text:
    A91A1777.
    In the Interest of J. R., a child.
    (414 SE2d 540)
   Beasley, Judge.

This is an appeal from the order of the juvenile court terminating the parental rights of the natural mother and father of J. R., a three- and-a-half-year-old boy. The court also placed physical custody with the maternal aunt and her husband. The claim is that the Department of Human Resources, acting by and through the local Department of Family & Children’s Services (DFCS), failed to carry the evidentiary burden of showing clear and convincing evidence of present parental unfitness likely to continue and a corresponding detrimental effect on the child.

In parental rights termination cases, as in others, “[o]n appeal, this court must construe the evidence most strongly to support a verdict and judgment, [cit.] and every presumption and inference must be in favor thereof. [Cit.]” In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903) (1989). “ ‘ “ ‘The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.’ ” ’ [Cit.] j ‘ “(T)he appropriate standard of appellate review ... is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . .” ’ [Cits.]” Id. at 748 (2) '(c).

The evidence construed in favor of the judgment included, but was not limited to, the following. The parents have five other living natural children in addition to J. R.; one is married and one is in military service. Until the recent death of the maternal grandmother, the three remaining teenage girls resided principally in the grandmother’s home. The parents sporadically moved from the grandmother’s house to one mobile home or another, some without adequate heating. The father was infrequently home with the children.

J. R. came to the attention of DFCS as an infant when J. R.’s then teenage brother became concerned about J. R.’s safety and took him to the home of a maternal aunt. The brother had been awakened by the infant’s cries at 4:00 a.m. and discovered that the mother had left the child and the teenager alone in the mobile home. The brother went next door and found the mother on the neighbor’s telephone trying to call her sister to come get her. The mother “was just out of her head talking crazy, hollering and screaming” and “saying that the boogie man was out there trying to get her.” Just prior to this incident, the brother awoke one morning to find that the mother had taken his car. After going to town to attempt to locate the mother, the brother and father found the mother in jail for trying “to break in on a man.” The only clothing the mother was wearing was a large skirt pulled up over her chest and extending down to her knees.

Custody of J. R. was placed in DFCS in August 1987 when J. R. was four months old; physical custody continued with the maternal aunt. At the hearing in August, the father told the caseworker that the mother was not capable of caring for J. R. The child has resided in the home of the maternal aunt for all but approximately two months of his life.

In September 1987 the sheriff’s department requested a caseworker to go to a local grocery store to speak with the mother, who had been in the store for hours going in and out of it. The mother’s speech was rambling. She talked about falling out of a truck the night before and kept looking for a bag of peanuts. She stated that she had not come to the court hearing on J. R.’s custody because “she was stuck out in the sticks and didn’t have a way.” When asked why her husband was able to come to the hearing, the mother stated that her husband brought a “school teacher” to the hearing and that he “wanted that school teacher to keep the baby.”

At a subsequent hearing, the mother was again “rambling” and told the caseworker she “was wonderful with children,” that “she had never been on drugs,” that “the things people said about her were lies,” and that she “was just going to consider her son [J. R.] dead.” Even though it was then explained to the father that visitation with the child was important, the father stated that he did not really want to visit with J. R. but would wait until the child could be with them all the time. The caseworker attempted to hand the infant J. R. to the father but the father acted like he did not want to take the baby. The father showed no sign of emotion in regard to the child.

At another hearing in November, the mother showed up wearing a “clown nose” and carrying a balloon. She was eventually taken out of the courtroom.

The following occurred during other contacts between the parents and DFCS. The mother accused other family members of being against her and putting drugs in her food. She accused one sister of trying to kill her. The mother spontaneously began to sing, stating that she wanted to make a tape and send it to Nashville. At one panel review, the mother became angry, waved her arms, and began speaking unintelligibly as if in a foreign tongue.

In April 1988, DFCS received a referral that the mother was five- and-a-half months pregnant with another child, diabetic, and not receiving prenatal treatment. When the caseworker visited, the mother related that a little bird came to her house, perched on a picture on the wall, and spoke with her. Several months later, DFCS visited after receiving a report that the mother had given birth to a baby and then buried it. The mother told the caseworker that the baby had been buried but would not locate the grave. Later, the mother related to the caseworker that the lost baby had been conceived as the result of her being raped two years before. The mother also told her sister that she had given birth to a baby girl, that the child had died, and that she had buried it in the yard. The mother took her sister and brother-in-law outside in the yard, showed them a small cross which had been erected, and stated that it was the baby’s burial site.

The mother wrote several letters to DFCS workers describing a series of incredible events, including that her husband had been struck by lightning.

From the beginning of contact with DFCS, the parents were very evasive about where they were living; the caseworker felt that they were “just kind of roaming.” In February 1988, DFCS lost contact with the parents and had no idea where they were. In August and September, the parents did not show up for visits with J. R. The parents did not visit J. R. from February 1988 until March 1989. Visitation resumed in March 1989 following a panel review at which DFCS stressed how important it was that the parents visit, that by not visiting it appeared that the parents did not care about J. R. During visitations, the father had very little to do with J. R.; sometimes the father would not even go in the room. The parents again failed to visit the child for a period of over a year, from December 1989 to January 1991.

The father was ordered to pay $50 per month for J. R.’s support. Although during much of the time the father was employed at a wage sufficient to pay the court-ordered support, the father refused to make any support payments during the entire period of J. R.’s custody with DFCS. The parents never brought or sent to J. R. any birthday or holiday gifts or cards even though they would do so for other family members.

From April 1985 to November 1987, the mother was hospitalized five times at Georgia Regional Hospital in Savannah. During that time she had been diagnosed as suffering from bipolar disorder, manic with psychotic features. She had a history of failure to keep mental health appointments and follow recommended treatment. Her husband more than once checked her out of Georgia Regional prior to the recommended release date. Although urged repeatedly and consistently by DFCS workers and mental health treatment providers that the mother needed mental health treatment, both the mother and father actively refused to pursue any continued treatment and denied the need for it.

A psychologist evaluated the mother in October 1987 and in May 1989. On these occasions she was found to suffer from bipolar disorder and in 1989 also exhibited a delusional (paranoid) disorder. This same psychologist again evaluated her on October 18, 1990 and testified as to his evaluation at the termination hearing.

The personal interview segment of the evaluation disclosed, inter alia, that the mother denied a history of chemical abuse and criminal convictions and the need for any treatment by a psychologist or psychiatrist. She also revealed that in the past her husband had beaten her but that such had not occurred in more than four years. Although the mother then did not exhibit gross psychotic symptoms, gross organic effects, or grossly disrupted cognitive processing, she did exhibit signs of possible cognitive loosening.

Psychological testing revealed “psychosocial immaturity, use of repression and denial as basic defenses, an unrealistic approach to life and its challenges, little in the way of aspiration or ambition,, and a naive, simplistic view of her role in life as a parent and/or adult.” The overall level of demonstrated intellectual functioning was within the low average range. It was suggested that the mother might “have a difficult time organizing cognitive processing consistently because of anxiety, tension, and interference from disruptive cognitions, possibly delusional.” Such results were not inconsistent with those obtained in 1987 and 1989. One test presented an invalid profile because of the mother’s deliberate denial of even minor personal difficulties experienced by virtually all individuals.

A parenting skills inventory showed that the mother “has limited awareness of the medical needs and developmental milestones of children,” marked deficiencies in the area of child discipline and communication with children, and underdevelopment of her ability to understand children’s feelings. It was concluded that she could benefit greatly from parenting skills classes.

In summary the psychologist concluded, inter alia, that behavioral observation at different junctures disclosed solid evidence of cognitive slippage and loosening, relatively ineffective psychological defenses with a significant potential for deterioration, even decompensation into psychosis. The prognosis was “guarded.” It was recommended to the court that before the mother be granted custody of J. R. she become involved in individual counseling or psychotherapy and satisfactorily completé classes in parenting skills.

Even at the termination hearing, both parents denied the mother had any psychological or psychiatric problems and were resistant to obtaining mental health treatment. The mother reaffirmed her belief that her sister had tried to kill her by putting drugs in her food.

In considering the termination of parental rights, the court must undertake a two-step analysis. It must first determine whether there is clear and convincing evidence of parental misconduct or inability as provided in OCGA § 15-11-81 (b) and then if there is such evidence of misconduct or inability, whether termination of parental rights is in the best interests of the child. OCGA § 15-11-81 (a). “[T]hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent [or parents] would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. [Cits.]” In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).

Parental misconduct or inability is determined by finding that: “(i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”

In this case, the evidence clearly supports the threshold factor of the determination that J. R. is a deprived child within the meaning of OCGA § 15-11-2 (8) (A) and (C). Moreover, at the time of the termination hearing, there was in place an unappealed temporary custody order finding J. R. to be deprived. The juvenile court could take notice of the then controlling deprivation order. See generally Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984); see also In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987) which discusses the binding effect in a termination proceeding of a prior unappealed determination of parental abandonment.

The second criterion of parental misconduct or inability was also clearly satisfied as to both parents. “In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, . . . (i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; . . . (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent. . . .” OCGA § 15-11-81 (b) (4) (B) (i) and (v). In addition, when the parent or parents are non-custodial, in determining a lack of proper parental care and control, the court is to consider, without being limited to “whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child; [and] (ii) To provide for the care and support of the child as required by law or judicial decree. . . .” OCGA § 15-11-81 (b) (4) (C) (i) and (ii).

J. R.’s mother had before and at the time of termination of rights a medically verifiable deficiency in her mental or emotional health of a duration and nature to render her inadequate to parent J. R. Moreover, the evidence shows physical, mental and emotional neglect of J. R. on the part of both parents by virtue of their disinterest in maintaining contact with the child through visitation or other means of communication. There were at least two periods in excess of a year when neither parent made an effort to visit or communicate with the child. In addition, the father testified that he refused to provide any of the ordered child support for J. R. because of his resentment of the involvement of DFCS.

The evidence also showed that the deprivation was likely to continue and was of such a nature as to cause injury to the child, thus satisfying the third and fourth statutory criteria. At best the mother’s mental health prognosis was guarded. Moreover, it was medically undisputed that the mother was not capable of adequately parenting J. R. without some mental health intervention. Even if the mother’s emotional problems in relationship to her parenting ability could be helped by psychological or psychiatric counseling and/or other treatment, it was undisputed that neither parent was willing to secure such help, even at the expense of termination of their rights to their child. Compare In the Interest of K. E. B., 190 Ga. App. 121 (378 SE2d 171) (1989), which case lacked clear and convincing evidence that the parental unfitness which caused the child deprivation would not likely be remedied. Both of J. R.’s parents exhibited a complete and continuing indifference to taking the prescribed measures to correct the parenting deficiencies and to provide a situation conducive to parenting in which lawful custody of J. R. could be regained.

Decided January 6, 1992.

Kenneth E. Futch, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Michael D. Devane, Special Assistant Attorney General, for appellee.

The clear and convincing evidence of parental misconduct and inability authorized the juvenile court to find that it was in J. R.’s best interest to terminate the parents’ rights. In the Interest of G. K. J., supra.

Further, the evidence showed that the child had formed substantial bonds with the maternal aunt and her family and that J. R.’s adoption by the maternal aunt and her husband was a distinct possibility if not probability. While the issues of adoptability and the prevention of “foster care drift” are not, in and of themselves, bases for determination of parental unfitness, they are to be considered, inter alia, in the “matter of the child’s best interest in its ‘need for a stable and secure home’ under § 15-11-81 (a). . . .” In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).

“A termination hearing seeks as a major concern the welfare of the child, with due regard for the rights of the parents. [Cits.] In determining the balance of the interests of the children against parental rights, the juvenile court is vested with broad discretion which will not be controlled on appeal in the absence of manifest abuse, where the ruling is supported by clear and convincing evidence. [Cits.]” In the Interest of W. J. J., 176 Ga. App. 824, 826 (338 SE2d 54) (1985).

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A91A1832.
    WHITE v. THE STATE.
    (414 SE2d 328)
   McMurray, Presiding Judge.

Defendant White appeals his conviction of three counts of armed robbery, one count of robbery, and two counts of possession of a firearm by a convicted felon. Held-.

Defendant contends the trial court erred in failing to sua sponte conduct a hearing to determine his competency when, during trial, it became apparent to the trial court that defendant might not be competent to stand trial. On the hearing of defendant’s motion for new trial, defendant’s trial counsel testified that during the trial defendant’s demeanor toward him was hostile, belligerent, and uncooperative. “He kept making outbursts, muttering, calling witnesses liars, cussing me, cussing the prosecutor, just basically disruptive in the entire process.” Trial counsel opined that defendant was not psychotic and stated that he did not question defendant’s competence at that time. However, trial counsel also testified that he was in agreement when the trial court, at the conclusion of the trial, indicated that a psychiatric or psychological evaluation might be appropriate. On November 30, 1989, immediately following the trial of the case, trial counsel requested and the trial court ordered that a psychological evaluation be conducted of defendant. The psychological evaluation was conducted on January 7, 1990, and the psychologist opined that defendant was “decompensated” and was not competent to stand trial at the time of the evaluation. The psychologist offered no opinion as to defendant’s mental status prior to the date of the evaluation.

During the sentencing of defendant on April 12, 1990, the trial court stated: “I think defense counsel and I know and from my own memory that at the time of trial we were concerned basically because of his demeanor here as to whether there may be something wrong with him.” During the hearing on defendant’s motion for new trial, defendant urged that this statement was sufficient to show a duty upon the trial court to conduct, sua sponte, a competency hearing regarding defendant. “A trial court must conduct, sua sponte, a competency hearing when the information known to the trial court at the time of the trial or plea bargain is sufficient to raise a bona fide doubt regarding the defendant’s competence. Pate v. Robinson, 383 U. S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); McNair v. Dugger, 866 F2d 399, 401 (11th Cir.), cert. denied,_U. S._110 S.Ct. 109, 107 L.Ed.2d 71 (1989). Courts focus on three factors in determining whether the trial court violated the defendant’s procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial. Drope v. Missouri, 420 U. S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). Such an analysis focuses on what the trial court did in light of what it knew at the time of the trial or plea hearing. Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied, 444 U. S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979).” Tiller v. Esposito, 911 F2d 575, 576. The requirement of a competency hearing is applicable even where the doubt regarding a defendant’s competency arises during the course of a trial. Bowden v. Francis, 733 F2d 740, 747 (5). At the motion for new trial hearing on May 9, 1991, the trial court stated: “In this particular case, I was not sure because one of the things I think may have — I cannot recall specifically because I have not read that transcript, but I believe this man was quite active during the first part of the trial. Then I believe he became totally silent down in the trial. That’s why I was asking to read me what I had said at the time I was fixing to sentence him or at the time I made the remark about having examined on the transcript. I think that he was the man that I can remember who was up and belligerent and having a lot to say. Then later in the trial, I think he almost had nothing to say, became completely silent. Just watching him I became concerned whether or not something was wrong with him mentally which would make it a problem for sentencing. . . .” The statements of the trial court, on the record during the sentencing and motion for new trial hearings, establish that defendant’s demeanor at trial was such that the trial court had a bona fide doubt regarding the defendant’s competence. While the trial court was sufficiently concerned about the mental competency of the defendant to immediately order a psychological evaluation upon the conclusion of the trial, it appears the trial court did not recognize that its doubt regarding defendant’s competence required a hearing be conducted on this issue before continuing the trial.

The Supreme Court of Georgia “has previously addressed the question of an appropriate remedy for a Pate v. Robinson violation or for an error under Georgia law regarding the competence of a defendant. Baker v. State, [250 Ga. 187, 192-193 (297 SE2d 9)]. In accordance with Baker, we remand this case to the trial court to make, if possible, a determination of [defendant’s] competence at the original trial.

“ ‘Upon remand the burden first falls upon the state to show there is sufficient evidence to make a meaningful determination of competency at the time of trial. If the court rules that a determination of [defendant’s] competency at the time of his trial is not presently possible, then a new trial must be granted. If the court decides that such a determination is possible, the issue of competency to stand trial must be tried and the [defendant] shall have the burden to show incompetency by a preponderance of the evidence. The sole issue to be presented to the jury is that of mental incompetency; evidence as to guilt would be irrelevant. (Cit.) If the jury finds that the [defendant] was not mentally competent at the time of his trial, the verdict in the main case must be set aside. On the other hand, if the [defendant] fails by a preponderance of the evidence to prove incompetence at the time of his trial, the verdict of guilty shall stand.

Decided January 6, 1992.

L. David Wolfe & Associates, Susan E. Teaster, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Henry M. Newkirk, Assistant District Attorneys, for appellee.

“ ‘In the event the verdict of guilty is set aside and a new trial ordered as to guilt and innocence, the [defendant] may again raise the issue of competency by special plea pursuant to (OCGA § 17-7-130 (Code Ann. § 27-1502)).’ Baker v. State, supra at 193.

“We will not presume that a determination of prior competence can be made, or, if it can be made, that a jury will determine that [defendant] was competent at the time of the previous trial. Therefore, we will not at this time review the remaining enumerations of error. If it is determined below that a new trial as to guilt and sentence is unnecessary, then, upon completion of the proceedings on remand, this case shall be re-presented to this court for resolution of the remaining issues and any additional issues that might be presented by the judgment on remand.” Lindsey v. State, 252 Ga. 493, 497 (314 SE2d 881).

Case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


author: Beasley, Judge.

text:
    A91A1983.
    BAILEY v. THE STATE.
    (414 SE2d 330)
   Beasley, Judge.

Appellant was convicted of DUI. OCGA § 40-6-391 (a) (4). The trial court granted his motion to enter a plea of guilty and allowed reservation of the right to appeal the denial of his motion to suppress.

A Rockdale County deputy sheriff observed appellant turn into the entrance to a church at approximately 8:05 p.m. on December 31, 1990. Although nighttime activities are regularly held at the church, it was closed. After seeing appellant enter the church’s darkened, vacant parking lot, the deputy turned into another entrance to make sure nothing illegal was happening. Appellant parked his car in the far back corner of the parking lot away from the church. He turned off his car’s motor and headlights and leaned down in his seat. This movement aroused the deputy’s suspicion, because appellant did not turn on the car’s interior lights, which people generally do if they are searching for something lost. The deputy approached appellant’s car and asked to see his driver’s license and proof of insurance. He detected the strong odor of an alcoholic beverage. Appellant granted permission for a field sobriety test, with the resulting DUI charge.

The trial court denied the motion to .suppress in an order stating, “[A]rticulable suspicion existed for the initial inquiry by the police officer. The articulable suspicion was generated by the conduct of the defendant in leaning down in the front seat so as to be out of the view of the police officer. The officer could have reasonably concluded that the defendant was perhaps trying to hide. Additionally, the officer had a right to patrol in the area that he was patrolling in at the time the defendant leaned down.”

Appellant argues that the officer’s pursuit and detention of him were legally unauthorized because the officer did not have an articulable or reasonable suspicion of criminal wrongdoing, and the trial court erred in not suppressing the evidence which formed the basis of probable cause for arrest after unlawful detention.

Momentary detention and questioning do not have to be based on probable cause to believe there has been criminal wrongdoing. “Since acts of peace officers in detaining and questioning a citizen are necessarily a curtailment of his right to go about his business unmolested, and since also investigation and questioning are necessary elements of crime prevention and detection, the exigencies of the situation as they reasonably appear at the time must dictate the extent of intrusion into constitutionally protected areas. Momentary detention and questioning are permissible if based upon specific and articulable facts which, taken together with rational inferences from those facts, justify a reasonable course of inquiry not based on mere inclination, caprice, or harassment.” Brooks v. State, 129 Ga. App. 109 (198 SE2d 892) (1973).

Appellant’s furtive and suspicious movements on the deserted church property at night justified a reasonable course of inquiry, which the officer undertook. The action of the officer, in approaching the parked car, which he did not stop, and questioning appellant, was not based on mere inclination, caprice, or harassment.

The facts of this case are distinguished from those in Brooks, supra, which held: “The mere fact that a motor vehicle turns off from a main highway to a side road at night, there being no rational ground for suspicion that it is connected with any law violation, does not justify its pursuit and detention.” 129 Ga. App. at 109. Holtzendorf v. State, 125 Ga. App. 747, 749 (188 SE2d 879) (1972), is also different. It held that the detention and search of the defendant exceeded Fourth Amendment standards, because the arresting officers “stopped the defendant, and his companion while the latter were engaged in the perfectly lawful activity of walking on the sidewalk and indulging in no furtive or suspicious conduct of any kind.”

Decided January 6, 1992.

William Schneider, for appellant.

Nancy N. Bills, Solicitor, for appellee.

“On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and [the judge’s] findings ... are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].” State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974). The evidence supports the trial court’s denial of appellant’s motion to suppress.

Judgment affirmed.

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


text:
    A91A2017.
    CARROLLTON CAR CENTER, INC. et al. v. CITIZENS & SOUTHERN NATIONAL BANK.
    (414 SE2d 674)
   Beasley, Judge.

Citizens & Southern National Bank sued Carrollton Car Center, Inc. and its two shareholder-officers (Isaacman and Lambert), who personally guaranteed a promissory note after acquiring a car dealership. Lambert was not served. Isaacman and Carrollton Car appeal the trial court’s grant of the bank’s motion for summary judgment.

On June 2, 1984, Charles Puckett, as president of Carrollton Car, executed a Single Payment Note and Security Agreement obtaining a line of credit from The Peoples Bank in the amount of $600,000 payable on demand and secured by motor vehicles to be purchased with the borrowed funds.

On October 1, 1987, Puckett transferred 49 percent of his ownership interest in Carrollton Car to Isaacman and Lambert. They each executed a guaranty of the note, and Puckett’s remaining interest in the company was transferred to them the following year.

In 1990, C & S, successor of The Peoples Bank, sued on the promissory note and guaranties, alleging indebtedness of $66,515, plus interest and attorney fees.

Appellant-defendants contest summary judgment.

1. They argue that a time loan system note ledger maintained by the bank shows that they do not owe the bank any money, but rather that the bank owes them $30,460.76.

This ledger shows the charges, advances, and payments on the line of credit from June 8, 1987, until January 8, 1990, whereupon the bank ceased lending money to the dealership. This ledger shows a positive $30,460.76 balance. A bank officer explained by affidavit that this ledger did not reflect a balance of $96,975.76 owing on the line of credit at the time the account was entered into the bank’s computer system, and that this was explained to Isaacman when the ledger was given to him in March 1990. Subtracting the $30,460.76 from the $96,975.76 results in the $66,515 principal amount sought. There is no evidence to contradict this explanation.

2. Isaacman argues he and Lambert were discharged from liability on the guaranties in that, unbeknownst to them, the bank loaned money to the dealership in excess of the prices of the motor vehicles which were purchased, and the bank released its security interest in such vehicles prior to payment of the secured indebtedness, thereby resulting in the large deficiency for which the bank seeks to hold the defendants liable.

The only evidence to support this is a comment in a letter from the bank to the general manager of the dealership, which was later sent to Lambert and Isaacman, to the effect that it was unfortunate that values placed on the dealership’s motor vehicles were overstated. The complained-of lending practices apparently facilitated a misappropriation of corporate funds by the general manager, who was fired. There is no evidence of any involvement in this scheme by any bank board member, officer, employee, or agent.

The following provisions in the instruments bar the guarantors from asserting defenses based on the release of collateral or an extension of credit in excess of the valuation of collateral: The note states, “WAIVER: Each maker . . . and guarantor . . . agrees that liability for the payment hereof shall not be affected or impaired by any release (in whole or in part) or change in the collateral, if any. . . .” The guaranties state, “The Lender may, from time to time, without notice to the undersigned . . . (e) release its security interest, if any, in the Collateral and permit any substitution or exchange for the Collateral or any part thereof, and (f) resort to the undersigned (or any of them) for payment of any of the Liabilities or performance of the Obligations, whether or not the Lender shall have resorted to any of the Collateral, or shall have proceeded against any other of the undersigned or any other party primarily or secondarily liable on any of the Liabilities or Obligations.”

Such provisions operate as a waiver of a guarantor’s impairment-of-collateral defenses under OCGA § 11-3-606 (1) (b). Wilson v. Baxley State Bank, 155 Ga. App. 507 (1) (271 SE2d 655) (1980).

The fact that Puckett was a director of the bank when these lending practices occurred does not change this result.

3. Isaacman also seeks to avoid liability by asserting that at the time he guaranteed the loan, a bank officer erroneously stated that Puckett had also guaranteed the loan.

The parol evidence rule bars evidence of an extrinsic contemporaneous oral representation that an unconditional written guaranty was conditioned on the existence of a guaranty by another party. OCGA § 24-6-1; Area v. Cagle, 148 Ga. App. 769 (2) (252 SE2d 655) (1979); McGraw v. Trusco Leasing, 137 Ga. App. 328 (223 SE2d 731) (1976). Moreover, there being no confidential relationship between a bank and its customer, a customer has no legal right to rely upon the bank’s representations and must exercise due diligence in ascertaining the truth. Citizens & Southern Nat. Bank, Augusta v. Arnold, 240 Ga. 200 (240 SE2d 3) (1977). See Shaw v. Cook County Fed. Savings &c. Assn., 139 Ga. App. 419 (228 SE2d 326) (1976).

Decided January 6, 1992.

Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, for appellants.

Prince & Diment, E. Carl Prince, Jr., for appellee.

The bank has established a prima facie right to recover on the note and guaranties, and defendants have failed to produce evidence of a legally sufficient defense. The trial court did not err in granting the bank’s motion for summary judgment. Area, supra at 769 (3).

Judgment affirmed.

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


text:
    A91A2085.
    LANGSTON v. THE STATE.
    (414 SE2d 676)
   Beasley, Judge.

Langston appeals his conviction for trafficking in cocaine by knowingly and actually possessing 488 grams (17.2 ounces) of a substance containing 99 percent pure cocaine, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-31 (a) (1). The contraband was discovered in a taped-up paper bag under the passenger seat of Langston’s automobile during a warrantless search following a roadblock check for driver’s licenses and insurance. Langston was also charged with and convicted of “No Driver’s License,” OCGA § 40-5-20, but his notice of appeal raises only the felony drug conviction.

The sole challenge is to the trial court’s denial of Langston’s motion to suppress. After a pre-trial joint suppression and JacksonDenno hearing, the trial court upheld the warrantless search of Langston’s vehicle. It ruled that there had been a valid traffic stop, that the circumstances had raised an articulable suspicion on the part of the searching officer, and that Langston had given his informed consent to the search. Langston claims that the warrantless search had no validity under the Fourth Amendment because the officer did not have probable cause and because the State’s only evidence of voluntary consent to search was conflicting, whereas there was undisputed evidence that the officer had decided to search for contraband prior to the alleged giving of consent. Langston does not challenge the initial traffic stop. Nor does he invoke the State Constitution, so it will not be considered. See Smith v. State, 186 Ga. App. 303, 309 (3) (367 SE2d 573) (1988).

1. First, the question of jurisdiction is addressed. Langston filed a motion for new trial on February 15, 1989, and an amendment on July 21. While this was pending, a notice of appeal was filed on February 28, 1990. A new trial was denied on March 7.

“Formerly, an appeal from a judgment on a verdict brought while the case was pending on motion for new trial was premature and of no validity. [Cits.] This is no longer true . . . premature filing is not a ground of dismissal in criminal cases, at least insofar as a criminal defendant is concerned. [Cit.]” Shirley v. State, 188 Ga. App. 357 (1), 358 (373 SE2d 257) (1988). So we move on.

2. “In considering the legality of a search, this appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. [Cit.]” Newsome v. State, 192 Ga. App. 846, 847 (1) (386 SE2d 887) (1989). “On appeal, a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Muff v. State, 254 Ga. 45, 48 (2) (b) (326 SE2d 454) (1985).

The issue of consent is dispositive. “ ‘A valid consent eliminates the need for either probable cause or a search warrant. [Cit.]’ [Cit.]” Bobbitt v. State, 195 Ga. App. 566, 567 (394 SE2d 385) (1990).

Langston disputed the giving of consent to search. The State’s evidence of consent was not in conflict although Langston contends otherwise. At the suppression hearing, the two officers who observed Langston in his car prior to the search testified unequivocally that Langston affirmatively consented to the search. Although their respective attempts to recount exactly the words Langston used to convey his consent varied slightly, both testified unequivocally as to the fact of consent. One officer had become suspicious of Langston after Langston was unable to produce a driver’s license, appeared extremely nervous, failed to credibly answer questions about the nature and purpose of his trip into Georgia (the car had a Florida license tag), had no luggage even though at one point Langston stated he was going to visit family, and had the car’s passenger seat in a reclining position even though Langston was alone in the vehicle. This same officer testified at both the suppression hearing and at trial that he asked Langston for permission to search the car, that he told Langston he did not have to agree to the search, and that Langston responded that it would be okay and immediately triggered the trunk release. Even if the officer was predisposed to search the vehicle for contraband, Langston’s consent renders such predisposition irrelevant.

Decided January 6, 1992.

Noel G. Perry, for appellant.

J. Brown Moseley, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

The trial court’s finding the fact of consent is supported by the evidence. Muff, supra; Bobbitt, supra. The inquiry must advance to determine whether consent was freely and voluntarily given. Voluntariness depends on the totality of the circumstances, including such factors as the accused’s age, education, intelligence, length of detention, the accused’s being advised of his constitutional rights, the prolonged nature of any questioning, any physical punishment, and the psychological impact on the accused. See Dean v. State, 250 Ga. 77, 79 (2) (a) (295 SE2d 306) (1982).

Langston completed the twelfth grade, served in the military, and appeared to be quite articulate, as demonstrated by his testimony at the motion to suppress Jackson-Denno hearing. The encounter at the road check was not in and of itself intimidating nor was it prolonged. There was no evidence of any physical punishment inflicted on Langston nor any attempt to coerce Langston into agreeing to a search of his vehicle. The circumstances support a finding of voluntariness.

The trial court did not err in refusing suppression, as the finding of voluntary consent was authorized. It is unnecessary to address the validity of the search under any other basis.

Judgment affirmed.

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


text:
    A91A2159.
    VANDERGRIFT v. THE STATE.
    (415 SE2d 2)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of alcohol (DUI). This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for new trial, arguing that the State failed to comply with his request made pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), by failing to inform him before trial that his motor home vehicle was the “target” of an undercover police investigation. Defendant argues that this evidence was exculpatory because it shows that he was arrested for DUI after driving the motor home so that the vehicle could be searched. This enumeration is without merit.

“ ‘[A] prosecutor’s nondisclosure of evidence may impair a defendant’s right to a fair trial only if the evidence not disclosed is material in the sense that it might create in the minds of the jurors a reasonable doubt that did not otherwise exist. The proper test for determining materiality when the prosecutor has failed to disclose favorable evidence pursuant to no request, a general request, or a specific request for evidence by the accused is that the evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’. . . [Cits.]” Cato v. State, 195 Ga. App. 619 (1) (394 SE2d 413).

The fact that law enforcement officers suspected that illegal drugs were concealed in defendant’s motor home vehicle does not diminish overwhelming proof that defendant was guilty of driving the motor home vehicle while under the influence of alcohol. Defendant admitted that he visited two drinking establishments on the night of his arrest and that he consumed alcoholic beverages immediately before driving the motor home. Officer Tony Norris of the Clarke County Police Department testified that he observed defendant staggering from a bar to the parked motor home and that he watched defendant drive the vehicle onto a public road. Officer Norris further testified that he followed defendant and observed the motor home vehicle swerve “several times” and “at one point both tires on the left side of the vehicle were in the oncoming traffic lane.” Officer Dale Parrish of the Athens Police Department testified that he approached defendant outside the motor home vehicle after responding to Officer Norris’ radioed request for assistance and that he smelled alcohol on defendant’s breath. Officer Parrish testified that defendant refused to take “an Aleo-Sensor test,” but agreed to “say his A-B-C’s, which is a field sobriety test.” Officer Parrish testified that defendant “got as far as R, and then he stopped, and he refused any other field tests.” Officer Parrish further testified that defendant then “became somewhat disorderly, began demanding we call the FBI, Sam Nunn, several other agencies and individuals.” Officer Parrish explained that defendant thereafter experienced “several mood swings” and later refused to take a State-administered breath test. This evidence and evidence that defendant had slurred speech and was unsteady on his feet after he was approached by Officer Parrish is more than sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of driving the motor home vehicle while under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Burks v. State, 195 Ga. App. 516, 518 (5) (394 SE2d 136).

Decided January 6, 1992.

L. Scott McLarty, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

2. Defendant contends there was insufficient basis for his stop and subsequent arrest for driving under the influence of alcohol. This contention is without merit.

Officer Norris’ “report received over the radio [that he suspected defendant of driving a motor vehicle while under the influence of alcohol] constituted sufficient grounds to create an articulable suspicion warranting reasonable cause to stop [defendant]. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).” Holcomb v. State, 191 Ga. App. 379 (1), 380 (381 SE2d 594). Further, Officer Parrish’s observation of defendant after the stop gave reasonable cause for defendant’s arrest for driving under the influence of alcohol. Holcomb v. State, 191 Ga. App. 379 (1), 381, supra.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1185.
    D & N ELECTRIC, INC. v. UNDERGROUND FESTIVAL, INC.
    (414 SE2d 891)
   Carley, Presiding Judge.

The relevant facts in this lien foreclosure action are as follows: Appellee-defendant leased property for a 50-year term and, thereafter, sub-let a portion of the property to B Gallerie Group, Inc. (BGGI), a Delaware corporation. This sub-lease provided that, prior to the commencement of the term, BGGI was to have certain improvements made on the property. The sub-lease also provided that BGGI was to obtain appellee’s “written approval of the plans and specifications for such work” and that, “[i]n consideration of [BGGI] making said improvements, [appellee] agree [d] to give [BGGI] an allowance toward the cost of [BGGI’s] work. ...” Payment of this allowance was to be made to BGGI “within sixty (60) calendar days after . . . [t]he execution by [BGGI] and each of its contractors, subcontractors, suppliers and materialmen and the delivery to [appellee] of a valid and enforceable waiver of lien in form and substance satisfactory to [appellee]. . . , including such waiving party’s sworn affidavit that all contractors, subcontractors, suppliers or materialmen of such waiving party have been paid in full.” Appellant-plaintiif performed certain work in connection with the improvements on the property. When it was not paid for its work, appellant filed its claim of lien and subsequently initiated the instant lien foreclosure action. Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

1. Neither the existence nor the status of the owner of the reversionary interest in the property is relevant to the resolution of the instant appeal. Since appellee is both the lessee of the property under a 50-year lease and the sub-lessor of BGGI as to the improved portion of the property, appellee is the “true owner” against whose interest in the property a viable lien can attach. Bennett Iron Works v. Underground Atlanta, 130 Ga. App. 653 (1) (204 SE2d 331) (1974). Compare Aetna Indem. Co. v. Town of Comer, 136 Ga. 24, 25 (2) (70 SE 676) (1911); Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208 (48 SE 978) (1904). “ ‘Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the suit, will not bar an action for foreclosing and enforcing the statutory lien of a materialman.’ If the defendant ‘has any interest in the premises upon which the lien can take effect, that interest is bound.’ [Cits.] . . . [T]he liens [authorized by OCGA § 44-14-361] may attach to the interest of a lessee[-sublessor] who has an estate for years in the demised premises, subject to the conditions of the lease. [Cits.]” James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 (1, 3) (79 SE 465) (1913).

2. “ ‘A tenant can not order work done upon the demised premises and charge the owner with the cost, unless there is some relation existing between him and his landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made. The mere knowledge of the landlord that the improvements are being made by the tenant is insufficient to charge him or his premises with their cost. He must expressly or impliedly authorize the tenant to make the improvements for the former’s benefit. [Cit.]’ ” Stevens Supply Co. v. Stamm, 41 Ga. App. 239, 240 (152 SE 602) (1930).

When the evidence of record in the instant case is construed most strongly against appellee, it shows more than appellee’s mere knowledge that BGGI, acting unilaterally, contemplated making improvements on the property. The lease that appellee and BGGI negotiated and executed clearly specified that the improvements were to be made by BGGI and that appellee was to pay at least a portion of the cost of making those improvements through an allowance to BGGI. Under such circumstances, a finding would be authorized that appellee had, in effect, consented to such of BGGI’s contracts as related to the contemplated improvements on the property. “Here there was a specific contract for the improvements made prior to the commencement date of the lease with a rental allowance in stated amounts.” Columbus Square &c. Co. v. B & H Steel Co., 150 Ga. App. 774, 777 (258 SE2d 600) (1979). “In the cases cited by [appellee], [cits.], the lessors did [no] more than merely consent to improvements being made; they [never] contracted for them and [never] paid the lessees by means of lease credits. [Here, unlike in those cases,] [t]here is . . . evidence in the record ... to suggest such an arrangement [between appellee and BGGI].” Nunley Contracting Co. v. Four Taylors, 192 Ga. App. 253, 254 (384 SE2d 216) (1989). See also Bennett Iron Works v. Underground Atlanta, supra. Compare Accurate Constr. Co. v. Dobbs Houses, 154 Ga. App. 605 (269 SE2d 494) (1980). “It is common practice in the real estate business for a landlord to give a tenant an allowance to finish or redesign leased space. . . . An owner may be liable to a contractor of the owner’s lessee [up to] the amount [of the allowance] that the owner contracted with the lessee to be liable. [Cits.]” (Emphasis supplied.) F. S. Assoc., Ltd. v. McMichael’s Constr. Co., 197 Ga. App. 705, 707 (1) (399 SE2d 479) (1990).

Appellee obviously recognized and anticipated that, by contracting with BGGI for the improvements, it was thereby legally subjecting its own interest in the property to potential liens up to the amount of the allowance that it had agreed to provide to BGGI. Appellee made its payment of the allowance contingent upon the receipt of lien waivers or affidavits from BGGI and from those with whom BGGI had contracted. Thus, if the lien waivers or affidavits were provided to appellee, it could pay the allowance to BGGI with assurance that the property would not be subjected to any viable liens. If the lien waivers or affidavits were not provided to appellee, it could withhold the allowance from BGGI and use the amount of that allowance to satisfy any viable liens that might be filed.

Since the evidence of record would authorize a finding that appellee had consented to such of BGGI’s contracts as related to the contemplated improvements on the property, the lack of any immediate contract between appellee and those with whom BGGI had contracted in connection with those improvements would not be a viable basis for the grant of summary judgment in favor of appellee.

3. As noted, the amount of the allowance that appellee agreed to pay to BGGI is the legal equivalent of the “contract price” and, as such, establishes the maximum extent to which appellee’s interest in the property may be subject to liens. F. S. Assoc., Ltd. v. McMichael’s Constr. Co., supra at 705 (1). In support of its motion for summary judgment, appellee submitted evidence that the allowance that it had contracted to pay to BGGI had “been paid in full.” Appellee urges that this evidence mandated the grant of its motion for summary judgment.

“[A]n owner’s mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman’s lien. . . . ‘(T)he owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.’ [Cit.] Thus, an owner must not only show that full payment was actually made to the contractor, he is also ‘required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. (Cits.)’ [Cit.]” (Emphasis in original.) Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990).

Accordingly, if appellee paid the allowance to BGGI after securing the lien waivers or affidavits, as it had contracted to do, it would have a defense to the instant action, but that defense would be based upon the lien waivers or affidavits and not the mere payment of the allowance. There is no evidence that appellee did, in fact, secure the lien waivers or affidavits prior to paying the allowance. If, on the other hand, appellee waived the contractual contingency and paid the allowance without securing the lien waivers or affidavits, it would have a defense to the instant action only if it could further show that the allowance had otherwise been “properly appropriated” as payment for the labor and materials employed in making the improvements. There is no evidence that the allowance that was paid by appellee was, in fact, “properly appropriated.” It follows that the evidence showing merely that the allowance had “been paid in full” is not a viable basis for the grant of summary judgment in favor of appellee.

4. Although, for the reasons discussed in Division 2, the lack of any immediate contract between appellee and appellant would not be a viable basis for the grant of summary judgment in favor of appellee, the lack of any contractual privity between appellant and BGGI would be. The evidence would authorize a finding that appellee had only consented to such of BGGI’s contracts as related to the contemplated improvements on the property. Accordingly, unless there was contractual privity between appellant and BGGI, appellant can have no enforceable lien against appellee’s interest in the property. “In the absence of a showing of a contractual relationship between the owner and the person to whom the materials were furnished, no enforceable lien is created against the owner’s property. [Cits.]” Liggett v. Harper, 151 Ga. App. 616, 617 (1) (260 SE2d 735) (1979). “An owner may be liable to a contractor of the owner’s lessee [up to] the amount [of the allowance] that the owner contracted with the lessee to be liable. [Cits.]” (Emphasis supplied.) F. S. Assoc., Ltd. v. McMichael’s Constr. Co., supra at 707 (1). “ ‘There need be no contract between the materialman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. A contract is necessary to fix the liability of the owner and establish a privity between him and the materialman. A stranger may not order work done upon real estate and thus charge the true owner. . . .’ [Cits.]” Marshall v. Peacock, 205 Ga. 891, 893 (55 SE2d 354) (1949).

Appellant does not base its claim upon a contract with BGGI. Instead, appellant asserts that its contract was with an individual named Phillip Brock “d/b/a B Gallerie.” There is no evidence as to Brock’s connection with BGGI. However, even assuming that Brock was a corporate officer with authority to bind BGGI contractually, the record nevertheless demonstrates that, in purported compliance with OCGA § 44-14-361.1 (a) (3), appellant did not file suit against BGGI, but against Brock individually. OCGA § 44-14-361.1 (a) (3) provides that, in order for a lien to be effective, the lien claimant must commence an action for the recovery of the amount of his claim within 12 months from the time that it became due. “In a lien foreclosure the materialman must distinguish between an individual and his corporation and bring suit against the correct account debtor. [Cit.]” Ben Hill &c. Concrete Co. v. Prather, 160 Ga. App. 149, 150 (1) (286 SE2d 481) (1981). Brock, in his individual capacity, would be a “stranger” to appellee’s contract with BGGI and without authority to “ ‘order work done upon [the] real estate and thus charge [appellee, as] the true owner. . . .’ [Cits.]” Marshall v. Peacock, supra at 893. If Brock, in his corporate capacity, was otherwise authorized to contract on behalf of BGGI for the improvements on the property so as to charge appellee with the cost thereof, appellant’s failure to bring suit against BGGI in compliance with OCGA § 44-14-361.1 (a) (3) nevertheless mandates the grant of summary judgment in favor of appellee. “Although the result here may seem harsh, the lien laws, being in derogation of the common law, are strictly construed against the lien claimant and in favor of the landowner. [Cit.]” Ben Hill &c. Concrete Co. v. Prather, supra at 150 (1).

5. Appellant’s remaining enumeration of error is moot.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

In Division 1 we rely on certain language in the case of James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 (79 SE 465) (1913). The language as used in that case refers to the lessee, who was the lienor’s “employer.” The lienor was entitled to a lien against that “employer’s” leasehold estate for years. Here the claim is against the lessee’s lessor, who has an estate for years, rather than against the lessee, who also had an estate for years.

Decided December 20, 1991

Reconsideration denied January 7, 1992.

McReynolds & Welch, J. Michael Welch, Frederic S. Beloin, for appellant.

Alston & Bird, John I. Spangler III, Linda K. Disantis, for appellee.

I point out that the holding in James G. Wilson Mfg. Co., that the materialman’s lien could attach to and be enforced against the lessee’s estate for years, is being extended to the lessor’s estate for years also, based on Bennett Iron Works v. Underground Atlanta, 130 Ga. App. 653 (1) (204 SE2d 331) (1974). In Bennett, it is not clear that the lessee had an estate for years, however, but that apparently does not affect the lienor’s entitlement to a lien against the lessor’s estate for years.


author: Birdsong, Presiding Judge.

text:
    A91A1487.
    PATTERSON et al. v. THE STATE.
    (414 SE2d 895)
   Birdsong, Presiding Judge.

Appellants Claude Patterson and David Warren Locke were convicted of arson in the second degree and appeal. Held:

1. Appellants contend that the trial court committed reversible error in denying their motions for continuance because their attorney was not retained until ten minutes before the jury was selected. In making this ruling preceding the trial on March 27, 1991, the trial court noted that when the case was first called in September it was continued to give the defendants time to hire counsel, as they were not entitled to appointed counsel when they were found not to be indigent. The case appeared before the court in October, and was again continued until the February term in order to allow the defendants further opportunity to retain counsel. When the case reappeared on the February calendar and the defendants still had not retained an attorney, another continuance was granted until March. At the last appearance for trial, the motion made by the defendants’ attorney based upon his having been hired only ten minutes previously was denied on the ground that no excuse had been offered by the defendants for their delay in retaining counsel.

We find no error. “In all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 17-8-20. The defendants here proffered no evidence that they had exercised such due diligence, nor did they explain their delay in hiring. counsel. “A motion for continuance based on counsel’s claim of insufficient time to prepare for trial is addressed to the sound legal discretion of the trial court. . . .” Snow v. State, 178 Ga. App. 842 (344 SE2d 762). “ ‘ “The refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge.” ’ [Cits.] We are satisfied that in this instance the trial court did not breach its discretion ... in refusing to grant the requested continuance.” Laster v. State, 196 Ga. App. 854, 855 (1) (397 SE2d 191).

2. Appellants complain that the State acted improperly when it subpoenaed appellant Patterson’s wife and called her to the stand as its witness without informing her that she had the right not to testify against her husband; and that it was erroneous to permit her to invoke her marital privilege before the jury. This occurred when the State called Mrs. Patterson as its first witness; during her examination defense counsel objected and asked the court whether she had been apprised of her right not to testify against her husband. The judge noted that he could not answer the question as this was her privilege, which she could invoke if she wished. The witness stated that she did not want to testify, the court agreed, and at that point the prosecutor suggested that the jury be retired. Defense counsel made no objection to this procedure either before or after the jury retired.

In Westbrook v. State, 162 Ga. App. 130 (290 SE2d 333) (1982), we held that under normal circumstances the election of one spouse to refrain from testifying ágainst the other should be made outside the presence of the jury. As to the circumstance of the spouse’s voluntarily taking the stand, see Wiley v. State, 150 Ga. App. 607, 608 (1) (258 SE2d 286). In this case, Mrs. Patterson did not voluntarily take the stand, and in the circumstances, the cause of her being forced to invoke her privilege in front of the jury during her examination was caused as much by the defendant as it was the State. In Westbrook, we held at 131 (2) that “[t]his right, although belonging to the defendant in the first instance, may be waived, and should be considered waived if it becomes a methodology for forcing or bringing the issue to the jury’s attention. Where the whole purpose of deciding the question in privacy is to avoid alerting the jury to the spouse’s election, any act by the defendant which intentionally does so must be considered a waiver.” Mrs. Patterson’s invocation of her privilege in public could have been avoided had defense counsel requested that the matter be taken up outside the presence of the jury when she first took the stand. Id. at 130 (1). “Under these circumstances it appears that the defendant’s right to have the decision made in private had been waived. . . . One cannot complain of an error which his own conduct aided in causing. [Cits.]” Id. at 130 (2); see Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); compare Williams v. State, 195 Ga. App. 376 (2) (393 SE2d 506).

3. Appellants assert that the trial court erred in failing to grant their motion for directed verdict of acquittal because the State failed to carry the burden of proof, that is, the circumstantial evidence introduced by the State was too weak to present a jury question. Doug Lowery and his wife Michelle testified for the State that on August 7, 1990, as they drove down Ballground Road in Murray County, Georgia, they saw appellant David Locke standing beside a parked car and Claude Patterson driving a pickup truck that stopped next to the parked car. About 25 minutes later when they drove past the scene again, the Lowerys saw the car totally engulfed in flames. Neither of the appellants nor the pickup truck was present at that time. The Lowerys reported the situation to law enforcement authorities who investigated and determined that the car had been doused with a flammable liquid and set afire. Appellants admitted driving the car, a 1988 Ford Escort which belonged to Patterson’s wife, to the scene. A detective testified that Mr. and Mrs. Patterson had reported the car stolen two days after the fire occurred. A representative of the automobile lienholder testified that the car was burned without its consent.

This evidence, both direct and circumstantial in nature, was sufficient to prove the essential elements of arson in the second degree as defined by OCGA § 16-7-61. “In our opinion the jury was authorized to conclude beyond a reasonable doubt that the fire was of incendiary origin, and that [appellants were the perpetrators]. Tt is not often possible to make out a case of arson by direct proof establishing the corpus delicti or showing the connection of the defendant with the commission of the crime, for arson is seldom committed except . . . when there is small chance that the criminal will be actually observed in the execution of his nefarious purpose . . . and therefore circumstances must generally be depended upon not only to show the guilt of the accused, but to establish the corpus delicti. . . .’ [Cits.]” Smith v. State, 122 Ga. App. 882, 883-884 (179 SE2d 261).

When, as here, an enumeration of error is based upon the overruling of a motion for directed verdict of acquittal, which was grounded at trial on insufficiency of the evidence, the proper test for an appellate court is “the beyond a reasonable doubt test” as expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Williams v. State, 199 Ga. App. 566, 567 (1) (405 SE2d 716), citing Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). “As for the circumstantial evidence, a conviction on circumstantial evidence alone is authorized when ‘the proved facts (are) consistent with the hypothesis of guilt, but . . . exclude every other reasonable hypothesis save that of the guilt of the accused.’ [Cits.] ‘The term “hypothesis” as used in (OCGA § 24-4-6) refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act. . . .’ [Cits.]” Cobb v. State, 195 Ga. App. 429, 430 (2) (393 SE2d 723). Viewing the evidence of this case in a light most favorable to the verdict, we conclude the jury rationally could have found that it excluded every reasonable hypothesis except that of appellants’ guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellants were both guilty of arson in the second degree. Jackson v. Virginia, supra.

4. After Mrs. Patterson invoked her marital privilege not to testify against her husband, the trial court did not err in admitting a statement she made to a detective during his investigation of the case. Detective Sam West testified that Mrs. Patterson told him her husband came to the restaurant where she worked on August 7, 1990, to borrow her car, but never returned it. When she got home 12 hours later, Patterson told her he had brought the car back and was gone for only one hour, so she reported it as stolen. Appellants insist that their right of confrontation was violated because they were unable to cross-examine hearsay testimony offered to convict them.

“However, OCGA § 24-3-1 (b) provides that hearsay evidence is admitted in specified cases from necessity. In Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), the Georgia Supreme Court, citing Ohio v. Roberts, 448 U. S. 56, 65 (100 SC 2531, 65 LE2d 597) (1980), held that the United States Supreme Court had ‘not interpreted “confrontation” to signify the exclusion of every hearsay exception, and has provided (a) method to resolve confrontation challenges based on the admission of hearsay testimony: “ . . . First, . . . the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Cits.) The second aspect operates once a witness is shown to be unavailable. . . . (O)nly hearsay [that is] marked with such trustworthiness that ‘there is no material departure from the reason of the general rule (may be admitted).’ ” (Cit.)’ [Cits.]” Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69).

We find that the statement here complied with the Higgs criteria for proper admission. The necessity exception usually applies “in cases where the witness may not be compelled to testify, as in the case of a wife who cannot be compelled to testify against her husband.” Glisson v. State, 188 Ga. App. 152, 154 (2) (372 SE2d 462). Thus the necessity requirement was satisfied here. Detective West’s “testimony at trial established the voluntariness of [Mrs. Patterson’s] statement. . . . Circumstantial guarantee of its trustworthiness, [cit.], is provided by the fact that [Mrs. Patterson] gave her statement immediately after being [contacted], in the course of an official investigation; that [there was nothing to indicate she ever] recanted or sought to change her statement; and that her statement recounts particulars later corroborated by other evidence. See generally Higgs, supra at 608 (5). Accordingly, the trial court did not err by admitting the statement into evidence.” Adams, supra at 17-18. We find no grounds for reversal.

Decided January 7, 1992.

Richard L. Yancey, for appellants.

Jack O. Partain III, District Attorney, Kermit N. McManus, Kurt A. Kegel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1739.
    EDWARDS v. THE STATE.
    (415 SE2d 8)
   Birdsong, Presiding Judge.

Charlie Edwards was convicted of violating the Georgia Controlled Substances Act. He asserts as error on appeal the trial court’s denial of information concerning the identity of the confidential informant in the case. Held-.

Appellant argues that the confidential informant could have shed some light on the events in question, and that the trial court should have ordered disclosure of his identity so he could be called as a witness. However, according to the evidence, the confidential informant told two undercover narcotics agents he had “set up a buy” of cocaine and accompanied the agents to appellant’s place of employment where the agents purchased rock cocaine from appellant. Disclosure of the informant’s name and address is not required as a matter of law, but rests in the discretion of the trial court, on balancing the rights of the defendant and the rights of the State under all the facts and circumstances. Thornton v. State, 238 Ga. 160 (231 SE2d 729); Wilson v. State, 191 Ga. App. 833 (383 SE2d 197). Appellant does not aver what he believed the informant would be expected to testify and asserts he could not know unless the informant’s identity was revealed.

Appellant did, prior to trial, file a general Brady motion for disclosure of exculpatory evidence (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)), but did not specifically request disclosure of the informant’s identity as was the case in Thornton, supra, and did not affirmatively invoke an in-camera determination of the materiality and necessity of the informant’s testimony to the defense. See Tribble v. State, 248 Ga. 274 (4) (280 SE2d 352). Appellant is deemed to have waived the issue. Wilson, supra at 834. When appellant did raise the question in the middle of trial, the trial court stated that under the evidence so far presented the State would not be required to disclose the informant’s identity. The trial court also noted that it had examined the file in-camera and found nothing discoverable. We note that the mere possibility that the police testimony might be impeached is not enough to demand disclosure of an informant’s identity. Connally v. State, 237 Ga. 203, 208 (227 SE2d 352); Moore v. State, 187 Ga. App. 387, 390 (370 SE2d 511).

Decided January 7, 1992.

W. Dennis Mullís, for appellant.

James L. Wiggins, District Attorney, Cheryl L. Alford, Assistant District Attorney, for appellee.

Accordingly, the trial court did not err in refusing appellant’s request for disclosure of the informant’s identity. On review of the evidence,, we find a rational trier of fact could find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Beasley, Judge. Carley, Presiding Judge,

text:
    A91A1752.
    TAYLOR v. THE STATE.
    (414 SE2d 687)
   Beasley, Judge.

Taylor was convicted of burglary, OCGA § 16-7-1 (a), and his motion for new trial was denied.

1. He contends that he was denied a fair trial as the result of a prejudicial instruction given by the court at the outset of the voir dire proceedings. Appellant’s counsel had requested that the whole voir dire be completed before selection of jurors was made.

The court then instructed the jury as follows: “Counsel for the defendant has requested that he question all of the jurors, the whole panel, without proceeding to make a selection. This process takes longer than the usual method but he has a right to do this under the law [OCGA § 15-12-133] and you should not let it prejudice your minds in any way against him for making such a request.” Counsel challenged the array on the ground that the instruction was prejudicial to begin with because it tended “to make defense counsel the ‘heavy’ ” (Lahr v. State, 239 Ga. 813, 814 (3) (238 SE2d 878) (1977)), and that the curative instruction did not alleviate the prejudice. The court rejected the challenge. It is “highly probable” that the court’s remarks, if error, “ ‘did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). It is highly probable that it did not “impair the prospective jurors’ view of ‘this particular defendant,’ and did not contribute to the guilty verdict.” Edmonds v. State, 196 Ga. App. 190, 195 (1) (395 SE2d 566) (1990).

2. Appellant contends that the trial court erred in its charge to the jury, when addressing the subject of witness credibility, that “you are, by law, made exclusive judges of the credibility of the witnesses that have testified in this case, and in determining where the preponderance of the evidence lies, you have the right to take into consideration all the facts and circumstances surrounding the case; the witnesses’ manner and deportment on the witness stand; [etc.].” The use of “preponderance of the evidence” is the enumerated error. It was not called to the attention of the trial court. However, since the court did not inquire whether there were any objections, the objection was not waived. Cf. Devoe v. State, 249 Ga. 499 (292 SE2d 72) (1982).

The instruction, although incorrect, was limited in its scope and was given as part of a lengthy charge in which the court correctly and repeatedly instructed the jury that guilt must be established beyond a reasonable doubt and that this burden is on the State. As in Leonard v. State, 146 Ga. App. 439, 444 (5) (246 SE2d 450) (1978): “This incorrect phrase within an otherwise correct statement of law could not have misled the jury where they had previously heard the correct rule over and over again.” “ ‘The general rule is that, “a mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ and clearly could not have misled or confused the jury,” is not reversible error. (Cit.)’ [Cits.]” Wade v. State, 197 Ga. App. 464, 465 (1) (398 SE2d 728) (1990).

Judgment affirmed.

Judge Arnold Shulman concurs. Carley, P. J., concurs specially.

Carley, Presiding Judge,

concurring specially.

I agree with the majority’s conclusion in Division 1 that the record demonstrates that the evidence of appellant’s guilt beyond a reasonable doubt is so overwhelming that it is “highly probable” that the trial court’s error did not contribute to the judgment of conviction. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

However, I do not believe that the majority opinion sufficiently condemns the type of remarks made by the trial court in this case. In fact, it appears that the majority even pretermits whether the comments constituted error or not. In my opinion, the trial court clearly erred in making any mention to the jury as to the request of defendant’s counsel with regard to the method of jury selection. The trial court should simply have honored the defendant’s request and conducted voir dire in the manner requested, as provided by OCGA § 15-12-133. There was absolutely no reason for the trial court to make any comment in the presence of the jury. See Lahr v. State, 239 Ga. 813, 814 (3) (238 SE2d 878) (1977).

Decided January 7, 1992.

Jonathan Goldberg, Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Herman L. Sloan, Rebecca A. Keel, Assistant District Attorneys, for appellee.


text:
    A91A1782.
    WILLIS v. THE STATE.
    (414 SE2d 681)
   Beasley, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by being unlawfully in possession and control of cocaine, with intent to distribute. He was sentenced to life imprisonment as a second offender. OCGA § 16-13-30 (d).

Appellant was apprehended by members of a police drug squad, who were on routine patrol of a housing project, an area known for a large number of drug sales. Appellant and an individual named Williams were observed exchanging money. Officers pursued them to appellant’s apartment. Appellant discarded a clear sandwich bag in which were 81 smaller plastic bags, each of which contained a chunk or “hit” of a substance determined through chemical analysis to be crack cocaine. After discarding the bag, appellant entered and loqked his apartment. Officers arrested Williams, who had discarded two small bags each containing a “hit” of crack cocaine, which appellant had put in his hand.

The officers gained entry into the apartment by breaking down the doors. They could not find appellant, so a police dog trained to sniff drugs was brought. He went directly to a bedroom closet, where appellant was found hiding under a pile of clothing. Approximately 30 empty bags, some of which contained crack cocaine residue, were found in the apartment, as were several hundred dollars in small-denomination bills.

1. Appellant contends that the trial court erred in allowing the State to present the testimony of the dog trainer and in allowing an in-court demonstration of the dog’s ability to detect the presence of drugs.

The arresting officers testified that the dog was trained to detect the presence of drugs but not people, and that when the dog was taken into the apartment, he ran to only one location, the pile of clothing in which appellant was hiding. No drugs were found in the closet or in appellant’s immediate possession.

During direct examination of one officer and cross-examination of another, they testified that the dog could have detected the odor of drug residue on appellant’s hands or on money in his possession. Defense counsel asked one officer whether he knew for a fact that the dog sniffed out drugs only and not people. The officer responded that he did not know, but that he had been so informed by the dog’s trainer. Neither officer had trained the dog, nor were either of them responsible for handling the dog. By this questioning, defense counsel sought to distance defendant from any personal connection with drugs by casting doubt on the reason given for the dog’s beeline to defendant.

The prosecuting attorney later sought to introduce the testimony of the dog’s trainer and to conduct the in-court demonstration. Defendant objected because of a lack of notice. The prosecuting attorney stated that the evidence was in response to the issue raised by appellant in regard to whether the dog sniffed out things other than drugs. Defendant countered that the dog’s ability to locate appellant was not an issue, the issue being whether defendant was in possession of cocaine, and that in addition to lack of probative value, the demonstration was inflammatory and prejudicial. The prosecuting attorney offered defendant an opportunity to interview the trainer, but defendant renewed his objection and expressed his desire for a mistrial if the dog was brought into court in the presence of the jury. Defense counsel had interviewed the witness in the hall before his testimony. The trial court allowed the testimony and the demonstration.

On demand, OCGA § 17-7-110 generally requires the State to furnish the defense with a list of the State’s witnesses prior to trial. (See also USCR 30.3.) “[T]he transcending purpose of this Code section is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial. [Cit.]” Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30) (1974). The trial court in its discretion may allow an unlisted witness to testify upon giving the defense an opportunity to interview the witness prior to the time the witness testifies. E.g., Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988). Appellant has made no showing that his rights were not protected through the opportunity afforded. Consequently, we cannot say that the trial court abused its discretion in allowing this unlisted witness to testify.

The State sought to establish the presence of drug residue on appellant as part of its case-in-chief and to show, through the dog trainer’s testimony and the in-court demonstration, that the dog would have been attracted by such odor. Appellant cites no authority to support his contention that he was entitled to pretrial notice of it. Allowing the demonstration of the dog’s olfactory abilities was not an abuse of discretion. See generally Boyce v. State, 198 Ga. App. 371, 373 (3) (401 SE2d 578) (1991). It was relevant to the issue, raised by appellant, of whether the dog went to appellant because he was a human being or because he had some physical connection with a drug.

Decided January 7, 1992.

Jonathan Goldberg, James D. Cooper, Jr., for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

2. Appellant contends that the trial court erred in allowing the State to present evidence of a similar transaction in that the State did not give appellant notice of its intent to introduce such evidence at least ten days prior to trial as required by USCR 31.1.

“Although Rule 31.1 requires the notice to be filed at least 10 days before the trial, it authorizes the exercise of a trial court’s discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. [Cit.]” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990). See also Hall v. State, 181 Ga. App. 92 (1) (351 SE2d 236) (1986). Appellant received the State’s notice six days before trial by way of a facsimile transmittal sent to him after the trial date became apparent. Had service of the notice been accomplished by mail, it would have been complete upon mailing notwithstanding the date of receipt, even though actual notice would have been much closer to trial. Jones v. State, 185 Ga. App. 649, 650 (1) (366 SE2d 144) (1988). The State should scrupulously adhere to the rule’s requirement so as to give defendant fair notice within the time contemplated by the rule, and so as to avoid the raising of this procedural issue. In this case it does not appear that the trial court abused its discretion in holding that the notice was sufficient. See Thaxton, supra; Jones, supra.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A1799.
    DUNKIN’ DONUTS OF AMERICA, INC. et al. v. GEBAR, INC. et al.
    (414 SE2d 683)
   Sognier, Chief Judge.

George and Barbara Bellinger and their corporation, Gebar, Inc. (collectively the Bellingers), brought suit against Dunkin’ Donuts of America, Inc. and Georgia Donuts, Inc. (collectively “Dunkin’ Donuts”), and The Golden Circle, Inc. and its principals Jeffrey and Steven Weiss. The suit arose out of a purchase option agreement executed by the Bellingers, as sellers, and Dunkin’ Donuts, as purchasers, for sale of the Bellingers’ franchise. Dunkin’ Donuts later assigned its interest in this agreement to Golden Circle, Inc. and the Weisses (collectively referred to as “GCI”). In their complaint, the Bellingers alleged that in purchasing the Bellingers’ franchise, GCI had, with the advice and consent of Dunkin’ Donuts, breached the purchase option agreement by improperly withholding certain funds required to be withheld from the purchase price and held in escrow at the closing of the sale, and had conspired to defraud the Bellingers of these funds. Although both GCI and Dunkin’ Donuts filed answers to the complaint, GCI’s counsel withdrew from representation shortly thereafter and GCI did not participate in the trial. The action was tried by a jury, which returned a verdict for the Bellingers against Dunkin’ Donuts in the amount of $125,000, and judgment was entered thereon. Dunkin’ Donuts appeals from the trial court’s denial of its motion for judgment n.o.v. or, alternatively, for a new trial. No judgment was entered against GCI and it is not involved in this appeal.

1. In three enumerations, appellant contends the trial court erred by denying its motions for directed verdict and judgment n.o.v.

(a) We do not agree with appellant that the trial court erred by denying its motions for directed verdict and j.n.o.v. as to appellees’ claim for breach of contract. The motions were made on the ground that after appellant transferred the purchase option agreement to GCI, a contractual relationship no longer existed between appellant and appellees. Although appellant’s assignment of the purchase option agreement to GCI at closing terminated appellant’s contractual relationship with appellees, the closing memorandum, prepared and signed by appellant, specifically imposed upon appellant an obligation to disburse the $20,000 escrowed funds, which the memorandum recited were in its possession, in accordance with the provisions in the purchase option agreement. Since appellees’ contract claim was based on the alleged breach of the duty imposed by this provision in the closing memorandum, the motions were properly denied by the trial court on this ground.

(b) Appellant also maintains the trial court erroneously denied its motions because appellees had unconditionally released it from liability for all claims. We note initially that we cannot agree with appellees that appellant is precluded from raising its defense of release by the omission of that defense from the pretrial order. See OCGA § 9-11-16 (b). Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 138 (267 SE2d 792) (1980). In this case, omission from the pretrial order was not a bar because the releases executed by appellees and their testimony regarding their understanding of the releases were introduced into evidence without objection, and it is obvious that all parties knew of the existence of the releases.

The releases in issue are a “general release” and a “termination of franchise agreement and release” signed by appellees at closing. Appellees’ claims against appellant in regard to its handling of the escrowed funds necessarily arose only after the closing at which appellant’s duty to appellees regarding those funds was created (see Div. 1 (a), supra). As the releases contained clear language releasing all claims of any nature “from the beginning of the world to the date of these presents” (emphasis supplied) and to indemnify and hold appellant harmless against any claims prior to the date of closing, it follows that the releases signed by appellees did not cover the claims which are the subject of this action.

Moreover, the law requires that in the interpretation of contracts reasonable, lawful, and effective meaning be given to all manifestations of intention by the parties, rather than leaving a part of the parties’ manifestations of intent with no effect, Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981), and “ ‘[w]here instruments are executed at the same time in the course of the same transaction, they should be read and construed together.’ [Cits.]” Interstate Fire Ins. Co. v. National Indem. Co., 157 Ga. App. 516, 518 (277 SE2d 802) (1981). Accordingly, because the interpretation urged by appellant would render its obligation created at the closing regarding the escrowed funds meaningless and unenforceable, see Whitmire, supra, we cannot agree with appellant that the releases executed by appellees contemplated releasing a claim for the future breach of an obligation created at the same closing.

(c) The standard of review of the denial of a motion for directed verdict or j.n.o.v. is the “any evidence” test. Stolle Corp. v. McMahon, 195 Ga. App. 270, 273 (3) (393 SE2d 52) (1990). Contrary to appellant’s contention, our review of the transcript reveals some evidence to support an award of damages for fraud and conspiracy. Construed to support the verdict, as required, id., the material evidence at trial showed that the purchase option agreement provided that $20,000 would be held in escrow at closing for the correction of deficiencies in the store, but that those deficiencies were to be identified before closing. Under the escrow provision, appellant was required to give appellees ten days notice of bills it wished to pay with the escrowed funds during which period appellees could either contest or acquiesce in the payments. After 60 days, any balance remaining in escrow was to be forwarded to appellees and the escrow terminated.

A routine deficiency status report was prepared on August 12, 1987, identifying those conditions in the store which did not meet appellant’s standards. However, the contract provided that the purchaser was to be solely responsible for the final determination of deficiencies, and several days after closing, on October 29, 1987, Jeffrey Weiss, President of GCI, signed the bottom of the deficiency status report, under a handwritten notation stating that “[a]ll items on this list of deficiencies have been corrected as of this date and is certified by the parties signing below.” Despite that certification, the entire $20,000 held in escrow by appellant since closing was released to GCI shortly thereafter. Subsequently, on December 31, 1987, appellant’s then district sales manager, Michael Maher, sent a letter to appellees informing them that over $18,000 of the escrow funds had been spent for repairs and renovations to the shop, and enclosing invoices for these items. At the same time, GCI sent appellees a check for $2,000 as a “partial payment from escrow,” which appellees returned unnegotiated.

Maher testified that various aspects of the transaction were contrary to the usual practices of appellant. He noted that relatives of the Weisses were friends of principal stockholders of appellant, and stated that appellant extended to GCI more favorable terms than were usual and provided for an unusually high amount of escrow. Maher opined that the store met appellant’s standards as of the closing, but that he was instructed by his superiors to write the December 31, 1987 letter. He also testified that he “vehemently disagreed with the releasing of the $20,000 escrow. It was highly irregular. It basically took away the control that [appellant] had as to how and where money was being spent.” Moreover, evidence was adduced to show that the purchasers used the funds to remodel the store rather than to correct deficiencies. From the evidence presented, the jury would have been authorized to conclude that appellant and GCI conspired to defraud appellees of $20,000 to remodel the store, and that appellant represented to appellees that the funds would be held in escrow and used only to correct the listed deficiencies and the balance refunded when it knew that was not the case. Accordingly, we find that the trial court correctly denied appellant’s motions for a directed verdict and j.n.o.v. as to the fraud and conspiracy claims.

(d) Appellees have conceded that they are not seeking to collect attorney fees, and that the jury’s award of unspecified attorney fees was improper. Accordingly, we need not address appellant’s enumeration that the trial court erred by denying its motions for a directed verdict and j.n.o.v. as to this issue. That portion of the judgment awarding attorney fees must be written off.

Decided January 7, 1992.

Smith, Gambrell & Russell, David C. Newman, Pamela R. Masters, E. Kendrick Smith, for appellants.

Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellees.

2. Any failure to instruct the jury as to the meaning and effect of the releases was harmless error, as we have held that the releases executed at closing clearly pertained to accrued claims, appellees’ claim which forms the subject matter of this action had not yet accrued at that time, and the jury returned a verdict for appellees. To warrant reversal, error alleged must be harmful. Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218, 220 (4) (390 SE2d 79) (1990).

Although appellant maintains there was insufficient evidence of fraud and conspiracy to warrant the trial court’s charge on those issues, we have held in Division 1 (c), supra, that there was sufficient evidence of fraud and conspiracy to support the jury’s verdict, and accordingly, we find no merit in this contention.

3. Appellant finally contends the trial court erred by failing to follow the mandate of OCGA § 51-12-5.1 (d), which requires that when punitive damages are prayed for, the trial be bifurcated and the jury required to determine first, by an appropriate form of verdict, whether such damages are awardable, and only then setting an amount. The record reveals, however, that appellant acquiesced in the form of verdict used, and that its only objection was that a form be used which allowed the jury to find against GCI as well. That objection was sustained, and appellant agreed with the corrected verdict form. Accordingly, appellant has no basis for complaint in this regard. Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693, 694 (1) (411 SE2d 901) (1991).

Judgment affirmed with direction that the award of attorney fees he written off; otherwise reversed.

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