may take an appeal in a criminal case: from an order, decision or judgment setting aside or dismissing an indictment or accusation; arresting judgment of conviction upon legal grounds; sustaining a plea or motion in bar when the defendant has not been put in jeopardy; or sustaining a motion to suppress made and ruled upon before a jury was impaneled.” State v. Williams, 172 Ga. App. 708 (1) (324 SE2d 557) (1984). Whether the trial court’s ruling constitutes a directed verdict of acquittal, such that a new trial would be barred by the Double Jeopardy Clause of the Fifth Amendment, or is a dismissal of the indictment is controlled by the substance of the trial judge’s actions. Id.

We conclude that the trial court’s ruling constitutes a dismissal of the indictment. The trial court did not base its ruling on the defendant’s guilt or innocence, that is, the sufficiency of the evidence against the defendant, but simply stated that it is unnecessary to protect the identity of an informant who had revealed his participation in defendant’s arrest in two separate court proceedings. Furthermore, the trial court consistently referred to its action as a dismissal. Accordingly, the state may appeal the order dismissing the indictment, “ ‘even if the order [was] entered during the course of the trial. (Cit.)’ State v. Williams, 246 Ga. 788 (1) (272 SE2d 725) (1980).” Williams, supra at 709 (1). See United States v. Scott, 437 U. S. 82, 100 (98 SC 2187, 57 LE2d 65) (1978), reh. denied, 439 U. S. 883 (99 SC 226, 58 LE2d 197) (1978) (holding that no interest protected by the Double Jeopardy Clause is invaded when a trial court grants the defendant’s mid-trial motion to dismiss on a ground not related to guilt or innocence). The defendant’s motion to dismiss is denied.

2. Turning to the merits of the State’s appeal, we find that the trial court erred in dismissing the indictment against the defendant. The trial court seemingly based its ruling on a finding that the informant had waived the privilege of confidentiality, and that therefore the State could no longer invoke the privilege. “The informer’s privilege is grounded in OCGA § 24-9-27 . . . which states that no official shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment. The public policy underlying this privilege is to protect and encourage the flow of information to law enforcement officials.” (Citation and punctuation omitted.) Swint v. State, 199 Ga. App. 515, 517 (405 SE2d 333) (1991). As this court noted in State v. Mason, 181 Ga. App. 806 (353 SE2d 915) (1987), the privilege may still be applicable even when the informer’s identity has been discovered or disclosed. Id. at 809 (3). “In Roviaro v. United States, 353 U. S. 53, 59-60 (77 SC 623, 1 LE2d 639) [(1957)] the [C]ourt said: ‘What is usually referred to as the informer’s privilege is in reality the Government’s privilege. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. . . .’” Mason, supra at 809. Thus, the trial court erred in holding that the informant had waived the privilege, since the privilege to withhold the identity of a confidential informant is held by the State and cannot be waived by the informant.

3. The record reveals that the trial court also erred by failing to follow the appropriate procedure before deciding whether the State should be allowed to invoke the privilege of confidentiality concerning the informant in this case. This court has held that a defendant must make a motion to reveal the identity of a confidential informant, and the trial court must conduct an in camera hearing at which the defendant must show both the materiality and necessity of the witness’ testimony to the defense before the trial court decides whether the identity of an informant must be revealed. Swint v. State, supra at 517; Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677) (1989); Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988); Mason, supra at 812 (4).

Decided November 5, 1991

Reconsideration denied December 19, 1991

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellant.

Kenneth C. Fuller, for appellee.

This case is remanded to the trial court for a new trial. If the defendant seeks to reveal the identity of the State’s informant at trial, the trial court shall conduct an in camera hearing in a manner consistent with this opinion and other decisions of this court before deciding that matter.

Judgment reversed and case remanded.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1420.
    BENNETT v. NELSON.
    (414 SE2d 291)
   Carley, Presiding Judge.

Plaintiff-appellant filed suit, seeking to recover for injuries she allegedly suffered in an automobile collision. Appellee-defendant was not served until 5 months after the complaint had been filed and 49 days after the applicable two-year statute of limitations had run. In her original answer, appellee did not raise a statute of limitations defense. She did, however, amend her answer to raise that defense prior to the entry of any pretrial order. Thereafter, appellee filed a motion to dismiss on the ground that the statute of limitations had run before she was served. Appellant appeals from the trial court’s grant of appellee’s motion. '

1. It is immaterial that, in her original answer, appellee did not raise the OCGA § 9-11-12 (b) (5) defense of insufficiency of service of process. “Regardless of its timeliness, personal service was eventually perfected on [appellee]. Thus, no ground existed for any objection to the method of service. The motion to dismiss was brought on the ground that the action is barred by the statute of limitation^] and [appellee’s] right to dismissal on this ground was not waived.” Starr v. Wimbush, 201 Ga. App. 280, 281 (1) (410 SE2d 776) (1991).

2. “The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984). The instant record may show that appellant “made steady efforts ... to discover [appellee’s] whereabouts. [However, since] this [is] all the record [shows,] we [are] constrained to hold the trial judge did not abuse his discretion because the evidence [does] not demand a finding of due diligence. [Cit.]” Starr v. Wimbush, supra at 281 (2). See also Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300) (1990); Early v. Orr, 135 Ga. App. 887 (219 SE2d 622) (1975).

Decided December 2, 1991

Reconsideration denied December 19, 1991

Glenville Haldi, for appellant.

Murray & Temple, Gregg P. Counts, for appellee.

Judgment affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs in Division 1 and in the judgment.


author: Beasley, Judge.

text:
    A91A1455.
    EASTERN FOODS, INC. v. FORMAN.
    (415 SE2d 1)
   Beasley, Judge.

Forman sued Eastern Foods, Inc., seeking damages for the alleged breach of an employment agreement. Partial summary judgment was awarded to defendant for wrongful termination and entitlement to one year’s salary, a bonus and a stock option. The case was tried on the remaining claim that plaintiff was contractually entitled to partial reimbursement for loss sustained in selling a home, necessitated by relocation to accept employment with defendant. Defendant won a directed verdict, and plaintiff appealed that ruling as well as the prior grant of partial summary judgment.

Forman v. Eastern Foods, 195 Ga. App. 332 (393 SE2d 695) (1990), reversed the directed verdict, finding sufficient evidence of an agreement requiring defendant to reimburse plaintiff for a portion of the loss on the house sale. The partial summary judgment was affirmed as to all but the bonus claim.

Upon retrial of the case on the two remaining claims (bonus and home sale loss), the jury verdict awarded plaintiff the lump sum of $40,232.33 “which includes attorney fees.” The judgment is for this amount plus costs. Defendant appeals from the denial of its motion for new trial.

1. Because there is reversible and controlling error with respect to attorney fees, we address that issue first.

Defendant contends that the award of attorney fees was not authorized. At the conclusion of the plaintiff’s evidence, his counsel offered evidence concerning the legal fees generated by his law firm in prosecuting the claim. No objection was made, but defendant’s counsel later moved for a directed verdict at the conclusion of the case, for the stated reason that “where there is a bona fide controversy in a contract action . . . attorney fees . . . are not authorized. . . .” Although immediate objection would have eliminated the evidence before it was unnecessarily presented to the jury, the motion for directed verdict adequately preserved the issue for our consideration.

“Expenses of litigation, including attorney fees, are generally not allowed as a part of the damages, but where plaintiff has specially pleaded and made a prayer that the defendant ‘has acted in bad faith . . . has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.’ OCGA § 13-6-11.” Spivey v. Rogers, 173 Ga. App. 233, 240 (5) (326 SE2d 227) (1984). Where no bona fide controversy exists, “forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to ‘unnecessary trouble and expense.’ [Cit.]” Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33) (1981).

Clearly a bona fide controversy existed between the parties prior to the first appeal of this case as is evidenced by our first decision and particularly that portion upholding summary judgment in part in favor of defendant. Accordingly, plaintiff was not entitled to recover attorney fees for legal expenses incurred in prosecuting his claim to that point. Although plaintiff correctly states that there was no valid defense to his claim for loss reimbursement on the house sale, we cannot conclude as a matter of law that there was no bona fide controversy with respect to the bonus claim. The evidence was disputed regarding whether the parties had reached an agreement for such compensation and, if there was such an agreement, what its terms were. The award of attorney fees was not authorized by OCGA § 13-6-11.

Under the lump sum awarded, it is impossible to determine with certainty what amount the jury found for attorney fees. If the amount of attorney fees was “clearly ascertainable and severable from the total amount of the verdict,” Mock v. Wrigley, 178 Ga. App. 660, 661 (344 SE2d 482) (1986), then the amount could be written off and the judgment could be affirmed on condition that it be done. Spivey v. Rogers, supra.

2. Where a new trial must be granted because an unauthorized item of damages is not “definitely ascertainable” by the appellate court, “it is unnecessary to discuss the other [enumerations] of error.” Avery & Co. v. Middlebrooks, 20 Ga. App. 724, 725 (93 SE 227) (1917). Consequently, we do not reach the enumerations regarding the sufficiency of the evidence of contract and the admissibility of certain evidence. See Hardin v. Reynolds, 189 Ga. 589, 592 (2) (6 SE2d 913) (1940).

Decided December 5, 1991

Reconsideration denied December 19, 1991.

Fine & Block, Gary M. Goldsmith, for appellant.

James L. Ford, David C. Cole, for appellee.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A1446.
    BEASLEY v. THE STATE.
    (414 SE2d 663)
   Judge Arnold Shulman.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of selling cocaine.

1. The appellant contends that the trial court erred in permitting the undercover agent to whom the sale was made to relate to the jury the content of certain statements made to her by an informant on the night of the transaction. The trial court originally sustained the appellant’s objection to such questioning on hearsay grounds but thereafter allowed it on redirect examination, based on a determination that defense counsel had opened the door to it during his cross-examination of the agent. We find no error. See generally Williams v. State, 251 Ga. 749, 785 (312 SE2d 40) (1983); Halm v. State, 125 Ga. App. 618 (1) (188 SE2d 434) (1972).

2. On the same date the appellant was indicted for the present offense, which was alleged to have occurred on May 5, 1989, a separate indictment was returned charging that on May 12, 1989, he had committed the offense of possessing cocaine with intent to distribute. The appellant was tried and convicted on the latter charge prior to the trial of the present case; and on the basis of that conviction, he was sentenced to life imprisonment in the present case pursuant to OCGA § 16-13-30 (d), which mandates the imposition of a life sentence “[u]pon conviction of a second or subsequent [such] offense. . . .” The appellant apparently accepts that his present conviction constituted a “conviction of a second or subsequent offense” within the contemplation of this Code section. However, he argues that where one has not “received the benefit of rehabilitation before the harshest punishment [is] imposed,” the mandatory imposition of a life sentence constitutes cruel and unusual punishment; and he therefore contends that, as applied to the present case, the statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution.

The transcript of the sentencing hearing reveals that after the state had introduced a certified copy of the prior conviction into evidence without objection, appellant’s counsel advised the court that it was his belief that “Your Honor shares my view that [OCGA § 16-13-30] as applied to these type of cases is unconstitutional as it violates the Eighth Amendment prohibition against cruel and unusual punishment.” Counsel did not elaborate, and the trial court responded as follows: “The court doesn’t agree that it’s unconstitutional since the Supreme Court of Georgia has applied it already.” (The court was evidently referring to Grant v. State, 258 Ga. 299 (368 SE2d 737) (1988), in which the Supreme Court rejected an attack on the statute as being facially violative of the Eighth Amendment.) Counsel’s only further comment on the issue was, “Yes, sir.”

Under these circumstances, we must conclude that the appellant failed to elicit a ruling from the trial court on his contention that OCGA § 16-13-30 (d) is unconstitutional as applied to the particular facts of the present case. An appellate court “ ‘ “will not pass upon the constitutionality of a statute unless it clearly appears that the point was properly raised in the trial court and passed on.” [Cit.]’ [Cit.]” Hardison v. Haslam, 250 Ga. 59, 61 (295 SE2d 830) (1982). Consequently, we hold that this enumeration of error presents nothing for review. We note, however, that the Supreme Court has recently held that the General Assembly could legitimately have considered the “repeated[] possession] of cocaine with the intent to place it in the stream of commerce” to be a sufficient threat to the public health, safety and welfare to warrant the mandatory imposition of a life sentence. Tillman v. State, 260 Ga. 801, 802 (400 SE2d 632) (1991). Thus, there would appear to be no constitutional requirement that a defendant receive “the benefit of rehabilitation” before a life sentence for such repeated conduct may be imposed.

Judgment affirmed.

Carley, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

With respect to Division 2 of the Court’s opinion, I concur because the issue which appears to me to be crucial and which appellant attempts to present as part of his argument is not properly before us. He frames his enumeration of error by contending that the statute’s mandatory life sentence for second offenses violates the Eighth and Fourteenth Amendments to the United States Constitution. That is the same contention that he made in the trial court, which the majority quotes.

But there he did not state any grounds or explain why or how the statute’s mandate was constitutionally infirm. Nor did he describe what he meant by “these type of cases.” The most that can be comprehended from this, then, is that he simply attacked the statute’s mandatory life sentence as cruel and unusual punishment per se, which was an attack on the statute itself. He did not allege that, although it was a constitutional statute, its application to him under the circumstances of his case was unconstitutional. Thus the trial court could do no more than reject the challenge, because the Georgia Supreme Court had almost two years earlier affirmed the facial validity of the statute under the Eighth and Fourteenth Amendments in Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988). No petition for certiorari was filed in the United States Supreme Court, so the Georgia Supreme Court’s ruling controls that issue. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI.‘ Its transfer of Beasley’s case, which originally was filed in the Supreme Court, confirms that ruling and eliminates the challenge to the constitutionality of the law, which would have been within its exclusive jurisdiction. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1). (In Tillman v. State, 260 Ga. 801 (400 SE2d 632) (1991), decided subsequent to Beasley’s trial, the statute per se survived a constitutional due process challenge.)

Buried in appellant’s argument is a new ground, that the statute, as construed by the sentencing court to apply to his circumstances, violates the Federal Constitution. That is, if the word “second” in OCGA § 16-13-30 (d) can have been intended by the legislature to apply to all second convictions rather than only to convictions for offenses occurring after first convictions, it is unconstitutional under the Eighth and Fourteenth Amendments. This new argument, that the legislature did not intend such an application as was made in his case, attacks the trial court’s judicial construction of the statute, not its facial constitutionality. He claims that under a proper construction, the statute’s mandatory life sentence would not apply to him.

The statute does say “second” offense. The conviction before us, and for which the trial court imposed the mandatory maximum, was not appellant’s second offense; it was the first. Analogous reasoning underlies Division 2 in Mitchell v. State, 202 Ga. App. 100, 101 (413 SE2d 517) (1991).

The mandate in OCGA § 16-13-30 (d) applies when there is a second conviction and it is for an offense which occurred after defendant committed an offense and was convicted of it. That is the plain language of the statute, which we are bound by. OCGA § 1-3-1 (b). “ ‘[T]he language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ ” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). The instant case involves Beasley’s first offense; he was not convicted in this case of again committing a violation of OCGA § 16-13-30 (b).

Decided November 27, 1991

Reconsideration denied December 19, 1991.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

I would disagree with the analysis and holdings in Divisions 2 and 3 of Mays v. State, 200 Ga. App. 457 (408 SE2d 714) (1991). Quoted in that case, supra at 461, is the statement in State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974), that when first offender treatment is revoked, the defendant is subject to sentence “for the offense he has been found guilty of committing.” That offense was Wiley’s first.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1332, A91A1423.
    THE STATE v. SEARS; and vice versa.
    (414 SE2d 494)
   Carley, Presiding Judge.

Wendell Sears was tried before a jury and found guilty of two counts of selling controlled substances in violation of OCGA § 16-13-30 (b). In Case No. A91A1332, the State appeals directly, asserting that void sentences were entered by the trial court on the jury’s guilty verdicts. See State v. Shuman, 161 Ga. App. 304, 306 (6) (287 SE2d 757) (1982). In Case No. A91A1423, Sears appeals from the judgments of convictions and the sentences and from the denial of his motion for a new trial. Since a reversal of Sears’ convictions would serve to moot the State’s appeal from the allegedly void sentences, the merits of Case No. A91A1423 will be considered first.

Case No. A91A1423

1. The record demonstrates that Sears waived the right to urge error as to the trial court’s charge. However, relying upon OCGA § 5-5-24 (c) and Barnett v. State, 178 Ga. App. 685 (1) (344 SE2d 665) (1986), he nevertheless urges that it was “substantial error” for the trial court to fail to charge, without request, that the jury was not to consider “his general character or conduct in transactions other than that for which he was on trial.”

Here, as in Smith v. State, 186 Ga. App. 303, 312 (6) (367 SE2d 573) (1988), reliance upon OCGA § 5-5-24 (c) and the holding in Barnett is misplaced. The testimony that is cited by Sears as the evidentiary predicate for the unrequested charge was, in almost every instance, testimony which was elicited by his own trial counsel. This testimony did not relate to a totally extraneous topic but to Sears’ involvement with drugs and there is considerable doubt whether the testimony would have been erroneously admitted even if it had been elicited by the State over Sears’ objection. Under these circumstances, the waived failure to give the unrequested charge clearly does not constitute “substantial error as defined in OCGA § 5-5-24 (c).” Smith v. State, supra at 312 (6).

2. The trial court’s failure to instruct the jury, without request, that certain documentary evidence had limited relevancy and could be considered only for limited evidentiary purposes was not error. Hall v. State, 186 Ga. App. 830, 831 (4) (368 SE2d 787) (1988).

3. At trial, Sears testified, in essence, that he was so financially secure in his business that he did not need to sell drugs. In ostensible support of this assertion, Séars attempted to introduce a copy of a single contract for his business services. The trial court’s refusal to admit the copy of this contract is enumerated as error.

Financial gain is not necessarily the only motive for selling drugs. Compare Palmer v. State, 186 Ga. App. 892, 895 (3) (369 SE2d 38) (1988) (theft of money). However, assuming that Sears’ personal finances were a relevant issue in the instant case, there was no reversible error in the trial court’s refusal to admit a copy of the single contract. The record demonstrates that Sears was allowed to testify extensively on the issue of his personal finances and was even permitted to testify as to the actual terms of the contract that are here at issue. Under these circumstances, the refusal to allow Sears to amplify his testimony by the introduction of the lone contract was, at most, harmless. “[W]e are satisfied that the trial judge did not prevent or exclude evidence of [Sears’ financial condition], rather the court curtailed and limited the amount and type of information that it would allow to be presented to the jury. [Cit.]” Palmer v. State, supra at 897 (3).

4. Sears made no request for the trial court to conduct a hearing to determine whether the identity of a confidential informant should be revealed pursuant to Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511) (1988). Accordingly, it was not error for the trial court to fail to conduct such a hearing. “[T]here are particular requirements placed upon the defendant to justify identifying or summonsing the informer. The defendant must ask the trial court for an in-camera examination of the matter. . . . [Cit.]” (Emphasis supplied.) Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677) (1989). See also Roberson v. State, 195 Ga. App. 379 (1) (393 SE2d 516) (1990).

5. A ground for objecting to the admission of a copy of what was denominated as Sears’ “Arrest/Booking Report” which was not raised below will not be considered on appeal. See generally Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982). Likewise, in the absence of a request by Sears or an objection to the voluntariness of any statement that he made in the report, the trial court’s failure to conduct a Jackson-Denno hearing prior to the admission of this evidence was not error. Hudson v. State, 250 Ga. 479, 485 (6) (299 SE2d 531) (1983); McNair v. State, 190 Ga. App. 412, 413 (2) (379 SE2d 424) (1989).

6. In the absence of a written request, it was not error to fail to charge on the issue of the voluntariness of any in-custody inculpatory statement that Sears may have made. Rogers v. State, 155 Ga. App. 685, 687 (3) (272 SE2d 549) (1980). Moreover, since the record shows that Sears raised no issue in the trial court as to the voluntariness of any in-custody statement made by him, the trial court’s failure to charge, without request, as to that issue certainly was not “substantial error” within the ambit of OCGA § 5-5-24 (c). Compare Foskey v. Foskey, 257 Ga. 736 (363 SE2d 547) (1988); Phelps v. State, 192 Ga. App. 193, 194 (1) (384 SE2d 260) (1989); Gaines v. State, 177 Ga. App. 795, 800 (1) (341 SE2d 252) (1986).

7. After conducting an evidentiary hearing, the trial court refused to grant Sears a new trial on the ground of ineffective assistance of counsel. This ruling is enumerated as error.

“The burden is on the defendant to establish his claim of ineffective assistance of counsel. [Cits.] A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). “Considering the totality of the circumstances and not just [Sears’] allegations of isolated errors, [cit.], we are satisfied that [the trial court’s finding that [Sears] . . . failed to meet his burden [is not clearly erroneous].” Smith v. State, 192 Ga. App. 18, 20 (3) (383 SE2d 600) (1989).

Case No. A91A1332

8. The trial court imposed concurrent sentences of 30 years. The State contends that these sentences are void because OCGA § 16-13-30 (d) mandates that, “[u]pon conviction of a second or subsequent offense [of violating OCGA § 16-13-30 (b), a defendant] shall be imprisoned for life.”

It is clear that, if Sears did have a prior conviction for violating OCGA § 16-13-30 (b), then a life sentence for each of his two instant convictions would be mandated by OCGA § 16-13-30 (d). To warrant the imposition of such life sentences, it would not be necessary for the State to show that, at the time of Sears’ commission of the instant violations of OCGA § 16-13-30 (b), he had already been convicted for violating that statute. A defendant can be sentenced to life under OCGA § 16-13-30 (d), even though his prior conviction for violation of OCGA § 16-13-30 (b) may have postdated the violation of OCGA § 16-13-30 (b) for which he is to be given that recidivist punishment. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). Compare Favors v. State, 182 Ga. App. 179, 180 (2) (355 SE2d 109) (1987) (defendant’s pre-existing status as a convicted felon is an essential element of the crime of violating OCGA § 16-11-131 (b)). To warrant the imposition of such life sentences, it would only be necessary for the State to show that, prior to Sears’ instant trial, it had complied with OCGA § 17-10-2 (a) and had given him notice of its reliance upon his prior conviction for having violated OCGA § 16-13-30 (b). State v. Hendrixson, supra at 854-855. Thus, in order for the imposition of life sentences to be mandatory pursuant to OCGA § 16-13-30 (d), Sears’ prior conviction need not have preceded his instant violations of OCGA § 16-13-30 (b), but his prior conviction must necessarily have preceded his instant trial for violating OCGA § 16-13-30 (b).

Obviously, neither of Sears’ instant convictions can serve as the predicate for the imposition of a life sentence as to the other. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), Sears’ two instant convictions were neither final nor convictions. “The position adopted by the [S]tate at the sentencing hearing was that the offenses charged in the indictment for which [Sears] was on trial could be considered in determining his status as a recidivist. . . . [T]his argument . . . was clearly erroneous. [Cits.]” McCoy v. State, 168 Ga. App. 598-599 (310 SE2d 2) (1983) (On Motion for Rehearing). “The conviction must be final before it can be included in [the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)].” Croker v. Smith, 225 Ga. 529, 532 (4) (169 SE2d 787) (1969).

The record shows that the State complied with OCGA § 17-10-2 (a) only insofar as it gave pre-trial notice of its reliance upon two of Sears’ prior convictions for felonies other than OCGA § 16-13-30 (b). See Taylor v. State, 186 Ga. App. 113, 114 (3) (366 SE2d 422) (1988). This authorized the imposition of recidivist sentences pursuant to OCGA § 17-10-7 (a), but not the imposition of recidivist life sentences pursuant to OCGA § 16-13-30 (d). Taylor v. State, supra at 114 (3). The concurrent 30-year sentences that were imposed upon Sears comply with the applicable mandate of OCGA § 17-10-7 (a) and those sentences are not, therefore, void.

Judgments affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs specially.

Decided December 2, 1991.

W. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellant.

Lane & Crowe, Robert L. Crowe, for appellee.

Beasley, Judge,

concurring specially.

I concur fully in all divisions of the majority opinion except Division 8. Although the sentence meted to defendant was proper, I cannot agree with statements to the effect that a conviction of an offense which offense is subsequent in time to the offense on trial (defendant’s first offense), can support a recidivist sentence under OCGA § 16-13-30 (d). That subsection mandates a life sentence for “a second . . . offense,” not merely a second conviction. See Beasley v. State, 202 Ga. App. 349 (414 SE2d 663) (1991), special concurrence.

State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984), does not support the majority’s view because it involved a defendant whose first conviction was for the first-in-time offenses. When Hendrixson went to trial on the later offenses, she had already been convicted of the first offenses. The sentence imposed after the second conviction was for “the second series of offenses.” Id. at 853. Thus the situation discussed by the majority was not at issue in Hendrixson. Nor is it at issue here. Yet even the State, in this case, recognizes that “[u]nder the plain meaning of OCGA § 16-13-30 (d), a defendant shall be imprisoned for life upon conviction of a subsequent violation of OCGA § 16-13-30 (b). . . .” (Emphasis supplied.)

Just as a defendant cannot be given the life sentence for the second-in-time offense when the conviction of it is simultaneous with the conviction of the first-in-time offense, which is the holding here, so a defendant cannot be given the life sentence for the first-in-time offense when he or she already has a conviction for a later-occurring offense. The life sentence is a recidivist sentence, mandated upon the second conviction, which is for what is a second offense.


author: Sognier, Chief Judge.

text:
    A91A1577.
    KIRKLAND v. THE STATE.
    (414 SE2d 502)
   Sognier, Chief Judge.

Edward Greene Kirkland was convicted in a jury trial of two misdemeanor offenses, furnishing alcohol to minors and contributing to the delinquency of minors, and sentenced to 12 months probation. He appeals from the denial of his motion for new trial.

1. Appellant first contends the trial court erred by failing to appoint counsel for him at trial. The record reveals that upon finding appellant to be indigent, the magistrate appointed counsel to represent appellant at the preliminary and committal hearings. However, after the case was bound over to superior court, no counsel was appointed for appellant for either arraignment or trial. The trial court did order an attorney to assist appellant during voir dire, but for the remainder of the trial he appeared pro se.

There is no trial transcript, but the record does include a transcript of the hearing on appellant’s motion for new trial. Although appellant submitted an affidavit in which he stated that he had requested appointed counsel at arraignment, the trial judge stated during the motion hearing that he did not recall appellant raising at trial the issue of indigency or the rejection of his request for appointed counsel, and accordingly the judge “[could] only conclude that [appellant] decided that he would try the case himself. . . . [H]e acquiesced in the decision not to appoint counsel, and went forward with representing himself.”

We do not agree with appellant that the trial court was required to find, him indigent and appoint counsel for him, for the right to appointed counsel in a misdemeanor criminal case arises only when a defendant is actually sentenced to a term of imprisonment. Scott v. Illinois, 440 U. S. 367, 373-374 (99 SC 1158, 59 LE2d 383) (1979); see Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). However, given that the constitutional right to counsel attaches when a defendant is put on trial for any offense for which he could be sentenced to prison, Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984) appellant was entitled to obtain paid counsel unless he knowingly and intelligently waived that right. See id. While the trial judge concluded that appellant waived his right to counsel and elected to proceed pro se, in the absence of a trial transcript the record is silent as to whether that waiver was knowing and voluntary. The Jones court held that “[w]hen the record is silent, waiver is never presumed and the burden is on the state to presentjevidence of a valid waiver. [Cit.] . . . Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment. [Cit.] Merely finding that a request for counsel was not made is insufficient to establish waiver.” Id. In order to establish a valid waiver, a trial “ ‘judge must investigate as long and as thoroughly as the circumstances of the case before him demand. ... To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. . . . (Cits.)’ [Cits.]” Butler v. State, 198 Ga. App. 217, 220 (401 SE2d 43) (1990). Moreover, when the defendant pleads not guilty and proceeds to trial without benefit of counsel, the State must show the decision to proceed pro se was made knowingly and intelligently. Jones, supra.

Decided December 3, 1991

Reconsideration denied December 19, 1991.

George P. Graves, for appellant.

C. Andrew Fuller, District Attorney, Raymond E. George, Mark W. Alexander, C. David Turk III, Assistant District Attorneys, for appellee.

The record sub judice is inadequate to show a knowing and voluntary waiver of the right to counsel. The State has not shown that investigation was made to determine whether appellant was aware of the possible defenses to the charges against him or any other fact essential to his understanding of the situation. See Butler, supra. Nor is there any evidence that he was warned of the dangers of proceeding pro se or that the trial court made a finding on the record that appellant validly chose to proceed pro se after receiving this admonition. See Clarke v. Zant, 247 Ga. 194, 196-197 (275 SE2d 49) (1981); see also Jones, supra at 83-84. Accordingly, the judgment below must be reversed and the case remanded for further proceedings consistent with this opinion. Jones, supra at 84; see Black v. State, 194 Ga. App. 660 (1) (391 SE2d 432) (1990).

2. Because of our ruling in Division 1, we need not address appellant’s remaining enumerations of error. Jones, supra.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

       Appellant faced a potential sentence of one to five months for the charge of contributing to the delinquency of minors, OCGA § 16-12-1 (d) (1), and a possible sentence of up to 12 months for the offense of furnishing alcohol to minors. OCGA §§ 3-3-23 (a) (1); 3-3-23.1 (b) (1); 17-10-3 (a).